James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

I rise to make a contribution on the Migration Amendment (Strengthening Employer Compliance) Bill 2023, which amends the Migration Act 1958 to strengthen employer compliance measures in relation to protecting temporary migrant workers from exploitation, including by implementing recommendations 19 and 20 of the 2019 report of the Migrant Workers Taskforce.

Work on this bill first began under the former coalition government, which established the Migrant Workers Taskforce in 2016 to identify proposals for improvements in law, law enforcement and investigation, and other practical measures to identify and rectify cases of migrant worker exploitation. The task force was chaired by Professor Allan Fels and included members from a wide variety of government agencies, including the Department of Home Affairs and the Australian Border Force. The report produced by the task force was presented to the former government in February 2019. On 7 March 2019 the report was publicly released along with the government's response, which noted that we support taking further measures to protect vulnerable workers and ensure law-abiding Australian employers are not undercut by unscrupulous competitors. The report made 22 recommendations, and the former government accepted all 22 of those recommendations in principle.

The former government then developed legislation to implement recommendations 19 and 20 of the report of the Migrant Workers Taskforce via the Migration Amendment (Protecting Migrant Workers) Bill 2021, which was introduced on 24 November 2021 and referred to the Senate Legal and Constitutional Affairs Legislation Committee. The Senate committee report was tabled on 18 March 2022 and lapsed prior to the dissolution of the parliament at the 2022 election. When the previous bill was examined by the committee, the Labor members of that committee, led by former senator Kim Carr, added 10 pages of comments and concerns in the committee report, and I note none of those have been picked up in the bill before the Senate.

The current bill was referred to the Legal and Constitutional Affairs Committee for its consideration. The committee held a hearing in Brisbane on 21 August last year and heard from a range of stakeholders, and the committee process highlighted a range of issues with the bill. The coalition's representative on the committee, Senator Scarr, provided additional comments in the report to the Senate, and the opposition has worked with the government to develop a range of amendments in line with Senator Scarr's recommendations. I commend Senator Scarr on his work on this bill. The opposition understands that the department has committed to develop extensive educational and information material to ensure that employers understand their obligations under this legislation, and we welcome this work. We need to ensure that, while we seek to protect migrant workers' rights, we do not inadvertently create a legal minefield for small businesses.

The amendments before the Senate, which will be moved by the government, will help address these transitional issues. I understand there will be 25 amendments, including a number of minor technical amendments, and each of these recommendations made by Senator Scarr in the Senate committee have now been addressed. I understand there will be a commencement date of 1 July 2024. There is a technical amendment that creates a new definition in the Migration Act, as opposed to relying on the ordinary meaning of the words, which helps define the new powers in connection to work and helps clarify the intent and scope of the new offences in the bill. Another technical amendment will clarify that the work captured by this legislation is work done by people holding a temporary visa in Australia. Another amendment lists the objective of prohibited employer measures, to better clarify the government's intent in the bill. This articulates important policy objectives such as to prevent vulnerable workers from being exploited.

Other amendments reflect recommendations of the opposition for this bill to rely less on delegated legislation, including listing the triggers for the prohibition notices in the Migration Act as opposed to an instrument. The only exception to this is the ability to delegate for criminal penalties in the Fair Work Act. Further amendments to this bill also address views expressed by the Senate Standing Committee for the Scrutiny of Bills in its Scrutiny digest No. 10 of 2023 and the Parliamentary Joint Committee on Human Rights in Report 9 of 2023. As a result, the coalition will be supporting both the bill and the amendments moved by the government.

Nick McKim (Tasmania, Australian Greens) Share this | Link to 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.

Jess Walsh (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

No matter where they come from or where they work, workers just deserve protection in this country. That is a fundamental value of this government and it's a fundamental value of the Australian people. So, when we hear that so many recent migrants are paid less than the minimum wage and that employers are making threats of phone calls to Australian Border Force if those workers speak out, we know that there is something inherently broken in our labour laws in this country. This bill, the Migration Amendment (Strengthening Employer Compliance) Bill 2023, tackles that exploitation head on. It makes it a crime to exploit someone at work based on their migration status. Employers doing the wrong thing will face tougher penalties, and employers in breach of these laws will be restricted from being able to hire more temporary migrant workers. Really critically, we're scrapping that part of the Migration Act that penalises workers for speaking up, and, by putting in place appropriate protections from visa cancellation, we will support workers to speak up and to speak out and to report exploitation, because workers should never be punished for speaking up about the wrongdoing of employers.

This bill is not only about fairness in the workplace; it's also better for the economy as a whole, because wage theft and exploitation of vulnerable migrant workers is a threat to our economy. It's a threat to a competitive economy. It actually harms businesses that are trying to do the right thing. It harms businesses that want to see a level playing field in labour standards. It also undermines our trust in the migration system.

I want to acknowledge the story of Felisia, who has spoken out about the exploitation that she faced as a temporary migrant worker. She came here on a temporary visa and she was underpaid from day one. She was asked to stay late at work without pay, and she also experienced bullying and harassment at work, which we know is just all too common for temporary migrant workers, particularly women. Felisia was too scared initially to speak out and complain, in fear of what would happen to her visa. So, when she was dismissed and lost her job, she was unable to bring forward an unfair dismissal claim.

These stories are just way too common in a country that prides itself on a fair day's pay work for a fair day's work. These stories show that the abuse of temporary migrant workers is chronic in our workplaces. I know this. I saw it every day in my previous role before I came to the parliament, representing some of Australia's most vulnerable workers.

