Bruce Baird (Cook, Liberal Party) Share this | Link to this | Hansard source

It is my pleasure to continue speaking on the Migration Amendment (Employer Sanctions) Bill 2006, which the government has brought forward and which I support. The bill introduces new offences for employers, labour suppliers and other persons who engage illegal workers. The bill will make it an offence to allow noncitizens to work or to refer a noncitizen for work in breach of visa conditions.

We have had many situations where illegal workers have been operating in various parts of Australia and they are very difficult to track down. We have had raids with tip-offs resulting in high-profile activities. The streets were closed off in Mossman when a raid was carried out on the Whale Car Wash and the result was that a few people were caught. Many people who were having their car washed were not particularly pleased with the event, and there were some accusations that it was a little bit over the top. But this new legislation turns the responsibility back on the employer. Instead of employers saying: ‘I never knew. It isn’t my problem. I employed them. They said that they were Australian or that they had residency rights,’ this is coming back to them and saying, ‘These are the penalties to the company if you do not check whether the person is here illegally, and the person who is working illegally needs to ensure that they have work rights; otherwise penalties will apply.’

Many small business operators might say, ‘This is a problem, because we made a check and we were told it was all okay and now you are confronting me with this fairly draconian piece of legislation which might result in a couple of years in jail.’ I think there are sufficient outs for those who are doing it without recognising the problems involved.

Under the proposed legislation, employers would only commit an offence if they knowingly or recklessly allowed an illegal worker to perform work. This legislation followed consultation with employer groups which were concerned about the more onerous, strict liability offences and on-the-spot fines recommended by the review of illegal workers in Australia. Those requirements have not been introduced. So it is a pretty fair piece of legislation. The legislation is actually about those employers who deliberately flout the situation, who bring in illegal workers, who bring people out on holiday visas and then exploit the situation. Sometimes it concerns people who have been trafficked for sexual exploitation or people working in restaurants or in meat-cutting businesses or whatever. But the legislation is saying that these people who know what they are doing—and there has been clear evidence that they have brought in people on similar arrangements before; people have been caught working illegally in their establishment—are the ones the legislation is after. They are the ones that are being put on notice: ‘You had better check it out or we will be after you, and you can expect appropriate penalties.’

Of course, there is a worthwhile purpose in this; not only is it to catch out those who are illegally employing those who have no right to be in the country, or certainly not to work, but it is to look after those who are doing the right thing—who have been granted citizenship and who have been granted the right to work—and Australians who are out there looking for jobs. They find they have been undercut by somebody who is doing a deal with an employer who knows that they are doing the wrong thing but decides it would advantage them on an economic basis. This is the type of approach that other countries are taking, particularly the UK, Denmark and Sweden. The UK and Sweden—if we look at some of their approaches to illegal arrivals, and particularly asylum seekers—have fairly generous schemes. So we cannot say that they have draconian measures and that we are copying them. I think this is a sensible approach of encouraging people to do the right thing. They have to get their citizenship in order—their right to work—and then everything will flow from that. Those who want to flout the system will incur the penalties.

The government is not expecting employers to be migration law enforcement authorities and it will not require all employers in Australia to do work rights checking. The employers will only need to carry out a work rights check where there is a substantial risk that the job applicant is an illegal worker. They can do that by various means—on the internet, through the department’s Work Rights Faxback Facility or by sighting a visa label. So it is clear that DIMIA—as it was called; it is now the Department of Immigration and Citizenship—will be looking at this in an appropriate way. The maximum penalties for the offences would be two years imprisonment and/or fines of $13,200 for individuals and $66,000 for companies. This is not for employers who just happen to have an individual working illegally who one day came in and was hired for a job—when everything told them that it seemed that they were telling them the right story; it is for those who deliberately flout the system.

The penalty provisions for an aggravated offence are up to five years imprisonment and fines of $33,000 for individuals and $165,000 for companies. An aggravated offence will involve the employee knowing that, or being reckless as to whether, a worker has been exploited—that is, that the person is in a condition of forced labour, sexual servitude or slavery. As the person who chaired the Parliamentary Joint Committee on the Australian Crime Commission inquiry into sexual servitude, I know that there are estimated to be 1,000 sex workers brought into Australia each year—often without understanding what their employment will be. The inquiry found that sometimes they thought they were going to be bar girls; sometimes they thought they were going to be simply working as hostesses in Thai restaurants—and, of course, that was far from the case. There were some dreadful experiences recounted to the committee. This legislation will also help to deal with that, and the appropriate penalties are in place. It is not intended that first-time offenders would be prosecuted. It is department policy to give employers administrative guidelines.

Currently, it is estimated that over 46,000 people have overstayed their visas to visit Australia. Of that number, 56 per cent or 26,000 people have been in Australia unlawfully for over five years. So it is an issue we need to address, and this is one of the key ways that we can do it. Despite the efforts of the department, this illegal work situation will continue to be a challenge. The bill sets out a scheme of sanctions for employers or any other suppliers of labour who knowingly or recklessly engage illegal workers. In 2000 and 2005 there were reportedly around 18,000 visitors to our country who were located either in breach of their individual visa conditions or unlawfully staying in Australia.

I support this bill. It does go to those who are abusing the system, who are bringing in illegal workers, who are overstaying their visas or who come on holiday visas and work. Often they are being undercut in their salary levels or exploited in various ways. This will certainly put on notice those people who regularly do this and the companies involved. For those employees who do not have work rights and are deliberately trying to flout the system, there are penalties involved. It puts everyone on notice of what is required. It is an attempt to cut down on the extent of illegal work being carried out in this country, with appropriate penalties. I certainly think it is a worthwhile piece of legislation, and it will assist considerably in improving an appropriate migration stream. It includes penalties for those who wish to illegally flout the situation.

