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.

• Provisions in the Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 respond to Recommendation 3 of the taskforce report: ‘that legislation be amended to clarify that temporary migrant workers working in Australia are entitled at all times to workplace protections under the Fair Work Act 2009’ (see page 3 of the Explanatory Memorandum for the Fair Work Legislation Amendment (Protecting Worker Entitlements) Bill 2023).
• The Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 amended the Fair Work Act 2009 to respond to Recommendation 4 of the taskforce report ‘that legislation be amended to prohibit persons from advertising jobs with pay rates that would breach the Fair Work Act 2009’, and to improve access to the small claims process in relation to wage theft claims, in response to Recommendation 12 (see pages 204–208 of the Revised Explanatory Memorandum to the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Bill 2022).
• The announcement on 5 June 2023 noted funding for the Australian Border Force for enforcement and compliance activities which would include addressing migrant worker exploitation ($50 million over 4 years from 2023–24 and $15.3 million per year ongoing, allocated in the 2023–24 Budget, p. 162).
• The announcement and the minister’s speech commit to further consultation on measures intended to protect migrant workers while they pursue claims of exploitation against employers, including developing an information ‘firewall’ between the Fair Work Ombudsman and the Department of Home Affairs, and designing a workplace justice visa.

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):

1. 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. 

2. 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. 

3. 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 section245AAA)
• 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 section245AYB)
• 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 section245AYJ; 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 MigrationAct.

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 subsections140RB(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 paragraph116(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).