The evolution of Australia’s dedicated temporary skilled migration program: a bipartisan political journey from agreement to disagreement

ABSTRACT

The growth of temporary labour migration in Australia has been remarkable. Originally introduced as a discrete program, aimed at facilitating the entry of highly skilled temporary migrant workers, the program has ballooned with a wide array of temporary visas with work rights accounting for nearly a tenth of the Australian labour force. Although many scholarly accounts have critiqued Australia’s temporary labour migration program, less attention has been paid to the role of political factors in shaping Australia’s approach to temporary labour migration and how these have impacted the regulatory design of visas for a dedicated purpose of work. This article addresses this gap through a granular analysis of policymaking and government-commissioned reviews of the temporary labour migration program since 1995. Using the frame of bipartisanship, it traces the journey from agreement by the major parties on temporary skilled labour migration to contestation.

KEYWORDS:

• Skilled migration
• dedicated temporary labour migration
• worker exploitation
• bipartisanship

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Howe and Owens (2016), p 20; Castles and Ozkul (2014), p 27.

2 See, eg, Fudge and Strauss (2014); Berg (2016); Fudge (2012), p 98; Refslund and Thörnquist (2016); Murphy (2017), p 428; Fudge (2016).

3 Since the general election in 1949, the Liberal Party and the Nationals when forming government have done so as a Coalition, see: Parliament of Australia, ‘Infosheet 22 – Political Parties’. For the purposes of this article, we refer to the Liberal-National Coalition as the ‘Coalition Government’ or the ‘Coalition’.

4 International Labour Organization (2022), p vii.

5 In this article, we use the terms ‘dedicated programs’ and ‘dedicated temporary labour migration programs’ interchangeably.

6 Tham, Campbell and Boese (2016), p 176.

7 ILO Migration for Employment Convention (Revised) 1949 (No 97) (entered into force 22 January 1952).

8 Department of Home Affairs, ‘Temporary Work (Skilled) Visa (Subclass 457)’ (2023).

9 Department of Home Affairs, ‘Temporary Skill Shortage Visa’ (2023).

10 This limited attention in the Australian literature is noted by Joint Standing Committee on Foreign Affairs, Defence and Trade (2018), p 8 [2.9]; Carr (2017), p 255.

11 The lack of scholarly attention is noted by Trubowitz and Mellow (2005), p 434.

12 See, eg, Trubowitz and Mellow (2005); Pijovic (2016); Joint Standing Committee on Foreign Affairs, Defence and Trade (2018); Carr (2017); Albinski (1986); Carne (2017).

13 Matthews and Ravenhill (1988), p 9; Joint Standing Committee on Foreign Affairs, Defence and Trade (2018), p 23 [2.59].

14 Matthews and Ravenhill (1988), p 9.

15 Matthews and Ravenhill (1988), p 9.

16 Carr (2017), p 255.

17 Joint Standing Committee on Foreign Affairs, Defence and Trade (2018), p 18 [2.40].

18 Albinski (1986), pp 2 and 14.

19 Harbridge, Malhotra and Harrison (2014), p 331.

20 Joint Standing Committee on Foreign Affairs, Defence and Trade (2018), p 7–8 [2.5]. See also Prasser (2023), p 210.

21 Carr (2017), p 256 (footnote omitted).

22 Carr (2017), p 256.

23 Manning (2019).

24 Trauth-Goik (2018).

25 Trauth-Goik (2018).

26 Hugo (2014).

27 Australian Government, ‘Migration Strategy: Getting Migration Working for the Nation’ (2023).

28 Department of Home Affairs, Australian Government, ‘Rapid Review into the Exploitation of Australia’s Visa System’ (2023).

29 Department for International Trade, ‘Mobility in the UK-Australia Free Trade Agreement’.

30 Hunt (2021).

31 Sullivan (2022).

32 Dziedzic, Kora and Fennell (2021).

33 Brown (2021).

34 Curtain (2021).

35 However, as a Memorandum of Understanding had already been negotiated with Vietnam to enable up to 1,000 workers to come to Australia to work in the agriculture sector, the Albanese Government has committed to honouring this arrangement: Department of Foreign Affairs and Trade, ‘The Australian Agriculture Visa’.

