Migration Amendment (Strengthening Employer Compliance) Bill 2023 [2023] AUSStaCSBSD 120 (2 August 2023)

• Migration Amendment (Strengthening Employer Compliance) Bill 20231
• Privacy
• Significant matters in delegated legislation2
• Immunity from civil liability7
• Retrospective application9

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

Purpose	The Bill seeks to strengthen the legislative framework in the Migration Act 1958 to improve employer compliance and protect temporary migrant workers from exploitation. New employer sanctions introduced by the bill include criminal offences and civil penalties related to exploitative work arrangements. The bill also increases existing maximum penalties relating to sponsorship obligations. The bill implements recommendations 19 and 20 from the Report of the Migrant Workers’ Taskforce (March 2019).
Portfolio	Home Affairs
Introduced	House of Representatives on 22 June 2023

Privacy
Significant matters in delegated legislation^[2]

1.1 Part 2 of Schedule 1 to the bill introduces a number of amendments which would allow the Minister, or their delegate, to prohibit certain employers from employing any additional non-citizens. These persons are designated as 'prohibited employers'.

1.2 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. A person may become subject to a migrant worker sanction for a variety of reasons including upon being convicted of a range of work-related offences under the Fair Work Act 2009, being subject to certain civil penalties or contraventions of the Fair Work Act 2009, or contravening enforceable undertakings imposed under that Act. In addition, a migrant worker sanction may be imposed on the basis of the Minister being satisfied of certain matters, including that the person had failed to satisfy their sponsorship or that the person failed to comply with a compliance notice without reasonable excuse.

1.3 Importantly, the circumstances in which conviction for a particular offence, or contravention of a civil penalty provision or enforceable undertaking, could result in a person being subject to a migrant worker sanction would be set out in regulations rather than within the bill itself. The committee is concerned about this use of delegated legislation given the significant consequences that may occur upon being declared a prohibited employer. A declaration that a person is a prohibited employer would prevent a person from employing additional non-citizens, or from having a material role in decisions by a body corporate or other body that allows a non-citizen to begin work.^[3] Breach of the prohibition would be an offence punishable by imprisonment for two years or 360 penalty units or both, or a civil penalty punishable by 240 penalty units.

1.4 The committee's view is that significant matters, such as this, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In relation to the delegated legislation making powers at proposed subsection 245AYF(3) the explanatory memorandum states:

The design of this power seeks to ensure that only appropriate offences can be prescribed, and once prescribed, can only enliven the Minister’s power to impose a migrant worker sanction in appropriate circumstances. Regulations made under this provision will be subject to disallowance.
The purpose of this regulation-making power is to provide the Government with the ability to respond to changes to workplace laws and to the dynamic and shifting nature of migrant worker exploitation, ensuring that the scheme continues to remain fit for purpose in the future. Focusing the scope and application of the power aligns with scrutiny principles and best practice for provision of matters in delegated legislation, and ensures that the regulation-making power is appropriately targeted to achieving the scheme’s overarching objectives as a measure under the legislative framework that supports migration, namely the Migration Act.^[4]

1.5 While acknowledging this explanation, the committee notes that it has not generally considered flexibility to be a sufficient justification, of itself, for including significant matters within delegated legislation. The committee is particularly concerned in this case given that there is substantial scope for the regulations to alter who may be subject to a migrant worker sanction. The committee considers that it would have been helpful had the explanatory materials outlined examples of the kinds of circumstances that it is contemplated may be prescribed within the regulations.

1.6 In addition, the committee is concerned by the impact of the amendments on individual privacy. Under proposed section 245AYM, the minister is required to publish identifying information in relation to a prohibited employer online, except in prescribed circumstances.^[5] This information includes the name of the person, the reasons they have been declared a prohibited employer and any other information that the Minister considers is reasonably necessary to identify the person. Under subsection 245AYM(5), the Minister is not required to arrange for the removal of this information when the person stops being a prohibited employer.

1.7 The explanatory memorandum states:

Relevantly, although the Minister is not required to arrange for the removal of this information, the intention is that such information would be removed from the Department’s website as soon as reasonably practicable after the person stops being a prohibited employer.
APPs 10 and 13 outline an APP entity’s responsibility to take reasonable steps to ensure information is accurate, up-to-date, complete and relevant, and to take action to correct any information that has become inaccurate or out of date. There are no authorised by law exemptions to these APPs, but rather compliance is required when reasonable in the circumstances.^[6]

1.8 The committee welcomes the stated intention to remove the information as soon as reasonably practicable. The committee also welcomes the existence of safeguards within the bill, such as the requirement at subsection (3) that personal information about any individual other than the prohibited employer must not be published.

1.9 However, it is not clear to the committee from this explanation why proposed subsection (5) is required. In addition, it is not clear why further safeguards cannot be included within the bill in relation to the appropriate use of personal information, such as a requirement that the Minister must consider an application from an affected person to take down their personal information.

