Jane Prentice (Ryan, Liberal Party) Share this | Link to this | Hansard source

I rise to support the Migration Amendment (Charging for a Migration Outcome) Bill 2015, which amends the Migration Act 1958. This bill is about preserving the integrity of Australia's skilled migration program, and prohibits conduct relating to 'payment for visas' activity. The bill, inter alia, introduces a new criminal and civil penalty framework, which makes it illegal for any person to seek or receive a payment or benefit in exchange for a sponsorship related event.

The bill defines a benefit as:

… a payment or other valuable consideration, a deduction of an amount, any kind of real or personal property, an advantage, a service or a gift …

The bill also gives the Minister for Immigration and Border Protection the power to cancel a visa if they are satisfied that a benefit was asked for or received by the sponsor, or offered or provided by the visa holder.

This bill is in response to recommendation 10.7 of the Independent review into integrity in the subclass 457 program released on 10 September 2014. It said:

That it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome, and that this be reinforced by a robust penalty and conviction framework.

The review, which was instigated by the then Assistant Minister for Immigration and Border Protection, Senator the Hon. Michaela Cash, heard anecdotal evidence that some individuals and businesses were in effect selling sponsorship to 457 visa applicants, which currently is not unlawful in Australia. This practice disadvantages legitimate visa applicants, drives down domestic wages, takes job opportunities away from qualified Australians and places affected visa holders at serious risk of exploitation and extortion. Worst of all, it undermines the integrity of Australia's skilled migration program by allowing unscrupulous business owners to gain a private advantage by circumventing Australian migration law.

The bill applies to all temporary and permanent sponsored skilled visas, and includes various visa subclasses. For visa sponsors, the bill makes it a criminal offence to ask for or receive a benefit in return for sponsorship. The bill does not discriminate with regard to corporate structures; it makes liable executive officers of corporate bodies, members of business partnerships and committees of unincorporated associations. Importantly, the bill operates extra-territorially to capture any contravening conduct that occurs outside of Australia—particularly in the visa applicant's home country. The bill also equips the Department of Immigration and Border Protection with additional investigative powers.

As I am sure is the case with all members in this House, I am frequently called upon by constituents and non-citizen residents to provide assistance with immigration matters. Fortunately, the majority of applicants and sponsors that I come across are good people who do the right thing. While the conduct of 7-Eleven franchisees predominantly concerns the exploitation of student visa holders, it does demonstrate the position of power that employers have over foreign workers, and how foreign workers can be compromised by unscrupulous employers.

The Migration Amendment (Charging for a Migration Outcome) Bill 2015 is necessary to ensure that the integrity of Australia's skilled migration program is preserved. This bill protects Australian wages and working conditions, and protects skilled visa holders from risk of exploitation. It sends a clear message both to sponsors and to visa applicants that the Australian government will not tolerate any attempt to gain a private advantage by undermining Australia's migration system. I commend the bill to the House.

Melissa Price (Durack, Liberal Party) Share this | Link to this | Hansard source

Just over two years ago, this government was elected with a mandate to create safer borders and reduce the debt. I am pleased to rise in the House today to speak on the Migration Amendment (Charging for a Migration Outcome) Bill 2015, which knuckles down on visa holders and their supporters and sponsors abusing the system. One of the many things this government has achieved since coming to office is stopping the boats. Some may say this is just a slogan, but I think we have proven that it is much more than that. You only need to scratch the surface and you will find that it has been a very effective policy, so effective that the Labor Party effectively endorsed this policy at their federal conference in June. As sure as night follows day, only members sitting on this side of the chamber have a track record when it comes to immigration policy and protecting Australia's borders.

This bill makes amendments to the Migration Act 1958. This bill introduces a new criminal and civil penalty regime that will make it unlawful for a person to ask for, receive, offer or provide payment or other benefits in return for a range of sponsorship related events. Where so-called payment-for-visas conduct has occurred, this bill allows visa cancellation to be considered. This bill implements recommendation 10.7 of the Independent Review into Integrity in the Subclass 457 Program:

That it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome, and that this be reinforced by a robust penalty and conviction framework.

This bill allows the department to take action in relation to payment for visas, which is not currently unlawful. Payment for visas is completely unacceptable, as it undermines the integrity of Australia's migration program and, most of all, the genuine purposes for which visas are intended to be granted. This bill will apply to a range of temporary sponsored work visas and skilled permanent employer sponsored visas, such as the 457 visa class.

A strong response is needed to ensure that these practices do not continue. This bill will strengthen the integrity of Australia's migration program, restored by this government since its coming to office just over two years ago. A strong response is needed, and a strong response is what this government will deliver. This amendment will make it a criminal offence for a person to ask for or receive a benefit in return for sponsorship, punishable on conviction by a maximum of two years imprisonment or a fine of up to 360 penalty units, which equates to an amount of just under $65,000 for an individual or $324,000 for a corporate body. These amendments will commence by proclamation on a date set by the Minister for Immigration and Border Protection once this bill has been passed by the parliament.

We as a nation could not continue to have such a liberal approach to our border security as we witnessed under the previous government, which of course came at a price. During the Rudd-Gillard-Rudd government they opened Australia's borders willy-nilly. This created an almighty mess for this government to clean up. This was not an easy job, but we did it because it was good for the country and it was necessary. The approach of Labor, which illustrates what poor financial managers those opposite are, left Australia with an enormous debt, even by Labor standards, and this burden is being shouldered by the hardworking people of Durack, whom I represent.

Whilst I am talking about Durack: last month I was quite intrigued to hear the Labor Party announce a commitment of more than $10 billion in new spending measures, none of which, I might add, related to regional Western Australia or, by the way, to Durack.

I call on those opposite to support this bill. Judging by what I have just heard, I imagine it will be supported, and that is to be congratulated. We all know that this will stop unscrupulous migration practices, which are undoubtedly damaging Australia's reputation abroad and at home.

We talk a lot about innovation, and today I want to take the opportunity to talk about innovation in the immigration space. Dalwallinu is in the electorate of Durack. It is some 248 kilometres north-east of Perth, in the northern wheat belt. It is a small, but very forward-thinking town.

While people are leaving the bush for the city, the people of Dalwallinu have been proactive in bringing people to their town. Light industry and services to agriculture and mining have grown, leading to a 'stabilising' population in the town rather than a decrease. This has led to an increase in employment opportunities within the town. It has also led to the town's Regional Repopulation Plan.

The Regional Repopulation Plan aims to attract migrant families to Dalwallinu and surrounding towns. The initiative did not just allow and enable but has encouraged migrants and their families to relocate within the Dalwallinu area and assist with the area's labour shortage. The plan not only strives to retain migrants but aims to address a number of key areas, such as accommodation, education and health, to ensure that the initiative is successful. The innovative plan has been so successful that the council, the Shire of Dalwallinu, has reported a population increase of about 15 per cent. I want to take this opportunity to congratulate the town of Dalwallinu and all the people involved in this fabulous initiative, which will ensure the town not only grows but prospers. And I just want to make a special note of ex-president of the Shire of Dalwallinu, Mr Robert Nixon, whose leadership has led to the increase in population in the town. Well done to Mr Nixon.

Turning back now to the bill being debated today: civil penalties are applicable to a sponsor, visa applicant or any other third party who asks for, receives or provides offers of benefit regarding a sponsorship-related event under this bill. This bill has strong deterrents, with a maximum pecuniary penalty of 240 penalty points which, as I said previously, equates to around $40,000 for an individual or $215,000 for a body corporate.

Under this bill visas may be considered for cancellation at any time where a person engages in payment-for-visas conduct. Where a decision to cancel a visa is made, family members who hold the same visas would automatically have that applied as a consequence.

This bill ensures that the department is able to take appropriate action against unscrupulous people who have engaged in payment-for-visas conduct. As with other cancellation powers in the act, visa holders would be afforded procedural fairness during the cancellation process. Someone whose visa is cancelled would have the ability to seek merit or judicial review of that decision. This bill is about ensuring that a person who initiates action or who receives money or other benefits, such as personal property, advantage, service or gift, is breaking a law and will face the appropriate consequence.

We cannot continue with wishy-washy immigration laws which essentially say that it is okay to act in an unethical way in Australia, while thousands of hard-working Australians do it tough. In conclusion, I commend this bill to the House.

Joanne Ryan (Lalor, Australian Labor Party) Share this | Link to this | Hansard source

I rise today to speak about the Migration Amendment (Charging for a Migration Outcome) Bill 2015.

This bill seeks to legislate measures recommended by the independent review into the integrity of the subclass 457 visa program. The recommendation was that it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome and that this be reinforced by a robust penalty-and-conviction framework.

The review was limited to the 457 visa, but this amendment will make charging for a migration outcome unlawful in relation to a broader range of skilled work visa programs, namely those that have either a sponsor or a nomination element. The penalties will apply where a benefit is asked for, received, offered or provided. This behaviour would be unlawful where an inducement is offered to a sponsor in order to secure a visa or, conversely, initiated by the sponsor—for example, paying the visa holder less than they are entitled to in a transaction for a visa or requesting separate payment in return for continuing as a sponsor. These are all complex scenarios that, unfortunately, we have found to be happening in our communities.

In fact, I think it is fair to say that as a country we have reached a tipping point in this area. There are 800,000 visiting workers in this country, and what we have seen exposed across the last 18 months is rife exploitation of some of those workers. This is exploitation of people who come to our country to work—their services have been sought—only to find that they are being exploited. They are being paid less than at Australian standards, they are working in conditions that are less than Australia accepts as standard working conditions and they are being further rorted in some cases by being asked to pay for the privilege to be exploited.

In terms of what this amendment goes to: Labor welcomes the legislation as a first step in trying to address exploitation and fraud in the visa system. It could, however, go further than this amendment put before us. It is fair to say that Australians are appalled at the levels of exploitation that we are seeing in our communities. They are appalled at the thought that employers or sponsors would be profiting from an immigration outcome sought under circumstances where working visas have been sought and provided to fill a skilled migration need. We can no longer allow our naivety in this area to be an excuse for exploitation of guest workers.

I think it is fair to say that as a broad community, across the nation we have embraced the notion of a guest worker to fill a skilled migration need but have been shocked at the organisation and the propensity to exploit the system—to game the system—and to exploit workers while they are guests in our country. I suppose I best encapsulate this by going back to my own community, where I have seen some of these cases and realised for the first time that the scenes that I have watched for many years in television dramas and movies based overseas, where workers live in horror or dependency on sponsors, are no longer a fiction in our suburbs but the reality for some people who are living amongst us.

So this legislation is a good first step, but I think it is incumbent upon us to acknowledge the level to which the rorting of the system and the exploitation have occurred. We have a history going back to last May, where workplace audits by the Fair Work Ombudsman painted a pretty grim picture. The report suggested one in five guest workers could be underpaid or working in jobs that they should not be doing. The report said there were 6,000 requests for assistance from the Fair Work Ombudsman from people on working visas in our communities—6,000 requests. It is an extraordinary number when you consider that many of the people we are talking about have limited English and limited capacity to access lawyers, particularly if they are being underpaid. When you consider the numbers of people we are talking about, on the one hand 6,000 seems a lot of people to make a complaint, but on the other hand it is merely scratching the surface in terms of the number of those who could be in these categories.

Then we saw the Fairfax Media and Monash University joint investigation recently, which revealed the extent to which thousands of temporary workers were being exploited and underpaid. This investigation exposed that 80 per cent of foreign language ads were offering wages below legal rates and that people were blatantly advertising black jobs, as they were called. It is worth noting here today that when that came to light Minister Cash's response was wrapped around the notions of self-regulation. Clearly, when an issue has become this endemic and the exploitation levels are this high, we are past the point of self-regulation.

So I welcome this amendment, which would see some part of that exploitation process closed, because these examples demonstrate how opportunistic, predatory and brazen those operating in this area can be. When we say that, of course, we are not talking about every company, sponsor or employer who brings in a guest worker to our country, but the numbers that have been exposed are daunting and shocking. They are numbers that speak to a Dickensian element in our communities and our neighbourhoods.

