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Migration Amendment (Protecting Migrant Workers) Bill 2021



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16 February 2022

BILLS DIGEST NO. 47, 2021-22 16 FEBRUARY 2022

Migration Amendment (Protecting Migrant Workers) Bill 2021 Harriet Spinks Social Policy Section

Contents

Purpose and structure of the Bill .......................................3

Background .......................................................................3

Migrant Workers’ Taskforce ....................................... 4

Committee consideration ..................................................5

Senate Legal and Constitutional Affairs Legislation Committee ............................................... 5

Senate Standing Committee for the Scrutiny of Bills ............................................................................. 5

Policy position of non-government parties/independents .......................................................6

Position of major interest groups ......................................6

Financial implications ........................................................7

Statement of Compatibility with Human Rights .................7

Parliamentary Joint Committee on Human Rights ..... 8 Key issues and provisions ..................................................8

Part 1—New employer sanctions ............................... 8

Key provisions .......................................................... 9

Stakeholder comments .......................................... 10

Risk of visa cancellation for migrant workers reporting breaches ............................................... 10

Provisions applying to people other than employers ............................................................. 11

Part 2—Prohibition on certain employers employing additional non-citizens ........................... 11

Key provisions ........................................................ 12

Stakeholder comments .......................................... 14

Exclusion of work done in a domestic context ..... 15 Adverse impacts on employees and employers ... 15 Ministerial discretion and delegated legislation ... 15

Date introduced: 24 November 2021

House: House of Representatives

Portfolio: Home Affairs

Commencement: Sections 1-3 on Royal Assent; Schedule 1 on a day to be fixed by Proclamation, or 12 months and one day following Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at February 2022.

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Migration Amendment (Protecting Migrant Workers) Bill 2021 2

Part 3—Use of computer system to verify immigration status ................................................... 16

Key provisions ........................................................ 16

Stakeholder comments .......................................... 18

Part 4—Aligning and increasing penalties for work-related breaches ............................................. 18

Table 1: Summary of proposed increased penalties ................................................................. 19

Parts 5 and 6—Enforceable undertakings and compliance notices for work-related breaches ........ 20 Enforceable undertakings ....................................... 21

Related amendments in Part 7 ............................. 22

Compliance notices ................................................ 22

Retrospective application ..................................... 23

Concluding comments ..................................................... 24

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Migration Amendment (Protecting Migrant Workers) Bill 2021 3

Purpose and structure of the Bill The purpose of the Migration Amendment (Protecting Migrant Workers) Bill 2021 (the Bill) is to amend the Migration Act 1958 to:

• establish new criminal offences and civil penalties that will apply where a person coerces or exerts undue influence or pressure on a non-citizen to agree to certain work arrangements

• introduce a power to prohibit employers who are subject to a specified sanction from employing additional non-citizens (other than permanent residents) for a specified time period

• require employers to use the Visa Entitlement Verification Online (VEVO) system to verify prospective workers’ immigration status and work-related visa conditions

• align and increase penalties for certain work-related offences and civil penalty provisions and

• provide the Australian Border Force (ABF) with regulatory powers in relation to compliance notices and enforceable undertakings for breaches of work-related civil penalty and offence provisions in the Migration Act.

The Bill contains one Schedule, comprised of seven Parts:

• Part 1 establishes new employer sanctions for coercing or unduly influencing a migrant worker to accept certain work conditions

• Part 2 provides for a prohibition on certain employers employing additional migrant workers for a specified period

• Part 3 strengthens obligations for employers to use the prescribed computer system to verify immigration status

• Parts 4 to 6 relate to increased penalties, enforceable undertakings, and compliance notices for work-related breaches

• Part 7 amends existing enforceable undertaking provisions in the Migration Act in line with the new enforceable undertaking provisions contained in Part 5.

Background The Bill forms part of the Government’s response to the Recommendations of the 2019 Report of the Migrant Workers’ Taskforce.1 Specifically, it implements Recommendations 19 and 20, which recommended:

• making it an offence to knowingly unduly influence, pressure or coerce a migrant worker to breach their visa conditions (Recommendation 19) and

• introducing a mechanism to exclude employers who have been convicted by a court of underpaying migrant workers from employing new temporary visa holders for a specified period (Recommendation 20).

The Department of Home Affairs released an Exposure Draft of the Bill for consultation in July 2021, along with a context paper setting out background information on the report of the Migrant Workers Taskforce and an overview of the measures contained in the draft Bill.2 The Department received 32 submissions on the Exposure Draft.3 Some of these are discussed further below under ‘Position of major interest groups’ and ‘Key issues and provisions’. The Bill as introduced is

1. Migrant Workers’ Taskforce, Report of the Migrant Workers’ Taskforce (Canberra: Australian Government, 2019). 2. Exposure Draft: Migration Amendment (Protecting Migrant Workers) Bill 2021; Exposure Draft - Context Paper: Migration Amendment (Protecting Migrant Workers) Bill 2021. 3. Explanatory Memorandum, Migration Amendment (Protecting Migrant Workers) Bill 2021, 3. Most of the submissions on the

Exposure Draft are available at ‘Exposure Draft Migration Amendment (Protecting Migrant Workers) Bill 2021’, Department of Home Affairs (Home Affairs), last updated 25 October 2021.

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Migration Amendment (Protecting Migrant Workers) Bill 2021 4

substantially the same as the Exposure Draft, with largely only minor drafting changes. Notable differences between the Exposure Draft and the introduced Bill are discussed below under ‘Key issues and provisions’.

Migrant Workers’ Taskforce The Migrant Workers’ Taskforce was established in 2016 and tasked with identifying proposals for improvements in law, law enforcement and investigation, and other practical measures to identify and rectify cases of migrant worker exploitation.4 The Taskforce was chaired by Professor Allan Fels and included members from a wide variety of government agencies. The report of the Migrant Workers’ Taskforce was presented to the Government in February 2019, and publicly released on 7 March 2019, along with the Government’s response.5 The report made 22 Recommendations and the Government accepted in principle all 22 Recommendations.6

The establishment of the Migrant Workers’ Taskforce followed several years of media attention, and a range of inquiries, on the issue of migrant worker exploitation.7 For example, in 2016 the Fair Work Ombudsman (FWO) conducted an inquiry into the workplace practices of the 7-Eleven franchise network, which identified a culture of non-compliance in a company with a high proportion of employees on temporary (largely student) visas, who were particularly at risk of exploitative work practices.8

Another 2016 report from the FWO looked at the wages and conditions of people working in Australia on Working Holiday (Subclass 417) Visas.9 It identified numerous exploitative practices including:

• underpayment and/or non-payment of wages

• visa holders offering (or being induced to offer) payment to employers and third parties for assistance in gaining a second-year visa

• sexual harassment and workplace health and safety issues

• employers offering unpaid work to meet the second-year visa eligibility requirements and

• visa holders working for free in exchange for non-certified accommodation programs.10

Similarly, the report of the 2016 Senate Education and Employment References Committee inquiry into the impact of Australia’s temporary work visa programs on the Australian labour market and on the temporary work visa holders found that exploitation was a serious problem for temporary migrants and made several Recommendations aimed at improving the protection of temporary migrants in the workplace.11

The report of the Migrant Workers’ Taskforce highlights several factors which contribute to migrant worker’s vulnerability to exploitation, including: limited English language skills; lack of knowledge of workplace laws and standards; fear of visa cancellation; willingness to accept below award wages; remoteness of working location; business models that rely heavily on labour hire

4. Attorney-General’s Department, Migrant Workers’ Taskforce. 5. Migrant Workers Taskforce. 6. Australian Government, Australian Government Response: Report of the Migrant Workers’ Taskforce, 2019. 7. For further information see Allan Fels and David Cousins, ‘The Migrant Workers' Taskforce and the Australian Government's

Response to Migrant Worker Wage Exploitation’, Journal of Australian Political Economy, no. 84 (December 2019): 13-45. 8. Fair Work Ombudsman (FWO), A Report of the Fair Work Ombudsman’s Inquiry into 7-Eleven: Identifying and Addressing the Drivers of Non-Compliance in the 7-Eleven Network (Canberra: FWO, 2016). 9. FWO, Inquiry into the Wages and Conditions of People Working Under the 417 Working Holiday Visa Program (Canberra: FWO,

2016).

