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Tuesday, 24 June 2003
Page: 17338


Ms GILLARD (6:19 PM) —Mr Speaker, I am sure that you will be relieved to hear that not all matters in the migration scheme are the subject of hot dispute. Labor will be supporting the Migration Legislation Amendment (Sponsorship Measures) Bill 2003 in this House. We have signalled to the minister who is here now that we will be supporting the bill in the House of Representatives. When the matter comes before the Senate we will be seeking to have a short inquiry by a Senate legislation committee. As I will outline in my remarks, that is to enable there to be an examination of what is a largely technical change to the way in which the migration scheme works, but a change that we believe is warranted.

I indicate at this stage that at the conclusion of my contribution I will be moving a second reading amendment in the following terms:

“whilst not declining to give the bill a second reading, and while supportive of the specific proposals in this bill, the House notes that, if they are to be successful the Government's inept handling of the migration program, will need to be ended and the whole program administered with greater integrity, transparency and humanity”.

Turning firstly to a description of the details of this bill, this bill deals with the question of sponsorship. Sponsorship is, of course, a feature of a number of different visa classes. Sponsorship ensures that a permanent resident in Australia assumes responsibility for supporting, and ensuring visa compliance by, a person entering Australia. While sponsorship has become an increasingly common feature of the migration system, it has appeared visa class by visa class through regulations.

The bill is designed to establish a legislative framework for a sponsorship regime. The framework established by the bill provides for the following: sponsorship to be a criterion for a valid visa application and for the granting of a visa; a process for the approval of sponsors; undertakings to be made by sponsors; and mechanisms for the barring of sponsors. As the bill provides only a framework, the details of sponsorship requirements will be described in regulations on a visa by visa basis. Clearly, the opposition will be scrutinising these regulations as they are made—and they can be disallowed by the parliament.

The framework contained in the bill provides that the matters dealt with, including prior approval of sponsorship, the enforcement measures and the barring provisions, are reviewable by the Migration Review Tribunal. The framework contained in the bill also provides that the enforcement measures proposed at this stage will only apply to temporary residents in Australia, persons who have come here sponsored by businesses. That is a very important point: people who have had contact with our migration system would, at this stage, be most familiar with the question of sponsorship in the family reunion stream. What is being proposed in this bill is a series of enforcement measures that will be applied to visa classes dealing with temporary residence in Australia. It should be noted that that is not the humanitarian stream or family reunion stream. In the family reunion stream, people are generally seeking permanent residency in Australia for family reunion purposes.

I understand that the government has been motivated to focus on enforcement issues for temporary residents for two reasons: firstly, there has been much expressed concern about visa class 457, which is the business long stay visa. It allows a person to be sponsored into Australia, with some restriction, for the purposes of employment. Labor has been pressing the minister to introduce sanctions against employers who breach their obligations; however, to date this has not happened. The minister has said that he is minded to introduce some type of sanction. However, through the Senate estimates process, Labor has been able to establish that no specific legislation dealing with that point has been drafted. The sponsorship framework in this bill enables some of those enforcement matters to be dealt with in the visa class itself.

I will come back to the question of visa 457 in a moment, but at this point it is convenient to note that the second main purpose for dealing with enforcement questions around temporary residence in Australia has been motivated by the newly heralded visa class dealing with professional development. This was part of the international education package which formed part of the budget related announcements around higher education changes. I think members in this House might be more familiar with other aspects of those proposed changes than the immigration side, but as part of the international education package which was heralded in the budget there is a government commitment to the introduction of a professional development visa. This new visa is designed to enable training providers to deliver tailored academic and practical training for professionals, managers and government officials from overseas. This visa will enable Australian education providers to capture a portion of the growing market for such training, particularly from China in the lead-up to the Beijing Olympics. The application will be a two-step process of sponsorship approval and visa application. Only applicants with a sponsor will be approved. So the framework of this bill, dealing as it does with sponsorship heralding the introduction of enforcement measures around temporary residence, obviously contemplates resolving some of the difficulties that we have had with the 457 business long stay visa and ensuring that we have a robust system to get compliance around the new professional development visa.

When we come to the question of the requirement for enforcement measures around these visas—and in this regard I will be confining my comments to visa 457, the business long stay visa—it is high time that the government acted to deal with the problems that we have faced with exploitation of this visa class. What we know about this visa class is that visa holders are sponsored by employers, the visa allows employers to sponsor an overseas employee if their business will—and this is the compliance issue in the visa—`advance skills through technology or training and the employer agrees to comply with Australian industrial laws'.

