Owen Harris talks Skilled Occupation Lists and IELTS.

Not much has changed!

The Skilled Occupation Lists have been in use for over 160 years. In 1848 Australia was applying criteria to prospective emigrants leaving London for Moreton Bay limiting passage to “agricultural labourers, shepherds, female domestic and farm servants, dairy maids, blacksmiths, wheelwrights, carpenters and other country mechanics.”

They were required to be in good health and of good character (both tests remain to this day). The difference being that now they the ship’s surgeon has been replaced by panel doctors.

The Passage Regulations, 1858 (South Australia) provided free passage to those “with the intention of working for hire in that calling. They must be sober, industrious, of good moral character, in good health, free from all mental and bodily defects, within the ages specified, appear physically to be capable of labour, and have been vaccinated or had small-pox”.

The current age imposition of 50 (as at July 1) is a little more generous than in 1858, where single divorcees (or those who just wanted to run away from their spouses), widowers and widows with children, single men over 40, married men over 45, single women over 35, and those that owed money to creditors were all excluded from the free passage offer.

Married mechanics (as needed), masons, bricklayers and farriers, wheelwrights, sawyers, carpenters, and gardeners under 45 were OK. When the colony suffered labour shortages mechanics and single men in the prior listed occupations were also provided free passage.

As with our current State Sponsorship arrangements, those coming over had to sign an undertaking to remain in South Australia for at least two years.

The use of the dreaded IELTS (English ability) test has been strengthened with the new changes assuming everyone has at least competent English (an overall score of 6). To gain much needed points under the new system, everyone must sit the test and score 7 (proficient) or 8 (superior) in each element of the test. Even for native English speakers this requires some effort. Given the decline in formal English education (ie grammar and spelling) in many countries, it is difficult to see how many will pass the comprehension components of the test.

This inherently discriminatory criterion is however, nowhere near as harsh as its ancestors. Until the Migration Act 1958 (Cth) came into being, officers could require prospective emigrants to complete onerous dictation tests. Section 3(a) of the Immigration Restriction Act 1901 (Cth) stated that entry could be refused to “any person, who when asked to do so by an officers fails to write out at dictation and sign in the presence of the officer a passage of fifty words in length in an European language directed by the officer”. So, not only could you fail it in English, but they could ask you to dictate in French, German or Dutch.

In our view, remembering that the Migration Act is exempt from anti-discrimination requirements, the IELTS test barrier of 7 or 8 is unfair and some might say draconian, creating an artificial barrier to entry based on Anglo-ethnicity, and goes against the general positive Australian attitude to multiculturalism. The difficulty facing Australia (and every other developed country in the world) is creating barriers which appear on their face to be fair to all whilst at the same time limiting the numbers of people who are eligible from entering the country.

To a large extent, this problem will be resolved by the proposed pool system to be introduced on July 1, 2012. Under the proposed system, prospective candidates must submit their details. The cream of the crop will then be invited to apply for a visa on a quarterly basis.

Currently, onshore applicants are granted automatic bridging visas allowing them to stay in Australia on the same terms as their current visa (typically a tourist or student visa) until a decision is made on their new visa application (typically a working visa).
Under the new arrangements, it is likely to be many months after they have submitted their details before they are invited to apply. Only at the time of application will they be granted a bridging visa (and only if they happen to still be onshore). The more likely scenario is that the applicant’s original visa will have expired in the meantime and they will be offshore when and if their name is drawn out of the pool.

© Owen Harris, Harris Wake Legal.