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Legal and Constitutional Affairs Legislation Committee—Senate Standing—New Skilled Regional Visas (Consequential Amendments) Bill 2019 [Provisions]—Report, dated October 2019


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October 2019

The Senate

Legal and Constitutional Affairs Legislation Committee

New Skilled Regional Visas (Consequential Amendments) Bill 2019 [Provisions]

© Commonwealth of Australia 2019

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iii

Members

Chair Senator Amanda Stoker LP, QLD

Deputy Chair Senator the Hon Kim Carr ALP, VIC

Members Senator Claire Chandler LP, TAS

Senator Nick McKim AG, TAS

Senator David Van LP, VIC

Senator Anthony Chisholm ALP, QLD

Substituting member Senator Alex Gallacher to replace Senator the Hon Kim Carr ALP, SA on 10 October 2019

Secretariat Sophie Dunstone, Committee Secretary Emma Banyer, Principal Research Officer Brooke Gay, Administrative Officer

Suite S1.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

v

Contents

Members ............................................................................................................................................. iii

Recommendation ............................................................................................................................. vii

Chapter 1—Introduction .................................................................................................................... 1

Conduct of the inquiry ........................................................................................................................ 1

Acknowledgement .............................................................................................................................. 1

Structure of the report ......................................................................................................................... 1

The new skilled regional visas ........................................................................................................... 2

Provisions of the bill ........................................................................................................................... 3

Consideration by other parliamentary committees ....................................................................... 4

Regulations and Ordinances Committee views on the Regulations ................................ 5

Scrutiny of Bills Committee ..................................................................................................... 5

Parliamentary Joint Committee on Human Rights .............................................................. 5

Chapter 2—Key issues........................................................................................................................ 7

Provisional nature of the visas ........................................................................................................... 8

Definition of ‘regional’ ...................................................................................................................... 10

School fees ........................................................................................................................................... 12

Access to Medicare ............................................................................................................................ 12

HECS-HELP ....................................................................................................................................... 13

Purchasing property ......................................................................................................................... 13

Exemptions for regional universities ............................................................................................. 14

Committee view ................................................................................................................................ 15

Appendix 1—Submissions and answers to questions on notice ............................................. 19

Labor Senators minority report ...................................................................................................... 19

Australian Greens additional comments ...................................................................................... 27

vii

Recommendation

Recommendation 1

2.59 The committee recommends that the Senate pass the bill, subject to resolution of the motion to disallow the Migration Amendment (New Skilled Regional Visas) Regulations 2019.

1

Chapter 1 Introduction

1.1 On 12 September 2019, the Senate referred the provisions of the New Skilled Regional Visas (Consequential Amendments) Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 11 October 2019.

1.2 This followed a recommendation from the Selection of Bills Committee responding to a proposal from Labor. The proposal states the reason for referral as to allow for ‘investigation and consultation with stakeholders on the impact of the legislation’.1

Conduct of the inquiry 1.3 The committee called for submissions, publishing details of the inquiry on its website and contacting a range of relevant organisations. Interested parties were invited to make a submission by 23 September 2019.

1.4 The committee received 19 submissions, which are listed at Appendix 1.

Acknowledgement 1.5 The committee acknowledges the efforts of the people and organisations that made submissions to the inquiry.

Structure of the report 1.6 The report has two chapters. This first chapter provides information about the inquiry, an introduction to the new skilled regional visas, outlines the provisions of the bill, and reports on the findings of the Senate Scrutiny of Bills

Committee and the Parliamentary Joint Committee on Human Rights in relation to the bill.

1.7 Chapter 2 discusses key issues raised by submitters, including:

 the definition of ‘regional’;  support for children of visa holders to access state schools;  access to Medicare;  access to study loan programs;  the requirement to apply for and receive foreign investment approval to

purchase residential property; and  exemptions for regional university employers.

1 Appendix 3. Selection of Bills report 5 of 2019.

2

The new skilled regional visas 1.8 The New Skilled Regional Visas (Consequential Amendments) Bill 2019 seeks to make consequential amendments to a number of Acts to facilitate access to welfare payments and government services for holders of new skilled regional

visas, which would be created through an amendment to Migration Regulations 1994 (the Migration Regulations).

1.9 The Migration Amendment (New Skilled Regional Visas) Regulations 2019 (the Regulations) would amend the Migration Regulations to introduce two new provisional visas:

 the Skilled Employer Sponsored Regional (Provisional) (Subclass 494) visa, which would ‘enabl[e] an Australian business to sponsor skilled workers to work in their business’; and

 the Skilled Work Regional (Provisional) (Subclass 491) visa, which is for skilled migrants ‘nominated by a State or Territory government or sponsored by an eligible family member residing in regional Australia’.2

1.10 These provisional skilled regional visas would require visa holders to live and work in a regional area for three years. The designated regional areas would be identified in a legislative instrument, and would include all of Australia except for Sydney, Melbourne, Perth, Brisbane and the Gold Coast.3

1.11 The Regulations also seek to introduce a new permanent visa, the subclass 191 (Permanent Residence (Skilled Regional)) visa. Holders of subclass 491 and subclass 494 visas would become eligible to apply for this permanent visa at the end of three years, as long as they have met the conditions.4

1.12 The Regulations would also provide for a secondary visa with the same conditions to be provided for accompanying family members. The Replacement Explanatory Statement to the Regulations says:

Both the Subclass 491 and Subclass 494 visas enable members of the family unit to make a visa application at the same time as the primary applicant…Both Subclass 491 and Subclass 494 visas are granted for 5 years from the date of grant to primary applicants. Secondary applicants granted a Subclass 491 or Subclass 494 visa are granted a visa aligning to the end date of the primary applicant’s visa.5

2 Department of Home Affairs, Submission 17, p. 3.

3 Minister for Immigration, Citizenship and Multicultural Affairs, Replacement Explanatory Statement,

Migration Amendment (New Skilled Regional Visas) Regulations 2019, p. 1.

4 Replacement Explanatory Statement, Migration Amendment (New Skilled Regional Visas) Regulations

2019, p. 1.

5 Replacement Explanatory Statement, Migration Amendment (New Skilled Regional Visas) Regulations

2019, p. 16.

