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House of Representatives

Social Services and Other Legislation Amendment (Australia's Engagement in the Pacific) Bill 2023

Explanatory Memorandum

(Circulated by authority of the Minister for International Development and the Pacific, the Hon Pat Conroy MP)

OUTLINE

The Social Services and Other Legislation Amendment (Australia's Engagement in the Pacific) Bill 2023 (the Bill) amends legislation to give effect to the Government's commitment to introduce a new Pacific engagement visa, and to support implementation of family accompaniment under the Pacific Australia Labour Mobility (PALM) scheme. Both initiatives are central to Australia's engagement with the Pacific and Timor-Leste and efforts to deepen links between Australia and the Pacific family.

The Bill extends supports and benefits to holders of Pacific engagement visas beyond the usual supports provided to permanent residents upon arrival in Australia, reflecting Australia's special relationship with the Pacific and Timor-Leste. The measures outlined in the Bill will help remove barriers to work and study for lower skilled applicants and ensure holders of Pacific engagement visas have access to benefits to support the cost of raising a family and engaging in education and training. These measures will improve long-term settlement outcomes, provide opportunities for career development and economic mobility, and deliver a skills and education dividend for the region.

The Bill also supports the Government's objective to expand and improve the PALM scheme, including the Government's commitment to introduce family accompaniment for PALM scheme workers on long-term placements (one to four years). This includes those on a subclass 403 (Temporary Work (International Relations)) Pacific Australia Labour Mobility stream visa (PALM visa) and those on the (now repealed) subclass 403 (Temporary Work (International Relations)) Pacific Labour Scheme stream visa (PLS visa). The proposed amendments provide access to benefits that will assist participating families with the cost of raising children and will support a positive experience for families in Australia.

In support of the Pacific engagement visa, the Bill will:

amend the A New Tax System (Family Assistance) Act 1999 to provide an exemption to the newly arrived resident's waiting period for Family Tax Benefit (FTB) Part A for holders of Pacific engagement visas;
amend the Higher Education Support Act 2003 (HESA) to extend the Higher Education Loan Program (HELP) to holders of Pacific engagement visas;
amend the Social Security Act 1991 to provide an exemption to the newly arrived resident's waiting period for holders of Pacific engagement visas for Youth Allowance (student), Youth Allowance (apprentice) and Austudy; and
amend the VET Student Loans Act 2016 to extend eligibility to holders of Pacific engagement visas.

In support of the PALM scheme, the Bill will:

amend the A New Tax System (Family Assistance) Act 1999 to enable eligible PALM scheme workers and their families in Australia under the family accompaniment policy to access FTB Parts A and B (and associated benefits) and the Child Care Subsidy (CCS).

Pacific Engagement Visa

The Pacific engagement visa is a substantive expression of the value Australia places on its relationship with the Pacific family and has been designed in close consultation with Pacific partners to ensure it meets shared needs and priorities. It seeks to deepen Australia's connections to the region by growing the diaspora in Australia with ongoing links to their home countries, strengthening people-to-people links, and encouraging greater cultural, business, investment and educational exchange. The Pacific engagement visa will help address the underrepresentation of some of our closest neighbours in Australia's permanent migration program by creating new opportunities for eligible nationals of Pacific island countries and Timor-Leste to live, work and study in Australia.

Each year up to 3,000 visas, inclusive of partners and dependent children, will be allocated across all participating countries through a random, electronic ballot process. Passage of the Migration Amendment (Australia's Engagement in the Pacific and Other Measures) Bill 2023 and Migration (Visa Pre-application Process) Charge Bill 2023 are necessary to enable a ballot to be used for the Pacific engagement visa. Following the passage of these Bills, the Pacific engagement visa will be established as the subclass 192 visa through amendments to the Migration Regulations 1994 (the Migration Regulations).

The ballot process is an important mechanism to ensure equal and transparent access to the visa, regardless of skill level or gender. To register for the Pacific engagement visa ballot, a person will need to have been born in or have a parent who was born in a specified country, hold a valid passport issued by a participating country in the ballot, not be a citizen of New Zealand, and be aged between 18 and 45. Those drawn in the ballot will then be able to apply for a Pacific engagement visa and include their partner and legally dependent children in their application. Visa applicants will also need to provide evidence of an ongoing job offer in Australia, meet basic English language requirements, and satisfy standard Public Interest Criteria including health and character, in order to be granted a visa.

A key measure of success will be growth of a flourishing Pacific diaspora in Australia, with opportunities for skills development, career progression and economic mobility. Removing barriers for lower skilled applicants is an important priority for Pacific partners. To deliver on these objectives, additional supports have been identified and will be provided through the Bill. These supports will maximise opportunities for holders of Pacific engagement visas from a range of backgrounds to access the program and have a positive settlement experience in Australia.

This Bill amends the newly arrived resident's waiting period provisions in the A New Tax System (Family Assistance) Act 1999 and the Social Security Act 1991 to enable holders of Pacific engagement visas immediate access to FTB Part A, Austudy, Youth Allowance (student) and Youth Allowance (apprentice). The newly arrived resident's waiting period restricts a person's access to a social security or family assistance payment for defined periods, depending on the payment. Exemptions to the application of the newly arrived resident's waiting period apply in certain circumstances prescribed in social security and family assistance law. This Bill introduces exemptions to the newly arrived resident's waiting period for holders of Pacific engagement visas to enable them to access these payments upon arrival in Australia, subject to meeting all other eligibility requirements.

The Bill also extends access to the Higher Education Loan Program (HELP) and VET Student Loans (VSL). Access to student loans for tertiary education and vocational training, coupled with financial assistance while studying and training (Youth Allowance (student and apprentice) and Austudy), will broaden the scope of participation across a range of skill levels. This will ensure Australia does not drain the Pacific of skilled workers and is contributing to an overall 'brain gain' and skills dividend for the region.

PALM scheme

The PALM scheme is central to Australia's relationship with Pacific island counties and Timor-Leste. It develops skills, addresses youth unemployment and supports economic integration of our region.

The PALM scheme allows employers to recruit workers from select Pacific countries and Timor-Leste for short term/seasonal work placements of up to nine months, and long-term placements of one to four years. All PALM scheme workers, including both short- and long-term, are granted a PALM visa. There are other streams within this visa subclass for persons not participating in the PALM scheme. There are also long-term PALM scheme participants on the now repealed PLS visa.

The Government has committed to expanding and improving the PALM scheme, including through a policy of family accompaniment for workers on long-term placements. This will reduce the social impacts of extended periods of family separation. The roll-out of family accompaniment will commence initially with a pilot including a limited number of families.

PALM scheme workers on long-term placements will need to meet additional program criteria to be eligible to bring their families to Australia, particularly in the initial stage. This may include the worker having already spent a period of time in Australia prior to their family arriving, a work contract with at least 12 months remaining, and proximity to education for dependent children.

