How immigration laws are stifling Australia

Our economy has been reformed. Now it's the turn of migration rules.

Dodo may not be a household name but it is getting a reputation as an aggressive and increasingly successful internet service provider.

It employs 300 people and - while it ran foul of the Australian Competition and Consumer Commission two years ago and taking on the big telcos is always dangerous - reflects the health of entrepreneurial activity in this country. We need more of it.

Yet Dodo co-founder Igor Gilenko, a Ukrainian and permanent resident here for seven years, cannot gain Australian citizenship. He has poured $2.5 million into the company but is denied citizenship because the international travel associated with his work keeps him out of the country much of the time. The minister could make an exception, but won't.

Andrey Zemlyanski and his wife Lizaveta are skilled engineers in Belarus. Their daughter is a student at St Petersburg University and a matriculation gold medal winner. The family wants to join Andrey's parents who live in Caulfield but have been knocked back because, while Lizaveta passed all the criteria for a skilled migrant visa, including the written English test, she narrowly failed the oral test. Again the minister would not make an exception.

These are just two examples of why Australia's immigration laws and their interpretation need an overhaul.

Rather than represent this nation as open, confident, generous and intelligent, the legal framework we use to deal with people who want to visit or live in this country represents us at our worst.

The tangled array of legislation and regulations that determine people movements in and out of Australia are bureaucratic, legalistic, complex and are usually interpreted in such a small-minded manner that the results are often unjust, sometimes cruel and can serve no legitimate public policy purpose.

The legal framework we use to deal with people who want to visit or live in this country represents us at our worst."

Moreover, as our population ages, our need for skills grows and the international competition for quality people increases, a regime that is predicated on an oversupply will need to adapt to a very different environment.

Initially enacted to keep Australia white, our immigration laws have evolved into such a mishmash they make the Tax Act look simple. The result? A thriving industry of migration agencies and lawyers.

A snapshot of the legislative environment tells the story: more than 70 types of visa exist for those coming into Australia; there are nine migration acts, some going back to 1946; and 14 major legislative changes have been made to these acts in the past two years alone.

Yet since the white Australia policy was abolished by the Holt government in 1966, there has been only one comprehensive review of migration laws. That was in 1978 when the Fraser government made big changes to the structure of the intake that increased Asian immigration through family reunion, lifted numbers and put more emphasis on positive social and economic contribution.

Yet in the meantime we have stumbled into a divisive national debate over refugees that has served only to emphasise the confusion Australians feel over immigration.

We are not the US, where immigration is seen as the moral justification for the nation's existence. America still takes in more than a million legal migrants a year by ballot. Applicants do not even have to be able to read or write or speak English.

Protective of our island continent, Australians generally see the practical need for migration but have little emotional enthusiasm and certainly do not share America's moral imperative. But the structural changes to our economy and society around ageing and skill needs means reform of our laws on people movement are as important today as the economic changes 20 years ago were to those times.

And just as Australians learned to thrive without the protection afforded by centralised wage fixing, regulated financial markets and a tariff wall, they will learn to adapt to a world where there is a freer flow of people and their skills.

In the meantime, contemplate what purpose is served by denying Igor Gilenko and his wife, Elena Zabelova, citizenship. Their two sons are citizens, they have substantial residential real estate in Melbourne and are entrepreneurial investors and significant employers.

Rejecting their application, the Immigration Department wrote: "Evidence provided by Mr Gilenko does not demonstrate that his business ventures offshore bring any significant benefit to Australia." Pleading their case to the minister, Amanda Vanstone, Labor MP Michael Danby wrote: "This ruling is somewhat like arguing that Frank Lowy adds 'nothing' to Australia because a large part of Westfield's holdings are in the USA."

At the other end of the wealth spectrum but skilled in their own right are the Zemlyanskis. On failing the oral English test by the narrowest of margins, Lizaveta was told she could go to London to improve her accent and vocabulary. It is a difficult ask on a salary of $80 a month, having already borne the cost of a trip to Moscow for the test.

If this country wants high-quality skilled migrants, our institutions need to be framed to help, not hinder, and to encourage, not discourage.

It is just common sense to allow Gilenko and his wife to become citizens. The Zemlyanskis have all it takes to be quality additions to the population and their entry would also serve the compassionate purpose of reuniting the family.

What is it about our system that makes such simple decisions so difficult? It's time to find out - and it's time for some reform.

Gregory Hywood is a former editor-in-chief of The Age.