Chapter 1Introduction
1.1On 22 June 2023, the Senate referred the provisions of the Migration Amendment (Strengthening Employer Compliance) Bill 2023 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 31 August 2023.
1.2The referral followed a recommendation of the Senate Standing Committee for the Selection of Bills. Appendix 5 to that committee's report provided the following reason for referral:
provisions of the Bill will provide additional powers to the ABF [Australian Border Force], and without proper protections, will have the potential to further victimise vulnerable, exploited migrants.
Structure of the report
1.3The report comprises two chapters as follows:
Chapter 1 outlines the administrative details of the inquiry, background to the inquiry, and the key provisions of the bill.
Chapter 2 discusses the key issues raised by submitters and witnesses. Italso sets out the committee's views and recommendations in relation to the bill.
Conduct of the inquiry
1.4In accordance with its usual practice, the committee advertised the inquiry on its website and wrote to relevant organisations and individuals inviting submissions by 21 July 2023. The committee received 20 submissions, which are listed at Appendix 1. The committee held a public hearing in Brisbane on 21August 2023. A list of witnesses is provided at Appendix 2.
1.5Submissions and the Hansard transcript of evidence may be accessed through the committee's website. Answers to questions on notice and other material received by the committee is also available on the website.
Purpose of the bill
1.6In March 2019, the Report of the Migrant Workers' Taskforce (Taskforce) made 22 recommendations. The bill would implement the following recommendations made by the Taskforce:
Recommendation 19: It is recommended that the Government consider developing legislation so that a person who knowingly unduly influences, pressures or coerces a temporary migrant worker to breach a condition of their visa is guilty of an offence.
Recommendation 20: It is recommended that the Government explore mechanisms to exclude employers who have been convicted by a court of underpaying temporary migrant workers from employing new temporary visa holders for a specific period.
1.7In September 2022, the government 'reaffirmed its commitment to implement the recommendations' made by the Taskforce.
1.8In March 2023, the Review of the Migration System:
…found that Australia's migration system has become dominated by a very large temporary visa program, which has evolved and grown over time to meet different objectives. In particular, there has been a significant growth in temporary visa programs that facilitate the entry of lower skilled workers in lower wage industries who are often more vulnerable to exploitation. Critically, the Review also emphasised the need to engineer out exploitation in the system.
1.9On 22 June 2023, the bill was introduced into the House of Representatives by the Minister for Immigration, Citizenship and Multicultural Affairs, the Honourable Andrew Giles MP. In his second reading speech, the minister stated:
This bill enhances the ability of Australia's visa system and enforcement regime to combat worker exploitation with a particular emphasis on targeting employers and third-party facilitators who misuse our migration program and the rules designed to support it.
This bill aims to strengthen employer compliance and ensure that law‑abiding Australian employers are not undercut by unscrupulous competitors.
This bill will implement recommendations 19 and 20 of the Report of the Migrant Workers' Taskforce, and includes several additional measures.
Importantly, it will help remove barriers that stop exploited temporary migrant workers from speaking out and seeking support.
This is an election commitment of the Albanese Government. And we are keeping our word.
1.10The Explanatory Memorandum (EM) to the bill highlighted the role of migrant workers in the Australian economy and broader society:
Migrant workers make a significant contribution to Australia's labour market and are a vital part of Australia's economy and the community. They meet skills and labour shortages, and contribute a diversity of ideas and experience.
1.11Minister Giles also noted the important role that migrant workers play in Australia and remarked upon the:
…substantial contributions [that migrant workers have made] to our country.
We all witnessed this first hand during the pandemic. People who held visas stacking shelves, delivering essential care, staffing hospitals, and delivering food.
1.12He stated that '[i]t is unconscionable that some employers target these very workers as cheap and expendable labour'.
1.13The EM argued that migrant workers are at greater risk of work-related exploitation than other workers and that wider Australian society is harmed by the exploitation of migrant workers:
Migrant workers are also known to be particularly vulnerable to underpayment and related exploitative work practices, which can have negative long-term impacts on them and their families. The exploitation of migrant workers, if unaddressed, can also put downward pressure on the wages and conditions of Australian workers, which has the potential to cause broader damage to economic and labour market outcomes, particularly in migrant dominant sectors of the economy, and it can also cause damage to social cohesion. The issue of migrant worker exploitation is corrosive, and concerted action is required to ensure it does not become entrenched.