This Bill will amend the residency requirements and newly arrived resident's waiting period provisions in the A New Tax System (Family Assistance) Act 1999 to enable PALM scheme workers to access FTB and related benefits and CCS. Among other things, to qualify for FTB and CCS, a person must satisfy residency requirements. Most temporary visa holders, including those on PALM visas do not currently meet these requirements. These requirements will be amended by this Bill to include subclass 403 visa holders who are PALM scheme participants (or family members of a PALM scheme participant), and who meet certain conditions as specified by legislative instrument. This will enable these visa holders to qualify for FTB and CCS, subject to meeting all other requirements.

The conditions specified by legislative instrument will include that the individual has been approved by the administering department to bring family members to Australia under the family accompaniment policy (or is the family member of such an individual). These conditions are to be specified by legislative instrument, rather than in the Bill, to ensure they appropriately reflect program settings for the family accompaniment policy and/or associated changes to the Migration Regulations 1994 (the Migration Regulations), allowing for the PALM visa to be granted to family members.

The initial stage of the family accompaniment policy will include a small cohort of around 200 families. Participants will be selected in accordance with program criteria that will be utilised to limit the numbers approved. The initial stage of family accompaniment will allow program settings to be tested and adjusted over time to ensure the policy is delivering on its objectives and resulting in a positive experience for families. The use of a legislative instrument will provide flexibility to accommodate future non-substantive changes to the program settings or the Migration Regulations that will need to be passed onto the eligibility requirements for FTB and CCS for PALM scheme participants and family members.

The newly arrived resident's waiting period provisions in the A New Tax System (Family Assistance) Act 1999 will also be amended so that eligible PALM scheme participants are subject to a newly arrived resident's waiting period for FTB Part A from when they first become a PALM visa, or PLS visa holder. Noting PALM scheme participants will have already spent a period of time in Australia in order to be eligible for family accompaniment, they will generally have already served the newly arrived resident's waiting period for FTB Part A prior to their family arriving.

Extending access to FTB and CCS for this cohort will support the objective of ensuring families of PALM scheme participants have a positive experience in Australia. These measures will provide financial assistance to families of PALM scheme workers while they are raising children in Australia and reduce barriers to workforce participation by family members. PALM scheme workers are often engaged in lower skilled and lower wage roles than other temporary workers. Without this support, families reunited in Australia through family accompaniment may face hardship that could jeopardise the success of their work placement and the objectives of the family accompaniment policy.

FINANCIAL IMPACT STATEMENT

Pacific Engagement Visa

The amendments in Schedule 1 have a financial impact of $66.9 million over 4 years from 2022-23.

PALM scheme

The amendments in Schedule 2 have a financial impact of $24.3 million over 4 years from 2022-23.

There are likely to be savings as the programs are commencing later than previously costed.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the Bill and assesses that the Bill is compatible with Australia's human rights obligations. A copy of the Statement of Compatibility with Human Rights is included in the Attachment .

NOTES ON PROVISIONS

Section 1 Short title

1. Section 1 of the Bill provides for the short title of the Act to be the Social Services and Other Legislation Amendment (Australia's Engagement in the Pacific) Act 2023.

Section 2 Commencement

2. Section 2 of the Bill sets out the commencement dates of the provisions of the Act.

3. Subsection 2(1) provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

4. Table Item 1 of subsection 2(1) provides for Sections 1 to 3 and anything in this Act not covered elsewhere by this table to commence the day this Act receives the Royal Assent.

5. Table Item 2 of subsection 2(1) provides for Schedule 1 to commence on the later of the start of 1 February 2024 and the commencement of the Migration Amendment (Australia's Engagement in the Pacific and Other Measures) Act 2023. However, the provisions do not commence at all if the event mentioned in paragraph (b) does not occur.

6. Table Item 3 of subsection 2(1) provides for Schedule 2 to commence on the later of 1 October 2023 and the day after this Act receives the Royal Assent.

7. The guiding note following the table in subsection 2(1) makes clear to the reader that the table relates only to the provisions of this Act as originally enacted, and that it will not be amended to deal with any later amendments of this Act.

8. Subsection 2(2) provides that any information in column 3 of the table is not part of the Act. Information may be inserted in this column, or information in it may be edited, in any published version of the Act.

Section 3 Schedules

9. Section 3 of the Bill provides that legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned. In addition, this clause provides that any other item in a Schedule to this Act has effect according to its terms.

10. There are two Schedules to the Bill. Schedule 1 amends the A New Tax System (Family Assistance) Act 1999, the Higher Education Support Act 2003, the Social Security Act 1991 and the VET Student Loans Act 2016 in relation to Pacific engagement visas.

11. Schedule 2 amends the A New Tax System (Family Assistance) Act 1999 in relation to the PALM scheme.

Schedule 1- Pacific Engagement Visa

Part 1 - Amendments

A New Tax System (Family Assistance) Act 1999

Item 1 After subparagraph 61AA(2)(b)(ii)

12. Item 1 inserts new subparagraph 61AA(2)(b)(iia). Paragraph 61AA(2)(b) provides that an individual is subject to a newly arrived resident's waiting period if the individual becomes the holder of a permanent visa, except visas listed in subparagraphs 61AA(2)(b)(i) to (iii). Under new subparagraph 61AA(2)(b)(iia), an individual who holds a Pacific engagement visa is not subject to a newly arrived resident's waiting period. This enables holders of Pacific engagement visas to receive FTB Part A upon arrival in Australia, assuming they meet the relevant qualification criteria in the A New Tax System (Family Assistance) Act 1999.

13. Where the Pacific engagement visa is replaced with another visa in the regulations under the Migration Act 1958, the Minister may determine a replacement visa for the purposes of subparagraph 61AA(2)(b)(iii) by a legislative instrument made under subsection 61AA(2A). Both subparagraph 61AA(2)(b)(iii) and subsection 61AA(2A) are existing provisions in the A New Tax System (Family Assistance) Act 1999. Under subparagraph 61AA(2)(b)(iii), an individual who holds a visa of a kind determined in an instrument under subsection 61AA(2A) is not subject to a newly arrived resident's waiting period for FTB Part A.

Higher Education Support Act 2003

Item 2 Subsection 90-5(1)

14. Items 2 and 3 make amendments necessary to ensure that holders of Pacific engagement visas will meet the requirements to receive HECS-HELP assistance.

15. Subsection 90-5(1) provides that a student meets the citizenship or residency requirements under section 90-5 in relation to a unit of study if the student is an Australian citizen, or a permanent humanitarian visa holder or eligible former permanent humanitarian visa holder who will be resident in Australia for the duration of the unit.

16. Item 2 repeals and substitutes a new subsection 90-5(1) to provide that a student will also meet the citizenship or residency requirements where the student is a Pacific engagement visa holder who will be resident in Australia for the duration of the unit.

Item 3 Subsection 90-5(2)

17. Item 3 will change the reference to 'paragraph (1)(b)' in subsection 90-5(2) to instead refer to 'subparagraph (1)(b)(ii)'. This reflects that the requirement that a student who is a permanent humanitarian visa holder, eligible former permanent humanitarian visa holder or Pacific engagement visa holder must be resident in Australia for the duration of the unit of study to meet the citizenship or residency requirements, is now found in subparagraph (1)(b)(ii) as a result of the amendment made in item 2 of Schedule 1.

