Alexander Reilly

Low-cost labour or cultural exchange? Reforming the Working Holiday visa programme

The article considers the place of Working Holiday visas in Australia’s migration policy and socio-economic planning. With the number of Working Holiday visa grants now topping 200,000 annually, Working Holiday Makers are significant participants in low-skilled work in Australia. The article argues that the programme is not adequately regulated to protect Working Holiday Makers in this work. In light of concerns around the exploitation of Working Holiday Makers, the article offers suggestions for reform to the programme. The article argues that the programme should be returned to its original conception of fostering a cultural experience for young migrants coming to Australia. It argues that work entitlements under the Working Holiday visa should be limited to work that is appropriate for young migrants on a brief cultural visit and that labour shortages should otherwise be filled using dedicated temporary labour migration visas which are properly designed to address labour shortages in the economy. Reform is necessary to protect the work conditions of local and migrant workers, to maintain Australia’s reputation as a country with high employment standards and to maintain positive relations with countries in the Working Holiday programme.

Secret 'Enhanced Screening' of Asylum Seekers: A Democratic Analysis Centring on the Humanity of the Commonwealth Officer

Recent developments in Refugee policy have seen a divesting of responsibility to other nations. This process of divestment occurred last year in an earlier incarnation of asylum seeker policy, when Sri Lankan asylum seekers were targeted for a secret pre-screening process conducted by a Commonwealth officer. In this article, we explain how it is possible that such a secret procedure can occur in our name, but without our knowledge. By divesting the responsibility to the Commonwealth Officer, we have no real understanding of the issues, and consequently no capacity to engage in meaningful debate, or to challenge our beliefs and actions. If we are not able to see or hear the asylum seekers’ circumstances clearly and publically then we lose the possibility of a democratic relationship among ourselves.

The Ethics of Seasonal Labour Migration

Seasonal labour migration and ‘guest worker’ schemes are a common and growing phenomenon around the world. In 2008, the Australian government introduced the Pacific Seasonal Worker pilot scheme for workers from select Pacific Island nations to work in the horticultural industry in Australia. The scheme is the first guest worker scheme in the history of the Commonwealth. The visas entitle workers to reside in Australia for a maximum of seven months, with no provision for secondary visas for family members and no prospect of upgrading the visas to permanent residency. The introduction of the pilot scheme is indicative of a growing trend in the use of temporary labour migration in Australia, and raises the fundamental question of just what are the ethical limits of such schemes. The article addresses this question by considering whether it is consistent with liberal political values to deny long-term seasonal workers the opportunity to join the Australian community. It introduces Michael Walzer’s influential work on this question, and then proposes the liberal criteria of ‘freedom’ as the principle underpinning the state’s obligation to seasonal workers. The article draws on a distinction between freedom as non-interference and freedom as non-domination in Philip Pettit’s theory of republicanism, and uses the distinction to pose the question of whether the freedom of the migrant labourer can be assured through regulation of the employment relationship, or whether it can only be assured through removing the unequal status between alien workers and citizen employers. The article also considers the nature of work, and the vulnerability of migrant workers within the employment relationship. It argues that the problems which arise in the employment relationship between migrant workers and their employers, as they invariably do, are symptomatic of the exclusion of migrant workers from participation in the political life of the receiving state. The article concludes that there are problems with dissociating work in a state from membership of that state in the long term, and makes the case for providing the opportunity for guest workers to apply for permanent residence.

Recovering the foundations of Koowarta: the struggle of the Aboriginal Land Fund Commission to purchase land in Queensland

This article examines one of the stories underpinning Koowarta v Bjelke-Petersen; the story of the attempts of the Aboriginal Land Fund Commission (ALFC) to purchase land for Aboriginal communities in Queensland amid conflicting Commonwealth and state policies on Aboriginal rights. Through telling this story, the article reflects on legal historiography, on the role of legal judgments as official records of the events they document, and on how what is recorded in judgments becomes the official memory of events, marginalising and strategically forgetting other stories to achieve judgment and resolution. The story of the struggles of the ALFC to purchase land for Aboriginal people in Queensland disrupts a too easy memorialising of Koowarta, and presents an alternative source for remembering the events surrounding the Koowarta litigation, to deepen our appreciation of official and unofficial struggles for Aboriginal justice in the 1970s and 1980s.

