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Migration Amendment (Sponsorship Obligations) Bill 2007

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2004 - 2005 - 2006 - 2007

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

MIGRATION AMENDMENT (SPONSORSHIP OBLIGATIONS) BILL 2007

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Minister for Immigration and Citizenship,

the Honourable Kevin Andrews MP)

 



MIGRATION AMENDMENT (SPONSORSHIP OBLIGATIONS) BILL 2007

 

OUTLINE

The Migration Amendment (Sponsorship Obligations) Bill 2007 (‘the bill’) amends the Migration Act 1958 (‘the Act’) to introduce a regime of obligations to be met by employers who are approved sponsors in relation to a person for a visa.  The new regime will apply to prescribed kinds of visas and where the obligations apply these will replace the current undertakings arrangements.  Importantly the new regime also incorporates enforcement provisions by way of civil penalties if an approved sponsor breaches an obligation.

The bill also includes provisions for inspectors to monitor an employer’s compliance with their sponsorship obligations which is an important element of the enforcement regime.  In addition there are enhanced information exchange powers between the Department and other prescribed Commonwealth, State and Territory agencies.

More specifically the bill:

·          creates a new subdivision of sponsorship obligations that will automatically apply to an approved sponsor;

·          includes an enforcement and sanctions regime for compliance with those obligations including provisions for:

o          the appointment of  inspectors with powers to undertake investigations in relation to a sponsor’s compliance with the sponsorship obligations or other requirements.  These are standard powers which have been adopted (with some modifications) from the Workplace Relations Act 1996 (the WRA);

o          provision of civil penalties for breach by an approved sponsor of any of the obligations in the Act and provision for additional obligations with penalties to be prescribed in the regulations;

o          remedies for those “out of pocket” as a result of an approved sponsor’s non compliance with an obligation.  This will include power for an eligible court in civil remedy proceedings to make orders in relation to money to be paid and the inclusion of additional provisions allowing aggrieved persons (including the Commonwealth, States and Territories) to bring separate actions to recover monies payable pursuant to an obligation.

·          includes general provisions relating to civil remedies which would apply across the Migration Act not just to the new sponsorship obligations civil remedy provisions;

·          as part of the regime of remedies, provisions have been included that deal with matters such as interest up to and upon judgment, small claims procedures and unclaimed monies.  These provisions will also apply to breaches of undertakings;

·          includes a requirement that approved sponsors comply with laws of the Commonwealth, State or Territories and allows for administrative barring of a sponsor if a decision maker reasonably believes that a law has been breached.  Compliance with relevant Australian laws may bear upon an approved sponsor’s fitness to be a sponsor;

·          includes provisions allowing for the administrative action of cancelling approval as a sponsor or barring a sponsor where the decision maker reasonably believes that an obligation has been breached;

·          will ensure that personal information regarding sponsored visa holders or former sponsored visa holders and approved sponsors or former approved sponsors can be disclosed to the other party or to prescribed agencies of the Commonwealth or of a State or Territory;

·          changes the time that undertakings (in cases where these are still applicable) come into effect, from the time the visa is granted to the sponsored person to the time the sponsor becomes an approved sponsor.  This will make the time that undertakings come into effect consistent with when the new obligations are imposed. i.e. on a sponsor becoming an approved sponsor;

·          amends the Tax Administration Act 1953 (the TAA) to allow the Tax Office to disclose certain information. The information must be relevant to the exercise of the Minister’s powers under, or the administration of Division 3A of Part 2 of the Migration Act;

·          includes transitional provisions clarifying that the new obligations will apply to existing approved sponsors of prescribed kinds of visas on commencement.   Where the new obligations are imposed any undertakings that related to the sponsorship for that visa will cease to be enforceable.

The bill is designed to preserve the integrity of the Australian labour market and ensure the working conditions of overseas sponsored employees.

 

financial impact statement

 

The cost to implement the changes to the administration of the temporary skilled migration visa category has been estimated at $85.3 million over the next four years from 2007-08.  This amount of funding has been included in the 2007-08 Budget and forward year estimates.  $66.1 million has been allocated to the Department of Immigration and Citizenship of which $35.9 million will directly support the implementation of the sponsorship obligations regime set up under this bill.  The balance of the budget funding for this particular measure has been allocated to Office of Workplace Services, Department of Employment and Workplace Relations, Department of Education, Science and Training and the Australian Taxation Office. The revenue from the inclusion of fines had been estimated at $7.9 million over four years from 2007-08.  However, this figure will need to be revised in light of necessary changes made in the course of drafting of the bill.

 

REGULATION IMPACT STATEMENT

 

The Office of Best Practice Regulation in the Productivity Commission has been consulted and has advised that the Business Cost Calculation Report is the appropriate level of regulatory analysis for the proposal.  The report is as follows:

 

Business Cost Calculation Report

 

Sponsorship Obligations

 

Problem:        The inadequacy of the existing regulatory framework in enforcing and encouraging compliance with relevant laws. Non-compliance may impact on the integrity of the Australian labour market and can seriously affect the standard of living for overseas workers.

 

Objectives:     The primary objective is increased compliance with relevant laws. The secondary objectives are preserving the integrity of the Australian labour market and ensuring the conditions of overseas workers.

 

Policy Options

 

Option Name                         Quickscan Result

Sponsorship Obligations         ü

 

Compliance Costs Summary

 

Option Name:            Sponsorship Obligations

Businesses Affected: 15,000

 

Type

Cost per Business

Total Cost of Regulation

Startup:

$133.33

$2,000,000.00

OnGoing:

$14.08

$211,230.00

Option Cost:

$147.41

$2,211,230.00

 

 

 

 

MIGRATION AMENDMENT (SPONSORSHIP OBLIGATIONS) BILL 2007

 

 

notes on individual clauses

 

Clause 1          Short title

1.                   Clause 1 provides that the short title by which the Act may be cited is the Migration Amendment (Sponsorship Obligations) Act 2007.

Clause 2          Commencement

2.                   Subclause 2(1) provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

- Table Item 1 provides that sections 1 to 3 of the Act and anything in the Act not elsewhere covered by this table will commence on the day on which this Act receives the Royal Assent.

- Table Item 2   provides that Schedules 1 and 2 commence on a single day to be fixed by Proclamation.  However, it also provides that if any of the provision(s) do not commence within the period of 6 months beginning on the day on which the Act receives the Royal Assent, they commence on the first day after the end of that period.

3.         Subclause 2(2) explains that column 3 of the table contains additional information that is not part of this Act. It specifies that information in this column may be added to or edited in any published version of this Act.

4.         An explanatory note is provided to assist the reader at the end of this table.  It specifies that the table relates only to the provisions of this Act as originally passed by both House of Parliament and assented to.  It states clearly that the table will not be expanded to deal with provisions inserted in this Act after assent.

Clause 3          Schedule(s)

4.                   This clause provides that each Act specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.



Schedule 1— Migration Act 1958

Part 1— Amendments

Item 1                         Subsection 5(1)

This item inserts a definition of “civil remedy provision” into the definitions section of the Act.  It will provide that “civil remedy provision” has the meaning given by new section 486R.

Item 2             Subsection 5(1)

This item inserts a definition of “penalty unit” into the definitions section of the Act. It provides that “penalty unit” has the meaning given by section 4AA of the Crimes Act 1914 .

Item 3                         Subdivision A of Division 3A of Part 2 (heading)

This item repeals the existing heading and replaces it with the new heading “Subdivision A - Application of Division and definitions”.

Item 4             At the end of Subdivision A of Division 3A of Part 2

This item inserts new section 140AA which provides the meanings for the defined terms “undertaking” and “obligation”. These definitions will have application throughout Division 3A of Part 2 of the Act subject to section 140XA (inserted by item 29).

This item provides that “obligation” means, subject to section 140XA (inserted by item 29), an obligation imposed by Subdivision BB or by regulations made under Subdivision BB.  This definition is subject to section 140XA as that provision provides a special definition of sponsorship obligation for the purposes of Subdivision C of Division 3A of Part 2 of the Act.

This item also provides that “undertaking” means an undertaking required by Subdivision BA or by regulations made under Subdivision BA.

Item 5             After section 140G

This item inserts a new Subdivision heading “Subdivision BA - Sponsorship undertakings may be required for approval as a sponsor”.

Item 6             Subsection 140H(3)

This item repeals and replaces subsection 140H(3) to make it clear that like the sponsorship obligations that arise under new Subdivision BB or regulations made under that subdivision, undertakings made under Subdivision BA or regulations made under that subdivision, do not have effect until the applicant becomes an approved sponsor of the person for the visa.

This item also inserts a note which directs the reader to section 140D which sets out the circumstances where a sponsor is an approved sponsor.

Item 7             After section 140I

This item inserts new “Subdivision BB - Sponsorship obligations of certain approved sponsors”. The new subdivision comprises 11 new sections.

140IA              Subdivision applies only in relation to prescribed visas

New section 140IA provides that Subdivision BB only applies to an approved sponsorof a person for a visa if the visa is of a prescribed kind (however described).   The wording referring to a prescribed kind of visa (however described) rather than to a class of visa is to allow visas within certain classes and subclasses to be prescribed allowing greater targeting of the sponsorship obligations regime to specific visas obtained by meeting specific criteria.

140IB              Meaning of primary person and secondary person in relation to an approved sponsor 

Item 140IB provides, for the purposes of Subdivision BB, definitions of “primary person” and “secondary person”.

Primary person in relation to an approved sponsor of a person for a visa means the person whom the approved sponsor consented to sponsor for that visa who is to work or works in the nominated activity in respect of which the visa is granted.  This is essentially the sponsored person who is to undertake the nominated activity and who is granted a visa by meeting the primary criteria for that visa.

Secondary person in relation to an approved sponsor of a person for a visa means a person whom the approved sponsor consented to sponsor for that visa, who is granted the visa on the basis of his or her relationship to the primary person.  This provision picks up the fact that certain persons may be granted a visa through meeting the secondary criteria prescribed in the regulations.  That is, they are granted a visa on the basis of their relationship to the person who meets the primary criteria (the person who is granted their visa on the basis that they will perform the nominated activity).  Such a relationship may for example be that of spouse, dependent child, interdependent partner or dependent child of an interdependent partner.

140IC              Obligation to pay at least minimum salary level etc.

New paragraph140IC(1)(a)  provides that an approved sponsor of a person for a visa must pay a salary to the person that is at or above the level that is worked out in a way specified from time to time by the Minister in a legislative instrument for the purposes of this subsection.  This makes it clear that the level of salary may be varied from time to time and that it is the salary level in place at any particular time that that must be paid by the approved sponsor not the salary level that was in place when the sponsor became an approved sponsor.   

While the subdivision BB sponsorship obligations apply once a sponsor becomes an approved sponsor, new paragraph 140IC(1)(b) sets out the time from when the approved sponsor must pay the sponsored visa holder the minimum salary.  If the visa holder is outside Australia when the visa is granted the minimum salary must be paid from either the time the visa holder starts working for the approved sponsor or 28 days after the visa holder enters Australia, whichever is the earlier.  If the visa holder is in Australia at the time the visa is granted the approved sponsor must pay the minimum salary from the day on which the person starts working for the approved sponsor or 28 days after the visa is granted to the person, whichever is the earlier.

In the case of the grant of a new section 140IA prescribed kind of visa while the person is in Australia, it will be the new approved sponsor in respect of that visa that will be required to pay the minimum salary level in accordance with subparagraph 140IC(1)(b)(ii) not the originally approved sponsor (unless they are the same person)

New paragraph 140IC(1)(b) provides that the approved sponsor must pay the sponsored visa holder in the manner specified in the legislative instrument referred to in paragraph 140IC(1)(b). This will allow the instrument to specify such things as the way in which the person may be paid and the types of deductions (if any) that may be allowed to be made from the person’s salary.

