Key points
- The Migration Amendment (Strengthening Employer Compliance) Bill 2023 (the Bill) amends the Migration Act 1958 with the purpose of strengthening employer compliance measures and protecting temporary migrant workers from exploitation, including through implementing Recommendations 19 and 20 of the 2019 Report of the Migrant Workers’ Taskforce.
- In support of this purpose, the Bill introduces criminal offences for employers who coerce temporary migrant workers into working in breach of their visa conditions, and establishes a mechanism to prevent such employers from employing additional migrant workers for a period of time.
- In addition, the Bill provides measures to deter employers from exploiting temporary migrant workers, including mechanisms to encourage voluntary compliance and increased penalties for breaches of relevant workplace laws.
- The Bill also introduces amendments designed to remove some of the disincentives for temporary migrant workers to report exploitation, where currently they may fear their visa status would be in jeopardy if they did so.
- The Bill includes some measures contained in the Migration Amendment (Protecting Migrant Workers) Bill 2021, which was introduced by the previous Coalition Government but which lapsed at dissolution prior to the 2022 election.
- The Bill is part of a ‘package of measures’ on migrant worker exploitation the Government has announced, some of which are being implemented through the passage of legislation and some through other processes.
- While at the time of writing, there had been little public commentary on the Bill itself, the issue of temporary migrant worker exploitation has been the subject of ongoing stakeholder comment and a number of recent reports calling for government action.
Introductory Info
Date introduced: 22 June 2023
House: House of Representatives
Portfolio: Home Affairs
Commencement: Sections 1 to 3 commence on Royal Assent. Schedule 1 commences on the earlier of a day to be fixed by Proclamation, or 12 months after Royal Assent.
Purpose and
structure of the Bill
The purpose of the Migration
Amendment (Strengthening Employer Compliance) Bill 2023 (the Bill) is to
amend the Migration
Act 1958 (the Migration Act) to strengthen employer compliance
measures in relation to protecting temporary migrant workers from exploitation,
including through implementing Recommendations 19 and 20 of the 2019 Report of the
Migrant Workers’ Taskforce.
The Bill consists of one schedule, comprised of 6 parts. In
particular, the Bill will:
- introduce
criminal offences for an employer who unduly influences, pressures, or coerces
a non-citizen into breaching a work-related condition of their visa or
accepting an exploitative work arrangement (Part 1)
- establish
a mechanism for prohibiting an employer from employing additional temporary
migrant workers for a period of time if they have been found to breach relevant
migration and workplace-related laws (Part 2)
- increase
the maximum criminal and civil penalties for work-related breaches of current
provisions of the Migration Act, intended to act as a deterrent to
employers from using exploitative practices (Part 3)
- expand
the provision for the use of enforceable undertakings and introduce provision
for issuing compliance notices for suspected breaches of work-related
provisions of the Migration Act, intended to provide additional tools to
encourage voluntary employer compliance (Parts 4 and 5)
- repeal
section 235 of the Migration Act, which currently provides that it is a
criminal offence for a temporary visa holder to breach a condition of their
visa that restricts the work they may do, or for an unlawful non-citizen to
undertake any work (Part 6)
- amend
section 116 of the Migration Act (power to cancel a visa) to expand the
scope for which the regulations may prescribe matters to which the minister may
have regard in relation to the cancellation of visas. The Government states
that this is intended to provide for codification of the Assurance
Protocol, but this would extend to other matters (Part 6).
Background
The Government announced
on 5 June 2023 that it would introduce the legislation ‘in the coming
weeks’ as part of ‘a package of measures that target employers who seek to
exploit temporary visa holders and ensure workers can speak up without fear of
reprisal’. On the same day, the Minister for Immigration, Citizenship and
Multicultural Affairs, Andrew Giles, gave a speech
at the Victorian Trades Hall in which he outlined the measures in the forthcoming
Bill and other initiatives aimed at addressing migrant worker exploitation.
Migration
Amendment (Protecting Migrant Workers) Bill 2021
The minister noted in his speech that some of the measures
in the current Bill were included in a Bill introduced by the previous
Coalition Government. That Bill was the Migration
Amendment (Protecting Migrant Workers) Bill 2021 (the 2021 Bill) which was
introduced on 24 November 2021 but was not debated. A Bills
Digest was prepared for the 2021 Bill, and the present Bills Digest draws
in part on its content. The 2021 Bill was referred
to the Senate Legal and Constitutional Affairs Legislation Committee on 25
November 2021. The committee
report was tabled on 18 March 2022. The 2021 Bill lapsed at
dissolution prior to the 2022 election.
