Tuesday, 24 November 2015
Migration Amendment (Charging for a Migration Outcome) Bill 2015; In Committee
I would like to indicate to the committee that it is my intention to seek leave to move six separate blocks of amendments relating to the nature of visas, increased penalties, business numbers, whistleblower protections, reporting obligations, coercion and criminal offences and civil penalties in relation to visa holders. So I indicate that these are separate measures and I believe that we can vote on these as blocks. I seek leave, firstly, to move amendments (5) to (8), (10) to (18), (22), (23), (25), (27) to (30), (32) to (37), (39) to (44) and (47) to (55).
Yes, I will repeat that. They are amendments (5) to (8), (10) to (18), (22), (23), (25), (27) to (30), (32) to (37), (39) to (44) and (47) to (55).
by leave—I move opposition amendments (5) to (8), (10) to (18), (22), (23), (25), (27) to (30), (32) to (37), (39) to (44) and (47) to (55):
(5) Schedule 1, item 1, page 3 (line 11), omit "sponsorship-related event", substitute "migration outcome-related event".
(6) Schedule 1, item 1 page 3 (lines 14 and 15), omit "sponsorship-related event", substitute "migration outcome-related event".
(7) Schedule 1, item 1, page 3 (line 20), omit "sponsorship-related event", substitute "migration outcome-related event".
(8) Schedule 1, item 1, page 3 (line 23), omit "sponsorship-related event", substitute "migration outcome-related event".
(10) Schedule 1, item 3, page 3 (after line 29), after the definition of benefit in subsection (4), insert:
migration outcome -related event has the meaning given by section 245AQ.
(11) Schedule 1, item 3, page 3 (lines 30 and 31), omit the definition of sponsorship-related event in subsection (4).
(12) Schedule 1, item 6, page 4 (line 8), omit "sponsored visas", substitute "work visas".
(13) Schedule 1, item 6, page 4 (after line 24), after the definition of executive officer in section 245AQ, insert:
migration outcome -related event means any of the following events:
(a) a person applying for approval as a sponsor under section 140E in relation to a sponsor class;
(b) a person applying for a variation of a term of an approval as a sponsor under section 140E in relation to a sponsor class;
(c) a person becoming, or not ceasing to be, a party to a work agreement;
(d) a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa;
(e) a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;
(f) a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa;
(g) a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;
(h) a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa;
(i) a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a work visa has been granted, has been applied for or is to be applied for;
(j) a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;
(k) the grant of a work visa;
(l) a prescribed event.
(14) Schedule 1, item 6, page 4 (after line 27), after the definition of sponsored visa in section 245AQ, insert:
work visa means:
(a) a sponsored visa; or
(b) any other visa (other than a visa of a prescribed kind, however described) in accordance with which the holder may perform work:
(i) without restriction; or
(ii) subject to one or more work-related conditions.
(15) Schedule 1, item 6, page 4 (line 28) to page 5 (line 31), omit the definition of sponsorship-related event in section 245AQ.
(16) Schedule 1, item 6, page 5 (line 33), omit "sponsorship-related event", substitute "migration outcome-related event".
(17) Schedule 1, item 6, page 5 (line 38), omit "sponsorship-related event", substitute "migration outcome-related event".
(18) Schedule 1, item 6, page 6 (line 2), omit "sponsorship-related event", substitute "migration outcome-related event".
(22) Schedule 1, item 6, page 6 (line 23), omit "sponsorship-related event", substitute "migration outcome-related event".
(23) Schedule 1, item 6, page 6 (line 28), omit "sponsorship-related event", substitute "migration outcome-related event".
(25) Schedule 1, item 6, page 6 (line 31), omit "sponsorship-related event", substitute "migration outcome-related event".
(27) Schedule 1, item 6, page 7 (lines 12 and 13), omit "sponsorship-related offence", substitute "migration outcome-related offence".
(28) Schedule 1, item 6, page 7 (line 15), omit "sponsorship-related offence", substitute "migration outcome-related offence".
(29) Schedule 1, item 6, page 7 (line 18), omit "sponsorship-related offence", substitute "migration outcome-related offence".
(30) Schedule 1, item 6, page 7 (line 20), omit "sponsorship-related offence", substitute "migration outcome-related offence".
(32) Schedule 1, item 6, page 7 (line 24), omit "sponsorship-related offence", substitute "migration outcome-related offence".
(33) Schedule 1, item 6, page 7 (lines 32 and 33), omit "sponsorship-related offence", substitute "migration outcome-related offence".
(34) Schedule 1, item 6, page 8 (lines 4 and 5), omit "sponsorship-related contravention", substitute "migration outcome-related contravention".
(35) Schedule 1, item 6, page 8 (line 8), omit "sponsorship-related contravention", substitute "migration outcome-related contravention".
(36) Schedule 1, item 6, page 8 (line 11), omit "sponsorship-related contravention", substitute "migration outcome-related contravention".
(37) Schedule 1, item 6, page 8 (line 13), omit "sponsorship-related contravention", substitute "migration outcome-related contravention".
(39) Schedule 1, item 6, page 8 (line 24), omit "sponsorship-related contravention", substitute "migration outcome-related contravention".
(40) Schedule 1, item 6, page 8 (lines 32 and 33), omit "sponsorship-related contravention", substitute "migration outcome-related contravention".
(41) Schedule 1, item 6, page 9 (line 4), omit "sponsorship-related contravention", substitute "migration outcome-related contravention".
(42) Schedule 1, item 6, page 9 (line 8), omit "sponsorship-related contravention", substitute "migration outcome-related contravention".
(43) Schedule 1, item 6, page 9 (line 12), omit "sponsorship-related contravention", substitute "migration outcome-related contravention".
(44) Schedule 1, item 6, page 9 (line 14), omit "sponsorship-related contravention", substitute "migration outcome-related contravention".
(47) Schedule 1, item 9, page 14 (line 22), omit "sponsorship-related offence", substitute "migration outcome-related offence".
(48) Schedule 1, item 10, page 14 (line 26), omit "sponsorship-related provision", substitute "migration outcome-related provision".
(49) Schedule 1, page 14 (after line 27), after item 10, insert:
10A Section 487A
migration outcome -related offence means:
(a) an offence against Subdivision D of Division 12 of Part 2; or
(b) an offence against section 6 of the Crimes Act 1914 that relates to an offence against that Subdivision; or
(c) an ancillary offence (within the meaning of the Criminal Code) that is, or relates to, an offence against that Subdivision.
migration outcome -related provision means a civil penalty provision in Subdivision D of Division 12 of Part 2.
(50) Schedule 1, item 11, page 14 (line 31) to page 15 (line 1), omit paragraphs (a) and (b) of the definition of related provision, substitute:
(a) a migration outcome-related offence; or
(b) a migration outcome-related provision; or
(51) Schedule 1, item 12, page 15 (lines 4 to 14), to be opposed.
(52) Schedule 1, item 13, page 15 (lines 17 to 19), omit paragraphs (a) and (b), substitute:
(a) a possible migration outcome-related offence; or
(b) a possible contravention of a migration outcome-related provision; or
(53) Schedule 1, item 15, page 15 (line 25), omit "sponsorship-related provision", substitute "migration outcome-related provision".
