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University of New South Wales Law Journal Student Series |
HAS COVID-19 EXPOSED THE IMPACTS OF AUSTRALIA’S NEOLIBERAL IMMIGRATION POLICIES? A CRITICAL REVIEW OF AUSTRALIA’S AMBIVALENCE TOWARDS TEMPORARY MIGRANT INCLUSION AND PROTECTION
SONJA DUNCAN
I INTRODUCTION
According to Anna Boucher, COVID-19 is not only a health crisis it is a migration crisis that is ‘refracting back to us all the forms of economic and social inequality that we have always had’.[1]
Nela Isakovic supports this, arguing that COVID-19 has exposed ‘the toxic effects of a system that has for far too long dominated every aspect of our society’.[2] She argues that capitalism, and by extension neoliberalism,
has depleted our public services, turned our education and healthcare into profit-driven businesses...hoarded profits at the expense of undervalued and underpaid workers...[3]
This essay examines the impact of COVID-19 on temporary migrants in Australia. It argues that the impact of the pandemic on temporary migrants ‘is a direct consequence of dramatic and deliberate changes in immigration policy since the 1990s’.[4] The essay specifically highlights how Australia’s immigration rules, based on neoliberal priorities such as free market trade, deregulation and a shift away from state welfare provisions, has contributed to increased vulnerability and exclusion of temporary migrants during COVID-19.
While all temporary migrant workers in Australia have the same rights as those afforded to citizens under the Fair Work Act 2009 (Cth)[5], they do not enjoy the same privileges as citizens or permanent residents when it comes welfare support. During COVID-19 permanent residents were granted most of the same protections as citizens, including access to welfare, removal of waiting periods for entitlements, and access to Medicare.[6] Temporary migrants were not granted these protections.
With limited (if any) access to financial support or healthcare, temporary migrants remain particularly vulnerable to the impacts of COVID-19.[7] While Australia’s response to the pandemic was exclusionary to the point of sending temporary migrants home, other countries, such as Portugal, implemented more inclusionary policy approaches that afforded temporary migrants citizenship rights and protections.[8] Temporary migrants in Portugal were granted access to the national health service, social services, and work and rental contracts, thereby ensuring they were not adversely impacted by the pandemic.[9]
Section II provides a brief overview of Australia’s migration program and changing immigration policies since the late 1990’s. It defines neoliberalism and highlights that neoliberal immigration policies introduced in the late 1990’s prioritised labour market efficiencies, including employer flexibility, cheap labour and profitability which resulted in the erosion the rights of temporary migrants.[10] This section examines neoliberalism from a policy and theoretical perspective and examines what Australia’s immigration policies mean vis-a-vis inclusion and membership.[11]
Section III builds on this and argues that COVID-19 has exposed the vulnerabilities of temporary migrants due to exclusionary policies that result in restricted bargaining power and lack of agency. While Australia has the second largest migrant workforce in the OECD,[12] temporary visa holders have fewer rights than citizens or permanent residents. This was highlighted during COVID-19, with the government arguing it ‘had to draw the line somewhere’,[13] stating that temporary migrants were not entitled to government subsidies and should leave the country if they were not able to support themselves.[14]
Section IV argues that the federal government’s response COVID-19 not only ignored the vulnerabilities of temporary migrants, but ‘failed to meet the basic requirements of international human rights law’.[15] This section briefly reviews the international human rights treaties Australia has ratified that protect migrant workers. These include the International Covenant on Civil and Political Rights (“ICCPR”),[16] International Covenant on Economic, Social and Cultural Rights (“ICESCR”)[17] and the International Convention on the Elimination of All Forms of Racial Discrimination (“ICERD”).[18] This essay argues that the federal response to COVID-19 has not met the requirements of international human rights law.[19]
Section V proposes a more inclusive immigration framework that would enable Australia to meet its international human rights obligations and offer increased social protection to temporary migrants. It argues that Australia must build a more inclusive society that welcomes migrants as people ‘not just as economic inputs’.[20] This section draws on the work of Stephen Castles to briefly discuss how theories of transnational citizenship can promote inclusiveness. It supports Castles’ argument for rethinking the meaning of citizenship rights in an increasingly mobile world to ensure people have rights where they live and work.[21]
Section VI concludes that COVID-19 has highlighted the failure of neoliberal capitalism,[22] and exposed the lack of inclusion and protection measures available to temporary migrants in Australia.
II AUSTRALIA’S NEOLIBERAL IMMIGRATION POLICIES AND THE RISE OF TEMPORARY MIGRATION IN AUSTRALIA
Australia’s immigration policies have evolved since the first federal immigration portfolio was created in 1945. Since then, the focus has shifted from attracting migrants to increase Australia’s population, to attracting temporary migrants to meet the labour needs of the economy.[23] It is this demand-driven labour market flexibility and ‘indifference towards economic inequality’[24] that characterises neoliberalism.
While it is acknowledged that there are economic benefits to some temporary migrants working in more developed nations (for example, by sending remittances home), this essay focuses on the lack of financial, healthcare and social support services available to temporary migrants in Australia. It is argued that Australia’s exclusionary policies have resulted in increased vulnerability of temporary migrants on whose labour of our economy depends.[25]
The term “temporary migrant” includes ‘all foreign entrants to Australia who are granted a valid visa that entitles the holder to stay for at least 12 months and that grants work rights in some form’.[26] For the purposes of this essay, it includes temporary skilled and unskilled workers international students and working holiday makers.