New subsection140IC(1) is a civil penalty provision with no fault elements for which the maximum penalty for an individual is 60 penalty units and the maximum penalty for a body corporate is 300 penalty units.

Item 2 of the bill provides that “penalty unit” is defined in section 4AA of the Crimes Act 1914 .  

The justification for use of civil penalty provisions, as opposed to criminal sanctions, is that the imposition of criminal sanctions on sponsors could have harsh consequences on the sponsor such a loss of their export licence (or any other licence for that matter), which would not be in Australia’s best interest. The use of civil provisions is also considered appropriate for the enforcement scheme to be flexible and administratively manageable. The use of civil penalties will increase compliance with migration legislation (and other relevant laws), thereby preserving the integrity of the Australian labour market and improving the conditions of overseas workers. In addition, the justification for no fault civil penalty offences is to facilitate an infringements notices regime. A power has been included to provide for such a regime in the Migration Regulations 1994 .  (See item 46 which inserts new paragraph 504(1)(jb).

New subsection 140IC(2) provides that the legislative instrument made for the purposes of subsection (1) may specify different ways of working out the level of salary in respect of different occupations or classes or subclasses of occupations, persons working in particular geographical areas and any other circumstance or matter the Minister considers appropriate. For example, this will allow for the level to be worked out on the basis of an hourly or weekly rate and also allow provision to be made for hours worked above the standard 38 hour week.

Subsection 140IC(2) also provides that the instrument may include mechanisms for the level to be varied on one or more specified days or at the end of one or more specified periods.

New subsection 140IC(3) deals with the situation where the approved sponsor has made arrangements, such as taking out insurance that will cover or partly cover the obligation in subsection (1).  For instance the approved sponsor will take out workers compensation insurance for the primary person and if there is a work related accident, such that workers compensation is payable, this will potentially meet the approved sponsor’s obligation to pay the minimum salary level.  If the compensation payment does not meet the minimum salary level then the approved sponsor would remain liable for payment of the difference.

Subsection 140IC(3) specifically provides that an approved sponsor is taken to have satisfied the obligation in subsection (1) to the extent that another person (other than the primary person or secondary person), by arrangement with the approved sponsor, pays some or all of the primary person’s salary.   An example is also included for greater clarity which deals with the approved sponsor taking out insurance.

New subsection 140IC(4) provides that subsection (3) only applies if the costs (if any) of the arrangement between the approved sponsor and the other person are paid by the approved sponsor.  This is to ensure that any cost involved in the arrangement (eg the payment of an insurance premium) must be met by the sponsor and not for example, passed on to the primary person.

140ID              Obligation to employ primary person in the same or a higher-skilled activity

New section140ID provides that an approved sponsor of a person for a visa must not employ the person in an activity that requires a lower skills level then the skills required for the nominated activity which was the basis of the grant of the visa to the person.  This makes it clear that an approved sponsor may employ the sponsored person in a different activity to that nominated (and on which basis the visa was granted), but it must be an activity that requires at least the same or a higher level of skill as the originally proposed activity.

New section 140ID is a civil penalty provision with no fault elements for which the maximum penalty for an individual is 60 penalty units and the maximum penalty for a body corporate is 300 penalty units.

Item 2 of the bill provides that “penalty unit” is defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed to criminal sanctions, is that the imposition of criminal sanctions on sponsors could have harsh consequences on the sponsor such a loss of their export licence (or any other licence for that matter), which would not be in Australia’s best interest. The use of civil provisions is also considered appropriate for the enforcement scheme to be flexible and administratively manageable. The use of civil penalties will increase compliance with migration legislation (and other relevant laws), thereby preserving the integrity of the Australian labour market improving the conditions of overseas workers. In addition, the justification for no fault civil penalty offences is to facilitate an infringements notices regime. A power has been included to provide for such a regime in the Migration Regulations 1994 . (See item 46 which inserts new paragraph 504(1)(jb).

140IE              Obligation to pay travel costs of leaving Australia

New section 140IE deals with the obligation of an approved sponsor to meet the return travel costs of the primary person (defined in new section 140IB inserted by item 7) and any secondary person (defined in new section 140IB inserted by item 7).  This will normally be after the primary person completes the employment (nominated activity) for which he/she was granted a visa to come to Australia but it may also be at an earlier time or in circumstances where they are otherwise required to leave Australia.

The intention of this provision is to make the person or body that is the last approved sponsor of the person responsible for meeting the costs of the primary person and the secondary persons’ travel from Australia (including travel in Australia) back to the place from where they initially travelled to come to Australia. 

This recognises that a sponsored person may have changed sponsor while in Australia such that responsibility for the return travel costs shifts from the original approved sponsor to a new one.

The obligation in subsection 140IE(1) applies to the approved sponsor of a primary person and the obligation in subsection 140IE(2) applies to the approved sponsor of a secondary person.  The obligation is such that when a sponsored person leaves Australia (other than temporarily) the approved sponsor must pay for his or her travel (including any travel within Australia) for the purpose of returning to the place from where he or she initially travelled to Australia.

Both subsections 140IE(1) and (2) are civil penalty provisions with no fault elements for which the maximum penalty for an individual is 60 penalty units and the maximum penalty for a body corporate is 300 penalty units.

Item 2 of the bill provides that “Penalty unit” is defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed to criminal sanctions, is that the imposition of criminal sanctions on sponsors could have harsh consequences on the sponsor such a loss of their export licence (or any other licence for that matter), which would not be in Australia’s best interest. The use of civil provisions is also considered appropriate for the enforcement scheme to be flexible and administratively manageable. The use of civil penalties will increase compliance with migration legislation (and other relevant laws), thereby preserving the integrity of the Australian labour market and improving the conditions of overseas workers. In addition, the justification for no fault civil penalty offences is to facilitate an infringements notices regime. A power has been included to provide for such a regime in the Migration Regulations 1994 . (See item 46 which inserts new paragraph 504(1)(jb).

New subsection 140IE(3) provides that if there has been more than one approved sponsor of the primary or secondary person, subsections (1) and (2) only apply to the last approved sponsor before their final departure from Australia.

New subsection 140IE(4) provides that an approved sponsor is taken to have satisfied the obligations in subsections (1) and (2), if another person (whether or not the primary or secondary person) has paid the costs referred to and the approved sponsor fully reimburses the person within 14 days after being given a receipt.  It is intended that this provision will operate even if the payment by the primary person has been an indirect payment.  The primary person will be taken to have paid the costs the approved sponsor is obligated to pay under this section where the approved sponsor has made a deduction from his or her salary to facilitate direct payment of those costs by the approved sponsor.  In this case the sponsor will not be taken to have satisfied this obligation until the primary person is reimbursed an amount equivalent to those deductions.

This provision recognises that for practical reasons it may be appropriate for the visa holder for instance, to initially pay the travel costs and then seek reimbursement from the approved sponsor rather than the sponsor paying for them up front. 

140IF              Obligation to pay certain medical costs

New subsection 140IF(1) provides that an approved sponsor of a primary person for a visa must pay the prescribed medical costs of the primary person. 

Similarly new subsection 140IF(2) provides that an approved sponsor of a secondary person must pay the prescribed medical costs of the secondary person.

Both subsections 140IF(1) and (2) are civil penalty provisions with no fault elements for which the maximum penalty for an individual is 60 penalty units and the maximum penalty for a body corporate is 300 penalty units.

Item 2 of the bill provides that “Penalty unit” is defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed to criminal sanctions, is that the imposition of criminal sanctions on sponsors could have harsh consequences on the sponsor such a loss of their export licence (or any other licence for that matter), which would not be in Australia’s best interest. The use of civil provisions is also considered appropriate for the enforcement scheme to be flexible and administratively manageable. The use of civil penalties will increase compliance with migration legislation (and other relevant laws), thereby preserving the integrity of the Australian labour market and improving the conditions of overseas workers. In addition, the justification for no fault civil penalty offences is to facilitate an infringements notices regime. A power has been included to provide for such a regime in the Migration Regulations 1994 .  (See item 46 which inserts new paragraph 504(1)(jb).

New subsection 140IF(3) indicates what the regulations prescribing the medical costs (if any) may specify.  That is, particular medical costs or classes of medical costs, a limit in respect of the medical costs of a person and a limit in respect of particular medical costs or classes of medical costs. 

It is intended that the regulations specify to what extent sponsors are responsible for medical costs which may include, but are not limited to public hospital costs, costs normally covered by Medicare and the cost of pharmaceuticals.

Subsection 140IF(4) provides that for the purposes of subsections (1) and (2), an approved sponsor is taken to have satisfied the obligation in subsections (1) and (2) if another person (whether or not the primary person or secondary person) has paid some or all of the costs concerned and the approved sponsor fully reimburses that person for the costs paid within 14 days after being given a receipt. It is intended that this provision will operate even if the payment by the primary person has been an indirect payment.  The primary person will be taken to have paid the costs the approved sponsor is obligated to pay under this section where the approved sponsor has made a deduction from his or her salary to facilitate direct payment of those costs by the approved sponsor.  In this case the sponsor will not be taken to have satisfied this obligation until the primary person is reimbursed an amount equivalent to those deductions.

This provision recognises that for practical reasons it may be appropriate for the visa holder for instance, to initially pay the medical costs and then seek reimbursement from the approved sponsor rather than the sponsor paying for them up front. 

New subsection 140IF(5) deals with the situation where the approved sponsor has made arrangements, such as taking out insurance that will cover or partly cover the obligations in subsections (1) and (2).  For instance the approved sponsor may take out health insurance for the sponsored persons.  If the medical costs required to be met by the approved sponsor are met by the health insurance fund the approved sponsor will be taken to have satisfied the obligation in subsection (1) or (2).  If the health insurance payment does not meet the full medical cost the approved sponsor is obliged to pay, the approved sponsor would remain liable for payment of the difference.

Subsection 140IF(5) specifically provides that an approved sponsor is taken to have satisfied the obligation in subsection (1) or (2) to the extent that another person (other than the primary person or secondary person), by arrangement with the approved sponsor, pays some or all of the costs concerned.  An example is also included for greater clarity which deals with the approved sponsor taking out insurance.

New subsection 140IF(6) provides that subsection (5) only applies if the costs (if any) of the arrangement between the approved sponsor and the other person are paid by the approved sponsor.  This is to ensure that any cost involved in the arrangement (eg the payment of an insurance premium) must be met by the sponsor and not passed on to the sponsored persons.

 

140IG              Obligation to pay certain other fees and costs

New section 140IG deals with additional costs that must be paid for by an approved sponsor.

New paragraph 140IG(1)(a) provides that an approved sponsor of a primary person for a visa must pay any fees imposed under a law of the Commonwealth, State or Territory that must be paid in order for the primary person to work in the nominated activity in respect of which the visa is granted.  This might include such things as licensing, registration or membership fees for example.

New paragraph 140IG(1)(b) provides that an approved sponsor must meet the costs (if any) associated with recruiting the primary person who is to be employed in the nominated activity in respect of which the visa is granted.  In the past some employers have sought to impose recruitment costs on the visa holder.  This will no longer be allowed and will be a breach of this obligation.

New paragraph 140IG(1)(c) provides that an approved sponsor must pay the costs of a migration agent (if any) involved with the visa application of the primary person.  That is, the migration agent’s costs of obtaining a visa for the primary person must be met by the approved sponsor.

New subsection 140IG(1) is a civil penalty provision with no fault elements for which the maximum penalty for an individual is 60 penalty units and the maximum penalty for a body corporate is 300 penalty units.

