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457 Good Reasons for

Joanna Howe
A F A C U LT Y O F T H E P R O F E S S I O N S
RESEARCH PROFILE

The path to law is paved with good intentions


which, if you stop too long to think about it can present
a signicant cause for concern.
The reason, by way of proving a maxim with an adage, is
of course that even the best-laid plans of mice and men
do often go awry1.
Our language and folklore are laden with evidence that
starting out on a course, and then blithely carrying-onregardless, can be fraught with danger. Even plans made
with our very best intentions can easily wander from the
straight and narrow, and end up bogged, misguided, or
even unrecognisably broken. In hindsight it can be hard to
put a nger on exactly what went wrong, when we were so
sure at the outset that we were heading in the right direction.
To compound the problem, if the plans in question are
being made to balance the interests of large groups
of people, with widely, and sometimes wildly, diering
stakes in the outcome, then we are probably talking
about public policy, and things can get quickly sticky.
We need to be especially careful, it seems, once we start
making rules and writing things down. In fact, at this point
we often are a little more careful. The language of rules is
invariably more knotty than everyday language. This no
doubt arises from an eort to pin things down, minimise
ambiguity, and take into account all of the bendy bits. But
despite our most valiant eorts, rules still have a habit of
developing unanticipated repercussions.

What we need are some people to keep an eye on our


laws and, when they seem less eective at serving the
public interest than they were intended to be, undertaking
an eort to get things back on track.
Fortunately, University of Adelaide researcher Joanna
Howe is one of those people.

Amongst numerous other things*,

Joanna is a lawyer, lecturer, researcher and writer,


whose work is making a signicant dierence to the
lives of thousands of people every day. This is because
she spends a great deal of time researching and
critiquing laws which aect the lives of thousands of
people every day laws, for example, which regulate
temporary immigration, workplace relations, unpaid
work experience, and adoption.
With a moments reection, a certain motif becomes
apparent in Joannas research interests, as these are
all areas in which the law can potentially serve (or fail)
people who are in some of the more vulnerable
positions within our society.
Over the last few years Joanna has become a signicant
gure in public debate and policy direction arising
from her research into temporary immigration law. In
particular, Joanna has shone a great beam of light on
laws surrounding the provision of 457 temporary work
visas for overseas labourers.

This is a topic which, for a variety of reasons,


over a number of years, has entered the
public consciousness through news media,
political debate and discussions about the
condition of the Australian economy. It is a
classic example of a sphere of public policy
which involves protagonists with widely
diering interests and an area which
touches many lives on a daily basis.
The basic issue is that sometimes
businesses nd themselves in need of
workers who, for any number of reasons,
prove dicult to source from the Australian
labour market.
This can at times aect employers with
jobs to be lled in roles as diverse as
psychiatrists, fruit pickers, airline stewards,
or mining engineers.
There have been laws and mechanisms
to address this situation for a number
of years but these were revised quite
considerably in 1996 and since then have
been the subject of persistent reform.
Before that it was common for Australian
governments to favour permanent
immigration to cover skills shortages, with
the great waves of immigration of the 1950s
and 1970s being historic cases in point.
With temporary migration solutions
gaining favour in more recent times, new
issues have arisen, or perhaps come to
light, which are worthy of some rigorous
scholarship and attention.

As it happens, these issues are

often discussed in the most polarised


of terms, because they tend to split
quite neatly along traditional capitalist
and labour lines. For example, industry
lobbies hold it to be self-evident that
there are major sectors of the economy
under-served by Australian workers who,
either through a lack of skills or, dare it be
said, disinterest, are unable to meet their
needs for growth and development. On
the other side of the equation is the fear
that importing labour in an unregulated, or
loosely self-regulated fashion, undermines
job opportunities for Australian workers,
unnecessarily increases competition for
available work, and potentially undermines
working conditions for all workers.
To add to the complexity of the situation is
the concern well founded it appears in
a number of specic cases that migrant

workers can be particularly vulnerable to


exploitation, debt bondage and underrepresentation in workplace relations with
at-times devastating personal consequences.
As with many areas of public policy and
political debate we are expected to take
sides in this matter, and may indeed
nd ourselves doing so, according to
preconceived ideas, or in the face of
anecdotal evidence. Indeed, while most of
us hold opinions in many areas of politics
and public policy sometimes quite
strongly it is probably fair to say that
these opinions often weigh heavily in our
own favour, or are unduly inuenced by
our own personal experiences, anecdotal
observations or even fears and worries.
We do not always have a particularly
broad base of information to draw upon,
nor an erudite depth of knowledge of
the history, or context, or complexities
associated with any given issue. We nd
it dicult, in short, to stand at arms length
from the matter, from a well-informed and
disinterested point-of-view.
This is where scholarship, research and
reasoned argument can feed into policy
debate with great insight and impact.
For example, in this case, Joanna rmly
holds that there is no need for any of the
wide ranging interests in this issue to be
abandoned or sidelined. The need to
protect Australian jobs, and the need to
protect the rights of migrant workers need
not be mutually exclusive. Nor should an
all or nothing approach to the use of
short-term immigration to full business
labour shortages be necessary.
In fact, Joanna argues that nding some
balanced way forward oers symbiotic
benets to all of the interests involved
perhaps excepting only those who might
unscrupulously wish to exploit opportunities
which a more one-sided law might allow.

Founded upon her research,

Joanna had the opportunity to write, and


then verbally present, a submission outlining
these ideas to the recent Senate Enquiry
into 457 visa provisions. Her submission
was then referenced during a reading of
the ensuing draft legislation in Parliament.
Joanna also presented to a subsequent
independent review commissioned by
the Federal Government. Notably, her

If you would like to contact Joanna for more information about her research,
please email joanna.howe@adelaide.edu.au

proposal for the creation of an independent


ministerial advisory council, charged with
the creation and oversight of a skilled
occupation shortage list for the 457 visa,
has been adopted as a recommendation
of this panel in their Robust New
Foundations report to the Government.
It would not be true to say that all of
Joannas ideas and proposals have found
a place in these reforms, nor that she is
necessarily satised with how things stand.
As with all political processes there is much
work to be done in the interests of fairness,
equality, social responsibility, public service
resources and legislated powers.
However, its not every day that a lawyer
gets to help a country make good laws,
and take a step in the right direction. The
opportunities dont arise very often and,
when they do, it is not always easy to be
heard. To understate matters, it can be
an uphill battle to have a well-made point
enacted in law. Along with plenty of good
research, it takes energy, intelligence,
resilience, and a convincing case to make in
the face of competing and powerful voices.
In the world of public policy, such things
matter, of course, because so many
people can be aected by our laws going
o course. And Joanna continues to work
hard in her areas of research to this end,
to do everything in her power to make sure
our laws stay on the right track, and are
doing the things we intended them to do.
*Joanna is a Rhodes Scholar, holding a Doctorate
of Philosophy in Law, and a Masters of Law in
Legal Research from the University of Oxford.
She is a researcher and Senior Lecturer in Law at
the University of Adelaide Law School.
Joanna is a Chief Investigator on an ARC Discovery
Grant exploring the regulation of unpaid work
experience in Australia. This is the rst major
research project to explore the legal framework and
challenges arising from unpaid work experience.
She is a also a practicing workplace relations
lawyer, author of the Australian Charter of
Employment Rights and Australian Standard
of Employment Rights for the Australian Institute of
Employment Rights, and writes for the general
public on areas encompassed by her research via
regular columns in major Australian newspapers.
Amongst other things
1
The best-laid schemes o mice an men
Gang aft agley,
An leae us nought but grief an pain,
For promisd joy!

Robert Burns

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