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Education and Employment References Committee
Australia's temporary work visa programs

MARES, Mr Peter, Private capacity


CHAIR: Welcome. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. The committee has received your submission. I now invite you to make a short opening statement and, at the conclusion of your remarks, I will invite members of the committee to put questions to you. Is there anything you would like to add about the capacity in which you appear today?

Mr Mares : Yes. I appear in an independent capacity. I am an adjunct fellow at the Institute for Social Research at Swinburne University of Technology, and I have, in my capacity as a researcher and writer and journalist, spent a lot of time thinking and writing about the issues of temporary migration. So that is my capacity here today. And I want to thank the committee for inviting me to speak and also for enabling me to appear at this late time in the day—I had a work commitment, and I am glad I am able to be here late in the day. I appreciate that.

CHAIR: Thank you. Over to you, Senator Sinodinos.

Senator SINODINOS: I did not have many questions. I just wanted to check a couple of things. You are concerned particularly about the plight of people who may have a workplace injury?

Mr Mares : No. I am sorry; I should make my opening statement, if I could, to clarify—

CHAIR: Yes. My apologies.

Mr Mares : I wanted also to commend the committee particularly on the term of reference (h), which is the relationship between 457 visas and any other temporary visas, and this is my particular concern. I addressed some other issues in my submission. But, in order to background it, let me start by saying: I want to talk to some fundamental tenets of a liberal democracy, and that is that those subject to the laws of a nation should have a say in how those laws are developed and administered. They have an obligation to take part in the life of the community through such things as paying taxes and so on, but equally they receive rights as a result of that: rights to have a say in how those taxes are spent, rights to receive protection when they fall on hard times—for example, health care, disability assistance, unemployment benefits and so on—and rights to access to services—child care, education and so on. So the question in relation to temporary migrants is: at what rights do these rights begin to happen? In other words, what is the place of temporary migrants in our liberal democracy? If we take those tenets of liberal democracy seriously, as I am sure you all do, what is the place of temporary migrants in that scheme of things? We might say, 'Okay, if temporary migrants are here for one year, two years, three years or maybe four years, perhaps we don't need to consider these issues,' but what about when they are here for five years, six years, seven years or eight years on a temporary basis? At what point do they belong to the Australian community? At what point do we have to address the issue of their rights and entitlements as members of the community in a moral sense, which leads to a legal question of representation, of membership and so on? So the question here is one of the relationship between temporariness and permanency and time.

A second issue that arises here is that we pride ourselves in Australia on being a successful settler society and that we have a multiculturalism based on citizenship—citizenship-based multiculturalism. We often hold this up as a success story for Australia that sets us apart from other countries that are seen as guest worker societies. That has been a tenet of Australian policy at least since the postwar migration boom after the Second World War period. We continue to operate in the public discourse very much as if that is the migration scheme we have, but in fact over the past 20 years, since the mid-1990s, we have seen the emergence of four main separate visa classes: 457 visas, international student visas, the expansion of the backpacker visa scheme or working holidaymaker scheme, and finally the changed treatment of New Zealanders who arrived after 2001.

So these four things have all happened. They have had their own trajectory, their own momentum and their own dynamic. We want international students partly because it helps fund Australian universities, it is an income stream for the nation, it is a valuable export and so on. We wanted 457 workers initially because we wanted greater flexibility in business migrants and the possibility for corporations to bring in their staff, and it has evolved now into a way of meeting skill shortages in particular areas at particular times. So it has become a component of the labour market. The working holidaymaker program began as an experiential scheme, and we have moved on to it becoming an accessory to the labour market in terms of providing workers for seasonal industries and those sorts of things.

So each has its own dynamic, but the cumulative effect of these four separate visa streams is that we now have a wholly different migration system; it is now on a different footing. We are no longer the settler society we once were, where people would put up their hand and say, 'I'd like to migrate to Australia; these are my skills,' and they would come and find their way. Now people come on a temporary basis and they go through what is called two-step migration, so they are stepping from the temporary scheme into permanent residency. We see large numbers of this. More than 50 per cent of skilled permanent visas are now issued to people who are already onshore on a temporary basis. More than a third of family visas are issued to people who are already here on a temporary basis.