10. FWO, Inquiry into Wages, 3. 11. Senate Education and Employment References Committee, A National Disgrace: The Exploitation of Temporary Work Visa Holders (Canberra: The Senate, 2016), ix-xiv.

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companies; and franchise models that make it difficult for franchisees to run a profit without underpaying wages.12

Temporary migrant workers are often particularly vulnerable to exploitation when their migration status is tied to their employer, such as is the case for temporary skilled workers on a Temporary Skill Shortage (Subclass 482) Visa. This vulnerability is exacerbated when a temporary migrant is hoping to gain permanent residence via employer sponsorship. Vulnerability to exploitation is also an issue for working holiday makers and international students, for whom employment is not the primary purpose of their visa and where the visa has restrictions placed on employment. If these visa holders are working in breach of their visa conditions they may not report workplace exploitation or underpayment due to fear of having their visa cancelled. These visa holders, and seasonal workers under the Seasonal Worker and Pacific Labour Programs, also tend to work in low-skilled sectors, often in remote areas, which increases their vulnerability to exploitation.

Many of the Migrant Workers’ Taskforce Recommendations related to the Fair Work Act 2009 and the work of the FWO, and this work is being led by the Attorney-General’s Department together with the FWO. The current Bill implements Recommendations 19 and 20, which fall under the responsibility of the Department of Home Affairs.

Recommendations 19 and 20 of the Report of the Migrant Workers’ Taskforce form the basis of Part 1 (new employer sanctions) and Part 2 (prohibitions on certain employers employing additional non-citizens) of the Bill. The remaining Parts of the Bill deal with additional issues, which were not the subject of specific Recommendations by the Migrant Workers’ Taskforce, but which the Minister states will ‘enhance protections for migrant workers under the Migration Act 1958’.13

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee The Bill has been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 11 March 2022. Details of the inquiry are at the inquiry homepage.

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills (Scrutiny Committee) reported on the Bill in Scrutiny Digest 18 of 2021.14

Only one concern was raised by the Scrutiny Committee, relating to procedural fairness and the natural justice hearing rule (which requires that a person must be given an opportunity to present their case) in the context of the proposed power to prohibit certain employers from employing new migrant workers for a specified period contained in Part 2 of the Bill.15 Proposed section 245AYK (at item 9 of Schedule 1 to the Bill) provides that the provisions in proposed Subdivision E of Division 12 of Part 2 of the Migration Act and sections 494A to 494D of the Migration Act (which relate to the giving of documents to a person by the Minister and the receipt of such documents),

12. Migrant Workers Taskforce, 36-37. 13. Alex Hawke (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), New Penalties Proposed to Protect Migrant Workers from Coercive Exploitation, media release, 26 July 2021.

14. Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest, 18, 2021, 1 December 2021: 18-20. 15. Procedural fairness (or natural justice) refers to common law principles implied in relation to statutory and prerogative powers to ensure the fairness of the decision-making procedure of courts and decision-makers. The obligation of procedural fairness has two aspects: the ‘hearing rule’ which requires that a person be given an opportunity to present their case with

knowledge of any adverse material that might be taken into account by the decision-maker, and the ‘rule against bias’ which requires the decision-maker to be neither biased nor one who might be reasonably apprehended to be biased: Ray Finkelstein and David Hamer, eds, LexisNexis Concise Australian Legal Dictionary, 6th ed. (Sydney: LexisNexis, 2021), 527.

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in so far as they relate to proposed Subdivision E, are an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

However, the Scrutiny Committee believes that this:

… could operate to exclude aspects of the natural justice hearing rule, such as the requirement to disclose adverse information which is not part of the proposed reasons for a decision, in circumstances where compliance with the rule is necessary to assure fairness to affected persons.16

The Scrutiny Committee considered that the Explanatory Memorandum to the Bill does not adequately justify why it is necessary to limit the right to natural justice and requested advice from the Minister as to why it is considered necessary and appropriate that the proposed provisions limit the natural justice hearing rule in this way.17 The Scrutiny Committee also noted that ‘the courts have consistently interpreted procedural fairness obligations flexibly based on specific circumstances and the statutory context’ and that the Explanatory Memorandum should include an explanation as to ‘why the level of flexibility traditionally applied by the courts in relation to natural justice is not sufficient in this instance’.18

The Minister responded that ‘the statutory processes in Subdivision E do not abrogate the affected person's access to procedural fairness and a fair hearing’ and set out the ways in which procedural fairness will be maintained.19 The Minister also noted that proposed section 245AYK is ‘modelled on existing provisions in the Migration Act’.20 However, the Scrutiny Committee did not consider the Minister’s advice an adequate response to its concerns, noting that consistency with existing legislation is not a sufficient justification for limiting the right to procedural fairness, and that the Minister had not comprehensively addressed the question of why it was necessary to exclude certain aspects of the natural justice rule.21

Policy position of non-government parties/independents At the time of writing neither the Opposition nor any of the minor parties or independents appear to have commented publicly on the Bill.

Position of major interest groups As noted above, the Department of Home Affairs received 32 submissions on the Exposure Draft of the Bill, 27 of which it has published on its website. The Senate Legal and Constitutional Affairs Legislation Committee has published 20 submissions to its inquiry on the Bill, from many of the same stakeholders as provided submissions on the Exposure Draft.22 Most stakeholders are broadly supportive of the intent of the Bill to address the exploitation of migrant workers. However, several are concerned that the Bill will not achieve this intent, and that it may in fact have some negative unintended consequences for either migrant workers or employers, or both.

Several submissions, on both the Exposure Draft and the Bill as introduced, argued that the Bill will have a negligible effect on protecting migrant workers, particularly in the absence of increased enforcement activity, and that it overlooks the structural and systemic drivers of migrant worker

16. Scrutiny Digest, 2021, 19. 17. Scrutiny Digest, 2021, 19-20. 18. Scrutiny Digest, 2021, 19-20.

19. Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest, 1, 2022, 4 February 2022: 41-42. 20. Scrutiny Digest, 2022, 43. 21. Scrutiny Digest, 2022, 43. 22. Senate Standing Committee on Legal and Constitutional Affairs, Submissions to the Inquiry into the Migration Amendment

(Protecting Migrant Workers) Bill 2021.

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exploitation.23 Some stakeholders submitted that the new provisions would need to be accompanied by substantially increased compliance and enforcement activity in order to achieve their desired intent.24 Of key concern to many is the lack of protection offered to migrant workers reporting employers in breach of the new offence and civil penalty provisions, and the possibility that reporting breaches could result in the migrant worker’s visa being cancelled.25 Employer groups expressed some concern that the provisions would unnecessarily increase the regulatory burden on, and create ambiguity for, employers,26 and may prevent employers from ensuring work-related visa conditions are complied with.27

Some specific concerns with the provisions are discussed below under ‘Key issues and provisions’. These relate largely to the provisions in Parts 1, 2 and 3. Parts 4, 5, 6 and 7 did not attract substantive stakeholder comment and the measures contained within them were broadly supported.