John Murphy (Lowe, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition) Share this | Link to this | Hansard source

I rise in support of the Migration Amendment (Employer Sanctions) Bill 2006 and, of course, the amendment. This debate is very timely indeed. The bill’s passage through parliament comes at a time when controversy rages over some employers exploiting migrant workers who are in Australia on temporary visas, at the expense of local workers. The passage of this bill comes at a time when it is estimated that there are over 46,000 overstayers in Australia, of which 26,200 have been here unlawfully for more than five years. Without access to work over a sustained period, these overstayers would find it impossible to support their continued unlawful existence in Australia, so we must assume that many are also illegal workers. These overstayers are potentially taking jobs away from locals and from lawful residents.

The passage of this bill also comes at a time when the Howard government’s solution to Australia’s skills crisis is to import guest workers rather than to train our own. Notwithstanding the policy debacle that is the current skilled migration program, the government seems intent on compounding its policy errors by making operational errors. It has systematically run down compliance monitoring of employers to ensure they are not rorting the system at the expense of local workers. With its attack on Australian workers, through its so-called Work Choices legislation, the Howard government has not left much behind in the workforce that is good for our children, grandchildren, nephews and nieces. That is why this bill is so important—yet its passage is seven years too late.

Mr Deputy Speaker, you know that the bill’s genesis was the Department of Immigration and Multicultural Affairs Review of Illegal Workers in Australia: Improving Immigration Compliance in the Workplace, which was asked to analyse current approaches to combat illegal workers and whether legislative changes should be made. Even though that committee handed down its report in 1999, the government has taken seven years to look seriously at this issue. This has been despite the damning finding that, as at 30 June 1999, 53,000 people had overstayed their visas and 14,500 had been in Australia illegally for more than nine years, with many of them working in order to sustain their illegal existence in Australia. For these very good reasons, the government should have acted immediately to stem the tide of illegal workers in Australia.

However, on this side of the chamber, we have often had to live in the hope that the Howard government would slowly but surely find the will to pursue a just and orderly immigration policy. An orderly approach to immigration policy would have immediately recognised and acted on the fact that illegal workers, particularly those who have overstayed their visas, have taken job opportunities away from Australian citizens and lawful migrants. An orderly approach to immigration policy would have immediately recognised and acted on the fact that Australia is one of the few countries in the industrialised world that do not punish those who employ illegal workers.

Under current laws, there is no obligation on employers to check the work rights of employees, even where there is a substantial risk that those employees are not entitled to work. So it goes without saying that market forces could favour the employment of illegal workers, particularly when they may be paid unconscionably low wages and/or forced to work in substandard conditions. Indeed, in recent weeks we have seen numerous employers exploit the skilled migration visa program, thereby showing their utter contempt for ordinary Australian workers and law-abiding businesses.

Employers who have done the right thing by employing legal workers at fair pay rates and in acceptable conditions have for too long faced a competitive disadvantage within their industries. Members of the Howard government can feign surprise and concern at the damning number of illegal workers in Australia but, given the current state of our migration legislation, they have no right to.

On 29 May 2003, four years after the review’s findings, it was reported in the Herald Sun that the government had:

... no specific time frame on developing legislation to cope with employers who employ illegal workers, but the department said it was a priority for the Immigration Minister ...

It has taken a further three years to deal with legislation that apparently was a priority for the minister. If it has taken seven years to deal with a matter of priority, we can only assume that matters that have not been prioritised will make fascinating reading for those with a penchant for ancient history. Employers, along with ordinary Australians, must be shaking their heads at the ineptitude the government has shown in managing Australia’s immigration program. Had the government shown greater diligence, it could have done more to modify the behaviour of those who have contributed in no small part to the circumstances that led the 1990 review team to suggest that there was:

... sufficient evidence to conclude that the extent of illegal workers in Australia is a significant problem that denies many Australians the opportunity to access a job ...

and that:

Illegal work also places an additional burden on the Australian taxpayer in terms of compliance costs, uncollected taxes and fraudulently claimed social security benefits.

That was in 1999. Given the government’s lethargic response to these issues, things are no better today. Though quick to adopt the softer recommendations in the 1999 review, including the introduction of kits, information pamphlets and warnings for employers, the government failed to deal with the harder issue of implementing a sanctioning regime that could truly change or modify improper behaviour. It got to the point where, in 2004 and 2005, the Department of Immigration and Multicultural Affairs issued 2,280 warning notices to employers and labour suppliers—a point where DIMIA understandably threw its hands up in the air and, in an act of sheer frustration, said, ‘Enough is enough; the time has come for something to be done.’

By throwing in the towel on monitoring and sanctioning unscrupulous employers, the Howard government has given them the green light to continue their assault on Australia’s immigration system. Rather than feigning concern about illegal workers in Australia and then showing indifference, the Howard government ought to have put this bill in place seven years ago. We know that companies that should be brought to task by the employer sanctions under this legislation will not be. We know that that is because this bill, which should have come before this House seven years ago, is still not in place.

Members of the public are entitled to ask: why has it taken seven years to implement these relatively simple and yet important legislative amendments, and why has the Howard government responded disproportionately to different migration issues that, on their face, are equally important? The knee-jerk reaction flowing from the Prime Minister’s office in response to the granting of refugee status to 42 West Papuans saw the government attempt to push draconian legislation through the parliament in a matter of weeks. The government’s reaction to comprehensive evidence that tens of thousands of people work illegally in Australia has taken seven years.

