Laurie Ferguson (Reid, Australian Labor Party, Parliamentary Secretary for Multicultural Affairs and Settlement Services) Share this | Link to this | Hansard source

I present the explanatory memorandum to the bill and move:

That this bill be now read a second time.

From day one, the Rudd Government has been focused on ensuring we have the policy settings right to facilitate the entry of temporary workers in a way that is responsive to the needs of employers, while at the same time retaining the integrity of the subclass 457 visa program.

The manifest failure of the previous government to invest in the education and training of our own people has contributed to endemic skills shortages across the country. There is not a member of this House who has not had localised instances of and complaints about this reality.

In addressing these very serious skills shortages, the first priority of the Rudd Government is equipping our own workforce, our own people, to meet the skills requirements of industry.

In the 2008 budget the Treasurer announced that the Rudd government is making a $19.3 billion investment in education and training to ensure we continue to provide employment and training opportunities for Australians.

However, while investing in the education and training of Australians is crucial, it will not deliver the skills employers need now, when they are already necessary.

Over the last five years Australian employers have increasingly turned to the temporary skilled migration program to access the skilled workers they need.

The sudden growth of the scheme in recent years, coupled with its expansion into lower-skilled occupations, has placed new pressures on the integrity of the subclass 457 visa program.

Community confidence in the scheme suffered under the previous government following a series of well-publicised abuses of workers on subclass 457 visas. That is why the Rudd government is placing such a heavy priority on restoring integrity to this program.

On 17 February this year we announced a package of migration measures including:

• the appointment of an external reference group to advise how temporary work visas could contribute to the supply of skilled labour.

This reference group made 16 recommendations, 15 of which either have been implemented or are being implemented. The other one is the subject of ongoing consideration.

In April this year the Deputy Prime Minister and the Minister for Immigration and Citizenship appointed industrial relations expert Ms Barbara Deegan to conduct a broad review into the integrity of the temporary skilled migration program. Ms Deegan reported making 68 recommendations which will inform an agenda of long-term reforms to the 457 visa program that will be brought forward in the 2009-10 budget.

The bill that I am introducing today complements action that the Rudd government has already taken to boost the integrity of the 457 visa program.

The bill will strengthen the integrity of temporary working visa arrangements by introducing a new framework for the sponsorship of noncitizens seeking entry to Australia.

This will be achieved through four main measures:

• providing the structure for better defined sponsorship obligations for employers and other sponsors;
• allowing for improved information sharing across all levels of government;
• expanded monitoring and investigative powers to identify instances of possible noncompliance by sponsors; and
• the introduction of meaningful penalties for sponsors found in breach of their obligations.

The government recognises that temporary skilled migration is a complex issue with many stakeholders.

That is why the government has established a Skilled Migration Consultative Panel comprising representatives from state and territory governments, the business community and other industrial and union stakeholders.

The panel will provide ongoing advice and informed feedback on reform proposals based on a sound appreciation of the issues and the impacts these issues have on business, the Australian workforce and the broader community. The minister has also said that any proposed regulations will be referred to the panel for consideration before being made.

In summary, the legislation will strike an appropriate balance between:

• facilitating the entry of overseas workers to meet genuine skills shortages,
• preserving the integrity of the Australian labour market, and
• protecting overseas workers from exploitation.

The sponsorship obligations that will be defined in the regulations will deliver greater clarity to both sponsors and overseas workers.

Improved information sharing and expanded investigative powers will better equip government to identify noncompliance without unduly imposing on business.

Civil sanctions will give the department another tool for effectively managing noncompliance and preventing the exploitation of workers from overseas.

The bill deserves the support of all members of this parliament.

I commend the bill to the chamber.

Sharman Stone (Murray, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I too rise to speak on the Migration Legislation Amendment (Worker Protection) Bill 2008 The coalition do not oppose this bill, because it is a further evolution of the skilled temporary worker program we introduced in 1998. We will always strongly support improved worker protection. Whether it is one person poorly treated or endangered in the workplace or many, the coalition are strongly supportive of any measure aimed at ensuring that no worker in Australia suffers. However, we have some major concerns about the process and lack of information and clarity in relation to this bill—in particular its impacts on those industries trying to locate and sponsor skilled labour offshore. In a sense, there is an unusual situation in Australia at the moment. As Labor mismanages the global problems in our country and we see growing unemployment across the board, there are still industry sectors experiencing extreme shortages of essential skilled labour—for example, in the health sector, in parts of the mining sector, in accountancy and with IT specialists, to name a few.