Financial implications The Explanatory Memorandum to the Bill states that the Bill will have a ‘low financial impact’.28

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.29

The Government has advised that the Bill engages the following rights:

• the right to work and the right to just and favourable conditions of work - Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)30

• the right to be free from the requirement to perform forced or compulsory labour or held in servitude - Article 8 of the International Covenant on Civil and Political Rights (ICCPR)31

• the right to privacy - Article 17 of the ICCPR

• the right to a fair trial and criminal process rights - Articles 14 and 15 of the ICCPR and

• the right to equality and non-discrimination - Article 26 of the ICCPR.32

23. For example see Joanna Howe, Submission, Exposure Draft: Migration Amendment (Protecting Migrant Workers) Bill 2021, 20 August 2021, 1; Migrant Justice Institute (MJI), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Protecting Migrant Workers) Bill 2021, [Submission No. 8], 28 January 2022, 1-2; and Australian Council of Trade Unions (ACTU), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Protecting Migrant Workers) Bill 2021, [Submission No. 9], 28 January 2022, 1. 24. Law Council of Australia (LCA), Submission, Exposure Draft: Migration Amendment (Protecting Migrant Workers) Bill 2021,

24 August 2021, 9-10; Immigration Advice and Rights Centre and Unions NSW, Joint Submission, Exposure Draft: Migration Amendment (Protecting Migrant Workers) Bill 2021, 20 August 2021, 8-9; and ACTU, Submission, 7. 25. For example see MJI, Submission, Inquiry into the Migration Amendment (Protecting Migrant Works) Bill 2021, 9-10; United Workers Union, Submission, Exposure Draft: Migration Amendment (Protecting Migrant Workers) Bill 2021, 16 August 2021,

10; Joanna Howe, Submission, 17; and ACTU, Submission, 4-5. 26. For example see Australian Chamber of Commerce and Industry (ACCI), Submission, Exposure Draft: Migration Amendment (Protecting Migrant Workers) Bill 2021, 16 August 2021, 1; and Australian Industry Group (AIG), Submission, Exposure Draft:

Migration Amendment (Protecting Migrant Workers) Bill 2021, 16 August 2021, 3-5. 27. AIG, Submission, 3. 28. Explanatory Memorandum, 4. 29. The Statement of Compatibility with Human Rights can be found at pages 92-114 of the Explanatory Memorandum to the Bill. 30. International Covenant on Economic, Social and Cultural Rights, opened for signature 16 December 1966, ATS [1976] 5

(entered into force for Australia 10 March 1976). 31. International Covenant on Civil and Political Rights, opened for signature 16 December 1966, ATS [1980] 23 (entered into force for Australia (except Art. 41) 13 November 1980; Art. 41 came into force for Australia 28 January 1993). 32. Explanatory Memorandum, 105-106.

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The Government considers that the Bill is compatible with human rights as it ‘support[s] the protection of migrant workers from worker exploitation’ and ‘to the extent that the proposed measures may limit human rights, those limitations are reasonable, necessary and proportionate to the objective’.33

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights had no comment on the Bill.34

Key issues and provisions

Part 1—New employer sanctions Part 1 of Schedule 1 of the Bill establishes new employer sanctions within existing Subdivision C of Division 12 of Part 2 of the Migration Act (Subdivision C), which deals with offences and civil penalties in relation to work by non-citizens.35 Currently, Subdivision C creates offences and provides for civil penalties where a person employs, or refers for employment, a person who does not have a valid visa (that is, an unlawful non-citizen);36 or allows a person to work, or refers a person for work, in breach of the work-related conditions on their visa.37

Part 1 of the Bill will expand this to include situations in which a person:

• coerces or exerts undue influence or undue pressure on a migrant worker to breach the work-related conditions of their visa or

• coerces or exerts undue influence or undue pressure on a migrant worker by using migration rules—for example, coercing them to accept a work arrangement to avoid an adverse effect on their immigration status.

The proposed amendments implement Recommendation 19 of the Migrant Workers’ Taskforce report:

…that the Government consider developing legislation so that a person who knowingly unduly influences, pressures or coerces a temporary migrant worker to breach a condition of their visa is guilty of an offence.38

The Migrant Workers’ Taskforce made its Recommendation in the context of allegations that some employers were exploiting the restrictions or work requirements of some temporary visas. The Migrant Workers’ Taskforce was particularly concerned about workers on temporary visas that are not tied to sponsoring employers (such as students and working holiday makers), and who therefore do not enjoy the protections offered by the sponsorship framework under the Migration Act.39

The Migrant Workers’ Taskforce expressed concern with issues such as:

• reports of employers persuading international students to work more hours than permitted by their visa

33. Explanatory Memorandum, 114. 34. Parliamentary Joint Committee on Human Rights, Human Rights Scrutiny Report, 15, 2021, 8 December 2021: 35. 35. A non-citizen means a person who is not an Australian citizen, section 5, Migration Act 1958. 36. A non-citizen in the migration zone who is not a lawful non-citizen (a non-citizen in the migration zone who holds a visa that

is in effect) is an unlawful non-citizen, sections 13 and 14, Migration Act. 37. Migration Act, section 245AA. A work-related condition means a condition prohibiting the holder of a visa from working in Australia or restricting the work the holder of a visa may do in Australia, section 5, Migration Act. 38. Migrant Workers Taskforce, 124. 39. Migrant Workers Taskforce, 123.

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• reports of employers persuading international students working more hours than permitted by their visa to accept lower rates of pay by threatening to report the student to the ABF for working in breach of their visa conditions and

• reports of employers exploiting the requirement for working holiday makers to complete 90 days of specified work in order to obtain a second visa, such as through refusing to sign off on completion of the work unless certain conditions are met or other tasks performed.40

However, Recommendation 19 of the Migrant Workers’ Taskforce’s report only addressed the issue of employers pressuring, coercing or exerting undue influence on a migrant worker to breach the work-related conditions of their visa. The Bill addresses other issues identified by the Migrant Workers’ Taskforce by making it an offence to coerce or unduly influence or pressure a migrant worker to accept a work arrangement in order to satisfy a work-related visa requirement (such as meeting the work-test for a second visa) or to avoid an adverse effect on their immigration status (such as being reported to the ABF).41

Key provisions Proposed section 245AAA will make it an offence for a person to coerce, or exert undue influence or pressure, on a non-citizen (that is, a visa holder) to accept or agree to a work arrangement that:

• will be carried out in Australia, either for that person or for someone else and

• will cause the non-citizen to breach a work-related visa condition, or there are reasonable grounds to believe the arrangement will cause a non-citizen to breach a work-related visa condition.

An example of conduct captured by this offence would be where an employer threatens to cut the hours or terminate the employment of a person on a student visa if the visa-holder does not agree to work in excess of the hours permitted by their visa.42

Proposed section 245AAB will make it an offence for a person to coerce, or exert undue influence or pressure, on a non-citizen to accept or agree to a work arrangement that:

• will be carried out in Australia, either for the person or for someone else and

• the non-citizen believes, or there are reasonable grounds to believe, that they must accept the arrangement either to satisfy a work-related visa requirement or to avoid an adverse effect on their immigration status.

An example of conduct captured by this offence would be where an employee has been working in excess of the hours permitted by their visa, and requests their hours be reduced, but the employer tells them they must continue to work the excess hours or they will be reported to the ABF for breaching their visa conditions.43

The maximum penalty for each offence will be 2 years imprisonment, or 360 penalty units (currently equivalent to $79,920), or both (proposed subsections 245AAA(2) and 245AAB(2)).44

Proposed subsections 245AAA(3) and 245AAB(3) provide that the fault element for paragraphs 245AAA(1)(b) and (c) and paragraphs 245AAB(1)(b) and (c) is knowledge or recklessness by a person as to the effect of the work arrangement on the visa-holder’s work-related conditions on

40. Migrant Workers Taskforce, 122. 41. Proposed section 245AAB, Migration Act, at item 4 of Schedule 1 to the Bill. 42. For a detailed illustrative example of conduct that would contravene proposed subsection 245AAA(1), see Explanatory Memorandum, 10-11. 43. For a detailed illustrative example of conduct that would contravene proposed subsection 245AAB(1), see Explanatory

Memorandum, 15-16. 44. The value of a penalty unit is determined by section 4AA of the Crimes Act 1914. A single penalty unit is currently set at $222. See Notice of Indexation of the Penalty Unit Amount, 14 May 2020.