The number of temporary migrants in Australia expanded rapidly in the two decades from 1996, driven by a range of global and local factors. Skills shortages and the shift to a service-based economy ‘saw Australia supplement permanent settlement with flexible migrant labour forces selected on the basis of their ability to both rapidly integrate into the labour market and to create minimal burden on state-sponsored social services’.[27] Changes to immigration policy to enhance temporary migration were made when ‘labour shortages raised the risk of escalating wages’ and because improved labour market efficiency ‘was deemed necessary in the context of more competitive and internationalised market environments’.[28]
While these ‘dramatic and deliberate changes in immigration policy’[29] increased labour market efficiency, they ‘led to the abandonment of previous policy arrangements that had successfully enabled social and economic inclusion of migrant workers’.[30] This neoliberal approach, ‘driven by employer association lobbying’[31] was supported with a move away from permanent residency to large-scale temporary migration with a preference for applicants most likely to ‘make a net economic contribution’.[32] This approach supported Australia’s ‘goal of maximising the economic returns of immigration policy’[33] prevalent in its neoliberal politic.
As Clibborn and Wright argue, ‘policy changes have been informed by a narrow, neoliberal understanding of the national interest defined exclusively in terms of budgetary outcomes and employer flexibility, with minimal attention given to social inclusion or equity considerations.[34]
Tazreiter supports this stating that temporary migration poses challenges to migrants brought about by ‘the present era of fast paced global change within the predominantly neoliberal economic systems of values and exchange.[35] Mares argues that temporary migrants are regarded as ‘non-Australian’ for the ‘purposes of government administration’[36] increasing the risk that temporary migrants will be considered as a ‘useful economic input that can be discarded when no longer required’.[37]
While the range of industry sectors encouraging temporary migrants into Australia continues to expand,[38] the rights and agency of temporary migrants is curtailed under visa policies that ‘increasingly come to resemble a guest-worker regime’.[39] An essential feature of guest worker schemes is to ‘curtail migrant workers’ rights, agency and bargaining power, which can produce short-term dividends for businesses and governments seeking a more cost-efficient and productive workforce’.[40] Temporary migrants as a ‘disenfranchised class’ thus presents a ‘fundamental injustice that needs to be rectified’.[41]
While there is a large diversity of temporary migrants in Australia they share the fact ‘their migration status acts as an axis of disadvantage’.[42] Successive governments have ‘imposed visa conditions that make it difficult for temporary residents to access employment protections’.[43] Even though most temporary migrants work and pay taxes, ‘they are excluded from welfare support and social security’.[44]
Kneebone argues that the important role played by temporary migrant workers competes with their ‘commodification’ which effectively excludes them from ‘the social contract of the host country’.[45] To support this argument, Kneebone quotes Saskia Sassen, who describes temporary migrant workers as ‘authorised but unrecognised’[46] and Pia Oberoi who argues that the work of temporary migrants ‘is accepted but their presence is rejected’.[47]
Kneebone supports Mares in stating that ‘migrant workers are frequently paid less than local workers and are excluded from social security protection’.[48] She argues that states can be seen as ‘complicit in policies which contribute to the exploitation of migrant workers’.[49] Kneebone highlights that foreign workers are ‘objects of a global contractualisation of labour migration’[50] in which, she argues, borders and sovereignty create obstacles to citizenship rights of migrant workers.
Unions NSW argues that the vulnerability of temporary migrants ‘is institutionalised legally and industrially within a number of restrictive conditions attached to various visas.’[51] Gordon supports this, stating that temporary migrant worker programs ‘are intentionally organised by states to curtail worker rights and freedoms’[52] including denial of citizenship rights, and the exclusion ‘from membership of the community both socially and politically’.[53]
This exclusion from membership and political community further enhances the vulnerability of temporary migrants. Drawing on theories of distributive justice, Walzer highlights that while markets are ‘commonly open to all comers’[54] and temporary migrants can ‘participate freely in exchange of goods’,[55] they have no say in how those goods are shared. Non-members of a community are thus ‘cut off from the communal provision of security and welfare’, ‘have no guaranteed place in the collectivity’ and are ‘always liable to expulsion’[56]. Immigrants, Walzer argues, are ‘resident aliens’ admitted into the country to ‘free citizens from hard and unpleasant work’.[57] He describes the state as being ‘like a family with live-in servants’[58] which further supports Clibborn and Wright’s guest-worker analogy. As guest-workers, temporary migrants are ‘neither citizens nor potential citizens’ and have no political rights.[59] As Walzer argues, ‘without the denial of political rights and civil liberties and the ever-present threat of deportation’[60] the guest-worker style migration and visa system would not work.
The vulnerability of temporary migrants is further increased in a neoliberal system where ‘neither transnational nor regional protective mechanisms offer prospects of better protection’.[61] The fact that temporary migrants offer their labour in a globalised market removes them from the protection of their home state and offers them little protection in the host state. Kneebone argues that we are witnessing a period of ‘industrialized capitalism’ where the situation of transnational migrant workers ‘is akin to the plight of the worker in the industrialising nation-states two centuries earlier’.[62] The increased vulnerability and ongoing ‘plight’ of temporary migrants living in Australia during Covid-19 is discussed in the Section III.
