Bills Digest No. 64, 2017-18
PDF version [325KB]
Claire Petrie
Law and Bills Digest Section
11 January 2018
Contents
Purpose of the Bill
Background
2014 independent review
Tax file number data
Publication of sanction details
Productivity Commission report
2017 reform of the skilled migration
programme
Committee consideration
Legal and Constitutional Affairs
Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
Part 1—public disclosure of sanctions
Existing law
Proposed amendments
Impact and concerns
Part 2—merits review
Existing law
Proposed amendments
Impact and concerns
Part 3—tax file number data
Existing law
Proposed amendments
Impact and concerns
Part 4—references to Regulatory
Powers Act
Date introduced: 16
August 2017
House: House of
Representatives
Portfolio: Immigration
and Border Protection
Commencement: On
Proclamation or six months after Royal Assent, whichever occurs first.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at January 2018.
Purpose of
the Bill
The purpose of the Migration and Other Legislation
Amendment (Enhanced Integrity) Bill 2017 (the Bill) is to amend the Migration Act 1958
to:
- authorise
the publication of details regarding sponsor sanctions, with retrospective
application from 18 March 2015
- enable
the Department of Home Affairs[1]
(Department) to collect tax file number data for prescribed purposes in
relation to prescribed visas
- clarify
the rights to merits review for certain skilled visas and
- fix
incorrect references to the Regulatory Powers
(Standard Provisions) Act 2014 (Regulatory Powers Act).
The Bill also amends the Income Tax
Assessment Act 1936 and Taxation
Administration Act 1953 to authorise the collection, sharing and use of
tax file number data for the purposes of the Migration Act.
Background
In his second reading speech, Assistant Minister for
Immigration and Border Protection[2]
Alex Hawke stated that the measures in the Bill ‘will protect Australian and
overseas workers, by strengthening the integrity of Australia’s temporary and
permanent sponsored skilled work visas’.[3]
The integrity of the temporary skilled migration program has
been a matter of ongoing concern. In particular, the Temporary Work (Skilled)
(subclass 457) visa has been the subject of debate and scrutiny amidst concerns
about the extent to which the program addresses genuine skill shortages within
the Australian workforce, and reports of the exploitation of overseas workers.[4]
2014
independent review
In February 2014, the Abbott Government announced that it
had commissioned a review into the 457 visa program. The review, conducted by
an independent panel led by John Azarias, was tasked with examining how to
maintain the integrity of the program without placing unnecessary
administrative burdens on businesses.[5]
The report of the review, Robust
New Foundations: a Streamlined, Transparent and Responsive System for the 457 Programme,
was published in September 2014, and made 22 recommendations targeted at
streamlining the program, providing greater flexibility and transparency, and
strengthening sponsor monitoring and sanctions.[6]
The Government provided its response to the report on 18 March 2015, and
supported, or supported in principle, all but two of the recommendations.[7]
The current Bill seeks to implement two recommendations of
the review relating to the collection of tax file numbers and the publication
of sponsor sanctions.
Tax file
number data
The Robust
New Foundations report recommended that greater priority be given to
the monitoring of sponsors, including through strengthening inter-agency
cooperation. While noting that the Immigration Department had already entered
into a Memorandum of Understanding with the Fair Work Ombudsman (FWO), who is
responsible for monitoring certain sponsor obligations, the report recommended
that more be done in this area.[8]
In particular, it recommended greater collaboration between the Department and
the Australian Tax Office (ATO), including information exchange between
agencies, inter-agency workshops and a more integrated relationship to support
integrity across immigration and tax systems, and suggested:
... further benefit could be achieved through information
sharing and data matching with the ATO to identify sponsors at risk of
non-compliance with their sponsorship obligations based on data discrepancies
relating to visa holder salaries. Such collaboration could involve, but may not
be limited to, matching records based on the visa holder’s tax file number
obtained from sponsors. The ATO has indicated that this would require
legislative change. This is strongly supported by the panel.[9]
The report recommended a change to 457 visa conditions to
place a positive obligation on 457 visa holders to provide their tax file
number (TFN) to the Department, arguing ‘this represents a simple change that
will shift the burden on 457 visa holders while sending a clear message to both
the employee and the employer.’[10]
Publication
of sanction details
The report found that the Department had adequate compliance
measures in place to effectively penalise sponsors who do not meet their
obligations under the sponsorship program, or who have provided false or
misleading information, but that due to resourcing constraints the tools were
not being implemented as effectively as they could be. It pointed to the low
number of civil penalty prosecutions, and absence of any enforceable
undertakings in place, to suggest that more resources be directed to litigating
appropriate cases.[11]
Additionally, the report recommended that the Department
publicly release more information on sanctioned sponsors, including ‘naming and
shaming’ sponsors found to be grossly in breach of their obligations. It
suggested that doing so would have a greater deterrent effect than the
aggregate data already being provided in the Department’s annual report and
other ad-hoc reports, and argued:
... the motivation for compliance will be enhanced if the
department discloses the outcomes of its compliance activities. This will also
address the need for transparency in the sanctions imposed on sponsors and
thereby confidence in the scheme's integrity.[12]
Specifically, the report recommended the Department
consider disclosing greater information on sanctions action including:
-
publicising the results of all civil penalties imposed by a court
including communicating this to all sponsors by email;
- publication on the department’s website of any enforceable undertakings
accepted by the department and communicating this to all sponsors by email; and
- publication on the department’s website of sanction data in relation to
issue of infringement notices as well as barring and cancelling sponsors with
details limited to industry type, location and nature of sponsorship obligation
breached.[13]
Productivity
Commission report
In its 2016 inquiry report on Migrant
Intake into Australia, the Productivity Commission also highlighted the
broader benefits of the Immigration Department and the ATO using TFNs in
data-matching programs. It noted that to some extent the ATO already uses TFN
data in relation to temporary migrants:
About 70 per cent of temporary immigrants with work rights
apply for a Tax File Number (TFN) via the ATO’s Individual Auto Registration
system. When these clients apply for a TFN through this system, their details
are matched with the DIBP’s records to confirm their identity. As part of the
matching process, the DIBP will provide the ATO with a DIBP ‘Personal
Identification’ Number for that taxpayer. This matching process has been in
place for over 10 years.