3

1.13 The visas are part of the government’s ‘Plan for Australia’s Future Population’, announced in March 2019. The government announced that it intends to allocate 23,000 places for these visas within the Migration Program each year.6

1.14 The government proposed that the new visas will encourage migrants to stay in regional Australia ‘longer-term’, adding that migrants to Australia on new skilled regional visas ‘will build ties to a particular location through workforce participation and community involvement, easing the pressure off our congested cities’.7

Provisions of the bill 1.15 The bill would amend the following Acts to give holders of the new skilled regional visas, including accompanying family members, the same access to welfare payments and government services as holders of permanent visas:

 A New Tax System (Family Assistance) Act 1999  Disability Services Act 1986  Fair Entitlements Guarantee Act 2012  Higher Education Support Act 2003  National Disability Insurance Scheme Act 2013  Paid Parental Leave Act 2010  Social Security Act 1991.

1.16 The mechanism by which the bill grants access to payments and services is by amending the definition of ‘Australian resident’ so that people who reside in Australia and hold a provisional skilled regional visa (a Subclass 491 or 494 visa) ‘are also considered to be an Australian resident’.8

1.17 The bill consists of three schedules. Schedule 1 would amend social services legislation, including the A New Tax System (Family Assistance) Act 1999, the Disability Services Act 1986, the National Disability Insurance Scheme Act 2013, the Paid Parental Leave Act 2010, and the Social Security Act 1991, to include provisional skilled regional visa holders in the definition of ‘Australian resident’ for the purposes of determining eligibility for services, programs and payments.9

1.18 This schedule would also make amendments that relate to the waiting periods holders of the new skilled regional visas would serve before being able to

6 Prime Minister, the Hon Scott Morrison MP, and others, Media Release: A plan for Australia’s future

population, 20 March 2019, at https://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p; query=Id%3A%22media%2Fpressrel%2F6566930%22, accessed 1 October 2019.

7 Prime Minister, the Hon Scott Morrison MP, and others, Media Release: A plan for Australia’s future

population, 20 March 2019.

8 Department of Home Affairs, Submission 17, p. 4.

9 Explanatory memorandum, p. 5.

4

access payments and programs. Migrants to Australia are not generally eligible for payments until they have served a waiting period. In the case of most payments this period is four years. For Parental Leave Pay, Dad and Partner Pay and Carer Payment, it is two years. For Carer Allowance and Family Tax Benefit Part A it is one year. There is no waiting period for Family Tax Benefit Part B. These provisions provide that waiting periods for provisional skilled regional visa holders start ‘when they become the holder of that visa and [do] not re-start once granted a permanent visa’.10

1.19 Schedule 2 would amend the Higher Education Support Act 2003 to entitle provisional skilled regional visa holders to a Commonwealth Supported Place, and access to FEE-HELP, if they are undertaking a higher education unit as part of a bridging course for overseas-trained professionals.11

1.20 Schedule 3 would amend the Fair Entitlements Guarantee Act 2012 to entitle provisional skilled regional visa holders to the ‘Fair Entitlements Guarantee’.12 The Fair Entitlements Guarantee is a legislative safety net scheme which allows eligible employees to make a claim for ‘certain unpaid employment entitlements’ if they lose their job ‘due to the liquidation or bankruptcy of their employer’.13

1.21 In relation to the bill, the Department of Home Affairs explained:

Most of these skilled migrants are not expected to claim social security payments, such as Newstart Allowance or Disability Support Pension. They are coming to Australia to work and to contribute to regional areas across Australia. However, these changes ensure a safety net is available should they find themselves in need, for example, due to a change in circumstances. These changes also ensure that visa holders with children can access support to enable them to fully participate, such as the child care subsidy.14

1.22 The department explained that new skilled regional visa holders would also be eligible for ‘the full range of existing exemptions’ from waiting periods in cases where visa holders may encounter the unexpected, such as ‘injury, relationship breakdown or domestic violence’.15

10 Explanatory memorandum, p. 5.

11 Explanatory memorandum, p. 13.

12 Explanatory memorandum, p. 15.

13 Attorney-General’s Department, Fair Entitlements Guarantee (FEG), at https://www.ag.gov.au

/industrial-relations/fair-entitlements-guarantee/Pages/default.aspx, accessed 1 October 2019.

14 Department of Home Affairs, Submission 17, p. 4.

15 Department of Home Affairs, Submission 17, p. 4.

5

Consideration by other parliamentary committees

Standing Committee on Regulations and Ordinances 1.23 The Senate Standing Committee on Regulations and Ordinances assessed the Regulations and reported that it is seeking further advice from the minister in relation to merits review.16

1.24 The Replacement Explanatory Statement on the Regulations indicates that, for these visa types, merits review is not available in relation to departmental decisions regarding refunding visa application fees, nomination fees and nomination training contribution charges.17

1.25 The Replacement Explanatory Statement identifies this position as:

…consistent with the current position in relation to refunds of fees and charges under the Migration Regulations, including nomination fees, the nomination training contribution charge and visa application charges.18

1.26 The Chair of the Regulations and Ordinances Committee, Senator Fierravanti-Wells, gave notice to the Senate on 16 September 2019 of a motion to disallow the Migration Amendment (New Skilled Regional Visas) Regulations 2019. The motion must be resolved by the Senate within 15 sitting days after that date, or the Regulations will be automatically disallowed.19

Scrutiny of Bills Committee 1.27 The Senate Standing Committee for the Scrutiny of Bills had no comment on the bill. 20

Parliamentary Joint Committee on Human Rights 1.28 The Parliamentary Joint Committee on Human Rights considers that the bill does not raise human rights concerns.21

16 Delegated Legislation Monitor, Monitor 6 of 2019, 18 September 2019, p. 6.

17 Replacement Explanatory Statement, Migration Amendment (New Skilled Regional Visas) Regulations

2019, p. 34, p. 44 and p. 61.

18 Replacement Explanatory Statement, Migration Amendment (New Skilled Regional Visas) Regulations

2019, p. 34.

19 Senate Standing Committee on Regulations and Ordinances, Disallowance Alert 2019, at

https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_Ordinance s/Alerts, accessed 1 October 2019.