(54) Schedule 1, item 16, page 15 (lines 29 to 31), omit subparagraphs (i) and (ii), substitute:
(i) a migration outcome-related offence has been committed; or
(ii) a migration outcome-related provision has been contravened; or
(55) Schedule 1, item 17, page 16 (lines 5 and 6), omit subparagraphs (a)(i) and (ii), substitute:
(i) the migration outcome-related offence or offences; or
(ii) the migration outcome-related provision or provisions; or
As I noted during the second reading debate, in our judgement this bill is defective in that the bill does not apply to all work related visas, including student visas and working holiday visas. It is limited to employer sponsored visas, but the kinds of exploitation that the bill seeks to prevent have arisen with regard to other visas as well. As we have seen with the 7-Eleven examples, these amendments extend protection to all holders of temporary work visas and subject their employers to the same penalty regime. A consequential amendment substitutes the term 'migration outcome related event' for the term used in the bill: 'sponsorship event'. The thrust of these matters is to provide proper protections, not taking away rights but actually enhancing the rights of visa holders when, as we have seen, there have been so many examples of people being ripped off.
We will not be supporting these amendments. Whilst the principles of the mischief that you wish to ameliorate are sound, this is specifically about particular coercion for a particular group. Government would say that it is not appropriate within this legislation to spread the mischief from actually coercive behaviour, in the purchasing or receiving of benefits from either the party of the person who receives the visa or in fact the sponsor who is assisting in providing the visa, to some issues around how much you actually get paid. They are significantly separate issues, and we would say that the matter that you are referring to should be dealt with by Fair Work Australia.
Looking at the amendments as circulated by the opposition, the Greens support them. We need to be clear here that we too are very concerned about the exploitation of people on those more short-term working visas or student visas. They are indeed some of the most vulnerable people working in our community and some of the most vulnerable noncitizens working in our community.
How much more evidence do we need than the scandal from 7-Eleven? I know it was a little bit of a Freudian slip by the Leader of the Opposition in one of his interviews, where he referred to 7-Eleven as Subway, but the issue here is surely that we would be naive to think that this type of exploitation of workers only happens within the 7-Eleven chain and franchises. We know that there are employers out there who are doing the wrong thing, particularly by young workers whether they are here on holiday visas or whether they are here on student visas, and they should not be able to get away with it.
Of course, there are some elements of being able to tackle this through the Fair Work Act and the Greens are doing what we can. The Member for Melbourne, in the other place, has introduced legislation to amend the Fair Work Act to ensure that there is responsibility for exploitation such as this to be taken right to the top of organisations that operate on these types of franchise set-ups. But here we are today looking specifically at issues that relate to the exploitation and wrong use of people on working type visas. Why shouldn't it also ensure that we protect those people who are here on student visas, working holiday visas and other types of short-term working arrangements?
I struggle to understand why the government is not taking this issue up themselves head-on. It is surely not a particularly hard line to draw if you want to crackdown on those who are doing the wrong thing in terms of employer sponsored visas. If the same credentials apply to them and you want to crack down on them then surely you are able to stretch that out and ensure that you get those who are amongst the most vulnerable of our non-nationals and non-citizen workers.
I have also got some questions for the minister. I raised in my speech on the second reading the big concern around these issues: that they do not just deal with the employers who have done the wrong thing but that they also capture the person who has been given the visa, who may have got into this situation unwittingly. I am drawing this question in the context of these amendments from the opposition because a lot of these students are people who have English as a second language and who do not have family supports around them. They are back home overseas. It makes them even more vulnerable. I think we should be going after the employers in this area, not the workers. I would like to know what the government is doing to ensure that we are not going to be tripping up and catching those who are actually the victims in this rather than the masterminds of unscrupulous behaviour.
Thank you for your question. This legislation deals with a class of visas that are sponsored. You need a sponsorship to come to Australia to have a work right. In the circumstances that you are describing there may well be mischief in that area, but their right to be in Australia is actually afforded invariably by a study right so it is not about the sponsorship issue.
Whilst I appreciate the very good remarks you make, the recommendation from the committee was to stick specifically to where coercion is able to be offered, where the coercion leans on your capacity to be in the country and the right to be in the country rather than on the right to work. For a student the right to be here to study is already conferred but they have a right which is very similar to other rights in the country, which is why it is our recommendation that that is dealt with through Fair Work Australia.
I understand the comments not put forward by the minister. The problem is that there is this intersection with these group of workers where they are being exploited because of the conditions on their student fees, for example, or on their working holiday visa. So employers are able to exploit them. It may not be that that is the reason they are sponsored to be here but because they are being forced to do things that are out of line with their visa conditions, that is where the coercion sets in. For a student who is forced to work more than 20 hours a week, otherwise they do not have a job, their employer will sack them, it is that type of exploitation. They cannot work legally more than 20 hours a week because they would be in breach of their student visa but here we have the employer exploiting that vulnerability.
I understand it gets into a grey area but it is a very clear intersection between the already large number of vulnerabilities of these workers linked into this business model from employers, whether they are sponsored work visas, whether they are keeping people here as low-paid exploited workers on other types of visas, these people are doing the wrong thing and the people who are copping it, if they speak out, if they do not comply, are the vulnerable workers caught in the middle.
I understand it does not fit exactly with what the government is trying to do in this legislation, but what we are pointing out here is that there is a big gap where most of the exploitation is happening. If we are not going to do it in this piece of legislation, where are we going to do it because it does need to be tackled? Perhaps the minister could give me some indication as to where the government wants to go. If not with these amendments, where are you going to pick up cleaning up the system because, for all the talk, we have not seen amendments to deal with that issue.
Thank you again for that contribution, Senator. I can only reiterate that for the particular legislation we are dealing with now a fundamental recommendation was that we deal with this particular part of it. That may be because of the complexity of the transaction between those two areas. I am not the minister; I am just acting on behalf of the minister so I cannot give you an answer about how those other matters can be dealt with but I am advised that most of the matters on which you are seeking clarification can be dealt with under the Fair Work Act. I can only reiterate that for the issues we are trying to deal with here, the threat of coercion deals with the right to be here in the country, not with any particular right to work. I acknowledge that in some of the circumstances you describe, an employer can coerce someone to work outside their visa conditions, but the mischief we are trying to ameliorate specifically in this legislation is where the coercion lies with their right to be in the country. I understand the connection you make is that you put your right to stay in the country at risk because you have been coerced to work longer. I accept that that is a mischief which may occur but again I reiterate that the recommendations which come with this legislation are specifically to deal with those matters where an employer or a sponsor is put in a position where they can exploit and coerce other people who wish to have a visa or outcome.
Minister perhaps you could outline to the chamber exactly what was the nature of the evidence that John Azarias found in his investigation about the exploitation of 457 visas. That is something the government directly acknowledges in this legislation because it says it is seeking to deal with that matter. Perhaps you could explain to us exactly what he found in terms of his report.
In broad terms there are a number of ways by which coercion can be provided. There are three classes. There is a class where the sponsor or the mischief the sponsor would indicate that they would seek to have some benefit to the sponsor: 'You'—the applicant—'will pay me a certain amount of money and I will provide the sponsorship.' It can be an existing sponsor. In my opening remarks I related to where an existing sponsor had a job or has work rights in this country, the sponsor can say, 'For a number of reasons I am able to breach my sponsorship or close off my sponsorship unless you continue to maintain or start paying funds' or some of the benefit to the employer. It may also be the case, and I suspect it is in a small number of cases, were a potential applicant offers funds to coerce a sponsor into ensuring that they provide the right sort of evidence so that the applicant for that visa class is successful. I hope that is of assistance, Senator. It is a broad range of the mischief that this legislation is trying to ameliorate.
