Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration) Share this | Hansard source

The Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs concluded by saying that the Migration Amendment (Employer Sanctions) Bill 2006 deserves the support of all members of this parliament, and it will get the support of all members of this parliament. The opposition will be supporting this legislation. We will also be noting the areas where it does not go as far as we might want it to. We will also be noting some of the limitations in some of the areas that the opposition will seek to monitor. But, importantly, we start with the issue of why it has taken so long.

We are in the final fortnight of sittings for 2006, and I notice this item was in the shadow cabinet brief of May and would have gone to cabinet before that. The explanatory memorandum is dated 29 March 2006, so this item has been on the agenda for a long time without having been brought on for debate in this place. Notwithstanding that, that delay is almost nothing when you consider when the inquiry commissioned by the government said this sort of legislation ought to exist.

We are not even talking about something that came from the last term of parliament. The inquiry, commissioned by the government, that said this sort of legislation ought to be introduced was held in 1999. In 1999 the inquiry recommended that sanctions be introduced against employers. At the moment, when somebody does not have the right to work and they are working, sanctions are levied against that individual whether they are a visa holder without work rights or whether they are here without a valid visa. The employee has sanctions levied against them. The employer essentially does not. That is the problem that was pointed out in 1999 and that is the problem that now, at the very end of 2006, parliament is finally bothering to deal with—and it is a serious problem.

As the 1999 inquiry commissioned by the government found, if people are working without the legal right to work, that denies Australians opportunities, it burdens the Australian taxpayer and it results in the exploitation of very vulnerable people. Almost invariably it is bad for the person who is working, it is bad for the decent businesses that have to compete with an employer who is behaving appallingly and it is bad for other Australians who could have that opportunity to work or who now have to compete with lower rates of pay. So there was a situation that had to be dealt with. There is an argument that, technically, there was a way of doing it by imposing aiding and abetting offences. But, realistically, the government acknowledged that aiding and abetting offences have not been pursued and there was a need to include something as specific as this in the Migration Act.

In 2002, the then Minister for Immigration and Multicultural and Indigenous Affairs, now the Attorney-General, introduced a new system not to actually provide sanctions against employers but to introduce a system of warnings to employers. I have to say that I am not sure what being given a warning would do if no sanction followed. It is no surprise that that 2002 system did not really deliver a lot. Employers were issued with warnings, but they knew full well that, notwithstanding that they had been warned, if they were caught doing it again they would just be warned again. A system of warnings does not mean much unless it is backed up by a system of sanctions.

In fact, in the 2004-05 year the Department of Immigration and Multicultural and Indigenous Affairs issued 2,280 warning notices to employers and labour suppliers, which was an increase of 20 per cent on those issued in the previous financial year. So year after year more warnings were delivered, and the best example of how ineffective those warnings were was the fact that in the subsequent year more of them were issued. None of that is a criticism of this bill; it is a criticism of the delay in this bill being brought forward.

So now that we are debating this legislation, it is worth looking at a couple of the provisions in this bill. An argument has been made that the current benchmark of knowledge or recklessness is too high a bar and that an employer should have strict liabilities. An argument that has been put from time to time is that that is the way to make sure that an employer never employs somebody who does not have the legal right to work in Australia.

The problem with the strict liability model, and the reason that Labor is not seeking to amend the recklessness test, is that we do not want to create a situation, and I understand the government does not want to create a situation, where anybody who has an accent is asked to provide a visa. We do not want the presumption suddenly that if you have an accent other than that which is considered to be Australian we have to make absolutely sure that you have the legal right to work and end up in a situation where there is clear discrimination at the time of employment as to what some people are being asked to provide and others are not. None of us wants to create that situation, but we do have to find a way to effectively stamp out the problems of employers employing people who do not have the legal right to work. For that reason Labor is not seeking to amend the recklessness or knowledge tests in this bill.

There are problems of weakness in that there will be some employers who do not quite satisfy the test of recklessness but who, arguably, could reasonably have done more to find out whether somebody had the legal right to work. I do not think we have managed yet to arrive at the precise words required, and Labor will monitor exactly how effective this proposed legislation is. We agree with what is in it. It is a step in the right direction, but we do not want to take so far a step in making sure that nobody ever employs someone illegally that it results in overtly discriminatory practices being observed at the workplace. We do not want to end up with that situation, and therefore we are not amending what is before us right now. We are concerned that this bill does provide, arguably, a lower bar than might be required in order to make sure that these sorts of practices are stamped out.