Item 2 of the bill provides that “Penalty unit” is defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed to criminal sanctions, is that the imposition of criminal sanctions on sponsors could have harsh consequences on the sponsor such a loss of their export licence (or any other licence for that matter), which would not be in Australia’s best interest. The use of civil provisions is also considered appropriate for the enforcement scheme to be flexible and administratively manageable. The use of civil penalties will increase compliance with migration legislation (and other relevant laws), thereby preserving the integrity of the Australian labour market and improving the conditions of overseas workers. In addition, the justification for no fault civil penalty offences is to facilitate an infringements notices regime. A power has been included to provide for such a regime in the Migration Regulations 1994 . (See item 46 which inserts new paragraph 504(1)(jb).

New subsection 140IG(2) creates an obligation for an approved sponsor to pay the costs of a migration agent (if any) involved with the visa application of any secondary person.  That is, the migration agent’s costs of obtaining a visa for any secondary person or persons must be met by the approved sponsor.

New subsection 140IG(2)  is a civil penalty provision with no fault elements for which the maximum penalty for an individual is 60 penalty units and the maximum penalty for a body corporate is 300 penalty units.

Item 2 of the bill provides that “Penalty unit” is defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed to criminal sanctions, is that the imposition of criminal sanctions on sponsors could have harsh consequences on the sponsor such a loss of their export licence (or any other licence for that matter), which would not be in Australia’s best interest. The use of civil provisions is also considered appropriate for the enforcement scheme to be flexible and administratively manageable. The use of civil penalties will increase compliance with migration legislation (and other relevant laws), thereby preserving the integrity of the Australian labour market and improving the conditions of overseas workers. In addition, the justification for no fault civil penalty offences is to facilitate an infringements notices regime. A power has been included to provide for such a regime in the Migration Regulations 1994 .  (See item 46 which inserts new paragraph 504(1)(jb).

New 140IG(3) provides that for the purposes of subsections (1) and (2), an approved sponsor is taken to have satisfied the obligation in subsections (1) and (2) if another person (whether or not the primary person or secondary person) has paid some or all of  the fees or costs concerned and the approved sponsor fully reimburses that person for the fees or costs paid within 14 days after being given a receipt. It is intended that this provision will operate even if the payment by the primary person has been an indirect payment.  The primary person will be taken to have paid the costs the approved sponsor is obligated to pay under this section where the approved sponsor has made a deduction from his or her salary to facilitate direct payment of those costs by the approved sponsor.  In this case the sponsor will not be taken to have satisfied this obligation until the primary person is reimbursed an amount equivalent to those deductions.

This provision recognises that for practical reasons it may be appropriate for the visa holder for instance to initially pay certain costs and then seek reimbursement from the approved sponsor rather than the sponsor paying for them up front. 

140IH              Obligation to keep records

New section 140IH requires an approved sponsor to keep certain records.  This will assist inspectors appointed pursuant to new section 140ZH (see item 44) with their function of monitoring compliance by approved sponsors with the obligations imposed by or under Subdivision BB.  It will also facilitate the Secretary obtaining information in compliance with the obligation in new section 140IK (inserted by item 7)

Pursuant to paragraph 140IH(a) an approved sponsor of a person for a visa must keep prescribed records of all payments made by the approved sponsor as required by Subdivision BB or by the regulations made under subdivision BB.  Pursuant to paragraph 140IH(b) the approved sponsor of a person for a visa must also keep such other records as are prescribed by the regulations.

New section 140IH is a civil penalty provision with no fault elements for which the maximum penalty for an individual is 60 penalty units and the maximum penalty for a body corporate is 300 penalty units.

Item 2 of the bill provides that “Penalty unit” is defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed to criminal sanctions, is that the imposition of criminal sanctions on sponsors could have harsh consequences on the sponsor such a loss of their export licence (or any other licence for that matter), which would not be in Australia’s best interest. The use of civil provisions is also considered appropriate for the enforcement scheme to be flexible and administratively manageable. The use of civil penalties will increase compliance with migration legislation (and other relevant laws), thereby preserving the integrity of the Australian labour market and improving the conditions of overseas workers. In addition, the justification for no fault civil penalty offences is to facilitate an infringements notices regime. A power has been included to provide for such a regime in the Migration Regulations 1994 .  (See item 46 which inserts new paragraph 504(1)(jb).

A note has also been included at the end of section 140IH which refers the reader to section 140ZJ where an approved sponsor may be required to produce records to an inspector.

140IJ               Obligation to pay costs of locating, detaining and removing etc. sponsored person

Section 140IJ deals with the situation where persons sponsored by the approved sponsor have not departed Australia in accordance with the terms of their visa and the Commonwealth has incurred expense in their location, detention and removal or the processing of any protection visa application made by them.  This amendment ensures that the Australian community does not end up paying for the removal of a person who has come to Australia to undertake employment but rather the person responsible for bringing the person into Australia bears the cost.  This is an incentive to employers wishing to sponsor persons to undertake employment activities in Australia on a temporary basis, to ensure that the persons they wish to sponsor genuinely intend skilled employment in Australia.

Subsection 140IJ(1) provides that an approved sponsor of a person for a visa must pay to the Commonwealth an amount equal to the costs incurred by the Commonwealth in relation to the locating and detaining of the person, removing or deporting them or processing an application for a protection visa (see section 36 of the Act) made by them. 

The obligation to meet these costs imposed on the approved sponsor relates to both the primary person and any secondary person who holds a visa as a result of their relationship to the primary person.

Paragraphs 140IJ(2)(a) and (b) set out the way in which the costs referred to in subsection (1) are to be determined.  In the case of the costs of locating a person or processing an application for a protection visa, paragraph140IJ(2)(a) provides that costs means the costs worked out in accordance with a method prescribed by reference to a determination made in writing by the Minister.  This allows for the regulations to prescribe the method for calculating the costs including by reference to a determination in writing by the Minister.

Paragraph 140IJ(2)(b) provides that in the case of the costs of detaining, removing or deporting a person, costs has the same meaning as in Division 10 of Part 2 of the Act.  Section 207 which is an interpretation provision in Division 10 of Part 2 provides that costs, in relation to detention, means the costs of transporting the person and a custodian between places of detention and from the place of detention to the place from where the person is to be removed or deported or to be released.  It also means the daily maintenance amount for each day of detention which is further defined to mean the amount determined under section 208.

Subsection 140IJ(2) also provides that the regulations may prescribe a limit for each of the costs mentioned in paragraphs (2)(a) and (b) for the purposes of this section.

New subsection140IJ(3) provides that to the extent that an approved sponsor of a person for a visa is liable to pay the costs that one or more other persons are liable to pay under Division 10 of Part 2, the approved sponsor and the other person or persons are jointly and severally liable to pay those costs.

Subsection 140IJ(4) provides that 140IJ has effect despite anything to the contrary in Division 10 of Part 2.  This makes it clear that the provisions of Division 10 of Part 2, which make persons other than an approved sponsor liable for the costs of locating, detaining, removing or deporting a person, are not to override section 140IJ (which also creates a liability for the approved sponsor to pay these costs).

These provisions are designed to ensure consistency between the approved sponsor’s obligation to meet the Commonwealth’s costs in relation to locating detaining, removing or deporting a sponsored person with any liability for these costs created in existing Division 10 of Part 2. 

140IK              Obligation to provide information

New section 140IK creates an obligation for a sponsor to provide information requested by the Secretary.  This obligation is also an important obligation to assist in monitoring compliance by approved sponsors with their sponsorship obligations.

Subsection 140IK(1) provides that the Secretary may require an approved sponsor of a person for a visa to provide such information as is required in a written notice.

Subsection 140IK(2) provides a limit on the type of information that the Secretary can require an approved sponsor to provide.  That is, the Secretary may only require information that is to be used by the Secretary or the Minister for the purposes of the administration of this Act or of the regulations.

Subsection 140IK(3) provides that a notice given under subsection (1) must state that the information must be provided within the specified period which cannot be a period of less than 7 days.

Subsection 140IK(4) provides that a notice given under subsection (1) must be given to the approved sponsor by one of the methods specified in section 494B.  When one of those methods is used the provisions in section 494C will apply to determine when the notice is taken to have been received by the approved sponsor.

Subsection 140IK(4) also provides that for the purposes of this subsection a reference in section 494B and 494C to the Minister is instead taken to be a reference to the Secretary.  

Subsection 140IK(5) provides that a person to whom a notice is given under subsection (1) must comply with the notice, which includes providing the information within the time specified.

New subsection 140IK(5) is a civil penalty provision with no fault elements for which the maximum penalty for an individual is 60 penalty units and the maximum penalty for a body corporate is 300 penalty units.

Item 2 of the bill provides that “Penalty unit” is defined in section 4AA of the Crimes Act 1914.

The justification for use of civil penalty provisions, as opposed to criminal sanctions, is that the imposition of criminal sanctions on sponsors could have harsh consequences on the sponsor such a loss of their export licence (or any other licence for that matter), which would not be in Australia’s best interest. The use of civil provisions is also considered appropriate for the enforcement scheme to be flexible and administratively manageable. The use of civil penalties will increase compliance with migration legislation (and other relevant laws), thereby preserving the integrity of the Australian labour market and improving the conditions of overseas workers. In addition, the justification for no fault civil penalty offences is to facilitate an infringements notices regime. A power has been included to provide for such a regime in the Migration Regulations 1994 .  (See item 46 which inserts new paragraph 504(1)(jb).

New subsection 140IK(6) provides that despite subsection (5) a person is not required to comply with a notice that is withdrawn in writing by the Secretary.

140IL              Other obligations may be prescribed

New section 140IL allows for additional obligation to those in Subdivision BB to be prescribed in the regulations and for approved sponsors breaching those obligations to be liable to a civil penalty.

Specifically, subsection 140IL(1) provides that the regulation may require an approved sponsor of a person for a visa to comply with one or more additional obligations prescribed in the regulations.

New subsection 140IL(2) provides that the civil penalty that the regulations may prescribe for breach of an obligation in the regulations can not exceed 50 penalty units for an individual and 250 penalty units for a body corporate.

Item 2 of the bill provides that “Penalty unit” is defined in section 4AA of the Crimes Act 1914.

There is a need to allow for further obligations with civil penalty provisions to be prescribed in the regulations to provide the flexibility to respond to possible exploitation by sponsors of visa holders and also to cover minor more administrative obligations such as an approved sponsor keeping in the Commonwealth advised of any change of address etc.

Subdivision BC - Cancelling approval as a sponsor or barring a sponsor

Item 8                         Paragraph 140J(2)(a)

This item makes a technical amendment to paragraph 140J(2)(a) to omit the words (cancelling or barring approval as a sponsor) and replacing them with “(cancelling approval as a sponsor or barring a sponsor)”.  This is to better reflect the actions that can be taken under section 140L which do not include barring approval as a sponsor.

The note in this item also provides that the heading to section 140J is replaced by the heading “Cancelling approval as a sponsor or barring a sponsor if undertakings breached”.

Item 9                         Subsection 140J(3)

This item makes a technical amendment to subsection 140J(3) to omit the words (cancelling or barring approval as a sponsor) and replacing them with “(cancelling approval as a sponsor or barring a sponsor)”.  This is to better reflect the actions that can be taken under section 140L which do not include barring approval as a sponsor.

Item 10                       Before subsection 140K(1)

Item 10 inserts new subsections (1A) and (1B) before existing subsection 140K(1).   Existing section 140K provides for the regulations to prescribe the circumstances in which the Minister may or must take one of the actions in section 140L (action to cancel approval as a sponsor or to bar a sponsor).

New subsection 140K(1A) provides that if the Minister reasonably believes that an approved sponsor or former approved sponsor of a person for a visa has breached an obligation or a person who is no longer an approved sponsor but remains bound by an obligation, has breached the obligation, the Minister may take one or more of the actions set out in section 140L (to cancel approval as a sponsor or to bar a sponsor from doing certain things).

