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Monday, 26 November 2012
Page: 13318


Ms GAMBARO (Brisbane) (16:26): The bill should be seen for exactly what it is. It is an example, again, of this government's war on employers. The stated objective of the bill is to impose an additional regulatory regime on employers who employ foreign nationals who are illegal or who do not have work rights. The bill amends the Migration Act to alter criminal offence provisions and create a new civil penalties with a regime of maximum fines of $49,500 for corporate entitles and $9,900 for individuals, as well as creating an infringement notice scheme. It looks also at broadening the application of criminal offences and civil penalty provisions to people who allow or refer an unlawful non-citizen to work or to work in breach of visa conditions, and it creates statutory defences where reasonable steps are taken to verify a foreign national worker's entitlement to work. It creates an infringement notice tier setting under the civil penalties provision allowing a person or corporate entity to pay a fine as an alternative to court proceedings. It also amends the current aggravated offences provision so that a person commits an aggravated offence when a worker is or will be exploited doing the work and the person who allowed the work or referred the worker knows this or is reckless about it. It also extends criminal and civil liability, in certain circumstances, to executive officers of bodies corporate, partners in a partnership and members of an unincorporated association's committee of management, and it creates search warrants and notice to produce powers specifically to facilitate the investigation of suspected breaches of these offences and civil penalties.

What a joy it is to be an employer under the Labor government. I have been an employer and I have employed students who were 20 hours a week, and I knew that was all they were entitled to work. I have also employed people under the working holiday makers program. But this Labor government puts all employers under the same blanket and treats them all the same, and decides that it is just going to put more complexity into the system. This bill is another myriad of onerous regime that it seeks to introduce, and it is testament to Labor's increasing obsession with making life difficult for as many employers as it can with more and more layers of red tape. You only have to look at the explanatory memorandum, which is 105 pages long. It is amazing. This would make the flow chart of Labor's red-tape obsession. It leaves the knowledge flow chart we saw some years back in the shade—and we know what a testament to clear and logical thinking that was, requiring navigation via a crystal ball and a ouija board. That is what this government does. It punishes the business sector.

In October of this year the Australian Chamber of Commerce and Industry released its National Red Tape Survey. The member for Canning highlighted some of the results of that survey. The chamber surveyed 870 businesses across all states and territories. The survey had some very interesting results and part of the member for Canning's speech highlighted that. But 73 per cent of businesses believe the overall compliance burden has increased in the last two years—what a surprise that is. Sixty per cent of businesses spent more than $5,000 per annum directly on costs related to regulatory requirements, with 16.1 per cent of businesses spending more than $50,000 per annum. Over 54 per cent of businesses spent more than five hours on their last tax return while 30 per cent outsourced it. Over 54 per cent of businesses perceive that regulatory compliance prevents businesses from growing.

What is difficult to understand is that the additional red tape the government seeks to introduce with this bill flies in the face of its own 2007 red-tape reduction election commitment. This government went to the election under the glib sound bite 'one-in one-out'. I remember that very well. Let us have a look at this government's report card against that election promise. When they said one-in one-out, on 29 October this year, the government had introduced 20,884 regulations and had repealed the wonderful number of—only—104. That is not one-in one-out, that is 200 in for every one out. An incredible tragedy, at the end of the spectrum, is the contrast with their 2007 red-tape election promise.

With numbers like that Labor should have called it their red-tape elevation election commitment, because at least then the government would have been able to lay claim to having had an election promise that they had delivered against. Regrettably, the numbers really do tell the story: 200 in for every one out. There is no conclusion to make other than that this government is anti-employers, anti-jobs and anti-productivity. Don't just take my word for it: according to the Australian Bureau of Statistics, multifactor productivity has fallen by 6.6 per cent in Australia, from July 2004 to June 2011, with 4.2 per cent of this fall occurring from July 2007.

A study undertaken in August 2012 by the Economist Intelligence Unit ranked Australia as the second worst of 51 countries for productivity growth, ahead only of—and we should be very proud of this—Botswana. That is something we should truly be proud of as a nation. This less than stellar performance is also confirmed by the 2012 McKinsey study, called Beyond the boom: Australia's productivity imperative. This indicates that Australia's experience of income growth between 2005 and 2011 was driven by rising terms of trade and an upsurge in capital investment, not by labour productivity growth, which was weak, or by capital productivity, which actually fell quite significantly.

Against this backdrop we have, today, another bill that is introducing red tape. It is the very last thing Australian employers need, but it is just what this Labor government wants to slug them with through this bill. One of the primary reasons legislation is proposed and introduced into the parliament is to address unresolved needs or problems, or to correct a perceived mischief. What is the unresolved need or mischief this government is seeking to address here?

