|
|||
|
|||
|
|
| 2004/05 |
2005/06 |
2006/07 |
|
|---|---|---|---|
| 100 per cent of subclass 457 visa sponsors monitored for compliance with visa conditions. |
96.60 |
65.20 |
58.00 |
| 25 per cent of subclass 457 visa sponsors site visited at place of employment. |
22.40 |
18.00 |
13.70[28] |
This Bill will make changes to existing monitoring arrangements. Most significantly, under the proposed amendments:
There are a number of actions that may currently be taken with respect to sponsors found to be in breach of a sponsorship undertaking (or former standard business sponsors against whom an undertaking remains enforceable). Existing section 137B of the Migration Act provides express statutory authority for the Minister to cancel a sponsorship approval. The Regulations prescribe the grounds for cancelling business sponsorship approvals under section 137B of the Act.[29] These include providing incorrect or false information to DIAC, failing to comply with sponsorship undertakings, and not continuing to satisfy the requirements for approval as a standard business sponsor.
In addition, existing section 140L lists the actions that may (or must) be taken under existing sections 140J and 140K.[30] These include cancelling the sponsorship for specified kinds of temporary visas or all kinds of visas, barring the sponsor for a specified period from sponsoring more people under one or all existing approvals, or barring the sponsor for a specified period from making future applications for approval as a sponsor etc. An authorized officer may also require and take a ‘security’ (which is akin to a bond) under existing section 269 or enforce a security already taken.
According to DIAC’s 2006/07 Annual Report, ‘during the year 313 sponsors were formally warned and 95 sponsors had a bar imposed on sponsoring further workers, including 14 who had their sponsorship agreement cancelled’.[31]
This Bill will introduce new civil penalties that may apply to sponsors. Most significantly, under the proposed amendments:
On the 15 October 2008, the Senate Selection of Bills Committee referred this Bill to the Legal and Constitutional Affairs Committee for inquiry and report by 7 November 2008. The reasons for referral/principal issues for consideration included ‘issues about retrospectivity, additional red tape, compliance costs and additional visa holder costs to be met by sponsors will disadvantage small employers’.[34]
This Bill has also been considered by the Senate Standing Committee for the Scrutiny of Bills which commented on three aspects of the Bill. Namely, its commencement more than six months after assent (which the Committee noted was due to reviews being conducted by persons and bodies not directly under the control of the Minister), investigators power to enter ‘another place’ without warrant (the rationale for which the Committee accepted), and the abrogation of the privilege against self-incrimination (which the Committee found struck a reasonable balance between the competing interests of obtaining information and protecting individuals’ rights).[35]
The issue of monitoring and enforcement of temporary business visas has been the subject of a previous inquiry by the Joint Standing Committee on Migration. Similarly, provisions of the 2007 Sponsorship Obligations Bill have previously been the subject of an inquiry by the Senate Legal and Constitutional Affairs Committee. Accordingly, the following information is provided for historical reference.
On 6 December 2006, the Joint Standing Committee on Migration was tasked with inquiring ‘into the eligibility requirements and monitoring, enforcement and reporting arrangements for temporary business visas’.[36] The report of the inquiry, entitled ‘visas...permanent benefits: ensuring the effectiveness, fairness and integrity of the temporary business visa program’ was subsequently tabled on 12 September 2007.[37] Importantly, the Sponsorship Obligations Bill was announced late in the inquiry process after the majority of evidence had been received by the Committee. Therefore, it did not examine the legislation or its proposed effect in any great detail.[38]
Nonetheless, the Committee found that a central theme that emerged in the evidence it received was broad support for a stronger monitoring and compliance regime, as this would reinforce the integrity of the program and reduce exploitation of subclass 457 visa holders.[39]
In noting that several inquiry participants raised concerns about the small number of sponsors monitored by DIAC and the low rate of site visits,[40] the Committee found that the following issues were identified by a range of organisations about DIAC’s existing monitoring, reporting and enforcement arrangements:
A number of suggestions for improvement were put forward to the Committee by a range of organisations. Some of these were adopted by the Sponsorship Obligations Bill and are in the present Bill. The recommendations included:
Relevantly, the Joint Committee made the following recommendations in relation to compliance arrangements:
As previously mentioned, the Senate Legal and Constitutional Affairs Committee inquiry into the provisions of the Sponsorship Obligations Bill of 2007 tabled its report on 7 August 2007. The Committee considered that the Bill:
represents a justifiable measure to better ensure the integrity of the 457 visa system. The obligations contained in the Bill are generally aimed at reflecting, in legislation, the existing undertakings that must be observed by sponsors employing workers under the 457 visa scheme. The Bill further aims to ensure these obligations are met without being circumvented by employers undermining stipulated minimum salary levels by passing on costs to employees. The Committee supports both these objectives.[44]
