Virginia, US
The government has announced the following reforms: 
 
 
australiatimelineofchanges
 
 
The Australian Parliament failed to pass the Migration and Other Legislation Amendment (Enhanced Integrity) Bill 2017 in its last session of 2017, thereby delaying its passage until at least February 2018, when Parliament reconvenes. As outlined in Fragomen's client alert, the Bill is intended to amend the Migration Act to increase enforcement of immigration rules by allowing the Department of Home Affairs to publish information on its website concerning businesses that were sanctioned for immigration-related breaches, use foreign nationals tax filing numbers for compliance purposes and enter into an enforceable undertaking to rectify a breach of sponsorship obligations.
 
 
 
 
Proposed 1 January 2018 Occupation List Changes
 
The Minister of Immigration and Border Protection has asked the Department of Employment to review the Short Term Skilled Occupation List (STSOL) and the Medium and Long-Term Strategic Skills List (MLTSSL) every six months to ensure that they are responsive to changes to the Australian labour market.
 
The next list review will be effective from 1 January 2018.
 
Most of the occupations currently on the STSOL and MLTSSL are not expected to change. Those that are flagged for a change are listed below.
 
STSOL occupations that are flagged for possible complete removal:
 
  • Accommodation and Hospitality Managers NEC 141999
  • Hair or Beauty Salon Manager 142114
  • Recruitment Consultant 223112
  • Building Associate 312112
 
Occupations not currently on the lists that are flagged for addition to the STSOL:
 
  • University Tutor 242112
  • Psychotherapist 272314
  • Property Manager 612112
  • Real Estate Agent 612114
  • Real Estate Representative 612115
 
Employers and other stakeholders are able to make evidence-based submissions to the Department of Employment regarding the proposed January 2018 list changes before 1 December 2017. Any submissions made after that date may be taken into consideration for the next occupation list review effective 1 July 2018.
 
What is the methodology for compiling the skilled occupation lists?
 
When compiling the occupation lists that were effective 19 April 2017, the Department of Immigration and Border Protection (the Department) collaborated with the Department of Employment and the Department of Education and Training to determine which occupations can feasibly be filled by supply in the Australian labour market – given both the numbers of skilled Australian workers in the employment system or shortly to come into the system from the education sector. Accordingly, the three Departments examined data from their own research and the Australian Bureau of Statistics (ABS) to examine:
 
  • the pipeline of talent available in Australia in the occupation; and
  • the labour market conditions for that occupation in Australia generally.
 
Those occupations placed on the Medium to Long-Term Strategic Skills List (MLTSSL) are generally occupations:
 
  • which are highly skilled;
  • which are in high demand OR are of significant value to Australia’s national and economic interest;
  • which have a long lead time to develop the skills for entry to the occupation; and
  • about which the data and statistics are of good quality.
 
Those occupations placed on the Short Term Skilled Occupation List (STSOL) are generally occupations in which there is expected to be growth in demand relative to local supply over the next five years, but with an expectation that reliance on overseas workers may decrease over time.
 
Occupations were removed from the occupation lists where they fit neither of these profiles.
 
The six-monthly reviews will examine whether the status of any occupation should be changed including:
 
New additions to the lists;
 
  • Moves from the STSOL to the MLTSSL;
  • Moves from the MLTSSL to the STSOL;
  • Removal from all lists.
 
When considering an occupation for a status change the Department of Employment will consider sources of evidence which it has grouped into primary and secondary groupings. Occupations will be placed under consideration for a change where:
 
  • multiple primary sources indicate a need; or
  • a combination of multiple primary and secondary sources indicates a need.
 