Item 4 Subsection 104-5(1)

18. Items 4 and 5 make amendments necessary to ensure that holders of Pacific engagement visas will meet the requirements to enable access to FEE-HELP.

19. Subsection 104-5(1) provides that a student meets the citizenship or residency requirements under section 104-5 in relation to a unit of study if the student is an Australian citizen, or a permanent humanitarian visa holder or eligible former permanent humanitarian visa holder who will be resident in Australia for the duration of the unit; or if the student is undertaking, or is to undertake, the unit as part of a bridging course for overseas professionals, a permanent visa holder who will be resident in Australia for the duration of the unit.

20. Item 4 will repeal and substitute a new subsection 104-5(1) to provide that a student will also meet the citizenship or residency requirements where the student is a Pacific engagement visa holder who will be resident in Australia for the duration of the unit.

Item 5 Subsection 104-5(2)

21. Item 5 will change the reference to 'paragraph (1)(b) or (c)' in subsection 104-5(2) to instead refer to 'subparagraph (1)(b)(ii) or paragraph (1)(c)'. This reflects the requirement that a student who is a permanent humanitarian visa holder, eligible former permanent humanitarian visa holder, or Pacific engagement visa holder, must be resident in Australia for the duration of the unit of study to meet the citizenship or residency requirements, is now found subparagraph (1)(b)(ii) as a result of the amendment made in item 4 of Schedule 1.

Item 6 Paragraph 118-5(1)(b)

22. Item 6 will make amendments necessary to ensure that holders of Pacific engagement visas will meet the requirements to enable access to OS-HELP.

23. Previous paragraph 118-5(1)(b) provided that a student meets the citizenship or residency requirements for OS-HELP assistance if the student is a permanent humanitarian visa holder or eligible former permanent humanitarian visa holder.

24. Item 6 will amend paragraph 118-5(1)(b) to provide that a student will also meet the citizenship or residency requirements where the student is a Pacific engagement visa holder.

Item 7 Paragraph 126-5(1)(b)

25. Items 7 to 9 make amendments necessary to ensure that holders of Pacific engagement visas will meet the requirements to enable access to SA-HELP and the accelerator program.

26. Previous paragraph 126-5(1)(b) provided that a student meets the citizenship or residency requirements in relation to a student services and amenities fee imposed on the student by a higher education provider if the student is a permanent humanitarian visa holder or eligible former permanent humanitarian visa holder who is resident in Australia.

27. Item 7 will repeal and substitutes a new paragraph 126-5(1)(b) to provide that a student will also meet the citizenship or residency requirements where the student is a Pacific engagement visa holder who is resident in Australia.

Item 8 Subsection 128B-30(1)

28. Subsection 128B-30(1) provides that a student meets the citizenship or residency requirement under section 128B-30 in relation to an accelerator program course if the student is an Australian citizen, or a permanent humanitarian visa holder or eligible former permanent humanitarian visa holder who will be resident in Australia for the duration of the accelerator program course.

29. Item 8 will repeal and substitutes a new subsection 128B-30(1) to provide that a student will also meet the citizenship or residency requirements where the student is a Pacific engagement visa holder who will be resident in Australia for the duration of the accelerator program course.

Item 9 Subsection 128B-30(2)

30. Item 9 will change the reference to 'paragraph (1)(b)' in subsection 128B-30(2) to instead refer to 'subparagraph (1)(b)(ii)'. This reflects that the requirement that a student who is a permanent humanitarian visa holder, eligible former permanent humanitarian visa holder or Pacific engagement visa holder must be resident in Australia for the duration of the accelerator program course to meet the citizenship or residency requirements, is now found subparagraph (1)(b)(ii) as a result of the amendment made in item 20 of Schedule 1.

Item 10 Subclause 1(1) of Schedule 1

31. Item 10 will insert the definition of Pacific engagement visa holder in subclause 1(1) of Schedule 1. Pacific engagement visa holder is defined to mean the holder of a visa referred to in the regulations made under the Migration Act 1958 as a Subclass 192 (Pacific Engagement) visa, or a visa of a kind determined under subclause 1(4) of Schedule 1.

Item 11 At the end of clause 1 of Schedule 1

32. Item 11 will insert a new subclause (4) at the end of clause 1 of Schedule 1, to provide that the Minister may, by legislative instrument, determine a kind of visa for the purposes of paragraph (b) of the definition of Pacific engagement visa holder, if the Minister has been advised by the Immigration Minister that it is the opinion of the Immigration Minister that the kind of visa has replaced or will replace the Subclass 192 (Pacific Engagement) visa referred to in the regulations made under the Migration Act 1958, or a kind of visa previously determined under subclause (4), and the replacement kind of visa is intended to give the same benefits as the replaced kind of visa. The detail that is to be included in the legislative instrument is administrative in nature and would not represent a policy shift. For example, a change in the subclass number following a consolidation of visa subclasses or the renaming of the visa could be managed through the making of an instrument. This will ensure that benefits will continue to be available to eligible visa holders in these circumstances.

Social Security Act 1991

Item 12 Subsection 7(1)

33. Item 12 will insert the definition of Pacific engagement visa in section 7 of the Social Security Act 1991, which contains the Australian residence definitions. Pacific engagement visa is defined to mean a visa referred to as a subclass 192 (Pacific Engagement) visa under the regulations made under the Migration Act 1958, or a visa of a kind determined under subsection 7(4C).

Item 13 After subsection 7(4B)

34. Item 13 will insert a new subsection 7(4C) as a consequence of the new definition of Pacific engagement visa in subsection 7(1). New subsection 7(4C) enables the Minister to determine by legislative instrument a kind of visa for the purposes of paragraph (b) of the definition of Pacific engagement visa in subsection 7(1) if the Minister has been advised by the Immigration Minister that, in the Immigration Minister's opinion, the subclass 192 (Pacific Engagement) visa will be replaced by that kind of visa, or a kind of visa previously determined under subsection 7(4C); and the replacement kind of visa is intended to give the same benefits as the replaced kind of visa.

35. This power is intended to accommodate situations where non-substantive changes to the subclass 192 (Pacific Engagement) visa occur as a result of changes to the Pacific Engagement Visa program. This will be limited to circumstances where changes are made consistent with the existing policy intention of ensuring that holders of Pacific engagement visas are eligible to access welfare payments and government services. Where the Immigration Minister has provided advice that the subclass 192 (Pacific Engagement) visa has been, or will be, replaced by another kind of visa and that the replacement kind of visa is intended to give the same benefits, the Minister will have a discretion to determine whether to make a legislative instrument to extend these benefits to the replacement kind of visa.

Item 14 Subsection 23(1)

36. Item 14 will insert a signpost definition of Pacific engagement visa into the dictionary in subsection 23(1). The definition is inserted in subsection 7(1) (see Item 12 of this Schedule).

Item 15 After paragraph 549D(7)(b)

37. Item 15 makes amendments necessary to ensure that holders of Pacific engagement visas will meet the requirements to enable immediate access to Youth Allowance on arrival in Australia, assuming they meet the relevant qualification criteria.