1.14Minister Giles explained that the bill recognises:
…that when people vulnerable to exploitation are mistreated, we all suffer. It recognises the contribution being made by so many workers and the importance of addressing the corrosive nature of exploitation in workplaces across the country.
Additionally, the bill acknowledges that Australia can't take for granted being a destination of choice for prospective migrants. We are in a global competition for talent.
And it is critically important for the government to demonstrate its strong commitment to addressing worker exploitation, because this is the right thing to do, and because it is squarely in our national interest.
This bill reflects the government's strong principle that approaches to employment and migration will work side by side to address exploitation. The Fair Work Act and the Migration Act will work together to protect workers, regardless of their visa status.
We cannot build our nation on the back of those being exploited.
1.15The Department of Home Affairs (Home Affairs) explained that the provisions of the bill would:
…strengthen the regulatory framework available under the Migration Act to improve employer compliance; implement recommendations 19 and 20 of the Report of the Migrant Workers' Taskforce; and seek to help to remove known barriers to reporting employer non-compliance. These measures form a critical part of a broader package of reforms to address migrant worker exploitation.
Key provisions of the bill
1.16The bill consists of one schedule with six parts. It would amend theMigrationAct 1958 (Migration Act) to:
establish new offences in relation to the exploitation of migrant workers;
introduce a prohibited employers framework;
increase the criminal and civil penalties for work-related breaches of the Migration Act;
introduce compliance and enforcement powers for the ABF in relation to work-related offences; by way of the ability to issue enforceable undertakings and compliance notices; and
introduce other measures designed to support the reporting of migrant worker exploitation.
1.17Home Affairs summarised the main purpose of the bill:
The primary purpose of this Bill is to address the misuse of migration rules to exploit temporary migrant workers and strengthen employer compliance with obligations under the Migration Act 1958. The Bill will also complement and strengthen the protection of workplace rights under the Fair Work Act 2009, which provides the framework for Australia's national workplace relations system including a safety net of minimum terms and conditions of employment.
Part 1—New offences and civil penalty provisions
1.18Part 1 would introduce three new offences and associated civil penalty provisions related to the exploitation of migrant workers. The offences arise when a person coerces, or exerts undue influence or undue pressure on:
a lawful non-citizen to breach the work-related conditions associated with their visa; or
an unlawful non-citizen to accept or agree to a work arrangement to avoid an adverse effect on that non-citizen's continued presence in Australia; or
a lawful non-citizen, other than a permanent visa holder, to accept or agree to a work arrangement in order to:
avoid an adverse effect on that non-citizen's status as a lawful non‑citizen; or
meet a work-related visa requirement.
1.19The penalty associated with the three offences would be imprisonment for two years or 360 penalty units, or both. The civil penalty that would be associated with the three offences would be 240 penalty units.
1.20According to the EM, 'the potential for a criminal penalty will act as a strong deterrent for current and future employers of non-citizens from engaging in exploitative work practices with respect to migrant workers'.
1.21Minister Giles indicated that the new offences would implement recommendation 19 of the Taskforce. He also stated that the government was 'going further' than the recommendation made by the Taskforce:
It will be a criminal offence to use a worker's visa status or a future work‑related visa requirement to coerce or unduly pressure a person into accepting an exploitative work arrangement.
The bill also includes an additional criminal offence and associated civil penalty provision for a person who unduly influences, unduly pressures or coerces an unlawful noncitizen to accept an arrangement in relation to work.
This new offence makes it clear that it is never acceptable to use a person's immigration status to exploit them in the workplace, whether they are lawful noncitizens or unlawful noncitizens.
1.22Home Affairs submitted that the 'offences provide a holistic response to recommendation 19 of the' Taskforce's report.