20 Scrutiny Digest 5, 2019, 11 September 2019, p. 29.

21 Scrutiny Report 4, 2019, 10 September 2019, p. 25.

7

Chapter 2 Key issues

2.1 Submissions to the inquiry were all supportive of the legislation, with submitters agreeing that providing equitable access to government support and payments for the new skilled regional visa holders was a necessary step in encouraging uptake of the visas.

2.2 Charles Sturt University proposed that providing access for these visa holders to social services ‘is only fair given the contribution people on regional skilled visa[s] will make to industry, their communities and in taxes paid’. 1

2.3 The Migration Alliance supports the bill and the new skilled regional visas, and submitted that the initiative ‘will help with consistent intake of highly skilled persons into these much needed areas’.2

2.4 Also supportive, the Australian Local Government Association pointed out that providing equitable access to government services and welfare payments for regional visa holders may ‘take potential pressure off councils which often have to fill service gaps when these services are not otherwise available’.3

2.5 Universities Australia supported the policy intent of the bill but wants to ensure conditions that apply to the new skilled regional visas allow ‘a degree of flexibility’ for when personal or professional circumstances of migrants change.4

2.6 Some submitters raised issues in relation to how the new skilled regional visas would operate, including:

 concerns around the provisional nature of the visas and employer-employee relationships;  opposition to the intended definition of ‘regional areas’, which excludes the Gold Coast and Perth, along with east coast capital cities;  concerns about access to support for public school education and Medicare;

and

 concern that the existing foreign investment rules, approval processes, and fees may prevent these visa holders from purchasing property in regional areas.

1 Charles Sturt University, Submission 13, p. 2.

2 Migration Alliance, Submission 2, p. [1].

3 Australian Local Government Association, Submission 3, p. [1].

4 Universities Australia, Submission 10, p. [1].

8

2.7 Submitters from the higher education sector proposed that the government consider additional amendments to legislation in order to:

 increase the variety of courses for which HECS-HELP or FEE-HELP are available to provisional skilled regional visa holders; and  exempt regional universities from:

− having to pay a Skilling Australian Fund levy to nominate a visa holder; − having to meet age, skills assessment and work experience requirements in relation to nominees; and − having to meet Labour Market Testing requirements in relation to

positions they seek to fill.

2.8 Issues raised by submitters are considered in this chapter.

Provisional nature of the visas 2.9 Some submitters were concerned that the creation of the new skilled regional visas indicates a broader shift away from more permanent migration programs, such as the employer-sponsored Regional Sponsored Migration

Scheme, towards more temporary types of visas.5

2.10 The National Tertiary Education Union (NTEU) observed that migration programs are becoming more employer-driven, saying:

For much of the 20th century, Australia’s history of migration was largely based on permanent skilled, refugee and family reunions. Since the 1990’s however, migration policies have turned from permanent state-sponsored migration to that of temporary and employer driven migration, changing the relationship between workers and businesses.6

2.11 The NTEU was concerned that the provisional nature of the scheme ‘tips the balance’ in favour of businesses, who often choose to use ‘precariously employed overseas workers’, rather than training locals.7

2.12 The Australian Chamber of Commerce and Industry (ACCI) identified what it sees as a ‘shift in the employer-sponsored migration pathways for regional workers’ towards more temporary pathways, which may be less attractive to migrants.8

2.13 The Regional Sponsored Migration Scheme (RSMS) visa (subclass 187) was abolished in March 2019, to be replaced by the new skilled regional visas. The ACCI submitted that the RSMS was ‘the only exclusive employer sponsored

5 See: National Tertiary Education Union (NTEU), Submission 4; and Australian Chamber of

Commerce and Industry, Submission 8.

6 NTEU, Submission 4, p. [2].

7 NTEU, Submission 4, p. [2].

8 Australian Chamber of Commerce and Industry, Submission 8, p. 4.

9

permanent migration pathway into regional Australia’, and expressed a concern that:

With the removal of the RSMS and the introduction of the new Skilled Employer Sponsored Regional (Provisional) visa (subclass 494) in its place, which has a wait time of three years before they can access permanent residency, this creates a level of uncertainty which may prove to be an impediment to attract migrants to the regions.9

2.14 The ACCI also suggested that the provisional nature of the new visas may mean ‘[t]alented migrants looking for opportunities may chose the metro areas under a different stream that grant[s] immediate permanent residency’.10 This is because, ‘the most critical aspect of a migrant’s decision to move countries and make regional Australia their home [is] the stability and assurance of a permanent life in our country’.11

2.15 There was concern that migrant workers may also be more vulnerable to exploitation. The NTEU submitted examples of such exploitation, including:

 Underpayment of wages and superannuation, including being forced to pay back wages;  Abuse ranging from psychological to physical;  Threats of deportation if complaints are made or workers join unions;

and

 Being forced to live in sub-standard conditions.12

2.16 According to the NTEU, exploitation of migrant workers is more common in regional areas, and ‘the current provisions to deal with exploitation of temporary workers have proven to be ineffective’.13

2.17 The NTEU cautioned that:

The creation of additional temporary work visas - even if they have special conditions that allow access to a social welfare safety net and public education, including access to the Higher Education Loans Program (HELP) - only add a further layer to a temporary work system that is fundamentally flawed, with penalties for offending employers (even repeated ones) grossly inadequate, and where unions are legally limited in what they are permitted to do in investigating allegations of exploitation.14

2.18 The ACCI concluded:

It is unclear whether the provisional subclass 494 visa is an effective way to tether migrants to the regions. The provisional nature of the new visa, even

9 Australian Chamber of Commerce and Industry, Submission 8, p. 4.

10 Australian Chamber of Commerce and Industry, Submission 8, p. 5.

11 Australian Chamber of Commerce and Industry, Submission 8, p. 7.

12 NTEU, Submission 4, p. [2].

13 NTEU, Submission 4, p. [5].

14 NTEU, Submission 4, p. [3].

10

with the promise of a permanent residency at the three-year mark, does not compare with the security and stability provided by the RSMS, which was permanency on arrival.15

Definition of ‘regional’ 2.19 A number of submissions focussed on the definition of ‘regional areas’ that will apply to the new skilled regional visas. The designated regional areas will be identified in a separate legislative instrument, and will include all of

Australia except for Sydney, Melbourne, Perth, Brisbane and the Gold Coast.16

2.20 The Australian Technology Network of Universities (ATN), a collaboration between the University of Technology Sydney, RMIT University, University of South Australia and Curtin University, submitted that Perth should be classified as a regional area, arguing:

…the regional/rural classification creates some inequalities in relation to Perth being excluded from the definition, while areas such as Canberra, Adelaide and Wollongong would be included. Perth is considered one of the most isolated cities in Australia and as a consequence has been at considerable disadvantage in relation to attracting international students to the state.17

2.21 Bond University, Griffith University, William Buck Gold Coast and others submitted that the Gold Coast should be included in the definition of a regional area.18 Bond University said this is because:

The Gold Coast is the home of three quality universities and the higher education sector receives strong City and State Government support.

