Penny Wong (SA, Australian Labor Party, Minister for Climate Change and Water) Share this | Link to this | Hansard source

I present three government responses to committee reports as listed at item 12 on today’s Order of Business.

In accordance with the usual practice, I seek leave to have the documents incorporated in Hansard.

Leave granted.

The reports read as follows.

GOVERNMENT RESPONSE TO SENATE COMMITTEE INQUIRY INTO THE ADMINISTRATION OF THE CIVIL AVIATION SAFETY AUTHORITY (CASA) AND RELATED MATTERS

Recommendation 1

“The Committee recommends that the Australian Government strengthens CASA’s governance framework and administrative capability by:

• introducing a small board of up to five members to provide enhanced oversight and strategic direction for CASA; and
• undertaking a review of CASA’s funding arrangements to ensure CASA is equipped to deal with new regulatory challenges.”

Response to Recommendation 1

A CASA Board has been established.  The Board of five members has been appointed by the Hon Anthony Albanese MP, Minister for Infrastructure, Transport, Regional Development and Local Government, and comprises a Chair, Deputy Chair, the Director of Aviation Safety as an ex officio member, and two other members.  Board members are appointed for terms of up to three years.  The Board’s primary purpose includes deciding on the objectives, strategies and policies to be followed by CASA, ensuring that CASA performs its functions effectively and efficiently and complies with the reporting and other requirements of the Commonwealth Authorities Companies Act 1997 (CAC Act) and the Civil Aviation Act 1988.  Legislative amendments to the Civil Aviation Act 1988 to give effect to the governance changes were passed by Parliament in March 2009, with the new arrangements in place from 1 July 2009.  Future funding arrangements for CASA will be addressed in the National Aviation Policy Statement later in 2009.

Recommendation 2

“The Committee recommends in accordance with the findings of the Hawke Taskforce, that CASA’s regulatory Reform Program be brought to a conclusion as quickly as possible to provide certainty to industry and to ensure CASA and industry are ready to address future safety challenges.”

Response to Recommendation 2

In the National Aviation Policy Green Paper, the Government reaffirmed its commitment to have the regulatory reform program completed by 2010-2011.

Recommendation 3

“The Committee recommends that the Australian National Audit Office audit CASA’s implementation and administration of its Safety Management Systems approach.”

Response to Recommendation 3

This is a matter for the Auditor General.

REPORT BY THE JOINT STANDING COMMITTEE ON MIGRATION:

Temporary visas - Permanent benefits: Ensuring the effectiveness, fairness and integrity of the temporary business visa program

THE GOVERNMENT RESPONSE TO THE REPORT

Preamble

The Australian Government welcomes the opportunity to respond to the report of the Joint Standing Committee on Migration’s inquiry into temporary business visas titled Temporary visas … permanent benefits: Ensuring the effectiveness, fairness and integrity of the temporary business visa program. The report was tabled in Parliament on 12 September 2007.

The Australian Government agrees with the Committee that temporary skilled migrants are essential to meet current and future skills shortages in Australia and make a significant contribution to the Australian community. The Subclass 457 visa is the main temporary visa for skilled temporary workers. Many people on this visa apply for permanent residence through the employer sponsored migration visas. The employer sponsored visas, both temporary and permanent, provide a targeted response to skills shortages. These migration programs complement the government initiatives to increase the skills levels of Australians.

The Government also agrees that it is important to restore public confidence and support for the Subclass 457 visa program. While most sponsors comply with the requirements for the Subclass 457 visa there is a small group that seeks to exploit or abuse the program. The Government introduced to the Parliament, the Migration Legislation Amendment (Worker Protection) Bill 2008 that strengthens the capacity to monitor sponsors, share information with other regulators and to take strong action against those who abuse the program, including pecuniary and other administrative sanctions. The Bill was enacted on 18 December 2008 and is to commence by mid September 2009.

