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Migration Amendment (Reform of Employer Sanctions) Bill 2012
Introduced into the House of
Representatives on 19 September 2012
Portfolio: Immigration and Citizenship
Committee view
1.2
The committee seeks further information from the Minister for
Immigration and Citizenship before forming a view on the compatibility of these
provisions with article 14(3)(g) of the International Covenant on Civil and
Political Rights (ICCPR).
1.3
The committee also draws the Minister's attention to the committee's
expectation that statements should read as 'stand-alone' documents.
Purpose of the bill
1.4
This bill amends the Migration Act 1958 to:
- amend the criminal offences and create a new non-fault civil
penalty regime for persons who allow an unlawful non-citizen to work, refer an
unlawful person to a third person for work, allow a lawful non-citizen to work
in breach of a work-related visa condition or refer a lawful non-citizen to a
third person for work in breach of a work-related visa condition;
- allow for the issue of infringement notices in relation to
alleged breaches of civil penalty provisions;
- capture a wider variety of work relationships within the
definition of ‘allow to work’;
- extend liability for contraventions to a wider range of persons
and entities; and
-
introduce investigative powers in relation to work-related
offences, including search and seizure powers.
1.5
The statement of compatibility identifies that the bill engages several
human rights, including the right to privacy in article 17 of ICCPR, the right
against self-incrimination in article 14(3)(g) of ICCPR, and the right to be
free from slavery and forced labour in article 8 of ICCPR (in the sense that
the amendments seek to act as a disincentive to employers exploiting
individuals without permission to work in Australia).
Compatibility with human rights
Right against self-incrimination
1.6
New subsection 487C(1) abrogates the right against self-incrimination as
it provides that a person is not excused from giving information under new
section 487B by reason that compliance would be incriminating. However,
provision is made for use and derivate use immunities that restrict any direct
or indirect use of that information in any subsequent criminal or civil
proceedings, except where the proceedings relate to a civil penalty order for a
contravention of a work-related provision (subsection 487C(2)).
1.7
Article 14(3)(g) of the ICCPR protects the right to be free from
self-incrimination by providing that a person may not be compelled to testify
against him or herself or to confess guilt. The right to be free from
self‐incrimination may be subject to permissible limitations, provided
that the limitations are for a legitimate objective, and are reasonable,
necessary and proportionate to that objective. Abrogation of the privilege
against self‐incrimination is more likely to be permissible where
protections relating to the use of the information are included, such as a ‘use
immunity’, which prohibits use of the information against the person in
subsequent criminal proceedings; or a ‘derivative use immunity’, which
additionally prevents the information being used to gather other evidence
against the person.
1.8
The right against self-incrimination in article 14(3)(g) applies to
individuals who are charged with a criminal offence. However, the approach
under international and comparative human rights law is to look at the
substance and the effect of the proceedings, rather than their label.
Therefore, it is possible for a civil regime which subjects a person to a high
penalty and is intended to be punitive or deterrent in nature to constitute a
‘criminal charge’ for the purposes of this right.
1.9
The statement of compatibility acknowledges that subsection 487C(2) is a
‘departure from standard practice’ but argues that abrogating the privilege for
work-related civil penalty proceedings is necessary for the effective
enforcement of the employer sanctions civil penalty provisions. The statement
also indicates that the limitation on the right to be free from
self-incrimination is proportionate as it is only relates to work-related civil
penalty proceedings, and use and derivate use immunities will be available in
relation to all other civil penalty proceedings.
1.10
The committee proposes to seek further information from the Minister
for Immigration and Citizenship with regard to the types of situations
contemplated where the objective of the scheme would be frustrated by the
inclusion of use and derivative use immunities, before forming a view on the
compatibility of these provisions with article 14(3)(g) of ICCPRR.
Presumption of innocence
1.11
The bill contains several strict liability and reverse burden offences
which engage the presumption of innocence in article 14(2) of ICCPR. These
offences are not addressed in the statement of compatibility. Detailed
justification for these offences is however provided in the explanatory
memorandum to the bill.
1.12
The committee considers that these offences are unlikely to raise any
issues of incompatibility with article 14(2) of ICCPR as they involve low
penalties and would appear to relate to matters that are readily accessible and
within the defendant’s knowledge.
1.13
However, the committee proposes to write to the Minister for
Immigration and Citizenship in an advisory capacity to indicate the committee’s
expectation for statements to read as stand-alone documents. Offences of this
nature should therefore be appropriately addressed and justified in the
statement. At the very least, the statement should refer to the relevant
discussion in the explanatory memorandum.
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