36 See Carr (2017), p 268: ‘[w]hen bipartisanship emerges as an outcome of debate and agreement as to the nature of the problem and the right policy solutions, it should be welcomed’ (emphasis in original).

37 Maddison, Denniss and Hamilton (2004), p 21 [3.4].

38 Khoo et al (2003), p 28.

39 Ibid.

40 Ibid.

41 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021).

42 Committee of Inquiry into the Temporary Entry of Business People and Highly-Skilled Specialists (1995), p 84 (‘Roach Report’).

43 Bolkus (1994), pp 1530–1.

44 Roach Report (1995), p 4 [1.12].

45 Roach Report (1995), p 19 [3.4].

46 The subclass 456 visa has since been repealed and replaced by the Temporary Work (Short Stay Specialist) visa (subclass 400) which allows individuals to enter Australia to undertake short-term skilled work assignments, see Howe and Nikoloudakis (2022).

47 Kinnaird (2006), p 50.

48 Ruddock (1996). See also Howe (2013).

49 Tham, Campbell and Boese (2016).

50 As late as 2005, Prime Minister John Howard rejected calls for a Pacific Seasonal Worker scheme, stating, ‘[w]e have always had a preference for permanent settlement or permanent migration’, see ABC Radio (2005). In 2006, Treasurer Peter Costello stated, ‘Australia has never been a guest-worker country. We’ve never been a country where we ship you in and ship you out. I don’t think Australia will be a guest-worker country and I don’t think Australians want to see that’: Gordon (2006).

51 Roach Report (1995), p 4 [1.11].

52 Hugo (2014), p 870. See also Birrell and Healy (1997).

53 Hugo (2014).

54 Roach Report (1995), p 25 [3.29].

55 Roach Report (1995), p 20 [3.5].

56 Roach Report (1995), p 19 [3.4].

57 Roach Report (1995), p 4 [1.12].

58 See, eg, ‘Guest Worker Re-Paid Lost Wages’, The World Today (2008); Moore and Knox (2007); Mason v Harrington Corporation Pty Ltd [2007] FMCA 7; Inspector Robert John Hortle v Aprint (Aust) Pty Ltd [2007] FMCA 1547.

59 Business Advisory Panel (1999); External Reference Group (2002).

60 Business Advisory Panel (1999).

61 Business Advisory Panel (1999).

62 External Reference Group (2002), p 47.

63 Introduced on the basis that employer attestation of being unable to source local workers could be easily manipulated, was too costly, time consuming and burdensome, and was not a precise measure of identifying shortages.

64 External Reference Group (2002) preface.

65 In the report, there are some extracted quotes from unions emphasising the importance of only compliant employers access the visa (see the quote by the NSW Labor Council (extracted at [5.51]); and that penalties be introduced for sponsors who breach sponsorship obligations under the program (see the quote by the NSW Labor Council in support of the CFMEU extracted at [4.82]).

66 However, see ‘Builder Lured Workers as Slave Labour’, Sun Herald (12 February 2020); ‘$35 a Day for Tunnel Crew’, Burnie Advocate (1 September 2020).

67 External Reference Group (2002), p 108 [4.61].

68 External Reference Group (2002), p 127 [5.51].

69 Joint Standing Committee on Migration (2004).

70 Sponsorship Measures Act Sch 1 cl 2.

71 Explanatory Memorandum, Migration Legislation Amendment (Sponsorships Measures) Bill 2003, 2.

72 Commonwealth, Parliamentary Debates, House of Representatives, 4 June 2003, 15922 (the Hon Phillip Ruddock, Minister for Immigration and Multicultural and Indigenous Affairs and Minister Assisting the Prime Minister for Reconciliation) See also Ruddock (2003).

73 Joint Standing Committee on Migration (2004), pp 40 [4.12]–[4.13], 41 [4.15]–[4.16].

74 Joint Standing Committee on Migration (2007).

75 Joint Standing Committee on Migration (2007), p 6 [1.19].

76 Joint Standing Committee on Migration (2007), p 4 [1.15].

77 Joint Standing Committee on Migration (2007), pp xv–xxi.

78 Joint Standing Committee on Migration (2007), p 147.

79 Burrell (2007).

80 See, eg, Mason v Harrington Corporation Pty Ltd [2007] FMCA 7; Flattery v Zeffirelli’s Pizza Restaurant [2007] FMCA 9.