The Committee also noted that matters relating to greater investigative powers of departmental officers and stronger penalties were not in dispute during the inquiry.[45]
Submissions to the Committee canvassed a number of concerns. For example:
The Committee recognised that although it was undesirable to have retrospective application of laws, in the case of 457 visas and the length that current visas may run, that it was impractical for the law not to apply to these visas as well.[47]
The Committee recommended that the Bill be passed subject to the following recommendations:
The National Secretary of the Construction, Forestry, Mining and Energy Union (CFMEU), Mr John Sutton, is reportedly supportive of the Bill. In an article in the Australian Financial Review he is quoted as having said the bill is ‘positive’ and represents steps in the right direction,
He wanted the new obligations to apply retrospectively and cover all 457 visa holders, not just those who arrived following the introduction of the legislation. Otherwise there would be a "duality" among such workers, where some would benefit from the greater protections while others would not.[48]
In the same article, Immigration analyst Bob Kinnaird is quoted as having said ‘the bill was ‘overdue’, considering the Howard government tried to introduce a similar piece of legislation in June last year’.[49]
Federal shadow immigration minister, the Hon Dr Sharman Stone MP’s response was reportedly as follows, ‘she would support sweeping changes to the 457 visa scheme, admitting it had led to cases of exploitation’,
Dr Stone said the scheme which allows temporary migrants to enter to the country to fill short-term vacancies had been extraordinarily successful. "Of course just one case of exploitation is one too many; therefore it is important that this program evolves to a tighter regime," she said.[50]
The Explanatory Memorandum states that the Bill will have minimal financial impact. Whilst making reference to the $19.6 million allocated under the 2008/09 Budget to improve the temporary skilled migration program, it also states that there will be ‘modest revenue’ from the new civil penalties and infringement notices regime.[51]
Item 9 repeals existing Subdivision GA of Division 3 of Part 2 of the Migration Act (relating to the cancellation of approval as a business sponsor). While item 12 repeals sections 140B (‘sponsorship as a criterion for prescribed visas’), 140C (‘Sponsorship as a criterion for valid visa applications), and 140D (‘Approved sponsor’).
The proposed new definition of ‘approved sponsor’ contained in subsection 5(1) will include:
Items 1 – 8 insert various definitions into subsection 5 of the Migration Act (the interpretation section).
Item 15 broadens existing section 140E (Approving sponsor) by inserting subsection (3) which provides that different criteria for approval as a sponsor may be prescribed in the regulations for different purposes. Namely:
Items 16 similarly provides that different processes may be prescribed for different kinds of visa and different classes in relation to which a person may be approved as a sponsor. Item 17 provides that the actual term of approval as a sponsor may be prescribed by the regulations and different terms may be prescribed for different kinds of visa and different classes in relation to which a person may be approved as a sponsor. Item 18 inserts proposed section 140GA which similarly provides that the regulations may also create a process for the Minister to vary a term of a person’s approval as a sponsor. Subsection (3) states that different processes and different criteria may be prescribed.
Proposed section 140GB relates to nomination. The Explanatory Memorandum notes that an express power to prescribe a process and criteria in relation to nomination is required because nomination will no longer be part of the process of becoming an approved sponsor, rather a nomination will be made by a person who is already an ‘approved sponsor’ (as defined).[54] Subsection (1) provides that the sponsor may nominate either:
Though the Minister must approve a nomination if the prescribed criteria are satisfied, subsection (4) provides that different criteria and different processes may be prescribed for different kinds of visa and different classes in relation to which a person may be approved as a sponsor.
Proposed section 140GC provides that the regulations may prescribe requirements that work agreements must satisfy.
Item 19 repeals sections 140H – 140M which relate to the current sponsorship system.
Proposed section 140H provides that a person who is (or was) an approved sponsor must satisfy their sponsorship obligations which are prescribed by the regulations. A note is to be inserted which lists the types of obligations that might be prescribed. These include the obligation to pay a minimum wage, to pay to the Commonwealth certain costs, to pay the costs of the departure from Australia of the person being sponsored by them etc. Proposed subsections 2 and 3 provide that persons who have a work agreement that may contain other sponsorship obligations or a term that varies a sponsorship obligation must also comply with such other or varied undertakings. The proposed amendment also expressly provides that the regulations may require a person to satisfy the sponsorship obligations in respect of each visa holder or generally. Furthermore, different sponsorship obligations may be prescribed for different kinds of visa and different classes in relation to which a person may be, or may have been, approved as a sponsor. Existing section 140H states that the undertakings only have effect if the applicant consents in writing and do not have effect until the visa is granted. Significantly, neither of these restrictions are retained in proposed section 140H.
