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Meeting Australia's Labour Needs: The Case for a New Low-Skill Work Visa

Published online by Cambridge University Press:  01 January 2025

Joanna Howe  and
Alexander Reilly
Joanna Howe
Affiliation:
University of Adelaide Law School, Harmers Workplace Lawyers
Alexander Reilly
Affiliation:
University of Adelaide Law School
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Abstract

This article examines whether Australia's regulatory settings for temporary migrant labour are working effectively and argues that a backdoor currently exists which permits the entry of low skilled migrant workers on visas which are not for a work purpose, namely the international student visa and the working holiday maker visa. We propose that an explicit visa pathway be created for low and semi-skilled workers so that the working conditions of these visa holders are more appropriately monitored and to enable Australia's temporary labour migration program to better meet skill shortages in the economy.

Type
Article
Information
Federal Law Review , Volume 43 , Issue 2 , June 2015 , pp. 259 - 287
Copyright
Copyright © 2015 The Australian National University

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References

1 Youth unemployment is at a 12 year high of 2.9 per cent, for people aged between 15-24: Australian Bureau of Statistics, Catalogue No 6202.0: Labour Force, Australia (April 2014) <http://www.abs.gov.au/ausstats/abs@.nsf/mf/6202.0>.

2 Melbourne Investigations Section, Department of Immigration and Citizenship, VRQA/DEEWR/DIAC Rapid Audit Project: DIAC Final Report (7 October 2009) <http://www.theage.com.au/interactive/2014/brokenBorders/pdfs/report6.pdf>.

3 Department of Immigration and Border Protection, Designated Area Migration Agreements (August 2014) <http://www.border.gov.au/WorkinginAustralia/Documents/dama.pdf>.

4 ABC Radio, ‘Howard Rejects Seasonal Worker Plan’, AM, 26 October 2005 (John Howard).

5 The 457 visa was introduced by the Howard Coalition Government on 1 August 1996, through the insertion of a new Pt 457 in Sch 2 of the Migration Regulations 1994 (Cth): see Migration Regulations (Amendment) 1996 No 76 (Cth).

6 Martin Ruhs, The Price of Rights: Regulating International Labor Migration (Princeton University Press, 2013) Appendix 1, Table A1, 201–2.

7 Ibid Appendix 1, Table A3, 203–5.

8 Roach, Neville, Business Temporary Entry - Future Directions: Report by the Committee of Inquiry into the Temporary Entry of Business People and Highly Skilled Specialists (Australian Government Public Service, 1995) 84 ('Roach Report’).Google Scholar

9 For an analysis of these reforms, see: Howe, Joanna, ‘Is the Net Cast Too Wide? An Assessment of Whether the Regulatory Design of the 457 Visa Meets Australia's Skill Needs’ (2013) 41 Federal Law Review 443.CrossRefGoogle Scholar

10 Janet Phillips and Harriet Spinks, ‘Skilled Migration: Temporary and Permanent Flows to Australia’ (Background Note, Parliamentary Library, Parliament of Australia, 6 December 2012) 40, Table 3; Department of Immigration and Citizenship, Trends in migration: Australia 2010–11 (Australian Government, February 2012) 37.

11 Department of Immigration and Border Protection, Subclass 457 Quarterly Report (Quarter ending at 30 June 2014) 2.

12 Department of Immigration and Border Protection, Designated Area Migration Agreements (August 2014) <http://www.border.gov.au/WorkinginAustralia/Documents/dama.pdf>.

13 Ibid 8–9.

14 Ibid.

15 Department of Immigration and Citizenship, Annual Report 2012–13, 79–80.

16 Australian Bureau of Statistics, Catalogue No 1220.0: Australian Standard Classification of Occupations (ASCO), 2nd Edition (31 July 1997) <http://www.abs.gov.au/ausstats/abs@.nsf/mf/1220.0>.

17 Department of Immigration and Citizenship, Labour Agreement Information Pack (January 2012) (copy on file with authors).

18 It is striking how much the labour agreements pathway is regulated through executive discretion rather than legislation. Departmental guidelines provide the parameters for the scheme and for how applications for a labour agreement by employers will be assessed.

