Kim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Link to this | Hansard source

I rise to speak on the Migration Amendment (Charging for a Migration Outcome) Bill 2015. Labor supports this bill, which implements the recommendations of the independent review of the 457 visa program, chaired by John Azarias. Labor is broadly supportive of the review. We did not agree with all of its recommendations, but it has made important proposals for reforming the 457 visa system. Most notably, the review recommended the establishment of a tripartite ministerial council with government, employer and union representatives. The council would advise on the skills gaps in the Australian Labor market and in effect become the custodian of the 457 visa system. Although the present bill concerns only one specific recommendation of the Azarias review, Labor believes its scope should be expanded to include more of the recommendations, and we therefore intend to propose to amend the bill accordingly.

When foreign citizens reside in Australia, they hold visas that grant them the right to work, and a fundamental principle should apply. That is that anyone working in this country should do so under Australian conditions of employment. That principle should not only apply to holders of the 457 visas, but also to international students and to visitors on working holiday visas as well. Visas that give foreign citizens the right to work must not be used as a pretext for importing cheap labour, nor should the reasons for which these visas were instituted be undermined. For example, international students are granted the right to work so that they can support themselves while studying. It is the study that should take priority, not the work. The provision of international education services has become one of Australia's major export industries. It is worth $17 billion a year to the economy, so it is vital that the integrity of this industry should not be threatened by unscrupulous employers who underpay their workers and try to intimidate them into silence because they are on a student visa. We simply cannot have a situation where people are able to generate businesses which become visa factories. Of course, the point of that whole education scheme is in fact education, not an employment program.

We can look also at the working holiday visas, which bring tourists to Australia who contribute to the economy and often develop an affinity with the country during the time they are here. These visas build relationships between nations. Many young Australians are the beneficiaries of similar visas in other countries, especially in the United Kingdom. It is a longstanding arrangement that usually works well. However, that is all the more reason to prevent the flouting of visa conditions by employers who do pray on the vulnerable. Similarly, 457 visas are intended to be issued when there is a skills gap in the labour market. Their purpose is to allow enterprises to continue so that more Australian jobs will ultimately be generated. But, clearly, the visa gaps must be real and not contrived.

Senators will be aware that foreign citizens are not always employed under the conditions laid down in their visas. For example, recent investigations by Fairfax and the ABC uncovered the systematic underpayment of staff in the 7-Eleven convenience store chain, which had some 620 outlets across the country. These media reports found that thousands of international students whose visas gave them the right to work were in fact being exploited. A Four Corners program also found that many of the people with 417 visas who are employed in the fruit picking and packing industry had been routinely abused in their workplaces. These workers were frequently assaulted or were subjected to sexual harassment. In some cases women were asked to perform sexual services in exchange for a visa. These revelations in these reports are of course matters of profound concern, and that is why Labor moved to establish a Senate inquiry into temporary work in Australia. I know that in the meat industry there have been reports of abuse of these visas schemes for many years. It is particularly prevalent in regard to the backpacker visas.

You will note that no sooner is there an attempt made to draw attention to this than the unscrupulous, particularly labour hire companies, will move onto another visa class. We saw, for instance, some material put to air on 7.30last year which indicated there were 19 different abattoirs across three states employing more than 1,100 people and misusing various visa classes. They were particularly employing people from China, Taiwan, Japan and Korea who work in abattoirs at much reduced rates, under a complete abuse of the visa schemes that they had actually been attracted to. These companies were not paying Australian wages and conditions, and there is very great concern about whether or not they were paying appropriate taxation as well.

So for all of these reasons it is important that the measures in this bill now before the Senate be examined and supported. The Migration Amendment (Charging for a Migration Outcome) Bill 2015, now before the chamber, prohibits one practice that potentially undermines the 457 visas. The Azarias review recommended:

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 activity occurs when an inducement is sought or received or offered or provided in return for a migration outcome, and at present the Commonwealth has no specific legal power to act against this sort of corrupt practice.

With regard to the 457 visas, the sponsor will typically be an employer, and it is an employer sponsored visa program, so it is quite clearly inappropriate for the employer of a worker on a 457 visa to seek or accept a payment or other inducement in return for providing a job, which is why Labor supports this bill.

But there are other measures that Labor believes should also be included. We therefore intend to propose various amendments, as I have indicated, at the committee stage. These amendments would provide for a more vigilant enforcement of visa conditions and allow for better coordination of the immigration and industrial relations systems.

Firstly, this bill's provisions should not only apply to workers on 457 visas; they should be extended to international students and to people on working holiday visas as well. I make it clear that the penalties for sponsors who breach visa conditions should be strengthened. The specific penalties we propose will be set out in the amendments. Our amendments will also increase protection for visa applicants. In some circumstances employees could be subject to penalties for offering inducements of the type that I have referred to. The bill's penalty regime should not apply, however, to employees who have been coerced into offering payments, whether by employers or by third parties. Nor should it apply to visa applicants who have been victims of human trafficking, forced labour or slavery offences under the Criminal Code. It might be extraordinary for some people's minds that these things occur in this country. Clearly these are exceptions that need to be spelt out.

Further, to enhance the integrity of the visa system people employed under student or working holiday visas should not have Australian business numbers. In other words, if they are working under visa conditions, they should do so as part of a contract of employment. Labor also believes there should be legal protection for whistleblowers who reveal abuses of the visa system and the exploitation of those employed under it. I have already made reference to the 7-Eleven stores. An amnesty for whistleblowers was in fact given in that instance, and there should be a general legal protection provided as well. Workers who can provide evidence of abuse or corruption might be reluctant to do so if they fear that they will lose their visas or, of course, be deported.

