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

I appreciate the House allowing me leave to continue. It is worth noting that among the strategies available to employers through DIAC to assist in the prevention of illegal work are electronic online checking initiatives and the delivery of employer awareness sessions, primarily in workplaces where illegal workers have previously been identified. Industry categories visited and identified as the most likely sectors to hire illegal workers include property and business services, accommodation areas, cafes and restaurants, forestry and fishing, manufacturing and construction, retail trade and personal services, such as the sex industry.

During 2004-05, the department delivered 1,090 employer awareness sessions, compared with 2,391 sessions in the previous year. These sessions were conducted across all industry categories, and mostly in New South Wales, where 993 sessions—92 per cent—were conducted. In 2004-05, the Employer Work Rights Checking Information Line received 3,005 work related calls, down 79 per cent from the 13,968 calls recorded in 2003-04. The number of calls to the Work Rights Faxback Facility decreased in 2004-05 to 27,283, down from 35,773 in 2003-04, a decrease of 24 per cent.

The total number of people confirmed as illegal workers in 2004-05 was 3,870, about 14 per cent more than in 2003-04, when 3,405 people were located and confirmed as working illegally. During 2004-05, the department issued 2,280 warning notices to employers and labour suppliers of illegal workers, an increase of 20 per cent over the previous year, when 1,900 notices were issued. The true number of illegal workers is likely to be much higher when visa overstayers are considered, as not all people located—18,341 unlawful noncitizens in 2004-05—admit to working and it is not always possible to confirm this at the time of their location.

Protection of the Australian workplace from labour opportunists and predators is essential. In a press release, the then Minister for Immigration and Multicultural Affairs said that DIMA:

... has the capacity to conduct unannounced site visits, and does so where necessary ...

The claim by the opposition spokesperson at the time that DIMA will not be guaranteed inspection of company books suggests that he does not understand the penalties—which include suspension of employer 457 sponsorship and a bar from future sponsorship—associated with noncompliance with DIMA investigations.

Last year the Australian government announced a $23.5 million package to be implemented over four years to combat the issues associated with the exploitation of temporary workers who are on 457 visas. This package includes the establishment and training of investigative mobile strike teams whose job it is to ensure that employers of temporary skilled migrants are complying. This measure alone will be worth up to $17.6 million. Secondly, measures to improve training and the negotiation and management of labour agreements for DIAC and DEWR will be implemented. All these measures have been developed by the Australian government over a period of time. Temporary skilled migration, as part of a carefully managed program, has been vital to the economic success of Australia over the past decade. These measures will continue to ensure the successful delivery of that program and the benefit to the Australian economy that 457 visa holders contribute.

It is most unfortunate that recently a number of 457 visa holders were taken advantage of by rogue foreign labour hire agencies which placed a number of workers on an Australian construction site. And it has been previously reported in the Australian Financial Review that as much as $650,000 in wage underpayments was recovered by the Office of Workplace Services in conjunction with DIAC. This is not an insignificant amount of money. The company concerned swiftly repaid the workers and duly penalised the visa employer applicant, Hunan, a Chinese based labour hire agency. This is an indication of DIAC at work. The grass is not growing under their feet. They are paying very serious and diligent attention to the protection of the Australian workplace in this regard.

Several industry organisations, including the Australian Chamber of Commerce and Industry and the National Farmers Federation, one of the nation’s largest employer groups, support the bill, stating that they are confident in the new checks and balances which offer protection to employers and provide secure legal employment options for employees.

I make mention of migration agents and labour hire agents who routinely engage with DIAC and equally need protection to lawfully recruit imported skilled labour according to market and economic drivers. This emerging pattern of labour hire agents recruiting unlawful noncitizens, welfare beneficiaries and people with visas that do not permit work is of serious concern. In some cases these agents may also be involved in facilitating or encouraging illegal entry for other reasons like terrorism or the laundering of crime dollars.

The booming Australian economy has brought about a rapid development of the human resources sector, where often the scope for unbridled opportunity and sheer demand to fill jobs has required greater cooperation between DIAC, employers, hiring agents and employees. It is clear that the Labor state governments have not done enough to curb or regulate this sector in their jurisdictions. And it appears they have conveniently turned a blind eye in many a case to companies exploiting migrant labour during this present period of labour shortage.

In an edition of the Australian last year, and in a subsequent ABC Lateline program which referred to the exploitation of 457 visa holders, it emerged that the measures which the Australian government has been putting in place through its constant and diligent review processes, as revealed in the $23.5 million management package, are working. Australia’s 457 visa scheme for temporary workers is effective in providing sound economic benefit to the Australian economy and to employers and industries that need those skilled people.

DIAC have established effective policing methods and are achieving significant success in arresting rogue labour hire organisations and black-listing them. The 457 visa system allows employers to obtain labour from other countries in a legal and registered fashion, either directly or through experienced and registered migration employment agencies. It stipulates the need for a registered process. It protects the rights of the workers to have their pay negotiated through lawful and binding individual workplace contracts and agreements, the same as they would if they were Australian citizens.

Properly registered migration agents are bound by the Migration Agents Code of Conduct, which requires agents to act in the lawful best interests of their clients and to act professionally. Employers and employees are always able to check which agent is registered properly with the Migration Agents Registration Authority. The department supports the engagement of agents, providing they are properly registered and known entities. The department is continuing its research into this subject aggressively to ensure the integrity of the Australian human resources sector. The law protects the parties from exploiting each other. These amendments and reforms, the recently announced 457 management improvement package that addresses these factors, will continue to anticipate, monitor and arrest the sometimes unfortunate aspect of greed in human nature that would seek to exploit, such as with shonky migration agents who are often not even operating in Australia.

Secure process is very much part of our economic prosperity. Tightening of the registration processes with respect to migration agents at our embassies abroad will go further in securing who comes in to work in Australia, as well as making sure that they leave Australia, at the end of their employment term, a great advertisement for our workplace and our country as a whole.

In conclusion, the Australian government have, rightly, carefully examined and extensively researched the matter within the business community to arrive at this juncture. They have ensured that there is flexibility and integrity within the employer community and that the law is abided by. They have provided a safe and flexible workplace with choices for employers and their employees. This legislation and the sanctions it delivers will serve to be a timely balance in a rapidly expanding economy where work choice is abundant. I support the bill.

Chris Hayes (Werriwa, Australian Labor Party) Share this | Link to this | Hansard source

Today I stand to support the Migration Amendment (Employer Sanctions) Bill 2006 because I support the introduction of a system of penalties that apply to employers who knowingly or recklessly employ illegal workers or refer them for work. The amendments to the Migration Act 1958 contained in this bill create a series of new offences for employers, labour suppliers and others. The bill extends sanctions to anyone who employs or refers for work anyone who is an unlawful noncitizen or a noncitizen who has breached the work conditions of their visa.

The provisions of this bill insert a new subdivision C into part 2 of the Migration Act 1958 which provides the controls for the arrival and presence of noncitizens. There are eight fault based criminal offences that relate to employing or referring noncitizens for work. I will go through those. One offence is allowing an unlawful noncitizen to work. This offence is considered to be an aggravated offence if the illegal worker is being exploited. Another is allowing a noncitizen to work in breach of a visa condition. This is also considered to be an aggravated offence if the illegal worker is being exploited. Another offence is referring an unlawful noncitizen for work. It is again an aggravated offence if the illegal worker being referred is being subject to exploitation. Another offence is referring a noncitizen for work in breach of a visa condition. Again, an aggravated offence will be committed if the prospective illegal worker is exploited. I welcome the inclusion of these aggravated offences.

When it comes to some of the aggravated acts, one aggravated act of exploitation is one too many. The introduction of these offences is very important. The introduction of sanctions aimed at addressing the causes of the problems, not simply their manifestations in the workplace, is indeed important. Stopping rogue employers in their tracks and stopping them from taking advantage of illegal workers or transporting individuals to Australia for the primary purpose of making them act in servitude are all welcome steps forward when it comes to bringing a halt to illegal workers being in Australian workplaces.

While these steps, culminating in the introduction of the amendments contained in the bill before us today, are important, as has been stated in Labor’s second reading amendment the question remains: you have to wonder why it has taken so long for these matters to be addressed. Bear in mind that the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs noted in the second reading speech:

The government has long had concerns about those who seek to work illegally in Australia.

He went on to say:

The government believes that there needs to be provision for imposing sanctions on the small number of employers and labour suppliers who deliberately engage or refer noncitizens without the right to work in Australia.

He also noted:

However, no matter how good Australia’s visa arrangements are, there will still be some people who seek to take advantage of our desire to attract genuine visitors, students and other temporary residents.

I find these statements to be quite contrary to the government’s actions in this case.

The problem of the use of illegal workers by rogue employers is, quite frankly, not a new one. This government has known about the extent of the problem since 1999. As Labor indicated in its second reading amendment, this government now seeks to express deep concern when introducing these new penalties but has failed for the last six years to introduce sanctions on employers who employ illegal workers. I am following the member for Hasluck, and we read the same paper today—perhaps because there is a rather interesting poll in there. As I read on, I saw the headline ‘Changes to protect foreign workers’. This article deals with the employers who seek to exploit foreigners working on temporary work visas in Australia. I note the comments of the new immigration minister, Mr Andrews. He said:

There are some cowboys out there and their behaviour is not acceptable and I intend to crack down on them.