The committee report’s first
chapter contains background on the Migrant Workers’ Taskforce and its
report and other relevant parliamentary inquiry reports. The second
chapter summarises stakeholder responses to the 2021 Bill. Key issues
identified were:
- the effectiveness of the bill in the absence of broader reforms
to support migrant workers;
- uncertainty in definitions and scope of the bill’s work-related
offence provisions;
- uncertainty in the scope and application of the bill’s prohibited
employer declaration and associated offence provisions;
- concerns regarding flexibility in relation to the bill’s proposed
new requirements for use of Visa Entitlement Verification Online (VEVO) system;
and
- adequacy of existing enforcement efforts. (p. 9)
The committee report recommended that the 2021 Bill be
passed. Additional
comments by Labor senators supported ‘the intent of the bill’ but
recommended amendments be made ‘to ensure that it is as robust as it needs to
be to achieve its own stated objectives’ (p. 39). The Greens’ additional
comments also outlined amendments, stating that the Bill did not address
‘many significant problems’ identified by the Migrant Workers’ Taskforce and
subsequent public debate (p. 49).
Migrant
Workers’ Taskforce
The Migrant Workers’
Taskforce was established in 2016 to identify proposals for improvements in
law, law enforcement and investigation, and other practical measures to
identify and rectify cases of migrant worker exploitation. The taskforce was
chaired by Professor Allan Fels and included members from a wide variety of
government agencies. Its report was presented to the Government in February
2019 and publicly released on 7 March 2019, along with the Government’s
response. The report made 22 recommendations and the then Coalition Government
accepted in principle all 22 recommendations.
The report highlighted several factors which may contribute
to migrant workers’ 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 some working locations
- business
models that rely heavily on labour hire companies
- franchise
models that make it difficult for franchisees to run a profit without
underpaying wages (pp. 36–37).
As with the 2021 Bill, the current Bill responds to the
2019 Report
of the Migrant Workers’ Taskforce. Specifically, it implements Recommendations
19 and 20:
- 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.
- 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.
The Migrant Workers’ Taskforce made Recommendations 19 and
20 in the context of allegations that some employers were exploiting the
restrictions or work requirements of some temporary visa holders (pp. 121–123).
The 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.
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 exacerbated 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 (for example, limitations
on the number of hours that may be worked). 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 workers under the Pacific
Australia Labour Mobility (PALM) scheme, also tend to work in low-skilled
sectors, often in remote areas, which increases their vulnerability to
exploitation.
Recent
developments
The current Labor Government has
committed to implementing the report’s recommendations. The 2021
Labor Party policy platform does not explicitly mention the report of the
Migrant Workers’ Taskforce but it does set out a range of measures intended to
address migrant worker protections (p. 121). The Labor Party’s 2022 election
commitments mention implementing the recommendations of the Migrant Workers’
Taskforce in the policy on ‘Labor’s
Plan to Build a Stronger Pacific Family’, which included initiatives to
improve workplace standards for temporary workers in Australia under the Pacific Australia Labour Mobility (PALM)
scheme.
The commitment to implement the taskforce’s
recommendations is also noted in the Outcomes
of the Jobs and Skills Summit in September 2022 as an ‘existing
commitment’, to which the Jobs and Skills Summit outcomes added progressing ‘a
package of reforms to address migration [sic] worker exploitation during 2023’
(p. 4).
The Government is progressing or has announced other initiatives
on migrant worker exploitation, some of which have been implemented through the
passage of legislation and some through other processes.
The independent Review
of the Migration System Final Report, presented to the Government in
March 2023, identified 3 main factors contributing to migrant workers’
vulnerability to exploitation (pp. 81–82):
- Temporary status means a migrant does not have an ongoing
right to stay in Australia and can be subject to visa cancellation and
deportation if visa conditions are breached or become ineligible for a further
visa if visa settings are changed.
- Visa conditions can increase the risk of migrant
exploitation by regulatory conditions driving power imbalances between
employers and migrants. Restrictions on a visa holder’s ability to change
employers and dependence on an employer’s continued support to access the
Australian labour market and, perhaps, eventual pathways to permanent
residence, limit a migrant worker’s capacity to resist, report or leave
exploitive situations.