The best starting point in search for a meaningful answer to his question is the government's engagement of Mr Stephen Howells to conduct a review of the Migration Amendment (Employers Sanction) Act 2007 in 2010. In December 2011 the government announced that it would legislate to implement the recommendations contained in that review.

The current employer sanctions regime, introduced by the Howard government in 2007, set out criminal offences for allowing an unlawful noncitizen to work; allowing a non-citizen to work in breach of a visa condition restricting work; allowing the referring an unlawful noncitizen to work, and allowed for referring a noncitizen to work in breach of a visa condition restricting work. Therefore, under the existing legislation, for a person to be successfully prosecuted for committing one of these offences, it must have been shown that these offences were committed either with knowledge or due to recklessness. The current sanctions regime also provides for an aggravated offence where the worker is subject to exploitation. In considering the question of what mischief does this bill supposedly address, it is instructive to examine how many times these existing provisions have actually been used since the commencement of the existing legislation in 2007.

According to Mr Howells' report, of the approximately 100 instances of possible breaches of these existing provisions considered by the DIAC offices, only four of them were suitable to be referred to the Commonwealth Director of Public Prosecutions—that is right, there were only four cases since 2007—hardly what you would describe as a 'burning bridge' necessitating further regulatory overreach by a red-tape-happy Labor government that is never happier than when it is slugging the business sector as hard as it can. It was very interesting to hear the member for Blair analysing all of this. I cannot understand this, and the member for Blair is a former lawyer as well. I cannot understand why, on the basis of this very low prosecution rate, Mr Howells' report makes the following astounding conclusions about the existing sanction provisions contained in the Migration Amendment (Employer Sanctions) Act 2007, that they are supposedly:

… wholly ineffective as a deterrent against the small number of employers and labour suppliers who engage or refer non-citizens who do not have lawful permission to work or who work in breach of their visa conditions. The Employer Sanctions provisions are also ineffective as an educational tool for recalcitrant employers and labour suppliers.

This bizarre—and it is absolutely bizarre—contradiction fundamentally undermines Mr Howell report's recommendation. On one hand the report acknowledges that there have been very few breaches and even fewer convictions, while on the other hand such sparse behaviour apparently warrants the imposition of an even greater regulatory burden on employers. On this basis, the Howells report utterly fails in making a case that the extent of illegal workers warrant the heavy handedness of the response. Once again I return to the question: where is the mischief?

Mr Howells' report states that in 2008-09, DIAC located 11,428 unlawful noncitizens in Australia and, of those, only 990 were confirmed to be working illegally. The report estimates that up to 100,000 people were working illegally in Australia at any one time. However, the figures are purely speculative as they assume that all overstayers are working illegally. The total labour force in Australia is some 11 million, so even if the estimates in the Howells report are accurate, that is less than 0.9 per cent of 1 per cent of the workforce. The flames on the so-called 'burning bridge' just got higher. This is a great calamity requiring legislative solutions and posing more unnecessary burdens on Australian businesses. We are talking about a number that is equivalent to 0.9 per cent of the workforce that maybe working illegally, and I emphasise that there is no other way to view this bill than to say that it is a regulatory overreach which has gone mad. Why are we taking up the resources of the parliament in addressing a problem that scarcely exists, and more importantly, that is more than adequately dealt with by the existing law? We have heard about the onus on employers, but where is the onus on people who are working illegally under this legislation? I note that recently, the department changed some of its proof of records. Previously, people who were working in this country just had to quote an ABN, but I understand now that they are asking for proof of bank records and payslips; that is a very welcome move. But why does a Labor government have a pathological obsession with slugging employers in any way that it can? Speaking of employer groups, the government should not have been wasting everyone's time in drafting this bill. There have been various groups—according to the submissions received from, for example, the Australian Industry Group and various chambers—who believe the proposed changes in this bill to be:

... heavy handed and unnecessary. Imposing strict liability offences on employers and labour suppliers will not deter the small minority of employers or labour suppliers who already knowingly abuse the law to engage cheap labour. Rather the proposed changes will impact the unintended targets: i.e. good employers and labour suppliers. It is unfair that these persons be subject to high regulatory burdens because of the illegal practices of just a very small few.

In this context, the coalition opposes this bill, and I call on the government members to remember their own 2007 red-tape reduction election commitment. One in and one out; throw this one out even before it gets in. It is, again, an overreach imposing greater regulatory burdens on businesses out there who already have to contend with a huge regulatory burden that has just increased under this Labor government.