Migration Amendment (Strengthening Employer Compliance) Bill 2023 [2023] AUPJCHR 74 (2 August 2023)

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Purpose	The bill seeks to amend the Migration Act 1958 to establish new employer sanctions including criminal offences and civil penalties related to exploitative work arrangements and to increase existing maximum penalties relating to sponsorship obligations.
Portfolio	Home Affairs
Introduced	House of Representatives, 22 June 2023
Rights	Just and favourable conditions of work; equality and non-discrimination; privacy

Employer sanctions for coercive practices

1.141 Schedule 1, Part 1 of the bill seeks to establish new criminal offences and civil penalties for a person who unduly influences, unduly pressures, or coerces a non-citizen to breach a work-related condition of their visa, or accept an exploitative work arrangement to meet a work-related condition of their visa.^[2]

1.142 Additionally, Schedule 1, Part 5 of the bill would expand the circumstances in which an inspector may exercise their existing powers. This includes authorising the giving of an enforceable compliance notice, which may be issued where an officer holds a reasonable belief that a person has contravened a work or sponsorship related offence provision, or a related provision,^[3] and authorising the inspector to exercise their powers for the purpose of investigating whether another person who is, or was, an approved work sponsor has contravened that proposed provision.^[4]

1.143 The inspector has existing powers to: enter business premises or another place without force at any time necessary, inspect things, interview persons, require the production of documents or records, and to inspect and make copies of documents or records.^[5]

International human rights legal advice

Just and favourable conditions of work; prohibition against slavery; right to equality and non-discrimination

1.144 The establishment of new offences and civil penalties for coercing or otherwise pressuring a person to breach a work-related condition of their visa, or accept an exploitative work arrangement to meet a work-related condition of their visa, engages and promotes several human rights, including the rights to just and favourable conditions of work, equality and non-discrimination and the prohibition against slavery.

1.145 The right to just and favourable conditions of work includes the right of all workers to adequate and fair remuneration, and safe working conditions.^[6] The prohibition against slavery, servitude and forced labour prohibits exploiting or dominating another and subjecting them to 'slavery-like' conditions, or requiring a person to undertake work which he or she has not voluntarily consented to, but does so because of threats made, either physical or psychological.^[7]

1.146 The statement of compatibility states that the measure would promote these rights by ensuring that employers do not misuse the migration program as an alternative source of cheap and exploitable labour.^[8] With respect to slavery, the statement of compatibility states that these measures would address potential gaps in existing laws to address the issue of modern slavery, and would further the goal of protecting temporary migrant workers from the serious offences of slavery, slavery-like practices and trafficking in persons.^[9]

1.147 Further, the measures would also engage and promote the right to equality and non-discrimination, insofar as they would establish additional protections for non-citizen workers who may be vulnerable to particular types of exploitation at work by virtue of their visa status, or otherwise because of their status as non-citizens. The right to equality and non-discrimination provides that everyone is entitled to enjoy their rights without discrimination of any kind and that all people are equal before the law and entitled without discrimination to equal and non‑discriminatory protection of the law.^[10] The prohibited grounds of discrimination include gender, race, and national or social origin.^[11]

Right to privacy

1.148 Expanding the inspector's existing powers to include their exercise in relation to an enforceable compliance notice, engages and may limit the right to privacy. The right to privacy includes respect for informational privacy, including the right to respect for private and confidential information, particularly the storing, use and sharing of such information.^[12] It also includes the right to control the dissemination of information about one's private life, and protects against arbitrary and unlawful interferences with an individual's privacy and attacks on reputation.^[13]

1.149 The right to privacy may be subject to permissible limitations, which are provided by law and are not arbitrary. In order for limitations not to be arbitrary, the measure must pursue a legitimate objective and be rationally connected to (that is, effective to achieve) and proportionate to achieving that objective. In order to be proportionate, a limitation on the right to privacy should only be as extensive as is strictly necessary to achieve its legitimate objective, and must be accompanied by appropriate safeguards.

1.150 The statement of compatibility does not identify that the proposed expansion of these existing powers engages and limits these rights, and so no analysis is provided. Enabling the inspector to enter premises, ask questions and require the provision of documentation in order to enforce compliance notices would facilitate the enforcement of provisions intended to protect workers. This would constitute a legitimate objective under international human rights law, and would be rationally connected to that objective. As to proportionality, the Migration Act constrains the circumstances in which, and purposes for which, an inspector may exercise their investigatory powers.^[14] However, it also provides that the Secretary or Australian Border Force Commissioner may disclose any information the inspector has gathered for a broad range of purposes, including where they reasonably believe that it will assist in the administration of a law of the Commonwealth, or a state or territory.^[15] It is unclear what safeguards would apply, and whether the exercise of these relevant powers would be subject to oversight and review.

