Migration Amendment (Strengthening Employer Compliance) Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 156 (6 September 2023)

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Migration Amendment (Strengthening Employer Compliance) Bill 2023^[61]

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
Bill status	Before the House of Representatives

Privacy

Significant matters in delegated legislation^[62]

2.75 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'.

2.76 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 (Fair Work Act), being subject to certain civil penalties or contraventions of the Act, 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.

2.77 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. 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.

2.78 In addition, under proposed section 245AYM, the minister is required to publish identifying information in relation to a prohibited employer online, except in prescribed circumstances.^[63] 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.

2.79 In Scrutiny Digest 8 of 2023^[64] the committee requested the minister's 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;

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

• the committee noted 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.

• the committee also requested 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.

Minister's response^[65]

2.80 In relation to the inclusion of the power to prescribe Fair Work Act criminal offences and additional civil contraventions as migrant worker sanctions via regulations, the minister advised that this is necessary for flexibility. Further, the minister advised that this is to ensure changes to workplace laws are more easily incorporated into migration law, noting that currently only civil offences under the Fair Work Act are considered appropriate in this context. As an example, the minister noted that the Government has committed to introducing a criminal offence for wage theft and the regulation-making power in the bill would allow for the consideration of including this offence in the migrant worker sanction regime.

2.81 The minister noted that the bill empowers regulations which prescribe circumstances that may apply in relation to a criminal offence or civil contravention of the Act to enable different types of legal liability to be included or excluded as appropriate.

2.82 The minister advised that he will consider possible amendments to the bill and its explanatory memorandum, including the committee's request for the inclusion of high-level guidance on the regulation-making powers on the face of the bill. This consideration will take place after the handing down of the report on the bill by the Legal and Constitutional Affairs Legislation Committee.

2.83 In relation to privacy, the minister advised that proposed subsection 245AYM(5) reflects the need to absolve the minister of responsibility where it may not be practicable for all relevant information to be removed from the internet where it may have been shared beyond the Departmental website. Further, unforeseen delays may prohibit the removal of information by a specified date.

2.84 In relation to safeguards, the minister noted that in accordance with Australian Privacy Principles the Department will take reasonable steps to ensure the accuracy of published information and will review a person's published information upon request or where a review appears necessary. The minister further noted that the commencement of the provisions is delayed to ensure time to develop and embed policies and training to safeguard the accuracy of published information.

Committee comment

2.85 The committee welcomes the minister's further advice about the operation of offence provisions in this context. The committee also welcomes the minister's explanation that the bill prescribes circumstances relevant to prescribed Act offences by regulation to allow for different types of legal responsibility to be applied, but notes that examples of such circumstances would have been beneficial.

2.86 In relation to the privacy of published personal information, the committee notes the wording of proposed subsection 245AYM(5) would absolve the minister of responsibility for removing information published only on the Department's website and not any subsequent reproductions or republications of personal information across other internet sources. It therefore appears that the need to absolve the minister of the responsibility for removing information spread beyond the Department's website is irrelevant as this would not be captured in the provision as drafted. Requiring the minister to remove relevant personal information from the Departmental website appears to the committee to be a reasonably practical and straightforward step to safeguard personal information, and in line with the Department's intention to take reasonable steps to ensure the accuracy of published information.

2.87 The committee welcomes the minister's advice as to the steps that will be taken within the Department to ensure the accuracy and relevancy of published personal information. The committee also welcomes that the Department will embed relevant procedures and training to ensure that published information is safeguarded.

2.88 The committee welcomes the minister's undertaking to consider possible amendments to the bill in light of the committee's request for high-level guidance on the regulation-making powers set out in Part 2 of Schedule 1 to the bill. In light of this, the committee makes no further comment on this matter.

2.89 The committee retains its view that it is not necessary and appropriate for proposed subsection 245AYM(5) to provide that the minister is not required to arrange for the removal of information from the Department's website when a person stops being a prohibited employer, given the removal of relevant information appears to be a relatively straightforward and practical safeguard.

2.90 In light of the above, the committee draws its concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of proposed subsection 245AYM(5).

Immunity from civil liability^[66]

Retrospective application^[67]

2.91 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. In Scrutiny Digest 8 of 2023^[68] the committee drew concerns to the attention of senators, and left 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.

2.92 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, would therefore have a retrospective application. In Scrutiny Digest 8 of 2023^[69] the committee drew its concerns to the attention of senators, and left 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.

Minister's response

2.93 The minister advised that the delayed commencement of the relevant provisions affords sufficient time to the Department to establish policies and procedures to ensure any information published is done so in good faith and with accuracy.

2.94 The minister further advised that compliance notices will direct an employer or business to undertake or cease certain activities. They are therefore not a penalty or punitive in nature, although punitive measures may be applicable to failure to comply. The minister also advised that without the proposed compliance notices '...only the current compliance measures in the Migration Act would be available. This would mean that the available compliance options in respect of that non-compliant conduct would be less timely and more onerous and costly (e.g. an infringement or court process).'

Committee comment

2.95 The committee thanks the minister for providing this information, and, noting the committee has already drawn its concerns in relation to these matters to the attention of the Senate, makes no further comment.

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[61] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Migration Amendment (Strengthening Employer Compliance) Bill 2023, Scrutiny Digest 10 of 2023; [2023] AUSStaCSBSD 156.

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

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

[64] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 8 of 2023 (2 August 2023) pp. 21–26.

[65] The minister responded to the committee's comments in a letter dated 28 August 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 10 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest.

[66] 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).

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

[68] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 8 of 2023 (2 August 2023) pp. 21–26.

[69] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 8 of 2023 (2 August 2023) pp. 21–26.