EXPLANATORY STATEMENT
Issued by the Minister for Immigration, Citizenship and Multicultural Affairs
Migration Act 1958
Migration Amendment (Workplace Justice Visa) Regulations 2024
The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.
Subsection 504(1) of the Migration Act provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Act.
Subsection 31(3) of the Migration Act provides that the regulations may prescribe criteria for a visa or visas of a specified class. Section 505 of the Migration Act provides that regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion, is to get a specified person or organisation, or a person or organisation in a specified class, to give an opinion etc on a specified matter when deciding whether the applicant satisfies the criterion.
The Migration Amendment (Workplace Justice Visa) Regulations 2024 (the amendment Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to implement a new workplace justice visa that enables a temporary migrant to remain in Australia for a period of time to undertake a workplace justice activity.
The Workplace Justice Visa is one component of a range of measures that the Government is introducing to address migrant worker exploitation following a commitment made at the Jobs and Skills Summit. This commitment was made in response to serious concerns about the corrosive impact of migrant worker exploitation, recognising the harm exploitation causes to the migrant worker and their family. The commitment also recognised broader concerns that if left unaddressed, migrant worker exploitation has the potential to put downward pressure on wages and conditions for all workers and it creates an un-level playing field for those businesses who do the right thing.
The package of reforms is informed by the findings of the Migrant Workers’ Taskforce report, the Nixon Review and the Migration Strategy. One of the overarching objectives of these measures is to address migration-related barriers that have been identified as deterring temporary migrant workers from reporting exploitation due to fears of adverse repercussions on their visa status.
The Workplace Justice Visa has been informed by an extensive co-design process with a range of practitioners experienced in supporting temporary migrants with workplace matters. It has been designed to complement existing supports that enable non-citizen workers to report exploitation and seek workplace justice, including through the proposed amendments to strengthen reporting protections.
The Workplace Justice Visa operates as a new clause in the subclass 408 (Temporary Activity) visa. Under policy, a Workplace Justice Visa may generally be granted for a period to allow the holder the right to remain in Australia for a minimum period of 6 months or up to 12 months (within a maximum available period of 4 years available under the Migration Regulations). The visa is only available to temporary migrants in Australia, and who have certification regarding their workplace exploitation matter from a participating government entity or accredited non-government party. Workplace Justice Visa holders will be able to work in order to support themselves while they pursue workplace justice. Members of their family unit who are in Australia are also able to apply for this visa.
Implemented initially as a pilot, the Workplace Justice Visa will be available to a class of persons determined in a legislative instrument made under the Migration Regulations. With careful monitoring and ongoing engagement with participating certifying bodies, the class of persons eligible may be adjusted throughout the life of the pilot to maximise opportunities to achieve the overarching objective of improving workplace justice outcomes while managing integrity risks. A legislative instrument will also set out which government or non-government entities can certify workplace exploitation matters, supporting transparency about participating third parties, and providing a framework for participation. The workplace justice visa also provides a holder with work rights to ensure that they can maintain their ability to support themselves during their stay.
A Statement of Compatibility with Human Rights has been completed in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011. The overall assessment is that the Regulations are compatible with human rights. A copy of the Statement is at Attachment A.
The Office of Impact Analysis (OIA) has been consulted in relation to the amendments. The OIA considers that the Regulations are unlikely to have more than a minor regulatory impact and therefore no impact analysis is required. The OIA consultation reference number is OIA24-07058.
Section 17 of the Legislation Act 2003 (Legislation Act) provides that the rule maker must be satisfied that consultation has been undertaken that is appropriate and reasonably practicable before making a legislative instrument. The Department has consulted other Commonwealth agencies in the course of developing the amend regulations, including the Department of Employment and Workplace Relations (DEWR). The Department has also consulted extensively with targeted non-government stakeholders on the policy parameters of the pilot, and these consultations have informed the pilot settings.
The amendments commence on 1 July 2024.
Details of the Regulations are set out in Attachment B.
