John Murphy (Lowe, Australian Labor Party, Shadow Parliamentary Secretary to the Leader of the Opposition) Share this | Hansard source

I rise in support of the Migration Amendment (Employer Sanctions) Bill 2006 and, of course, the amendment. This debate is very timely indeed. The bill’s passage through parliament comes at a time when controversy rages over some employers exploiting migrant workers who are in Australia on temporary visas, at the expense of local workers. The passage of this bill comes at a time when it is estimated that there are over 46,000 overstayers in Australia, of which 26,200 have been here unlawfully for more than five years. Without access to work over a sustained period, these overstayers would find it impossible to support their continued unlawful existence in Australia, so we must assume that many are also illegal workers. These overstayers are potentially taking jobs away from locals and from lawful residents.

The passage of this bill also comes at a time when the Howard government’s solution to Australia’s skills crisis is to import guest workers rather than to train our own. Notwithstanding the policy debacle that is the current skilled migration program, the government seems intent on compounding its policy errors by making operational errors. It has systematically run down compliance monitoring of employers to ensure they are not rorting the system at the expense of local workers. With its attack on Australian workers, through its so-called Work Choices legislation, the Howard government has not left much behind in the workforce that is good for our children, grandchildren, nephews and nieces. That is why this bill is so important—yet its passage is seven years too late.

Mr Deputy Speaker, you know that the bill’s genesis was the Department of Immigration and Multicultural Affairs Review of Illegal Workers in Australia: Improving Immigration Compliance in the Workplace, which was asked to analyse current approaches to combat illegal workers and whether legislative changes should be made. Even though that committee handed down its report in 1999, the government has taken seven years to look seriously at this issue. This has been despite the damning finding that, as at 30 June 1999, 53,000 people had overstayed their visas and 14,500 had been in Australia illegally for more than nine years, with many of them working in order to sustain their illegal existence in Australia. For these very good reasons, the government should have acted immediately to stem the tide of illegal workers in Australia.

However, on this side of the chamber, we have often had to live in the hope that the Howard government would slowly but surely find the will to pursue a just and orderly immigration policy. An orderly approach to immigration policy would have immediately recognised and acted on the fact that illegal workers, particularly those who have overstayed their visas, have taken job opportunities away from Australian citizens and lawful migrants. An orderly approach to immigration policy would have immediately recognised and acted on the fact that Australia is one of the few countries in the industrialised world that do not punish those who employ illegal workers.

Under current laws, there is no obligation on employers to check the work rights of employees, even where there is a substantial risk that those employees are not entitled to work. So it goes without saying that market forces could favour the employment of illegal workers, particularly when they may be paid unconscionably low wages and/or forced to work in substandard conditions. Indeed, in recent weeks we have seen numerous employers exploit the skilled migration visa program, thereby showing their utter contempt for ordinary Australian workers and law-abiding businesses.

Employers who have done the right thing by employing legal workers at fair pay rates and in acceptable conditions have for too long faced a competitive disadvantage within their industries. Members of the Howard government can feign surprise and concern at the damning number of illegal workers in Australia but, given the current state of our migration legislation, they have no right to.

On 29 May 2003, four years after the review’s findings, it was reported in the Herald Sun that the government had:

... no specific time frame on developing legislation to cope with employers who employ illegal workers, but the department said it was a priority for the Immigration Minister ...

It has taken a further three years to deal with legislation that apparently was a priority for the minister. If it has taken seven years to deal with a matter of priority, we can only assume that matters that have not been prioritised will make fascinating reading for those with a penchant for ancient history. Employers, along with ordinary Australians, must be shaking their heads at the ineptitude the government has shown in managing Australia’s immigration program. Had the government shown greater diligence, it could have done more to modify the behaviour of those who have contributed in no small part to the circumstances that led the 1990 review team to suggest that there was:

... sufficient evidence to conclude that the extent of illegal workers in Australia is a significant problem that denies many Australians the opportunity to access a job ...

and that:

Illegal work also places an additional burden on the Australian taxpayer in terms of compliance costs, uncollected taxes and fraudulently claimed social security benefits.

That was in 1999. Given the government’s lethargic response to these issues, things are no better today. Though quick to adopt the softer recommendations in the 1999 review, including the introduction of kits, information pamphlets and warnings for employers, the government failed to deal with the harder issue of implementing a sanctioning regime that could truly change or modify improper behaviour. It got to the point where, in 2004 and 2005, the Department of Immigration and Multicultural Affairs issued 2,280 warning notices to employers and labour suppliers—a point where DIMIA understandably threw its hands up in the air and, in an act of sheer frustration, said, ‘Enough is enough; the time has come for something to be done.’

By throwing in the towel on monitoring and sanctioning unscrupulous employers, the Howard government has given them the green light to continue their assault on Australia’s immigration system. Rather than feigning concern about illegal workers in Australia and then showing indifference, the Howard government ought to have put this bill in place seven years ago. We know that companies that should be brought to task by the employer sanctions under this legislation will not be. We know that that is because this bill, which should have come before this House seven years ago, is still not in place.

Members of the public are entitled to ask: why has it taken seven years to implement these relatively simple and yet important legislative amendments, and why has the Howard government responded disproportionately to different migration issues that, on their face, are equally important? The knee-jerk reaction flowing from the Prime Minister’s office in response to the granting of refugee status to 42 West Papuans saw the government attempt to push draconian legislation through the parliament in a matter of weeks. The government’s reaction to comprehensive evidence that tens of thousands of people work illegally in Australia has taken seven years.