Another concern relates more to the phrasing in the legislation rather than to intent. The government has sought to make sure there is an aggravated offence, and so there should be, where employers are acting in a situation of sexual servitude, forced labour or slavery. It is appropriate that there be aggravated offences in those instances. This has been phrased in a way that has given us a definition of exploitation, but we will not seek to amend it. We do not want to undermine the seriousness of those offences but I think that, logically, the concept of exploitation is much broader than just those mentioned. I do not want to create a parallel situation where we say that someone being underpaid is as bad as someone being in a situation of sexual servitude, forced labour or slavery; therefore, we are not going to seek to amend the definition of exploitation. But in terms of phrasing, exploitation and examples of exploitation which should be taken into account as some sort of level of aggravation do go much broader than what is contained in the legislation before us.

Many areas remain untouched by this legislation. Part of the problem, which was a focus of both the Palmer and Comrie reports, is that over a period of time government cuts to funding have resulted in a lack of investment in the IT available to the department of immigration, which has resulted in our hearing comments such as we just heard from the parliamentary secretary: ‘We believe there are 46,000 visa overstayers.’ In the Senate I think that comment was put as, ‘The government’s current estimate is that there are around 46,000 visa overstayers in Australia.’

I have to say that I am pretty concerned that the government does not know. I am pretty concerned that that sort of information is not available, with all the documentation given when people arrive at airports and visas are stamped and when visas are stamped again when people leave—it is a complicated system; I do not deny that. You have to be concerned when there have been many months and, arguably, years of preparation before we got to this moment in the parliament today and we have not been able to arrive at a figure that we can assert with any accuracy is the number of visa overstayers in this country. We do not actually know.

I know this is one of the issues that the department of immigration has as a priority to fix. I know the tenders have gone out; I seriously hope that it is fixed. It is in the interests of no-one, government or opposition, to continue to be in a situation on these fundamental questions where the correct, accurate response is, ‘We’re not really sure.’ But that is the best available information as I understand it, and I presume the parliamentary secretary and the minister in the other place would only come forward with what is the best available information, which in each case is by their own confession an estimate.

Of those 46,000 overstayers it is estimated that more than 26,000 have been in Australia for more than five years without the legal right to be in Australia. In terms of compliance and the promise that the government would decide who comes to this country and the circumstances in which they would come, I guess that is not under threat from that figure, but whether they leave when they are meant to leave is certainly under threat from that figure. The government appears to not know those answers. As I have said previously, I understand the department of immigration is working on trying to provide those answers in the future and that the tenders have gone out. But I really hope that it will not be long before the minister is able to provide more precise figures than those we are talking about today.

A large number of areas remain untouched. The parliamentary secretary in his speech referred to clause 245AC and said that this legislation would also pick up concerns where an employer has employed somebody by improperly using a 457 visa. Essentially we are talking about two sorts of breaches here, and for each there is the aggravated offence and the ordinary offence. We are talking about either a breach where somebody has no visa at all or no valid visa, or a breach where somebody has a valid visa but that visa does not contain the right to work.

So clause 245AC, in the 457 visa example that the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs gave, is about the latter. It is about a situation where somebody has the legal right to work but they are working in breach of a visa condition. The example that the parliamentary secretary gave is where somebody comes out for a particular skill set and ends up being in breach of the visa condition by working in a very different skill set or a lower skilled area which would not be considered lawfully to give them the right to be a primary visa holder under the 457 category. It is true that the legislation does pick up that. It is true that, where you are dealing with a clear breach of a visa condition, there will now be an extra penalty on the employer.

But there are many areas which ought to be cleaned up which this legislation does not go anywhere near. The classic one of those is a situation where the minimum rate under a 457 visa, while being technically complied with, has been effectively undermined because somebody had to spend thousands of dollars to purchase their job. These are the situations which have been debated in this parliament already. For example, we have had cases of people paying $20,000 or $21,000 for a $42,000 job. Those situations certainly, I would argue, amount to exploitation. Those sorts of situations, without any doubt, are a complete undermining of the minimum salary provisions which are contained within that visa category. But, even though they undermine it, they do not technically breach it because the payment has been made in another country, and the payment either has been made directly to the employer as a sort of interview fee or has been paid to a labour hire company or an employment agency as an agency fee. So either it has gone directly to the employer in a way that does not purport to be for the purchase of the job or it has gone through a circuitous route where the employer ultimately is the financial beneficiary but where there is not a direct link. In either case, it completely undermines how even the government claims publicly that that visa is meant to work.

