Under the Migration Amendment (Employer Sanctions) Act 2007, it is a criminal offence to knowingly or recklessly employ a person who is either illegally in Australia or is working in breach of their visa conditions. Illegal workers are defined as "unlawful non-citizens" who are working or "lawful non-citizens" who are working in breach of their visa conditions, and offences can apply even where an illegal worker is performing unpaid work.
Minster for Immigration and Citizenship, Kevin Andrews, said the new laws applied to employers, labour hire companies, employment agencies and other people who allowed illegal workers to work or refer illegal workers for work.
"The Coalition Government is committed to helping Australian employers find eligible and legal workers from overseas. However, this commitment comes with an obligation to enforce our laws where we detect abuse of immigration arrangements," Mr Andrews said.
Mr Andrews emphasised the obligation of employers and labour suppliers to ensure all employees had appropriate work visas.
"Any employer in Australia who is employing someone who is from overseas as, for example, a student, or a working holiday maker, or somebody here is under a temporary work visa, they should ensure that that person has got the appropriate work visa in order to work in Australia," he said.
Overview of Amending Act
The Migration Amendment (Employer Sanctions) Act 2007 inserts a new Subdivision C (offences in relation to persons who allow non-citizens to work, or refer non-citizens for work, in certain circumstances) after Division 12 of Part 2 of the Migration Act 1958. The new subdivision applies to employers, labour hire companies, employment agencies and includes taxi owners who bail or lease their taxi cabs to drivers and brothel owners who rent or lease rooms to sex workers. The offences also apply to businesses that operate informal labour referral services such as backpacker hostels that organise harvest work for backpackers.
The new offences are prospective – they only apply to employers and labour suppliers who engage or refer illegal workers on or after 19 August 2007. Employers will not have to check the work entitlements of existing workers unless their contracts are renewed or extended on or after 19 August 2007.
Under the new laws, people convicted face fines of up to $13,200 and two years' imprisonment, while companies face fines of up to $66,000 per illegal worker with penalties even higher in cases of exploitation, such as slavery, forced labour or sexual servitude.
The Federal Government said that the easiest way for employers to avoid committing an offence under the Migration Amendment (Employer Sanctions) Act 2007 was to check that all prospective employees are entitled to work in Australia, and the Department of Immigration and Citizenship (DIAC) has implemented a number of services that make it quick and easy for employers to check the work entitlements of new employees, such as the Visa Entitlement Verfication Online (VEVO) service. VEVO is a free, Internet-based system that allows employers to check the work entitlements of a visa holder online 24 hours a day, 7 days a week. Warning signs that a prospective employee may be an illegal worker includes situations where a job applicant:
- Presents a foreign passport;
- Mentions they are only visiting Australia or have only just arrived in Australia;
- Provides overseas qualifications; or
- Claims they are an Australian citizen but is unable to provide any documentary evidence of this fact.
The Government has also implemented a toll–free Visa Entitlement Verification Faxback service that provides written confirmation of a visa holder's entitlement to work in Australia.
Businesses operating in industries where the DIAC locates a large number of illegal workers such as the hospitality, agriculture, manufacturing, construction, transportation, retail or sex industries are strongly advised to carefully check the work eligibility of all prospective employees to ensure they do not breach the new laws.