This is good. There are lots of things to recommend two-step migration. For me, the question that we need to address and that I urge the committee to consider is: what happens when these two things get out of step? What happens when there are more temporary migrants in Australia wanting permanent residency than there are places? What I predict to happen is that people will move across different temporary visa categories and they will be here for long periods of time on a temporary basis. They will come here as a student, or they will come as a backpacker and become a student, get a post-study work visa and then get a 457 visa. Before long, they have been here 10 years. At what point do we say they belong to the nation? At what point is it moral for us to say, 'Now you have to leave, because we haven't got a permanent spot for you,' when they have made their home in Australia, invested in Australia and become part of the Australian community?

I have made a number of recommendations. One of these is around data, because we do not know how many people are here for how long on temporary visas. We know the number of people who are here at any one time on a temporary visa and we know how long people have been here since their last date of entry, but that is not the same thing. We know from the immigration department that there are at least 2,000 people who have been here 10 years on a temporary visa since their last date of entry, but there may be more people who came here on one visa and went back—say, they came here on a student visa, went back for a couple of months and then came back on a 457. They would not be counted in that 2,000.

We know there are 18,000 people who have been here eight years or more who first arrived on a temporary visa and who are still on a temporary visa. Again, we cannot say they have all been here all that time, because maybe some went home. Maybe some went home for two or three years. But we can assume that in that 18,000 or 19,000 there is a strong cohort of people who have been here for more than eight years on a temporary visa. We know that from the ABS. There are 46,000 people who arrived on a temporary visa and who are still here on a temporary visa more than six years later.

Already, you have heard a lot from other people about workplace rights and abuses, and I can talk about my views on those if you like. But my overall point to the committee is we need to talk about what kind of migration system we have now, what kind of society we have now. Are we still a settler society? Do we want to have a million people who are on temporary visas—six to nine per cent of the workforce, depending on how you calculate it and if you include New Zealanders who are post 2001 or not—20 per cent of the workforce in the 15-to-25 age bracket? This is a significant number who are here temporarily. What do we do with people who have been here 10 years and still cannot find a permanent place but who belong, in their own hearts and in all sorts of ways—in terms of the tax they have paid and in terms of the commitment they have made to Australia—to the Australian nation? That is enough from me for my opening statement.

Senator SINODINOS: Thank you for giving us the broader context. Why is it that someone who is here for up to 10 years on temporary visas cannot get some sort of preference in terms of the permanent migration program?

Mr Mares : That is because the amount of time you spend in Australia is not a factor in the consideration. Your skills may be a factor, the fact that you studied in Australia may be a factor, but it is no guarantee of a place. It does not count. The length of time spent in Australia does not count towards your—

Senator SINODINOS: To follow on from that, are you suggesting that maybe we amend those criteria?

Mr Mares : It is my recommendation that we would do that. The argument would run like this. We create circumstances in which people can remain in Australia for a very long time. Let me give you a brief example. A representative of Austrade was on PM on ABC Radio National recently talking about this—encouraging the growth of an export market of Chinese students coming to a secondary school in Australia. You come to secondary school with the purpose of getting entry into an Australian university. So you have gone through secondary school, you have gone through university. We now have the revamped 485, which is a post-study work visa. You have done an undergraduate degree and maybe then you have another two years for which you can work in any capacity. By the time you have done this, you have been here a very long time. Unless you have picked the right course, the course you picked may have been one that guaranteed entry to permanent residency, and by the time you finish it maybe it is not anymore. There are all sorts of factors that people can be caught out on.

Another quick example is there is a group called group 5. In 2009, the Labor government introduced what was called priority processing. This was to deal with a massive backlog of qualified applicants for permanent residency. We did not have enough places for them. This came out of the linking of study in Australia and permanent residency that happened in the Howard years. So we had a big backlog. To triage that backlog the government introduced priority processing. Certain visas would be processed before others. Instead of visas being processed in the order in which they were lodged, an orderly queue, we had a selection: 'We'll take this group, this group and this group, and these people, the ones who are the least priority, will go to group 5'. There are people in that group who have been in Australia for more than 10 years, who have had valid applications for permanent residency—

Senator SINODINOS: Is that group 5?