I fully acknowledge that the government is doing the right thing in regard to that particular matter. That is not the issue. The opposition is supporting that aspect of the bill. The concern I have is that there have been too many examples now where there have been groups of people on visas other than 457s subject to exactly the same problem.
For instance, take the recent case where the Australian Federal Police have laid charges against three individuals relating to alleged fraud in the vocational educational system. The example that has been brought to our attention is of Australia Post. This is a government agency employing subcontractors—in this case, St Stephen Institute and Symbiosis, two colleges that were registered here. In fact, I think one of them was just recently given a seven-year extension on their registration without any site visit. Yet this college has been employing people to work for Australia Post and treating them very badly, to the point where fraud charges—which we know have a very high threshold for criminal proceedings—have been laid by the Federal Police against those colleges. There is another one, TK Melbourne Education and Training, which, as I understand it, has also been the subject of these actions by the Federal Police.
These examples are not historic. They are very much happening now. They are examples of people with visas other than in the 457 class who have been mistreated by employers. The 7-Eleven example has now become infamous across this country, and of course there are many others. My attention has been drawn to a raid that I understand Border Force officers undertook just last Wednesday at a house in or near Brisbane. According to reports that I have seen, the house contained up to 30 people from Taiwan who were operating what has been described as a 'boiler room'—that is, a high-pressure sales call centre. The boiler room was discovered when residents in the house tried to prevent the real estate agent from entering the facilities. Workers in this call centre probably could not be called employees because, as described, they were effectively slaves.
This is happening here now, and this parliament has an obligation to do something about it. We all know that 'slavery' is a pretty ugly word, and I am sure it shocks many Australians for us to use it. But that is the reality of what is occurring. As I understand it, the Border Force raid saw four persons expected to be deported for violating their 417 visa conditions. There needs to be attention paid to prosecuting employers who misuse these provisions.
I think it is reasonable to assume that these circumstances are just the tip of the iceberg. It demonstrates why it is necessary to broaden the scope of this bill. We can commend the government for taking action on 457 visas, in terms of payment for results. I acknowledge that that is a step forward, but it is nowhere near as good as we could get by simply acknowledging that there is a range of other visas where similar practices are occurring. In particular, I think the actions with regard to the backpacker visas have seen widespread abuse of those workers. The student visa provisions have been widely acknowledged to have been grossly abused by unscrupulous employers. That is why I am suggesting there needs to be action taken, consistent with the provisions that we are proposing, to extend protections to students and working holiday visa holders so that they can be treated properly.
It is no good saying, 'Take it up to Fair Work Australia.' That makes an assumption about the power relationships, and that people have standing and union protection, because it is often the case that unions play a vital role. If you are a student and you are placed in these circumstances, you are put at a complete disadvantage if you want to stay here. I did not come down in the last shower—I know that people do things that they should not do in terms of breaching their visas, but there have to be measures put in place so that people can come forward. That is why I argued in the 7-Eleven case that there needed to be an amnesty to allow us to get to the bottom of what was a systemic rort. The way this company was operating—their business case depended on it—suggested to me fundamental corruption of the system which required quite strong and deliberative action by this parliament.
That is why I am urging the chamber to examine these matters. I would ask you, Minister: when you say that these questions can be taken up before Fair Work Australia, what history do we have of that being a successful course of action for students or backpackers who are placed in this situation? How often does that occur and what are the results? I am sure the department has some statistical evidence. Given the level of abuse that the department knows is going on, what percentage of those people end up before Fair Work Australia and how long does it take to get your case heard?
I would just reiterate the motivation and the mischief that this legislation seeks to ameliorate. There is currently conduct that is lawful in Australia. All the circumstances that you have described, Senator, are currently unlawful in Australia. The motivation for this legislation is to ensure that those things that are obviously odious to the Australian public but currently lawful in Australia are now made unlawful by this piece of legislation.
You make a few references to circumstances where you wish to make amendments to include them in this legislation. As you would know, Taskforce Cadena, which is a taskforce made up of both Fair Work Australia and the department, is acting to ensure that those circumstances, as they come to bear, are investigated.
You did refer to boiler room activities and they are horrendous circumstances. I do not want to go into any great detail. Those issues are currently under investigation. The authorities are moving to provide a brief of evidence to prosecution, as they should under these matters, because those matters are lawful. But where a matter that is equally odious to us comes to the attention of the Australian government or the authorities, we cannot act on it because it is currently lawful in this country. So this legislation specifically seeks to ensure the right to remain in this country. As a sponsor, people are using coercion, at one level or another, to ensure that they can gain access. After this legislation, that will be unlawful. Where one party has been coercive in their behaviour, that will be unlawful and various authorities will now be able to act.
Some submitters expressed concern that the amendments to section 116 of the bill will give the minister an unrestricted power to cancel a visa if a benefit was received by a visa holder in return for the occurrence of a sponsorship related event. Can the minister confirm whether the minister will have an unrestricted power to cancel a visa?
You are correct, Senator, but it will be a discretionary power. The reason it will be discretionary is that we are talking about circumstances under which the person who is in the country with a visa has acted in a way that coerces an employer—and I would say those circumstances would be extremely rare—where they are party to ensuring that they benefit. There may be circumstances where a clear benefit does not flow to that visa holder. The minister then has the discretion to look at all those circumstances to ensure that there is ample evidence that the person who is the applicant for the visa is a beneficiary of some of those transactions. That will be a discretion held by the minister for those reasons.
There were some concerns that, if this bill is passed, the minister may cancel the visa of a person who has been subject to human trafficking, enforced labour or slavery related offences under the Criminal Code or serious exploitation in violation of the Fair Work Act. Can the minister please advise what safeguards are in place to ensure that such cancellations do not occur?
Under this policy it is the intention that visa cancellation would not be pursued where payments have been extracted under coercion or in circumstances of slavery or human trafficking. That is exactly what that discretion is intended to provide.
It was submitted to the Senate inquiry that the threat of cancellation of a visa is likely to have the perverse outcome of assisting those engaged in human trafficking and shocking workplace exploitation by further deterring victims of such crimes from reporting the crimes against them if they have been offered a sponsorship related event. Can the minister please advise what is in this bill to prevent this perverse outcome from occurring?
It is the intention of this bill to protect not only the process but also those who are legitimately here with work rights from being exploited. So I guess the burden of evidence that would operate around the issues that the minister may take into consideration in his discretion would be the role that was actually played by the applicant. It is very difficult for someone in those circumstances to put their hand up and say they are in those particular circumstances. I acknowledge that. But in the nature of these crimes that is often the case. But once discovered, which is the circumstance we are talking about, if we were able to establish that the sponsor was actually providing the coercion to the worker—if we talk about the circumstances of the workplace, I think I have covered that in my answers to the last couple of questions from my colleague opposite. The clear intention of this legislation is to prevent the mischief of the sponsor coercing the individual who is applying for the visa.
I am advised that the Office of Parliamentary Counsel drafted the bill, which is the regular process. A number of Commonwealth agencies were consulted—the Attorney-General's Department, the Australian Federal Police, the Commonwealth Director of Public Prosecutions, the Department of the Treasury, the Fair Work Ombudsman and the Department of Employment. As you would be aware, Senator, there was a parliamentary inquiry into this matter and they made some substantive recommendations. Most Senate inquiries—particularly with the Legal and Constitutional Affairs Committee, as you would be aware, Senator—involve submissions and general consultations. It is a process the Senate takes for granted.
