In July 2023 the Australian government introduced the Migration Amendment (Strengthening Employer Compliance) Bill 2023 (Cth) responding to two of our key recommendations.
Working with Human Rights Law Centre and our other allies, Migrant Justice Institute has made submissions on the Bill, advocated for its amendment and will testify before the Senate committee inquiring into the Bill.
About the bill
The bill introduces a provision that importantly confirms that workplace protections apply to all workers regardless of any breach of the Migration Act 1958. The Bill also creates a new legislative vehicle intended to provide protection against visa cancellation for exploited workers. But we argue it does not go far enough.
(The Bill also introduces new offences for employers who coerce migrant workers with threats of immigration consequences, and increased enforcement tools for the Department of Home Affairs to police exploitation.)
Why we oppose the proposed vehicle for protection against visa cancellation
Late last year, our report Breaking the Silence set out a model for ‘whistle-blower’ protections for migrant workers. That report was endorsed by over 40 organisations – including trade unions, service providers, peak migration bodies, trade union, the NSW Anti-Slavery Commissioner, churches and business leaders. We proposed an Exploited Worker Visa Guarantee: a guarantee against visa cancellation for breach of visa conditions, for temporary workers who take action against employers.
The Bill proposes to introduce a new sub-s 116(1A), that would allow the Minister the power to specify in Regulations certain information that Department of Home Affairs delegates ‘may,’ ‘must’ or ‘must not’ be considered when deciding whether a ground of cancelation arises before deciding whether to cancel a visa on discretionary grounds. It also allows the Minister to specify the weight to be given to that information.
This model still allows Department delegates complete discretion to cancel a visa. It does not provide an assurance against cancellation which is critical to ensure that international students and other temporary visa holders come forward against exploitation. It would, at best, introduce a regime under which the Minister (through his delegates) could give ‘significant weight’ to evidence of workplace exploitation, when deciding whether or not to cancel a visa.
Our recommendation: The amendments to s 116 of the Act should not be passed. Instead, the government should issue regulations under s 116(2), prescribing circumstances in which a visa must not be cancelled, where there is prescribed evidence of exploitation.