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Joint Standing Committee on Foreign Affairs, Defence and Trade
06/07/2017
Australia’s trade and investment relationship with the United Kingdom

O'DONOGHUE, Ms Anne, Managing Director, Immigration Solutions Lawyers

CHAIR: Welcome. I will now invite you to make a brief opening statement before we begin discussions.

Ms O'Donoghue : I think my name was put forward by the Aus Brit Chamber of Commerce. I am an accredited specialist immigration lawyer with over 24 years' experience. I do sit on the executive of the International Law Section of the Law Council of Australia, although I am not representing the Law Council of Australia today. I am also a senior vice-chair of the IBA Immigration and Nationality Law Committee. I have practised in corporate immigration for many years. I have run a legal practice in Australia for 24 years. I have read the submission provided by the Australian British Chamber of Commerce to the Inquiry.

My focus today is going to be on the movement of labour, which I think is very important, given the changes that we have had to the 457 visa in itself. I suppose the history of the 457 visa has been a bit like a dog's breakfast. I do not think you could describe it in any other way.

I gave evidence several years agoI think it was in 2013for the Law Council when there was an inquiry in the Commonwealth parliament in relation to 457 visas. I think the recommendations were that labour market testing was re-instated subject to certain exceptions. My concern is the lack of business consultation. No consultation took place before these changes came in in April. Then there were some revisions done on 1 July.

The feedback that I have got from business in these circumstances is why could not consultation have taken place prior to the changes and whether the changes now are going to redress the balance.

CHAIR: My question would be: was business consulted throughout the review, which these changes were based on, by Mr Ruddock and Senator Concetta Fierravanti-Wells in 2015?

Ms O'Donoghue : From my understandingI am only going on what I have got from the Australian Business British Chamber of Commercethe answer is no. My understanding from other businesses is that there was no consultation and these changes were brought in very, very quickly without a form of consultation or advice. I do know that back in 2013 there were a lot of inquiries, a lot of consultation. This came in very, very quickly. That has been my feedback from business across the board. I think it has been well documented in newspaper articles. Certain industries have been lobbying more successfully than others in relation to changes that have come into place from 1 July.

CHAIR: I guess what we are looking at is the UK-Australia trade and investment relationship. If you could go specifically to some facts and figures around that?

Ms O'Donoghue : My expertise is in immigration and labour movement, and I have been asked to come by the chamber today and address their concerns in relation to how it has affected their members and certain occupations. For example, CEO was taken off the list but has now been put back on the list. If people do not feel there is confidence in being able to move key people, personnel, into the country, of course that is going to affect the trade situation in negotiations. That is the concern, as I understand it. I have certainly seen it.

In my practice I saw a person from South Africa here on a 457 visa. It was a very good, large company in Queensland. A potential CEO was in difficulty in relation to permanent residency in these circumstances. He had a temporary visa. I suppose the issue is: if we want freedom of trade we have to bring in skilled people at a senior level to develop other businesses or build those businesses. You cannot be cutting off key positions, which is going to impact on businesses developing and either setting up branch offices in the UK or setting up offices here. That is the point I am making.

CHAIR: How often do you think the skills list should be reviewed?

Ms O'Donoghue : I think it should be reviewed at least on a six-monthly basis at the moment, given the political viability. Today I looked at the history of the 457 visas and the history of when we had a low unemployment rate, when it was at 5.2. At the moment it is at 5.5. I think it has to be very focused in relation to the skills that we need.

It has got to be an investment. If you are basically going to bring in certain categories of people there has got to be an investment there for that category of person. In other words, there has got to be some type of benefit to the Australian economy for that. The history of the whole 457 visa class has been demand driven. If that is going to be your criteria you have got to be testing the waters regularly.

CHAIR: I agree.

Ms O'Donoghue : You cannot just be doing it every 12 or 18 months, because then it is too late. I think you need a fairly up-to-date monitoring system.

CHAIR: What we had, from my understanding, was a set-and-forget model in the past.