38. Item 15 will insert a new paragraph 549D(7)(ba). Subsection 549D(7) provides that the newly arrived resident's waiting period of 208 weeks for Youth Allowance, described in subsection 549D(1), does not apply to a person if the person meets certain circumstances listed in paragraphs 549D(7)(a) to (c). New subparagraph 549D(7)(ba) states that the newly arrived resident's waiting period in subsection 549D(1) does not apply to a person who holds a Pacific engagement visa at the time the person made the claim for Youth Allowance, if the person is qualified for Youth Allowance because they are undertaking full-time study or is a new apprentice. Sections 540 and 540AA of the Social Security Act 1991 outline the qualification criteria for persons undertaking full-time study and for new apprentices respectively.

Item 16 After paragraph 575D(3)(b)

39. Item 16 makes amendments necessary to ensure that holders of Pacific engagement visas will meet the requirements to enable immediate access to Austudy on arrival in Australia, assuming they meet the relevant qualification criteria.

40. Item 16 will insert a new paragraph 575D(3)(ba). Subsection 575D(3) provides that the newly arrived resident's waiting period of 208 weeks for Austudy, described in subsection 575D(1), does not apply to a person if the person meets one of the circumstances listed in paragraphs 575D(3)(a) to (c). New subparagraph 575D(3)(ba) states that the newly arrived resident's waiting period in subsection 575D(1) does not apply to a person who holds a Pacific engagement visa at the time the person made their claim for Austudy.

VET Student Loans Act 2016

Item 17 Section 6

41. Items 17 to 20 make amendments necessary to ensure that holders of Pacific engagement visas will meet the requirements to enable access to VET student loans.

42. Item 17 will insert a definition of Pacific engagement visa into section 6 of the VET Student Loans Act 2016, which defines that term by reference to new subsection 11(1B) (see item 20 below).

Item 18 Section 6 (definition of permanent humanitarian visa)

43. Item 18 will repeal the definition of permanent humanitarian visa from section 6 of the VET Student Loans Act 2016, and substitutes it with a definition of that term by reference to new subsection 11(1A) (see item 20 below). The new definition is consistent with the existing definition and defines permanent humanitarian visa to have the same meaning in the VET Student Loans Act 2016, as it does in the Migration Regulations 1994.

Item 19 Paragraph 11(1)(b)

44. Item 19 will insert ", or a Pacific engagement visa," after "permanent humanitarian visa" in paragraph 11(1)(b) of the VET Student Loans Act 2016, such that new paragraph 11(1)(b) provides that for a student to meet the citizenship and residency requirements to be eligible to be approved for a VET student loan in accordance with that paragraph, the student must be "the holder of a permanent humanitarian visa, or a Pacific engagement visa, who is usually resident in Australia". The purpose of this amendment is to make the holder of a Pacific engagement visa who is usually resident in Australia eligible to be approved for a VET student loan by way of meeting the requirements of section 11 of the VET Student Loans Act 2016, noting that there are other requirements under Part 2, Division 2 of that Act that a student must meet to be eligible to be approved for a VET student loan.

Item 20 After subsection 11(1)

45. Item 20 inserts three new subsections after section 11(1) of the VET Student Loans Act 2016.

46. Subsection 11(1A) defines Permanent humanitarian visa to have the same meaning in the VET Student Loans Act 2016 as it does in the Migration Regulations 1994.

47. Subsection 11(1B) defines a Pacific engagement visa as a visa referred to in the Migration Regulations 1994 as a 'Subclass 192 (Pacific Engagement) visa' (paragraph 11(1B)(a)) or a visa of a kind determined under subsection 11(1C) (paragraph 11(1B)(b)).

48. Subsection 11(1C) will permit the Minister responsible for the administration of the VET Student Loans Act 2016 to determine by legislative instrument a kind of visa for the purposes of paragraph 11(1B)(b).The Minister can only make such a determination if the Minister has been advised by the Immigration Minister, that it is the opinion of the Immigration Minister that: the kind of visa has replaced or will replace the Pacific engagement visa, or is a kind of visa that has previously been determined under subsection 11(1C); and the replacement kind of visa is intended to give the same benefits as the visa it replaces.

49. The purpose of this amendment is to permit the Minister responsible for the administration of the VET Student Loans Act 2016 to determine a kind of visa that replaces a Subclass 192 (Pacific Engagement) visa, or a visa that replaces a kind of visa that has already been subject to a determination by the Minister under subsection 11(1C), is a Pacific engagement visa for the purposes of paragraph 11(1)(b) of the VET Student Loans Act 2016. This will avoid the need to amend the VET Student Loans Act 2016 if changes to the migration program are made in the future (e.g., the Subclass 192 visa is renamed or replaced).

Part 2 - Application of amendments

Item 21 Application of amendments

50. Subitem 21(1) provides that the amendment to section 61AA of the A New Tax System (Family Assistance) Act 1999 in item 1 above to exempt holders of Pacific engagement visas from the newly arrived resident's waiting period for FTB Part A applies to claims made on or after the commencement of item 1, whether the person is granted a Pacific engagement visa before, on or after that commencement.

51. Subitem 21(2) provides that the amendments to section 90-5 and 104-5 of the Higher Education Support Act 2003 made by Schedule 1 apply in relation to a unit of study with a census date that is on or after the commencement of those amendments, whether the student becomes a Pacific engagement visa holder, or enrols in the course of study before, on or after that commencement.

52. Subitem 21(3) provides that the amendment to section 118-5 of the Higher Education Support Act 2003 made by Schedule 1 applies in relation to an application for receipt of OS-HELP assistance made on or after the commencement of that amendment, whether the student becomes a Pacific engagement visa holder, or enrols in the course of study before, on or after that commencement.

53. Subitem 21(4) provides that the amendment to section 126-5 of the Higher Education Support Act 2003 made by Schedule 1 applies in relation to fees payable for periods that start on or after the commencement of that amendment, whether the student becomes a Pacific engagement visa holder, or enrols in the course of study or bridging course for overseas-trained professionals before, on or after that commencement.

54. Subitem 21(5) provides that the amendments to section 128B-30 of the Higher Education Support Act 2003 made by Schedule 1 apply in relation to an accelerator program course with a census date that is on or after the commencement of those amendments, whether the student becomes a Pacific engagement visa holder, or enrols in the accelerator program course before, on or after that commencement.

55. Subitem 21(6) provides the amendments to the Social Security Act 1991 in items 12 to 16 above to exempt holders of Pacific engagement visas from the newly arrived resident's waiting period for Youth Allowance (student), Youth Allowance (apprentice) and Austudy apply to claims made on or after the commencement of these items, whether the person is granted a Pacific Engagement Visa before, on or after that commencement.

56. Subitem 21(7) provides that the application of the amendments to the VET Student Loans Act 2016 made by Schedule 1 apply in relation to an application for a VET student loan made by a student on or after the commencement of those amendments whether a Pacific engagement visa is granted to the student, or the student enrols in the course of study, before, on or after the commencement of the amendments.