Training Australians and not just relying on the temporary employees from overseas is an important part of the Subclass 457 visa requirements, as discussed in the report. The training standards have not been clear in the past. The training requirement and ways in which it can be met and measured were considered in the reviews that the Government has instituted since taking office, especially the Skilled Migration Consultative Panel comprising representatives from state governments, unions and industry. The reviews also considered other key aspects of the Subclass 457 visa including adequate remuneration and regulations to prevent exploitation and undercut Australian working conditions.

The reviews of the Subclass 457 visa program that the Government commissioned are:

• the business-led External Reference Group (ERG) established by the Minister for Immigration and Citizenship in February 2008 to examine ways to make the program operate as effectively as possible. The ERG presented its report in April 2008. Fourteen of the sixteen recommendations have been agreed to and are being implemented;
• the Subclass 457 Integrity Review led by industrial relations expert, Ms Barbara Deegan, which examined ways to improve the integrity of the program. Ms Deegan presented her final report in October 2008;
• the Subclass 457 Inter-Departmental Committee (IDC) comprising representatives from Department of Immigration and Citizenship (DIAC), the Department of Education, Employment and Workplace Relations (DEEWR), the Department of Foreign Affairs and Trade (DFAT), the Treasury, the Department of the Prime Minister and Cabinet and the Department of Finance and Deregulation. The IDC was created to consider the reform package for the Subclass 457 visa program and to bring together the outcomes of the other reviews; and
• the Skilled Migration Consultative Panel comprising representatives from industry, unions and State Governments to consider issues and policy proposals for the skilled migration program and to provide advice to the IDC on the reform package.

The reports from the IDC and the Skilled Migration Consultative Panel brought together the issues raised in the reviews undertaken, including the findings and recommendations of the Joint Standing Committee on Migration, for Government consideration of the long term reform of the 457 visa. The aim of the reform is to increase the effectiveness of the program, restore the integrity of the program and public confidence, ensure that it meets the skill needs to contribute to the Australian community, and, using a risk based approach, provide fast processing for genuine sponsors and strong actions against those who may attempt to exploit or abuse the program. The report was presented to Ministers on 19 December 2008.

The Government is grateful for the work the Committee has taken in respect to this important subject and for all those who contributed with their submissions and evidence to the Committee.

The Government’s response to the recommendations made by the Committee follows. A number of the recommendations have already been implemented. Others will be announced following the Government consideration of the reviews and consultations. The delay in responding to the Committee’s report has been due, in part, to the number of changes to the Subclass 457 visa program that were being considered and implemented in 2008.

Recommendation 1

The Committee recommends that the Department of Immigration and Citizenship, together with the Australian Federal Police and other relevant agencies, review the character requirements of the 457 visa program to ensure the integrity of security and police checks, particularly with reference to any variations in these procedures for overseas trained doctors entering under the Medical Practitioner visa (subclass 422) and the 457 visa.

The Government notes this recommendation.

The Australian Security Intelligence Organisation (ASIO) is the competent authority which conducts national security assessments on visa applicants. ASIO assess visa applicants referred by the Department of Immigration and Citizenship (DIAC) as per the requirements of Public Interest Criteria 4002 (PIC 4002) under the Migration Regulations 1994. At the completion of a security assessment, ASIO provides advice to DIAC as to whether the applicant is assessed as a direct or indirect risk to security.

The character requirement of the 457 visa program is detailed in Public Interest Criterion 4001 (PIC 4001) of the Migration Regulations. The Australian Federal Police (AFP) is not a direct stakeholder in these requirements. Under current processing arrangements, Subclass 457 visa applicants are not required to provide police clearances except in situations where they have declared a previous criminal history in their application.

All overseas trained doctors have their medical qualifications verified through the International Credentials Service of the Educational Commission for Foreign Medical Graduates of the United States (ECFMG). State and Territory Medical Boards also have a legislative responsibility to ensure that they only register people of good character.