The Gold Coast therefore offers a compelling opportunity to grow Australia’s international education sector sustainably and deliver the consequent benefits to economic performance and national export revenues without intensifying the concerns of imbalance and congestion that are impacting upon some of our eastern State capitals.19

2.22 Bond University further argued that the exclusion of the Gold Coast from the definition of a regional area ‘contravene[s] the objectives of the Higher Education Support Act 2003, by reducing ‘diversity and equity of access’.20

15 Australian Chamber of Commerce and Industry, Submission 8, p. 11.

16 Minister for Immigration, Citizenship and Multicultural Affairs, Replacement Explanatory Statement,

Migration Amendment (New Skilled Regional Visas) Regulations 2019, p. 1.

17 Australian Technology Network of Universities, Submission 9, p. [2].

18 Bond University, Submission 5, p. [1]; Mr Jeff McDermid FAICD FCA, Submission 12, p. [1]; Adjunct

Professor Karine Dupre, Submission 15, p. [1]; Griffith University, Submission 18, p. [1]; William Buck Gold Coast, Submission 19, p. [1].

19 Bond University, Submission 5, p. [1].

20 Bond University, Submission 5, p. [2].

11

2.23 Griffith University submitted:

It is highly incongruous that three State Capital Cities, Adelaide, Darwin and Hobart as well as the national capital, Canberra, are considered regional for the purposes of Skilled Regional Visas that include International Students. It is particularly difficult to comprehend why Adelaide, with a population of 1,315,346 more than twice that of the Gold Coast’s 663,321 according to 2018 data, is considered Regional over the Gold Coast.21

2.24 The Gold Coast Regional Classification Business Case report, provided with the Bond University submission, disputes the idea that the Gold Coast has an unusually high growth rate:

Unlike Melbourne and Sydney, the recent growth of the Gold Coast is within expected population projections. The Gold Coast has had only one tenth (1/10) of the recent population growth of both Melbourne and Sydney. The Gold Coast population increase from 2017 to 2018 at 15,633 was only marginally greater than the long term annual average 2002 to 2018 (13,359). The population increase in Melbourne in 2018 was nearly seven times greater than that of Gold Coast Tweed; that of Sydney more than five times greater and Brisbane nearly three times greater…22

2.25 The Gold Coast Regional Classification Business Case report further notes that:

The growth rate of Gold Coast City (classified as non-regional) in 2018 was 2.6%, less than the 2.8% in Sunshine Coast and Geelong 2.7% (both classified as regional).23

2.26 On the other hand, the Far North Queensland Regional Organisation of Councils, suggested the visas could be limited even further, and ‘given only to those that choose a regional area with a low or declining population base as an enticement’.24

2.27 The Department of Home Affairs explained that the Gold Coast has been classified as ‘a metropolitan centre’ under the core skilled migration program since 1993. The department sighted the Gold Coast’s ‘high population growth rate’ as one of the key reasons. This growth rate, which sits around 2.6 per cent is ‘significantly’ higher than the average Australian growth rate of 1.6 per cent.25

2.28 The department was also asked to explain the reasons Canberra and Adelaide are classified as regional. The department’s response is provided in full:

21 Griffith University, Submission 18, p. [1].

22 Study Gold Coast, Planning for Australia’s Future: Gold Coast Regional Classification Business Case,

August 2019, p. 5. (Attachment to Bond University, Submission 5.)

23 Study Gold Coast, Planning for Australia’s Future: Gold Coast Regional Classification Business Case,

August 2019, p. 6.

24 Far North Queensland Regional Organisation of Councils, Submission 1, p. [1].

25 Department of Home Affairs Stoker QoN 4 October 2019 (received 9 October 2019), p. [1].

12

The current Regional Sponsored Migration Scheme visa (subclass 187) was introduced on 1 July 2012. Canberra and Adelaide have been classified as regional for this visa since that time.26

School fees 2.29 Charles Sturt University (CSU) observed that the bill includes amendments which provide for new skilled regional visa holders to access tertiary education and training. However, CSU was concerned about what access

children of holders of skilled regional visas would have to state schools, and what fees their parents would pay. CSU submitted:

Obviously, the Bill impacts access to Commonwealth social services, but not social services delivered by state and territory governments. To ensure equality of social services it will be critical that the Commonwealth, through the Council of Australian Governments (COAG) work with the states and territories to ensure free and open access to state schools consistent with permanent residents.27

2.30 Similarly, Rural Councils Victoria supported the bill, but submitted that:

…any changes made at the Federal level to the migrant intake need to work in tandem with State and Local Government programs and initiatives that provide essential support services to new migrants and their communities. Sufficient funding from both state and federal levels of government needs to be provided for housing support, education and training services and community assistance programs.28

2.31 In the Joint University Submission, participating universities recommended that the Commonwealth government ‘incentivise a consistent approach’ through COAG to encourage states and territories to ‘treat new skilled regional visa holders as if they were Australian permanent residents in relation to payment of school fees for enrolment in public schools’.29

Access to Medicare 2.32 The Northern Territory Government submitted that it supports the bill, but believes the government should also provide access to Medicare for holders of the new skilled regional visas. Access to Medicare, it argued, would ‘lead to

better settlement outcomes’ and is ‘imperative for these visa holders to remain in the Territory on a long-term basis’.30