81 For evidence of the mounting exploitation of subclass 457 visa holders at the time, see, eg, Rollins (2006).

82 Beazley (2006); Koutsoukis (2006), p 17.

83 See, eg, Joint Standing Committee on Migration (2007), p 65 [2.91] where JSCOM articulated the concerns of the Transport Workers’ Union regarding the ‘poor safety outcomes and low rates of pay’ in the trucking industry which created barriers to recruitment and retention of local workers. The Union had contended that subclass 457 visas were ‘not the answer’ to addressing these concerns.

84 Joint Standing Committee on Migration (2007), pp 47–8 [2.46]–[2.47].

85 Joint Standing Committee on Migration (2007), p 129 [3.44]–[3.45].

86 On 17 February 2008 the Minister for Immigration and Citizenship, Senator Christopher Evans, unveiled a package of migration measures designed to address Australia’s skills and labour shortages. As part of this package Senator Evans announced the formation of the External Reference Group to examine how selected temporary skilled migration measures could help ease labour shortages. Attachment B of the final report lists the members of the External Reference Group (2008).

87 Howe (2010), pp 258–9.

88 Explanatory Memorandum, Migration Legislation Amendment (Worker Protection) Bill 2008 2. The focus of the integrity of the 457 visa scheme and addressing worker exploitation was addressed in the Second Reading Speech of the Bill: ‘[t]he economy desperately needs access to temporary skilled labour, but this is only sustainable if the community is confident that temporary overseas workers are not being exploited or used to undermine local wages and conditions’: Commonwealth, Parliamentary Debates, Senate, 24 September 2008, 5420.

89 Evans (2008).

90 Commissioner Deegan has since been appointed to the Fair Work Commission. For more on the External Reference Group Review and the Deegan Review, see Howe (2010).

91 Evans (2009). ‘Access with Integrity — 457 Visa Reforms’ (2009).

92 Deegan (2008), pp 23–4.

93 Evans, ‘Government Announces Changes to 457 Visa Program’ (2009).

94 See, eg, Australian Human Rights Commission (2009), pp 17–18; ‘Business Sanctioned for Visa Breach’ (2009); 0908572 [2010] MRTA 385, [43].

95 Bolt (2013).

96 In relation to the Abbott Government’s ‘turning back the boats’ policy, see Shanahan (2012).

97 See, eg, Department of the Prime Minister and Cabinet (2013); O’Connor and Marles (2015).

98 Yu and Wright (2023).

99 Parliament of Australia, ‘Framework and Operation of Subclass 457 visas, Enterprise Migration Agreements and Regional Migration Agreements: Information about the Inquiry’.

100 See, eg, Hall (2013).

101 Senate Legal and Constitutional Affairs References Committee (2013), p 101 [2.95].

102 Senate Legal and Constitutional Affairs References Committee (2013), p 123 (recommendations 5 and 6).

103 Senate Legal and Constitutional Affairs References Committee (2013), pp 123–4 (recommendation 7).

104 Commonwealth, Parliamentary Debates, House of Representatives, 6 June 2013, 5543. Brendan O’Connor MP went on to describe the purpose of the Bill as ‘a comprehensive package of reforms which would balance the interests of Australian workers with the need to strengthen protection for overseas workers’.

105 Section 140GBA inserted into the Migration Act 1958 (Cth).

106 Section 140UA inserted into the Migration Act 1958 (Cth).

107 Morrison (2013).

108 Commonwealth, Parliamentary Debates, House of Representatives, 19 June 2013, 6269 (Don Randall).

109 Azarias et al (2014), p 6.

110 These principles were: (1) ‘[r]espect by all parties for both the rights and obligations of 457 visa holders’; (2) [t]ransparency, responsiveness and factual evidence as bases for determination of the 457 occupation list’; (3) ‘[e]ncouragement of productivity and discouragement of misuse through the streamlining and refining of departmental processes’; (4) ‘[s]implicity in, and national benefit from, the employer training requirement’; and (5) ‘[s]trength of monitoring and sanctions’: see Azarias et al (2014).

