Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

I rise to speak on the Migration Amendment (Employer Sanctions) Bill 2006. Perhaps I can start by saying that this is a bill that has been on the Notice Paper for some time. It is certainly long overdue—longer than you might imagine. This is an issue that had been raised and looked at by the government as far back as 1999. It has certainly taken the government a long time to get to this point.

It is worthwhile going back and looking at the review that brought forward this bill. That review was called the Review of illegal workers in Australia: Improving immigration compliance in the workplace. One of the major elements of that was the decision to pursue employer sanctions. The review found at that time—

Trish Crossin (NT, Australian Labor Party) Share this | Link to this | Hansard source

Senator Ludwig, I am sorry; I am going to interrupt you. I am wondering whether senators could continue those discussions outside so we can hear the senator give us his speech in this second reading debate.

Joe Ludwig (Queensland, Australian Labor Party, Manager of Opposition Business in the Senate) Share this | Link to this | Hansard source

As I was saying, the review found sufficient evidence to conclude that the extent of illegal workers in Australia is a significant problem that denies many Australians the opportunity to access a job. Illegal workers also place an additional burden on Australian taxpayers in terms of compliance costs, uncollected taxes and fraudulently claimed social security benefits.

There has been a pressing need for this bill since 1999, since the terms of reference and the brief were given to the committee to have a look at this, and they produced this report and their findings. Of course, that was addressed to Mr Ruddock, the then Minister for Immigration and Multicultural Affairs. Since that time he has gone from immigration to another portfolio and we have Senator Vanstone now. It has taken that amount of time for this government to actually have a look at this issue.

The purpose of this bill is effectively to introduce offences for employers and labour suppliers who let noncitizens work in Australia without the appropriate visas. It is presently an offence under section 235 of the act for an unlawful noncitizen to work in Australia or for a noncitizen who holds a visa to work in contravention of the visa work conditions. What that means is that it is an offence for the worker—the noncitizen—but there is no sanction and no contravention of the migration legislation by their employer. Nor is there any requirement more broadly for the employer to investigate or to at least ask an employee or intending employee about the issue. But we now have at least some measure which will be helpful in dealing with this issue, although long overdue.

The bill contemplates four types of offences against employers: allowing an unlawful noncitizen to work, allowing a noncitizen to work in breach of a visa condition, referring an unlawful noncitizen for work and referring a noncitizen for work in breach of a visa condition. This bill will put the onus on employers and labour hire companies to verify the working status of potential employees where there is a substantial risk that the person is an illegal worker. This bill recognises that this government has continued to fail to deal effectively with the problem of illegal workers in Australia. However, the bill does have a six-month lead time to ensure employers can at least take on board what the full effect of this bill will mean for them.

As I have said, this bill had its genesis from that report back in 1999 I referred to earlier. The report in 1999 was to look at how to ‘curb the abuse of Australia’s visa system by illegal workers and a determination to reduce unemployment for Australians’. If it were critical for the government, one would have thought they would have acted a little bit sooner than this, but nonetheless they have finally acted and, although it might be considered faint praise, I will at least say that it is high time that the government finally came to the party with this bill. We appreciate that they have come forward with this bill and have allowed it to be debated in the Senate and dealt with, although it did, as I have said, sit on the Notice Paper for some time. The report of the committee that looked into this bill came out in May 2006, but the government have taken their time allowing this debate to be brought forward.

That 1999 report contained a number of recommendations, and I want to dwell on that for a short while. To go back to the purpose of that review in 1999, it was ‘to consider the current approach to combating illegal workers and whether there should be changes made to policy, practices and procedures and/or legislation settings to improve the level of compliance in the workplace’. That was referred, I keep reminding you, in 1999, and of course that committee reported in 1999. Its key findings were that, as at 30 June 1999, it was estimated that some 53,000 people had overstayed their visas and were unlawfully in Australia. Of that number, about 27 per cent had been here for more than nine years. An unknown number may have also entered Australia unlawfully. The committee also went on to say as part of its key review findings that, without access to work over a sustained period, overstayers would find it difficult to support their unlawful extended stay in Australia.

The committee was painting a picture where it was clear that a number of overstayers had found employment of some description and that there needed to be work done to address that:

The Review found that the current measures in place to combat illegal workers were insufficient to address the extent of the illegal worker population. In particular, the Review concluded that:

• while DIMA compliance action is increasingly successful, there is little prospect that the workload will diminish.