Subclass 422 (Medical Practitioner) visa applicants are required to provide police clearances for any country in which they have lived for more than 12 months in the last 10 years.

The Australian Government continues to monitor the security and police clearance requirements against risk assessments.

Recommendation 2

The Committee recommends that the Department of Immigration and Citizenship commission research into sectoral usage of the 457 visa program, commencing with the meat processing sector, with a view to further refining temporary skilled migration policy and the 457 visa program with reference to specific industry sector needs.

The Government supports this recommendation.

The specific needs of some industries warrant the development of Labour Agreements. Labour Agreements allow the Australian Government to stipulate certain requirements relating to the recruitment of overseas workers, which may not be applicable under the standard Subclass 457 visa program.

In 2006-07, the Commonwealth and the Australian Meat Industry Council negotiated a Meat Industry Labour Agreement that enables meat processing companies to regularise the status of existing overseas meatworkers on Subclass 457 visas where they can demonstrate the skills are not readily available in Australia.

Changes to the Migration Regulations introduced on 10 September 2007 have made the Labour Agreement the only pathway available to access overseas meat workers under the Subclass 457 visa program. These changes have received some criticism from the industry.

This approach was extended to the on-hire industry. On 1 October 2007, access to the standard Subclass 457 visa program was removed for on-hire employers that seek to place overseas workers with other unrelated businesses. A Labour Agreement is now the compulsory pathway for access to overseas workers for the on-hire industry. The agreement provides checks and balances to assist in managing prevalent practices such as ‘benching’ (not paying salary between contracts) and the underpayment of workers.

Further analysis of sectorial usage of the Subclass 457 visa program, and the suitability of certain industries to access a Labour Agreement, will be considered on a case-by-case basis.

Recommendation 3

The Committee recommends that the Department of Immigration and Citizenship:

clarify the purpose of the Business (Short Stay) visa (subclass 456) in terms of whether it permits employment options—that is, valid entry for short-term specialists to meet the urgent needs of business;

work with stakeholders to ensure an effective, streamlined migration option to meet the short-term temporary employment needs of business; and

rename the long-stay and short-stay business visas and the business visitor visas to more accurately reflect their employment or business visit purposes, with consideration to be given to renaming the Temporary Business (Long Stay) visa as the Temporary Skilled Employment (Long Stay) visa.

The Government supports point one and two of this recommendation.

DIAC is currently developing policy options that aim to:

• clarify the distinction between the Subclass 456 Business (Short Stay) and 457; and
• ensure visa options are available that balance the need to be responsive to the short-term demands of the labour market with the need to protect Australian workers and their conditions.

Under current policy, short term employment, generally no more than four weeks, for Subclass 456 Business (Short Stay) visa holders may be possible where it is:

• highly specialised in nature and not ongoing; or
• an emergency or urgent situation and not ongoing; or
• in Australia’s interest.

In 2008, an investigation by the Workplace Ombudsman found that workers on a vessel laying a gas pipeline touching the seabed were considered to be within the Australian Migration Zone. These workers had originally been granted Subclass 456 visas. Following the Workplace Ombudsman’s findings, the Minister for Immigration and Citizenship directed that where people are employed on vessels carrying out similar work, they will be required to apply for a Subclass 457 visa. This will ensure that overseas workers employed within the Australian Migration Zone are properly paid and Australian wages and conditions are not undermined. Changes are being made to the Subclass 457 visa enabling sponsorship for periods of less than three months.

The Government notes point three of this recommendation.

The Government has conducted a comprehensive review of the Subclass 457 visa program. This has included external consultation with stakeholders on changes to improve and streamline the visa.

Consideration may be given to the names of the visas after the Government has considered the reforms of the Subclass 457 visa program.

Recommendation 4

The Committee recommends that, in light of the serious concerns raised during the inquiry about skills assessment processes for overseas trained doctors (OTDs), the Department of Health and Ageing, together with the Department of Immigration and Citizenship, work to ensure initiatives announced by the Council of Australian Governments to establish a national process for the skills assessment of OTDs are implemented as a matter of urgency.