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their visa. For example, an employer who coerces a visa holder to work in breach of their visa conditions in contravention of proposed subsection 245AAA(2) must either know that the work arrangement will breach a visa condition, or be reckless as to that outcome. The Explanatory Memorandum notes that this is intended to prevent an employer from relying on ignorance as a defence, and the prosecution from having to prove that an employer intended to cause the visa-holder to breach a work-related visa condition—it is enough simply that they were reckless as to that outcome.45

However, the Bill does not specify a fault element for proposed paragraphs 245AAA(1)(a) or 245AAB(1)(a), which establish the first physical element of the offence—that the person coerces or exerts undue influence or pressure on a visa holder. Hence, the default threshold is intention.46 That is, the prosecution would need to show that a person intended to coerce or exert undue

influence or pressure on the visa holder.

Proposed subsections 245AAA(4) and 245AAB(4) provide for a maximum civil penalty of 240 penalty units (currently equivalent to $53,280) for an individual or 1,200 penalty units (currently equivalent to $266,400) for a body corporate, as an alternative to criminal proceedings.47 Notes to these provisions clarify that ‘it is not necessary to prove a person’s state of mind in proceedings for a civil penalty order’ and therefore it is only necessary to establish that a breach has been committed, not that the person acted with intent, knowledge, recklessness or negligence.48

Stakeholder comments

Risk of visa cancellation for migrant workers reporting breaches Among the submissions received on both the Exposure Draft and the Bill as introduced, the key concern for groups representing workers was the possibility of negative consequences for migrant workers reporting breaches of the new coercion offences and civil penalty provisions. For example, the Migrant Justice Institute (MJI), a collaboration between the University of New South Wales and the University of Technology Sydney, pointed to substantial evidence that temporary migrant workers are reluctant to report exploitative work practices, and argued that without an incentive to report, this will remain the case.49 The Bill does not protect migrant workers who have worked in breach of their visa conditions from having their visa cancelled if they report coercion on the part of their employer. This creates a disincentive to report. The MJI, and others, argued that the Bill should include a guarantee that migrant workers who have breached the work conditions of their visa, and who report their employer under these provisions, will not be subject to visa cancellation on the basis of that breach.50

Some employer groups also recommended that the Bill include protections for migrant workers coming forward to report a breach of these provisions. For example, Approved Employers of Australia, an association representing producers and labour hire companies employing seasonal

45. Explanatory Memorandum, 11-12. 46. Explanatory Memorandum, 12, 17. See subsection 5.6(1) of the Criminal Code Act 1995 and Attorney-General’s Department (AGD), A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, (Canberra: AGD, 2011), 20.

47. Paragraph 486R(5)(a) of the Migration Act provides that the maximum penalty for a contravention of a civil penalty provision by a body corporate is five times the amount of the pecuniary penalty specified for the provision. 48. Subsection 486ZF(1) of the Migration Act provides that it is not necessary to prove a person’s state of mind in proceedings for a civil penalty order for a contravention of a civil penalty provision of the Migration Act (other than subsections 245AK(2) and

245AU(2)). 49. MJI, Submission, Inquiry into Migration Amendment (Protecting Migrant Workers) Bill 2021, 8-9. 50. MJI, Submission, Inquiry into Migration Amendment (Protecting Migrant Workers) Bill 2021, 10. See also similar concerns and Recommendations in ACTU, Submission, 4-5; United Workers Union, Submission, Exposure Draft: Migration Amendment

(Protecting Migrant Workers) Bill 2021, 16 August 2021, 10; Joanna Howe, Submission, 17; and Immigration Advice and Rights Centre and Unions NSW, Joint Submission, 15.

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and Pacific workers, noted the problem of ‘rogue employers’ who breach their obligations with very little consequence.51 It argued that for migrant workers to feel safe reporting, or testifying against, such employers, the Bill should include protections for workers who speak out against these breaches.52

Provisions applying to people other than employers The Law Council of Australia (LCA) has observed that the offences and associated civil penalties established by Part 1 of the Bill could apply to any person, not just employers or others, such as recruiters, with a connection to the employment relationship.53

This is due to the drafting of proposed paragraphs 245AAA(1)(b) and 245AAB(1)(b)), which provide that work undertaken by the visa-holder may be carried out for the person who exerted coercion or undue influence, or for someone else [emphasis added]. Hence, the LCA noted that the provisions could apply to a friend, family member or acquaintance of the visa-holder, which it believes was not the intent of the Migrant Workers’ Taskforce.

The LCA had raised this issue in its submission on the Exposure Draft, and recommended that in the final drafting of the Bill ‘consideration be given to whether amendments are required to ensure the new offences and penalties only apply to employers’, for example by amending the relevant paragraphs ‘to draw some nexus between the worker and the person applying the coercion or pressure—perhaps some reference to the second person “offering” the work or in some way being responsible for offering or arranging the work’.54 The Bill as introduced does not contain any such amendments, meaning the possibility remains that the new offences and associated civil penalties could be applied to people who are not connected to the relevant employment arrangement.

Part 2—Prohibition on certain employers employing additional non-citizens Item 9 in Part 2 inserts proposed Subdivision E, concerning prohibited employers, at the end of Division 12 of Part 2 of the Migration Act. Proposed Subdivision E establishes a framework empowering the Minister to declare certain employers to be ‘prohibited employers’ for a specified period of time. Prohibited employers will not be permitted to employ additional (to those who are already employed) temporary migrant workers while their prohibited status is in effect.

This implements Recommendation 20 of the report of the Migrant Workers’ Taskforce:

… that the Government explore mechanisms to exclude employers who have been convicted by a court of underpaying temporary migrant workers from employing new temporary visa holders for a specific period.55

The provisions in Part 2 of the Bill go further than this Recommendation in that the temporary prohibitions will apply to employers who are found to have breached a much wider range of obligations than simply underpayment.

The Migration Act already provides that employers who are approved sponsors may be barred from sponsoring additional migrant workers as a result of breaching their sponsorship

51. Approved Employers of Australia, Submission, Exposure Draft: Migration Amendment (Protecting Migrant Workers) Bill 2021, undated. 52. Approved Employers of Australia, Submission, 2. 53. LCA, Submission, Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into Migration Amendment

(Protecting Migrant Workers) Bill 2021, [Submission No. 20], 28 January 2022, 12-13. 54. LCA, Submission, Exposure Draft, 15. 55. Migrant Workers Taskforce, 124.

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Migration Amendment (Protecting Migrant Workers) Bill 2021 12

obligations.56 However, no such mechanism currently exists to prohibit employers who are not sponsors, or for breaches of workplace obligation towards workers on temporary visas which do not require sponsorship, such as student and working holiday visas. The provisions in Part 2 aim to fill this gap.

Key provisions Proposed section 245AYG establishes the framework under which a person may be declared a prohibited employer:

• the Minister may declare, in writing, a person who has become subject to a migrant worker sanction to be a prohibited employer (proposed subsection 245AYG(1)). ‘Migrant worker sanction’ is defined in proposed section 245AYD (discussed below)

• such a declaration may only be made within five years of the person being made subject to a migrant worker sanction (proposed subsection 245AYG(2))

• before making the declaration the Minister must write to the person advising that he or she proposes to make such a declaration, and the reasons for it, and inviting the person to make a written submission, within 28 days or a longer specified time period, as to why such a declaration should not be made (proposed subsections 245AYG(4) and (5))

• in deciding whether to make a declaration the Minister must consider any written submission received from the person within the required timeframe, and any criteria prescribed by the Regulations for this purpose (proposed subsection 245AYG(6))

• the person who is the subject of a declaration must be given a copy of the declaration as soon as reasonably practicable (proposed subsection 245AYG(7))

• a decision to declare someone a prohibited employer may be reviewed by the Administrative Appeals Tribunal (proposed subsection 245AYG(10)). A note to this subsection clarifies that people who are affected by the Minister’s decision must be given notice of their rights to seek review.57

Proposed section 245AYD provides that a person is subject to a ‘migrant worker sanction’ if they are:

• an approved work sponsor who is subject to a bar imposed by the Minister under paragraph 140M(1)(c) or (d) of the Migration Act

• convicted of an offence or subject to a civil penalty order for contravention of a work-related offence or civil penalty provision under the Migration Act or

• the subject of an order made under the Fair Work Act for contravention of a civil remedy provision specified in proposed section 245AYE of the Migration Act, but only where the contravention is in relation to an employee who is a non-citizen.

