Key provisions and issues
2.1
The Migration and Other Legislation Amendment (Enhanced Integrity) Bill
2017 (the bill) proposes to amend the Migration Act 1958 (Migration Act),
to authorise the public disclosure of sanctions taken against migration
sponsors who fail to satisfy their obligations, and clarify the merits review
rights for certain skilled visas. The bill further seeks to amend the Migration
Act, the Income Tax Assessment Act 1936 (ITA Act), and the Taxation
Administration Act 1953 (TA Act) to allow the Department of
Immigration and Border Protection (the Department), 'to collect, record, store
and use tax file numbers' for compliance activity and research.[1]
2.2
This chapter will outline the key provisions of the bill and discuss the
issues raised by the Law Council of Australia (Law Council), the Senate
Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and
the Parliamentary Joint Committee on Human Rights (Human Rights Committee).
Finally, the Committee's view and recommendations will also be discussed.
Disclosure of sponsor sanctions
2.3
Section 140K of the Migration Act sets out actions that may be taken
against approved sponsors for failing to satisfy sponsorship obligations. New
subsection 140K(4) of the bill requires the Minister to publish information,
including personal information, about an approved sponsor or former approved
sponsor who fails to satisfy a sponsorship obligation. New subsection 140K(7)
outlines that the regulations may prescribe circumstances where the Minister is
not required to publish information.
2.4
The Explanatory Memorandum (EM) notes that this proposed amendment
reflects the Government's response to the report, 'Robust New Foundations—A
Streamlined, Transparent and Responsive System for the 457 Programme' (the
457 report). Recommendation 21.2 of the report states:
That the department disclose greater information on its
sanction actions and communicate this directly to all sponsors and the
migration advice profession as well as placing information on the website.[2]
2.5
The EM explains that currently the Department is only able to release
limited information regarding breaches of sponsorship obligations and that
these current practices do not sufficiently inform the public of sponsors who
have breached their sponsorship obligations.[3]
In turn, this may act as an insufficient deterrent to sponsors that have
breached, or may breach, their obligations as well as undermining public
confidence in the Department's compliance activities in this area.[4]
In relation to the nature of information that may be published, the EM states
the following:
The Department will publish an analogous level of detail as
is currently published by the OMARA and the FWO, such as business names,
Australian Business Numbers, and specific details of their adverse compliance
outcome.
... The
publication will be appropriately limited to cases where a breach has been
substantiated and a sanction has been imposed. As such it will be confined to
cases where it is necessary to inform future potential visa holders of the
risks of accepting employment with the relevant sponsor and to cases that will
genuinely act as a deterrent to other sponsors.[5]
2.6
The Human Rights Committee outlined that the bill engages the right to
one's privacy, and while the publication of information relating to a sponsor is
likely to be for a legitimate purpose, it questioned the proportionality of
this measure on three grounds:
-
while the statement of compatibility explains that the
publication of information will be in accordance with the Australian Border
Force Act 2015 and the Privacy Act 1988, it is not clear whether
these Acts will provide an effective safeguard;
-
although the EM notes that the publication of information will be
limited to cases where a breach has been substantiated and a sanction imposed,
the wording of the bill is much more broad; and
-
neither the bill nor the EM provide any information as to
whether, and how, information can be removed from the public domain if
circumstances change.[6]
2.7
The Scrutiny of Bills Committee also raised concerns that the
information to be published was prescribed by the regulations rather than
outlined in primary legislation and while further information was contained in
the EM relating to the type of information to be published, this detail was not
