Migration Regulations 1994 - Specification of Working Holiday Visa - Definitions of Specified Work and Regional Australia 2016/087 - IMMI 16/087

Administered by Department of Home Affairs

Legislation au F2016L01441 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Migration Regulations 1994

WORKING HOLIDAY VISA – DEFINITION OF SPECIFIED WORK AND REGIONAL AUSTRALIA 2016/087

(subitem 1225(5))

  1. Instrument IMMI 16/087, Working Holiday Visa – Definitions of Specified Work and Regional Australia 2016/087, is made under subitem 1225(5) of Schedule 1 to the Migration Regulations 1994 (the Regulations).
  2. The Instrument revokes IMMI 16/041 (F2016L00757) under subsection 33(3) of the Acts Interpretation Act 1901, which states where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character, the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
  3. The Instrument operates for the Minister to specify a place that is in regional Australia and to specify the work of a kind identified as specified work for the purposes of an Item 1225 Working Holiday (Temporary) (Class TZ) visa. Under subitem 1225(3B) of Schedule 1, if an applicant has previously held no more than one Working Holiday (Temporary) (Class TZ) visa and holds a working holiday eligible passport and is seeking a second Working Holiday (Temporary) (Class TZ) visa, the application must be accompanied by a declaration that he or she has carried out specified work in regional Australia for a total period of at least 3 months as a holder of that visa. The instrument is also relevant to subclause 417.211(5) of Schedule 2 to the Regulations, which uses the same definition of regional Australia as subitem 1225(5) of Schedule 1 to the Regulations.
  4. The purpose of the Instrument is for the Minister to include in the Schedule to the Instrument that postcodes 6076 and 6111 in Western Australia are a regional Australia place for the purposes of subitem 1225(5) of Schedule 1 to the Regulations. This will mean Working Holiday (Temporary) (Class TZ) visa holders who have performed three months ‘specified work’ in ‘regional Australia’ can apply for and be granted a second Working Holiday (Temporary) (Class TZ) visa.
  5. Consultation was undertaken with horticulture industry, particularly the Perth Hills district before this Instrument was made.
  6. The Office of Best Practice Regulation (OBPR) has advised that a Regulatory Impact Statement is not required (OBPR Reference 21066).
  7. Under section 42 of the Legislation Act 2003, the Instrument is subject to disallowance and therefore a Statement of Compatibility with Human Rights has been provided.
  8. The Instrument commences on the day after registration.

 


Statement of Compatibility with Human Rights

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

 

Working Holiday Visa – Definitions of Specified Work and Regional Australia 2016/087

 

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

The amendments to the legislative instrument Working Holiday Visa – Definitions of Specified Work and Regional Australia 2016/041 will expand the definition of ‘regional Australia’, for the purposes of subitem 1225(5) of the Migration Regulations 1994 (the Regulations), to include postcodes 6111 and 6076.

Under subitem 1225(3B) of Schedule 1 and clause 417.211 of Schedule 2 to the Regulations, Working Holiday (subclass 417) visa holders can apply for and be granted a second Working Holiday visa if, amongst other criteria, they have performed three months ‘specified work’ in ‘regional Australia’. The amendments to the legislative instrument will allow Working Holiday (subclass 417) visa holders who have engaged in ‘specified work’ in postcodes 6111 and 6076, to count this period as part or all of their three months ‘specified work’ in ‘regional Australia’.

 

Human rights implications

This Disallowable Legislative Instrument positively engages and supports Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

Article 6(1) of ICESCR sets out:

1. The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

As the amendments to the legislative instrument expand the definition of ‘regional Australia’ to include two more postcodes, Article 6(1) of ICESCR is positively engaged because there are greater opportunities for Working Holiday (subclass 417) visa holders to apply for and be granted a second Working Holiday visa.

 

This principle is reflected in the United Nation Committee on Economic, Social and Cultural Rights (UNCESCR), in its General Comment on Article 6 (E/C.12/GC/19) has stated (at 4):

 

‘The right to work, as guaranteed in the ICESCR, affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly. This definition underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work, while emphasizing the importance of work for personal development as well as for social and economic inclusion.’

 

Further, Article 4 of ICESCR provides that the State may subject the rights enunciated in the ICESCR:

 

‘…only to such limitations as are determined by law only insofar as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in democratic society.’

 

Any limitations imposed on Working Holiday (subclass 417) visa holders for the provision of a second Working Holiday visa are legitimate, reflecting and justified by Article 4, for the principle reason that they are for the ‘purpose of promoting the general welfare in a democratic society’. In other words, the measure will ensure that persons who are in Australia permanently are given the opportunity to seek work in areas where there is high unemployment before those seeking to work and live in Australia only on a temporary basis.  Such a limitation, noting the discussion in relation to Article 6 above, is permissible.