III EXPOSING TEMPORARY MIGRANT VULNERABILITIES DURING COVID-19
An estimated 1.1 million migrants living in Australia at the outbreak of COVID-19 were ineligible for almost all welfare measures.[63] Despite being affected by widespread lay-offs, temporary visa holders were excluded from Jobkeeper and other support payments.[64]
As Askola points out, the federal government’s ‘overarching message is one of exclusion, echoing the conditional basis on which migrants on temporary visas are allowed to reside in Australia: not considered part of the population, they must be self-sufficient or leave’.[65] While some states and territories provided financial and other support to temporary migrants, Askola argues that the federal government’s approach has been justly criticized for denying responsibility for temporary migrants.[66]
With no pathway to permanent residency, no access to welfare support or social security and a visa that is often tied directly to their employer, temporary migrants face economic insecurity, exploitation and the threat of deportation.[67] COVID-19 has only increased these insecurities and has further highlighted Australia’s exclusionary migration policies.[68] A survey of over 5,000 temporary migrants from 95 countries highlighted that temporary migrants in Australia ‘have experienced and are continuing to experience significant social and economic disadvantage due to the COVID-19 pandemic’.[69]
Temporary migrants working in Australia experience higher rates of insecure employment than the general population and are generally employed on a casual or part-time basis’.[70] In its submission to the Australian Government’s Inquiry into the Impacts of Temporary Migration, Unions NSW argues that temporary migrants have been unable to return to their home countries during COVID-19 ‘due to a combination of resources, border closures and other obstacles’.[71] As these temporary visa holder are ‘highly involved in the labour market’,[72] reports quickly emerged about temporary migrants being impacted by job losses.[73] Research undertaken by the University of NSW shows that ‘more than 40% of temporary visa holders skipped meals and a third faced homelessness due to lack of government support during the pandemic’.[74]
Despite many temporary migrants facing destitution without the coronavirus safety net,[75] they remained absent from the government’s assistance packages. Numerous stories and case studies have been published regarding the impacts of COVID-19 on temporary migrants in Australia.[76] This increased vulnerability was further highlighted by Unions NSW in its supplementary submission to the Inquiry.
The COVID-19 pandemic has exacerbated the economic and social vulnerability of temporary migrant workers as they have not been included in the JobKeeper wage subsidy scheme and are unable to access JobSeeker or other social security payments.[77]
Extending financial support to temporary migrants would have added $18 billion to the $200 billion assistance package.[78] However, instead of providing the necessary financial support the federal government’s consistent message to temporary migrants was ‘if you are unable to support yourself, you should make arrangements to return to your usual country of residence’.[79] This is despite obvious barriers for some temporary visa holders to do so. It has been argued that the benefits of extending the wage subsidy scheme to temporary migrants would have outweighed the short-term costs, as the ‘hardship resulting from...exclusion will undermine public health measures’ and ‘discriminate against the businesses that employ them’.[80]Interestingly, concessions were made for temporary migrants employed in COVID-19 critical sectors, including health care, aged and disability care, childcare, agriculture and food processing.[81] The creation of the Temporary Activity Visa (subclass 408) Australian Government Endorsed Agreement Event Stream (COVID-19 Pandemic event visa) highlights the government’s attitude of “if we need you, you can stay”. Visa conditions were changed at short notice to ensure the impacts of the pandemic on Australian residents and citizens as well as sectors critical to Australia’s economy were reduced or mitigated.
While this and other changes in visa status may be regarded as a positive outcome for temporary migrants, the Human Rights Law Centre, the Lowy Institute, academics and media journalists argue that Australia has an obligation to support all temporary migrants on whose labour our economy depends.[82] As such, JobKeeper and JobSeeker subsidies should have been extended to all employees, regardless of their visa status, occupation or length of time in their current job.
Globally, there is also a strong case for supporting temporary migrants impacted by COVID-19. Ratha argues that governments should support temporary migrants and provide access to health, housing and other social services.[83] The UN Human Rights Office of the High Commissioner highlights that ‘COVID-19 does not discriminate, and nor should our response, if it is to succeed’.[84]
The inclusion of all migrants and marginalized groups is necessary in all aspects of the response to COVID-19, whether we are looking at prevention, detection, or equitable access to treatment, care or containment measures, or safe conditions of work.[85]
Australia’s exclusion of temporary migrants from welfare subsidies and access to free healthcare was at odds with responses of other countries such as the United Kingdom and Ireland, which extended wage subsidies to temporary migrants, and Portugal which offered citizenship rights and protections to temporary migrants. [86]
In late March 2020, as the outbreak escalated, Portugal temporarily gave all migrants and asylum seekers full citizenship rights, granting them access to healthcare and welfare benefits.[87] This approach changed the focus from one of regulating migration to respecting migrants’ rights. Schmitt and Massimino highlight that Portugal’s decision ‘reflects the reality that responses to the COVID-19 pandemic prioritizing unity and equity are not only more just, but likely more effective as well’.[88] This was echoed by Portugal’s Internal Affairs Ministry which stated ‘in these exceptional times, the rights of migrants must be guaranteed’.[89]
At the October 2020 International Dialogue on Migration, Ambassador Rui Macieira delivered a Statement by Portugal highlighting the need for more effective migration governance and inclusive action particularly during COVID-19.[90] As the first country to establish a National Plan for the Implementation of the Global Compact for Safe, Orderly, and Regular Migration (“GCM”), Portugal established a practical framework to minimise vulnerability at different stages of migration.[91]
During COVID-19 Portugal implemented its governance model for migration to mitigate the negative impacts of the crisis on temporary migrants. The country ‘aimed to protect human rights and shape a more inclusive and organised method to address future crises’.[92] Response and recovery systems and processes that aligned with the GCM were implemented to ensure a ‘dignified and human rights approach on preparedness, prevention, response and recovery stages...’[93] This included providing access to healthcare to all, irrespective of migration status, granting temporary residency rights to all migrants and asylum seekers with pending applications, and adjusting visa arrangements for seasonal workers allowing them to access social support and medical care.[94]
The International Organisation for Migration (“IOM”) supports these measures, stating that migration policies must be ‘migrant-centred, factor in the health and safety of seasonal migrant workers and comply with decent work standards’.[95] The IOM argues for effective social protection systems for temporary migrants, particularly during COVID-19 including access to health insurance coverage and healthcare, access to housing, hygiene and sanitation and proactive engagement to ensure the needs of temporary migrants are understood.[96]
Recognising Portugal’s leading response to the protection of migrants during the pandemic, UNAIDS commented that the country has ‘demonstrated leadership and compassion by prioritizing these measures to protect the most vulnerable when responding to COVID-19’.[97] UNAIDS further urged all countries to ‘adopt a human rights-based approach in responding to COVID-19 that puts people at the centre and respects the rights and dignity of all’.[98] The importance of this approach is discussed further in the next section which briefly examines the international legal framework for the protection of temporary migrants, and migrant workers in particular.