Committee view

1.151 The committee considers that establishing new mechanisms to prevent exploitative work practices, to protect vulnerable migrant workers, promotes the rights to just and favourable conditions of work, equality and non-discrimination and the prohibition against slavery and servitude. The committee considers the statement of compatibility should reflect that the measures would promote the right to equality and non-discrimination.

1.152 The committee notes that expanding the application of the inspector's investigatory powers may also engage and limit the right to privacy. The committee notes that the statement of compatibility does not identify the engagement of this right, and therefore seeks the minister’s advice as to whether the measure constitutes a permissible limit on the right to privacy, including the presence of safeguards, the circumstances in which information gathered by the inspector may be disclosed, and relevant oversight and review mechanisms.

Publication of information about prohibited employers

1.153 Schedule 1, Part 2 would allow the minister or an authorised delegate to prohibit certain employers from employing any additional non-citizens, and would require the minister to make that decision public. Such a declaration may be made where the person is subject to a 'migrant worker sanction', and the sanction was imposed no more than five years prior.^[16] 'Migrant worker sanction' refers to a person being sanctioned for certain work-related offences, civil penalties or contraventions of the Fair Work Act 2009 or contraventions of enforceable undertakings,^[17] but also includes sanctions imposed on the basis of the minister being satisfied of certain matters, such as:

1.154 A declaration that a person is a prohibited employer would have effect for the period specified in the declaration.^[20] It would prevent a person from employing additional non-citizens, or having a material role in decisions by a body corporate or other body that allows a non-citizen to begin work.^[21] Breach of the prohibition would be an offence punishable by imprisonment for two years or 360 penalty units (currently $112,680)^[22] or both, or a civil penalty punishable by 240 penalty units (currently $75,120). After a person ceases to be a prohibited employer, for the following 12 months they would be required to advise the department where they have employed non-citizens.^[23] The minister would be required to publish identifying information in relation to a prohibited employer online, except in prescribed circumstances.^[24]

Preliminary international human rights legal advice

Multiple rights

1.155 The establishment of new mechanisms to prevent exploitative work practices against non-citizens in Australia, including the prohibition of certain employers from employing further non-citizens, engages and promotes the right to just and favourable conditions of work, the absolute prohibition against slavery and servitude, and the right to equality and non-discrimination. The publication of information about prohibited employers may also promote these rights, insofar as it protects temporary migrant workers from employers found to have breached workplace laws. The content of these rights is outlined at paragraphs [1.144] to [1.147].

1.156 The statement of compatibility acknowledges that these rights are engaged.^[25] It states that the measures in the bill may limit the right to equality and non-discrimination insofar as they would treat non-citizens differently to citizens.^[26] It states that certain factors can make migrant workers particularly vulnerable to unscrupulous practices at work, including a poor knowledge of their workplace rights, being young and inexperienced, having low English language proficiency, and trying to fit in with cultural norms and expectation of other people from their home countries.^[27] It states that this differential treatment would enhance the right of temporary migrant workers to enjoy equitable conditions at work. In this way, the measures would appear to promote the right to equality and non-discrimination. Further, aspects of these measures may have a particular impact on female non-citizen workers who are employed for the purposes of sexual exploitation, noting that the explanatory memorandum states that the measure may capture work in conditions of sexual servitude and in brothels.^[28] In this regard, the United Nations (UN) Convention on the Elimination of all forms of Discrimination Against Women requires States Parties to take all appropriate measures to suppress all forms of traffic in women and exploitation of prostitution of women,^[29] and recognises sexual exploitation as a form of gender-based violence and discrimination against women.^[30] As such, the measure is likely to promote the rights of women.

1.157 However, requiring the publication of information identifying prohibited employers online, also engages and limits the right to privacy.^[31] The content of this right, and the circumstances in which it may be permissibly limited, are outlined at paragraphs [1.148] to [1.149].

1.158 The statement of compatibility states that the publication of information about prohibited employers is intended to visibly demonstrate that the minister will take action to protect vulnerable workers and act as a deterrent to other employers.^[32] Protecting vulnerable migrant workers by publishing information about prohibited employers is a legitimate objective for the purposes of international human rights law. The publication of this information may be rationally connected (that is, effective to achieve) those objectives. However, it is not clear whether information about prohibited employers needs to be accessible to the general public in order to achieve the stated objective of protecting migrant workers, particularly given that failure to comply with a prohibition order would itself be a serious criminal offence. In addition, the statement of compatibility states that 'much of the information to be published will have already been publicly available through the publication of court findings, or entries on the [Australian Border Force] Register of Sanctioned Employers'.^[33] In those circumstances, it is not clear whether the additional publication of that information would be necessary to achieve the stated objectives.