111 Azarias et al (2014), p 7.

112 Azarias et al (2014), p 14.

113 Azarias et al (2014), p 27 (emphasis in original).

114 Department of Home Affairs, ‘Reviews and Inquiries’ (2020).

115 Section 140AB of the Migration Act 1958 (Cth) requires the Minister for Immigration to take ‘all reasonable steps’ to establish a MACSM to provide advice to the government.

116 Paul Howes (National Secretary of Australian Workers’ Union), Ged Kearney (President of Australian Council of Trade Unions), Dave Noonan (National Secretary of Construction, Forestry, Mining and Energy Union) and Peter Tighe (National Secretary of Communications, Electrical and Plumbing Union of Australia).

117 Grant O’Brien (Managing Director and CEO of Woolworths); James Pearson (Chief Executive of Chamber of Commerce and Industry WA); Karen Read (General Manager of Financial Services, Commercial and Administration, Xstrata) and Innes Willox (Chief Executive of Australian Industry Group).

118 Easson (2021).

119 Cash (2015). The members were: Su McCluskey (CEO, Regional Australia Institute), Steve Knott (Chief Executive, Australian Mines and Metals Associations), Brett Moller (President, Chamber of Commerce and Industry Queensland), Carol Giuseppi (Acting CEO, Tourism Accommodation Australia) and Sylvia Burbery (General Manager, Mars Petcare Australia/New Zealand).

120 Karp (2017).

121 Annie Butler (Federal Secretary, Australian Nursing and Midwifery Federation), Steven Murphy (National Secretary, Australian Manufacturing Workers’ Union), Michele O’Neil (President, Australian Council of Trade Unions) and Michael Wright (National Assistant Secretary, Electrical Trades Union of Australia).

122 Innes Willox AM (Chief Executive, Australian Industry Group), Alexi Boyd (Small Business Consultant), Jill McCabe (Chief Executive Officer, Professionals Australia), Andrew McKellar (Chief Executive Officer, Australian Chamber of Commerce and Industry), Liz Ritchie (Chief Executive Officer, Regional Australia Institute), Tony Mahar (Chief Executive Officer, National Farmers Federation) and Jennifer Westacott AO (Chief Executive Officer, Business Council of Australia).

123 Joanna Howe (Professor of Law, the University of Adelaide), Peter McDonald AM (Professor of Demography, University of Adelaide), Melinda Cilento (Chief Executive, Committee for Economic Development of Australia) and Peter Hughes PSM (Fellow, Centre for Policy Development).

124 Azarias (2016).

125 National Agricultural Labour Advisory Committee (2020).

126 Azarias (2016), p 44 (recommendation 3).

127 From 1 July 2023 the TSMIT was increased to $70,000, see Giles (2023).

128 National Agricultural Labour Advisory Committee (2020), p 190.

129 National Agricultural Labour Advisory Committee (2020), p 98 [3.286] (recommendation 6).

130 Senate Economic References Committee (2022).

131 See recommendations 15, 16 and 17.

132 Senate Select Committee on Migration (2021).

133 Department of Employment and Workplace Relations (2022).

134 ‘7-Eleven: The Price of Convenience’ (2015). See also, Department of Employment and Workplace, ‘Chair’s Public Statement October 2016’ (2022): ‘[t]he Migrant Workers’ Taskforce came about particularly because of the underpayment and exploitation of temporary visa holders employed by 7-Eleven [franchisees] that was publicly exposed by the media’.

135 Turnbull (2017).

136 Department of Home Affairs (2021) [P Sch2482.4.1]. Explanatory Statement, Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth).

137 There is also the labour agreement stream is for employers who have executed a labour agreement with the Commonwealth to source overseas workers in circumstances where there is a demonstrated need that cannot be met by the Australian labour market and the standard TSS visa is not available. The applicant must be nominated to work in a specified occupation under the terms of a labour agreement.

138 Wright and Clibborn (2020), p 44; Roberts (2019), p 11.

139 Howe (2013), p 445.

140 Senate Legal and Constitutional Affairs References Committee (2019).

141 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021).

142 Department of Home Affairs, ‘Nominating a Position’ (2023).

143 Australian Council of Trade Unions (2017).

144 Howe ‘The Real Issues with the 457 Visa aren’t being Addressed’ (2016).

145 Clibborn and Wright (2023).

146 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), p 61 [4.34].