Mr Mares : Group 5 for priority processing. There are close to 3,000 people who have had applications in the system for more than five years and are still awaiting a response from the immigration department. When they approach the immigration department they are told, 'Do not call us; we will call you when we get around to your group.' They have paid thousands of dollars in application fees for a service. They qualified, they met the criteria at the time they applied—and they are stuck. There are another 17,000 of them offshore, another group who have applied from offshore. They have also paid their fees. People who are here, who have made their lives in Australia, cannot get a drivers licence for more than a year, they cannot get a telephone contract for a mobile phone, they cannot buy a house—

Senator SINODINOS: Are you saying that applies to people who have been here a long time?

Mr Mares : I am just saying that applies to people on temporary visas.

Senator SINODINOS: Yes.

Mr Mares : They are on bridging visas, so they put in an application for permanent residency and while they wait they are on a bridging visa. In that time, if they want to go overseas, they have to apply for another visa.

Senator SINODINOS: Yes. Thanks. Following on from that, I have had representations from a group called Oz KiWi. This is to do with New Zealand special category holders post 2001. Is that a big group?

Mr Mares : It is a big group. The figures are hard to break down. The immigration department tell us that there are around 650,000 New Zealanders in Australia at any one time. One hundred thousand or so are likely to be here to watch the State of Origin game, to visit relatives or for business—so discount them. There are a whole lot who came before 2001 who, to all intents and purposes, are permanent residents. They are called protected special category visa holders. But there is a group of 200,000-odd that has been growing—or perhaps it has stopped growing because we have more people going to New Zealand with its economy doing better—and over time is likely to grow who, post 2001, have no clear pathway to permanent residency. Of course they can apply through the skilled stream, but if they are a bus driver or an aged-care worker they are never going to get there that way, and their children are in the same category. If they have a child born here, when that child reaches the age of 10 that child becomes an Australian citizen. If they bring their baby with them at the age of one month old, they never become Australian citizens unless they can jump through the hoops or they marry an Australian or something like that. To me this is a deeply problematic situation. These people are permanently temporary or indefinitely temporary at least.

Senator SINODINOS: Yes.

Mr Mares : Their visa is officially categorised as a temporary visa by the immigration department, even though it allows an indefinite stay. They will never vote and they will never run for office. They pay taxes and they do have access to Medicare, but they do not have access to Centrelink, apart from a very limited six-month window after 10 years. They have to pay full up-front fees for their students to go to university and they pay for the National Disability Insurance Scheme but they cannot access the National Disability Insurance Scheme. I think it is a problem that, as a nation, we need to address.

Senator SINODINOS: Finally, one of your recommendations is around the Fair Entitlements Guarantee Act 2012.

Mr Mares : Yes.

Senator SINODINOS: At the moment that does not apply to people who are here on these temporary visas.

Mr Mares : The Fair Entitlements Guarantee Act 2012 applies to citizens of Australia, permanent residents or special category visa holders. So it applies to New Zealanders, but it does not apply to international students, it does not apply to 457 visa holders and it does not apply to backpackers.

Senator RICE: Thank you, Peter. That is a really interesting analysis of what is going on. I would be interested in your thoughts and recommendations of which way we should go. It seems to me we obviously have a current problem with these 10,000 people—or whatever the number was—having been here for more than 10 years. So, what do we do with them? Then, so that we are not continuing to add to that problem, what do we do in the future? To me it is either as simple as we have to reduce the number of temporary visas that we offer or we have to acknowledge that we have to have a larger number of permanent visas to get over that problem.

Mr Mares : I think that is the case. If we do not want our permanent and temporary programs to get out of step—and I do not think they are hugely out of step at the moment, but I think there is the likelihood they will be because we keep adding to the temporary visa categories. The 485 visa, the post-study work visa, is a case in point. It enables students to stay on and work after study—we did that to make our universities more attractive to international students. So, if we do not want the two to get out of step, we have a range of options: the first—as you have suggested Senator—is to say that we need to cap temporary migration so that it sits in a reasonable relationship to permanent migration. Of course, not all temporary migrants want to stay; many will just come to study and go home or work for four years and go home.

Senator RICE: But our experience would allow us say that there is this percentage or whatever.

Mr Mares : We have enough experience now to be able gauge that. That is right. That does not mean that everyone who comes necessarily should become a permanent resident, but if we create mechanisms for them to stay beyond, say, eight years, then I think we have built up a moral obligation to them that needs to be reflected in a legal solution which enables them to become members of the community in a legal sense as well as having a sense of belonging.