Primary sources for this purpose are:
 
  • Skilled migration employment outcomes (reported by the Department)
  • Reliance on temporary visas (reported by ABS)
  • Educational attainment of workers compared to ANZSCO (Australian and New Zealand Standard Classification of Occupations) level (reported by ABS)
  • Visa grant rates for the occupation (reported by the Department)
  • Projected employment growth for the occupation (reported by Department of Employment)
 
Secondary sources for this purpose are:
 
  • Graduate/ apprenticeship outcomes
  • Migration risks and sensitivities
  • National skills shortage research findings
  • Age profile of occupation
  • Whether the occupation is an occupation 'not elsewhere classified'
  • Information from employers and industry about their specific needs for an occupation and experiences with recruitment attempts and the labour market more broadly.
 
The Department of Employment has indicated that it is continuing to work on a methodology to identify, describe and include occupations that are not in the ANZSCO dictionary, such as novel or emerging skills sets.
 
 
1 July 2017 review of the occupation lists for 457 and ENS programs
 
The first of July 2017 saw the first review of the occupation lists applying to the 457 and permanent Employer Nomination Scheme (ENS) visa programs, the Short Term Skilled Occupation List (STSOL) and the Medium to Long Term Strategic Skills List (MLTSSL). These two lists are reviewed by the Department of Employment and the Department of Education respectively on a biannual – STSOL - and annual – MLTSSL - basis. For ease of reference, the Department of Immigration and Border Protection (DIBP) has published on its website a combined list of occupations that are now eligible for the 457 and ENS ‘Direct Entry’ stream visa categories.
 
Winners and Losers from the review
The oil and gas, science and research and retail sectors were winners from the review with the reinstatement of a number of key occupations including:
 
  • Petroleum Engineer
  • Hydrogeologist
  • Geophysicist
  • Materials Engineer
  • Industrial Engineer
  • Chemical Engineer
  • Biochemist
  • Food Technologist
  • Microbiologist
  • Mellallurgist
  • Life Scientists (General) and (nec)
  • Research and Development Manager
  • Retail Buyer
 
The ICT sector also benefitted from the review with the reinstatement of Web Developer, ICT Support and Test Engineers (nec) and ICT Support Technicians (nec) and the movement of several ICT occupations from the two year STSOL to the four year MLTSSL, including Chief Information Officer, Software and Applications Programmers (nec) and ICT Security Specialists.
 
Other notable occupations that were moved from the STSOL to the MLTSSL include:
 
  • Chief Executive or Managing Director
  • Corporate General Manager
  • Faculty head
  • University lecturer
  • Mining Engineer
  • Statistician
  • Economist
  • Environmental manager
  • Chemist
  • Environmental consultant
  • Environmental research scientist
  • Environmental scientists (nec)
  • Botanist
  • Marine biologist
  • Zoologist
  • Conservator
  • Meteorologist
 
The movement of these occupations to the MLTSSL ensures that they are now eligible for a 4 year 457 visa with the potential for nomination under the ENS under the new March 2018 framework.
 
Significantly, DIBP policy has also been updated at this time to specify that a longer visa period may be granted to STSOL occupations (currently limited to 2 years) where this is required to meet international trade obligations.
 
The occupation of Anaesthetist has been moved from the MLTSSL to the STSOL and the following 12 occupations have now been removed altogether from the 457 and ENS programs:
 
  • Equipment Hire Manager  
  • Fleet Manager
  • Picture Framer
  • Property Manager
  • Psychotherapist
  • Real Estate Agent Principal
  • Real Estate Agent
  • Real Estate Agent Representative
  • Ship’s Engineer  
  • Ship’s Master  
  • Ship’s Officer  
  • University Tutor
 
Revised caveats – apply to both 457 and ENS programs
 
Revised caveats now apply to 67 occupations on the MLTSSL and STSOL restricting the use of these occupations for the Subclass 457 and Employer Nomination Scheme visa programs based on factors, including, but not limited, to the following:
 
  • Minimum work experience required;
  • Location of the position;
  • Nominated base salary; and
  • Size and turnover of the nominating employer.
 