Part 2—Prohibited employers framework
1.23Part 2 would establish a prohibited employers framework. Under that framework, the minister would be able to declare a person to be a prohibited employer if the person was subject to a migrant worker sanction within the past five years. The EM stated that a person subject to a prohibited employer declaration would be prohibited 'from employing any additional non-citizens for a specified period'.
1.24A person would be subject to a migrant worker sanction if the minister is satisfied that the person:
is convicted of:
a work-related offence under the Migration Act;
a relevant offence under Division 270 or 271 of the Criminal Code (which relate to human trafficking, modern slavery and forced labour);
an offence against the Fair Work Act 2009 (Fair Work Act) or a relevant workplace law prescribed by the regulations;
is the subject of a court order for contravention of:
a work-related provision of the Migration Act;
the requirement to comply with a compliance notice issued under the Migration Act in relation to an alleged failure to satisfy sponsorship obligations;
certain civil remedy provisions of the Fair Work Act;
civil remedy provisions of the Fair Work Act or relevant workplace laws prescribed by the regulations;
is the subject of a bar, as an approved work sponsor, under the Migration Act's Sponsorship Framework;
has failed to comply with a compliance notice issued under the Fair Work Act for alleged contraventions of certain or prescribed provisions of the Fair Work Act; or
has contravened a term of an enforceable undertaking accepted by the Fair Work Ombudsman (FWO) under the Fair Work Act for alleged contraventions of certain or prescribed provisions of the Fair Work Act.
1.25Before a person is declared a prohibited employer, the minister must give them written notice stating the reasons for the proposed declaration. The written notice must also invite the person to make a written submission setting out the reasons why the minister should not make the declaration.
1.26The minister must consider any written submission made by the person and any prescribed matter when deciding whether to declare them a prohibited employer.
1.27If the minister declares a person to be a prohibited employer, that person must be provided with a copy of the declaration. The following information about the prohibited employer must also be published on the Home Affairs website:
(a)the name of the person;
(b)the person's Australian Business Number (if any);
(c)any other information that the minister considers is reasonably necessary to identify the person;
(d)the reasons for making the declaration; and
(e)the period for which the declaration has effect.
1.28A prohibited employer would commit an offence if they allow a non-citizen to begin work or if they have a material role in deciding to allow a non-citizen to begin work during the time period that the declaration is in effect (theprohibition period).
1.29If the person employs a lawful non-citizen within 12 months of the conclusion of the prohibition period, the person must, within 28 days of employing the non‑citizen, provide Home Affairs with written notice that:
(a)sets out the name of the non-citizen;
(b)specifies the kind of visa held by the non-citizen;
(c)specifies the work to be done by the non-citizen;
(d)if the non-citizen holds a visa that is subject to one or more work-related conditions:
(i)sets out each of those conditions; and
(ii)states that the non-citizen will not be in breach of those conditions solely because of doing that work; and
(e)sets out any other prescribed information.
1.30The person is liable to a civil penalty if they fail to provide that information to Home Affairs.
1.31Home Affairs advised that the aim of providing the information:
…is to support ongoing compliance with relevant laws by notifying the Government when they are employing additional migrant workers and reporting that they have verified any associated work-related visa conditions to ensure they are aware of their obligations.
1.32Minister Giles indicated that the prohibited employers framework would implement recommendation 20 of the Taskforce. He stated that the 'prohibition is necessary to protect workers from employers who have engaged in serious, deliberate or repeated noncompliance with their obligations'.
1.33The minister further explained that the prohibited employers framework:
…is a really significant measure. In industries where exploitation is particularly widespread—such as accommodation, food services, cleaning and construction—this is a necessary step to show that we can tackle exploitation where it is most prevalent.
It demonstrates that the Albanese government is committed to protecting workers from employers who have broken the trust of our community.
Part 3—Increased penalties for work-related breaches
1.34Part 3 would increase the criminal and civil penalties for work-related breaches of the Migration Act. According to the EM:
The increased penalties better reflect the seriousness of illegal work practices and the exploitation of temporary migrant workers, and are intended to allow for more appropriate deterrence and punishment of wilful and serious offending.
