Labouring Outside the Law: Migrant Workers and the Protective Reach of Australian Law

In spite of Australia’s enviable record in controlling immigration in all of its incidents, the number of migrants working in contravention of their visa conditions or otherwise in contravention of the law has continued to rise in recent years. This article explores the extent to which migrants working ‘outside’ the law enjoy legal protections when they are injured in the course of their employment or where they suffer injustice at the hands of employers or task masters. The authors begin by outlining the ways in which immigration laws can operate to create ‘precarious’ spaces for migrants at work. Research suggests that non-citizens working without authorisation (in any country) are more likely to be exploited, abused and injured. This article ultimately seeks to demonstrate that a person’s status as an undocumented or ‘irregular’ migrant should not make exploitation, abuse and injury inevitable. Such outcomes flow from the failure of other cognate areas of law to protect the worker. These are: labour law, occupational health and safety law, workers’ compensation law, contract and tort law. It is here that lawyers, jurists and policy makers can help to shape the law so as to afford migrant workers the respect and protection demanded by fundamental human rights norms.