Proposed section 140J provides that if an amount is payable (under the regulations) by an approved sponsor in relation to a sponsorship obligation, then they are not liable to pay the Commonwealth more than:
Importantly, an approved sponsor is deemed not to have satisfied the sponsorship obligation if they are reimbursed an amount payable under the regulations by the visa holder, or on behalf of the visa holder (proposed subsection 140J(3)).
The sanctions that may be imposed on approved sponsors are set out in three interlinked provisions. Namely, proposed sections 140K, 140L and 140M.
Proposed section 140K does not give the authority to impose a sanction rather, it provides a list of actions that may be available under other provisions. It provides that if a sponsor fails to satisfy a sponsorship obligation one or more of the following actions may be taken:
This action (excluding cancellation) may also be taken against former approved sponsors under subsection (2).
Proposed section 140L provides that the regulations may prescribe the circumstances in which the Minister may take action and the circumstances in which the Minister must do so. To this end, the Regulations may prescribe the circumstances in which the Minister may take one of more of the actions outlined in proposed section 140M. These circumstances may be circumstances that are not in relation to a failure to satisfy a sponsorship obligation. Different circumstances and criteria may be prescribed for different kinds of visa and different classes in relation to which a person may be, or may have been approved as a sponsor (in circumstances in which the Minister must take action).
Proposed section 140M outlines the action that may be taken in relation to approved sponsors if regulations are prescribed under section 140L. These include:
Subsection (2) outlines the action that can be taken in relation to former approved sponsors.
Under proposed section 140Q, if a person fails to satisfy a sponsorship obligation in the manner (if any), or within the period (if any), prescribed in the Migration Regulations or in a work agreement they will incur a civil penalty. The maximum penalty for an individual is 60 penalty units and for a body corporate 300 penalty units. Section 4AA of the Crimes Act 1914 defines a penalty unit as $110 (as inserted by item 6). Criminal penalties have not been used for the reasons set out in the Explanatory Memorandum,
Civil penalties have been preferred to criminal penalties as the appropriate sanction in this context as a sponsor’s conviction for a criminal offence may have unintended consequences. For example the mere fact of a criminal conviction may mean that the sponsor loses entitlements to licences or other things essential to their business or livelihood, and this outcome would not be in Australia’s best interests.
The use of civil penalties is also considered appropriate for the enforcement scheme to be flexible and administratively manageable. In addition, civil penalties facilitate the infringement notice scheme provided for in proposed new section 140R (inserted by item 27).[55]
Proposed section 140R will enable the making of regulations to enable a person who is alleged to have contravened a civil penalty provision to pay a specified penalty as an alternative to civil penalty proceedings. For example, if a person was in breach of an obligation, instead of proceedings being instituted against that person for the recovery of a penalty, they would be given the option of paying a prescribed penalty that would not exceed one-fifth of the maximum penalty.
Proposed section 140S provides that a payee (the Commonwealth, a State or Territory or another person) may recover an amount owed to them in an ‘eligible court’ as defined in item 1. Proposed section 140SA provides that a party to such proceedings may apply to receive interest up to judgment. Alternatively the Court may instead order that a lump sum be included instead of interest. Situations where this does not apply are set out in proposed subsection 140SA(3). Proposed section 140SB outlines the interest applicable to a judgment debt.
Proposed section 140SC provides that certain persons commencing proceedings under proposed section 140S may choose to proceed under a small claims procedure. Though this option is normally only available if the amount to be recovered does not exceed $5000, the proceedings will be informal and the court will not be bound by technicalities or the rules of evidence. However, a person is not entitled to legal representation in such proceedings unless allowed by the Court (proposed paragraph 140SC(2)(d)).
Item 30 repeals existing Subdivision C (‘Application of the sponsorship system to partnerships and unincorporated associations’) and inserts new Subdivision F – Inspectors. Proposed subsection 140V(1) provides that the Minister may appoint an inspector or a class of persons to be inspectors by written instrument. Proposed subsection (3) provides that the Act or regulations will confer the powers and functions of an inspector. Proposed section 140W provides that the Minister must issue an identity card to an inspector. The inspector must carry the card at all times when exercising the powers and functions of an inspector (proposed subsection 140W(3)).
Proposed subsection 140X provides that the purpose of inspectors is to determine whether a sponsorship obligation is being, or has been complied with, or a purpose prescribed by the regulations. Subsection (2) lists the powers of inspectors. They include:
The powers may be exercised outside working hours where considered necessary in order to achieve the purpose of the inspectors mentioned above.
