Migration Amendment (Working Holiday Maker Age Criteria) Regulations 2026

EXPLANATORY STATEMENT

Issued by the Minister for Home Affairs

Migration Act 1958

The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.

Subsection 46(3) of the Migration Act provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application. Subsection 46(4) of the Migration Act relevantly provides that, without limiting subsection 46(3), the regulations may also prescribe the circumstances that must exist for an application for a visa of a specified class to be a valid application.

Subsection 504(1) of the Migration Act provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.

The Migration Amendment (Working Holiday Maker Age Criteria) Regulations 2026 (the Amendment Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to make technical changes to the Working Holiday Maker program related to age and passport criteria.

The Working Holiday Maker (WHM) program allows young adults from eligible countries to have a 12-month holiday in Australia, during which they can undertake short-term work and study. Arrangements under the WHM program, including some eligibility requirements such as the age range for participants, are established on a bilateral basis between Australia and the relevant partner country or jurisdiction. The program comprises two classes of visa – the Work and Holiday (Temporary) (Class US) visa (item 1224A of Schedule 1 to the Regulations) and the Working Holiday (Temporary) (Class TZ) (item 1225 of Schedule 1 to the Regulations). There are two subclasses in the program – the Subclass 417 (Working Holiday) visa and the Subclass 462 (Work and Holiday) visa.

Key criteria for an application in either subclass include that:

an applicant holds an eligible passport; and
an applicant is between the ages of 18 and 35 years, unless an alternative maximum age applies to applicants from specified countries.

Prior to amendment, the above criteria were set out in Schedule 2 to the Migration Regulations for both the Subclass 417 (Working Holiday) and Subclass 462 (Work and Holiday) visas. Schedule 2 sets out criteria for grant of a visa. Where a Schedule 2 criterion is not satisfied, grant of the visa must be refused. An applicant may seek merits review of a decision to refuse a visa in certain circumstances.

The Amendment Regulations relocate age criteria from Schedule 2 to Schedule 1 to the Migration Regulations. For the Subclass 462 (Work and Holiday) visa, item [3] inserts age criteria at Schedule 1, while item [11] makes a corresponding amendment to repeal the age criteria from Schedule 2. For the Subclass 417 (Working Holiday) visa, item [4] inserts age criteria at Schedule 1, while item [7] makes a corresponding amendment to repeal age criteria from Schedule 2.

Inserting the requirements for lodging a valid visa application in Schedule 1 has the effect that meeting age criteria is required for lodgement of a valid visa application. This provides certainty for a prospective Working Holiday visa applicant at the timing of making the application. In circumstances where the age requirement is not met, an application would not be valid, and the application would not proceed to lodgement (and in those circumstances, no visa application charge would be payable). Subsection 47(3) of the Migration Act relevantly provides that the Minister is not to consider an application that is not a valid application.

These amendments do not substantially alter the existing eligibility requirements relating to the age of Working Holiday visa applicants, and provide greater certainty as the age requirement is now a matter considered when lodging the visa application, and not as a criterion for deciding whether to grant the visa.

Consultation

As the amendments are technical in nature and do not make substantive changes to the eligibility criteria for the WHM program, specific external consultation on these changes was not considered necessary to undertake. The amendments maintain the existing age requirements for Working Holiday visa eligibility, but provide greater certainty for visa applicants by making age a threshold matter that is assessed when seeking to lodge a visa application, rather than the Department receiving applications and then assessing whether to grant or refuse to grant the visa on the basis of age criteria.

Details and operation

The Amendment Regulations are a disallowable legislative instrument for the purposes of the Legislation Act. Details of the Amendment Regulations are provided in Attachment B.

The Amendment Regulations commence on 1 July 2026.

The Migration Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.

Parliamentary scrutiny and other matters

A Statement of Compatibility with Human Rights has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Amendment Regulations are compatible with human rights. A copy of the Statement is at Attachment A.

The matters dealt with in the Amendment Regulations are appropriate for implementation in regulations rather than by parliamentary enactment. It has been the consistent practice of the Government of the day to provide for detailed visa settings in the Migration Regulations rather than in the Migration Act itself. The Migration Act expressly provides for these matters to be prescribed in regulations, as can be seen in the authorising provision. Providing for these details to be in delegated legislation rather than primary legislation gives the Government the ability to effectively manage the operation of Australia’s visa program and respond quickly to emerging needs.