IV INTERNATIONAL LAW AND THE PROTECTION OF MIGRANT WORKERS
Askola argues that human rights law provides a ‘language to explain why supporting temporary migrants is more than a moral obligation’.[99] As a member of the International Labour Organisation (“ILO”) and the United Nations, Australia should strive to fulfil the international labour and human rights ideals espoused by these organisations, regardless of whether particular conventions have been ratified. The federal government’s response to COVID-19 not only ignored the vulnerabilities of temporary migrants, but ‘failed to meet the basic requirements of international human rights law’.[100]
The ILO Constitution highlights the urgent need for the ‘protection of the interests of workers when employed in countries other than their own’.[101] It recognises the importance of protecting migrant workers against sickness, disease and injury. As a member of the ILO, Australia is obliged to protect the rights of all workers, including migrant workers. Importantly, according to the 1998 Declaration on Fundamental Principles and Rights at Work,[102] even those states that do not ratify ILO Conventions, have obligations imposed by their membership to the ILO.
While Australia is a member of the ILO and party to several international human rights conventions, it has failed to ratify three universal instruments that protect the human rights and labour rights of migrant workers: the United Nations International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (“ICRMW”);[103] the ILO Migrant Workers (Supplementary Provisions) Convention (“ILO C-143”);[104] and the ILO Migration for Employment Convention (Revised) 1949 (“ILO C-97”).[105] ILO C-97 specifically guarantees basic rights to temporary migrants, including access to healthcare and the right to non-discrimination.
A number of reasons have been provided by the government for failing to ratify including that human rights of temporary migrants are protected under international law, including the treaties to which Australia is already a party, such as the ICCPR, the ICESCR and the ICERD.[106] Both the ICCPR and the ICESCR ‘start from an assumption of equal and non-discriminatory treatment’[107] and ‘apply to everyone, irrespective of nationality or statelessness’.[108] The UN Committee on Economic, Social and Cultural Rights (“CESCR”) emphasises that the ICESCR rights ‘apply to everyone including non-nationals’.[109]
While the ICESCR contains a number of statements on workers’ rights,[110] the CESCR comments that states must also take measures to combat discrimination. [111] This is reinforced by the ICERD which clearly excludes distinctions made between citizens and non-citizens.[112] The ICERD Committee enforces this by stating that where differential treatment based on citizenship or immigration status exists, it will constitute discrimination ‘if the differential treatment is not applied to pursue a legitimate claim’.[113]
While it is recognised that human rights are not absolute and states can therefore restrict the exercise of most rights where there is good reason, Askola argues that this flexibility ‘is not a mandate for wholesale discrimination against migrants’ and that states ‘must be able to justify any differential treatment’.[114]
According to Askola, both the Human Rights Council (“HRC”) and the CESCR emphasise that differential treatment ‘can only be justified with reference to a legitimate aim and that the criteria must be reasonable and proportional to the achievement of this aim’.[115] While the determination of lawfulness inherent in the differential treatment of non-citizens requires analysis of ‘complex economic and social realities’[116] Askola argues that the federal government’s exclusion of temporary migrants from JobKeeper because they ‘had to draw the line somewhere’[117] is neither legitimate, nor reasonable.
The CESCR has noted that
a failure to remove differential treatment on the basis of a lack of available resources is not an objective and reasonable justification unless every effort has been made to use all the resources that are at the state party’s disposition in an effort to address and eliminate the discrimination, as a matter of priority.[118]
Australia’s exclusionary approach is in direct contrast to this requirement. As Askola argues
Australia is bound by its international obligations to temporary migrants as human beings...It must give good reasons to revoke the unjustified exclusion of migrants on temporary visas from the scope of basic assistance and ensure specific measures are taken to protect vulnerable migrants against foreseeable risks...’
A good starting point is to rethink Australia’s neoliberal migration program and visa policies and develop a more inclusive migration framework that aligns with international human rights obligations. This is discussed further in the next section.