There are 18 civil remedy provisions contained in the Fair Work Act specified in proposed section 245AYE, which cover:

• contravening the National Employment Standards, a modern award, an enterprise agreement, a workplace determination, a national minimum wage order, or an equal remuneration order

• method and frequency of payment

• unreasonable requirements to spend or pay

• complying with guarantee of annual earnings

56. Migration Act 1958, section 140M. 57. Administrative Appeals Tribunal Act 1975, section 27A.

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• misrepresenting employment as an independent contracting arrangement or dismissing an employee to engage them as an independent contractor and

• employer obligations in relation to employee records and pay slips.

While the Bill lists an additional five civil remedy provisions to those listed in the Exposure Draft of the Bill, in some cases only a ‘renumeration-related contravention’ of a civil penalty provision of the Fair Work Act will result in a person being subject to a migrant worker sanction.58

Proposed section 245AYH provides that a prohibited employer may not allow, or have a material role in allowing, a non-citizen (other than a permanent visa holder) to begin work. The wording of this section provides that the prohibition will only apply to new employees, not to employees who are employed by the employer prior to them becoming a prohibited employer. It also provides that it will not apply to non-citizens who hold a permanent visa. This is consistent with the policy intent of the Bill to provide protections for temporary migrant workers, in line with the Recommendations of the Migrant Workers’ Taskforce. This is a civil penalty provision, with a maximum penalty of 240 penalty units (currently equivalent to $53,280) for an individual or 1,200 penalty units (currently equivalent to $266,400) for a body corporate.59

The prohibition does not apply in relation to work that is ‘merely incidental to a business of the person or body corporate’.60 This exception was not included in the Exposure Draft of the Bill. The Explanatory Memorandum states that the intention of this exception is ‘to cover circumstances where a person may have limited choice but to engage the services of a non-citizen temporarily or on an ad hoc basis as an independent contractor - for example to undertake repairs at the prohibited employer’s business premises, or to provide occasional catering services’.61

The meanings of ‘work’ and ‘allows to work’ for the purposes of proposed Subdivision E are established by proposed section 245AYC. ‘Work’ is defined as any work, whether for reward or otherwise, meaning this will capture voluntary work, or work done in exchange for food or board, as well as paid work.62

The following arrangements are taken to meet the definition of ‘allows’ to work:

• employment under a contract of service

• engagement, other than in a domestic context, under a contract of service

• participation in an arrangement for the non-citizen to perform work, either for the person or for another participant in the arrangement

• bailing or licensing a chattel to a non-citizen or other person with the intention that the non-citizen will use the chattel to perform a transportation service

• leasing or licensing premises, or space within premises to the non-citizen or other person with the intention that the non-citizen will use the premises to perform sexual services or

• circumstances as prescribed in the Migration Regulations 1994.63

58. Proposed section 245AYF of the Migration Act defines renumeration-related contravention, in relation to a civil remedy provision of the Fair Work Act, to mean a contravention relating to the: (a) underpayment of wages, or other monetary entitlements of employees (b) unreasonable deduction of amounts from amounts owed to employees (c) placing of unreasonable requirements on employees to spend or pay amounts paid, or payable, to employees (d) method or frequency of amounts payable to employees in relation to the performance of work. 59. Paragraph 486R(5)(a) of the Migration Act. 60. Proposed subsection 245AYH(2), Migration Act. 61. Explanatory Memorandum, 33-34. 62. Explanatory Memorandum, 25. 63. Proposed subsection 245AYC(2), Migration Act.

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Migration Amendment (Protecting Migrant Workers) Bill 2021 14

This provision is intended to be broad enough that it captures traditional employer-employee relationships, as well as non-standard arrangements which are common to industries in which migrant workers may be vulnerable, such as construction, taxi driving, hospitality, and sex work.64 Contracts for services in a domestic context are specifically excluded. The Explanatory Memorandum notes that this section is not intended to prevent prohibited employers from engaging the services of contractors, such as tradespeople or cleaners, in their homes where those contractors are non-citizens.65 However, the exclusion is not intended to apply to domestic services in a commercial context. The intended effect is that a prohibited employer would be permitted to contract a non-citizen on a temporary visa to clean their home but would not be permitted to hire that person as a domestic cleaner in a cleaning business owned by the prohibited employer.66

Proposed subsection 245AYC(2) also includes a power to make Regulations prescribing any other forms of work arrangements for the purposes of proposed Subdivision E. This is intended to prevent employers from developing new working arrangements that do not fit into one of the arrangements specified in proposed subsection 245AYC(2) in order to avoid being captured by these provisions. Any such arrangements that emerge may be prescribed in the Migration Regulations.67

Proposed Subdivision E also provides that the Minister must publish information about prohibited employers on the Department’s website (proposed section 245AYI). This information must include the name of the prohibited employer, the prohibited employer’s ABN if they have one, the reason for declaring them to be a prohibited employer, and the period for which the prohibition applies. When a person ceases to be a prohibited employer they may once again allow non-citizens to begin work but will be subject to additional reporting requirements for a further 12 months (proposed section 245AYJ) and may still have their name and other information listed on the Department’s website (proposed subsection 245AYI(6)).

Proposed section 245AYK provides that the provisions in proposed Subdivision E, and existing sections 494A to 494D of the Migration Act (which concern the giving of documents to a person by the Minister and the receipt of such documents) as they relate to proposed Subdivision E, are an

exhaustive and comprehensive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with. As discussed above, this was noted as an issue of concern by the Scrutiny of Bills Committee. The LCA agrees with the Scrutiny Committee’s views on this issue.68

Item 11 provides that the Minister may only declare a person to be a prohibited employer where the person has been subject to a migrant worker sanction on or after the commencement of Schedule 1 of the Bill, though the conduct leading to the sanction may occur before, on or after commencement of Schedule 1.

Stakeholder comments Submissions on the Exposure Draft of the Bill generally welcomed the establishment of a prohibited employer declaration scheme for employers of temporary migrants, however some notable concerns were raised over how the scheme will operate.

64. Explanatory Memorandum, 25. 65. Explanatory Memorandum, 25-26. 66. Explanatory Memorandum, 25-26. 67. Explanatory Memorandum, 27. 68. LCA, Submission, Inquiry into the Migration Amendment (Protecting Migrant Workers) Bill 2021, 22.

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Exclusion of work done in a domestic context The exclusion of work performed ‘in a domestic context’ was highlighted by the LCA and the Australian Chamber of Commerce and Industry (ACCI) as an issue of concern in their submissions on the Exposure Draft. As set out above, the Explanatory Memorandum states that this is to ensure that persons who are prohibited employers may still engage non-citizens to perform work in their house, such as hiring cleaners or tradespeople when required. However, the term ‘domestic context’ is not defined anywhere in the Bill itself, nor in the Migration Act.

The LCA pointed to the issue of forced labour in domestic contexts, and questioned whether it is appropriate to exclude domestic work performed in a person’s home from the meaning of ‘allows to work’ given the known incidence of exploitation of domestic workers in Australia.69 It also noted that the Federal Court has recently accepted that the Miscellaneous Award 2010 governs the domestic employment of a nanny and ordered a penalty payment for breaching the terms of that award.70 Yet with work done in a domestic context being excluded from the employer prohibition framework established by Part 2, persons declared to be a prohibited employer would not be prevented from contracting the services of a non-citizen to work as a nanny in their home.

Adverse impacts on employees and employers Some stakeholders have noted the potential for prohibited employer status to have an adverse effect on employees, as well as employers.71 In a situation where temporary visa holders are the primary labour source for a particular employer, prohibited employer status may have a substantial impact on an employer’s ability to hire new staff, and therefore on the business’s continued viability. This would of course negatively impact the employer but could also be detrimental to migrant workers who are already employed by that business. The ACCI pointed out in its submission on the Exposure Draft that there could also be flow on effects for towns and communities reliant on particular employers.72

The Explanatory Memorandum addresses this issue, noting that proposed paragraph 245AYG(6)(b) requires the Minister to consider any criteria prescribed by the Regulations when deciding whether to declare someone a prohibited employer, and anticipating that such criteria could include matters relating to the impact on the viability of a business, and the capacity of the business to recruit new employees.73 However, these criteria will be established in the Migration Regulations, not in statute, and the provision only requires that the Minister ‘consider’ such criteria. The Minister will not be required to give particular weight to any of the criteria prescribed by the Migration Regulations in making a decision to declare a person a prohibited employer.