Where applicants apply for a TFN using other methods (such as
through Australia Post) they are not captured by this data matching process.
This ‘leakage’ of coverage (and that arising from when applicants apply for an
Australian Business Number in lieu of a TFN) is, however, relatively minor and
does not pose a threat to the value of the data collected under this matching
process.[14]
The Commission recommended that the ATO, Immigration
Department and the Australian Bureau of Statistics compile and make available a
database matching TFNs and temporary immigrant visas, and that the Government
provide funding for this purpose. It suggested that data collected through this
matching process be made available in general aggregated form for the purpose
of research and informing government policy.[15]
2017 reform
of the skilled migration programme
On 18 April 2017, the Government announced significant
reforms of employer sponsored skilled migration visas, with key changes
including:
-
the abolition of the 457 visa from March 2018
- the introduction of a new Temporary Skills Shortage Visa in place
of the 457 visa—this will have Short-Term and Medium-Term streams, with
stricter eligibility criteria than the 457 visa including:
-
mandatory
labour market testing and
- a
requirement of two years’ work experience relevant to the particular occupation
- transitional amendments to the 457 visa prior to its abolition,
including:
- significant
changes to the occupation lists (with the creation of new occupations lists)
- compulsory
criminal history checks and the
- removal
of exemptions to English language requirements.[16]
Changes were also announced to eligibility criteria for
employer sponsored permanent skilled visas, including tightened age and English
language requirements and a new requirement for applicants to have at least
three years’ work experience.[17]
As part of these reforms, the Department announced that,
by 31 December 2017, it would commence the collection of TFNs for temporary and
permanent employer sponsored migrants, with data to be matched with ATO records
to ensure that visa holders are not being paid less than their nominated
salary.[18]
It also announced that before 31 December 2017 it would:
... commence the publication of details relating to sponsors
sanctioned for failing to meet their obligations under the Migration Regulation
1994 and related legislation.[19]
This measure was announced only in relation to temporary
sponsored skilled visas.
As the current Bill was not passed prior to 31 December
2017, the TFN measures have not yet commenced.
Committee consideration
Legal and Constitutional
Affairs Committee
The Bill was referred to the Senate Standing Committee on
Legal and Constitutional Affairs for inquiry and report. The Committee issued
its report on the Bill on 17 October 2017, concluding that the Bill ‘has
achieved the right balance between protecting workers and protecting the rights
and privacy of sponsors’.[20]
Although expressing its general aversion to retrospective provisions, and
recommending changes be made to the wording of the merits review amendments
under Part 2 of Schedule 1, the Committee recommended, on
balance, that the Bill be passed.[21]
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
reported on the Bill on 6 September 2017.[22]
The Committee raised particular concerns about the proposed power to publish
details of sanctions taken in relation to sponsors, including:
- the
types of information to be published will be prescribed in delegated
legislation rather than the Act itself
- the
provision expressly excludes the natural justice hearing rule and protects the
Minister from civil liability in publishing information as prescribed and
- the
amendment has retrospective application.[23]
The Minister provided a response to the Committee on 21
September 2017, which the Committee responded to on 18 October 2017.[24]
The Committee’s concerns, and the Minister’s response, are discussed in further
detail in the ‘Key issues and provisions’ section below.
Policy
position of non-government parties/independents
The Australian Labor Party and other non-government
parties and independents have not commented on the Bill at the time of writing.
Position of
major interest groups
In its submission to the Senate inquiry, the Law Council
of Australia expressed its general support for strengthening the integrity of
the skilled migration program. However, it identified some aspects of the Bill
which required amendment or clarification ‘to ensure due process and fairness’,
including the retrospective application of amendments allowing the publication
of sanction information, the changes to the merits review rights, and the
provisions allowing the Department to collect and use TFN information.[25]
The Law Council’s concerns are discussed in further detail in the ‘Key issues
and provisions’ section below.
Other interest groups have not commented on the Bill at
the time of writing. In its submission to the Senate inquiry, the Department
reported that it had consulted broadly on its reforms to the employer sponsored
skilled migration program, which incorporate the changes proposed in Parts 1
and 3 of Schedule 1 of the Bill (in relation to sponsor sanctions and TFN
collection). It stated that while stakeholders had raised concerns about some
aspects of the broader program of reforms, ‘the Department is not aware of
concerns being raised regarding the measures in this Bill’.[26]
In relation to the publication of sponsor details, the
2014 Robust
New Foundations report indicated general support from stakeholders
regarding greater publication of sanction information, though noted that there
was some differentiation as to the level of detail they believed should be
provided. It reported that some stakeholders had expressed concern about the
potential harm that ‘naming and shaming’ could cause to the reputation of
businesses.[27]
Financial
implications
The Explanatory
Memorandum states that the Bill will have low financial impact.[28]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s
compatibility with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of that Act. The Government
considers that the Bill is compatible.[29]
Parliamentary
Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights reported
on the Bill on 5 September 2017. It noted that two measures in the Bill—the
public disclosure of sponsor sanctions and the disclosure of tax file numbers—engage
and limit the right to privacy, and queried whether these limitations are
proportionate to achieving the stated objective of the measures.[30]
However, after receiving clarification from the Minister in relation to these
issues, the Committee concluded that both measures appeared to be compatible
with the right to privacy.[31]
Further discussion by the Committee is contained in the ‘Key
issues and provisions’ section below.
