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Monday, 26 November 2012
Page: 13316


Mr NEUMANN (Blair) (16:14): I speak in support of the Migration Amendment (Reform of Employer Sanctions) Bill 2012, and I will actually deal with the bill. I support this particular legislation; it has long history. Back in 1999 the former Howard government commissioned a review of illegal workers but sat on that review year after year. In fact, former Liberal minister Philip Ruddock introduced the Migration Amendment (Employer Sanctions) Act 2007, which came to affect on the eve of the federal election period on 19 August 2007—the federal election was in November 2007.

Having had a government review into illegal workers, they did nothing—year after year. At the time of its introduction, a review after two years of operation was planned. When the Liberals lost office and, fortunately, the Australian people entrusted a Labor government to serve in the Treasury benches, we said we would announce a review of the effectiveness of a particular legislation. We did that on 21 May 2010, and we appointed a very senior commercial barrister, Stephen Howells, to undertake the review.

The prevalence of illegal workers affects employers and employees. The major concerns with illegal work practices are that it means that people who are employed illegally are more susceptible to exploitation by venal employers. It means that concerns for workplace health and safety are less likely to be complied with. Employing those workers illegally has the effect of driving down wages and conditions, lowering safety standards and taking away the opportunities for Australian workers to get jobs. At its most egregious we have seen labour trafficking, forced labour and, effectively, economic slavery. This is a serious problem.

The former legislation put in place an alleged deterrent: companies could be exposed to fines of up to $66,000 per illegal worker. But, having investigated about 100 allegations against employers, it was found that only four were referred by DIAC to the Commonwealth Department of Public Prosecutions. There were significant difficulties in developing prima facie cases against employers, and the only conviction we saw was in December 2010. This was a case where an employer was convicted and sentenced after a plea of guilty acknowledging a previous criminal record—a pretty straightforward case. A deterrent it was not.

The principal reason given in relation to this was the trouble gathering evidence. The best person to get the evidence is the employee who was working illegally, who may also find themselves in a position of legal sanction. It is possible that that illegal worker could find themselves in a detention facility awaiting trial, and the whole thing is extraordinarily expensive. So it is the case that employers with the worst motives could employ workers illegally, sourcing cheap labour, driving down wages and conditions, denying Australians the opportunities for those jobs and making sure that safety is not a high priority in the workplace. We do know that the vast majority of people who come to this country illegally, if I can put it like that, are people who arrive in Australia by aeroplane on valid visas and who stay here after the visa has expired. We see that quite regularly after major events are held in this country. They are not people who are the victims of effectively criminal cartels or people smugglers and who come to this country by boat and claim asylum.

The reality is that we could either resource DIAC even more and continue the current arrangements, which are not working and which the Howells review showed are not working—the evidence was clearly that they were not working—or we could take up the recommendations that were made by Stephen Howells. On 21 July 2011, the Minister of Immigration and Citizenship, Mr Bowen, announced that we would overhaul the penalties, make substantial changes in this area and make sure that those employers employing employees without the appropriate visa and appropriate rights to work could be sanctioned to a tiered system and were subject and liable to that. We have engaged extensively in relation to this. In fact, stakeholders have had about 13 years, in effect, of opportunities to put their case to government in relation to this issue, and have done so.

Employers, employees and trade unions—including the ACTU—have made submissions to the Howells review. The Howells review made a number of recommendations. It recommended the retention of the current criminal sanctions and penalties. It recommended legislation of a tiered system, as I said. And it recommended the idea of new civil penalties, with strict liability provisions and with statutory defences that employers could avail themselves of in circumstances where they had done the right thing. Also, there would be judicial discretion and maximum penalties of about $10,000. Stephen Howells recommended a system of infringement notices, with sanctions of about $1,000 and legislation, as I said, to protect those employers who do the right thing. He also talked about the need for better education concerning obligations and awareness for employers in those circumstances.

Many employers are very much aware of 457 visas—certainly, in the meat industry which is aware of them. In my electorate, Kilcoy Pastoral Company up in Kilcoy and JBS meatworks in Dinmore employ many people who come in on 457 visas in circumstances where there are workforce shortages in IT. In the health sector 457 visas are used as well, such as for doctors. Many medical practices in my regional and rural electorate are full of doctors who are here on visas and who become important parts of the local economy and community. In many cases, they are beloved for the work they do.

The federal government called for further information and submissions from interested parties. We have effectively decided to take a tougher stance by bringing in the civil system. We have decided to extend liabilities to third parties in order to address sham contracting arrangements as well, where people are engaged in circumventing the law. We made sure that the integrity of our migration system in this regard was protected. We wanted to make sure that there would be no reduction in working opportunities for Australians. The critical thing in all of this, and I have seen this personally in my electorate, is that foreign workers—those workers who come to this place and who do contribute to our local economy—are not subject to exploitation. It was estimated that up to 100,000 people were working illegally in this country, and that had grown from about 50,000 in 1998. The Howard government's response was inadequate. It acted as no deterrent, it was ineffective and, in effect, it impugned the integrity of our migration system, and it provided further opportunity for the exploitation of vulnerable people. We put the exposure draft of this bill into the public domain in August 2012 and we have had many submissions in relation to it. We put forward this legislation which brings in and acts on the recommendations of the Howells review. I am particularly interested in, and I am particularly in support of, the tiered enforcement strategy that is there—the creation of the no-fault base civil penalties—which has a lower standard than a criminal standard. Establishing a new civil penalty framework is important. This legislation also introduces new monitoring and investigation powers authorising officers to gather evidence of suspected breaches. As I mentioned before, the gathering of evidence was always a problem.

This legislation is an example of this federal Labor government fixing up a problem that the previous Howard coalition government had failed to address year after year, and on the eve of an election they decided they would seek to do something to make out they were protecting Australian jobs and protecting those people who were vulnerable. Once again, like their Work Choices legislation, it was inadequate, wrong, fallacious in terms of the law and did not result in good workplace practices in this country. In the circumstances, this legislation does seek to address that. It acts on best practice and brings us into line very much with what is happening in New Zealand, the UK and the US. I commend the legislation to the House.