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Thursday, 1 November 2012
Page: 12979


Mr STEPHEN JONES (Throsby) (13:36): We need to act on this issue. Recent estimates put the number of unlawful noncitizens and lawful noncitizens working without permission in Australia at around 100,000. This is despite the fact that the Department of Immigration and Citizenship continues to have considerable success in locating illegal workers.

We have to tackle the continuing practice of allowing or referring unlawful noncitizens or lawful noncitizens without the required permission to work. It remains a serious issue for business because it provides those who are breaking the law with an unfair competitive advantage over those who obey the law.

If the opposition spokesperson is so concerned about the interests of businesses large and small, he might in his 25-minute tirade about everything except the provisions in the bill have had something to say about those businesses that are doing the right thing and are forced to compete on an unlevel playing field against those businesses that are not doing the right thing. So it is not only in the interests of businesses; it is also in the interests of employers.

What Mr Howells' investigation into these provisions found was that there is a high correlation between the use and abuse of illegal workers and organised crime—not only the crime of wilfully and knowingly hiring illegal workers but also other criminal activities in the businesses where that occurs. So multiple levels of exploitation occur and that is why a review was conducted and this legislation was brought before the House.

If those opposite, including the opposition spokesperson, are as concerned as they say they are for the fair operations of business, they might have mentioned those issues in their 25-minute diatribe about everything except the provisions that are contained within this bill, the Migration Amendment (Reform of Employer Sanctions) Bill 2012. As I said earlier during my point of order, it had more resonance with a job application for another job for the opposition spokesman than it did with the provisions contained within the bill before the House this afternoon.

The purpose of the 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, who do not have that permission. In particular, the bill amends the Migration Act to implement the government's response to the aforementioned independent report by the legal expert Mr Stephen Howells entitled 'Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007'. These provisions have some background. In 1999 the former government commissioned a review that drew attention to the problems and recommended a tiered sanctions regime. Some eight years later, in 2007, the Howard government introduced only part of the recommended regime—criminal sanctions.

Wind the clock forward to 2010, and we conducted a review of those provisions. That review, conducted by the eminent barrister Mr Stephen Howells, found that those criminal sanctions had been wholly ineffective as a deterrent to illegal work hire practices and that those measures had not provided a practical mechanism to instil in business an awareness of the need to comply. The Howells review recommended the implementation of a scheme with modifications originally recommended in 1999. So what we are bringing before this House are recommendations that were provided to the former government in 1999 and not acted upon. Perhaps if they had been acted upon, there might have been a more sufficient and effective deterrent regime which would not have led to the situation where we see in excess of 100,000 illegal workers in this country at any one point in time. The recommendations are that there be graduated tiers of education, warnings, infringement notices, non-fault civil penalties and criminal offences.

It is important to point out that, in complete contrast to the diatribe that we witnessed from the opposition spokesperson, the legislation does not create additional offences and an additional regulatory burden. What it does is ensure that businesses have all the information and education available to them so that they are fully informed of their rights and obligations. If they are found to be in breach of those obligations, they are then provided with warnings, infringement notices and non-fault civil penalties, and ultimately criminal penalties are available.

It is not unusual in the laws which regulate businesses and other organisations within this country that there are parallel civil penalties alongside criminal offences. For all sorts of reasons, parliaments and governments of all persuasions have seen the benefit and wisdom of creating parallel civil penalties for criminal offences. So the amendments in the bill will amend the criminal offences and create new non-fault civil penalty provisions for persons who either allow an unlawful noncitizen to work, refer an unlawful noncitizen to a third person for work—perhaps through a labour hire or other arrangement—allow an unlawful noncitizen to work in breach of a work related visa condition or refer an unlawful noncitizen to a third person in breach of a work related visa condition.

In order to address the illegal practices of sham contracting, informal labour hire and use of illegal workers by various entities within a conglomerate, the application of the criminal offences and civil penalty provisions will be broadened so that a person who participates in the chain of events that result in a noncitizen being allowed to work or being referred to work without the required permission can be held liable for contravening the work related offences and work related provisions. In addition, the bill will extend both criminal and civil liability in certain circumstances to effective officers of bodies corporate partners in a partnership and members of an unincorporated association's management committee. The bill will also introduce new investigation powers to allow authorised officers to gather evidence of suspected breaches of the work related offences and work related provisions.

The Department of Immigration and Citizenship will also put into place a revamped enforcement strategy to promote voluntary compliance. In particular, the department will use education and targeted awareness campaigns to instruct on the correct processes to ensure a worker has a legal entitlement to work.

They will have the capacity to issue administrative warning notices to employers and labour suppliers in the first instance. So we are moving from the heavy-handed civil or criminal action to facilitate voluntary compliance by issuing administrative warnings and avoid legal sanctions where possible. Finally, to facilitate—

The DEPUTY SPEAKER ( Mr S Georganas ): Order! The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour. The member will have leave to continue speaking when the debate is resumed.