Key issues
and provisions
Part
1—public disclosure of sanctions
Existing law
Part 1 of Schedule 1 proposes amendments to
the Migration Act to enable the Minister to publish information about
sanctions imposed on a sponsor. Section 140H provides that a person who is or
was an approved sponsor must satisfy the sponsorship obligations prescribed by
the regulations. Division 2.19 of the Migration Regulations 1994 sets out such
obligations, which include:
- cooperating
with an inspector appointed and exercising powers under the Migration Act[32]
- ensuring
the terms and conditions of employment provided to the sponsored person are no
less favourable than those provided to an Australian citizen or permanent
resident to perform equivalent work in the same workplace at the same location[33]
- keeping
records[34]
and where required, providing records and information to the Minister or
Department[35]
- securing
an offer of a reasonable standard of accommodation[36]
and
- ensuring
the sponsored person works or participated in the nominated occupation, program
or activity.[37]
The Act provides for a number of enforcement measures which
may be taken against sponsors who fail to satisfy an applicable sponsorship
obligation. Under existing section 140K, the Minister may:
- bar
the sponsor from doing certain things
- cancel
the person’s approval as a sponsor
- apply
for a civil penalty order or
- accept
an enforceable undertaking under the Regulatory Powers Act.[38]
A sponsor may be issued with an infringement notice in place
of a civil penalty order, or be required to pay a security under section 269 of
the Migration Act.[39]
In the case of a former sponsor, the Minister may also bar the person from
making future applications for approval.[40]
Proposed
amendments
Item 1 of the Bill inserts proposed subsections
140K(4) to (7), which provide for the publishing of information about
sanctions imposed on sponsors. Proposed subsection 140K(4) requires that
where action is taken against a sponsor (or former sponsor) who fails to
satisfy an applicable sponsorship obligation, the Minister must publish
the information prescribed by the Regulations in relation to the sanction—this
includes personal information. This obligation is subject to proposed
subsection 140K(7), which states that the Regulations may prescribe
circumstances in which the Minister is not required to publish information.
In publishing sanction information, the Minister is not
required to observe any requirements of the natural justice hearing rule—this
means, for example, that the Minister is not required to provide the sponsor
with an opportunity to be heard as to whether the information should be
published.[41]
Additionally, no civil liability arises from action taken by the Minister in
good faith in publishing information under proposed subsection 140K(4).[42]
The Statement of Compatibility provides that the type of
information which will be published is analogous to that currently published by
the Office of the Migration Agents Registration Authority in relation to
disciplinary decisions taken against migration agents, and by the FWO in
relation to litigation outcomes, enforceable undertakings and compliance
partnerships. Specifically, this will involve the publication of business names,
Australian Business Numbers (ABNs), and specific details of the adverse
compliance outcome.[43]
In responding to concerns raised by the Parliamentary Joint Committee on Human
Rights, the Minister has also stated that the sanction information will remain
in the public domain for a period proportionate to the seriousness of the
breach, to be prescribed in policy, taking into account the publication periods
for sanctions by other regulators.[44]
Retrospective
application
Item 3 is an application provision which states that
the proposed amendments to section 140K will apply retrospectively, to actions
taken under this section on or after 18 March 2015. This means the Department
will be able to publish the details of any sanctions imposed since 18 March
2015. The Explanatory Memorandum provides that this reflects the date of the
Government’s response to the Robust New Foundations report.[45]
Impact and
concerns
The proposed amendments to section 140K have attracted
particular concern from stakeholders. One point of concern is that the types of
information to be published will be specified in Regulations rather than the Migration
Act itself. The Scrutiny of Bills Committee noted that although the
Statement of Compatibility states that the information published will be
limited to business names, ABNs and the legal requirements which have been
breached, there is nothing in the primary legislation which will limit the type
of information that may be published in this way.[46]
The Law Council stated that as the proposed Regulations have not been released:
... it is difficult to form a full picture of how the proposed
publication of sanctions regime will operate and therefore to comment on
whether it is appropriate.[47]
Nonetheless, the Law Council expressed concern with a number
of features of the amendments, including the express exclusion of natural
justice obligations and the Minister’s immunity from civil liability. It
suggested that the Bill be amended to prevent sanction information from being
published until after any merits or judicial review options (in relation to the
disciplinary action) have been taken.[48]
It also argued that no justification had been given for the Minister’s
immunity, noting that if the sanction information is published before a sponsor
has exhausted their options for review, and the sanction decision is ultimately
overturned, the sponsor will be left without an effective remedy.[49]
The Scrutiny of Bills Committee similarly suggested that the
Bill be amended to either: remove proposed subsection 140K(5) in its
entirely; allow for a hearing in cases where the Minister may have discretion
as to whether to publish;[50]
or require:
... that publication [of sanction information] be delayed until
after the time limit for an application for review has expired, after a final
