Duncan Kerr (Denison, Australian Labor Party) Share this | Hansard source

I rise to speak on the Migration Amendment (Employer Sanctions) Bill 2006. I will relieve the mind of the member for Mallee by observing that, as a member of the joint committee on migration over a decade ago, this House and the Senate were alerted through the report that we then tabled about the problems of labour supply to the agricultural industries that he and a number of other members of this House represent. Sadly, remedies in relation to the abuses that were occurring at that time were slow to follow.

I think that the issue raised by the member for Mallee creates a very interesting framework for examining the debate in front of us. The ultimate solution that has been adopted involves two parts—firstly, to recognise that there was an unsatisfied demand for labour. Our recommendation was that we develop what we called a pickers trail, which I understand has been adopted only recently by the government, well after the recommendations of our committee to this House over a decade ago. Secondly, we recognised that there was an economic imperative that was not being satisfied by the arrangements that were then in place. We did not have the mechanisms to encourage an effective way for Australians who wanted to travel between various locations where seasonal opportunities for employment were available to do so while minimising their costs and improving opportunities in the industry.

The other side of it was that the government of the day, the Howard government, turned what had been illegal conduct into legal conduct. It massively increased the number of working holiday visas. It did not say, ‘The people who were doing this before would have been called illegal workers.’ The problem was solved not by preventing people undertaking what they had done illegally whilst they had been travelling in Australia before but by the Howard government substantially increasing the number of working holiday visas—under some criticism because the pickers trail issue had not been picked up at that stage; we criticised the number of working holiday visas that were being issued.

Eventually we had a two-part solution to the issues facing the horticultural industry. It may not be completely adequate in terms of labour demand and supply, but both strands were recognised by not treating people as criminals when they were holidaying and travelling through Australia supplying a useful utilitarian labour need to those agricultural growers that could not be supplied lawfully by the existing structures. It was not turning those people into criminals and turning a blind eye to it but regularising a program through an expanded working holiday visa and then picking up the pickers trail idea, which meant that you could have Australians more easily entering into those employment opportunities.

The crazy thing is that we still have some areas of policy which are mad in terms of their inconsistency. For example, you can come to Australia perfectly lawfully through an airline or an ordinary scheduled arrangement—not an ‘illegal entrant’ as this government so often traduces those who claim refugee status who arrive by boat—but then claim refugee status because of an asserted threat to your personal safety by reason of your political views or some other conventionally related matter. If you do so, I think, within 21 days—I may be wrong; I am subject to correction here—you will be granted work rights while your claim is assessed.

But if you leave it past 21 days because you are not advised about the framework or the opportunities, or you foolishly sweat on making such a claim and wait until you would ordinarily face having to return home, then you cannot work. You will be permitted to stay in Australia, but you must not work. I picked that one area of visa allocation out by way of illustrative example that we have in Australia quite a substantial number of visa categories under which the people, the government and the community have every expectation that the person will remain in this country for a protracted period of time—and they are not allowed to support themselves. They are not allowed to work. That is just a mad phenomena which invites abuse.

Just as we had that mad phenomena where we had an unmet demand for labour and no structures to put in place Australians to pick it up, through a pickers trail initiative or something that was worked through with the trade unions to make certain that available Australian labour could be facilitated to provide that service, and we had a blind eye turned to the provision of illegal labour being provided by people who we have now regularised as working holiday visa holders, we have this crazy situation where we have people living in Australia in a substantive, known capacity but with no working rights. Then we turn around and say, ‘These people are to blame for seeking out some way of putting sustenance on their table and providing food for their families.’

With all of that framework, until this bill we never had a framework that actually looked at the people who were abusing the system by offering employment. Sometimes it was for—I do not think you can talk about proper award wages anymore, Mr Deputy Speaker; there is no such thing—wages which were not below the community norm, if I might put it that way. But sometimes they were abusive of people who did not have work rights. Historically over the last decade, whilst everything else has been occurring as I have described, there has been no regime to deal with the people in that circumstance. Now we have these laws, and I hope that they put the balance where it should be.

It is crazy to treat as criminal conduct that which Australians overseas, when they are young and sometimes a bit reckless, routinely engage in. Mr Deputy Speaker, I do not know about the people you mixed with when you were younger, and I do not know the people whom you see when you travel overseas, but routinely when I have travelled overseas—and certainly when I was younger—I have met many Australians who thought it not a greatly consequential thing to pick up a bit of bar work without having a visa in the United States, in Europe or when travelling through South America.

People do these things because it suits the way they are as itinerant young people. Yes, certainly, if they are detected, they will often be the subject of immigration removal, particularly now, as laws and attitudes have toughened up in some of these countries. But in the past, this was something that was just part of a rite of passage for many young Australians as they travelled around the world—ski bums and what have you doing a little bit of work here and a little bit of work there. Certainly, they did not conceptualise themselves as criminals. If they did, there are a hell of a lot of criminals, Mr Deputy Speaker, that you and I and probably even the minister at the table know who have done such.