19 Department of Immigration and Citizenship, above n 17, 1.

20 The TSMIT is a legislative instrument which provides the minimum amount of annual income to be paid to a subclass 457 visa holder. The current TSMIT, as of 1 July 2013, is $53,000 per annum. Although labour agreements currently cannot go below the TSMIT, it is possible for a DAMA to allow a 10 per cent concession on the TSMIT, although market salary rates still have to be paid.

21 Evidence to Senate Legal and Constitutional Affairs Legislation Committee, Parliament of Australia, Canberra, 13 February 2012, 51 (Kruno Kukoc).

22 Commissioner Barbara Deegan of the Australian Industrial Relations Commission was appointed to review the integrity of the subclass 457 visa program. Commissioner Deegan has since been appointed to the Fair Work Commission. For more on the Deegan Review, see: Howe, Joanna, ‘The Migration Amendment (Worker Protection) Act 2008: Long Overdue Reform, but Have Migrant Workers Been Sold Short?’ (2010) 24 Australian Journal of Labour Law 251.Google Scholar

23 Barbara Deegan, ‘Visa Subclass 457 Integrity Review’ (Final Report, Parliament of Australia, October 2008) 44 ('Deegan Report’).

24 Ibid 45.

25 Email from Dr Brooke Thomas to Joanna Howe and Alexander Reilly, 4 March 2013 (copy on file with the authors); Dr Brooke Thomas is the former Director of the Labour Agreements section of the Department of Immigration and Citizenship.

26 Questions Taken on Notice, Budget Estimates Hearing: 21–22 May 2012, Immigration and Citizenship Portfolio, answer to question by Senator Cash, BE12/0188.

27 On 17 February, 2008 the Minister for Immigration and Citizenship, Senator Chris 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 an External Reference Group (ERG) to examine how selected temporary skilled migration measures could help ease labour shortages. Attachment B of the ERG's final report lists the members of the ERG: Visa Subclass 457 External Reference Group, ‘Final Report to the Minister for Immigration and Citizenship’ (Department of Immigration and Citizenship, April 2008).

28 Ibid 36.

29 Ibid 26.

30 For more, see Campbell, Iain and Tham, Joo-Cheong, ‘Labour Market Deregulation and Temporary Migrant Labour Schemes: An Analysis of the 457 Visa Program’ (2013) 26 Australian Journal of Labour Law 239.Google Scholar

31 Tham, Joo-Cheong, ‘Law-Making and Temporary Migrant Labour Schemes: Accountability and the 457 Visa Scheme’ (2009) 17 Australian Journal of Administrative Law 18.Google Scholar For an examination of the problems of accountability and transparency with the subclass 457 visa program in general, see Howe, Joanna, ‘Accountability and Transparency Under the Subclass 457 Visa Program: Is there Cause for Concern?’ (2014) 21 Australian Journal of Administrative Law 139.Google Scholar

32 Department of Immigration and Border Protection, Temporary Work (Skilled) (Subclass 457) Visa (2013) 46.

33 Migration Alliance, Submission No 38 to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Framework and Operation of Subclass 457 Visas, Enterprise Migration Agreements and Regional Migration Agreements, 3 May 2013, 4. See also, Chamber of Commerce and Industry (Qld), Submission to the Department of Immigration and Citizenship, Review of the Permanent Employer Sponsored Visa Categories, 2011; Denise Cullen, Job Agents Trip over Red Tape (3 November 2008) Live in Australia.com, <http://www.liveinaustralia.com/home/news_article.asp?id=460>; Australian Chamber of Commerce and Industry, Submission No 21 to the Senate Legal and Constitutional Affairs Committee, Inquiry into the Framework and Operation of Subclass 457 Visas, Enterprise Migration Agreements and Regional Migration Agreements, April 2013.

34 The most recent agreements to be entered were with Poland in March 2014 and Greece in May 2014, both in the Work and Holiday program. The agreements are expected to come into effect in 2014–15: Department of Immigration and Border Protection, Annual Report, 2013–14, 85. See also, Department of Immigration and Border Protection, Working Holiday Maker Visa Programme Report (31 December 2014) 8.