The Regulations amend the Migration Regulations, which are exempt from sunsetting under table item 38A of section 12 of the Legislation (Exemptions and Other Matters) Regulation 2015. The Migration Regulations are exempt from sunsetting on the basis that the repeal and remaking of the Migration Regulations:
The Migration Act specifies no conditions that need to be satisfied before the power to make the Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Legislation Act.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Workplace Justice Visa) Regulations 2024
This Disallowable 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 Disallowable Legislative Instrument
The Migration Amendment (Workplace Justice Visa) Regulations 2024 (the amendment Regulations) amend the Migration Regulations 1994 (the Migration Regulations) to implement a new Workplace Justice Visa. The Workplace Justice Visa allows temporary migrants to extend their stay in Australia for a short period, where beneficial or necessary, to pursue workplace justice where they have been the subject of a workplace exploitation matter.
The Workplace Justice Visa is one component of a range of measures that the Government is introducing to address migrant worker exploitation following a commitment made at the Jobs and Skills Summit. This commitment was made in response to serious concerns about the corrosive impact of migrant worker exploitation, recognising the harm exploitation causes to the migrant worker and their family. The commitment also recognised broader concerns that if left unaddressed, migrant worker exploitation has the potential to put downward pressure on wages and conditions for all workers and it creates an un-level playing field for those businesses who do the right thing.
The package of reforms is informed by the findings of the Migrant Workers’ Taskforce report, the Nixon Review and the Migration Strategy. One of the overarching objectives of these measures is to address migration-related barriers that have been identified as deterring temporary migrant workers from reporting exploitation due to fears of adverse repercussions on their visa status.
The Workplace Justice Visa has been informed by an extensive co-design process with a range of practitioners experienced in supporting temporary migrants with workplace matters. It has been designed to complement existing supports that enable non-citizen workers to report exploitation and seek workplace justice, including through the proposed amendments to strengthen reporting protections.
The Workplace Justice Visa operates as a new clause in the subclass 408 (Temporary Activity) visa, and will grant a holder the right to remain in Australia for a minimum 6 months or up to 12 months (within the maximum available period of 4 years available under the Migration Regulations). The visa is only available to temporary migrants in Australia, and who have certification regarding their workplace exploitation matter from a participating government entity or accredited non-government party. Workplace Justice Visa holders will be able to work in order to support themselves while they pursue workplace justice. Members of their family unit who are in Australia are also able to apply for this visa.
Implemented initially as a pilot, the Workplace Justice Visa will be available to a class of persons determined in a legislative instrument made under the Migration Regulations. With careful monitoring and ongoing engagement with participating certifying bodies, the class of persons eligible may be adjusted throughout the life of the pilot to maximise opportunities to achieve the overarching objective of improving workplace justice outcomes while managing integrity risks. A legislative instrument will also set out which government or non-government entities can certify workplace exploitation matters, supporting transparency about participating third parties, and providing a framework for participation.
The Amendment Regulations commence on 1 July 2024 to coincide with the commencement of the Migration Amendment (Strengthening Employer Compliance) Act 2024. While these amendments are not dependent on that Act, they do complement the broader package of reforms by supporting workplace justice outcomes, with the broader goal of improving employer compliance and reducing the exploitation of temporary migrant workers.
Human rights implications
This Disallowable Legislative Instrument may engage:
Rights relating to just and favourable conditions of work
The amendment Regulations engage Article 7 of the ICESCR, which states that:
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 omen being guaranteed conditions of work not inferior to those enjoyed by men, with equal pay for equal work […]
(b) Safe and healthy working conditions;[…]
The Workplace Justice Visa is intended to promote rights to just and favourable conditions of work, for both the individual visa holder and for workers more broadly.
The amendments enable temporary migrant workers to extend their stay in Australia to pursue workplace justice where they are unable to effectively do so on their current visa. The aim of this measure, in conjunction with other measures the Government is implementing to address migrant worker exploitation, is to remove migration-related barriers to reporting exploitation so that temporary migrant workers can more easily initiate claims to remedy breaches of workplace laws and assist in investigations of employer breaches.
Increased reporting of breaches of workplace law will also inform compliance targeting, enabling enforcement officials to better identify dishonest and non-compliant employers. This will benefit a broad range of vulnerable workers in the Australian labour market - enhancing employer compliance, improving workplace justice outcomes for temporary migrant workers, and assisting in upholding just and favourable conditions of work for all workers.
Right of equality and non-discrimination
The amendment Regulations may engage the right of equality and non-discrimination in Article 26 of the ICCPR, which states:
All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
Similarly, Article 2(2) of the ICESCR states:
The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
As an underlying principle, workers should be protected by workplace laws regardless of their immigration status. The Workplace Justice Visa supports this principle and promotes the rights to equality and non-discrimination, ensuring visa holders are not unduly disadvantaged because of their temporary visa status, specifically in relation to their exercise of work-related rights. Key features of the visa include no visa application charge and an ability to work so that they are able to support themselves while they pursue workplace justice.