We have debated here the situation of Mr Jack Zhang, who paid $10,000 to an agency and $10,000 to the employer. The first $10,000 was up front; the $10,000 to the employer came back out of the salary through deductions of the debt, and once the debt was fully repaid he was terminated. If we are serious at all about wanting to say that the minimum salary of just under $42,000 in that particular category of 457 visas should actually be meaningful then we should say that that situation is a breach of the condition, because there is no doubt that, if $42,000 is going through the employee’s bank account but they have actually lost $20,000 on the way through, that is not the way that this system is meant to work. It is clearly exploitation. It is clearly a breach of the spirit and the policy reason for having those sorts of minimum rates.

This legislation goes nowhere near it. This legislation does nothing to deal with that situation. After the bill before us has become law—and I will be glad when it becomes law; we will be in a better situation than we are right now—we will still have a situation where the scenario I talked about does not give rise to a true employer sanction because it does not satisfy clause 245AC of this bill. It will not meet that test. And yet, by any measure at all, it is outrageous. By any measure at all, it is just wrong—wrong, outrageous, but legal. When it happens at the moment, the most the government can do is to have this sanction: to say to an employer, ‘Well, we won’t let you do that to the next employee, but you got away with it this time.’ That is the ultimate sanction at the moment.

I have to say that, as deterrents go, I don’t reckon that rates. Saying, ‘You got away with it, but we’re not going to let you do it again,’ does not really count to me as a deterrent. If someone were caught for murder and told, ‘Well, yes, you did the wrong thing, but—guess what?—your punishment is that you’re not allowed to repeat that offence,’ we would all say, ‘Outrageous.’ We would all say, ‘That’s not a penalty.’ In this situation—while I am not saying it is parallel to murder—we have no effective penalty for an employer who completely undermines every policy justification there is for a temporary work visa.

So I see the bill before us as a step in the right direction but not too much more than that. I worry that it took us nearly seven years to make this step. I worry even more that it was not until we had the interaction that we have seen between the new industrial relations laws and the temporary work visa system—it was not until it became legal to exploit people in a whole new way—that the government decided there would be a crackdown on these people, on these employers.

Until a couple of years ago, the situations that I have been referring to, the situations that we have debated in this parliament about 457 visas, were not the problems that they are today. It was not until we discovered that the government had allowed there to be a new way to exploit people, a new way for employers to do most of the things that this legislation was originally designed to get rid of, that this legislation was finally allowed passage through the parliament. It becomes deeply tempting to ask, ‘Why is it that they will only stamp this out when they have found a new way of allowing it?’ because that has been the time line. There has been a seven-year gap between their commissioning that original inquiry and getting to the point that we are at in the House of Representatives tonight.

I have been unable to find anything in the legislation before us which is a step backwards, but what I have seen in the last couple of years is a massive step backwards in the way that people on temporary work visas have been treated in this country. Has it happened in the majority of cases? I have said many times: no, not for a minute. But there are examples of exploitation which are unacceptable and legal. After this bill, that will not have changed. We will have got to the bottom of making sure that we can punish an employer for employing a welder and giving them a job as a cleaner but we will not have done anything about the problem of an employer who technically pays somebody $42,000 and that person ends up with only $20,000 of it.

The reasons that the government have brought to the table for why we are passing this legislation are exactly the reasons Labor have been calling for the reform of the way the 457 visa has been working. When we have called for that reform, the minister in the other place has said: ‘It’s outrageous. They’re just against people from other countries coming here.’ No, the arguments that we have run are the same arguments that the government have run with respect to this bill. It is just that we want to stop all of those examples of abuse. We do not want to stop it only when it is a situation where somebody has no right to work in Australia or where somebody is working in breach of a visa condition. Let us make it clear that this is the employment situation among all employment situations where, if it does not get fixed in this room, it does not get fixed.