…
For pecuniary penalties to have a deterrent effect, they must be set at a level that actually deters people from contravening and offending. These increased penalties reflect the severity of the impact of a contravention on the individual temporary migrant worker directly affected by that conduct, but also the significant damage that the actions of unscrupulous employers or third parties can have on Australia's visa program integrity and its reputation as a destination of choice for prospective migrant workers. Combined with an uplift in enforcement and measures to support increased reporting, these increases should assist in changing non-compliant behaviour by employers.
1.35Home Affairs similarly submitted:
These increased pecuniary penalties reflect the severity of the impact of a contravention on the individual migrant worker directly affected and businesses who are seeking to do the right thing, as well as the significant damage that these actions can have on visa program integrity and Australia's reputation as a work destination of choice.
These increases also create greater alignment between the work-related offences available under the Migration Act.
1.36Minister Giles stated that '[i]ncreasing penalties reflects the significant damage that the actions of unscrupulous employers can have on Australia's visa program integrity and public confidence in our migration system more broadly'.
Part 4—Enforceable undertakings for work-related breaches
1.37Part 4 would make the standard enforceable undertakings powers set out in Part6 of the Regulatory Powers (Standard Provisions) Act 2014 (Regulatory Powers Act) available in relation to contraventions of work-related offences and work‑related provisions of the Migration Act.
1.38Part 6 of the Regulatory Powers Act requires the declaration of an authorised person to exercise the standard enforceable undertakings powers. For the purposes of those proposed powers, the minister would be an authorised person.
1.39The minister may, in writing, delegate those powers and functions to an authorised officer. The minister would have to be 'satisfied that the authorised officer has appropriate qualifications, training or experience to exercise the power or perform the function' before doing so. The authorised officer is also required to 'comply with any directions of the Minister' when exercising those powers or performing those functions.
1.40The EM stated that generally the minister would only delegate their enforceable undertakings powers and functions 'to members of the Department's SES [Senior Executive Service], or ABF officers at Commander level or higher'.
1.41The EM explained:
The Regulatory Powers Act provides for a standard suite of provisions that can be triggered by other Acts in relation to monitoring and investigation powers, as well as civil penalties, infringement notices, enforcement undertakings and injunctions. The standard provisions of the Regulatory Powers Act are an accepted baseline of powers required for an effective monitoring, investigation or enforcement regulatory regime, providing adequate safeguards and protecting important common law privileges.
1.42The EM further explained that the amendment:
…enhance[s] the compliance and enforcement framework relating to the work‑related offences and work-related provisions of the Migration Act. This provides another option to deal with non-compliance (by encouraging co-operative compliance) instead of pursuing court proceedings. Enforceable undertakings will provide the necessary flexibility to require a person to take specific action to address the underlying non-compliance issue based on the circumstances of the individual case.
Part 5—Compliance notices for work-related breaches
1.43Part 5 would allow an authorised officer to issue compliance notices for work‑related breaches of the provisions of the Migration Act.
1.44An authorised officer may issue a compliance notice to a person who they 'reasonably believe':
failed to satisfy their sponsorship obligations; or
contravened a conduct rule provision.
1.45The compliance notice may specify the action that the person must take or refrain from taking within a specified timeframe. It may be necessary for the person to provide 'reasonable evidence of compliance with the notice'. The person must comply with the notice and a failure to do so would result in a civil penalty.
1.46An authorised officer must not issue a compliance notice if the person has already agreed to an enforceable undertaking that has not been withdrawn in relation to the:
sponsorship obligations that they have failed to satisfy; or
work-related conduct rule provision that they are reasonably believed to have contravened.
1.47Minister Giles stated that the government recognises that 'some employers can make mistakes. That is why we are enhancing the compliance and enforcement framework in relation to work related offences under the Migration Act'.
1.48He indicated that the enforceable undertakings and compliance notice provisions of the bill would better support employers by providing an alternative to more punitive measures:
This bill will give the Australian Border Force tools to work with employers to better support them to do the right thing.
Enforceable undertakings and compliance notices will address noncompliance by encouraging voluntary compliance as an alternative to pursuing punitive court proceedings, where it's appropriate to do so.
