Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Foreign Affairs) Share this | Hansard source

I am pleased to add my contribution to this debate on the Migration Amendment (Charging for a Migration Outcome) Bill 2015 because there are serious issues with the 457 visa program and the way that it operates in this country, particularly in an environment of higher than average unemployment, which has been rising over the past couple of years. I have had many representations from constituents regarding some of the issues associated with the 457 visa program. Most notably, I have sat with workers in the IT industry who worked for large insurance companies and banks for many, many years and were made redundant, only to be replaced in their jobs by 457 visa workers. In the ultimate insult, they were asked to actually train up those workers that took their jobs.

The number of occupations on the 457 visa list has grown exponentially over the past two years, particularly since it was established. I do not believe that it represents the original purpose for which it was established and that there are a number of issues with it. This bill deals with one of those issues, and that is the issue of an applicant being paid in return for a visa outcome. The bill implements a recommendation of the independent review into the integrity of the 457 visa program, namely that it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome, and that this be reinforced by a robust penalty-and-conviction framework. This bill implements that conviction framework, and I support that implementation. But there are other areas that this bill could deal with, and many of those problems have been illuminated over the past couple of weeks with the negotiation of the China free trade agreement and the Korean free trade agreement.

The independent review found that some sponsors in the 457 visa program had been paid by visa applicants in return for a visa outcome. Now, this is clearly a fraud. It is not the basis upon which that visa program was established. We all know that many of the 457 visa workers are aiming at permanent residency, and to use this channel and to manipulate the system in this manner is unconscionable. It is pleasing to see that the government is finally acting on this.

The bill also introduces a new civil penalty provision which will provide for a fine to be imposed on visa applicants or holders, or third parties, who offer to provide or who do provide a benefit as part of a payment-for-visa arrangement. Finally, the bill introduces new discretionary powers to consider cancellation of a temporary visa or a permanent visa where the visa holder has engaged in payment-for-visa activities.

I believe that these reforms are a good first step, but that they do not go far enough. There is clearly further work that needs to be done by the government on improving the temporary work visa system that operates in Australia. We have seen over recent weeks, highlighted through the debate that has occurred with the China free trade agreement and the Korean free trade agreement, that the provisions are not operating in the way that they were intended to when they were set up. And they are being manipulated in certain industries by certain employers and by other applicants.

Labor believes that there are other areas where we can make a difference—where we can tighten the system to ensure that it again reflects the original intent for which it was established. Many of those suggestions—helpful suggestions—were made during the recent Senate inquiry into this bill. Based on the submissions to the inquiry, Labor, through the member for Corio, the shadow minister, has proposed a number of amendments to the bill that would mean it applies to all work-related activity visas, including working holiday and student visas. This comes on the back of the high-profile incidents, including those involving 7-Eleven workers, which highlighted the conduct targeted by this bill as occurring not just with sponsored visas but also with student and working holiday visas.

In that particular case we have seen manipulation and exploitation of workers under temporary work visa programs, contrary to Australian law, to ensure that there was undercutting of wages and conditions that Australian workers ordinarily receive for doing this work. There have been a number of cases highlighted in the agricultural industry of manipulation of temporary work visas in that particular industry; again, employers and contractors—people who provide services to bring people into Australia on these temporary visas—manipulating Australian laws and ensuring that people are not paid the appropriate wages and conditions when working under Australian awards and in concert with Australian laws.

The amendments that the shadow minister has proposed will ensure that penalties cannot be applied to a visa holder found to have been coerced into offering, making or receiving a benefit. The minister should also be unable to cancel the visa of a person subjected to human trafficking, forced labour or slavery offences. These amendments go to resolving the unintended consequences of this bill. Again, these are some of the issues that were highlighted in the Senate inquiry and which we believe are important issues. If you like, they are ancillary issues that have been associated with this bill but which do, nonetheless, need to be fixed. Labor believes that the recommendations of the committee and the amendments that have been proposed by the shadow minister will deal with these.

I also believe that the original bill and associated penalties are too low to have the desired effect. While the bill provides for criminal fines of $64,800 or civil fines of $43,200 for individuals, there is evidence that the windfall from committing offences such as those that are the subject of this bill—paying for a migration outcome—can be as much as $70,000, and up to $700,000 for a sponsor dealing with multiple visa holders. So, clearly, the penalties that are proposed in this bill are manifestly inadequate. They do not deal with the issue that has been identified by the inquiry and they do not deal with the issue with an effective enforcement mechanism to ensure that these practices do not continue into the future. If we are going to make this bill strong and if we are going to make this bill worthwhile we need to make sure that there is no financial incentive for applicants or employers to engage in these fraudulent activities. And we are not going to do that with the measly sums that have been suggested by this particular bill.

We have also proposed that workers on student and working holiday visas be prohibited from obtaining ABNs and that whistleblowers who report instances of charging for sponsorship related events should have adequate protections, including amnesty from visa cancellation. This deals with the case that we have seen, again, coming through the evidence of the inquiry and anecdotal evidence that I and my colleagues have received of individuals being asked to obtain Australian business numbers, or ABNs, and set themselves up as businesses to avoid some of the scrutiny and the obligations that are imposed on visa holders as workers when they come into Australia under temporary work visas. We believe that adequate protections—including amnesty from visa cancellation, flexibility in finding a new sponsor and allowing complaints to be made to the Commonwealth Ombudsman when the Department of Immigration and Border Protection may have a conflict—are other sensible amendments that can be made to this bill.

Under Labor's amendments outlined by the shadow minister, the minister for immigration would also be required to table an annual report with regard to the impact of the legislation, while civil penalty proceedings should be able to be brought by unions relating to worker exploitation to increase the resources aimed at addressing this behaviour. So these are two further measures that we have suggested that will improve the operation of the temporary work visa system in the country. One is ensuring that there is greater transparency in the way that the system works, because we all know that there is a clear lack of information, particularly for new applicants when they are coming into the country, and there is a clear lack of credible information about how the system is actually working. You get these conflicting reports. We saw it in the debate regarding the China free trade agreement, where there were words in the side deal that was done by the Minister for Trade and Investment in respect of investment facilitation agreements, saying that there will not be any labour market testing for people coming into Australia to work on projects over $150 million in value, but the minister came out and said, 'No, that's not the case at all; there will be labour market testing.' On my reading of that side deal, there was not labour market testing, and that is why Labor moved some very sensible amendments to the general operation of the migration laws, and thankfully those amendments were adopted by the government, because they are sensible amendments that strengthen the operation of these provisions. So greater transparency and greater reporting and accountability to the parliament on the operation and impact of this legislation will be worthwhile, as will allowing unions to operate in the civil penalty regime, as they do in many other jurisdictions, most notably in workplace relations, occupational health and safety, and workers compensation jurisdictions. It ensures that you have additional enforcement and additional eyes on the operation of the scheme to ensure that it works and meets its intended aims.

In conclusion, I support what is proposed in this bill. My view is that it does not go far enough. There are further reforms that can be made, because this will not deal with a number of the issues that will be ongoing. I commend the shadow minister for making the recommendations that we have made, and Labor will have more to say on this issue in the lead-up to the next election.

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