Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

The minister said in his second reading speech on the bill before us today, the Migration Amendment (Strengthening Employer Compliance) Bill 2023:

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

This means more wage theft for workers …

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

The Australian Greens couldn't agree more with the minister on those matters. We also agree with the minister's assertion that there is clear evidence of the systemic nature of exploitation in Australia's labour market and that unscrupulous employers and facilitators have misused visa rules to exploit workers. Those are undoubtedly accurate comments.

Significant research conducted and reported on by civil society organisations, including the Grattan Institute and Unions NSW, has found widespread and systemic underpayment and exploitation of migrant workers. This research has also found that exploited migrant workers are fearful of speaking out in case doing so leads to their visas being cancelled. This is a vulnerability frequently exploited by unscrupulous employers. A bill that rights these wrongs is a bill to be welcomed in this place. But I have to say the bill before us today, if it is unamended, does not meet that test in the view of the Greens.

We stood with civil society organisations and demanded more. We demanded that Labor, at the very least, table legislation that is consistent with their national platform and consistent with community expectations. We raised concerns and we made recommendations in the Senate inquiry into the bill regarding how it considered the term 'arrangement' in relation to work, because, as drafted, we had concerns that the provisions could preclude a broad interpretation. This was a concern because of well-documented evidence that employers sometimes coerce migrant workers into enduring egregious treatment within the work context that goes beyond the performance of the work itself. This may include, for example, demanding that a migrant worker accept sexual advances, accept unsafe living conditions or accept having their passport taken in return for work or for documents the worker needs in order to meet a visa requirement.

To address these concerns, the Greens circulated amendment sheet 2079, standing in my name, which would provide amendments to the coercion provisions at sections 245AAB and 245AAC to ensure that those provisions capture the full range of potential employer conduct.

Civil society and the Greens also raised concerns about the new and unfettered discretionary powers to cancel visas provided by section 116 of the bill. In our view, these powers would provide a chilling effect on potential migrant worker whistleblowers. The lack of a guaranteed protection would provide a chilling effect not only for migrant workers but also for their advocates, as, under the bill's provisions, unions and legal advocates would have to advise migrant workers that they couldn't safely defend their workplace rights without exposing themselves to the risk of visa cancellation. Experience has shown migrant workforces and advocates that, if the Department of Home Affairs retains a discretion to cancel a visa, then it almost certainly will. So protections against exploited migrant workers having their visas cancelled are absolutely necessary to encourage whistleblowers to shine a light on the current crisis of migrant worker exploitation in Australia.

It's also worth noting that Labor, at its last national conference, committed to amending its national platform to include a non-discretionary protection against visa cancellation for exploited workers. This commitment, unfortunately, was not reflected in the bill that was put before this parliament, which is why the Greens circulated amendment sheet 2079, under my name—to remove the additional and chilling discretionary visa cancellation powers from the bill.

Late last year, I'm pleased to report, two-and-a-bit months on from the Senate inquiry, the government circulated amendments of its own to the bill. Government amendment sheet UB100 provides for a broad interpretation of the term 'arrangement' in relation to work, by defining the meaning of the term in the legislation rather than relying on a common English language meaning of the term. This makes it clear that both work-related and non-work-related activities are covered by these new powers and clarifies the intent and scope of the new offences and associated civil penalty provisions for those unscrupulous employers and others in the employment chain who use a person's immigration status to exploit them in the workplace.

The government has also provided civil society with assurances that the continued inclusion of the expanded cancellation power under section 116(1A) of the bill will not prevent the future introduction of a no-cancellation guarantee for migrant worker whistleblowers under section 116(2) of the act, and that migration sector organisations and trade unions will be closely involved in drafting regulations for this purpose. Those assurances have come in the form of written correspondence from the minister's office and a verbal commitment from the minister to unions—that's my understanding of the current status of those assurances.

I thank the minister for making those assurances, but I invite the minister who sums up this debate on behalf of the government to put that commitment into the Senate so that it's recorded on the Hansard today or whenever the concluding stages of this bill occur. I invite the minister to make an assurance that, in relation to future co-design, the Department of Home Affairs will facilitate engagement with civil society groups—including with the Human Rights Law Centre and the Migrant Justice Institute with regard to their report Breaking the silence—a proposal for whistleblower protectionson draft migration regulations to provide for visa protection from visa cancellation for migrant worker whistleblowers. Further, I invite the minister to make a commitment that this engagement will include non-discretionary forms of protection as per the Labor Party platform and will occur as soon as is practicable and in any event early this year, to ensure those regulations are available to be tabled in the parliament as a priority. If we are able to get that commitment stated clearly by the government during this debate, that commitment, along with the government's amendments on sheet UB100, will achieve policy outcomes similar to those of the Greens amendments. Therefore, if we are able to get that commitment and the government does move its amendments on sheet UB100, I will not be moving the Greens committee of the whole amendments to the bill that have been circulated in my name.

In concluding my remarks on this legislation, I want to acknowledge the Human Rights Law Centre and also the Migrant Justice Institute. Both of those organisations not only provided really quality evidence to the Senate inquiry into the bill but also led work on the 2022 Breaking the silence report, which proposed whistleblower protections to enable migrant workers to address exploitation. That report was endorsed by a coalition of 40 trade unions, migrant rights academics and faith based organisations. That report was critical to helping the Greens understand the scope and seriousness of the problem, and it will continue to guide our consideration of migrant worker rights and protections in Australia more broadly. So I want to thank everyone involved for that invaluable contribution to the public discussion on migrant worker policy reform in Australia.