It then continued to paint a picture of a situation where there needed to be, in my words, urgent action. That was in 1999. The government then took some action, I will say—and I will go to that shortly. But what the review recommended in terms of concrete things that the government should do at the time was, firstly:

That an Overseas Information Campaign be developed, in order to discourage people from trying to enter Australia unlawfully and working illegally.

It also recommended:

That it be ensured that as many as possible ETA-holders receive information concerning their rights and obligations as visitors in Australia, including information about their work status.

There were a range of other recommendations, but (h) in the summary of recommendations states:

That a system of sanctions be introduced to discourage business owners, employers and labour suppliers from recruiting illegal workers.

What they were painting was a holistic picture of how to deal with this issue from both an education perspective and a sanction perspective, in that there would always be employers who were not willing to comply with education campaigns or do the right thing—that, unfortunately, there would be what may be described as rogue employers, or employers seeking to abuse the system by employing or exploiting unlawful noncitizens in this way. That was the picture that was painted in 1999.

In response to that, the government, to its credit, took some action. That action included at least matters that went to initiatives in November 2000, so it was relatively quick in providing some response. The then Minister for Immigration and Multicultural and Indigenous Affairs, Mr Ruddock, introduced what might be regarded as the next phase of the review of illegal workers in Australia, which was initiatives to stop illegal workers. Those initiatives included a new Work Rights telephone information line; a fax-back facility that provided advice on whether an individual was eligible to work; an employer awareness campaign, including new kits and information pamphlets, to enable employers and labour suppliers to improve their knowledge of Work Rights issues; and the introduction of warnings to employers and labour suppliers who hire illegal workers.

So we had got to a position where the elements of the 1999 report which dealt with the softer issues—a campaign and education—were quickly adopted by the government but dealing with the harder issues, the issues that actually might change or modify behaviour, or having a sanctions regime were certainly, as we now know, a long way off. It got to a point where in 2004 and 2005 DIMIA had issued in the vicinity of 2,280 warning notices to employers and labour suppliers, so it was not as if DIMIA was not aware or had not gone out and done compliance audits or had ignored the problem completely and not done any research. It got to a point where DIMIA had clearly run up the white flag and said, ‘We’ve issued that many warning notices that it is high time that something is done,’ given the increase in that period of 20 per cent over the previous financial year. It was not confined only to new employers. Ninety employers had received more than one notice and most of the notices issued occurred within the following industries: accommodation, cafes and restaurants; agriculture, forestry and fishing; retail trade; and manufacturing. DIMIA had clearly understood that there was a problem and had sought to do the best that they could within the available range of actions that they had. However, it has still taken until 2006—more than halfway through—for this government to decide to go back to the 1999 review and look at what might be considered the next phase, being part of the original phase to look at all of the recommendations and to start to address those, a phase which includes what this bill in fact does.

The bill’s explanatory memorandum states that the legislation is recognition that the problem of illegal workers is a significant problem. It says this is about 46,000 overstayers, 26,200 of whom have been in Australia for more than five years. The statistics are slightly different from those that were enunciated back in 1999, but they are not so different that warning bells should not have rung back then as they are ringing now. The government has taken a long time to get to the point of looking at this issue in a serious and holistic way.

The bill is a step in the right direction, and Labor supports that. For too long there have been employers who have repeatedly engaged noncitizens in employment that contravenes section 235 of the Migration Act but who have committed no offence at law. This bill will change that. There is some concern over the threshold tests within the bill of what will constitute recklessness. The Legal and Constitutional Legislation Committee inquiry that looked at that had submissions from a range of groups, including employers, as to how the test of whether you have contravened the legislation will be dealt with. In that instance they had concerns about what would constitute recklessness. Whether this measure is tough enough will be made clear after this bill has had a chance to be put into operation. Whether it is in fact able to effectively deal with this issue will be something that Labor will watch very closely. The opposition—and the Australian community—has a legitimate expectation that employers who routinely take advantage of illegal workers will in fact be prosecuted. But this bill is not an end to the matter. It is now really up to the government to ensure that in fact compliance audits and activities are undertaken and that sensible measures are taken to ensure that prosecutions follow.

Debate interrupted.