Of course, this was followed up by Adele Ferguson and Sarah Danckert in The Age, with their expose of 7-Eleven. What we saw was endemic and systemic among 7-Eleven franchisees, with some charging staff $7,000 to secure work visas and, in fact, with the business structure set up so that that was actually a separate revenue stream for the business. We had stories of fees from $25,000 to $70,000 to sponsor someone on a visa, and we had some student visa holders then enrolled in courses associated with 7-Eleven franchisees. So we had an entire business model set up around the exploitation and, of course, the underpayment. It was set up to have someone knowingly in breach of their visa but then left in a situation where, having at first paid the amount, they could hardly be one of the 6,000 who rang the ombudsman to complain.

So it is very fair to say that Australians will welcome this amendment, which is going to close at least one of those loopholes, but of course there is another element here that those opposite need to think about carefully, and that is the changes that have been made to the English language test in this space, because of course any worker in this country filling a skilled migration gap who does not speak English is made more vulnerable, because the person that they have been dealing with, their employer, may be the only person that they can have a conversation with, and that conversation may not necessarily be in English. So they are caught, if you like, in a trap in that scenario.

For me, one of the important things that we need to say about this amendment is that we welcome the amendment and the fact that it will make it unlawful to pay for or to seek payment for an immigration outcome in this country, where we have seen it being exploited to those levels, but really one of the biggest issues it raises is around enforcement and resourcing. Of course, we can pass the amendment, but then how that law will be enforced and the resourcing of that enforcement is critical. I would say to those opposite at this point in time that one of the things that we as a country have always relied on in the space of workplace conditions and a fair day's pay for a fair day's work has been that in our civilised society we have collective bargaining and trade unions. I would say to those opposite that, when you are talking about limiting right of entry for unions, if you think about that in this space, you are actually shutting the door to a form of collective action that could in fact support the enforcement of this regime.

Labor support, as I do, the amendment that we have before us, and we believe that the initiatives in the bill are a good first step in trying to address exploitation and fraud in the visa system. We would like to see it go further. We would like to see it reflect more the recommendations of the 457 review aimed at improving the effectiveness of the visa subclass, which the government has supported but not yet implemented. That could have been introduced as part of this bill.

For example, we would like there to have been a new sponsor obligation to ensure that the cost to the sponsor of any training contribution cannot be passed on to a 457 visa holder or third party, that sponsors be required to include as part of their signed employment contract a summary of visa holder rights prepared by the DIBP and the FWOs Fair Work Information Statement, and that a change to 457 visa conditions be introduced to place an obligation on the visa holder to provide the department with their Australian tax file number. These were all recommendations that it seems to me would have been sensible to have been carried into this piece of legislation. We would also like to see, or I would like to see, further additional integrity measures for temporary work visas more generally. That should be debated by the parliament.

In my electorate, in my community, I know of cases where people have been a part of this exploitation and this gaming of our system. I am thinking of one individual that, of course, I would choose not to name in any public space because they have already suffered enough. Imagine someone with little English, someone who saw temporary work in this country as a potential ticket to a life in Australia, and imagine that that person is a woman. Imagine that person has a 10-day-old child in this country and feels indebted to their sponsor and to their employer. Imagine that person seeks help and someone suggests that they speak to their local MP. Imagine then that someone else says, 'That's a bad idea because bringing it to the attention of a member of parliament may mean that you are summarily sent home.'

I think it is important that in this chamber we understand that the workers that we are talking about are not in a position to argue their rights. They are living in a world where they do not understand the language or, for that matter, the law. They are open to exploitation. They are being exploited on our watch.

I would urge this parliament to go further than we have done with this amendment, do a thorough review of the working class visas that we have operating and bring into play measures that will give Australians assurances that, on their watch, these things are stopped. We need to acknowledge that we may have been naïve and we may have allowed a system to be established where exploitation is rife but, as a parliament, we will take actions to protect individual rights and ensure that people are no longer exploited.

David Coleman (Banks, Liberal Party) Share this | Link to this | Hansard source

This is an important piece of legislation, speaking as it does to the importance of integrity in the immigration system. We have widespread support for immigration in my electorate of Banks and indeed in the nation more generally. A big part of the reason for that support is the public perception of integrity within the system, and measures that are designed to ensure integrity within the system are measures that this House should always seek to support.

We do have a history in recent years of a loss of control over the immigration system—particularly as it pertained to border security under the previous government. One of the important achievements of the coalition government has been to resolve that very significant problem, because under the previous government we did see, on both a humanitarian and an economic level, a very serious situation arise with that $11 billion cost blow-out, the 50,000 arrivals and, tragically, more than 1,000 deaths at sea. So taking action to preserve integrity in the immigration system, as we have done on the borders and as we are doing with the legislation that we are discussing today, is particularly important.

My community is fortunate to draw upon a very substantial number of people who were born overseas but have made Australia their home. The community of Banks is one which is supportive of immigration but it is also a community which has played by the rules, so to speak, in obtaining Australian citizenship. It wants to ensure that others do so too, and it wants to ensure that people who are seeking to come to Australia are not exploited by unscrupulous individuals—be they people smugglers or, indeed, employers or others who would seek to exploit them.

My community has the largest number of Australians of Chinese background of any electorate in Australia. Indeed more than 22,000 people in the electorate of Banks were born in either China or Hong Kong. The incredibly rich and vibrant Chinese community in Hurstville and surrounds is one of the things that makes Banks such a special place. While I reflect on the importance of the Chinese community, I would note that the community is indeed very supportive of immigration but also certainly wants to make sure that it is done in the right way.

I would also like to acknowledge Chinese Australian Social Services, CASS, who are very active in providing a range of services in my electorate. They have provided settlement services in times gone by and indeed today as well as many other services to the local Chinese Australian community. To Henry Pan, Tony Pang, Maria Cheng and Benze Leung: thank you so much for everything that you do for the Chinese community not only in the area of settlement services but also more generally.

We are also fortunate in Banks to have a very strong community of Indian background. One of the organisations that works with immigrants from India in my electorate is RAIN, the Resourceful Australian Indian Network. Sudha Natarajan and all of the people involved in RAIN do a terrific job in welcoming people to our nation, particularly older people in the Indian Australian community who are looking for a support network and an environment in which to learn more about the local community and to interact with others. RAIN is an absolute pillar of our community. Earlier this year I held a fundraiser with all funds going to the Red Cross appeal after the tragic Nepalese earthquake. RAIN was very instrumental in supporting that event, as were many other members of the community, and made a very generous donation.

Another community in my electorate of great significance is the Egyptian community. There are about 1,500 people in Banks who were born in Egypt, many of whom have arrived in relatively recent times. I thank Bishop Daniel of St Mark's Church in Arncliffe and John Nour, who is a senior member of St Mark's community, and Father Soliman and Father Malek of St Mary and St Joseph Church in Peakhurst—all of whom are very supportive of the local Egyptian community and help people to both maintain their existing culture and also fully participate in our local community. There is very widespread support for immigration in my community.

Our immigration program boils down broadly to two important elements. One element is that immigration is in our economic self-interest in terms of skilled migration and so on and the other very important element of our immigration program is the humanitarian element. The humanitarian element of our immigration program has been very strongly supported by this government. One of the less remarked upon but important achievements of this government is the reopening of the special humanitarian visa category a year or so ago. That category had pretty much come to a grinding halt under the previous government, because of the influx of arrivals by boat. We have managed to get the special humanitarian visa program back up to about 5,000 people per year—from as low as 500, which was what it was under the previous government. That is a very important achievement, and it has only been achieved because of the integrity measures which enabled those places to become available.

Indeed, in that broad area of the humanitarian program, we have recently announced the intention to enable 12,000 refugees from Syria and Iraq to join us here in Australia. That is something that as a government and as a nation that we can all be very proud of. A number of community groups and church groups in my electorate have already reached out to seek to welcome those individuals as they arrive.

But this all has to be wrapped up in a system that has integrity and fundamental fairness. One of the problems at the moment is that it is not actually unlawful to charge someone to assist them for a particular visa outcome. So it is possible for an unscrupulous employer or individual to say, 'We will sponsor you for this particular visa category but, if you get the visa, we want $20,000' or whatever it is. That is wrong, because people or entities who would support those seeking visas should do so on the basis of a genuine and legitimate relationship with that individual, not some spurious economic relationship. It undermines the integrity of the program to enable this to occur.

We need to reflect on the fact that people who are applying for visas in these situations are often people who are in quite a vulnerable situation. Frankly, the outcome of getting a visa to enable someone to live in Australia is so dramatically preferable in many cases to the outcome of not getting a visa to be able to live in Australia, it is understandable that some of those applicants could be persuaded to pay someone to facilitate that process in a way which is unscrupulous. We do not want that to happen. We do not want a lack of integrity in the system. So, particularly with these visa classes in the broad so-called 457 category, applying to the skilled temporary work visas and other similar related categories, we want that practice to stop. We want to send a very clear message that this is not a minor matter; this is actually a very serious matter. To seek to exploit the goodwill and good intentions of somebody who is applying for a visa in Australia is something that we should not accept and should not countenance. As a consequence of that, the provisions in the act we are discussing today in relation to penalties are quite strong: up to two years imprisonment for somebody who seeks to obtain a payment for their role in helping someone to obtain sponsorship for a visa; and also potentially quite substantial fines of some tens of thousands of dollars.

The bill introduces an important discretionary power to enable the revocation or cancellation of the visa itself. So in an event where the applicant has knowingly made use of some sort of unlawful service—paying someone to provide sponsorship—there is the capacity for the discretionary cancellation of that visa and that is entirely appropriate.

It is very important that we maintain integrity in the system at all times. When we reflect on the 457 visa system, which this bill of course touches on, that system has been in place for some years and it has been supported by both sides of the House, but it needs to be a system that has integrity. There are a number of elements to it: firstly, it has to be genuine in the sense that the skills being supplied are skills that cannot be located in the local market; and secondly, it has to be an application which is made in good faith with the sponsors—the people who are signing off on the application—not doing so because of some ulterior economic motive but because it is the right thing to do. That is why it is so important.

I strongly commend this bill to the House. These are important provisions. We must never forget the importance of integrity in the immigration system, and this is an important integrity measure.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I too rise to speak on the Migration Amendment (Charging for a Migration Outcome) Bill 2015. Before I move into the legislation proper, I just want to give a bit of context to our immigration scheme or the arrangements by which people who come to Australia are dealt with.

Firstly, one could break it into two groups. The vast majority of people who arrive in Australia are people with a visa. The other group is obviously people who come to Australia seeking asylum. If they come as irregular maritime arrivals they are treated slightly differently to people that may arrive by passenger vehicles or planes with a visa and then seek asylum. We do have international commitments and treaties that say we will consider an asylum seeker's claims if they are fleeing persecution. Strangely, if they were starving to death it would not give them grounds to seek asylum. That is one of the cruel realities of the globe, especially when you have nearly 60 million people displaced throughout the world—some internally in countries and others who have moved from one country to another. That is a reality.

This legislation deals with visa holders who arrive in Australia. Many people come to Australia holding a tourist visa, a study visa or a working visa. It could be as simple as the 417 visa for food picking and packing. I know there is a significant Taiwanese community in Moreton, and many people from Taiwan come and spend time fruit picking and packing and enjoying Australia on a working holiday. There is also another type of visa, the 457, a skilled migration visa, which is basically designed so that the economy gets the benefit, when we have a skills gap, of bringing in people from overseas on these temporary visas.

