Migration Amendment (Protecting Migrant Workers) Bill 2021 - Commentary on Ministerial Responses [2022] AUSStaCSBSD 12 (4 February 2022)

• Migration Amendment (Protecting Migrant Workers) Bill 2021
• Procedural fairness—right to a fair hearing16

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Migration Amendment (Protecting Migrant Workers) Bill 2021

Purpose	This bill seeks to the Migration Act 1958 to introduce new offences and related civil penalty provisions for employers, labour hire intermediaries and other persons in the employment chain who coerce or exert undue influence or undue pressure on a non-citizen to accept or agree to an arrangement in relation to work: • involving a breach of a work-related condition applying to the non-citizen; or • to satisfy a work-related visa requirement; or • to avoid an adverse effect on the non-citizen’s immigration status.
Portfolio	Home Affairs
Introduced	House of Representatives on 24 November 2021
Bill status	Before the House of Representatives

Procedural fairness—right to a fair hearing^[16]

2.32 In Scrutiny Digest 18 of 2021 the committee requested the minister's advice as to why it is considered necessary and appropriate to provide that proposed Subdivision E of Division 12 of Part 2 of the Migration Act 1958 (Migration Act) and sections 494A and 494D of that Act, in so far as they relate to proposed Subdivision E, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with, including why the level of flexibility traditionally applied by the courts in relation to natural justice is not sufficient in this instance.^[17]

Minister's response^[18]

2.33 The minister advised:

The Migration Amendment (Protecting Migrant Workers) Bill 2021 has been introduced to give effect to the Government's response to recommendations made by the Migrant Workers' Taskforce. The amendments in the Bill will strengthen the legislative framework in the Migration Act 1958 (the Migration Act) to protect non- citizen workers from unscrupulous practices in the workplace.
The amendments in Part 2 of the Schedule to the Bill will insert new Subdivision E at the end of Division 12 of Part 2 of the Migration Act. New Subdivision E establishes a power for the Minister to declare a person to be a prohibited employer. A person can only be declared a prohibited employer if they are subject to a 'migrant worker sanction' - that is, where they are:
• convicted of a work-related offence under the Migration Act;
• the subject of a court order for contravention of either a work-related
provision of the Migration Act, or certain remuneration-related civil
remedy provisions of the Fair Work Act 2009; or
• the subject of a bar, as an approved work sponsor, under the
Migration Act's Sponsorship Framework.
Given the consequences of being declared a prohibited employer, it is appropriate that new Subdivision E includes provisions to ensure that procedural fairness is afforded consistently in all cases.
New Subdivision E balances the rights and interests of the person being considered for declaration as a prohibited employer (including the right to be heard before a declaration is made) and the need to ensure serious matters concerning the mistreatment of migrant workers are dealt with promptly. The statutory processes in Subdivision E do not abrogate the affected person's access to procedural fairness and a fair hearing. Instead, Subdivision E - and particularly new sections 245AYG and 245AYK - will guarantee that when a person is being considered for declaration as a prohibited employer, standard processes will be followed, and standard timeframes will apply.
If a person is being considered for declaration as a prohibited employer, new section 245AYG will require the Minister to give that person written notice that the Minister proposes to make a declaration. This notice must include the reasons for the proposed declaration. Section 245AYG does not seek to exclude the disclosure of adverse information from this requirement, where it is necessary to assure fairness to the affected person.
Section 245AYG also requires the Minister to invite the person to make a written submission, setting out reasons why the Minister should not make the declaration. The provision sets a minimum period of 28 days for the affected person to respond, and flexibility for the Minister to specify a longer period. This ensures that the affected person has an opportunity, and a reasonable period of time, to consider and respond to the Minister. Section 245AYG clearly establishes a requirement for the Minister to consider any written submission made by the affected person under this section.
The inclusion of new section 245AYK is appropriate and necessary as part of this framework to support section 245AYG. New section 245AYK is modelled on existing provisions in the Migration Act, such as sections 51A, 97A and 118A, which support similar statutory procedural fairness processes. More broadly, the inclusion of section 245AYK in Subdivision E aligns with the approach adopted in other Commonwealth Acts.
New subsection 245AYK(1) makes clear that where provisions in new Subdivision E set out processes that deal with procedural fairness, those processes must be followed. The express reference in new subsection 245AYK(2) to current sections 494A to 494D makes clear that those sections are relevant in considering how the Minister may provide documents under Subdivision E to a person or their authorised recipient, and when a person is taken to have received a document from the Minister. While sections 494A to 494D would apply in relation to new Subdivision E even without new subsection 245AYK(2), this provision puts it beyond doubt.
Relevantly, Subdivision E also provides for independent merits review through the Administrative Appeals Tribunal of a decision to make a declaration. Judicial review is also available; in which case, it would be open to the court to consider matters relating to procedural fairness and the natural justice hearing rule more broadly.
The processes in Subdivision E will ensure fairness is at the centre of any decision-making before a person is declared to be a prohibited employer, while also addressing the uncertainties that may flow from continually evolving common law conceptions of natural justice. This clarity is important for both the affected person and the decision-maker.