While that is the technical requirement of the long stay business subclass 457 visa, the experience in the field is greatly to the contrary. There has been increasing evidence of unscrupulous employers sponsoring temporary workers into Australia on the basis of claiming a skill shortage and then exploiting these foreign workers. My office dealt with one particularly disturbing case during the course of last year. A Serbian master painter and artist—a painter of religious frescoes—was brought to Australia to paint a church. We would happily concede that is a most unusual occupation, to be a fresco painter, and it may be that there is a genuine Australian skill shortage in relation to the painting of religious frescoes; I would not claim to be an expert on the question. Assuming that there is a genuine skill shortage for the painting of religious frescoes, there is not a difficulty with this man being brought to Australia for that purpose. But there is a difficulty with the fact that for four years he was paid less than $200 a week—far less than the amount one would earn to paint a house, let alone paint work of this artistry—and was forced to live on site at the church and pay for his own work materials from his very paltry weekly wage. That was just one example of the sorts of compliance issues we have had with the long stay business subclass 457 visa.

DIMIA evidence to Senate estimates has indicated that employers have breached industrial laws in the way in which many of these workers have been treated. Indeed, it is likely that the detected cases are only the tip of the iceberg, with many of these foreign workers being too scared to report breaches or unaware of their rights under Australian law. It stands to reason that someone brought here who probably does not have a great command of the language, who finds themselves being exploited will not know who to approach to get that resolved, will not necessarily have the language skills to make such an approach, will not have the contacts and is unlikely to understand what rights they have under Australian law.

We do know that, during the nearly two years between July 2000 and May 2002, DIMIA recorded serious breaches by 24 sponsoring employers, involving 63 subclass 457 visa holders. These breaches included underpayment, either below the award or below agreed amounts; taxation offences; excessive working hours; failure to provide superannuation; nonpayment of overtime, penalties or other agreed payments; provision of substandard accommodation; demands for excessive payments or bonds in regard to accommodation; breaches of occupational health and safety standards; unfair dismissal and intimidation. It is a pretty sorry picture when we look at what has been happening to these foreign workers in Australia. We will be calling on the government to resolve that very sorry picture, and I will be indicating what we believe could be done in that regard.

The visa 457 is not the only temporary entry visa with which there has been a problem of exploitation of foreign labour. It is also clear that the temporary short stay business visa, subclass 456, is being exploited. There was evidence not all that long ago of South African slave rings being built up and involved with this visa class. Subclass 456 was created in 1995 and is issued on the basis that the activities that the holder is or will be engaged in cannot be done by an Australian permanent resident or citizen. That means that clearly Australia would have to be in a circumstance of critical skills shortage in the relevant area and someone is brought in with the relevant skills to plug that skill shortage. But we find that is not what is happening with this visa.

In November 1997, in response to evidence that some visa subclass 456 holders were working for extended periods in Australia in relatively unskilled professions, Minister Ruddock changed the scheme so that applications would only be accepted from outside Australia. Whilst that was a well-motivated change, it has not fixed the problem. Applications for subclass 456 are accepted at most Australian overseas posts, and it is not necessary to conduct a face-to-face interview before the visa is awarded. Electronic applications are invited and may be lodged by someone other than the applicant, such as an agent. It is possible that, if anything on the application were considered suspicious or raised questions, the applicant would be interviewed by DIMIA representatives at the mission where it was lodged—although interviews do not occur as a matter of course. It is obviously very easy for the applicant or the agent to simply lie when completing the form and, given there is no way for DIMIA to check the validity of signatures on the form, forging signatures is easy.

The way in which these visas are misused was exposed by what became the notorious case of a South African man who was seriously injured in New South Wales in October 2002. He arrived in Australia in August 2002 on a 456 visa but was not a person with unique skills. He worked as a labourer in the construction industry, 14-hour days, seven days a week, and was promised full remuneration for his labour upon his return to South Africa. His wife in South Africa is understood to have received a weekly stipend of $100. There were two deaths at the site, including the employer of the man—also a South African national—and the man about whom I speak, who had the 456 visa, was seriously injured. He was discharged against doctor's orders from hospital, despite his very serious injuries, in less than a week and placed on an Australia-Johannesburg flight, paid for by his employer's widow.

Investigations revealed his visa was obtained by having an Australian company send a request on letterhead for a suitably qualified business person to travel to Australia to undertake commercial research. On the strength of the letter, the visa was granted and the man did not have to apply in person. DIMIA has confirmed such business visas are commonplace. This is a very clear and graphic example of misuse of this visa—this man had no unique skills, he was not being employed in the occupation which was disclosed on the visa application, and he was seriously injured in an incident where all known health and safety standards were thrown out the window—indeed, an incident so serious that two other people were killed.

