Minority report from the Australian Greens

1.1The Australian Greens thank everyone who made a public submission and/or representation to this inquiry.

1.2The Australian Greens support in principle recommendations made by all expert witnesses from civil society—academia, trade unions, and the legal, human rights, and migration sectors—participating in this inquiry. Many of these recommendations were highly technical, or outside the scope of primary legislation (e.g., recommendations regarding reviews, or drafting of delegated legislation, etc.).

1.3The Australian Greens also support recommendations 1–5 of the Committee's majority report. We do not support recommendation 6 of the report, because we don't believe the Migration Amendment (Strengthening Employer Compliance) Bill 2023 (the 2023 Bill) should be passed without being subject to recommendations 1 and 2 in this Greens' minority report.

1.4For the purposes of this inquiry, the Australian Greens have focused on the two most significant and commonly raised concerns, with corresponding recommendations.

1.5Regarding recommendations 1–5 of the Committee's majority report, the Australian Greens support recommendation 3, which recommends that the Government continues to consult with civil society regarding the regulations to be issued for the purposes of the discretionary cancellation powers provided by 116(1A) of the 2023 Bill. However, the Australian Greens are disappointed that the Committee's majority report didn't go further, and recommend that item 37 of the 2023 Bill, which introduces a new subsection 116(1A), be deleted—particularly given the consistent and unequivocal evidence provided to the Committee by civil society regarding the undermining effect this item would have on the stated policy objective of the 2023 Bill.

Overview of the 2023 Bill

1.6As reported by the Parliamentary Library in its Bills Digest (No. 007, 2023–24) for the 2023 Bill, some of the measures in the 2023 Bill were included in the Migration Amendment (Protecting Migrant Workers) Bill 2021 (the 2021 Bill), which was introduced by the Morrison Liberal Government in the previous Parliament.[1] Despite broad support for the 2021 Bill, it was never brought on for debate, and lapsed at dissolution prior to the 2022 federal election.

1.7Both the 2021 and 2023 Bills are legislation in response to the 2019 Report of the Migrant Workers' Taskforce, and in particular, in response to recommendations 19 and 20:

[19] 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.

[20] 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.[2]

1.8As with the 2021 Bill, the Australian Greens join expert witnesses in welcoming the important dialogue that the 2023 Bill has given impetus to, but also raise concerns with the ability of the provisions as drafted to achieve the Government's and the Taskforce's stated goals. As jointly submitted in written evidence by Unions NSW and the Immigration Advice and Rights Centre (IARC):

The proposed Bill is a step in the right direction but does not go far enough to protect migrant workers from entering into or leaving exploitative workplace arrangements.[3]

1.9As with the 2021 Bill, a fundamental and fatal flaw of the 2023 Bill is that without a guarantee against visa cancellation, migrant workers will understandably be fearful and unlikely to report non-compliance.

Protection of exploited migrant workers

1.10Part 6 of the 2023 Bill, 'other amendments', would amend section 116 of the Migration Act 1958 (the Act), which provides powers to cancel visas. According to the 2023 Bill's Explanatory Memorandum, Item 37 Subsection 116(1A):

…amends section 116 (Power to cancel) of the Migration Act by repealing current subsection 116(1A) and substituting it with new subsections 116(1A) and (1B). This will allow the Governor-General to prescribe matters to which the Minister must, may or must not, have regard in determining whether the Minister is satisfied of certain matters relevant to the cancellation of visas, and to specify the weight to be given to any such matters.[4]

1.11The Explanatory Memorandum also states that:

…this will allow measures such as the Assurance Protocol, which is an administrative arrangement between the FWO and the Department, to be codified in the regulations.[5]

1.12Concerns were raised by all expert witnesses from civil society regarding this provision, and the chilling effect it would have on migrant workers coerced into breaching their visa conditions by exploitative employers.

1.13As submitted in written evidence by the Migrant Justice Institute (MJI):

…amendments to section 116 of the Migration Act fall short of providing guaranteed protection against visa cancellation because they remain speculative and discretionary, and recommends our preferred, alternate model for providing reliable automatic protections that would give migrant workers the assurance they need to address exploitation.[6]

1.14The lack of guaranteed protection will not only provide a chilling effect for migrant workers, but also their advocates. As jointly submitted by the MJI and Human Rights Law Centre (HRLC), by continuing to provide prescribed discretionary powers instead of a reliable safeguard against visa cancellations, these powers:

…will not enable unions and service providers to assure migrant workers that they can safely enforce their workplace rights without exposing themselves to a risk of visa cancellation.[7]

1.15As jointly submitted by Unions NSW and the IARC, when advocates working on behalf of exploited migrant workers advise them that their visa may be at risk of cancellation and notes the factors considered in Departmental policy that may weigh against cancellation:

…clients more often than not elect not to disclose the treatment to the Department or any other Government agency.[8]

1.16A compliance regime that relies on migrant workers blowing the whistle on the exploitative practices that they have been subjected to by employers will only be as good as the whistleblower protections afforded to them. With the inclusion of item 37, (116(1A)), it is the opinion of all expert witnesses from civil society participating in this inquiry that by this measure, the 2023 Bill will fail to strengthen employer compliance.