35 Migration Regulations 1994 (Cth) regs 417.611, 462.611. See also, Department of Immigration and Citizenship, Working Holiday Maker Visa Program Report (30 June 2013) 4.

36 Department of Immigration and Citizenship, Working Holiday Maker Visa Program Report (30 June 2013) 4.

37 Department of Immigration and Border Protection, Fact Sheet — Working Holiday Visa Programme, (20 June 2015) <http://www.border.gov.au/about/corporate/information/fact-sheets/49whm>.

38 Department of Immigration and Citizenship, Working Holiday Maker Visa Programme Report (30 June 2012) 7.

39 Department of Immigration and Citizenship, Working Holiday Maker Visa Programme Report (30 June 2014) 7.

40 Ibid.

41 Ibid.

42 Ibid.

43 Ibid.

44 Of the 182 signed labour agreements in effect as of 31 December 2012, 90 were with employers in the on-hire industry; 21 with employers in the meat industry; 16 with resource sector employers; and 55 with employers in other industries (including agriculture, fast-food, fishing, and snow sports industries). There were a further 72 labour agreements under negotiation: 22 with employers in the on-hire industry; 4 with employers in the meat industry; 16 with resource sector employers; and 30 with employers in other industries (including agriculture, fast-food, fishing, and snow sports industries). Email by Dr Brooke Thomas to Joanna Howe and Alexander Reilly, 4 March 2013 (copy on file with the authors).

45 See generally, Reilly, Alexander, ‘Protecting Vulnerable Workers: The Case of International Students’ (2012) 25 Australian Journal of Labour Law 181.Google Scholar

46 Nyland, Chris et al, ‘International Student-Workers in Australia: A New Vulnerable Workforce’ (2009) 22 Journal of Education and Work 1, 4.CrossRefGoogle Scholar

47 Ibid 5.

48 Peter Mares, ‘Graduate Visas May Yet Prove Controversial’, The Age (online), 4 April 2013 <http://www.theage.com.au/comment/graduate-visas-may-yet-prove-controversial-20130403-2h706.html>.

49 See, eg, Fair Work Ombudsman v Australian Sales and Promotions Pty Ltd [2013] FCCA 1502 (7 October 2013). This case involved a group of WHM visa holders who worked in sales and promotions and were significantly underpaid. In this case the court found that the employees performed, in total, 426 ordinary hours and 25.5 Saturday hours of work, and were paid in total $50. The total underpayment of the employees was $9201.48. In terms of the vulnerability of international students in the workplace, see Reilly, ‘Protecting Vulnerable Workers’, above n 45; and also a recent investigation of the Melbourne cleaning industry: United Voice, A Dirty Business: The Exploitation of International Students in Melbourne's Office Cleaning Industry (2013). This report found that found international students were largely unaware of their workplace rights, and as a result were being systematically underpaid — some by up to $15 000 a year.

50 World Bank, ‘Global Economic Prospects 2006: Economic Implications of Remittances and Migration’ (World Bank, Washington DC, 2006).Google Scholar

51 Global Commission on International Migration, ‘Migration in an Interconnected World: New Directions for Action’ (Report, Global Commission on International Migration, 2005), 16.Google Scholar

52 For more, see Reilly, Alexander, ‘The Ethics of Seasonal Labour Migration’ (2011) 20 Griffith Law Review 127.CrossRefGoogle Scholar

53 On the triple win formulation, see, eg, Ramasamy, et al, ‘The Recognised Seasonal Employer Policy: Seeking the Elusive Triple Wins for Development Through International Migration’ (2008) 23(3) Pacific Economic Bulletin 171.Google Scholar

54 Productivity Commission, ‘Economic Impacts of Migration and Population Growth’ (Research Report, Productivity Commission, 24 April 2006).

