Introductory Info
Date introduced: 24
November 2021
House: House of
Representatives
Portfolio: Home
Affairs
Commencement: Sections
1-3 on Royal Assent; Schedule 1 on a day to be fixed by Proclamation, or 12
months and one day following Royal Assent.
Purpose and structure of the Bill
The purpose of the Migration
Amendment (Protecting Migrant Workers) Bill 2021 (the Bill) is to amend the
Migration Act
1958 to:
- establish
new criminal offences and civil penalties that will apply where a person
coerces or exerts undue influence or pressure on a non-citizen to agree to
certain work arrangements
- introduce
a power to prohibit employers who are subject to a specified sanction from
employing additional non-citizens (other than permanent residents) for a
specified time period
- require
employers to use the Visa Entitlement Verification Online (VEVO) system to
verify prospective workers’ immigration status and work-related visa conditions
- align
and increase penalties for certain work-related offences and civil penalty
provisions and
- provide
the Australian Border Force (ABF) with regulatory powers in relation to
compliance notices and enforceable undertakings for breaches of work-related
civil penalty and offence provisions in the Migration Act.
The Bill contains one Schedule, comprised of seven Parts:
- Part
1 establishes new employer sanctions for coercing or unduly influencing a
migrant worker to accept certain work conditions
- Part
2 provides for a prohibition on certain employers employing additional migrant
workers for a specified period
- Part
3 strengthens obligations for employers to use the prescribed computer system
to verify immigration status
- Parts
4 to 6 relate to increased penalties, enforceable undertakings, and compliance
notices for work-related breaches
- Part
7 amends existing enforceable undertaking provisions in the Migration Act
in line with the new enforceable undertaking provisions contained in Part 5.
Background
The Bill forms part of the Government’s response to the
Recommendations of the 2019 Report of the
Migrant Workers’ Taskforce.[1]
Specifically, it implements Recommendations 19 and 20, which recommended:
- making
it an offence to knowingly unduly influence, pressure or coerce a migrant
worker to breach their visa conditions (Recommendation 19) and
- introducing
a mechanism to exclude employers who have been convicted by a court of
underpaying migrant workers from employing new temporary visa holders for a
specified period (Recommendation 20).
The Department of Home Affairs released an Exposure Draft
of the Bill for consultation in July 2021, along with a context paper setting
out background information on the report of the Migrant Workers Taskforce and
an overview of the measures contained in the draft Bill.[2]
The Department received 32 submissions on the Exposure Draft.[3]
Some of these are discussed further below under ‘Position of major interest
groups’ and ‘Key issues and provisions’. The Bill as introduced is
substantially the same as the Exposure Draft, with largely only minor drafting
changes. Notable differences between the Exposure Draft and the introduced Bill
are discussed below under ‘Key issues and provisions’.
Migrant Workers’ Taskforce
The Migrant
Workers’ Taskforce was established in 2016 and tasked with identifying
proposals for improvements in law, law enforcement and investigation, and other
practical measures to identify and rectify cases of migrant worker
exploitation.[4]
The Taskforce was chaired by Professor Allan Fels and included members from a
wide variety of government agencies. The report of the Migrant Workers’
Taskforce was presented to the Government in February 2019, and publicly
released on 7 March 2019, along with the Government’s response.[5]
The report made 22 Recommendations and the Government accepted
in principle all 22 Recommendations.[6]
The establishment of the Migrant Workers’ Taskforce
followed several years of media attention, and a range of inquiries, on the
issue of migrant worker exploitation.[7]
For example, in 2016 the Fair Work Ombudsman (FWO) conducted an inquiry into
the workplace practices of the 7-Eleven franchise network, which identified a
culture of non-compliance in a company with a high proportion of employees on temporary
(largely student) visas, who were particularly at risk of exploitative work
practices.[8]
Another 2016 report from the FWO looked at the wages and
conditions of people working in Australia on Working
Holiday (Subclass 417) Visas.[9]
It identified numerous exploitative practices including:
- underpayment
and/or non-payment of wages
- visa
holders offering (or being induced to offer) payment to employers and third
parties for assistance in gaining a second-year visa
- sexual
harassment and workplace health and safety issues
- employers
offering unpaid work to meet the second-year visa eligibility requirements and
- visa
holders working for free in exchange for non-certified accommodation programs.[10]
Similarly, the report of the 2016
Senate Education and Employment References Committee inquiry into the impact
of Australia’s temporary work visa programs on the Australian labour market and
on the temporary work visa holders found that exploitation was a serious
problem for temporary migrants and made several Recommendations aimed at
improving the protection of temporary migrants in the workplace.[11]
The report of the Migrant Workers’ Taskforce highlights
several factors which contribute to migrant worker’s vulnerability to
exploitation, including: limited English language skills; lack of knowledge of
workplace laws and standards; fear of visa cancellation; willingness to accept
below award wages; remoteness of working location; business models that rely
heavily on labour hire companies; and franchise models that make it difficult
for franchisees to run a profit without underpaying wages.[12]
Temporary migrant workers are often particularly
vulnerable to exploitation when their migration status is tied to their
employer, such as is the case for temporary skilled workers on a Temporary
Skill Shortage (Subclass 482) Visa. This vulnerability is exacerbated when
a temporary migrant is hoping to gain permanent residence via employer
sponsorship. Vulnerability to exploitation is also an issue for working holiday
makers and international students, for whom employment is not the primary
purpose of their visa and where the visa has restrictions placed on employment.
If these visa holders are working in breach of their visa conditions they may
not report workplace exploitation or underpayment due to fear of having their
visa cancelled. These visa holders, and seasonal workers under the Seasonal Worker and Pacific Labour
Programs, also tend to work in low-skilled sectors, often in remote areas,
which increases their vulnerability to exploitation.
Many of the Migrant Workers’ Taskforce Recommendations
related to the Fair
Work Act 2009 and the work of the FWO, and this work is being led by
the Attorney-General’s Department together with the FWO. The current Bill
implements Recommendations 19 and 20, which fall under the responsibility of
the Department of Home Affairs.
Recommendations 19 and 20 of the Report of the Migrant
Workers’ Taskforce form the basis of Part 1 (new employer sanctions) and
Part 2 (prohibitions on certain employers employing additional non-citizens) of
the Bill. The remaining Parts of the Bill deal with additional issues, which
were not the subject of specific Recommendations by the Migrant Workers’
Taskforce, but which the Minister states will ‘enhance protections for migrant
workers under the Migration Act 1958’.[13]
Committee consideration
Senate Legal and Constitutional Affairs Legislation
Committee
The Bill has been referred to the Senate
Legal and Constitutional Affairs Legislation Committee for inquiry and
report by 11 March 2022. Details of the inquiry are at the inquiry
homepage.