The CHAIRMAN: The question is that opposition committee amendments (5) to (8), (10) to (18), (22), (23), (25), (27) to (30), (32) to (37), (39) to (44), (47) to (50), (52) to (55) on sheet 7807 be agreed to.
The CHAIRMAN: The question now is that schedule 1 item 12 stand as printed.
Question agreed to.
I seek leave to move a second tranche of amendments—to increase penalties for sponsors—amendment nos (20), (21), (24), (31) and (38).
(20) Schedule 1, item 6, page 6 (line 12), omit "2 years or 360 penalty units", substitute "4 years or 720 penalty units".
(21) Schedule 1, item 6, page 6 (line 16), omit "240 penalty units", substitute "480 penalty units".
(24) Schedule 1, item 6, page 6 (line 29), omit "240 penalty units", substitute "480 penalty units".
(31) Schedule 1, item 6, page 7 (line 21), omit "360 penalty units", substitute "720 penalty units".
(38) Schedule 1, item 6, page 8 (line 20), omit "240 penalty units", substitute "480 penalty units".
The current bill has a criminal offence of a maximum of two years in prison or a fine of $64,800 for individuals, or $324,000 for a corporate body, and civil offences with a maximum fine of $43,200 for individuals and $324,000 for corporate bodies. It is my view that this penalty regime is too lenient to be an effective deterrent.
The evidence is that financial gains from committing offences against visa holders 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. It may well be that people feel there is an advantage in terms of profiting from the exploitation of cheap labour under these circumstances. It clearly is not a humane approach for this parliament to take to allow such actions to continue. Clearly the government recognises this; that is why they have proposed changes to the 457 visa arrangements.
However, the penalty regime remains far too low and will undermine the intent of this bill—by a simple measure: an employer that wants to exploit these people in this way will still be able to make very substantial profits out of it. So Labor's amendments provide for penalties set out in the bill to effectively be doubled.
Before I address that particular amendment, I would like to thank all crossbench senators for their thoughtful approach to the bill. In particular, I would like to thank Senators Lazarus, Wang, Lambie, Muir and Madigan for approaching the government with concerns and assisting the government to address those concerns to pass the legislation.
The minister has agreed with the crossbench to review certain aspects of the legislation 18 months after the commencement of the legislation and to make that review public within 24 months. I understand the minister will be writing to the crossbench senators, Senators Lazarus, Wang, Lambie and Muir later this evening, but a form of words has already been agreed to for the minister's undertaking. The government considers this an extremely important bill and thanks the crossbench for supporting this bill through the parliament.
In regard to the penalties, the maximum 360 penalty points and a two-year term of imprisonment for the criminal offence is already greater than the standard ratio of penalty units to imprisonment prescribed in the Attorney-General's Department's Guide to framing Commonwealth offences infringement notices and enforcement powers,which is five penalty units, which is one month imprisonment, which would equate to a maximum of 120 penalty units for a two-year term of imprisonment. The current level of penalties attracted the attention of the Senate Standing Committee for the Scrutiny of Bills when conducting their recent inquiry into the bill. We acknowledge that, however, the high penalty units are commensurate with the anecdotal evidence as to the upper limit amount paid in payment for visa cases.
As you indicated, Senator Carr, in your contribution, the penalties for this bill are for in fact each criminal offence and each civil penalty contravention. So a person convicted of charging two visa holders for sponsorship would under the criminal offence be liable for up to 720 penalty units, which may be imposed instead of, or in addition to, a maximum term of four years imprisonment.
I have nothing further to add on the matter, given that, I understand, there are a number of other events on this evening and senators may well have an interest in those. I disagree with the position the minister has outlined. The Scrutiny of Bills Committee highlighted a problem here. There ought to be effective penalties imposed by this, and I do not think the current regime allows that.
Without going on with this matter too much, I just want to reiterate my last line: 720 penalty units may be imposed instead of, or in addition to, the maximum term of four years in prison.
The CHAIRMAN: Sorry, Minister, I thought you had finished your contribution. I hope I did not cut you off.
No, you didn't.
The CHAIRMAN: The question is that amendments (20), (21), (24), (31) and (38) on sheet 7807 be agreed to.
The minister made a statement after the first division thanking the crossbenchers for their support and indicating that the minister would be writing a letter this afternoon advising those senators that there would be a review. My experience here suggests to me that it implies that some arrangement has been entered into. Is that the case?
I would like to thank Senator Xenophon for his support on that last amendment, because, clearly, he was not party to that arrangement. With that being the case, it does alter the way in which we proceed here. It is a disappointment that these issues of such profound significance to so many people should be treated in this way. I am sure others will be able to speak for themselves about that question. But it does point to the question of whether I call for divisions on each of the tranches of amendments if they are not likely to affect the vote of the chamber. I would be interested to know if anyone has a view on that question. We may well be able to get further advice on that score. It would be very helpful if the crossbenchers, when entering these arrangements, did actually advise the chamber as well. And I will take this opportunity to seek leave to move the third tranche of amendments—amendments (1) and (2), which go to the issue of Australian business numbers.
I move those amendments:
(1) Title, page 1 (line 1), after "Migration Act 1958", insert "and the A New Tax System (Australian Business Number) Act 1999".
(2) Schedule 1, page 3 (before line 3), before the heading specifying Migration Act 1958, insert:
A New Tax System (Australian Business Number) Act 1999
1AA After subsection 8(1)
(1A) Despite subsection (1), *you are not entitled to have an Australian Business Number (*ABN) if:
(a) you hold either of the following visas granted under the Migration Act 1958:
(i) a student visa (within the meaning of that Act);
(ii) a temporary visa referred to in regulations made under that Act as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and
(b) you were not registered in the *Australian Business Register before the commencement of Schedule 1 to the Migration Amendment (Charging for a Migration Outcome) Act 2015.
And I take it that we are not likely to get any further advice to the chamber from the crossbenchers on these matters. Is that the situation?
The CHAIRMAN: I am looking to the crossbenchers, and if anyone seeks to make a contribution I will give them the call, but—
Perhaps I could just indicate, while people are thinking on that matter, that the amendments we are proposing prohibit workers who are on student visas or backpacker visas from obtaining an Australian Business Number, or ABN, and therefore prevent them from being employed as contractors or subcontractors. That of course would mean that they would have to be employed directly as employees and receive their full entitlements. In the case of students, prohibiting ABNs would also make it easier for regulators to check that people who are being employed are able to do the work within their visa conditions, which limit work to 20 hours a week. On that, I would commend the proposition to the chamber.
I would firstly point out that sham contracting is already unlawful under the Fair Work Act and certainly this government is not of a mind to stymie innovation from those wanting to pursue that course. And I can indicate to the chamber that the government does not support this amendment. The suggested amendment is not consistent with the purpose of the bill and is better pursued as amendments to the Fair Work Act 2009 and/or A New Tax System (Australian Business Number) Act 1999. Barring international students and working holidaymakers from obtaining an ABN may adversely impact on legitimate employment activities. The Fair Work Ombudsman has existing responsibilities under the Independent Contractors Act 2006 in conjunction with the Fair Work Act 2009 to prevent employers from disguising an employment relationship as an independent contracting arrangement, including for international students and working holidaymakers who may hold an ABN. The Australian Business Register is the responsible administrative entity for ABNs, not the Department of Immigration and Border Protection.