We also have the good fortune to come from one of those countries where essentially, in most parts of the world, we as Australians are treated pretty benignly. I remember talking to a friend of mine who was living in the United States on a spouse visa. She was a woman who was married to an Australian who had been granted work rights in the United States. The spouse did a little bit of work from time to time—I imagine quite a bit of little bits of work—without, at that stage, having regularised her entitlement to do so. She later did. I asked her: ‘You are putting yourself and your family at some risk, aren’t you? Because, if this is detected, it could be quite consequential. Your husband could perhaps lose his position. You might have to leave the country.’ And the response was, ‘They look out for Mexicans; they do not look out for people who look like us.’

I think there is an element of truth in that, and I think there is an element of truth in the way in which we in our community conceptualise these issues too. The people we have in our minds when we talk about illegal workers are some kind of ‘them’, and in our minds the ‘us’ who go about the business of doing these things in a pretty ordinary and routine way never come into the frame in that way. So, if we are not going to be total hypocrites about the whole thing and demonise the people who are not given work rights but have to live here, and if we are not going to demonise the people who, in circumstances like young Australians travelling overseas, might seek some work from time to time, let us do the sensible thing. Let us put the obligation on the employer to at least have some kind of basic scrutiny that the person is entitled to work for the firm or the individual who employs them. That is what this law does.

It imposes a pretty thin test, to be honest. It says that you are only liable for criminal prosecution if you knowingly or recklessly employ such a person. So if you satisfy yourself—albeit on grounds which are not ultimately sustained—if you ask somebody: ‘Are you regular? Do you have work rights?’ and you take reasonable, modest precautions—asking for a tax file number or something of that kind—then it would be almost impossible to sustain a prosecution. The second reading amendment draws attention to that issue and says, ‘We might have to look at that again.’ For my own part, I am reasonably relaxed about that particular burden. I am reasonably comfortable about it because I think it would be wrong to impose a framework of strict liability. When somebody comes before them and presents themselves as an employee, unless there is something manifest about that person, I do not think we should expect employers to be detective agencies.

If we find that these provisions are still abused and are not effective, we may have to re-examine them. I take some comfort from the comments of the member for Mallee that there is an education program going on now with employers who have a traditional association with the employment of large numbers of people who are not documented and not entitled to work, and that these new arrangements and the penalties may be adequate to serve the purpose. We can revisit this if it proves not to be the case.

Now that we have addressed this issue, we really should not have on our laws the blot that says that we will have in the community a substantial number of people awaiting determinations on refugee claims, or in other circumstances where they have a visa and are entitled to live here, who have no other expected means of support but who cannot work. That, coupled with these new arrangements which will mean that employers will be accountable for employment, is likely to create significant difficulties. Compassionate people who, for example, may have given such people an odd bit of work here or there just to make certain they do not starve may find themselves inadvertently caught up in this net if somebody wishes to press those matters. DIAC has had a reputation of focusing exclusively on those kinds of enforcement issues—sometimes with a degree of zeal—and not looking at employers.

These issues intersect, and I think the member for Mallee has correctly raised concerns that members of this House have about the way in which these new arrangements will be administered. I have great regard for Andrew Metcalfe, the new Secretary of the Department of Immigration and Citizenship, and I believe that he is genuinely pursuing a reform agenda within that department. I hope that through this process we actually see sensible, effective enforcement of these provisions directed principally at people who are abusing the law.

People talk about five-year imprisonment penalties for this, but those very severe penalties are directed at the most abusive of employers. They are directed at people who, for example, might be misusing their power to deal with people who are very vulnerable. The ordinary provision is for a maximum of two years imprisonment for an offence. Of course, I do not imagine anything of that nature would be imposed for a first offence. I imagine that, in the first instance, people would get a slap over the knuckles and be told not to be reckless in relation to employment. I suspect that very few will be deliberate in flouting this law, but there is perhaps too great a degree of casualness in relation to checking and the like, and, when issues stand out, employers do not advert themselves to an obvious problem when they ought to.

The offence provisions at the moment for aggravated offences—for example, people working in conditions of sexual servitude or the like—are understandable; we expect a higher penalty. For other offences, there are penalties of up to two years imprisonment. One would imagine that those two-year imprisonment penalties would apply only to repeat offenders or to people who quite knowingly go about abusing the law and perhaps recruiting people who do not have work permits in order to exploit them by paying them less. Somebody in that circumstance might find themselves facing a first penalty at the higher end.

I believe that the government has moved sensibly but late in relation to this matter. It has taken a long time for the various pieces in the jigsaw to be put together and there are still missing pieces. There are still unfairnesses that exist because of the way in which the pieces are now put together. The key unfairness is that we still have a large number of people who have long-term residency entitlements in Australia until their matters are determined or who have other entitlements that permit them to remain here but who are without work rights. As long as that persists, we are going to have, in terms of human compassion, some pretty sad cases at the very least, and some inconsistencies and allegations of hypocrisy which can be levelled against us in our approach as law-makers.

I conclude my remarks by saying that I hope that the implementation of these laws is given proper resourcing—it will require resourcing if it is not just to be a rhetorical flourish—and that these laws are administered in a way which is consistent with the reform agenda that the department has committed itself to, at least in rhetoric, and, I hope, increasingly in practice. I am pleased that ultimately this parliament has had this bill before it. I believe that it will have an impact. It is a more rational way of dealing with the problem than pretending that you can go after individual persons who are not entitled under their visa conditions to work and treat them as criminals. Frankly, that approach does not work with Australians when they are overseas; we can hardly expect it to work the other way around for those who come to these shores.

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