Ministerial discretion and delegated legislation The LCA also expressed concerns regarding the broad nature of the Minister’s power to declare a person a prohibited employer. As discussed above, while proposed paragraph 245AYG(6)(b) allows Regulations to prescribe criteria that the Minister must consider, the Minister retains a high-level of discretion in declaring persons to be prohibited employers. The Explanatory Memorandum notes examples of the kinds of criteria that might be prescribed in the Migration Regulations.74 However these examples are given ‘without limiting the criteria’, and the Bill itself

69. LCA, Submission, Exposure Draft, 22 and Submission, Inquiry into the Migration Amendment (Protecting Migrant Workers) Bill 2021, 26. 70. LCA, Submission, Exposure Draft, 22. See Fair Work Ombudsman v Lam [2021] FCA 205 (11 March 2021). 71. For example see LCA, Submission, Inquiry into the Migration Amendment (Protecting Migrant Workers) Bill 2021, 27-28. 72. ACCI, Submission, Exposure Draft, 16. 73. Explanatory Memorandum, 30. 74. Explanatory Memorandum, 30.

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does not contain any guidance or limits on what criteria may be prescribed.75 Nor is any guidance or time limit applied to the period for which the Minister may declare a person to be a prohibited employer.76

The LCA argued that a principle of the rule of law requires executive power to be defined by law, and the scope of delegated authority to be ‘carefully confined’.77 It therefore recommended that the Bill be amended to provide detail around the criteria applying to the Minister’s discretionary power, and guidance or statutory limits around the length of time an employer may be subject to a declaration.78

Part 3—Use of computer system to verify immigration status Part 3 of Schedule 1 establishes a framework requiring a person to use the Department of Home Affairs’ Visa Entitlement Verification Online (VEVO) system to determine whether a person is a lawful non-citizen, and has permission to work in Australia, either when allowing the non-citizen to work, or referring them for work. VEVO is a searchable database allowing visa holders, employers, educational institutions and other registered organisations to check the visa details of persons in the system. Organisations wishing to access VEVO must be approved by the Department of Home Affairs, and differing levels of access are given based on business requirements. For example, employers will be given access to information on a visa-holder’s work entitlements, but not on their study entitlements or whether they are eligible for Medicare.79

Key provisions Item 15 repeals and replaces existing subsection 245AB(2) of the Migration Act which currently provides for an exception to the civil penalty provision, and related offence, of allowing an unlawful non-citizen to work contained in existing subsection 245AB(1). Currently, a person is taken not to have contravened subsection 245AB(1) if they ‘take reasonable steps at reasonable times’ to verify that that the worker is not an unlawful non-citizen, including (but not limited to) using a computer system prescribed in the Regulations, or doing any one or more things prescribed in the Regulations.80

Proposed subsection 245AB(2) provides that a person is taken not to have contravened subsection 245AB(1) if a person is, and continues to be, reasonably satisfied that the worker is not an unlawful non-citizen on the basis of information obtained by one of the following means:

• use of the prescribed computer system (proposed paragraph 245AB(2)(a)). ‘Prescribed computer system’ is defined in proposed section 245APE as ‘the computer system prescribed by the Regulations’. The Explanatory Memorandum states that it is intended that VEVO will be the prescribed system81

• under an arrangement by which another person uses the prescribed computer system to source the information, unless the first person is a ‘required system user’ (proposed paragraph 245AB(2)(b)). Examples given under proposed subsection 245AB make clear that this would

75. Note that subsection 504(1) of the Migration Act provides that Regulations made by the Governor-General must not be inconsistent with the Act. 76. Proposed subsection 245AYG(9) of the Migration Act provides that a declaration has effect during the period specified in the declaration (unless sooner revoked). 77. LCA, Submission, Exposure Draft, 20 and Submission, Inquiry in Migration Amendment (Protecting Migrant Workers) Bill 2021,

18.

78. LCA, Submission, Inquiry into Migration Amendment (Protecting Migrant Workers) Bill 2021, 20-21. 79. ‘VEVO for Organisations’, Home Affairs, last updated 12 March 2021. 80. Migration Act, subsection 245AB(2). 81. Explanatory Memorandum, 60.

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Migration Amendment (Protecting Migrant Workers) Bill 2021 17

allow a third-party contractor or the worker themselves to use the computer system to source the information for the employer

• by doing any one or more of the things prescribed in the Regulations (proposed paragraph 245AB(2)(c)). Proposed subsection 245APA provides that if the relevant information cannot be sourced from the prescribed computer system, for reasons beyond the person’s control, then the information may be obtained by doing one or more of the things prescribed in the Regulations for this purpose. The Explanatory Memorandum notes that this is intended to account for occasions on which VEVO may be unavailable due to planned outages, or where information on particular individuals is not available in VEVO, but does not elaborate on what specific actions may be prescribed for this purpose.82

Items 16 to 18 make the same amendments to the exceptions contained in existing subsections 245AC(2) (allowing a lawful non-citizen to work in breach of a work-related condition), 245AE(2) (referring an unlawful non-citizen for work) and 245AEA(2) (referring a lawful non-citizen for work in breach of a work-related condition).

Item 19 inserts two new sections which provide that a person must not allow a non-citizen to begin work (proposed section 245AEC) and a person who operates a service referring other persons for work must not refer a non-citizen for work (proposed section 245AED) unless they have determined that the non-citizen has the required permission to work. This determination must be based on information obtained through use of the prescribed computer system, or under an arrangement through which another person uses the prescribed computer system (unless the first person is a required user). These are civil penalty provisions, for which a penalty of 48 penalty units will apply for an individual (currently equivalent to $10,656) or 240 penalty units (currently equivalent to $53,280) for a body corporate.83 The Explanatory Memorandum states that these provisions are intended to complement the new defence provisions in proposed subsections 245AB(2), 245AC(2), 245AE(2) and 245AEA(2).84

Many employers already use VEVO on a voluntary basis to establish that a non-citizen has permission to work in Australia before employing them. These provisions establish an express statutory requirement that employers must use VEVO prior to employing a non-citizen, to confirm their entitlement to work. In effect, every person who employs a non-citizen, or refers a non-citizen for work through a referral service, will be legally required to confirm through VEVO that the non-citizen has the required permission to work. To do so, they will need to log in to VEVO themselves; have a third-party contractor log in to VEVO on their behalf; or have the prospective worker log in to VEVO and email them the necessary information. However, where the information cannot reasonably be sourced from VEVO, proposed subsection 245APA provides that information may alternatively be obtained by doing a thing prescribed in the Regulations.

These amendments all provide that a person may not rely on another person using VEVO for them if the first person is a ‘required system user’. Item 20 establishes the definition of ‘required system user’ through the insertion of proposed sections 245APB, 245APC and 245APD. Together, these provide that a required system user is:

• a person who has been a prohibited employer within the previous 12 month period

• a person who is included in a class of persons determined by the Minister by legislative instrument under proposed section 245APC. An instrument made under this provision is expressly disallowable (proposed subsection 245APC(3)) and

82. Explanatory Memorandum, 57. 83. Paragraph 486R(5)(a) of the Migration Act. 84. Explanatory Memorandum, 54, 56.

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• a person who is declared by the Minister under proposed section 245APD, by written notice to the person, that they are a required system user. A declaration to this effect, or a decision to renew a declaration, may be reviewed by the Administrative Appeals Tribunal (proposed subsection 245APD(5)).