Ms O'Donoghue : It was a set-and-forget model. That is true.

CHAIR: I could not agree more. We need to make sure that if we are bringing in workers from other places there is actually a skills shortage.

Ms O'Donoghue : If you look at numbers, I think the most we have brought in under the 457 visa is 110,000. But that was around the 2007 period. It is down significantly now.

You have to look at how other visa programs impact on the 457. The increase in that was basically because permanent residency was delayed and people were going on second 457 visas, which was blowing out the numbers on that. That was the point that was made to the Senate in 2013 in those circumstances.

I think visa processing times are really atrocious. You are looking at about nine months for permanent residency, and I think the department is quoting around six to seven months for 457 visas. The big end of town can usually get their applications in quickly, and if you need to you can get a letter from the CEO saying that this person is needed for a particular point of view. But if we want to be competitive internationally why cannot we be competitive in our processing times?

CHAIR: How long does it take to get a visa into the EU?

Ms O'Donoghue : I could not tell you how long but I could certainly, through my contacts with the IBA. I deal with Laura Devine in the UK. I can certainly get that. But I would think that our processing times are not the best. I do not think we compare very well internationally on that.

CHAIR: If you could get us some sort of comparative data around that?

Ms O'Donoghue : I can certainly do that because I have got contacts in Germany through the IBA and London. I think it would be very interesting to see how we compare. Everything is in a flux in the UK at the moment because of the Brexit situation, but there is a great opportunity for Australian-based lawyers to freely move to the UK at moment, if it was easier in relation to practice and those types of things. We will need many good negotiators and the legal profession, as I understand it, has quite a lot of expertise here in negotiating free trade agreements, because we have been doing this for some time. We have got skills here that we would want to export and use adequately.

Equally, if UK lawyers are trying to come here, it is not as easy as you think. It is not as easy and there is no automatic recognition. You have got the fly in, fly out situation but you do not have automatic recognition. If we want a better deal when we are negotiating with Brexit it has got to be a quid pro quo. I think we have got to look at what we can do and what we get in return. But you cannot expect it all to be one way without making some concessions in other ways.

CHAIR: Mr Perrett.

Mr PERRETT: I am not sure that the role of the Commonwealth government would be to tell the law societies

Ms O'Donoghue : I know that. I am not suggesting it. I am not representing the Law Council.

Mr PERRETT: We can facilitate mutual recognition but obviously the professionals have to make up their own decisions. You gave some figures for 2007. Can you tell me how many British people came on 457 visas recentlyover the last few years?

Ms O'Donoghue : I would have to take that question on notice and give those statistics. But I do know that there are at the moment 1.3 million Brits that call Australia home, and about 116,000 Australians now live in the UK. But I can specifically get that information for you in relation to how many people are on 457 visas. I would think it would be reasonably high.

Mr PERRETT: But you are not sure whether it is heading north, heading south? I thought your evidence was that there were some problems.

Ms O'Donoghue : From the information that is provided by the department, I think the main countries of citizenship for these visa holders have been India, the United Kingdom, China and Ireland. The United Kingdom had something like 18,270. I think that is as at 2016. But that is the information we have got out of the department stats.

Mr PERRETT: Leaving aside your concerns about CEOs and the recent changes, what has been the benefit to Australia of these British people coming on 457 visas?

Ms O'Donoghue : They bring a skillset that we need in many situations.

Mr PERRETT: Are you convinced that the labour market testing is thorough enough to show that we do have a lack in these areas?

Ms O'Donoghue : It is not easy to sponsor. In the evidence I gave back in 2013, I said that it is not easy for a company to become a sponsor. There are many, many difficulties they have got to go through. Back in 2013 labour market testing was required but there were certain occupations that were exempted from that. Now labour market testing is required. I think the exception is any trade agreements or situations like that.

But from a practitioner's point of view, the department do not approve easily these applications. And you have got to give consistent information of labour market testing. It is not as easy as it was back in 2007 onwards to do these applications. There has been a marked change since 2013 in the way in which these applications are assessed and in the approval rates on these.