New subsection 140K(1B) provides that if the Minister reasonably believes that an approved sponsor of a person for a visa has breached a Commonwealth, State or Territory law and because of that breach it is appropriate to take one or more of the actions in section 140L(c) - (g) (which involve barring a sponsor), the Minister may take the action or actions in relation to the approved sponsor or former approved sponsor. 

This provision is designed to ensure that where the Minister reasonably believes that an approved sponsor or former approved sponsor has breached a law that is relevant to their status as a sponsor the Minister can take action barring a sponsor from doing certain things such as sponsoring more people under existing approvals.  The basis for this power is the reasonable belief that the person has breached a law so that if the approved sponsor or former approved sponsor is actually acquitted of the offence or is successful in appealing a conviction the power to bar sponsorship will nevertheless have been validly exercised provided the Minister reasonably held the belief that the law had been breached. 

It is intended that one of the circumstances to be prescribed under section 140O, as a circumstance when the Minister can waive a bar placed a sponsor under section 140K, will include the circumstance that the approved sponsor, or former approved sponsor did not actually breach a law.

The note at the end of subsection 140K(1B) notes that paragraphs 140L(c) - (g) referred to in subsection (1B) deal with barring a sponsor.

An additional note at item 10 (also provides that the heading to section 140K is replaced by the heading “Cancelling approval as a sponsor or barring a sponsor in other circumstances”.

Item 11                       Paragraph 140K(1)(a)

Item 11 makes a technical amendment to paragraph 140K(1)(a) to omit the words “(cancelling or barring approval as a sponsor)” and replacing them with “(cancelling approval as a sponsor or barring a sponsor)”.  This is to better reflect the actions that can be taken under section 140L which do not include barring approval as a sponsor.

Item 12                       Subsection 140K(2)

Item 12 makes a technical amendment to subsection 140K(2) to omit the words “(cancelling or barring approval as a sponsor)” and replacing them with “(cancelling approval as a sponsor or barring a sponsor)”.  This is to better reflect the actions that can be taken under section 140L which do not include barring approval as a sponsor.

This item also includes a note which provides that the heading to section 140N is replaced by the heading “process for cancelling approval as a sponsor or barring a sponsor”.

 

Item 13                       After section 140P

Item 13 inserts a new subdivision after section 140P.  It is “Subdivision BD - Consequences of change of status”.  The only section in new subdivision BD is section 140Q which deals with the consequences if either the visa holder or the approved sponsor cease to hold their respective statuses.

Item 14                       Subsection 140Q(1)

Item 14 inserts “or obligation” after the word “undertaking” in subsection 140Q(1) making it clear that section 140Q applies to both the current undertakings and to the new obligations being created by or under new Subdivision BB. 

Subsection 140Q(1) provides that the regulations may prescribe the circumstances in which, and for how long, an undertaking or obligation arising out of the sponsorship remains enforceable against the sponsor concerned if the visa holder ceases to hold the visa for which he or she was sponsored or the sponsor ceases to be an approved sponsor of the visa holder.

This means that there may be circumstances and a period after the relevant approved sponsor has ceased to be an approved sponsor in relation to a visa holder (or former visa holder) where they can still breach an obligation and be liable to a civil penalty.  For instance, the regulations may prescribe that the obligation in 140IC for example to pay a certain salary level must continue for a certain period after the sponsor ceases to be an approved sponsor of the visa holder.

Item 15                       At the end of section 140Q

Item 15 inserts a new subsection 140Q(3).  This important provision makes it absolutely clear that a change described in paragraphs 140Q(1)(a) or (b) (i.e. a change in status of the relevant visa holder or approved sponsor) does not affect any liability incurred in respect of an obligation (including a breach of an obligation) imposed by Subdivision BB or regulations made under that subdivision.

New subsection 140(3) means that if an approved sponsor has breached an obligation they remain liable to civil penalty proceedings and recovery of any monies they are liable to pay under an obligation even if they cease to be an approved sponsor in relation to the affected visa holder or the affected visa holder ceases to hold the visa for which the approved sponsor sponsored them.

Item 16                       After section 140Q

Item 16 inserts a new “Subdivision BE - Liability, Enforcement and recovery” which deals with what liability is created when an obligation or undertaking is breached, what action can be taken to enforce compliance with an obligation or undertaking and capacity to recover money a person is required to pay pursuant to an undertaking or obligation.

New section 140QA also inserted by item 16 provides some specific definitions for the purposes of new Subdivision BE.

“Eligible court” is defined to mean the Federal Court, the Federal Magistrates Court, a District, County or Local Court, a magistrate’s court or any other State or Territory court that is prescribed by the regulations.

A “Subdivision BB civil penalty provision” is defined to mean:

(a) a provision in Subdivision BB that specifies a civil penalty at the foot of the section (where it is a section without subsections) or at the foot of the subsection where the provision is s subsection; or

(b) a provision in the regulations made under section140IL (Other obligations that may be prescribed) that prescribes an obligation, the breach of which attracts a civil penalty prescribed in accordance with subsection 140IL(4).

Item 17                       Subsections 140R(1) to (3)

Item 17 provides that after the word “undertaking” wherever occurring, the words “or obligation” are to be inserted.  This makes it clear that section 140R which deals with certain debts relates to both undertakings referred to in Subdivision BA or obligations imposed by or under Subdivision BB.

Item 18                       Subsection 140R(3)

This item amends subsection 140R(3) so that it refers to an eligible court rather than a court of competent jurisdiction.  This ensures that recovery action for debts payable to a person under an undertaking or an obligation can be taken in an eligible court as specifically defined for Subdivision BE. This would apply for example, to medical costs incurred by the sponsored persons where an approved sponsor is bound by the obligation in section 140IF.

Item 19                       Subsections 140S(2) and (3)

Item 19 provides that after the word “undertaking” wherever occurring, the words “or obligation” are to be inserted.  This makes it clear that section 140S which deals with liability to pay amounts pursuant to an undertaking or obligation (that is not a debt dealt with in section 140R) deals with both undertakings referred to in Subdivision BA or obligations imposed by or under Subdivision BB (See new section 140QA inserted by item 16).

Item 20                       Subsection 140S(3)

This item amends subsection 140S(3) so that it refers to an eligible court rather than a court of competent jurisdiction.  This ensures that recovery action for amounts payable pursuant to an undertaking or obligation (that is not a debt dealt with in section 140R) can be taken in an eligible court as specifically defined for Subdivision BE.

 

Item 21                       At the end of section 140S

Item 21 inserts a new subsection (4) into existing section 140S.   New subsection (4) makes it clear that without limiting any other provision of the Act, amounts payable to the Commonwealth or to a State or Territory under an undertaking or an obligation may be recovered by the Commonwealth, State or Territory (as the case may be) in an eligible court.

The difference between amounts referred to in section 140S and debts referred to in section 140R is that the visa holder does not have any liability to repay costs dealt with in section 140S.  In fact it may be the visa holder to whom the amount is payable e.g. the minimum salary level. (See section 140IC inserted by item 7).

Item 22                       After section 140S

140SA             Who may apply for civil penalties under Subdivision BB

New section 140SA sets out who may apply for civil penalties to be invoked under Subdivision BB.  It provides that the Minister may apply to an eligible court for an order under new section 140SB in relation to a breach of a Subdivision BB civil penalty provision by a person.   New section 140SB provides that an eligible court may make an order imposing a pecuniary penalty on a person if they have breached a Subdivision BB civil penalty provision.

This section refers to a “person” rather than an approved sponsor consistent with the fact that by the time the civil penalty proceeding commences the approved a sponsor may have ceased to hold that status.

140SB             Imposition and recovery of civil penalties under Subdivision BB

Item 22 also insert new section 140SB which provides that an eligible court can impose a pecuniary penalty for breach of a Subdivision BB civil penalty provision (as defined in section 140QA inserted by item 16), the maximum penalty that can be imposed and how continuing breaches and breaches in respect of many visa holders are to be treated.

More specifically subsection 140SB(1) provides that an eligible court may make an order imposing a pecuniary penalty on a person if the person breaches a Subdivision BB civil penalty provision when he or she is bound by that provision.  A person is bound by an obligation while they remain an approved sponsor for the visaed person or for such additional period after they have ceased to be an approved sponsor as may be prescribed in the regulations pursuant to section 140Q.  In referring to a person subsection 140SB(1) recognises that by the time a pecuniary penalty is to be imposed for a previous breach an approved sponsor may no longer hold that status.

A note is also included after subsection 140SB(1) alerting the reader to the fact that certain persons involved in a breach of a Subdivision BB civil penalty provision may also be treated as having breached the provision. The reader is specifically referred to subsection 140SB(9).

New subsection 140SB(2) provides that the maximum penalty that may be imposed under subsection (1) for a breach of a Subdivision BB civil penalty provision is the civil penalty specified in respect of that provision.  In the case of obligations imposed by Subdivision BB this is 60 penalty units for a person and 300 penalty units for a body corporate.  In the case of an obligation imposed by regulations made under Subdivision BB it is a maximum of 50 penalty units for an individual and 250 penalty units for a body corporate.

New subsection 140SB(3) deals with the situation of a series of breaches arising out of a course of conduct.  It provides that subject to subsections (4) and (5) if 2 or more breaches of a Subdivision BB civil penalty provision are committed by the same person and the breaches arose out of a course of conduct by the person, the breaches are to be taken to constitute a single breach of the provision.

 

Subsection 140SB(4) provides that for the purposes of subsection (3), if the breaches of the Subdivision BB civil penalty provision relate to an obligation in respect of another person, 2 or more breaches of that provision arise out of a course of conduct only if each of the breaches relates to an obligation in respect of the same person.  For additional clarity an example has been included.

 

Example:          An approved sponsor of 2 persons for a visa fails to pay each of those persons a salary in accordance with section 140IC. Because the breaches are in respect of 2 persons, they are not to be taken to constitute a single breach of the provision; the approved sponsor has breached that provision in respect of each of the persons.

 

Subsection 140SB(5) also qualifies subsection 140SB(3) in that it provides that subsection (3) does not apply to a breach of a Subdivision BB civil penalty provision that is committed by a person after an eligible court has imposed a penalty on the person for an earlier breach of the provision.  That is, a further breach or breaches can occur from the same course of conduct in relation to the same person if the course of conduct continues after the time that a penalty has been imposed for an earlier breach.

 

Subsection 140SB(6) is a restitution provision which allows an eligible court as part of  the civil penalty proceedings to make and order that amounts required to be paid pursuant to the obligations should be paid. More specifically it provides that in a civil remedy proceeding against a person under section 140SB, if it appears to the eligible court that an amount that was required to be paid under a Subdivision BB civil penalty provision has not been paid to the Commonwealth, a State or Territory or another person, the court may order the first-mentioned person to pay the amount of the underpayment to the Commonwealth, State, Territory or other person (as the case may be).

 

A note is also inserted after subsection 140SB(6) drawing the readers attention to the fact that section 140R and 140S also allow for separate recover actions to be taken in an eligible court for amounts owed in accordance with an undertaking or obligation.

 

Subsection 140SB(7) provides that an order must not be made under subsection (6) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding.

 

Subsection 140SB(8) provides  that a  proceeding under section 140SB in relation to a breach of a Subdivision BB civil penalty provision must be commenced not later than 6 years after the commission of the breach.

A note is also inserted after subsection 140SB(8) which draws the readers attention to the fact that Part 8D contains general provisions relating to civil remedies.