determination of a review application, and after a decision in relation to an
application for a court order under section 140K has been determined ...[51]
It noted that the natural justice hearing role ‘is a
fundamental common law principle and if it is to be abrogated this should be
thoroughly justified’.[52]
The Committee further requested advice from the Minister as to the
appropriateness of providing the Minister with civil immunity where good faith
is shown, noting that the courts have taken the position that bad faith can
only be shown in very limited circumstances.[53]
In response to the Scrutiny of Bills Committee’s concerns,
the Minister advised that as the measure was intended to deter businesses from
breaching their obligations and allow Australians and overseas workers to
inform themselves about breaches, it would be necessary to publish all or a
high percentage of breaches. He claimed that not publishing sanction
information until the time limit for review had expired would significantly
weaken the impact of the measure, leaving workers uninformed of employers found
to have breached their obligations.[54]
He further provided that the Department would notify sanctioned sponsors that
the decision was to be published, and that where sponsors advised the
Department they were seeking review, this would be included in the published
information.[55]
The Committee welcomed the intention to publish information of a review being sought,
but noted that it may be appropriate for the Bill to expressly require this, as
well as the removal or variation of sanction information where a sponsor’s
appeal is successful.[56]
Both the Scrutiny of Bills Committee and Law Council raised
concerns about the retrospective application of the amendments from the date
the Government accepted the relevant recommendation of the Robust New
Foundations report. The Law Council argued that:
... the Government merely supporting a recommendation is not
analogous to the announcement of an intention to legislate. As the Scrutiny of
Bills Committee has observed, ‘tying the commencement of legislative provisions
to the timing of ministerial announcements tends to undermine the principle
that the law is made by Parliament, not by the executive’. Further, many
recommendations supported by government are never implemented.
Therefore, announcement of support for a recommendation
cannot give rise to an expectation that legislation to implement the
recommendation will follow. Accordingly, the Law Council considers the
Government’s justification for the retrospective effect of the proposed laws is
insufficient.[57]
Family sponsors
The Migration Amendment (Family Violence and Other Measures)
Bill 2016, which at the time of writing was before the Senate, proposes
amending the Migration Act to introduce a sponsorship framework for the
sponsored family visa program.[58]
This includes a number of amendments to provisions of the Act providing for the
enforcement of sponsor obligations. In particular, the Family Violence and
Other Measures Bill proposes amending section 140K so that it captures both
work and family sponsors.[59]
If the Family Violence and Other Measures Bill is passed,
then the current Bill’s proposed changes to section 140K may cover both family
and work sponsors. This could require the Minister to publish details of
sanctions imposed on family sponsors (for example, the partner or child of a
visa holder). However, Regulations made under proposed subsection 140K(7)
could effectively exclude sponsors of certain visa types, such as all family
visas, from the publication requirement.
The Explanatory Memorandum and the Department’s submission
to the Senate Inquiry are silent on the issue of family sponsors being captured
by the proposed changes.
Part
2—merits review
Existing
law
Section 338 of the Migration Act sets out the types
of decisions which are reviewable decisions for the purposes of Part 5 of the
Act (referred to as Part 5-reviewable decisions). These decisions
can be reviewed by the Migration and Refugee Division of the Administrative
Appeals Tribunal (AAT), in accordance with the rules and procedures set out in
Part 5.
Existing paragraph 338(2)(d) specifies that a Part
5-reviewable decision includes a decision to refuse to grant a
non-citizen a visa (visa refusal decision) where a criterion for the grant of
the visa is that the non-citizen is sponsored by an approved sponsor, the visa
is a temporary visa of a prescribed kind,[60]
and at the time of making the application for review of the visa refusal
decision:
- the
non-citizen is sponsored by an approved sponsor or
- an
application for review of a decision not to approve the sponsor has been made and
is still pending.
Proposed
amendments
Item 4 of the Bill repeals this paragraph and
substitutes proposed paragraph 338(2)(d). This provides that a decision
will be a Part 5-reviewable decision if it is a visa refusal
decision, relating to a temporary visa of a prescribed kind, where at the time
the visa refusal decision is made, either:
- the
non-citizen is identified in an approved nomination that has not ceased under
the Regulations
- a
review of a decision under section 140E of the Migration Act not to
approve the sponsor of the non-citizen is pending
- a
review of a decision under section 140GB of the Migration Act not to
approve the nomination of the non-citizen is pending or
- the
non-citizen is sponsored by an approved sponsor, unless it is a criterion for
the grant of the visa that the non-citizen be identified in an approved
nomination that has not ceased under the Regulations.
Rationale for the
amendments
The amendments are aimed at clarifying the circumstances
in which a person can apply to the AAT for review of a visa refusal decision.
As noted by the Explanatory
Memorandum, the purpose of existing paragraph 338(2)(d) was to prevent
abuse of the merits review process by refused visa applicants who have no
sponsor—and who therefore cannot meet the criteria for grant of the visa.[61]
However, the provision has not been amended in line with changes to the
sponsorship regime in the Migration Act, and this has created
uncertainty as to its operation.