1.17As submitted by the Australian Council of Trade Unions (ACTU):

…the [2023] Bill relied on temporary migrant workers coming forward to report exploitation without providing them with any protections to do so, or addressing any of the factors that make them vulnerable to exploitation. This could expose temporary migrant workers to adverse immigration consequences, including the cancellation of their visa or not meeting the requirements for visa renewal.[9]

1.18The Australian Greens recommend that the Senate deletes item 37, which introduces a new subsection 116(1A), from the 2023 Bill.

1.19Regarding the Assurance Protocol being prescribed in regulations subsequent to the passing of the 2023 Bill, the Explanatory Memorandum states:

The terms and conditions of the Assurance Protocol are subject to consultation before they are prescribed under new subsection 116(1A).[10]

1.20Recommendation 21 of the 2019 Report of the Migrant Workers' Taskforce recommended:

…that the Fair Work Ombudsman and the Department of Home Affairs undertake a review of the Assurance Protocol within 12 months to assess its effectiveness and whether further changes are needed to encourage migrant workers to come forward with workplace complaints.[11]

1.21A review was conducted, as per the recommendation, but resulting changes to the Protocol did not address the core concerns raised by the Taskforce. As such, the Select Committee on Temporary Migration made exactly the same recommendation in its 2021 report, also as recommendation 21 (of 40 recommendations).[12]

1.22Concerns regarding the Assurance Protocol were raised by all expert witnesses from civil society participating in this inquiry. In its written evidence to the Committee, the ACTU submitted:

Without regulations or a description of the proposed ‘codification’ in the Explanatory Memorandum, it is difficult to know what the Government intends. However, if it is intended to reflect the terms of the current Assurance Protocol in the regulations or provide that delegates will ‘have regard to’ the visa holder’s participation in FWO investigations, then that is clearly inadequate to protect workers.[13]

Arrangement in relation to work

1.23Sections 245AAB and 245AAC of the 2023 Bill criminalise an employer's coercion of a migrant worker to accept an 'arrangement in relation to work' in return for work or documents the worker needs in order to meet a visa requirement.

1.24In its written evidence to the Committee, the Uniting Church in Australia, Synod of Victoria and Tasmania called on the Committee to gain assurance from the Department of Home Affairs that:

…the proposed language “arrangement in relation to work’ in subsections 245AAA(1), 245AAB(1) and 245AAC(1) are broad enough to cover known exploitative conditions to which migrant and temporary workers have been subjected. For instance, it should cover where Working Holiday Makers are made to submit to sexual harassment or sexual acts, as well as substandard accommodation and withholding of passports, to receive their employer’s sign-off for ‘specified work’ to gain an extension on their visa.[14]

1.25This reflected a concern held by several expert witnesses participating in this inquiry regarding the definition, or lack thereof, of "arrangement in relation to work" in the 2023 Bill. This was because neither the 2023 Bill, not its Explanatory Memorandum, defined "arrangement in relation to work", raising concerns that the drafting of these provisions may preclude a broad interpretation. As jointly submitted in written evidence by the MJI and HRLC, as the 2023 Bill as it stands:

…proposed paragraphs 245AAB(1)(c) and 245AAC(1)(c) may not in fact allow “arrangement in relation to work” to be interpreted to cover arrangements beyond the performance of work itself.[15]

1.26Under such a narrow interpretation, "arrangement in relation to work" wouldn't extend to things like sexual harassment or unsafe conditions or accommodation. The concern being, as submitted by the MJI, that although it might not technically be an arrangement in relation to work, employers could, and do, coerce migrant workers into accepting as conditional for work:

…sexual advances, unsafe accommodation, or do tasks in a personal capacity for their employer (for example, helping their employer with personal tasks on a weekend), in return for work or documents to meet a visa requirement.[16]

1.27In oral evidence given in response to a question on recommendation 3 in the MJI's written submission, in regard to "arrangement in relation to work", Co‑Executive Director Prof. Bassina Farbenblum responded:

There's a slight modification to it that we actually only realised after putting in that submission. We had suggested expansion or a very broad understanding of 'arrangement in relation to work', but we've since realised that you actually need to delete (1)(c) from 245AAB and 245AAC, because that requires that the arrangement provides for the work to be done, so it actually makes it impossible to expand 'arrangement', because it limits it only to the performance of work, not other things that may be used in order to coerce someone.[17]

1.28The Australian Greens recommend that sections 245AAB and 245AAC of the 2023 Bill be amended to enable a broad interpretation of "arrangement in relation to work".

