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Chapter 3 - Key Issues
3.1
This chapter discusses the key issues and concerns
raised in submissions, and at the hearing, on the Migration Amendment (Employer
Sanctions) Bill 2006 (the bill).
3.2
Submissions generally supported the policy initiatives
of the bill, namely, the reduction in the number of people working illegally in
Australia.[12] The key issues raised in submissions
and at the public hearing related to:
-
the consultation process for the bill and proposed
future consultations on the issue of illegal workers in Australia;
-
the need for an employer awareness campaign;
-
enforcement of the legislation;
-
the definition of 'recklessness' in the context
of the offences;
-
the burden on employers in complying with the
legislation;
-
the potential for discrimination;
-
the scope of working relationships which are
captured in the definition of 'allows a person to work';
-
expanding access to the Entitlement Verification
Online (EVO) facility; and
-
expanding work rights on visas.
Consultation process
3.3
One of the issues canvassed in submissions, and in the
hearing, was the extent of consultation which had occurred between the
Department of Immigration and Multicultural Affairs (the Department) and
stakeholders, and the Department's plans for future consultation.[13]
3.4
The Explanatory Memorandum provides an outline of
consultations since 1999 which have taken place between the Department, peak
industry bodies, employer groups and other Commonwealth departments and
agencies.[14]
3.5
The Migration Institute of Australia (MIA) recommended
that the Department consult more widely on the bill:
The MIA strongly recommends that [the
Department] consults with the two peak [recruitment] industry bodies, being
Recruitment and Consulting Services Association Ltd (RCSA) and the Information
Technology Contract and Recruitment Association (ITCRA) to seek their views on
this draft Bill, particularly in relation to S245AD.
Given the penalties involved, we further recommend that the Australian Human
Resources Institute, the Australian Institute of Management and the Law Council
be consulted on the draft Bill.[15]
3.6
At the hearing, Mr
David Mawson,
Chief Executive Officer of the MIA, told the
committee that his organisation had had no active consultation with the
Department on the bill (although he noted that the MIA
would not necessarily expect such consultation to occur). However, Mr
Mawson did indicate that there are issues in
relation to the bill which the MIA would take up
with the Department in future consultations.[16]
3.7
Mr Steve
Balzary, Director, Employment and Training of
the Australian Chamber of Commerce and Industry (ACCI), told the committee that
ACCI has had ongoing discussions with the Department:
We have certainly had discussions with [the Department] over the
last three to six months about clarity and getting better information to
employers across the programs, and we are working with [the Department] on
that.
... All my members were involved in a series of consultations
undertaken by Minister Vanstone
a month or so ago which went right across the arrangements.[17]
3.8
The Department's submission indicated that there were
future consultations planned on this issue.[18]
At the hearing a Departmental officer provided the committee with the following
information in relation to these proposed consultations:
...our intention ... would be that during the six months between the
time these provisions become law and their taking effect we would be engaging
in a very comprehensive stakeholder engagement strategy that would include some
of the organisations, if not all of them, that we had already consulted with
over the previous numbers of years and, in particular, those organisations
which, during this process, have indicated that they would want to be consulted
...[19]
3.9
Departmental officers also indicated that future
consultations would include organisations such as the Institute
of Management and other peak bodies
that the MIA noted in its submission as
potentially having an interest.[20]
Committee view
3.10
The committee recognises the efforts that the
Department has made in carrying out consultations on the bill to this point. The
committee endorses the intention of the Department to continue consulting with
those stakeholders already involved in the process, and to broaden its consultation
to include those organisations which have indicated an interest in the process,
or been identified in submissions as potentially having an interest in the
process.
An awareness campaign
3.11
A number of submissions and witnesses at the hearing
highlighted the need for the introduction of the legislation to be accompanied
by a comprehensive educational campaign, not only to raise awareness among employers
and workers about the offences in the bill, but also to generally raise
awareness amongst employers of the variety of visas and associated working
restrictions.[21]
3.12
In its opening statement to the committee, a
representative from the Department noted the information campaigns have been
running for four years, which:
... consists of employer awareness visits, an improved information
kit for employers, the issuing of illegal worker warning notices to employers
and, perhaps most importantly, the introduction of new work right checking
services such as the employer work rights fax-back facility and the internet
based entitlement verification online.[22]
3.13
The Departmental representative also told the committee
that in the previous four years it has delivered 7,200 employer awareness
sessions and issued over 6,700 illegal worker warning notices.[23]
3.14
While noting these efforts, Mr
Balzary from ACCI said:
... we are leaning towards a promotional program that is connected
up to promoting to employers what their roles and responsibilities are. We
think it would be a much better effort to have a targeted link to a targeted
campaign which is done on a risk basis in industries where there may be a history
of employing people who come through illegal migration, and supported by that
process.[24]
3.15
Mr Balzary
considered that the Employer Awareness Campaign (EAC) was a good 'building
block', but that what was needed now was a more comprehensive campaign, across
all visa categories, involving industry organisations going out and talking to
employers about their responsibilities.[25]
Accordingly, he recommended a partnership arrangement between government and
industry where Departmental officers are seconded to a range of industry
organisations, who in turn can provide information to employers about their
responsibilities under the legislation.[26]
3.16
The MIA noted that the
Department had put considerable effort into raising awareness amongst employers
about the issue of illegal workers. MIA
recommended that the current EAC be complemented by a leaflet campaign targeted
at people travelling to Australia.