The power of inspectors to enter ‘business premises or another place’ without force, but also without a warrant, is not too dissimilar to the powers exercisable by workplace inspectors under the Commonwealth’s Workplace Relations Act 1996.[57] However, comparable State and Territory legislative regimes do not appear to grant inspectors such broad powers. For example, workplace health and safety inspectors appointed under Queensland’s Workplace Health and Safety Act 1995 may only enter a (non-public) workplace if its occupier consents to the entry or the entry is authorized by a warrant issued by a magistrate.[58] Similarly, though the Commonwealth’s Workplace Relations Act 1996 provides that a workplace inspector’s powers can be conferred by the Act, the regulations or by another Act[59], Queensland’s Workplace Health and Safety Act 1995 provides that an inspector’s powers may instead be limited under a regulation, a condition of appointment or by written notice.[60]
As noted in the Explanatory Memorandum, the powers conferred on inspectors by subsection 140X(2) are not in accordance with the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers.[61] The Guide relevantly states:
‘Legislation should only authorise entry to premises under warrant or by consent, or in a limited range of other circumstances such as a condition of a licence. In all cases, any departure from this general rule requires justification’.[62]
The justification provided in the Explanatory Memorandum is that:
[It] is necessary for inspectors appointed under new section 140V to have similar powers as Workplace Inspectors, as it is probable that Workplace Inspectors will also be appointed as inspectors under new section 140V. If so, it would be intended that the Workplace Inspectors will exercise their powers for the purposes of both the Workplace Relations Act 1996, and the purposes in section 140X(1), concurrently.[63]
Notwithstanding this justification, it is worth noting that according to the Guide, the Senate Committee view is that ‘legislation should authorise entry without consent or warrant only in ‘situations of emergency, serious danger to public health, or where national security is involved’.[64]
Proposed subsection 140Y(4) provides that a person is still required to produce information or documents even though it may tend to incriminate the person or expose them to a penalty. However, subsection (5) states that producing the information or document, or the direct or indirect consequences of doing that is not admissible as evidence in criminal proceedings other than for an offence against section 137.1 or 2 of the Criminal Code.[65]
Proposed section 140Z creates a criminal offence for failing to produce a document or thing to an inspector at a specified place within a specified period (of not less than 7 days) under proposed paragraph 140X(2)(c). This offence is punishable with a maximum penalty of imprisonment for 6 months.
See the discussion under Penalties in the Bills Digest for the Migration Amendment (Employer Sanctions) Bill 2006. In Commonwealth legislation section 4B of the Crimes Act 1914 provides that a Court may, if it thinks it appropriate, impose a pecuniary penalty instead of a prison sentence, unless there is a contrary intention, or it may impose both a prison sentence and a pecuniary penalty.[66]
Proposed section 140ZB provides that this Division, the regulations made under it and any other provision of the Migration Act as far as it relates to this Division or the regulations, apply to a partnership as if it were a person. A sponsorship obligation imposed on the partnership is imposed on each partner but can be discharged by any.
Proposed subsection 140ZC(1) provides that an offence that is otherwise committed by the partnership is taken to have been committed by each partner who committed the act, or made the omission, or aided and abetted the act or omission, or was in any way knowingly concerned in, or party to, the act or omission. Proposed subsection 140ZC(3) provides that if a partner contravenes a civil penalty provision, then the civil penalty to be imposed must not exceed an amount equal to one-fifth of the maximum penalty that could be imposed on a body corporate for the same contravention. For the purposes of subsections (1) and (2) if the conduct by a partner was in the ordinary course of business, or within authority, then this will suffice to establish the partnership engaged in the particular conduct. Proposed subsection 140ZC(5) provides that in relation to (1), to establish that a partnership had a particular state of mind when engaging in certain conduct, it is enough to demonstrate that the partner had the relevant state of mind. Proposed section 140ZD provides that a partnership must continue to satisfy any applicable sponsorship obligation even if the partnership ceases to exist.
Proposed sections 140ZE - ZG applies the above provisions relating to partnerships to unincorporated associations.
Proposed section 140ZH deals with disclosure of personal information (of a prescribed kind) by the Minister. This provision inserts a table which explains that personal information relating to particular persons can be disclosed to particular persons or government agencies. For example, personal information of a prescribed kind about a visa holder can be disclosed by the Minister to their approved sponsor, their former sponsor and a government agency prescribed by the regulations. Similarly, such information about an approved sponsor may be disclosed to the visa holder, former visa holder or a government agency prescribed by the regulations.
Proposed subsection (3) provides that the regulations may prescribe the circumstances in which the recipient may use or disclose the personal information disclosed while proposed subsection (4) provides that if the information is disclosed other than to a government agency, the person to whom it relates must be notified in writing of the disclosure and the details of the information.
Proposed section 140ZI provides that the Minister may request an approved sponsor or former approved sponsor to disclose to the Minister personal information of a prescribed kind about a visa holder or former visa holder. Proposed subsection (3) provides that nothing in this section has the effect of authorising a disclosure that is prevented by law.