I applaud his comments, but this has been known about by this government for six years. It is very good to start referring to these employers as cowboys and to say that you are going to crack down on them, but what should have been cracked down on is the government being so lax in taking the time that it has to bring this matter forward.

In 1999, the government commissioned an inquiry into the problems associated with illegal workers in Australia. The results were clear. The report, entitled Review of illegal workers in Australia: improving immigration compliance in the workplace, found that there were significant problems associated with the number of illegal workers in Australia denying opportunities for Australians to access work. The inquiry also found that the compliance regime imposed additional burdens on Australian taxpayers. That is interesting, considering that the report about these changes in the Australian today written by Cath Hart concludes:

The changes follow moves by former immigration minister Amanda Vanstone to bolster policing of the scheme after it was revealed that compliance audits had dropped as the scheme grew.

It is once again a matter of playing catch-up—this time in relation to compliance. The report recommended—and rightly so, I might add—that a system of sanctions be introduced in relation to employers and labour suppliers and that there should be a range of offences and penalties that reflected the serious nature of the offences. The situation we have at the moment is much removed from that, and it will probably take a lot of people by surprise. At the moment, if someone who does not have permission to work is found to be working as an employee, that employee will be subject to penalties, not the employer. At worst, the employer can be barred from accessing people on 457 visas. But the penalty imposed is imposed on the employee.

That is quite clearly a substandard outcome in anyone’s book. If anything, it could be argued that it entrenches the likelihood of exploitation of these workers. It also creates no deterrent for unscrupulous employers who simply seek to attract illegal labour to this country for the purpose of cheap labour outcomes. For workers who are illegally engaged or who face sanctions for working illegally, the implications are quite clear. These people are going to be less likely to speak out in relation to their circumstances. After all, they are the people who would be fined or penalised under the current system, if that were to stand. It also means, I believe, that they would be more than likely to be subject to exploitation. If, under the current regime, it is an employee who faces the penalty for work, it is hardly likely that that employee is going to—as one might put it—squeal on the circumstances and identify themselves as working illegally.

Employers move on without any sanctions being imposed presently. They can go about their business and seek to engage other people to come in, under the same set of circumstances, to simply replace the person who has had to leave because of being regarded as an illegal. There is something fundamentally wrong with that approach. It has been known for a long while now. This is something that has been identified for over six years, and we are only now in the position of simply moving these employer sanctions to redress that situation.

I do not say that people who are caught working illegally should not be punished, but the punishment must be meted out to those who employ illegal workers as well as to those who work illegally. I do not think you would find anyone in the community who would consider that to be an unreasonable proposition. The provisions of the bill before us today allow penalties to be applied to employers who, quite frankly, overstep the mark in this regard. Inasmuch as this improves a position which was rather half-hearted when it was introduced in 2002, I have to say that this must occur, and it is only right that we actually do this now.

To take you back, Mr Deputy Speaker: in 2002, in trying to address the issues that were raised by the report in 1999, a system of warnings was introduced by the then Minister for Immigration and Multicultural and Indigenous Affairs. That never really worked. If anyone seriously thought that an employer who was willing to employ illegal workers was going to take much notice of a sternly worded warning from the federal government, they were much mistaken. If the people who drafted that position in 2002 thought that employers who were prepared to engage workers illegally—and take the risk of bringing in further illegal workers—were simply going to be chastened by a sternly worded warning from the government, they must have been dreaming.

It would be easy to stand here today and call for a strict liability regime in dealing with these issues, but a strict regime would be as inappropriate, I would submit, as having the existing ‘no fault on employers’ regime. Accordingly, Labor is not seeking to introduce such a regime. However, we are critical of the fact that the test of recklessness as applied through these amendments appears, in our opinion, to be too low. The test of an employer’s culpability is set by using these words:

... the person knows that, or is reckless as to whether, the worker is an unlawful noncitizen.

This, as Labor’s second reading amendment notes, is far too reserved, and I am doubtful as to its ability to effectively impose sanctions on an employer. The proposed system is an improvement on the old one—there is absolutely no doubt about that—but I wonder whether simply taking a further incremental step in this general direction is an adequate response to something which has been identified as a significant and serious issue.

As I commented earlier, there is no doubt that the provisions contained in this bill which seek to change the focus of the sanctions regime from penalties for employees alone to include penalties for employers are welcome. That change in approach means that the penalisation of rogue employers who have seen fit to employ unlawful noncitizens or to employ noncitizens contrary to the conditions of their visas stands in stark contrast to this government’s extreme industrial relations laws, which have given legal sanction to the actions of rogue employers.

This government has actively sought to create a climate of fear for working Australians, in which they face the very real prospect of being squeezed through the downward wage pressure applied both as a result of Work Choices and as a result of the improper use of 457 visas. Many working Australians whom I speak to possess that fear. They believe that too many opportunities for employment are already leaving Australian shores and that too many of the opportunities that are left are now being filled by workers from overseas. I hear of many cases where employers provided with this option have abused the 457 visa system and employed cheaper labour by accessing it from overseas—and they take advantage of that.

I would submit that, as legislators, we have a responsibility to make sure that the regime accommodates the employment of overseas workers and that that system works well. We need to know that the proper deterrents are there and that employers think twice before breaching the intent of that system that people be engaged lawfully. We also need to make sure that loopholes—like those created through the flimsy tests contained in the 457 visa regime—are not so easy to get through that they provide a backdoor means to achieve the same thing as employing illegal workers.

We have certainly seen many cases where the media has gone out of its way to identify people working in these scenarios. Of all of those, I have to say that you would have to be quite sure that workers who are working illegally at the behest of an employer would be subject to some form of exploitation. We can be quite sure that these people are going to be the least likely to complain about their circumstances out of fear of the implications for them. We do not need another aspect of employment law that drives down the wages and conditions of Australians who are working in the same or similar occupations simply because of the contest of gaining cheap overseas employed people.

Given the time that it has taken for the government to introduce this change—in excess of six years since the completion of the report that they themselves commissioned—I cannot help but think that only the interaction of the industrial relations regime and the temporary work visa system has brought about this legislation. The article today in the Australian concluded that the reason this scheme is being enacted presently is the drop in the compliance audits administered by the Commonwealth as the 457 regime extended. The government have tended, quite frankly, to give the green light to rogue employers, employers acting unscrupulously in that regard, but even they realise that the interaction of their industrial relations regime and the temporary work visa scheme has gone too far.

In an electorate in the outer western suburbs of Sydney, I see how people have suffered from various aspects of the use of 457 visas. I hear from employers who complain about other employers who are suspected of using illegal labour. But, to date, in all those cases, if they are proved to be correct in their assertions that labour has been engaged illegally, the fault aspect has been directed only to the employee and not to the employer. As a consequence, we have developed a system which protects the so-called cowboys that the minister is now seeking to address. (Time expired)

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

I certainly support the legislation before the House, although, unlike the honourable member for Werriwa, I cannot get too worked up about the subject matter. Quite often employers in this country are unable to obtain employees, and, while I certainly do not in any way approve of any breaching of the laws of this country, one has to feel a certain sympathy for those employers who are simply unable to find workers. I do not see this legislation as being the very high priority that the member for Werriwa does. I do not believe that the government ought to be criticised for the fact that it has taken some time to introduce the Migration Amendment (Employer Sanctions) Bill 2006. It is not the most important piece of legislation that has been before the government over the last six years. It is probably timely that it be introduced at this stage, but any criticism directed towards the government because of a tardy approach, in my view, is a criticism which is quite misplaced.

With Australia’s wonderful lifestyle, our solid economy, our relative safety and our world-leading welfare system, it is little wonder that right around the world people seek to enter Australia and become part of our Australian family. In fact, a former Labor immigration minister told me that every year more than a million people knock on the door of Australia, seeking to gain access to our country. I suppose this fact is a wonderful testament to the great nation that we have built, but it also brings with it some problems and challenges.

A specific class of problem is addressed in the bill being discussed here today, the Migration Amendment (Employer Sanctions) Bill 2006, which aims to help resolve the problem of overseas visitors illegally taking up paid employment while here. I know that there is evidence to indicate that in doing so these illegal workers take away jobs from people who are legal residents in Australia and who are legally entitled to work here to earn wages. Many of those illegal workers are probably doing jobs for which there are not people in Australia to perform the roles. However, not to have this legislation would be tantamount to supporting some misuse, abuse or breaking of the immigration and visa laws. It is really important that Australia does have a system of migration with integrity, and that is why this particular legislation needed to be introduced to the House.

People who are overstayers and illegal workers may feel that they are not hurting Australia. The fact that there are allegedly some 46,000 people in this category does mean that the government has a problem which has to be resolved by legislation. People who do not have the right to work in Australia must work to survive. Understandably, many of them work to fund their existence—they have food, clothing and rent costs—but the fact is that they are working in breach of the law of Australia. There is a view that, if they earn money, it is money that has been denied a legal resident. I do not entirely accept that reasoning, because often there is no legal resident available to carry out a particular role. However, that does not condone, or it ought not to be viewed as condoning, any breach of the laws of Australia.