The leaflet would refer travellers to the Entitlement Verification Online (EVO)
facility and other avenues for checking working entitlements of prospective
employees. The MIA also suggested that the
Department investigate the feasibility of putting a reference to the EVO
facility on all temporary entry visas.[27]
3.17
At the hearing, Departmental officers indicated that
the Department intends to use the six month period before the offences take
effect to focus on raising employer awareness through means such as advertisements
in industry publications and national newspapers, as well as engaging with key
stakeholders (discussed above). The Departmental representatives also indicated
an intention to work with industry groups to ensure that employer information
kits provided clear information on employers' rights and responsibilities with
regard to the new offences.[28] The
Department's representative told the committee that until this point their
activities had focussed on general awareness raising, however once the
legislation was introduced:
... we could do as the submissions are calling for and focus on
what would specifically be required under the new offence provisions that would
be introduced. I think we could see that as one benefit of a phased-in
introduction over a six-month period – that is, for us to work with industry
and provide relevant information. It would allow us to provide answers to
factual, example based questions that different industries may have and to
incorporate those into tailored information for them.[29]
3.18
The Department also indicated that it is actively
considering some of the suggestions by the MIA
for raising awareness amongst travellers.[30]
Committee view
3.19
The committee is satisfied that the Department has in
place plans to raise awareness of the offences during the 6 months following
the passage of the legislation. However, the committee believes that both the
ACCI and MIA have made useful suggestions as to
how the awareness of both employers and prospective employees can be raised. The
committee recommends that the Department work with both these organisations to
determine the feasibility of those suggestions
Recommendation 1
3.20 The
committee recommends that the Department consult with the ACCI, the MIA, and other interested organisations, to
assess the feasibility of programs aimed at increasing the awareness of both
employers and employees of the offences in the bill.
Enforcement of the legislation
3.21
The committee considered two issues in relation to the
enforcement of the legislation. Firstly, the risk of employers being prosecuted
for offences under the bill in cases of 'inadvertent' breaches. Secondly, the
committee considered the priority and resources that the Department was able to
direct to the enforcement of the legislation.
3.22
The issue of enforcement of the offences in the bill is
important by reason of its bearing on two related issues – the definition of
reckless; and the compliance burden on employers – which are discussed
separately below.
3.23
In relation to the former issue, the MIA
gave the committee some insight into how employers could may inadvertently
breach the bill. Mr Brendan
Ryan, a member of the MIA,
highlighted two specific examples:
The ones that people would often get into trouble with in an
employer relationship and which specifically goes to this bill would be things
like the working holidaymaker visa, which places a three-month limit on the
time that they can work for any one employer. Another would be that on a 457
work permit someone cannot change their employer without the prior approval of
the department. That means a fresh application or a visa. So if they jump from
one employer to another and they have not been approved to work for the new
employer they are in breach of their visa condition.[31]
3.24
However, the Department indicated that it is not their
intention to take a heavy handed or unreasonable approach to the enforcement
issue. On the issue of employers being inadvertently caught by the legislation,
the Department told the committee that:
... as a matter of policy we would not seek to refer any cases to
the Director of Public Prosecutions unless an employer had first been given a
warning and guidance on how to check work rights. In other words, no employers
would be caught off-guard by these offences. There would of course be
exceptions for cases involving employment rackets or aggravated offences but,
as a general rule, no employer will be prosecuted unless they have first been
given a warning. We would want to be fair and reasonable with employers.[32]
3.25
In general, the Department intends to take a more
'leveraged' approach
Some of that might mean that we change a little bit the way we
go about our operations. For example, if we have information that there may be
illegal workers at a premises then, rather than to turn up unannounced and