Stakeholder comments The submissions that commented on Part 3 of the Exposure Draft of the Bill were largely focused on the wording in proposed sections 245AEC and 245AED, requiring VEVO to be used before employing or referring someone for work. In the Exposure Draft of the Bill these provisions used the term ‘person’ rather than ‘non-citizen’, leading several submitters to point out that this would require employers to use VEVO to check the work entitlements of all new employees, including Australian citizens.85 VEVO does not include information on Australian citizens. This concern has been addressed in the Bill as introduced, with the provisions now specifying that these requirements only apply to the employment of non-citizens.

There was also concern that mandating the use of VEVO would be overly onerous on employers, particularly small and family businesses which may not be familiar with the system.86

The Migrant Justice Institute is of the view that mandating the use of VEVO will do little to address the problem of migrant worker exploitation and may in fact have negative consequences for migrant workers. It believes that the requirements may lead to increased racial profiling on the part of employers in the context of determining which potential employees it should conduct VEVO checks for:

Among employers that seek to comply with Australian labour and migration laws, the proposed provisions in Part 3 are likely to result in targeting of job applicants from minority backgrounds for greater suspicion and scrutiny based on their appearance or accent. In the worst case, it may lead to preferencing of other applicants for a job due to perceived lower risk and administrative burden in relation to VEVO checks.87

The ACCI also noted the possibility of employers ‘assuming (even subconsciously) that they can minimise risk by employing or not employing people with particular characteristics…’.88

Part 4—Aligning and increasing penalties for work-related breaches Part 4 of Schedule 1 increases the pecuniary penalties for the existing work-related civil penalty breaches and related offences in the Migration Act, and for breaches under the current Sponsorship Obligations Framework in the Migration Act and Migration Regulations.

The Explanatory Memorandum states that this is ‘intended to send a strong message to employers and other persons involved in the employment of migrant workers that any contravention of the provisions of the Migration Act relating to migrant workers constitutes a serious breach’.89 The Department of Home Affairs argued in its context paper on the Exposure Draft of the Bill that existing penalty provisions are not providing a strong enough deterrent for some employers, and that such penalties are seen by some as ‘the cost of doing business’.90 Part 4 therefore provides for substantial increases in pecuniary penalties for these breaches.

85. For example, see ACCI, Submission, Exposure Draft, 34; and LCA, Submission, Exposure Draft, 27. 86. For example, see ACCI, Submission, Exposure Draft, 35, 40. 87. MJI, Submission, Inquiry into the Migration Amendment (protecting Migrant Workers) Bill 2021, 17. 88. ACCI, Submission, Exposure Draft, 35. 89. Explanatory Memorandum, 62. 90. Home Affairs, Context Paper, 8.

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Migration Amendment (Protecting Migrant Workers) Bill 2021 19

Items 22 to 27 and items 29 to 33 amend existing civil penalty provisions and related offences in the Migration Act to increase the maximum penalty units that apply.91 These amendments will align the penalties with those that will apply for the new offences and civil penalty provisions proposed in Part 1 of the Bill. The proposed amendments are summarised in Table 1.

Table 1: Summary of proposed increased penalties

Item number in Bill

Subsection of the Migration Act amended

Description Current

maximum penalty units

Proposed maximum penalty units

22 140Q(1) and

(2)

Failing to satisfy sponsorship obligations - civil penalty

60 ($13,320) Approved work sponsor - 240 ($53,280) Other - 60 ($13,320)a

23 245AB(3) Allowing an

unlawful non-citizen to work - offence

2 years imprisonment 2 years imprisonment or

360 penalty units ($79,920), or both

24 245AB(5) Allowing an

unlawful non-citizen to work - civil penalty

90 ($19,980) 240 ($53,280)

25 245AC(3) Allowing a lawful

non-citizen to work in breach of a work-related visa condition - offence

2 years imprisonment 2 years imprisonment or

360 penalty units ($79,920), or both

26 245AC(5) Allowing a lawful

non-citizen to work in breach of a work-related visa condition - civil penalty

90 ($19,980) 240 ($53,280)

27 245AD(1) and

(2)

Aggravated offences if a person allows, or continues to allow, another person to work

5 years imprisonment 5 years imprisonment or

360 penalty units ($79,920), or both

29 245AE(3) Referring an

unlawful non-citizen for work - offence

2 years imprisonment 2 years imprisonment or

360 penalty units ($79,920), or both

91. Items 28 and 34-35 of the Bill make technical amendments to the Migration Act to give effect to the increases in pecuniary penalties.

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Migration Amendment (Protecting Migrant Workers) Bill 2021 20

Item number in Bill

Subsection of the Migration Act amended

Description Current

maximum penalty units

Proposed maximum penalty units

30 245AE(5) Referring an

unlawful non-citizen for work - civil penalty

90 ($19,980) 240 ($53,280)

31 245AEA(3) Referring a lawful

non-citizen for work in breach of a work-related visa condition - offence

2 years imprisonment 2 years imprisonment or

360 penalty units ($79,920), or both

32 245AEA(5) Referring a lawful

non-citizen for work in breach of a work-related visa condition - civil penalty

90 ($19,980) 240 ($53,280)

33 245AEB(1)

and (2)

Aggravated offences if a person refers: • an unlawful non-

citizen or

• a lawful non-citizen in breach of a work-related condition

to a third person for work

5 years imprisonment 5 years imprisonment or

360 penalty units ($79,920), or both

a The Sponsorship Framework under the Migration Act extends to family sponsors as well as work sponsors. Family sponsors are outside the scope of this Bill, hence the increased penalty will only apply to approved work sponsors.

Sources: Migration Act and Migration Amendment (Protecting Migrant Workers) Bill 2021.

Parts 5 and 6—Enforceable undertakings and compliance notices for work-related breaches Parts 5 and 6 of Schedule 1 establish new compliance mechanisms for responding to breaches of

the work-related provisions and work-related offences in existing Subdivision C of Division 12 of Part 2 of the Migration Act, which deals with offences and civil penalties in relation to work by non-citizens. These measures were not specifically recommended by the Migrant Workers’ Taskforce but have been included in the Bill in an effort to enhance existing integrity measures.92 The Department of Home Affairs notes that enforceable undertakings and compliance notices are used by the FWO to ‘drive behavioural change without the need to prosecute all cases through the courts’ and argues that the use of these measures for breaches of work-related provisions in the Migration Act will ‘support higher levels of voluntary compliance’.93

92. Explanatory Memorandum, 79. 93. Home Affairs, Context Paper, 8.

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Enforceable undertakings Part 5 establishes arrangements for the Minister, or a delegate, to enter into an enforceable undertaking with an employer, labour hire intermediary, or other party that has breached work-related offences or provisions under the Migration Act, including the new civil penalty and offence provisions in Part 1. An enforceable undertaking is a written undertaking by a person that they will take specified action, or refrain from taking specified action, in relation to compliance with the provisions of an Act.94 Breaches of enforceable undertakings may be the subject of court action and orders.95

The Department of Home Affairs context paper on the Exposure Draft of the Bill stated that enforceable undertakings could be used ‘to address conduct that may have resulted in a breach of one or more work-related provisions in the Migration Act’ where a likely breach has been identified, the other party is willing to voluntarily address the issue, and they agree to take preventative actions in the future.96

Enforceable undertakings may already be used for breaches of sponsorship obligations under the Employer Sponsorship Framework set out in the Migration Act and Migration Regulations.97 However, not all temporary migrant workers are sponsored. These measures will extend the use of enforceable undertakings to employers of temporary migrant workers on visas that do not require sponsorship, such as international students and working holiday makers.

Item 36 inserts proposed section 245ALA, which triggers standard provisions for enforceable undertakings under Part 6 of the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act).

The Regulatory Powers Act commenced on 1 October 2014 and ‘provides for a standard suite of provisions in relation to monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions’.98 The Regulatory Powers Act only has effect where Commonwealth Acts are drafted or amended to trigger its provisions.

