Migration Amendment (Employer Sanctions) Bill 2006
By Mark Webster, Acacia Immigration Australia Pty Ltd, 6 June 2006
Introduction
The Migration Amendment (Employer Sanctions) Bill 2006 introduces criminal offences to persons employing non-citizens in breach of Australian Migration Law. This covers employment of people without visas (unlawfuls) and also visa holders who are breaching their visa conditions (eg working holiday makers exceeding the 3 months with an employer).Scope of Problem
DIMA estimates that there were 46,400 "overstayers" or people without visas as of December 2005. More than half of these had been in Australia for at least 5 years, and a majority would be working in Australia unlawfully.Aside from the overstayers, there would be a considerable number of temporary visa holders in Australia who are working in breach of their visa conditions. Such visa holders are at risk of having their visas cancelled and criminal sanctions. These would include the following groups of people:
- Working Holiday Makers: they are subject to a 3-month restriction on working for each employer. There are approximately 100,000 working holiday visa holders in Australia at a given time.
- International Students: can obtain work rights of up to 20 hours per week during semester. As of 30 June 2005, there were 190,400 international students in Australia.
- Visitors: have no work rights in Australia
- Bridging Visa Holders: many bridging visa holders have no work rights (eg most Bridging Visa E holders)
The DIMA estimate of the cost of removing an unlawful person is $3,712 and the cost of canceling and removing a temporary visa holder who is in breach of visa conditions is $13,644. Approximately 12,000 unlawful non-citizens are detected and removed from Australia each year.
Existing Sanctions
Non-citizens working without a visa or in breach of their visa conditions are currently subject to cancellation, removal from Australia and criminal sanctions (maximum fine of $10,000).Existing penalties for employers who employ workers in breach of the Migration Regulations are quite light. It is an offence to aid & abet a non-citizen to work illegally in Australia, but there are very few convictions under this offence due to the difficulty of proving the offence. Employers with employees who breach their visa conditions may also find it more difficult to sponsor temporary workers.
What Types of Work does this Apply To?
Sanctions will apply where work is undertaken by:- Unlawful non-citizens; and
- Temporary visa holders working in breach of their visa conditions.
Who Will be Liable for Prosecution?
Two classes of people will be potentially liable for prosecution:- Those who "allow" non-citizens to work illegally; and
- Those who "refer" a non-citizen to work illegally
In terms of "allowing" a non-citizen to work, this would apply where a person:
- Employs the non-citizen; or
- Engages the non-citizen as a contractor; or
- Bails or leases a chattel to the non-citizen for transportation services - this would apply to taxi-owners who allow non-citizens to drive their taxis; or
- Licences premises to the non-citizen who intends to provide sexual services - this applies to brothel owners who claim that the workers are not employees, but that they are just leasing premises.
Note that the provision of household services is in general excluded from these sanctions. This would cover situations where a householder engages, for instance, a tradesman to provide one-off services.
In terms of "referring" a non-citizen to work illegally, this is a potentially very broad provision which would affect labour hire and recruitment companies referring candidates to employers.
A person is considered to have committed an offence where a non-citizen works illegally and the person either:
- Knows that the non-citizen is working illegally; or
- Is reckless as to whether the non-citizen is working illegally.
The following would need to be shown that a person was "reckless" in allowing a person to work:
- There was a substantial risk that the person would be working illegally; and
- The person was aware of the risk; and
- It was unjustifiable for the person to take the risk in the circumstances.
The intention of the legislation is that there is a higher risk of a worker not having appropriate work rights in some industries - for example the taxi or sex industries. However, the possible application of the term "reckless" is very broad. In particular, the incidence of breaches of visa conditions by international students and working holiday makers is quite high, and any employer who has workers with these types of visa should be very wary to ensure that the employee is complying with their visa conditions.
Base Sanctions
People who allow or refer non-citizens to work illegally in Australia can be convicted for up to 2 years in prison, or a fine of up to $13,200 or $66,000 for a corporation.Note that these penalties apply for each employee working in breach of Migration Law.
Higher Sanctions where Non-Citizen is "Exploited"
A non-citizen is considered to have been exploited where they have been subject to:- Forced Labour; or
- Sexual Serviture; or
- Slavery
Where this is found to have occurred, the penalty is up to 5 years in prison, or a fine of up to $33,000 for an individual or $165,000 for a corporation.
Application of the Bill
The Government has indicated that the new legislation will be applied flexibly. In particular:- For first-time offences, a written warning only will be issued. Prosecution might well occur for subsequent breaches.
- Employers will have a 48-hour "period of grace" to check the visa status of new employees.
Strategies for Risk Management
Employers and recruitment companies should take proactive measures to ensure that employees do not work in breach of Migration Regulations. In particular:- The visa status of each prospective employee should be checked prior to engaging them.
- Keeping records of visa expiry and visa conditions for temporary visa holders.
- Tracking amount of work done (hours and days attended work) for temporary visa holders - particularly working holiday makers and students.
Employers and recruitment companies may wish to engage the services of Acacia Immigration to check the status of employees and ensure that the risk of breach is minimized.
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