I just want to indicate, firstly, in relation to the issue of some of my colleagues negotiating with the government, that I commend them for doing so. For a whole range of reasons, partly because of other commitments, I was not part of that. I think my colleagues did invite me to be part of it. The reservation I had was in relation to the amendments to do with human trafficking and coercion. I have some questions to ask of the government in respect of that when we get to those issues. I think my colleagues on the cross bench have acted in good faith to get the best possible outcome. I am certainly not critical of them; good on them for going down their path, and I commend them for their initiative. I do have some reservations, though. For instance, I supported the opposition in terms of the increased maximum penalties. It is still at the discretion of the court as to what the penalty will be, but I think you do need to have strong deterrence in respect of that.
I cannot in good conscience support this particular amendment. I can understand Senator Carr's intent in respect of it. In terms of issues of backpackers being potentially exploited, I think the issue is one of enforcement through the mechanisms that have been set out by the minister. So, if there is an issue of exploitation of the use of ABNs at the moment, then that ought to be a subject of rigorous and robust enforcement. That is the preferred course, and I think that it is more appropriately dealt with under that. But I am interested in asking some questions about human trafficking and coercion, because I have some concerns about that and some real sympathy for Senator Carr in moving those amendments. I commend him for moving them, but we will get to those in due course.
My concern is not whether or not people negotiate with the government, which is entirely consistent with what all of us do. My concern relates in part to a practical consideration that people want to know whether or not they can go to other functions, and I am being asked how many more divisions we are going to have. I do think, though, that no matter what people are doing, the chamber is entitled to know. If there is an arrangement in place, they should tell us, because it will affect whether or not we call the divisions, particularly given the other circumstances that are on. I also think it is good grace that if senators are engaged in conversations with the opposition then they tell us that they already have an arrangement or have changed their position. The chamber is entitled to know where people stand.
The CHAIRMAN: The question is that amendments (1) and (2) on sheet 7807 be agreed to.
by leave—I move amendments (3), (46) and (56):
(3) Schedule 1, page 3 (before line 4), before item 1, insert:
1AB Subsection 5(1) (definition of civil penalty order )
Omit "486R(4)", substitute "486R(2)".
(46) Schedule 1, page 14 (before line 14), before item 7, insert:
6A Subsections 486R(1) to (4)
Repeal the subsections, substitute:
Eligible court may make civil penalty order
(1) An eligible court may, on application under subsection (3), order a person to pay a pecuniary penalty that the court determines to be appropriate if the court is satisfied that the person has contravened a civil penalty provision.
Note: Subsection (5) sets out the maximum penalty that the eligible court may order the person to pay.
(2) An order under subsection (1) is a civil penalty order.
Application for civil penalty order
(3) An application for a civil penalty order may be made within 6 years of the alleged contravention by:
(a) the Minister; or
(b) for an alleged contravention of a civil penalty provision in Subdivision C or D of Division 12 of Part 2:
(i) a person affected by the contravention; or
(ii) an industrial association (within the meaning of the Fair Work Act 2009).
Payment of penalty
(4) The eligible court may order that the pecuniary penalty, or a part of the penalty, be paid to:
(a) the Commonwealth; or
(b) a particular industrial association; or
(c) a particular person.
6B Subsection 486T(1)
Repeal the subsection, substitute:
(1) A pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.
6C Subsection 486T(2)
Omit "The Commonwealth", substitute "A person to whom a pecuniary penalty is payable".
(56) Schedule 1, page 16 (after line 16), at the end of the Schedule, add:
19 Application—civil penalty orders
Division 1 of Part 8D of the Migration Act 1958, as amended by this Schedule, applies in relation to a civil penalty order that is applied for on or after the commencement of this Schedule, whether the contravention or alleged contravention of a civil penalty provision occurs before or after that commencement.
20 Requirement to make regulations—approval of nominations
As soon as practicable after the commencement of this item, the Minister must recommend to the Governor-General the making of regulations under the Migration Act 1958 to ensure that, if the Minister reasonably believes that an employer of a holder of a visa has contravened Subdivision C or D of Division 12 of Part 2 of that Act, the visa holder is not disadvantaged in connection with the approval by the Minister of nominations by approved sponsors under section 140GB of that Act, as compared with other visa holders.
These amendments are intended to ensure that whistleblowers who report instances of charging for migration related events are properly protected. You simply cannot have a situation where there is a racket going on and someone blows the whistle and is then subject to punitive action. The minister would be required, if these amendments were accepted, to amend the migration regulations so that a visa holder whose sponsor is reasonably believed to have contravened the provision of the bill is not disadvantaged for reporting the matter. For example, a 457 visa holder would be given sufficient time to find a replacement sponsor and would not have to reset the clock on the path to a permanent residency.
These amendments further protect workers by allowing unions to instigate proceedings both for existing civil offences under the act and for the new civil offences created by this bill. Allowing unions to bring civil penalty proceedings will increase the resources available to ensure compliance and the integrity of our visa system.
I can indicate to the chamber that the government does not support these amendments. The amendments could potentially reduce the discretion of the department to pursue visa cancellation, infringements or take civil action should it be assessed as appropriate. This could occur in circumstances where, despite the whistleblower having volunteered information, their conduct was sufficiently repugnant that they should not be afforded protection. Noting that decisions about pursuing visa cancellation, infringements or taking civil penalty action are discretionary, the department will prescribe under policy that the intent of a person is relevant when consideration is given to whether to take action against them, and what form that action might take. Policy guidance for cancellation consideration already states that a person's individual circumstances should be taken into consideration.
I rise to speak in support of amendments (3), (45) and (56), as moved by Senator Carr, to ensure that whistleblowers are protected. This is not just an effective change to the law here. We will only be able to ensure that we crack down on people who are misusing and abusing these sponsor visas if we have people who are willing to speak out and give information about what is going on in workplaces. We have seen this over and over again, particularly in relation to exploitation of foreign workers—whether it is those under 457 visas, whether it is more short-term working visas, study visas or, indeed, working holiday visas. The one barrier to people speaking out and alerting authorities to things that are happening that are wrong, to the abuse of visas, to the abuse of workers in the workplace and the exploitation of vulnerable people, is the fear of not being protected if they come forward. The 7-Eleven example is another, but there are many others, such as those on sponsored visas—they may be seasonal workers—or in other industries.
There is that vulnerability, particularly if you are a migrant, if you do not speak English as your first language, if you do not have a strong social and family network around you and you are unsure about what your rights would be if you spoke up. It is absolutely crucial that people who are putting themselves in a vulnerable position by blowing the whistle are indeed fully protected by the law, and there is no ambiguity about that. These amendments go some way to strengthening the assurance that the people who are going to be coming forward and exposing unscrupulous behaviour can do so with the full confidence that they themselves will not be hung out to dry or left in the lurch. It is important that we build a culture across all of our workplaces, but in particular in those areas where we have foreign workers who are already vulnerable because of their visa status, in which they can get an understanding of and information about what their rights are as workers in Australia. They need to feel confident that they have every right to stand up to exploitation and every right to alert the authorities, without the fear of being deported, without the fear of being intimidated, and without the fear that if they do not give the right information as to what the Australian Federal Police might deem to be important they are then going to be thrown on the pile and left to fend for themselves.
If we want this legislation as a whole to work in terms of cracking down on the business model of dodgy rorters, then we have to give support to the people who are going to be the witnesses to that. These amendments help to bolster that and to give more protections, which I think is absolutely warranted. I would be surprised if the crossbench senators would not support the idea of protecting these people, so that we can ensure that, when employers are doing the wrong thing, people will have faith that speaking out and giving that information means they will not be hung out to dry.