55 Ibid 153.

56 National Resources Sector Employment Taskforce, ‘Resourcing the Future’ (Report, National Resources Sector Employment Taskforce, July 2010) 64.Google Scholar

57 The Labor Government gave ‘in principle’ approval on 25 May 2012 for an enterprise migration agreement with the Roy Hill iron ore mining project in the Pilbara region of Western Australia although it was never finalised by the Department. The proposed enterprise migration agreement permits Roy Hill to sponsor up to 1715 workers through the 457 visa program during the three year construction phase, where Australian workers cannot be found. The project requires more than 8000 workers, with the remaining 6285 jobs to be filled by Australian workers, although it was unclear from the Government's proposals as to whether migrant workers already based in Australia would be eligible for these jobs. As part of the enterprise migration agreement, Roy Hill must provide 2000 training places for Australians, including more than 200 Australian apprentices and trainees. At the time of writing, the Roy Hill enterprise migration agreement appears to have stalled as it is still yet to be finalised: The Hon Chris Bowen MP, Minister for Immigration and Citizenship and the Hon Martin Ferguson AO MP, Minister for Resources and Energy, ‘First Enterprise Migration Agreement Approved’ (Joint Media Release, 25 May 2012) <http://www.civilcontractors.com/Uploads/files/SA/First%20Enterprise%20Migration%20Agreement%20Approved.pdf>. See also Howe, Joanna, ‘Enterprise Migration Agreements under the Subclass 457 Visa: Much Ado about Nothing?’ (2014) 27 Australian Journal of Labour Law 1, 1–11.Google Scholar

58 Chamber of Commerce and Industry, ‘Building Human Capital’ (Discussion Paper, Chamber of Commerce and Industry, 2007) 52.Google Scholar

59 Senator Michaela Cash, ‘Independent Review of 457 Visa Programme’ (Media Release, 25 February 2014) <http://www.minister.border.gov.au/michaeliacash/2014/Pages/mc212075.aspx>.

60 Danielle Bowling, ‘457 Visa Review Welcomed by Restaurant and Catering’, Hospitality Magazine (online) 26 February 2014 <http://www.hospitalitymagazine.com.au/food/news/457-visa-review-welcomed-by-restaurant-catering>. Industry groups have also raised concerns with the rigidity of the list of occupations under the standard business sponsorship stream of the subclass 457 visa. They complain that the list defines skills too narrowly and does not include new and emerging occupations. See, eg, Sarah Martin, ‘Lettuce Use Foreign Skills to Grow’, The Australian (Sydney), 1 March 2013, 2.

61 Australian Council of Trade Unions, Submission to the National Resources Sector Employment Taskforce, April 2010, 17, 22, 29. Youth unemployment is at a 12 year high of 2.9 per cent, for people aged between 15–24: Australian Bureau of Statistics, Catalogue No 6202.0: Labour Force, Australia (April 2014) <http://www.abs.gov.au/ausstats/abs@.nsf/mf/6202.0>. Youth unemployment is even worse in lower income metropolitan areas: Bob Birrell and Ernest Healy, ‘Immigration Overshoot’ (Research Report, Centre for Population and Urban Research, November 2012) 26.

62 Migration Council Australia, ‘More than Temporary: Australia's 457 Visa Program’ (Report, Migration Council Australia, 2013) 22.Google Scholar

63 Department of Human Services (Cth), Budget 2014–15: Increasing the Age of Eligibility for Newstart Allowance and Sickness Allowance <http://www.humanservices.gov.au/corporate/publications-and-resources/budget/1415/measures/young-people-and-students/53-11122>.

64 Reilly, ‘Protecting Vulnerable Workers’, above n 45.

65 Morrison, Scott, ‘Migration Shaping Australia’ (Speech delivered at the Migration Institute of Australia, National Conference, Canberra, 21 October 2013).Google Scholar

66 Migration Institute of Australia, Submission No 21 to the Committee on Economic Development, Inquiry into Skill Shortages in NSW, 21 June 2013, 2.

67 Bowen and Ferguson, above n 57. For an analysis of enterprise migration agreements, see Howe, Joanna, ‘Enterprise Migration Agreements Under the Subclass 457 Visa: Much Ado About Nothing?’ (2014) 27 Australian Journal of Labour Law 86.Google Scholar

68 Hugo, Graeme, ‘Best Practice in Temporary Labour Migration for Development: A Perspective From Asia and the Pacific’ (2009) 47 International Migration 23, 59.CrossRefGoogle Scholar

69 For more, see Howe, ‘Is the Net Cast Too Wide?’, above n 9.

70 See, eg, Australian Council of Trade Unions, above n 61.

71 For a fascinating insight into how employers can use subclass 457 visa workers to limit union power in their workplaces, see: Ken Phillips, ‘457 Visas about Union Control’, The Australian, 2 April 2013.

