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32    Migration Amendment (Charging for a Migration Outcome) Bill 2015

Order of the day read for the adjourned debate on the motion of the Assistant Minister to the Prime Minister (Senator McGrath)—That this bill be now read a second time.

Debate resumed.

Question put and passed.

Bill read a second time.

The Senate resolved itself into committee for the consideration of the bill.

 

 

 

In the committee

Bill taken as a whole by leave.

Senator Carr moved the following amendments together by leave:

Schedule 1, item 1, page 3 (line 11), omit “sponsorship-related event”, substitute “migration outcome-related event”.

Schedule 1, item 1 page 3 (lines 14 and 15), omit “sponsorship-related event”, substitute “migration outcome-related event”.

Schedule 1, item 1, page 3 (line 20), omit “sponsorship-related event”, substitute “migration outcome-related event”.

Schedule 1, item 1, page 3 (line 23), omit “sponsorship-related event”, substitute “migration outcome-related event”.

Schedule 1, item 3, page 3 (after line 29), after the definition of benefit in subsection (4), insert:

migration outcome-related event has the meaning given by section 245AQ.

Schedule 1, item 3, page 3 (lines 30 and 31), omit the definition of sponsorship-related event in subsection (4).

Schedule 1, item 6, page 4 (line 8), omit “ sponsored visas ”, substitute “ work visas ”.

Schedule 1, item 6, page 4 (after line 24), after the definition of executive officer in section 245AQ, insert:

migration outcome-related event means any of the following events:

                              (a)  a person applying for approval as a sponsor under section 140E in relation to a sponsor class;

                              (b)  a person applying for a variation of a term of an approval as a sponsor under section 140E in relation to a sponsor class;

                               (c)  a person becoming, or not ceasing to be, a party to a work agreement;

                              (d)  a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa;

                               (e)  a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;

                               (f)  a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa;

                               (g)  a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;

                              (h)  a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa;

                                (i)  a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a work visa has been granted, has been applied for or is to be applied for;

                               (j)  a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;

                              (k)  the grant of a work visa;

                                (l)  a prescribed event.

Schedule 1, item 6, page 5 (after line 31), after the definition of sponsorship-related event in section 245AQ, insert:

work visa means:

                              (a)  a sponsored visa; or

                              (b)  any other visa (other than a visa of a prescribed kind, however described) in accordance with which the holder may perform work:

                                                  (i)   without restriction; or

                                                 (ii)   subject to one or more work-related conditions.

Schedule 1, item 6, page 4 (line 28) to page 5 (line 31), omit the definition of sponsorship-related event in section 245AQ.

Schedule 1, item 6, page 5 (line 33), omit “ sponsorship-related event ”, substitute “ migration outcome-related event ”.

Schedule 1, item 6, page 5 (line 38), omit “sponsorship-related event”, substitute “migration outcome-related event”.

Schedule 1, item 6, page 6 (line 2), omit “sponsorship-related event”, substitute “migration outcome-related event”.

Schedule 1, item 6, page 6 (line 23), omit “ sponsorship-related event ”, substitute “ migration outcome-related event ”.

Schedule 1, item 6, page 6 (line 28), omit “sponsorship-related event”, substitute “migration outcome-related event”.

Schedule 1, item 6, page 6 (line 31), omit “sponsorship-related event”, substitute “migration outcome-related event”.

Schedule 1, item 6, page 7 (lines 12 and 13), omit “ sponsorship-related offence ”, substitute “ migration outcome-related offence ”.

Schedule 1, item 6, page 7 (line 15), omit “sponsorship-related offence”, substitute “migration outcome-related offence”.

Schedule 1, item 6, page 7 (line 18), omit “sponsorship-related offence”, substitute “migration outcome-related offence”.

Schedule 1, item 6, page 7 (line 20), omit “sponsorship-related offence”, substitute “migration outcome-related offence”.

Schedule 1, item 6, page 7 (line 24), omit “sponsorship-related offence”, substitute “migration outcome-related offence”.

Schedule 1, item 6, page 7 (lines 32 and 33), omit “sponsorship-related offence”, substitute “migration outcome-related offence”.

Schedule 1, item 6, page 8 (lines 4 and 5), omit “ sponsorship-related contravention ”, substitute “ migration outcome-related contravention ”.

Schedule 1, item 6, page 8 (line 8), omit “sponsorship-related contravention”, substitute “migration outcome-related contravention”.

Schedule 1, item 6, page 8 (line 11), omit “sponsorship-related contravention”, substitute “migration outcome-related contravention”.