Could I get clarification from the minister in terms of the existing regime that applies to the protection of whistleblowers? I think the minister said in her explanation on the opposition to the ALP's amendments in relation to this that there was a system in place where you look at the issue of purpose, or the intent, of a whistleblower. The issue I have with that is how you gauge that intent, and whether you also look at the effects of the information that was conveyed and whether it was usefully acted upon. For example, you might have a person who may not have the best of motives, but the information they provide is useful in exposing a rort or malfeasance in this space. I am trying to understand what protections there are at the moment, and why this would not strengthen that. I am trying to understand what the government's position is in respect of this.
I do take on board the senator's concerns. As already noted, any consideration to cancel a visa is discretionary. All visas covered by this legislation have an English-language requirement, so we are not talking about persons who do not speak English and are not inclined to be aware of the work arrangements they have entered into.
Senator Carr can correct me if I am wrong but, as I understand it, his amendments relate to strengthening the penalties for whistleblowers. What does the government say in relation to why this is unnecessary in the context of this bill or what is being proposed?
So if I can narrow it down. What does the government say, that this amendment is either unnecessary or counterproductive? And what does the government say about what it has in place at the moment that gives at least some measure of protection to whistleblowers? My understanding is that there is some measure of protection for whistleblowers, but Senator Carr is seeking to add to that. I need to understand why the government says that this will not help the situation, that this will not improve protections for whistleblowers or will have unintended consequences in respect of that. I am just trying to fairly understand the amendment. It is complex and I think it is fair that we understand why the government says this will be unnecessary or counterproductive or will have unintended consequences. I would be more than happy to hear from Senator Carr if he has anything to add on this.
I think it is important to understand that if the whistleblower is an innocent party in this sort of situation, there is going to be no penalty. I think that should be well understood. What we do need to take into account, though, is if the whistleblower has done the wrong thing then that obviously needs to be given consideration. My understanding is that giving indemnity in legislation to somebody who is doing the wrong thing would be unusual. It is very much in the capacity of the determination to weigh up those things and measure whether it was an innocent party and, if so, there would be no penalty.
I thank the minister for the answer. The issue is this: it is a question of degree. Sometimes a whistleblower may have done the wrong thing and, of course, that is to be condemned. But if the transgression of the whistleblower pales into insignificance with the information that the whistleblower is providing, then I wonder whether that ought to be taken into account, and also the circumstances for the transgression on the part of the whistleblower if, for instance, there was coercion, if there was intimidation or a whole range of other circumstances that led to the whistleblower doing the wrong thing, to put it colloquially. I wonder whether that should be taken into account. I am just wondering whether the ministerial discretion is now excluded in terms of the protection of the whistleblower by virtue of a transgression on the part of the whistleblower which may really pale into insignificance compared with the information that is being disclosed, information that may well be acted on by the department if there is malfeasance or other wrongful conduct involved.
The first comments that you made, Senator Xenophon, certainly would be taken into account. It is very important that we do recognise, as you queried, that this is discretionary. Clearly, it is difficult for hard and fast markers, if you like, in this when you are looking at a case and that is why there is a discretion to look at these instances. It is very important to note that it is also subject to full review by the AAT.
Neither is the minister, but she has some very, very capable advisers to her left—and I mean that sincerely. In terms of what Senator Carr is trying to achieve in his amendment, is the discretion so constrained that if a person who is a whistleblower has broken a rule or some rules, has committed a transgression, has done the wrong thing, to put it colloquially, but the information they provide is incredibly valuable in disclosing a wrongdoing, that the circumstances of that person's transgression may have been brought about through some coercion or intimidation, what are the parameters for the exercise of that discretion? I am not sure whether Senator Carr wants to jump in here.
I am drowning here, Senator Carr. I am just trying to understand what is a complex concept. Before we vote on it, I want to get some answers. I understand the minister is being cooperative and helpful but there is something here that does not quite add up.
I do concur that there are some real complexities here, but perhaps I can try to assist. We do not want to give unlimited protection in legislation to people who are coming forward to blow the whistle. That is point 1. I need to also point to the fact that the visa cancellation ground is discretionary, as I have indicated, and it requires consideration to be given to a range of factors such as the person's complicity in payment for arrangement of visas. We need to understand that that is why this is done on a case-by-case basis, because it is not a simplistic process. There has to be that discretion by the decision maker to look at those instances I have outlined and look at this on a case-by-case basis. I am trying to assist you as much as I can and I hope that that does assist.
The opposition intent here is to deal with the reality of what happens in the workplace as distinct from the theory of the way in which it is explained, particularly in this town. I have been dealing with immigration cases, as many of you here have, for many, many years. When it comes to the question about abuses of 457 visas, the power is all in the hands of the employer, particularly where a person has a serious complaint but wants to actually stay in this country, especially if they have an aspiration for a permanent residency. So there is an enormous pressure on any complainant in terms of what they reveal. The minister is quite right: there is discretion within the current act. What we are trying to do is not about providing a blanket indemnity; in fact, what we are talking about here is that the minister has to have a reasonable belief. The minister has to show some judgement.
You do need to improve the level of protection for whistleblowers because the current legislation does not and the current practice does not. I have come across meatworkers over many, many years who have been faced with the extraordinary power of the employer to actually throw them out of the country if they complain, let alone report an employer to a government agency. That is one of the reasons that employers use these particular visas because of the control they have over people on the shop floor.
Make no mistake about it: we are not dealing with some idealistic legal principle here. We are dealing with the power of people to ruthlessly exploit workers under the most adverse conditions. We recently saw the case of the student visa arrangements in regard to 7-Eleven. How long did it take for this government to say, 'By the way, we will consider people being given an exemption from their obligations under the student visa arrangements'? It took so long, and in that time police needed information, I think, about how the scam was working. That is what troubles me about the government's position. They rely on a legalistic approach which history has shown does not work given the power relationships in regard to the way people are treated. That is why I say whistleblowers are entitled to more protection—not a blanket indemnity but more protection—and that is what these amendments do.
The CHAIRMAN: Just to be clear, there are three amendments before the chair. Those are amendments (3), (46) and (56). We may have indicated that it was amendment (45) earlier in the proceedings, but that is not correct. The question is that amendments (3), (46) and (56) on sheet 7807 be agreed to.
I move amendment (45) on sheet 7807:
(45) Schedule 1, item 6, page 14 (after line 13), at the end of Subdivision D, add:
245AZ Reports on operation of this Subdivision
(1) The Minister must, as soon as practicable after 30 June in each year, cause to be laid before each House of the Parliament a report on the operation of this Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, during the year ending on 30 June.
(2) The report must contain the name of each body corporate:
(a) convicted of an offence against this Subdivision during the year ending 30 June; or
(b) against which a civil penalty order was made during the year ending 30 June for contravening a civil penalty provision in this Subdivision.
As this bill is currently drafted, there is not a reporting obligation on the minister. This amendment will enhance the transparency of the system and the accountability within it by requiring the minister to table an annual report on the operations and the impact of the provisions that are being introduced by this particular instrument. That report would include the names of companies found to have been in breach of the provisions, which would be a further deterrent for sponsors who do not give workers their full entitlements. This is a straightforward transparency measure, and I commend the amendment to the chamber.
I can indicate to the chamber that the government does not support this amendment. However, the department is of course willing to table relevant information, such as the number of visa cancellations and prosecutions related to payment-for-visas activities, in its annual report. I can reiterate to the chamber that we have given an undertaking to review it at the 18-month point.
by leave—I move amendments (4), (9), (19) and (26) on sheet 7807 together:
(4) Schedule 1, item 1, page 3 (line 6), after "(2)", insert ", (2A)".