It is intended that only applicants who meet the parameters outlined in a legislative instrument will be eligible for the visa. The aim is to ensure such settings can be adjusted as required – based on evidence and outcomes – so that the new visa can achieve its objectives. Migrant workers who are not eligible for the new Workplace Justice Visa are still able to seek redress for breaches of workplace laws regardless of their immigration status.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it helps protect the human rights of temporary migrant workers in Australia.
The Hon Andrew Giles MP
Minister for Immigration, Citizenship and Multicultural Affairs
ATTACHMENT B
Details of the Migration Amendment (Workplace Justice Visa) Regulations 2024
Section 1 – Name
This section provides that the name of the instrument is the Migration Amendment (Workplace Justice Visa) Regulations 2024.
Section 2 – Commencement
This section provides that the Regulations commence on 1 July 2024.
Section 3 – Authority
This section provides that the instrument is made under the Migration Act 1958.
Section 4 – Schedules
This section provides for how the amendments made by the Regulations operate. In summary, Schedule 1 to the Regulations amends the Migration Regulations as set out in the Schedule.
Schedule 1 – Amendments
Migration Regulations 1994
Item [1] – Subitem 1237(3) of Schedule 1 (table item 2)
An applicant:
(a) if subitem (5A) applies to the applicant—must be in Australia, but not in immigration clearance; or
(b) otherwise—may be in or outside Australia, but not in immigration clearance.
5. The reference to new subitem 1237(5A) in new paragraph (a) of table item 2 in subitem 1237(3) of Schedule 1 is in effect a reference to an applicant for a workplace justice visa. As noted below, new subitem 1237(5A) refers to an applicant who is seeking to satisfy the criterion in clause 408.219A of Schedule 2 on the basis that clause 408.228A (workplace justice) of that Schedule applies to the applicant.
6. The effect of new paragraph (a) of table item 2 in subitem 1237(3) of Schedule 1 is that an applicant for a workplace justice visa must, at the time of applying for the visa, be in Australia and not in immigration clearance. However, as per the amendments to clause 408.511 described below, the applicant may be either inside or outside Australia at the time of visa grant.
7. Under new paragraph (b) of table item 2 in subitem 1237(3) of Schedule 1, it will continue to be the case that any applicant for a Temporary Activity (Class GG) visa other than an applicant for a workplace justice visa may be in or outside Australia (but not in immigration clearance) at the time of application for the visa.
Item [2] – Subitem 1237(3) of Schedule 1 (paragraph (a) of table item 3)
8. This item inserts a reference to the new workplace justice visa in paragraph (a) of table item 3 of subitem 1237(3) of Schedule 1 to the Migration Regulations.
9. The effect of this item is that an applicant for a workplace justice visa (i.e. an applicant seeking to satisfy the criterion in clause 408.219A of Schedule 2 on the basis of new clause 408.228A) will not be required to satisfy the sponsorship requirements of subitems (4) or (5) of item 1237 of Schedule 1 to the Migration Regulations.
Item [3] – Subitem 1237(3) of Schedule 1 (after table item 3)
10. This item inserts new table item (3A) after table item 3 of subitem 1237(3) of Schedule 1 to the Migration Regulations.
11. Subitem 1237(3) of Schedule 1 of the Migration Regulations provides a range of additional requirements that must be met by an applicant for the Temporary Activity (Class GG) visa.
12. New table item (3A) of subitem 1237(3) sets out the Schedule 1 criteria that must be met by a workplace justice visa applicant (referred to in new table item (3A) as an applicant who is seeking to satisfy the criterion in clause 408.219A of Schedule 2 on the basis that new clause 408.228A (workplace justice) applies).
13. New table item (3A) of subitem 1237(3) of Schedule 1 prescribes the following Schedule 1 criteria for an applicant for a workplace justice visa:
(a) a certificate has been issued in relation to the applicant by a person, body or government entity determined in an instrument made under new subitem (5B) of item 1237;
(b) the certificate states a matter relating to workplace exploitation that is of a kind determined in the instrument made under subitem (5B) of item 1237 applies in relation to the applicant;
(c) the certificate has not been revoked or set aside.