- Migrants’ characteristics, including a lack of local
networks, potentially lower English proficiency, a lack of familiarity with
Australian workplace laws, remedies, or standards of behaviour also make them
potentially more vulnerable.
The report notes the review ‘has not been specifically
requested to consider the issue of how to combat the apparent widespread
exploitation of temporary migrant workers and is conscious that the Government
has other processes underway in this area’ but suggests a range of measures as
part of ‘a risk-based approach to managing temporary labour migration’ (p. 81).
The report notes that one of the processes underway was an
inquiry by former Victorian police commissioner Christine Nixon into exploitation
in the visa system. As at the time of writing of this Digest, the report of
that inquiry had not been made public, with the Minister
for Home Affairs stating on 30 May 2023 that the Government was ‘considering
the recommendations’ and would release it ‘shortly’ along with the Government’s
response.
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 31
August 2023. Details of the inquiry are at the inquiry
homepage.
Senate
Standing Committee for the Scrutiny of Bills
The committee has not reported on the Bill at the time of
writing.
Policy
position of non-government parties/independents
At the time of writing, no non-government parties or independents
appear to have commented on the Bill. Refer to the Background section above for
context regarding policy positions on the Migration
Amendment (Protecting Migrant Workers) Bill 2021.
Position of
major interest groups
At the time of writing, there has been little public
commentary on the Bill itself.
On 5 June 2023, following the Government’s
announcement and the minister’s
speech regarding the forthcoming introduction of the legislation, the Human
Rights Law Centre and the Migrant Justice Institute issued a media
release. The statement welcomed the Government’s commitments as potentially
‘a game-changer for stopping the exploitation of migrant workers in Australia’ but
that ‘in order to be effective, visa-based protections must be robust and
reflect the realities of migrants’ lives at work’. At that time, the text of the
Bill had not been made public and the statement related to the broader set of government
initiatives on migrant worker exploitation.
The Migrant Justice Institute and the Human Rights Law
Centre had issued
a report in February 2023 calling on the Government to address migrant
worker exploitation through protections for whistleblowers, in particular:
(1) stronger legislative safeguards against visa cancellation
for whistleblowers during a migrant worker’s stay and (2) a new short-term visa
to enable migrant workers who are at the end of their stay to remain in
Australia to pursue a civil labour claim against their employer.[1]
The report lists endorsement by around 40 community
organisations, unions, legal service providers and other bodies.
The Grattan Institute published a
report on prevention of migrant worker exploitation in May 2023. It proposes
reforms across 3 broad areas, including that ‘workplace and migration laws must
be strengthened and better enforced to deter exploitation’. Specific
recommendations include increasing penalties, and introducing criminal penalties,
for employers who underpay workers or employ workers in breach of visa
conditions.[2]
The Bills
Digest for the 2021 Bill summarises stakeholder commentary on the exposure
draft of that Bill and stakeholder
submissions to the Senate Legal and Constitutional Affairs Legislation
Committee’s inquiry on the 2021 Bill as introduced.
Financial
implications
The Explanatory
Memorandum notes that the Government has allocated $50 million over 4 years
to support immigration compliance and enforcement and to implement the measures
in the Bill (p. 4). This funding was announced in the 2023–24 Budget (Budget
paper no. 2, p. 162: $50 million over 4 years from
2023–24 and $15.3 million per year ongoing).
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011, 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.[3]
In the Government’s assessment (Explanatory
Memorandum, p. 93), the Bill engages the following rights:
- the
right to work and the right to just and favourable conditions of work –
Articles 6 and 7 of the International
Covenant on Economic, Social and Cultural Rights
- the
right to freedom from slavery and servitude – Article 8 of the International
Covenant on Civil and Political Rights (ICCPR)
- the
right to a fair trial and criminal process rights – Articles 14 and 15 of the
ICCPR
- the
right to privacy – Article 17 of the ICCPR
- the
right to equality before the law and non-discrimination – Article 26 of the
ICCPR
- rights
relating to the expulsion of aliens – Article 13 of the ICCPR.
The Explanatory
Memorandum argues that the measures in the Bill are compatible with human
rights ‘as they protect the human rights of vulnerable migrant workers in
Australia’ and ‘strengthen employer compliance and support the protection of
migrant workers from worker exploitation’ (p. 102). The Government considers
that to the extent that the proposed measures may limit human rights, those
limitations are reasonable, necessary and proportionate to the objective.