In particular, the existing provision does not reflect amendments
made to the Migration Act in 2008, which created separate processes for
approving a sponsor (under section 140E) and approving a sponsor’s nomination
of an applicant (under section 140GB).[62]
The requirement that a non-citizen be sponsored by an approved sponsor is no
longer part of the criteria for the grant of visas such as the 457 visa, which
instead requires that the visa applicant be identified in a nomination under
section 140GB.[63]
To some extent, these changes have been addressed by a
combination of judicial interpretation and amendments to the Migration
Regulations, which have had the effect of ensuring a person is ‘sponsored by an
approved sponsor’ when they are identified in a nomination under section 140GB.[64]
The reference in existing subparagraph 338(2)(d)(ii) to a ‘decision not to
approve the sponsor’ has been interpreted by the courts to capture both a
decision not to approve a sponsor under section 140E and a decision not to
approve a nomination under section 140GB.[65]
The Explanatory
Memorandum points to judicial interpretation of the existing provision as a
reason for the amendments proposed in the current Bill, stating:
... a number of court decisions handed down over recent years
have interpreted current paragraph 338(2)(d) in an attempt to try and adapt it
to these new arrangements. This has led to confusion and uncertainty for both
clients and the Department, which this item seeks to address.[66]
In particular, it cites the 2015 case of Kandel
v Minister for Immigration and Border Protection,[67]
in which the Federal Circuit Court interpreted the words ‘sponsored by an
approved sponsor’ to include situations where the non-citizen has been
identified in a nomination that has yet to be decided at all, at the time of
the application for merits review.[68]
The Explanatory Memorandum states that this interpretation is inconsistent with
the policy intention of paragraph 338(2)(d), as it:
... encourages the sponsor to keep lodging repeat applications
for approval of a nomination, rather than seeking review of a nomination
refusal. It has also resulted in a confusing situation where an applicant has
no entitlement to seek merits review of a decision to review their visa at the
time the visa decision is made, but may subsequently obtain review rights (for
example, because a repeat nomination application is lodged).[69]
Impact and
concerns
The extent to which the changes in proposed paragraph
338(2)(d) depart from the way the existing provision has been applied and
interpreted by the courts is not completely clear. Under the proposed
provision, an applicant will not have the right to seek merits review of a visa
refusal decision (of a prescribed visa) where an application for approval of
the sponsor or nomination has not yet been decided. This appears to address the
issue raised by the Explanatory Memorandum in relation to the Kandel decision.
Other circumstances in which an applicant will not have
the right to review a visa refusal decision include where the prospective
sponsor is refused under section 140E, or the nomination application is refused
under section 140GB, and the sponsor (or prospective sponsor) does not seek
review of the decision. However, this appears in line with judicial
interpretation of existing paragraph 338(2)(d).[70]
Additionally, the right to merits review will be
determined by the circumstances existing at the time the visa refusal decision
is made, rather than at the time an application for merits review is lodged
with the Tribunal.
The Law Council has raised concerns about the amendments,
arguing that proposed paragraph 338(2)(d) ‘has real potential to
unjustly deprive visa applicants from merits review’.[71]
It identifies a number of scenarios in which a visa applicant may be prevented
from seeking merits review, including where the visa refusal decision is slow,
causing an approved nomination to have lapsed in the meantime, or where the
visa application is refused before the nomination and sponsorship applications
have been approved.[72]
More broadly, the Law Council has argued that the
amendment as currently drafted is likely to create confusion for visa
applicants and their sponsors:
The new version of section 338(2)(d) is complicated and
confusing. It has been difficult for the Law Council, including its migration
law experts, to discern what the new provisions mean. Self-represented visa
applicants, their employers, and migration agents who are not lawyers, are
likely to have even more difficulty understanding and applying the proposed
legislation.[73]
In its inquiry report, the Legal and Constitutional
Affairs Committee noted the Law Council’s concerns and concluded that there may
be scope to further consider the drafting of proposed paragraph 338(2)(d)
‘so that it is clear while also meeting its policy intent’.[74]
Part 3—tax
file number data
Part 3 amends three Acts to enable the collection,
recording, use and disclosure of TFN data relating to visa applicants and visa
holders.
Existing
law
The collection, use and disclosure of TFNs is currently
regulated by a combination of taxation laws and the Privacy Act 1988.
The Income Tax
Assessment Act 1936 (ITAA) establishes and regulates the
TFN system, providing for the issuing and quoting of TFNs.[75]
The Taxation
Administration Act 1953 (TAA) creates certain offences in
relation to tax file numbers. Section 8WA provides that a person must not
require or request another person to quote the other person’s TFN. Section 8WB
states that it is an offence to record, use or divulge another person’s TFN.
There are a number of exceptions to both offences, including where the relevant
act is performed pursuant to an obligation imposed by a taxation law or law of
the Commonwealth of a kind referred to under the ITAA.
Additionally, the Privacy (Tax File
Number) Rule 2015 (TFN Rule) is a legally binding instrument made under
section 17 of the Privacy Act. It provides that TFN recipients must only
request, collect, use and disclose TFN information for a purpose authorised by
a taxation law, personal assistance law or superannuation law.[76] It
also states that an individual is not legally obliged to quote their TFN,
though there may be financial consequences for a person who chooses not to do
so.[77] A
breach of the TFN Rule constitutes an interference with privacy under the Privacy
Act.[78]
Although there are currently data-matching arrangements in
place between the Immigration Department and the ATO, the Department does not
currently have the power to collect or use TFN information.[79]
Proposed
amendments
The Bill proposes amendments to the ITAA and TAA
to facilitate the collection, use and disclosure of TFNs under the Migration
Act.