While the government was willing to push through a cynical bill in a policy of appeasement to placate, however temporarily, the Indonesian government, it has taken seven years to assist its own workers. That contrast could not be starker. Did the Prime Minister honestly believe that pushing through legislation as a result of the arrival of 42 refugees would serve the Australian public interest more than pushing through legislation that deals with tens of thousands of illegal workers? What sort of government is this that it will change its laws based on one isolated incident of 42 West Papuans fleeing confirmed persecution while dragging its feet on legislative changes dealing with thousands of people who work here illegally at the expense of Australian workers?

It would appear that this government’s approach to policy development consists of flagrantly and gutlessly selling Australia’s sovereignty in a disgraceful act of appeasing other nations. Certainly, the Howard government’s approach to immigration policy tells us all we need to know about its priorities. Whether it is selling our sovereignty or using the issue of asylum seekers to exploit fears that may be legitimately held by the community, the government, in my view, has its priorities wrong.

Despite all of the attention devoted to the removal of basic rights and justice for asylum seekers in the name of border security, a potentially greater threat to our borders in Australian society comes from the tens of thousands of people who already live here illegally. One way of making Australia less attractive to these overstayers is to turn off the magnet of illegal jobs. Yet the very simple measures employed in this bill to turn off this magnet have languished in the minister’s office for seven years. That is a disgrace and a completely unacceptable response to the protection of our borders and the integrity of our immigration system.

Rather than talking tough and using asylum seekers as a smokescreen to conceal its failure to keep tabs on 46,000 illegal overstayers in our community, the government should start implementing important legislative changes that Australia truly needs. This bill is a belated step in the right direction. It is presently an offence under section 235 of the act for an unlawful noncitizen to work in Australia, for a noncitizen who holds a visa to work in contravention of their visa conditions. While illegal workers may be prosecuted under the current migration legislation, there is no scope whatsoever to prosecute an employer, irrespective of whether they knowingly or recklessly hired an illegal worker.

The Migration Amendment (Employer Sanctions) Bill 2006 contemplates four types of offences against employers: section 245AB, allowing an unlawful noncitizen to work; section 245AC, allowing a noncitizen to work in breach of a visa condition; section 245AD, referring an unlawful noncitizen for work; and section 245AE, referring a noncitizen for work in breach of a visa condition. Each offence may be aggravated, attracting tougher penalties, if the potential worker will be exploited and a person knows or is reckless as to that circumstance.

I note the Australian Chamber of Commerce and Industry’s concern about the alleged uncertainty surrounding the bill’s threshold test of whether a person has knowingly or recklessly committed an offence. I say to this concern that allowing the most reckless employers to get away with hiring illegal workers without punishment is no longer an option. It is not an option to allow employers to show the utmost contempt towards, or pervert our orderly system of, immigration and get away with it.

On this side we have long called for the government to meet the community’s expectation that employers who routinely take advantage of illegal workers will be prosecuted. It makes an abundant amount of sense to target, prosecute and punish those employers who continually breach the system, rather than continually targeting individual noncitizen employees. The collective power to put an effective stop to the rorting of our system lies with the employers, not with each individual noncitizen employee.

It is also worth noting that, while some employers remain concerned about these rules, the rules are not nearly as tough as they could have been under the regime proposed by the 1999 illegal worker task force. Indeed, these rules are not anywhere near as tough as the rules in other nations, where there is no need to show fault or recklessness on the part of the employer as an element in a cause of action.

Many nations have a strict liability regime: do the crime, do the time, irrespective of your state of mind. That is not what is being proposed in this bill. Indeed, employers are being afforded many luxuries within this bill that employees are not getting. The first is that prosecutors will need to show that the employer knew of or was reckless to the illegal status of a worker. It is worth noting that the element of recklessness has a much higher threshold than carelessness. While carelessness imports an objective standard as to what a reasonable person would have done in the circumstances, recklessness imports a subjective standard that focuses on the awareness of the specific employer. This is a threshold that is much higher to climb—some may say prohibitively so—than mere carelessness. It is also worth noting what the explanatory memorandum says with regard to the meaning of ‘recklessness’ in the context of this bill. It says:

… it would be necessary for the prosecution to establish that:

• there was a substantial risk that the worker was an unlawful noncitizen;
• the employer was aware of this substantial risk; and
• having regard to the circumstances known to the employer, it was unjustifiable for the employer to have taken the risk.

In turn, a substantial risk would be present if there were a high proportion of illegal workers in the employer’s industry, if the illegal worker said anything in a job interview from which a court could conclude that the employer was aware of the possibility that the applicant was an illegal worker, or if the employer had previously been given a warning for employing illegal workers. Given the numerous hoops through which the prosecution is forced to jump, many would argue that the government has taken a ‘softly softly’ approach to this serious problem.

The department has done what it can under the present legal regime to reduce the number of illegal workers in Australia. It is clear that voluntary compliance has not worked, given the number of employers who are not interested in cooperating. Given the department’s employment awareness campaign, entitlement verification online facility, faxback facility and illegal workers warning notices, there are no more excuses for employers to knowingly or recklessly employ people who are not entitled to work.

Evidence given to the Senate inquiry into this bill suggests that the department still retains some discretion as to when it should refer the cases to the Director of Public Prosecutions. In this light, the shadow minister for immigration was spot-on when he said he would monitor very closely whether renegade employers were being punished under those changes. Many employers have no reason to fall foul of the laws. The government has taken a merciful path with respect to employer sanctions, despite the recommendations of its task force and the experience of other countries.