The minister has angrily dismissed serious allegations raised by the South African government regarding the existence of similar schemes where black labour is exploited. However, evidence of abuse of business visas continues to grow. There are lawyers who have claimed that three black South African chefs have been underpaid more than $300,000 by a Sydney restaurant operated by a white South African migrant. All three were brought to Australia on 456 visas and transferred after three months to 457 visas. None would have been entitled to either visa subclass on any genuine application of the law and regulations. Most of their earnings were repatriated to South Africa in rand.

That clearly shows that there is a major problem with these visas in terms of compliance, and they are not insignificant in number when you add them up across the globe. We say that is evidence that this government has refused to address the problem of illegal foreign workers. I mean by that people who either are working here without any appropriate visa—that is, they have come in as a tourist or under some other visa class and commenced to work in breach of those visa conditions—or have received a 456 or 457 visa, even though on any proper application of the law in relation to those visas they ought not to have had them.

Why is it that the Howard government has failed to act? We would say for two main reasons: first, the Howard government has found it politically expedient to target boat people rather than protect Australia from the real immigration challenge it faces—which is this kind of misuse of the immigration system; and, second, the Howard government has been too frightened to stand up to employers. The Howard government did nothing in this area until 1999 when DIMIA conducted the review of illegal workers in Australia. Following this review, the government launched initiatives in November 2002 to help employers to check work rights of prospective employees. This included a pilot work rights information line and a free-call centralised work rights fax-back facility.

The government canvassed the possibility of a new legislative sanctions regime but received a very negative reaction, particularly by employers and most spectacularly by the National Farmers Federation. As I am sure members in this House would be aware, the National Farmers Federation have the capability to feed their views into the National Party, the coalition partner of the Liberal Party. As a result of that kind of reaction the government backed down. Consequently, the only thing that happens to employers who employ illegal labour is that warning notices are issued.

This legislation heralds the prospect that the government might do some things to finally address this area. As I indicated at the commencement of this contribution, the details of the things that the government is prepared to do will actually be contained in the regulations relating to individual visa classes. I put the government on notice that we will be scrutinising them very carefully to see whether or not they are adequate to meet the challenge, or whether or not they have been moulded with one eye firmly on the reaction of employers and, particularly, the National Farmers Federation. We will be seeking to ensure that the regulations for those visas do address matters like award wages and conditions and the meeting of occupational health and safety standards.

We will also continue to press the government to adopt Labor's green card, which we believe is the key to making sure that we can crack down on illegal workers in this country. The green card was launched as Labor's policy at the end of last year. We believe it is a sensible measure to ensure compliance and to identify foreigners with work rights, which of course would mean it would be easier to identify foreigners without work rights. It is a comprehensive measure which includes changes to the tax file number system. Apart from loss of face, we see no reason why the Howard government could not seriously look at that policy and pick it up. We will be continuing to press the government to do that.

Can I say—and this goes to the matters raised in the second reading amendment that I will move at the conclusion of this contribution—that the challenge of illegal working is not the only challenge facing our immigration system. A very significant challenge facing our immigration system, and one which was dealt with in this parliament earlier today, is of course the ongoing scandal about the number of children in detention. As of 16 May—there may have been some small change in these figures but I would not anticipate a great change—there were 110 minors in detention on mainland Australia and there were 112 minors in detention on Nauru and Manus. Despite much talk on the other side and despite a ministerial statement that Mr Ruddock was forced into at the end of last year under pressure from Labor—and, I will acknowledge, also under pressure from his own back bench, or the remaining moderates on it—nothing substantial has changed.


Mr Kelvin Thomson —There are a few.


Ms GILLARD —They are nearly an extinct species but, as my colleague points out, there are a few. Despite that ministerial statement, nothing substantial has changed.

It seems to me particularly important to raise this matter tonight for two reasons. First is the government's determination to appeal the Family Court ruling which gives them some jurisdiction over the question of children in detention. Labor are opposed to the government taking that appeal. Labor do not believe the issues for children in detention should be resolved case by case, lawyer by lawyer, over many years. We believe that the government should act now. We believe that the government should at least—and this is a minimalist position—be prepared to implement what Labor proposed in our amendment to the migration (No. 1) bill. Since we moved that amendment and dealt with it in this House, the government have been too scared to bring it on for debate in the Senate. I think they are too scared because they are not sure they can hold their own people in the Senate in terms of the vote on it.