The Government supports this recommendation.

At its 14 July 2006 meeting, the Council of Australian Governments agreed to a nationally consistent assessment process for the assessment of overseas trained doctors. Details of the new assessment model have been agreed and the new assessment pathways were phased in across States and Territories. The new assessment model will ensure all overseas trained doctors undergo adequate assessment, supervision and orientation. This will ensure that only appropriately qualified doctors are registered. The new assessment model has been fully implemented from 1 July 2008.

Recommendation 5

The Committee recommends that the Department of Immigration and Citizenship investigate alleged misuse of the Occupational Trainee visa (subclass 442) and take action to address any problems identified with the program.

The Government supports this recommendation.

A national assessment model for overseas trained doctors has been introduced. The Department of Health and Ageing has also worked with DIAC to develop processes that will minimise misuse of the Occupational Trainee visa. The new measures have been implemented by all specialist colleges and medical registration boards.

DIAC also monitors the use of Subclass 442 visas in other occupational groups to ensure the integrity of the visa program is maintained. The Workers Protection Act 2008 will apply to sponsors in the Subclass 442 visa program.

Recommendation 6

The Committee recommends that the Department of Immigration and Citizenship, together with the Department of Employment and Workplace Relations, investigate and report to the Minister for Immigration and Citizenship on the adequacy of the salary system under the 457 visa program, underpinned by the minimum salary level, to identify if viable alternatives exist for calculating salary levels.

The Government supports this recommendation.

The Minimum Salary Level (MSL) for Subclass 457 visa holders was increased on 1 August 2008 when a new legislative instrument came into effect. The MSL increased by 3.8 per cent and applies to new sponsored worker visa applicants and to all existing visa holders. The revised formula applies to all sponsored workers who are paid in accordance with a MSL.

The Subclass 457 Integrity Review conducted by industrial relations expert Ms Barbara Deegan investigated the MSL as part of the broader package of reforms for the Subclass 457 visa program. This issue was considered in the Subclass 457 Integrity Review’s first discussion paper titled ‘Minimum Salary Level and Labour Agreements’ published in July 2008. The Subclass 457 Integrity Review has reported to the Minister and includes further consideration of the MSL under the Subclass 457 visa program. The Government has announced market rates of salary will be introduced as an alternative to the current MSL arrangement from mid September 2009.

In the interim, the MSL will be increased for all new and existing 457 visa holders by 4.1 per cent on 1 July 2009, in line with all employees total earnings as reported by the Australian Bureau of Statistics.

Recommendation 7

The Committee recommends that the Australian Government proceed with its proposal to index the salaries of 457 visa holders in line with increases to the minimum salary level or, alternatively, the award conditions under which the visa was granted.

The Government supports this recommendation.

On 23 May 2008, the Minister for Immigration and Citizenship announced a 3.8 per cent increase to Minimum Salary Levels (MSLs), which took effect from 1 August 2008. This increase was based on the increase in total employment earnings in the period from November 2006 to November 2007.

The MSL will be increased for all new and existing Subclass 457 visa holders by 4.1 per cent on 1 July 2009, in line with increase of all employees total earnings to November 2008 as reported by the Australian Bureau of Statistics (ABS).

In addition to the MSL, there is a requirement that Subclass 457 visa holders be engaged in accordance with Australian work standards including industrial instruments (where they refer to a higher salary than prescribed by the MSL Legislative Instrument), superannuation, occupational health and safety, workers compensation, workplace relations and taxation legislative requirements.

The Government has decided to replace the current MSL arrangement with a system of market rates of salary, whereby Subclass 457 visa holders would be paid the market rate for their specific occupation, thereby ensuring parity with Australian workers.