Item 42 inserts proposed Part 8D which has three Divisions: Division 1 (‘Obtaining an order for a civil penalty’); Division 2 (‘Civil penalty proceedings and criminal proceedings’) and Division 3 (‘Miscellaneous’). Proposed section 486R provides that a person may be ordered to pay a pecuniary penalty for contravening a civil penalty provision.[67] Importantly, proposed subsection (1) provides that an order can be made within 6 years of the contravention, while proposed subsection (2) provides that the Court may order payment for each contravention but the pecuniary penalty must not be more than the relevant amount specified for the provision.
The Explanatory Memorandum provides an example of how this provision might apply in practice,
… If the sponsorship obligation prescribed in the regulations provides that an approved sponsor must pay at least a minimum wage (however this is described) to their visa holders, and the approved sponsor does not pay at least the required minimum wage to each of their three visa holders, then this is at least three contraventions of a civil penalty provision. The approved sponsor could then receive a total maximum penalty of 180 penalty units if they are an individual, or 900 penalty units if they are a body corporate (see new section 486ZA in relation to joining actions for multiple contraventions of civil penalty provisions).[68]
Proposed subsection (3) outlines the matters the Court must have regard to in determining the amount of pecuniary penalty. These include the nature and extent of the contravention, the nature and extent of loss or damage, the circumstances surrounding the contravention and whether the sponsor has previously been found by a Court to have engaged in the same or ‘similar conduct’. Proposed subsection 486R(4) defines the term ‘similar conduct’. The Explanatory Memorandum notes that this ‘includes where a person has previously been found by a court to have failed to satisfy a sponsorship obligation which is the same or different from the sponsorship obligation to which the proceedings relate’.[69] Proposed subsection (6) and (7) relate to the Court’s ability to order an amount prescribed by the regulations. More specifically, proposed paragraph 486R(6)(c) provides that the Court may order an amount be paid if proceedings to recover an amount have not been brought under proposed section 140S (which allows a person to bring proceedings to recover an amount owed if the Court does not make an order under this subsection).
Proposed section 486S provides that a person involved in contravening a civil penalty provision (say by aiding its contravention, or conspiring to contravene it) is taken to have contravened that provision. Proposed section 486U enables the Minister to require a person (other than the wrongdoer or their lawyer), who he or she suspects on reasonable grounds can give information relevant to an application for a civil penalty order to give all reasonable assistance in connection with such an application. A Court may order a person to comply and the penalty for failing to give assistance is an offence punishable with a maximum of 30 penalty units.
Proposed Division 2 set out how civil proceedings for contravention of a civil penalty provision will relate to criminal proceedings commenced for the same actions. Proposed sections 486V-X cover the situation where civil proceedings are commenced after criminal proceedings, criminal proceedings are commenced during civil proceedings, and criminal proceedings are commenced after civil proceedings.
Proposed section 486Y relates to the inadmissibility of evidence for criminal proceedings previously given in civil proceedings, while proposed section 486Z provides that a person ordered to pay a pecuniary penalty for contravening a civil penalty provision is not liable to pay a pecuniary penalty under some other provision of law of the Commonwealth.
Proposed subsection 486ZA(1) in proposed Division 3 enables proceedings for multiple contraventions of civil penalty provisions to be joined in certain circumstances. Proposed subsection (2) provides that the Court may make a single order to pay a pecuniary penalty for all the contraventions but the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions. The Explanatory Memorandum provides an example of how this provision would operate in practice:
…if a sponsorship obligation prescribed under new section 140H (inserted by item 19) requires a person to pay at least a minimum salary to the visa holders that they sponsor, and to pay the minimum salary at least once a month, the person may contravene subsection 140Q(1) (inserted by item 27) 10 times if they do not satisfy the obligation in relation to five visa holders for a period of 2 months (there is 10 contraventions because there is a contravention for each visa holder (5), for each month (2))… Under new section 486ZA proceedings for an order in relation to all 10 alleged contraventions could be joined, and a single order made in relation to all 10 contraventions.[70]
Item 45 makes transitional arrangements for existing standard business sponsors. It provides that the new law applies to ‘standard business sponsors’ (as defined) or ‘approved sponsors’ (as defined) as if they were approved as a sponsor under proposed section 140E. The terms of the sponsorship made under existing section 140G continue to apply after the new law commences, though the term may be varied under proposed section 140GA of the new law.
Importantly, if the person had made an undertaking under existing section 140H, it ceases to have effect when the new law commences and they must then satisfy any applicable sponsorship obligation prescribed by the regulations under section 140H of the new law.
However, if, before the day on which the new law commences, the person breaches an undertaking made under existing section 140H, then section 140M of the new law applies as if regulations made under existing sections 140J and 140K were regulations prescribed under section 140L of the new law.
