Good morning everyone.
First, I would like to acknowledge the Wurundjeri people of the Kulin Nation, traditional custodians of the land on which we meet today.
I pay my respects to Elders past and present, and extend those respects to any First Nations people here today.
I’d like to thank the Law Council of Australia for this opportunity to explore what the Albanese Government has been doing with regards to the exploitation of people on temporary visas.
This is an enormous issue, which I know many in this room understand.
It cannot be overstated how allowing exploitation to thrive eats away at a visa system.
Reflection on worker exploitation
We have all heard the horror stories.
People too intimidated to speak out for fear of being reported to authorities.
Others had to endure their passports being taken from them, tormented by empty promises of permanent residency, and some subjected to even worse abuses, physical and sexual.
And we all know the effects of this.
When those who are vulnerable have their wages stolen from them or worse, it hurts all of us.
Exploitation drives down wages and conditions for everyone, regardless of where you are born.
And it especially harms those employers who are doing the right thing.
It is to our great shame that in the land of the ‘fair go’, this behaviour has been tolerated for far too long.
Nine months ago, I made a speech at the Victorian Trades Hall not too far from here in which I outlined how parts of the visa system were contributing to the crisis of migrant worker exploitation in Australia.
This crisis did not come about of its own making.
Undoubtedly, our visa system is more complicated and complex than it was in the 1980s.
There are more people on temporary visas who want to remain in Australia, to make their lives here.
And, until very recently, we had a structure that was on the one hand pushing people into more vulnerable situations, and on the other, characterised by an ambivalence to enforcing the rules, such as they were.
There was a national wake-up call on these issues when the 7-Eleven convenience store wage rort was uncovered in 2015.
Thousands of victims, many of who were international students, paid as little as $10 per hour.
This led to the establishment of the Migrant Workers Taskforce, chaired by Professor Allan Fels and Dr David Cousins, who provided their report to the former Liberal government in 2019.
And yet, when the 2022 election occurred, essentially none of the major recommendations had been addressed. The Albanese Government was left with all the work still left to do and years of wasted opportunities.
Professor Fels’ described the situation as ‘this has been a severe problem for at least the last 10 years, there have been huge numbers of underpaid and exploited migrant workers and nothing was done about’.
Martin Parkinson, a widely respected former senior Governmental official, described the ‘absolutely and utterly broken’ migration system as a ‘reflection of almost a decade of wilful neglect’.
Nothing was done about it.
Since I was sworn in as Minister, I have been deeply concerned by this crisis of exploitation.
I have no tolerance for our visa system being abused.
And neither do my colleagues. Everything I speak to today has been developed in close consultation with Minister Clare O’Neil and Minister Tony Burke.
Because it has long been our view that these two areas of policy — workplace relations and immigration — need to work together to address the issue of temporary migrant worker exploitation.
It is critical that workplace laws provide the same entitlements and protections for all workers, regardless of their immigration status;
and that immigration policies address both the misuse of migration rules to exploit temporary migrants and migration related barriers to resolving workplace exploitation.
Unlike the former Liberal government, we have been getting on with the job of tackling this crisis.
The Strengthening Employer Compliance Act
The Strengthening Employer Compliance Act, was passed by Parliament on 7 February and will commence on 1 July this year.
This is a substantive response to the Migrant Workers Taskforce and the Act will introduce a host of important new measures to tackle the exploitation of workers.
The Act introduces three new criminal offences for using a person’s migration status to exploit them in the workplace.
For the first time, employers who actively do the wrong thing and exploit people who hold a temporary visa in the workplace will be criminally liable.
This sends an important message – that exploitation will not be tolerated.
Prohibition measure
Equally important is a new power to prohibit employers who do the wrong thing.
Employers who engage in serious, deliberate or repeated forms of non-compliance will be prevented from hiring new workers if they hold a temporary visa.
This will protect workers from dangerous employers and promote compliance with the rules.
Too often employers have been able to pay a fine and move on with their business.
The prohibition tool will deliberately seek to disrupt business models predicated on exploitative practices, where employers simply churn through new staff, many of whom are unaware of what they are about to experience.
Consider a medium sized restaurant who has been barred from sponsoring their chef because they didn’t provide equal pay and conditions to Australian citizens and temporary sponsored workers alike.
Until now, this employer was barred from sponsoring additional temporary skilled workers. But free to keep hiring international students, backpackers, temporary graduates, or people holding bridging visas.
Often these workers would make up a strong majority of a workplace, as opposed to those who are formally sponsored.