26 Department of Home Affairs Stoker QoN 4 October 2019 (received 9 October 2019), p. [1].

27 Charles Sturt University, Submission 13, p. 4.

28 Rural Councils Victoria, Submission 6, p. 7.

29 Joint University Submission, Submission 14, p. 2.

30 Northern Territory Government, Submission 16, p. [1].

13

2.33 The NT Government acknowledged that changes to Medicare access are ‘outside the scope’ of the bill, and ‘would require a legislative instrument to be made under the Health Insurance Act 1973’.31

2.34 The department confirmed that holders of the new skilled regional provisional visas ‘will have the same access to Medicare as Australian permanent residents’,32 which means they can apply for a Medicare card. 33

2.35 In order to facilitate this access, the Department of Health is in the process of amending the Health Insurance Act 1973.34

HECS-HELP and FEE-HELP 2.36 Submitters from the education sector welcomed the provisions in the bill which would enable new skilled regional visa holders to access Commonwealth Supported Places and FEE-HELP for bridging courses that

‘pay all or part of their tuition fees for a unit of study that is part of a bridging course for overseas-trained professionals’.35

2.37 However, La Trobe was concerned that FEE-HELP would not be available for courses other than bridging courses, saying:

This will be a significant financial disincentive. Accordingly, LaTrobe recommends that consideration should be given to making [all] loan programs (HECS-HELP or FEE HELP) available for both provisional regional skilled visa holders and permanent visa holders.36

Purchasing property 2.38 In a joint submission, the Australian National University, Central Queensland University, Charles Sturt University, Flinders University, James Cook University, the University of Adelaide, University of Canberra, UNSW

Canberra, and the University of Wollongong (Joint University Submission), highlighted a possible area of concern around the capacity for new skilled regional visa holders to purchase property in regional areas. The submission states that:

…temporary residents generally need to apply for and receive foreign investment approval before purchasing any residential real estate in

31 Northern Territory Government, Submission 16, p. [1].

32 Department of Home Affairs Stoker QoN 4 October 2019 (received 9 October 2019), p. [1].

33 Department of Human Services, ‘How to enrol in Medicare if you’re an Australian permanent

resident’, Department of Human Services website, at https://www.humanservices.gov.au/ individuals/subjects/how-enrol-and-get-started-medicare/enrolling-medicare/how-enrol-medicare-if-youre-australian-permanent-resident, accessed 10 October 2019.

34 Department of Home Affairs Stoker QoN 4 October 2019 (received 9 October 2019), p. [1].

35 Department of Home Affairs, Submission 17, p. 7.

36 La Trobe University, Submission 7, p. 2.

14

Australia. The application to the Foreign Investment Review Board also attracts a significant fee, starting from $5,700 with incremental increases depending on the value of the residential property.37

2.39 Concerned this may act as a significant disincentive to settling permanently, the universities recommended that provisional skilled regional visa holders be ‘afforded the same rights as a permanent visa holder in relation to the purchase of residential property in a regional area’.38

2.40 The department confirmed that new skilled regional visa holders would be able to purchase residential property in a regional area. However, it observed that:

Temporary residents generally need to apply for and receive foreign investment approval before purchasing residential real estate in Australia.39

Exemptions for regional universities 2.41 The Joint University Submission proposed that exemptions available under the Employer Nomination Scheme (subclass 186), which relate to age, skills assessment, work experience and English language requirements, should also

be made available for subclass 494 Skilled Employer Sponsored Regional (provisional) visa applicants.40

2.42 Further, the universities recommended the government make changes to legislation and legislative instruments to provide additional exemptions for regional university employers, including:

 an exemption from having to pay the Skilling Australian Fund (SAF) Levy to nominate a new skilled regional visa holder;41 and  an expansion to the existing exemptions in relation to age, skills assessment and work experience requirements for Australian University sponsors ‘for

professional and managerial positions’, including researchers, lecturers, faculty heads and other positions. 42

2.43 The submitters also argued that labour market testing (LMT) requirements put up ‘significant obstacles to universities in the recruitment of high-value

37 The Australian National University, Central Queensland University, Charles Sturt University,

Flinders University, James Cook University, the University of Adelaide, University of Canberra, UNSW Canberra, and the University of Wollongong (Joint University Submission), Submission 14, p. 2.

38 Joint University Submission, Submission 14, p. 2.

39 Department of Home Affairs Stoker QoN 4 October 2019 (received 9 October 2019), p. [1].

40 Joint University Submission, Submission 14, p. 3.

41 Joint University Submission, Submission 14, p. 3.

42 Joint University Submission, Submission 14, p. 3.

15

business critical academic staff’ and impact their ability ‘to fill critical skills gaps amongst the ranks of their professional staff’.43

2.44 As such, the participating universities recommended the government make changes to the law to exempt universities from LMT requirements (pursuant to section 140GBA of the Migration Act 1958 (Cth)) for academic appointments.44

2.45 The universities also recommended regional universities be exempt from LMT requirements for occupations funded through Australian Research Council grants, National Health and Medical Research Council grants, and/or ‘similar competitive university, government or industry funded grants and/or fellowships’.45

2.46 The department provided the following in response to questioning around exemptions for regional universities:

Subclass 494 Skilled Employer Sponsored Regional (provisional) visa applicants applying for university lecturer or faculty head positions will have exemptions for age, skill assessment and employment experience. English language exemptions may be considered in the context of the labour agreement stream of the new visa.46

Committee view 2.47 The New Skilled Regional Visas (Consequential Amendments) Bill 2019 is necessary to support the visas created by the Migration Amendment (New Skilled Regional Visas) Regulations 2019.

2.48 The committee supports the creation of the new skilled regional visas under the government’s ‘Plan for Australia’s Future Population’, and notes that encouraging skilled migrants to take up positions in regional areas has benefits for creating growth in those areas, and taking pressure off Australia’s biggest cities.

2.49 The bill provides incentives for migrants to take up opportunities in regional areas under the new visa arrangements by providing fair access to government payments and supports, after standard waiting periods have been served.

2.50 The committee notes that the Migration Amendment (New Skilled Regional Visas) Regulations 2019 are currently subject to a disallowance motion in the Senate. The bill, and the regulations which create the visas, work in tandem. As such, the committee suggests it would be prudent for the Senate to resolve the disallowance motion prior to passing the bill.