Schedule 2 - Pacific Australia Labour Mobility scheme

Part 1 - Amendments

A New Tax System (Family Assistance) Act 1999

57. Items 1 to 12 provide the amendments necessary to ensure that visa holders connected with the PALM scheme who are approved to participate in family accompaniment, will meet the requirements to enable access to FTB Parts A and B (and associated benefits).

Item 1 Subparagraph 21(1)(b)(ii)

58. Item 1 will insert a reference to new subsection 21(1B) in subparagraph 21(1)(b)(ii). Paragraph 21(1)(b) contains the residency requirements for an individual to be eligible for FTB. New subsection 21(1B) is inserted by item 3 of this Schedule and is explained below.

Item 2 Subsection 21(1A) (heading)

59. Item 2 will repeal the heading to subsection 21(1A) and substitutes a new heading, which states "Visa holders who may qualify for special benefit".

Item 3 After subsection 21(1A)

60. Item 3 will insert new subsections 21(1B), (1C), (1D) and (1E), under a new heading which states "Visa holders connected with the Pacific Australia Labour Mobility scheme".

61. New subsection 21(1B) will provide that an individual satisfies this subsection if the individual holds a visa referred to in the regulations under the Migration Act 1958 as a subclass 403 (Temporary Work (International Relations)) visa, or a visa of a kind determined under subsection 21(1C); the individual is a participant, as a worker, in the PALM scheme, or the visa is granted on the basis that the individual is a member of the family unit (within the meaning of the Migration Act 1958) of such a participant; and the individual is in a class determined under subsection 21(1C).

62. A participant, as a worker, in the PALM scheme is a person who has accepted an offer of employment from a PALM scheme Approved Employer and who continues to be employed under these arrangements and that Approved Employer had a recruitment plan for PALM scheme workers approved by the administering department. This will include PALM scheme visa holders and (now repealed) PLS visa holders.

63. An Approved Employer is an entity that is contracted through a Deed with the Commonwealth; approved for the purposes of the PALM scheme; is participating in the scheme by recruiting and employing PALM scheme workers subject to the terms of the Deed; and is maintaining approval as a Temporary Activities Sponsor under section 140E of the Migration Act 1958.

64. A member of the family unit within the meaning of the Migration Act 1958 includes: a PALM scheme worker's spouse or de facto partner; a child or step-child who is aged up to 18, or who is aged 18 to 23 and is dependent on the PALM scheme worker or their spouse or de facto partner, or who has turned 23 and is dependent on the PALM scheme worker or their spouse or de facto partner due to being incapacitated; and any dependent child of a child or step-child as described here.

65. New subsection 21(1C) enables the Minister to determine by legislative instrument kinds of visas for the purposes of subparagraph 21(1B)(a)(ii), subject to subsection 21(1D), and classes of individuals for the purposes of paragraph 21(1B)(c). This will allow adjustments as operationally required to deliver on the objectives of the scheme and to support a positive experience for families.

66. It is intended that classes of individuals determined under subsection 21(1C) will be those on a long-term PALM scheme placement who have been approved for family accompaniment and the family members of such an individual. The powers contained in new subsections 21(1C) and (1E) in relation to determining classes of individuals are intended to ensure the intended classes of individuals (PALM participants who have been approved for family accompaniment or the family member of such an individual) can be appropriately described with reference to changes to PALM scheme program settings and/or amendments to the Migration Regulations to allow for family accompaniment, which are yet to be finalised.

67. Family accompaniment will commence with an initial cohort of 200 families. Participants will be selected by the administering department in accordance with program criteria that will be utilised to limit the numbers approved. A staged approach to the roll-out of the policy is being taken to allow eligibility criteria and program settings to be tested and adjusted over time to ensure the policy is delivering on the objectives of the scheme and resulting in a positive experience for families of PALM scheme workers. It is appropriate that details be provided in a legislative instrument rather than in the A New Tax System (Family Assistance) Act 1999 to provide flexibility to accommodate changes to program settings and/or the Migration Regulations that may affect the operation of the residency requirements and newly arrived resident's waiting period for PALM scheme participants claiming FTB.

68. New subsection 21(1D) will limit the power in new subsection 21(1C) to prevent the Minister from determining a kind of visa under paragraph 21(1C)(a) unless the Minister has been advised by the Immigration Minister that, in the Immigration Minister's opinion, the kind of visa has replaced or will replace the kind of visa mentioned in subparagraph 21(1B)(a)(i), or a kind of visa previously determined under paragraph 21(1C)(a), and the replacement kind of visa is intended to give the same benefits as the replaced kind of visa.

69. The powers contained in new subsections 21(1C) and (1D) in relation to determining kinds of visas are intended to accommodate situations where non-substantive changes to the subclass 403 (Temporary Work (International Relations)) visa occur in the future. This will be limited to circumstances where changes are made consistent with the existing policy intention of ensuring that holders of subclass 403 (Temporary Work (International Relations)) visas, who are PALM scheme participants or the family member of a PALM scheme participant, are eligible to access FTB. Where the Immigration Minister has provided advice that the subclass 403 (Temporary Work (International Relations)) visa has been, or will be, replaced by another kind of visa and that the replacement kind of visa is intended to give the same benefits, the Minister will have the discretion to determine whether to make a legislative instrument to extend these benefits to the replacement kind of visa.

70. New subsection 21(1E) allows the Minister to determine a class of individuals under paragraph 21(1C)(b) by reference to the fact than an individual holds a visa of a specified kind. The example to new subsection 21(1E) refers to a visa of a kind referred to in a specified way in the regulations under the Migration Act 1958 or that permits the holder to stay in Australia for at least a specified period.

Item 4 At the end of subparagraph 61AA(2)(b)(iii)

71. Item 4 will insert the words "of this section" at the end of subparagraph 61AA(2)(b)(iii). This is a technical amendment to clarify the relevant instrument-making power is in subsection 61AA(2A).

Item 5 At the end of subsection 61AA(2)

72. Item 5 will insert a new paragraph 61AA(2)(c). New paragraph 61AA(2)(c) will provide that an individual is subject to a newly arrived resident's waiting period for FTB Part A if the person satisfies subsection 21(1B). Subsection 21(1B) will be inserted by item 3 of this Bill and relates to visa holders connected with the PALM scheme.

Item 6 Paragraph 61AA(3)(a)

73. Item 6 will insert the words "because of paragraphs 2(a) or (b)" after the words "waiting period" in paragraph 61AA(3)(a). This clearly identifies when an individual is subject to a newly arrived resident's waiting period under subsection 61AA(2) for the purposes of determining the length of the waiting period specified in subsection 61AA(3).

Item 7 Paragraph 61AA(3)(c)

74. Item 7 will omit the words "subsection (4) does not" from paragraph 61AA(3)(c) and substitute "subsections (4) and (4A) do not". This clearly identifies when the length of the waiting period specified in subsection 61AA(3) will apply and reflects the introduction of new subsection 61AA(4A), inserted by item 9.

Item 8 Paragraph 61AA(4)(a)

75. Item 8 will insert the words "because of paragraph (2)(a) or (b)" after the words "waiting period" in paragraph 61AA(4)(a). This clearly identifies when an individual is subject to a newly arrived resident's waiting period under subsection 61AA(2) for the purposes of determining the length of the waiting period specified in subsection 61AA(4).