identify the worker and remove them from the premises, more and more our
approach would be to contact the business and discuss the information with the
employer and allow them to self-regularise the situation. Again, the employees
may be entitled to regularise their situation.[33]
3.26
At the hearing, the committee also sought information
from the Department on the resources available to implement and enforce the
legislation. Consistent with the discussion above, the Department's
representatives did not anticipate resource issues, given that the bill is
associated with a shift in focus in compliance activities away from locating
and resolving the status of individual employees, and towards a small number of
employers who are currently not doing the right thing.[34] A representative of the Department
stated:
The department has around 300 officers involved in compliance
activities, either locating over-stayers and people undertaking illegal work or
considering cancellation of visas where there has been breach of conditions for
a range of reasons. So they would be the key people that we would see building
into their everyday activities that they are already discharging the
identification of potential illegal work breaches that might lead to referral
to the DPP for possible prosecution.[35]
3.27
Representatives for the Department explained that there
were already work practices in place, such as the issuing of Illegal Worker
Warning Notices, which could be further developed so that, once the legislation
came into effect, cases could be referred to the Director of Public
Prosecutions.[36]
3.28
The committee also notes the MIA
suggestion that enforcement of the legislation could be assisted by Workplace
Inspectors from the Department of Employment and Workplace Relations being
trained to recognise potential breaches of the bill.[37] Representatives from the Department noted
that no arrangements had been concluded with other agencies involved in
administering the offence provisions, however suggestion would be followed up
with the Department of Employment and Workplace Relations.[38]
Committee view
3.29
The committee accepts that the bill represents a more
'leveraged approach' by the Department, and a targeting of its resources
towards non-compliance employers rather than individual employees.[39] As such, and with enforcement efforts
being focused on intransigent worst offenders, the committee does not consider
that employers would be caught by an arbitrary or surprise charge under the
proposed legislation. For that reason, the committee understands that more
resources should not be required by the Department to implement and enforce the
offences in the bill.
3.30
The committee also notes that the Department intends to
have primary responsibility for the enforcement of the offences. However, the
committee encourages the Department to pursue discussions with the Department
of Employment and Workplace Relations regarding the feasibility of using
Workplace Inspectors in the implementation and enforcement of the bill.
The definition of 'reckless'
3.31
The definition of reckless, and when an employer or
labour supplier would be considered reckless in employing an illegal worker,
was a key issue in a number of submissions.[40]
3.32
The Explanatory Memorandum notes that subsection 5.4(1)
of the Criminal Code provides that a person is reckless with respect to a
circumstance if:
-
he/she is aware of the substantial risk that the
circumstance exists or will exist; and
-
having regard to the circumstances known to him
or her, it is unjustifiable to take the risk.[41]
3.33
The Explanatory Memorandum states that:
Current case law indicates that the fault element of
recklessness is a variable standard that provides 'flexibility having regard to
the vast range of offences covered by the Code'. What constitutes a substantial risk 'may vary depending on
the context and gravity of the criminal activity' (Hann v Commonwealth DPP [2004] SASC 86 (26 March 2004), at paragraph 23).[42]
3.34
The ACCI argued against using the dual test of
knowingly or recklessly, submitting that:
the concept of 'reckless' involves a significantly lesser level
of awareness by an employer of the true nature of a worker's work status than
the primary offence in the Bill, of having
knowingly engaged such a person to work. While employers may seek to avoid the 'knowingly'
criterion by not checking employees' work rights, the low awareness threshold for
an employer to be judged to have been reckless exposes employers to large
penalties and is in our view unreasonable.
Our concern is highlighted by paragraph 25 of the explanatory
memorandum which reads 'it is intended that a person would be reckless as to
the circumstances in paragraph 245AB(1)(b) where he/she is aware of the
possibility that a worker could be an unlawful non-citizen.'