provided in the bill.[7]
The Law Council noted that it was difficult to comment on the appropriateness
of the regime, to determine if it raises any privacy or other concerns, given
the proposed regulations have not been released.[8]
2.8
In its submission, the Department confirmed that the publication of
sponsor information would only occur where it has been determined that 'the
breach is serious enough to warrant the imposition of a sanction under section
140K of the Act.'[9]
Furthermore, the Department noted that in developing this measure, it consulted
with the Office of the Australian Information Commissioner (OAIC) and the
Attorney-General's Department (AGD), in addition to wide consultation for the
457 report. The Department reports that it 'is not aware of any concerns raised
by stakeholders since that time, including concerns regarding unintended
consequences of the measure.'[10]
2.9
The Department also noted the importance of this measure as a means of
deterring businesses from breaching their sponsorship obligations and thereby
protecting the wages and conditions of overseas and Australian workers.[11]
The Department explained that overseas workers may be more vulnerable to exploitation
in the workplace and this measure would assist visa applicants to make more
informed decisions about a potential employer.[12]
Natural justice hearing rule
2.10
Natural justice requires that a person who will be affected by a
decision receive a fair and unbiased hearing prior to the decision being made. New
subsection 140K(5) states that the Minister is not required to observe any
requirements of the natural justice hearing rule in publishing information
under new subsection 140K(4). The EM explains that subsection 140K(5) does not
limit procedural fairness obligations because information will only be
published under this new subsection 'once a decision has been made to take
action under current section 140K.'[13]
2.11
The Scrutiny of Bills Committee acknowledged that there may already have
been a hearing in relation to whether the Minister takes an action under
section 140K, however, it noted that the publication of information may occur
in circumstances where it is later determined on review, that the action was not
justified, and consequently there may not be 'adequate redress to a person who
has suffered damage to their reputation.'[14]
This issue was also raised by the Law Council:
While an approved sponsor can seek review of a sanction
decision under the current section 140K, there is nothing in the wording of the
proposed amendments nor the Explanatory Memorandum which indicate that
information will only be published once those merits or judicial review options
have been exhausted. That is, on the current drafting of proposed subsections
140K(4)-(7), a Minister could potentially publish information about a sponsor
being sanctioned for breaching their sponsorship obligations even if the
sponsor has sought review of that decision and the decision is still under
review.[15]
2.12
Both the Law Council and the Scrutiny of Bills Committee suggested that
the Bill be amended so that it is clear that the publication of information
about the sanctioning of a sponsor not occur until all merits and judicial
review rights have been exhausted.[16]
Minister's immunity from civil liability
2.13
Proposed subsection 140K(6) provides that no civil liability will arises
from any action taken by the Minister in good faith in publishing information
under subsection 140K(4).
2.14
The Scrutiny of Bills Committee noted that 'courts have taken the
position that bad faith can only be shown in very limited circumstance.'[17]
Further, it reported that the EM provided no explanation for this provision and
that it expects sound justification in cases where immunity from civil
liability is provided, particularly where such immunity could affect individual
rights.[18]
2.15
As explained by the Law Council, this provision is especially concerning
as the current drafting of the Bill does not clearly specify that the
publication of sanctions will only occur after review rights have been
exhausted.
For example, if a sanction
decision is ultimately set aside on review, but the publication has already
occurred, this may effectively leave the sponsor without an effective remedy.