1.159 A key question is whether the measure is proportionate. In this regard, the circumstances in which an employer may be declared a prohibited employer (and so have their information published online) is relevant. The bill provides that an employer may be prohibited on numerous grounds, but the circumstances in which conviction for a particular offence, or in which an order has been made against them, may result in prohibition would be set out in regulations and not all of this is set out in the bill itself.^[34] Further, there are some provisions that do not require a finding of fault by a court or other independent body but rather rely on the minister being satisfied that the person has failed in their obligations or compliance.^[35] The statement of compatibility states that the circumstances in which a person may be declared a 'prohibited employer' are set at a high threshold, and that these are aimed at employers with a history of deliberate, repeated or serious non-compliance with relevant laws and obligations in their treatment of migrant workers.^[36] It states that it aims to target employers that have a disregard of their employment obligations and the law, as well as deter those who are considering exploiting temporary migrant workers as a means of sourcing an artificially cheap workforce. This may mean that, in practice, an employer may only be liable to a prohibition declaration in restricted circumstances. However, the scope of those circumstances is not clear on the face of the bill. Further, an employer may be declared a prohibited employer because of conduct for which they were sanctioned up to five years prior. The explanatory materials do not explain why this period of time, and not a shorter period, is proposed, and why it is proportionate.

1.160 As to the potential severity of a prohibition declaration, the bill does not specify the maximum length of time for which a declaration may be in force, meaning that there would be no legislative bar to their imposition for lengthy periods. Further, while an employer would be able to make a written submission as to why a declaration should not be made, it is not clear that they could make a submission in relation to the length of time a declaration may be in force. The statement of compatibility does state that the minister must consider not only any written submissions, but any other matters prescribed by regulations. It states that this may include consideration of the person's history of non-compliance, the seriousness of the contravention giving rise to the prohibition being considered, and any extenuating circumstances.^[37] Considerations of these matters could assist with the proportionality of the measure in practice, though it is not clear why these considerations are not required in the bill itself. In addition, proposed section 245AYN would require that in the year after a prohibition period has ended, the employer would be required to provide information (including personal information) to the department about each non-citizen they employ during that period. The statement of compatibility states that this is to ensure that the employer is aware of and complying with their obligations. However, it is not clear why less rights restrictive alternatives (such as the ability to seek a waiver of this requirement, or requiring such reporting for a shorter overall period) would not be as effective to achieve that objective.

1.161 Further, proposed subsection 245AYM(5) states that the minister is not required to arrange for the removal from the department’s website of information published about a prohibited employer. It is not clear why the bill would not require the removal of information where, for example, a prohibition declaration has expired, is subject to appeal, or has been successfully appealed. It is also unclear whether the minister would be required to amend information about a prohibited employer which was inaccurate or otherwise misleading.

1.162 The scope of personal information published is also relevant in considering whether the limitation on the right to privacy is only as extensive as is strictly necessary. The statement of compatibility states that the intention is for the website to list the minimum details necessary for implementation.^[38] Proposed section 245AYM would require the minister to publish the person's name, the reasons for the declaration, the period in which it is in force, and 'any other information that the minister considers is reasonably necessary to identify the person'. It is not clear what other information may be published about a person (for example, where two employers of the same name are declared to be prohibited, whether details about their state of residence or the name of their business would be included).

1.163 As to whether the measure would have the flexibility to treat different cases differently, the bill would provide some flexibility as to the publication of information. The minister would be empowered to prescribe in regulations the circumstances in which publication is not required.^[39] This has the capacity to serve as an important safeguard, however it is not clear what circumstances those may include, and whether considerations of the employer's right to privacy would be relevant. In addition, the statement of compatibility notes that a decision to declare a person to be a prohibited employer would be subject to review by the Administrative Appeals Tribunal.^[40] The availability of independent review also assists with the proportionality of the measure.

1.164 As to safeguards, the statement of compatibility states that the department has commissioned a Privacy Impact Assessment to support the publication process to ensure privacy concerns are addressed, and that procedures will be considered to adhere to the recommendations of that assessment.^[41] This has the capacity to serve as a safeguard, however without knowing the content of that assessment, its safeguard value is unclear. The statement of compatibility also states that the requirement to seek a submission from an employer in advance of declaring them to be a prohibited employer—described as the 'show cause process'–gives the employer an opportunity to respond and to outline any extenuating circumstances.^[42] This process has the capacity to serve as an important safeguard, however as noted above, the consideration of extenuating circumstances described is not contained in the bill itself, but may be prescribed by delegated legislation.

1.165 Finally, it is not clear that other, less rights restrictive alternatives (such as providing relevant information to the public on a request basis, or facilitating access to the information only to non-citizens as part of the visa application process) would be ineffective to achieve the stated objective of the measure. The statement of compatibility does not provide information in this regard.