 

New subsection 140SB(9) provides that certain persons involved in a breach of a Subdivision BB civil penalty provisions are to be treated as having breached it for the purposes of subsection (1). They are taken to have been bound by the civil penalty provision at the time they committed the breach. The persons covered are those who aid, abet, counsel, procure, induce (whether by threats or promises or otherwise) or conspire with others to effect the breach. This means that persons who are not approved sponsors, but are involved in the way described in an act or omission that amounts to a breach of the civil penalty provision may also be liable for breach of that provision as well as the approved sponsor.

 

140SC             Interest up to judgment

New section 140SC deals with the issue of interest on monies that should have been paid pursuant to an undertaking or obligation and action has been brought in an eligible court pursuant to 140SB, 140R or 140S.

 

Subsection 140SC(1) specifically provides that in exercising its powers under subsection 140SB(6) or in a proceeding under section 140R or 140S, an eligible court must, upon application, unless good cause is shown to the contrary, either:

 

(a)        order that there be included in the sum for which an order is made or judgment given, interest at such rate as the eligible court thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date on which the order is made or judgment entered; or

(b)        without proceeding to calculate interest in accordance with paragraph (a), order that there be included in the sum for which an order is made or judgment given, a lump sum instead of any such interest.

 

Subsection 140SC(2) provides that subsection (1) does not authorise:

 

(a)        the giving of interest upon interest or of a sum instead of such interest; or

(b)        apply in relation to any debt upon which interest is payable as of right whether by virtue of an agreement or otherwise; or

(c)        authorise the giving of interest, or a sum instead of interest, otherwise than by consent, upon any sum for which judgment is given by consent.

 

140SD             Interest on judgment

New section 140SD deals with the issue of interest on any judgment or order of an eligible court in proceedings taken pursuant to 140SB, section 140R or section 140S.  Section 140SD provides that a debt under a judgment or order of an eligible court made under subsection 140SB(6) or section 140R or 140S carries interest from the date on which the judgment is entered or order made at such rate as would apply under section 52 of the Federal Court of Australia Act 1976 if the debt were a judgment debt to which that section applies.

 

140SE                  Certain plaintiffs may choose small claims procedure

     in magistrates courts

 

New section 140SE also inserted by item 22 provides a capacity for section 140R and section 140S actions to be brought using a small claims procedure.  This will be available to persons commencing actions which means it will also be available to bodies corporate and politic.

 

New subsection 140SE(1) provides that if a person starts an action under section 140R or 140S in a magistrate’s court and they indicate, in a manner prescribed by the regulations or by rules of court relating to that court, that they want a small claims procedure to apply, subsections (2) to (4) apply in relation to the action.

 

Subsection 140SE(2) provides that the small claims procedure is governed by certain conditions as follows:

 

(a)        the court may not award an amount exceeding $5,000 or such higher amount as is prescribed;

(b)        the court may act in an informal manner, is not bound by any rules of evidence, and may act without regard to legal forms and technicalities;

(c)        at any stage of the action, the court may amend the papers initiating the action if sufficient notice is given to any party adversely affected by the amendment;

(d)       a person is not entitled to be represented by counsel or a solicitor unless the court permits;

(e)        if the court permits a party to be represented by counsel or a solicitor, the court may, if it thinks fit, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.

           

Subsection 140SE(3) provides that in a case heard in a court of a Territory, the regulations may prohibit or restrict legal representation of the parties despite paragraphs (2)(d) and (e).

 

Subsection 140SE(4) provides that in a case heard in a court of a State, if in a particular proceeding in that court (whatever the nature of the proceeding) the law of the State prohibits or restricts legal representation of the parties, the regulations may prohibit or restrict legal representation of the parties to the same extent as that law despite paragraphs (2)(d) and (e).

 

140SF             Unclaimed money

New section 140SF deals with the issue of unclaimed money and makes it clear that if a person is required to pay an amount in accordance with an undertaking or obligation and the whereabouts of the intended recipient is unknown, the person may pay the money to the Commonwealth on trust for the intended recipient.  If this occurs the person paying the money is taken to have discharged the obligation to pay to the extent of the amount paid.

 

More specifically new subsection 140SF(1) provides that if a person (the intended recipient) has not been paid an amount that was required to be paid to him or her in accordance with an undertaking or obligation; and the person who is required to pay the amount is unable to do so because the person does not know the intended recipient’s location, the person may pay the amount to the Commonwealth.

 

Subsection 140SF(2) provides that the Commonwealth holds the amount in trust for the intended recipient.

 

Subsection 140SF(3) provides that payment of the amount to the Commonwealth is a sufficient discharge to the person, as against the intended recipient, for the amount paid.  If the full amount is not paid the unpaid portion remains outstanding and enforcement or recovery action may be taken in respect of that outstanding amount.

 

Item 23           Subsection 140T(1)

This item inserts the words “or is obliged” after “undertaken” into subsection 140T(1) of the Act.  Section 140T complements current section 140I, which deals with amounts payable to the Commonwealth arising from the sponsorship undertakings which may be required under regulations made pursuant to current section 140H in Division 3A .

 

Subsection 140T(1) provides that, where a debt, or other amount, that a person has undertaken to pay to the Commonwealth becomes payable, the Minister may issue a notice in writing stating the amount of the debt or other amount.

 

Subsection 140T(2) provides that in any proceedings a notice under this section is prima facie evidence of the amount of the debt or other amount.

 

This amendment will ensure that this subsection will also apply to debts payable to the Commonwealth that arise as a result of one or more of the obligations contained in new Subdivision BB. The effect of this amendment is such that where a debt, or other amount, that a person is obliged to pay (because of the operation of one or more of the obligations in Subdivision BB), becomes payable, the Minister may issue a notice in writing stating the amount of the debt or other amount which will be prima facie evidence of that debt or other amount in proceedings taken pursuant to new 140SB, section 140R or section 140S.

 

Item 24           After section 140U

 

This item inserts new “Subdivision BF - Other matters”. The new subdivision BF comprises sections 140V and 140W which will deal with disclosure of personal information and ensuring that other regulation making powers are not limited by the regulation making powers in Division 3A.

Item 25           After subsection 140V(1)

This item inserts a new subsections 140V(1A) after subsection (1) of the Act.  Existing subsection 140V(1) authorises the Minister to disclose personal information to an approved sponsor or former approved sponsor in certain circumstances. These circumstances are where:

·          the personal information is about a visa holder or former visa holder whom the approved sponsor or former approved sponsor agreed to sponsor; and

·          the personal information to be disclosed is of a prescribed kind.

New subsection (1A) provides that the Minister may disclose to a visa holder or former visa holder, personal information of a prescribed kind about an approved sponsor or former approved sponsor of the visa holder or former visa holder.

Information such as the fact that proceedings are being taken against an approved sponsor for breach of an obligation for example, may assist a sponsored person (a visa holder) in pursuing any remedy that may be available to them. 

This item also inserts new subsection (1B) after new subsection 140V(1A) of the Act.

New subsection (1B) provides that the Minister may disclose to a prescribed agency of the Commonwealth or of a State or Territory, personal information of a prescribed kind about:

·          a holder of a visa (including a former holder of a visa) of a kind prescribed for the purposes of new section 140IA (inserted by item 7); or

·           an approved sponsor (including a former approved sponsor).

Subsection 140V(3) provides power for the regulations to prescribe circumstances in which the recipients of personal information under section 140V may use or disclose that personal information.

The purpose of new subsection (1A) is to authorise disclosure by the Minister of personal information about a sponsor or former approved sponsor to a visa holder. Disclosure could occur in circumstances where a sponsor has breached an obligation such as failure to pay certain amounts (eg. minimum salary level, travel or medical costs) as required by some of the obligations in Subdivision BB, and as a result of that breach the visa holder (or former visa holder) is owed money. The information could assist the visa holder to bring an action to recover the unpaid amounts.  Advising a visa holder that an approved sponsor has been barred from further sponsoring could also allow the visa holder time to look for a new approved sponsor should they wish to extend their stay in Australia (i.e. they will have knowledge that their current employer will not be able to sponsor them for a further visa)

The objective of new subsection (1B) is to permit the disclosure of information (of a kind prescribed in the regulations) by the Minister to other Commonwealth, State or Territory agencies (as prescribed in the regulations) for the purpose of monitoring the approved sponsor’s compliance with their obligations and the new requirement to comply with all Commonwealth, State and Territory laws (set out in new subsection 140K(2)) that are relevant to the sponsor’s fitness to continue to sponsor visa holders.

Item 26           Subsection 140V(3)

 

This item omits subsection 140V(3) of the Act and substitutes a new subsection which includes reference to the new subsections 140V(1A) and (1B) and refers to “the recipient “of personal information as different types of persons will be able to have information disclosed to them under amended section 140V.

Subsection 140V(3) provides power for the regulations to prescribe circumstances in which the recipient of personal information disclosed pursuant to subsections (1),(1A) and (1B) may use or disclose that personal information.  Subsection 140V(1) authorises the Minister to disclose personal information of a prescribed kind to an approved sponsor or former approved sponsor. New subsection 140V(1A) authorises the Minister to disclose personal information of a prescribed kind to a visa holder or former visa holder about the approved sponsor or former approved sponsor of that visa holder. New subsection 140V(1B) authorises the Minister to disclose personal information of a prescribed kind to a prescribed Commonwealth, State or territory agency about an approved sponsor (or former approved sponsor) or about a person who holds a visa covered by Division 3A of Part 2 or a former such visa holder.

Regulations will need to prescribe the circumstances under which personal information received under new subsections (1),(1A) and (1B) can be used and disclosed.

 

Item 27           Subsection 140V(4)

 

This item repeals subsection 140V(4) and replaces it with a new subsection.  New subsection 140V(4) provides that if the Minister discloses information about a visa holder (or former visa holder) or an approved sponsor (or former approved sponsor)  pursuant to subsections 140V(1) or (1A) the Minister must notify (in writing) the person about whom the information is disclosed.  That notification must include the fact that there has been a disclosure and the details of the information actually disclosed.

 

Item 28           Section 140X

 

This item repeals section 140X of the Act and substitutes wording that refers to “this Division” and also to new section 140ZBA (inserted by item 35) . The purpose of this amendment is to ensure that all of the subdivisions in Division 3A, and any regulations made under that Division apply to a partnership as if it were a person. This is subject, however, to the changes set out in sections 140Y to 140ZBA.

 

This is to ensure that where the approved sponsor is a partnership it is clear that the obligations created by or under subdivisions BA and BB apply to the partnership as if it were a person.

 

Item 29           After section 140X

 

140XA                        Sponsorship obligation means all obligations of sponsorship

This item inserts a new section 140XA after section 140X of the Act.

 

New section 140XA provides a definition of ‘sponsorship obligation’ for the purposes of Subdivision C - Application of the sponsorship system to partnerships and unincorporated associations. ‘Sponsorship obligation’ is defined to mean an obligation in relation to sponsorship or as a result of sponsorship and includes an obligation that arises under an undertaking required by Subdivision BA (or regulations made under that subdivision) or an obligation imposed by Subdivision BB (or regulations made under that subdivision).

 

This item also inserts a new section 140XB after new section 140XA which provides other definitions for the purposes of new Subdivision C.

 

Item 4 of this bill provides a definition of “obligation” for the purposes of Division 3A, which is made subject to section 140XA.

 

140XB            Other definitions

For the purposes of Subdivision C, in Part 2 of Division 3A, new section 140XB defines committee of management of an unincorporated association to mean a body (however described) that governs, manages or conducts the affairs of an association.

 

It also defines sponsorship right to mean a right in relation to sponsorship or as a result of sponsorship.

 

 

 

Item 30           Subsection 140Y(1)

 

This item repeals subsection 140Y(1) of the Act and substitutes a new subsection 140Y(1).

 

Subsection 140Y sets out ways in which sponsorship obligations and rights apply to a partnership.