Item 46 relates to former sponsors who remained bound by an undertaking made under existing section 140H. It provides that the new law applies to them upon commencement as if they were a former approved sponsor under the new law. Accordingly, upon commencement any old undertakings cease to have effect and they must satisfy any applicable sponsorship obligations prescribed by the new law. However, if, before commencement they breach an undertaking made under existing section 140H, then proposed section 140M of the new law applies as if regulations made under existing sections 140J and 140K were regulations prescribed under section 140L of the new law.
Item 47 relates to recovery of debts from standard business sponsors. It provides that proposed section 140S applies to a debt of a kind mentioned in existing section 140R (joint and several liability for debts) or 140S (liability to pay other amounts) and where proceedings for recovery of the debt have not begun.
Item 48 provides that the existing law continues to apply to ‘approved professional development sponsors’ (as defined) until they cease to be an approved professional development sponsor. Item 49 provides that applications not finally determined upon commencement, will be determined in accordance with the new law.
The Explanatory Memorandum notes that the application of the new sponsorship framework to existing subclass 457 visa sponsors is necessary for the following reasons:
Proposed subsection 3ED(1) overrides secrecy provisions to allow the Commissioner for taxation to disclose tax information to the Department in certain circumstances. The Explanatory Memorandum predicts that DIAC will use such information to monitor whether approved sponsors are complying with their sponsorship obligations and to assess whether a person should be approved as a sponsor.[72]
Under proposed subsection 3ED(2) certain persons (such as migration officers) are prohibited from disclosing or making a record of the information. A maximum penalty of two years imprisonment applies. Proposed subsection 3ED(3) provides that subsection (2) does not apply if the information was disclosed or recorded in connection with the exceptions listed; such as the exercise of the Minister’s powers under Division 3A (Sponsorship) or regulations made under that Division, a review of a decision concerning the exercise of the Minister’s powers under Division 3A, civil penalty proceedings under Part 8D in relation to a contravention of a provision in Division 3A etc.
Item 2 provides that the amendments made by Part 1 of Schedule 2 apply to information acquired by the taxation Commissioner before, on or after the day on which this schedule commences. In other words, amendments made in schedule 2 have retrospective application.
The aim of this Bill is to establish a new sponsorship framework to primarily strengthen the integrity of temporary working visa arrangements which has been eroded primarily due to a lack of compliance with the existing statutory scheme. However, it appears that the low rate of compliance can not solely be attributed to a deficiency in the existing statutory scheme. As Ms Deegan observed in her third report into the 457 visa review, ‘current arrangements to ensure compliance with [sponsorship] undertakings are not well defined; liability is not always clear and sanctions for infringement are primarily administrative and rarely enforced’.[73]
Notwithstanding, this Bill will make significant amendments to the Migration Act to give the Department new or greater legislative authority to: specify sponsorship obligations and the manner in which they can be breached (with civil penalties for non-compliance); acquire and share information; monitor and investigate (with punitive penalties for non-compliance); and the power to create significantly broader Regulations to define the scope of the newly expansive sponsorship framework.
Whether these measures are a proportionate and necessary response to the problem, and whether they will ultimately improve the integrity of the system remains to be seen.
[1]. Senate Standing Committee on Legal and Constitutional Affairs, Migration Amendment (Sponsorship Obligations) Bill 2007 [Provisions], Senate Standing Committee on Legal and Constitutional Affairs, Canberra, 2007.
[2]. This Digest has been prepared using some of the information contained in the Bills Digest prepared for the Sponsorship Obligations Bill: Moira Coombs, ‘Migration Amendment (Sponsorship Obligations) Bill 2007’, Bills Digest, no.26, Parliamentary Library, Canberra, 2007-08.
[3]. Explanatory Statement, Migration Regulations (Amendment) 1996 No.76, p. 18. See also: Janet Phillips, Temporary (Long Stay) Business Visas: subclass 457, Research Note, no. 15, 21 February 2007.
[4]. Senator the Hon Chris Evans (Minister for Immigration and Citizenship), New laws to protect overseas workers, media release, Parliament House, Canberra, 24 September 2008.
[5]. Budget Measures 2008-09, ‘Budget Paper No. 2: Expenses Measures - Immigration and Citizenship’, [http://www.budget.gov.au/2008-09/content/bp2/html/expense-18.htm], accessed on 9 October 2008.
[6]. Senator the Hon Chris Evans (Minister for Immigration and Citizenship), Panel of experts to advise on changes to 457 visa program, media release, Parliament House , Canberra, 8 July 2008, [http://www.chrisevans.alp.org.au/news/0708/immimediarelease08-01.php], accessed on 9 October 2008.