Section 202 of the ITAA sets out the objects of
Part VA of that Act in relation to the establishment of the TFN system. Item
6 inserts proposed paragraph 202(t) which includes the object of
facilitating the administration of the Migration Act.
Item 9 amends the offence provisions under the TAA
to insert references to proposed paragraph 202(t) of the ITAA.
This means that it will not be an offence under the TAA to require or
request, or record, use or divulge another person’s TFN where this is done
pursuant to (or to the extent required or permitted by) requirements of the Migration
Act.
The proposed amendment to the ITAA by item 6 will
ensure that the collection and use of TFN information which has the object of
facilitating the administration of the Migration Act will constitute a
‘purpose authorised by a taxation law’ for the purposes of the TFN Rule.
Migration Act amendments
Item 8 inserts proposed section 506B into the Migration
Act. This provides that the Secretary may request the tax file number (TFN)
of an applicant for, or holder (including a former holder) of a visa of a kind
prescribed by the Regulations, from either:
- the
applicant or visa holder
- the
approved sponsor of the applicant or visa holder
- the
former approved sponsor of the applicant or visa holder
- a
person who has nominated the applicant or visa holder in an approved nomination
(whether or not the nomination has ceased under the Regulations).[80]
Consistent with the TFN Rule, the amendments do not create
an obligation for a person to provide TFN information to the Department.
Proposed subsection 506B(3) provides that a person
to whom the request is made, who is lawfully in possession of the TFN, may
disclose it in accordance with the request. Under proposed subsection
506B(4), the Secretary may provide the TFN to the Commissioner of Taxation
for verification purposes. The Commissioner has the power to give the Secretary
a written notice stating that the TFN is correct, or where satisfied that it is
not correct, providing the correct TFN (if the person possesses one).[81]
The Commissioner also has a broader power to provide a person’s TFN to the
Secretary.[82]
Proposed subsection 506B(7) states that a TFN
provided under this section may be used, recorded or disclosed by an officer
for any purposes prescribed by the Regulations.
Impact and
concerns
The Department has stated that the amendments will enable it
to use TFNs to better identify sponsors who breach their obligations, and visa
holders who do not comply with their visa conditions.[83]
In its submission to the Senate Inquiry it noted:
Data matching using TFNs minimises the risk of misidentifying
a visa holder when investigating a sponsor for compliance with their
obligations. Data obtained from the ATO will assist the Department to
undertake:
- more streamlined, targeted and effective compliance activity to identify
skilled visa sponsors who breach their obligations, including by underpaying
visa holders, and to identify visa holders working for more than one employer
in breach of their visa conditions.
- Research and trend analysis, which will provide an additional evidence
base for the Department in developing skilled visa policy.[84
The Department has stated it will obtain most TFNs directly
from the ATO, and where this is not possible, may request them from an
applicant, visa holder or sponsor.[85]
Concerns have been raised about certain aspects of the
amendments. In relation to proposed subsection 506B(7) of the Migration
Act, the Scrutiny of Bills Committee queried whether it is necessary and
appropriate to leave to delegated legislation the purposes for which TFNs may
be used, recorded or disclosed.[86]
Although the Minister’s response stressed that the Government ‘considers it
appropriate to set out the technical details, regarding the purposes for which
tax file numbers will be used, in the regulations’, the Committee queried
whether the purpose for which a TFN could be used was a ‘technical detail’.[87]
The Parliamentary Joint Committee on Human Rights raised
concerns that the measure may be overly broad with respect to its stated
objectives of ensuring that the Department’s compliance policies are targeted
and effective, and therefore may not be a proportionate limit on the right to
privacy.[88]
For example, it stated that proposed section 506B permits the Secretary
to request the TFN from any class of visa applicant, holder or former visa
holder (if the visa type is prescribed in the Regulations). It also noted that the
Department has not provided information as to how it will make clear to
individuals that there is no legal obligation to quote their TFN, in accordance
with the TFN Rule.[89]
In his response to the Committee, the Minister stated that
it is intended that the regulations will allow TFN sharing in relation to a
narrow list of subclasses, limited to temporary and permanent skilled visas. He
further noted that the implementation of TFN sharing will include a
comprehensive communications package to ensure affected persons are aware of
their rights.[90]
On the basis of this information the Committee concluded that the measure
appeared to be compatible with the right to privacy, noting that if the Bill is
passed, the human rights compatibility of the regulations specifying the
classes of visa holders to be covered by the amendments will be considered once
the regulation is received.[91]
Part
4—references to Regulatory Powers Act
Part 4 makes technical
amendments to section 140K of the Migration Act to fix four incorrect
references to provisions of the Regulatory Powers Act. The corrected
references enable the Minister to accept and enforce undertakings by sponsors.
The Statement of Compatibility states:
Whilst the provisions to enter into an enforceable
undertaking, and to apply for orders where an enforceable undertaking is
breached already exist in the Migration Act, they have not been used as the
references to the Regulatory Powers Act are incorrect. The amendment corrects
these references and gives effect to the original intent of legislation.[92]
Identical amendments are contained in the Family Violence
and Other Measures Bill.[93]
[1]. The
Department of Immigration and Border Protection (DIBP) became a part of the
Department of Home Affairs on 20 December 2017.
[2]. Mr
Hawke is now the Assistant Minister for Home Affairs.
[3]. A
Hawke, ‘Second
reading speech: Migration and Other Legislation Amendment (Enhanced Integrity)
Bill 2017’, House of Representatives, Debates, 16 August 2017, p.
