01 August 2011

Employer sanctions for employing illegal workers -- good idea, bad implementation

The following figures come from the recently published Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007:
  • as many as 100,000 people working illegally in Australia;
  • 100 instances of possible breach by employers of the laws relating to employing illegal workers;
  • at least 10 matters thoroughly investigated, involving "the deliberate and systematic use of these workers in significant numbers at identified workplaces", some involved in what appeared to be "serious organised rackets" and revealing "apparent abuse of the workers including sexual exploitation, unsafe work practices, underpayment, taxation and welfare fraud, and associated crime";
  • only one matter that "could properly be the subject of a prosecution taking into account the evidential requirements of sections 245AA to AK of the Migration Act 1958 and the Prosecution Policy of the Commonwealth";
  • no actual prosecutions so far, except for one person who pleaded guilty.
Governments of all stripes have been telling us for years that they would "crack down" on the employment of illegal workers. Exploitation, undercutting of wages and conditions, dangerous work practices, sexual abuse, all excellent justifications. While we lock away tens of thousands for the crime of getting on a leaky boat, and point the finger of blame at young foreign students whose only offence was to believe what the government told them, we still can only manage to convict one boss who was dumb enough to plead guilty.

The report concludes:

"The principal reason for the failure of the Employer Sanctions Act provisions is that the ‘best evidence’ of breach would almost always come from the workers themselves but their evidence is affected by their complicity or independent culpability under section 235 of the Migration Act 1958. They would normally be removed from Australia ‘as soon as reasonably practicable’ as required by section 198 of the Migration Act 1958. The cost and the administrative inconvenience of detaining them pending a trial would be prohibitive.

The provisions of the Migration Amendment (Employer Sanctions) Act 2007 are wholly ineffective as a deterrent against the small number of employers and labour suppliers who engage or refer non-citizens who do not have lawful permission to work or who work in breach of their visa conditions. The Employer Sanctions provisions are also ineffective as an educational tool for recalcitrant employers and labour suppliers. "

The report's recommendations include allocation of more resources to Immigration to deal with the problem. Maybe they could take them away from punishing asylum seekers and students and put them into what seems like a much more useful endeavour.

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