So, for the first time in a decade, we are finally making a significant change to prevent the exploitation of migrant workers in this country, migrant workers who contribute to our country every day, often doing the most essential forms of work that we all rely on. We need to make sure that temporary migrant workers are afforded the same protections as all Australians and that they're afforded the protections that they deserve to make that contribution to our community and also to be able to support themselves and their families and to be able to work with dignity in this country. The Australian community expects nothing less as well. This bill is an important contribution to preventing the exploitation of migrant workers, and I commend it to the chamber.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

I agree with most of the contributions which have been made in the Senate in relation to the Migration Amendment (Strengthening Employer Compliance) Bill 2023, and I think there is broad support across this chamber generally in relation to the need to protect our migrant workers against exploitation and against, effectively, blackmail, where unscrupulous employers seek to use someone's immigration status against them in terms of coercing more work out of them, in terms of wage theft and in terms of engaging in a whole raft of practices.

At the outset, I would like to thank the department of immigration in relation to taking on board the constructive additional comments—and which I'll certainly put forward in this sense—which I provided as deputy chair of the committee. I think the amendments definitely enhance the legislation and I think they address one of the concerns that I raised—that there needed to be further detail provided with respect to a number of matters in the bill as opposed to leaving it in regulation. So I think we actually do have a better piece of legislation because of the work which the members of the department have undertaken, through the minister, in relation to the legislation. They should certainly be commended for that and hopefully will convey it to everyone involved.

Those matters included the following. I'll go through the additional comments which I provided in relation to this bill. The first was in relation to the need to make sure that sufficient resources are provided to educate employers as to their responsibilities under this new piece of legislation. This piece of legislation is going to introduce a range of compliance measures and a range of obligations upon employers—as it should do—in order to protect vulnerable migrant workers. But the quid pro quo of that needs to be that information is provided to those employers. The new regime comes into effect on 1 July. It is now early February, so there are only five months in which to provide that education to employers. So we will be looking very carefully to make sure that the department engages in the educational process that it needs to to make sure employers are across all the detail as to how to comply.

The second point I raised in relation to the legislation, which is contained in the additional comments I provided, was in relation to the need for the criteria to be specified as to the minister would take into account in considering whether or not an employer should be deemed or found to be a prohibited employer. I'm very pleased that item 20 of the amendment schedule actually does address that issue in very appropriate terms. Similarly, item 21 of the government's amendments addresses the issue with respect to the period for which an employer may be prohibited from engaging in hiring migrant workers. So, again, I think that was entirely appropriate, and again I commend the department in relation to taking onboard those constructive proposals and a number of other detailed amendments which I think enhance the legislation.

Finally, I want to, from the bottom of my heart, thank those migrant workers who shared their personal stories in relation to their experiences. Out of respect to them and out of respect to the civic organisations that provided evidence to the committee, which had its hearing in Brisbane, I want to place on the record some quotes from each of them, as a sign of respect and thanks to each of those workers. Firstly, Ms Jed Pica, a former international student who worked at a cafe, said:

Even in my case, when I found out that my employer was threatening me, I felt so ashamed. I thought that I had done something wrong, by working cash in hand. I really thought that, if he reported me to immigration, I would not know what to say. That is why I didn't take my case any further to the Fair Work Commission.

Well, I say to you, Jed, you should not be ashamed at all; you should be proud, and your family should be proud, that you spoke out about the situation you were put in.

Mr Bishal Sapkota, an international student who worked as a cleaner in Canberra, explained to the committee that a visa:

… is not just a legal piece of paper. It is hope for our parents, our dreams for the future and our path to make a better life.

Again, to you, Bishal: thank you so much for the evidence you provided to the committee. Thank you for speaking out on behalf of vulnerable migrant workers. And you and your family should be proud of the contribution you've made.

Finally, Mr Massimo Calosi, a migrant who worked as a chef in Melbourne, echoed the views of the other migrant workers:

The common factor, though, that stopped me and my fellow migrant workers from speaking up was the fear of having our visas cancelled. As it stands, that is literally a weapon that is getting used recklessly against workers by bad bosses.

Again, thank you, Massimo, for speaking out. And Massimo has actually become an activist, a supporter and advocate, for workers in similar situations. So, again, from the bottom of my heart, I commend you, Massimo, on the work you've done. With those words, I will say that I do agree with Senator McKim that we need to watch this space very carefully to make sure—and assurances were provided by the department—that workers in these vulnerable situations will not have their visas cancelled as a result of their being put in impossible situations by their employers. But I do commend the minister and the department and all those who participated in this inquiry.

Tony Sheldon (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I congratulate both the senators who spoke previously on what they've said in a positive regard about the Migration Amendment (Strengthening Employer Compliance) Bill 2023, because it's extremely important. I just came in at the tail end of Senator Scarr's comments, and those reflections that I heard I certainly very much support as well.

The widespread exploitation of migrant workers in this country has been widely understood for many years. In 2015 the Senate Education and Employment Committee conducted an inquiry into the treatment of temporary work visa holders, and the final report was titled A national disgrace: the exploitation of temporary work visa holders. In 2016 the Migrant Workers Taskforce was established to look into these issues. In 2018 the Fair Work Ombudsman's harvest trail inquiry reported a culture of noncompliance in the horticulture sector when it comes to—

Debate interrupted.