The coalition is very concerned about the fact that it is being asked to support a framework in this legislation which will guide the formation of detailed regulations. The regulations will be the flesh and blood of the new sponsor obligation regime, but we are in effect being asked to buy a pig in a poke because these regulations are not going to be identified or made available even for comment until some time next year. While employers wish to continue sponsoring their skilled temporary workers, they are doing so with little information about the future sponsorship obligation regime, which will apply to them when those regulations come into practice even if the sponsorship took place some months or even years before.

This is a very difficult situation for us. We have a government that is relying more and more on regulation to manage its legislative regime. The department says: ‘This is fine. This gives us flexibility; this is really great.’ It might give the government flexibility—indeed it does—but the idea of legislation is that new bills that are to become laws should be given proper scrutiny by this place and by the Senate. The legislation must be examined carefully by committee inquiry and the like. When you simply fall back on regulations again and again, you are, I believe, watering down the process of parliamentary scrutiny. Certainly, this bill will leave the employer sponsors with a great deal of uncertainty and a great deal of concern about whether it is actually worth the risk of seeking—it takes a while and is quite costly—these overseas potential employees once they have searched the local market and have not been able to find a worker to suit their needs in Australia.

I appeal to the government: do not keep reaching for regulation because the department has not quite got the job done in time or because you are not sure of your own program or ultimate policy direction—you really need to legislate, not just regulate. In this case, as I say, we support the framework within this bill but, as you can imagine, when the regulations are finally made known to us we will subject them to very close scrutiny indeed.

The coalition commenced the process of bringing into this country a whole new type of worker: the skilled temporary visa holder. We did it in order to try and keep the right level of skills in our economy when from 1996 we were rebuilding our workforce. We inherited a nearly eight per cent unemployment rate from Labor in 1996, but we introduced these 457 visas to fill skills gaps.

We understood that, given these visas had become so very popular, additional resources were needed by the department of immigration to process all the applicants. So the then Minister for Immigration and Citizenship, the Hon. Kevin Andrews, allocated additional resources to try to ensure more streamlined implementation and processing of the 457 visa applicants. That was through the Migration Amendment (Sponsorship Obligations) Bill 2007. But the coalition very much shared the concerns of the majority of those who presented submissions to the inquiry by the Senate Standing Committee on Legal and Constitutional Affairs, whose report I will simply refer to as the Senate committee report. We wanted a longer inquiry. Sadly, we were only given in effect a few days. There were two main areas of concern expressed by employers. Firstly, employers were very concerned about the additional costs and red tape that might go along with the new obligations for sponsors. Indeed, additional costs and red tape have been signalled or signposted both by DIAC’s own paper and by the Barbara Deegan report, which I will come back to.

Sponsors very much want to be able to fill their skilled jobs which they cannot recruit for locally. But, at the same time, small business people especially are constrained by how much additional cost may be associated with the imported temporary skilled worker and how much extra time the bureaucracy, the red tape, the compliance, the monitoring and the reporting will take as they move this new worker into their workplace. The coalition has always looked very seriously at reducing red tape, particularly for small business, the engine room of our economy. It seems that in relation to this bill we might be looking at a significant blow-out again of administrative costs and impositions on small business. I think it is no surprise that the vast majority of 457 visa category sponsorships have been undertaken by large enterprises or businesses with more than 20 employees. Smaller businesses have just begun to walk away, sighing about the red tape and costs associated with this visa category.

We also had people making submissions to the Senate committee inquiry saying that they were being asked to buy a pig in a poke. This is the issue I mentioned at the outset. They were asked to comment on a bill without any evidence of what the regulations might contain and so were denied a real opportunity for comprehensive debate. This was the case even though the Barbara Deegan report had been passed to the minister. It was there on his desk while the Senate committee inquiry was underway, but those people did not have the advantage or the opportunity of having a look at what was, I think, a very good report by Barbara Deegan. You have to wonder why it would not have been made available to the Senate inquiry. Perhaps the minister had not noticed it on his desk; there were so many other files sitting there awaiting attention, including those relating to the families of 457 visa holders who had Down syndrome dependants, who were being blocked from becoming permanent residents despite their skills being urgently needed by the communities where they were working. So the coalition is very disappointed that the Barbara Deegan report was not available. It is, of course, a real problem for us not knowing what the regulations will hold, but we will subject them to very close scrutiny when they finally do appear. The government has made much of the consultation process. It is very proud of the fact that it is suggesting that next year there will be a lot of toing and froing. The problem is that the bill is with us today and we have no information behind the framework.

