Andrew Giles (Scullin, Australian Labor Party, Minister for Immigration, Citizenship and Multicultural Affairs) Share this | Hansard source

I move:

That this bill be now read a second time.

There is a crisis of exploitation in Australian workplaces. Too many workers are forced to confront vulnerability created by our visa system.

This means more wage theft for workers. Australians and people who hold temporary visas alike.

People are too terrified to speak out when they are mistreated. We all know this happens.

There is clear evidence of the systemic nature of exploitation in Australia's labour market. Unscrupulous employers and facilitators have misused visa rules to exploit workers.

According to a recent report by the Grattan Institute, up to one in six recent migrants are paid below the minimum wage.

Another report from Unions NSW released today found over one in five workers are paid a lower salary because of their visa status or nationality.

So, it's not just a bad apple or two. The government is particularly concerned about the vulnerability of people who hold a temporary visa.

Empty promises of permanent residency, wage theft, sham contracting, threats of a phone call to the Australian Border Force, stories where people have had their passports locked away, been sexually harassed and sexually assaulted.

The list of behaviours is almost endless.

Most exploitation happens in entry level jobs with lower wages. Yet we know those who are paid more can also be vulnerable because of their visa conditions.

Those who have done the wrong thing are diverse from local bubble tea outlets in suburban shopping centres to global ICT multinationals headquartered in Sydney.

Regardless if you are working retail or developing software, regardless if you are born in Australia or have chosen Australia, the Albanese government believes no worker should be penalised for speaking up.

And the exploitation of those who hold a temporary visa doesn't just hurt the individual worker, it drives down wages and worsens conditions for all workers. It impacts all of us.

Exploitation also harms those employers who do the right thing. I know there are so many employers out there who seek to do the right thing. But they face unfair competition because too many choose to underpay a worker.

We have to stop this race to the bottom.

This bill enhances the ability of Australia's visa system and enforcement regime to combat worker exploitation with a particular emphasis on targeting employers and third-party facilitators who misuse our migration program and the rules designed to support it.

This bill aims to strengthen employer compliance and ensure that law-abiding Australian employers are not undercut by unscrupulous competitors.

This bill will implement recommendations 19 and 20 of the Report of the Migrant Workers' Taskforce, and includes several additional measures.

Importantly, it will help remove barriers that stop exploited temporary migrant workers from speaking out and seeking support.

This is an election commitment of the Albanese Government. And we are keeping our word.

The Migrant Workers' Taskforce should have been actioned earlier, as it was delivered by Professor Allen Fels to the then government in 2019.

New criminal offences

In its report, the Migrant Workers' Taskforce recommended making it an offence for a person to knowingly pressure, influence or coerce a worker to breach a visa condition.

This bill will implement this recommendation. It will be a criminal offence to coerce someone into breaching their work-related visa conditions.

Employers who deliberately coerce vulnerable workers must face the consequence.

We are also going further.

It will be a criminal offence to use a worker's visa status or a future work-related visa requirement to coerce or unduly pressure a person into accepting an exploitative work arrangement.

The bill also includes an additional criminal offence and associated civil penalty provision for a person who unduly influences, unduly pressures or coerces an unlawful noncitizen to accept an arrangement in relation to work.

This new offence makes it clear that it is never acceptable to use a person's immigration status to exploit them in the workplace, whether they are lawful noncitizens or unlawful noncitizens.

This new offence builds on existing provisions in the Migration Act, which already make it an offence to employ an unlawful noncitizen. It does so by appropriately penalising unscrupulous employers for taking advantage of vulnerabilities associated with the 'migration rules'.

Prohibition measure

The task force report recommended exploring mechanisms to exclude employers from employing further workers who hold a temporary visa for a specified period of time where they have been convicted by a court for underpaying migrants.

We are doing that.

The new prohibition measure will be introduced to prevent employers and other third parties from hiring any temporary visa holders where they have exploited workers.

At the moment, the only bar under the Migration Act on hiring is for sponsored workers, such as those who hold a Temporary Skill Shortage visa. The new measure will prevent prohibited employers from hiring non-sponsored workers who hold any form of temporary visa, such as international students.