Schedule 1, item 6, page 8 (line 13), omit “sponsorship-related contravention”, substitute “migration outcome-related contravention”.

Schedule 1, item 6, page 8 (line 24), omit “sponsorship-related contravention”, substitute “migration outcome-related contravention”.

Schedule 1, item 6, page 8 (lines 32 and 33), omit “sponsorship-related contravention”, substitute “migration outcome-related contravention”.

Schedule 1, item 6, page 9 (line 4), omit “sponsorship-related contravention”, substitute “migration outcome-related contravention”.

Schedule 1, item 6, page 9 (line 8), omit “sponsorship-related contravention”, substitute “migration outcome-related contravention”.

Schedule 1, item 6, page 9 (line 12), omit “sponsorship-related contravention”, substitute “migration outcome-related contravention”.

Schedule 1, item 6, page 9 (line 14), omit “sponsorship-related contravention”, substitute “migration outcome-related contravention”.

Schedule 1, item 9, page 14 (line 22), omit “sponsorship-related offence”, substitute “migration outcome-related offence”.

Schedule 1, item 10, page 14 (line 26), omit “sponsorship-related provision”, substitute “migration outcome-related provision”.

Schedule 1, page 14 (after line 27), after item 10, insert:

10A  Section 487A

Insert:

migration outcome-related offence means:

                              (a)  an offence against Subdivision D of Division 12 of Part 2; or

                              (b)  an offence against section 6 of the Crimes Act 1914 that relates to an offence against that Subdivision; or

                               (c)  an ancillary offence (within the meaning of the Criminal Code ) that is, or relates to, an offence against that Subdivision.

migration outcome-related provision means a civil penalty provision in Subdivision D of Division 12 of Part 2.

Schedule 1, item 11, page 14 (line 31) to page 15 (line 1), omit paragraphs (a) and (b) of the definition of related provision , substitute:

                              (a)  a migration outcome-related offence; or

                              (b)  a migration outcome-related provision; or

Schedule 1, item 13, page 15 (lines 17 to 19), omit paragraphs 487B(1)(a) and (b), substitute:

                              (a)  a possible migration outcome-related offence; or

                              (b)  a possible contravention of a migration outcome-related provision; or

Schedule 1, item 15, page 15 (line 25), omit “sponsorship-related provision”, substitute “migration outcome-related provision”.

Schedule 1, item 16, page 15 (lines 29 to 31), omit subparagraphs 4872(3)(a)(i) and (ii), substitute:

                                                  (i)   a migration outcome-related offence has been committed; or

                                                 (ii)   a migration outcome-related provision has been contravened; or

Schedule 1, item 17, page 16 (lines 5 and 6), omit subparagraphs 4872C(a)(i) and (ii), substitute:

                                                  (i)   the migration outcome-related offence or offences; or

                                                 (ii)   the migration outcome-related provision or provisions; or

Debate ensued.

Question—That the amendments be agreed to—put.

The committee divided—

AYES, 28

Senators—

Bilyk (Teller)

Gallagher

McEwen

Rhiannon

Brown

Hanson-Young

McKim

Rice

Bullock

Ketter

McLucas

Siewert

Carr

Lines

Moore

Simms

Conroy

Ludlam

O’Neill

Singh

Dastyari

Marshall

Peris

Waters

Di Natale

McAllister

Polley

Whish-Wilson

 

 

NOES, 33

Senators—

Abetz

Fawcett

Macdonald

Ronaldson

Back

Fierravanti-Wells

Madigan

Scullion

Bernardi

Fifield

McGrath

Seselja

Birmingham

Johnston

McKenzie

Sinodinos

Bushby

Lambie

Muir

Smith

Canavan (Teller)

Lazarus

Nash

Wang

Colbeck

Leyonhjelm

Parry

Williams

Day

Lindgren

Reynolds

Xenophon

Edwards

 

 

 

Question negatived.

Question—That the bill stand as printed—divided, at the request of Senator Carr, in respect of Schedule 1, item 12.

Schedule 1, item 12 agreed to.

Senator Carr moved the following amendments together by leave:

Schedule 1, item 6, page 6 (line 12), omit “2 years or 360 penalty unit s”, substitute “4 years or 720 penalty units”.

Schedule 1, item 6, page 6 (line 16), omit “240 penalty units”, substitute “480 penalty units”.

Schedule 1, item 6, page 6 (line 29), omit “240 penalty units”, substitute “480 penalty units”.