43 Joint University Submission, Submission 14, p. 8.

44 Joint University Submission, Submission 14, p. 6.

45 Joint University Submission, Submission 14, p. 7.

46 Department of Home Affairs Stoker QoN 4 October 2019 (received 9 October 2019), p. [1].

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2.51 The committee notes that all of the submitters to this inquiry are supportive of the bill, though some raise concerns or make recommendations relating to the operation of the new skilled regional visas, or on related issues.

2.52 Most of the issues raised by submitters are not specific to the New Skilled Regional Visas (Consequential Amendments) Bill 2019, and do not impact the committee’s support for the bill. This includes questions around how effective the visas may be in attracting skilled migrants to regional areas, and around the possible exploitation of visa holders by employers.

2.53 While these issues are not central to the bill, the committee takes submitter concerns seriously, and encourages the Department of Home Affairs to put in place ongoing monitoring and evaluation of the implementation of this visa scheme.

2.54 The committee appreciates the concerns raised by those who support regional classification for the Gold Coast, and notes that the classification of ‘regional areas’ that will apply to the new visas will be determined through a separate legislative instrument.

2.55 The department’s response to the committee’s request for information around why the Gold Coast is classified as ‘metropolitan’, while Canberra and Adelaide are classified as ‘regional’, was not sufficiently detailed to inform the committee’s views.

2.56 Regardless, the committee notes these classifications have been in place for some time. The committee suggests that a review of the existing classifications should be considered, taking into account the concerns of submitters to this inquiry.

2.57 In order for the new skilled regional visas to be effective in attracting skilled migrants to regional areas, the committee agrees that barriers to long-term settlement should be minimised. The committee believes it would be worthwhile for the government to review the requirement for provisional skilled regional visa holders to apply for and receive foreign investment approval in order to invest in residential property in regional areas. Alternatively, the government could consider exempting these visa holders from the fees associated with applying for foreign investment approval.

2.58 The committee thanks the participating universities for their extensive submission recommending exemptions for regional universities from various fees and requirements in relation to sponsoring migrants for new skilled regional visas. The committee notes the response from the department in relation to exemptions for lecturers and faculty heads, and encourages the minister and the department to engage directly with the submitters around these recommendations, with a view to supporting the regional education sector, which makes a valuable contribution to the economies of a number of regional areas and Australia more broadly.

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Recommendation 1

2.59 The committee recommends that the Senate pass the bill, subject to resolution of the motion to disallow the Migration Amendment (New Skilled Regional Visas) Regulations 2019.

Senator Amanda Stoker Chair

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Labor Senators minority report

Introduction 1.1 Labor Senators support the aim of the new skilled regional visas, which is to change the geographic distribution of visa holders by increasing the number who reside outside major cities, in ‘regional Australia’.

1.2 However, we are concerned that the new visas have not been fully thought through, the details are unclear, and there could be serious unintended consequences.

1.3 The Minister through regulation will define living in regional Australia as to ‘not be residing in Sydney or Melbourne or Brisbane or the Gold Coast or Perth.’

1.4 The bill relates to two new visas, which are being introduced through delegated legislation, the Migration Amendment (New Skilled Regional Visas) Regulations 2019 [F2019L00578]:

 Subclass 491 - Skilled Work Regional (Provisional) Visa for skilled people who are nominated by a state or territory government or sponsored by an eligible family member to live and work in regional Australia; and

 Subclass 494 - Skilled Employer Sponsored Regional (Provisional) visa, enabling an Australian business to sponsor skilled workers to work in their business in regional Australia.

1.5 Visa holders will be required to live in regional areas for three years, after which they will become eligible for a permanent visa.

1.6 While the Government argued that its new visas and associated population measures will decrease congestion, it has failed to explain in detail how the 23,000 new visa holders per year settling in regional Australia will be supported.

1.7 The New Skilled Regional Visas (Consequential Amendments) Bill makes consequential amendments to legislation administered by various Departments including: the Department of Social Services, the Department of Education and the Attorney-General’s Department.

1.8 These Acts are amended by the bill:

 A New Tax System (Family Assistance) Act 1999  Disability Services Act 1986  Fair Entitlements Guarantee Act 2012  Higher Education Support Act 2003  National Disability Insurance Scheme Act 2013  Paid Parental Leave Act 2010  Social Security Act 1991.

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1.9 The bill gives effect to Government policy that holders of provisional skilled regional visas - which come into effect on 16 November 2019 - will have access to welfare payments or government services as if they are holders of permanent visas in line with arrangements currently applicable to permanent residence visas.

1.10 The Government claims that these new visas, with associated benefits, will encourage visa holders to remain in regional Australia, which in turn will bolster local communities and enhance local economies.

1.11 However, as with many aspects of this Government’s migration policies, how the visas will apply in practice remains unclear. There is a serious risk that the broader immigration and regional policy goals will be undermined by poor governance.

1.12 The Government must explain what services and infrastructure, as well as social support networks, will provided for regional communities that experience an increase in migrant populations.

1.13 Given this Government’s track record - and the Minister for Home Affair’s general mismanagement of his Department and his obsession with obtaining partisan political advantage - Labor Senators wonder if, and how, these visas will ever be implemented properly. Proper implementation and administration of these arrangements is vital for the visa holders themselves, their new communities, and the integrity of Australia’s immigration system.

1.14 Although the bill makes amendments to seven pieces of legislation, a significant number of the submissions are from stakeholders in the higher education sector and they raise concerns about how these changes will impact the Higher Education Support Act 2003. On this basis, Labor Senators will focus our additional comments on this part of the Bill as a case study.

Threat to Australia’s international education reputation 1.15 In 2018, there were 869,709 international student enrolments in Australia, of whom only 3 per cent of the enrolments were in regional Australia.1 The international education market contributed $36 billion to the Australian

economy in 2018.2

1.16 Australia regional universities have always struggled to increase their offering to the international student market. The Government’s own consultation paper, Growing International Education in Regional Australia, acknowledged that

1 https://internationaleducation.gov.au/research/research-snapshots/pages/default.aspx

2 https://www.afr.com/policy/health-and-education/india-nepal-and-pakistan-rated-high-risk-for-universities-20191003-p52x9g

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there is a perception that regional institutions have limited course offerings and are placed much lower in international rankings.3

1.17 Nothing in this Bill will address these core issues facing regional universities.

1.18 Maintaining high standards and achieving a reputation for excellence mean everything in international education. Australia is highly regarded internationally as a quality provider of education, so any changes that may affect the international education system must be carefully considered and carefully implemented.

