On June 1, 2013, the Australian government introduced stricter penalties for businesses that hire, or condone the hiring of illegal workers within their company. The Migration Amendment (Reform of Employer Sanctions) Bill 2012 amends the existing Employer Sanctions of the Migration Act 1958, which addresses the regulations and restrictions of both unlawful non-citizens working in Australia and lawful non-citizens working in breach of their visa limitations.
These new penalties apply when an employer allows or refers “an unlawful non-citizen to work,” or allows or refers “a non-citizen to work in breach of a visa condition that limits or restricts work.” The penalties range from administrative warnings to five years imprisonment and/or a $255,000 fine in cases of “aggravated criminal offences.” The new provisions also provide that a company’s executive officer can be held criminally liable if they knew of or were recklessly indifferent to a violation of immigration law, and if they were in a position of influence and failed to prevent such a violation.
Though the penalties are greater than those outlined in previous acts, for a violator to receive the maximum penalty, the government must show that the employer had actual knowledge or acted in reckless indifference to the illegal worker’s status. The provisions also provide a defense for employers if the employer used reasonable steps to verify the legality of the employee’s work status.
These new reforms were implemented following a 2011 review of Australia’s Migration Amendment (Employer Sanction) Act 2007. This review found that the current sanctions were not an effective deterrent against employers hiring illegal workers. Though the Employer Sanctions Act 2007 criminalized persons who knowingly allowed unlawful non-citizens to work or who allowed lawful non-citizens to work in breach of work visa limitations, the number of employers hiring illegal workers continued to rise. As of June 30, 2012 the estimated number of illegal workers in Australia was around 51,000 and the estimated number of employers hiring illegal workers was 1,928. This is an increase of 259 employers in only two years.
The Australian government hopes that these new sanctions will reduce the overall number of illegal workers in Australia. Brendan O’Conner, Australia’s Minister for Immigration, states that these reforms are intended to “stamp out illegal work practices and ensure local jobs are available for local job seekers.” Mr. O’Conner reassured Australian companies, stating that if they follow the government’s regulations then they have “nothing to fear.” Though the new sanctions against employers can be severe, the government officials foresee the penalties being limited to cases of persistent non-compliance or following serious breaches of immigration law.