Notably, a revised salary caveat applies to the occupations of Chief Executive of Managing Director and Corporate General Manager which excludes positions that have a nominated base salary of less than AUD $180,001 unless they involve an intra-corporate transfer to which an international trade obligation applies. Similar intra-corporate exemptions also now apply in relation to the occupations of Sales and Marketing Manager and Supply and Distribution Manager (where a base salary of A$65,000 applies unless exempt) and Corporate Services Manager (where a base salary of A$80,000 applies unless exempt).
 
As with Sales and Marketing Managers, Marketing Specialists and Customer Service Managers, the newly reinstated occupation of Retail Buyer is subject to a caveat precluding its use for positions that are:
 
  • based in a front-line retail setting (for example within a store); and
  • that predominately involve direct client transactional interaction on a regular basis (eg to sell or promote products).
 
Minimum turnover requirements continue to apply to occupations such as Accountant, Management Consultant (in addition to a minimum of at least 5 employees), Marketing Specialist, Conference and Event Organiser and Recruitment Consultant. These latter three occupations also require a minimum base salary of at least A$65,000.
 
Impact of the revised occupation lists
 
The new occupation lists apply to 457 nominations and visa applications submitted on or after 1 July 2017, as well as those submitted prior to this date which remain pending with the DIBP.
 
In the case of Employer Nomination Scheme ‘Direct Entry’ stream applications, the new occupation lists apply to nominations and visa applications lodged on or after 1 July 2017
 
Effective 19 April 2017
 
Effective 19 April 2017, the number of occupations available in the subclass 457 visa and permanent residence Employer Nomination Scheme Direct Entry programs was significantly reduced, with 216 occupations removed altogether. 
 
The remaining occupations comprise the new Short-Term Skilled Occupations List (STSOL), with 59 of these subject to caveats limiting access to these occupations. Of these, 29 are restricted to use in regional Australia only, while others are restricted based on factors such as required skill level, work experience, size of sponsor’s business and the industry in which the sponsor operates.
 
Importantly, the maximum duration of subclass 457 visas issued for STSOL occupations will be two years, with the possibility of only one further renewal in Australia
 
The Medium and Long Term Strategic Skills List (MLTSSL) for the 457 programs comprises 148 occupations that have been assessed as being in high demand and of high value to the Australian economy. Subclass 457 visas issued for MLTSSL occupations will be for four years, with the possibility of multiple renewals. 
 
What is affected?
 
  • 457 nomination and visa applications lodged but not approved by 19 April 2017 which nominate one of the removed occupations cannot be approved. The Department of Immigration is assisting sponsors and visa applicants to withdraw these applications and arrange a refund of application fees.
  • Any 457 nomination and visa applications lodged from 19 April 2017 onwards must be in occupations on the MLTSSL (for a 4-year 457 visa) or STSOL (for a two-year 457 visa).
  • ENS Direct Entry applications lodged from 19 April onwards must be on the STSOL or MLTSSL. 
  • All ENS and RSMS applications lodged from March 2018 must be in an occupation on the MLTSSL.
 
What is not affected?
 
  • Subclass 457 visas approved prior to 19 April 2017. These will continue until their expiry date (however any application for a further period of stay will be subject to the reformed program).
  • Employer Nomination Scheme Direct Entry applications lodged before 19 April 2017.
  • Employer Nomination Scheme Temporary Residency Transition Stream applications lodged before March 2018
  • Labour Agreements executed prior to 19 April 2017
  • 457 nomination and visa applications lodged under the auspices of a Labour Agreement before or after 19 April 2017.
 
 
 
Other 1 July 2017 changes to the 457 program
 
Further measures to tighten the 457 program took effect from 1 July 2017 with:
  • the removal of the English language exemption for applicants with a base salary of $96,400, although a partial exemption remains for intra corporate transfers where the 457 visa holder will be working in Australia on transfer between associated entities;
  • police clearances certificates becoming mandatory for 457 applicants where the proposed period of stay in Australia is 12 months or longer.
In addition, new training benchmarks now apply to both the 457 and Employer Nomination Scheme (ENS) visa programs and the Department of Immigration and Border Protection (the Department) has issued new sponsorship accreditation criteria to expand the arrangements to a wider group of low-risk sponsors.
 