Unlike the tourist visa, the study visa or the working holiday visa, 457s can actually—from all but the moment they start here—start the journey to applying for citizenship. This is my understanding of it: if you come here on a tourist visa and meet an Australian and fall in love and then want to become an Australian, you would not be able to stay in Australia under your tourist visa or your working holiday visa. If you wanted to change your visa status you would have to leave the country. It might only be temporary—just go to New Zealand for one night and then come back and apply for a different set of arrangements if you have fallen in love or if you are a tourist and you like our universities and want to change to a study visa. With most visas, you come to Australia under that visa scheme and then you basically have to leave and then reapply. I think there might be a slight change if you are seeking asylum, but the vast majority of the people we are talking about have 457s.

For example, when the mining boom was at its peak there was a real shortage of mining engineers, so we had an intake of mining engineers particularly from South Africa and from a few other countries. Now, with the mining boom well and truly off the boil, the focus of any good government is on giving jobs to Australian mining engineers because there would not be a skill gap—we now have enough mining engineers. That is just a short explanation of these types of visas, particularly the 457 visa, which is what this legislation is particularly about. There is some mischief created from it.

The amendments moved by the government are sensible amendments. Labor will be suggesting some others in the Senate. Basically, the legislation before the House makes it unlawful for a sponsor to be paid by visa applicants for a migration outcome and that this should be reinforced by a robust penalty and conviction framework. It deals with the situation where a person with connections to China says to a person, 'I will sponsor you and give you the job. If we've got a skills gap, I will give you the job, and you will actually pay me.' In certain circumstances people would be so keen to come to Australia because of our higher standard of living and our great system of support, so they would say, 'All right, I'm happy to get my wage in one hand and give a backhander to the employer or the sponsor,' so that they are able to stay in the country because the clock would be ticking, and so they could apply for citizenship down the track. That is not what the 457 skills gap visa was intended to do—not at all. The 457 visa was designed to support an economy that was booming; it was not designed for people to exploit vulnerable people in other parts of the world.

As we saw recently with the Four Corners program looking at 7-Eleven, people on study visas can be exploited. It is easy for people to import their understanding of workplace relations from their country and what might be a reasonable wage over there and say, 'I'm prepared to get that here in Australia.' Obviously, that undermines the conditions of other workers. I know it is a problem. In fact, I have been talking to Ken Lai from the Taipei Economic and Cultural Office about catching up with some of the Taiwanese backpackers, people who come on working holidays. Some of them have been exploited, sadly sometimes by people from the Taiwanese community who are the unscrupulous people between the farmer or the producer and hiring Taiwanese backpackers. They are paying ridiculous amounts for accommodation, paying for transport to pick tomatoes and all sorts of things.

At the moment, the government has no specific powers to take legal action against such payment for visas activities. This bill will make such activity unlawful in relation to certain skilled work visa programs that have either a sponsorship or a nomination element. We know it can be exploitative. I have heard stories. I have had people come to my office to talk about their tales of where, if they speak up, they run the risk of their sponsor sending them out of the country. Previously if your sponsor, normally your employer, severed that relationship, I think it was in 28 days you were sent out of the country.

Sadly we saw sexual harassment, employers or sponsors requesting sexual favours so that they did not deport someone, particularly if they were near the end of their time in Australia where they were close to meeting the time frame so that they could apply for Australian citizenship. Such exploitation does occur and if people are lied to about their right to join a union, it can be problematic. This legislation is designed to reduce the chance of exploitation and to protect vulnerable workers. There is a Senate inquiry currently into that.

Based upon the submissions to the inquiry which we have seen, the Labor Party are going to suggest a couple of amendments to the government. Firstly, we are seeking to apply this bill not just to 457 visas but also to persons on student visas and to persons on working holiday visas. As I said, that is something we will be taking up with the Taiwanese representative in Queensland, Ken Lai. In fact, we are going on a road trip to talk to some of the Taiwanese community who are, it is my understanding, being exploited.

The second amendment is to make clear that the penalty regime outlined in this bill—which could in some circumstances apply to the visa applicant, the employee, who is often the vulnerable person—would not be able to occur in circumstances where it is clear that the visa applicant has been coerced by the sponsor or a related third party into offering, making, asking for or receiving a benefit, or if the visa applicant has been the subject of human trafficking, which does occur, forced labour or slavery offences under the Criminal Code. In other words, we want to protect the victims, the people who speak up about exploitation. We do not want them to be the subject of the penalty.

The third set of amendments the Labor Party will be putting forward is to increase the level of penalties for sponsors in respect of breaches of the immigration act—a further disincentive to them exploiting. The fourth amendment is to institute a new measure which would say that any person in this country who is working under a student visa or a working holiday visa would have to be employed as a person, rather than what often occurs nowadays where they say you have to have an ABN. They then have all the requirements that come with having an Australian business number. We would suggest that they should be employed under a contract of employment, to be treated as a real person. Too often people are exploited as a business. It does happen more and more where people are trying to get out of their obligations they have to their employees.

The fifth amendment is about protecting whistleblowers. We saw that in the 7-Eleven case where those brave people worked with investigative reporters from Four Corners to tell their stories. There just happened to be an observant member of the public who went to Four Corners and was able to detail this horrible exploitation where systematically—I should not say in every one of the 620 stores—there seemed to be underpayment of the 7-Eleven workers. Thousands of international students who were here to study were being exploited in the course of their work. The chairman of 7-Eleven, Russell Withers, did resign, but I do not think that is the end of this exploitation of people on study visas. So it is very important that there is a robust system of protection for whistleblowers.

The sixth amendment we will be putting forward is the requirement that the minister table an annual report about the operation and impact of the provisions introduced as part of this legislation. The seventh one is making sure that unions are part of this solution, where unions or registered employee organisations are able to undertake prosecutions for breaches of the Migration Act.

The Labor Party has come a long way in the last 130 years regarding workers from overseas; from having a closed, protectionist view to now accepting that overseas workers can play a valuable role. You talk to the organisers at the meatworkers union, and they will show you their newsletters in three or four different languages. They are happy to work with overseas workers, because obviously if everyone gets paid the right amount they are not undercutting the conditions for Australians. That is how the modern union movement is able to assist in making sure that the Migration Act does its job, which is all about making sure that people who come to Australia come here for the right reasons, that they work under the appropriate conditions; and that the exploiters—I am loath to call them criminals, but the people who exploit the aspirations of people in other countries—do not receive remuneration and do not make money off the sweat of the brow of these visa holders.

I commend this legislation to the House, particularly the robust penalty and conviction arrangements. It would be nice to see a few convictions occur so that the message is sent: 'Do not exploit these visa holders'.

Tony Zappia (Makin, Australian Labor Party, Shadow Parliamentary Secretary for Manufacturing) Share this | Link to this | Hansard source

I am pleased to follow the member for Moreton in this debate. This legislation, the Migration Amendment (Charging for a Migration Outcome) Bill 2015, touches on a matter that I referred to in a motion I had before the House just a month ago.

This legislation addresses one particular concern I had at the time and which I still have—that is, the issue of payments for visas; people were paying people here in Australia a fee in order to sponsor them to come over on a 457 visa. My view is that the legislation does not go far enough and should go much further. Indeed, that is what Labor's amendments do. The member for Moreton has just referred to all of those changes that Labor is proposing—all of which address other matters which have been identified as being problems in the current visa system we have in Australia, and all of these are matters which need to be addressed at some point in time.

I will just go through what those six or seven matters are: firstly, applying the same provision to all visas and not just 457 visas—that includes working holidays and student visas—and if time permits I will come back and explain why I believe all of this is necessary; secondly, protecting workers who have been coerced into doing the wrong thing; thirdly, increasing the financial penalties proposed under this legislation; fourthly, preventing student and working holiday visa holders from obtaining an Australian business number; fifthly, protecting whistleblowers, as we should do; and the sixth point is that the minister should be required to provide an annual report with respect to the progress of this legislation. It seems to me that if the minister does not accept all of these amendments the report is largely diminished. The last point is that of allowing unions to bring civil penalties against employers who also abuse the system.

It is increasingly evident that the visa system we have in Australia is being rorted. It is not only a result of what we have seen in the media and stories that have been followed through and investigated by different journalists. If you get out and about in the community, as I do, and speak to employers, or if you get in amongst the communities out there themselves, different ethnic groups that have come to this country, you soon work out and you soon understand what is effectively going on.

My concern is that this legislation is only being introduced by the government in response to the public backlash with respect to rorting. It is well and truly understood out there in the community but it has to date been allowed to fester. The government would not have brought this legislation to the House were it not for the exposes that have been provided by the different media personalities and investigators. My view is that it is only being done because it is a way for the government to divert attention to what is a very serious issue in this country.

Indeed, as I have said on other occasions, it probably suits the government agenda to push down wages by allowing overseas workers into Australia, because those workers, as we know, are more likely to work for lower wages. I suspect that this legislation is being brought into the House as a last resort. As a result of the exploitation of workers in this country and as a result of the rorting of the migration system and the different visas, wages have been pushed down across a whole range of sectors. That means that the nearly 800,000 Australians who are looking for work are put in a position where they are more likely to accept lower wages as well in order to get a job.

Indeed, I have spoken to families who tell me that members of their families simply cannot get a job. In one particular case, it was a young person who would have been prepared to work in a 7-Eleven, a cafe, a restaurant, a hotel or a retail outlet where the jobs were being taken by visa holders. Yet these people were missing out.

I assume the only reason the jobs were being offered to the visa holders is that they were being paid at a lower rate of pay, because otherwise I can see no good reason why that would have been the case.

The real test of the government with respect to this legislation is whether it will effect the amendments that Labor has put up, because those amendments broaden the scope of what we should be doing. We currently—when I say currently, I mean these are the last figures I was able to get—have in Australia about 106,000 457 visa holders, about 160,000 working holiday visa holders and at any given time between 300,000 and 400,000 student visas and another 60,000 or thereabout illegal stayers. I do not believe for a moment that all of those visa holders are here and legitimately complying with their visa conditions. Indeed, it is my view that many of them—even those that are not here on working holiday visas, student visas or 457s and so do not have an entitlement to work—are also working in Australian industries. Perhaps they are being paid cash in hand, but they are working and taking jobs that could otherwise be done by Australians looking for work.

A few years ago I was briefed about one of the scams going on in Adelaide. It was to do with taxi drivers coming in from another country. They were in most cases students who were supposedly here on student visas employed by the taxi owners at very low wages, housed in cramped accommodation with many people to a house and paid a very low rate. They were prepared to do that job because whatever difficulties and whatever hardship they endured here was still better than what they were enduring back in their home country and it meant that they could still perhaps save a few dollars and send them back home, which is what they were doing. But the truth of the matter is that they were being exploited and they were only being exploited because a member of their own community, perhaps—and I say perhaps because I have no evidence of this—in cohort with different migration agents, was bringing them over here and then employing them to drive the taxis around Adelaide. My understanding as a result of the briefing I had at the time is that a lot of that has been stopped because of some action has been taken.

In a similar way, I have spoken to and been on horticultural farms where fruit pickers and horticultural workers are bussed into the property by an agent who in turn collects the full rate of hourly pay for them but then keeps most of it after deducting things like accommodation expenses, transport expenses, agents' commissions and so on. Again, the workers get very little, but what little they get is still more than they would have made if they had stayed back in their own country, and so they are in no position to complain, because they were at least able to send some money back home.

What is even worse is that I have been told stories of visa overstayers working cash in hand or, even worse, working for an agent who, at the time they were meant to be paid, instead of paying them rings up the authorities and says there is a group of illegal workers working on that particular farm. The authorities come in, arrest them, put them in detention centres and deport them, so the person who was meant to pay them does not pay them and keeps all of the money instead of just some of it. That is the kind of exploitation that has been going on with unscrupulous agents over the years.

Much of this is very difficult to prove at any one time, because no-one is about to go in and make statements. No-one is about to dob in fellow workers and so on. So it goes on, but the truth of the matter is that it also goes on because the department is probably underresourced and does not have the ability to go out there and do the inspections and monitoring that ought to take place.

If this legislation is going to have any effect, the first thing that needs to be done is to ensure that the department is properly resourced. If it is not then the truth of the matter is that we might have legislation in place and there might be the occasional time when some action is taken but generally speaking it will fail because it simply is not going to be monitored adequately.

