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Wednesday, 28 November 2012
Page: 10131

Senator FEENEY (VictoriaParliamentary Secretary for Defence) (17:46): I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—


I am very pleased today to be introducing the Health and Other Legislation Amendment Bill 2012.

Amendments to the Food Standards Australia New Zealand Act 1991

This bill seeks to make minor amendments to the Food Standards Australia New Zealand Act 1991 to correct typographical issues and obsolete references.

The amendments are minor and will improve the readability of the Act. They do not change the intent of the Act or alter any of the regulations.

Amendments to the Health Insurance Act 1973

Prior to 1 July 2011, only trainee surgeons - with the Royal Australian College of Surgeons - could conduct a procedure under the direct supervision of a specialist in a private setting and have that service attract a Medicare rebate for the supervising surgeon.

The procedure was considered to have been performed by the supervising surgeon who retained the right to any bulk-billed Medicare benefit in relation to the procedure. This arrangement meant that trainee surgeons had greater access to clinical training opportunities.

A change to the regulations on 1 July 2011 made it possible for trainees of other approved professional medical colleges - not just surgeons - to also provide certain procedures under the direct supervision of a specialist.

Trainees in orthopaedic surgery, ophthalmology, obstetrics and gynaecology, internal medicine and anaesthetics are among those who can now provide certain procedures in a private setting under direct supervision and have those procedures attract a Medicare rebate for the supervisor.

This further expands the country's training capacity for specialists with no additional cost to Government.

The change has been a successful one, and is expected to continue to help alleviate some of the training capacity issues for trainee specialists which are being faced by health systems. The Government considers that it is appropriate that the policy should be recognised at the level of primary legislation.

Amendments to the Human Services (Medicare) Act 1973

Under the National Health Reform Agreement, signed by the Commonwealth and all states and territories in August 2011, the Commonwealth committed to establishing new primary health care organisations, known as Medicare Locals, to drive improvements in Australia's primary health care system.

All 61 Medicare Locals are now established.

The amendments will enable Medicare Locals and other bodies seeking to use the term 'medicare' to apply for an authorisation to use the term without breaching the Act.

Amendment of the Industrial Chemicals (Notification and Assessment) Act 1989

The Industrial Chemicals (Notification and Assessment) Act 1989 (the ICNA Act) establishes a system of notification and assessment of industrial chemicals to protect health, safety and the environment, to provide for registration of certain persons proposing to introduce industrial chemicals, and to enable making of national standards for cosmetics. The Department of Health and Ageing, through the National Industrial Chemicals Notification and Assessment Scheme, administers the ICNA Act.

This proposed minor amendment corrects a description of how chemicals are transhipped. It allows industry to decide on what is the most efficient short term storage option while maintaining health and safety. It does not place any restriction on competition and does not place any additional requirements on business.

Under the ICNA Act, certain new industrial chemicals that represent a low risk are exempt from the notification and assessment provisions, in keeping with the best practice principle that the regulatory impost to industry should be in accordance with the risk posed. One such exemption relates to chemicals kept under the control of Customs during transhipment, where those chemicals are exported within 30 days of import.

The current ICNA Act includes an inaccurate description of how chemicals are kept under the control of Customs during transhipment, and the amendment will correct this problem without affecting the intent of the exemption provision.

There is broad stakeholder support across industry and the community for the proposed amendment, which has been developed in response to industry concerns and in consultation with industry, government and the community.


The purpose of this Bill is to deal with the problem of non-citizens 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 non-citizens and lawful non-citizens 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 non-citizens and lawful non-citizens 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 non-citizens and lawful non-citizens 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.

The continuing practice of allowing or referring unlawful non-citizens to work or lawful non-citizens 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 non-citizens 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 non-citizens and non-citizens 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 refocussed, 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 non-citizens 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 non-compliance with the legislation is detected.

Finally, proceedings for a civil penalty order or prosecutions for criminal offences may be pursued where persistent non-compliance 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 non-citizen 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 non-citizen 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 non-citizen worker is also working elsewhere. Therefore, the Bill restricts potential sanctions to circumstances where a non-citizen 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 the government's determination to tackle the difficult issues associated with this practice.

Ordered that further consideration of the second reading of these bills be adjourned to the first sitting day of the next period of sittings, in accordance with standing order 111.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.