The Amendment Regulations amend the Migration Regulations, which are exempt from sunsetting under table item 38A of section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015. The Migration Regulations are exempt from sunsetting on the basis that the repeal and remaking of the Migration Regulations:

is unnecessary as the Migration Regulations are regularly amended numerous times each year to update policy settings for immigration programs;
would require complex and difficult to administer transitional provisions to ensure, amongst other things, the position of the many people who hold Australian visas, and similarly, there would likely be a significant impact on undecided visa and sponsorship applications; and
would demand complicated and costly systems, training and operational changes that would impose significant strain on Government resources and the Australian public for insignificant gain, while not advancing the aims of the Legislation Act 2003 (Legislation Act).

The Amendment Regulations will be repealed by operation of Division 1 of Part 3 of Chapter 3 of the Legislation Act. Specifically, section 48A in that Division operates to automatically repeal a legislative instrument that has the sole purpose of amending or repealing another instrument. As the Amendment Regulations will automatically repeal, they do not engage the sunsetting framework under Part 4 of the Legislation Act.

ATTACHMENT A

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Amendment (Working Holiday Maker Age Criteria) Regulations 2026

This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Disallowable Legislative Instrument

Key criteria for an application in either subclass include that:

an applicant holds an eligible passport; and
an applicant is between the ages of 18 and 35 years, unless an alternative maximum age applies to applicants from specified countries.

Prior to amendment, the above criteria were set out in Schedule 2 to the Migration Regulations for both the Subclass 417 (Working Holiday) and Subclass 462 (Work and Holiday) visas. They were assessed at the time a decision was made but must have been met at the time the application was made. Where a Schedule 2 criterion is not met at the time of decision, an application must be refused. An applicant may seek merits review of a decision to refuse a visa.

The Amendment Regulations relocate age criteria from Schedule 2 to Schedule 1 of the Migration Regulations. This will have the impact that where a Schedule 1 criteria is not met, an application will not be valid. Subsection 47(3) of the Migration Act provides that the Minister is not to consider an application that is not a valid application. This means that an applicant who does not meet the age criteria at time of lodgement will make an invalid visa application, for which there is no merits review available.

The Amendment Regulations also relocate the power of the Minister to make a legislative instrument that specifies alternative maximum ages for specific passport holders (where applicable) from Schedule 2 to Schedule 1. This is consequential to the above amendment.

These amendments are technical in nature and do not substantially alter the previous eligibility requirements.

Human rights implications

The Disallowable Legislative Instrument may engage the following rights:

- Rights to equality and non-discrimination in Article 26 of the International Covenant on Civil and Political Rights (ICCPR).

- The right to a fair hearing in Article 14 of the ICCPR.

More broadly, any engagement with human rights is only to the extent that the amendments apply to applicants in Australia. In cases where WHM visa applicants are located outside Australia, the amendments do not engage these rights.

Rights to equality and non-discrimination

The Amendment Regulations may engage the right to equality and non-discrimination in Article 26 of the ICCPR.

Article 26 of the ICCPR states:

All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Access to the WHM program is already limited to eligible passport holders from certain partner countries and jurisdictions only. Arrangements under the WHM program, including eligibility requirements, are established via bilateral negotiations between Australia and the relevant partner country or jurisdiction. While certain requirements are consistent for all WHM partner countries and jurisdictions, there is some variation in the eligible age range across the program, according to the terms of the individual bilateral arrangements.

The amendments relocate, from Schedule 2 to Schedule 1, the ability of the Minister to specify the maximum eligible age of visa applicants at the time of application, by legislative instrument, consistent with the commitments under the relevant bilateral agreements where the agreed maximum eligible age is less than 35 years. To the extent that may result in differing eligible age ranges for WHM visas across partner countries, this may engage the rights to equality and non-discrimination.

In its General Comment 18, the UN Human Rights Committee (UNHRC) stated that:

The Committee observes that not every differentiation of treatment will constitute discrimination, if the criteria for such differentiation are reasonable and objective and if the aim is to achieve a purpose which is legitimate under the [ICCPR].

The ICCPR does not give a right for non-citizens to enter Australia for the purposes of seeking residence or employment. The UNHRC, in its General Comment 15 on the position of aliens under the ICCPR, stated that:

The [ICCPR] does not recognize the right of aliens to enter or reside in the territory of a State party. It is in principle a matter for the State to decide who it will admit to its territory. However, in certain circumstances an alien may enjoy the protection of the [ICCPR] even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.