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
(Scrutiny Committee) reported on the Bill in Scrutiny Digest 18 of 2021.[14]
Only one concern was raised by the Scrutiny Committee,
relating to procedural fairness and the natural justice hearing rule (which
requires that a person must be given an opportunity to present their case) in
the context of the proposed power to prohibit certain employers from employing
new migrant workers for a specified period contained in Part 2 of the Bill.[15]
Proposed section 245AYK (at item 9 of Schedule 1 to the
Bill) provides that the provisions in proposed Subdivision E of Division 12 of
Part 2 of the Migration Act and sections 494A to 494D of the Migration
Act (which relate to the giving of documents to a person by the Minister
and the receipt of such documents), in so far as they relate to proposed
Subdivision E, are an exhaustive statement of the requirements of the
natural justice hearing rule in relation to the matters they deal with.
However, the Scrutiny Committee believes that this:
… could operate to exclude aspects of the natural justice
hearing rule, such as the requirement to disclose adverse information which is
not part of the proposed reasons for a decision, in circumstances where
compliance with the rule is necessary to assure fairness to affected persons.[16]
The Scrutiny Committee considered that the Explanatory
Memorandum to the Bill does not adequately justify why it is necessary to limit
the right to natural justice and requested advice from the Minister as to why
it is considered necessary and appropriate that the proposed provisions limit
the natural justice hearing rule in this way.[17]
The Scrutiny Committee also noted that ‘the courts have consistently
interpreted procedural fairness obligations flexibly based on specific
circumstances and the statutory context’ and that the Explanatory Memorandum
should include an explanation as to ‘why the level of flexibility traditionally
applied by the courts in relation to natural justice is not sufficient in this
instance’.[18]
The Minister responded that ‘the statutory processes in
Subdivision E do not abrogate the affected person's access to procedural
fairness and a fair hearing’ and set out the ways in which procedural fairness
will be maintained.[19]
The Minister also noted that proposed section 245AYK is ‘modelled on existing
provisions in the Migration Act’.[20]
However, the Scrutiny Committee did not consider the Minister’s advice an
adequate response to its concerns, noting that consistency with existing
legislation is not a sufficient justification for limiting the right to
procedural fairness, and that the Minister had not comprehensively addressed
the question of why it was necessary to exclude certain aspects of the natural
justice rule.[21]
Policy position of non-government parties/independents
At the time of writing neither the Opposition nor any of
the minor parties or independents appear to have commented publicly on the
Bill.
Position of major interest groups
As noted above, the Department of Home Affairs received 32
submissions on the Exposure Draft of the Bill, 27 of which it has published on
its website. The Senate Legal and Constitutional Affairs Legislation Committee has
published 20 submissions to its inquiry on the Bill, from many of the same
stakeholders as provided submissions on the Exposure Draft.[22]
Most stakeholders are broadly supportive of the intent of the Bill to address
the exploitation of migrant workers. However, several are concerned that the
Bill will not achieve this intent, and that it may in fact have some negative
unintended consequences for either migrant workers or employers, or both.
Several submissions, on both the Exposure Draft and the
Bill as introduced, argued that the Bill will have a negligible effect on
protecting migrant workers, particularly in the absence of increased
enforcement activity, and that it overlooks the structural and systemic drivers
of migrant worker exploitation.[23]
Some stakeholders submitted that the new provisions would need to be
accompanied by substantially increased compliance and enforcement activity in
order to achieve their desired intent.[24]
Of key concern to many is the lack of protection offered to migrant workers
reporting employers in breach of the new offence and civil penalty provisions,
and the possibility that reporting breaches could result in the migrant
worker’s visa being cancelled.[25]
Employer groups expressed some concern that the provisions would unnecessarily
increase the regulatory burden on, and create ambiguity for, employers,[26]
and may prevent employers from ensuring work-related visa conditions are
complied with.[27]
Some specific concerns with the provisions are discussed
below under ‘Key issues and provisions’. These relate largely to the provisions
in Parts 1, 2 and 3. Parts 4, 5, 6 and 7 did not attract substantive
stakeholder comment and the measures contained within them were broadly
supported.
Financial implications
The Explanatory Memorandum to the Bill states that the
Bill will have a ‘low financial impact’.[28]
Statement of Compatibility with Human
Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act.[29]
The Government has advised that the Bill engages the
following rights:
The Government considers that the Bill is compatible with
human rights as it ‘support[s] the protection of migrant workers from worker
exploitation’ and ‘to the extent that the proposed measures may limit human
rights, those limitations are reasonable, necessary and proportionate to the
objective’.[33]
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights had no
comment on the Bill.[34]
Key issues and provisions
Part 1—New employer sanctions
Part 1 of Schedule 1 of the Bill establishes new employer
sanctions within existing Subdivision C of Division 12 of Part 2 of the Migration
Act (Subdivision C), which deals with offences and civil penalties in
relation to work by non-citizens.[35]
Currently, Subdivision C creates offences and provides for civil penalties
where a person employs, or refers for employment, a person who does not have a
valid visa (that is, an unlawful non-citizen);[36]
or allows a person to work, or refers a person for work, in breach of the
work-related conditions on their visa.[37]
Part 1 of the Bill will expand this to include situations
in which a person:
- coerces
or exerts undue influence or undue pressure on a migrant worker to breach the
work-related conditions of their visa or
- coerces
or exerts undue influence or undue pressure on a migrant worker by using
migration rules—for example, coercing them to accept a work arrangement to
avoid an adverse effect on their immigration status.