V RETHINKING NEOLIBERALISM AND MIGRATION POLICIES
According to Castles, ‘the neoliberal ideology of economic efficiency and shared prosperity masks the exploitation of labour on a global scale’.[119] He argues that the neoliberal dream is dualistic, ‘a cosmopolitan, mobile world for elites; a world of barriers, exploitation and security controls for the rest’.[120] Castles argues for inclusive societies that welcome migrants as people ‘not just as economic inputs’.[121] A ‘de-commodification’ of labour is thus needed, which provides ‘a strong social safety net’ and affords citizenship and labour rights to temporary migrants.[122]
Granting citizenship to temporary migrants would ‘unquestionably be an important advance for these workers’[123] by providing employment insurance and the ability to leave their jobs without risk of deportation. However, with increased temporary migration Castles argues that a shift from a ‘multicultural notion of citizenship to a transnational model’[124] may be needed. As migrants come to ‘see their futures in flexible mobility’[125] citizenship and temporary visa programs and policies may need to be reshaped. Castles argues that governments must ‘rethink the meaning of citizenship rights in an increasingly mobile world’[126] and provide expanded rights to temporary migrants. He comments that the answer ‘cannot lie in the denial of rights to people whose future plans are unclear, for the presence of a minority with inferior rights is always disadvantageous for all, as it can lead to a divided and conflictual society’.[127]
Despite some progress towards transnational and ‘global justice-oriented forms of membership and rights that address inequalities within and between states’,[128] Tazreiter comments that a more ‘privileged’ form of citizenship remains.[129] She argues that new systems of rights allocation and protections are needed, along with ‘renewed attention to forms of belonging to accompany the complexities surrounding new migration flows’.[130]
Castles supports this, arguing that ‘mobile people need to have rights where they live and work, even if they do not intend to stay permanently’.[131] International cooperation will be required to ensure temporary migrant rights such as access to healthcare, welfare, accumulated pension and superannuation entitlements are established and supported globally. The European Union provides a model for ‘regional portability of rights’[132] which may act as a precursor to global acceptance of transnational citizenship rights. Castles proposes that ‘flexible and multi-layered identities are an intrinsic aspect of transnationalism’,[133] a theory supported by Tazreiter.
Migrant transnationalism elaborates the new social spaces and cross-border communities emerging through new patterns of mobility and enables more nuanced understanding of the social, economic, and political ties...migrants not only have loyalties and ties to more than one nation-state, but often live with flexible work, education, and family arrangements.[134]
The changes in the character of migration and in the ‘aspiration and opportunities of migrants’[135] requires new approaches to migration and citizenship models. These new approaches must ensure that the principles of membership and inclusion are addressed and that temporary migrants have access to welfare and social protections, particularly in times of crisis. As Kneebone argues, the concepts of allegiance and identity that exclude temporary migrants from the ‘social contract’ of the host country must be replaced with a concept of ‘transnational justice’ based on ‘the notion of work and labour rights as social and economic rights’.[136]
As these rights have increasingly ‘become detached from citizenship and state protection’,[137] a new model of transnational citizenship is required to enable not only a more inclusive global society, but a society in which international human rights norms and obligations are protected.
VI CONCLUDING COMMENTS
COVID-19 has highlighted the failure of neoliberal capitalism[138] and exposed the lack of inclusion and protection measures available to temporary migrants in Australia. Changes are needed to Australia’s migration program and visa policies to ensure temporary migrants are afforded the same rights and protections as citizens and are treated fairly in a rapidly changing labour market. Australia must move away from ‘regulating migration’ to ‘respecting migrant worker rights’, reflecting the approach taken by Portugal during COVID-19.
Apart from moral imperatives to build societies that encourage solidarity, equality and caring for our fellow human beings,[139] the federal government has a legal responsibility to ensure the human rights of temporary workers are respected and protected in accordance with our commitments to international human rights treaties and ILO conventions.
[1] Anna Boucher, COVID-19 is not only a health crisis, it’s a migration crisis’, The Interpreter (online 2 April 2020) <https://www.lowyinstitute.org/the-interpreter/covid-19-not-only-health-crisis-it-s-migration-crisis>.
[2] Nela Porobic Isakovic, ‘What has COVID-19 taught us about neoliberalism’ (2020) Women’s International League for Peace and Freedom online <https://www.wilpf.org/covid-19-what-has-covid-19-taught-us-about-neoliberalism/>.
[3] Ibid.
[4] Stephen Clibborn and Chris Wright, ‘COVID-19 and the policy induced vulnerabilities of temporary migrant workers in Australia (2020) 85 Journal of Australian Political Economics, 62-70, 62.
[5] It should be pointed out however, that these workplace rights are not always enforced. Exploitation of temporary migrant workers in Australia has been well documented in the agricultural, hospitality, cleaning, construction and agriculture sectors.
[6] Anna Boucher (n 1).
[7] International Organisation for Migration, ‘COVID-19: Policies and impacts on seasonal agricultural workers’ (27 May 2020) online <https://www.iom.int/sites/default/files/documents/seasonal_agricultural_workers_27052020_0.pdf>.
[8] Tom Stayner, ‘Calls for Australia to follow Portugal and treat migrants as residents during coronavirus crisis’, SBS News (online 2 April 2020) <https://www.sbs.com.au/news/calls-for-australia-to-follow-portugal-and-treat-migrants-as-residents-during-coronavirus-crisis>.