New training benchmarks – apply to 457 and Employer Nomination Scheme program
 
New training benchmarks have now been registered which apply to 457 sponsorship applications and ENS ‘Direct Entry’ nominations lodged on or after 1 July 2017. These new benchmarks will remain in place until March 2018 when they will be replaced by payment of levies into the 'Skilling Australians Fund' as announced in the 2017/18 Budget.
 
One intent of the training amendments was to move the definition of ‘payroll’ from Department policy into the Regulations. Under the new legislative instruments, ‘payroll’ is now defined as  the total amount of the two payments specified below:
 
i. any wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions or eligible termination payments, defined as wages in payroll tax legislation for the relevant State/Territory, that the business has paid to their employees during the same period; and
 
ii. payments made to contractors or subcontractors during the same period if work provided by the contractor is related to the service/product provided by the business, regardless of whether such payments are included for payroll tax purposes or not;
 
The amendments also tighten the acceptable expenditure for the purposes of Training Benchmark A (recent expenditure equivalent to at least 2% of the payroll, in payments allocated to an industry training fund that operates within the same or related industry).  
 
Expenditure which can no longer be used for the purposes of meeting Training Benchmark A are payments made to:
 
  • training funds operated by Registered Training Organisations (RTOs) or private individuals; or
  • funds that allocate a percentage or part of the contributions received to commissions or offer refunds for failed immigration applications.
 
For Training Benchmark B (recent expenditure by the business equivalent to at least 1% of the payroll, in the provision of training to their employees), expenditure which can be counted must have been “made in the previous financial year or the previous 12 months, as evidenced by a receipt for the payment(s) or a contract for employment of the relevant individual for whom salary payments are being included within expenditure that can count towards the benchmark."
 
Expenditure that can no longer count towards this benchmark includes:
 
  • the salary of a person whose role is to provide training to Australian employees – unless this is their sole role in the business – this is much tighter than the pre-1 July policy position which allowed this salary to be counted where the training was a key part’ of the training’s job; and
  • Changes to the accredited sponsorship requirements – allows for priority processing of 457 visa applications
  • Accredited sponsorship arrangements provide significant benefits to 457 sponsors through:
  • Expanded sponsorship approval period - Accredited sponsors are approved to lodge nomination applications for a period of 6 years, rather than the usual 5.
  • Priority allocation - Applications from accredited sponsors receive priority allocation to case officers ahead of applications from standard business sponsors, resulting in faster processing.
  • Streamlined Processing - Low-risk nomination applications from accredited sponsors receive the benefit of streamlined processing by the Department through 'pre-approval' of factors such as occupation, market rates and employment conditions.
 
With effect from 1 July 2017 there are now four categories of accreditation as follows:
 
  • Category 1: For Sponsors that are Australian government agencies (Commonwealth, state and territory)
  • Category 2: For Sponsors that are approved 'Australian Trusted Traders,' a voluntary trade facilitation initiative that recognizes businesses with a secure supply chain and compliant trade practices.
  • Category 3: For sponsors categorised as "Low risk" with low volume usage of the 457 programme (at least one 457 visa in the last two years) and high percentage of Australian workers (at least 90%)
  • Category 4: For sponsors categorised as "Low risk" with high volume usage of the 457 programme (at least ten 457 visas in the last two years) and medium percentage of Australian workers (at least 75%).
 
Sponsors in Categories 2-4 must meet additional criteria including:
 
  • Being a publicly-listed company or a company with at least A$4 million turnover for the last two years (does not apply to Category 2);
  • ensuring all 457 holders are engaged as employees under a written contract of employment that includes at least the minimum employment entitlements as outlined in the National Employment Standards;
  • ensuring that all employees are paid in accordance with an Enterprise Agreement or an internal salary table that reflects the current market salary rates for all occupations in their business;
  • being an active sponsor and having a non-visa approval rate of less than 3% in the previous two years (does not apply to Category 2); and
  • having no adverse monitoring activities - i.e. any formal warnings and sanctions with respect to breaches of sponsorship obligations (does not apply to Category 2).
 