1.49He stated that:
For too long, the consequences for doing the wrong thing have been a slap on the wrist. The chance of getting caught, far too small.
…
The ABF will be out there enforcing the law when it comes to those employers who choose to do the wrong thing.
Those who seek profit at the expense of paying workers a fair and legal wage.
Those who do the wrong thing will be found. And they will be penalised.
Part 6—Other amendments
1.50Part 6 would make several other amendments to the Migration Act that are designed to support the reporting of migrant worker exploitation.
1.51The two substantive amendments included in the bill would:
introduce a power to permit the Migration Regulations 1994 (Migration Regulations) to prescribe the matters to be considered when the minister decides whether or not to cancel a visa; and
repeal section 235 of the Migration Act (offences in relation to work).
The minister's power to cancel a visa
1.52The bill would repeal the existing subsection 116(1A) of the Migration Act. Thatsubsection states that the matters that the minister 'may have regard' to in determining whether to cancel a visa may be prescribed in the Migration Regulations.
1.53The proposed amendment would allow for any matters that the minister must, must not, or may have regard to in determining whether to cancel a visa to be outlined in the Migration Regulations. It would also 'specify the weight to be given to' those matters.
1.54The amendment would 'not limit the matters to which the Minister may have regard' when deciding whether to cancel a visa.
1.55According to the EM, the amendment to the minister's power to cancel a visa:
…will allow [for] measures such as the Assurance Protocol, which is an administrative arrangement between the FWO and the Department, to be codified in the regulations. Codifying the Assurance Protocol will give additional assurance to migrant workers that they can seek help without fear of visa cancellation, even if they have breached their work-related visa conditions. The terms and conditions of the Assurance Protocol are subject to consultation before they are prescribed under new subsection 116(1A) to ensure they are holistic and robust, while maintaining visa program integrity.
1.56Minister Giles explained:
The assurance protocol is a commitment between the Department of Home Affairs and the Fair Work Ombudsman that a worker who holds a temporary visa will not have their visa cancelled for breaching a work related visa condition if certain criteria are met.
While the intent of the protocol is positive, it has clearly failed to provide the assurance necessary to encourage people to speak up.
Since 2017, there have been only 79 referrals under this initiative. Clearly it has not inspired the necessary trust among exploited workers.
1.57Minister Giles indicated that stakeholders 'don't trust this [Assurance Protocol] initiative because it is not transparent and because it is not legislated'. Heexplained that the amendment to the minister's power to cancel a visa would allow the 'government to make regulations to legislate the protections that are currently only available under policy'.
1.58The minister stated that the proposed amendment to the power to cancel a visa would 'help give people confidence to speak out and seek help without fear of visa cancellation'.
Repeal of section 235 (offences in relation to work)
1.59The bill would repeal section 235 of the Migration Act, which outlines the following offences:
a non-citizen commits an offence if they hold a temporary visa that restricts the work they may engage in while in Australia and they contravene that condition;
an unlawful non-citizen commits an offence if they perform work in Australia for a reward or otherwise; and
a non-citizen commits an offence if there is a criminal justice certificate or a criminal justice stay warrant about the non-citizen and they undertake work in Australia for a reward or otherwise.
1.60The EM suggested that repealing section 235 would prevent 'an employer from arguing that a migrant worker is not entitled to the same workplace protections as other workers in Australia'.
1.61The EM further suggested that repealing section 235 would 'encourage increased reporting of employer non-compliance with workplace laws'. Itexplained:
The existence of section 235 has resulted in findings that certain contracts for or of service entered into by migrant workers are void for illegality and thereby enabling some employers to abrogate their obligations to provide safe and fair workplaces. Section 235 has also been cited as a reason temporary migrants refrain from reporting exploitation in the workplace.
1.62Minister Giles stated that '[f]or people who have been exploited, the Migration Act has criminalised speaking out'.
1.63He explained that section 235 'creates a criminal offence for a visa holder to work in breach of a work related visa condition or for an unlawful noncitizen to work at all'. According to the minister, 'this criminal offence has not been prosecuted since it was introduced over two decades ago'.