8610.
[4]. For
discussion about some of the key concerns raised with the 457 visa, see: H
Spinks, The
Temporary Work (Skilled) (subclass 457) visa: a quick guide, Research
paper series, 2016–17, Parliamentary Library, Canberra, 26 July 2016, pp. 3–4;
J Howe, ‘The
real issues with the 457 visa aren’t being addressed’, The Conversation,
17 November 2016; Productivity Commission (PC), Migrant
intake into Australia, Inquiry report, 77, PC, Canberra, 13 April 2016,
pp. 390–400; Senate Education and Employment References Committee, A
national disgrace: the exploitation of temporary work visa holders, The
Senate, Canberra, 17 March 2016; A Constantin and C Wright, ‘Evidence
of employers misusing 457 visas shows need for reform’, The Conversation,
8 May 2015; H Sherrell, ‘Temporary
migration: the pressure points’, Inside Story, 9 May 2014.
[5]. M
Cash (Assistant Minister for Immigration and Border Protection), Independent
review of 457 visa programme, media release,
25 February 2014.
[6]. J
Azarias, J Lambert, P McDonald and K Malyon, Robust
new foundations: a streamlined, transparent and responsive system for the 457
programme : an independent review into the integrity in the Subclass 457
programme, report prepared for the Department of Immigration and Border
Protection (DIBP), DIBP, Canberra, September 2014.
[7]. Australian
Government, ‘Government
response to the Independent Review into the integrity of the subclass 457
programme’, Department of Home Affairs website.
[8]. Azarias
et al, Robust
new foundations: a streamlined, transparent and responsive system for the 457
programme, op. cit., pp. 90–1.
[9]. Ibid.,
p. 92.
[10]. Ibid.,
pp. 92–3.
[11]. Ibid.,
pp. 96–8.
[12]. Ibid.,
pp. 98–9.
[13]. Ibid.,
pp. 99–100.
[14]. PC,
Migrant
intake into Australia, op. cit., p. 376.
[15]. Ibid.,
Recommendation 11.3, p. 46.
[16]. DIBP,
Reforms
to Australia’s temporary employer sponsored skilled migration
programme—abolition and replacement of the 457 visa, fact sheet one, 31
May 2017.
[17]. DIBP,
Reforms
to Australia’s permanent skilled migration programme, fact sheet two, 1
July 2017.
[18]. DIBP,
Reforms
to Australia’s temporary employer sponsored skilled migration programme,
fact sheet one, op. cit., p. 2; DIBP, Reforms
to Australia’s permanent skilled migration programme, fact sheet two,
op. cit., p. 2.
[19]. DIBP,
Reforms
to Australia’s temporary employer sponsored skilled migration programme,
fact sheet one, op. cit., p. 2.
[20]. Senate
Standing Committee on Legal and Constitutional Affairs, Migration
and Other Legislation Amendment (Enhanced Integrity) Bill 2017 [Provisions],
The Senate, 17 October 2017, p. 10.
[21]. Ibid.,
p. 11.
[22]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 10, The Senate, 6 September 2017, pp. 20–4.
[23]. Ibid.
[24]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 12, The Senate, 18 October 2017, pp. 121–33.
[25]. Law
Council of Australia, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration and Other Legislation Amendment (Enhanced Integrity) Bill
2017 [Provisions], 20 September 2017, p. 5.
[26]. DIBP,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, Inquiry
into the Migration and Other Legislation Amendment (Enhanced Integrity) Bill
2017 [Provisions], September 2017, p. 4.
[27]. Azarias
et al, Robust
new foundations: a streamlined, transparent and responsive system for the 457
programme, op. cit., p. 98.
[28]. Explanatory
Memorandum, Migration and Other Legislation Amendment (Enhanced Integrity)
Bill 2017, p. 2.
[29]. The
Statement of Compatibility with Human Rights can be found at pages 11–18 of the
Explanatory
Memorandum to the Bill.
[30]. Parliamentary
Joint Committee on Human Rights, Ninth
report of the 45th Parliament, 5 September 2017, pp. 28–33.
[31]. Parliamentary
Joint Committee on Human Rights, Eleventh
report of the 45th Parliament, 17 October 2017, pp. 117–25.
[32]. Migration Regulations
1994, regulation 2.78.
[33]. Ibid.,
regulation 2.79.
[34]. Ibid.,
regulation 2.82.
[35]. Ibid.,
regulations 2.83 and 2.84.
[36]. Ibid.,
regulation 2.85.
[37]. Ibid.,
regulation 2.86.
[38]. Migration
Act, subsection 140K(1).
[39]. Ibid.,
paragraphs 140K(1)(b) and (c).
[40]. Ibid.,
subparagraph 140K(2)(a)(i).
[41]. Proposed
subsection 140K(5). For more information about procedural fairness
obligations, see Australian Law Reform Commission (ALRC), ‘Procedural
fairness: the duty and its content’, in Traditional rights and
freedoms—encroachments by Commonwealth laws, ALRC report 129, chapter 14.
[42]. Proposed
subsection 140K(6).
[43]. Explanatory
Memorandum, Migration and Other Legislation Amendment (Enhanced Integrity)
Bill 2017, op. cit., p. 16.
[44]. Parliamentary
Joint Committee on Human Rights, Eleventh
report of the 45th Parliament, op. cit., p. 121.
[45]. Explanatory
Memorandum, Migration and Other Legislation Amendment (Enhanced Integrity)
Bill 2017, op. cit., p. 5.