1.19 Since the Coalition Government’s funding freeze ended the demand-driven system, Australian universities have been forced to turn to the international student market to balance their budgets.

1.20 It has been reported that RMIT University generates 40 per cent of its total revenue from international student fees, and that some of the elite research-intensive Group of Eight universities generate about 35 per cent of their total revenue by the same means.4 However, some sector experts believe these figures are understated.

1.21 With China, India and Nepal making up close to 50 per cent (see below) of the international student market, any change in geopolitical circumstances could place Australian universities in dire straits.

5

3 https://internationaleducation.gov.au/News/Latest-News/Documents/Consultation%20Paper%20-%20Growing%20International%20Education%20in%20Regional%20Australia.pdf

4 https://www.smh.com.au/national/the-universities-which-rely-most-on-international-students-for-cash-20190823-p52k4m.html

5 Department of Education, Monthly summary of international student enrolment data July 2019.

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1.22 Labor Senators also stress their concern that there has been no advice from the Department of Home Affairs about resourcing compliance for the two visa subclasses. This is raised in the context of the growth in student numbers from the Asian sub-continent, and the media reports that the Department Home Affairs has raised the student visa risk status of India, Nepal and Pakistan from medium to high, due to fears of fraud, visa cancellations and visa holders becoming unlawful non-citizens. 6

1.23 Labor Senators acknowledge that these media reports are consistent with the Department of Home Affairs policy manual which states that the risk ratings should be updated every six months in March and September, but also note that the manual states that the immigration risk rating should not be disclosed.

1.24 The proposed new arrangements which encourage holders of subclass 491 and 494 visas to settle in regional Australia also pose another possible risk for Australia’s higher education system. The risk is if international students’ decisions on where to study are driven by visa issues rather than education choices. Australia has seen the consequences of these imbalanced incentives previously in 2009 which prompted a focus on quality assurance.

Overreliance on delegated legislation 1.25 Labor Senators note that (at the time of writing) the Migration Amendment (New Skilled Regional Visas) Regulations 2019 [F2019L00578], which create the two new visa sub classes, were subject to a notice of motion to disallow the

instrument while the Senate Standing Committee on Regulations and Ordinances seeks further advice from the Minister.

1.26 Labor Senators reiterate that significant changes to the law (including significant changes to Australia's migration regime) should generally be enacted via primary, not delegated legislation.

1.27 This bill once again highlights this Government’s reliance on delegated legislation. Neither the establishment of the visas themselves, nor the locations at which they will apply are actually part of the legislation but are instead subject to change by the Minister through regulation.

1.28 The Committee on Regulations and Ordinances has already raised concerns with the Minister about:

 the imposition of fees (taxation);  the inclusion of significant matters in delegated legislation; and  merits review.

1.29 It is in this context that Labor Senators note that the Legal and Constitutional Affairs Legislation committee’s recommendation to pass the bill is subject to

6 https://www.afr.com/policy/health-and-education/india-nepal-and-pakistan-rated-high-risk-for-universities-20191003-p52x9g

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resolution of the motion to disallow the Migration Amendment (New Skilled Regional Visas) Regulations 2019.

Definitions of Regional Australia leaving the system open to rorting 1.30 Labor Senators note the concerns raised by members of higher education community about the inconsistency in how the Minister has defined - by legislative instrument - what is a “designated regional area”.

1.31 Labor Senators are concerned that this change may not be driven by the needs of students or with the aim of improving the quality of education in the regions, but by the prospect of directing funding to a region for base political purposes.

1.32 Griffith University raised concerns in their submission to the committee that:

Three State Capital Cities, Adelaide, Darwin and Hobart as well as the national capital, Canberra, are considered regional for the purposes of Skilled Regional Visas that include International Students. It is particularly difficult to comprehend why Adelaide, with a population of 1,315,346 more than twice that of the Gold Coast's 663,321 according to 2018 data, is considered Regional over the Gold Coast.7

1.33 The Australian Technology Network of Universities (ATN) also raises concerns with the Minister’s definition:

ATN notes that the regional/rural classification creates some inequalities in relation to Perth being excluded from the definition, while areas such as Canberra, Adelaide and Wollongong would be included. Perth is considered one of the most isolated cities in Australia and as a consequence has been at considerable disadvantage in relation to attracting international student s to the state. A reconsideration of this classification would assist in addressing this matter.8

1.34 Labor Senators are concerned about the arbitrary way in which the Minister has made this definition and that it may be made more arbitrary in future, with further regulatory changes by the Minister.

1.35 Past actions by this Government have seen university campuses in suburban areas defined as regional and eligible for extra Commonwealth funding. A notable example of this is Federation University Australia’s Berwick campus, which is located only 40km south east of the Melbourne city centre; however in 2018 the campus received $40.7 million of a $92.5 million program that was designed to support more students at five regionally focused universities over four years.9

7 Griffith University, Submission 18, p. [1].

8 Australian Technology Network, Submission 9, p. [2].

9 https://ministers.education.gov.au/tehan/more-support-regional-students

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1.36 Other funding recipients included: Caboolture and Fraser Coast campuses of the University of the Sunshine Coast (QLD), Central Coast Medical School and Research Institute of the University of Newcastle (NSW), Central Queensland University (QLD) and James Cook University (QLD). Almost all of these university campuses at the time were located in marginal Coalition-held seats.

1.37 Yet again, these changes appear to be a political fix to the Coalitions internal divisions.

1.38 Labor Senators also note the concerns raised the National Tertiary Education Union (NTEU) that these changes are not only open to rorting but also worker exploitation if left unchecked:

The two provisional skilled visas referred to in this Bill - that is, the Skilled Work Regional (Provisional) (Subclass 491) visa and the Skilled Employer Sponsored Regional (Provisional) (Subclass 494) are specifically created for regional and rural areas, where evidence has shown the risk for worker exploitation to be particularly high. This is of particular concern because, as noted, the current provisions to deal with exploitation of temporary workers have proven to be ineffective.10

No plan to maintain a regional workforce 1.39 Labor Senators acknowledge the concerns raised by the ATN and Rural Councils Victoria that the Government has not presented a plan or long-term strategy on how to encourage visa holders to remain in regional communities

after the prescribed three year waiting period is over.