 
 
 
In March 2018 the 457 visa program will be closed altogether, and replaced with the new Temporary Skills Shortage (TSS)  visa comprising two streams:
 
  • Short-term stream of up to two years - a minimum English requirement of International English Language Testing System (IELTS) score of 5 will apply with a minimum of 4.5 in each test component. Visas granted under this stream may be renewed once only; and
  • Medium-term stream of up to four years - a minimum English requirement of IELTS score of 5 (or equivalent test) in each component will apply. Visas granted under this stream may be renewed and may also provide a pathway to permanent residence after three years.
 
The new TSS visa will have the following features:
 
  • Targeted occupation lists: The STSOL will apply to the Short-term stream and the MLTSSL will apply to the Medium-term stream. Additional occupations will be available on both lists to support regional Australia
  • Minimum two year work experience requirement;
  • Requirement for employers to meet the minimum market salary rate and Temporary Skilled Migration Income Threshold, currently set at AU53,900 (A figure that may well rise when this year's budget is announced);
  • Mandatory labour market testing, unless an international trade agreement applies;
  • A test to ensure employers are not actively discriminating against Australian workers; and
  • Stricter requirement for employers to contribute to training Australian workers.
 
 
 
 
On 9 March 2017, the Australian Treasurer handed down the Federal Budget which included the notable announcement of the establishment of a new ‘Skilling Australians Fund’, projected to raise $1.2 billion in revenue over the next four years. The levy will replace the training benchmarks that currently apply to the subclass 457 and permanent employer sponsored visa programs which require employers to demonstrate recent expenditure by the sponsoring business:
 
  • to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry training fund that operates in the same industry ; or
  • to the equivalent of at least 1% of the payroll of the business, in the provision of training to Australian employees of the business.
 
How will the levy work?

From March 2018, employers that sponsor foreign workers for the new Temporary Skill Shortage (TSS) visa and employer sponsored permanent skilled visas will be required to pay a levy which will provide revenue to the new 'Skilling Australians Fund' as follows:
 
  • Businesses with turnover of less than $10 million per year will be required to make an upfront payment of $1,200 per visa per year (or part thereof) for each employee on a TSS visa and make a one-off payment of $3,000 for each employee being sponsored for a permanent Employer Nomination Scheme (subclass 186) visa (ENS) or a permanent Regional Sponsored Migration Scheme (subclass 187) visa (RSMS).
  • Businesses with turnover of $10 million or more per year will be required to make an upfront payment of $1,800 per visa per year (or part thereof)for each employee on a TSS and make a one-off payment of $5,000 for each employee being sponsored for an ENS (subclass 186) visa or a RSMS (subclass 187) visa.
 
It is unclear at this stage as to how the levy payment will be collected, for example whether this will be paid at the time that the visa application is lodged.
 
What will the levy be used for?

The 'Skilling Australians Fund' will support training of Australian workers in key industries.  The Budget papers specify that the Fund will prioritise apprenticeships and traineeships for occupations in high demand, occupations with a reliance on skilled migration pathways, industries and sectors of future growth, trade apprenticeships, and apprenticeships and traineeships in regional and rural areas.  
 
Eligibility for the Fund will be determined by the Commonwealth Government and access by the States and Territories will be conditional on meeting conditions including a requirement to focus on priority occupations, funding contributions matching Commonwealth funding, achieving outcomes, and providing up-to-date data on performance and spending.
 
 
 
 
 
1 July age and English updates to the permanent employer-sponsored programs - including removal of English and skills exemption for high-income earners.
 