Committee comment

2.34 The committee thanks the minister for this response. The committee notes the minister's advice that proposed Subdivision E does not abrogate a person's right to procedural fairness and a fair hearing. Rather, the minister advised that proposed Subdivision E will guarantee that when a person is being considered for declaration as a prohibited employer, standard processes will be followed and standard timeframes will apply. The minister advised that, given the consequences of being declared a prohibited employer, it is appropriate that proposed Subdivision E includes provisions to ensure that procedural fairness is afforded consistently in all cases. The minister advised that proposed Subdivision E will ensure fair decision-making is maintained, while also addressing the uncertainties that may flow from continually evolving common law conceptions of natural justice.

2.35 In this regard, the minister advised that several elements of procedural fairness are retained under proposed Subdivision E. For example, the minister advised that when it is proposed to declare a person to be a prohibited employer the minister is required to give that person written notice that the minister proposes to make the declaration, including reasons for the proposed decision. The minister advised that proposed section 245AYG does not seek to exclude the disclosure of adverse information from this requirement where it is necessary to assure fairness to the affected person. In addition, the minister advised that affected persons will be invited to make a written submission setting out why the minister should not make a decision and that the minister is required to consider such a submission.

2.36 The minister further advised that proposed section 245AYK is modelled on existing provisions within the Migration Act and that independent merits review and judicial review is available in relation to a decision made under proposed Subdivision E.

2.37 While acknowledging this advice, the committee remains of the view that proposed Subdivision E does, at least to some extent, abrogates a person's right to procedural fairness and a fair hearing because proposed section 245AYK limits the scope of the natural justice hearing rule to the matters set out within proposed Subdivision E and to sections 494A and 494D of the Migration Act, in so far as they relate to proposed Subdivision E. The committee reiterates its consistent scrutiny view that procedural fairness is a fundamental common law right that should only be abrogated in limited circumstances.

2.38 The committee does not consider that consistency with existing legislation is a sufficient justification for limiting a person's right to procedural fairness. In addition, a desire for administrative certainty is generally not a sufficient justification for limiting fundamental common law rights. It is not clear to the committee from the minister's explanation how or why it is important to ensure clarity for an affected person by limiting their right to procedural fairness. The committee notes in particular that the principles of procedural fairness are well-established and that the matters raised by the minister as to consistency of the application of procedural fairness are matters that could be appropriately considered by the courts without limiting a person's right to procedural fairness within the bill.

2.39 The committee also notes that the minister's response does not comprehensively address why it is necessary to exclude certain aspects of the natural justice hearing rule beyond stating a general desire for prompt decision-making and administrative certainty. The committee therefore does not consider that the minister has adequately addressed the committee's scrutiny concerns.

2.40 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of providing that proposed Subdivision E of Division 12 of Part 2 of the Migration Act 1958 and sections 494A and 494D of that Act, in so far as they relate to proposed Subdivision E, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.

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^[16] Schedule 1, item 9, proposed section 245AYK. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

^[17] Senate Scrutiny of Bills Committee, Scrutiny Digest 18 of 2021, pp. 18-20.

^[18] The minister responded to the committee's comments in a letter dated 14 December 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 1 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.