Overview of the Disallowable Legislative Instrument
The Migration Amendment (Subclass 417 and 462 Visa) Regulations 2021 amends the Migration Regulations 1994 (the Regulations) to prevent work for certain employers being counted towards eligibility for a subsequent Working Holiday Maker visa (WHM visa).
The WHM program consists of two visa subclasses namely:
- the Work and Holiday (Subclass 462) visa; and.
- the Working Holiday (Subclass 417) visa
Both WHM visas are granted with a 12-month stay period. .
The key differences between the two visas are that the Work and Holiday (Subclass 462) visa arrangements generally have caps on the number of visas granted annually (except for the United States of America) and include additional eligibility requirements such as a minimum education level, English language proficiency or letters of support from a partner country Government. The Working Holiday (Subclass 417) visa arrangements are uncapped with no limit on the annual number of visa grants.
There are incentives for people who have been granted a WHM visa to work in locations and industries specified for this purposes by the Minister, referred to as 'specified work'. While people who have been granted a WHM visa can work in any area or industry, a person who has held their first WHM visa in Australia (having never been previously in Australia as a holder of a WHM visa) may then be granted a second visa if they have carried out at least three months of specified work. If a person undertakes at least six months of specified work whilst holding their second WHM visa, they are then eligible to be granted a third WHM visa.
There are variances of specified work based on subclasses:
- for the Working Holiday (Subclass 417) visa - construction, fishing and pearling, plant and animal cultivation, mining and tree farming and felling in regional Australia is considered specified work;
- for the Work and Holiday (Subclass 462) visa - construction and plant and animal cultivation in Northern and regional Australia, and fishing and pearling, tree farming and felling, and tourism and hospitality in Northern Australia is considered specified work; and
- for both WHM visas - bushfire recovery work in declared disaster areas and critical COVID-19 work in the healthcare and medical sectors anywhere in Australia is also specified work.
The main purpose of the WHM program is to build people-to-people and cultural links between Australia and partner countries. While people who have been granted a WHM visa can choose to supplement their holiday with short-term employment, employment is not the primary objective of the visa.
The message the Government wishes to reinforce with this amendment is that any exploitation of migrant workers is totally unacceptable and will not be tolerated.
Exploitation of any worker is unacceptable, and is recognised to have serious consequences, including adverse impacts on the worker¡¦s human rights. Any exploitation by an employer of a person who has been granted a WHM visa could be viewed as undermining the intention of the visa program (i.e. does not foster positive cultural links for a worker with Australia) and damages Australia¡¦s reputation as a safe and welcoming destination.
The new measure is intended to enhance protection for people who have been granted WHM visas by identifying employers who may pose a risk to the safety or welfare of a person, for example with reference to relevant convictions, and regulating that working for such employers will not count as specified work for the purposes of qualifying for a second or third Working Holiday (Subclass 417) or Work and Holiday (Subclass 462) visa. This measure would dissuade people who have been granted WHM visas from engaging in work for those employers The Department of Home Affairs (the Department) would implement enhanced communication channels to allow visa holders to easily check the status of their employer.
Source: Migration-Amendment-Sc417-and-462-visas-Regs-2021.pdf and Migration-Amendment-Sc417-and-462-visas-Regs-2021-explanatory-statement.pdf
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