Let me also talk about the specifics of the bill. The objective of the bill is to amend the Migration Act 1958 to strengthen the framework for employer sponsorship with a view to ensuring that the working conditions meet Australian standards, particularly wages and conditions, and that sponsorship costs are more fully identified and met by the employer sponsors themselves. Visa holders are currently sponsored by employers who must meet a series of ‘undertakings’. These ‘undertakings’ will now be respecified in what are to be called the new regulations—as I said, we will possibly see these regulations in 2009—and all currently engaged sponsors will be transferred to that new regulatory regime.

In 1996 the coalition introduced the new visa categories, the 457s and related 400 series, to allow employers to sponsor skilled workers on a temporary basis, for between three months and four years, to help ease skilled labour shortages. The Howard government’s 457 program was a huge success. It continues to be a huge success in satisfying the demand for skilled workers and helping to ensure that Australia maintains its international competitiveness. One of the underlying objectives of the program was not just to introduce temporary skilled workers and their families but also, we hoped very much, that where the sponsorship was successful the workers and their families might contemplate permanent residency and ultimately citizenship in our country. It is hard to get the statistics on this, but between 40 and 50 per cent of 457 visa holders are applying for permanent residency in this country. I want to know why half of them do not apply and instead walk away from our country. It is important for us to understand if it is an issue of employer sponsors failing to meet obligations or if wages are not competitive with international alternatives or if it is simply that those families always intended only a temporary stay in Australia. Certainly the coalition will be looking much harder at how we can make sure these temporary, skilled workers are welcomed in this country and are more likely to stay.

One of our issues, which I just alluded to—and the member for Mallee, who is at my side, is only too familiar with this problem—has been that this government and in particular the Minister for Immigration and Citizenship, Senator Evans, have refused to work earnestly and quickly on issues of intervention or ministerial discretionary decision making. Right at the beginning of his period as minister he stated that he was concerned about interventions, which are a responsibility of the minister for immigration, and he commissioned the Elizabeth Proust report, which was put on his desk at the end of January. We have seen neither hide nor hair of this Proust report since then, but the minister has talked about how he would prefer that the department handled all individual cases where a person has had their permanency or their visa application rejected by a tribunal. Under our current system that rejection can then go to the minister for his final decision, according to his discretion. This minister does not like that; he has a problem with that. Therefore, when there have been cases on his desk of 457 visa holders, families—in one case Dr Moeller, who was working in a hospital in a small town in the electorate of Mallee—

Bill Shorten (Maribyrnong, Australian Labor Party, Parliamentary Secretary for Disabilities and Children's Services) Share this | Link to this | Hansard source

Mr Deputy Speaker, I rise on a point of order. The member for Mallee is making imputations about the Minister for Immigration and Citizenship by saying that he has not been working earnestly. She is quoting the case of Dr Moeller. The Minister for Immigration and Citizenship handled that matter within a matter of hours, to the credit of him, the government and everyone involved.

Sharman Stone (Murray, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I would like to make a correction. I am not the member for Mallee.

Bill Shorten (Maribyrnong, Australian Labor Party, Parliamentary Secretary for Disabilities and Children's Services) Share this | Link to this | Hansard source

Sorry, I meant the member for Murray.

John Forrest (Mallee, National Party, Shadow Parliamentary Secretary for Regional Development) Share this | Link to this | Hansard source

The record has been corrected. The parliamentary secretary meant the member for Murray, not the member for Mallee.

Sharman Stone (Murray, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I would like to make the point that it was only after a great deal of media focus on Dr Moeller’s case that there was movement, given that—

Bill Shorten (Maribyrnong, Australian Labor Party, Parliamentary Secretary for Disabilities and Children's Services) Share this | Link to this | Hansard source

Mr Deputy Speaker, I rise on a point of order. Again, the member for Murray is making imputations that the Minister for Immigration and Citizenship has not been dealing with matters in a professional, earnest way. She reinforced that imputation by saying he only acted because of the media. He acted when the tribunal had made the ruling.

Christopher Pyne (Sturt, Liberal Party, Shadow Minister for Education, Apprenticeships and Training) Share this | Link to this | Hansard source

Mr Pyne interjecting

Bill Shorten (Maribyrnong, Australian Labor Party, Parliamentary Secretary for Disabilities and Children's Services) Share this | Link to this | Hansard source

I have been watching the member for Sturt and learning a bit.