(9) Schedule 1, item 2, page 3 (lines 24 and 25), omit the item, substitute:
2 Subsection 116(2)
Omit "(1AA) or (1AB)", substitute "(1AA), (1AB) or (1AC)".
2A After subsection 116(2)
(2A) The Minister is not to cancel a visa under subsection (1AC) if the benefit was asked for, received, offered or provided, as mentioned in that subsection:
(a) because of the use of coercion, threat or deception (within the meaning of Division 270 of the Criminal Code), whether against the visa holder or another person; or
(b) in circumstances where the visa holder was the victim of an offence against Division 270 (slavery and slavery-like conditions) or 271 (trafficking in persons and debt bondage) of the Criminal Code, whether or not a person has been charged with or convicted of the offence.
2B Subsection 116(3)
Omit "(1AA) or (1AB)", substitute "(1AA), (1AB) or (1AC)".
(19) Schedule 1, item 6, page 6 (lines 3 to 5), omit subsection 245AR(3) (not including the note), substitute:
(3) Subsection (1) does not apply if:
(a) the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the first person or a third person; or
(b) the benefit was asked for or received:
(i) because of the use of coercion, threat or deception (within the meaning of Division 270 of the Criminal Code), whether against the first person or another person; or
(ii) in circumstances where the first person was the victim of an offence against Division 270 (slavery and slavery-like conditions) or 271 (trafficking in persons and debt bondage) of the Criminal Code,whether or not a person has been charged with or convicted of the offence.
(26) Schedule 1, item 6, page 7 (lines 1 to 4), omit subsection 245AS(3), substitute:
(3) Subsection (1) does not apply if:
(a) the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the second person or a third person; or
(b) the benefit was offered or provided:
(i) because of the use of coercion, threat or deception (within the meaning of Division 270 of the Criminal Code), whether against the first person or another person; or
(ii) in circumstances where the first person was the victim of an offence against Division 270 (slavery and slavery-like conditions) or 271 (trafficking in persons and debt bondage) of the Criminal Code, whether or not a person has been charged with or convicted of the offence.
These amendments go to the issue of coercion, criminal offences and civil penalties in relation to visa holders. As this bill is currently drafted, the minister will have the power to cancel the visa of someone who has received a benefit. An unintended consequence could be that the visa of someone who was coerced into making or receiving a payment might be cancelled.
These amendments ensure that penalties cannot be applied to a visa holder who has been coerced by the sponsor or a third party into offering or making or receiving or requesting a benefit. The amendments also prevent the minister cancelling the visa of someone who has been subject to human trafficking, forced labour or slavery offences. Vulnerable workers should not be placed at risk of deportation because of the criminal conduct of their employer.
I say this again: these are not blanket indemnities that we are proposing; they require judgement by ministers as to what they have a reasonable belief is happening. We know that in these circumstances in this country these types of behaviour, including slavery, occur. The question is whether under those circumstances, when faced with the prospect of reporting an offence, people who feel sufficiently intimidated or coerced would actually do so if they know that for their benefit they have the very strong possibility of deportation. It strikes me that there is a need to deal more explicitly with that matter. I will have more to say on this matter. I understand that others want to say something on these questions.
I can indicate to the chamber that the government does not support these amendments. The intention of the bill is not to target employees who have been coerced into making payments or have been subject to human trafficking or slavery, and I make that very clear to the chamber. As payment-for-visas cases are usually complex, involving multiple actors, the government does not support enshrining this aspect in legislation. These amendments could potentially reduce the amount of discretion open to the department to change its approach should the initial appearance of the case change during the course of the investigation.
The department will prescribe requirements under policy that it is not appropriate to pursue visa cancellation, infringements or civil penalty orders against a visa applicant or holder where payments have been extracted under force of threats or other forms of exploitation. Cancellation is discretionary, as I have indicated, and consideration about whether or not a person has been subject to coercion would form part of the decision about whether or not cancellation should occur.
These amendments go to one of the main concerns that the Greens have and that I spoke about in my speech on the second reading. I am extremely concerned that the way the government's current bill has been drafted leaves wide open the opportunity for those visa holders to be the ones who cop the brunt of the crackdowns in relation to these unscrupulous employers. I absolutely support the idea that we need to stop the rorting. I absolutely support the idea that we need to ensure that people are not being exploited or misled in relation to getting a migration outcome.
But rather than going after the employer, what this bill consistently does is capture the employee, the visa holder. As it is currently drafted, with the minister having the power to cancel the visa of someone who received a benefit, whether or not there is any proof the individual was aware of the situation or indeed sought that particular outcome. It may be that it is an unintended consequence of the legislation, but let us clear it up. My office has been speaking with the minister's office today about this issue in particular, and I am not sure why the government is so intent on not tweaking it. If it is not the intent of the government to penalise the visa holder but rather to catch the employer, then they should not have legislation in place that is going to unfairly impact on the visa holder.
The government and the minister's office have been in communication with my office—and I am sure it has been the same with others on the crossbench and possibly even the opposition—saying that it should be the minister's word that is strong enough in the explanatory memorandum. We have dealt with this minister for a little while now and, frankly, his word means zilch, when it comes to this particular issue of trust. I do not trust the minister on this. If we actually want to protect people through this legislation, if we do not want employees and visa holders to be unfairly targeted and caught up in this process and if they are not the ones that this legislation is targeting then let us fix it so there is no ambiguity and it is not simply left with the minister as a matter of trust.
It is a simple fact that the only reason we need a review of how this law is going to be enacted over the next 12 months is that everybody in this place, it seems, except for the minister, is concerned that the people who are the most vulnerable are the ones who are going to cop it. There is not enough protection for them, and we have seen the other amendments not be supported in terms of people not being protected for speaking out. Now we have a situation where we are trying to ensure it is not the visa holders who have been exploited in the process by these dodgy business models and that it is in fact the employer who is held responsible.
Let us fix it, and let us make sure it is clear. These amendments do that. Vulnerable workers should not be placed at risk of deportation in response to this law coming down on the criminal actions of their employers. Why should someone who is employed be culpable for the actions of their employer? It is just not fair. We have heard the minister and the advisers of the department say that the intention of this legislation is not to crack down on the employees, that they do not want to make the visa holder responsible for the actions of their dodgy and criminal employers. Good. So let us put that in the legislation and make sure it is crystal clear. Of course, in saying all that, the Greens would like to see these amendments passed, because we do not believe it should simply be left to a matter of trust of the minister.
I would like to follow through on some of the remarks that have just been made. It deeply concerns me that we are being asked to take this government on trust when it comes to such profound questions. If we had a record we could rely upon on the issue of trust it might be a different question, but this is a government that has made secrecy and the ability to hide the truth a hallmark of the way these programs have been administered. So I would ask the minister a pretty simple question, because I am particularly concerned by what the explanatory memorandum actually says when we talk about trust. I ask the minister to explain how ministerial discretion is going to be used on the issue of cancellation of visas? Page 6 of the explanatory memorandum says:
The visa cancellation ground is discretionary and requires consideration to be given to a range of factors such as the person's complicity in the 'payment for visas' arrangement, strength of ties to Australia and contribution to the Australian community, in considering whether or not to cancel the visa.
