Chris Hayes (Werriwa, Australian Labor Party) Share this | Hansard source

Today I stand to support the Migration Amendment (Employer Sanctions) Bill 2006 because I support the introduction of a system of penalties that apply to employers who knowingly or recklessly employ illegal workers or refer them for work. The amendments to the Migration Act 1958 contained in this bill create a series of new offences for employers, labour suppliers and others. The bill extends sanctions to anyone who employs or refers for work anyone who is an unlawful noncitizen or a noncitizen who has breached the work conditions of their visa.

The provisions of this bill insert a new subdivision C into part 2 of the Migration Act 1958 which provides the controls for the arrival and presence of noncitizens. There are eight fault based criminal offences that relate to employing or referring noncitizens for work. I will go through those. One offence is allowing an unlawful noncitizen to work. This offence is considered to be an aggravated offence if the illegal worker is being exploited. Another is allowing a noncitizen to work in breach of a visa condition. This is also considered to be an aggravated offence if the illegal worker is being exploited. Another offence is referring an unlawful noncitizen for work. It is again an aggravated offence if the illegal worker being referred is being subject to exploitation. Another offence is referring a noncitizen for work in breach of a visa condition. Again, an aggravated offence will be committed if the prospective illegal worker is exploited. I welcome the inclusion of these aggravated offences.

When it comes to some of the aggravated acts, one aggravated act of exploitation is one too many. The introduction of these offences is very important. The introduction of sanctions aimed at addressing the causes of the problems, not simply their manifestations in the workplace, is indeed important. Stopping rogue employers in their tracks and stopping them from taking advantage of illegal workers or transporting individuals to Australia for the primary purpose of making them act in servitude are all welcome steps forward when it comes to bringing a halt to illegal workers being in Australian workplaces.

While these steps, culminating in the introduction of the amendments contained in the bill before us today, are important, as has been stated in Labor’s second reading amendment the question remains: you have to wonder why it has taken so long for these matters to be addressed. Bear in mind that the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs noted in the second reading speech:

The government has long had concerns about those who seek to work illegally in Australia.

He went on to say:

The government believes that there needs to be provision for imposing sanctions on the small number of employers and labour suppliers who deliberately engage or refer noncitizens without the right to work in Australia.

He also noted:

However, no matter how good Australia’s visa arrangements are, there will still be some people who seek to take advantage of our desire to attract genuine visitors, students and other temporary residents.

I find these statements to be quite contrary to the government’s actions in this case.

The problem of the use of illegal workers by rogue employers is, quite frankly, not a new one. This government has known about the extent of the problem since 1999. As Labor indicated in its second reading amendment, this government now seeks to express deep concern when introducing these new penalties but has failed for the last six years to introduce sanctions on employers who employ illegal workers. I am following the member for Hasluck, and we read the same paper today—perhaps because there is a rather interesting poll in there. As I read on, I saw the headline ‘Changes to protect foreign workers’. This article deals with the employers who seek to exploit foreigners working on temporary work visas in Australia. I note the comments of the new immigration minister, Mr Andrews. He said:

There are some cowboys out there and their behaviour is not acceptable and I intend to crack down on them.

I applaud his comments, but this has been known about by this government for six years. It is very good to start referring to these employers as cowboys and to say that you are going to crack down on them, but what should have been cracked down on is the government being so lax in taking the time that it has to bring this matter forward.

In 1999, the government commissioned an inquiry into the problems associated with illegal workers in Australia. The results were clear. The report, entitled Review of illegal workers in Australia: improving immigration compliance in the workplace, found that there were significant problems associated with the number of illegal workers in Australia denying opportunities for Australians to access work. The inquiry also found that the compliance regime imposed additional burdens on Australian taxpayers. That is interesting, considering that the report about these changes in the Australian today written by Cath Hart concludes:

The changes follow moves by former immigration minister Amanda Vanstone to bolster policing of the scheme after it was revealed that compliance audits had dropped as the scheme grew.

It is once again a matter of playing catch-up—this time in relation to compliance. The report recommended—and rightly so, I might add—that a system of sanctions be introduced in relation to employers and labour suppliers and that there should be a range of offences and penalties that reflected the serious nature of the offences. The situation we have at the moment is much removed from that, and it will probably take a lot of people by surprise. At the moment, if someone who does not have permission to work is found to be working as an employee, that employee will be subject to penalties, not the employer. At worst, the employer can be barred from accessing people on 457 visas. But the penalty imposed is imposed on the employee.

That is quite clearly a substandard outcome in anyone’s book. If anything, it could be argued that it entrenches the likelihood of exploitation of these workers. It also creates no deterrent for unscrupulous employers who simply seek to attract illegal labour to this country for the purpose of cheap labour outcomes. For workers who are illegally engaged or who face sanctions for working illegally, the implications are quite clear. These people are going to be less likely to speak out in relation to their circumstances. After all, they are the people who would be fined or penalised under the current system, if that were to stand. It also means, I believe, that they would be more than likely to be subject to exploitation. If, under the current regime, it is an employee who faces the penalty for work, it is hardly likely that that employee is going to—as one might put it—squeal on the circumstances and identify themselves as working illegally.