In concluding, it is now up to the government to ensure that these new sanctions are administered sensibly, including but not limited to regularly undertaking compliance audits. History is not on the Howard government’s side, and this is why Labor will monitor the situation very closely.

Don Randall (Canning, Liberal Party) Share this | Link to this | Hansard source

I am pleased today to speak on the Migration Amendment (Employer Sanctions) Bill 2006. It is high time that this legislation was instituted. The legislation was introduced into the parliament last year and has been waiting to progress for some time. Why do we need such legislation? This bill provides for a scheme of sanctions on employers, labour suppliers and others who knowingly or recklessly employ illegal workers or refer them for work. This bill addresses a concern in the community about the exploitation of illegal workers. It addresses this problem by creating a series of new offences for employers, labour suppliers and others. The offences are aimed at persons who employ or refer for work anyone who is an unlawful noncitizen or is a noncitizen who has breached the work conditions of their visa. Quite rightly, it has never been more relevant that this country address this situation of illegal workers.

Probably the highest source of illegal workers in this country is people overstaying their visas. Australia is quite proud of its system of migration, which has the utmost integrity. In fact, our migration system, and the fact that we know who comes and goes, is the envy of the world. That is why the government insists on border protection. People who come here illegally and people who come on planes and disappear, for whatever reason, or do not leave when their visas have expired have the potential to fall into this pool of illegal workers.

Because of our very low unemployment levels, there is a huge demand for unskilled workers in a range of industries. I would like a dollar for every time someone in the community has asked me recently whether there is anything I can do to use not just those people who come here on a 457 skill visa but those on semi-skilled visas to address our huge problem. A company in Perth came to me the other day and asked whether there was any way they could bring in workers to drive their large fleet of trucks. They just cannot get anyone in Australia. They waste money on a weekly basis with advertisements in the paper for truck drivers but they just do not get any responses. I directed them to an immigration outreach officer in Perth who is charged with the responsibility of attracting people to areas where there are workforce shortages. There is one immigration outreach officer in the Chamber of Commerce, in Perth, and one with the Department of Minerals and Mining. They are addressing huge workforce shortages in our state, where unemployment levels have reached historic lows of 3.1 per cent.

Mr Deputy Speaker Quick, I imagine that is a figure that Tasmania would envy but, even so, it causes its own problems. As a result, there is an attraction for people to overstay their visas and to work illegally, as Australia is going through a strong economic boom and prices paid to all workers are extremely high. Just to put it into context, at Christmas lunch my nephew, who is working as a TA in Karratha, told me earns something like $1,200 a week. He is only 21. That is the sort of wage that is being paid around Australia at the moment. And they reckon politicians are paid too much! To put it in context, there is a great opportunity for people to be employed in this country but there is also a huge pool of illegal workers, as the previous speaker said.

Illegal workers do cause a lot of problems. Firstly, they take job opportunities away from Australian citizens and lawful migrants. Even with unemployment at 3.1 per cent, there are still people in some areas looking for work and an illegal worker has a potential to take a job that could be theirs. Secondly, the cost of detecting illegal workers is an unwelcome burden on the taxpayer. The compliance measures are very costly, particularly with the numbers we are talking about. Thirdly, in some cases illegal workers are linked to organised crime, particularly in the sex industry. This is obviously a concern, because they work in aggravating conditions, which other speakers have referred to.

The industries that illegal workers are drawn to are quite extensive. They are in areas such as the construction industry, the catering industry and the sex industry. That gives great concern for greater exploitation. Quite rightly, the unions of Australia have made it quite clear that they want to work with the authorities to make sure that illegal workers do not come into industries where the unions are involved and undercut the conditions and work rights of people being lawfully employed.

This is a real concern, particularly in seasonal industries, where there are seasonal workers. You only have to think about the number of people involved in, for example, picking strawberries in some of the areas in my state. If there is some evidence that immigration officials or the police are going to inspect workers on a particular strawberry farm, you can see people diving over fences and hiding under anything they can find so that they will not be detained or interviewed. So there is still a problem. This legislation puts the onus back on the employer to say whether they have done everything possible to make sure that the person they employ has work rights and is a legal worker.

The bill contains a number of fault based criminal offences relating to employers who engage noncitizens for work. I will put these on the record. The offences are: allowing an unlawful noncitizen to work—this offence is considered an aggravated offence if the illegal worker is being exploited; allowing a noncitizen to work in breach of a visa condition—this is considered an aggravated offence if the illegal worker is being exploited; referring an unlawful noncitizen for work—an aggravated offence is committed if the illegal worker being referred will be exploited; and referring a noncitizen for work in breach of a visa condition—an aggravated offence will be committed if the prospective illegal worker will be exploited. There are also a number of penalties which I will refer to shortly.

There is no excuse for people to employ an illegal worker and then claim that they did not know. As others have referred to, the department has put in place the entitlement verification online system, which is basically a faxback facility that allows the employer to check, within 48 hours, the status of the person that they are employing or potentially employing and to check the work entitlements of these noncitizens.

There is an enormous range of people who are endeavouring to get jobs, particularly in areas like the Riverina where there is a huge seasonal work shortage. Until recently, these people were unable to find work mainly because they were only given three-month visas. Their visa conditions have now been varied to the extent where the visas have been rolled over to six months. This allows people greater flexibility in applying for those work rights.