[9] Joana Ramiro, ‘Faced with coronavirus, Portugal is treating migrants as citizens – we should too’, Jacobin (online 4 February 2020) <https://jacobinmag.com/2020/04/coronavirus-portugal-regularize-migrants-citizenship-covid-health>.
[10] Stephen Clibborn and Chris Wright, (n 4) 63.
[11] Michael Walzer, Spheres of Justice: A Defence of Pluralism and Equality (1983), Chapter 2, ‘Membership’, 31-63.
[12] Tom Stayner (n 8).
[13] Jano Gibson and Alexis Moran, ‘As coronavirus spreads, “it’s time to go home” Scott Morrison tells visitors and international students’, ABC News (online 3 April 2020) < https://www.abc.net.au/news/2020-04-03/coronavirus-pm-tells-international-students-time-to-go-to-home/12119568>
[14] Ibid.
[15] Heli Askola, ‘Temporary migrants as a vulnerable group during COVID-10’ (17 July 2020) Castan Centre for Human Rights Law, online <https://castancentre.com/2020/07/17/temporary-migrants-as-a-vulnerable-group-during-covid-19/>.
[16] International Covenant on Civil and Political Rights opened for signature, 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[17] International Covenant on Economic, Social and Cultural Rights in the Context of Business Activities, UN Doc. E/C.12/GC/24 (10 August 2017).
[18] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969).
[19] Heli Askola (n 15).
[20] Stephen Castles, ‘Rethinking Australian Migration’ (2016) 47, 4 Australian Geographer, 391-398, 391.
[21] Ibid.
[22] Michael Peters, ‘The disorder of things: Quarantine unemployment, the decline of neoliberalism, and COVID-19 lockdown crash’, Educational Philosophy and Theory online <10.1080/00131857.2020.1759190>.
[23] Harriet Spinks, ‘Australia’s Migration Program’ (29 October 2020) Parliament of Australia online <https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/BN/1011/AustMigration>.
[24] Wikipedia definition ‘Economic Liberalism’ online <https://en.wikipedia.org/wiki/Economic_liberalism#:~:text=Free%20trade%2C%20deregulation%20of%20the,often%20hallmarks%20of%20economic%20liberalism>.
[26] Peter Mares, ‘Locating Temporary Migrants on the Map of Australian Democracy’ (2017) 3 Migration, Mobility & Displacement, 9-31, 10.
[27] Ibid, 11.
[28] Chris Wright, ‘Immigration Policy and Market Institutions in Liberal Market Economies’ (2012) 43 Industrial Relations Journal, 110–136, 128.
[29] Stephen Clibborn and Chris Wright (n 4) 62.
[30] Ibid.
[31] Stephen Clibborn and Chris Wright (n 4) 65.
[32] Stephen Clibborn and Chris Wright (n 4) 63.
[33] Ibid.
[34] Stephen Clibborn and Chris Wright (n 4) 67.
[35] Claudia Tazreiter, ‘Temporary migrants as an uneasy presence in immigrant societies: Reflections on ambivalence in Australia’ (2019) 60 International Journal of Comparative Sociology, 91-109, 91.
[36] Peter Mares, ‘Temporary Migration and its Implications for Australia’ (2012) Papers on Parliament No, 57, online <https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/~/~/link.aspx?_id=06B96F584FD0483D9F369F0B5186C6A9&_z=z>
[37] Ibid.
[38] Peter Mares (n 36).
[39] Stephen Clibborn and Chris Wright, ‘Reforming Australia’s Temporary Migrant Labour Policy Regime’ (2020) Submission to the Senate Select Committee on Temporary Migration, Inquiry into the impact of temporary migration on the Australian economy, wages and jobs, and social cohesion and workplace rights and conditions Submission 42, 25 March 2020.
[40] Ibid.
[41] Stephen Clibborn and Chris Wright (n 39).
[42] Heli Askola (n 15).
[43] Ibid.
[44] Heli Askola (n 15).
[45] Susan Kneebone, ‘Transnational labour migrants: whose responsibility?’ (2014) In Jenkins, Nolan and Rubenstein (Eds.), Allegiance and Identity in a Globalised World (Connecting International Law with Public Law), Cambridge University Press, 426 – 450, 432.
[46] Saskia Sassen, ‘The Repositioning of Citizenship’, in Alison Brysk and Gershon Shafir (eds.), People out of Place: Globalisation, Human Rights, and the Citizenship Gap (Routledge, 2004), ch 11, 200.
[47] Pia Oberoi, ‘Empowering Migrants: Human Security, Human Rights and Policy’ in Alice Edwards and Carla Ferstman (eds.), Human Security and Non-Citizens: Law, Policy and International Affairs (Cambridge University Press, 2010), ch.9, 229.
[48] Susan Kneebone (n 45) 438.
[49] Susan Kneebone (n 45) 444.
[50] Ibid.
[51] Unions NSW Supplementary Submission, Inquiry into the impact temporary migration has on the Australian economy, wages and jobs, social cohesion and workplace rights and conditions, Submission 64, 30 July 2020.
[52] Todd Gordon, Capitalism, Neoliberalism, and Unfree Labour’ (2019) 45 Critical Sociology, 821-939, 924.
[53] Susan Kneebone (n 45) 438.
[54] Michael Walzer, Spheres of Justice: A Defence of Pluralism and Equality (1983), Chapter 2, ‘Membership’, 31-63, 31.