Parliamentary
Joint Committee on Human Rights
The Committee has not reported on the Bill at the time of
writing.
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.[4]
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);[5]
or allows a person to work, or refers a person for work, in breach of the
work-related conditions on their visa.[6]
The amendments in Part 1 of the Bill will implement Recommendation
19 of the Migrant
Workers’ Taskforce report: that the government develop 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’.
The amendments additionally address other issues identified by the Migrant
Workers’ Taskforce (p. 123) 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 work requirements for a
subsequent visa) or to avoid an adverse effect on their immigration status or
presence in Australia (such as being reported to the Department of Home
Affairs), whether or not they have a valid visa.
Part 1 of the Bill will expand the current provisions of
Subdivision C to include situations in which a person knowingly or recklessly coerces
or exerts undue influence or undue pressure on:
- a
lawful non-citizen to work in breach of work-related visa conditions (proposed
section 245AAA)
- an
unlawful non-citizen to work to avoid an adverse effect on their continued
presence in Australia (proposed section 245AAB)
- a
lawful non-citizen to work to avoid an adverse effect on their immigration
status or to avoid being unable to acquire the required information or
documents regarding their work for visa purposes (proposed section 245AAC).
The maximum penalty for each offence will be 2 years
imprisonment, or 360 penalty units, or both (proposed subsections 245AAA(2),
245AAB(2) and 245AAC(2)).[7]
The Bill also provides for a civil penalty of 240 penalty
units for each offence (proposed subsections 245AAA(4), 245AAB(4)
and 245AAC(4)). Unlike the criminal offences however, it is not
necessary to prove a persons state of mind (intention, recklessness) (notes
to proposed subsection 245AAA(4), 245AAB(4) and 245AAC(4)).
Part 2 –
Prohibited employers
Item 5 of Part 2 inserts proposed Subdivision E
in Division 12 of Part 2 of the Migration Act. Proposed Subdivision E
provides that the minister may declare a person to be a ‘prohibited employer’
for a specified period of time.[8]
Prohibited employers will not be permitted to employ any additional temporary
migrants while their prohibited status is in effect.[9]
This implements Recommendation 20 of the Migrant Workers’
Taskforce report: that the Government ‘exclude employers who have been
convicted by a court of underpaying temporary migrant workers from employing
new temporary visa holders for a specific period’.
The provisions in Part 2 of the Bill go further than this recommendation
in that the prohibitions will apply to employers who are found to have breached
a wider range of obligations than underpayment.
Proposed section 245AYK establishes the power for
the minister to declare a person to be a prohibited employer. Proposed subsection
245AYK(1) provides that the minister may declare a person who has become
subject to a migrant worker sanction (see below), to be a
prohibited employer if the person was made subject to the migrant worker
sanction within the previous 5 years. There is a separate 5 year
period each time a person becomes subject to a migrant worker sanction.[10]
Proposed subsection 245AYK(3) provides that the minister
must give the person written notice before making the declaration and invite
the person to make a written submission in response as to why the minister
should not make the declaration. In deciding whether to make a declaration, the
minister must consider any written submission received from the person within
the required timeframe (a minimum period of 28 days, proposed subsection
245AYK(4)), and any criteria prescribed for this purpose (proposed subsection
245AYK(5)). According to the Explanatory
Memorandum, the criteria that could be set out in the regulations for this
purpose might include the seriousness of the offence, and employer’s past
conduct or history of non-compliance, the impact on the migrant worker or other
migrant workers employed by the employer, and the impact a prohibition might
have on the employer’s business or the broader community (p. 87).
A decision to declare someone a prohibited employer may be
reviewed by the Administrative Appeals Tribunal (proposed subsection 245AYK(9)).