Schedule 1, item 6, page 7 (line 21), omit “360 penalty units”, substitute “720 penalty units”.

Schedule 1, item 6, page 8 (line 20), omit “240 penalty units”, substitute “480 penalty units”.

Debate ensued.

Question—That the amendments be agreed to—put.

The committee divided—

AYES, 30

Senators—

Bilyk

Hanson-Young

McLucas

Siewert

Brown

Ketter

Moore

Simms

Bullock

Lines

O’Neill

Singh

Carr

Ludlam

Peris

Urquhart

Conroy

Marshall

Polley

Waters

Dastyari

McAllister

Rhiannon

Whish-Wilson

Di Natale

McEwen (Teller)

Rice

Xenophon

Gallagher

McKim

 

 

 

NOES, 32

Senators—

Abetz

Edwards

Lindgren

Ronaldson

Back

Fawcett

Macdonald

Ryan

Bernardi

Fierravanti-Wells

Madigan

Scullion

Birmingham

Fifield

McGrath

Seselja

Bushby

Johnston

McKenzie

Sinodinos

Canavan

Lambie

Muir

Smith (Teller)

Colbeck

Lazarus

Nash

Wang

Day

Leyonhjelm

Reynolds

Williams

 

 

Question negatived.

Bill debated.

Senator Carr moved the following amendments together by leave:

Title, page 1 (line 1), after “ Migration Act 1958 ”, insert “ and the A New Tax System (Australian Business Number) Act 1999 ”.

Schedule 1, page 3 (before line 3), before the heading specifying Migration Act 1958 , insert:

A New Tax System (Australian Business Number) Act 1999

1AA  After subsection 8(1)

Insert:

  (1A)   Despite subsection (1), * you are not entitled to have an Australian Business Number ( * ABN) if:

                              (a)  you hold either of the following visas granted under the Migration Act 1958 :

                                                  (i)   a student visa (within the meaning of that Act);

                                                 (ii)   a temporary visa referred to in regulations made under that Act as a Subclass 417 (Working Holiday) visa or a Subclass 462 (Work and Holiday) visa; and

                              (b)  you were not registered in the * Australian Business Register before the commencement of Schedule 1 to the Migration Amendment (Charging for a Migration Outcome) Act 2015 .

Debate ensued.

Question—That the amendments be agreed to—put and negatived.

Senator Carr moved the following amendments together by leave:

Schedule 1, page 3 (before line 4), before item 1, insert:

1AB  Subsection 5(1) (definition of civil penalty order )

Omit “486R(4)”, substitute “486R(2)”.

Schedule 1, page 14 (before line 14), before item 7, insert:

6A  Subsections 486R(1) to (4)

Repeal the subsections, substitute:

Eligible court may make civil penalty order

     (1)   An eligible court may, on application under subsection (3), order a person to pay a pecuniary penalty that the court determines to be appropriate if the court is satisfied that the person has contravened a civil penalty provision.

Note:         Subsection (5) sets out the maximum penalty that the eligible court may order the person to pay.

     (2)   An order under subsection (1) is a civil penalty order .

Application for civil penalty order

     (3)   An application for a civil penalty order may be made within 6 years of the alleged contravention by:

                              (a)  the Minister; or

                              (b)  for an alleged contravention of a civil penalty provision in Subdivision C or D of Division 12 of Part 2:

                                                  (i)   a person affected by the contravention; or

                                                 (ii)   an industrial association (within the meaning of the Fair Work Act 2009 ).

Payment of penalty

     (4)   The eligible court may order that the pecuniary penalty, or a part of the penalty, be paid to:

                              (a)  the Commonwealth; or

                              (b)  a particular industrial association; or

                               (c)  a particular person.

6B  Subsection 486T(1)

Repeal the subsection, substitute:

     (1)   A pecuniary penalty may be recovered as a debt due to the person to whom the penalty is payable.

6C  Subsection 486T(2)

Omit “The Commonwealth”, substitute “A person to whom a pecuniary penalty is payable”.

Schedule 1, page 16 (after line 16), at the end of the Schedule, add:

19  Application—civil penalty orders

Division 1 of Part 8D of the Migration Act 1958 , as amended by this Schedule, applies in relation to a civil penalty order that is applied for on or after the commencement of this Schedule, whether the contravention or alleged contravention of a civil penalty provision occurs before or after that commencement.