Item 9 After subsection 61AA(4)

76. Item 9 will insert a new subsection 61AA(4A). New subsection 61AA(4A) provides that where an individual who is subject to a newly arrived resident's waiting period because of paragraph 61AA(2)(a) or (b), and has previously held one or more visas covered by paragraph 21(1B)(a) that are also of a kind determined under new subsection 61AA(5B), the newly arrived resident's waiting period starts on the day on which the individual became the holder of the first visa covered by paragraph 21(1B)(a) that is also of a kind determined under subsection 61AA(5B). The newly arrived resident's waiting period ends when the individual has been in Australia for a total period of 52 weeks after that day. New subsection 61AA(5B) is explained below in relation to item 12.

77. The visa covered by paragraph 21(1B)(a) is the subclass 403 (Temporary Work (International Relations)) visa (or a replacement visa as specified under new subsection 21(1C)). The effect of new subsection 61AA(4A) is to enable an individual to count the time they have spent in Australia since they first held a subclass 403 (Temporary Work (International Relations)) visa towards the newly arrived resident's waiting period if they are later granted a permanent visa or a relevant visa determined by the Minister for the purposes of subparagraph 729(2)(f)(v) of the Social Security Act 1991. This means they do not have to re-start the newly arrived resident's waiting period once they become the holder of the new visa type. The visas currently determined by the Minister for the purposes of subparagraph 729(2)(f)(v) are temporary visa subclasses 060, 070, 309, 449, 785, 786, 790 and 820, and a criminal justice stay visa where certain circumstances are met. These are currently specified in the Social Security (Class of Visas - Qualification for Special Benefit) Determination 2015 (No. 2). Of these visa subclasses, only the subclasses 309 and 820 are subject to a newly arrived resident's waiting period. The other visa subclasses are exempt from the waiting period by virtue of subsection 61AA(6).

Item 10 Paragraph 61AA(5)(a)

78. Item 10 will insert the words "because of paragraphs 2(a) or (b)" after the words "waiting period" in paragraph 61AA(5)(a). This clearly identifies when an individual is subject to a newly arrived resident's waiting period under subsection 61AA(2) for the purposes of determining the length of the waiting period specified in subsection 61AA(5).

Item 11 Paragraph 61AA(5)(b)

79. Item 11 will omit the words "neither subsection (3) nor (4) applies" from paragraph 61AA(5)(b) and substitute "subsections (3), (4) and (4A) do not apply". This clearly identifies when the length of the waiting period specified in subsection 61AA(5) will apply and reflects the introduction of new subsection 61AA(4A), inserted by item 9.

Item 12 After subsection 61AA(5)

80. Item 12 will insert new subsections 61AA(5A) and (5B).

81. New subsection 61AA(5A) describes that the newly arrived resident's waiting period for an individual who meets paragraph 21AA(2)(c) starts on the day the individual first became the holder of a visa covered by paragraph 21(1B)(a) that is also of a kind determined under subsection 61AA(5B), and ends when the individual has been in Australia for a total period of 52 weeks after that day.

82. The visa covered by paragraph 21(1B)(a) is the subclass 403 (Temporary Work (International Relations)) visa (or a replacement visa as specified under new subsection 21(1C)). The effect of new subsection 61AA(5A) is that the newly arrived resident's waiting period applied to PALM scheme participants and their family members starts from the date they first became the holder of a subclass 403 visa (or replacement visa) that is of a kind determined under subsection 61AA(5B). The effect of new subsection 61AA(5A) is that where a PALM scheme participant or their family member holds successive subclass 403 (Temporary Work (International Relations)) visas because they undertake successive PALM scheme placements, the newly arrived resident's waiting period starts from the date of the first of those visas rather than re-starting for each subsequent visa and PALM scheme placement.

83. New subsection 61AA(5B) will enable the Minister to determine by legislative instrument kinds of visas for the purposes of paragraphs 61AA(4A)(b) and (5A)(a). This power is intended to provide the flexibility to determine particular kinds of the subclass 403 visa (or replacement visa) if required in order to maintain the existing policy intention of ensuring PALM participants and family members can count time on previous PALM scheme placements towards the newly arrived resident's waiting period for FTB Part A. The kinds of subclass 403 visa (or replacement visa) that may be specified under new subsection 61AA(5B) will be consistent with the kinds of visas that may be determined under new subsection 21(1C).

Item 13 Paragraph 85BB(1)(c)

84. Items 13 to 15 will make amendments necessary to ensure that visa holders connected with the PALM scheme who are approved to participate in family accompaniment, will meet the requirements to enable access to Child Care Subsidy (CCS).

85. Item 13 will insert a reference to new subsection 85BB(3) in paragraph 85BB(1)(c). Subsection 85BB(1) contains the residency requirements for an individual, or their partner, to be eligible for CCS. New subsection 85BB(3) will be inserted by item 15 of this Bill and is explained below.

Item 14 Before subsection 85BB(2)

86. Item 14 will insert a new heading for subsection 85BB(2). The new heading, 'Visa holders who may qualify for special benefit' distinguishes the purpose of subsection 85BB(2) from new subsection 85BB(3) which is explained below.

Item 15 At the end of section 85BB

87. Item 15 will insert a new subsection 85BB(3), along with the associated new heading 'Visa holders connected with the Pacific Australia Labour Mobility Scheme'.

88. New subsection 85BB(3) provides that an individual, or their partner, satisfies this subsection if they hold a visa referred to in the regulations under the Migration Act 1958 as a subclass 403 (Temporary Work (International Relations)) visa, or a visa of a kind determined under subsection 85BB(4); the individual or their partner is a participant, as a worker, in the PALM scheme, or the visa is granted on the basis that the individual is a member of a family unit (within the meaning of the Migration Act 1958) of such a participant; and the individual or their partner is in a class determined under subsection 85BB(4).

89. A 'participant, as a worker, in the PALM scheme', and 'a member of a family unit' are described at paragraphs 62 and 64 above.

90. New subsection 85BB(4) will enable the Minister to determine by legislative instrument kinds of visas for the purposes of subparagraph 85BB(3)(a)(ii), subject to subsection 85BB(5), and classes of individuals for the purposes of paragraph 85BB(3)(c). It is intended that classes of individuals specified will be those on a long-term PALM scheme placement who have been approved for family accompaniment.

91. New subsection 85BB(5) will limit the power in new subsection 85BB(4) to prevent the Minister from determining a kind of visa under paragraph 85BB(4)(a) unless the Minister has been advised by the Immigration Minister that, in the Immigration Minister's opinion, the kind of visa has replaced or will replace the kind of visa mentioned in subparagraph 85BB(3)(a)(i), or a kind of visa previously determined under paragraph 85BB(4)(a), and the replacement kind of visa is intended to give the same benefits as the replaced kind of visa.

92. The powers contained in new subsections 85BB(4) and (5) for CCS are analogous to those contained in new subsections 21(1C) and (1D) relating to FTB. An explanation of the purpose and application is at paragraph 69 above.

