On 25 November 2021, the Senate referred the provisions of the Migration Amendment (Protecting Migrant Workers) Bill 2021 to the Legal and Constitutional Affairs Committee (the committee) for inquiry and report by 15 February 2022. The reporting date was later extended to 11 March 2022.
The referral followed a recommendation of the Senate Standing Committee for the Selection of Bills. Appendix 1 to that report provided the following reasons for referral:
Significant changes to migrant worker protections under the Migration Act, including strong concerns from a wide range of stakeholders…
To ensure the bill is consistent with recommendations of the Migrant Workers’ Taskforce, which reported to the Minister for Small and Family Business, the Workplace, and Deregulation in 2019.
Conduct of inquiry
The committee advertised the inquiry on its website and wrote directly to a number of organisations inviting submissions by 28 January 2022. The committee received 22 submissions, which are listed at Appendix 1. The committee held a public hearing in Canberra on 23 February 2022. A list of witnesses is provided at Appendix 2.
Answers to questions on notice and other material received by the committee are listed at Appendix 1. Submissions and the Hansard transcript of evidence may be accessed through the committee’s website.
The committee thanks the organisations and individuals who made written submissions and who gave evidence at the public hearing.
Structure of the report
The report comprises two chapters as follows:
Chapter 1 outlines the administrative details of the inquiry, background to the inquiry and the key provisions of the bill.
Chapter 2 explores the key issues raised in evidence and provides the committee’s view.
Background to the bill
Working conditions of migrant workers in Australia
The vulnerability of migrant workers to exploitation in Australia is a pervasive issue, and evidence regarding the extent of the issue has been considered by a number of other Senate committees, such as the Senate Select Committees on Temporary Migration and Job Security.
Migrant Workers’ Taskforce Report and government response
The explanatory memorandum to the bill notes that it is delivering on the recommendations of the Report of the Migrant Workers’ Taskforce (the taskforce) released in March 2019, particularly recommendations 19 and 20:
Recommendation 19: it is recommended that the Government consider developing legislation so that a person who knowingly unduly influences, pressures or coerces a temporary migrant worker to breach a condition of their visa is guilty of an offence.
Recommendation 20: it is recommended that the Government explore mechanisms to exclude employers who have been convicted by a court of underpaying temporary migrant workers from employing new temporary visa holders for a specific period.
The taskforce was established in 2016 to meet the government’s election commitment to protect vulnerable workers, which was made in response to the revelation of significant wage underpayments in certain industry sectors.
The taskforce’s report highlighted the extent of exploitation of migrant workers in this country. The taskforce commented:
The underpayment and exploitation of a substantial number of temporary migrant workers in Australian workplaces is an unacceptable practice. It has been a feature of the Australian labour market for too long…
The underpayment of temporary migrant workers has become more visible in recent years as the number of temporary visa holders in Australia has grown substantially over time. As at 30 June 2018, there were over 878,912 people in Australia on a temporary visa with a work right (excluding New Zealand citizens), an increase of over 300,000 people since 2008…
Effectively addressing migrant exploitation is important to the integrity of the labour market, the migration and visa system and our international reputation as a good place to visit, study and work. Addressing exploitation requires a whole of government effort, with the support of industry leaders, employers, migrant workers, and the broader community.
The taskforce made a total of 22 recommendations. The government provided its response to the taskforce’s report in March 2019, in which it accepted in‑principle all of the taskforce’s recommendations.
When asked about implementation of the remainder of the taskforce’s recommendations, the Attorney-General’s Department commented:
There’s been a range of progress on implementing the 22 recommendations from the report since all those recommendations were accepted in principle by the government. On the status of those 22, 12 of them are now completely implemented or complete and ten are ongoing.
The first recommendation…is that we have an interagency working group that meets regularly to assist in the implementation of the recommendations. That has met eight times since it was first established, most recently yesterday.
We've also implemented a range of other measures to support those other 11 recommendations of the 12 that are now complete, including enhancing the education materials that are in the domain through the Fair Work Ombudsman with particular respect to the migrant worker cohorts we're talking about here and also international students. There have been educational materials with the Study Australia website as well. We've got $180 million since 2016 that the government has provided to the Fair Work Ombudsman in addition to assist it as the workplace regulator as well. And there's been work undertaken at all levels of government with respect to mapping accommodation exploitation, and that's been provided to ministers as well.
A number of submitters also drew attention to migrant worker exploitation in Australia. The Migrant Workers’ Centre commented:
Regrettably, most migrant workers work under extreme stress and exploitative conditions in Australia. We recently investigated on migrant workers’ visas and job market experiences through a survey and in-depth interviews. Two thirds (65 per cent) of the survey respondents have been underpaid while working in Australia. The research also showed that an absolute majority (79 per cent) felt unable to speak up when they were mistreated at work. They are forced to work extreme overtime, on public holidays and even when sick. Meal breaks, bathroom breaks, and annual leave are too often denied.
Insecure migration status, lack of support services/networks, and limited understanding of workplace rights are found to be contributing to keeping migrant workers silent and helpless against labour exploitation.
A number of submitters drew attention to the particular impact of COVID-19 on the pressures on working conditions experienced by migrant workers. The Electrical Trades Union (ETU), for example, commented:
Pre-COVID, Australia’s Temporary Work Visa System was at crisis point and needed urgent reform. The pandemic has heightened these deficiencies with many migrant workers left destitute when lockdowns and restrictions came into effect in Australia.