In order to avoid breaching this legislation, employers will be
placed in a situation of having to make a value judgement about whether a
prospective employee is at risk of being an illegal worker.[43]
3.35
At the hearing, Mr
Balzary of the ACCI noted that the organisation
supported sanctions against employers who knowingly and recklessly engaged illegal workers. However, ACCI's concerns are
particularly with the 'length and breadth' of the concept of recklessness.[44] Mr
Balzary explained ACCI's concerns to the
committee in this way:
The issue for us is: how far does an employer need to go to
ascertain whether someone is a legal worker? For example, if someone comes in
under a particular visa category they may be a legal worker in some instances
but they move, and they may still have some degree of proof that they are a
legal worker but not for that particular industry or region. In addition to
that, and more importantly for us, what does the employer need to make sure
they have proof? We are looking from a practical point of view.[45]
3.36
In contrast the National Farmers' Federation did not
find the concept of recklessness problematic, stating in its submission:
The requirement to prove actual intent or recklessness is
understood to not create any liability on a farmer who was simply careless in
their recruitment of an illegal worker. It is also understood that the term
recklessness means that it would have to be proved that the farmer knew there
was a substantial risk that the job applicant was an illegal worker and that
under the circumstances known to the employer, it was unjustifiable for the
employer to have taken that risk.[46]
3.37
A Departmental officer provided the committee with the
following explanation of the meaning of recklessness in the context of the bill:
In our view, the fault element of recklessness would only
require an employer to consider checking the work rights of a job applicant
where there is a substantial risk the applicant is an illegal worker. The
explanatory memorandum indicates that a substantial risk will exist where there
is a possibility that a prospective employee is an illegal worker. In this
context, our legal advice indicates that proof of recklessness would require a
range of circumstances to be taken into account, including, for example,
whether the employer operates in an industry where a large number of illegal
workers are located, whether the department’s employer awareness campaign has
highlighted the risks in those industries, whether the particular employer has
been given information about the risks – for example, by being given an illegal
worker warning notice and guidance on how to check work rights – and whether
the illegal worker said anything at their job interview from which a court
could conclude that the employer was aware of the possibility that the job
applicant was an illegal worker – for example, by mentioning that they were
visiting Australia from abroad.[47]
3.38
A representative of the Department also pointed out
that a number of other countries already had legislation requiring a much
higher level of work rights checking. For example, in Switzerland
and Canada
sanctions apply to employers who 'merely act negligently or who fail to
exercise due diligence in checking work rights'.[48]
3.39
On the difference between reckless and careless raised
by the NFF, Special Counsel for the Department had this to say:
I would say that there is a clear legal distinction between
‘recklessness’ and ‘carelessness’. ‘Carelessness’ imports an objective standard
of failure, to follow what a reasonable person might do in the circumstances.
‘Recklessness’ is a subjective, conscious concept that focuses on the awareness
of the individual—the subjective awareness of the risk in those circumstances,
and it is required to be proved on a subjective basis, as you would in the case
of intention or knowledge, so it is a much higher threshold than mere
carelessness.[49]
3.40
A related issue is whether it would be preferable to
locate the definition of the term 'reckless' in the legislation itself, instead
of the Criminal Code as proposed. The MIA
commented that:
We note that the Explanatory Memorandum (paragraph 20), states
that the penalty must be read with Sections 4AA and 4B of the Crimes Act 1914, and that at paragraph
21 it refers to the definition of 'reckless' contained in Subsection 5.4 (i) of
the Criminal Code. However, we
believe that this definition of the term 'reckless' is so central to the
application of these penalties, that it should be included in the body of the [bill],
or at the very least we recommend
that the Explanatory Memorandum includes an expanded range of examples.[50] (emphasis in original)
3.41
At the hearing representatives of the Department noted
that the term 'reckless' had a well-established definition which is used in
many Criminal Code situations.[51] In response to MIA's
recommendation that the definition of recklessness be included in the
provisions of the bill, the Department's Special Counsel stated:
... the policy of the drafters and the Attorney-General’s
Department is not to have specific references or at least not to have the
definitions restated in specific legislation but to rely on the definitions
that are in the [Criminal Code].[52]
Committee view
3.42
The committee notes that it is the policy of the
Attorney-General's Department not to duplicate in specific legislation
definitions which already appear in the Criminal
Code and concurs with the Department that the term 'reckless' (or
recklessness) is a well-established definition used in the Criminal Code, although the bill provides a new context in which
the term 'reckless' is used.
3.43
The committee understands that the term 'reckless' is a
cause for concern in some organisations. However, the committee also notes that
the Department is committed in the six month phase-in period for the offences
to providing answers to factual, example based questions that different
industries may have, and to providing industry-specific information in relation
to the bill. The committee also notes statements (discussed above) by the
Department that it intends to approach enforcement of the provisions in a fair
and reasonable manner, and that in the majority of cases, a matter will not be
referred for prosecution unless the employer has previously been provided with
a warning and guidance on how to comply with the legislation.
3.44
The committee believes, given the proposed initiatives
by the Department, that no amendment to the bill is necessary in respect of the
term 'reckless', however the committee will seek reports from the Department as
to the progress of enforcement.
Burden on the employer
3.45
Some submissions expressed concern that the proposed
amendments would place a heavy compliance burden on employers and labour
suppliers.[53]
3.46
The Regulation Impact Statement, contained in the
Explanatory Memorandum, in discussing the impact of the new offences on small
businesses, states:
The proposed offences may have an increased impact on small
businesses in the construction, taxi and hospitality industries where there are
higher proportions of illegal workers. However, the proposed offences would not
require routine work rights checking. A check would only be needed where there
is a substantial risk that a prospective employee is an illegal worker.[54]
3.47
However the ACCI submitted that this understates the
likely real impact of the legislation:
... this requirement will impose additional workload on employers,
and may be particularly onerous for those in industries with traditionally
little formal paperwork around hiring practices.
