Additional comments from Senator Paul Scarr

Introduction

1.1For the reasons outlined in the Committee's report, I support passage of the Bill by the Senate. However, there are some additional matters which, in my view, warrant further consideration.

Transitional period—Link to education and guidance

1.2As indicated in paragraphs 2.40 to 2.51 of the Committee report, there is a need to ensure that employers have user friendly guidance/education material so that they have an opportunity to fully understand the new regime. A reasonable period of time should be made available for employers and other stakeholders to familiarise themselves with the new framework and ensure that they have the systems and procedures in place to ensure compliance.

1.3As evidenced in paragraph 2.54 of the Committee’s report, the Department of Home Affairs is cognisant of this need. However, it is somewhat unclear as to the period of time the Department of Home Affairs is proposing for the transition period (in paragraph 2.54, the phrase used by the relevant Departmental officer was a period of “up to 12 months after the passage of the Bill”). This should be clarified as soon as possible by the Department so that the Senate has the benefit of considering the period of time proposed.

1.4It is recommended that the Department of Home Affairs clarify how long the proposed transition period will be so that the Senate may consider whether or not this is a sufficient period of time for communication and education prior to implementation of the changes.

Employer prohibition scheme

1.5From a scrutiny perspective, there is a perennial issue with subject matter which should be in a Bill being contained in Regulations.This issue is canvassed in paragraphs 1.67 and 1.68 of the Committee’s report.This was also the subject of comment in the submission from the Law Council of Australia.

1.6Whilst I agree with the recommendation contained in the Committee report with respect to an objects clause (which would hopefully provide some clarification), I believe that the criteria relevant to the Minister’s decision to make a prohibited employer declaration should be included in the Bill.This is consistent with the recommendation of the Law Council of Australia.[1]

1.7It is recommended that the Bill should be amended so that the criteria relevant to the Minister’s decision to make a prohibited employer declaration are prescribed in the Bill.

1.8If recommendation 2 is not accepted, the Bill should be amended so that the power to make regulations is confined by guidance in primary legislation as to the kind of matters that may be prescribed.

1.9In addition, I note that the Law Council of Australia notes that there is no statutory limit on the length of the period for which a Minister may or must declare a person to be a prohibited employer.

1.10In this regard, I note the commentary from the Law Council of Australia that:

Some guidance in the legislation, whether it be through a proportionality test, a maximum limit, or both, would assist to ensure consistent and accountable decision making.The length of time that an employer is prevented from hiring a migrant worker is a significant aspect of the regulatory regime and it is appropriate for Parliament to form a view as to the maximum period this prohibition could be applied.[2]

1.11I agree. These are matters which should be the subject of consideration by Parliament.

1.12The Bill be amended to define the scope of the Minister’s power to determine the length of time an employer may be subject to a prohibited employer declaration.

Senator Paul Scarr

Deputy Chair

Liberal Senator for Queensland

Footnotes

[1]Law Council of Australia, Submission 15, pp. 25–26.

[2]Law Council of Australia, Submission 15, p. 27.