Visa exploitation review urges tougher penalties and a ban on temporary migrants in sex work. Would this solve the problem?

Home Affairs Minister Clare O'Neil has railed against the exploitation of Australia’s migration system, saying it has been “used to perpetrate some of the worst crimes to humanity, sexual slavery and human trafficking”.

After releasing a long-awaited review into the country’s immigration and visa system, conducted by former Victoria Police commissioner Christine Nixon, O'Neil pledged to take immediate action against the offences revealed in the report.

The government has committed to spending an additional $50 million to create a new division in the Department of Home Affairs to increase immigration compliance resources by 43% this financial year.

This is in addition to legislation it has already introduced to strengthen employer compliance measures to protect temporary migrants from exploitation.

But the Nixon review goes further, with more than 30 recommendations. The government agreed with many of the recommendations in its response. Responses on other points are still pending.

This is a strong review and it’s quite considered. Importantly, it has placed the compliance dimension into the visa processing system instead of keeping it mainly within Australian Border Force.

Read more: 'I’m really stuck': how visa conditions prevent survivors of modern slavery from getting help

Cracking down on misconduct by migration agents

Among its recommendations, the Nixon review called for strengthening the compliance and investigative powers of the Office of the Migration Agents Registration Authority to address misconduct by registered migration agents. It also called for an increase in the financial penalties for misconduct related to migration advice.

The government agreed with both recommendations in its response.

Compared with other countries’ laws on illegal migration assistance, Australia has longer terms of imprisonment for offenders, but its financial penalties are much lower, the review said. It noted:

[Registered migration agents] may perceive that engaging in such illegal activity is low risk, and high reward.

The migration agent sector is not highly regulated. Registered migration agents are not trained at the same level as solicitors, yet they are giving sophisticated advice in a very complex area of public policy with high stake outcomes.

As such, any further regulation of this sector is a good thing and giving the Office of the Migration Agents Registration Authority stronger powers would be important.

There are different ways to improve the system, such as greater oversight, more compliance checks and harsher penalties, increasing the periods of training for migration agents, and the use of disciplinary panels. In serious cases, the criminal law should also be used, if appropriate.

Some kind of financial risk for engaging in the behaviour seen in the Trafficked series by the Nine news outlets is a potentially strong punishment, if it is enforced appropriately.

The review also said overseas migration agents are currently not required to be registered with the Office of the Migration Agents Registration Authority to provide immigration advice, which it recommended changing.

A ban on temporary migrants in the sex industry?

The review noted that temporary workers are at the greatest risk of employer abuse and exploitation, particularly those who are trafficked to Australia to work in the sex industry.

Among its recommendations, the review said the government should look at how other countries address the heightened risk of exploitation in the sex industry. Canada, for instance, has implemented a ban on any temporary migrants working in this sector.

The review recommended a similar ban in Australia, as well as increased penalties for those found to be hiring temporary migrants for the sex industry, saying:

The prohibition of temporary migrants working in the sex industry would send a strong and clear message that the Australian government has no tolerance for the exploitation of temporary migrants.

The government disagreed with both of these recommendations in its response, saying a ban might not be in accordance with Australia’s international rights obligations.

Sexual exploitation has distinctive dimensions – it sometimes involves sexual assault and sexual harassment, combined with underpayment and other types of abuse, such as racism.

Read more: Forced labour, sexual exploitation and forced marriage: modern slavery in Australia hides in plain sight

One reading of this particular Nixon recommendation is that it is puritanical. Why focus on the sex industry and not other sectors? Is this because these victims are viewed as being more worthy of protection, or is this a more serious form of exploitation because sex is more likely to be involved?

Some advocates in the sex industry, such as the Scarlet Alliance), believe a full ban would not stop exploitation in the sex industry, it would just drive it further underground. It may also make it harder for victims to speak out, especially in cases of modern slavery.

Further, in some states, such as NSW, there are quite progressive laws around the regulation of sex work compared to other countries. So, this regulation would create a distinction between Australians and permanent residents who engage in “safer” sex work and those on temporary visas.

This could result in a split in the industry between work that is appropriately regulated and quite well protected and that which is essentially unlawful.

In short, while sexual exploitation of temporary migrants is egregious, upsetting and worrisome, it needs to be addressed in ways that do not create perverse incentives or worsen exploitation risks.

Reducing backlogs in visa processing

The Nixon review also focused on the lengthy processing times for some visa subclasses, which it said cumulatively could last up to a decade.

There’s a clear link between government under-funding, visa processing backlogs and compliance issues. The backlogs create an incentive to engage in fraudulent asylum claims because claimants have appeal rights for longer periods of time.

In this way, a bridging visa that is issued pending an Administrative Appeals Tribunal (AAT) decision can act like a quasi-work visa. During this time, short-term migrants with limited opportunities for visa extensions or work are open to labour market exploitation.

Read more: Immigration system set for overhaul in wake of review's damning findings

So, cracking down on backlogs in appeal processes to avoid visa extensions where they are not appropriate is a broader part of the exploitation puzzle. This seems to be a part of the government’s agenda.

The review again recommended looking overseas and examining whether Canada’s approach to refugee claims – in particular, its more streamlined ineligibility assessment process – could be replicated here. (The government agreed with this recommendation.)

However, Canada’s approach to the bulk processing of certain claims, including with the use of artificial intelligence, has raised concerns around procedural fairness and led to litigation. Avoiding such pitfalls would need to be considered by the Australian government.

Finally, better funding of the Administrative Appeals Tribunal is another big part of reducing the misuse of appeals processes for fraudulent claims.

The Nixon review and the government’s response have been described by Immigration Minister Andrew Giles as “a generational investment in immigration compliance”. This appears to be an accurate assessment. Naturally, building an evidence base and cultural capacity to implement these changes will be an important part of the next step.