Australia's 457 Visa Scheme

GA Res 217A, UN GAOR, 3rd sess, 183rd plen mtg, UN Doc A/RES/217A (III) (1948).

Opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 3 January 1976).

Visa Subclass 457 External Reference Group, Final Report to the Minister for Immigration and Citizenship, April 2008. The Government has accepted 14 of the 16 recommendations in this report: See Senator Chris Evans, Minister for Immigration and Citizenship, ‘Government to Implement Industry Report on Skilled Migration’, Media Release, 5 May 2008.

See DIAC, Discussion Paper: Business (Long Stay) Subclass 457 and Related Temporary Visa Reforms, June 2008.

See Joint Standing Committee on Migration, Temporary Visas… Permanent Benefits: Ensuring the Effectiveness, Fairness and Integrity of the Temporary Business Visa Program, August 2007.

For a more detailed account of the background of the 457 visa scheme, see Kinnaird Bob , ‘Current Issues in the Skilled Temporary Subclass 457 Visa’ (2006) 14(2) People and Place, 49–65.

Joint Standing Committee on Migration, Inquiry into Temporary Business Visas, Temporary Visas… Permanent Benefits: Ensuring the Effectiveness, Fairness and Integrity of the Temporary Business Visa Program, Report, August 2007, 14–15.

Topfield Jewels , ‘Delay Hamper 457 Visas’, The Age (Melbourne), 6 May 2008; Shanahan Dennis , ‘Migrants the ALP Isn't Game to Crow About’, The Australian (Sydney), 16 May 2008.

Kinnaird Bob , ‘Current Issues in the Skilled Temporary Subclass 457 Visa’ (2006) 14 People and Place 49, 49–50.

See Maley Paul , ‘Call for Low-Skilled Migrants’, The Australian (Sydney), 19 March 2008, 7.

See Maley Paul , ‘Call for Low-Skilled Migrants’, The Australian (Sydney), 19 March 2008, 7 and Maley Paul , ‘Developing Countries Go for 457 visas’, The Australian (Sydney), 15 March 2008, 6;

The eight ILO Conventions are: the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No 98); the Forced Labour Convention, 1930 (No 29) and the Abolition of Forced Labour Convention, 1957 (No 105); the Minimum Age Convention, 1973 (No 138) and the Worst Forms of Child Labour Convention, 1999 (No 182); the Equal Remuneration Convention, 1951 (No 100) and the Discrimination (Employment and Occupation) Convention, 1958 (No 111).

Fundamental Declaration on Principles and Rights at Work, 1998, article 2. 15. Opened for signature 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003).

See further AMWU, Temporary Skilled Migration: A New Form of Indentured Servitude, July 2006.

Philippines Australia Union Link, Submission to the Joint Standing Inquiry on Migration's Inquiry into Temporary Business Visas, 15 February 2007.

Jones v Hanssen Pty Ltd [2008] FMCA 291 at [8].

See Workplace Rights Advocate, Victoria, Report on the Investigation into a Complaint in Relation to the Curry Lobby, 2 July 2007, 5.

US State Department, 2007 Trafficking in Persons Report.

The Freedom of Association and Protection of the Right to Organise Convention, 1948 (No 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No 98).

See, eg, O'Malley Nick , ‘457 Visa Workers Get China's Civil Rights’, The Sydney Morning Herald (Sydney), 4 November 2006, 3; and O'Malley Nick and Bachelard Michael , ‘Migrant Workers Facing Dismissal for Joining Unions’, The Sydney Morning Herald (Sydney), 10 October 2006, 5.

See Shaw Megan , ‘Revamp of Foreign Worker Visas Urged’, The Age (Melbourne), 14 February 2007, 5.

See, eg, Gregory Jason , ‘Visa Workers' Dreams Crushed’, The Courier-Mail, 21 October 2006, 10.

See, eg, Janda Michael , ‘Academic Says Temporary Workers Exploited: 457 Work Visas Need Better Regulation’, Interview with Bob Kinnaird, Australian Broadcasting Corporations Transcripts, 6 May 2008.