20  Requirement to make regulations—approval of nominations

As soon as practicable after the commencement of this item, the Minister must recommend to the Governor-General the making of regulations under the Migration Act 1958 to ensure that, if the Minister reasonably believes that an employer of a holder of a visa has contravened Subdivision C or D of Division 12 of Part 2 of that Act, the visa holder is not disadvantaged in connection with the approval by the Minister of nominations by approved sponsors under section 140GB of that Act, as compared with other visa holders.

Debate ensued.

Question—That the amendments be agreed to—put.

The committee divided—

AYES, 29

Senators—

Brown

Ketter

McLucas

Siewert

Bullock

Lines

Moore

Simms

Carr

Ludlam

O’Neill

Singh

Conroy

Marshall

Peris

Urquhart

Dastyari

McAllister

Polley

Waters

Di Natale

McEwen (Teller)

Rhiannon

Whish-Wilson

Gallagher

McKim

Rice

Xenophon

Hanson-Young

 

 

 

NOES, 32

Senators—

Abetz

Edwards

Lindgren

Ronaldson

Back

Fierravanti-Wells

Macdonald

Ryan

Bernardi

Fifield

Madigan

Scullion

Birmingham

Heffernan

McGrath

Seselja

Bushby

Johnston

McKenzie

Sinodinos

Canavan

Lambie

Muir

Smith (Teller)

Colbeck

Lazarus

Nash

Wang

Day

Leyonhjelm

Reynolds

Williams

 

 

Question negatived.

Senator Carr moved the following amendment:

Schedule 1, item 6, page 14 (after line 13), at the end of Subdivision D, add:

245AZ   Reports on operation of this Subdivision

     (1)   The Minister must, as soon as practicable after 30 June in each year, cause to be laid before each House of the Parliament a report on the operation of this Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, during the year ending on 30 June.

     (2)   The report must contain the name of each body corporate:

                              (a)  convicted of an offence against this Subdivision during the year ending 30 June; or

                              (b)  against which a civil penalty order was made during the year ending 30 June for contravening a civil penalty provision in this Subdivision.

Debate ensued.

Question—That the amendment be agreed to—put and negatived.

Senator Carr moved the following amendments together by leave:

Schedule 1, item 1, page 3 (line 6), after “(2)”, insert “, (2A)”.

Schedule 1, item 2, page 3 (lines 24 and 25), omit the item, substitute:

2  Subsection 116(2)

Omit “(1AA) or (1AB)”, substitute “(1AA), (1AB) or (1AC)”.

2A  After subsection 116(2)

Insert:

  (2A)   The Minister is not to cancel a visa under subsection (1AC) if the benefit was asked for, received, offered or provided, as mentioned in that subsection:

                              (a)  because of the use of coercion, threat or deception (within the meaning of Division 270 of the Criminal Code ), whether against the visa holder or another person; or

                              (b)  in circumstances where the visa holder was the victim of an offence against Division 270 (slavery and slavery-like conditions) or 271 (trafficking in persons and debt bondage) of the Criminal Code , whether or not a person has been charged with or convicted of the offence.

2B  Subsection 116(3)

Omit “(1AA) or (1AB)”, substitute “(1AA), (1AB) or (1AC)”.

Schedule 1, item 6, page 6 (lines 3 to 5), omit subsection 245AR(3) (not including the note), substitute:

     (3)   Subsection (1) does not apply if:

                              (a)  the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the first person or a third person; or

                              (b)  the benefit was asked for or received:

                                                  (i)   because of the use of coercion, threat or deception (within the meaning of Division 270 of the Criminal Code ), whether against the first person or another person; or

                                                 (ii)   in circumstances where the first person was the victim of an offence against Division 270 (slavery and slavery-like conditions) or 271 (trafficking in persons and debt bondage) of the Criminal Code , whether or not a person has been charged with or convicted of the offence.

Schedule 1, item 6, page 7 (lines 1 to 4), omit subsection 245AS(3), substitute:

     (3)   Subsection (1) does not apply if:

                              (a)  the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the second person or a third person; or

                              (b)  the benefit was offered or provided:

                                                  (i)   because of the use of coercion, threat or deception (within the meaning of Division 270 of the Criminal Code ), whether against the first person or another person; or

                                                 (ii)   in circumstances where the first person was the victim of an offence against Division 270 (slavery and slavery-like conditions) or 271 (trafficking in persons and debt bondage) of the Criminal Code , whether or not a person has been charged with or convicted of the offence.

Debate ensued.

 

 

 

At 7.20 pm : The Acting Deputy President (Senator O’Neill) resumed the chair and the Temporary Chair of Committees reported progress.