The amount of time per worker required to verify their immigration
status may only amount to a few minutes, but this could build up to a
significant amount for businesses that employ large numbers of workers, and
with high turnover rates (eg in the fruit-picking industry). This time needs to
be balanced against the potential loss in productivity that could be
experienced if illegal employees were removed from the workplace because of
breaches of immigration laws.[55]
3.48
Mr Balzary
of ACCI linked the matter of compliance burden on employers to the uncertainty
in the term 'recklessness', because it was a matter of employers not knowing
how much they needed to do in order to not be considered reckless.[56]
3.49
Mr Robert
Jackson, a member of the MIA,
advised the committee of the nature of his advice to clients in relation to
compliance in such a situation:
As a professional adviser, seeing the legislation that currently
stands, I would say to any employer, 'Just take all steps you can because the
penalties are grave and it’s not clear what you have to do.' ... if a policy was
developed that all employers had to ask for the visa label or make use of the
EVO system and they knew that they had to do one, two or three things, it would
be a lot easier to give concrete advice and it would catch out those who are
truly reckless and do not care about the legislation at all.[57]
3.50
However, the Department notes in its submission that 'Considerable
care has been taken to ensure that the legislation would not place an undue
burden on business',[58]
while the Explanatory Memorandum states that it is not intended that the
proposed offences would require employers to conduct routine checks of
employees' working rights.[59]
3.51
This notwithstanding, an officer of the Department
explained that:
We would certainly suggest that routine work rights checking may
be good practice for employers, if for no other reason than to prevent the loss
of their investment in training and the production of an employee if an
Immigration visit were to lead to us remove one of their workers from the
workplace ... But I think the point is that there is nothing in this bill that
would require an employer to have comprehensive work rights checking. So we
will continue to work with the employer associations in suggesting that that is
best practice, but we would certainly not be implying that we believe it is
necessary under this bill for employers to be doing that.[60]
The taxi industry
3.52
In the particular circumstances of the taxi industry, Mr
Blair Davies, Executive Director of the Australian Taxi Industry Association
(ATIA), indicated that the organisation saw the issue of verification of
working entitlements of taxi drivers as one which could be carried out by the
State and Territory industry regulators as part of the process for issuing
drivers' authorities or certification.
3.53
State and Territory industry regulators have broadly
consistent processes for issuing drivers' authorities/certification, which
involve health and criminal record checks, as well as training in areas such as
service delivery and emergency procedures. As Mr
Davies explained to the committee:
Before somebody receives an authorisation or a certification to
be a taxi driver, they do need to go over a significant number of hurdles. From
that point of view, we see the requirement that they be a citizen of Australia
or, alternatively, a legal non-citizen as being yet another hurdle for a taxi
driver. In that regard, our original submission to this committee was along the
lines that this requirement and this bill should be integrated with the
drivers’ authority or certification process administered by the state
regulators.[61]
3.54
If the State and Territory industry regulators were to
encompass a working rights verification procedure into the existing driver's
authority/certification process there would be no additional compliance burden
placed on individual taxi owners or licence holders.
3.55
An officer from the Department indicated to the
committee that the Department is already negotiating with State and Territory
taxi regulators to enable their access to the EVO facility, with progress made
with the NSW and Victorian bodies.[62]
However, Mr Davies
indicated that in the course of ATIA's discussions with State and Territory
regulators, as yet, no regulators had signalled a preparedness to change
arrangements for issuing driver's authority/certification to include this
check.[63]
Committee view
3.56
The committee is aware of an inevitable conflict
between the outcomes sought by employers and labour suppliers: on one hand, the
desire for compliance certainty and on the other, the desire to minimise
compliance costs. However, complete certainty as to a worker's status can only
be achieved through compulsory and universal work entitlements checks. Such compulsory
checks would, in most cases, be unnecessary relative to the actual risk of an
employee being an illegal worker. The committee believes that the best balance
between the costs of compliance and the risk of non-compliance will not be
achieved through prescriptive measures, but rather on a risk based approach in
each specific industry – as proposed by the bill.
3.57
The committee appreciates that the bill will result in
a greater workload for some employers, particularly those in industries with a
naturally high turnover of staff.
3.58
The committee also notes that, although not required by
the bill, the Department suggests routine work rights checking as a matter of
good practice for employers. The committee considers that this additional
effort will provide employers with some degree of comfort that, where they are
investing in the recruitment and training of employees, that investment will
not be lost through it later being discovered the employee is an illegal
worker.
3.59
The committee also notes the efforts of the Department
to remove some of the burden from employers. In the case-study of the taxi
industry, described above, the logical outcome is enabling the State and
Territory regulatory bodies for taxis to access the EVO facility. The committee
recognises that the Department can not compel State and Territory bodies to
follow work entitlement checking procedures, however the committee encourages
the Department to pursue any other similar arrangements which would reduce the
compliance burden on employers.