This prohibition will be in place for a specified period of time and a list of prohibited employers will be published on the Home Affairs website.

This prohibition is necessary to protect workers from employers who have engaged in serious, deliberate or repeated noncompliance with their obligations.

Prohibition notices will be triggered by breaches under both the Migration Act and the Fair Work Act, as well as certain offences under the Criminal Code.

The Albanese government wants to ensure employment law and migration law work towards the same goal, so that they are not pulling in opposite directions.

Triggers include remuneration related noncompliance, but they also extend to other forms of exploitation, recognising the corrosive behaviour of some unscrupulous employers.

And it will be a criminal offence where prohibited employers have been found to have employed an additional worker on a temporary visa whilst prohibited.

The decision to prohibit will be a decision for the Minister for Immigration, Citizenship and Multicultural Affairs or Minister for Home Affairs and it can be delegated to a relevant decision-maker. I will be consulting and collaborating with my colleagues on how the Fair Work Ombudsman can play a role in this process.

The bill provides that before the minister, or delegate, declares a person to be a prohibited employer, the minister must give the person a written notice:

This gives the employer an opportunity to respond to the notice and outline any extenuating circumstances to be considered as part of that decision-making process.

Given the seriousness of these penalties, this bill also provides that the minister must consider any written submission made by the person.

Also, the minister must also consider any criteria prescribed in the Migration Regulations, for example:

This is a really significant measure. In industries where exploitation is particularly widespread—such as accommodation, food services, cleaning and construction—this is a necessary step to show that we can tackle exploitation where it is most prevalent.

It demonstrates that the Albanese government is committed to protecting workers from employers who have broken the trust of our community.

Increasing pecuniary penalties and civil penalties

This bill also increases the penalties for unscrupulous employers misusing our migration programs and misusing migration rules.

For penalties to have a deterrent effect, they must be set at a level that actually deters people from offending.

This bill will see penalties under the Migration Act significantly increased to better deter these unscrupulous employers.

Increasing penalties reflects the significant damage that the actions of unscrupulous employers can have on Australia's visa program integrity and public confidence in our migration system more broadly.

We need to ensure that employers think twice before deciding to ignore their obligations under the Migration Act.

Migration Act enforceable undertakings and compliance notices

At the same time, we understand that some employers can make mistakes. That is why we are enhancing the compliance and enforcement framework in relation to work related offences under the Migration Act.

This bill will give the Australian Border Force tools to work with employers to better support them to do the right thing.

Enforceable undertakings and compliance notices will address noncompliance by encouraging voluntary compliance as an alternative to pursuing punitive court proceedings, where it's appropriate to do so.

These Migration Act tools provide for an escalating range of measures to be used when employers fail to comply with the law.

Repeal of section 235

For people who have been exploited, the Migration Act has criminalised speaking out.

Section 235 of the Migration Act creates a criminal offence for a visa holder to work in breach of a work related visa condition or for an unlawful noncitizen to work at all.

However, this criminal offence has not been prosecuted since it was introduced over two decades ago.

A major issue raised by stakeholders is that section 235 of the Migration Act has undermined the ability of workers on temporary visas to have recourse to their rights under certain workplace laws such as workers' compensation laws.

A key element of this bill is to repeal this offence.

We understand that workers are afraid to speak out, because if they do so, they would be liable for prosecution for this offence.

We recognise that section 235 acts as a barrier for them to report exploitation.

Beyond this, section 235 has seen other unintended consequences.

Despite not being prosecuted since introduction, the mere presence of section 235 has resulted in adverse effects for noncitizens, even when they have not been prosecuted for this offence, such as in cases of workers' compensation.

The national workplace relations system and other workplace laws should apply to workers in Australia, regardless of their visa status. This is critical for the protection of all workers in our community.

We are repealing this section to assist in closing this loophole that gives unscrupulous employers leverage over vulnerable noncitizens.

This bill also includes an avoidance of doubt clause for the remaining work related offence provisions to further assist in closing this loophole.