Why is that important? It is important because it could mean a change for children in detention tomorrow. What the minister says about children in detention is, `There's no need to worry. We've got an undersubscribed alternative detention project at Woomera. They are secured ordinary style houses and family groups could go in there.' What he does not tell you—and this disingenuousness was on display again today in the House—is that that trial is limited to women and children. That is, women cannot be accompanied by their husbands and they cannot even be accompanied by their boys if they are 14 years and older. So if they have a 15- or 16-year-old son, they need to leave him behind in high-security detention if they want to take the rest of their children into the alternative Woomera detention trial.

Ironically, the closure of Woomera has meant that these separation issues are even more acute. The minister says, `Children currently in Baxter or currently in Port Hedland could go with their mothers into the alternative Woomera detention trial.' But he does not tell you how they get to see their fathers. Last time I looked at a map, Madam Deputy Speaker—and you might be better at geography than I am—Baxter, which is outside Port Augusta, was a very long way from Woomera.


Mr Kelvin Thomson —That was not his message in question time today.


Ms GILLARD —No, that is right. But that distance pales into insignificance when compared with the distance between Woomera and Port Hedland. What would one need to do? One would need to drive a couple of days, presumably—I would not want to try it. I am not sure that there would be a direct road; I do not even know how you would achieve that on our road system. Or I suppose you could get a flight to Adelaide, then fly from Adelaide to Perth, and then fly from Perth to Port Hedland. I have not added up the air transit time in that move, but if it is not six hours in the air I would be very surprised. In making all that happen, how does that work? Of course the trial is undersubscribed, when they are the circumstances with which women and their children are confronted if they want to go into it.

The other thing that has made this very acute for public debate this week, apart from the Family Court matter, is that the Prime Minister has been out there, with the thought bubble, dreaming up a scheme. Periodically the Prime Minister dreams up a scheme, which he never implements but which will get him a headline for a day or two. The most recent scheme he has dreamt up, which we know will probably never be enacted—like paid maternity leave has never been enacted, and all the rest—is the idea that for Australian citizens and permanent residents the Family Law Act needs to be changed to have a presumption about shared parenting if a family divides in divorce circumstances. The Prime Minister says that he supports that because he thinks it is so important for men to have continuing relations with their children. He was even waxing lyrical in question time today about how important it is for fathers to be in contact with their children and how particularly important it is for fathers to be parenting boys. I agree with the Prime Minister about all of that. He has got that 100 per cent right. It is important for fathers to be in contact with their children, and it is important for boys to have a parenting relationship with an adult male.

I have to say to the Prime Minister and Minister Ruddock that children in detention are children too. They have got dads as well. It has got to be as important for them to have access to their fathers as it is for the child of any person in this place or any other person in Australia. It has got to be as important to the parenting of those boys that they are in regular contact with their father—indeed, that they are co-resident with their father. Why doesn't all of the rhetoric about families, about boys, about fathers apply to children in detention in the same way the Prime Minister is seeking to have it apply to every other family in Australia?

This matter is comprehended by the second reading amendment. I am advised that there is one government member speaking on this bill tonight, apart from the minister, who has already spoken. I assumed that migration was a matter of importance to the government. I have obviously got that wrong. Perhaps the one government speaker on this bill might direct their attention to the second reading amendment and explain to all of us why it is that the rules that the Prime Minister is setting down about the care of children, about fathers' access to children and about the need for fathers to parent boys do not apply to children and their families in detention.

Returning to the substance of this bill, as I indicated at the outset, Labor is supporting this bill, but we will be seeking to have its terms subject to a legislation committee in the Senate. We believe that a change like this would benefit from that examination, but we believe that having a framework for sponsorship measures in the migration legislation is a worthwhile step. Clearly, the devil is in the visa regulation detail, and we will be scrutinising those details as they come through and we will be dealing with the bill in a comprehensive way through a legislation committee in the Senate. I conclude by moving the second reading amendment that stands in my name. I move:

That all words after “That” be omitted with a view to substituting the following words:

“whilst not declining to give the bill a second reading, and while supportive of the specific proposals in this bill, the House notes that, if they are to be successful, the Government's inept handling of the migration program will need to be ended and the whole program administered with greater integrity, transparency and humanity”.


The DEPUTY SPEAKER (Ms Corcoran)—Is the amendment seconded?


Mr Kelvin Thomson —I second the amendment and reserve my right to speak.