I think that the change needed to happen. The department is a lot more forensic in relation to its requirements. I think this is important because I think we want to promote job growth within Australia. We want Australians to develop their expertise.

Mr PERRETT: You did mention the unemployment rate.

Ms O'Donoghue : It is not a situation in which you would throw the baby out with the bathwater. You look at the good aspects of the program and then you finetune it to suit what you need. My only concern was: I do not think the consultation was long enough or appropriate enoughthis is my personal beliefin relation to the changes that came in in April. Then there was some role reversal, obviously, from 1 July when there was considerable lobbying from business in relation to this.

Mr PERRETT: What opportunities do you think, if any, will come out of Brexit in terms of British people looking to establish themselves in Australia?

Ms O'Donoghue : I think there are many people who have done well in the UK wanting to set up here. I had a major property developer who approached us some time ago that wanted to bring a skilled person over, and then because of the changes they decided that it was not appropriate because that person could not move to permanent residency. Someone in, say, the 45 to 50 age group from the UK that have the assets, the background and the experience are not going to undertake a life-changing exercise to invest here or do whatever if they do not see that they have a permanent residence option. It is too much to relocate in those circumstances for a two- to four-year visa. I think you have to look at the type of people you want to attract in those circumstances.

Mr PERRETT: I do not think telling politicians there is a shortage of property developers is going to go a long way.

Ms O'Donoghue : No; I am just using that as an example. There are other examples in other areasin the tech area, for example, and in the agricultural area.

Mr PERRETT: We did hear some earlier evidence about that.

CHAIR: I think the tech area is one where there is actually a recognised skill shortage.

Ms O'Donoghue : It is. Fortunately, the changes that came in on 1 July recognise that, because there were quite a few IT things that had been taken off and then came back on.

Dr McVEIGH: Thanks, Ms O'Donoghue, for your evidence. I came in time to hear you talk about your concern in relation to visa processing times. In relation to that, what do you do? What does your practice do? What do you do with your clients when you are concerned about the time frame?

Ms O'Donoghue : I get a letter from the CEO and then I write to someone senior in the department and ask them whether they can have a look at it. To me, that is not the way to go.

Dr McVEIGH: So you do that every time?

Ms O'Donoghue : I do that every time. Then you ask yourself: how many times do you go to the well? Is it going to be picked up or not? I think there should be a streamlined stream for certain 457 visa applications for a certain calibre, for certain industries, where you can get them processed faster. I do know thatlike the Fragemans of this world and the Deloittes of this worldthe larger organisations do get very streamlined processing. But let us face it, small business is the biggest driver of the economy.

Dr McVEIGH: It is the biggest employer.

Ms O'Donoghue : If small business is the biggest driver of the economy, why are we disenfranchising small business and not giving them that advantage? That is my concern. The big end of town will always, but it is small business that drives this economy. I know departments have had their funding cut. Certainly the department of immigration has not decreased its fees or anything like that. If you look at the revenue that is coming in from this department in departmental fees and look at that in relation to processing time, there are questions to be addressed, I think.

Dr McVEIGH: Your 457 comments apply to a range of countries no doubt, not just the UK?

Ms O'Donoghue : No; we act for clients from all over the world, mainly Western democracy clientsthe UK, Ireland and some large US companiesacross the board. Each time it is a situation of getting a letter from the CEO saying, 'We need this person quickly. Can you look at it?' Sometimes they are ready, like two or three days before, to go to the airport. This is the situation. To me, you should not have to do that. There should be streamlined processing so that, if you meet a certain criteria, you go through that processing.

Dr McVEIGH: Thank you.

CHAIR: In relation to using a visa class across a range of industries, sometimes that streamlining is easier than with others. The movement of people is going to be a big part of whatever agreement is struck.

Ms O'Donoghue : I think it is a big part.

CHAIR: Thank you very much, Ms O'Donoghue, for your evidence.