It is said that in the north-west of Australia, Western Australia, Broome and North Queensland the hospitality industry in particular would almost have to close if they did not have the opportunity to employ these people on vocational working visas. Many of us have been to these places where students, backpackers et cetera from a range of countries are working on this visa entitlement. Some do this as part of a year off from their studies or they do it as part of a world trip before they go back to the workforce in their country. Many of them see the attractiveness of Australia, which is great. Quite often, they come back on skilled visas later on—a visa we are very keen to have them on.

There have been attacks—and we have heard some from the other side today—about this being exploited in terms of 457 visas. It is amazing that those opposite criticise the 457 visa system, which allows skilled workers to work in areas of need. These areas of need are published on MODL—which, at the moment, describes basically every skill you can think of. Those opposite say that people are being exploited because they are not employed in the skill area that they received a 457 visa for. It is actually an offence if that happens. If you bring somebody here on a 457 skilled visa and then employ them on terms and conditions that do not meet that visa requirement, you have actually committed an offence and the compliance people will certainly catch up with you when this is reported. The expected growth of the 457 program in this country has not happened, but it is a huge growth area that is being addressed. To cover 100 per cent would just be unrealistic, but that is the aim. As I said, if 457 visas are being exploited by ruthless employers, that will be exposed and penalties will apply.

Having come from a state like Western Australia, it is amazing to see the Labor Party here in Canberra banging on about, ‘Shock, horror, these 457 visas,’ when the greatest users of 457 visas are state Labor governments. In fact, the greatest user of 457 visas is the New South Wales government in the area of health delivery—such as nurses and other medical professionals. I understand even Mr Rudd employs some of his staff on AWAs. Though they are certainly not on 457 visas, it is an example of the hypocrisy you get in this part of the world.

In Western Australia, the Deputy Leader of the Labor Party and Treasurer, Mr Ripper, is reported in the paper as complaining bitterly that the federal government will not relax the terms and conditions of the 457 visas to allow greater flexibility to attract more workers to Western Australia. We heard the other day that BHP is looking for around 200 workers immediately for one of its operations in the north-west. Unless BHP can get those 200 people expeditiously, that project cannot go forward. So, in one part of the country, federal Labor criticises and rails against 457 visas and, in the rest of Australia, state governments sponsor these visas and are asking the federal government to relax the terms and conditions.

The reality in Australia at the moment is that we are seeking more workers, and there have to be ways of providing for semiskilled workers in the workforce—as, for example, Italy has. However, we do not agree with Italy’s program, because we would like to think that if somebody comes to this country they will be entitled to citizenship if they stay here long enough. If you go to Italy as a guest worker, you can never get citizenship. That is, in some respects, a form of exploitation, because you could spend your whole life in Italy, have children there and never become an Italian citizen. In Australia, the level of skills required of guest workers and semiskilled workers is relaxed, particularly in regional areas and in the north of Australia. This needs to be looked at, and there needs to be a bipartisan approach if we really want to see the rest of Australia go ahead. You cannot argue against the fact that we are desperately short of skilled and semiskilled workers, and while this situation exists we need to find ways to help.

The government have addressed this shortage of workers through the harvest trail initiative and by increasing the number of working holiday-maker visas. We are very proud to say that those initiatives are working and it is helping fruit growers and growers of other seasonal crops throughout Australia—probably even in your state, Mr Deputy Speaker Quick. We have increased the annual migration program by expanding the temporary business entry visa program and by allowing extended stays for working holidaymakers who have worked for at least three months in regional Australia. The funny thing about it is that experience shows that some guest workers will not return home when their visas expire but instead find a way to make Australia their home, if they can do it legally. I think that should be encouraged because, as we know, Australia has a problem with negative population replacement.

In terms of penalties, it needs to be recorded that the maximum penalty for offences would be two years imprisonment or $13,200 for individuals and $66,000 for companies. This legislation does create an aggravated offence provision for situations where an employer knowingly exploits a worker in a reckless manner. This particularly applies in cases of sexual servitude, where somebody might think they are going to work in a restaurant, often of ethnic origin, and then find that it is not the type of skilled work that they were not looking for.

This legislation is timely. It addresses the concerns of the workforce and of Australian society in terms of the way we should conduct ourselves, our obligations and the humanitarian rights of people who come from countries where they are desperate to earn money. Somebody was telling me just the other day about the integrity of Australia’s migration system. They had visited Dubai, and the United Arab Emirates is desperately short of workers. We know of the legendary wealth in Dubai, and yet the guest workers live in tents out in the desert and are bussed in daily. They live in rather ordinary conditions in oppressive heat and on a mere pittance. We do not support that way of bringing semiskilled workers into this country. We think there is a far better way. But there has to be scrutiny, there has to be an orderly system, and this is what this legislation does. I commend the bill to the House.

Sharon Bird (Cunningham, Australian Labor Party) Share this | Link to this | Hansard source

Before I come to my contribution on the Migration Amendment (Employer Sanctions) Bill 2006, I would like to take the opportunity to correct a comment made by the member for Canning. He is not alone in this; it is made quite regularly by members on the opposite side in purporting to put the argument that this side of the House opposes 457 visas. That is a complete misrepresentation of the position that Labor have pursued for a long time. What we do oppose is the abuse of the 457 visa system. The government obviously agrees with us, because they have brought this bill before the House.

It is interesting that the member for Canning says that this bill is timely. I would say that it is more than overdue that we had the opportunity to address this bill before the House. I am very happy to contribute to this debate and to support the bill. It has taken a long time to finally come to this debate. My speech has had to have a number of revisions, as this bill has been constantly put off the agenda of the House.