[46]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 10, op. cit., p. 21.
[47]. Law
Council of Australia, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 6.
[48]. Ibid.,
pp. 6–7.
[49]. Ibid.,
p. 7.
[50]. That
is, where Regulations made under proposed subsection 140K(7) provide
that the Minister is not required to publish the information.
[51]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 10, op. cit., p. 22.
[52]. Ibid.,
p. 21.
[53]. Ibid.,
pp. 22–3.
[54]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 12, op. cit., pp. 125–6.
[55]. Ibid.
[56]. Ibid.,
p. 127.
[57]. Law
Council of Australia, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 8.
[58]. Parliament
of Australia, ‘Migration
Amendment (Family Violence and Other Measures) Bill 2016 homepage’,
Australian Parliament website; E Karlsen and M Coombs, Migration
Amendment (Family Violence and Other Measures) Bill 2016, Bills digest,
21, 2016–17, Parliamentary Library, Canberra, 2016.
[59]. Migration
Amendment (Family Violence and Other Measures) Bill 2016, items 42, 45, and
49.
[60]. Subsection
4.02(1A) of the Migration Regulations sets out the visas currently prescribed
for the purposes of paragraph 338(2)(d) of the Migration Act. Of these,
only two are currently open to new applications: the Subclass 407 (Training)
visa and the 457 visa.
[61]. Explanatory
Memorandum, Migration and Other Legislation Amendment (Enhanced Integrity)
Bill 2017, op. cit., p. 5.
[62]. Migration
Legislation Amendment (Worker Protection) Act 2008 (Cth).
[63]. Migration
Regulations, Schedule 2, clause 457.223.
[64]. Migration
Regulations, subsection 4.02(1AA); Ahmad v Minister for Immigration and
Border Protection (2015) 237 FCR 365, [2015]
FCAFC 182.
[65]. Ahmad
v Minister for Immigration and Border Protection (2015) 237 FCR 365, [2015]
FCAFC 182.
[66]. Explanatory
Memorandum, Migration and Other Legislation Amendment (Enhanced Integrity)
Bill 2017, op. cit., p. 5.
[67]. Kandel
v Minister for Immigration & Anor [2015]
FCCA 2013.
[68]. Explanatory
Memorandum, Migration and Other Legislation Amendment (Enhanced Integrity)
Bill 2017, op. cit., p. 6.
[69]. Ibid.
[70]. This
scenario was recently considered by the Full Court of the Federal Court of
Australia in Dyankov v Minister for Immigration and Border Protection [2017]
FCAFC 81. The Federal Court decided that the AAT did not have jurisdiction
to review a visa refusal decision where the approved sponsor’s nomination under
section 140GB was rejected and the sponsor did not seek review of the decision.
The Court held that in such circumstances, a visa applicant was not ‘sponsored
by an approved sponsor’ for the purposes of subparagraph 338(2)(d)(i).
[71]. Law
Council of Australia, Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 10.
[72]. Ibid.,
pp. 10–11.
[73]. Ibid.,
p. 10.
[74]. Senate
Standing Committee on Legal and Constitutional Affairs, Migration
and Other Legislation Amendment (Enhanced Integrity) Bill 2017 [Provisions],
op. cit., p. 11.
[75]. Income
Tax Assessment Act 1936 (ITAA), Part VA.
[76]. Privacy (Tax File
Number) Rule 2015, clauses 8, 10.
[77]. Ibid.,
subclause 7(3).
[78]. Privacy Act 1988
(Cth), section 18; Office of the Australian Information Commissioner
(OAIC), ‘Tax
file numbers’, OAIC website.
[79]. ATO,
‘DIBP
visa holders data matching program’, ATO website, last modified 3 August
2015: ‘the DIBP visa holders data matching program has been developed to assist
the ATO to effectively detect, and deal with compliance risks within the visa
holding population. Data from DIBP will be used in ATO risk detection models to
select populations for administrative action relating to tax return integrity,
income tax and goods and services tax non-compliance and fraud.’
[80]. Item
7 inserts a definition of tax file number into subsection
5(1) of the Migration Act which states that it has the meaning given by
subsection 995-1(1) of the Income Tax Assessment Act 1997.
[81]. Proposed
subsection 506B(5).
[82]. Proposed
subsection 506B(6).
[83]. DIBP,
Submission
to the Senate Standing Committee on Legal and Constitutional Affairs, op. cit.,
p. 8.
[84]. Ibid.,
p. 7.
[85]. Ibid.,
pp. 7–8.
[86]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 10, op. cit., p. 24.
[87]. Senate
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 12, op. cit., p. 132.
[88]. Parliamentary
Joint Committee on Human Rights, Ninth
report of the 45th Parliament, op. cit., pp. 31–3.
[89]. Ibid.,
p. 32.
[90]. Parliamentary
Joint Committee on Human Rights, Eleventh
report of the 45th Parliament, op. cit., p. 124.
[91]. Ibid.,
p. 125.
[92]. Explanatory
Memorandum, Migration and Other Legislation Amendment (Enhanced Integrity)
Bill 2017, op. cit., p. 13.
[93]. Migration
Amendment (Family Violence and Other Measures) Bill 2016, items 43, 44, 46
and 47.
For copyright reasons some linked items are only available to members of Parliament.
© Commonwealth of Australia
Creative Commons
With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.
In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.
To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.
Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.
Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.
Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library‘s Central Enquiry Point for referral.