 

New subsection 140Y(1) establishes the general rule that a sponsorship obligation that would otherwise be imposed on a partnership (if it was a legal entity) is instead imposed on each partner in a partnership at particular times. This general rule is subject to section 140ZA as amended, which deals with retiring partners.

 

New paragraphs 140Y(1)(a) and (b) together provide that the partners covered are those in the partnership either at the time the partnership becomes an approved sponsor or in relation to the Subdivision BB obligations at the time the Subdivision begins to apply to the partnership as an approved sponsor.

 

Paragraph (1)(b) will have limited application to those partnerships that were approved sponsors for a Subdivision BB prescribed kind of visa prior to commencement of Subdivision BB.  In this case the partners subject to the obligations in Subdivision BB will be those persons who are partners at the time Subdivision BB commences.  This will then also be subject to section 140ZA concerning retiring partners.

 

New subsection 140Y(1) is made subject to section 140ZA which provides that the

regulations may deal with the consequences of a partner leaving a partnership after it becomes an approved sponsor or after Subdivision BB applies to the partnership and may cover circumstances such as:

 

·          how long, a sponsorship obligation remains enforceable against the retiring partner; and

·          the circumstances in which, and for how long, a sponsorship right is exercisable by the retiring partner; and

·          which debts remain payable by the retiring partner.

 

However, no regulations have been made under section 140ZA.

 

Item 31           Subsection 140Y(2)

 

This item repeals subsection 140Y(2) of the Act and substitutes a new subsection 140Y(2).

 

Subsection 140Y sets out ways in which sponsorship obligations and rights may be exercised by a partnership.

 

New subsection 140Y(2) establishes the general rule that a sponsorship right that would otherwise be exercisable by a partnership (if it was a legal entity) is instead a right exercisable by each partner in a partnership at particular times. This general rule is subject to section 140ZA as amended, which deals with retiring partners.

 

New paragraphs 140Y(2)(a) and (b) together provide that the partners covered are those in the partnership either at the time the partnership becomes an approved sponsor or in relation to the Subdivision BB rights, at the time the Subdivision begins to apply to the partnership as an approved sponsor.

 

Paragraph (1)(b) will have limited application to those partnerships that were approved sponsors for a Subdivision BB prescribed kind of visa prior to commencement of Subdivision BB.  In that case the partners with the Subdivision BB rights will be those persons who are partners at the time Subdivision BB commences.  This will then also be subject to section 140ZA concerning retiring partners

 

New subsection 140Y(2) is made subject to section 140ZA which provides that the

regulations may deal with the consequences of a partner leaving a partnership after it becomes an approved sponsor or after Subdivision BB applies to the partnership and may cover circumstances such as:

 

·          how long, a sponsorship obligation remains enforceable against the retiring partner; and

·          the circumstances in which, and for how long, a sponsorship right is exercisable by the retiring partner; and

·          which debts remain payable by the retiring partner.

 

However, no regulations have been made under section 140ZA.

 

Item 32           Paragraphs 140Y(3)(a) and (b)

 

This item repeals paragraphs 140Y(3)(a) and (b) of the Act and substitutes new paragraphs 140Y(3)(a) and (b).

 

Subsection 140Y(3) sets out who, in a partnership, is jointly and severally liable to pay an amount that would otherwise be payable by a partnership in relation to sponsorship or as a result of sponsorship.

 

New paragraphs 140Y(3)(a) and (b) together provide that the partners covered are those in the partnership either at the time the partnership becomes an approved sponsor or in relation to liability arising from Subdivision BB obligations, at the time the Subdivision begins to apply to the partnership as an approved sponsor.

 

Subsection 140Y(3) is specifically made subject to section 140Z (new partners) and section 140ZA (retiring partners). Section 140Z provides a mechanism for new partners that join a partnership after it has become an approved sponsor or after the time when Subdivision BB applies to the partnership, to elect to accept obligations that arise after the time of the election.  If a partner chooses to make such an election the rights that may be exercised in respect of and the liabilities associated with that obligation also attach to the new partner.  Section 140ZA provides that the regulations may deal with the consequences of a partner leaving a partnership after it becomes an approved sponsor or after Subdivision BB applies to the partnership and may cover circumstances such as:

 

·          how long, a sponsorship obligation remains enforceable against the retiring partner; and

·          the circumstances in which, and for how long, a sponsorship right is exercisable by the retiring partner; and

·          which debts remain payable by the retiring partner.

 

 However, no regulations have been made under section 140ZA.

 

Item 33           Subsection 140Z(1)

 

This item amends subsection 140Z(1) of the Act to omit the words “is approved as a sponsor” and to substitute the words “becomes an approved sponsor of a person for a visa or after Subdivision BB begins to apply to the partnership as an approved sponsor”.

Section 140Z deals with the way in which sponsorship obligations or rights apply to a person who becomes a partner after the partnership becomes an approved sponsor or after Subdivision BB applies to it as an approved sponsor.

The general rule, that sponsorship obligations only apply to a new partner if he or she elects to accept these obligations, is set out in subsection 140Z(1).  Subsection 140Z(1) also spells out that the sponsorship obligations a new partner may elect to accept are those that:

·          would, but for subsection 140Y(1) or any previous application of section 140Z, be imposed on the partnership; and

·          arise after the new partner makes the election. 

If a partner chooses to make such an election the rights that may be exercised in respect of, and the liabilities associated with that obligation, also attach to the new partner. 

The effect of this amendment is to ensure consistency in language with amended section 140Y i.e. by referring to partners who join the partnership after it becomes an approved sponsor or in the case of Subdivision BB obligations, after that Subdivision applies to the partnership as an approved sponsor.

 

 

 

Item 34           Subsection 140ZA(1)

This item amends subsection 140ZA(1) of the Act to omit the words “is approved as a sponsor” and to substitute the words “becomes an approved sponsor of a person for a visa or after Subdivision BB begins to apply to the partnership as an approved sponsor of a person for a visa”.

Section 140ZA enables the regulations to deal with the consequences of a partner leaving a partnership after it becomes an approved sponsor or after Subdivision BB applies to it as an approved sponsor.

Subsection 140ZA(1) provides that, despite section 140Y, the regulations may prescribe:

·          the circumstances in which, and for how long, a sponsorship obligation remains enforceable against the retiring partner;

·          the circumstances in which, and for how long, a sponsorship right is exercisable by the retiring partner;

·          which debts remain payable by the retiring partner.

However, no regulations have been made under section 140ZA.

The effect of this amendment is to ensure consistency in language with amended section 140Y  i.e. by referring to partners who leave the partnership after it becomes an approved sponsor or in the case of Subdivision BB obligations, after that Subdivision applies to the partnership.

 

Item 35           After section 140ZB

 

This item inserts a new section 140ZBA - Liability of partners for offences and civil penalties.

 

New subsection 140ZBA sets out who is liable for offences and civil penalties in the context of a partnership.

 

New subsection 140ZBA(1) provides that an offence against a provision in Division 3A, that would otherwise have been committed by a partnership is taken to have been committed by each partner who:

 

·          did the relevant act or made the relevant omission; or

·          aided or abetted, counselled or procured the relevant act or omission.

 

Currently, the only applicable offence in Division 3A is failure to produce a document at the request of an inspector (See new section 140ZK inserted by item 44).

New subsection 140ZBA(2) provides that despite anything to the contrary in Division 3A, a pecuniary penalty must not be imposed on a partner who is bound by a Subdivision BB civil penalty provision in respect of a breach of that provision, unless the partner:

 

·          did the relevant act or made the relevant omission; or

·          aided or abetted, counselled or procured the relevant act or omission.

 

New subsection 140ZBA(3) provides that for the purposes of subsections (1) and (2), to establish that a partnership engaged in a particular conduct, it is sufficient to show that the conduct was engaged in by a partner:

·          in the ordinary course of the business of the partnership; or

·          within the scope of the actual or apparent authority of the partner.

 

New subsection 140ZBA(4) provides that for the purposes only of subsection (1), to establish that a partnership had a particular state of mind when it engaged in a particular conduct, it is sufficient to show that the partner had the relevant state of mind.  Subsection (4) does not refer to subsection 140ZBA(2) which deals with civil penalty proceedings as there are no mental elements required to establish breach of a Subdivision BB civil penalty.

 

Item 36           Section 140ZC

 

This item repeals section 140ZC and substitutes wording that refers to  “this Division” and also to new section 140ZGA (inserted by item 42). Section 140ZC mirrors section 140X (which relates to partnerships) except it deals with unincorporated associations.  Section 140ZC as amended provides that new Division 3A and regulations made under it, apply to an unincorporated association as if it were a person.

 

The purpose of this amendment is to ensure that new Division 3A, and any regulations made under that Division apply to an unincorporated association as if it were a person. This is subject however, to the changes set out in sections 140ZD to 140ZGA.

 

Item 37           Subsection 140ZD(1)

 

This item repeals subsection 140ZD(1) of the Act and substitutes a new subsection 140ZD(1).

 

Subsection 140ZD(1) sets out ways in which sponsorship obligations and rights apply to an unincorporated association.

 

New subsection 140ZD(1) establishes the general rule that a sponsorship obligation that would otherwise be imposed on a unincorporated association (if it was a legal entity) is instead imposed on each person who is a member of the association’s committee of management at particular times. This general rule is subject to section 140ZF as

amended, which deals with former members of the association’s committee of management.

 

New paragraphs 140ZD(1)(a) and (b) together provide that the members of the association’s committee of management covered are those on the committee either at the time the association becomes an approved sponsor or in the case of Subdivision BB obligations, at the time the Subdivision begins to apply to the association as an approved sponsor.

 

Paragraph (1)(b) will have limited application to those associations that were approved sponsors for a Subdivision BB prescribed kind of visa prior to the commencement of Subdivision BB.  In that case the members of the association’s committee of management subject to the obligations in Subdivision BB will be those persons who are members at the time Subdivision BB commences.  This will then also be subject to section 140ZF concerning former members.

 

New subsection 140ZD(1) is made subject to section 140ZF which provides that the

regulations may deal with the consequences of a person who is a member of the association’s committee leaving the association after it becomes an approved sponsor or in relation to Subdivision BB obligations, after Subdivision BB applies to the association as an approved sponsor and may cover circumstances such as:

 

·          how long, a sponsorship obligation remains enforceable against the former member; and

·          the circumstances in which, and for how long, a sponsorship right is exercisable by the former member; and

·          which debts remain payable by the former member.

 

However, no regulations have been made under section 140ZF.

 

Item 38           Subsection 140ZD(2)

 

This item repeals subsection 140ZD(2) of the Act and substitutes a new subsection 140ZD(2).

 

New subsection 14ZD(2) establishes the general rule that a sponsorship right that would otherwise be exercisable by an unincorporated association (if it was a legal entity ) is instead a right exercisable by each person who is a member of the association’s committee of management at particular times. This general rule is subject to section 140ZF as amended, which deals with former members.

 

New paragraphs 140ZD(2)(a) and (b) together provide that the members of the association’s committee of management covered are those on the committee either at the time the association becomes an approved sponsor or in the case of Subdivision BB rights, the time the Subdivision begins to apply to the association as an approved sponsor.

 

Paragraph (2)(b) will have limited application to those associations who were approved sponsors for a Subdivision BB prescribed kind of visa prior to commencement of Subdivision BB.  In that case the members of the association’s committee of management who may exercise the Subdivision BB rights will be those persons who were members of the association’s committee of management at the time Subdivision BB commences.  This will then also be subject to section 140ZF concerning former members.

 

New subsection 140ZD(2) is made subject to section 140ZF which provides that the

regulations may deal with the consequences of a member leaving an association after it becomes an approved sponsor or in relation to Subdivision BB obligations, after Subdivision BB applies to the association as an approved sponsor, and may cover circumstances such as:

 

·          how long, a sponsorship obligation remains enforceable against the former member; and

·          the circumstances in which, and for how long, a sponsorship right is exercisable by the former member; and

·          which debts remain payable by the former member.