We have a situation here where a person may well be subject to slavery, trafficking, gross exploitation, demands for sexual services in return for employment, or a whole range of offences which we know exist and are quite widely reported. But we are asked to take the government on trust when it comes to consideration of these matters. So I ask the minister: can you explain what those words mean—in regard to the explanatory memorandum—and will this include, in discretion—
This is in paragraph 18 on page 6 of the explanatory memorandum. I have quoted from the second half of that paragraph. There might be a student who has recently arrived and has been caught up in a visa scam of this type, or there might be a 457 visa holder from the subcontinent or from the horn of Africa, where we have seen entire meatworks boning rooms populated by people on 457 visas, straight off the plane, claiming to be responding to a skills shortage, grossly underpaid and under the threat of immediate deportation if they complain, let alone report an abusive employer. I come back to the proposition, Minister. Can you please tell us what those words mean?
I think the government have been very clear in how this is going to operate. I appreciate your asking again, Senator Carr, and I understand that you have concerns around this, but it really does seem that we are traversing ground that has already been traversed. I make the point, firstly, that without this bill the government has no powers to stop this behaviour. I think there is a significant concern out in the community that requires the government to act, and that is what we are doing.
Within the discretionary power we need powers for both the visa holder and the sponsor. I indicated to the chamber in my earlier comments how that discretionary power will be used, and I indicated that reasonably clearly, I hope, to Senator Xenophon in answer to questions from him earlier. I can also indicate to the chamber that, if there were an error, there are already safeguards through review mechanisms, including the courts, to deal with that. I appreciate the senator's questions in this regard, but certainly the government is of the view that this bill gives us the appropriate mechanisms, in responding to significant concerns in the community, to deal with this issue.
Perhaps I could draw your attention to the Migration Act itself, at section 116(2), which indicates:
The Minister is not to cancel a visa under subsection (1), (1AA) or (1AB) if there exist prescribed circumstances in which a visa is not to be cancelled.
That is what the act actually says. Minister, why would it not be a prescribed circumstance if a person were subject to slavery or to trafficking under the Criminal Code? Why wouldn't it be a prescribed circumstance if there had been coercion of the visa holder by the sponsor or a third party—such as a labour hire company? These are practices that go on, day in and day out, in this country.
Firstly, Senator, quite simply it is not possible for a person to be coerced into receiving a benefit, and clearly benefit is part of the basis of this bill and what we are doing here. It will only be an offence if the visa holder or potential visa holder sought to obtain or obtained a benefit, and clearly in this circumstance they would not. Therefore, the amendment is unnecessary.
I also indicate to the chamber that it will be made clear under policy that the Department of Immigration and Border Protection will only pursue cases where the visa applicant or holder, or other third party, has initiated or is complicit in the payment for visas arrangement. And—I need to be very clear about this—it will not pursue a civil penalty against a visa applicant or holder where payments have been extracted under force or threats or other forms of exploitation, such as those who have been coerced into making payments or have been subject to human trafficking or slavery. I think that is very clear. Indeed, Senator Xenophon, that may well pre-empt some of the questions you were going to ask around the issue of human trafficking. I hope it does, but I am very happy to address further questions if you have them.
Could I just say: sorry, Senator Hanson-Young, but I think it is unfair to impugn the minister's character by saying his word is 'zilch'. I have dealt with him and I have found him to be very decent to deal with. We have our disagreements but I have found him decent to deal with when he has given undertakings in respect of certain matters.
It is a civil and courteous relationship. We have our disagreements, as I have had tonight with the government. I understand that the minister has the discretion not to cancel the visa of an individual who provided or received a benefit in exchange for a sponsorship in terms of coercion or was a victim of human trafficking or slavery. What I am concerned about is in respect of the explanatory memorandum at clause 18 on page 6. It refers to circumstances as to the cancellation ground being discretionary. I am concerned that the wording in the explanatory memorandum—which, of course, is an aid to statutory interpretation—is such that it may be quite narrow in the circumstances where a person may not have a long link or contribution to the Australian community but they have been the subject of out-and-out coercion or a scam or human trafficking. That is a genuine concern. I do not raise this to be difficult; I raise it because I think that Senator Carr, in his amendment, raises some genuine concerns about circumstances where it seems unclear as to how the department will facilitate visa holders coming forward to report that they are victims if there is no guarantee that their visa will not be cancelled or, at the very least, that there is a guarantee that they will be dealt with fairly and reasonably. Obviously there might be some people who allege coercion where there is not a reasonable basis for that allegation. I understand that. But how do you have a fair framework so that, if it is a reasonable allegation, there is some protection for those people who have made those allegations of coercion, human trafficking or slavery?
Thank you, Senator, and I do note the comments that you made at the outset in relation to the minister, and I concur absolutely. I think that as a minister he deals with great integrity when it comes to dealing with people—not only in legislation but in the course of his portfolio responsibilities. I know that the great majority of people hold him in very high regard. So thank you for those comments, Senator.
Firstly, I want to indicate that there will be a fair framework. I intentionally picked up the phrase that you used, Senator Xenophon, because that is precisely what we are doing with this bill. We believe that the fair framework is absolutely in the bill. I hope it will go some way to alleviate your concerns. As I indicated earlier—and I completely understand that you may well have been distracted—we will make it very clear, under policy, that we will not pursue a civil penalty for people that have been coerced into making payments or have been subject to human trafficking or slavery. I do not know how I can be any more clear about that. I understand from your reading and your perspective of those words that it has created some concern for you. I hope my very genuine response to you indicates that the government will not be pursuing civil penalties in those instances.
I accept the genuineness of the minister's response, but I can only rely in part on the wording in the explanatory memorandum, which appears to be quite narrow. In terms of civil penalty and maybe a nod might allay this—and I am sorry that I do not have the expertise that your advisers have or maybe you have after tonight—but, if there is a situation, does civil penalty include the cancellation of a visa? Is that what is defined? You may not be subject to a penalty in terms of being prosecuted for this particular provision, but, if you are going to lose your visa, that is a pretty significant penalty. I just want to clarify that. I guess that is where my reservation is. I know that some of my other crossbench colleagues are negotiating a review, which is very welcome and which will be very useful. But, sticking to the words of the explanatory memorandum, I am worried that the policy framework is going to be constrained by those words. What can the minister tell us about how, if there are reasonable allegations where on the face of it there appears to be coercion, human trafficking or human slavery and where that is established, that person's visa will not be cancelled notwithstanding that they were involved in an illegal payment?
On the reading of those words as you have put it, it can. But what we have said is that, where there is no benefit, there will be no penalty applied. I think that is the point we need to understand and be very clear about, because, clearly, somebody involved in that quite dreadful situation of human trafficking is not receiving the benefit. That is the point that then leads to 'that there will not be that penalty'.
I might come in on that point. First of all, I come back to the question of trust. I do not think it is wise for us to work on the basis of legislation predicated on whether or not the minister is a nice person. Right. I think there is a suggestion here that the minister here is a man of integrity, and so be it. That is not the basis on which we legislate, because ministers do not stay forever. One of the harsh realities of political life is that we will all be replaced. The fact remains that we have to rely on what these documents actually say. Senator Xenophon is quite right: the explanatory memorandum is used as an aid to interpretation. These words are at best ambiguous and at worst quite deceptive, because they suggest that there has to be a consideration of a person's contribution to the Australian community. That is what the words actually say. If the minister's discretion is dependent on that in the circumstance where a person is actually brought to the country for the purpose of exploiting them on a 457 visa then of course their connections with this country are going to be, one presumes, quite limited.
So it strikes me that we do have to rely on what is before us, not just on the good intentions of the minister of the day.