Complementing the reforms to the 457 program, initiatives to tighten the permanent Employer Nomination Scheme (subclass 186) (ENS) and Regional Sponsored Migration Scheme (subclass 187)(RSMS) also took effect from 1 July 2017:
 
  • The age limit for ENS and RSMS applicants under the ‘Direct Entry’ stream has been reduced from 50 to 45 for any applications lodged on or after 1 July 2017. Limited age exemptions remain for applicants nominated in certain research, university or medical practitioner positions as well as New Zealand Citizens and New Zealand Family Relationship visa holders who have worked for their nominating employer for at least 2 years.
  • The English language requirements for ENS and RSMS applications under the ‘Temporary Residence Transition’ stream has been increased from ‘Vocational’ (IELTS 5.0 or equivalent test) to ‘Competent’ (IELTS 6.0 or equivalent test) for any applications lodged on or after 1 July 2017. A new exemption for English is available to applicants who have completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English
 
Significantly, a new legislative instrument also came into effect on 1 July 2017 which removed:
 
  • both the English and the skills high income exemptions previously available to 'Direct Entry' stream applications that applied where the applicant's earnings were at least equivalent to the Australian Tax Office (ATO) top income tax rate (being A$180,001); and
  • the English exemptions previously available to 'Temporary Residence Transition' stream applications which also applied where the where the applicant's earnings were at least equivalent to the ATO top income tax rate.
 
According to the explanatory statement to the amending legislative instrument, this change was made to “strengthen the integrity of the Subclass 186 and Subclass 187 Visas by ensuring that applicants have the required skills and English language requirements”. The change came unannounced and did not form part of the reform communications provided by the Department of Immigration and Border Protection (the Department) or its subsequent roundtable stakeholder discussions or information sessions.
 
Whilst the new instrument purported to apply not only to ENS and RSMS applications made on or after 1 July 2017, but also those made prior to and not finalised by 1 July 2017, the Department has now indicated that it will continue to apply the exemption to English language proficiency and skills assessment for high-income earners who submitted their applications prior to the change taking effect.
 
 
Transitional arrangements for certain 457 visa holders applying for permanent residence after March 2018 - what you need to know
 
The Department of Immigration and Border Protection (Department) has now updated its fact sheet to provide some information about proposed transitional arrangements for certain 457 visa holders applying for permanent residence under the permanent employer sponsored pathways after March 2018.
 
After March 2018, 457 visa holders who held or who had applied for a 457 visa on or before 18 April 2017 will be able to meet certain existing provisions under the Temporary Residence Transition (TRT) stream of the Employer Nomination Scheme (subclass 186)(ENS) and Regional Sponsored Migration Scheme (subclass 187) (RSMS) as follows:
 
  • The occupation requirements remain the same - i.e. there are no restrictions provided the nominee continues to work in the same position for the same employer as approved for their subclass 457 visa. Specifically, this cohort of applicants will not need to have an application on the MLTSSL;
  • the age requirement will remain at less than 50 years of age; and
  • the work experience requirement, and the requirement to have worked at least two out of the three years prior to nomination on a subclass 457, will remain at two years.
 
Applicants who fall within these transitional arrangements will still need to meet other ENS/RSMS eligibility criteria including the requirement from March 2018 that:
 
  • Their nominating employer pay a levy of A$3,000 (for businesses with an annual turnover of less than A$10 million) or A$5,000 (for businesses with an annual turnover of more than A$10 million) into the Skilling Australians fund; and
  • Their nominated salary be at market rate and meet the Temporary Skilled Migration Income Threshold (TSMIT) which is currently set at A$53,900.
 
 
What about 457 visa holders aged 50 and above?
 
Age exemptions currently apply to the TRT applicants who have worked for their nominating employer on their 457 visa for at least 4 years and in each year have earned above the Fair Work High Income Threshold (set at A$142,000 for the 2017-18 financial year). Unfortunately, we do not know at this stage whether such age exemptions will be available under these transitional arrangements for applicants aged 50 and over applying after March 2018. We will continue to monitor the release of information and provide updates as available.
 