The reason for that is simple: we are talking about the people least likely to report abuse. We are talking about the employees who believe that, because they have no right to work, if they report abuse all it will mean is that they will get caught by Immigration. Sure, they have then fixed up the employer but it is not their job anymore and it is not their country anymore. So they are the people least likely to report abuse. Similarly, somebody on a temporary work visa who is being treated in a way that I would hope all members of this parliament would believe is unacceptable, notwithstanding that it is legal, and who believes that their employer has not only the right to terminate their employment because of the new IR laws but effectively the right to deport them in the same hit is highly unlikely to report.

This sort of legislation is to protect them. But it is not only to protect them; it is an important issue for the rest of the Australian workforce because they do not want to be in a situation where they are competing in a race to the bottom for a new, low market rate of wages. It is essential for decent employers—the majority of employers do not behave this way—because it is not right for them to be faced with competitors who do. So for all of these reasons, we have a real public policy problem that is unlikely to be reported, that is unlikely to be complained about but that is bad for employers, Australian employees and visa holders—and we have to find a way of dealing with it.

For the vast majority of problems of this nature that have been debated in this chamber, the bill before us will do nothing. Notwithstanding that, there are some people for whom the sanctions described here are really important, none more so than those who are in the worst situations of exploitation that I referred to earlier—and that is the bill’s dealing specifically with people in situations of sexual servitude, forced labour or slavery. It is unthinkable that, until this moment, they have been committing an offence but their boss or pimp or landlord probably has not. Yet that has been the state of the law. If they are in a situation of forced slavery, they are the ones whom the legal sanction has been against. I am pleased that, once this bill goes through this place, the person who has put them in that situation will be guilty of an offence under the Migration Act as well. That is a significant improvement. It is an important improvement. It is an improvement that Labor will support.

But the test of it for the limited class of people to whom this bill applies will be how the prosecutions then go. I do not want to see a case where this bill goes through here and we do not see prosecutions, and I also do not want to see a situation where we do see prosecutions but they fail because it was too difficult to establish that the employer had actually been reckless. As I say, I have deep fears about going to a strict liability path. I think there are huge public policy outcomes—unintended outcomes, but outcomes that then affect everybody who has any sort of an accent other than what would be regarded as a broad Australian accent, because an unnecessary and unreasonable burden has been placed on employers to insist on a whole series of papers and paperwork but only for those people.

It is for this reason that Labor for some time has been talking about trying to streamline the system with a work rights green card system in Australia. It is for this reason that Labor has been arguing for some time that, if you flag a connection to having to check to a green card with a tax file number system, which almost all employees do provide to an employer, you can avoid the racial discrimination overtones, because it will actually be evident on the face of the tax file number. These are the sorts of issues that Labor believes we should be talking about, considering and finding a way through.

The end point that we want to reach is simple. When we have a genuine situation of skills shortage that we cannot fill locally, we get the best people available from around the world to come here and help fill those gaps. That is the end point we want to get to. We do not want to see it being used in a way that amounts to exploitation by any definition, not just the limited definition of exploitation within the legislation that is before us now.

That is a good public policy end point to get to, but to try to get the Minister for Immigration and Multicultural Affairs into that debate is impossible. Whenever we raise it we get straight to name-calling such as ‘You are against immigration’ and ‘You’re only raising these examples because they are Chinese workers’—in the case of Mr Zhang. We get ridiculous argument after spurious argument after name-calling.

We have a genuine public policy concern here. When people ask me how big the problem is I say that I do not know and the government does not know. The government does not even know—I am back to where I started in this debate—how many people are here as visa overstayers. It reckons it is 46,000, and it reckons 26,000 of them have now been in Australia unlawfully for more than five years. There may be various reasons why it has not found them and deported them—I imagine there are 46,000 reasons why it has not done that—but we have a situation where the status quo is unacceptable. This bill makes a dreadful situation a little better. I am pleased to move the second reading amendment:

That all words after “That” be omitted with a view to substituting the following words:“whilst not declining to give the bill a second reading, the House is of the opinion that:

(1)

the Government has failed for more than six years to introduce sanctions for employers who employ unlawful non-citizens and individuals with work restrictions, despite a 1999 Government commissioned inquiry recommending it do so;

(2)

the bill fails to address the need for higher penalties for employers who are repeat offenders under the legislation; and

(3)

the legislation’s bar on employer culpability may be too low, the reference to ‘the person knows that, or is reckless as to whether, the worker is an unlawful non-citizen’ is sufficiently reserved that it may prove difficult to successfully bring sanctions against an employer”.

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