93. New subsection 85BB(6) will allow the Minister to determine a class of individuals under paragraph 85BB(4)(b) by reference to the fact than an individual holds a visa of a specified kind. For example, a visa of a kind referred to in a specified way in the regulations under the Migration Act 1958 or that permits the holder to stay in Australia for at least a specified period.

94. The powers contained in new subsections 85BB(4) and (6) for CCS are analogous to those contained in new subsections 21(1C) and 21(1E) relating to FTB. An explanation of their intent is at paragraph 66 above.

Part 2 - Application of Amendments

Item 16 Application of amendments

95. Subitem 16(1) provides that the amendments to section 21 of the A New Tax System (Family Assistance) Act 1999 in items 1 to 3 above apply to FTB claims made on or after the commencement of items 1 to 3, whether the individual starts to satisfy subsection 21(1B) before, on or after that commencement.

96. Subitem 16(2) clarifies that, for the purposes of the application of subsections 61AA(4A) or (5A) of the A New Tax System (Family Assistance) Act 1999 as amended by items 9 and 12 above to individuals on or after the commencement of this item, a newly arrived resident's waiting period may start before commencement of this item if the day referred to in paragraph 61AA(4A)(c) or (5A)(a) occurs before that commencement. If so, a newly arrived resident's waiting period may end before commencement of this item if the event referred to in paragraph 61AA(4A)(d) or (5A)(b) occurs before that commencement.

97. This allows PALM scheme participants who have held the relevant visa prior to the commencement date, and who are eligible under the family accompaniment policy, to count the days spent in Australia since they first became the holder of a subclass 403 (Temporary Work (International Relations)) visa towards their newly arrived resident's waiting period for the purposes of accessing FTB Part A.

98. Subitem 16(3) provides that the amendments to section 85BB of the A New Tax Systems (Family Assistance) Act 1999 in items 13 to 15 above in relation to the CCS residency requirements for sessions of care provided on or after the commencement of items 13 to 15, whether the individual or their partner starts to satisfy the requirements of subsection 85BB(3) before, on or after that commencement.

ATTACHMENT

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

Statement of Compatibility with Human Rights

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

Social Services and Other Legislation Amendment (Australia's Engagement in the Pacific) Bill 2023

The Social Services and Other Legislation Amendment (Australia's Engagement in the Pacific) Bill 2023 (the Bill) is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

1. The Bill makes amendments to legislation administered by the Department of Social Services, Department of Education and the Department of Employment and Workplace Relations to support implementation of the new permanent Pacific engagement visa and changes to the Pacific Australia Labour Mobility (PALM) scheme to allow family accompaniment for certain PALM scheme participants.

2. The Bill amends the following legislation:

a.
A New Tax System (Family Assistance) Act 1999
b.
Higher Education Support Act 2003
c.
Social Security Act 1991
d.
VET Student Loans Act 2016.

The PALM scheme

3. The PALM scheme allows employers to recruit workers from nine Pacific countries and Timor-Leste for short-term seasonal work placements of up to nine months, and long-term placements of one to four years. All PALM scheme participants, including both short and long-term PALM scheme workers, are granted a subclass 403 (Temporary Work (International Relations)) Pacific Australia Labour Mobility stream visa (PALM visa), or a (now repealed) subclass 403 Temporary Work (International Relations)) Pacific Labour Scheme stream visa (PLS visa). There are other streams within this visa subclass which are granted to persons not participating in the PALM scheme.

4. Changes to the PALM scheme will allow primary PALM visa and (now repealed) PLS visa holders participating in the PALM scheme on long-term placements to bring their partners and children to Australia where approved. This new element of the scheme is known as 'family accompaniment'.

5. Generally, temporary residents in Australia, including subclass 403 (Temporary Work (International Relations)) visa holders, do not have access to social security payments and benefits. The Bill amends the A New Tax System (Family Assistance) Act 1999 to allow PALM visa and PLS visa holders who are a PALM scheme participant (or family member of a PALM scheme participant), and who meet certain conditions as specified by legislative instrument, to access Family Tax Benefit (FTB) and Child Care Subsidy (CCS) payments, subject to meeting all other eligibility criteria. It is intended the conditions specified by legislative instrument will be that the individual has been approved to bring family members to Australia under the family accompaniment policy (or is the family member of such an individual).

The Pacific Engagement Visa

6. The Pacific engagement visa is a new permanent residency visa for citizens of participating Pacific island countries and Timor-Leste. The criteria for the Pacific engagement visa will be established by regulations made under the Migration Act 1958.

7. Most migrants granted a permanent visa are required to serve a newly arrived resident's waiting period (NARWP) of between one and four years before they can receive most social security payments and benefits. The NARWP for Youth Allowance (student), Youth Allowance (apprentice) and Austudy is 208 weeks (four years) and the NARWP for FTB Part A is 52 weeks (1 year). The Bill amends the Social Security Act 1991 and the A New Tax System (Family Assistance) Act 1999 to introduce an exemption to the NARWP for these payments for holders of Pacific engagement visas. The NARWP for other payment types will continue to apply.

8. The Bill also amends the Higher Education Support Act 2003 to make holders of Pacific engagement visas eligible for HECS-HELP, FEE-HELP, SA-HELP and OS-HELP and the VET Student Loans Act 2016 to make holders of Pacific engagement visas eligible for VET Student Loans (VSL).

Human rights implications

9. This Bill engages the following human rights:

a.
Rights to social security and an adequate standard of living
b.
Rights of parents and children
c.
Right to education
d.
Right to privacy
e.
Rights to equality and non-discrimination.

Right to social security and an adequate standard of living

10. Article 9 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises the right to social security and requires a social security scheme to be established under domestic law that provides a minimum essential level of benefits to all individuals and families that will enable them to cover essential living costs. Article 26 of the Convention on the Rights of the Child (CRC) requires countries to recognise the right of the child to benefit from social security. Benefits should take into account the resources and circumstances of the child and persons having responsibility for the maintenance of the child.

11. Article 11 of the ICESCR recognises the right to an adequate standard of living, which provides that everyone is entitled to adequate food, clothing and housing and to the continuous improvement of living conditions.

12. The Bill promotes the rights to social security and an adequate standard of living by allowing eligible PALM scheme participants and their family members to access FTB and CCS, and enabling Pacific engagement visa holders to access Youth Allowance (student), Youth Allowance (apprentice), Austudy and FTB Part A immediately without having to serve a NARWP.

13. FTB helps eligible families with the cost of raising children. The CCS assists families with the cost of approved child care to support their workforce participation, and to meet the early childhood education needs for children. Youth Allowance (student), Youth Allowance (apprentice) and Austudy provide financial assistance to support students and apprentices during their studies and training.

14. Access to most social security payments is generally limited to Australian citizens and permanent visa holders. This reflects the residence-based nature of the Australian social security system, which is different to the contributory systems that operate in most other countries. As a result, most temporary visa holders do not have access to social security payments. In addition, most permanent visa holders in the skilled and family streams of the Migration Program are subject to a NARWP, which reflects the expectation that they will support themselves for a period when first granted permanent residency. The exceptions to these rules provided in this Bill are designed to maintain the broader residence-based nature of the system while recognising that Pacific and Timor-Leste nationals in the PALM scheme or on a Pacific engagement visa may be less skilled and in lower wage jobs compared to other visa holders and may therefore need additional assistance to ensure they can adequately support any children in their care or to engage in further study or training to improve their permanent settlement outcomes.