72 See, eg, Barbieri, William, Ethics of Citizenship: Immigration and Group Rights in Germany, (Duke University Press, 1998)Google Scholar; Bauder, Harald, Labour Movement: How Migration Regulates Labor Markets (Oxford University Press, 2006)CrossRefGoogle Scholar; Tripathi, Ragini, ‘The H-2B Visa: Is this How We Treat a Guest?’ (2008) 11 Scholar 519.Google Scholar

73 Garcia, Ruben, ‘Labor as Property: Guestworkers, International Trade and the Democracy Deficit’ (2007) 10 Journal of Gender, Race and Justice 27, 29.Google Scholar See also, a recent media report claiming that IT company IBM has replaced its local workforce with migrant labour from the subclass 457 visa program because the latter is associated with a 40 per cent cost saving: Fran Foo, ‘IBM Cost Cuts Drives up 457 Visa Hires’, The Australian, 25 June 2013.

74 At 30 June 2013, there were 167 labour agreements in place and a further 72 agreements were under negotiation: Department of Immigration and Citizenship, Annual Report 2012–13, 79.

75 Danielle Hay and Stephen Howes, ‘Australia's Pacific Seasonal Workers Pilot Scheme: ‘Why Has the Take Up Been So Low’ (Discussion Paper No 17, Crawford School of Public Policy, ANU, April 2012).

76 In 2012–13 there were 258 248 working holiday visas granted: Department of Immigration and Citizenship, Annual Report 2012–13, 2.

77 Cheryl Reed et al, Final Evaluation of the Pacific Seasonal Worker Pilot Scheme (September 2011) Department of Employment, Education and Workplace Relations, 22–5, <http://docs.employment.gov.au/system/files/doc/other/pswps__final_evaluation_report.pdf>.

78 This proposal was mooted by the authors in our submission to the Senate Legal and Constitutional Affairs Committee which proposed a two tier system with one visa type enabling the entry of highly skilled workers and other visa type facilitating the entry of low and semi-skilled workers: Joanna Howe, Alexander Reilly and Andrew Stewart, Submission No 11 to Senate Legal and Constitutional References Committee, Inquiry into the Framework and Operation of Subclass 457 Visas, Enterprise Migration Agreements and Regional Migration Agreements, 26 April 2013.

79 Walzer, Michael, Spheres of Justice: A Defense of Pluralism and Equality (Basic Books, 1983) 31–2.Google Scholar

80 Ibid 53–4.

81 Carens, Joseph, ‘Aliens and Citizens: The Case for Open Borders’ (1987) 49 Review of Politics 251CrossRefGoogle Scholar; Gary Gutting and Joseph Carens, ‘When Immigrants Lose Their Human Rights’, New York Times (online), 25 November 2014 <http://opinionator.blogs.nytimes.com/2014/11/25/should-immigrants-lose-their-human-rights/?smid=nytcore-iphone-share&smprod=nytcore-iphone&_r=0>.

82 Department of Immigration and Border Protection, ‘What is Labour Market Testing for subclass 457: Frequently Asked Questions’, 24 June 2015 <http://www.border.gov.au/Lega/Lega/Form/Immi-FAQs/what-is-labour-market-testing-for-subclass-457>.

83 Chris Evans, ‘New Skilled Occupation List to Meet Australia's Economic Needs’ (Media Release, 17 May 2010). AWPA replaced the organisation Skills Australia but its activities have since been subsumed into the Department of Immigration and Border Protection.

84 OECD, International Migration Outlook: Sopemi 2009 (OECD Publishing, 2009) 133–5.Google Scholar

85 Tom Allard, ‘Reshaping Welfare: Are We Entering an Age of Inequality?’, The Sydney Morning Herald, 17 May 2014.

86 Unemployment for 15–19 year olds surged to 15 per cent in July 2009 and to 6.8 per cent for 20–24 year olds. The unemployment rate for the former group has not improved since this time and in the case of those in their early 20s this rate has deteriorated to 8.1 per cent by July 2012. The numbers are even worse in lower income metropolitan areas: Birrell and Healy, above n 61, 26.