The potential for discrimination
3.60
The bill requires an employer or labour supplier to
make an assessment of the risk that a person is an illegal worker. The
Australian Catholic Migrant and Refugee Office (ACMRO) expressed a concern the
requiring employers and labour suppliers to make such assessments may result in
discrimination:
There might also be a problem in the way that the amendments are
singling out prospective employees who say that they are not permanent [residents]
or those who may not sound or look like permanent residents. With the amendment
stating that it is an offence to knowingly or recklessly allow those without
work rights to work in Australia
illegally people who might look or sound differently are likely to find
themselves not only questioned but also suspected of breaking the law. This
might further fuel prejudices, racism and xenophobia and result in further
exclusion for a group that is already experiencing disadvantages and
discrimination in the labour market.[64]
3.61
The ACCI also expressed concern in its submission that
requiring employers to make a subjective assessment as to whether or not there
is a substantial risk that a person is an illegal worker could, potentially,
expose employers to prosecution under anti-discrimination legislation.[65]
3.62
The Department responded to these concerns stating that
race and ethnic origin should not be used as a basis for requesting proof of
work entitlements as these factors do not indicate immigration status in a
multicultural society and have no relevance as to whether a job applicant is an
illegal worker. The Department went on
to say:
To avoid discrimination employers should either ask all job
applicants for proof of work entitlements so that all applicants are treated
equally, or only rely upon factors that suggest a person may not have work
rights, such as a comment by a job applicant that they are only visiting Australia.[66]
Committee view
3.63
The committee notes the concerns about the interaction
of the bill and anti-discrimination legislation. The committee concurs with the Department's
assessment that properly implemented recruitment practices will not expose
employers to prosecution under anti-discrimination legislation.
3.64
However, the committee does acknowledge the potential
that some employers may become reluctant to employ people from some migrant
groups which may be perceived as risk groups in the context of this
legislation. The committee suggests that the Department consults with and seeks
feedback from ethnic communities and organisations to identify whether these
measures are having any adverse impacts and take any necessary action to
address them.
The definition of 'allows a person to work'
3.65
A number of submissions were concerned over the scope
of working relationships covered by the definition of 'allows a person to work'
in proposed subsection 245AG(2).[67] In
particular, organisations sought guidance on the types of working relationships
which would be captured by the bill, outside of the traditional
employer-employee relationship, in order to determine liability under the bill.
3.66
Proposed subsection 245AG(2) defines when a person
'allows' another person to work, by reference to four types of working
relationships, being where a person (the first person):
-
employs a second person under a contract for
service; or
-
engages a second person, other than in a domestic
context, under a contract for services; or
-
bails or licenses a chattel to a second person,
or another person, with the intention that the second person will use the
chattel to perform a transportation service; or
-
leasing or licensing premises, or a space within
a premises, to a second person, or another person, with the intention that the
second person will use the premises or space to perform sexual services.
3.67
The Explanatory Memorandum states:
The circumstances [in proposed section 245AG(2)] are broad enough
to cover not only the traditional employer-employee relationships, but also alternative
working arrangements that are common in industries where illegal work occurs, such
as in the construction, taxi, hospitality, cleaning and sex industries.[68]
3.68
Three specific working relationships were raised with
the committee.