While the government was willing to push through a cynical bill in a policy of appeasement to placate, however temporarily, the Indonesian government, it has taken seven years to assist its own workers. That contrast could not be starker. Did the Prime Minister honestly believe that pushing through legislation as a result of the arrival of 42 refugees would serve the Australian public interest more than pushing through legislation that deals with tens of thousands of illegal workers? What sort of government is this that it will change its laws based on one isolated incident of 42 West Papuans fleeing confirmed persecution while dragging its feet on legislative changes dealing with thousands of people who work here illegally at the expense of Australian workers?

It would appear that this government’s approach to policy development consists of flagrantly and gutlessly selling Australia’s sovereignty in a disgraceful act of appeasing other nations. Certainly, the Howard government’s approach to immigration policy tells us all we need to know about its priorities. Whether it is selling our sovereignty or using the issue of asylum seekers to exploit fears that may be legitimately held by the community, the government, in my view, has its priorities wrong.

Despite all of the attention devoted to the removal of basic rights and justice for asylum seekers in the name of border security, a potentially greater threat to our borders in Australian society comes from the tens of thousands of people who already live here illegally. One way of making Australia less attractive to these overstayers is to turn off the magnet of illegal jobs. Yet the very simple measures employed in this bill to turn off this magnet have languished in the minister’s office for seven years. That is a disgrace and a completely unacceptable response to the protection of our borders and the integrity of our immigration system.

Rather than talking tough and using asylum seekers as a smokescreen to conceal its failure to keep tabs on 46,000 illegal overstayers in our community, the government should start implementing important legislative changes that Australia truly needs. This bill is a belated step in the right direction. It is presently an offence under section 235 of the act for an unlawful noncitizen to work in Australia, for a noncitizen who holds a visa to work in contravention of their visa conditions. While illegal workers may be prosecuted under the current migration legislation, there is no scope whatsoever to prosecute an employer, irrespective of whether they knowingly or recklessly hired an illegal worker.

The Migration Amendment (Employer Sanctions) Bill 2006 contemplates four types of offences against employers: section 245AB, allowing an unlawful noncitizen to work; section 245AC, allowing a noncitizen to work in breach of a visa condition; section 245AD, referring an unlawful noncitizen for work; and section 245AE, referring a noncitizen for work in breach of a visa condition. Each offence may be aggravated, attracting tougher penalties, if the potential worker will be exploited and a person knows or is reckless as to that circumstance.

I note the Australian Chamber of Commerce and Industry’s concern about the alleged uncertainty surrounding the bill’s threshold test of whether a person has knowingly or recklessly committed an offence. I say to this concern that allowing the most reckless employers to get away with hiring illegal workers without punishment is no longer an option. It is not an option to allow employers to show the utmost contempt towards, or pervert our orderly system of, immigration and get away with it.

On this side we have long called for the government to meet the community’s expectation that employers who routinely take advantage of illegal workers will be prosecuted. It makes an abundant amount of sense to target, prosecute and punish those employers who continually breach the system, rather than continually targeting individual noncitizen employees. The collective power to put an effective stop to the rorting of our system lies with the employers, not with each individual noncitizen employee.

It is also worth noting that, while some employers remain concerned about these rules, the rules are not nearly as tough as they could have been under the regime proposed by the 1999 illegal worker task force. Indeed, these rules are not anywhere near as tough as the rules in other nations, where there is no need to show fault or recklessness on the part of the employer as an element in a cause of action.

Many nations have a strict liability regime: do the crime, do the time, irrespective of your state of mind. That is not what is being proposed in this bill. Indeed, employers are being afforded many luxuries within this bill that employees are not getting. The first is that prosecutors will need to show that the employer knew of or was reckless to the illegal status of a worker. It is worth noting that the element of recklessness has a much higher threshold than carelessness. While carelessness imports an objective standard as to what a reasonable person would have done in the circumstances, recklessness imports a subjective standard that focuses on the awareness of the specific employer. This is a threshold that is much higher to climb—some may say prohibitively so—than mere carelessness. It is also worth noting what the explanatory memorandum says with regard to the meaning of ‘recklessness’ in the context of this bill. It says:

… it would be necessary for the prosecution to establish that:

• there was a substantial risk that the worker was an unlawful noncitizen;
• the employer was aware of this substantial risk; and
• having regard to the circumstances known to the employer, it was unjustifiable for the employer to have taken the risk.

In turn, a substantial risk would be present if there were a high proportion of illegal workers in the employer’s industry, if the illegal worker said anything in a job interview from which a court could conclude that the employer was aware of the possibility that the applicant was an illegal worker, or if the employer had previously been given a warning for employing illegal workers. Given the numerous hoops through which the prosecution is forced to jump, many would argue that the government has taken a ‘softly softly’ approach to this serious problem.

The department has done what it can under the present legal regime to reduce the number of illegal workers in Australia. It is clear that voluntary compliance has not worked, given the number of employers who are not interested in cooperating. Given the department’s employment awareness campaign, entitlement verification online facility, faxback facility and illegal workers warning notices, there are no more excuses for employers to knowingly or recklessly employ people who are not entitled to work.

Evidence given to the Senate inquiry into this bill suggests that the department still retains some discretion as to when it should refer the cases to the Director of Public Prosecutions. In this light, the shadow minister for immigration was spot-on when he said he would monitor very closely whether renegade employers were being punished under those changes. Many employers have no reason to fall foul of the laws. The government has taken a merciful path with respect to employer sanctions, despite the recommendations of its task force and the experience of other countries.

In concluding, it is now up to the government to ensure that these new sanctions are administered sensibly, including but not limited to regularly undertaking compliance audits. History is not on the Howard government’s side, and this is why Labor will monitor the situation very closely.

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