House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Immigration and Border Protection, the Hon. Peter Dutton MP)

Attachment A - Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Migration Amendment (Enhanced Integrity) Bill 2017

This Bill/Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Bill

This Bill amends legislation to enable the Department of Immigration and Border Protection (the Department) to implement measures to strengthen the integrity of Australia's temporary and permanent employer sponsored skilled migration programmes. Legislative change will be required to the following:

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Migration Act 1958 (the Act);

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Tax Administration Act 1953 (the Taxation Act);

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Income Tax Assessment Act 1936 (the Tax Assessment Act);

The purpose of the Bill is fourfold.

Tax File Number sharing

Firstly, the Bill will enable the Department to collect, record, store and use the tax file numbers (TFNs) of applicants and holders of specified visas for compliance activities, to assess the work undertaken in Australia for some permanent sponsored skilled visa applications, and research purposes. Enhanced data matching through TFN sharing will improve the Department's ability to perform the research and trend analysis that underpins the development of visa policy.

The Department monitors sponsors of overseas workers to ensure they comply with their obligations under the Migration Act and the Migration Regulations 1994 (the Migration Regulations). Sponsors may breach their obligations by, for example, underpaying visa holders, or otherwise contravening the Migration Act.

Sponsored visa holders are subject to condition 8107 which requires that a visa holder not cease or change work. This includes visa holders working for a business that was not approved in the nomination. There are currently difficulties verifying that sponsors are paying visa holders correctly or if a visa holder is working for more than one employer. Employers may collude with visa holders to alter documentation provided to the Department as evidence of salary payments, or employers may be engaging skilled visa holders who are not approved to work for them.

The Australian Taxation Office (ATO) is responsible for the collection of tax revenue within Australia. As such, their records include information on salaries paid to visa holders; including the amount and origin of such payments. The ATO tracks these payments through a unique identifier; the TFN. The TFN would assist the Department in undertaking more streamlined, targeted, and effective compliance activities.

However, subsection 8WA(1) of Subdivision BA of the Taxation Act provides that a person must not require or request another person to quote the other person's TFN. Subsection 8WB(1) provides that a person must not record another person's TFN or maintain such a record, use another person's TFN in a manner connecting it with the other person's identity, or divulge or communicate another person's TFN to a third person.

The Bill will amend sections 8WA and 8WB of the Taxation Act, amend section 202 of the Tax Assessment Act, and amend the Act to specifically limit the operation of sections 8WA and 8WB and to facilitate the administration of the Act for the relevant purposes.

Public disclosure of sponsor sanctions

Secondly, the Bill will authorise the Department to publicly disclose the details of sponsors who have breached their obligations as set out in the Migration Regulations 1994 (the Regulations).

Currently, the Department is only able to release limited information to the public regarding breaches of sponsorship obligations. Current annual reports on sponsor sanctions contain aggregate data. However, these annual reports do not contain information on companies or their breaches under the sponsorship obligations set out under Division 2.19 of the Regulations. The Department also periodically publishes details of sponsor sanctions that have already reached the public domain through court proceedings or the media.

Due to a lack of detail contained in annual sponsor sanctions reports and the irregularity of the Department commenting on specific cases that have already reached the public, current disclosure practices do not sufficiently inform the public of breaches and sponsors' compliance histories. The Department is also unable to advise informants of the outcome of their complaint. Consequently, the release of information currently does not offer a sufficient deterrent to sponsors that have, or may, breach their obligations under the framework. This undermines public confidence in the Department's compliance activities in this area.

To authorise the Department to publicly disclosure the details of business once a sanction has been imposed, the Bill will amend Division 3A of Part 2 of the Act to expressly permit the Minister to disclose information regarding sponsor sanctions to the public.

Clarification of review rights

Thirdly, the Bill will ensure that there is certainty around merit review rights for visas that require an approved nomination and that the relevant legislation achieves the Government's policy intention. It will do this by amending section 338 of Part 5 of Division 2 of the Act to provide that merit review is only available where:

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there is an approved nomination that has not ceased; or

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an application to review a decision not to approve a nomination has been lodged; or

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an application to review a decision not to approve a sponsorship has been lodged; or

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an applicant who does not require a nomination is, at the time that the visa is refused, sponsored by an approved sponsor.

Judicial reviews in recent years have resulted in a number of interpretations in relation to whether the visa applicant is 'sponsored' or not, based on the state (lodged, approved, or refused) of the associated nomination application. This has resulted in circumstances where an applicant has review rights that are wider than the original policy intention. This has led to vexatious applications for merits review aimed solely at inappropriately extending a visa applicant's stay in Australia, and uncertainty as to whether or not the Department has correctly notified the relevant persons of their right to merits review.