Recommendation 8

The Committee recommends that the Department of Immigration and Citizenship and the Department of Employment and Workplace Relations:

work with stakeholders to review the impact on the 457 visa program of the transition from the Australian Standard Classification of Occupations to the Australian and New Zealand Standard Classification of Occupations (ANZSCO);

regularly review the list of approved occupations gazetted under the Migration Regulations 1994 that meet the minimum skill level for the 457 visa as defined under the new ANZSCO to ensure that this list maintains the integrity of the 457 visa program in listing only ‘skilled’ occupations; and

communicate to stakeholders and the Australian public what impact the adoption of the ANZSCO system will have on the definition of a ‘skilled’ occupation under the 457 visa program in terms of ensuring a continued benefit to Australia.

The Government supports this recommendation.

DIAC will make the necessary changes to its visa processing computer systems in 2009. These changes will affect the processing of Subclass 457 visas, but also include changes affecting skilled migration, students and a broad range of other departmental business, such as reporting.

Significant work is required in a number of DIAC’s computer systems as well as the new Generic Visa Portal being developed under the DIAC’s Systems for People Project. An implementation date for the systems changes required is yet to be finalised. The aim is to have the necessary work completed in 2009 to coincide with the ABS and DEEWR moving to ANZSCO as the single reference for analysing and recommending changes to the list of skilled occupations for the Subclass 457 visa program.

DIAC has, as part of the transition planning, consulted with stakeholders. Assessing authorities had the opportunity to comment on a draft of the new Skilled Occupations List (SOL) for permanent migration and to affirm which occupations they are able to assess under ANZSCO.

DIAC, ABS and DEEWR officers meet regularly to develop the strategy to shift from ASCO to ANZSCO. The new arrangements will be outlined on DIAC’s website. DIAC’s network of Regional Outreach and Industry Outreach Officers are supporting the change strategy and providing advice on the changes. DIAC will also engage the Migration Agent Industry, which plays a significant role in preparing sponsorship documentation for Subclass 457 visa processing.

The Minister for Immigration and Citizenship last changed the Legislative Instrument that includes occupations and minimum salary levels for the Subclass 457 visa in August 2008. This change was part of a program to reform the Subclass 457 visa program. Whilst this list still used ASCO numerical codes and occupation titles, the changes followed consultation by DEEWR and DIAC with stakeholders.

DIAC invited community comment on the reform of the Subclass 457 visa program through the Subclass 457 Integrity Review led by industrial relations expert, Ms Barbara Deegan. This review also included references to skill levels. The report is being considered by Government.

Recommendation 9

The Committee recommends that the Department of Immigration and Citizenship and the Department of Employment and Workplace Relations work with stakeholders to improve the flexibility of the Australian Standard Classification of Occupations and the Australian and New Zealand Standard Classification of Occupations in defining new/emerging occupations and specialisations.

The Government supports this recommendation.

Occupations eligible for various visas are based on the Australian Standard Classification of Occupations (ASCO) and, in the future will be based on the Australian and New Zealand Standard Classification of Occupations (ANZSCO). This provides structure and consistency to eligibility criteria. There is flexibility to add new and emerging occupations and specialisations or to exclude specific occupations from the lists, including the Subclass 457 list of acceptable occupations. The Minister for Immigration and Citizenship can amend by legislative instrument, the list of eligible occupations in response to changing demands and when new occupations are to be included in the program due to a skills shortage or when existing occupations are to be excluded due to an oversupply in the labour market.

On 1 July 2008, for example, the Minister amended the legislative instrument to exclude ‘Heavy Truck Driver’ as an eligible occupation in the regional Subclass 457 visa program, following a recommendation from the Trucking Industry Working Group. At the same time, the Minister added ‘Mining or Construction Site Heavy Truck Driver’ as an eligible occupation, to take into account the specific labour requirements of the mining and construction industries in regional areas.

The Subclass 457 Integrity Review conducted by Ms Barbara Deegan recommended that new skills lists be developed by DEEWR in consultation with DIAC and industry parties to ensure that only occupations requiring genuine skill are included. This option is being considered as part of the ongoing review of the Subclass 457 visa program.