87 Ruhs, Martin and Martin, Phillip, ‘Numbers vs Rights: Trade Offs and Guest Worker Programs’ (2008) 42 International Migration Review 249, 256.CrossRefGoogle Scholar

88 Joanna Howe and Alexander Reilly, Submission to Department of Immigration and Border Protection, Review of Skilled Migration and 400 Series Visa Programmes, October 2014, 10.

89 John Azarias et al, Robust New Foundations — A Streamlined, Transparent and Responsive System for the 457 Programme: An Independent Review into Integrity in the Subclass 457 Programme (September 2014) Department of Immigration and Border Protection <http://www.border.gov.au/ReportsandPublications/Documents/reviews-and-inquiries/streamlined-responsive-457-programme.pdf>. The independent review into the 457 visa commissioned by the Abbott Government in 2014 recommended that an annual training contribution payable by employers who rely upon 457 visa holders. This is based upon the notion of a ‘social licence’, that is, the idea that, in return for being able to access temporary migrant labour, the sponsor should contribute to a national benefit.

90 Department of Immigration and Citizenship, ‘Visa Subclass 457 Integrity Review: Integrity/Exploitation’ (Issues Paper No 3, Department of Immigration and Citizenship, September 2008) 12.

91 Martin Ruhs, ‘The Potential of Temporary Migration Programmes in Future International Policy’, Global Commission on International Migration, 2005, 14; and see further Reilly, ‘The Ethics of Seasonal Labour Migration’, above n 52.

92 Department of Immigration and Border Protection, Changes to the Subclass 457 Visa Program <http://www.border.gov.au/Trav/Work/Work/Changes-to-the-Subclass-457-program>.

93 Howe, ‘The Migration Amendment (Worker Protection) Act 2008’, above n 22; Joo-Cheong Tham, Submission No 22 to Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Amendment (Temporary Sponsored Visas) Bill 2013, 21 June 2013.

94 Ruhs, above n 6, 27.

95 Campbell and Tham, above n 30, 271.

96 Migration Regulations 1994 (Cth) reg 2.79.

97 For more on the TSMIT, see the text accompanying footnote 18.

98 Such as the use of Pacific Island labour in Queensland from the 1860s to 1908. See generally, Corris, Peter, Passage, Port and Plantation: A History of Solomon Islands Labour Migration 1870–1914 (Melbourne University Press, 1973)Google Scholar; Saunders, Kay, ‘The Workers’ Paradox: Indentured Labour in the Queensland Sugar Industry to 1920’ in Saunders, Kay (ed), Indentured Labour in the British Empire 1834–1920 (Croom Helm, 1984).Google Scholar

99 See, in particular the experience of Mexican labourers in the Bracero program in the United States, discussed in Mapes, Kathleen, Sweet Tyranny: Migrant Labor, Industrial Agriculture and Imperial Politics, (University of Illinois Press, 2009)Google Scholar; and Turkish labourers in the Albeiter in Germany, discussed in Barbieri, William, Ethics of Citizenship: Immigration and Group Rights in Germany (Duke University Press, 1998).Google Scholar

100 This exacerbates the already weaker bargaining position of the worker in the employment relationship, which has long been recognised by labour lawyers. See, eg, the writings of Justice Higgins: ‘The power of the employer to withhold bread is a much more effective weapon than the power of the employee to refuse to labour. Low wages are bad in the worker's eyes, but unemployment, with starvation in the background, is worse’: Higgins, Henry Bournes, ‘A New Province for Law and Order’ (1915) 29 Harvard Law Review 13, 25CrossRefGoogle Scholar, quoting Federated Engine-Drivers and Firemen's Association of Australia v Broken Hill Proprietary Company Limited (1911) 5 CAR 9, 27 (Higgins J). Otto Kahn-Freund states, ‘The main object of labour law has been, and we venture to say will always be, to be a countervailing force to counteract the inequality of bargaining power which is inherent and must be inherent in the employment relationship': Kahn-Freund, Otto, Davies, Paul Lyndon and Freedland, Mark Robert, Labour and the Law (Stevens, 2nd ed, 1977) 7.Google Scholar For a more recent articulation of this argument, see Owens, Rosemary, Riley, Joellen and Murray, Jill, The Law of Work (Oxford University Press, 2011) ch 1.Google Scholar