Technical amendments

Finally, the Bill will correct references to sections of the Regulatory Powers Act in the Migration Act (subparagraphs 140K(1)(a)(iv) and (v), and s140K(2)(a)(iii).

These technical amendments have no client impact. Whilst the provisions to enter into an enforceable undertaking, and to apply for orders where an enforceable undertaking is breached already exist in the Migration Act, they have not been used as the references to the Regulatory Powers Act are incorrect. The amendment corrects these references and gives effect to the original intent of legislation. As such, this aspect of the Bill does not engage any of the applicable rights or freedoms.

A detailed explanation of the rights and freedoms when the original enforceable undertaking legislation was introduced can be found in the Statement of Compatibility prepared for the Migration Amendment (Temporary Sponsored Visas) Act 2013.

Human rights implications

The Right to work and rights at work

Article 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides:

The States Parties to the present Covenant recognize the right of everyone to the enjoyment of just and favourable conditions of work which ensure, in particular:

a)

Remuneration which provides all workers, as a minimum, with:

i.

Fair wages and equal remuneration for work of equal value without distinction of any kind, in particular women being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work;

ii.

A decent living for themselves and their families in accordance with the provisions of the present Covenant;

b)

Safe and healthy working conditions;

c)

Equal opportunity for everyone to be promoted in his employment to an appropriate higher level, subject to no considerations other than those of seniority and competence;

d)

Rest, leisure and reasonable limitation of working hours and periodic holidays with pay, as well as remuneration for public holidays

Article 8 of the International Covenant on Civil and Political Rights (ICCPR) provides:

1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be prohibited.

2. No one shall be held in servitude.

3. (a) No one shall be required to perform forced or compulsory labour.

The Bill positively engages Article 7 of the ICESCR and Article 8 of the ICCPR and protects both the right to work and right to fair work conditions for workers to be properly renumerated by their employer.

Under paragraph 2.79(1A)(b) and sub regulation 2.79(2) of the Regulations a sponsor is obligated to provide an annual salary and working conditions that are no less favourable than would be enjoyed by an Australian citizen in the same position.

Visa holders may be considered to have greater vulnerability to exploitation in the workplace due to their unfamiliarity with Australian practices and laws. This Bill seeks to redress this issue by informing the public, including visa holders, of a sponsor's adverse compliance history. This will assist visa holders to make more informed decisions about potential employers and therefore be better placed to avoid workplace exploitation in Australia. Additionally, by releasing a sponsor's adverse compliance history to the public, the Department will be able to demonstrate that there are public repercussions for sponsors who breach their sponsor obligations described by Division 2.19 of the Regulations. This will encourage visa holders, and others, to report suspected breaches, and acts as a deterrent to a sponsor who may otherwise breach their obligations.

Right to an adequate standard of living

Article 11(1) of the ICESCR provides

1. The States Parties to the present Covenant recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions. The States Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.

Breaches of sponsor obligations may jeopardise the income and standard of living of sponsored visa holders. Temporary work visa holders rely on their employer to provide them with an income that supports an adequate standard of living given they do not qualify for unemployment benefits in Australia.

This reliance of the temporary work visa holder upon their employer might, in some cases, provide the visa holder an incentive to tolerate an erosion of their workplace rights. The public disclosure of sponsor sanction details would result in financial and reputational impacts for a business that is found to have breached their obligations towards a visa holder. These impacts would serve as a general deterrent for employers that may consider breaching sponsorship requirements. Additionally, the Department's ability to use TFN sharing to verify that relevant visa holders are being paid the salary approved during the visa process and investigate where salaries are reduced inappropriately is a further protection for Temporary work visa holders. This is an extra layer of income protection for temporary work visa holders who are unable to access the welfare system. As such, this Bill positively engages Article 11 of the ICESCR as it protects a temporary work visa holders' right to an adequate standard of living.

Right to Privacy and Reputation

The International Covenant on Civil and Political Rights (ICCPR) Article 17 states:

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Serious ramifications may result from salary underpayments or breaches of visa conditions. Sponsors may be removed, or suspended from, the sponsored skilled work visa programme. Visa holders may have their visa cancelled.

Data matching using TFNs minimises the risk of misidentifying a visa holder when investigating a sponsor for compliance with their obligations. The limits placed on a visa holder's right to privacy by TFN sharing are justifiable as reasonable, necessary and proportionate because it provides the Department with a tool to more accurately identify and investigate infringements of that visa holder's work rights. As such, TFN sharing will enable the Department to undertake compliance activities with improved targeting. TFN sharing will also support legitimate research activities into skilled migration trends and outcomes.