The Law Council considers that the Minister should justify why the immunity for
civil liability is required.[19]
Retrospective application
2.16
Item 3 of the Bill outlines the amendments relating to section 140K of
the Migration Act, which apply to actions taken under that section on or after
18 March 2015, making these amendments retrospective. The EM notes
that these amendments reflect the date of the Government's response to the 457
report.[20]
2.17
The Scrutiny of Bills Committee noted its long-standing concern about
provisions that apply retrospectively, in particular, if the legislation will,
or may, have a detrimental effect on individuals.[21]
The Law Council also expressed their concern with retrospective provisions and
pointed out that the sponsors who breached their sponsorship obligations have
already been penalised in accordance with the existing framework and to apply
the new sanctions retrospectively may impose an additional penalty on these
sponsors.[22]
2.18
The Law Council made the observation that many recommendations are
supported by government but are never implemented or legislated, and therefore
an 'announcement of support for a recommendation cannot give rise to an
expectation that legislation to implement the recommendation will follow.'[23]
The Law Council concluded that the proposed amendments to section 140K of the
Migration Act should only apply to sanction decisions made on or after the bill
comes into effect, if passed.[24]
Disclosure and use of tax file numbers
2.19
The bill proposes to introduce section 506B of the Migration Act, as
well as amend the ITA Act and the TA Act to permit the Department to request,
provide, use, record and disclose tax file numbers (TFNs) of applicants and
visa holders as prescribed by the regulations. The EM notes that the amendments
give effect to the Government's support for recommendation 18.2 of the 457
report and explains how the amendments will assist the Department:
-
the Department will be able to undertake more effective
compliance activity and will assist with the identification of skilled visa
sponsors who breach their obligations, for example, by underpaying visa
holders;
-
data matching of TFNs will improve the Department's ability to
undertake research and trend analysis, which will assist the Department's
policy development; and
-
the storing of TFNs will reduce administrative burden on the
Department as it will not need to redact TFNs.[25]
2.20
The Scrutiny of Bills Committee acknowledged that the regulation would
be subject to disallowance, however, noted that a legislative instrument would
not be subject to the full range of parliamentary scrutiny.[26]
It also noted that the EM did not provide an explanation as to why it was
necessary to include this information in delegated legislation rather than in
primary legislation, and sought further advice from the Minister.[27]
2.21
The Human Rights Committee noted that while ensuring the effectiveness
of the Department's compliance policy is likely to be a legitimate purpose for
international human rights law, the provision may not provide a proportionate
limit on the right to privacy. This is because the scope of the proposed
amendment is broader than the stated objective contained within the EM.[28]
2.22
The Law Council shared these concerns, commenting that greater
clarity was needed in relation to the integrity of the data and suggested that
further information from the Department was required.[29]
2.23
However, the Department noted that this measure has been in the public
domain since March 2015 when the Government accepted the recommendations of the
457 report and that it is not aware of any concerns raised by stakeholders.[30]
Further, that in developing this measure, the Department consulted with the
AGD, the OAIC, the Treasury, and the Australian Taxation Office.[31]
2.24
The Department explained that data matching using TFNs minimises the
risk of misidentifying a visa holder.[32]
It also noted how this measure would have a positive impact:
Tax file number sharing will deter sponsors from breaching
their obligations, including the obligation to pay visa holders an appropriate
salary. This measure will also improve the Department’s ability to identify and
take action against visa holders who do not comply with their visa conditions. This will
positively impact overseas and Australian works by protecting their wages and
conditions.[33]
Review of decisions
2.25
The Bill proposes to amend paragraph 338(2)(d) of the Migration Act to
specify the circumstances in which merits review is available for decisions in
relation to certain visas that require sponsorship and/or an approved
nomination. The EM notes the intention of current paragraph 338(2)(d):
The intention of current paragraph 338(2)(d) was to prevent
abuse of the merits review process by preventing refused visa applicants, who
had no sponsor, and therefore no ability to meet the criteria for grant of the
visa, from seeking to extend their stay in Australia by lodging a review
application.[34]
2.26
The EM explains that courts have interpreted the current provision in a
way that has resulted in circumstances where an applicant has review rights
that are wider than the original policy intent.[35]
Consequently, the proposed provision seeks to clarify that merits review will
only be available where:
-
there is an approved nomination
that has not ceased; or
-
an application to review a
decision not to approve a nomination has been lodged; or
-
an application to review a
decision not to approve a sponsorship has been lodged; or
-
an applicant who does not require
a nomination is, at the time that the visa is refused, sponsored by an approved
sponsor.[36]
2.27
However, the Law Council criticised new paragraph 338(2)(d) as being
'complicated and confusing' and that the Law Council and its migration experts
found it difficult 'to discern what the new provisions mean'.[37]
The Law Council noted that the proposed provision may have been drafted without
awareness of a recent judgement and that it 'has real potential to unjustly
deprive visa applicants from merits review.'[38]
It recommended that the new paragraph 'be removed from the draft bill, or
significantly redrafted...'[39]
2.28
The Department argued that this proposed measure will provide certainty
to visa applicants in relation to their right to seek merits review and will
also reduce the risk of the Department issuing defective notifications.[40]
The Department provided the following explanation:
[The current system] has encouraged sponsors to lodge repeat
nomination applications to allow visa applicants to gain access to merits
review and remain in Australia. It has also resulted in confusion because visa
applicants who are not entitled to seek merits review of a decision to refuse
their visa at the time the refusal is made (because there is no approved or
pending nomination), can subsequently obtain review rights if a further
nomination application is lodged.