It is, however, important to note for the record that while the Howard government has been willing to introduce legislation in a heartbeat to tackle asylum seekers floating towards us on leaky boats, the government has been very slow, dragging the chain, to impose sanctions on employers, labour suppliers and others who knowingly or recklessly employ illegal workers. The government was quick off the mark in early 2006 to appease the government of Indonesia when it expressed its displeasure at Australian officials following Australian law to grant asylum to 42 Papuans, but it has taken an extraordinary period of years to introduce this bill.

I asked the former Minister for Citizenship and Multicultural Affairs, in a question on notice in August 2005—following an answer he provided to my colleague the member for Reid—why no employers have been prosecuted in relation to, firstly, people detained for working illegally and, secondly, people detained for overstaying. In October 2005, the former minister was kind enough to respond to my question by saying:

... there are no specific offences contained in the Migration Act 1958 under which employers can be prosecuted in relation to people detained for working illegally and people detained for overstaying.

This rather casual attitude was despite a report in 1999, Review of illegal workers in Australia: improving immigration compliance in the workplace, which concluded that there were significant problems associated with the numbers of illegal workers in Australia denying Australians access to jobs. The report found further that there was a significant additional burden placed on taxpayers in terms of cost compliance, tax avoidance and social security fraud. That 1999 report recommended that sanctions should be introduced against employers and labour suppliers who employed illegal workers. Here we are now in 2007—after eight years of inaction—and the government, which campaigned so ruthlessly on border protection, has finally found the time to bring this bill before the parliament.

Illegal work in Australia is no small problem. It is estimated that, as of December 2005, there were 46,000 overstayers in Australia. Of these, 26,200 have been in Australia unlawfully for more than five years. The vast majority of the 46,000 overstayers—or illegals—did not arrive by some leaky boat floating listlessly in the northern or north-west oceans. The vast majority slipped into Australia by getting off a plane. As indicated, 26,200 never bothered to hop back onto a return flight after five years.

This government has talked the talk on tough border protection and national security but it shirks the real, tough action or has had to be dragged reluctantly to act, as in the case of this bill. The number of illegal workers swells when one also accounts for those on visas who are in breach of visa conditions. Visa subclass 456 and subclass 457 are also being misused to get foreign workers into Australia. We heard of some examples only last year. These examples occurred, of course, post the introduction of the bill in 2005. The exploitation goes far beyond individual employers and extends to organised rackets. As the government’s own commissioned report concluded, these abuses have denied jobs to Australians but they have also burdened the taxpayer.

During the October 2004 election Labor proposed a number of initiatives to halt illegal foreign workers. Labor would have issued photo ID cards to nonresidents who had a visa that entitled them to work. Each card would have been linked to the cardholder’s passport, DIMA file and tax file number. The card would have detailed the person’s name, nationality, passport number and visa status and would have expired on the same date as the expiry of the visa. Labor would have required employers to check the card and would have introduced a very similar bill to the one we are debating today. This bill would, however, have been in place two years ago.

Last year, Labor made a series of announcements of measures to ensure that foreign unskilled workers could not be abused or exploited or deny Australians the opportunity of jobs and training. This bill finally proposes new offences that will deter employers and labour suppliers from employing illegal workers or referring them for work. It will also finally oblige employers and labour suppliers to verify the work entitlements of potential workers. The bill proposes new offences carrying criminal penalties of imprisonment for five years for serious offences and two years for other cases.

It is time for all employers and labour suppliers to do their part in complying with Australia’s migration system. It is only sad that we have to go to the point of imposing sanctions to get them to do so. It is long before time that we stand up for the majority of employers in Australia who do the right thing by complying with the law. The previous speaker, the member for Canning, spoke of many of those who legitimately and properly utilise the 457 visas, including state governments. In defence of employers who do the right thing, we should not turn a blind eye to those who are doing the wrong thing.

It is time that we stand up to the organised rackets, in particular, that are set up specifically to abuse and exploit illegal workers. Australia, of course, is not alone in trying to address this problem. Europe also has enormous numbers of illegal workers in the labour force, and for the last 12 months in the US there has been quite a controversial debate about illegal workers and what to do about them. Indeed, the debate in the US has been very interesting. In the US Congress a variety of policy positions have been advanced by both Democrats and Republicans in the House, in the Senate and even by the White House. Those interested in the debate should read an article in the November-December 2006 edition of Foreign Affairs, Immigration Nation: the case for reform.

Recently in following that debate I came across a story published in CQ Weekly on 14 March 2005. That article was titled ‘An uneasy deal with illegal workforce’. Essentially the article made very similar points to the government’s own 1999 report, to which I have already referred. The article quotes a Colorado Republican as saying:

Cheap labour is cheap to the employer, not the taxpayer.

It quotes a study by an investment bank and securities firm, Bear, Stearns and Co., in January 2005 suggesting that:

The US is simply hooked on cheap, illegal workers and deferring the costs of providing public services to these quasi-Americans.

The article goes on to say:

The key to survival for illegal immigrants is remaining anonymous.

They are reluctant to complain about sub-standard housing, or to report stolen property, an assault or an abusive spouse.

There is an example of a Hispanic woman with five children who paid $2,000 a head to a people-smuggler to leave Mexico for life in a trailer park in North Carolina. This woman earned $16,000 a year—about $8 an hour—plucking and cutting up chicken carcasses. According to the article, this woman lost her illegal job and was also diagnosed with kidney disease and a tumour on her liver. Apart from the challenge of recovering from these illnesses, this woman must now purchase a new identity and social security number for $1,500 to find new, low-paid work.