147 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), p 59 [4.25].

148 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), p 58 [4.22].

149 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), p 73 [4.84].

150 Joint Standing Committee on Migration, ‘Interim Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), p 35 [2.74].

151 Joint Standing Committee on Migration, ‘Interim Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), p 35 [2.74].

152 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), pp 69 [4.4], 74 [4.26]–[4.27].

153 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), p 72 [4.21].

154 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), p 75 [4.33].

155 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), p 75 [4.32].

156 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), pp 20 [2.74], 35 [2.151] and 107 (recommendation 3); Senate Legal and Constitutional Affairs References Committee (2019), pp 27 [2.105] (recommendation 3), 49–50 [3.81]–[3.83] (recommendation 4).

157 Senate Legal and Constitutional Affairs References Committee (2019), pp 51–2 [3.92]–[3.93].

158 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), pp 12–13 [2.44].

159 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), p 32 [2.130].

160 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), p 33 [2.134] and [2.136].

161 Joint Standing Committee on Migration, ‘Final Report of the Inquiry into Australia’s Skilled Migration Program’ (2021), pp 35–6.

162 Senate Legal and Constitutional Affairs References Committee (2019), p 17.

163 Senate Legal and Constitutional Affairs References Committee (2019), p 107.

164 Senate Legal and Constitutional Affairs References Committee (2019), p 49 [3.80].

165 Parkinson, Howe and Azarias (2023).

166 O’Neil (2023).

167 Parkinson, Howe and Azarias (2023). Note that one of the authors was part of the three-person panel appointed to the Migration Review.

168 Department of Home Affairs, ‘A Migration System for a More Prosperous and Secure Australia: Outline of the Government’s Migration Strategy’ (2023); Labor (2023).

169 Tom Dusevic, ‘Migration Plan Wins Business, Union Support’, The Australian (online) 12 December 2023.

170 Migration Act 1958 (Cth) s 4.

171 There are approximately 1.8 million temporary migrant workers in Australia and about 105,000 TSS visa holders: Parkinson, Howe and Azarias (2023), pp 42 and 61.

172 Migration Act 1958 (Cth) ss 140AA(1)(a)-(b).

173 Migration Act 1958 (Cth) s 140AA(1)(c).

174 Migration Act 1958 (Cth) ss 140AA(1)(c)-(f).

175 Ruhs (2013), p 44. For further exploration of these ideas, see Howe (2016), 'Regulation of Australia's Labour Migration Program'.

176 International Labour Organization (2014), p 4.

177 Wright (2014).

178 For the importance of this latter objective, see Productivity Commission (2015), p 5.

179 Howe ‘Contesting Demand-Driven Orthodoxy: An Assessment of the Australian Regulation of Temporary Labour Migration’ (2016).

Additional information

Notes on contributors

Joanna Howe

Joanna Howe is a Professor of Law at the University of Adelaide and a consultant with Harmers Workplace Lawyers. She holds a PhD in Law from the University of Oxford where she studied as a Rhodes Scholar, and is a leading Australian and international expert on the regulation of temporary labour migration. She has been appointed by the Minister for Immigration to the Ministerial Advisory Council on Skilled Migration, is an Australian representative to a working group of the International Labour Organization on temporary labour migration, and was appointed by the Federal Minister for Home Affairs as one of three expert reviewers to examine the Australian migration program in 2022-23. She has also led significant research projects for the Fair Work Ombudsman, Horticulture Innovation Australia and the Government of South Korea.

Irene Nikoloudakis

Irene Nikoloudakis is a PhD Candidate at the Adelaide Law School, the University of Adelaide and a practising solicitor. Her academic research focuses on exploring and improving the employment rights of vulnerable workers in the labour market, particularly those most prone to experiencing wage theft. She has co-authored research reports on precarious work for the United Nations’ International Labour Organization (‘ILO’), the Consulate-General of South Korea and one of Australia’s largest trade unions. In 2021, she contributed a chapter in a seminal book published by the ILO and has published in top-tiered Australian law journals on vulnerable work. She concurrently completed a triple degree in Law (with first class honours), Commerce and Psychological Science from the University of Adelaide and has practised as a solicitor in the area of employment law in both the private and public sectors.