Employers move on without any sanctions being imposed presently. They can go about their business and seek to engage other people to come in, under the same set of circumstances, to simply replace the person who has had to leave because of being regarded as an illegal. There is something fundamentally wrong with that approach. It has been known for a long while now. This is something that has been identified for over six years, and we are only now in the position of simply moving these employer sanctions to redress that situation.

I do not say that people who are caught working illegally should not be punished, but the punishment must be meted out to those who employ illegal workers as well as to those who work illegally. I do not think you would find anyone in the community who would consider that to be an unreasonable proposition. The provisions of the bill before us today allow penalties to be applied to employers who, quite frankly, overstep the mark in this regard. Inasmuch as this improves a position which was rather half-hearted when it was introduced in 2002, I have to say that this must occur, and it is only right that we actually do this now.

To take you back, Mr Deputy Speaker: in 2002, in trying to address the issues that were raised by the report in 1999, a system of warnings was introduced by the then Minister for Immigration and Multicultural and Indigenous Affairs. That never really worked. If anyone seriously thought that an employer who was willing to employ illegal workers was going to take much notice of a sternly worded warning from the federal government, they were much mistaken. If the people who drafted that position in 2002 thought that employers who were prepared to engage workers illegally—and take the risk of bringing in further illegal workers—were simply going to be chastened by a sternly worded warning from the government, they must have been dreaming.

It would be easy to stand here today and call for a strict liability regime in dealing with these issues, but a strict regime would be as inappropriate, I would submit, as having the existing ‘no fault on employers’ regime. Accordingly, Labor is not seeking to introduce such a regime. However, we are critical of the fact that the test of recklessness as applied through these amendments appears, in our opinion, to be too low. The test of an employer’s culpability is set by using these words:

... the person knows that, or is reckless as to whether, the worker is an unlawful noncitizen.

This, as Labor’s second reading amendment notes, is far too reserved, and I am doubtful as to its ability to effectively impose sanctions on an employer. The proposed system is an improvement on the old one—there is absolutely no doubt about that—but I wonder whether simply taking a further incremental step in this general direction is an adequate response to something which has been identified as a significant and serious issue.

As I commented earlier, there is no doubt that the provisions contained in this bill which seek to change the focus of the sanctions regime from penalties for employees alone to include penalties for employers are welcome. That change in approach means that the penalisation of rogue employers who have seen fit to employ unlawful noncitizens or to employ noncitizens contrary to the conditions of their visas stands in stark contrast to this government’s extreme industrial relations laws, which have given legal sanction to the actions of rogue employers.

This government has actively sought to create a climate of fear for working Australians, in which they face the very real prospect of being squeezed through the downward wage pressure applied both as a result of Work Choices and as a result of the improper use of 457 visas. Many working Australians whom I speak to possess that fear. They believe that too many opportunities for employment are already leaving Australian shores and that too many of the opportunities that are left are now being filled by workers from overseas. I hear of many cases where employers provided with this option have abused the 457 visa system and employed cheaper labour by accessing it from overseas—and they take advantage of that.

I would submit that, as legislators, we have a responsibility to make sure that the regime accommodates the employment of overseas workers and that that system works well. We need to know that the proper deterrents are there and that employers think twice before breaching the intent of that system that people be engaged lawfully. We also need to make sure that loopholes—like those created through the flimsy tests contained in the 457 visa regime—are not so easy to get through that they provide a backdoor means to achieve the same thing as employing illegal workers.

We have certainly seen many cases where the media has gone out of its way to identify people working in these scenarios. Of all of those, I have to say that you would have to be quite sure that workers who are working illegally at the behest of an employer would be subject to some form of exploitation. We can be quite sure that these people are going to be the least likely to complain about their circumstances out of fear of the implications for them. We do not need another aspect of employment law that drives down the wages and conditions of Australians who are working in the same or similar occupations simply because of the contest of gaining cheap overseas employed people.

Given the time that it has taken for the government to introduce this change—in excess of six years since the completion of the report that they themselves commissioned—I cannot help but think that only the interaction of the industrial relations regime and the temporary work visa system has brought about this legislation. The article today in the Australian concluded that the reason this scheme is being enacted presently is the drop in the compliance audits administered by the Commonwealth as the 457 regime extended. The government have tended, quite frankly, to give the green light to rogue employers, employers acting unscrupulously in that regard, but even they realise that the interaction of their industrial relations regime and the temporary work visa scheme has gone too far.

In an electorate in the outer western suburbs of Sydney, I see how people have suffered from various aspects of the use of 457 visas. I hear from employers who complain about other employers who are suspected of using illegal labour. But, to date, in all those cases, if they are proved to be correct in their assertions that labour has been engaged illegally, the fault aspect has been directed only to the employee and not to the employer. As a consequence, we have developed a system which protects the so-called cowboys that the minister is now seeking to address. (Time expired)

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