101 See, eg, recent media reports of exploitation of low skilled temporary migrant workers in Dubai: David Batty, ‘Conditions for Abu Dhabi's Migrant Workers “Shame the West“’, The Guardian (online), 22 December 2013 <http://www.theguardian.com/world/2013/dec/22/abu-dhabi-migrant-workers-conditions-shame-west>; David Conn, ‘Amnesty Report on Qatar Exposes ‘Grim’ Abuse of Migrant Workers’, The Guardian (online), 17 November 2013, <http://www.theguardian.com/world/2013/nov/17/qatar-migrant-workers-amnesty-international-report>.

102 Ruhs, Martin and Martin, Philip, ‘Numbers vs Rights: Trade Offs and Guest Worker Programs’ (2008) 42 International Migration Review 249, 254.CrossRefGoogle Scholar

103 Department of Immigration and Citizenship, Temporary Business (Long Stay) — Standard Business Sponsorship (Subclass 457): Concessions for Regional Australia, 2001. (Copy on file with author.)

104 See, eg, Fryer v Yoga Tandoori House Pty Ltd (2008) 60 AILR 100-849; Flattery v The Italian Eatery t/as Zeffırelli's Pizza Restaurant (2007) 163 IR 14; Inspector Hortle v Aprint (Aust) Pty Ltd (2007) 60 AILR 100-742; Workplace Ombudsman v KSN Engineering Pty Ltd (2009) 185 IR 316; Jones v Hanssen Pty Ltd [2008] FMCA 291 (11 March 2008).

105 Media reports likened the scheme to ‘modern day slavery’ and in other reports, highlighted the disproportionate number of workplace deaths and injuries suffered by 457 visa holders: Yuko Narushima, ‘How Work Visas Help to Enslave Young Migrants’, Sydney Morning Herald, (Sydney) 8 August 2008, 3; A Black, ‘Billionaire Plea for Cheap Labour’, Sunday Telegraph, 21 October 2007, 18; ‘Guest Worker Wins Compo After Assault’, Sydney Morning Herald (Sydney) 21 September 2007; Michael Bachelard and Nick O'Malley, ‘Foreign Workers Forced onto Illegal Contracts’, The Age, (Melbourne) 10 October 2006, 5; Malcom Knox, ‘Opportunity of a Lifetime Ended in Tragedy’, Sydney Morning Herald (Sydney) 28 August 2007, 7; Matthew Moore, ‘A Lonely Death among the Pines’, Sydney Morning Herald (Sydney) 28 August 2007, 8; Matthew Moore and Malcolm Knox, ‘Philippines Calls for Halt to Abuse of Guest Workers’, Sydney Morning Herald, (Sydney) 29 August 2007, 1; Nick O'Malley, ‘Unskilled, Unsafe: Site Shut as Foreign Workers Fall Short’, Sydney Morning Herald, (Sydney) 4 September 2006, 1; Alex Symonds, ‘First Steps Towards 457 Visa Makeover’, Australian Financial Review (Sydney) 25 September 2008, 11.

106 United States Department of State, Traffıcking in Persons Report (June 2007) 57 <http://www.state.gov/documents/organization/82902.pdf>.

107 This bill lapsed upon the dissolution of Parliament before the November 2007 federal election.

108 For an analysis of the reforms under this Act, see Howe, ‘The Migration Amendment (Worker Protection) Act 2008’, above n 22.

109 For more on the deregulation and re-regulation of the 457 visa program, see Campbell and Tham, above n 30.

110 Reilly, ‘Protecting Vulnerable Workers’, above n 45.

111 Walzer, Michael, Spheres of Justice: A Defence of Pluralism and Equality (Basic Books, 1983).Google Scholar

112 International Labour Organisation, Multilateral Framework on Labour Migration: Non-binding principles and guidelines for a rights-based approach to labour migration (2006) Guideline 14.10.

