Bruce Baird (Cook, Liberal Party) Share this | Hansard source

It is my pleasure to continue speaking on the Migration Amendment (Employer Sanctions) Bill 2006, which the government has brought forward and which I support. The bill introduces new offences for employers, labour suppliers and other persons who engage illegal workers. The bill will make it an offence to allow noncitizens to work or to refer a noncitizen for work in breach of visa conditions.

We have had many situations where illegal workers have been operating in various parts of Australia and they are very difficult to track down. We have had raids with tip-offs resulting in high-profile activities. The streets were closed off in Mossman when a raid was carried out on the Whale Car Wash and the result was that a few people were caught. Many people who were having their car washed were not particularly pleased with the event, and there were some accusations that it was a little bit over the top. But this new legislation turns the responsibility back on the employer. Instead of employers saying: ‘I never knew. It isn’t my problem. I employed them. They said that they were Australian or that they had residency rights,’ this is coming back to them and saying, ‘These are the penalties to the company if you do not check whether the person is here illegally, and the person who is working illegally needs to ensure that they have work rights; otherwise penalties will apply.’

Many small business operators might say, ‘This is a problem, because we made a check and we were told it was all okay and now you are confronting me with this fairly draconian piece of legislation which might result in a couple of years in jail.’ I think there are sufficient outs for those who are doing it without recognising the problems involved.

Under the proposed legislation, employers would only commit an offence if they knowingly or recklessly allowed an illegal worker to perform work. This legislation followed consultation with employer groups which were concerned about the more onerous, strict liability offences and on-the-spot fines recommended by the review of illegal workers in Australia. Those requirements have not been introduced. So it is a pretty fair piece of legislation. The legislation is actually about those employers who deliberately flout the situation, who bring in illegal workers, who bring people out on holiday visas and then exploit the situation. Sometimes it concerns people who have been trafficked for sexual exploitation or people working in restaurants or in meat-cutting businesses or whatever. But the legislation is saying that these people who know what they are doing—and there has been clear evidence that they have brought in people on similar arrangements before; people have been caught working illegally in their establishment—are the ones the legislation is after. They are the ones that are being put on notice: ‘You had better check it out or we will be after you, and you can expect appropriate penalties.’

Of course, there is a worthwhile purpose in this; not only is it to catch out those who are illegally employing those who have no right to be in the country, or certainly not to work, but it is to look after those who are doing the right thing—who have been granted citizenship and who have been granted the right to work—and Australians who are out there looking for jobs. They find they have been undercut by somebody who is doing a deal with an employer who knows that they are doing the wrong thing but decides it would advantage them on an economic basis. This is the type of approach that other countries are taking, particularly the UK, Denmark and Sweden. The UK and Sweden—if we look at some of their approaches to illegal arrivals, and particularly asylum seekers—have fairly generous schemes. So we cannot say that they have draconian measures and that we are copying them. I think this is a sensible approach of encouraging people to do the right thing. They have to get their citizenship in order—their right to work—and then everything will flow from that. Those who want to flout the system will incur the penalties.

The government is not expecting employers to be migration law enforcement authorities and it will not require all employers in Australia to do work rights checking. The employers will only need to carry out a work rights check where there is a substantial risk that the job applicant is an illegal worker. They can do that by various means—on the internet, through the department’s Work Rights Faxback Facility or by sighting a visa label. So it is clear that DIMIA—as it was called; it is now the Department of Immigration and Citizenship—will be looking at this in an appropriate way. The maximum penalties for the offences would be two years imprisonment and/or fines of $13,200 for individuals and $66,000 for companies. This is not for employers who just happen to have an individual working illegally who one day came in and was hired for a job—when everything told them that it seemed that they were telling them the right story; it is for those who deliberately flout the system.

The penalty provisions for an aggravated offence are up to five years imprisonment and fines of $33,000 for individuals and $165,000 for companies. An aggravated offence will involve the employee knowing that, or being reckless as to whether, a worker has been exploited—that is, that the person is in a condition of forced labour, sexual servitude or slavery. As the person who chaired the Parliamentary Joint Committee on the Australian Crime Commission inquiry into sexual servitude, I know that there are estimated to be 1,000 sex workers brought into Australia each year—often without understanding what their employment will be. The inquiry found that sometimes they thought they were going to be bar girls; sometimes they thought they were going to be simply working as hostesses in Thai restaurants—and, of course, that was far from the case. There were some dreadful experiences recounted to the committee. This legislation will also help to deal with that, and the appropriate penalties are in place. It is not intended that first-time offenders would be prosecuted. It is department policy to give employers administrative guidelines.

Currently, it is estimated that over 46,000 people have overstayed their visas to visit Australia. Of that number, 56 per cent or 26,000 people have been in Australia unlawfully for over five years. So it is an issue we need to address, and this is one of the key ways that we can do it. Despite the efforts of the department, this illegal work situation will continue to be a challenge. The bill sets out a scheme of sanctions for employers or any other suppliers of labour who knowingly or recklessly engage illegal workers. In 2000 and 2005 there were reportedly around 18,000 visitors to our country who were located either in breach of their individual visa conditions or unlawfully staying in Australia.

I support this bill. It does go to those who are abusing the system, who are bringing in illegal workers, who are overstaying their visas or who come on holiday visas and work. Often they are being undercut in their salary levels or exploited in various ways. This will certainly put on notice those people who regularly do this and the companies involved. For those employees who do not have work rights and are deliberately trying to flout the system, there are penalties involved. It puts everyone on notice of what is required. It is an attempt to cut down on the extent of illegal work being carried out in this country, with appropriate penalties. I certainly think it is a worthwhile piece of legislation, and it will assist considerably in improving an appropriate migration stream. It includes penalties for those who wish to illegally flout the situation.

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