I come to the last point, which really goes to the heart of this legislation. I have also been told by an employer that they were a substantial cash incentive just to offer an overseas worker a 457 visa contract. They did not have to do anything but offer that person a contract, and they would have been given a substantial amount of money. This was an ethical employer who was not prepared to do that and so it did not happen, but I suspect that the person who was trying to get into this country ultimately found someone else who would have been prepared to do it. So it does go on. I certainly support the intent of this legislation to, hopefully, stop that kind of practice from happening or at the very least, if it does happen, have severe penalties imposed as a result of it.

The penalties are one of the matters that Labor would like to see amended. We believe that the penalties do not go far enough. Given the amount of money that is sometimes involved in these scams—and I am talking about substantial amounts of money being paid to agents in order to get people into the country in the first place and also about the commissions and so on that I referred to earlier that are deducted from those payments—there are substantial amounts of money to be made by the scammers. Again I concur with Labor's position on this that perhaps the penalties need to be increased even further.

The last point I want to make is that it is rare that we ever hear from employers who in turn notify the authorities about the kinds of scams that are going on. I do not for a moment believe that an employer who is employing people who are in turn being rorted is not aware of what is going on. You would have to be pretty naive. I have been on horticultural properties and in factories and I have seen what goes on. And I think if I was an employer here, I would know exactly what was going on and how the people may or may not be being exploited, not by the employer but by the agents who are bringing those employees in. Yet the employers have very little incentive to do anything about it because chances are that the employers, to some extent, are also taking advantage of the employees—perhaps they pay them a little less or perhaps they work them longer hours and under worse conditions—knowing that these employees, who, in most cases, come from impoverished countries, have very few English skills and are not likely to cause problems or complain about the employer. That is why the suggestion by Labor that the unions ought to have a role in this, in the civil proceedings, is a fair one and one that I think could make a difference. The unions may have some understanding of what is happening in their industry and therefore may be in a position to expose rorting and abuse wherever it is occurring. For that reason, it is not only a reasonable suggestion but it would also, quite frankly, enable the government to ensure that the administration of its own policy is sound because it will have another set of people overseeing the immigration system and the process in this country.

I do not have time to talk about the seven amendments in detail as I would like to but it seems to me that if we are going to address the issues that we all know are out there—indeed, even the Joint Standing Committee on Migration, which is currently inquiring into the seasonal worker program in this country, is starting to get evidence that I think supports most of what I said—then let us do it comprehensively. The suggestions put forward by Labor make sense. They are based on factual findings and, in my view, would demonstrate the government's genuine commitment to fixing this problem.

Brendan O'Connor (Gorton, Australian Labor Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to this | Hansard source

I rise to support this rather modest bill, the Migration Amendment (Charging for a Migration Outcome) Bill 2015, because it is seeking to remedy some of the problems that currently confront the application and use of temporary visas in Australia. Labor does support the bill, but we think there is a requirement to go further in ensuring that we restore confidence not only in the 457 visa area but also in other temporary visa arrangements.

I think it is also important, by way of context, to provide some brief history about this issue. Of course the last piece of legislation enacted in the previous parliament went to introducing labour market testing for 457 visas covering a significant number of occupations under that particular scheme. At the time that was being proposed in this place, it was opposed vehemently by the then opposition, the now government. They voted against the proposed legislation but nonetheless the legislation was enacted and it became law. Notwithstanding the promises of the then opposition and even of the shadow minister for immigration—the now Treasurer—to repeal that legislation, I am glad to say that the government has not moved on its intentions to repeal what was very important legislation to protect not only the interests of the 457 scheme but also to protect the interests of workers in this country who are looking to find work at a time of growing unemployment.

It is also important to note that the arguments that were waged against Labor for introducing that bill referred to us as xenophobic and racist—very similar to the arguments recently waged against us by the trade minister when we raised legitimate concerns about the deficiencies ChAFTA with respect to labour mobility. Again, happily, we managed to settle on some of the matters in that particular recent disagreement. Nonetheless, it does show that the government has, on occasion, resorted to quite extreme and unfair language when seeking to have a conversation about this very sensitive and very significant area of public policy. Equally—and I think it is also important to note—even though we were attacked at the time for introducing the legislation, not only has the government not sought to repeal that legislation but the trade minister and others have used that legislation as a defence as to why there were sufficient protections currently in place domestically to protect against any of the problems that might arise as a result of entering into a trade agreement with China. So it has gone from a full-on attack to supporting, it would appear, at least on the face of it, legislation that was introduced in June 2013 by the previous Labor government. I believed then, as the former immigration minister, as I believe now, as the shadow minister for employment and workplace relations, that there was still more work to be done in this area.

It is fair to say that the proportion of people in our labour market who are under temporary visa arrangements is very significant today compared with yesteryear. Fifteen or so years ago you might have seen one per cent and possibly up to two per cent—but I do not think it would even reach that far—of people on temporary work arrangements. Today, of course, we have a proportion that is heading towards 10 per cent of our labour market. Some have said it is less, but, on a closer examination, we find that it is close to 10 per cent. Some would argue that it is 800,000 or in excess of one million workers who are on those arrangements. Therefore, I think it is important we have a regime in place that not only protects the interests of those people who have been subject to exploitation but that also prevents unfair downward pressure on employment conditions in this nation because of the misuse of the scheme—that is, using the 457 arrangements when there is not a shortage in particular areas of our labour market, not paying the requisite income to 457 visa applicants and not actually employing them in the job that was on the form that was filled out and provided to the department of immigration. There was a series of significant abuses of the scheme.

We found out even more about that before the last term ended when we—that is, the former Labor government—empowered the Fair Work Ombudsman to investigate breaches of the 457 visa scheme. Indeed, the recent report by that independent agency found some very significant breaches, I would say widespread breaches, of that scheme. These were reported by that body to the minister, and they have done some very good work in the circumstances. If you think about it, if we had not empowered the Fair Work Ombudsman we would have had the department of immigration, with the very scarce resources that it has, dealing with very significant matters and having to continue to deal with this issue alone. Far fewer inspectors work for the department of immigration than work for the Fair Work Ombudsman, so it was a very good reform—increasing manyfold the resources to look at breaches and to respond to allegations of misconduct, exploitation and abuse of people. Again, we are glad to see the government has not sought to change that, although we were criticised at the time it was introduced.

But as the shadow minister for immigration has said in his contribution to this debate, we think we can go further than just the bill itself. As previous speakers have noted, the bill will make it unlawful for a sponsor to be paid by a visa applicant for a migration outcome, and that this be reinforced by a robust penalty and conviction framework. That is the recommendation of the independent review established by the current government into the integrity of the subclass 457 program, and we think that recommendation can be realised by the enactment of this legislation, and that is a good thing. Again, given there are examples of people who are on these visas seeking to game immigration—that is, willing to pay to be on a 457 visa or pay part or all of their income just so they can come to this country and not for the purpose under the particular visa that would apply to them—we also think it is important that this legislation will seek to remedy that arrangement. Just like we have seen education as an export industry being gamed for immigration purposes, so to have we seen examples of gaming here where people have sought to rort the system, if you like. This legislation introduced by the government will go some way to remedying that issue.

One point in respect of that current recommendation, and it something we will be seeking to amend in the Senate, is that the penalty should not apply, cannot apply, to a visa holder who is found to be coerced by the sponsor or a related third party into offering, making, asking or receiving a benefit. So while we say that of course there should be criminal penalties apply to the sponsoring employers if they have done the wrong thing intentionally, and potential civil breaches and penalties apply to an applicant who is misusing the scheme, we would also say that if someone has been forced into that situation or has made decisions under duress, then we would not want to think that the minister would use his or her power to penalise that person. We do not believe that is the intention of the legislation. It may well be, but the government can clarify that for us or they can accept the amendment as will be proposed by the opposition in the other place when it is being debated there.

Among other things that I wanted to add to this debate, and this is by way of a question to the government: I wonder why there has been no movement on some of the other recommendations of the independent review? For example, the independent review talked about imposing a training levy on employers, which I think is a very good thing. It is something that should be considered. One of the reasons we use temporary visas is because of skill shortages. There should also be a policy intent to ensure that employers understand that we are also obliged to train our own workforce. It should not become the first option to be looking elsewhere when there are 800,000 people unemployed, and many more underemployed. We think the training levy not only can act as a form of affecting the way in which people might make this decision, because it will be a cost to the employer, but it is also a cost that is consistent with the policy approach that is certainly taken by Labor and hopefully by this government.

The review also recommended a tripartite body be established, an advisory body. We wonder whether in fact the government may want to contemplate—given Malcolm is waxing consensual about wanting to talk to all and sundry these days about everything, and he keeps referring to the ACTU in dispatches, he might want to consider, therefore, given it is a recommendation of his own review, including unions along with employers and other bodies on a tripartite advisory body to advise government on these matters. It is something that we had in the past. It was repealed by this government, but it should be considered again. It is a recommendation of their own review, and if the Prime Minister's words mean anything to him, then it is something they should consider.

Apart from those recommendations that have already been made to government by its own review, the shadow minister for immigration has also referred to other amendments we intend to move in the other place, including expanding the scope of the bill, expanding the provisions of the bill, so that it applies to all work related visas—sponsored or nonsponsored, including working holiday and student visas. If you were to look at the highest profile stories that are in the public realm about the exploitation of overseas workers on visas, most of these examples are actually not about 457 visa applicants. They include 457 applicants but the majority of them happen to be those on student visas and working holiday visas. So it would be remarkable that we would not seek to broaden the legislation to include penalties in cases where employers employ a particular worker who may be on one of those other two visas and seeks to get money from them in a particular way. Why wouldn't we consider issuing some penalty to them? I understand the review was confined to certain matters, but I think this piece of legislation could certainly look at broadening the oversight of these penalties to those areas.

We also believe that there should be an increase in penalties for sponsors. The proposed penalty for employers or visa holders complicit in asking for, offering, making or receiving a payment for visas should be increased. Sponsors convicted of an offence under the act should also have their ability to sponsor new visa holders suspended for a maximum of two years. Recidivism is rife in this area, and, to prevent repeat offending, I would have thought that we would bring in stronger penalties for those who have already committed offences so that they do not factor in the penalty into their business model—'We'll be penalised, we'll cop the penalty, we'll continue offending'. We should make sure that there is an increased penalty for intentional and repeated breaches of the provisions of visas and of this legislation.

Given the tenuous hold that we have on people who are on temporary visas, we think that those on student visas and working holiday visas should be prohibited from obtaining an ABN and therefore prevented from acting as a contractor or subcontractor. We believe it is far better for it to be a relationship of undertaking work pursuant to the work visa arrangements than one that is an employment relationship. Again, we think that is something the government should entertain. This would reduce the risk of exploitation, and I think for that reason— (Time expired)

Alannah Mactiernan (Perth, Australian Labor Party) Share this | Link to this | Hansard source

I, like all of my colleagues, support the Migration Amendment (Charging for a Migration Outcome) Bill 2015. I also endorse the comments made by previous speakers that this bill does not go far enough.

Today, I wish to talk about a problem that is going to be coming to us down the track. Now that we have entered into multiple free trade agreements—the Japan-Australia Free Trade Agreement, the Korea-Australia Free Trade Agreement and the China-Australia Free Trade Agreement, and I will not necessarily incorporate the Trans-Pacific Partnership in this, because I am not familiar with the labour movement of people provisions within that document—I want to make some comments about an issue that I anticipate, and other people are anticipating, will arise from the KAFTA and the ChAFTA agreements.

These comments are in relation to the provisions within those documents that relate to the supply of contractual services. We know that there are an ever-expanding range of occupations, certainly not just managerial professional but a very broadly defined range of technical skills that are caught within these free trade agreements for which there is, very explicitly, no labour market testing. I am not talking, at this point, about those things that are subject to the IFAs, because we did get some modest labour market testing requirements incorporated into that, but those substantial provisions of KAFTA and ChAFTA where, indeed, there is no labour market testing, and it may be even with the IFAs, because the provisions for labour market testing have been so modest.