From July, employers who are barred from sponsoring new workers will also be liable to become prohibited employers – targeting the business model used by some to undermine wages and conditions across Australia. They will not be allowed to hire new staff if those workers hold a temporary visa.
Sometimes new powers are introduced and seldom used.
Let me be very clear: I intend to use the prohibition scheme for the purpose it was designed for, as soon as the Act takes effect.
From July, I will be writing to employers who are liable for prohibition and asking why they should not be prohibited from hiring workers on temporary visas.
This will include any employer found to have exploited migrant workers in a Federal Court decision under the Fair Work Act as well as those employers who have been subject to a bar due to a breach of the sponsorship obligations in the Migration Regulations.
Employers subject to a prohibition notice will be named on the Department of Home Affairs website and this will be communicated widely.
This is not simply throwing the book at people and walking away. I am proud to say these new powers include appropriate processes to ensure procedural fairness, including a principle of proportionately and review rights for employers subject to prohibition notices.
Review rights, I note, that former Liberal Ministers for Immigration would denigrate at Law Council Australia gatherings.
We are increasing the size of penalties that can be imposed on employers to better reflect how serious the Albanese Government takes this issue.
Importantly, the Act also includes new compliance tools for the ABF to respond to issues of non-compliance in a timely, appropriate and proportionate manner. These tools include the use of compliance notices and enforceable undertakings.
These tools have been successfully used by the Fair Work Ombudsman for some time and it is our intention to do the same.
Collectively, these measures provide a framework that enables a robust response to non-compliance. It recognises that not all non-compliance is intentional, but where it is serious, deliberate or repeated, there is a strong legislative framework to address the behaviour.
Importantly, the legislation includes measures to remove barriers to reporting.
This includes the repeal of section 235 of the Migration Act – which codified a criminal offence for breaching a work related visa condition.
While this offence was not prosecuted in the time since it was introduced – as far as we could tell – the existence of the section itself likely inadvertently deterred people from reporting exploitation.
As I noted earlier, the Strengthening Employer Compliance Act sits alongside reform to the Fair Work Act, such as the recent amendments to clarify that temporary migrant workers working in Australia are entitled at all times to workplace protections under the Fair Work Act.
There have also been significant steps to criminalise wage theft and a range of other measures to provide greater protections for workers.
We now have a legislative framework that is substantially better placed to deter the exploitation of vulnerable workers, improving economic and social opportunities for all Australians.
Compliance officers
As I mentioned earlier, there was an aversion to enforcement by the former Liberal government.
This was demonstrated when they slashed the number of immigration compliance officers by almost half.
It’s difficult to turn that type of deliberate inaction around quickly.
However the Albanese Government has increased funding in the 2023-24 Budget to support an uplift in immigration compliance.
This will support the implementation of key reforms, both here and across other immigration compliance priorities.
The Albanese Government has also undertaken significant structural change within the Home Affairs Portfolio, culminating in the creation of a new Immigration Compliance function.
This brings some core Australian Border Force capabilities back into the Department, and it supports an ongoing focus on compliance and enforcement in immigration.
Speaking out
At the very heart of exploitation of vulnerable workers who hold temporary visas is a fear of speaking out. The risks to workers livelihoods is simply too great in many circumstances to speak up and report mistreatment.
If you are an Australian citizen, you don’t have to worry about staying in the country if you quit your job or report your employer to the Fair Work Ombudsman. You can demand for unpaid wages by your right to redress mistreatment without the fear of deportation.
And in recognising this, the Albanese Government has set about changing some of the rules which limit people speaking out when they are mistreated and exploited.
One change is to enhance the opportunity of mobility of workers who are sponsored by their employer.
We have increased the time allowed without a sponsor in the Temporary Skill Shortage visa to 180 days, up from 60 days.
While it can remain difficult to change sponsorship, this change offers more hope to those who do decide to walk away from exploitative environments.
Pilots
A big change which I can speak to now for the first time is to provide greater confidence to people, to encourage early reporting and the resolution of workplace issues.
For some months, the Government has been developing two pilot programs to address the visa barriers preventing people from speaking up and seeking redress.
Informed by a rigorous co-design process, the pilot programs will focus on introducing a formal protection against visa cancellation – to give people the confidence they can report wrongdoing and seek redress, even if they have breached a work-based visa condition.
A second pilot will test the concept of a workplace justice visa, designed to enable temporary migrants to remain in Australia while they seek workplace justice. The visa will provide a unique vehicle for those who have no other option.
These pilots will commence from 1 July this year. New regulations will be tabled in the Parliament to give effect, demonstrating to workers who have been exploited these are not simply discretionary policies of the Government but the law of Australia.