The proposed amendments implement Recommendation 19 of the
Migrant Workers’ Taskforce report:
…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.[38]
The Migrant Workers’ Taskforce made its Recommendation in
the context of allegations that some employers were exploiting the restrictions
or work requirements of some temporary visas. The Migrant Workers’ Taskforce
was particularly concerned about workers on temporary visas that are not tied
to sponsoring employers (such as students and working holiday makers), and who
therefore do not enjoy the protections offered by the sponsorship framework
under the Migration Act.[39]
The Migrant Workers’ Taskforce expressed concern with
issues such as:
- reports
of employers persuading international students to work more hours than
permitted by their visa
- reports
of employers persuading international students working more hours than
permitted by their visa to accept lower rates of pay by threatening to report
the student to the ABF for working in breach of their visa conditions and
- reports
of employers exploiting the requirement for working holiday makers to complete
90 days of specified work in order to obtain a second visa, such as through
refusing to sign off on completion of the work unless certain conditions are
met or other tasks performed.[40]
However, Recommendation 19 of the Migrant Workers’
Taskforce’s report only addressed the issue of employers pressuring, coercing
or exerting undue influence on a migrant worker to breach the work-related
conditions of their visa. The Bill addresses other issues identified by the Migrant
Workers’ Taskforce by making it an offence to coerce or unduly influence or
pressure a migrant worker to accept a work arrangement in order to satisfy a
work-related visa requirement (such as meeting the work-test for a second visa)
or to avoid an adverse effect on their immigration status (such as being
reported to the ABF).[41]
Key provisions
Proposed section 245AAA will make it an offence for
a person to coerce, or exert undue influence or pressure, on a non-citizen
(that is, a visa holder) to accept or agree to a work arrangement that:
- will
be carried out in Australia, either for that person or for someone else and
- will
cause the non-citizen to breach a work-related visa condition, or there are
reasonable grounds to believe the arrangement will cause a non-citizen to
breach a work-related visa condition.
An example of conduct captured by this offence would be
where an employer threatens to cut the hours or terminate the employment of a
person on a student visa if the visa-holder does not agree to work in excess of
the hours permitted by their visa.[42]
Proposed section 245AAB will make it an offence for
a person to coerce, or exert undue influence or pressure, on a non-citizen to
accept or agree to a work arrangement that:
- will
be carried out in Australia, either for the person or for someone else and
- the
non-citizen believes, or there are reasonable grounds to believe, that they
must accept the arrangement either to satisfy a work-related visa requirement
or to avoid an adverse effect on their immigration status.
An example of conduct captured by this offence would be
where an employee has been working in excess of the hours permitted by their
visa, and requests their hours be reduced, but the employer tells them they
must continue to work the excess hours or they will be reported to the ABF for
breaching their visa conditions.[43]
The maximum penalty for each offence will be 2 years
imprisonment, or 360 penalty units (currently equivalent to $79,920), or both (proposed
subsections 245AAA(2) and 245AAB(2)).[44]
Proposed subsections 245AAA(3) and 245AAB(3)
provide that the fault element for paragraphs 245AAA(1)(b) and (c) and paragraphs
245AAB(1)(b) and (c) is knowledge or recklessness by a person as to the
effect of the work arrangement on the visa-holder’s work-related conditions on
their visa. For example, an employer who coerces a visa holder to work in
breach of their visa conditions in contravention of proposed subsection
245AAA(2) must either know that the work arrangement will breach a
visa condition, or be reckless as to that outcome. The Explanatory
Memorandum notes that this is intended to prevent an employer from relying on
ignorance as a defence, and the prosecution from having to prove that an
employer intended to cause the visa-holder to breach a work-related visa
condition—it is enough simply that they were reckless as to that outcome.[45]
However, the Bill does not specify a fault element for proposed
paragraphs 245AAA(1)(a) or 245AAB(1)(a), which establish the first
physical element of the offence—that the person coerces or exerts undue
influence or pressure on a visa holder. Hence, the default threshold is
intention.[46]
That is, the prosecution would need to show that a person intended to
coerce or exert undue influence or pressure on the visa holder.
Proposed subsections 245AAA(4) and 245AAB(4) provide
for a maximum civil penalty of 240 penalty units (currently equivalent to
$53,280) for an individual or 1,200 penalty units (currently equivalent to $266,400)
for a body corporate, as an alternative to criminal proceedings.[47]
Notes to these provisions clarify that ‘it is not necessary to prove a person’s
state of mind in proceedings for a civil penalty order’ and therefore it is
only necessary to establish that a breach has been committed, not that the
person acted with intent, knowledge, recklessness or negligence.[48]
Stakeholder comments
Risk of visa cancellation for migrant workers reporting
breaches
Among the submissions received on both the Exposure Draft
and the Bill as introduced, the key concern for groups representing workers was
the possibility of negative consequences for migrant workers reporting breaches
of the new coercion offences and civil penalty provisions. For example, the
Migrant Justice Institute (MJI), a collaboration between the University of New
South Wales and the University of Technology Sydney, pointed to substantial
evidence that temporary migrant workers are reluctant to report exploitative
work practices, and argued that without an incentive to report, this will remain
the case.[49]
The Bill does not protect migrant workers who have worked in breach of their
visa conditions from having their visa cancelled if they report coercion on the
part of their employer. This creates a disincentive to report. The MJI, and
others, argued that the Bill should include a guarantee that migrant workers
who have breached the work conditions of their visa, and who report their
employer under these provisions, will not be subject to visa cancellation on
the basis of that breach.[50]
Some employer groups also recommended that the Bill
include protections for migrant workers coming forward to report a breach of
these provisions. For example, Approved Employers of Australia, an association
representing producers and labour hire companies employing seasonal and Pacific
workers, noted the problem of ‘rogue employers’ who breach their obligations
with very little consequence.[51]
It argued that for migrant workers to feel safe reporting, or testifying
against, such employers, the Bill should include protections for workers who
speak out against these breaches.[52]
Provisions applying to people other than employers
The Law Council of Australia (LCA) has observed that the
offences and associated civil penalties established by Part 1 of the Bill could
apply to any person, not just employers or others, such as recruiters, with a
connection to the employment relationship.[53]
This is due to the drafting of proposed paragraphs 245AAA(1)(b)
and 245AAB(1)(b)), which provide that work undertaken by the visa-holder
may be carried out for the person who exerted coercion or undue influence, or
for someone else [emphasis added]. Hence, the LCA noted that the provisions
could apply to a friend, family member or acquaintance of the visa-holder,
which it believes was not the intent of the Migrant Workers’ Taskforce.
The LCA had raised this issue in its submission on the
Exposure Draft, and recommended that in the final drafting of the Bill
‘consideration be given to whether amendments are required to ensure the new
offences and penalties only apply to employers’, for example by amending the
relevant paragraphs ‘to draw some nexus between the worker and the person
applying the coercion or pressure—perhaps some reference to the second person “offering”
the work or in some way being responsible for offering or arranging the work’.[54]
The Bill as introduced does not contain any such amendments, meaning the
possibility remains that the new offences and associated civil penalties could
be applied to people who are not connected to the relevant employment
arrangement.
