Brendan O'Connor (Gorton, Australian Labor Party, Shadow Parliamentary Secretary for Industrial Relations) Share this | Hansard source

I rise to support the Migration Amendment (Employer Sanctions) Bill 2006 and the amendment moved by the shadow minister. I cannot agree with the member for Fisher, who said that this bill is not the most important bill and therefore it does not matter that it is delayed. It was ridiculous to say that because the matter was not the most important matter we could delay a bill such as this for up to seven or eight years. In 1999 there was a report entitled Review of the illegal workers in Australia: improving immigration compliance in the workplace. The then minister was aware of that review, and nothing eventuated as a result of it. That was in 1999, in the government’s second term, and we have had to wait seven or more years for the government to choose to respond.

One would have to ask the question: why has it taken the government so long to respond? The government and indeed the Prime Minister have taken so long to acknowledge climate change, which they did in question time today. This legislation goes to the way we regulate workers—whether those workers are legal or illegal—in this country. Until this week, the government had failed to respond properly to ensure that there were not people working illegally in this nation. That was a dereliction of the government’s duty. It is an example yet again of a government that is out of puff and is no longer focusing on those matters that concern ordinary Australians.

It may well be that this matter has taken so long because it was about imposing sanctions on employers. However, I would remind the government that by failing to address rogue employers who are willing to exploit workers they are also hurting the majority of employers who do the right thing and employ people with a legal entitlement to work. Those employers who comply with the law are at risk because they are up against rogue employers who are willing to exploit vulnerable people. Those people, because they are working illegally, may not be able to raise concerns about things such as employment conditions.

It is fair to say—and the member for Fisher touched on this—that there is a demand for workers. That demand is sometimes filled by workers who are not legally able to work. Again that points to the failure of the government, which has not focused on developing the requisite skills that workplaces in this country need. I will not lay the blame on the government alone, as it is a role of employers to forecast their needs as well as of others in society to request that these issues be looked at. But, in the end, the government has a great responsibility to ensure that there are sufficient skills in this nation to fulfil the work requirements. If people who are not legally able to fill jobs are filling them because they have the requisite skills, maybe those people should be given full status of citizenship. It is not for us to turn a blind eye, to pretend they do not exist and to allow them to work under the cover of darkness.

This bill has been delayed for too long, and I concur with the shadow minister’s concerns about the deficiencies in the bill. The amendment acknowledges the delay in placing sanctions on employers but it also indicates some other concerns with the bill. Firstly, the bill fails to address the need for higher penalties for employers who are repeat offenders. Secondly, the legislation’s bar on employer culpability may be too low. That is:

... the reference to ‘the person knows that, or is reckless as to whether, the worker is an unlawful noncitizen’ is sufficiently [qualified or] reserved that it may prove difficult to successfully bring sanctions against an employer.

In other words, it will be hard to prove that there was an intent of a particular employer, given the phrases that have been used in the bill. Hence it is rather a low onus and it will be difficult for prosecutors to ensure that employers who do the wrong thing are sufficiently punished.

These deficiencies could be fixed immediately if the government accepted the amendments moved by the shadow minister. They are sensible amendments. We agree with the substantive provisions of the bill. We are critical of the delay—the lethargy that this government exhibits time and time again when it comes to regulating matters that are of importance to this country—but the bill is heading in the right direction, although some work is needed.

There is an opportunity for the government to rectify that deficiency. The minister should come into this place and accept that there are ways to improve the bill, and I would invite him to do so during the course of this debate. It is important to note that the former Department of Immigration and Multicultural Affairs conducted a government commissioned inquiry into illegal immigration. Its report recommended that, amongst other measures, a system of sanctions be introduced and applied to employers and labour suppliers. The report also found that the use of illegal workers in Australia results in exploitation of very vulnerable people, who in turn deny Australians the opportunity to access jobs. There is a burden on the Australian taxpayer where there are not taxes properly paid and, therefore, when the tax laws are not complied with.

Again, if people are knowingly working illegally and employers are deliberately having them work illegally, the employees themselves are hardly going to ring up the Australian Taxation Office and say, ‘I think I owe some money; you might want to take some money off me because I want to pay my fair share.’ Even if they were in their heart of hearts an honest person, I think it would probably be foolhardy of them to seek to ring a Commonwealth department knowing that they should not be working in this country.