I was very interested—and I might even go so far as to say astounded—to learn the costs of identifying and processing people who are in Australia illegally. It costs $3,712 for the location and deportation of a non-lawful citizen who is found to be working illegally. That amount increases to an average of $13,644 for each illegal worker who is found to have breached work conditions and who is detained and deported. These costs must be paid by the taxpayers of Australia. During the location and identification program throughout 2004 and 2005, some 18,000 illegal workers were identified in Australia. Illegal workers have been an issue in the construction industry; in the service industry, such as cleaning and maintenance; and particularly—and I find this to be a major concern—in the sex industry. This has been a considerable problem and is certainly one area where you would not want people working illegally in Australia. By working outside our legitimate systems, these workers also circumvent the protections afforded to workers by our laws more generally.

The opposition tends to talk about our industrial relations changes as being draconian. I do not see them as being draconian at all. I see them as being moderate and reasonable—in fact, they could have gone further. However, the government took an on-balance approach, and the legislation which we have introduced will be to the long-term benefit of Australia, despite the carping and facile criticisms extended in our direction by members of the Australian Labor Party. In our system, we have laws—and laws, of course, are designed to protect employers and employees—but we need a system with integrity. On occasions, we find that unscrupulous employers have been eager to exploit those who are here illegally and who are unlikely to complain about poor work conditions or wages that do not conform to the minimum standards. While I think the extent of the damage that these people do to the Australian economy is arguable, it would be inappropriate for people to be exploited in any reasonable system.

I think it is sad that people who are so desperate to come to Australia will resort to illegal and occasionally immoral means to get here and stay here; but, as I mentioned earlier, the lure of a nation as great as ours is simply too much to resist for many of those who are not enjoying their lives in their own countries. In one sense, the presence of illegal workers places a burden on our economy, so it is very important to make sure that our system has integrity and that our country and our own people are not disadvantaged.

There is the situation where illegal workers who are employed in jobs that could have been filled by legal residents might force some legitimate workers onto welfare. There is also a view—and I think one that has some credence and validity—that people who are illegally working in Australia operate in the cash economy and, thereby, do not pay their share of income towards tax that Australians or those legally working here would normally do. The employment of illegal workers has further ripple effects through the community. Businesses that operate within the law and offer award wages may not be able to compete on price with rival businesses that operate with reduced overheads by employing illegal workers.

This bill, which addresses the overall problem by affording changes to the Migration Act 1958, will introduce new offences for those employers and business owners who knowingly give a job to an illegal worker. The second reading amendment moved by the shadow minister, who led the opposition debate on this matter, criticises the government for this legislation not going far enough. While offences exist—including the cancellation of visas—for those who come here to illegally participate in work, the act to date has been somewhat inefficient in dealing with people—the employers—whose actions make these illegal acts possible. That has been rectified in this legislation. The opposition claims that, while the bill improves the situation, it simply does not go far enough. I do not agree with the opposition in this matter, and I can confidently predict that the second reading amendment will simply not be carried by the House—but, of course, time will tell in relation to that.

The provisions in the bill will help to deter employers from employing illegal workers and overstayers and will encourage employers to check the details of any prospective employees to ensure that they are allowed to work in Australia. Hopefully, the changes foreshadowed by the bill will make a significant impact by reducing this problem in the future. The bill will also introduce safeguards for those employers who are genuinely unaware that an employee is an illegal overstayer or otherwise not entitled to work. It is important that the government does the best that it can to make sure that the laws of Australia are appropriately observed and that there are necessary sanctions to almost guarantee the observance of Australia’s laws.

The Migration Amendment (Employer Sanctions) Bill 2006, while not the most important bill to be introduced into the parliament by the government, is nonetheless a bill that ought to be passed, and I am very happy to be able to commend it to the House.

Brendan O'Connor (Gorton, Australian Labor Party, Shadow Parliamentary Secretary for Industrial Relations) Share this | Link to this | Hansard source

I rise to support the Migration Amendment (Employer Sanctions) Bill 2006 and the amendment moved by the shadow minister. I cannot agree with the member for Fisher, who said that this bill is not the most important bill and therefore it does not matter that it is delayed. It was ridiculous to say that because the matter was not the most important matter we could delay a bill such as this for up to seven or eight years. In 1999 there was a report entitled Review of the illegal workers in Australia: improving immigration compliance in the workplace. The then minister was aware of that review, and nothing eventuated as a result of it. That was in 1999, in the government’s second term, and we have had to wait seven or more years for the government to choose to respond.

One would have to ask the question: why has it taken the government so long to respond? The government and indeed the Prime Minister have taken so long to acknowledge climate change, which they did in question time today. This legislation goes to the way we regulate workers—whether those workers are legal or illegal—in this country. Until this week, the government had failed to respond properly to ensure that there were not people working illegally in this nation. That was a dereliction of the government’s duty. It is an example yet again of a government that is out of puff and is no longer focusing on those matters that concern ordinary Australians.

It may well be that this matter has taken so long because it was about imposing sanctions on employers. However, I would remind the government that by failing to address rogue employers who are willing to exploit workers they are also hurting the majority of employers who do the right thing and employ people with a legal entitlement to work. Those employers who comply with the law are at risk because they are up against rogue employers who are willing to exploit vulnerable people. Those people, because they are working illegally, may not be able to raise concerns about things such as employment conditions.

It is fair to say—and the member for Fisher touched on this—that there is a demand for workers. That demand is sometimes filled by workers who are not legally able to work. Again that points to the failure of the government, which has not focused on developing the requisite skills that workplaces in this country need. I will not lay the blame on the government alone, as it is a role of employers to forecast their needs as well as of others in society to request that these issues be looked at. But, in the end, the government has a great responsibility to ensure that there are sufficient skills in this nation to fulfil the work requirements. If people who are not legally able to fill jobs are filling them because they have the requisite skills, maybe those people should be given full status of citizenship. It is not for us to turn a blind eye, to pretend they do not exist and to allow them to work under the cover of darkness.

This bill has been delayed for too long, and I concur with the shadow minister’s concerns about the deficiencies in the bill. The amendment acknowledges the delay in placing sanctions on employers but it also indicates some other concerns with the bill. Firstly, the bill fails to address the need for higher penalties for employers who are repeat offenders. Secondly, the legislation’s bar on employer culpability may be too low. That is:

... the reference to ‘the person knows that, or is reckless as to whether, the worker is an unlawful noncitizen’ is sufficiently [qualified or] reserved that it may prove difficult to successfully bring sanctions against an employer.

In other words, it will be hard to prove that there was an intent of a particular employer, given the phrases that have been used in the bill. Hence it is rather a low onus and it will be difficult for prosecutors to ensure that employers who do the wrong thing are sufficiently punished.

These deficiencies could be fixed immediately if the government accepted the amendments moved by the shadow minister. They are sensible amendments. We agree with the substantive provisions of the bill. We are critical of the delay—the lethargy that this government exhibits time and time again when it comes to regulating matters that are of importance to this country—but the bill is heading in the right direction, although some work is needed.

There is an opportunity for the government to rectify that deficiency. The minister should come into this place and accept that there are ways to improve the bill, and I would invite him to do so during the course of this debate. It is important to note that the former Department of Immigration and Multicultural Affairs conducted a government commissioned inquiry into illegal immigration. Its report recommended that, amongst other measures, a system of sanctions be introduced and applied to employers and labour suppliers. The report also found that the use of illegal workers in Australia results in exploitation of very vulnerable people, who in turn deny Australians the opportunity to access jobs. There is a burden on the Australian taxpayer where there are not taxes properly paid and, therefore, when the tax laws are not complied with.

Again, if people are knowingly working illegally and employers are deliberately having them work illegally, the employees themselves are hardly going to ring up the Australian Taxation Office and say, ‘I think I owe some money; you might want to take some money off me because I want to pay my fair share.’ Even if they were in their heart of hearts an honest person, I think it would probably be foolhardy of them to seek to ring a Commonwealth department knowing that they should not be working in this country.

The review made those conclusions, and it therefore seemed sensible that the government respond. The minister for immigration at that time, instead of listening to his department, introduced a system of warnings to employers—like wagging a finger at the employers and saying, ‘You should not do this because it is not the right thing to do.’ We know that sort of approach in matters such as these is not the way to ensure that rogue employers resist trying to exploit situations for their own personal gain—exploiting not only vulnerable workers but also other employers who are doing the right thing.

In 2004-05 the Department of Immigration and Multicultural Affairs issued 2,280 warning notices to employers and labour suppliers, which was an increase of 20 per cent from the previous financial year. So, despite evidence that the soft measures of the minister at the time were not going far enough, this government failed to take the necessary action. So it would not be fair to say that there were no warning signs. The review came out and made it very clear what the problems were and the minister, rather than embracing the recommendations made by the department, decided to put in place a self-regulatory approach to this matter. That in itself was not sufficient because there was evidence to show that, subsequent to the decision by the minister to have this self-regulation, there was a further increase in breaches. I think that again shows the government not wanting to do the right thing in this regard.