Mal Washer (Moore, Liberal Party) Share this | Link to this | Hansard source

The member for Murray will continue her remarks.

Sharman Stone (Murray, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I will now explain to the member opposite why I made that statement. Dr Moeller’s case was finally acted on after a great deal of media attention. However, the Robinson family in Perth was also very fortunate in being dealt with after their case was on the minister’s desk for seven months.

Bill Shorten (Maribyrnong, Australian Labor Party, Parliamentary Secretary for Disabilities and Children's Services) Share this | Link to this | Hansard source

Look at the detail!

Sharman Stone (Murray, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

Yes, it is detail—exactly, and that is what I am giving.

Bill Shorten (Maribyrnong, Australian Labor Party, Parliamentary Secretary for Disabilities and Children's Services) Share this | Link to this | Hansard source

Your detail on Dr Moeller is wrong.

Sharman Stone (Murray, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

It is not wrong. There are a number of families of skilled worker backgrounds who have dependants with conditions like Down syndrome, and I have those families’ names in my office. I include another family who recently communicated with the minister. They have been waiting for a decision for more than 12 months in relation to entering the country on a skilled worker visa, but they, too, have a Down syndrome son.

The problem is that our skilled worker program does depend on the department and the minister acting decisively, efficiently and quickly in all cases. We are losing competitiveness when more than 50 per cent of our skilled worker 457 visa category families are leaving the country. I suggest that a lot of that may be where cases did not receive careful and efficient attention as soon as the matters were put on the table.

In 1996 we introduced the 457 visa category and this was, indeed, a great success. The annual intake for the 457 visa program has steadily increased from 16,550 in 1997-98 to 22,370 in 2003-04 to 58,050 in 2007-08. The Senate report sets out these statistics. In this 11-year period, 304,400 section 457 visas were granted. In addition these visas allow secondary visas for interdependent partners, dependent children or other relatives of the section 457 visa holder. This brought the total number of visas granted under this umbrella to 550,600.

There are currently nearly 19,000 employers using the 457 visas. Nearly 30 per cent of 457s are employed in New South Wales. The New South Wales government and state governments generally are some of the most prolific users of 457 visas—in particular in the health sector. It is interesting that the Labor opposition at the time, now the Rudd Labor government, regularly opposed the 457 visa system and mounted scare campaigns about this being a backdoor way to bring in cheaper workers who would drive down Australian labour wages and conditions.

We had a very interesting situation with the Barbara Deegan report, which was reviewing the integrity of the actual operation of the 457 visa program. I have already said that I thought it was a very good report that Barbara Deegan delivered. Interestingly, she does not identify in any place in that report how many breaches of obligation actually occurred with these 457 employees. She suggests that there is probably an under-representation of breaches of obligations, and I am quite sure that is probably true, but we do have to make sure that we do not place very punitive and high-cost new obligations on the employer sponsors when in fact the vast majority do the right thing. Instead, what we need to be doing is focusing on the category of 457 visa holders who, it would seem, are more likely to be exploited or have other problems. These are the 457 visa holders who have lower pay and tend to work in hospitality, tourism or sometimes in other industry sectors which appear more likely to employ non-English-speaking background labour. As Barbara Deegan suggests, for the sake of DIAC’s efficiency, we have to look at streaming future 457 visa holders into two categories: those above, say, $100,000 in wages and those below, with more scrutiny and monitoring of the lower paid category to make sure they are not vulnerable and in no way exploited.

I am also concerned that at the moment some people who have already spent two or three years on a 457 visa are experiencing some difficulty asking for and receiving the support of their sponsors to obtain permanency in Australia. It is a problem. The sponsor understands that, in supporting their 457 worker for permanency, they may lose that worker as that worker may relocate into other employment. I think Barbara Deegan was right in identifying that there should be other pathways for 457 visa holders to move from sponsorship under 457 visas to permanency.

I also strongly support her recommendation that there be 90 days allowed if a 457 visa holder wishes to be re-engaged by another sponsor. This will empower the worker and their family so that, if they have some problems with the current employer or simply find where they are working not to be to their absolute satisfaction and they have a better offer somewhere else in Australia, they can shift to another employer without having imposed on them any penalties or any threat of having their visa status changed, discounted or in some way removed because their current employer does not want to lose them.