The review made those conclusions, and it therefore seemed sensible that the government respond. The minister for immigration at that time, instead of listening to his department, introduced a system of warnings to employers—like wagging a finger at the employers and saying, ‘You should not do this because it is not the right thing to do.’ We know that sort of approach in matters such as these is not the way to ensure that rogue employers resist trying to exploit situations for their own personal gain—exploiting not only vulnerable workers but also other employers who are doing the right thing.

In 2004-05 the Department of Immigration and Multicultural Affairs issued 2,280 warning notices to employers and labour suppliers, which was an increase of 20 per cent from the previous financial year. So, despite evidence that the soft measures of the minister at the time were not going far enough, this government failed to take the necessary action. So it would not be fair to say that there were no warning signs. The review came out and made it very clear what the problems were and the minister, rather than embracing the recommendations made by the department, decided to put in place a self-regulatory approach to this matter. That in itself was not sufficient because there was evidence to show that, subsequent to the decision by the minister to have this self-regulation, there was a further increase in breaches. I think that again shows the government not wanting to do the right thing in this regard.

Under the Migration Act as it currently stands, penalties are imposed only on the illegal workers, not the employer or labour hirer who hires them. That seems to me to be inherently unfair. I think the member for Fisher said that this is a country that would attract many people. If we were to look at the relative living standards of this nation when compared with most nations, we would see that we are indeed very fortunate. So it is, of course, not surprising that people would love to be able to reside in this country, to live a decent life and to be a part of this civic society. I think most people would understand that. The current law is unfair because it is entirely directed towards the illegal worker and not the person encouraging them or seeking to gain from their employment. While an ancillary power exists under the Commonwealth Criminal Code to prosecute those who aid and abet, it is reportedly very rare to be prosecuted under this law due to the amount of evidence required. This is certainly an unsatisfactory state of affairs.

For a crackdown on illegal workers to be truly effective, you need to provide a strong disincentive to employers to deter them from hiring illegal workers. Currently, the only measures aimed at employers are information campaigns, a work rights checking facility and the issuing of illegal worker warning notices. I say as a member of the House of Representatives Standing Committee on Employment, Workplace Relations and Workforce Participation that we have been provided evidence that it is very rare indeed for a department to check whether visa applicants or others are properly monitored to see whether they have a legal right to work in this country. There is very little enforceability and very little scrutiny. The government is failing to enforce whatever existing laws there are now. So there is a further deficiency in the government’s conduct in relation to this matter.

The bill will impose criminal sanctions on business owners, employers and labour suppliers who recruit illegal workers, where the employer knows or is reckless as to whether the worker is an illegal worker. The bill also consciously extends to bailees of chattels and to people who lease premises—for example, to cover brothel owners who claim to be renting rooms to their sex workers instead of providing employment. The penalty for each offence is two years imprisonment and if the offence is aggravated it is five years imprisonment. Aggravated circumstances are where exploitation occurs. The bill also provides that, where appropriate, a court may impose a fine rather than order a prison sentence. Those fines range from $13,200 to $165,000.

After eight years since the review was undertaken, this bill will incorporate some of the recommendations that were then made by the department. The bill underlines the failure of the government to take heed of what the department’s own review expressed in 1999 and underlines the great delay of the government in bringing this matter before the parliament to properly regulate matters. They are things that need to be put on the record, but I think the bill underlines more than that. I support the amendment moved by the shadow minister, but I think there is more to be said about this matter.

This government has been asleep at the wheel when it comes to focusing on the skills required in workplaces. That is one of the reasons that employers seek to employ workers who may not have a legal right to work here. There is no doubt in my mind that that is one of the reasons. There is also no doubt in my mind—indeed there is evidence of this—that some employers have chosen to exploit the vulnerable position in which people have found themselves. These vulnerable people, who wish to stay in this country, have been offered employment by Australian employers who seek an advantage due to their position. These employers quite often pay these workers below the legal rate of pay and have them on inferior conditions. This is unfair not only to those workers but also to the majority of employers who comply with the industrial relations laws and the immigration laws of this country and choose not to aid or abet someone to break the law in order to gain financial advantage.

I hope this bill goes some way to improving the regulatory system for people working in this country so that we have a fair and decent regulatory system. I hope this bill significantly reduces the abuse and exploitation of vulnerable workers by employers. I also hope that, when enacted, this bill provides a system that is less subject to exploitation and less open to abuse. I only wish that the government had responded at the time the department made its recommendations, which was in 1999—almost eight years ago.

See this speech in context