[7]. Further information and links to the three issues papers produced by the review are available at the Department of Immigration and Citizenship website: http://www.immi.gov.au/skilled/457-integrity-review.htm. Ms Deegan is currently on six months leave from her current position as Commissioner.
[8]. Available at the Minister for Immigration and Citizenship website: http://www.minister.immi.gov.au/media/media-releases/2008/erg-final-report-april-2008.pdf
[9]. Department of Immigration and Citizenship, Discussion Paper: Business (Long Stay) Subclass 457 and related temporary visa reforms (30 June 2008) available at the Minister for Immigration and Citizenship website: http://www.minister.immi.gov.au/media/media-releases/2008/discussion-paper-for-legislation.pdf.
[10]. Senator the Hon Joe Ludwig, (Minister for Human Services), ‘Second reading speech: Migration Legislation Amendment (Worker Protection) Bill 2008’, Senate, Debates, 24 September 200 p. 6
[11]. Explanatory Memorandum, Migration Legislation Amendment (Worker Protection) Bill 2008, p. 21, para. 114. This is also given as a reason why the commencement date of the proposed amendments is set at 9 months rather than the usual 6 months: See Explanatory Memorandum, p. 4, para. 3.
[12]. DIAC’s discussion paper outlines a number of obligations that might be imposed under the new sponsorship obligations framework: Department of Immigration and Citizenship, Discussion Paper: Business (Long Stay) Subclass 457 and related temporary visa reforms, 30 June 2008, Section 1, pp. 5–20.
[13] Due to subsection 44(2) of the Legislative Instruments Act 2003: Explanatory Memorandum, p. 22, para. 124.
[14]. The Explanatory Memorandum notes that the powers in proposed subsection 140X(2) are not in accordance with the Guide: Explanatory Memorandum, p. 40, para. 253
[15]. This was an issue raised during the Senate Legal and Constitutional Affairs Committee (see ‘Committee consideration’ below).
[16]. Senator the Hon Joe Ludwig, op. cit., p. 6.
[17]. As contemplated in Department of Immigration and Citizenship, Discussion Paper: Business (Long Stay) Subclass 457 and related temporary visa reforms, op. cit., p. 7.
[18]. ‘The Subclass 457 and Subclass 470 (Professional Development) visa programs are the only temporary visa programs that currently operate entirely within this framework. Other temporary visa programs rely on part of this framework, a separate sponsorship framework, or incorporate no formal sponsorship at all’: Department of Immigration and Citizenship, Discussion Paper: Business (Long Stay) Subclass 457 and related temporary visa reforms (30 June 2008), p. 5.
[19]. These can also be found on the Department of Immigration and Citizenship website: http://www.immi.gov.au/skilled/skilled-workers/sbs/obligations.htm
[20]. Department of Immigration and Citizenship, Procedures Advice Manual 3 (PAM3): Sanctions and Monitoring Instructions, as at 19 September 2008.
[21]. Explanatory Memorandum, op. cit., p. 3.
[22]. Department of Immigration and Citizenship, Procedures Advice Manual 3, op. cit.
[23]. Department of Immigration and Citizenship, Procedures Advice Manual, op. cit.
[24]. ‘A Breach Notice is not defined in the Regulations. A Breach Notice informs the sponsor that an actual or potential breach of their undertakings or requirements under the subclass 457 programme has occurred. The Breach Notice advises the sponsor that their access to the programme has been suspended and provides them with an opportunity to remedy the breach; comment on changes to ensure breach does [sic] recur, provide evidence the breach did not occur etc’: Department of Immigration and Citizenship, Procedures Advice Manual, op. cit.
[25]. Department of Immigration and Citizenship, Procedures Advice Manual 3, op. cit.
[26]. Department of Immigration and Citizenship, Annual Report 2006/07, ‘1.1.6 Temporary Residents: Robust integrity measures’, http://www.immi.gov.au/about/reports/annual/2006-07/html/outcome1/output1_1_6.htm, accessed 16 October 2008.
[27]. ibid.
[28]. Department of Immigration and Citizenship, Annual Report 2006/07, statistics extracted from ‘Table 32: Temporary residents – performance information’, http://www.immi.gov.au/about/reports/annual/2006-07/html/outcome1/output1_1_6.htm, accessed 16 October 2008.
[29]. Regulation 1.20F, Migration Regulations 1994.
[30]. Regulations 1.20HA and 1.20HB prescribe the grounds for imposing sanctions under sections 140J and 140K respectively of the Migration Act. Note that the power to waive a bar imposed on a person under these sections is contained in section 140O of the Migration Act.
[31]. Department of Immigration and Citizenship, Annual Report 2006/07, op. cit. See also: Commonwealth Government, Submission No. 33, Joint Standing Committee on Migration, ‘Temporary visas…permanent benefits: ensuring the effectiveness, fairness and integrity of the temporary business visa program’, August 2007, p. 13.