14. In relation to new paragraph (b) in table item (3A) of subitem 1237(3), the certificate must only state a matter relating to a kind of workplace exploitation determined in the legislative instrument made by the Minister. The certificate will not meet the requirements of the provision where it refers to a kind of workplace exploitation that is not determined in the legislative instrument.
15. Section 505 of the Migration Act relevantly provides that:
regulations for the purpose of prescribing a criterion for visas of a class may provide that the Minister, when required to decide whether an applicant for a visa of the class satisfies the criterion:
(a) is to get a specified person or organisation, or a person or organisation in a specified class, to:
(i) give an opinion on a specified matter; or
(ii) make an assessment of a specified matter; or
(iii) make a finding about a specified matter; or
(iv) make a decision about a specified matter; and
(b) is:
(i) to have regard to that opinion, assessment, finding or decision in; or
(ii) to take that opinion, assessment, finding or decision to be correct for the purposes of;
deciding whether the applicant satisfies the criterion.
16. The purpose of new table item (3A) of subitem 1237(3) is to require an applicant for the workplace justice visa to hold relevant certification by a body or person determined in a legislative instrument demonstrating there is prima facie evidence that the applicant has been subjected to workplace exploitation. The persons or bodies who can provide the certification, and the kinds of workplace exploitation that will be relevant, may be determined in an instrument made under the power in new subitem 1237(5B).
Item [4] – After subitem 1237(5) of Schedule 1
17. This item inserts new subitems 1237(5A) and (5B) after subitem 1237(5) in Schedule 1 of the Migration Regulations.
18. New subitem 1237(5A) prescribes the classes of applicants for new table item 2 in subitem 1237(3) of Schedule 1 of the Migration Regulations. As described above, this in effect prescribes the classes of applicants for the Temporary Activity (Class GG) visa who must be in Australia (but not in immigration clearance) at the time of application for the visa.
19. Under new subitem 1237(5A), this requirement will apply to the following applicants:
20. New subitem 1237(5B) provides that the Minister may make a legislative instrument to determine:
(a) a person or body for the purposes of paragraph (a) of item 3A of the table in subitem (3);
(b) a kind of matter relating to workplace exploitation for the purposes of paragraph (b) of item 3A of the table in subitem (3).
21. Paragraph (a) of new subitem 1237(5B) provides that the legislative instrument may determine a person, body or government entity for the purposes of paragraph (a) of table item 3A in subitem (3). As noted above, that provision prescribes a criterion for a workplace justice visa applicant that a certificate has been issued in relation to the applicant by a person or body determined in the instrument made under subitem (5B).
22. Paragraph (b) of new subitem 1237(5B) provides that the legislative instrument may determine a kind of matter relating to workplace exploitation for the purposes of paragraph (b) of table item 3A in subitem 1237(3). As noted above, that provision prescribes a criterion for a workplace justice visa applicant that the required certificate states that a matter relating to workplace exploitation determined in the instrument applies in relation to the applicant.
23. The legislative instrument is exempt from disallowance under section 42 of the Legislation Act 2003 (Legislation Act). This is because a legislative instrument made under Schedule 1 to the Migration Regulations is prescribed under section 10, item 20(b) of the Legislation (Exemptions and Other Matters) Regulation 2015 as an instrument not subject to disallowance.
24. The effect of new subitem 1237(5B) in conjunction with new table item 3A in subitem 1237(3) is that only a certificate that:
will be sufficient to satisfy the criteria prescribed under new table item 3A in subitem (3).
Item [5] - At the end of item 1237 of Schedule 1
25. This item inserts a definition of government entity for the purposes of item 1237 of Schedule 1 of the Migration Regulations.
26. The term is defined to mean an agency or authority of the Commonwealth, a State or a Territory, or a person who holds an office or appointment under a law of the Commonwealth, a State or a Territory.
Item [6] – Subclause 408.219(2) of Schedule 2
27. This item inserts a reference to the new workplace justice visa in subclause 408.219(2) of Schedule 2 to the Migration Regulations.
28. Clause 408.219 of Schedule 2 to the Migration Regulations prescribes one of the primary criteria for the subclass 408 – Temporary activity visa (subclass 408 visa) set in clause 408.2 of Schedule 2.
29. Subclause 408.219(1) of Schedule 2 generally prescribes a criterion that an applicant for the subclass 408 visa will not be performing as an entertainer etc in Australia.