Further, in the interest of protecting exploited workers, unions should be able to initiate prosecution of companies breaching visa conditions.

Finally, the minister should be required to table an annual report on the operation of the measures implemented by this legislation. The bill in the form that we have it is a necessary first step in preventing the exploitation of vulnerable workers, but it will be a much better bill if the measures that Labor is proposing by way of amendments are adopted, and I urge the Senate to undertake such a course of action.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

The Australian Greens broadly support the Migration Amendment (Charging for a Migration Outcome) Bill 2015 as outlined: making it unlawful for unscrupulous employers and sponsors to solicit vulnerable workers in exchange for visas and associated payments and take advantage of them in their applications for skilled or permanent visas. I concur with a number of the comments made by Senator Carr.

However, the bill does go far beyond the recommendations of the recent independent review, which the bill, through the explanatory memorandum and the government's response through the inquiry into this bill, claims to be based on. It goes beyond those recommendations in penalising visa applicants and the visa holders rather than just the employers and the sponsors as the original independent report suggested needed to be done. It is all very well and good, and I think it is important for us as a parliament to do what we can to ensure that people who are taking advantage of the situation are given the full brunt of the law and are not able to exploit the situation, but the visa holders who are caught up in this circumstance are the ones we need to be thinking a little more carefully about.

Visa applicants should not be penalised. I am concerned about a situation where visa applicants have participated in all the things that they should and been unknowingly exploited by this process. Under this legislation there is really no catch-all to ensure that applicants are not going to be unfairly penalised when in fact they have done nothing wrong.

Many visa applicants and holders, particularly those in the areas of migrant work, are vulnerable. They may very well not even know that they have engaged in conduct that is unlawful. It is therefore essential that a mental element be included in any offence seeking to penalise visa applicants and holders. There must be some element of proof of intent to ensure that we are not unfairly catching people who by no fault of their own have found themselves in this circumstance.

The bill may also extend to particular vulnerable workers coerced into a scheme against their knowledge. In this sense we need a little bit of grace for these people. Yes, by all means go after those who have created a business model for themselves based on the abuse of vulnerable people, particularly those on student visas, skilled migrant visas or working holiday visas. Go after the people who have knowingly created a business model for themselves by exploiting others, but let's have a little bit of a fair go for the individual visa holders caught up in the middle of this.

Of course, I am particularly concerned with the impact that this heavy-handed approach as outlined currently under this legislation will mean particularly for people who have been trafficked to Australia as workers. We know that the issue of people trafficking, particularly for domestic and other work based professions, is on the rise. It is on the rise across the world, including in Australia. All you need to do is listen to the rising statistics from the Australian Federal Police to know that there has been a rise in people being trafficked as workers, particularly domestic workers. I would hate to see a bill like this used to exploit the vulnerable, first by those who have contracted in a way to set up this visa scheme to exploit these people and then through the double-whammy for the visa holders themselves of being caught in the middle of a heavy-handed change to the law.

Finally, the bill affords the minister broad discretionary power to cancel a visa, regardless of whether or not the sponsorship event in question actually took place. I am sorry, but I find that a little difficult to stomach. I am not a big fan of giving this minister any more powers than he already has, particularly in relation to broadening his powers to take action when there is no proof as to whether a sponsorship event took place. I am not going to be taking the minister's word for it. There needs to be a little more evidence than that. Of course, when we are talking about the vulnerable people—migrant workers, people who perhaps do not speak English as their first language, those who are unaware of Australia's workplace laws in terms of conditions and those who have unwittingly found themselves in a situation where they have been trafficked—overwhelmingly those people are young people and women. That puts them in an even higher risk category of vulnerability. I am concerned that this bill, without amendment, will make it more difficult for those people to get the support and assistance that they need.

We know that there are some people who obviously are taking advantage of the situation. We do need to tackle that, which is why, broadly speaking, we support the legislation. But we want to see some changes in relation to ensuring that workers—visa holders—are not caught in the middle of this.

As I said, the independent review which made the recommendation that these legislative amendments occur was very clear that it too was concerned, particularly, that people who had been trafficked or those who have limited or no English language skills would cop the brunt of these changes if they were not handled sensitively. To that point, the Greens will be supporting the amendments put forward by the opposition. We think they go some way to dealing with these concerns and we look forward to having that debate in the committee stage.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I speak to the Migration Amendment (Charging for a Migration Outcome) Bill 2015 as chairman of the Legal and Constitutional Affairs Legislation Committee, which inquired into the bill. The committee looked at a number of the submissions, and I thank those who made submissions. We invited 151 people to submit and out of that we got I think 11 submissions. I thank those who did make a submission. I thank the secretariat and particularly the secretariat staff, who, as always, do a wonderful job in assisting the committee in reporting on these bills.

The committee made two recommendations, one of which was to ensure that a comprehensive consultation process was established and implemented with current and potential visa holders, employer groups and the migration advice profession to ensure that the changes proposed by the bill are well understood. The second recommendation of the committee was that the bill be passed.

This is another in the suite of bills proposed by the government intending to tighten entry into our borders. I think it is a very important part of the whole suite of measures coming forward. The committee recommended the adoption of the bill, and I also recommend to my colleagues that it should be adopted. I am pleased to see that the Labor Party is supporting the bill, as the Labor Party now do understand the importance of these measures. I appreciate their support. Because time is limited, perhaps I will not say much more except to repeat that the committee looked at all aspects of the bill and, subject to the recommendation that we have made, we recommended that the bill be passed.

Debate interrupted.