'To Watch, To Never Look Away': The Public's Responsibility for Australia's Offshore Processing of Asylum Seekers

The article argues that the duty of the people extends beyond simply choosing their representatives at periodic elections. Individuals in a political community must be engaged with the decisions of their representatives between elections, scrutinising the creation, implementation and outcomes of the policies pursued in their names. The article posits a public ‘duty to watch’ that requires the provision of information by government institutions adequate for the public to assess and take responsibility for policy in its full complexity. The final part of the article then identifies how the duty to watch has a constitutional basis, requiring the disclosure of information about the actions of Australian Commonwealth officers, or those being funded by the Commonwealth in an official capacity.

Working holiday makers in Australian horticulture: labour market effect, exploitation and avenues for reform

ABSTRACT Using a mixed-method analysis, this paper examines the effect of working holiday makers (WHMs) on the labour market for low-skilled work in the horticulture industry. Since the inception of the WHM visa in 1975, the horticulture industry has come to rely increasingly on WHMs as the core source of labour for picking and packing fruit and vegetables. This reliance has altered employers’ expectations of labour flexibility, cost and productivity and has limited the role of local workers in the industry in many locations. At the same time, there is evidence of widespread exploitation of WHMs in the industry. There is a difficult policy challenge of how to address the problems of exploitation while maintaining a reliable labour supply for the industry. The article draws on the growing literature considering the role of temporary labour migration on national labour markets to frame the analysis of WHMs in Australian horticulture, and concludes with suggestions for how the horticulture labour market can be reformed through appropriate, targeted regulation of temporary migrants in the industry.

Asylum seekers in the community: the importance of work for a decent life

In 2011, the Labor government released asylum seekers arriving by boat into the community on bridging visas for the first time since the policy of mandatory detention was introduced in 1992. Initially, the bridging visas included an entitlement to work. A ‘no work condition’ was added to bridging visas granted from August 2012. In December 2014, the government undertook to reinstate work entitlements to asylum seekers in the community on bridging visas. As at September 2015, there were 28,938 asylum seekers living in the community who had arrived by boat, some with work rights and some without. This article weighs the justifications and the costs of providing work rights to asylum seekers. It examines the profile of asylum seekers as workers, the impact of the no work condition, and the arguments for and against providing work rights to asylum seekers.

Confusion of tongues: Constitutional recognition of languages and language rights in Australia

This article considers the YouMeUnity Report proposal for the inclusion of new language provisions in the Australian Constitution as part of a package of reforms for the constitutional recognition of Aboriginal and Torres Strait Islander people. The article outlines the important symbolic and substantive effects of recognising language rights in the Constitution. The article explains how the recognition of a national language and the recognition of minority languages are conceptually distinct — promoting a national language is aimed at promoting national unity and enhancing the political and economic participation of individuals in the state, whereas protecting minority languages is aimed at recognising linguistic diversity, enriching the cultural life of the State, maintaining connections with other nations, and recognising language choice as a basic human right. The article argues that there is a strong case for minority language recognition, and in particular, the recognition of Aboriginal and Torres Strait Islander languages, in the Australian Constitution, but warns against the recognition of English as the national language.

How sorry we are?: the limits of the Apology to the Stolen Generation

The Australian government apology to the Stolen Generation was greeted with a collective sigh of relief when it was delivered in February 2008. The refusal of the Howard government to say sorry on behalf of the nation for past policies of forced removals was an impasse in Aboriginal policy development. The Rudd government apology broke this impasse with a thoughtful and respectful expression of sorrow. However, the Rudd government apology failed to fully address the nature of the wrong inflicted on Aboriginal Australians through State and Commonwealth laws which allowed the forcible removal of Aboriginal children from their families.

The Many-Headed Beast

Alex Reilly teaches law at Murdoch University. The Australian Constitution has proved resistant to alteration since Federation. The failure (with few exceptions) to amend the Constitution may be due to the fact that the Constitution does not need to be changed, as it already contains an excellent model for government. Another possibility is that the failure lies in the procedure for change under s.128 which, requiring a referendum for any alteration to the Constitution, is a more complex, time consuming and expensive process than for the alteration of most other constitutions. It is important to note, however, that the requirement of a referendum is only part of the process for amending the Constitution. All other aspects of the process — creating the impetus for change, the involvement of political organisations in advocating for and against change, the extent of public education campaigns, and the formulation of referenda questions — have either developed by way of convention, are required by existing legislation, or are dictated by the policies of the government of the day. Therefore, if the process for effecting constitutional change is considered to be lacking in any of these ways, there is scope for altering the Constitution without amending s.128. This article discusses these other aspects of the process of constitutional change in Australia. It reflects on the adequacy of the process by comparing events leading to the republic referendum in Australia with events leading to the certification of the Constitution of the Republic of South Africa in 1996.