 

Conclusion

This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

 

 

Overview

The Working Holiday Visa – Definitions of Specified Work and Regional Australia 2016/087 Instrument, made under subitem 1225(5) of Schedule 1 to the Migration Regulations 1994, was introduced to address the need for the Minister to specify places in regional Australia and the kind of work that can be classified as 'specified work' for the purposes of a Working Holiday (Temporary) (Class TZ) visa. This legislative instrument was enacted by the Minister for Immigration and Border Protection under the authority granted by the Migration Act 1958 and the Migration Regulations 1994. The policy objective is to provide Working Holiday (subclass 417) visa holders who have performed three months of 'specified work' in 'regional Australia' with the opportunity to apply for and be granted a second Working Holiday visa. This was achieved by expanding the definition of'regional Australia' to include postcodes 6076 and 6111 in Western Australia, following consultations with the horticulture industry, particularly in the Perth Hills district. The instrument aims to balance the rights of visa holders to work with the need to promote the general welfare in a democratic society by ensuring that those in Australia permanently are given priority over temporary residents in job opportunities. The Office of Best Practice Regulation determined that a Regulatory Impact Statement was not necessary for this instrument (OBPR Reference 21066). The instrument is subject to disallowance under section 42 of the Legislation Act 2003 and a Statement of Compatibility with Human Rights has been provided. The instrument's amendments positively engage with Article 6(1) of the International Covenant on Economic, Social and Cultural Rights, which recognises the right to work and the opportunity to gain a living by freely chosen or accepted work. By expanding the definition of'regional Australia', the instrument supports Working Holiday (subclass 417) visa holders in their pursuit of a second visa, thereby promoting social and economic inclusion. Any limitations on the provision of a second Working Holiday visa are deemed legitimate under Article 4 of the ICESCR, as they serve the purpose of promoting the general welfare in a democratic society.

Scope and Application

The Working Holiday Visa – Definitions of Specified Work and Regional Australia 2016/087, made under subitem 1225(5) of Schedule 1 to the Migration Regulations 1994, serves to expand the definition of "regional Australia" to include postcodes 6076 and 6111 in Western Australia, thereby providing more opportunities for Working Holiday (subclass 417) visa holders to qualify for a second visa. This legislative instrument is relevant to applicants who have held no more than one Working Holiday visa previously and seek to apply for a second one, requiring them to have undertaken at least three months of specified work in regional Australia. The instrument operates to ensure that such work performed in the specified postcodes can count towards the required duration in regional areas. It is subject to disallowance under section 42 of the Legislation Act 2003, and a Statement of Compatibility with Human Rights has been provided, affirming its alignment with the International Covenant on Economic, Social and Cultural Rights, particularly Article 6(1), which upholds the right to work. This amendment aims to promote the general welfare in a democratic society by providing working opportunities in regions with high unemployment, thereby supporting the right to freely chosen or accepted work.

Key Provisions

The Working Holiday Visa – Definitions of Specified Work and Regional Australia 2016/087 Instrument (subitem 1225(5)) amends the Migration Regulations 1994 to expand the definition of 'regional Australia'. Specifically, it includes postcodes 6076 and 6111 in Western Australia as areas qualifying for the purposes of subitem 1225(5) of Schedule 1 to the Regulations. This amendment allows Working Holiday (subclass 417) visa holders who have performed at least three months of 'specified work' in these postcodes to apply for and be granted a second Working Holiday visa. This change follows consultation with the horticulture industry, particularly in the Perth Hills district. Under the amended Regulations, Working Holiday (subclass 417) visa holders must meet several criteria to be eligible for a second visa. One such requirement is that they must have performed 'specified work' in 'regional Australia' for at least three months. The addition of postcodes 6076 and 6111 means that work performed in these areas can now count towards the required three months of 'specified work' in 'regional Australia'. This is crucial for visa applicants who wish to extend their stay in Australia under the Working Holiday scheme. The Instrument imposes specific obligations on applicants for a second Working Holiday visa. They must declare that they have performed 'specified work' in regional Australia for at least three months as a holder of the initial Working Holiday visa. This declaration is a mandatory part of the application process and failure to comply with this requirement could result in the application being denied. The expanded definition of 'regional Australia' aims to ensure that applicants gain practical experience in areas that are designated as regional and where there may be higher unemployment rates. There are no specific offences or penalties mentioned in the Instrument for failure to comply with its requirements. However, the Regulations themselves contain provisions that may apply to non-compliance with visa conditions. For example, subitem 1225(3B) of Schedule 1 to the Regulations specifies that failure to meet the conditions for a second Working Holiday visa could result in the visa being cancelled or not granted. Similarly, clause 417.211 of Schedule 2 to the Regulations could apply where there is a breach of visa conditions, potentially leading to deportation and a ban on future visa applications. These penalties underscore the importance of adhering to the requirements set out in the Instrument and the broader Regulations.

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