Brendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I rise to support this rather modest bill, the Migration Amendment (Charging for a Migration Outcome) Bill 2015, because it is seeking to remedy some of the problems that currently confront the application and use of temporary visas in Australia. Labor does support the bill, but we think there is a requirement to go further in ensuring that we restore confidence not only in the 457 visa area but also in other temporary visa arrangements.

I think it is also important, by way of context, to provide some brief history about this issue. Of course the last piece of legislation enacted in the previous parliament went to introducing labour market testing for 457 visas covering a significant number of occupations under that particular scheme. At the time that was being proposed in this place, it was opposed vehemently by the then opposition, the now government. They voted against the proposed legislation but nonetheless the legislation was enacted and it became law. Notwithstanding the promises of the then opposition and even of the shadow minister for immigration—the now Treasurer—to repeal that legislation, I am glad to say that the government has not moved on its intentions to repeal what was very important legislation to protect not only the interests of the 457 scheme but also to protect the interests of workers in this country who are looking to find work at a time of growing unemployment.

It is also important to note that the arguments that were waged against Labor for introducing that bill referred to us as xenophobic and racist—very similar to the arguments recently waged against us by the trade minister when we raised legitimate concerns about the deficiencies ChAFTA with respect to labour mobility. Again, happily, we managed to settle on some of the matters in that particular recent disagreement. Nonetheless, it does show that the government has, on occasion, resorted to quite extreme and unfair language when seeking to have a conversation about this very sensitive and very significant area of public policy. Equally—and I think it is also important to note—even though we were attacked at the time for introducing the legislation, not only has the government not sought to repeal that legislation but the trade minister and others have used that legislation as a defence as to why there were sufficient protections currently in place domestically to protect against any of the problems that might arise as a result of entering into a trade agreement with China. So it has gone from a full-on attack to supporting, it would appear, at least on the face of it, legislation that was introduced in June 2013 by the previous Labor government. I believed then, as the former immigration minister, as I believe now, as the shadow minister for employment and workplace relations, that there was still more work to be done in this area.

It is fair to say that the proportion of people in our labour market who are under temporary visa arrangements is very significant today compared with yesteryear. Fifteen or so years ago you might have seen one per cent and possibly up to two per cent—but I do not think it would even reach that far—of people on temporary work arrangements. Today, of course, we have a proportion that is heading towards 10 per cent of our labour market. Some have said it is less, but, on a closer examination, we find that it is close to 10 per cent. Some would argue that it is 800,000 or in excess of one million workers who are on those arrangements. Therefore, I think it is important we have a regime in place that not only protects the interests of those people who have been subject to exploitation but that also prevents unfair downward pressure on employment conditions in this nation because of the misuse of the scheme—that is, using the 457 arrangements when there is not a shortage in particular areas of our labour market, not paying the requisite income to 457 visa applicants and not actually employing them in the job that was on the form that was filled out and provided to the department of immigration. There was a series of significant abuses of the scheme.

We found out even more about that before the last term ended when we—that is, the former Labor government—empowered the Fair Work Ombudsman to investigate breaches of the 457 visa scheme. Indeed, the recent report by that independent agency found some very significant breaches, I would say widespread breaches, of that scheme. These were reported by that body to the minister, and they have done some very good work in the circumstances. If you think about it, if we had not empowered the Fair Work Ombudsman we would have had the department of immigration, with the very scarce resources that it has, dealing with very significant matters and having to continue to deal with this issue alone. Far fewer inspectors work for the department of immigration than work for the Fair Work Ombudsman, so it was a very good reform—increasing manyfold the resources to look at breaches and to respond to allegations of misconduct, exploitation and abuse of people. Again, we are glad to see the government has not sought to change that, although we were criticised at the time it was introduced.

But as the shadow minister for immigration has said in his contribution to this debate, we think we can go further than just the bill itself. As previous speakers have noted, the bill will make it unlawful for a sponsor to be paid by a visa applicant for a migration outcome, and that this be reinforced by a robust penalty and conviction framework. That is the recommendation of the independent review established by the current government into the integrity of the subclass 457 program, and we think that recommendation can be realised by the enactment of this legislation, and that is a good thing. Again, given there are examples of people who are on these visas seeking to game immigration—that is, willing to pay to be on a 457 visa or pay part or all of their income just so they can come to this country and not for the purpose under the particular visa that would apply to them—we also think it is important that this legislation will seek to remedy that arrangement. Just like we have seen education as an export industry being gamed for immigration purposes, so to have we seen examples of gaming here where people have sought to rort the system, if you like. This legislation introduced by the government will go some way to remedying that issue.