Under the Migration Act as it currently stands, penalties are imposed only on the illegal workers, not the employer or labour hirer who hires them. That seems to me to be inherently unfair. I think the member for Fisher said that this is a country that would attract many people. If we were to look at the relative living standards of this nation when compared with most nations, we would see that we are indeed very fortunate. So it is, of course, not surprising that people would love to be able to reside in this country, to live a decent life and to be a part of this civic society. I think most people would understand that. The current law is unfair because it is entirely directed towards the illegal worker and not the person encouraging them or seeking to gain from their employment. While an ancillary power exists under the Commonwealth Criminal Code to prosecute those who aid and abet, it is reportedly very rare to be prosecuted under this law due to the amount of evidence required. This is certainly an unsatisfactory state of affairs.

For a crackdown on illegal workers to be truly effective, you need to provide a strong disincentive to employers to deter them from hiring illegal workers. Currently, the only measures aimed at employers are information campaigns, a work rights checking facility and the issuing of illegal worker warning notices. I say as a member of the House of Representatives Standing Committee on Employment, Workplace Relations and Workforce Participation that we have been provided evidence that it is very rare indeed for a department to check whether visa applicants or others are properly monitored to see whether they have a legal right to work in this country. There is very little enforceability and very little scrutiny. The government is failing to enforce whatever existing laws there are now. So there is a further deficiency in the government’s conduct in relation to this matter.

The bill will impose criminal sanctions on business owners, employers and labour suppliers who recruit illegal workers, where the employer knows or is reckless as to whether the worker is an illegal worker. The bill also consciously extends to bailees of chattels and to people who lease premises—for example, to cover brothel owners who claim to be renting rooms to their sex workers instead of providing employment. The penalty for each offence is two years imprisonment and if the offence is aggravated it is five years imprisonment. Aggravated circumstances are where exploitation occurs. The bill also provides that, where appropriate, a court may impose a fine rather than order a prison sentence. Those fines range from $13,200 to $165,000.

After eight years since the review was undertaken, this bill will incorporate some of the recommendations that were then made by the department. The bill underlines the failure of the government to take heed of what the department’s own review expressed in 1999 and underlines the great delay of the government in bringing this matter before the parliament to properly regulate matters. They are things that need to be put on the record, but I think the bill underlines more than that. I support the amendment moved by the shadow minister, but I think there is more to be said about this matter.

This government has been asleep at the wheel when it comes to focusing on the skills required in workplaces. That is one of the reasons that employers seek to employ workers who may not have a legal right to work here. There is no doubt in my mind that that is one of the reasons. There is also no doubt in my mind—indeed there is evidence of this—that some employers have chosen to exploit the vulnerable position in which people have found themselves. These vulnerable people, who wish to stay in this country, have been offered employment by Australian employers who seek an advantage due to their position. These employers quite often pay these workers below the legal rate of pay and have them on inferior conditions. This is unfair not only to those workers but also to the majority of employers who comply with the industrial relations laws and the immigration laws of this country and choose not to aid or abet someone to break the law in order to gain financial advantage.

I hope this bill goes some way to improving the regulatory system for people working in this country so that we have a fair and decent regulatory system. I hope this bill significantly reduces the abuse and exploitation of vulnerable workers by employers. I also hope that, when enacted, this bill provides a system that is less subject to exploitation and less open to abuse. I only wish that the government had responded at the time the department made its recommendations, which was in 1999—almost eight years ago.

John Forrest (Mallee, National Party) Share this | Link to this | Hansard source

It is fascinating to be part of the discussions that occur in this chamber. I have a different point of view from that of the member for Gorton. I presume that he is speaking of industries other than the one which I am most concerned about, and that is horticulture. I am not the least bit fazed by the fact that the government has hastened steadily with the introduction of the Migration Amendment (Employer Sanctions) Bill 2006.

The pre-preparation and discussion of this bill has caused me enormous angst, over the five or six years during which it has been considered, on behalf of my employer growers in horticulture. The bill has been the subject of formal discussions and consultation over that period, since the review of illegal workers was conducted in 1999. This was a study to assess the problems associated with illegal workers in Australia, and its purpose was to investigate ways to curb the abuse of Australia’s visa system by not-work-entitled visitors.

A report was prepared by a committee which was chaired by the former member for Riverina, Mr Noel Hicks. I expressed a little disappointment at the time, because one of the recommendations was to introduce a system of sanctions against employers to act as a disincentive. My horticulturalists were horrified. It was hard enough for them to attract and find the labour they needed to extract their precious crops, and it was a nightmare for them to try to establish who was lawfully entitled to work and who was not. It was beyond them. I was one of many members who were urging the then minister, now the Attorney-General, to hasten steadily with the introduction of a bill which would include significant sanctions against those employers who were not able to work their way through establishing who was legal and who was not. The prospect of finding that they might face penalties and sanctions for mistakenly employing an illegal worker did not appeal to them at all.

I opposed the introduction of this bill for many years. I felt that much more needed to be done to assist employers with the task of confidently identifying who was entitled to work before this very significant step was taken. After all, at that time, unlawful noncitizens who worked in Australia did commit an offence under section 235 of the Migration Act. Although it was difficult, it was possible to prosecute employers using ancillary provisions of the legislation. So I argued that we needed to proceed with caution and not undo some of the valuable work that was being done to break through the problems that horticulture, in particular, has in identifying illegal workers.

I also felt that there needed to be a greater emphasis on education of employers, and I am grateful that this has been done. In fact, a great deal has been done. So whilst I have been very reluctant to support the need for this bill, and I have actually resisted it through the course of two former ministers—one I have already mentioned and latterly the former Minister for Immigration and Multicultural Affairs, Senator Vanstone—and now a new minister, I am grateful that they did listen. They consulted widely and have produced a bill which seems to meet the expectations of a broad section of the Australian community.

In November 2000, the then Minister for Immigration and Multicultural Affairs introduced initiatives to stop illegal workers. These included a new work rights telephone information line with a faxback facility which provides advice on whether an individual is eligible to work. My growers inform me that this is an excellent service and it gives them a great deal of comfort. There is also an employer awareness program including information kits for employers. These are the sorts of things that I said needed to be done before the introduction of a tough bill like this one.

There was an announcement foreshadowed in 2001 that a graded system of sanctions would be introduced, and this has driven the discussion and process ever since. My growers and their farming associations have taken a keen interest in it. As the member for Gorton mentioned, the Department of Immigration and Multicultural Affairs have been issuing warning notices. It is sad that over the years, particularly last year, a number of these notices came to growers in my constituency. Over the same period, DIMA have also been conducting an intensified and systematic program of raids on properties suspected of employing illegal workers. This has created an acute awareness of the issue in my electorate along the Murray Valley.

Over the years I have expressed considerable anxiety over the method of these raids and the systematic arrogance which has been very much a characteristic of DIMA in the past. In fact, at one stage, I publicly lamented that DIMA was a department that was completely out of control. Most departmental people listening to my contribution here will be aware of my past views. Things have changed for the better of late, but I still believe that this comment was justified then, given the subsequent findings of the Palmer report on the behaviour of DIMA. Thankfully, many of Palmer’s recommendations have now been put in place and this level of arrogance has abated.

I mention this because it has been a very significant factor in my reluctance to agree to legislation like that which we are discussing today. I simply did not have the faith that DIMA would use such a powerful tool sensitively when it came to dealing with my horticultural growers. I realise, and so do they, that the use of non-legal labour is as much an issue in other industries and that it is not just contained in horticulture. I suspect the member for Gorton was referring to other sectors. I realise it is very much an issue in tourism, in the restaurant trade and in other industries that I do not care to mention. But my interests have always been with my horticulturalists, the ones who charge me to represent their interests in this place—the vegetable growers and the grape, citrus and stone fruit industries that contribute so much to the economy and to the region I represent.

For years it has been a desperate struggle for them to attract the labour they need to harvest, pack, prune and irrigate their crops. Let us face it: come harvest time when they have a whole year’s income of sensitive product hanging on a vine or a tree, it is arms and legs they need to get their crop off to market as quickly and as expeditiously as possible. The lack of labour and impending bad weather can often cause them to take enormous risks. With few measures to help them to accurately identify legal workers, the risk is high—or was high—and they could inadvertently have made mistakes. A too-early introduction of this legislation would have seen them disadvantaged substantially. In the early days of discussion of this bill, there did not seem to be a great deal of sympathy for this fact. I am pleased to recognise that some of this has changed, and a great number of programs have been introduced to assist horticulture to meet the demands for labour, particularly during the harvest season. Much has been done on the harvest supply issue. The coordination of a national harvest labour trail, funded substantially by this government, the increased source of approved backpacker visas and a greater sensitivity to the needs of growers all cause me to now be more relaxed about the introduction of this bill. I say to my growers that we have had ample time to educate ourselves and we have had ample time to have our input, but it is now time to have certainty put in place so that we can ensure that all the valuable work that has been done will continue.

It is still very much an issue, of course, in my electorate and very much one of the influencing factors as to why I have taken a different position from others on immigration matters. The ready labour market available in the Murray Valley means that we are a natural magnet, attracting people of the nature we are discussing today. That is evident simply by walking down the main streets of some of my communities of Robinvale, Mildura or Swan Hill and observing the multicultural nature of the people who are assisting with our crops. Whilst there was no way that I would have supported the bill in its original form—and I did say so—I was not trying to be deliberately difficult. I had genuine problems with it, but I am comfortable enough to say that I support it.