Adverse information regarding a sponsor's breaches of the relevant legal requirements will be disclosed publicly, as discussed in the background above. This information may be linked to individuals within an organisation, as in the case of sole proprietors. However, given the disclosure of information is limited to the name of the business, the Australian Business Number, the relevant legal requirements that have been breached, there will be limited circumstances where personal information of individuals will be involved. As such, to the extent that the publication of a sponsor's breaches of the relevant legal requirements discloses personal information, Article 17 of the ICCPR is engaged.

The disclosure of a sponsor's breaches of the relevant legal requirements will be lawful on the passing of this Bill. Further, publication of details of sponsor sanctions will be executed in accordance with the Australian Border Force Act 2015 (the ABF Act), and the Privacy Act 1988 (Cth), both setting out protections in Australian domestic law consistent with the requirement in Article 17(2) of the ICCPR. Public disclosure of details when a party breaches regulatory requirements is an existing practice within the Australian Government. The Office of the Migration Agents Registration Authority (OMARA) regularly publishes details of disciplinary decisions taken against migration agents on its website. This includes agent names, registration numbers, and the results of compliance investigations. Similarly, the Fair Work Ombudsman (FWO) publishes the details, including business names, of litigation outcomes, enforceable undertakings, and compliance partnerships on the FWO website. The Department will publish an analogous level of detail as is currently published by the OMARA and the FWO, such as business names, Australian Business Numbers, and specific details of their adverse compliance outcome.

The publication of sponsor sanction details should be seen as the Department applying a consistent approach to the enforcement of regulatory requirements with entities that participate in its programmes. In this way, the publication of sponsor's breaches of the relevant legal requirements is reasonable; it is applying a measure used in similar contexts for similar purposes.

Given the serious ramifications for vulnerable visa holders that arise from sponsors breaching the relevant legal requirements, such as limiting a visa holder's ability to earn a wage that allows them to appropriately support themselves and their families, the limitation of a sponsor's right to privacy is justified. The publication will be appropriately limited to cases where a breach has been substantiated and a sanction has been imposed. As such it will be confined to cases where it is necessary to inform future potential visa holders of the risks of accepting employment with the relevant sponsor and to cases that will genuinely act as a deterrent to other sponsors. Further, the public disclosure of a sponsor's adverse compliance outcomes will support public confidence in the integrity of the skilled migration programmes by demonstrating that sponsors breaching their legal requirements will not go unnoticed.

Right to effective remedy

Article 13 of the ICCPR provides:

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

Merits review rights for applicants whose subclass 457 visa were refused currently depend on the circumstances in place at the time the merits review application is lodged, as opposed to the time the visa decision is made. This leads to a complex situation where some visa applicants may not have merits review rights at the time their application is refused, but may subsequently obtain merits review rights as a result of future events. This includes the approval of a new nomination or lodgement of a review application in relation to a nomination refusal. Applicants also currently have merits review rights in circumstances where a nomination has been lodged but has not been decided at the time they apply for merits review of the decision to refuse to grant a visa.

This presents a barrier to properly notifying an applicant of their merits review rights, as required under the Act, and also undermines the original intention of the policy of these provisions by introducing ambiguity around who the Department should notify of merits review rights and when notification should occur.

Over the past four years, this ambiguity has led to vexatious applications for merits review aimed solely at inappropriately extended a visa applicant's stay in Australia. Contained in this Bill is a measure to clarify the circumstances when a visa applicant with an approved nomination has merits review rights.

The clarification of merits review rights will result in the removal of certain merits review rights, namely in circumstances where a nomination application has been lodged but is not yet approved at the time the decision to refuse to grant a visa is made. The amendment ensures that it is clear that merits review is available at the appropriate point in the visa application process, namely when a visa is refused, and only in circumstances where there is either an approved nomination, or a decision affecting whether there is an approved nomination not is being reviewed This reflects the original policy intention.

It is the Australian Government's position that while merits review can be an important safeguard, there is no express requirement for merits review under the ICCPR, including under Article 13. As such, the removal of certain merits review rights in this context does not limit Article 13. Furthermore, merits review rights continue to be available for nomination and visa decisions, albeit only after refusal. This Bill does not change or remove, in any way, a visa applicant's rights to judicial review, which is the right to challenge the legal validity of a decision in a court.

Conclusion

The proposed amendments are compatible with human rights because they support the relevant human rights and to the extent that they may also limit human rights, those limitations are reasonable, necessary and proportionate.