Weber David , ‘Guest Worker Re-Paid Lost Wages Kentwood Banned from Using 457 Program’, Australian Broadcasting Corporation Transcripts, 20 February 2008.

‘A Loophole More Like a Noose’, The Sydney Morning Herald (Sydney), 8 September 2006, 10.

O'Malley Nicholas , ‘New foreign work visas issued for unsafe work’ The Sydney Morning Herald (Sydne), 5 September 2006.

See, eg, MacDonald Kim , ‘Language Loophole a Safety Risk in Mines?’, The West Australian (Perth), 14 January 2008.

See Sikora Natalie , ‘Men Forced to Work with Broken Hands, Arms’, Herald Sun (Melbourne), 18 June 2008.

Office of the Workplace Rights Advocate, Victoria, Report on the Investigation into a Complaint in Relation to the Curry Lobby, April 2007, 23.

Fryer v Yoga Tandoori House Pty Ltd [2008] FMCA 288.

Bachelard Michael , ‘Our Guest Workers Who've Had Enough’, The Age (Sydney), 6 September 2006.

Throughout the world, it is widely acknowledged that foreign workers constitute a particularly vulnerable group in society. See, eg, de Varennes Fernand , ‘Strangers in Foreign Lands: Diversity, Vulnerability and the Rights of Migrants'’, UNESCO, 2003; Ruhs Martin , ‘Termporary Foreign Worker Programmes: Policies, Adverse Consequences, and the Need to Make Them Work’, Perspectives on Labour Migration, International Migration Programme, ILO, Geneva, 2003, 12–14.

See, eg, Moore Mathew , ‘More Workers Face Deportation to a Bleak Future’, The Sydney Morning Herald (Sydney), 19 October 2007, 4. DIAC has recently proposed an amendment to the sponsorship framework which would make employers liable for recruitment costs and migrant agent fees where they were aware, or ought to have been aware, of. See DIAC, Discussion Paper: Business (Long Stay) Subclass 457 and Related Temporary Visa Reforms, June 2008.

In April 2007, the Minister introduced an English language requirement, which applied from July 2007.

See, eg, Laurie Victoria , ‘Temporary Workers Seek Church's Help’, The Australian (Sydney), 22 March 2008, 9. See also the case detailed in Office of the Workplace Rights Advocate, Victoria, Report on the Investigation into a Complaint in Relation to the Curry Lobby, April 2007.

Ruhs , above n 34, 14–15.

See, eg, Laurie Victoria , ‘Temporary Workers Seek Church's Help’, The Australian (Sydney), 22 March 2008, 9.

Workers on 457 visas only have access to Medicare where their home country has a reciprocal health care arrangement with Australia. DIAC has recently proposed amendments to the sponsorship framework which would either make employers liable for medical costs incurred by workers on 457 visas in public hospitals or to make sponsoring employers liable for insurance premiums for policies which cover the medical costs incurred by workers on 457 visas in public hospitals. See DIAC, Discussion Paper: Business (Long Stay) Subclass 457 and Related Temporary Visa Reforms, June 2008.

ILO, Towards a Fair Deal for Migrant Workers, [210]

DIAC has recently proposed amendment to the sponsorship framework which would oblige sponsoring employers to provide 457 visa holders with certain information. See DIAC, Discussion Paper: Business (Long Stay) Subclass 457 and Related Temporary Visa Reforms, June 2008.

DIAC, Question Taken on Notice, Joint Standing Committee on Migration, 1 June 2007.

Question Taken on Notice, Joint Standing Committee on Migration, 1 June 2007 (reference: Temporary Business Visas).

Weber David , ‘Guest Worker Re-Paid Lost Wages: Kentwood Banned from Using 457 Program’, Australian Broadcasting Corporation Transcripts, 20 February 2008.

Moore Matthew , ‘More Workers Face Deportation to a Bleak Future’, The Sydney Morning Herald (Sydney), 19 October 2007, 4.

See, eg, article 12 of the Migrant Workers (Supplementary Provisions) Convention, 1975 and article 25(1) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.