Migrant
worker sanctions
Proposed sections 245AYE to 245AYJ set out
when a person is subject to a migrant worker sanction. These circumstances
are:
- when
a bar has been placed by the minister on an approved work sponsor under
existing paragraph 140M(1)(c) or (d) of the Migration Act, or an
approved work sponsor has failed to comply with a compliance notice under proposed
subsection 140RB(5) (inserted by Part 5 of the Bill; see below) (proposed
section 245AYE)
- when
a person is convicted of a work-related offence (as defined in subsection 5(1)
of the Migration Act),[11]
certain offences against the Criminal Code
(relating to actions such as slavery,
forced labour and human trafficking), or certain offences against the Fair
Work Act or a relevant workplace law, to be set out in the regulations (proposed
section 245AYF)[12]
- when
a person is in contravention of certain civil penalty provisions, namely contravention
of a work-related provision of the Migration Act or contravention of certain
relevant workplace laws, to be set out in the regulations (proposed
subsections 245AYF(2) and (3) and proposed section 245AYG)[13]
- when
a person is in contravention of certain civil remedy provisions of the Fair
Work Act, including a relevant fair work provision of the Fair Work Act,
a remuneration-related matter, or relating to certain fair work (FW) orders (proposed
section 245AYH; definitions of ‘relevant fair work provision’,
‘remuneration-related matter’ and ‘FW order’ are
set out in proposed section 245AYB)
- when
a person is in contravention of an enforceable undertaking issued under the
Fair Work Act in relation to a relevant fair work provision, a
remuneration-related matter, or certain FW orders (proposed section 245AYI;
see Part 4 below regarding enforceable undertakings)
- when
a person has failed to comply with a compliance notice issued under the Fair
Work Act in relation to a remuneration-related matter or advertisement of
rates of pay (proposed section 245AYJ; see Part 5 below regarding
compliance notices).
As per proposed subsection 245AYK(1), having a migrant
worker sanction in place allows for the minister to declare a person to
be a prohibited employer.
Consequences
for prohibited employers
Proposed section 245AYL provides that a prohibited
employer may not allow, or have a material role in allowing, a non-citizen
(other than a permanent visa holder but including an unlawful non‑citizen)
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.
The meaning of ‘allows a non-citizen to begin work’
is given in proposed section 245AYC. The meaning of ‘work’
is given in proposed section 245AYB as ‘any work, whether for reward or
otherwise’.
Proposed subsection 245AYL(2) creates an offence
with a penalty of 2 years imprisonment or 360 penalty units, or both,
while proposed subsection 245AYL(3) provides for a civil penalty of 240
penalty units. With regard to the criminal offences, it is necessary to prove a
person’s state of mind (intention, recklessness, proposed subsection
245AYL(3)). However, it is not necessary to prove a person’s state of mind
in relation to a civil penalty (note to proposed subsection 245AYL(4)).
Proposed subsection 245AYM(1) provides that the
minister must publish the details of a prohibited employer on the department’s
webpage. The details must include the prohibited employer’s name, ABN (if
applicable), the reason they have been declared a prohibited employer, the period
the declaration is in effect, and any other information considered necessary to
identify the employer. Proposed subsection 245AYM(3) provides that the information
published must not include personal information about anyone other than the
prohibited employer.
Proposed section 245AYN provides that after the
declaration period ends and a person stops being a prohibited employer, they
must, for the following 12-month period, report on any new temporary migrant
workers they employ. Proposed subsection 245AYN(2) sets out that the
information that must be supplied to the department within 28 days of the non-citizen
worker’s start date includes the non-citizen’s name, the work they will be
doing, kind of visa they hold and its work related conditions (if any), and a
commitment that the non-citizen will not be in breach of those conditions. Other
information may be set out in the regulations, however, any personal information
so prescribed must be reasonably necessary for compliance purposes (proposed
subsection 245AYN(4)). A civil penalty of 48 penalty units is set for
breaches of the reporting requirements (proposed subsection 245AYN(3)).
Items 7 to 12 provide 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 the relevant items, though the conduct leading to the sanction may occur
before, on or after commencement of the relevant item.
Part 3 – Aligning
and increasing penalties for work-related breaches
Part 3 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 in the Migration
Act and Migration
Regulations 1994.
The Explanatory
Memorandum states that the increased penalties are intended to:
…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. (p.
50)
Items 13 to 25 amend existing civil penalty
provisions and related offences in the Migration Act to increase the
maximum penalty units that apply. 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. Tables 1.1 and 1.2 in the Explanatory
Memorandum (pp. 51–52) set out the increases in the maximum civil penalties
and offences compared with the current penalties. The proposed pecuniary increases
for civil penalties more than double the existing penalties, in most cases rising
from 60 or 90 penalty units to 240 penalty units. The proposed penalties for
offences provide for a pecuniary penalty of between 360 or 900 penalty units (depending
on the offence) instead of, or in addition to, the current terms of
imprisonment.