Proposed section 245ALA provides:

• enforceable undertakings will be available in relation to ‘work-related provisions’ and ‘work-related offences’ as defined in subsection 5(1) of the Migration Act (proposed subsection 245ALA(1)). The definitions of ‘work-related provisions’ and work-related offences’ are inserted into subsection 5(1) by Item 7 in Part 2 of the Bill

• the Minister is an authorised person for the purposes of Part 6 of the Regulatory Powers Act (proposed subsection 245ALA(2)). An authorised person may accept enforceable undertakings and apply to a relevant court if they consider the undertaking has been breached99

• the Minister may delegate his or her power under Part 6 of the Regulatory Powers Act to an authorised officer, if the Minister is satisfied the authorised officer has appropriate qualifications, training or experience (proposed subsections 245ALA(3) and (4)), and the delegated authorised officer must comply with any directions of the Minister (proposed

94. Regulatory Powers (Standard Provisions Act) 2014, section 114. 95. Regulatory Powers (Standard Provisions Act) 2014, section 115. 96. Home Affairs, Context Paper, 8. 97. Migration Act, section 140RA. 98. ‘Regulatory powers’, Attorney-General’s Department. For further information on regulatory powers, see: Christina Raymond,

‘Regulatory Powers (Standardisation Reform) Bill 2016’, Bills Digest, 42, 2016-17, (Canberra: Parliamentary Library, 2016), and Claire Petrie, ‘Regulatory Powers (Standardisation Reform) Bill 2020’, Bills Digest, 49, 2020-21, (Canberra: Parliamentary Library, 2021). 99. Regulatory Powers (Standard Provisions Act) 2014, sections 114 and 115.

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subsection 245ALA(5)). The Explanatory Memorandum states that ‘in general the delegation of the Minister’s powers and functions will be confined to members of the Department’s SES or ABF officers at Commander level or higher’, but acknowledges that such powers may be delegated to certain officers below these levels from time to time, ‘where the Minister is satisfied… that that authorised officer has the appropriate qualifications, training or experience to exercise the power or perform the function’100

• an eligible court for the purposes of Part 6 of the Regulatory Powers Act is a relevant court in relation to work-related provisions or work-related offences under the Migration Act (proposed subparagraph 245ALA(6)). The Migration Act defines an eligible court as: the Federal Court; the Federal Circuit and Family Court (Division 2); a District, County or Local Court, a magistrates court; or any other state or territory court prescribed by the Regulations.101 Hence, any of these courts will be relevant courts for the purposes of making orders in relation to breaches of enforceable undertakings

• an enforceable undertaking may be published on the internet (proposed subsection 245ALA(7))

• the enforceable undertakings powers extend to a territory to which the Migration Act extends (proposed subsection 245ALA(8)). A note under this proposed subsection refers to section 7 of the Migration Act, which provides that the Migration Act extends to the territories of Norfolk Island, the Coral Sea Islands, Cocos (Keeling) Islands, Christmas Island, and Ashmore and Cartier Islands102

• the Minister must not apply for a civil penalty order under subsection 486R(1) of the Migration Act (which relates to pecuniary penalties) in relation to a contravention of a work-related provision if an undertaking in relation to that contravention is in place and has not been withdrawn (proposed subsection 245ALA(9)). This is intended to ensure that the Minister does not pursue multiple enforcement mechanisms for civil penalty breaches at the same time.103

Related amendments in Part 7 Section 140RA of the Migration Act already provides for enforceable undertakings in relation to the obligations of sponsors (as prescribed in section 140H).104 The provisions in proposed section 245ALA as set out above will mirror these existing provisions in relation to relevant courts, power to publish on the internet and extension to external territories. However, the existing provisions do not currently provide for the Minister to delegate his or her power and functions regarding enforceable undertakings. Part 7 of the Bill seeks to amend this, to align the existing enforceable undertaking provisions with proposed section 245ALA. Hence, Item 41 amends existing section 140RA to provide that the Minister may delegate his or her power under this section to an authorised officer if satisfied that the person has appropriate qualifications, training or experience, and the authorised officer must comply with any directions given by the Minister.

Compliance notices Part 6 establishes a framework to enable an authorised officer to issue a compliance notice as an alternative to court proceedings for contraventions of work-related provisions of the Migration Act.

The Explanatory Memorandum states that the purpose is to ‘enhance the compliance and enforcement framework relating to the work-related offences and work-related provisions of the Migration Act’ (emphasis in original) and that compliance notices will ‘provide the necessary

100. Explanatory Memorandum, 81. 101. Migration Act, subsection 5(1). 102. Migration Act, section 7. 103. Explanatory Memorandum, 83. 104. Migration Act, section 140RA.

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flexibility to require a person to take specific action to address the underlying non-compliance, based on the circumstances of the individual case’.105

Item 38 inserts proposed section 245ALB into Subdivision C of Division 12 of Part 2 of the Migration Act. Key elements of the provision include:

• if an authorised officer reasonably believes a person is engaging in, or has engaged in, conduct that constitutes a work-related offence, or contravention of a work-related provision (proposed subsection 245ALB(1)) the authorised officer may give the person a compliance notice specifying action the person must take, or refrain from taking, to address the conduct (proposed subsection 245ALB(2))

• the compliance notice may require the person to produce evidence of compliance with the notice (proposed subsection 245ALB(3))

• the compliance notice must set out the name of the person to whom it applies, the name of the authorised officer, a summary of the conduct on which it is based, an explanation that failure to comply may contravene a civil penalty provision, an explanation of the person’s right to apply for judicial review on specified grounds, and any other matters prescribed by regulation (proposed subsection 245ALB(4)). Rights to judicial review in the Federal Circuit and Family Court (Division 2) are established by proposed subsection 245ALB(8)

• a person given a compliance notice must comply with that notice, and contravention of this requirement attracts a maximum civil penalty of 48 penalty units ($10, 656) (proposed subsection 245ALB(5))

• compliance with a compliance notice is not taken to constitute admission to engaging in the conduct in relation to which the notice is given (proposed subsection 245ALB(6))

• the Minister must not apply for a civil penalty order under subsection 486R(1) of the Migration Act (which relates to pecuniary penalties) in relation to a contravention of a work-related provision if a compliance notice has been given in relation to that contravention and either: the notice has not been withdrawn and the person has complied with it; or the person has applied for judicial review and the matter has not been completely dealt with (proposed subsection 245ALB(7)).

Retrospective application Item 40 provides that the compliance notice scheme introduced by Part 6 of the Bill will apply in relation to conduct occurring before, on, or after commencement of Schedule 1. Hence, a compliance notice will be able to be issued with respect to a person’s conduct that has occurred prior to the commencement of the Bill.

The LCA noted this as an issue in its submission on the Exposure Draft of the Bill, stating that ‘laws imposing additional obligations and consequences should be prospective unless appropriately justified’ and recommending that justification for retrospective application be given in the explanatory material to the Bill.106

The Explanatory Memorandum justifies retrospective application of these provisions on the basis that:

Aside from the new work-related offences and civil penalty provisions introduced in this Bill, the work-related offences and work-related provisions in Subdivision C of Division 12 of Part 2 of the Migration Act are long-standing, well-established provisions.

105. Explanatory Memorandum, 85. 106. LCA, Submission, Exposure Draft, 17.

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There is limited excuse for employers, labour hire intermediaries and other parties involved in the employment of non-citizens to be unaware of these existing provisions.107

The LCA submission to the Senate inquiry on the Bill acknowledged this explanation, but noted that the provisions would still apply retrospectively in relation to conduct captured by the new offences introduced by the Bill, and suggested the Bill be amended so that this would not be the case.108

Concluding comments The Bill implements two key Recommendations of the report of the Migrant Workers’ Taskforce and contains additional measures aimed at strengthening employer compliance with obligations relating to the employment of migrant workers. Stakeholder comments on the Exposure Draft of the Bill indicated broad support for the policy intent, but scepticism that the measures would achieve the desired intent. The Bill as introduced is substantially the same as the Exposure Draft and issues concerning the efficacy and impact (including unintended negative impacts) of the measures therefore continue to concern stakeholders.

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107. Explanatory Memorandum, 89. 108. LCA, Submission, Inquiry into the Migration Amendment (Protecting Migrant Workers) Bill 2021, 34.