Part 2—Prohibition on certain employers employing
additional non-citizens
Item 9 in Part 2 inserts proposed Subdivision E,
concerning prohibited employers, at the end of Division 12 of Part 2 of the Migration
Act. Proposed Subdivision E establishes a framework empowering the
Minister to declare certain employers to be ‘prohibited employers’ for a
specified period of time. Prohibited employers will not be permitted to employ
additional (to those who are already employed) temporary migrant workers while
their prohibited status is in effect.
This implements Recommendation 20 of the report of the
Migrant Workers’ Taskforce:
… 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.[55]
The provisions in Part 2 of the Bill go further than this
Recommendation in that the temporary prohibitions will apply to employers who
are found to have breached a much wider range of obligations than simply
underpayment.
The Migration Act already provides that employers
who are approved sponsors may be barred from sponsoring additional migrant
workers as a result of breaching their sponsorship obligations.[56]
However, no such mechanism currently exists to prohibit employers who are not
sponsors, or for breaches of workplace obligation towards workers on temporary
visas which do not require sponsorship, such as student and working holiday
visas. The provisions in Part 2 aim to fill this gap.
Key provisions
Proposed section 245AYG establishes the framework
under which a person may be declared a prohibited employer:
- the
Minister may declare, in writing, a person who has become subject to a migrant worker
sanction to be a prohibited employer (proposed subsection 245AYG(1)). ‘Migrant
worker sanction’ is defined in proposed section 245AYD
(discussed below)
- such
a declaration may only be made within five years of the person being made
subject to a migrant worker sanction (proposed subsection 245AYG(2))
- before
making the declaration the Minister must write to the person advising that he
or she proposes to make such a declaration, and the reasons for it, and
inviting the person to make a written submission, within 28 days or a longer
specified time period, as to why such a declaration should not be made (proposed
subsections 245AYG(4) and (5))
- in
deciding whether to make a declaration the Minister must consider any written
submission received from the person within the required timeframe, and any
criteria prescribed by the Regulations for this purpose (proposed subsection
245AYG(6))
- the
person who is the subject of a declaration must be given a copy of the
declaration as soon as reasonably practicable (proposed subsection 245AYG(7))
- a
decision to declare someone a prohibited employer may be reviewed by the
Administrative Appeals Tribunal (proposed subsection 245AYG(10)). A note
to this subsection clarifies that people who are affected by the Minister’s decision
must be given notice of their rights to seek review.[57]
Proposed section 245AYD provides that a person is
subject to a ‘migrant worker sanction’ if they are:
- an
approved work sponsor who is subject to a bar imposed by the Minister under
paragraph 140M(1)(c) or (d) of the Migration Act
- convicted
of an offence or subject to a civil penalty order for contravention of a
work-related offence or civil penalty provision under the Migration Act or
- the
subject of an order made under the Fair Work Act for contravention of a
civil remedy provision specified in proposed section 245AYE of the Migration
Act, but only where the contravention is in relation to an employee who is
a non-citizen.
There are 18 civil remedy provisions contained in the Fair
Work Act specified in proposed section 245AYE, which cover:
- contravening
the National
Employment Standards, a modern award, an enterprise agreement, a workplace
determination, a national minimum wage order, or an equal remuneration order
- method
and frequency of payment
- unreasonable
requirements to spend or pay
- complying
with guarantee of annual earnings
- misrepresenting
employment as an independent contracting arrangement or dismissing an employee to
engage them as an independent contractor and
- employer
obligations in relation to employee records and pay slips.
While the Bill lists an additional five civil remedy
provisions to those listed in the Exposure Draft of the Bill, in some cases
only a ‘renumeration-related contravention’ of a civil penalty
provision of the Fair Work Act will result in a person being subject to
a migrant worker sanction.[58]
Proposed section 245AYH provides that a prohibited
employer may not allow, or have a material role in allowing, a non-citizen
(other than a permanent visa holder) to begin work. The wording of this section
provides that the prohibition will only apply to new employees, not to
employees who are employed by the employer prior to them becoming a prohibited
employer. It also provides that it will not apply to non-citizens who hold a
permanent visa. This is consistent with the policy intent of the Bill to
provide protections for temporary migrant workers, in line with the
Recommendations of the Migrant Workers’ Taskforce. This is a civil penalty
provision, with a maximum penalty of 240 penalty units (currently equivalent to
$53,280) for an individual or 1,200 penalty units (currently equivalent to
$266,400) for a body corporate.[59]
The prohibition does not apply in relation to work that is
‘merely incidental to a business of the person or body corporate’.[60]
This exception was not included in the Exposure Draft of the Bill. The
Explanatory Memorandum states that the intention of this exception is ‘to cover
circumstances where a person may have limited choice but to engage the services
of a non-citizen temporarily or on an ad hoc basis as an independent contractor
– for example to undertake repairs at the prohibited employer’s business
premises, or to provide occasional catering services’.[61]
The meanings of ‘work’ and ‘allows to
work’ for the purposes of proposed Subdivision E are established
by proposed section 245AYC. ‘Work’ is defined as any work, whether for
reward or otherwise, meaning this will capture voluntary work, or work done in
exchange for food or board, as well as paid work.[62]
The following arrangements are taken to meet the
definition of ‘allows’ to work:
- employment
under a contract of service
- engagement,
other than in a domestic context, under a contract of service
- participation
in an arrangement for the non-citizen to perform work, either for the person or
for another participant in the arrangement
- bailing
or licensing a chattel to a non-citizen or other person with the intention that
the non-citizen will use the chattel to perform a transportation service
- leasing
or licensing premises, or space within premises to the non-citizen or other
person with the intention that the non-citizen will use the premises to perform
sexual services or
- circumstances
as prescribed in the Migration
Regulations 1994.[63]
This provision is intended to be broad enough that it
captures traditional employer-employee relationships, as well as non-standard
arrangements which are common to industries in which migrant workers may be
vulnerable, such as construction, taxi driving, hospitality, and sex work.[64]
Contracts for services in a domestic context are specifically excluded. The
Explanatory Memorandum notes that this section is not intended to prevent
prohibited employers from engaging the services of contractors, such as
tradespeople or cleaners, in their homes where those contractors are
non-citizens.[65]
However, the exclusion is not intended to apply to domestic services in a
commercial context. The intended effect is that a prohibited employer would be
permitted to contract a non-citizen on a temporary visa to clean their home but
would not be permitted to hire that person as a domestic cleaner in a cleaning
business owned by the prohibited employer.[66]
Proposed subsection 245AYC(2) also includes a power
to make Regulations prescribing any other forms of work arrangements for the
purposes of proposed Subdivision E. This is intended to prevent
employers from developing new working arrangements that do not fit into one of
the arrangements specified in proposed subsection 245AYC(2) in order to
avoid being captured by these provisions. Any such arrangements that emerge may
be prescribed in the Migration Regulations.[67]
Proposed Subdivision E also provides that the
Minister must publish information about prohibited employers on the
Department’s website (proposed section 245AYI). This information
must include the name of the prohibited employer, the prohibited employer’s ABN
if they have one, the reason for declaring them to be a prohibited employer,
and the period for which the prohibition applies. When a person ceases to be a
prohibited employer they may once again allow non-citizens to begin work but
will be subject to additional reporting requirements for a further 12 months
(proposed section 245AYJ) and may still have their name and other
information listed on the Department’s website (proposed subsection
245AYI(6)).