This arises around the sale of jobs. The legislation that we are contemplating makes it illegal for people within Australia to engage in conduct that you might describe as selling a job. There is some capacity for some extra territorial application of this legislation, both in terms of the criminal and the civil provisions, but they are constrained. The real bulk of where we are going to see this problem emerge, in my view, is not going to be captured at all by this legislation.

I know from talking to people who routinely do business in China that there are many jobs that are for sale—for example, if you wanted to get a job at the Shanghai port. I am not necessarily talking about the senior executive positions but where one pays someone for that job. This is repeated, as I understand it, in many areas within China and very often when—as I have personally witnessed throughout South-East Asia—there are many Chinese projects and they bring in their own workforce and their entire construction programs. For example, in East Timor all of the Chinese aid projects that came in, such as building the presidential palace and building foreign affairs departments, involved a totally Chinese workforce.

Now, it is very possible that there could be—and I am not making the allegation in respect of those particular projects, but one would be naive to think that there would not be, in some areas—the sale of these jobs. People who are obviously very desperate and very keen to get the opportunity of working in Australia for Australian wages would be prepared to pay an agent or a prospective employer for the opportunity to take on that job. As far as I can see, even looking at those provisions that give some extended extraterritorial reach, in this legislation we are not necessarily going to be able to prosecute this sort of conduct. Imagine that we have a project that is going to be developed by a Chinese company, a company that is resident and registered in China. It or certain executives perhaps of that firm engage in conduct that would see those jobs effectively being sold. The jobs that involve coming to Australia and delivering the project in Australia—that opportunity being a very marketable asset—could be sold.

When I look at this—and I note the ministers' advisers there, and I would be very interested to see—I hope I have got this wrong. When I look at the extraterritorial provisions, those companies would not be able to be prosecuted in Australia. They would not be able to be fined. I think we could deal with this. We could deal with this insofar as making an amendment, perhaps, to the Migration Act such that, if they are bringing people in under contractual services, there is some requirement for them to be registered in some way within Australia so that these provisions, the reach of this protective legislation, are available.

I do not want to become overwrought about this particular problem, but I understand from reading the literature on these cases—and I have no capacity to judge whether or not it is a fair and reasonable assessment of the cases—that this is something that is going on and that we are seeing around the world something that is almost approximating a system of indentured labour. A person buys a job. They or their family then become obligated in their home country to pay either the employer—who, being a foreign national, is not necessarily captured by this legislation—or a third-party provider in a foreign country, who is not captured by this legislation. They are required over a period of many years to pay off a debt that is incurred by virtue of their entering into this employment opportunity in Australia. There are some who say that we risk going back to a situation of indentured labour, which was endemic throughout South-East Asia and indeed for some time in Australia.

Again, I do not want to be overwrought about this, because I do need clarification on this extraterritorial reach, but I do think we need to flag this as a problem. We need to flag this as a problem that arises out of the fact that now the 457 visas that will be granted for the contractual services—indeed, possibly even the IFA—may become assets to be sold in another country to people desperate to make a better life for themselves and understandably wanting to take this opportunity. We view these workers as being paid the equivalent of Australian workers, and that is very important, but we cannot guarantee to what extent they may in their home country in fact have a big debt bond that will be required to be paid by them or by their family.

I just want to flag that as something that I think is an issue that we are going to have to deal with, that we are going to have to grapple with, over the next couple of years because it will be a serious issue for us. I think there is a great naivety that is often shown by proponents who say: 'Why would these foreign employers want to bring in their own workforce when they can employ Australians? They don't have to fly them over.' As I say, we know that at least part of the answer is that there is the capacity to benefit from the sale of the jobs. It is not the worker that is necessarily getting the benefit but indeed the proponent, or it might be people acting illegally within the proponent but nevertheless getting the benefit of selling these jobs and really undermining the protection that this legislation purports to give us.

With those comments, I will leave it, but I just say that I think that we need to have a much greater watching brief on how the importation of overseas workers occurs under these new free trade agreements.

Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Foreign Affairs) Share this | Link to this | Hansard source

I am pleased to add my contribution to this debate on the Migration Amendment (Charging for a Migration Outcome) Bill 2015 because there are serious issues with the 457 visa program and the way that it operates in this country, particularly in an environment of higher than average unemployment, which has been rising over the past couple of years. I have had many representations from constituents regarding some of the issues associated with the 457 visa program. Most notably, I have sat with workers in the IT industry who worked for large insurance companies and banks for many, many years and were made redundant, only to be replaced in their jobs by 457 visa workers. In the ultimate insult, they were asked to actually train up those workers that took their jobs.

The number of occupations on the 457 visa list has grown exponentially over the past two years, particularly since it was established. I do not believe that it represents the original purpose for which it was established and that there are a number of issues with it. This bill deals with one of those issues, and that is the issue of an applicant being paid in return for a visa outcome. The bill implements a recommendation of the independent review into the integrity of the 457 visa program, namely that it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome, and that this be reinforced by a robust penalty-and-conviction framework. This bill implements that conviction framework, and I support that implementation. But there are other areas that this bill could deal with, and many of those problems have been illuminated over the past couple of weeks with the negotiation of the China free trade agreement and the Korean free trade agreement.

The independent review found that some sponsors in the 457 visa program had been paid by visa applicants in return for a visa outcome. Now, this is clearly a fraud. It is not the basis upon which that visa program was established. We all know that many of the 457 visa workers are aiming at permanent residency, and to use this channel and to manipulate the system in this manner is unconscionable. It is pleasing to see that the government is finally acting on this.

The bill also introduces a new civil penalty provision which will provide for a fine to be imposed on visa applicants or holders, or third parties, who offer to provide or who do provide a benefit as part of a payment-for-visa arrangement. Finally, the bill introduces new discretionary powers to consider cancellation of a temporary visa or a permanent visa where the visa holder has engaged in payment-for-visa activities.

I believe that these reforms are a good first step, but that they do not go far enough. There is clearly further work that needs to be done by the government on improving the temporary work visa system that operates in Australia. We have seen over recent weeks, highlighted through the debate that has occurred with the China free trade agreement and the Korean free trade agreement, that the provisions are not operating in the way that they were intended to when they were set up. And they are being manipulated in certain industries by certain employers and by other applicants.

Labor believes that there are other areas where we can make a difference—where we can tighten the system to ensure that it again reflects the original intent for which it was established. Many of those suggestions—helpful suggestions—were made during the recent Senate inquiry into this bill. Based on the submissions to the inquiry, Labor, through the member for Corio, the shadow minister, has proposed a number of amendments to the bill that would mean it applies to all work-related activity visas, including working holiday and student visas. This comes on the back of the high-profile incidents, including those involving 7-Eleven workers, which highlighted the conduct targeted by this bill as occurring not just with sponsored visas but also with student and working holiday visas.

In that particular case we have seen manipulation and exploitation of workers under temporary work visa programs, contrary to Australian law, to ensure that there was undercutting of wages and conditions that Australian workers ordinarily receive for doing this work. There have been a number of cases highlighted in the agricultural industry of manipulation of temporary work visas in that particular industry; again, employers and contractors—people who provide services to bring people into Australia on these temporary visas—manipulating Australian laws and ensuring that people are not paid the appropriate wages and conditions when working under Australian awards and in concert with Australian laws.

The amendments that the shadow minister has proposed will ensure that penalties cannot be applied to a visa holder found to have been coerced into offering, making or receiving a benefit. The minister should also be unable to cancel the visa of a person subjected to human trafficking, forced labour or slavery offences. These amendments go to resolving the unintended consequences of this bill. Again, these are some of the issues that were highlighted in the Senate inquiry and which we believe are important issues. If you like, they are ancillary issues that have been associated with this bill but which do, nonetheless, need to be fixed. Labor believes that the recommendations of the committee and the amendments that have been proposed by the shadow minister will deal with these.

I also believe that the original bill and associated penalties are too low to have the desired effect. While the bill provides for criminal fines of $64,800 or civil fines of $43,200 for individuals, there is evidence that the windfall from committing offences such as those that are the subject of this bill—paying for a migration outcome—can be as much as $70,000, and up to $700,000 for a sponsor dealing with multiple visa holders. So, clearly, the penalties that are proposed in this bill are manifestly inadequate. They do not deal with the issue that has been identified by the inquiry and they do not deal with the issue with an effective enforcement mechanism to ensure that these practices do not continue into the future. If we are going to make this bill strong and if we are going to make this bill worthwhile we need to make sure that there is no financial incentive for applicants or employers to engage in these fraudulent activities. And we are not going to do that with the measly sums that have been suggested by this particular bill.

We have also proposed that workers on student and working holiday visas be prohibited from obtaining ABNs and that whistleblowers who report instances of charging for sponsorship related events should have adequate protections, including amnesty from visa cancellation. This deals with the case that we have seen, again, coming through the evidence of the inquiry and anecdotal evidence that I and my colleagues have received of individuals being asked to obtain Australian business numbers, or ABNs, and set themselves up as businesses to avoid some of the scrutiny and the obligations that are imposed on visa holders as workers when they come into Australia under temporary work visas. We believe that adequate protections—including amnesty from visa cancellation, flexibility in finding a new sponsor and allowing complaints to be made to the Commonwealth Ombudsman when the Department of Immigration and Border Protection may have a conflict—are other sensible amendments that can be made to this bill.

Under Labor's amendments outlined by the shadow minister, the minister for immigration would also be required to table an annual report with regard to the impact of the legislation, while civil penalty proceedings should be able to be brought by unions relating to worker exploitation to increase the resources aimed at addressing this behaviour. So these are two further measures that we have suggested that will improve the operation of the temporary work visa system in the country. One is ensuring that there is greater transparency in the way that the system works, because we all know that there is a clear lack of information, particularly for new applicants when they are coming into the country, and there is a clear lack of credible information about how the system is actually working. You get these conflicting reports. We saw it in the debate regarding the China free trade agreement, where there were words in the side deal that was done by the Minister for Trade and Investment in respect of investment facilitation agreements, saying that there will not be any labour market testing for people coming into Australia to work on projects over $150 million in value, but the minister came out and said, 'No, that's not the case at all; there will be labour market testing.' On my reading of that side deal, there was not labour market testing, and that is why Labor moved some very sensible amendments to the general operation of the migration laws, and thankfully those amendments were adopted by the government, because they are sensible amendments that strengthen the operation of these provisions. So greater transparency and greater reporting and accountability to the parliament on the operation and impact of this legislation will be worthwhile, as will allowing unions to operate in the civil penalty regime, as they do in many other jurisdictions, most notably in workplace relations, occupational health and safety, and workers compensation jurisdictions. It ensures that you have additional enforcement and additional eyes on the operation of the scheme to ensure that it works and meets its intended aims.

In conclusion, I support what is proposed in this bill. My view is that it does not go far enough. There are further reforms that can be made, because this will not deal with a number of the issues that will be ongoing. I commend the shadow minister for making the recommendations that we have made, and Labor will have more to say on this issue in the lead-up to the next election.

Joel Fitzgibbon (Hunter, Australian Labor Party, Shadow Minister for Agriculture) Share this | Link to this | Hansard source

Mr Deputy Speaker, we are just sorting out our speaking arrangements. We are just so enthusiastic on this side to tackle the government on the deficiencies in the Migration Amendment (Charging for a Migration Outcome) Bill 2015. While we are looking a little bit messy, and I know it is bordering on disorderly of me, I want to recognise my daughter Grace, who is in the gallery this evening with her very good friends Sophie and Oliver. This is the first time I have had the opportunity to recognise one of my children in the gallery since my maiden speech in 1996. Given that that anniversary is just around the corner, it is very nice to do so again today. Grace has just become very famous with an appointment to the local commercial radio station as a journalist, and I get to officially congratulate her as a member of parliament this evening.