Part 4 – Enforceable
undertakings
Part 4 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.[14]
Breaches of enforceable undertakings may be the subject of court action and
orders.[15]
Enforceable undertakings may already be used for breaches
of sponsorship obligations under the Employer Sponsorship Framework set out in
the Migration Act (section 140RA) and Migration Regulations. 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 26 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
commenced on 1 October 2014 and as described on the Attorney
General’s website, ‘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’. The Regulatory Powers Act only has effect
where Commonwealth Acts are drafted or amended to trigger its provisions.
Proposed subsection 245ALA(1) provides that 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
(as inserted into subsection 5(1) by item 6 in Part 2 of the Bill).
The Explanatory
Memorandum states that this is intended to provide:
…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. (p. 61)
The enforceable undertakings will be available in relation
to conduct that occurred before the amendments commenced (that is, it applies
retrospectively, item 27).
Part 5 –
Compliance notices
Part 5 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.
Item 31 inserts proposed section 140RB into
Subdivision D of Division 3A of Part 2 of the Migration Act. This sets
out the requirements and effects of giving compliance notices in relation to
contraventions of current sponsorship obligations (current subsections 140Q(1)
and (2) of the Migration Act).
Item 33 inserts proposed subdivision F, consisting
of proposed section 245AYP, into Division 12 of Part 2 of the Migration
Act. This sets out the requirements and effects of giving compliance
notices in relation to contraventions of work-related breaches under the
conduct rule provision (current subsection 245AL(1), or proposed subsection
245AYO(1) as inserted by item 5 of the Bill (proposed Subdivision
E)), that is, a breach of a provision of current Subdivision C or of proposed
Subdivision E).
In both cases, if an authorised officer reasonably
believes a person is engaging in, or has engaged in, conduct that contravenes
the sponsorship provisions or a conduct rule provision (proposed subsections
140RB(1) and 245AYP(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 subsections 140RB(2) and 245AYP(2)).
In both cases, the compliance notice may require the
person to produce evidence of compliance with the notice (proposed
subsections 140RB(3) and 245AYP(3)), and a person who does not
comply with the notice is liable for a civil penalty of 48 penalty units (proposed
subsections 140RB(5) and 245AYP(5)).
The Explanatory
Memorandum states that the ‘introduction of compliance notices as an
additional legislative tool under the Migration Act, to deal with
non-compliance with work-related provisions’ is ‘consistent with’ the Migrant
Workers’ Taskforce’s task ‘to identify proposals for improvements in law, law
enforcement and investigation, and other practical measures to more quickly
identify and rectify cases of migrant worker exploitation’ (p. 73; see also p.
15 of the Report
of the Migrant Workers’ Taskforce).
Part 6 –
Other amendments
Amendment
to section 116 (power to cancel a visa)
Item 37 in Part 6 amends section 116 of the Migration
Act (power to cancel a visa). It repeals current subsection 116(1A) and
inserts proposed subsections 116(1A) and (1B).
Subsections 116(1)–(1AC) provide for a number of grounds
on which a person’s visa can be cancelled by the minister (or their delegate). Current
paragraph 116(1)(fa) relates specifically to student visas, and provides that
the minister may cancel a student visa if the minister is satisfied that the
holder is not, or is likely not, a genuine student, or the holder is has
engaged, is engaging, or is likely to engage, in conduct (including omissions)
not contemplated by the visa. Subsection 116(1A) then provides that the
regulations may prescribe matters to which the minister may have regard in
determining whether the minister is satisfied of the requirements set out in current
paragraph 116(1)(fa).
Proposed subsection 116(1A) expands the scope for
which the regulations may prescribe matters to which the minister may have
regard in determining whether the minister is satisfied in relation to
cancellation of visas, to include other items of section 116, specifically a
paragraph of subsection 116(1) or 1(AC), or subsection 116(1AA) or (1AB) (proposed
paragraph 116(1A)(b)).
Additionally, it allows the regulations to prescribe
matters to which the minister must, or must not, have regard with respect to the
same items (proposed paragraph 116(1A)(a)), and the weight to be given
to a prescribed matter under proposed paragraphs (a) and (b) (proposed
paragraph 116(1A)(c)).
This would enable the current arrangements under subsection
116(1A) with regard to student visas to continue (existing regulations would
remain in effect) but would also enable regulations to set out much more
broadly the matters and kinds of visas to which the minister may have regard,
or that the minister must or must not consider, when considering cancellation
of a visa.