113 International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 and 1057 UNTS 407 (entered into force 23 March 1976).

114 Ruhs, above n 6, 176.

115 Ibid.

116 Ibid 177.

117 Ibid 176.

118 Ibid 159–60.

119 Department of Immigration and Citizenship, above n 17, 6.

120 Ibid.

121 See generally, Barbieri, William A, Ethics of Citizenship: Immigration and Group Rights in Germany, (Duke University Press, 1998).Google Scholar

122 Howells, Stephen, ‘Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007’ (Report, Department of Immigration and Border Protection, 2011).Google Scholar

123 Delphine Nakache and Paula Kinoshita, ‘The Canadian Temporary Foreign Worker Program: Do Short-Term Economic Needs Prevail Over Human Rights Concerns’ (IRPP Study No 5, Institute for Research on Public Policy, May 2010) <http://irpp.org/wp-content/uploads/assets/research/diversity-immigration-and-integration/new-research-article-3/IRPP-Study-no5.pdf>.

124 Migration Amendment (Reform of Employer Sanctions) Act 2013 (Cth).

125 See, eg, Scott Morrison, ‘Immigration that Creates Jobs’, (Speech delivered at the Australian Mines and Metals Association Migration Forum, Brisbane, 8 August 2013); Commonwealth, Parliamentary Debates, House of Representatives, 19 June 2013, 6269 (Don Randall). For an academic commentary of these debates, see: Joo-Cheong Tham, above n 93, 26.

126 See Contract Immigrants Act 1905 (Cth), later repealed by Statute Law Revision Act 1950 (Cth) sch 3.

127 Mary E Crock, ‘Contract or Compact: Skilled Migration and the Dictates of Politics and Ideology’ (2001–2002) 16 Georgetown Immigration Law Journal 133, 140, quoting Layman, Lenore, ‘“To Keep up the Australian Standard”: Regulating Contract Labour Migration 1901-50’ (1996) 70 Labour History 25.CrossRefGoogle Scholar

128 For evidence of the shifting attitude in regional areas towards migrant workers, see: Feist, Helen et al, ‘Enabling Rural Migrant Settlement: A Case Study of the Limestone Coast’ (Report, Australian Population and Migration Research Centre, 2014) 42.Google Scholar

129 Howe, Joanna, ‘Does Australia need an expert commission to assist with managing its labour migration program?’ (2014) 27 Australian Journal of Labour Law 233.Google Scholar

130 For example, see the recent introduction of expert commissions in Austria and the United Kingdom. For more on the role and purpose of expert commissions, in migration policy-making, see the special issue of the journal ‘Migration Letters’ dedicated to this issue: ‘Martin, Philip and Stark, Eugen, ‘Editorial: Expert Commissions and Migration Policy Making’ (2014) 11 Migration Letters 1.CrossRefGoogle Scholar

131 This is the focus of the final substantive part of this article and will be expanded upon below.

132 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, opened for signature 18 December 1990, 2220 UNTS 3, entered into force 1 July 2003, art 3(e).

133 Reilly, ‘Protecting Vulnerable Workers’, above n 45, 201.

134 See, eg, Christopher Lawson, ‘Student Voices: Enhancing the Experience of International Students in Australia’ (Report, Australian Education International, June 2012) 23 <https://internationaleducation.gov.au/research/Publications/Documents/Student%20voices%20-%20FINAL.pdf>.

135 Altbach, Philip G and Knight, Jane, ‘The Internationalization of Higher Education: Motivations and Realities’ (2007) 11 Journal of Studies in International Education 290.CrossRefGoogle Scholar

136 Reilly, ‘Protecting Vulnerable Workers’, above n 45, 186.

137 For more on the role of Higher Education providers in taking responsibility for the work of international students, see ibid, 196–7.

138 Peter Mares, ‘457s and Temporary Migration: The Bigger Picture’, Inside Story, (online), 26 June 2013 <http://insidestory.org.au/457s-and-temporary-migration-the-bigger-picture>.