This is a very important bill, and the integrity of the 457 visa system is critical to the Australian economy. Therefore, we in the Australian community must have confidence in the system as we know it. It is bordering on outrageous that there is no sanction available under our law for applicants for 457 visas who might seek to bribe, in effect, a sponsor under the relevant act. Of course, we welcome the fact that the government has agreed to rectify that situation, but, as the shadow minister has indicated, we believe a lot more needs to be done to further build the integrity of the scheme and to restore public confidence. I will not go through those additional changes; the shadow minister has done so quite eloquently, and they are on the record.

I represent a mining electorate and have a very good grasp of the importance of mining to the Australian economy. Of course, in this place I am the spokesman for the opposition on matters of agriculture, and, as the previous speaker said, there are few areas in which the integrity of the visa system is more important than agriculture. So I have a deep-seated interest in this subject.

We have enough difficulty explaining to the Australian community that from time to time we will need to supplement our skilled labour in this country to do the things we need to do to further build and diversify our economy. We are a small island continent of between 23 million and 24 million people. Many of the projects that land in Australia, particularly some of the bigger mining projects and particularly some of the bigger iron ore projects, are very lumpy in their nature. During the construction phase, as we saw during the recent mining boom, the demand for skilled labour is very intense but short lived. So there will be times when, by necessity, we will rely upon the importation of skilled labour, and the Australian community, I think, struggle with that concept from time to time. They see a relatively high unemployment rate, deficiencies in our vocational education programs, and even a lack of competitiveness in our higher education infrastructure, and they struggle to understand why this is necessary. They have an expectation that their politicians will minimise our reliance on imported skilled labour, and I absolutely understand that. But, picking back up on my earlier points, the very nature of our country, our population and our economy means that from time to time, no matter how much better we deal with our skills formation and the improvement in our learning institutions, we as a country will always rely, in part at least, on the importation of skilled labour.

So, if we are to hope to persuade the Australian people of that point and to then maintain community confidence in the skilled visa programs, we must work together to ensure that the integrity of those programs is without question. This is a concept, or a principle, which very much applies to the recent debate we had in this place, and in the broader community, about the China free trade agreement. I think it is a settled issue now that the labour market arrangements under the China free trade agreement were less than optimal. Indeed, they were looser—for want of a better term—than those that were found in other free trade agreements and those which apply to our skilled migration program generally.

For the opposition to acquiesce on the China free trade agreement without challenging those provisions would have been a mistake on many fronts. The most obvious mistake, of course, is the impact on the Australian labour market—in other words, the unnecessary displacement of Australian workers by those from other countries. There is also the lack of confidence that might have driven in not only that free trade agreement but also other free trade agreements we might enter into in the future. It was important for the opposition to highlight those deficiencies, to stand its ground and to argue its case publicly. I think it is settled now that out there in the community the opposition was gaining very broad and majority community support for our campaign to make those changes. But the ongoing building of confidence in the system is the critical point here.

The Roy Hill mine was a subject of much debate when we were in government not that long ago. It is a very good example of the incapacity of a company, or an individual investor or a group of investors, to progress such a large project without being able to demonstrate to the financiers of that project that not only is the iron ore there, the volume there, and the right price there over the course of maybe the next two decades. It is also necessary for them to be able to persuade their bankers—who might be in London—that they will be able to secure the skilled labour necessary to get the project through the construction phase.

It is very helpful to be able to turn up to a London house and say, 'I have an agreement with the Australian government which assures me, if I am unable to secure the skilled labour I require in Australia, that I will, with great certainty, be able to import that labour into Australia.' That is a very small but, I think, succinct example of the importance of having certainty in the system and why we need to have a 457 visa program. It is also a reminder that if we are to continue to rely upon them we do need community confidence. This amendment that the government has agreed to this evening will go a long way toward that. Again, we believe we need more and we will continue to pursue improvements in the program.

I touched on agriculture. I have spoken a little bit about mining. Agriculture is increasingly becoming a capital intensive activity, and in many ways that is a good thing because it will increase our competitiveness in international markets. The dairy industry, for example, is highly automated these days. But increasingly the skills required for the agriculture sector to go up the value curve and to be internationally competitive are increasingly hard to find; and as a country we need to do more about that locally. That fact is that we have an ageing workforce in agriculture and the learning institutions which have traditionally provided those skills in the agriculture sector are not getting the interest from applicants that they were in the past. I have always said, 'Young people will come back to agriculture when they think there is a quid in it,' and I still believe that is true. But I think there is a role for government to strengthen our learning institutions, our course work and those things that will build the skills we need in agriculture if we are not going to be too reliant on the skills of others from other countries in the future.

The opposition welcomes the government's decision to support the cause for the sanctions against those who seek to pay sponsors for a 457 visa. But, as outlined by the shadow minister, we think there is a long way to go yet to produce an optimal outcome in this area of public policy, and we will continue to pursue those in the future.

Pat Conroy (Charlton, Australian Labor Party) Share this | Link to this | Hansard source

I am pleased to make a contribution on the Migration Amendment (Charging for a Migration Outcome) Bill 2015. No Australian wants people who are working on a legitimate visa to be exploited. Australians have legitimate expectations that all workers will be paid Australian wages and enjoy Australian wages and conditions. The House will be aware of the recent coverage on Four Corners which revealed that the 7-Eleven chain was underpaying its workers in more than 600 stores, or allegations to that effect. This is not right in Australia in the year 2015. No worker should be exploited. That is why Labor supports this bill and will be moving several amendments in the other place which enhance and improve the bill and widen the scope of protection for workers.

Section 457 visas allow non-citizens to work in Australia where there are skills gaps in the labour market. My colleague the member for Corio rightly made the point that these types of visas must be strictly confined to the work they are meant to be doing and the workers must not be exploited and abused as a type of cheap labour. Labor therefore welcomes the government's moves to create further protection for workers. This bill implements a recommendation from the independent review into the integrity of the 457 program—primarily that it should be made unlawful for a sponsor to be paid by a visa applicant for a migration outcome and that this should be reinforced by a robust penalty and conviction framework.

It is particularly remarkable that we are debating this now. The 457 visa system has been around for over 20 years. The fact that we are only now debating a law that makes it unlawful for a sponsor to be paid by the visa applicant for a successful migration outcome shows that this system is still in dire need of reform if we are to continue this system with the full trust of the Australian people.

Under the current provisions, the government has no specific way to take legal action against such a payment for visa activity. This arises where a benefit is asked for or received in return for a migration outcome. Thankfully, this bill does provide that such an activity is unlawful regarding certain skilled work visa programs that have either a sponsorship or nomination element. And that is fair enough. The ostensible aim of the 457 visa system is to fill short-term skills shortages in a particular firm. It is not there as an entry path to permanent migration, and there should be no incentives in place where the temporary skilled migrant pays the employing sponsor for a particular outcome.

As I said previously, Labor welcomes the fact that the government is acting in this area, but we will be moving amendments in the Senate to improve this bill. Labor will propose that the provisions of this bill be applied to all work related visas, including working holiday and student visas, and not just be confined to 457 visas. It is difficult to argue that some classes of workers should be protected from exploitation and others not; yet this is what this bill does by demarcating between 457 visa holders and other forms of working visas. The 7-Eleven scandal shows that workers on all types of visas are affected by some scurrilous individuals and are worthy of protection by the provisions in this bill.

Labor will also move amendments to ensure that penalties cannot be applied to a visa holder who has been coerced by the sponsor into offering, making, asking or receiving a benefit. Workers should not be punished for being exploited, and it is important that amendments to that effect are supported. Labor will also move to increase penalties for sponsors who engage in this unconscionable conduct and also to put in place provisions which ensure that workers on student or working holiday visas are prevented from having an Australian business number to ensure that they cannot be employed as contracted or subcontractors. The final amendment relates to whistle-blower protection and for the Minister for Immigration and Border Protection to provide an annual report about these new provisions in the bill. So, as far as it goes, the bill is a step forward and it is important to support it, and Labor will proudly support it. But it does not go far enough, and we will be moving amendments to strengthen and broaden it and improve the oversight provision.

Like many other Labor speakers in this debate, I now want to move on to some general reflections on the 457 visa system. The 457 visa system has been the subject of a lot of debate—recently as a result of the China free trade agreement, but it is an issue that comes up regularly. If it is to continue, the Australian people need to have confidence in the system. They need to have confidence that it is working appropriately to fill short-term skills shortages and that it is being enforced properly—and that starts with politicians understanding how the system works.

My grave fear is that the China free trade agreement demonstrated that those opposite, the coalition government, do not understand the system. They do not understand how it works in practice. They do not understand the loopholes in the system and they do not understand the implications of the changes they made in the China free trade agreement. For example, labour market testing does not apply to Chinese 457 visa holders who come through the chapter 10 movement of natural persons. This is not in the industry facilitation agreements. Thankfully, Labor closed that loophole and now labour market testing must apply in that area. But, for chapter 10 movement, which is for all 457 visa holders who are approved individually in ASCO levels 1 through to 4—so the traditional 457 visa system—no labour market testing will be applied. That is of real concern.

Unfortunately, we could not touch it without affecting the trade agreement. The Minister for Trade and Investment got sold a dud. He got presented with a choice. The Chinese wanted freer movement of capital and the ability to purchase Australian agricultural property and other forms of land at the same level as our other trade agreements specified. He was not prepared to do that, because the National tail that wags the coalition government would not allow it. Instead, he sold out Australian workers by removing labour market testing, so that Australians are not required to be given first opportunity to win these jobs before an employer can then apply through the 457 visa system. Labor made some significant improvements in the agreement, and overall the agreement was worth signing and approving through parliament, but that is a loophole that unfortunately we could not fix entirely because of the way the agreement was negotiated by the minister for trade.

The broader 457 visa system is in need of deeper reform. At a recent Senate estimates hearing it was found that 20 per cent of the visas Fair Work Australia monitored in the 457 visa system were either not being employed against the position that they were applied for or were being paid incorrect salaries. Let me repeat that: of the 1,500 visas that Fair Work Australia inspected, 20 per cent were not compliant. If we extrapolate that to the number of 457 visa holders in this country—which is 105,000 primary 457 visa holders—that would apply to 20,000 visa holders not being paid the correct salary or not being employed against the position for which they have been brought into the country. That is incredibly problematic, because that points to exploitation on a mass scale. That they are being paid a lower salary than they should be or are being employed against a position that they should not be is not only bad for the migrants but it also undermines Australian wages and conditions. That is incredibly concerning and it reflects a system that is deeply in need of reform.

This is goes to why some employers use the 457 visa system. Recent studies have shown that a significant minority, about a third, of employers who use the 457 visa system do not use it to fill short-term skills gaps—which is ostensibly the purpose of this system. They use 457 visas because employees under these visas exhibit certain behavioural traits that they like, primarily due to their dependence on the sponsoring employer. So one-third of 457 visa employers surveyed identified limited mobility for the 457 visa workers and a perceived higher commitment to that firm as reasons for bringing in those workers. It is incredibly concerning that a third of employers under this system surveyed—and it may not be a representative sample, and I hope to God it is not—are not bringing in these workers to fill a skills gap; they are bringing them in because they are seen as more compliant. That is why more and more Australians have concerns and doubts about the 457 visa system.

That is problematic because we do need temporary skilled migration to this country. We need employers and companies to have the ability to fill short-term skills gaps, but to do that the Australian public need to be satisfied on a range of issues. Firstly, they need to be satisfied that there is a genuine skills shortage. Secondly, they need to be satisfied that the employer has long-term plans in place to do the training so that Australians can do the jobs. Thirdly, they need to be satisfied that Australians have had an opportunity to win that job—that there has been genuine labour market testing and a not a 'tick and flick' exercise, which, unfortunately, is what occurs all too often through this process. Fourthly, they need to be satisfied that migrants who come in under this system are paid the fair market wage. I think there is a strong argument to increase the tiers very significantly, if not across all industries then at an industry-by-industry level, so that it is a genuine market wage. Fifthly, the Australian people need to have confidence that there is adequate enforcement. As late as only a year ago, there were only 37 inspectors overseeing the 457 visa system. That has now increased to 300 but those 300 inspectors not only have to oversee the 457 visas but they also have to oversee the entire industrial relations system.