I would like to commend the former Minister for Immigration and Multicultural Affairs minister, Senator Vanstone, who has been very responsible and consulted widely, particularly with the National Farmers Federation and its Victorian subsidiary, the Victorian Farmers Federation, as well as government members who represent these industries in this place. I commend her willingness to do this consultation and I recommend to the new minister that he continue that trend. I am now satisfied that there are enough safeguards in the bill to prevent growers being charged or unintentionally using illegal workers in the harvest season. It is beholden on the government to continue to do more, though. The demand continues, because there is just so much development occurring in the Murray Valley that demand continues to grow and grow. It is measured in the thousands, particularly around Sunraysia, Robinvale and Swan Hill.

To be quite frank, this issue has caused me to be a great supporter of the introduction of a form of identitification facility. It would overcome a lot of the challenges. Many of our competitor countries have a formal identity process in place. In fact, towards the end of last year on a visit to Malaysia, I was briefed on the health smartcard and identity card utilised in that country. I just do not understand the resistance of Australians to the introduction of such a facility. However, that is a debate for another occasion, and I hope that one day soon it will be an issue that we might have the courage to discuss in this place. It would certainly make life a lot easier for my growers. ‘No ID, no work’ would make their decision simple.

There is also a very significant change that has occurred with regard to the supply of labour in horticulture which now reinforces the need for this legislation. Many growers have become tired of the anxiety of determining who is eligible to work—as well as all the other associated challenges to do with finding labour—and they have resorted to the use of contractors to supply their labour. They need make only one phone call to a contractor to engage, say, 50 or 100 workers, be they pickers or pruners, which saves them the worry of determining eligibility on an individual basis. At the completion of the work, the contractor is paid by the grower and it is the contractor’s responsibility for payment of individuals. The contractor also has all the other responsibilities associated with compliance, superannuation and the like. It could be that these are the style of people the member for Gorton was referring to. This has become an ever-increasing trend and provides my horticultural growers with a great deal of peace of mind. Sadly, however, I hear many reports that some of these contractors do not do the right thing by the individuals they have engaged with regard to payment of their proper wages and meeting some of their other responsibilities. It is a very sad reflection on them. I urge the department to pay particular attention to this, because I most vigorously and vociferously refute the allegations that this reflects on my growers. They grow stone fruit, grapes and vegetables. That is their speciality, and they produce excellent crops. To suggest that all they are after is cheap labour is completely unfair and I refute it intensely. They just want labour and they are prepared to pay the correct rates—in fact, even more—for it. In order to keep them, some growers go further in the payment of their rates when they see good people.

I think this is a message that DIMA has finally understood, as it has been a lot less judgemental of my growers latterly. So I am asking the department to be mindful of this when it gets to the stage of implementing the provisions this bill offers, and to keep its eye on the activities of contracted labour suppliers. Also, those contractors need to get the message loud and clear. After all, these sanctions are significant—and I fail to understand the nature of the amendment moved by the opposition alleging that they are not. They are substantial: up to five years imprisonment and the right to impose both financial and imprisonment terms. These are substantial fines, and my growers find this appalling. The message to those contractors is: be warned. To the department, I continue to say: be mindful of the needs of growers and continue to do more to assist those who do not use labour contractors to identify legal workers. Be aware that I will continue to take a dim view if any of the habits of the past are revisited in my electorate.

There has been a huge amount of discussion on this bill. As a result, I believe we have incorporated enough balance to ensure inadvertent mistakes are not cause for penalties to apply. In fact, I note there have been some suggestions that the bill has been so watered down as to be of little use—that I refute. I think it will be useful. To this I simply say: let us get it in place and see how it operates. If in the future it can be demonstrated that stronger measures are still needed then let us consider them then. In the meantime, I congratulate the former ministers on their willingness to consult and their recognition of the need for balance and of the needs of my horticultural growers. I also congratulate them for their willingness to listen to the growers and to the members in this place who represent them. I believe that balance has been achieved, and I commend the bill to the House.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Kay Hull (Riverina, National Party) Share this | Link to this | Hansard source

This has been a long time in the process; the Migration Amendment (Employer Sanctions) Bill 2006 has been listed for a significant period of time. Coming from the Riverina area, the electorate that I represent, I have a significant population of constituents who are reliant on visa workers to get their crops off to a market in order to earn a dollar. I recall when the review of illegal workers was taking place. I was very new in the House. The review of illegal workers was in fact presented by former member for Riverina Noel Hicks. That was presented in November 1999. I must say that I was extraordinarily concerned for the wellbeing and welfare of the growers that I represented.

As the new member for Riverina, in 1998-99 I went to the hearings and expressed my major concerns with the way the committee was heading in trying to provide a platform of blame and penalties for the growers in my region who were simply doing no more than trusting the evidence and information that they were given and trying to get a product to market. They were going to bear the brunt of this entire report. So I am very happy to see that there have been some very common-sense movements with respect to employers. I really have to thank the former minister for immigration, the Hon. Amanda Vanstone, for her absolutely common-sense appraisal, approach and attitude towards this whole issue.

Under the proposed scheme that we have before us now, through the Migration Amendment (Employer Sanctions) Bill 2006 employers would only commit an offence if they knowingly or recklessly allowed an illegal worker to perform work. The recommendations regarding the more onerous strict liability offences and on-the-spot fines in the Review of illegal workers in Australia will not be introduced. That is of grave importance to me and to the growers that I represent in the Riverina and it is a huge amount of relief.

This bill will not require all employers in Australia to do work rights checking. Employers will only need to consider doing a work rights check where there is a substantial risk that the job applicant is an illegal worker. The MIA is a melting pot of multiculturalism, a melting pot of different nationalities. I cannot imagine—and I questioned this with the committee when it was doing the report—where a potential employer would legally stand if somebody who might not appear to be a resident of Australia presented to them and the employer had to continually enforce some type of test upon them to prove that they were Australian. The majority of my electorate are of multicultural descent but were born in Australia. Many of them do not speak clearly when framing the English language. It could very well be construed that each and every one of those people presenting for work might be an illegal immigrant or somebody who does not have a work right. It puts an employer in an enormously difficult situation—that is, how to prove that someone who comes to their workplace is an Australian, was born here and has lived here all their life. I was always concerned about the potential for discrimination on the basis of colour or speech. An employer might not ask a Caucasian who comes through the door, who obviously speaks very strong ocker, Aussie English, to prove that they are an Australian citizen with work rights, that they were born in Australia or that they have a right to work. I could not see how this was going to work in my electorate, and it was of grave concern.

At that time, the particular issue of unskilled labourers in my electorate of Riverina was of increasing concern, and it still is. It will go on being an increasing concern. One such thing that I will try to resolve—and, I suspect, if I am fortunate enough to be elected in the next parliament, I will still be trying to resolve—is how I can get unskilled workers to do the work that is required from my growers. When I raise this issue publicly in my electorate I get attacked from every union known to man, on the basis that (1) I am trying to take away Australian jobs, (2) I am trying to force people into low-paid wages or force draconian conditions on them and (3) I am responsible for the demise of jobs for people without higher education. I object to that. I can tell you that no matter what we pay and what we do Australians on the whole are not willing to do this work. Many times it is people who have come from other countries who have done similar work and who are well equipped to work who are very comfortable in that working environment, very comfortable with the award wages that are offered. In fact, the accusation has been put to me that my growers underpay these people and that they do not get their rights. They get their superannuation payments, they get award payments. My growers themselves do not have superannuation. My growers are sometimes living day to day, week to week. They try to get off-farm work to subsidise the family farm.

So there is a need to understand the whole dynamic of what is required. We have a recognised shortage of electricians, doctors, dentists, nurses and workers in pathology and in a whole host of other areas. But there is not just a shortage of skilled workers; there is an unskilled labour shortage. That shortage affects the economy in the Riverina enormously. As is my right, I will always advocate for, encourage and enable visitors to undertake this work without harassment from those who say that I am trying to advocate against Australians getting these jobs. I repeat: Australians are not willing to come in and do these jobs. This has been proven by the crops that remain on the trees and in the ground simply because we cannot get anyone to pick them.

My electorate relies on transient tourists and visa labour to meet its market requirements. Primary producers in Griffith are reliant on our backpacker market, and we have had some fabulous working holiday visas implemented by the minister in order to meet some of the requirements. The problem that I have is that it is not a reliable source of employees for my growers. There is limited access to the Riverina through public transport. There is no bus that goes from Sydney to Griffith. There is some rail, but the cost is quite high. Most of our backpackers and those on working holiday visas would rather go to the coastal areas and do light duties—picking strawberries, tomatoes and mangoes and other tropical fruits. They have beaches to swim off and warm weather. We attract some through the MIA in the Riverina, because it is the most glorious place to go. If they really knew what we had to offer then I am sure that we would attract more. But we have not got the infrastructure and the facilities—such as backpacker accommodation that is affordable and available—to encourage these working holiday visa holders to come into the Riverina. It is very difficult to attract them to my electorate from off that path of sunshine and sand. That leaves my growers at a substantial disadvantage when they are looking at how they are going to access workers to get their crops picked.