1.10 The committee also considers that it would be appropriate to establish clear non-legislative processes to guide the appropriate use of personal information under proposed section 245AYM. For example, it is not clear from the face of the bill, or from the material included within the explanatory memorandum, whether there is a formal process in place to identify when a person has stopped being a prohibited employer or to ensure a consistent approach is taken as to which information should appropriately be included for publication under paragraph 245AYM(1)(c). The committee recommends that such processes be implemented.

1.11 In light of the above, the committee requests the minister's further advice as to:

• why it is considered both necessary and appropriate to include the regulation making powers set out in Part 2 of Schedule 1 to the bill; and

• whether high-level guidance about the use of these powers can be included within the bill.

1.12 The committee notes that its consideration of this issue will be assisted if the minister provides examples demonstrating what kinds of circumstances it is contemplated may be prescribed within the regulations.

1.13 The committee also requests the minister's advice as to:

• why it is considered necessary and appropriate to include proposed subsection 245AYM(5), so that the Minister is not required to arrange for the removal of information when a person stops being a prohibited employer; and

• what safeguards are in place to ensure the appropriate exercise of publication powers under section 245AYM, and whether these are set out in law or policy.

Immunity from civil liability^[7]

1.14 As noted above, proposed section 245AYM requires the Minister to publish certain information relating to prohibited employers on the Department's website. Proposed subsection 245AYM(4) provides that no civil liability arises in relation to the publication of information under section 245AYM, so long as the publication was undertaken in good faith.

1.15 This provision would remove any common law right to bring an action to enforce legal rights (for example, a claim of defamation), unless it can be demonstrated that lack of good faith is shown. The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified.

1.16 In this instance, the explanatory memorandum states that providing immunity from liability 'ensures the integrity of the scheme by allowing persons to be confident that publishing information in good faith will not attract any civil liability'.^[8]

1.17 While acknowledging this explanation, the committee considers that it would have been more appropriate had the explanatory materials addressed the limited nature of the 'good faith' safeguard and why providing the immunity is nevertheless justified in light of the limited nature of this safeguard. The committee notes that in the context of judicial review, bad faith is said to imply the lack of an honest or genuine attempt to undertake a task. Proving that a person has not engaged in good faith will therefore involve personal attack on the honesty of a decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.18 The committee draws its concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of providing an immunity from civil liability, such that affected persons have their right to bring an action to enforce their legal rights limited to situations where a lack of good faith is shown.

Retrospective application^[9]

1.19 Item 36 of Schedule 1 to the bill provides that the amendments introduced under Part 5 of that Schedule apply to conduct engaged in before, on or after commencement. Part 5, which introduces the concept of compliance notices into the Migration Act 1958 (Migration Act), would therefore have a retrospective application.

1.20 Generally, where proposed legislation will have a retrospective effect, the committee expects that the explanatory materials will set out the reasons why retrospectivity is sought, whether any persons are likely to be adversely affected and the extent to which their interests are likely to be affected.

1.21 In this instance, the explanatory memorandum states:

The introduction of compliance notices as an additional compliance tool to deal with conduct constituting a work-related offence or a contravention of a work-related provision is intended to provide an alternative to court proceedings, in an effort to encourage greater compliance by employers. 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.
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. The establishment of the Migrant Workers’ Taskforce was preceded by a significant number of high-profile cases revealing exploitation of migrant workers to a concerning level. These cases were highlighted by government investigations, public inquiries and media reports. Among other things, these cases exposed unacceptable gaps in Australia’s legal system designed to treat all workers equally, regardless of their visa status.
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The application of the amendments to the Migration Act by this Part to conduct (including an omission) occurring before, on or after the commencement of the Schedule ensures that the ABF has the necessary tools to deal effectively with existing, and in some cases intractable, non-compliance with provisions of the Migration Act that are intended to protect migrant workers, as well as Australia’s reputation as a destination of choice.

1.22 The committee acknowledges that retrospective application may be considered necessary in order to ensure compliance with the new regime. However, the committee considers that it would have been more appropriate had the explanatory memorandum also provided a detailed explanation of the extent to which the retrospective application of these provisions would affect individuals and why, in light of this potentially negative impact, the retrospective application was nevertheless considered justified.

1.23 The committee draws its concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of providing that the amendments introduced by Part 5 of Schedule 1 to the bill, relating to compliance notices, have a retrospective application.

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[1] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Migration Amendment (Strengthening Employer Compliance) Bill 2023, Scrutiny Digest 8 of 2023; [2023] AUSStaCSBSD 120.

[2] Schedule 1, Part 2. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i) and (iv).

[3] Schedule 1, Part 2, item 5, proposed section 245AYL.

[4] Explanatory memorandum, p. 34.

[5] Schedule 1, Part 2, item 5, proposed section 245AYM.

[6] Explanatory memorandum, p. 46.

[7] Schedule 1, item 5, proposed subsection 245AYM(4). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[8] Explanatory memorandum, p. 46.

[9] Schedule 1, item 36. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).