PRIVATE MEMBERS' BUSINESS: Migration Amendment (Reform of Employer Sanctions) Bill 2012

Mr McCORMACK (Riverina) (16:56): The Migration Amendment (Reform of Employer Sanctions) Bill 2012 seeks to impose an additional regulatory regime on employers employing foreign nationals who are illegal or who do not have work rights. The requirements this bill proposes are, I believe, onerous and unnecessary and are in direct opposition to the coalition's commitment to reduce the regulatory burden and compliance cost on business.


Employers who hire overseas workers are already weighed down by substantial regulations such as those contained in the Migration Legislation Amendment (Worker Protection) Act 2008, and this bill will be yet another imposition on these businesses.

Mr Champion interjecting —

The DEPUTY SPEAKER ( Hon. BC Scott ): Order!

Mr McCORMACK: Your government is responsible for allowing so many foreign workers in under various acts.

The DEPUTY SPEAKER: The member for Riverina will ignore the interjections from the other side of the chamber.

Mr McCORMACK: It is just unbelievable, but I will take your wise advice, Mr Deputy Speaker, and ignore the interjections by the member for Wakefield.

This act provides the Department of Immigration and Citizenship with expanded powers to monitor and investigate possible noncompliance by sponsors and introduce new penalties for employers who are found to be in breach of their obligations. Officers from the department were given investigative powers to monitor workplaces and conduct site visits. Fines of up to $33,000 were introduced and employer obligations were prescribed which had to be satisfied when employing a temporary overseas worker. A mandatory training requirement for 457 visa holders was introduced in this legislation which effectively amounted to a two per cent payroll tax on employers who engaged temporary overseas workers.

My electorate of Riverina has many of these temporary overseas workers. They work in the abattoirs, they work picking fruit in the Murrumbidgee Irrigation Area and they do lots of other things as well. My Griffith electorate office handles many inquiries about these temporary overseas work arrangements. Combined with the introduction of the temporary skilled migration income threshold, the cost to Australian business of employing temporary overseas workers has become prohibitive. I and my staff member at Griffith hear that regularly. The Migration Act would be amended by this bill to alter criminal offence provisions and create a new civil penalties regime with a maximum fine of $49,500 for corporate entities and $9,900 for individuals, and an infringement notice scheme. It will also broaden the application of criminal offences and civil penalty provisions to people who allow or refer an unlawful noncitizen to work or to work in breach of visa conditions.

Statutory defences will be created where reasonable steps were taken to verify a foreign national worker's entitlement to work and an infringement notice tier will be created under the civil penalties provision, which will allow a person or corporate entity to pay a fine as an alternative to court proceedings. Additionally, the current aggravated offences provision will be amended so that a person commits an aggravated offence where the worker is or will be exploited doing the work and the person who allowed the work or referred the worker knows this or is reckless about it. This bill extends both the criminal and the civil liability in some instances to executive officers of corporate bodies, partners in a partnership and members of an unincorporated association's committee of management, and creates search warrants and notices to produce powers specifically to facilitate the investigation of suspected breaches of these offences and civil penalties.

In 2010, the government engaged Stephen Howell to conduct a review of the Migration Amendment (Employer Sanctions) Act 2007 and in December 2011 the government announced it would legislate to implement the recommendations contained in the review. Currently, the employer sanctions regime, which was introduced by the Howard government in 2007, comprises criminal offences for the following: allowing an unlawful noncitizen to work; allowing a noncitizen to work in breach of a visa condition restricting work; referring an unlawful noncitizen to work; and referring a noncitizen to work in breach of a visa condition restricting work. For a person to be prosecuted of committing one of these offences, it is also required to be shown that the offences were committed with either knowledge or due recklessness. If the worker has been subjected to exploitation, the offence is considered an aggravated offence, as it should be.

Since the implementation of the act in 2007, officers from the Department of Immigration and Citizenship have deliberated about 100 instances of possible breaches. Of these cases, only four were considered suitable to be referred to the Commonwealth Director of Public Prosecutions. Due to the low prosecution rate, Howell concluded:

The provisions of the … Act—

as it stood—

are wholly ineffective as a deterrent against the small number of employers and labour suppliers who engage or refer non-citizens who do not have lawful permission to work or who work in breach of their visa conditions. The Employer Sanctions provisions are also ineffective as an educational tool for recalcitrant employers and labour suppliers.