We also have crops that backpackers and those on working holiday visas are not adequately physically equipped to deal with. It is extremely hard work. To harvest citrus and vegetable crops can be backbreaking work, so to speak. One needs to be accustomed to that. There has been some comment, and I have indicated this also, that it is unskilled workers who come in to bring in the citrus harvest. But in fact the workers are quite skilled. They are very skilled, because there are very few people who can stand up to the rigours of citrus picking and vegetable picking. It takes a certain type of skill and a certain type of person. You need to have an inordinate understanding of the harvest and the citrus-harvesting process. It is all manual. It is not done by machines. It is a very manual job that is carried out there. It is the same for vegetable produce. Those people need to have integrity and a strength of character so that they are able to endure the very harsh conditions that exist at times out in the field. They are very willing to do this work if they can get a reliable visa. My growers are very willing to pay for that work to be done.

There will be good and bad growers—I am not saying that every grower operates perfectly. There is good and bad in absolutely everybody and everything. Yes, you may get a grower here or there who may not do the right thing. Twelve months ago, a contract labourer took money off the producers to pay to a labour contract hire group and he took off with that money. But that was not the producer; the producer paid the money out to the labour contractor. The labour contractor did not pay it to the people who did the work. That was a very sad thing. But it was not the employer—my producers—who did the wrong thing there.

If we had appropriate and sufficient harvest labour from people with work rights then you would certainly see the use of illegal workers extraordinarily minimised. As I said, my growers go through every avenue that they can to determine whether or not a worker is a legal worker. But, as I said, how do you confront people and embarrassingly ask them if they have the right to work in Australia when they may very well be Australian born citizens? We have many hurdles to overcome in the area of labour shortages. I am fully supportive of any legal initiative that can be put in place to assist them to remain viable and productive producers. The introduction of this amending legislation will assist my producers greatly in this effort. They certainly need our help and protection in a number of areas, and this legislation will protect their rights in a scheme that was designed to help them cope with the skilled labour requirements of the harvest.

I commend this amendment bill. To frame the offences in this way ensures that the focus is on employers and labour suppliers of concern to the government without imposing any undue and additional burden on business generally. An employer will only be reckless if there is a substantial risk that the employee is an illegal worker. Recklessness may be proved in prosecution if a number of basic conditions are satisfied. I am quite happy with this. One of the elements that might go to proving recklessness is where the employer in question has previously been warned about employing illegal workers and has been given guidance on how to check work rights and then continually offends in this area. I do not have any problem with that. I am not here to support any employer abusing any person providing labour on their properties—that is certainly not what I am about. But I am here to establish that employers, in the main, do the right thing and are generally caught out unbeknownst to them.

Also, the concept of allowing an illegal worker to work is defined broadly to capture work related relationships that are commonly used in industries where illegal workers are found. There are 46,000 visa overstayers in Australia, and it is believed that a substantial proportion are working illegally to support their stay here. I must say that we do have a highly effective processing arrangement, but we also have a highly effective immigration department. They are continually on surveillance in my electorate, and I encourage that to happen because I think that we need to recognise the difficulty that illegal people have in staying in Australia. It is not fair on them that they should be continually running from the law, so to speak. Sometimes it is in their very best interest to be caught, to be accountable and to go through the process in the legal channels rather than to be continually at risk of abuse. I think it is very unfair.

I have seen my fair share of people who are continually on the run, moving from one place to another for years. I have had people come to my office who have been running from the process for 20 years. Inevitably I say, ‘You really have to just give yourself up to the process, because this is no life.’ Many of them have had children whilst they have been in Australia, and of course they are submitted to this continual moving and a lifestyle of hide-and-seek, which is very unfair on the children as well.

My farmers are desperate to employ. When I was going through many of the submissions to the review of illegal workers, I was sad to look at the submissions that came in from Griffith City Council, the development corporation, Pickers Plus and the area consultative committee and to see what issues and concerns they outlined—why we were so reliant on backpackers and people who were transient to meet labour demands. This put my growers at some substantial disadvantage or at risk of inadvertently employing illegal workers. It is real desperation. I was sad that in 1999 there was a regional labour shortfall of approximately 500 people required for harvest, and I suspect that it is still very similar to that.

I have a trail of correspondence to the former minister to try and resolve this in a number of ways. We have a policy—and I fully support the policy—of a non-discriminatory, open immigration process that does not allow me to target a particular sort of aid program or support program in the Solomon Islands or other areas that I know would be able to fulfil this role for the producers and in turn give great benefits to the islanders. Fortunately—and unfortunately, at times—we do have a non-discriminatory policy. You just cannot allow one country to come in and provide this sort of work. But there has been a trail of correspondence since my election, and I suspect it will continue, because I will not stop looking for an answer to how my growers can sustainably survive and get reliable seasonal workers. That really is not seasonal work now; it is really 12 months of the year. But I commend this amendment bill to the House. I am very pleased. (Time expired)

Sharon Grierson (Newcastle, Australian Labor 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 employment. The introduction of these new sanctions against those who do deliberately engage in that behaviour will replace the current system of voluntary compliance, a system which has manifestly failed to protect vulnerable workers, whether they be legal or illegal, from dodgy employers and labour hire companies who seek to profit from human exploitation. This bill, then, goes some way to redressing a gross imbalance in our current immigration laws, an imbalance that this government acknowledged back in 1999 but has until now failed to act upon, an imbalance that has magnified every year as new ways of exploiting legal and illegal workers in Australia keep coming to light.

Currently it is an offence under section 235 of the Migration Act for unlawful noncitizens to work in Australia. Likewise, there are existing penalties for noncitizens who work in breach of their visa conditions. That is fair enough. But the full weight of those migration laws currently rests squarely on the shoulders of the illegal worker. Unscrupulous and exploitative employers have, to date, escaped any form of sanctions. There have been no primary offences that apply to employers or others who allow or perhaps induce or even force noncitizens to work illegally. Although some commentators have argued that it is possible to prosecute such employers using existing ancillary offences, the fact that only one employer has ever been prosecuted under these provisions adds increased weight and credibility to the calls for these new employer sanctions. The one employer who was prosecuted, interestingly, was convicted on two counts of being knowingly concerned in visitors working without permission and two counts of misleading department of immigration officers. This was back in 1993, 13 years ago, and that guilty employer was placed on a $1,000 bond to be of good behaviour for two years. A slap on the wrist is hardly an effective deterrent for those unscrupulous employers who stand to profit handsomely from human misery and misfortune, and unfortunately there have been many.

Maintaining the status quo is not acceptable, and Labor have long argued the need for sanctions. We went to the last election with a policy to combat the use of illegal workers in Australia and have long called for the introduction of a foreign worker ID card, demonstrating a real entitlement to work. This card would, of course, work in a similar fashion to the American green card, which has been in place for more than 60 years. Labor remains committed to the imposition of penalties and sanctions on exploitative employers, so we are supporting this bill. But it is by no means perfect. It does not go as far as we would like in some areas, whilst other areas remain completely untouched.

Why has it taken so long for the government to bring this bill before the parliament to debate? Its origins date back to at least 1999, when the then minister for immigration, Philip Ruddock, commissioned a study to gauge the problems associated with illegal workers in Australia. This government has been very good on commissioning reports. The study resulted in the report Review of illegal workers in Australia: improving immigration compliance in the workplace, which was released with much fanfare by the minister in December 1999 but conveniently buried soon thereafter.

One of the report’s recommendations was that a system of sanctions, just like the ones we have tonight, be introduced in relation to employers and labour suppliers and that there be a range of offences and penalties reflecting the seriousness of the offences committed. It also recommended infringement notices for lesser offences. It has been seven long years since those recommendations came down. The Australian people were assured then that appropriate measures to deal with employers who breached immigration law would be put in place.

What a lazy government! Only now, on the first day of parliamentary sittings for 2007, has the government bothered to deal with the serious issue of employer sanctions. Thousands of illegal workers have been seized in the interim years, but not a single exploitative employer has been held to account, since 1999. Despite the tough talk of successive ministers, Australians know that addressing inequity between workers and employers has never been a high priority of the Howard government.

As the 1999 report made clear, illegal work causes a number of problems for the Australian community as well. It denies Australians opportunities to work, it burdens the Australian taxpayer and it results in the exploitation of vulnerable people. Illegal work is almost invariably bad for the person working, but it is also bad for the decent business men and women that have to compete with such unscrupulous employers—no level playing ground there. It is also bad for Australian workers who have been denied that opportunity to work or who now have to compete with those lower rates of pay—not a chance. The only people to benefit from this illegal activity are the dodgy employers, who have so far got off scot-free.

According to the government’s own estimates, there are around 46,000 people who have overstayed their visas and are now living in Australia. Of these, some 26,200 people have been in Australia unlawfully for more than five years. There is little doubt that a substantial proportion of just those people are working illegally to support their stay here. I do not think they come with bags of money.