More reform is needed. I am going to be a champion within my party of that reform because we do need temporary skilled migration in this country, and I absolutely support that. I support genuine employers who do the right thing having access to the program, but we need to have the system watertight so that we do not see the abuse and exploitation we are seeing now that gives the system a bad name, that exploits migrants and undermines Australian wages and conditions. I commend this bill to the House. I think it urgently needs to the passed, but it needs to be passed with Labor's amendments.

Nick Champion (Wakefield, Australian Labor Party) Share this | Link to this | Hansard source

It is a great pleasure to follow the member for Charlton. He is a passionate advocate of justice in this area, and it is justice that the Labor Party seeks—justice and a fair go not just for Australian workers but for workers all over the world. We believe in a wages system and an immigration system that protects Australian workers and protects guest workers who have come to work in this country under various visas, whether it be a 457 visa, a student visa or a backpacker's short stay visa. This is an important bill. It is important to say to the government that we welcome it. It is a good idea for them to make it unlawful that a sponsor be paid by visa applicants for a migration outcome and that there be a robust penalty behind that framework—that is an important thing.

The Senate Education and Employment References Committee on 19 June 2015 heard evidence from some nurses. I know, because when I was in the Health portfolio I took a particular interest in what happens in nursing—that is, we have thousands of nursing graduates every year who are unable to find work in Australian hospitals and unable to get their graduate position. They often move between states when they cannot find a position in their own state, but they are sometimes unable to get a job or a graduate position at all. There are up to 3,000 graduate nurses who cannot get a spot in Australian hospitals, but at the same time we have a number of nurses coming in under 457 arrangements. The Australian Nursing and Midwifery Federation is not against 457 visas. The 457 visa holders often become members of the federation. They often end up becoming permanent residents or citizens of the country and are often the strongest unionists you can find. But there is this concern, of course, that when there are people graduating from university—having paid for their degrees and having had the public make a contribution as well through taxes and through the higher education system—we cannot match up those graduates with graduate positions in our hospitals. It is a very serious matter that we should all be concerned about, and it is very important to the health pipeline.

Interestingly enough, the Senate committee heard some evidence from Mrs Alferaz, who was a 457 visa holder. According to the Senate references committee Hansard, on page 16, she was charged a fee of 'between $2,000 and $3,000' that was 'simply monies that the employer sought for the privilege of supporting the 457 application.' It was a nursing agency that sought that money. There is quite a bit of evidence there, including from Mr Blake, who was giving evidence on her behalf. He said:

… in Mrs Alferaz's case, during her time of employment with the same aged care employer, she sought the employer's support for an application for permanent residency and was told, 'We will support you, but it will cost an additional $3,500.'

So we have a situation there where it is not just the 457 visa that is up for a fee, but also permanent residence of Australia. Nobody in this place would think that this was a fair state of affairs or a just state of affairs. She was, incidentally, also underpaid while she was here to the tune of $65,000, which is a concern in and of itself. This lady, Mrs Alferaz—I believe she was a nurse from the Philippines—came to our country to work, was underpaid, and then faced demands for money to get a visa and to get permanent residence.

This is clearly not what we would anticipate would go on with Australia's immigration system. This should be fundamental to our character as a nation. We regard ourselves as believing in a fair go; it is a very tightly held belief in our character. We believe that we are a fair country. And it is not just a matter of belief. Any Australian on the main street out there, in Gawler, in Sydney or in any part of this country would regard the idea that employers or sponsors or people in third countries should be profiting from our immigration system and our visa system as totally repugnant. It is absolutely a stain on our national character and it is a stain on our industrial relations system because here we are saying, 'We're a fair country. We believe in a minimum wage. We believe in award conditions.' Frequently we have politicians on both sides getting up in this place and talking about that, yet here we have a visitor to our country, a guest worker in our country—and that is what 457 visas holders are. They are guest workers. This is not a skilled migration program anymore. It has morphed into a guest worker program and that is what the backpacker visa is morphing into. It is morphing into a guest worker program where people are not here for holidays at all. They are not European backpackers here to do a bit of fruit picking but rather there are organised labour hire companies bringing people in from various countries and systematically using of them in labour hire. The same is happening with student visas as well.

These are very serious issues. I do not want to bore people with headlines but The Australian on 6 August said, 'Australia Post contractor arrested in alleged student visa scam'. There we have not just a very large Australian employer, Australia Post, but a government-owned entity which uses labour hire companies where the contractor was arrested for not only defrauding the Commonwealth but also for falsifying documents such as police checks and student records. So there is profiting not just at one end of the system, not just off the backs of the labour of students who are in this country, but profiting the other way, charging them for a course as well, in effect, turning our student visa program into a scam. That is just not acceptable.

The idea that major employers would be willing participants in this in that they do not have systems in place to prevent it is an absolute outrage. If major employers, including Commonwealth-owned entities think they can get away with saying, 'Oh well, we had an audit system. It was a subcontractor. They told us they were doing the right thing' and then dusting their hands off and away we go, if they think anybody is going to believe that or cop it, that may happen the first time around but not forever. I say to major employers in this country that you had better have your audit systems in placed and they had better be real audit systems to catch these situations because if they are revealed in the press and they are revealed to the parliament, you should not expect that there will not be a response.

Ben Schneiders and Royce Millar—I have not always agreed with these two reporters but they have done a good job revealing in the Sydney Morning Herald on 2 October 2015 under the headline 'Black jobs: rampant exploitation of foreign workers in Australia revealed', the ads that are now online all of which breached the minimum wage. What are student visa applicants, foreign backpackers and people on 457 visas supposed to think about Australia when they find that they are treated in this way, that we say up one thing and we do another, that they are brought here with the expectation that they are coming to a developed country with good laws and good outcomes for workers and they are treated in a manner that is not consistent with our laws?

On 23 June this year, ABC News, 'Asian workers told to lodge bogus refugee visas at Baiada poultry plant; workers afraid to speak out.' Again, here we have Malaysian workers at Baiada's poultry plant in Beresfield, near Newcastle, charged up to $3,500 by a labour hire agency to file an application for a protection visa. It is just extraordinary. I am glad the government is responding with this bill but these headlines demand a robust response.

I note in the case of Baiada and in the case of many of these employers they have made undertakings to the Fair Work Ombudsman and I think that is a good thing, but I say again: employers have to be aware that their corporate reputation is something to be valued and they do not want to be associated with the practices which I think we all would regard as completely abhorrent.

Labor's amendments are good amendments. The government is in this brand new spirit of policy discussion, listening and having a bit of a free for all on tax and a whole range of other areas. I am not sure whether they have any new policies in the Abbott-Turnbull, but we have good amendments which should be adopted, amendments that expand the scope of the provisions of this bill to all work-related visas, sponsored and non-sponsored and including working holiday and student visas. You only have to look at 7-Eleven and some of these other cases to know that, if you close the loop holes for 457 visas, the characters who are exploiting this visa classification, they will simply move to other visa categories and seek to profit from those. With all this regulation we are now learning, sadly in a whole range of areas, that you need to have things as tight as a drum.

Our second amendment relates to criminal offences and civil penalties. It is important to have criminal penalties in this, not just the cancellation of visa. We want to have increased maximum penalties in terms of imprisonment and in terms of fines and I think it is important to lift those to make it quite clear to all concerned that that will not happen. We want to make sure that workers on student visas and on working holiday visas do not get ABN numbers. That was a feature, I think, of the goings on at Australia Post—they were all on ABN numbers and were in theory contractors. It was certainly so in the case of Baiada poultry where people were defined as subcontractors.

In terms of our amendments, we want to protect whistleblowers. It does not seem sensible to put the visa holder in a position to seek redress under the industrial relations scheme but they then have to lose their visa. That places them at such a disadvantage; they would never present themselves to authorities in that situation. So we want to make sure that these guests in our country, these guest workers, are treated decently and that they are not the ones who pay the penalty; they should not be sent packing because of some of these employment relationships and scams that go on in this area.

We want to make sure there is a report by the minister to this parliament. I think this is terribly important. As the member for Charlton said, this whole area demands a bipartisan response, but certainly a response from the Labor Party. It is our intention to protect Australian workers and foreign workers, so it is important that we have that information.

Finally, we want proper investigation and compliance, and that includes civil penalty proceedings being able to be brought by unions in these cases. People opposite want to pummel unions, but often—and I know this to be the case in terms of the NUW in South Australia—they are the people who are blowing the whistle on many of these situations. They are often the people who are doing the good work exposing some of these rorts.

So it is important the government consider with haste our amendments. I suggest they adopt them all. I certainly hope that we find some agreement across the chamber and I commend the bill to the House.

Julie Owens (Parramatta, Australian Labor Party, Shadow Parliamentary Secretary for Small Business) Share this | Link to this | Hansard source

On the mosque open day a week or so ago, I went down to the Gallipoli Mosque and was chatting with some of the Turkish-Australian community, which is very large in my electorate of Parramatta. I was reminded of one of the great stories of Australian migration, the Turkish migration of the late sixties, when Australia needed workers. And we needed a lot of them. We negotiated with the Turkish government to bring in a whole range of workers from Turkey. The Turkish government only wanted to give them to us temporarily; they wanted to take them back. We argued that we wanted to keep them, and we engaged, as Australia often does, in one of the great permanent migrations.

My community throughout Auburn and down through Granville, which is incredibly successful and a wonderful addition to our country, moved here in those times. So I am a great fan—and if you live in Parramatta you must be—of permanent migration. We have an extraordinary community of workers of all kinds that we needed at various times in our history, including the great IT migration at the height of the IT boom.

But the 457 visa is almost the opposite. It is the temporary visa that allows people to come to Australia for a particular reason, for particular periods of time, to work and then leave and go back to their home country. These 457s also fill an incredibly important role in this country. As a system that serves Australia well, it needs to be protected from the kinds of dreadful stories and behaviours that are circulating now.

You can see really clear examples of where 457s totally work. In the recent construction boom in mining, a mining company would require, say, 12,000 workers to build the mine and then only 2,000 workers to operate it. There is no way in the world a country like ours could train that number of workers for such a short period of time and then have them back on the unemployment lines again with nowhere else to go. In circumstances like that where we need workers to come in temporarily and fill a skill gap, 457 visas are incredibly valuable.

But I would like to remind the government—if members on that side have not been talking to their constituents about this—that there are a lot of people in our community who are currently extremely concerned about 457 visas and the way they are working. That is a bad thing, because we need our community to have faith in a system we need to work well.

The rumours that we hear and the stories that they tell me seem to be backed up by the submissions in the recent Senate inquiry and in the examples that have been exposed by members on this side in their speeches earlier tonight. We hear and we know that there are workers on 457 visas who are here because they can be paid less or because they can be employed under worse conditions. And they are treated that way. I meet people when I am out in mobile offices—who will not tell me their names and will not tell me where they work—who tell me they are being paid very low wages and being charged for rent and being charged to be here on 457 visas. This is appalling behaviour by employers but it is very difficult to get workers to come forward.

It is not a surprise when we find out that that behaviour extends through other areas as well. But on the 457s alone, I commend the government for introducing this bill to the House. It does something in its current form which is quite simple. Up until now, it has not been illegal to charge a worker to work for you on a 457 visa. We know there are employers that are doing that; they are literally saying to an employee, 'You pay me and I'll give you the visa', not the other way around. We have employers who we know are paying wages and then charging enormous amounts for very low-quality accommodation out the back in a container. We know employers are ripping off workers appallingly under 457s. We also know that one in five in a recent audit were non-compliant. That does not mean that all of those one in five were behaving this badly but it does mean we have a system that is appallingly exploited by some and disregarded in absolute terms by many.