Proposed section 245AYK provides that the
provisions in proposed Subdivision E, and existing sections 494A to 494D
of the Migration Act (which concern the giving of documents to a person
by the Minister and the receipt of such documents) as they relate to proposed
Subdivision E, are an exhaustive and comprehensive statement of the
requirements of the natural justice hearing rule in relation to the matters
they deal with. As discussed above, this was noted as an issue of concern by
the Scrutiny of Bills Committee. The LCA agrees with the Scrutiny Committee’s
views on this issue.[68]
Item 11 provides that the Minister may only declare
a person to be a prohibited employer where the person has been subject to a
migrant worker sanction on or after the commencement of Schedule 1 of the Bill,
though the conduct leading to the sanction may occur before, on or after
commencement of Schedule 1.
Stakeholder comments
Submissions on the Exposure Draft of the Bill generally
welcomed the establishment of a prohibited employer declaration scheme for
employers of temporary migrants, however some notable concerns were raised over
how the scheme will operate.
Exclusion of work done in a domestic context
The exclusion of work performed ‘in a domestic context’
was highlighted by the LCA and the Australian Chamber of Commerce and Industry
(ACCI) as an issue of concern in their submissions on the Exposure Draft. As
set out above, the Explanatory Memorandum states that this is to ensure that
persons who are prohibited employers may still engage non-citizens to perform
work in their house, such as hiring cleaners or tradespeople when required.
However, the term ‘domestic context’ is not defined anywhere in the Bill itself,
nor in the Migration Act.
The LCA pointed to the issue of forced labour in domestic
contexts, and questioned whether it is appropriate to exclude domestic work
performed in a person’s home from the meaning of ‘allows to work’ given the
known incidence of exploitation of domestic workers in Australia.[69]
It also noted that the Federal Court has recently accepted that the Miscellaneous
Award 2010 governs the domestic employment of a nanny and ordered a
penalty payment for breaching the terms of that award.[70]
Yet with work done in a domestic context being excluded from the employer
prohibition framework established by Part 2, persons declared to be a
prohibited employer would not be prevented from contracting the services of a
non-citizen to work as a nanny in their home.
Adverse impacts on employees and employers
Some stakeholders have noted the potential for prohibited
employer status to have an adverse effect on employees, as well as employers.[71]
In a situation where temporary visa holders are the primary labour source for a
particular employer, prohibited employer status may have a substantial impact
on an employer’s ability to hire new staff, and therefore on the business’s continued
viability. This would of course negatively impact the employer but could also
be detrimental to migrant workers who are already employed by that business.
The ACCI pointed out in its submission on the Exposure Draft that there could
also be flow on effects for towns and communities reliant on particular
employers.[72]
The Explanatory Memorandum addresses this issue, noting
that proposed paragraph 245AYG(6)(b) requires the Minister to consider
any criteria prescribed by the Regulations when deciding whether to declare
someone a prohibited employer, and anticipating that such criteria could
include matters relating to the impact on the viability of a business, and the
capacity of the business to recruit new employees.[73]
However, these criteria will be established in the Migration Regulations, not
in statute, and the provision only requires that the Minister ‘consider’ such
criteria. The Minister will not be required to give particular weight to any of
the criteria prescribed by the Migration Regulations in making a decision to
declare a person a prohibited employer.
Ministerial discretion and delegated legislation
The LCA also expressed concerns regarding the broad nature
of the Minister’s power to declare a person a prohibited employer. As discussed
above, while proposed paragraph 245AYG(6)(b) allows Regulations to
prescribe criteria that the Minister must consider, the Minister retains a
high-level of discretion in declaring persons to be prohibited employers. The
Explanatory Memorandum notes examples of the kinds of criteria that might be
prescribed in the Migration Regulations.[74]
However these examples are given ‘without limiting the criteria’, and the Bill
itself does not contain any guidance or limits on what criteria may be
prescribed.[75]
Nor is any guidance or time limit applied to the period for which the Minister
may declare a person to be a prohibited employer.[76]
The LCA argued that a principle of the rule of law
requires executive power to be defined by law, and the scope of delegated
authority to be ‘carefully confined’.[77]
It therefore recommended that the Bill be amended to provide detail around the
criteria applying to the Minister’s discretionary power, and guidance or
statutory limits around the length of time an employer may be subject to a
declaration.[78]
Part 3—Use of computer system to verify immigration status
Part 3 of Schedule 1 establishes a framework requiring a
person to use the Department of Home Affairs’ Visa
Entitlement Verification Online (VEVO) system to determine whether a person
is a lawful non-citizen, and has permission to work in Australia, either when
allowing the non-citizen to work, or referring them for work. VEVO is a
searchable database allowing visa holders, employers, educational institutions
and other registered organisations to check the visa details of persons in the
system. Organisations wishing to access VEVO must be approved by the Department
of Home Affairs, and differing levels of access are given based on business
requirements. For example, employers will be given access to information on a
visa-holder’s work entitlements, but not on their study entitlements or whether
they are eligible for Medicare.[79]
Key provisions
Item 15 repeals and replaces existing subsection
245AB(2) of the Migration Act which currently provides for an exception
to the civil penalty provision, and related offence, of allowing an unlawful
non-citizen to work contained in existing subsection 245AB(1). Currently, a
person is taken not to have contravened subsection 245AB(1) if they ‘take
reasonable steps at reasonable times’ to verify that that the worker is not an
unlawful non-citizen, including (but not limited to) using a computer system
prescribed in the Regulations, or doing any one or more things prescribed in
the Regulations.[80]
Proposed subsection 245AB(2) provides that a person
is taken not to have contravened subsection 245AB(1) if a person is, and continues
to be, reasonably satisfied that the worker is not an unlawful non-citizen on
the basis of information obtained by one of the following means:
- use
of the prescribed computer system (proposed paragraph 245AB(2)(a)).