Committee view

1.166 The committee considers that establishing new mechanisms to prevent exploitative work practices against non-citizens in Australia, including by prohibiting certain employers from employing further non-citizens, are directed towards the important objective of protecting vulnerable migrant workers. The committee notes that these proposed measures would promote the right to just and favourable conditions of work, the absolute prohibition against slavery and servitude, and the right to equality and non-discrimination.

1.167 The committee notes one aspect of these proposed measures would be the publication of declarations that a person is a prohibited employer. The committee considers that the publication of this information may also promote those human rights, insofar as it may protect temporary migrant workers from employers found to have breached workplace laws. The committee considers that this also engages and limits the right to privacy. The committee considers that further information is required to assess the compatibility of this measure with this right, and as such seeks the minister's advice in relation to:

[6] See, UN Committee on Economic, Social and Cultural Rights, General Comment No. 18: the right to work (article 6) (2005) [2].

[10] International Covenant on Civil and Political Rights, articles 2 and 26. Article 2(2) of the International Covenant on Economic, Social and Cultural Rights also prohibits discrimination specifically in relation to the human rights contained in the International Covenant on Economic, Social and Cultural Rights.

[11] See Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights: Cases, Materials and Commentary, 3rd edition, Oxford University Press, Oxford, 2013, [23.39].

[13] There is international case law to indicate that this protection only extends to attacks which are unlawful. See RLM v Trinidad and Tobago, UN Human Rights Committee Communication No. 380/89 (1993); and IP v Finland, UN Human Rights Committee Communication No. 450/91 (1993).

[17] Schedule 1, Part 2, item 5, proposed sections 245AYE–245AYJ. These would include: being barred as an approved work sponsor; conviction or work-related offences under the Criminal Code; certain contravention of the Fair Work Act 2009 or compliance notices pursuant to that Act; and certain contraventions of undertakings given to the Fair Work Ombudsman.

[22] As of 1 July 2023, the value of one penalty unit increased to $313, in accordance with subsection 4AA(3) of the Crimes Act 1914, which provides for indexation of penalty units.

[23] Schedule 1, Part 2, item 5, proposed section 245AYN. This would require that the employer tell the department the name of the non-citizen and their visa details. Contravention of this requirement would be a civil penalty of 48 penalty units (currently $15,024)

[25] Statement of compatibility, pp. 93–96, and 101. It also states, at page 94, that prohibiting an employer from employing additional temporary migrants may limit a temporary worker's opportunity to work for a certain business, and so limit the right to work. However, it states that the primary focus is the protection of those workers and on regulating the behaviour of the employer.

[28] See, for example, the proposed broad definition of 'work' in proposed section 245AYB, which the explanatory memorandum states is intended to capture work in conditions of sexual servitude with no remuneration, and the proposed definition of 'premises' in proposed section 245AYC, which is intended to capture persons who lease or licence premises for the provision of sexual services in brothels. See, explanatory memorandum pp. 30–31.

[30] See, UN Committee on the Elimination of all forms of Discrimination Against Women, General recommendation No. 19: Violence Against Women (1992); General recommendation No. 28 on the core obligations of States parties under article 2 of the Convention on the Elimination of All Forms of Discrimination against Women (16 December 2010).

[31] Schedule 1 Part 5 would extend the existing powers of an inspector under the Act to include the exercise of powers for the purpose of investigating whether another person who is or was an approved work sponsor has contravened proposed subsection 140RB(5). The inspector has investigatory powers including the power to enter premises, inspect things, and require the provision of information or documents. Information they acquire may then be disclosed by the Secretary or Australian Border Force Commissioner where they believe it is necessary for the performance of specific functions or to assist in the administration or enforcement of a law of Australia (section 140XJ). The statement of compatibility does not identify that the proposed expansion of these existing powers would engage and limit the right to privacy, and may engage and limit other human rights.

[34] For example, proposed subsection 245AYF((3)(a) provides that a person is subject to a migrant worker sanction if they have been convicted of an offence under the Fair Work Act 2009 that has been prescribed by the regulations, and in any circumstances specified in the regulations.

Australian Parliamentary Joint Committee on Human Rights

Migration Amendment (Strengthening Employer Compliance) Bill 2023 [2023] AUPJCHR 74 (2 August 2023)

Migration Amendment (Strengthening Employer Compliance) Bill 2023[1]

Employer sanctions for coercive practices

International human rights legal advice

Just and favourable conditions of work; prohibition against slavery; right to equality and non-discrimination

Right to privacy

Committee view

Publication of information about prohibited employers

Preliminary international human rights legal advice

Multiple rights

Committee view

Migration Amendment (Strengthening Employer Compliance) Bill 2023^[1]