Consent for entry may be given subject to conditions relating, for example, to movement, residence and employment. A State may also impose general conditions upon an alien who is in transit. However, once aliens are allowed to enter the territory of a State party they are entitled to the rights set out in the [ICCPR].

As such, Australia is able to set requirements for the entry of non-citizens into Australia and does so on the basis of reasonable and objective criteria, including age criteria. The amendments are therefore reasonable, necessary and proportionate to the objectives of the WHM program and the relevant bilateral agreements.

Relevantly, the amendments do not introduce a new restriction relating to visa eligibility criteria for the WHM visa; rather, they provide that an application would be invalid under Schedule 1 rather than otherwise resulting in a refusal decision for failure to satisfy age criteria in Schedule 2.

Right to a fair hearing

The Amendment Regulations may also engage the right to fair and public hearing in Article 14 of the ICCPR.

Article 14 of the ICCPR states:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

The relocation of age criteria from Schedule 2 to Schedule 1 removes the ability of WHM visa applicants to seek merits review in relation to a finding that they do not meet relevant age criteria. To the extent that the changes have the effect that visa applicants do to have access to merits review in relation to this objective criterion, this is reasonable given the objective nature of the age eligibility criteria which is not subject to any discretionary assessment. The amendment does not affect visa applicants’ continuing access to merits review in relation to eligibility criteria that require the exercise of discretion. To the extent that the amendments may engage rights under Article 14, the amendments are therefore reasonable, necessary and proportionate to support the objectives of the WHM program.

Conclusion

The Amendment Regulations are compatible with human rights because, to the extent that they may limit human rights, those limitations are reasonable, necessary and proportionate to legitimate aims.

The Hon Tony Burke MP

Minister for Home Affairs

ATTACHMENT B

Details of the Migration Amendment (Working Holiday Maker Age Criteria) Regulations 2026

Section 1 – Name

This section provides that the title of the Regulations is the Migration Amendment (Working Holiday Maker Age Criteria) Regulations 2026.

Section 2 – Commencement

This section provides that the instrument commences on 1 July 2026.

Section 3 – Authority

This section provides that the instrument is made under the Migration Act 1958 (Migration Act).

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1—Amendments

Migration Regulations 1994

Item [1] – Paragraph 1224A(3)(a) of Schedule 1

This item removes the words ‘for this paragraph’ and substitutes those words with ‘made for this item under subregulation 2.07(5)’.

Paragraph 1224A(3)(a) provides that an applicant must hold a valid passport issued by a foreign country specified in an instrument in writing. Prior to amendment, the relevant instrument was to be made under the same paragraph and expressly for that paragraph. The effect of the amendment is that the instrument specifying relevant foreign countries is instead made under regulation 2.07(5) for the purposes of item 1224A generally.

This amendment also operates to support the amendment by item [3] of Schedule 1 to the proposed Regulations, where proposed subparagraph 1224A(3)(aaa) provides that an instrument referred to in paragraph 1224A(3)(a) (as amended) may also specify an age (younger than 35) for a visa applicant with reference to a foreign country specified in the instrument as the issuing authority for the applicant’s passport.

Subregulation 2.07(5) of the Migration Regulations relevantly provides that if an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under this subregulation, the Minister may, by legislative instrument, specify any of the following matters for the purposes of such a criterion or requirement:

an approved form for making an application for a visa of a specified class;
the way in which an application for a visa of a specified class must be made;
the place at which an application for a visa of a specified class must be made;
any other matter.

The amendment in Item [1] therefore operates to provide that a legislative instrument may be made under subregulation 2.07(5) for Item 1224A of Schedule 1 to the Regulations that specifies foreign countries for paragraph 1224A(3)(a), and for new subparagraph 1224A(3)(aab)(ii), an age younger than 35 years, with reference to the instrument mentioned in paragraph 1224A(3)(a).

The amendment also aligns item 1224A with equivalent provisions in current item 1225. Subitem 1225(5) currently provides that a legislative instrument may be made under subregulation 2.07(5) for item 1225.