In this place I am sure we can all relate stories of visits to our office by illegal overstayers, who have been found out by the department, in search of assistance and advice on how to remain in this country. Some are happy to reveal that they have a job—or indeed jobs—a tax file number, have purchased a house, a car, perhaps even an investment property. They argue that they have worked hard and paid taxes. Many even suggest, which I find incredible, that they are being discriminated against, treated differently, by the Australian migration system. They have no particular answer when asked the question: ‘Why didn’t you apply like many thousands do each year to come through one of the migration streams?’

Illegal workers are often found in the so-called ‘3-D’ jobs—that is, dirty, dangerous and degrading; if not all three, at least one of those. Many are in precarious and unprotected work. Many people may like to dismiss this by suggesting that these particular illegal immigrants have only themselves to blame. They are here illegally after all. That may be the case for illegal workers who have fairly good jobs, as I described just a moment ago, but I have some sympathy for illegal workers in the 3-D jobs—low-paid, exploited and abused—whose real chance of survival is to remain quietly anonymous.

Not so long ago, in early 2001 at Helensburgh at the northern end of my electorate, eight Indian stonemasons were virtually imprisoned on a building site and were living, as the local paper, the Illawarra Mercury, reported at the time, in Third World conditions. The stonemasons were not illegal workers but were sponsored by the building proponents. They were paid, as a subsequent investigation concluded, $45 a month and a further $100 a week in Indian currency. They were not here for a week, a month or a year; they were here for three years, sponsored by the building proponents. Their existence and plight was only brought to public attention by a tip-off from the community at Helensburgh to the CFMEU and then the media.

As I indicated, these eight stonemasons were not in Australia illegally or working illegally; they were sponsored, and the sponsors exploited and abused them. They imprisoned them on the site, made them live in Third World conditions and paid them in an appalling manner. How many others here illegally are facing the same circumstances?

The International Labour Organisation suggests that between 10 and 15 per cent of migration today involves men and women entering and working in a host country without authorisation. Not all are unskilled. Many are in fact highly skilled and professional. We are concerned in Australia about the effect of the so-called brain drain—that is, skilled and professional Australians leaving to live and work overseas. Developing countries lose, according to the ILO, between 10 and 30 per cent of skilled workers and professionals. I am not suggesting that in these estimates all workers are illegal, but even a small fraction has to be assumed.

I can appreciate why many people from around the world wish to live and work in Australia. Despite our daily debates in this place, in our electorates and in the media, Australia is an excellent country in which to live and work. This is confirmed every year by international surveys by the United Nations and other international organisations.

Addressing the problem of illegal workers is no small task. It is complex and has many related policy links, including ours and other countries’ foreign aid and development assistance policies. It is not just about border protection and national security. It is not just about economics and jobs. It is not just about tax avoidance and social security fraud. It is not just about how illegal workers and those breaching visa conditions undercut Australian wages and conditions. In the final analysis, it is about the exploitation and abuse of women, men and children by organised rackets, particularly from developing countries. It is about sticking these people, although they are illegal entrants, into the dirty, dangerous and degrading jobs and leaving them there. It is about these people being conditioned to exploitation, abuse and low-paying jobs.

Illegal workers should not be here or anywhere else in the world. Some will say I am being idealistic; I think it is practical. While I am critical of the government for introducing this bill after years of neglect, I support it. Some employers and labour suppliers in Australia have escaped their obligation to uphold the law. This bill finally seeks to do something about it.

I notice that the new minister has in recent days been talking about increasing the level of observance of section 457 visa abuses, and I welcome that. It is simply frustrating that so often on this side of the House when we raise issues which we think are serious and which require a legislative response that position is ridiculed. It has happened on many occasions when we have raised concerns about the abuse of the 457 visa program. I am hopeful that through the introduction of this bill and the new minister’s comments in recent days the government will see that this is not about scoring points, saying that those of us on this side of the House oppose 457 visas or trying to pit the state Labor governments against the federal Labor opposition—that is a simplistic and pointless exercise. It is about the abuse of that system and the reality that for many people this form of abuse is not the sort of thing that any of us support—I am quite convinced that those on the other side of House are also committed to this.

We do not support people who are living and working in this country being abused in their workplaces in the ways that we have seen come to light in the media. In particular, we do not support the disgraceful payments that are made to them, the disgraceful conditions that they are made to live under, the false dream that is sold to them by these racketeers and then having our country be the one where they learn that even in the supposed developed world and advanced nations, where we take pride in treating people with respect, their experience can be what it is. Unfortunately, the only way we will really address that is to apply sanctions, and not simply have a review which says that employer can no longer utilise section 457 visas. That has not been sufficient. The evidence shows that. It has sadly taken too long to get here. But it is here and it is time that we took action to ensure that those experiences no longer occur in our community. I commend the bill.

Stuart Henry (Hasluck, Liberal Party) Share this | Link to this | Hansard source

The Migration Amendment (Employer Sanctions) Bill 2006 provides for a scheme of sanctions relating to employers, labour suppliers and others who knowingly or recklessly employ illegal workers or refer them for work. The bill is designed to protect the Australian labour market, prevent illegal workers from being exploited and preserve the integrity of the visa system to which Australia has international legal obligations. The traditional approach to dealing with the problem of illegal workers in Australia continues to be reasonably successful. This approach includes highly effective visa-processing arrangements for overseas visitors, students and other temporary residents. Sound immigration clearance ensures that those who enter have authority to do so, are who they claim to be and are able to provide other information about themselves if required.