‘Prescribed computer system’ is defined in proposed section 245APE as
‘the computer system prescribed by the Regulations’. The Explanatory Memorandum
states that it is intended that VEVO will be the prescribed system[81]
- under
an arrangement by which another person uses the prescribed computer system to
source the information, unless the first person is a ‘required system
user’ (proposed paragraph 245AB(2)(b)). Examples given under proposed
subsection 245AB make clear that this would allow a third-party
contractor or the worker themselves to use the computer system to source the
information for the employer
- by
doing any one or more of the things prescribed in the Regulations (proposed
paragraph 245AB(2)(c)). Proposed subsection 245APA provides
that if the relevant information cannot be sourced from the prescribed computer
system, for reasons beyond the person’s control, then the information may be
obtained by doing one or more of the things prescribed in the Regulations for
this purpose. The Explanatory Memorandum notes that this is intended to account
for occasions on which VEVO may be unavailable due to planned outages, or where
information on particular individuals is not available in VEVO, but does not
elaborate on what specific actions may be prescribed for this purpose.[82]
Items 16 to 18 make the same amendments to the
exceptions contained in existing subsections 245AC(2) (allowing a lawful
non-citizen to work in breach of a work-related condition), 245AE(2)
(referring an unlawful non-citizen for work) and 245AEA(2) (referring a
lawful non-citizen for work in breach of a work-related condition).
Item 19 inserts two new sections which provide that
a person must not allow a non-citizen to begin work (proposed section 245AEC)
and a person who operates a service referring other persons for work must not
refer a non-citizen for work (proposed section 245AED) unless they have
determined that the non-citizen has the required permission to work. This
determination must be based on information obtained through use of the
prescribed computer system, or under an arrangement through which another
person uses the prescribed computer system (unless the first person is a
required user). These are civil penalty provisions, for which a penalty of 48
penalty units will apply for an individual (currently equivalent to $10,656) or
240 penalty units (currently equivalent to $53,280) for a body corporate.[83] The Explanatory
Memorandum states that these provisions are intended to complement the new
defence provisions in proposed subsections 245AB(2), 245AC(2), 245AE(2)
and 245AEA(2).[84]
Many employers already use VEVO on a voluntary basis to
establish that a non-citizen has permission to work in Australia before
employing them. These provisions establish an express statutory requirement
that employers must use VEVO prior to employing a non-citizen, to
confirm their entitlement to work. In effect, every person who employs a
non-citizen, or refers a non-citizen for work through a referral service, will
be legally required to confirm through VEVO that the non-citizen has the
required permission to work. To do so, they will need to log in to VEVO
themselves; have a third-party contractor log in to VEVO on their behalf; or
have the prospective worker log in to VEVO and email them the necessary
information. However, where the information cannot reasonably be sourced from
VEVO, proposed subsection 245APA provides that information may
alternatively be obtained by doing a thing prescribed in the Regulations.
These amendments all provide that a person may not rely on
another person using VEVO for them if the first person is a ‘required
system user’. Item 20 establishes the definition of ‘required
system user’ through the insertion of proposed sections 245APB, 245APC and
245APD. Together, these provide that a required system user is:
- a
person who has been a prohibited employer within the previous 12 month period
- a
person who is included in a class of persons determined by the Minister by
legislative instrument under proposed section 245APC. An instrument made
under this provision is expressly disallowable (proposed subsection 245APC(3))
and
- a
person who is declared by the Minister under proposed section 245APD, by
written notice to the person, that they are a required system user. A
declaration to this effect, or a decision to renew a declaration, may be
reviewed by the Administrative Appeals Tribunal (proposed subsection 245APD(5)).
Stakeholder comments
The submissions that commented on Part 3 of the Exposure
Draft of the Bill were largely focused on the wording in proposed sections
245AEC and 245AED, requiring VEVO to be used before employing or referring
someone for work. In the Exposure Draft of the Bill these provisions used the
term ‘person’ rather than ‘non-citizen’, leading several submitters to point
out that this would require employers to use VEVO to check the work
entitlements of all new employees, including Australian citizens.[85]
VEVO does not include information on Australian citizens. This concern has been
addressed in the Bill as introduced, with the provisions now specifying that
these requirements only apply to the employment of non-citizens.
There was also concern that mandating the use of VEVO
would be overly onerous on employers, particularly small and family businesses
which may not be familiar with the system.[86]
The Migrant Justice Institute is of the view that
mandating the use of VEVO will do little to address the problem of migrant
worker exploitation and may in fact have negative consequences for migrant
workers. It believes that the requirements may lead to increased racial profiling
on the part of employers in the context of determining which potential
employees it should conduct VEVO checks for:
Among employers that seek to comply with Australian labour
and migration laws, the proposed provisions in Part 3 are likely to result in
targeting of job applicants from minority backgrounds for greater suspicion and
scrutiny based on their appearance or accent. In the worst case, it may lead to
preferencing of other applicants for a job due to perceived lower risk and
administrative burden in relation to VEVO checks.[87]
The ACCI also noted the possibility of employers ‘assuming
(even subconsciously) that they can minimise risk by employing or not employing
people with particular characteristics…’.[88]
Part 4—Aligning and increasing penalties for work-related
breaches
Part 4 of Schedule 1 increases the pecuniary penalties for
the existing work-related civil penalty breaches and related offences in the Migration
Act, and for breaches under the current Sponsorship Obligations Framework
in the Migration Act and Migration Regulations.
The Explanatory Memorandum states that this is ‘intended
to send a strong message to employers and other persons involved in the
employment of migrant workers that any contravention of the provisions of the Migration
Act relating to migrant workers constitutes a serious breach’.[89]
The Department of Home Affairs argued in its context paper on the Exposure
Draft of the Bill that existing penalty provisions are not providing a strong
enough deterrent for some employers, and that such penalties are seen by some
as ‘the cost of doing business’.[90]
Part 4 therefore provides for substantial increases in pecuniary penalties for
these breaches.