The contradiction in this statement is a feature of the entire report. On one hand there are few breaches and even fewer convictions, yet on the other hand such exceptional behaviour warrants the imposition of an even greater evidentiary and regulatory burden on employers. Industry groups, including the Australian Industry Group, AiG, and the Australian Chamber of Commerce and Industry, ACCI, believe the proposed changes are 'heavy-handed and unnecessary'.

Under this bill the statutory defence provisions would require employers to establish, at the commencement of any work performed, that they were shown a valid Australian passport, a valid birth certificate, a valid certificate of permanent residency or a valid visa permitting work. The combined effect of this would mean any employer could be taking a risk of being fined before the court or receiving an infringement notice if they do not check this documentation. This administrative measure on its own is excessive. Furthermore, the process involved to view these documents is not only arduous but inherently discriminatory as it will require employees to reveal their age and place of birth. The need for this information has the potential to lead to discrimination against people who may be legitimate citizens or permanent residents of Australia but will be subject to questioning from their employer due to their race, accent and/or level of English. Due to these concerns, the ACCI has referred the draft legislation to the Australian Human Rights Commission and has informed the government that, if this bill is passed in its current form, the ACCI will seek exemptions under the federal and state discrimination acts to protect its ability to make requests for evidence required under the Migration Act.

The Master Builders Association of Australia made a submission to the Howell report, and, whilst they strongly support tough penalties being applied to those who deliberately exploit illegal workers, it was emphasised that the deliberate procurement of illegal workers for placement jobs in Australia was completely different to the inadvertent backpacker who has overstayed their visa. The law should specifically target those who deliberately seek out illegal workers. The Howell report was unsuccessful in making a case that the extent of illegal work warranted the heavy-handedness of the response. For example, the report stated in 2008-09 that the Department of Immigration and Citizenship located 11,428 unlawful non-citizens in Australia and, of those, only 990 were confirmed to be working illegally. The report also estimated that up to 100,000 people were working illegally in Australia at any one time. That is a staggering statistic. However, these figures are only speculative as it assumes all over-stayers are working illegally—and we know that is not correct. The total labour force in Australia is 11.057 million people. So, even if the estimates in the Howell report are accurate, this is less than 0.9 per cent of the total workforce.

The regime which is proposed shifts the cost of compliance and law enforcement directly onto the employer. I was contacted by my constituent Carmel La Rocca of Griffith, who wished to voice her concerns about this bill. Mrs La Rocca believes it is unfair to put the onus of ensuring workers are legal on farmers. As contractors, she believes it should be up to the contractor to ensure any subcontractors and employees they employ meet the necessary legal requirements to work in Australia. It is completely reasonable for Mrs La Rocca, or indeed any other farmer who uses a contractor, to place their trust in a contractor to employ legal staff. Farmers do not have the time to sit and check all the documentation from contractors of their employees' legal working status.

Whilst they have been advised by the Department of Immigration and Citizenship that there will be ways of doing this online, many farmers are not computer savvy. Many farmers do not want to have that onerous burden of having to go and check every single employee, when they have been told in good faith that that employee is able to work. The Howell report stated:

The cost of addressing this problem cannot be borne solely by Government or the taxpayer and it is impossible to impose the cost on the workers themselves. Australian employers must bear some of the cost and inconvenience by taking reasonable steps to identify the workers they engage or employ and by taking reasonable steps to establish whether those workers have permission to work. Australian citizens must be prepared to bear their share of the cost and inconvenience by obtaining and carrying adequate identification when they seek work.

It is unfathomable that this Labor government can think it is acceptable to place this burden on employers by shifting the cost of enforcing the law onto them.

The coalition has consistently made the point that Australia's migration program is intended as a supplement not a substitute to the Australian workforce—to fill the gaps which have opened up by the way Australia's population has naturally grown. This is at the centre of the coalition's approach to the issues of the 457 temporary work visas and skilled migration. In that context, we have said that we will look at liberalising the 457 visa criteria to create a genuinely temporary and regional solution to skills gaps and shortages without compromising compliance. We will remove the union-driven roadblocks, allowing businesses—they are the people who actually employ people and make money to pay taxes and keep this Labor government in place so it can make all sorts of stupid policies that send us all broke—to quickly access the critical information that they require while also maintaining important safeguards and sanctions against those businesses and individuals who seek to abuse the scheme.

The existing regime and compliance costs the government has systematically built around the employment of foreign nationals are already onerous, and the proposed changes are going to significantly increase the compliance costs for employers as well as leave them to struggle through the complex tangle of red tape.

Cristy Houghton