1.64He reported that stakeholders have told government 'that section 235 of the Migration Act has undermined the ability of workers on temporary visas to have recourse to their rights under certain workplace laws'. He stated that the government 'understand[s] that workers are afraid to speak out, because if they do so, they would be liable for prosecution for this offence'. He explained that the government 'recognise[s] that section 235 acts as a barrier for them to report exploitation'.
1.65According to the minister, the government is 'repealing this section to assist in closing this loophole that gives unscrupulous employers leverage over vulnerable noncitizens'.
Consideration by other parliamentary committees
1.66When examining a bill, the committee takes into account any relevant commentspublished by the Senate Standing Committee for the Scrutiny of Bills (the Scrutiny Committee) and the Parliamentary Joint Committee on Human Rights (PJCHR).
Senate Standing Committee for the Scrutiny of Bills
1.67The Scrutiny Committee raised issues regarding the:
use of delegated legislation to declare a person a prohibited employer;
privacy of individuals subject to a prohibited employer declaration; and
civil liability immunity provisions contained in proposed subsection 245AYM(4).
1.68The Scrutiny Committee raised concerns about the use of delegated legislation in declaring a person to be a prohibited employer. It was of the view that this power should be included in primary legislation, 'given the significant consequences that may occur upon being declared a prohibited employer'. TheScrutiny Committee suggested 'that it would have been helpful had the explanatory materials outlined examples of the kinds of circumstances that it is contemplated may be prescribed within the regulations'.
Privacy of individuals subject to a prohibited employer declaration
1.69It was not clear to the Scrutiny Committee why proposed subsection 245AYM(5) is required. That subsection states that the minister is not required to arrange for the removal of identifying information (outlined in paragraph 1.27) from the Home Affairs website once a person ceases to be a prohibited employer.
1.70The Scrutiny Committee noted that the EM stated that the 'information would be removed from the Department's website as soon as reasonably practicable after the person stops being a prohibited employer'.
1.71The Scrutiny Committee welcomed the privacy safeguards included in the bill. It suggested that further safeguards could be included in the bill, 'such as a requirement that the Minister must consider an application from an affected person to take down their personal information'.
1.72In relation to the identifying information that is required to be published on the Home Affairs website, the Scrutiny Committee recommended that 'clear non‑legislative processes [be established] to guide the appropriate use of' that information.
Immunity from civil liability
1.73Proposed section 245AYM would require the minister to publish certain information about prohibited employers on the Home Affairs website. Proposed subsection 245AYM(4) provides civil liability immunity in relation to that information, 'so long as the publication was undertaken in good faith'.
1.74The Scrutiny Committee expected that there should be sound justification for provisions that seek to provide immunity from civil liability. It acknowledged that the EM outlines that the provision of civil liability immunity 'ensures the integrity of the scheme by allowing persons to be confident that publishing information in good faith will not attract any civil liability'.
1.75The Scrutiny Committee requested advice from the Minister for Home Affairs, the Honourable Clare O'Neil MP, in relation to those matters.
1.76At the time of tabling this report, the minister had not provided her response.
Parliamentary Joint Committee on Human Rights
1.77The PJCHR considered the bill in its report of 2 August 2023.
1.78The PJCHR stated that the 'proposed measures would promote the right to just and favourable conditions of work, the absolute prohibition against slavery and servitude, and the right to equality and non‑discrimination'.
1.79The PJCHR also considered that the bill may engage and limit the right to privacy. It noted 'that the statement of compatibility does not identify the engagement of this right'. The PJCHR sought advice from Minister O'Neil in relation to whether it 'constitutes a permissible limit on the right to privacy'.
1.80The PJCHR considered that the publication of identifying information related to prohibited employers 'may also promote those human rights'. It considered that 'further information is required to assess the compatibility of this measure with this right'. To that end, it sought further advice from Minister O'Neil.
1.81At the time of tabling this report, the minister had not provided her response.
Acknowledgements
1.82The committee thanks the organisations and individuals who made written submissions and those who gave evidence at the public hearing.
Note on references
1.83In this report, references to Committee Hansard are to the proof transcript. Page numbers may vary between the proof and official transcripts.