Labor platform, policies, and positions

1.29At the very least, the Australian Greens believe the 2023 Bill is a missed opportunity for the Albanese Labor Government in regard to legislating robust and much needed protections for migrants working in Australia.

1.30This is particularly disappointing considering a previous inquiry conducted by the Committee into the Migration Amendment (Protecting Migrant Workers) Bill 2021.

1.31In its additional comments to the 2021 Bill, Labor senators raised concerns, and made recommendations to remedy:

…

II.barriers for people who have been exploited to come forward, report exploitation and assist in the subsequent investigation and prosecution of the employer;

III.whistleblower protections for people who have reported exploitation;

IV.application of sanctions on employers engaged in exploitation in a timely manner to disrupt and deter entrenched, systemic non-compliance;

V.assurance that workers who report exploitation will not face immigration related consequences and that migrant workers who have been unknowingly engaged by a prohibited employer being protected from any adverse immigration outcome owing to the engagement;…[18]

1.32More recently, at the 49th ALP National Conference 2023, the Labor Party amended its national platform to commit to a non-discretionary protection against cancellation for exploited workers. Although the National Platform hasn't been updated on Labor's website at the time of writing, it has been reported that Labor agreed to implement reform to visa laws, including:

…the introduction of a nondiscretionary protection against visa cancellation in circumstances where a migrant worker has been subject to workplace exploitation…[19]

1.33Under Better Working Conditions in both the 2021 ALP National Platform and 2023 ALP Draft National Platform are policy principles against sexual violence and harassment in the workplace. In the 2023 ALP Draft National Platform, policy principle 24 of Better Working Conditions (which is similar to policy principle 19 in the 2021 ALP National Platform) states:

Labor believes in safe and socially inclusive workplaces. No worker should be subject to bullying, discrimination, harassment or sexual harassment in the workplace.[20]

1.34As such, the Australian Greens call on the Albanese Labor Government to support the recommendation in these additional comments, which are in line with policy statements and principles in its National Platform.

1.35The Australian Greens recommend that the Senate does not pass the 2023 Bill unless it is amended in line with recommendations 1 and 2 of this report, and recommendations 1 to 5 of the Committee's majority report.

Senator Nick McKim

Member

Greens Senator for Tasmania

Footnotes

[1]Dr Susan Love, Migration Amendment (Strengthening Employer Compliance) Bill 2023, Bills Digest No. 007, 2023–24, Parliamentary Library, Canberra, 2023, p. 1.

[2]Department of Employment and Workplace Relations, Report of the Migrant Workers' Taskforce, March 2019, p. 12.

[3]Unions NSW and Immigration Advice and Rights Centre, Submission 16, p. 15.

[4]Explanatory Memorandum to the Migration Amendment (Strengthening Employer Compliance) Bill 2023, p. 74.

[5]Explanatory Memorandum to the Migration Amendment (Strengthening Employer Compliance) Bill 2023, p. 74.

[6]Migrant Justice Institute, Submission 13, p. 3.

[7]Migrant Justice Institute, Submission 13, p. 4.

[8]Unions NSW and Immigration Advice and Rights Centre, Submission 16, p. 11.

[9]Australian Council of Trade Unions, Submission 10, p. 2.

[10]Explanatory Memorandum to the Migration Amendment (Strengthening Employer Compliance) Bill 2023, p. 74.

[11]Department of Employment and Workplace Relations, Report of the Migrant Workers' Taskforce, March 2019, p. 12.

[12]Senate Select Committee on Temporary Migration, Select Committee on Temporary Migration, September 2021, p. 185.

[13]Australian Council of Trade Unions, Submission 10, p. 10.

[14]Uniting Church in Australia, Synod of Victoria and Tasmania, Submission 12, p. 3.

[15]Migration Justice Institute, Submission 18.1, p. 6

[16]Migration Justice Institute, Submission 13, p. 6.

[17]Associate Professor Bassina Farbenblum, Co-Executive Director, Migrant Justice Institute, and Associate Professor, Faculty of Law & Justice, UNSW, Proof Committee Hansard, 21 August 2023, p.35.

[18]Senate Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Protecting Migrant Workers) Bill 2021 [Provisions], March 2022, p. 45.

[19]David Marin-Guzman, 'CFMEU commits Labor to get "foot off our necks"', Australian Financial Review, 18 August 2023, https://www.afr.com/work-and-careers/workplace/cfmeu-commits-labor-to-get-government-s-foot-off-our-necks-20230818-p5dxn2 (accessed 30 August 2023).

[20]Australian Labor Party, ALP National Platform: As adopted at the 2021 Special Platform Conference, March 2021, https://alp.org.au/media/2594/2021-alp-national-platform-final-endorsed-platform.pdf (accessed 30 August 2023), p. 25.