30. However, subclause 408.219(2) of Schedule 2 provides that subclause 408.219(2) is not to apply to applicants of kind prescribed in that subclause.
31. This item amends subclause 408.219(2) of Schedule 2 to add a reference to an applicant who satisfies the requirements in clause 408.228A (workplace justice). The effect is that these applicants will not be prevented by subclause 408.219(1) from performing as an entertainer etc in Australia.
Item [7] – After clause 408.228 of Schedule 2
32. This item inserts new clause 408.228A in Schedule 2 of the Migration Regulations. This clause prescribes the Schedule 2 criteria for the workplace justice visa where an applicant is applying for the subclass 408 visa.
33. New paragraph 408.228A(1)(a) provides a Schedule 2 criterion for a workplace justice visa that the applicant seeks to remain in Australia to ‘undertake a workplace justice activity’, a term which is defined in new subclause 408.228A(2).
34. New paragraph 408.228A(1)(b) provides a Schedule 2 criterion for a workplace justice visa that the applicant is in a class of persons specified in a legislative instrument made by the Minister. This will provide the Minister with the flexibility to specify, over time, a class of persons that is appropriate in the circumstances.
35. A legislative instrument made under this provision is exempt from disallowance under section 42 of the Legislation Act 2003 (Legislation Act). This is because a legislative instrument made under Schedule 2 to the Migration Regulations is prescribed under section 10, item 20(b) of the Legislation (Exemptions and Other Matters) Regulation 2015 as an instrument not subject to disallowance.
36. New subclause 408.228A(2) provides a definition of ‘undertake a workplace justice activity’, which is a Schedule 2 criterion for the workplace justice visa under new paragraph 408.228A(1)(a). The term ‘undertake a workplace justice activity’ is defined to mean the applicant:
(a) is a complainant or victim (or alleged victim) in criminal proceedings relating to the matter (the workplace exploitation matter) referred to in paragraph (b) of item 3A of the table in subitem 1237(3) of Schedule 1; or
(b) is a party to civil proceedings relating to the workplace exploitation matter; or
(c) is a complainant in a complaint made relating to the workplace exploitation matter.
37. A general requirement for each of paragraphs (a), (b) and (c) of new subclause 408.228A(2) is that the relevant proceedings or complaint must already have commenced at the time the person is applying for the workplace justice visa. It will not be sufficient if such proceedings are merely contemplated or intended to occur after the application for the workplace justice visa has been made.
38. Each of paragraphs (a), (b) and (c) of new subclause 408.228A(2) operate by reference to a workplace exploitation matter, as referred to in new paragraph (b) of table item 3A in subitem 1237(3) of Schedule 1. As described above, that provision prescribes a Schedule 1 criterion that the applicant has obtained a certificate stating a matter relating to workplace exploitation applies in relation to the applicant.
39. New subclause 408.228A(2) of Schedule 2 provides that the term ‘undertake a workplace justice activity’ will only refer to a particular matter of workplace exploitation set out in the relevant certificate for the applicant. The effect of this provision in conjunction with new paragraph 408.228A(1)(a) of Schedule 2 is that an applicant will only be considered to ‘undertake a workplace justice’ if they pursue a particular matter of workplace exploitation set out in the applicant’s certificate.
Item [8] – Subparagraphs 408.511(1)(b)(ii) and (2)(a)(ii) of Schedule 2
40. This item inserts a reference to the new workplace justice visa in subparagraphs 408.511(1)(b)(ii) and (2)(a)(ii) of Schedule 2 to the Migration Regulations.
41. Clause 408.511 of Schedule 2 to the Migration Regulations prescribes when a subclass 408 visa is in effect.
42. Subclause 408.511(1) of Schedule 2 to the Migration Regulations prescribes when the visa is in effect if the applicant is outside Australia at the time of grant of the visa.
43. Subclause 408.511(2) of Schedule 2 to the Migration Regulations prescribes when the visa is in effect if the applicant is inside Australia at the time of grant of the visa.
44. The effect of this item is that a primary applicant for a workplace justice visa:
45. As noted in paragraph 44, policy guidance will be provided to support consideration of the period of stay to be determined at time of visa grant. While clause 408.511 as amended would provide for a stay period of up to four years to be specified on visa grant, related policy guidance indicates that, having regard to the circumstances of the applicant and related matters, a stay period of at least six months, and up to 12 months, would generally be considered appropriate.