The aim of the avoidance of doubt provision is to resolve potential unintended consequences associated with breaches of work related visa conditions that may lead to the interpretation that a 'contract of' or 'contract for' service is void—inadvertently contributing to the abrogation of employer responsibility to provide workplace rights and entitlements.

Other amendments

The final substantive measure included in this bill is the introduction of a power to permit the Migration Regulations to prescribe matters to be taken into account in a decision on whether or not to cancel a visa, under section 116 of the Migration Act, as well as the weight to be given to those matters.

Some will be aware of the assurance protocol, introduced in 2017.

The assurance protocol is a commitment between the Department of Home Affairs and the Fair Work Ombudsman that a worker who holds a temporary visa will not have their visa cancelled for breaching a work related visa condition if certain criteria are met.

While the intent of the protocol is positive, it has clearly failed to provide the assurance necessary to encourage people to speak up.

Since 2017, there have been only 79 referrals under this initiative. Clearly it has not inspired the necessary trust among exploited workers.

Stakeholders have told me that the reason they don't trust this initiative is because it is not transparent and because it is not legislated.

It is too secretive to instil the necessary trust and confidence.

The final measure included in the bill will allow the Albanese government to make regulations to legislate the protections that are currently only available under policy.

I have instructed my department to work with industry, unions and civil society organisations to consider the protections available to workers who hold temporary visas to encourage them to speak out when they face exploitation in the workplace.

Just this week, they have come together to work through the existing settings and consider whether other protections are needed. I thank those in business, civil society, unions, researchers, legal practitioners and other experts who have participated in these important conversations.

I intend to consider their advice—in consultation with my colleagues—and together we will ensure the protections achieve an appropriate balance, encouraging workers to come forward and report exploitation while also maintaining the integrity of our visa programs.

The measures in this bill will help give people confidence to speak out and seek help without fear of visa cancellation.

Role of ABF

This bill creates new powers, new penalties, and a new approach to tackling the exploitation of workers who hold a temporary visa in Australia.

Alongside the measures in the bill, the Albanese government recently increased funding for immigration compliance in the 2023-24 budget.

This recognises the important role of the Australian Border Force in compliance and enforcement.

For too long, the consequences for doing the wrong thing have been a slap on the wrist. The chance of getting caught, far too small.

So I want to make it clear. The ABF will be out there enforcing the law when it comes to those employers who choose to do the wrong thing.

Those who seek profit at the expense of paying workers a fair and legal wage.

Those who do the wrong thing will be found. And they will be penalised.

Closing remarks

So many workers who hold a temporary visa make a significant commitment when they leave their home to come to Australia.

This commitment involves a leap of faith which is characterised by both opportunities and inherent risks associated with moving to a new environment, away from the normal supports of family and pre-existing relationships in the workplace and beyond.

This commitment requires them to adapt to new working environments, new laws and, for some, a new language. Australia has for decades benefited from migrants that have demonstrated resilience, hard work, and who have made substantial contributions to our country.

We all witnessed this first hand during the pandemic. People who held visas stacking shelves, delivering essential care, staffing hospitals, and delivering food.

I believe there is a greater appreciation today in this country for people who hold temporary visas than there has been in the past.

It is unconscionable that some employers target these very workers as cheap and exploitable labour.

It is unacceptable.

So many of these workers contribute to important jobs across the country.

This bill recognises to that when people vulnerable to exploitation are mistreated, we all suffer. It recognises the contribution being made by so many workers and the importance of addressing the corrosive nature of exploitation in workplaces across the country.

Additionally, the bill acknowledges that Australia can't take for granted being a destination of choice for prospective migrants. We are in a global competition for talent.

And it is critically important for the government to demonstrate its strong commitment to addressing worker exploitation, because this is the right thing to do, and because it is squarely in our national interest.

This bill reflects the government's strong principle that approaches to employment and migration will work side by side to address exploitation. The Fair Work Act and the Migration Act will work together to protect workers, regardless of their visa status.

We cannot build our nation on the back of those being exploited.

Strengthening employer compliance with the requirements of the Migration Act.

The bill will do what it says it does.

I commend this bill to the chamber.

Debate adjourned.

See this speech in context