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Australian Migration and Refugee Law: Associate Professor Alex Reilly

Associate Professor Alex Reilly of the University of Adelaide Law School has a key interest in migration and refugee law. The number of migrants in Australia is growing and particularly over the last 10-15 years, migrants have been providing a source of labour and are therefore good for the economy and good for Australia. Alex is looking at labour market regulation, with respect to migrant workers. He says, We have laws in Australia about protecting workers and obligations on employers but how do these work in relation to migrant workers? Do we need to think about their needs through a different lens? Do migrant workers need a different sort of regulation? Should we treat migrants differently from citizens? There are number of programs that operate for migrant workers. Skilled workers come into Australia under official labour migration programs. However there are also programs which allow unskilled workers to work in Australia, specifically, working holiday and international student visa holders. There is also a new official program for seasonal migrant workers from the Pacific. What I am looking at now is how we treat migrant workers here. From the legal perspective, the question is how they can be adequately protected from exploitation in the workplace while they are working in Australia. From a broader political perspective, there is a question about whether it is appropriate to bring in people to work temporarily and not offer them a permanent place in the Australian community. Seasonal migrant workers in Australia For skilled workers here temporarily and students [see below], there is a chance to apply for permanent residency on the basis of their skill. That is not an option for seasonal workers irrespective of how many times they may come here for work, they can never upgrade to permanent residency. For me that is an issue if you have someone coming here for example over a 10-year period, is it right to say that you have to leave no matter what connections you have here? I think it is odd that we make such a clear distinction between different types of migrant workers. It seems to me that the length of a persons stay in Australia must always be relevant to their right to stay permanently. I think when someone comes to a place and is there for a length of time they develop connections to that place and the law needs to recognise that. I think there is always an underlying question of whether we ought to be recognising that connection through some idea of membership so that you dont just work as a labourer, you also become part of that community. Migration is currently in the spotlight for Australia. As Alex says, I am getting together with labour lawyers because there is a huge issue of labour migration so I expect this will lead to significant future research projects. Until relatively recently, there were small numbers of migrant workers coming to Australia. Back in the period of the 1860s to 1900, migrant workers were brought to Queensland from the Pacific Islands to work in the Queensland sugar fields, but with federation in 1901, the white Australia policy meant that these people were forced to leave, irrespective of how long they had been living and working in Australia. Some had been there for many years and made Australia their home.

During the last decade or so, Australia has had an increase in the number of migrant workers, specifically through a program for about 2,500 Pacific Islanders, called the Pacific Seasonal Worker Pilot Scheme . The current situation for these workers is that that they can work in Australia on a six or seven month visa, say picking fruit. They must come alone (i.e. not bring their family) and then must leave the country when the visa expires. They can come again the following year and again after that but there is no mechanism to acquire the right to stay in Australia on a permanent basis under this arrangement. The visas are limited to certain regions like Griffith in NSW and parts of Victoria and certain jobs are specified. The federal government (under Kevin Rudd) ran this as a pilot program and expanded it in 2012. It helps to bridge our shortage for this type of labour, as Alex says: In Australia we do not have a lot of unskilled labour. We aspire to educate all our young people so they have skills to enter the workforce. So who is left to do the lower end jobs? So we look overseas. There is an agreement with Pacific Islanders, East Timor and Papua New Guinea. That is for seasonal horticultural migration. There are other programs too that people from other countries can apply through in order to work temporarily in Australia, such as working holidays. There is a backpackers program working holidays. We have reciprocal agreements with about 27 countries, there is an age range (18-30), and a one-year limit, where they can work for up to six months of that year. Some industries like horticulture rely on that labour for fruit picking. This is the industry thats been pushing for the Islander program. New Zealand has a similar program and ours is modelled on theirs. International students and rights to work The other key source of temporary and often unskilled labour is the steady supply of international students who work to support their study. Im currently looking at international students and their working rights when they come and study here they are entitled to work 20 hours a week. They can work anywhere some drive taxis and others do a range of unskilled work. There are no particular protections for international students. They just enter the domestic labour market and have the same protections as other workers but are so much more vulnerable because they may not have the language and they dont have their family connections to support them. They are usually very young. The work is casual as the law says that they can only do 20 hours a week. If they work over 20 hours in any one week (i.e. it is not an average, but any specific week) they are liable to have their visa cancelled. This makes them vulnerable to exploitation. If they work over 20 hours a week their employer can say if you dont do what I ask I can tell the authorities that you did more than 20 hours this week. The restrictions apply only during term time, so during holidays they can work longer hours. However, it may be difficult for a student to have the same job with increasing and decreasing hours like this. The rationale for the current rules is that the international students are not on work visas, they are on study visas. The approach is therefore to allow them to work but with limitations. But Alex believes, I think we have created a problem by giving them limited work rights. I think you either say you cant work and come here just to study OR we recognise that you need to work, so we let you work and we make sure you also do your studies.

I think we would be better off giving them full work rights and letting them manage it if someone can work 40 hours a week and pass their study, why should we say they cant do it? They pay large sums of money to study here, including the requirement that they have $18,000 a year upfront for living costs. Often they are coming from countries which are not First World, maybe their families have had to take out significant loans to pay for it, and there is often an expectation that they will earn money while they study here. Alexs philosophy In relation to the migrant worker issues outlined above, Alex looks at how the law interprets complex cultural relationships, which may be extended to indigenous legal issues, refugee law, and any situation where cultures come together. My intellectual journey is very much about theres law and the law forms our relationships and tells us what we can and cant do, and what are our rights and obligations, but often it maps itself onto relationships that are very complicated and the law reduces those relationships into something that is much simpler. For me, there is always something thats lost through that process. I like to look at what has been lost. We need to be aware of what is lost, and take it into account in framing our laws if possible. So a complex cultural relationship is changed when it becomes a legal relationship into something narrower and more specific. The law needs to act that way, in black and white for clarity. But for me the challenge for law is to try to be as faithful as possible to what relationships are really there. In an ideal world, what would you like to see change? In the area of migration law the thing I would like to see changed is the main moral imperative for making rules it is currently economic we need to take other things into account. With regard to migration, we should not just see it as a means of assisting our economy but see it as a genuine relationship between groups. When I look at legal regulation, what I am fighting against is the whole premise of most of the laws that we pass is about economic growth and improvement and I think that is not the most important thing, it is a means to an end. In my work I am constantly trying to bring other things into legal analysis. The problem with many laws is that they are not aimed at what I think is the right outcome. I would like to see a change in fundamental attitudes in regulation why and how we do it. Economics is so persuasive if we have this many migrants it will boost our economy by x%. But if we bring people in temporarily and then we tell them they have to leave, how does that affect our community? We have people coming and going and forming a connection with the place but they have no opportunity to put down roots what does that do socially and culturally to us as a country? These things are not easily measurable, but they are very important. Or do we change the model from being driven by the dollar to better incorporate social and cultural costs? Thats the dilemma I am trying to work through.