On 1 April 2009, the Government announced that all occupations in ASCO Major Groups 5-7 (applicable to regional Australia) would be removed from the approved lists and be required to use Labour Agreements.

The current Subclass 457 visa program has the flexibility to include and exclude specific occupations and specialisations as required, based on consultations between DIAC, DEEWR and relevant stakeholders. There is also the option to request a labour agreement for occupations not on the list of occupations for this visa.

Recommendation 10

The Committee recommends that the existing 457 visa subclass be maintained in its current form and not be divided into two visa subclasses for higher and lower (regional) Australian Standard Classification of Occupations classifications. However, the Committee recommends that the Department of Immigration and Citizenship and the Department of Employment and Workplace Relations further investigate this area, with a view to enhancing monitoring and reporting, and improving arrangements for regional areas of Australia.

The Government supports this recommendation.

Regional arrangements for the Subclass 457 visa subclass were addressed as part of the review of the Subclass 457 visa program. The Government has decided that the special need for lower skilled occupations in ASCO 5-7 will not have regional concession and will be considered under labour agreement. This provides enhanced reporting arrangements.

The Government has also announced that the MSL and regional MSL concessions will be replaced by market salary rates. This effectively excludes the need for special regional arrangements.

The Migration Legislation Amendment (Worker Protection) Act 2008 has been passed by Parliament and will come into force in September 2009 to better define employers’ obligations and employees’ rights. The obligations will be incorporated in the Migration Regulations, allowing greater flexibility where required for changing circumstances. The Act and associated Regulations will strengthen the monitoring and enforcement regime.

Any further changes to the current form of the Subclass 457 visa program will be informed by the findings and recommendations from the review of the program, including the Skilled Migration Consultative Panel (comprising representatives from State Governments, industry and unions); the Subclass 457 Integrity Review conducted by industrial relations expert Ms Barbara Deegan; and the Subclass 457 Inter-Departmental Committee.

Recommendation 11

The Committee recommends that the Department of Immigration and Citizenship commission an independent review of the structure and roles of Regional Certifying Bodies (RCBs), with particular regard to:

• the capacity of RCBs to fulfil their specified functions;
• the differing organisational structures of RCBs; and
• the adequacy of the ‘regional’ 457 visa and associated concessions.

In addition to reporting on the issues outlined above, this review should aim to:

• produce clear operational guidelines for RCBs; and
• identify mechanisms for the communication of relevant procedural, legislative and statistical information to RCBs.

The Government supports this recommendation.

In the current Subclass 457 visa program review, the structure and roles of Regional Certifying Bodies (RCBs) were considered by an Inter-Departmental Committee including DIAC, DEEWR, DFAT, the Treasury, the Department of Prime Minister and Cabinet and the Department of Finance and Deregulation. The review has been submitted to Government for consideration.

Recommendation 12

The Committee recommends that, to ensure the 457 visa program is limited to skilled occupations where there are demonstrated skills shortages and there is no negative impact on Australian jobs, the Department of Immigration and Citizenship and the Department of Employment and Workplace Relations:

• regularly review the gazetted list of approved occupations and give consideration to ensuring that it lists only skilled migration occupations in demand—for example, through the possible implementation of a Temporary Migration Occupations in Demand List; and
• work with industry and other stakeholders to trial a limited labour market testing process to agreed standards for a narrow range of identified occupations.

The Government notes this recommendation.

The eligible occupations for the Subclass 457 visa are based on the Australian Standard Classification of Occupations and are listed in a Legislative Instrument, which can be changed quickly. New and emerging occupations and specialisations can be added to the approved list of occupations and occupations of concern can be removed from the list with a change to the Legislative Instrument. This ensures that the program can respond quickly to changes in the labour market. The list is monitored to ensure that it reflects skill needs.

There is no proposal to introduce a temporary Migratio