15. A newly arrived resident's waiting period for PALM scheme participants will apply in relation to FTB Part A, consistent with the rules for most other relevant visa types. However, it is expected that most PALM scheme workers will have fully served this waiting period prior to their family arriving in Australia and will effectively have immediate access to the payment, where otherwise eligible, once their family arrives.

Rights of parents and children

16. Article 3 of the CRC and article 24(1) of the International Covenant on Civil and Political Rights (ICCPR) recognise the rights of parents and children. In addition to the rights enjoyed by all persons under human rights treaties, parents and children enjoy special rights, particular to their status.

17. The Bill promotes these rights by broadening the eligibility criteria for FTB and CCS payments to allow access for eligible PALM scheme participants and family members on a subclass 403 (Temporary Work (International Relations)) visa, who would otherwise be ineligible as temporary visa holders. While a newly arrived resident's waiting period of 12 months will apply for FTB Part A, most PALM scheme participants will have served this newly arrived resident's waiting period prior to their family coming to Australia, effectively providing immediate access once their family arrives. Access to these payments will assist eligible PALM and PLS visa holders with the costs of raising their children in Australia and to successfully integrate into the Australian economy and society.

18. The Bill also provides an exemption from the newly arrive resident's waiting period for FTB Part A for Pacific engagement visa holders so they can access FTB Part A immediately on arrival in Australia, where eligible, rather than having to wait 12 months to receive payments. This recognises that families granted a Pacific engagement visa may not have previously spent time in Australia, which can contribute to meeting the newly arrived resident's waiting period.

19. Access to these payments will assist eligible families in the PALM scheme or on a Pacific engagement visa with the costs of raising their children in Australia, to successfully integrate into the Australian economy and society, and to meet the early childhood education needs of their children.

Right to education

20. Article 13 of the ICESCR recognises the right to education, including the important personal, societal, economic and intellectual benefits of education. Article 13 provides that secondary education in all its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means. Further, Article 13 states higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means.

21. The Bill promotes the right to education by allowing eligible holders of Pacific engagement visas access to HELP assistance and VSL, which will reduce the financial burden and improve access to tertiary education.

22. The Bill also promotes the right to education by providing immediate access to Youth Allowance (student), Youth Allowance (apprentice) and Austudy, which will support holders of Pacific engagement visas to engage in an approved secondary or tertiary course of study or an apprenticeship through the provision of income support.

23. These measures recognise that holders of Pacific engagement visas may be less skilled than other permanent visa holders and may need additional support to build their skills so they can successfully participate in the Australian economy and society.

Right to privacy

24. Article 17 of the ICCPR recognises that no one shall be subjected to arbitrary or unlawful interference with their privacy. The disclosure of personal information without a person's consent will engage, and limit, the protection from arbitrary and unlawful interference with privacy.

25. The right in Article 17 may be subject to permissible limitations, where the limitations are authorised by law and are not arbitrary. In order for an interference with the right to privacy to be permissible, the interference must be authorised by law, be for a reason consistent with the ICCPR and be reasonable in the particular circumstances. The UN Human Rights Committee has interpreted the requirement of 'reasonableness' to imply that any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case.

26. The Bill engages the right to privacy as data will be linked between Commonwealth departments to enable the administration of social security payments and benefits to eligible PALM scheme participants and Pacific engagement visa holders, including verification of an individual's visa status and associated eligibility.

27. To the extent that the Bill may limit the right to privacy, the limitation is lawful and non-arbitrary. The linking of data between Commonwealth departments is limited to visa related information necessary to administer social security payments and benefits, including verification of an individual's eligibility. This data linkage reduces the administrative burden for visa holders and facilitates the provision of financial support to eligible individuals.

Right to equality and non-discrimination

28. Article 2(2) of the ICESCR and article 26 of the ICCPR recognise rights to equality and protection against discrimination on any ground. Equality affirms that all human beings are born free and equal. Equality presupposes that all individuals have the same rights and deserve the same level of respect. All people have the right to be treated equally.

29. Non-discrimination is an integral part of the principle of equality. It ensures that no one is denied their rights because of factors such as race, colour, sex, language, religion, political or other opinion, national or social origin, property or birth. In addition to those grounds, discrimination on certain other grounds may also be prohibited. These grounds include age, nationality, marital status, disability, place of residence within a country and sexual orientation.

30. The Bill engages the right to equality and non-discrimination by direct differential treatment of eligible PALM scheme participants and family members compared to other PALM scheme participants, other non-PALM subclass 403 (Temporary Work (International Relations)) visa holders, and holders of other temporary subclass visas. The intent is that only eligible PALM scheme participants who are on long-stay PALM placements and have been approved for family accompaniment (and their families) will be able to access FTB and CCS, if they are otherwise eligible. Other temporary residents generally do not have access to social security payments and family assistance payments and that will remain the case.

31. The Bill also engages the right to equality and non-discrimination by direct differential treatment of holders of Pacific engagement visas compared to other permanent visa holders. The Bill will exempt holders of Pacific engagement visas from the NARWP for Youth Allowance (student), Youth Allowance (apprentice), Austudy and FTB Part A, and will allow access to HELP assistance and to VSL. Permanent visa holders are generally required to serve a NARWP before they can access social security payments and family assistance payments. Permanent visa holders generally do not have access to HELP assistance or VSL, unless they hold a permanent humanitarian visa.

32. To the extent that the Bill limits the right to equality and non-discrimination, this is reasonable and proportionate to achieving the legitimate purposes of family accompaniment for the PALM scheme and of the Pacific engagement visa.

33. Family accompaniment for PALM scheme workers is designed to address the social impacts of long periods of family separation and build relationships with participating Pacific Island countries and Timor-Leste. PALM scheme workers are often engaged in lower skilled and lower paid industries than other temporary workers. Access to FTB and CCS payments supports the objectives of family accompaniment by ensuring families of PALM scheme workers are appropriately supported with the cost of raising children in Australia. Without this support, families reunited in Australia through family accompaniment may face hardship.

34. The introduction of the Pacific engagement visa will grow the Pacific and Timor-Leste diaspora in Australia, strengthen people-to-people links and encourage greater cultural, business, and educational exchange by boosting permanent Pacific migration to Australia. Holders of Pacific engagement visas are expected to be lower skilled than other types of permanent visa holders, especially compared to skilled visa holders and are not expected to have access to the level of savings of a higher skilled permanent migrant. Immediate access to student income support payments and to HELP assistance and VSL is designed to support holders of Pacific engagement visas, particularly older children and spouses of a primary Pacific engagement visa holder, to upskill to support their successful settlement in Australia.

Conclusion

35. The Bill is compatible with human rights because it promotes the protection of human rights and, to the extent that it may limit human rights, those limitations are reasonable, necessary and proportionate.


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