3.69
First, both the ACCI and the Western Australian Chamber
for Commerce and Industry noted that paragraph 245AG(2)(b) could apply to a
principal-contractor-sub-contractor relationship. In evidence to the committee Mr
Balzary of ACCI indicated that organisation
sought clarification on whether paragraph 245AG(2)(b) would extend an
obligation to a principal to verify the working entitlements of a
sub-contractor:
With respect to an organisation that uses a subcontracting type
arrangement – for example, a labour hire company which utilises someone’s
labour in their own right – the actual host organisation may not be fully aware
of who is on site, and it is not their responsibility to check the validity of
the basis on which they are operating. So with regard to the example of entity
A contracting entity B to provide a service, and entity B subcontracting to
individual C, we are concerned about whether this means ... that the principal
contractor, party A, is not covered under this arrangement.[69]
3.70
The Department does not consider that the offences in
proposed sections 245 AB and 245AC would apply to the principal in this
situation, because the relevant relationships in paragraphs 245AG(2)(a) and (b)
do not exist between entity A and individual C.[70]
3.71
Second, the Explanatory Memorandum notes that paragraph
245AG(2)(c) is intended to affect taxi companies and other chauffeured car hire
services.[71] Mr
Davies of ATIA explained to the committee
how taxi licensing arrangements work:
There is the bailor, who may well be what we would call a taxi
operator. Then there is the taxi licence owner ... The taxi licence owner can be
– and is, on many occasions – the bailor of the taxi, who has a direct
relationship through a bailment agreement with the taxidriver. However ... the
owner can be akin to an investor in the taxi licence and therefore has a
relationship – perhaps via a lease agreement or an assignment agreement or a
management agreement – with a bailor but has no direct relationship with any
taxidriver associated with that licence.[72]
3.72
ATIA's concern is that paragraph 245AG(2)(c) would
capture situations where the owner of a taxi licence was not the bailor, and
who therefore had no direct relationship with the driver.[73]
3.73
In relation to this particular concern, a Departmental
officer was able to provide the following response:
The offences would only apply where the taxi owner intends the
illegal worker to use the taxi for transportation services. If the owner of the
taxi is completely unaware of the use down the track by subsequent drivers then
we would not think that this provision would apply to them. If, however, they
were to sublease the taxi to a colleague or an associate and did have the
intention that the subsequent use of that taxi would be by a person who was not
with work rights then they may come within the provision. But, in the absence
of that knowledge of how the taxi were to be used, we cannot see how they would
fall foul of this provision.[74]
3.74
Third, the committee is also aware of concern amongst
some charitable organisations that they may be exposed to prosecution where
illegal workers perform voluntary work for them. The Department addressed this
concern in its submission stating that organisations who allowed illegal workers
to participate in charitable or community activities would only commit an
offence where the relationships in paragraphs 245AG(2)(a) to (d) existed:
In the Department’s view, it would be highly unlikely that ...
these relationships would exist where an unpaid volunteer was engaged in
activities such as door-knocking for charities, working in homeless shelters or
assisting with children’s sporting activities.[75]
3.75
A further issue was also raised by the Melbourne
Catholic Migrant and Refugee Office (MCMRO) in relation to paragraph
245AG(2)(d), which deals with the lease of premises to enable a person to
perform sexual services. MCMRO stated in its submission:
the government has to be careful not to treat trafficking of
women and young girls into prostitution and sexual servitude in Australia
as simply an employer non-compliance issue. There are a whole range of other
more serious crimes and human rights violations occurring apart from employers
employing 'illegal workers'.[76]
3.76
A representative of the Department provided the
committee with information on steps that the Federal Government was taking in
addressing the issue of people trafficking for the purposes of prostitution and
sexual slavery:
... the government has taken a very comprehensive
whole-of-government approach to dealing with trafficking matters, manifested by
the package of measures that came into effect during 2004, I believe, which
involved the visa framework that we set in place to deal with trafficking
matters ... In addition to that, there were legislative provisions introduced by
Attorney-General’s and the comprehensive victims support program managed
through the Office for Women, as it is called now.
From our perspective, in January 2004 we introduced the bridging
visa F provisions, which enable a suspected trafficking victim to remain in
Australia, initially for a period of 30 days, while law enforcement agencies
and the individual decide whether there is enough evidence on which to proceed
to a criminal justice visa and prosecution matters, but also for the individual
to decide for herself, in the main—it is usually a female—whether they want to
be part of that process. From our perspective, there are the criminal justice
visa provisions and the possibility of moving to an either temporary or permanent
witness protection trafficking visa after those proceedings.[77]
3.77
The committee also notes that the new offences in the
bill create penalties against brothel owners who rent premises to people who
are the victim of human trafficking, or to the traffickers themselves. Previously,
it was debateable whether a brothel owner would come within the provisions
imposing penalties for human trafficking.[78]
Committee view
3.78
The committee understands that the definition in
proposed subsection 245AG(2) is designed to capture various working
relationships which fall outside the concept of the traditional
employer-employee model. The committee appreciates the Department's efforts
both at the hearing, and in answering questions on notice, in addressing the
concerns of stakeholders about how the legislation applies to various working
relationships.
3.79
The committee is satisfied with the explanation
provided by the Department that charities who have non-citizens without working
entitlements doing volunteer work are unlikely to be captured by the bill,
because the relationship is unlikely to fall within the definition of 'allows a
person to work' in subsection 245AG(2).
3.80
The committee is of the view that issues in relation to
this definition will continue to be raised as awareness of the legislation
increases. Again, the committee notes the willingness of the Department to work
with industry to develop industry-specific information on the application of
the bill, and the committee believes that this issue should be a particular
focus for the Department in the development of industry-specific information.
3.81
The committee does not accept the concern that the bill
represents a danger that the issue of trafficking of people for prostitution
and sexual servitude will be treated as only one of employer non-compliance. This
bill is separate to an existing strong program targeted specifically at the
trafficking of people for prostitution and sexual servitude.[79] To this end, the committee welcomes
the offences in the bill as applying to people who may previously have escaped
prosecution under the trafficking offences.