Purpose of the bill
The bill was introduced into the House of Representatives on 24 November 2021 by the Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs, the Honourable Alex Hawke MP. In his second reading speech, the minister stated that:
The bill implements key recommendations made by the Migrant Workers’ Taskforce. It amends the Migration Act to strengthen protections for migrant workers in Australia, while also helping to ensure that law-abiding employers, our economy and our international reputation as a preferred migration destination.
The minister also highlighted the importance of the bill in introducing protections for migrant workers to support Australia’s economic recovery post COVID-19:
As we progressively open the nation’s borders, and seek to rebuild the economy, businesses will again look to temporary migrant workers to support our economic recovery. And, as we open up and our universities, tourism and hospitality sectors seek to recover, we will find ourselves competing with other developed nations for temporary migrants who have long contributed so much to Australia.
This bill will support our prosperity and protect migrant workers.
In its submission to the inquiry, the Department of Home Affairs (the department) noted that the bill would:
Strengthen and build on existing compliance mechanisms and sanctions against unscrupulous employers, labour hire intermediaries and others who misuse Australia’s visa programs and immigration status to exploit migrant workers in the workplace.
Consultation on the bill
In its submission, the department highlighted that the government released an exposure draft of the bill on 26 July 2021, and received 32 submissions in the course of this process, which are available on the department’s website. The department commented that ‘feedback on the exposure draft has enabled Government to refine components of the Bill including clarifying certain measures and addressing particular issues of concern’.
The department further stated:
Public submissions reflected a diverse range of views from peak bodies, industry and civil society. Many stakeholders articulated their support for the reforms, acknowledging that the Bill addresses recommendations 19 and 20 of the Taskforce Report and contributes to whole-of-government initiatives to combat migrant worker exploitation. Some stakeholders expressed frustration about the limited scope of the Bill (with the primary focus being implementation of the Taskforce Report recommendations 19 and 20). Some dissenters contested the recommendations from the Taskforce Report and articulated views about alternative reforms.
Many submitters commented on their involvement with the exposure draft process, and reflected positively that a number of changes had been made to the bill prior to its introduction in response to their concerns.
Key provisions of the bill
The bill proposes to make the following key amendments to the Migration Act 1958 (the Migration Act):
Introduce two new work-related offences, both relating to conduct by a person where that person coerces or exerts undue influence or undue pressure on a non-citizen to accept or agree to an arrangement in relation to work, in circumstances where that work is carried out, or is to be carried out, by the non-citizen in Australia, whether for that person or for someone else:
The first offence (section 245AAA) arises where, as a result of the work arrangement, the non-citizen breaches a work-related condition of their visa, or, there are reasonable grounds to believe that, if the non-citizen were to agree to the arrangement, they would breach a work-related condition.
The second offence (section 245AAB) arises where the non-citizen believes, or there are reasonable grounds to believe that they must accept or agree to the arrangement, either to satisfy a work-related visa requirement, or to avoid an adverse effect on the non-citizen’s immigration status.
Introduce a power for the minister to declare a person to be a prohibited employer if they are subject to a specified migrant worker sanction and to prevent that prohibited employer from allowing additional non-citizens to begin working that employer for a specified period. There are four circumstances in which a person may be subject to a migrant worker sanction:
If the person is an approved work sponsor who is subject to a bar imposed under current paragraph 140M(1)(c) or (d) of the Migration Act;
If the person is convicted of a work-related offence;
If the person is the subject of a civil penalty order in relation to the contravention of a work-related provision;
If the person is the subject of an order made under the Fair Work Act 2009 for contravention of a civil remedy provision (within the meaning of that Act) covered by section 245AYE; and the contravention is in relation to an employee who is a non-citizen.
Introduce positive obligations for employers and other parties in the employment chain to use the Visa Entitlement Verification Online (VEVO) system to verify prospective non-citizen workers’ immigration status and work-related visa conditions, prior to employing or referring non-citizens for work.
Align and increase penalties for work-related offences and contraventions of work-related civil penalty provisions under the Migration Act, to act as effective deterrent against unscrupulous employers who exploit vulnerable migrant workers because the costs associated with being caught may be viewed as an acceptable cost of doing business.
Introduce new regulatory powers for the Australian Border Force (ABF) to enhance compliance and enforcement efforts in relation to the work-related offences and civil penalty provisions under the Migration Act; by way of the ability to issue compliance notices and enforceable undertakings.
Consideration by other parliamentary committees
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills (the scrutiny committee) considered the bill in its Scrutiny Digest 18 of 2021, published on 1 December 2021.
The Scrutiny Committee expressed concern regarding proposed new section 245AYK, which would provide that proposed Subdivision E and sections 494A and 494D are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. The scrutiny committee expressed concern that:
Proposed Subdivision E could operate to exclude aspects of the natural justice hearing rule, such as the requirement to disclose adverse information which is not part of the proposed reasons for a decision, in circumstances where compliance with the rule is necessary to assure fairness to affected persons.
The minister provided his response on 14 December 2021, which was published in Scrutiny Digest 1 of 2022. The scrutiny committee did not consider that this response adequately addressed its concerns, stating:
The committee...notes that the minister’s response does not comprehensively address why it is necessary to exclude certain aspects of the natural justice hearing rule beyond stating a general desire for prompt decision-making and administrative certainty.
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights considered the bill and in its report of 8 December 2021 and stated that it had no comment.