What about other 457 visa holders?
 
From March 2018, subclass 457 visa holders who applied for or were granted 457 visas on or after 18 April 2017 will need to meet the tightened ENS/RSMS criteria including:
 
  • Being aged less than 45, unless able to meet a specified age exemption. To-date, no detail has been released as to what age exemptions will be available after March 2018;
  • For the Direct Entry stream – having an occupation on the MLTSSL; and
  • For the TRT stream – having worked in their occupation on their subclass 457 or Temporary Skill Shortage Visa for a minimum of three years.
 
Application of transitional arrangements for training requirements
 
The Department has advised that subject to the agreement by Government, transitional arrangements will apply to approved 457 sponsors such that they will not need to meet the training benchmarks for any period after March 2018 when the charging of the Skilling Australians Fund has commenced. Business sponsors will, however, still need to demonstrate compliance with the relevant training benchmarks for any earlier periods in line with the current sponsorship obligations.
 
 
 
 
On 15 June 2017 the Australian Government introduced a bill to Parliament seeking amendments to the criteria for Australian citizenship to strengthen the integrity of the citizenship program and ensure that the program is in Australia’s interests.
 
The proposals include the following:
 
  • Requiring all applicants to pass a stand-alone English test, involving reading, writing, listening and speaking;
  • Requiring applicants to have lived in Australia as a permanent resident for at least four years (instead of one year at present);
  • Strengthening the citizenship test itself with new and more meaningful questions that assess an applicant’s understanding of - and commitment to – Australians’ ‘shared values and responsibilities’;
  • Requiring applicants to show the steps they have taken to integrate into and contribute to the Australian community. Examples would include evidence of employment, membership of community organisations and school enrolment for all eligible children.
  • Limiting the number of times an applicant can fail the citizenship test to three (there is no limit at present);  
  • Introducing an automatic fail for applicants who cheat during the citizenship test; and
  • Making the changes retrospective so as to affect any application lodged on or after 20 April 2017.
 
On 7 July the Senate Standing Committee for the Scrutiny of Bills found that the retrospectivity challenges a basic value of the rule of law and that it was particularly concerned that the legislation may have a detrimental impact on individuals. It also questioned how integration into the Australian community can be determined when not a technical question but rather one of substantive policy which should not be broadly delegated to the executive branch of Government.
 
On 5 September the Senate Legal and Constitutional Affairs Legislation Committee reported its recommendations including:
 
  • that the Government consider introducing transitional provisions for those people who held permanent residency visas on or before 20 April 2017 so that the current residency requirements apply to this cohort of citizenship applicants
  • that the English language standard should not be so high as to disqualify people who would be valuable members of the Australian community.
 
The Bill passed the House of Representatives (in which the government has a majority) but is unlikely to pass the Senate. The Australian Labor Party, Australian Greens and Nick Xenophon Team have all indicated that they will vote against the Bill.

On 13 September 2017 the Australian Senate passed a motion to discharge the Bill from the Senate Notice Paper. The effect of the discharge motion is that if the Bill is not voted on by October 18, the Bill will no longer be pending before the Senate - a status that the government could have maintained indefinitely by keeping the Bill on the Notice Paper but not bringing it to a vote. The government has three more parliamentary sitting days before October 18 to bring the vote on the Bill.

As long as the Bill is pending before Parliament, the government can maintain its instructions to the Department of Immigration and Border Protection to suspend processing of citizenship applications. Without the pending Bill, there is no justification for processing to be suspended. 

However, the government still has the option of:
  • bringing a motion of its own to put the Bill back on to the Senate Notice Paper - but it is unlikely to have the support to do so; or
  • reintroduce a new Bill sometime in the remaining three parliamentary sitting weeks between now and the end of the year - ultimately such a Bill is unlikely to be passed but its introduction would provide a basis for the suspension of processing again.