These pilots will not be work-arounds for people simply seeking to extend their stay in Australia. Eligibility criteria will be designed in a manner to promote visa integrity while also acknowledging exploitation is a scourge in the Australian labour market and must be addressed.
Existing character and integrity measures for fraud and identify will not be modified.
Instead, the pilots will promote the ability for people to speak up by removing their fear of having their visa cancelled if they have breached a visa condition related to their work – if they were forced to breach that condition by an employer chasing profit at the expense of treating people lawfully.
Drawing on the 7 Eleven example, an international student who worked in excess of 40 hours (now 48 hours) in a fortnight – even under duress from their employer – has breached a visa condition and can have their visa cancelled.
These approaches will demonstrate to these workers who have been exploited that these breaches will not be held against them, promoting the voices of those who are mistreated.
And I acknowledge there are those who traditionally oppose us but who have voiced support for these concepts.
Senator Paul Scarr’s contribution to the Senate debate on the Strengthening Employer Compliance Bill noted the importance of protection from visa cancellation, stating, ‘that workers in these vulnerable situations will not have their visa cancelled as a result of being put in impossible situations by their employers’.
Senator Nick McKim of the Greens put forward similar remarks.
In due course, I look forward to their support as the Albanese Government continues to move forward and administer reforms to protect vulnerable workers and make all Australians better off.
I will have more to say on these pilot programs in the coming months but I want to emphasise this: these new pilots are critically important to a visa system that can address exploitation and vulnerability, instead of simply ignoring it.
Social licence
When all Australians see the result of visa rules pushing people into vulnerable situations and an ambivalence to making things right, our shared purpose is eroded. The social license for our diverse community is damaged.
We must work together to ensure the social licence remains robust, including the appropriate respect for the institutions which make Australia such a great country, such as the rule of law.
The rule of law
I want to conclude these remarks with a reflection on my responsibilities as Minister for Immigration and the rule of law.
I could not think of a better forum than the Law Council of Australia to make these comments.
As Minister for Immigration, Citizenship and Multicultural Affairs, I am currently the respondent to around 17,000 matters.
I have plenty of reasons to think about the tensions between the respective roles of the executive, legislature and judiciary.
These raise important questions of principle and practice in the area of migration.
The High Court’s decision last year in NZYQ in particular has generated much debate.
The consequences of the decision, overturning two decades of precedent, were - and continue to be - significant.
Our response has been substantial, by always prioritising community safety through our strong action.
I do not resile from these tough actions. In relation to the NZYQ decision, we have introduced four layers of protection to keep the community safe.
I take my responsibility for community safety extremely seriously.
And in doing so, I ensure my own conduct does not undermine community safety, nor the rule of law.
This means, as the Minister for Immigration, Citizenship and Multicultural Affairs, I do not comment on matters before courts, to avoid prejudicing the outcome.
I am concerned that this has been a debate where heat has consistently obscured light.
Where objective, expert voices have been hard to find.
Where facts have been overlooked or simply denied.
For example, the Opposition Leader and the Shadow Attorney continue to falsely assert that the government chose to release detainees other than the plaintiff.
This conduct follows months of the Shadow Minister for Immigration appearing to advocate to simply ignore or put aside a decision of the High Court.
The Opposition are of course entitled to their views- but not to their own facts. That they rush to score political points, rather than establish a meaningful position shows that they’re not serious people, committed to rule of law.
This is dangerous.
To the standard of public debate about important issues, to policy making and to the state of our democracy - a democracy anchored on the separation of powers and the rule of law.
When difficult issues arise in this space, it is vital that objective, expert voices are heard.
Including, of course, those of the profession.
The Albanese Government has taken strong action taken to keep the community safe. We will continue to do so.
We have done so in keeping with – and promoting – the rule of law and those institutions which make Australia a stronger and safer society.
Conclusion
Thank you for your time here today. I understand I have covered a lot of ground. I always enjoy attending the Law Council’s events and forums.
My commitment is to continue to participate in conversations across government and with unions, business and civil society to maintain a multi-faceted perspective on current issues related to migration, such as the exploitation of vulnerable workers.
We have a shared interest in, and I would say a shared responsibility to, tell it like it is.
To explain the consequences of laws, administrative action and court decisions to the community so that these can be appreciated and debated.
So, where we disagree, or where there is some broader disagreement, this is founded in a shared appreciation of what is in fact at stake.
We can, and should, do better.
Thank you, and I’m happy to take questions.
