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Wednesday, 19 September 2012
Page: 11175


Mr BOWEN (McMahonMinister for Immigration and Citizenship) (10:11): I move:

That this bill be now read a second time.

The purpose of this bill is to deal with the problem of noncitizens working without permission in Australia, through the creation of effective laws to sanction persons who allow to work, or refer to a third person for work, those unlawful noncitizens and lawful noncitizens who do not have that permission.

This bill implements the key recommendations of the Howells 2010 review of the Migration Amendment (Employer Sanctions) Act 2007.

Sanctions for employers of illegal workers have been mooted since a government-commissioned review of illegal work in Australia drew attention to the problem in 1999.

In 2007, the previous government introduced criminal sanctions to deal with employers and labour suppliers who knowingly or recklessly engage or refer for work unlawful noncitizens and lawful noncitizens who do not have permission to work in Australia. Administrative warning notices and an education campaign were also implemented.

A review of those measures, conducted by barrister Mr Stephen Howells in 2010, found that those criminal sanctions have been wholly ineffective as a deterrent to illegal work hire practices. Those measures have not provided a practical mechanism to instil in businesses the need, motivation and wherewithal to comply.

The Howells review recommended implementation of the scheme, with modification, originally recommended in 1999—that is, graduated tiers of education, warnings, infringement notices, non-fault civil penalties and criminal offences.

The recommended scheme is designed to encourage voluntary compliance by businesses (through education and deterrence) and where this does not occur, provide effective sanctions.

The problem of illegal work remains. Recent estimates put the number of unlawful noncitizens and lawful noncitizens working without permission in Australia at around 100,000 people. This is despite the fact that the Department of Immigration and Citizenship continues to have considerable success in locating illegal workers.

The continuing practice of allowing or referring unlawful noncitizens to work or lawful noncitizens without the required permission to work must be tackled for a number of reasons.

Whilst the number of workers involved may be relatively small compared to the overall Australian labour force, it remains a serious issue as it undermines the integrity of Australia's migration program and has, in the worst instances, resulted in the exploitation of vulnerable people.

It can place Australian businesses engaging non-citizen workers without permission to work at a competitive advantage, thereby penalising those employers who do the right thing.

In a competitive labour market, its effect is to reduce taxation revenue as well as work opportunities for Australians and those noncitizens with permission to work.

There has been extensive stakeholder consultation on this problem, with industry, unions and the community over the course of the past 13 years. More recently, the government has consulted on the recommendations of the Howells review, which informed our decision to implement the Howells recommendations announced in December 2011.

We also consulted on an exposure draft of this bill in August 2012.

There has been a lot of talk on the best way to effectively address the problem of illegal work. This bill deals with the practical actions that are necessary to create real, effective tools to deal with this problem.

This bill fills in the missing pieces in the graduated sanctions recommended by Mr Howells. The bill creates non-fault civil penalty provisions for allowing to work, or referring to a third person for work, unlawful noncitizens and noncitizens who do not have permission to work in Australia. It creates capacity to issue an infringement notice as an alternative to court proceedings under the civil penalty provisions. Note it will not be necessary to prove fault in an application for a civil penalty order.

The measures in this bill supplement a refocused, revamped employer education and awareness strategy; and the existing Illegal Worker Warning Notice scheme currently administered by the department.

Thus a tiered enforcement model is created by first informing and educating businesses on the requirement that only noncitizens with a visa permitting work are entitled to work.

Then, where departmental officers identify a business or employer who is not complying with the legislation, they will usually issue an Illegal Worker Warning Notice.

Subsequently infringement notices may be issued where repeated noncompliance with the legislation is detected.

Finally, proceedings for a civil penalty order or prosecutions for criminal offences may be pursued where persistent noncompliance occurs and/or where serious breaches of the legislation are detected.

Having regard to the concerns of business, Mr Howells recommended creation of statutory defences where a business took reasonable steps at reasonable times to check that a worker or a prospective worker has permission to work. The bill gives effect to this by establishing that a reasonable step can involve checking a computer system, as prescribed by regulations, or other steps such as viewing original documentation which evidences that the noncitizen holds a visa and has permission to work, such as a visa label in the non-citizen's passport.

The government intends to prescribe the Visa Entitlement Verification Online system, known as VEVO, as a computer system in the Migration Regulations for this purpose. VEVO is designed for individuals and business to check whether a noncitizen holds a visa and the conditions (if any) that attach to that visa. VEVO is administered by the Department of Immigration and Citizenship and is available for use online, 24 hours a day, seven days a week.

The bill implements another recommendation of Mr Howells which recognises that an employer or a referrer may not and should not be expected to know whether a noncitizen worker is also working elsewhere. Therefore, the bill restricts potential sanctions to circumstances where a noncitizen is working or is referred for work in breach of a work related visa condition solely because of doing the work for that employer.

The bill also encompasses measures intended to address the myriad non-conventional work arrangements that may exist where unscrupulous businesses seek to avoid their legal obligations. These include sham contracting, informal labour hire and use of illegal workers by various entities within a conglomerate where employers seek to misrepresent employment relationships to avoid paying legal minimum rates of pay, tax and entitlements.

By amending the definition of 'allows to work', the bill addresses those more complex business relationships which disguise illegal work hire practices. The expanded definition of 'allows to work' will broaden those relationships to include a person who participates in any arrangement, or a series of arrangements, for the performance of work by the worker for themselves, or another participant in the arrangement or any such arrangement.

The bill also extends civil and criminal liability for the employer sanctions provisions to a variety of entities such as individuals, bodies corporate (including executive officers in certain circumstances), partners in a partnership and members of an unincorporated association's committee of management. While this affords additional protection to vulnerable workers, it provides the necessary safeguards to ensure that only those involved in a contravention of a work related offence or a work related civil penalty provision will be penalised.

Finally, as Mr Howells recommended, the bill will provide authority for authorised departmental officers to gather evidence of suspected breaches of the employer sanctions provisions. These new investigation powers will allow authorised officers to obtain a search warrant from a magistrate or judge where the magistrate or judge is satisfied that there are reasonable grounds for suspecting that there is, or may be, evidential material on the premises.

The warrant will empower the authorised officer to enter and search premises, ask questions, require the production of documents, and seize material relevant to a work-related offence or the contravention of a work-related provision.

Only persons clearly linked to a suspected breach of the employer sanctions provisions will be directly affected by the exercise of a search warrant.

It is expected that departmental officers would seek to use this power in the more serious cases where it is likely that an application for a civil penalty order would be made or criminal prosecution would be pursued.

In the majority of cases, evidence would be obtained by the less intrusive notice to produce power. This power enables the secretary to require, in writing, that a person give information or produce documents if the secretary has reason to believe that the person has information or a document that is relevant to a possible work-related offence or a possible contravention of a work-related provision.

Essentially, the reforms contained in this bill are critical to establishing an effective regime which will actively discourage illegal work hire practices and effectively sanction employers and labour suppliers that persist in non-compliant behaviour.

This bill gives effect to legislative measures that are only one part of the overall strategy to deal with illegal work. There is, and will continue to be, an information and education campaign to assist businesses to understand how they can comply with their obligations under the legislation. Illegal Worker Warning Notices will continue to be utilised to provide formal warning to businesses before infringement notices are given, applications for civil penalty orders are sought or prosecution proceedings are initiated.

This bill addresses the government's long-held concern about the serious matter of illegal work in Australia and demonstrates this government's determination to tackle the difficult issues associated with this practice.

I commend the bill to the House.

Debate adjourned.