[55] Ibid.
[56] Michael Walzer (n 54) 41.
[57] Michael Walzer (n 54) 41.
[58] Ibid.
[59] Michael Walzer (n 54) 44.
[60] Ibid.
[61] Susan Kneebone (n 45) 428.
[62] Susan Kneebone (n 45) 449.
[63] Tom Stayner (n 8).
[64] Ben Doherty, Josh Taylor and Paul Karp, ‘Left with nothing: Australia’s migrant workforce face destitution without a coronavirus safety net’, The Guardian (online 1 April 2020) <https://www.theguardian.com/australia-news/2020/apr/01/left-with-nothing-australias-migrant-workforce-face-destitution-without-coronavirus-safety-net>.
[65] Heli Askola (n 15).
[66] Ibid.
[67] Stephen Clibborn and Chris Wright (n 4) 64.
[68] Ibid, 66.
[69] Unions NSW Supplementary Submission, Inquiry into the impact temporary migration has on the Australian economy, wages and jobs, social cohesion and workplace rights and conditions, Submission 64, 30 July 2020.
[70] Migrant Worker Taskforce, Commonwealth of Australia, Report of Migrant Workers’ Taskforce (2019), 108
[71] Unions NSW (n 69).
[72] Heli Askola (n 15).
[73] Matt Shea, ‘It’s a huge weight: Australia’s Migrant Workers Left to Survive Without COVID-19 Safety Net’, Broadsheet (online 9 April 2020) <https://www.broadsheet.com.au/national/food-and-drink/article/its-huge-weight-australias-migrant-workers-left-survive-without-covid-19-safety-net>.
[74] Laurie Berg and Bassina Farbenblum, ‘New research reveals the suffering of temporary migrants during the COVID-19 crisis’, UNSW Newsroom (online 17 August 2020) <https://newsroom.unsw.edu.au/news/social-affairs/new-research-reveals-suffering-temporary-migrants-during-covid-19-crisis>.
[75] Ben Doherty, Josh Taylor and Paul Karp (n 64).
[76] See for example Laurie Berg and Bassina Farbenblum, ‘New research reveals the suffering of temporary migrants during the COVID-19 crisis’, UNSW Newsroom (online 17 August 2020) <https://newsroom.unsw.edu.au/news/social-affairs/new-research-reveals-suffering-temporary-migrants-during-covid-19-crisis> and Ben Doherty, Josh Taylor and Paul Karp, ‘Left with nothing: Australia’s migrant workforce face destitution without a coronavirus safety net’, The Guardian (online 1 April 2020) <https://www.theguardian.com/australia-news/2020/apr/01/left-with-nothing-australias-migrant-workforce-face-destitution-without-coronavirus-safety-net>.Refer also to the Monash University report that highlights temporary migrants’ increased vulnerability to domestic and family violence due to the inability to access government financial support programs. See Maani Truu, ‘An Australian-first analysis of case files from a domestic and family service provider in Victoria has revealed the impact of coronavirus on temporary migrants living with violence’, SBS News (online 24 September 2020) <https://www.sbs.com.au/news/three-quarters-of-temporary-migrants-reporting-domestic-violence-during-coronavirus-lockdown-fear-for-their-lives>.
[77] Unions NSW (n 69).
[78] Elias Visontay, ‘Coronavirus: Treasurer won’t expand JobKeeper to include casuals’, The Australian (online 12 April 2020) < https://www.theaustralian.com.au/nation/coronavirus-treasurer-wont-expand-jobkeeper-to-include-casuals/news-story/021360d6d02b39aded0d73e345c2f277>
[79] Australian Government, ‘COVID-19 and the border’, Department of Home Affairs (online 22 June 2020) <https://covid19.homeaffairs.gov.au/student-visa>.
[80] See for example Joo-Cheung Tham, ‘Why temporary migrants need JobKeeper’, The Conversation (online 7 April 2020) <https://theconversation.com/why-temporary-migrants-need-jobkeeper-135688>.
[81] Department of Home Affairs, Australian Government endorsed events (COVID-19 Pandemic event) (29 May 2020) Immigration and citizenship <https://immi.homeaffairs.gov.au/visas/getting-a-visa/visa-listing/temporary-activity-408/australian-government-endorsed-events-covid-19>.
[82] See for example Dilip Ratha, ‘COVID-19 through a migration lens: policy responses should be inclusive of migrants’, World bank Blogs (online 23 April 2020) <https://blogs.worldbank.org/peoplemove/covid-19-through-migration-lens-policy-responses-should-be-inclusive-migrants> and Human Rights Law Centre, ‘Australia cannot leave migrants behind as we face COVD-19’, HRC (online 7 April 2020) <https://www.hrlc.org.au/news/2020/4/6/we-are-all-in-this-together-australia>.
[83] Dilip Ratha, ‘COVID-19 through a migration lens: policy responses should be inclusive of migrants’, World Bank Blogs (online 23 April 2020) <https://blogs.worldbank.org/peoplemove/covid-19-through-migration-lens-policy-responses-should-be-inclusive-migrants>.
[84] United Nations Human Rights Office of the High Commissioner, ‘COVID-19 does not discriminate; nor should our response’ online <https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25730&LangID=E>.
[85] Ibid.