One point in respect of that current recommendation, and it something we will be seeking to amend in the Senate, is that the penalty should not apply, cannot apply, to a visa holder who is found to be coerced by the sponsor or a related third party into offering, making, asking or receiving a benefit. So while we say that of course there should be criminal penalties apply to the sponsoring employers if they have done the wrong thing intentionally, and potential civil breaches and penalties apply to an applicant who is misusing the scheme, we would also say that if someone has been forced into that situation or has made decisions under duress, then we would not want to think that the minister would use his or her power to penalise that person. We do not believe that is the intention of the legislation. It may well be, but the government can clarify that for us or they can accept the amendment as will be proposed by the opposition in the other place when it is being debated there.

Among other things that I wanted to add to this debate, and this is by way of a question to the government: I wonder why there has been no movement on some of the other recommendations of the independent review? For example, the independent review talked about imposing a training levy on employers, which I think is a very good thing. It is something that should be considered. One of the reasons we use temporary visas is because of skill shortages. There should also be a policy intent to ensure that employers understand that we are also obliged to train our own workforce. It should not become the first option to be looking elsewhere when there are 800,000 people unemployed, and many more underemployed. We think the training levy not only can act as a form of affecting the way in which people might make this decision, because it will be a cost to the employer, but it is also a cost that is consistent with the policy approach that is certainly taken by Labor and hopefully by this government.

The review also recommended a tripartite body be established, an advisory body. We wonder whether in fact the government may want to contemplate—given Malcolm is waxing consensual about wanting to talk to all and sundry these days about everything, and he keeps referring to the ACTU in dispatches, he might want to consider, therefore, given it is a recommendation of his own review, including unions along with employers and other bodies on a tripartite advisory body to advise government on these matters. It is something that we had in the past. It was repealed by this government, but it should be considered again. It is a recommendation of their own review, and if the Prime Minister's words mean anything to him, then it is something they should consider.

Apart from those recommendations that have already been made to government by its own review, the shadow minister for immigration has also referred to other amendments we intend to move in the other place, including expanding the scope of the bill, expanding the provisions of the bill, so that it applies to all work related visas—sponsored or nonsponsored, including working holiday and student visas. If you were to look at the highest profile stories that are in the public realm about the exploitation of overseas workers on visas, most of these examples are actually not about 457 visa applicants. They include 457 applicants but the majority of them happen to be those on student visas and working holiday visas. So it would be remarkable that we would not seek to broaden the legislation to include penalties in cases where employers employ a particular worker who may be on one of those other two visas and seeks to get money from them in a particular way. Why wouldn't we consider issuing some penalty to them? I understand the review was confined to certain matters, but I think this piece of legislation could certainly look at broadening the oversight of these penalties to those areas.

We also believe that there should be an increase in penalties for sponsors. The proposed penalty for employers or visa holders complicit in asking for, offering, making or receiving a payment for visas should be increased. Sponsors convicted of an offence under the act should also have their ability to sponsor new visa holders suspended for a maximum of two years. Recidivism is rife in this area, and, to prevent repeat offending, I would have thought that we would bring in stronger penalties for those who have already committed offences so that they do not factor in the penalty into their business model—'We'll be penalised, we'll cop the penalty, we'll continue offending'. We should make sure that there is an increased penalty for intentional and repeated breaches of the provisions of visas and of this legislation.

Given the tenuous hold that we have on people who are on temporary visas, we think that those on student visas and working holiday visas should be prohibited from obtaining an ABN and therefore prevented from acting as a contractor or subcontractor. We believe it is far better for it to be a relationship of undertaking work pursuant to the work visa arrangements than one that is an employment relationship. Again, we think that is something the government should entertain. This would reduce the risk of exploitation, and I think for that reason— (Time expired)

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