The Explanatory
Memorandum states that this will allow the Assurance Protocol between the
Fair Work Ombudsman and the Department of Home Affairs to be codified in the
Migration Regulations, giving ‘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’ (p. 74).
The Assurance
Protocol is intended to protect temporary migrant workers who seek help or advice
from the Fair Work Ombudsman even if they have breached their visa conditions.
Under the arrangements, Home
Affairs undertakes to not cancel the visa or a worker, provided:
- they
have sought advice or support from the Fair Work Ombudsman and they are helping
it with its inquiries
- there
is no other reason to cancel the visa (such as national security, character,
health or fraud reasons)
- they
have committed to following their visa conditions in the future.
The Assurance Protocol is currently a policy arrangement.
The amendment will enable the measure to be legislated. In the second
reading speech for the Bill, the minister argues that the current arrangements
are well-intended, but not effective:
Since 2017, there have been only 79 referrals under this
initiative. Clearly it has not inspired the necessary trust among exploited
workers.
Stakeholders have told me that the reason they don’t trust
this initiative is because it is not transparent and because it is not
legislated. (p. 14)
The Explanatory
Memorandum states that the terms and conditions of the Assurance Protocol
will be subject to consultation before the relevant new regulations are made
(p. 74).
Repeal of
section 235
Item 39 repeals section 235 of the Migration Act.
Section 235 currently provides that a temporary visa holder who breaches any condition
of their visa that restricts the work they may do, or an unlawful non-citizen
who undertakes any work at all, commits an offence and is subject to a maximum
fine of 100 penalty units.
The Explanatory
Memorandum states that repealing section 235:
…is intended to have the principal effect of preventing an
employer from arguing that a migrant worker is not entitled to the same
workplace protections as other workers in Australia because of their
immigration status or right to work, and to encourage increased reporting of
employer non-compliance with workplace laws (exploitation). (p. 77)
The minister’s second
reading speech notes that ‘this criminal offence has not been prosecuted
since it was introduced over two decades ago’, but argues that its existence
discourages temporary migrant workers from reporting exploitation, ‘because if
they do so, they would be liable for prosecution for this offence’ (p. 13).
The possible influence of section 235 has been raised by
migration scholars:
The climate of insecurity in which these workers live is
intensified, at least symbolically, by the fact that working without
authorisation – whether as an overstayer, or while holding an otherwise valid
visa – amounts to a criminal offence under section 235 of the Migration Act.
The power of this prohibition is muted somewhat in light of the fact that there
is no evidence in the last 15 years of investigations or prosecutions of this
offence in Australia. But its effect may be more diffuse in that a number of
judicial officers have held that work done without authorisation by a valid
visa renders the employment contract void for illegality because it contravenes
these Migration Act offences.[16]
Repealing section 235 would mean that a temporary visa
holder contravening a work-related condition of their visa no longer commits a
criminal offence, however, other potential consequences of not complying with a
visa condition (such as visa cancellation under section 116) remain in the Act.
Item 41 inserts proposed section 245APA,
which provides that, for the purposes of a relevant workplace law, any effect
of Subdivision C on the validity of a contract of service, or the validity of a
contract for services, is to be disregarded (proposed subsection 245APA(1)).
The minister’s second
reading speech describes this as an ‘avoidance of doubt’ provision intended
to complement the repeal of section 235 and to:
…resolve potential unintended consequences associated with
breaches of work related visa conditions that may lead to the interpretation
that a 'contract of' or 'contract for' service is void—inadvertently
contributing to the abrogation of employer responsibility to provide workplace
rights and entitlements. (p. 13)
Proposed subsection 245APA(2) inserts a
definition of ‘relevant workplace law’. Item 3, noted
above, inserts a definition of the term in subsection 5(1) of the Migration
Act, which points to this proposed subsection.
Item 42 inserts a proposed note following proposed
subsection 245APA(2) to refer to new section 40B of the Fair Work
Act as amended by the Fair Work
Legislation Amendment (Protecting Worker Entitlements) Act 2023.[17]
Section 40B of the Fair Work Act provides that for the purposes of the Fair
Work Act, any effect of the Migration Act, or an instrument made
under that Act, on the validity of a contract of employment, or the validity of
a contract for services, is to be disregarded (see also the Background section
above).