Items 22 to 27 and items 29 to 33 amend
existing civil penalty provisions and related offences in the Migration Act
to increase the maximum penalty units that apply.[91]
These amendments will align the penalties with those that will apply for the
new offences and civil penalty provisions proposed in Part 1 of the Bill. The
proposed amendments are summarised in Table 1.
Table 1: Summary of proposed increased penalties
|
Item number in Bill
|
Subsection of the Migration Act amended
|
Description
|
Current maximum penalty units
|
Proposed maximum penalty units
|
|
22
|
140Q(1) and (2)
|
Failing to satisfy sponsorship obligations – civil penalty
|
60 ($13,320)
|
Approved work sponsor – 240 ($53,280)
Other – 60 ($13,320)a
|
|
23
|
245AB(3)
|
Allowing an unlawful non-citizen to work - offence
|
2 years imprisonment
|
2 years imprisonment or 360 penalty units ($79,920), or
both
|
|
24
|
245AB(5)
|
Allowing an unlawful non-citizen to work – civil penalty
|
90 ($19,980)
|
240 ($53,280)
|
|
25
|
245AC(3)
|
Allowing a lawful non-citizen to work in breach of a
work-related visa condition – offence
|
2 years imprisonment
|
2 years imprisonment or 360 penalty units ($79,920), or
both
|
|
26
|
245AC(5)
|
Allowing a lawful non-citizen to work in breach of a
work-related visa condition – civil penalty
|
90 ($19,980)
|
240 ($53,280)
|
|
27
|
245AD(1) and (2)
|
Aggravated offences if a person allows, or continues to
allow, another person to work
|
5 years imprisonment
|
5 years imprisonment or 360 penalty units ($79,920), or
both
|
|
29
|
245AE(3)
|
Referring an unlawful non-citizen for work - offence
|
2 years imprisonment
|
2 years imprisonment or 360 penalty units ($79,920), or
both
|
|
30
|
245AE(5)
|
Referring an unlawful non-citizen for work – civil penalty
|
90 ($19,980)
|
240 ($53,280)
|
|
31
|
245AEA(3)
|
Referring a lawful non-citizen for work in breach of a
work-related visa condition - offence
|
2 years imprisonment
|
2 years imprisonment or 360 penalty units ($79,920), or
both
|
|
32
|
245AEA(5)
|
Referring a lawful non-citizen for work in breach of a
work-related visa condition – civil penalty
|
90 ($19,980)
|
240 ($53,280)
|
|
33
|
245AEB(1) and (2)
|
Aggravated offences if a person refers:
- an
unlawful non-citizen or
- a
lawful non-citizen in breach of a work-related condition
to a third person for work
|
5 years imprisonment
|
5 years imprisonment or 360 penalty units ($79,920), or
both
|
a The Sponsorship
Framework under the Migration Act extends to family sponsors as well as
work sponsors. Family sponsors are outside the scope of this Bill, hence the
increased penalty will only apply to approved work sponsors.
Sources: Migration Act and Migration Amendment
(Protecting Migrant Workers) Bill 2021.
Parts 5 and 6—Enforceable undertakings and compliance
notices for work-related breaches
Parts 5 and 6 of Schedule 1 establish new compliance
mechanisms for responding to breaches of the work-related provisions and
work-related offences in existing Subdivision C of Division 12 of Part 2 of the
Migration Act, which deals with offences and civil penalties in relation
to work by non-citizens. These measures were not specifically recommended by the
Migrant Workers’ Taskforce but have been included in the Bill in an effort to
enhance existing integrity measures.[92]
The Department of Home Affairs notes that enforceable undertakings and
compliance notices are used by the FWO to ‘drive behavioural change without the
need to prosecute all cases through the courts’ and argues that the use of
these measures for breaches of work-related provisions in the Migration Act
will ‘support higher levels of voluntary compliance’.[93]
Enforceable undertakings
Part 5 establishes arrangements for the Minister, or a
delegate, to enter into an enforceable undertaking with an employer, labour
hire intermediary, or other party that has breached work-related offences or
provisions under the Migration Act, including the new civil penalty and
offence provisions in Part 1. An enforceable undertaking is a written
undertaking by a person that they will take specified action, or refrain from
taking specified action, in relation to compliance with the provisions of an
Act.[94]
Breaches of enforceable undertakings may be the subject of court action and
orders.[95]
The Department of Home Affairs context paper on the
Exposure Draft of the Bill stated that enforceable undertakings could be used
‘to address conduct that may have resulted in a breach of one or more
work-related provisions in the Migration Act’ where a likely breach has been
identified, the other party is willing to voluntarily address the issue, and
they agree to take preventative actions in the future.[96]
Enforceable undertakings may already be used for breaches
of sponsorship obligations under the Employer Sponsorship Framework set out in
the Migration Act and Migration Regulations.[97]
However, not all temporary migrant workers are sponsored. These measures will
extend the use of enforceable undertakings to employers of temporary migrant
workers on visas that do not require sponsorship, such as international
students and working holiday makers.
Item 36 inserts proposed section 245ALA,
which triggers standard provisions for enforceable undertakings under Part 6 of
the Regulatory
Powers (Standard Provisions) Act 2014 (the Regulatory Powers
Act).
The Regulatory Powers Act commenced on 1 October
2014 and ‘provides for a standard suite of provisions in relation to monitoring
and investigation powers, as well as enforcement provisions through the use of
civil penalties, infringement notices, enforceable undertakings and injunctions’.[98]
The Regulatory Powers Act only has effect where Commonwealth Acts are
drafted or amended to trigger its provisions.
Proposed section 245ALA provides:
- enforceable
undertakings will be available in relation to ‘work-related provisions’ and
‘work-related offences’ as defined in subsection 5(1) of the Migration Act
(proposed subsection 245ALA(1)). The definitions of ‘work-related
provisions’ and work-related offences’ are inserted into subsection 5(1) by Item
7 in Part 2 of the Bill
- the
Minister is an authorised person for the purposes of Part 6 of the Regulatory
Powers Act (proposed subsection 245ALA(2)). An authorised
person may accept enforceable undertakings and apply to a relevant court if
they consider the undertaking has been breached[99]
- the
Minister may delegate his or her power under Part 6 of the Regulatory Powers
Act to an authorised officer, if the Minister is satisfied the authorised
officer has appropriate qualifications, training or experience (proposed
subsections 245ALA(3) and (4)), and the delegated authorised officer
must comply with any directions of the Minister (proposed subsection 245ALA(5)).