Transfer of existing exemptions for Australian universities 1.40 The Government’s botched 457 visa program reforms in 2017 resulted in it being besieged by industry because of unintended impacts, especially in the scientific and research sector. The sector is acutely aware of any changes that

may impact educators, innovators and researchers of global standing in science, medicine, academia, research and technology here in Australia.

1.41 Labor Senators note the recommendation in the Joint University Submission which calls for the existing exemptions that apply to the Employer Nomination Scheme (Subclass 186) and the expansion to the existing exemptions in relation to Age, Skills Assessment and Work experience requirements for Australian University sponsors for professional and managerial positions be made available to the two new visa sub classes.

1.42 More generally, Labor Senators note Universities Australia advice to the committee:

UA advises caution when finalising the settings for these visas to ensure that the conditions associated with the new skilled regional visas are not so restrictive as to act as a deterrent to potential visa applicants. Visa settings

10 NTEU, Submission 4, p. [5].

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which do not provide a degree of flexibility to allow for changes in individual personal or professional circumstances may be

counterproductive.11

Conclusion 1.43 Labor Senators are concerned that the Government has failed to understand the complexity of the issues that must be considered when making even minor changes to visas that affect Australia’s international education system.

1.44 Labor Senators understand that because these issues are so complex there can be no quick fix. But the reputation and high standards of Australia’s international education system must not be put at risk for base political purposes.

1.45 Labor Senators support the aim of this Bill and the policy intent behind the new skilled regional visas. However, in their current form, the visas and consequential amendments to legislation are ill-considered and poorly defined. Unless the Government addresses the concerns raised by the education sector and others in relation to the new visas, the visas could have serious unintended consequences.

Senator the Hon Kim Carr Senator Anthony Chisholm

Labor Senator for Victoria Labor Senator for Queensland

11 Universities Australia, Submission 10, p. [1].

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Australian Greens additional comments

1.1 The Australian Greens thank everyone who made a public submission to this inquiry.

1.2 The Australian Greens broadly support the New Skilled Regional Visas (Consequential Amendments) Bill 2019 (the Bill) and its purpose.

1.3 Experience from across Australia shows that migrants are welcomed into regional areas, and become valued members of their communities, contributing to local economies, and bringing invaluable professional and personal skills and experiences to their areas.

1.4 However, any policy to encourage new migrants to settle in regional areas must be backed up with extra support to ensure migrants can be supported in their new homes. Regional and personal circumstances can change: employers or industries might shift or shut down, and medical people might need to move for medical reasons.

1.5 This Bill will make amendments to various legislation in the Social Services, Education, and Attorney-General’s portfolios, which will provide holders of new provisional skilled regional visas with access to social security payments and certain government services on the same terms as permanent visa holders. Providing these welfare safety nets for provisional visa holders will help support new migrants through unforeseen changes in circumstances by, as submitted by the Australian Local Government Association, helping:

…ensure adequate support to visa holders and thus take potential pressure off councils which often have to fill service gaps when these services are not otherwise available to members of their community…[and] will encourage visa holders to move to and remain in regional Australia, which will enhance the social and economic fabric of these communities.1

1.6 While providing certain welfare safety nets for provisional skilled regional visa holders, this Bill will also take some of those same welfare safety nets - disability services - from ‘non-protected’ Special Category Visa (SCV) holders. These SCVs are for people who migrated to Australia from New Zealander after 26 February 2001. As these New Zealanders migrated to Australia with these benefits, the Australian Greens believe they should be retained.

Recommendation 1

1.7 That disability services referred to by schedule 1, item 7 of this Bill be grandfathered for all Special Category Visas issued prior to enactment of this Bill.

1 Australian Local Government Association, Submission 3, p. [1].

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1.8 Welfare safety nets are just one of the many supports new migrants and their new local communities will require to ensure regional migrant settlements are successful. Government investment in schools, hospitals, and other infrastructure will be required to ensure appropriate education, health and other services are in place. As submitted by the Australian Multicultural Council, there is still a need for:

…a comprehensive regional policy to support the settlement of migrants in rural and regional communities, ensuring not only employment but the right employment, as well as strong futures for children of migrants in regional Australia.2

1.9 This comprehensive regional policy would also include protection of worker rights. Worker rights must be managed to ensure skilled migrants are not exploited. As submitted by the National Tertiary Education Union, research shows temporary workers in Australia can be subjected to:

…underpayment of wages and superannuation, including being forced to pay back wages; abuse ranging from psychological to physical; threats of deportation if complaints are made or workers join unions; [and] being forced to live in sub-standard conditions.3

Recommendation 2

1.10 That the Government develops a comprehensive regional policy to support the settlement of migrants in rural and regional communities, which considers, inter alia, the needs of employees, employers, industries, public services and infrastructure, and broader regional communities.

Senator Nick McKim Greens Senator for Tasmania

2 Australian Multicultural Council, Submission 11, p. [1].

3 NTEU, Submission 4, p. [2].

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Appendix 1

Submissions and answers to questions on notice

Submissions 1 Far North Queensland Regional Organisation of Council 2 Migration Alliance 3 Australian Local Government Association 4 NTEU

5 Bond University 6 Rural Councils Victoria 7 La Trobe University 8 Australian Chamber of Commerce and Industry 9 Australian Technology Network 10 Universities Australia 11 Australian Multicultural Council 12 Mr Jeff McDermid FAICD FCA 13 Charles Sturt University 14 The Australian National University, Central Queensland University, Charles

Sturt University, Flinders University, James Cook University, The University of Adelaide, University of Canberra, UNSW Canberra and The University of Wollongong 15 Adjunct Professor Karine Dupre 16 Northern Territory Government 17 Department of Home Affairs 18 Griffith University 19 William Buck Gold Coast

Answer to Question on Notice 1 Department of Home Affairs - answers to written questions on notice, 4 October 2019 (received 9 October 2019)