Expansion of access to the Entitlement Verification Online (EVO) Facility
3.82
The MIA and the Western
Australian Chamber of Commerce and Industry submitted that access to the EVO
facility be expanded to include their respective stakeholders, namely,
registered migration agents.[80]
3.83
The Explanatory Memorandum notes that while each of the
policy options for reducing the number of illegal workers in Australia
can stand alone, the options are also complementary.[81] The Department-administered EVO
facility is one of the complementary policy options accompanying the bill.
3.84
At the hearing Departmental officers indicated that there
is merit in those suggestions, and the migration groups would be a key group for
accessing Departmental facilities through portal based technology. The
Department intends to progress this matter further with the MIA.[82]
Committee view
3.85
The committee agrees with the MIA
and the Western Australian Chamber of Commerce and Industry that, in the
context of the new offence provisions, there is potentially a benefit in
expanding access to the EVO facility.
3.86
The committee notes that the Department is currently
reviewing its information systems.[83] The
committee recommends as part of that review process, the Department consult
with the MIA, the ACCI, and any other interested
stakeholders, to discuss future access to the EVO facility.
Recommendation 2
3.87 The
committee recommends that as part of the current review of information systems,
the Department conduct discussions with the MIA, the ACCI, and any other interested
stakeholders, the feasibility of expanding access to the EVO facility.
Extension of working rights
3.88
The Explanatory Memorandum sets out six options
considered for reducing the prevalence of illegal workers in Australia.
One of those options, the expansion of work rights on visas, was rejected as
not meeting the Federal Government's objectives.[84]
3.89
The MCMRO queried why this option had been rejected.[85] Representatives of the Department
explained:
... redefining the scope of illegal work is one way to reduce it ...
The department’s view, and I think the government’s view, would be that [labour
market needs] are fairly targeted and that to broaden out at a very general
level the work rights issue may be counterproductive. It is better to focus on
where there are specific labour shortages and ensure that, through substantive
visa options – whether it is through the extension of the holiday work program
or working with particular industry groups around the harvest trail initiative
– we can refer employees to where there is demand. Those seem to be better
targeted approaches to deal with this issue than perhaps just relaxing the
notion of work rights across the board.[86]
3.90
A further aspect of the work rights issue relates
specifically to asylum seekers. The ACMRO and MCMRO both advocated in their
submissions that asylum seekers should be given working rights to enable them
to support themselves.[87] Ms
Hubber, the Executive Officer of MCMRO,
expanded on this issue at the hearing:
Research has found that ineligible asylum seekers live in abject
poverty with virtually no mainstream supports available to them. The impact of
this coupled with prolonged passivity has caused high levels of anxiety,
depression, mental health issues and a general reduction in overall health and
nutrition. Though [Bridging Visa Category E was] originally intended to be of
only three months duration, there are some asylum seekers who have been on a
bridging visa E for over eight years. The burden to support these people has
been left to underresourced community and church groups and is unsustainable,
particularly for the needs of growing children. Most people seeking Australia’s
protection in this situation are completely reliant on charity.[88]
3.91
In response, a Departmental officer provided the
following information in relation to the limited number of asylum seekers
living in the community without working rights:
Approximately 1,600 people nationally have protection visa applications
on hand either with the department or at merits review. Of these, some
two-thirds are on bridging visas with work rights, so we are talking about a
minority of people seeking protection visas that are not currently able to
reside in the community with work rights.[89]
3.92
The Department's representative indicated that the particular
issue that some non-government organisations were focussed on was the so-called
'45-day rule', which was introduced to deter people from lodging protection
visa applications well after they have entered the country. According to the
Department, the 45-day period provides asylum seekers with sufficient time to
obtain information about the protection visa process and to access legal
assistance to complete their applications:
The majority of protection visa applicants do lodge within those
45 days and are then eligible for work rights. These proposed offences are not
going to change the situation for any of those people, but ... it was important
to make it clear that it is in the context of the fact that the majority of
asylum seekers do make that application within 45 days and generally do have
access to work rights.[90]
3.93
Representatives for the Department noted that the issue
of working rights for those on Bridging Visa Category E would be a matter for
the review that the Department is currently undertaking in relation to the
scope of bridging visas.[91]
Committee view
3.94
The committee concurs with the Department that, at this
time, the expansion of working rights on visas is not the appropriate means by
which to address the prevalence of illegal workers in Australia.
3.95
On the specific issue of granting working rights to
asylum seekers, the committee understands that this is a matter which is
currently under review by the Department.
Recommendation 3
3.96 The
Committee recommends that subject to the preceding
recommendations the bill proceed.
Senator
Marise Payne
Committee Chair
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