The Explanatory Memorandum states that ‘in general the delegation of the
Minister’s powers and functions will be confined to members of the Department’s
SES or ABF officers at Commander level or higher’, but acknowledges that such
powers may be delegated to certain officers below these levels from time to
time, ‘where the Minister is satisfied… that that authorised officer has the
appropriate qualifications, training or experience to exercise the power or
perform the function’[100]
- an
eligible court for the purposes of Part 6 of the Regulatory Powers Act
is a relevant court in relation to work-related provisions or work-related
offences under the Migration Act (proposed subparagraph 245ALA(6)).
The Migration Act defines an eligible court as: the Federal Court; the
Federal Circuit and Family Court (Division 2); a District, County or Local
Court, a magistrates court; or any other state or territory court prescribed by
the Regulations.[101]
Hence, any of these courts will be relevant courts for the purposes of making
orders in relation to breaches of enforceable undertakings
- an
enforceable undertaking may be published on the internet (proposed
subsection 245ALA(7))
- the
enforceable undertakings powers extend to a territory to which the Migration
Act extends (proposed subsection 245ALA(8)). A note under this
proposed subsection refers to section 7 of the Migration Act, which
provides that the Migration Act extends to the territories of Norfolk
Island, the Coral Sea Islands, Cocos (Keeling) Islands, Christmas Island, and
Ashmore and Cartier Islands[102]
- the
Minister must not apply for a civil penalty order under subsection 486R(1)
of the Migration Act (which relates to pecuniary penalties) in relation
to a contravention of a work-related provision if an undertaking in relation to
that contravention is in place and has not been withdrawn (proposed
subsection 245ALA(9)). This is intended to ensure that the Minister
does not pursue multiple enforcement mechanisms for civil penalty breaches at
the same time.[103]
Related amendments in Part 7
Section 140RA of the Migration Act already provides
for enforceable undertakings in relation to the obligations of sponsors (as
prescribed in section 140H).[104]
The provisions in proposed section 245ALA as set out above will mirror
these existing provisions in relation to relevant courts, power to publish on
the internet and extension to external territories. However, the existing
provisions do not currently provide for the Minister to delegate his or her
power and functions regarding enforceable undertakings. Part 7 of the Bill
seeks to amend this, to align the existing enforceable undertaking provisions
with proposed section 245ALA. Hence, Item 41 amends existing
section 140RA to provide that the Minister may delegate his or her power under
this section to an authorised officer if satisfied that the person has
appropriate qualifications, training or experience, and the authorised officer
must comply with any directions given by the Minister.
Compliance notices
Part 6 establishes a framework to enable an authorised
officer to issue a compliance notice as an alternative to court proceedings for
contraventions of work-related provisions of the Migration Act.
The Explanatory Memorandum states that the purpose is to
‘enhance the compliance and enforcement framework relating to the work-related
offences and work-related provisions of the Migration
Act’ (emphasis in original) and that compliance notices will ‘provide the
necessary flexibility to require a person to take specific action to address
the underlying non-compliance, based on the circumstances of the individual
case’.[105]
Item 38 inserts proposed section 245ALB into
Subdivision C of Division 12 of Part 2 of the Migration Act. Key
elements of the provision include:
- if
an authorised officer reasonably believes a person is engaging in, or has
engaged in, conduct that constitutes a work-related offence, or contravention
of a work-related provision (proposed subsection 245ALB(1)) the
authorised officer may give the person a compliance notice specifying action
the person must take, or refrain from taking, to address the conduct (proposed
subsection 245ALB(2))
- the
compliance notice may require the person to produce evidence of compliance with
the notice (proposed subsection 245ALB(3))
- the
compliance notice must set out the name of the person to whom it applies, the
name of the authorised officer, a summary of the conduct on which it is based,
an explanation that failure to comply may contravene a civil penalty provision,
an explanation of the person’s right to apply for judicial review on specified
grounds, and any other matters prescribed by regulation (proposed subsection
245ALB(4)). Rights to judicial review in the Federal Circuit and Family
Court (Division 2) are established by proposed subsection 245ALB(8)
- a
person given a compliance notice must comply with that notice, and
contravention of this requirement attracts a maximum civil penalty of 48
penalty units ($10, 656) (proposed subsection 245ALB(5))
- compliance
with a compliance notice is not taken to constitute admission to engaging in
the conduct in relation to which the notice is given (proposed subsection
245ALB(6))
- the
Minister must not apply for a civil penalty order under subsection 486R(1) of
the Migration Act (which relates to pecuniary penalties) in relation to
a contravention of a work-related provision if a compliance notice has been
given in relation to that contravention and either: the notice has not been
withdrawn and the person has complied with it; or the person has applied for
judicial review and the matter has not been completely dealt with (proposed
subsection 245ALB(7)).
Retrospective application
Item 40 provides that the compliance notice scheme
introduced by Part 6 of the Bill will apply in relation to conduct occurring
before, on, or after commencement of Schedule 1. Hence, a compliance notice
will be able to be issued with respect to a person’s conduct that has occurred
prior to the commencement of the Bill.
The LCA noted this as an issue in its submission on the
Exposure Draft of the Bill, stating that ‘laws imposing additional obligations
and consequences should be prospective unless appropriately justified’ and
recommending that justification for retrospective application be given in the
explanatory material to the Bill.[106]
The Explanatory Memorandum justifies retrospective
application of these provisions on the basis that:
Aside from the new work-related offences and civil penalty
provisions introduced in this Bill, the work-related offences and work-related
provisions in Subdivision C of Division 12 of Part 2 of the Migration Act
are long-standing, well-established provisions.
There is limited excuse for employers, labour hire
intermediaries and other parties involved in the employment of non-citizens to
be unaware of these existing provisions.[107]
The LCA submission to the Senate inquiry on the Bill
acknowledged this explanation, but noted that the provisions would still apply
retrospectively in relation to conduct captured by the new offences introduced
by the Bill, and suggested the Bill be amended so that this would not be the
case.[108]
Concluding comments
The Bill implements two key Recommendations of the report
of the Migrant Workers’ Taskforce and contains additional measures aimed at
strengthening employer compliance with obligations relating to the employment
of migrant workers. Stakeholder comments on the Exposure Draft of the Bill
indicated broad support for the policy intent, but scepticism that the measures
would achieve the desired intent. The Bill as introduced is substantially the
same as the Exposure Draft and issues concerning the efficacy and impact
(including unintended negative impacts) of the measures therefore continue to
concern stakeholders.