 

However, no regulations have been made under section 140ZF to date.

 

Item 39           Paragraphs 140ZD(3)(a) and (b)

 

This item repeals paragraphs 140ZD(3)(a) and (b) of the Act and substitutes new paragraphs 140ZD(3)(a) and (b).

 

Subsection 140ZD(3) sets out who, in an unincorporated association, is liable to pay an amount that would otherwise be payable by an unincorporated association in relation to sponsorship or as a result of sponsorship.

 

New paragraphs 140ZD(3)(a) and (b) together provide that the members of an unincorporated association’s committee of management covered are those on the committee either at the time the association becomes an approved sponsor or in relation to liability arising from Subdivision BB obligations, at the time Subdivision BB begins to apply to the association as an approved sponsor.

 

Subsection 140ZD(3) is specifically made subject to section 140ZE (new members) and section 140ZF (former members). Section 140ZE provides a mechanism for new members of an association’s committee of management that join an unincorporated association after it has become an approved sponsor or after the time when Subdivision BB applies to the association, to elect to accept obligations that arise after the time of the election.  If a member chooses to make such an election the rights that may be exercised in respect of, and the liabilities associated with that obligation, also attach to the new member.  Section 140ZF provides that the regulations may deal with the consequences of a member leaving a committee of management of an unincorporated association after it becomes an approved sponsor or after Subdivision BB applies to the association and may cover circumstances such as:

 

·          how long, a sponsorship obligation remains enforceable against the former member; and

·          the circumstances in which, and for how long, a sponsorship right is exercisable by the former member; and

·          which debts remain payable by the former member.

 

However, no regulations have been made under section 140ZF.

 

Item 40           Subsection 140ZE(1)

 

This item amends subsection 140ZE(1) of the Act to omit “is approved as a sponsor” and substitute the words “becomes an approved sponsor of a person for a visa or after Subdivision BB begins to apply to the association as an approved sponsor of a person for a visa”.

 

Section 140ZE deals with what happens when a new member joins the association’s committee of management after it has become an approved sponsor or after the time when Subdivision BB applies to the association .

The general rule, that sponsorship obligations only apply to a new member if he or she elects to accept these obligations, is set out in subsection 140ZE(1).  New subsection 140ZE(1) also spells out that the sponsorship obligations a new member may elect to accept are those that:

·          would, but for subsection 140ZD(1) or any previous application of section 140ZE, be imposed on the association; and

·          arise after the new member makes the election. 

If a member chooses to make such an election the rights that may be exercised in respect of, and the liabilities associated with that obligation, also attach to the new member. 

The effect of this amendment is to ensure consistency in language with amended section 140ZD  i.e. by referring to members who join the committee of management of the association after it becomes an approved sponsor or Subdivision BB applies to the association. 

 

Item 41           Subsection 140ZF(1)

 

This item amends subsection 140ZF(1) of the Act to omit the words “is approved as a sponsor” and to substitute the words “becomes an approved sponsor of a person for a visa or after Subdivision BB begins to apply to the association as an approved sponsor of a person for a visa”.

Section 140ZF enables the regulations to deal with the consequences of a member of an association’s committee of management leaving the association after it becomes an approved sponsor or after Subdivision BB applies to it as an approved sponsor.

Subsection 140ZF(1) provides that, despite section 140ZD, the regulations may prescribe:

·          the circumstances in which, and for how long, a sponsorship obligation remains enforceable against the former member;

·          the circumstances in which, and for how long, a sponsorship right is exercisable by the former member;

·          which debts remain payable by the former member.

However, no regulations have been made under section 140ZF to date.

The effect of this amendment is to ensure consistency in language with amended section 140ZD for sponsorship obligations to apply to a member who has left the committee of management after the association becomes an approved sponsor or after Subdivision BB applies to the association.

 

Item 42           After section 140ZG

 

This item inserts a new section 140ZGA - Liability of members of committees of management for offences and civil penalties.

 

New subsection 140ZGA sets out who is liable for offences and civil penalties in the context of an unincorporated association.

 

New subsection 140ZGA(1) provides that an offence against a provision in Division 3A, that would otherwise have been committed by an unincorporated association is taken to have been committed by each member of the committee of management who:

 

·          did the relevant act or made the relevant omission; or

·          aided or abetted, counseled or procured the relevant act or omissions.

 

Currently, the only relevant offence in Division 3A is failure to produce a document at the request of an inspector (See new section 140ZK inserted by item 44).

 

New subsection 140ZGA(2) provides that despite anything to the contrary in Division 3A, a pecuniary penalty must not be imposed on a member who is bound by a Subdivision BB civil penalty provision in respect of a breach of that provision, unless the member:

 

·          did the relevant act or made the relevant omission; or

·          aided or abetted, counseled or procured the relevant act or omissions.

 

New subsection 140ZGA(4) provides that for the purposes of subsection (1), to establish that an association had a particular state of mind when it engaged in a particular conduct, it is sufficient to show that the member had the relevant state of mind.  Subsection (4) does not refer to subsection 140ZGA(2) which deals with civil penalty proceedings as there are no mental elements required to establish breach of a Subdivision BB civil penalty provision in Division 3A.

 

Item 43           Section 140ZH

 

This item repeals section 140ZH.  The definitions currently in that section have been amended and moved up to the front of Subdivision C in new sections 140XA and 140XB inserted by item 29.

 

Item 44           At the end of Division 3A of Part 2

 

This item inserts a new “Subdivision D - Inspectors” at the end of Division 3A of Part 2. This new Subdivision D comprises 5 sections.

 

This new subdivision sets out the powers of inspectors who will be monitoring compliance of approved sponsors with their sponsorship obligations such as power to search certain premises as well as the power to disclose information. This subdivision also prescribes two criminal offences for the purposes of Division 3A. The first is for failure to produce a document at the request of an inspector (new section 140JK) and the second is failure, on the part of an inspector, to return his/her identity card with 14 days of ceasing to be an inspector (new subsection 140ZI(3)).

 

140ZH             Inspectors

 

This item inserts new section 140ZH which deals with appointment of inspectors.

 

New subsection 140ZH(1) provides that the Minister may, by written instrument, appoint such inspectors as the Minister considers necessary from time to time.

 

New subsection 140ZH(2) provides that the Minister may appoint as an inspector either:

(a)     a person who has been appointed (or is employed) by the Commonwealth; or

(b)    a person, other than a person mentioned in paragraph 140ZH(2)(a).

New subsection 140ZH(3) provides that a person appointed under paragraph 140ZH(2)(a) is appointed for the period specified in regulations made under this subsection.  New subsection 140ZH(4) provides that a person appointed under paragraph 140ZH(2)(b) is appointed for the period specified in the person’s instrument of appointment, which must not be longer than the period specified in the regulations made under section 140ZH(4).

 

New subsection 140ZH(5) which is subject to subsection (6) provides that an inspector has the powers and functions conferred on an inspector by this Act or by the regulations.

 

New subsection 140ZH(6), to which subsection (5) is made subject, provides that a person appointed under paragraph (2)(b) has only such of the powers and functions mentioned in subsection (5) as are specified in his or her instrument of appointment. This means that inspectors appointed pursuant to 140ZH(2)(b) may be provided with limited powers or functions if necessary.

 

New subsection 140ZH(7) provides that the Minister may give directions (in writing) specifying the manner in which, and any conditions and qualifications subject to which, powers or functions conferred on inspectors are to be exercised or performed. This provision gives the Minister power to provide guidance and direction to inspectors as to how their powers or functions should be exercised and any conditions or qualifications on those powers or functions.

 

New subsection 140ZH(8) provides that an inspector must comply with those directions. The sanction for non-compliance would be for the Minister to revoke the inspector’s appointment as an inspector.

 

140ZI              Identity Cards

 

This item inserts new section 140ZI which sets out rules in relation to the issue and use of inspectors’ identity cards.

 

New subsection 140ZI(1) provides that the Minister may issue to an inspector an identity card in a prescribed form.

 

New subsection 140ZI(2) compels an inspector to carry the identity card at all times when exercising powers of performing functions as an inspector.

 

New subsection 140ZI(3) provides that a person commits a criminal offence if the person ceases to be an inspector and the person fails to return his or her identity card to the Secretary within 14 days after ceasing to be an inspector. The maximum penalty which can be imposed for this offence is 1 penalty unit.

 

New Subsection 140ZI(4) states that strict liability applies to the offence in subsection (3).

 

A note has been inserted under subsection (4) which provides that for a definition of strict liability , see section 6.1 of the Criminal Code.

 

The Criminal Code requires that if an offence is intended to be one of strict liability, it must be expressly stated.  Strict liability is criminal responsibility where there is an absence of any requirement of fault. The defense of reasonable mistake of fact is however available in strict liability offences.

 

It is important that identity cards be returned as soon as practicable after an inspector ceases their appointment in order to prevent the improper use of such cards. This is an administrative obligation provision, with a small penalty attached where strict

liability is commonly applied under Commonwealth law.

 

 

 

140ZJ              Powers of Inspectors

 

Purpose for which powers of inspectors can be exercised

 

Inspectors are given certain powers under the Act (see subsection 140ZJ(2)) and additional powers or functions may be prescribed in the regulations (see subsection 140ZH(5)).  New subsection 140ZJ(1) provides the purposes for which inspectors powers can be exercised. The powers of an inspector may only be exercised for the purposes of determining whether the obligations imposed by Subdivision BB or by regulations made under that Subdivision are being, or have been, complied with; or for the purposes of a provision of the regulations that confers powers or functions on inspectors.

 

Powers of inspectors

 

New subsection 140ZJ(2) sets out the powers of inspectors.

 

Subparagraph 140ZJ(2)(a) permits an inspector to enter, without force, a place of business or other place where he or she has reasonable cause to believe that there is information, documents or any other thing relevant to the purposes set out in subsection (1).

 

Paragraph 140ZJ(2)(b) provides that in a place (referred to in paragraph 140ZJ(2)(a)) inspectors are authorised to:

·          inspect any work, material, machinery, appliance, article or facility; 

·          interview any person;

·          require a person having the custody of, or access to, a document relevant to that purpose to produce the document to the inspector within a specified period;

·          inspect a document produced to him or her and make copies of, or take extracts from, the document; and

·          require a person to tell the inspector who has custody of a document.

 

Inspectors are also able to require a person, by written notice, to produce a document to the inspector at a specified place within a specified period (of not less than 7 days).

Note 1 explains that a contravention of a requirement under subparagraph140ZJ(2)(b)(iii) (requiring a person having the custody of, or access to, a document relevant to that purpose to produce the document to the inspector within a specified period) or paragraph 140ZJ(2)(c) (requiring a person, by written notice, to produce a document to the inspector at a specified place within a specified period) may constitute an offence under section 140ZK.   The penalty for an offence under section 140ZK is imprisonment for 6 months.

 

Note 2 explains that subsection (7) deals with the methods by which the notice must be given to the person.

 

 

 

 

When may the powers be exercised

 

Subsection 140ZJ(3) sets out when inspectors powers may be exercised and provides that inspectors may exercise their powers at any time during working hours or at any other time at which it is necessary to do so for the purposes set out in subsection (1).

 

Subsection 140ZJ(4) provides that if a person who is required under subparagraph (2)(b)(iii) to produce a document contravenes that requirement, an inspector may, by written notice given to the person, require the person to produce the document at a specified place within a specified period (of not less than 7 days).

 

Note 1 explains that a contravention of a requirement under subsection 140ZJ(4) may constitute an offence under section 140ZK.  The penalty for an offence under section 140ZK is imprisonment for 6 months.