Item [2] – Paragraph 1224A(3)(aaa)(ii) of Schedule 1

This item removes the words ‘made under’ and substitutes those words with ‘mentioned in’. This amendment is consequential to item [1], which results in the relevant instrument no longer being made under paragraph 1224A(3)(a). This is a technical change only, and the use of the expression ‘mention’ clarifies the connection with subregulation 2.07(5). That subregulation relevantly provides that a legislative instrument made under that subregulation may specify a matter if an item of Schedule 1 prescribes criteria or requirements by reference to a legislative instrument made under that subregulation.

Item [3] – After paragraph 1224A(3)(aaa) of Schedule 1

This item relocates existing criteria from Schedule 2 into Schedule 1 to the Migration Regulations in relation to the Work and Holiday (Temporary) (Class US) visa. The effect of the amendment is that at the time of making an application for that visa, the applicant must be at least 18 years of age and no more than 35 years of age, unless a different (younger) maximum age is specified in a legislative instrument. If the applicant does not meet this new Schedule 1 requirement, the application for the visa would not be a valid application.

The amendment does not alter the eligibility criteria for a person seeking to be granted a Subclass 462 (Work and Holiday) visa. Instead, it alters when the age requirement is assessed. Prior to amendment, as a Schedule 2 criterion, the age requirement was assessed only after the person has made a valid application. The effect of the amendment is to require the applicant to meet the age requirement in order to make a valid application for the visa. The amendment in effect ensures that a person could not make a valid application (and pay the associated visa application charge) in circumstances where they would not meet the object age requirements for the visa. Subsection 47(3) of the Migration Act provides that the Minister is not to consider an invalid application.

Item [4] – After subitem 1225(3) of Schedule 1

This item relocates existing criteria from Schedule 2 into Schedule 1 to the Migration Regulations in relation to the Subclass 417 (Working Holiday) visa. The effect of the amendment is that at the time of making an application for that visa, the applicant must be at least 18 years of age and no more than 35 years of age, unless a different (younger) maximum age is specified in a legislative instrument.

The amendment is technical in nature and does not alter the eligibility criteria for a person seeking to be granted a Subclass 417 (Working Holiday) visa. Instead, as noted above in item [3], it alters when the age requirement is assessed. Prior to amendment, as a Schedule 2 criterion, the age requirement was assessed only after the person has made a valid application. The effect of the amendment is to require the applicant to meet the age requirement in order to make a valid application for the visa. The amendment in effect ensures that a person could not make a valid application (and pay the associated visa application charge) in circumstances where they would not meet the object age requirements for the visa. Subsection 47(3) of the Migration Act provides that the Minister must not consider an invalid application.

Item [5] – Subitem 1225(5) of Schedule 1 (note)

This item repeals the note that refers to the definition of ‘Internet application’.

The note is not required as the term ‘internet application’ does not appear in item 1225 of Schedule 1 to the Migration Regulations.

Item [6] - Paragraph 417.211(1)(a) of Schedule 2

This item omits a reference to ‘“paragraph (2)(a)” and substitutes it with “subclause (2)”. This is consequential to the amendment made below in item [7] where subclause 417.212 is revised and the paragraph reference is removed.

Item [7] – Subclause 417.211(2) of Schedule 2

This item repeals and substitutes subclause 417.211(2). Previously this subclause required an applicant to:

hold a working holiday eligible passport of a kind specified in an instrument; and
be aged at least 18 and no more than:
- 35; or
- If a younger age was specified in an instrument – that younger age.

This is consequential to the amendments made above by item [4], which inserted an age requirement into Schedule 1 of the Migration Regulations as a criterion for a valid application to be made.

The requirement that an applicant hold a working holiday eligible passport is retained in this subclause.

Item [8] – Clause 462.211 of Schedule 2

Item [9] – Clause 462.211A of Schedule 2

Item [10] – Paragraph 462.211B(1)(a) of Schedule 2

These items remove references to clause 462.212, as a consequence of the amendment made by item [11] below, which repeals that clause.

Item [11] – Clause 462.212 of Schedule 2

This item repeals clause 462.212, which contained the requirement that an applicant met the age requirements, namely that they were aged 18 and no more than 35, or where specified in an instrument, a younger age. This is consequential to item [3], which inserts age criteria into Schedule 1 of the Migration Regulations.

Item [12] – In the appropriate position in Schedule 13

This item inserts Part 163 into Schedule 13 of the Migration Regulations. Part 163 provides that the amendments of the Migration Regulations apply in relation to applications for a visa made on or after the amendments commence.

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