The current situation makes it difficult for the Department
to properly notify an applicant of their review rights, increases the risk of
defective notification, and has led to vexatious applications for merits review
aimed solely at inappropriately extending a visa applicant’s stay in Australia.
Where defective notifications occur, individuals may be
incorrectly recorded as unlawful on departmental systems and could be detained
unlawfully. There is also a risk of the defective notification resulting in the
unlawful removal of an individual.[41]
2.29
The Department noted that the proposed amendment will only affect onshore
applicants for subclass 457 and 407 visas whose applications are decided after
the measure commences.[42]
However, the Committee also notes the information from the Department, that the
intention is also to amend the Regulations so that Australian sponsors of offshore
applicants for subclass 457 and 407 visas can apply for the decision to be
reviewed in the same circumstances that onshore applicants can.[43]
Committee view
2.30
The measures proposed in the bill are part of a significant reform
package to strengthen the integrity of the 457 visa and its replacement, the
temporary skill shortage visa. The bill will protect Australian and overseas
workers by enhancing the effectiveness of the Department's compliance activity
through data matching of TFNs.
2.31
The Committee is of the view that the public disclosure of information
concerning a sponsor who has breached their sponsorship obligation will assist
to protect Australian and overseas workers while also acting as an additional
deterrent to sponsors breaching their obligations. Temporary visa holders are
particularly vulnerable to being exploited by their employer and as such, the
Committee considers it important that prospective employees have access to
information about a particular sponsor doing the wrong thing. The Committee
also acknowledges that the rights and privacy of the sponsor is also a factor
that must be considered and that the rules of natural justice should not be displaced
lightly.
2.32
However, the Committee believes that the bill has achieved the right
balance between protecting workers and protecting the rights and privacy of
sponsors. In arriving at this conclusion, the Committee notes that sponsors
will have full access to natural justice prior to any sanction being imposed
and information being disclosed. As outlined in the EM and the submission by
the Department, publication of sponsor information will be limited to cases
where a breach has been substantiated and considered serious enough to warrant a
sanction being imposed.[44]
Furthermore, the Committee notes that the merits and judicial review process
can sometimes be dragged out for many months or years. To wait for all review
options to be exhausted may have the effect of defeating the policy objective
of proposed subsection 140K(4).
2.33
While the Committee makes no specific recommendation in respect of the
retrospective operation of these provisions, it restates its long-standing
general aversion to provisions which operate in this way.
2.34
The Committee believes that greater clarity is needed in relation to the
review of decisions concerning 457 and 407 visas. The Committee is concerned
that the policy intent relating to the current paragraph 338(2)(d) is not being
met and that the paragraph requires amendment. However, the Committee also
notes the concerns raised by the Law Council that the proposed amendment to
this paragraph is confusing. As such, the Committee considers that there may be
scope to consider the drafting of paragraph 338(2)(d) so that it is clear while
also meeting its policy intent. However, on balance the committee is of the
view that the bill be passed.
Recommendation 1
2.35
The Committee recommends that the wording of paragraph 338(2)(d) is reconsidered
to ensure that the paragraph is clearly understood while also achieving its
policy objective.
Recommendation 2
2.36
The Committee recommends that the bill be passed.
Senator David Fawcett
Chair
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