If we think temporary migration is so valuable to us that we do not want to cap the numbers of students, 457 visa holders or working holiday-makers, and we want to allow people to move regularly between these categories, then we are creating the conditions in which people will be here for long periods of time. We have to recognise that and we have to say, 'Here's a pathway to permanent residency,' and we have to deal with the New Zealanders as well. That will mean expanding the number of permanent places. There is an additional issue here, which is that if we say, 'Okay, after eight years you're in!' then we create an incentive to stay for eight years.

Senator RICE: Stick around and do whatever you can to stay.

Mr Mares : So this is a very problematic area in terms of setting up expectations and incentives.

But we do this all the time. As I said, we have a system in law in which we recognise that a child born here to someone who is a permanent resident or citizen is automatically a citizen themselves, but a child born here to someone on a temporary visa, or a New Zealander born in Australia, becomes a citizen after 10 years. In other words, we have said, 'If you are a child born here, after 10 years, you become Australian.'

Why just for the child? Why just for a child who is born here? Why not for someone who comes here at the age of one week, two weeks, three weeks, two years or four years old? Why do we make this distinction? If we are saying that 10 years marks a point, why do we say it just for someone who is born here and not for someone who has lived here for that very important part of their life, say, from the age of 12 to 22? They are very significant, formative years. Another way to conceive of it might be to say, 'Actually, we look at the proportion of your life spent in Australia'. Okay, that is much messier in policy terms, because if you have been here for eight years from 42 to 50 it is different to being here for eight years from 12 to 20.

Senator RICE: The other thing I would like to explore is that you talked about the need for better data. Can you expand on what sort of improved data you think is necessary?

Mr Mares : The key for me is that the way the data systems work in the immigration department at the moment—and I understand why—is that they do not track someone according to how long they have been on a series of temporary visas. They can track the individual in that way, but they do not measure the data that way. So the data they will give you is of temporary migrants in terms of their last arrival: when they were stamped at the border—well, they are not stamped anymore, it is when they were last put into the data system at the border. So when you ask, 'How many have been here on a series of temporary visas?' they cannot answer that question. They say, 'That would be a huge amount of work!' and I understand that; they are a busy department and they have a lot to do. There are ways, possibly in combination with the ABS and their migrant surveys, that this problem could be solved so that we could get at least a better estimation, if not an absolute number—a much closer estimation through the census.

CHAIR: It is interesting, your point about needing to be mindful that the temporary pool does not get out of step with the permanent pool. If the department does not track the temporary visas, is there potential for that 'out-of-step' to become a 'creeping' problem?

Mr Mares : I think it is that we do not know how big this problem is. There are two issues here. We know that there are at least 2,000 people who have been here on temporary visas, since their date of last arrival, for at least 10 years. We know that there are 18,000 people who have been here for eight years or more who arrived on temporary visas and who are still on temporary visas.

These are not huge numbers, but temporary migration is a new phenomenon and it has only been going for 20 years. So my prediction would be that this group is going to grow because permanent migration is capped and temporary migration is open and we keep increasing the capacity for temporary migration. We find new ways because there are all sorts of interests that are met through that. If we have good reason to do it, it is well and good. But then we create this other emerging issue.

The other thing I would say is that there are only 2,000 who have been here more than 10 years, but we do not look at rights in that way, do we? We do not look at rights in terms of numbers; we look at rights in terms of individuals. Those 2,000 people—maybe they do not want to be permanent. I do not know. But I do know people who have been here a long time who want to be permanent and who are deeply distressed by being in a kind of limbo.

CHAIR: The other point you made, which I do not want to take out of context, was about an aged-care worker here on a temporary visa is never going to get to permanent residency through that track, yet it seems to me that that is the very person who probably does want to get to permanent residency.

Mr Mares : I was referring there to New Zealanders, whose, post 2001, only pathway to permanent residency, if they were not married to an Australian would be through the skilled migration program. If they are in a low-skilled job that may be very in need of workers, they will not necessarily ever amass the points for permanent residency.

CHAIR: That also is then an element of unfairness because of their work category they find themselves in.

Mr Mares : I think the element of unfairness here is that we invite New Zealanders to come and live indefinitely, and then we do not have a pathway for them to become a permanent residents. My view is that, fundamentally back to the tenets of liberal democracy, if someone contributes to the society, if they live under the laws of the society, if they pay the taxes of the society, they have a right to also have a voice in the forming of those laws and in saying how those taxes are spent. This is a fundamental tenet of liberal democracy. Where do these New Zealanders, who are indefinitely temporary, fit? I think that is a problem we have to resolve if we are going to be consistent in our adherence to the principles of liberal democracy.