So it is a good beginning for the government to make it unlawful for a sponsor to be paid by a visa applicant for a migration outcome, and for the government to enforce that provision by a robust penalty and conviction framework. That is the intention of this bill and that is a very good thing. I think it would probably surprise a lot of Australians that the behaviour that I described, of essentially enslaving people who are dependent on you to keep their visa, is not illegal at this point. But it will be when this bill passes the parliament.

We on this side of the House believe it is just a beginning and would like to see it go much further. For a start, we know—and I think all Australians know—that this exploitative behaviour does not just extend to 457s. We have seen it in the 7-Eleven case, and for those of us who talk to our constituents a lot it is probably not a surprise that students are being exploited. I remember that, when we were first elected in 2007, we had extensive exploitation in the student visa category and we had a lot of cleaning up to do over about the first two years of our government. That was not pleasant for us or for the people involved, but we did it. So it is not a surprise to find that students are still being exploited. We hear the rumours of restaurants paying $5 an hour or even asking people to work for free as a condition of their student visas. It is a common story and very difficult to prove, because people will not come forward because they are afraid of losing their visa if they do, but we hear of those stories.

We also have seen the expose of working holiday visa holders being sexually harassed, asked for sexual favours and exploited on various properties around Australia as well, so the exploitation that 457 visa holders endure appears to be flowing through a range of other visa holders as well.

We in our amendments, which will be presented in the Senate but I would like to talk through now, propose to expand the provisions of the bill so that it applies to all work related visas, sponsored and non-sponsored, including working holiday and student visas. Again, the Australian public needs to have confidence in these visas. They need to believe that these visas are not being used to drive down the wages of Australians or to exploit people who come here in good faith and provide a role which we need them to do. We actually need people to come and work in those regional areas. We need people to come and fill in the skill gaps. We as a nation would be appalled to think that we are exploiting people in that way. We are a developed country and we are better than that.

We seek to expand the scope of the bill. We also seek to protect visa holders who have been coerced by the sponsor and are including an amendment that says a penalty, including cancellation of a visa, cannot be applied to a visa holder who is found to have been coerced by the sponsor or related third party into offering, making, asking for or receiving a benefit. Similarly, the minister should not be able to cancel the visa of a person who has been subjected to human trafficking, forced labour or slavery offences under the Criminal Code.

We are also seeking to increase the penalty for employers or visa holders complicit in asking for, offering, making or receiving a payment. In other words, if the employer or the visa holder is complicit in this, we think the penalties the government is suggesting should be increased. Currently in the bill, the criminal offences have a maximum penalty of two years or a fine of $64,800 for individuals and $324,000 for corporate bodies, but there is evidence that the financial gains from committing these offences can be as much as $70,000 for an individual visa holder and up to $700,000 for a sponsor dealing with multiple visa holders, so the rewards for a person exploiting these visa conditions are extraordinary and the penalties in this bill do not match the reality of the return to those who are doing the wrong thing.

We are also looking to protect in particular student visas and people on working holidays from being forced to act as contractors and subcontractors. We are suggesting that people on student visas and working holidays be prohibited from obtaining an ABN and therefore prevented from acting as contractors or subcontractors. This would help reduce the risk of exploitation by ensuring that the visa holders work under a contract of employment, and in the case of students it would also enhance the ability of regulators to confirm that they are working the appropriate number of hours per fortnight, consistent with their visa conditions.

We are also seeking increased whistleblower protection so the whistleblowers who report instances of charging for sponsorship related events should have adequate protections. This would further enhance the penalties introduced by the bill and do more to reduce the exploitation of vulnerable workers.

We are also asking that the minister table an annual report on the operation and impact of the provisions. The bill does not currently impose any reporting obligations on the minister, and such a requirement would enhance the accountability and transparency of the system and act as an additional deterrent to sponsors.

We are also asking that civil penalty proceedings be able to be brought by unions in relation to the existing offences and civil penalties section of the Migration Act and the new civil penalty provisions. The model used in the Fair Work Act is the recommended approach. Allowing unions to bring civil penalty proceedings relating to worker exploitation will increase the resources applied to addressing this behaviour.

I strongly urge the government to consider improving this bill by adopting these amendments. Their bill is a good start but we have a long way to go on this, and 457 visa holders are not the only ones who need protecting. We have seen the treatment of the 7-Eleven workers. That is the one that has been exposed. Rumour and evidence to the Senate inquiry indicates that it is far more widespread than 7-Eleven alone, and we as a nation can do much better in protecting those who come to Australia in good faith to work for this country at a time that we need them. I strongly commend the amendments to the government.

Rob Mitchell (McEwen, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the Migration Amendment (Charging for a Migration Outcome) Bill 2015. The substance of this bill is important. By getting the policy settings right, we will protect the rights of workers in all our communities. My electorate of McEwen in the north of Melbourne includes farming areas like Seymour. Because we are lucky to have such a vibrant, closely connected, multicultural community, we are all about ensuring that our workers are not exploited, no matter where they come from—whether they are Australian or working under a visa. Concerns have been raised in the electorate regarding the exploitation of overseas workers who are paid at lower rates and employed with lesser conditions than those of Australian workers. In most cases, the individual with the working visa is not aware that they are being underpaid until they speak to people in similar occupations or to industry unions. I guess this was the case with the 7-Eleven workers who have been spoken about so comprehensively throughout this debate.

As I said, we need to get the policy settings right, and this can only occur through proper legislation. The framework must ensure that the rights of workers are protected and upheld. The amendments that Labor have put forward will go a long way to ensuring that outcomes delivered by this bill are both fair and effective. The Abbott Turnbull government, on the other hand, still have not implemented one of their own recommendations: the delivery of policy options to protect vulnerable foreign workers. This is all becoming much too predictable. The Abbott Turnbull government announces it is going to do something, and then it fails to deliver. They are stacking up; they are things like the NBN, the Medical Research Future Fund and now policies to protect workers and Australian employment conditions.

This bill will be strengthened by the proposed amendment to expand its scope to all overseas workers, whether they are on 457 visas, working holiday visas or student visas. Strengthening the penalty regime associated with the bill demonstrates to workers, employers and families that we take the issue of workplace rights and conditions very seriously. Increasing the penalty amount for visa sponsors found to be in breach of the Migration Act will have some deterrent value. Including specific provisions that remove the liability of workers who are victims of exploitation is fair. This measure, along with the increased protection for whistleblowers—one of the most important things that we can do—will encourage victims to speak out. By doing that, by allowing and giving people the opportunity to speak out, we will be able to work very closely on removing the scourge of people being exploited by employers.

The proposal for the minister to table an annual report about the operation and the impact of the provisions of the bill will help to evaluate its overall effectiveness. Evaluation of the provisions of this bill, along with the associated transparency that an annual report will provide, would become increasingly important as our free trade agreements—the TPP, the ChAFTA and any other bilateral agreements—are rolled out.

With higher unemployment in Australia and higher-than-average unemployment in my electorate of McEwen, it will become even more important for the government to consider more recommendations coming out of the Azarius review. A key recommendation was to establish a tripartite ministerial advisory council, which would include the government and representatives from unions and employer movements. The role of that council would be to consider in what circumstances—where and when—it would be appropriate for 457 visas to be issued.

Having an oversight body like this would limit the opportunity for exploitation to occur and ensure that informed decisions are able to be made for Australia's workforce planning—that is, we could identify which areas have skills gaps and then consider ways to plug those gaps. If the need is immediate, do we need to bring in overseas workers? If it is not too immediate, do we undertake retraining and reskilling of the Australian workforce? There are plenty of people out there who can be retrained and reskilled—people who have been affected by this government's decision to shut down the automotive industry, putting many thousands of people out of work. In fact, I think if you look there would be nearly hundreds of thousands of people who are out of work in the automotive and ancillary industries.

These are important decisions, and it is reasonable to assume that a tripartite council could make the right decisions for Australia's future. I would like to think that a workforce planning strategy that supported local Australian workers would be a key platform of any employment framework.

The initiatives in this bill are a good first step in trying to address exploitation and fraud in the visa system. But the further measures and amendments that we have suggested will only strengthen the overall effectiveness. By supporting this bill, we not only take steps to protect workers on visas but also take a real step towards protecting employment and workforce planning for Australia's future in a transparent and accountable way.

There have been many stories relayed tonight about foreign workers who have been asked to pay as much as $70,000 up-front. People who have left countries like India to study hairdressing here in Australia, who have worked hard to support themselves and a child while they have studied, but who find out at the end of it that it is difficult to find a job. And then they are told, on applying to potential employers for full-time work under a 457 visa, that they need to front up with $50,000 to $70,000. That is not right, it is unfair, and we should be doing everything we can to stop these things from happening.

We only have to look at the transport sector to see the issues that we have with people who are out here being underpaid, not getting the proper wages and conditions that they should expect and being forced to live in cramped accommodation that is just inappropriate. As previous speakers have mentioned, people are being forced to live in shipping containers. This has happened right across this nation. I have seen it out in Victoria, where people were brought in to work on large trailer manufacturing. They were paid next to nothing; they were charged exorbitant rates to live in shipping containers and have their food supplied and things like that. These people have been exploited just so business can make huge profits on the products that it makes.

We need to stop this. We need to make sure that it does not continue, and that is why I think that we need to support the amendments that the opposition has put forward. It is one giant step in making sure that this scourge of people being exploited that faces our society is ended. With that, I support the Migration Amendment (Charging for a Migration Outcome) Bill 2015.

Ken Wyatt (Hasluck, Liberal Party, Assistant Minister for Health) Share this | Link to this | Hansard source

I thank their members for their contributions to this debate. The purpose of the Migration Amendment (Charging for a Migration Outcome) Bill 2015 is to amend the Migration Act 1958 to introduce a new criminal and civil penalty regime that will make it unlawful for a person to ask for, receive, offer, or provide payment and other benefits in return for a range of sponsorship related events. The bill also allows visa cancellation to be considered where the visa holder has engaged in such conduct, referred to as payment for visas conduct.

This bill reflects a key integrity recommendation of the Independent Review of Integrity in the Subclass 457 program:

That it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome, and that this be reinforced by a robust penalty and conviction framework.

This bill will apply to a range of temporary sponsored work visas and skilled permanent employer sponsored visas, where payment for visas conduct is known to occur, including the 457 visa, the 186 visa and the 187 visa. The practice of giving or receiving a benefit in return for visa sponsorship can have serious detrimental effects, including: making vulnerable noncitizens liable to exploitation, reducing employment opportunities and putting downward pressure on wages and conditions for citizens and permanent residents in Australia, allowing persons who receive payment in return for sponsorship to inappropriately make significant financial gains, and adversely affecting the integrity of Australia's migration program.

Payment for visas conduct is not currently unlawful. It is, however, unacceptable to the government and the Australian people, because it undermines the genuine purpose for which visas are intended to be granted. This bill will strengthen the integrity of Australia's migration program by deterring payments for visas conduct and allowing action to be taken where such conduct has occurred. The regime of offences, civil penalties and discretionary visa cancellation provided for in the bill will allow the Department of Immigration and Border Protection to take action across a spectrum of noncompliance, depending on the seriousness of the payment for visa conduct and the remedial action that is appropriate to particular circumstances.

The proposed amendments protect Australian workers, because they ensure that overseas workers who are employed in Australia and who may eventually gain permanent residence do so on the basis of their genuine skills and the need rather than because they have paid their employer. The proposed amendments protect overseas workers from exploitation by sponsors who threaten to withdraw their support in the visa or employment process if payments are not forthcoming. Employment opportunities in Australia should be earned not sold, and the employment of foreign workers should not act to undercut Australia's wages and conditions. The bill ensures that the department is able to appropriate action against unscrupulous people who have engaged in payment for visas conduct. I commend the bill to the chamber.

Question agreed to.

Bill read a second time.