I think Barbara Deegan’s recommendation that talked about the importance of the families, or secondary visa holders, being supported to learn English was also very sound. I am aware of the case of some meatworkers in South Australia. They came out as Chinese speakers and their families have enjoyed very much the regional community where they are located, but when they go to apply for permanency their lack of English will be an impediment. As well, the families know that they could be better integrated and enjoy more of the opportunities Australia offers if they could learn English while the breadwinner of the family worked at the local meatworks. So I certainly do support Barbara Deegan’s recommendation in relation to English language teaching for families as well as for the workers themselves, who for safety purposes, of course, need to be able to understand and respond to instructions in English.

This year DIAC released a discussion paper which describes all of the options, as they put it, for the regulations associated with 457 visas. I will run through some of the options because the employer sponsor community has raised some alarm and had concerns about the additional costs and the red tape they would incur if these options were to come through as regulations. I referred earlier in my remarks to the issues with the cost and red tape. The proposed new obligations described in the DIAC discussion paper released in April 2008 include the sponsor meeting all of the education costs of minors accompanying the worker; covering all medical costs, either through insurance or direct payment, including covering medical costs where the insurance company refuses to pay; paying any migration agent’s fees or other costs of recruitment up to a maximum specified; paying all travel costs to Australia, where before only travel from Australia was required; and paying any licence or registration fees associated with the worker taking up employment in Australia. Those are just some of the options outlined in the DIAC paper.

You can understand the employer sponsors focusing rather intently on those proposals. Along with Barbara Deegan, I am concerned at the growing trend of offshore agents engaged in identifying skilled temporary visa respondents for job vacancies in Australia who charge a substantial amount for their spotting services and who sometimes give misinformation or incorrect information. It is important that we take all measures to ensure that offshore agents, or even onshore agents, giving misinformation are not encouraged and supported and rather that we have direct relationships between the department and the employer sponsors. Part of this could be that any agents’ fees charged for the future employee are met by the employer. In that way there would be greater transparency and any unfortunate developments in this area would be curtailed.

The Australian Chamber of Commerce and Industry submitted that some of these proposed DIAC regulations would have a detrimental effect on Australian business, especially on small to medium enterprises, and that the cost of some of these measures would indeed be prohibitive for many businesses. They were also concerned that in the growing period of uncertainty in our Australian economy—where business confidence is at an all-time low, where orders are contracting and where the non-mining sector is doing it tough—Australian employers might decide to walk away from importing the skilled labour needs of their business, even though that will put further nails in their coffin because they cannot find the local workers to do the job that has to be done.

The Senate committee report found that about 89 per cent of the 457 visas granted were in the top three ASCO major groups of nominated occupations—namely, managers and administrators, professionals and associated professionals—but by 2007-08 this figure had dropped down to 80 per cent. In other words, there is a growing trend for slightly less skilled workers to be coming in on 457 visas and for these less skilled workers to go to smaller companies. I emphasise the importance of making sure that all of these workers are adequately protected under legislation, or in this case regulation, and that the costs of employing those people and the red tape are not overwhelming.

The section 140Q penalty for failure to satisfy sponsorship obligations enables the minister to apply to the Federal Court or the Federal Magistrates Court for a pecuniary penalty order against the person, resulting in a maximum penalty for an individual per offence of $6,600 and for a body corporate of $33,000. That does not seem unreasonable to me, but we have to make sure that there is full clarity about whether and how an element of fault will be required to be proved or what will categorise a breach and how that will properly be determined. There are no statutory defence options and there is no ministerial discretion apparent in this legislation.

We support the framework as identified in this bill. It was the coalition that introduced 457 temporary skilled worker visas in an effort to make sure that we could meet the demands of our industry and service sectors, which could not find adequate employees to grow their businesses. We have seen this 457 visa category grow exponentially. We have seen it evolve, with more people in the lower salary categories coming in of late. We absolutely agree that worker protection is paramount. There must not be one of these workers subjected to unsafe Australian workplaces. Exploitation of them in any way is to be abhorred. So we welcome the better codifying and defining of the sponsor obligations in relation to their workers’ protection.

What we are concerned about, though, as I said at the beginning, is that we do not know what the regulations will contain. We have been given a paper with a whole range of options. I have been told by departmental officials that perhaps that paper was too broad. I do not quite know what that means. Has there already been a decision or some decisions made about options in that paper, putting some to one side? If that is the case, let us have the debate about what is in the government’s mind. This is a very important issue. We want to get it right. The coalition will support this bill. But we will certainly be subjecting the regulations to very tight examination. (Time expired)

Debate (on motion by Dr Emerson) adjourned.