[86] This essay will focus on the approach taken by Portugal. For approaches adopted by the UK and Ireland, see ‘Guidance - Check which employees you can put on furlough to use the Coronavirus Job Retention Scheme’, GOV.UK (Web Page) <https://www.gov.uk/guidance/check-which-employees-you-can-put-on-furlough-to-use-the-coronavirus-job-retention-scheme>; ‘COVID-19 Wage Subsidy Scheme’, Citizens Information, Government of Ireland (Web Page) <https:// www.citizensinformation.ie/en/employment/unemployment_and_redundancy/covid19_temporary_wage_subsidy_scheme. html#lb1830>.
[87] Tom Stayner (n 8).
[88] Alexandra Schmitt and Elisa Massimino, ‘A Migrant Model to Follow: Portugal’s Response to the Coronavirus’, Center for American Progress (online 10 April 2020) <https://www.americanprogress.org/issues/security/news/2020/04/10/482998/migrant-model-follow-portugals-response-coronavirus/>.
[89] Tom Stayner (n 8).
[90] International Dialogue on Migration, ‘Applying the Global Compact for Safe, Orderly and Regular Migration in COVID-19 response and recovery efforts’ (16 October 2020) online <https://www.iom.int/sites/default/files/our_work/ICP/IDM/2020_IDM/ambassador_portugal.pdf>.
[91] International Dialogue on Migration (n 90).
[92] Ibid
[93] International Dialogue on Migration (n 90).
[94] Ibid.
[95] International Organisation For Migration, Issue Brief, ‘COVID-19: Policies and impacts on Seasonal Agricultural Workers’ (27 May 2020) online <https://www.iom.int/sites/default/files/documents/seasonal_agricultural_workers_27052020_0.pdf>.
[96] Ibid.
[97] UNAIDS Press Statement 2 April 2020 online <https://www.unaids.org/en/resources/presscentre/pressreleaseandstatementarchive/2020/april/20200402_portugal>.
[98] Ibid.
[99] Heli Askola (n 15).
[100] Ibid.
[101] Constitution of the International Labour Organisation, opened for signature on 28 June 1919, preamble (entered into force 10 January 1920).
[102] Declaration on Fundamental Principles and Rights at Work, International Labour Conference, 86th sess, Geneva, June 1998. <https://www.ilo.org/public/english/standards/relm/ilc/ilc86/com-dtxt.htm> 26 January 2000.
[103] International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, opened for signature on 18 December 1990, 2220 UNTS 3 (entered into force 1 July 2003).
[104] International Labour Organization (ILO), Migrant Workers (Supplementary Provisions) Convention, C143, 24 June 1975 (entered into force 9 December 1978).
[105] International Labour Organization (ILO), Migration for Employment Convention (Revised), C97, 1 July 1949 (entered into force 22 January 1952).
[106] Sanushka Mudaliar, Laurie Berg, Michael Curtotti, Patrick Earle, Sohoon Lee, Andrew Naylor, and Chris Sidoti, ‘Australian Ratification of Migrant Worker Conventions – Responses to the Concerns Raised by the Australian Government’ (undated) Human Rights Council of Australia. <http://www.aph.gov.au/DocumentStore.ashx?id=59679a7c-2d38-4cb2-b175-4a9939599c7b> .
[107] Heli Askola (n 15).
[108] Ibid.
[109] Heli Askola (n 15).
[110] Including for example, the right to fair wages, a decent living for workers and their families and safe and healthy working conditions
[111] Committee on Economic, Social and Cultural Rights, The Right to Work, General Comment No. 18, UN Doc. E/C.12/GC/18 (2006).
[112] International Convention on the Elimination of All Forms of Racial Discrimination, opened for signature 7 March 1966, 660 UNTS 195 (entered into force 4 January 1969).
[113] CERD Committee, General Recommendation No. 30: Discrimination against non-citizens, UN Doc. HRI/GEN/1/Rev. 9 (Vol. II) (2004), para. 4.
[114] Heli Askola (n 15).
[115] Ibid.
[116] Heli Askola (n 15).
[117] Ibid.
[118] Committee on Economic, Social and Cultural Rights, General Comment No. 20, E/C.12/GC/20 (2 July 2009) Forty-second session Geneva 4-22 May 2009 Agenda item 3.
[119] Stephen Castles, ‘Migration, Crisis, and the Global Labour Market’ (2011) 8(3) Globalisations 311-324, 311.
[120] Ibid.
[121] Stephen Castles, ‘Rethinking Australian Migration’ (2016) 47, 4 Australian Geographer, 391-398, 391.
[122] Stephen Castles (n 119) 311.
[123] Todd Gordon, ‘Capitalism, Neoliberalism, and Unfree Labour’ (2018) 45(6) Critical Sociology, 921-939, 928.
[124] Stephen Castles (n 121) 397.
[125] Ibid.
[126] Stephen Castles (n 121) 397.
[127] Ibid.
[128] Claudia Tazreiter (n 35) 93.
[129] Here Tazreiter is referring here to Aylet Scachar’s 2009 work on citizenship-as-inherited-property
[130] Claudia Tazreiter (n 35) 94.
[131] Stephen Castles (n 121) 397.
[132] Ibid.
[133] Stephen Castles (n 121) 397.
[134] Claudia Tazreiter (n 35) 91.
[135] Stephen Castles (n 121) 397.
[136] Susan Kneebone (n 45) 450.
[137] Ibid.
[138] Michael Peters (n 22).
[139] Nela Porobic Isakovic (n 2).
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