In 2004-05 the department of immigration located 18,341 persons who had either overstayed their visa or were in breach of their visa conditions. Many of the people located by the department worked illegally in Australia but, as the minister for immigration admitted in response to a question on notice, DIMA does not have definitive statistics on those working illegally. In 2004-05, the total number of people confirmed by DIMA as illegal workers was just 3,870, or 21 per cent of the total number of unlawful noncitizens and people found breaching their visa conditions. These figures do not reflect the true extent of illegal work in Australia.

In the same 12-month period, DIMA issued 2,280 illegal worker warning notices to employers. This was an increase of 20 per cent over the previous financial year, when 1,900 notices were issued. To date, these warnings have been the only deterrents available. It seems a lot of work for very little outcome. Most warning notices, 34 per cent, were issued to the hospitality sector. Twenty-three per cent were issued to manufacturing; 18 per cent to agriculture, forestry and fishing; 15 per cent to personal and other services, including the sex industry; and 10 per cent to construction. Illegal worker warning notices carry no sanctions. So employers are issued with warnings knowing full well that if they are caught doing it again they will simply be warned yet again.

It is no surprise, then, to find that a total of 90 employers received more than one warning notice in the 2004-05 period—lots of serial offenders and lots of work for people to issue the notices, but, again, little outcome. The effectiveness of this strategy is at best questionable. But a system of warnings which is not backed up by a system of sanctions has absolutely no teeth and, as such, is pointless.

The bill before the House today goes some way to redressing this inadequacy and sets out eight fault based criminal offences relating to employing and referring noncitizens for work. These proposed new offences carry criminal penalties of imprisonment for five years for an aggravated offence and imprisonment for two years in any other case. The higher penalties for offences where aggravating circumstances are present are for incidents where the illegal worker is in a condition of sexual servitude, forced labour or slavery. This penalty is very welcome, although it is worth noting here that there are other examples of exploitation, like the deliberate undermining of minimum salary rates in this country, which are not covered by this legislation.

These new offences will only apply where the employer or labour supplier knew the person was an illegal worker or was reckless to the fact. Like my Labor colleagues, I am concerned that the definition of ‘reckless’ in this bill may deliberately—or unwittingly; who knows?—allow some employers to escape liability even though they have employed illegal workers. The impact of the term ‘reckless’ as it is defined in this legislation should and will be closely monitored by us to ensure that it does not allow continuing exploitative employers to get off the hook. Likewise, the comment in the bill’s explanatory memorandum that it is expected that first-time offenders would be given a written warning—here we go again!—rather than being prosecuted deserves ongoing attention to ensure its effectiveness. There are no such second chances, of course, for illegal workers. Curiously, the government’s zero tolerance for illegal workers apparently does not extend to guilty employers or to labour suppliers.

There are an estimated 1,500 illegal workers based in the Newcastle and Hunter region at any one time, so the issue of illegal work has particular resonance for Novocastrians. With Newcastle and many other parts of the Hunter undergoing a building boom in recent years, the problem of illegal workers in the construction industry has been especially acute. In January 2006, DIMA confirmed that they had picked up another seven illegal workers at a building site at Nelson Bay, in my neighbouring electorate of Paterson. Six of these workers were detained at Villawood detention centre before being sent back to China. Just two months later, another four illegal workers were located on a building site at Soldiers Point, also in the electorate of Paterson. The following day, another illegal worker, a Korean man, was discovered in an operation near The Entrance, on the Central Coast.

More recently, union and industry representatives have expressed concerns about the probable exploitation of Chinese workers by a subcontractor on a building site in Newcastle West. Whilst these workers have been employed in areas of alleged skill shortages, both union and industry representatives insist that they could fill these positions immediately with local employees. I understand that the Chinese employees have been working seven days a week, including after hours and night work, and that they worked throughout the Christmas break, without proper supervision, while all the other workers were away on holidays. These Chinese workers are in a very vulnerable situation. Having been told that they will be sent home if they talk to the union, they have been left with no voice or advocate to ensure fairness and equity. Their occupational health and safety certainly appears to be at risk.

The construction industry is by no means alone in its propensity to employ or to exploit illegal workers. A popular local restaurant chain, with restaurants in both Beaumont and Darby streets in my electorate, is well known to DIMA’s compliance section. Both restaurants have been the site of numerous DIMA raids, which have resulted in illegal workers being found and taken to the Villawood detention centre. Last month, a constituent contacted my office to raise serious concerns about the way in which these workers were treated during a DIMA raid on their residences. I made representations to the then Minister for Immigration and Multicultural Affairs, seeking her assurance that proper procedures were in fact followed, but I have not received a response yet. My constituent was most upset. He was not associated with the place of employment. As a customer, he had become friendly with the workers and was very concerned about their not being given proper interpreter services, that they were taken without proper support or information and that they were confused and frightened.

This case clearly demonstrates the gross imbalance that currently exists in immigration law. Here we have a restaurant chain that is well known to DIMA officers as a repeat offender when it comes to the employment of illegal workers, yet it is the worker who alone faces the full brunt of our immigration laws. It is the worker, not the employer, who is deemed guilty and punished, and the employer is seemingly free to reoffend without the threat of sanctions. This is the imbalance that we hope this legislation will redress.

Notwithstanding the extreme difficulties that unions now face in getting access to workplaces, unions remain a major source of tip-offs about the location of illegal workers and offending employers and companies. I would like to acknowledge the positive contribution of the local Construction, Forestry, Mining and Energy Union and the Newcastle Trades Hall Council in uncovering unscrupulous employers in our region. The union will always stand up for the rights and dignity of all workers, no matter where they come from.

But far from recognising the valuable role that unions play in exposing exploitative employers, the Howard government, with the introduction of its extreme IR laws, remains determined to restrict union entry to workplaces and, thus, to silence those who have a genuine interest in the health and wellbeing of all workers. At a time when record numbers of temporary business visas, including the infamous 457 visa, are being issued, the capacity of DIAC to properly monitor them and ensure that these jobs cannot be filled locally is in serious doubt.

The parliamentary secretary, in his speech on this bill, referred to clause 245AC in the legislation and asserted that it would address concerns where an employer has improperly employed a person under a 457 visa. It is true that in a situation where a worker comes to Australia because of a particular set of skills but ends up being in breach of their visa conditions by working in a different skill set or a lower skilled area, this legislation provides for an extra penalty on the employer. But there are other abuses of the 457 visa system—abuses that are no less exploitative and that remain untouched by this legislation.

Of particular note is the situation where the minimum rate under a 457 visa, while being technically complied with, has been effectively undermined because the worker in question has had to spend thousands of dollars to purchase their job. Cases where people have paid $20,000 or more for a job that pays $42,000 per annum have been well documented in both the media and this parliament. The recent announcement by the Office of Workplace Services that 38 temporary workers in NSW were underpaid $650,000 is further proof that exploitation of overseas workers is rife under the government’s 457 visa program. The day before, the very same Office of Workplace Services announced that it had found that a Melbourne printing firm had underpaid four overseas workers $93,000 over the past 12 months.

At Senate estimate hearings last October, the Department of Immigration and Multicultural Affairs revealed that 190 companies are now being investigated for possible breaches of the 457 visa program. Regrettably, DIMA’s 2005-06 annual report shows that compliance checks on 457 visa sponsors have plummeted by more than one-third in the past three years—even though we have this supposed skills shortage and employment boom—as the number of employer sponsors grew by 20 per cent to nearly 10,000. These examples show just how big the problem of exploitation of overseas workers is and just how little the Howard government has been doing about it.

Unfortunately, when this bill becomes law, we will be in no better position to sanction employers who deliberately undermine minimum salaries. By any measure, this practice is wrong, but this bill will not make it illegal. Nor will this bill help to stamp out the practice of underpaying overseas workers. Such practices are clearly exploitative and should attract serious penalties, but they will not under this legislation. Notwithstanding the government’s frustration with Labor’s ongoing calls for reform of the 457 visa program, the need for such reform is based on the very same logic that underpins this legislation—namely, that exploitation and abuse in the workplace is unacceptable. All workers in Australia have a right to expect that their workplace will be free of exploitation—the ‘fair go’ that seems to have been missing from the psyche of this government for a long time.

People with no rights to work in Australia are, of course, especially vulnerable. Sadly, it is precisely their vulnerability which makes them the least likely to report abuse in the workplace. Similarly, people on a temporary work visa are unlikely to report for fear of losing their job and being deported. This bill does, however, put an end to the grossest forms of exploitation in the workplace. It deals specifically with people in some of the worst situations of exploitation, such as those in sexual servitude, forced labour or slavery and, in that way, these provisions are welcome. It is outrageous to think that until now, under the Migration Act, it has been the victim who has been seen as committing an offence, not those who enable such gross violation of human rights.

I am pleased that, once this bill has passed, the persons who are responsible for placing overseas workers in such appalling situations will also be guilty of an offence under the Migration Act. This is a much needed improvement in the act and has Labor’s complete support. The real test, however, will be the number of successful prosecutions, which of course should be closely monitored. Ultimately, Labor wants to see an end to all forms of exploitation in the workplace. When there is a genuine shortage of skills that cannot be filled locally, we want the best people available from around the world to fill those gaps. But we do not want to see the 457 visa program being used in ways that amount to exploitation by any definition and certainly not by the limited definition of this bill.