However, no matter how good Australia’s visa arrangements are, there will be some people who seek to take advantage of our desire to attract genuine visitors, students and other temporary visitors. During this time of our rapidly expanding economy it is essential that we as a government provide employers and employees alike the opportunity to confidently have the work choices that fulfil each other’s needs. The incidence of illegal work in Australia is a potentially significant problem that not only denies Australians the opportunity to gain employment but could result in the exploitation of noncitizens. The incidence of illegal work and exploitation is a very real concern to the government. It has a close association with the cash economy industries, which are often characterised by abuses of Australia’s tax, employment and welfare laws.

The Australian government has worked assiduously at the protection of the Australian economy from exploitative elements of the so-called ‘cash’ or ‘black’ economy. The tightening of the welfare system, Work for the Dole programs, additional vocational training opportunities—not to mention the GST—have all been developed by the Australian government for the safety and prosperity of the labour market. In doing so, the government has provided sound opportunity for integration to all Australians, including those who are in the process of becoming Australians or those who legally are able to freely work in Australia.

This bill introduces definitions for new offences for employers, labour suppliers and other persons who engage illegal workers or who knowingly allow unlawful noncitizens to work or allow lawful noncitizens to work in breach of their visa conditions. Specifically, the offences apply to businesses that allow illegal work through employment, found in section 245AB and section 245AC, and businesses that refer illegal workers for work with other businesses, found in section 245AD and section 245AE, such as you would find with cross-referencing in HR or labour hire agencies.

The offences will only apply where an employer knows an employee is an illegal worker or is reckless to this fact. The bill provides for higher penalties where an illegal worker is being exploited through forced labour, sexual servitude or slavery, and will increase the mandatory prison sentence from two years to five years or equivalent fines. The Australian government acknowledges that an absence of effective penalties as deterrents for employers of illegal workers could potentially encourage people smuggling and trafficking activities for the purpose of illegal work.

We are only too familiar with other countries, some in our region, which have given rise to the unscrupulous business of illegal people trafficking. Those victims who do slip through the net could become likely candidates for compromising the goodwill of Australian employers and the Australian system. It is the moral duty of Australia, a signatory to the United Nations International Labour Organisation, to make certain it does all it can to curb and penalise the presence of illegal workers and to legislate against schemes which may allow unscrupulous employers to benefit from illegal labour at the expense of the Australian community.

It is important to note that the Australian government is not expecting or intending for Australian employers to be migration law enforcement authorities. Indeed, the legislation is there to ensure that they do not have to bear the responsibility of conducting any form of internal investigations. The law, after all, is the best guarantee for the economy. In Australia, employees are free to negotiate their terms of engagement in the context of workplace and labour agreements to mutual satisfaction, especially in times of labour shortages as the economy continues to boom.

Labour agreements cover both permanent and temporary entry visa subclasses, such as visa subclass 457. These are formal agreements negotiated to meet special circumstances that cannot be covered by standard sponsorship agreements. Labour agreements can be negotiated between government bodies; employers, including industry or employer associations and specific employers; and other interested parties, including unions and professional associations, where all parties agree that the overseas recruitment of a specified number of workers to a defined set of vacancies is warranted. Section 457 visas are a valuable tool for business and for the economy in particular during times of skill shortages and for helping to provide a safeguard against those who would otherwise abuse the privilege, whether they are visitors or employers.

In an article published in the Australian Financial Review last year, Kevin McDonald raised some very pertinent points about the 457 debate. Mr McDonald reminded us that over the past two years the size of the Australian workforce has grown by an incredible 603,000. This equates to the staggering amount of 1,160 new jobs being created every working day for two years. It demonstrates the remarkable strength of the economy, with job creation as its staple. Mr McDonald went on to say that, in spite of this emerging shortage of workers, the federal opposition and the trade unions are trying to create the impression that Australian workers are lying idle in unemployment lines because of the use of 457 visas, particularly with cheap labour supply from developing countries taking away local jobs.

Nothing could be further from the truth. As we know, unemployment is at its lowest level for over 30 years and, in Western Australia, there is considerably less unemployment than we have seen for many years. I also point out that this notion is bordering on racial incitement, as much of it is simply not a statistical fact. With more than 10 million Australians in the workforce, the number of people gaining work through 457s and coming from overseas for employment is less than half of a per cent of the workforce. According to the Australian today:

Latest immigration department figures show demand for temporary foreign workers grew to 39,530 in 2005-06 ...

As I said a moment ago, that is less than 0.5 per cent of the existing workforce. Two and a half times as many English-speaking workers come to Australia as those from non-English-speaking backgrounds, yet the opponents in the debate regarding the 457 visas selectively refer to only these nationals as taking Australian jobs. Instead of focusing on the skills the workers bring, which are carefully matched to Australian industry needs, opponents are focusing on the countries that these people come from. We cannot have this selectivity in this all-important debate, particularly when the Australian government is ensuring the best legislation to help protect employers and employees and to create more opportunities for people to become new Australians.

The education campaigns that the Australian government has developed in managing and safeguarding against possible abuse are working and, more importantly, are providing more flexible work choices. For example, DIAC’s employer awareness campaign allows DIAC to exchange information with employers on a direct basis in order to responsibly manage changes in status that the employer may not yet be aware of. Sometimes the employees themselves accidentally overlook their responsibilities to communicate changes in their visa status. With the department’s new legislative measures, all components of the equation—employer, employee, department and the taxpaying community—are protected. I seek leave to continue my remarks.

Leave granted.