[32]. Explanatory Memorandum, op. cit., p.7, para. 19.
[33]. Explanatory Memorandum, op. cit., p. 25, para. 139 and 141.
[34]. Senate Selection of Bills Committee, Report No. 13 of 2008, 15 October 2008, p. 3 and Appendix 2.
[35]. Senate Standing Committee for the Scrutiny of Bills, Alert Digest, No.11 of 2008, 15 October 2008, pp.14–16, http://www.aph.gov.au/senate/committee/scrutiny/alerts/2008/d11.pdf, accessed 21 October 2008.
[36]. Joint Standing Committee on Migration, Temporary visas…permanent benefits: ensuring the effectiveness, fairness and integrity of the temporary business visa program, August 2007, p.xi.
[37]. ibid.
[38]. ibid., pp. 110–111.
[39]. Alleged breaches of the 457 visa program included the underpayment of the minimum salary level; unlawful deductions from the minimum salary for travel or medical costs etc; non-payment for overtime; discrimination against union members; employment of skilled workers in unskilled roles; unfair termination of employment; and racial abuse and threats of physical harm: Joint Standing Committee on Migration, op. cit., pp.112–114.
[40]. Joint Standing Committee on Migration, op. cit., p. 119.
[41]. Senate Standing Committee on Legal and Constitutional Affairs, Migration Amendment (Sponsorship Obligations) Bill 2007 [Provisions], op. cit., p. 121.
[42]. ibid., pp. 124–126.
[43]. ibid., pp. 124–126
[44]. ibid., p. 13.
[45]. ibid., p. 13.
[46]. ibid., pp. 7–12.
[47]. ibid., p. 14.
[48]. A. Symonds, ‘First steps towards 457 visa makeover’, Australian Financial Review, 25 September 2008.
[49]. ibid.
[50]. F. Prior, ‘Liberals back changes to end 457 visa exploitation’ West Australian, 6 October 2008.
[51]. Explanatory Memorandum, op. cit., p. 3.
[52]. And whose approval has not been cancelled under proposed section 140M or otherwise ceased to have effect under proposed section 140G.
[53]. Explanatory Memorandum, op. cit., p. 13.
[54]. Explanatory Memorandum, op. cit., p. 16, para. 79.
[55]. Explanatory Memorandum, op. cit., p. 59.
[56]. The minimum period has been set at 7 days because there may be compelling reasons in special cases for requesting information in as few as 7 days, taking into account the special vulnerability of non-citizens in Australia on temporary visas to exploitation: Explanatory Memorandum, op. cit., p. 41, para. 259.
[57]. Section 169 of the Commonwealth’s Workplace Relations Act 1996 provides that an inspector can, without force, enter a place of business or particular premises (any land, building, structure, mine, mine working, ship, aircraft, vessel, vehicle or place).
[58]. Section 104 of the Workplace Health and Safety Act 1995 (Qld).
[59]. Sebsection 167(5) of the Commonwealth’s Workplace Relations Act 1996.
[60]. Section 100 Workplace Health and Safety Act 1995 (Qld).
[61]. Explanatory Memorandum, op. cit., p. 40, para. 253.
[62]. Attorney-General’s Department, ‘A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers’ (interim guide), December 2007, p. 77, http://www.ag.gov.au/www/agd/agd.nsf/Page/Publications_GuidetoFramingCommonwealthOffences,CivilPenaltiesandEnforcementPowers, accessed 31 October 2008.
[63]. Explanatory Memorandum, op. cit., p. 40, para. 253.
[64]. Report 4/2000, paragraphs
1.36 and 1.44, as quoted in Attorney-General’s Department,
op. cit., p. 79.
[65]. Sections 137.1 and 2 relate to the offences of providing false or misleading information or documents respectively.
[66]. Moira Coombs, ‘Migration Amendment (Employer Sanctions) Bill 2006’, Bills Digest, no. 120, Parliamentary Library, Canberra, 2005-06, pp.6–7.
[67]. Proposed subsections 140Q(1) and (2) are the only civil penalty provisions included in this Bill. The maximum civil penalties that apply are 60 penalty units for an individual (currently $6600) and 300 penalty units for a body corporate (currently $33,000).
[68]. Explanatory Memorandum, op. cit., p.60, para. 404.
[69]. ibid., p.61, para. 408.
[70]. ibid., pp. 65–66, para. 443–444.
[71]. ibid., p. 69, para. 466.
[72]. ibid., p. 77, para. 518.
[73]. Barbara Deegan, ‘Visa Subclass 457 Integrity Review: Third paper: Integrity /Exploitation’, September 2008, p. 28.
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