While this bill is a step in the right direction, I urge the House to accept Labor’s second reading amendment. The amendment highlights that the government has failed for more than six years to introduce sanctions for employers who employ unlawful noncitizens and individuals with work restrictions despite the 1999 report that I mentioned. The bill also fails to address the need for higher penalties for employers who are repeat offenders. A toothless warning system has to be avoided. Finally, the legislation’s bar on employer culpability may be too low. The reference to the employer knowingly or recklessly employing illegal workers may be used as wriggle room by unscrupulous employers to escape sanctions.

I urge the House to support this legislation with Labor’s amendment. Maintaining the status quo is not an option. The Australian people have the right to demand and expect fairness and equity in the workplace—a point that this government would do well to remember and, unfortunately, one that Australian people now doubt will ever return under the coalition’s governance.

Laurie Ferguson (Reid, Australian Labor Party, Shadow Minister for Multicultural Affairs, Urban Development and Consumer Affairs) Share this | Link to this | Hansard source

I rise to speak on the Migration Amendment (Employer Sanctions) Bill 2006. I initially indicate endorsement of the opposition amendment, which goes to the issues of the protracted time that it has taken for this legislation to arrive, the use of the ‘reckless’ requirement to minimise the possibility of convictions and the issue of higher penalties for those employers who are repeat offenders. Many opposition speakers have made mention of the protracted history of the road to this legislation. Having listened to a number of the government’s speakers, I really have some feeling for the ministers involved—it is quite clear from the contributions of the members for Mallee, Riverina and Fisher that there is no great enthusiasm for this legislation on the government benches.

The member for Riverina spoke of a grower here or there possibly being a problem. She seemed to be preoccupied with possible embarrassment to employers in asking people whether they were ‘illegals’. She actually referred to the reality, in her mind, that you would be categorising certain nationalities. Just for her advice, perhaps the issue is a bit more complex because, from recollection, the main overstayers are from the United States, the United Kingdom, New Zealand and China. The member for Mallee spoke in a similar vein.

The member for Fisher, in his characteristic idiosyncratic way, went a bit further. He spoke of a ‘carping opposition’ on these matters. He said: ‘It is not an important piece of legislation. It is very timely that it has arrived now after seven or eight years,’ and he thought that criticisms of tardiness were misplaced. Whilst on the surface one might think that there has been a lack of action by ministers involved, I perhaps feel that they have had a really hard row to hoe in bringing this legislation here, given a significant number of government members are preoccupied with the interests of particular industries. They have no interest whatsoever in the situation of Australian workers who are being undermined by this dereliction and whose conditions—their livelihoods and their families’ livelihoods—are being destroyed every day. These government members obviously have very little interest in the predicament of those people working illegally in often tenuous legal circumstances.

We have had some history of these matters. On 9 February 2004, Amanda Vanstone, the minister for immigration at the time, sent a letter to the national secretary of the construction, forestry and mining union. This week, as a matter of fact, she spoke of considerable work being done to make it easier for employers to check the work rights of visa holders. She said:

In addition to the work that has been done developing this legislation, my department has continued to conduct educative programs et cetera.

But, most particularly, she spoke those three long years ago of the proposed employer sanctions legislation which was ‘on the government’s legislative agenda’. She said:

My department is currently exploring options to ensure this proposal is an effective means of sanctioning employers who continue to employ illegal workers.

Three years ago we had assurances that legislation was just around the corner—that the department was working strenuously on the matter to try and get there. That was a whole three years ago but it was only a minor point along the road.

There was also the 1999 inquiry. Once again the member for Riverina seemed to be critical of the inquiry, but it certainly determined that there was an area of exploitation and a need for action. We can also talk about the ANAO audit of 2004-05. The member for Riverina assured us about DIMIA’s activities in following up people in her area but that ANAO report was not too fulsome in its praise of the department’s performance in this field. It said:

Although DIMIA publishes its estimate of overstayers, it is unable to provide an estimate of the number of noncitizens who are likely to be in breach of their visa conditions, for example, by working illegally.

That was in the report of 2004-05. That report further noted:

The ANAO suggests that DIMIA could assist users in interpreting the overstayer estimate and enhance the transparency and clarity in its external reporting by monitoring report of the error rate.

It also spoke of a number of criticisms of the department’s performance in this area. Previous ANAO performance audits into DIMIA’s onshore compliance function found that the development of data transfer arranged with other agencies at the state, federal and local authority levels had been slow. It noted the importance of effective coordination. It also spoke of failures in the development of IMTel. No evidence was found of any of the above quality assurance processes being in place or being considered for development. It further noted the need for more consistent integration of compliance target group profiling with DIMIA’s intelligence gathering and analysis capability et cetera.

So in this field we have had a significant number of assurances over the years from Ministers Vanstone and Ruddock and the CFMEU, which has been the most active union in this area, that the government was going to legislate. But it is seven years since the report and we have seen very little until this point. And, as the opposition’s amendment makes clear, we still have an unsatisfactory piece of legislation.

Bodies such as ACCI want to describe any criticism in this field as xenophobia. Quite frankly, I think the reality is that this government, which won an election in this country by indicating falsehoods about refugee claimants and their arrival in this country, has had a parallel policy of indicating to the Australian electorate a degree of toughness with regard to asylum seekers and a degree of toughness towards people who should be held in detention centres but, at the same time, has had a policy of ensuring that conditions in this country are minimised by opening the doors in relation to work visas and through a lack of action to protect conditions in this country in the immigration field.

I want to give a bit of credit to the former minister for immigration, Minister Vanstone. One thing about this politician is that she is very honest and very direct about what she says. She is the only person in this government to confess publicly that behind the liberalisation in relation to visas was a policy to repress wages. She actually went on the record in the last month to indicate that that was part of the situation. So whilst others have been less fulsome, she clearly belled the cat in that area.

At last report there were 46,000 illegals, and a significant number of them were people who were working illegally. According to the department’s records, as at June 2006 there were 630,000 people on temporary entry visas—an increase of 8½ per cent over the previous year—and 155,000 of those people had been here for over a year. Given the ANAO’s research and their indictment of the department and a situation which has not improved markedly over time, I cannot have the confidence of the member for Riverina that, with these huge numbers, there is the interest of the government or the department to make sure that conditions are protected.

We have had indications from government members that there is not really a problem and that perhaps legislation is unwarranted or a bit over the top, but I have a contrasting story about what is happening in this country. I could refer to five young Cook Islanders who came to Australia on individual contracts with a promise of a better life. One of the five, Sam Kautai, came here at 17 years of age, signing a contract to work 60 to 70 hours a week and receiving only $50 a month in payment. He was vigorously assaulted by his employer—his jaw being broken—when he questioned the practices of Freliesma Guttering Pty Ltd in February 2006. The contractor actually set conditions with regard to his private life and what he was allowed to do. As I say, that is typical of the other side of this agenda, where contracts are being utilised in this field to seriously undermine conditions.

I could refer to workers who have died on the job. I could refer to the infamous Lake Cargelligo circumstance, where a South African worker, Mr Malothane, was treated so badly as to entertain the interests of the South African government. He was then put on a plane and whisked out of the country. It took CFMEU activity inside South Africa to try to take up his case. Work safety on that site put people in severe danger, and the situation was such that this South African worker was rushed out of the country when injured. He is quoted as saying that he was never paid any money whatsoever. Mr Malothane spoke no English. He could only converse in Afrikaans and Tswana. I congratulate the Australian on following up that story.

So we have a more complex picture than desperate Riverina farmers who cannot get any Australians to work for them and who, out of kindness, are looking to pay people award rates. The situation is far more complex. In Sydney we now see the industry largely being at the behest of tourists. Illegals are becoming a very common phenomena on building sites—sometimes with their spouses accompanying them, working into the late hours of the evening. That is one picture behind this legislation. There is a need for this legislation. It is long overdue. There has been a lot of media focus.

We also had the death of Mr Kow Chey, an illegal worker who died on a Strathfield building site, on the verge of my electorate. His employer would not even contribute to the funeral. The employer, as usual, knew nothing about his status. So when we say how difficult it is and how embarrassed employers are to ask about whether someone is illegal, the other part of the picture is the reality where many of these employers are clearly aware that the people they are employing are illegal, that they are in very difficult circumstances legally, that they do not want to go near the department, that they are fearful for their future and that they are desperate to stay here. As the member for Riverina noted, many of these people will work for lower wages and conditions due to the fact that the wages and conditions in the nations that they derive from are far less than those in Australia.

This legislation is long overdue. On many occasions there have been assurances from ministers that this was around the corner and that things were happening. When the member for Fisher says that there is no tardiness and that it is not an important piece of legislation, I wonder which piece of legislation he is comparing it to. Perhaps he was comparing it to the new citizenship legislation in this country—where we require people to be permanent residents here for four years rather than two—which took a year to get to the debating stage and, in the interim, over 100,000 people became Australian citizens when it was supposedly a security risk to the country because they were only required to be here for two years.

In conclusion, I support the opposition’s amendment, noting that the legislation is overdue and noting that the ‘reckless’ requirement will make it very difficult to procure prosecutions in an area where it is very necessary.