CHAIR: As you say, I suppose the challenging area in this temporary category is, as you point out, that so many people come into the different reasons. Some want to stay and some want to maybe go home and come back. The reasons for them coming are different and varied. Is that why you think that length of time is, kind of, the fairest way to judge rather than reasons? You made the point that someone can come here as a student, and some come here as primary school students. They do all of their schooling in Australia and have spent most of their life here at that point.

Mr Mares : I do think that time makes a difference. I am drawing on the work of a Canadian political philosopher Joseph Carens who talks about this. Time has a moral impact when it comes to our relationship to the nation in which we live. This is reflected in a comment from Scott Morrison when Mr Morrison was the opposition spokesperson for immigration, but nevertheless I could find comments from the Labor side. He said:

When we arrive in this country, we become part of it—and it becomes a part of us—it becomes what [Sir Henry] Parkes described as 'the land of our adoption'. It changes us—and in doing so it provides the basis for our connection with one another.

This is the fundamental process of work here. Over time, the more time you spend in the country, the more you are invested in it psychologically, financially and emotionally, and also the more it has invested in you and the more you become Australian. That does not mean that people should be automatically allowed to stay. If we create circumstances in which people can stay for very long periods of time, then we have to address what we have done and say, 'Well, actually, we've enabled this person, through our sets of laws—we didn't think that's what we were doing maybe. It wasn't what we planned to do. But this is what's happened.' We have created a system under which people can remain for a decade or more and, now, we have an obligation to them.

CHAIR: Are you suggesting that for a temporary category, regardless of the reason people come here, we should have some kind of policy setting?

Mr Mares : Yes, length of time. I am suggesting we have this as a save for children born in Australia. We have a 10-year window and we say, 'After that you become Australian even though your parents were not permanent residents or citizens'. There is no logic to that 10 years. It could be eight, it could be six, it could be five. It is a political decision essentially. I guess I am urging the committee to think about this as a political matter that we need to resolve. If we enable people to stay indefinitely, we have to resolve their status at some point.

Senator McKENZIE: I only have one question. I have just come back to the UAE where you have, I guess, an incredible state. It is not a liberal democracy by anyone's standards, but it is a very stable, safe society and a very diverse society where you have upwards of six million people supporting the lifestyle of the 700,000 citizens. You could be living and working and having your children educated, et cetera, in that society for 30 or 40 years. I met Indians who have been there their whole adult lives and still see themselves as Indian and will eventually return home because they were never going to be granted citizenship.

Mr Mares : That is exactly my point, Senator. They are never going to be granted citizenship. They have no choice in the matter.

Senator McKENZIE: Is everyone happy about that, Mr Mares, is what I am saying? There was no distress there.

Mr Mares : Senator, I know people who are deeply unhappy about the fact that they are half welcome to Australia, that they are kind of quasi-Australian. It comes back again to our conception of ourselves. We are a liberal democracy. I will say again—and I do not want to lecture senators on liberal democracy—that one of the tenets of a liberal democracy is that, if you live and abide by the laws of the state, you should have a say in the framing of those laws, the shaping of those laws, the administering of those laws. If you pay taxes, you should have a say in how those taxes are spent. This is a fundamental tenet of our liberal democracy. We abandon it at our peril.

The other thing I will emphasise again. We celebrate the fact that we are citizenship based multicultural society, and this is our great success story. We celebrate it all the time. If we are moving to a different model of multiculturalism, temporary based multiculturalism, we have to ask ourselves: 'What obligations can we expect of temporary migrants to the Australian nation, if we do not embrace them, if we give them this half-hearted embrace? That is my point, Senator.

Senator McKENZIE: That is a good point. Well made.

CHAIR: Thank you very much, Mr Mares. You have certainly raised some interesting questions for us to think about, and we certainly appreciate your submission and your evidence today.

Mr Mares : Thank you very much inviting me.

CHAIR: That concludes today's proceedings. I thank all witnesses who have given evidence to the committee today. Thank you also to Hansard, Broadcasting, the secretariat and the senators. I declare the hearing adjourned.

Committee adjourned at 16:32