 

Note 2 explains that subsection (7) deals with the methods by which the notice must be given to the person.

 

Subsection 140ZJ(5) provides that if a document is produced to an inspector under paragraph (2)(c) or subsection (4) the inspector may make copies of, or take extracts from the document and retain the document for such period as is necessary for the purpose of exercising powers or performing functions as an inspector.

Subsection 140ZJ(6) provides during the period a document is in the possession of an inspector, the inspector must permit the person otherwise entitled to possession of the document, or a person authorised by the person, to inspect, make copies of or take extracts from the document at all reasonable times.

 

Giving notices under paragraph (2)(c) and subsection (4)

 

This subsection provides that a notice referred to in paragraph (2)(c) or subsection (4) must be given to the person by one of the methods specified in section 494B.

 

The methods in section 494B include giving a notice by hand, handing to person at their residential or business address, transmission by fax, e-mail or other electronic means.  If

a notice is given by one of the methods in section 494B the recipient is taken to have received the notice in accordance with the provisions of section 494C

 

Subsection 140ZJ(7), provides at paragraph (a) and (b) that a reference in sections  494B or 494C to the Minister is instead taken to be a reference to the inspector and despite subsection 494B(2), (3) and (6), an inspector must not act by way of an authorised officer.  As inspectors will be performing an operational role it is not appropriate that other officers should be authorised for the purposes of providing notices.  It is appropriate that inspectors perform this important function personally.

 

 

 

Information and documents that incriminate a person

 

Under subsection 140ZJ(8) a person must still produce a document or provide information to an inspector notwithstanding the fact that the document or information could incriminate them. 

However, under subsection 140ZJ(9) if an individual gives information or produces a document under section 140ZJ none of the following are admissible in evidence against the individual in any criminal proceedings other than proceedings for an offence against 140ZK:

·        the giving of the information or the production of the document;

·        any information, document or thing obtained as a direct or indirect consequence of giving the information or producing the document.

Subsection 140ZJ(10) provides that an inspector who is proposing to enter, or has entered, premises and has been required by the occupier of the premises to produce evidence of authority, the inspector is not entitled to enter or remain on the premises without producing his her identity card to the occupier.

 

140ZK              Non-compliance with requirement of inspector

 

This section provides that a person commits an offence if the person contravenes a requirement made by an inspector under subparagraph 140ZJ(2)(b)(iii), paragraph 140ZJ(2)(c) or subsection 140ZJ(4), which all deal with requirements to produce documents.

 

This offence attracts a maximum penalty of imprisonment of 6 months.

 

Subparagraph 140ZJ(2)(b)(iii) requires a person having the custody of, or access to, a document (relevant to a purpose for which the powers of an inspector can be exercised) to produce the document to an inspector within a specified period.

 

Paragraph 140ZJ(2)(c) provides than an inspector may require a person, by written notice, to produce a document to the inspector at a specified place within a specified period (of not less than 7 days).

Subsection 140Z(4) provides that if a person who is required under subparagraph (2)(b)(iii) to produce a document contravenes that requirement, an inspector may, by written notice given to the person, require the person to produce the document at a specified place within a specified period (of not less than 7 days).

 

140ZL              Disclosure of Information by inspectors

 

New section 140ZL sets out the circumstances in which an inspector can disclose information to another person. Under this section, the disclosure of information (acquired in the course of exercising powers or performing functions as an inspector) by an inspector is authorised where the inspector considers, on reasonable grounds that the disclosure in the course of exercising his or her powers or performing his or her functions is necessary or appropriate.

 

Pursuant to subsection 140ZL(2) and inspector may also disclose information to an officer of the Department administered by the Minister who administers the Workplace Relations Act 1996 if the inspector considers on reasonable grounds that the disclosure is likely to assist the officer in the administration of that Act.

 

Subsection 140ZL(3) also provides that the regulations may authorise inspectors to disclose information of the prescribed kind, for prescribed purposes, to officers of the Commonwealth of the prescribed kind or officers of a State or Territory of the prescribed kind.

 

Item 45           After Part 8C

 

This item inserts a new “Part 8D - General provisions relating to civil remedies”, after Part 8C of the Act.  This new Part comprises 9 sections.

 

New Part 8D sets up a general framework for civil remedies that is to have application across the Act and the regulations.

 

486R               Operation of this Part

 

Section 486R indicates that the rules set out in Part 8D apply for the purposes of:

·          Section 140SB - imposition and recovery of civil penalties under Subdivision BB;

·          Any other provision of the Migration Act or of the regulations declared to be a civil remedy provision whether or not for the purposes of a particular segment of the Act or regulations; and

·          Any other provision of the Migration Act or of the regulations that provides a remedy for a contravention of a civil remedy provision.

 

Subsection 486R(2) also provides that the provisions referred to above are called civil remedy provisions.

 

486S    Involvement in contravention treated in same way as actual contravention

 

New section 486S establishes that a person involved in a contravention of a civil remedy provision is to be treated as having contravened that provision personally. The term involved in is defined in subsection 486S(2) to mean when the person has aided, abetted, counseled, procured, induced (whether by threats or promises or otherwise) the contravention or has conspired with others to effect the contravention .

 

 

 

 

486T               Civil evidence and procedure rules for civil remedy orders

 

New section 486T, which is self explanatory, provides that a court hearing a matter under a civil remedy provision must apply the rules of evidence and procedure for civil matters.

 

486U               Recovery of pecuniary penalties

 

New section 486U provides that a pecuniary penalty payable under an order made under a civil remedy provision is a debt due and payable to the Commonwealth.  The Commonwealth and may enforce the order as if it were an order made in civil proceedings against the person to recover the debt.  The debt is taken to be a judgment debt.

 

486V               Civil proceedings after criminal proceedings

 

Pursuant to new section 486V, a court must not make an order under a civil remedy provision in relation to certain conduct that requires a person to pay a pecuniary penalty if that person has been convicted of an offence arising from substantially the same conduct.

 

New section 486V ensures that a person who is convicted of a criminal offence will not face a pecuniary penalty in relation to substantially the same conduct.

 

486W              Criminal proceedings during civil proceedings

 

This new section sets out the interrelationship between criminal and civil proceedings that relate to conduct of a person which may be a breach of a civil penalty provision and also a criminal offence. Under subsection 486W(1), proceedings for an order under a civil remedy provision which will require that person to pay a pecuniary penalty will be stayed where:

·          criminal proceedings are started or have already been started against the person for an offence; and

·          the offence is constituted by conduct that is substantially the same as the conduct in relation to which an order under a civil remedy provision is proposed to be made.

 

Under subsection 486W(2), proceedings for an order under a civil remedy provision would be able to be resumed if the person is not convicted of an offence.  If the person is convicted, proceedings for an order under a civil remedy provision will be dismissed.

 

486X               Criminal proceedings after civil proceedings

 

New section 486X provides that criminal proceedings may be commenced against a person for conduct that is substantially the same as that which could be the basis for an order under a civil penalty provision regardless of whether or not such an order has been made.

 

486Y               Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings

 

New section 486Y provides that evidence of information given or evidence of production of documents in proceedings for an order under a civil remedy provision requiring a pecuniary penalty is inadmissible in subsequent criminal proceedings which relate to substantially the same conduct. This section does not however, apply in respect of a criminal proceeding for false evidence given by the individual in proceedings under the civil remedy provision.

 

486Z                Civil double jeopardy

 

New section 486Z applies the double jeopardy principle to civil remedy provisions under the Migration Act. Under this section, a person would not be liable to pay a pecuniary penalty under another law of the Commonwealth relating to conduct that was substantially the same as that for which they have already been ordered to pay a pecuniary penalty under a civil remedy provision.

 

Civil remedy provision is defined in new section 486R (inserted by item 45).

 

Item 46           After paragraph 504(1)(ja)

 

This item inserts new paragraph 504(1)(jb) after paragraph 504(1)(ja).

 

New paragraph 504(1)(jb) provides an additional purpose for which the Governor-General is authorised to make regulations.

 

Subsection 504(1) provides that the Governor-General may make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for the carrying out or giving effect to this Act and, without limiting the generality of the foregoing may make regulations.

 

New Paragraph 504(1)(jb) provides the power to make regulations enabling a persons who is alleged to have contravened a provision in Subdivision BB of Part 3A of Part 2 (or regulations made thereunder) to pay to the Commonwealth a prescribed penalty, as an alternative to a proceeding under section 140SB not exceeding one-fifth of the maximum penalty (that would otherwise apply).

 

The purpose of this amendment is to set up a power to make regulations which provide a person who is alleged to have contravened a provision in or under Subdivision BB with an alternative to a civil penalty proceeding under section 140SB. The alternative is to pay to the Commonwealth, an amount not exceeding one-fifth of the maximum penalty that would have applied for contravention of the provision.

 

It is intended that an infringement notices regime be set up in the regulations to complement the civil penalty regime.

 

Part 2—Transitional matters

 

Item 47           Application of amendments to persons who are already approved sponsors

 

Section 47 is a provision which has been included in the bill to avoid any doubt that the new provisions in this bill, such as the new obligations regime and associated civil penalties are to apply to already approved sponsors (in relation to Subdivision BB prescribed types of visas).

 

Section 47 provides, that to avoid doubt, the reference in section 140IA of the Migration Act 1958 (as inserted by item 7 of Schedule 1 of the bill) to an approved sponsor includes a reference to an approved sponsor when section 140IA commences.

 

Item 48           Effect of amendments on undertakings made before commencement

 

Item 48 is a transitional provisions dealing with undertakings made prior to the commencement of item 7 of this bill and where Subdivision BB becomes applicable to the approved sponsor in relation to that visa.

 

Item 48(1) provides that where an approved sponsor has made undertakings as required by or under section 140H or 140I in relation to a prescribed kind of visa and after that time Subdivision BB applies to the approved sponsor in relation to that visa, then the undertakings cease to be enforceable against the approved sponsor.

Item 48(2) sets out that subsection (1) has effect despite section 140Q of the Migration Act 1958.  Section 140Q allows regulations to prescribe the circumstances in which, and for how long, an undertaking or obligation arising out of a sponsorship can remain enforceable against the sponsor where there has been a change in circumstances i.e. where the sponsor has ceased to be an approved sponsor or the visa holder has ceased to hold the visa for which he or she was sponsored.

Item 48(3) provides that, to avoid doubt, subsection (1) does not affect any penalty incurred or other remedy available in respect of an act or omission before Subdivision BB of Division 3A of Part 2 of the Migration Act 1958 applies to the approved sponsor.  Also subsection (1) does not affect any investigation, proceeding, or other action in respect of such penalty or other remedy that may be instituted, continued, enforced, imposed or taken after Subdivision BB applies to the approved sponsor.

Item 48(3) makes it clear that where undertakings made by an approved sponsor cease to be in enforceable on Subdivision BB applying to an approved sponsor, anything done in relation to a penalty, remedy, action, proceeding investigation etc is not affected by the undertakings ceasing to be enforceable.  For instance if an approved sponsor had breached an undertaking at a time when it was enforceable against them (they were bound by that undertaking) a decision could still be taken post Subdivision BB applying to that approved sponsor, to for instance, cancel their approval as a sponsor or bar sponsorship.

Item 49           Effect of certain amendments on current proceedings

 

This item provides for transitional arrangements in relation to certain amendments by indicating that those amendments are not to affect ongoing proceedings.

 

This item provides at subsection (1) that amendments to the Migration Act 1958 made by items 18, 20 and 21 of Schedule 1 do not apply in relation to, or otherwise affect, any proceedings started before those amendments commence.  Items 18, 20 and  21 deal with amendments to sections 140R and 140S of the Migration Act 1958 which allow for recovery of moneys which an approved sponsor is obliged to pay under an undertaking or obligation.  The amendments effectively change the court where an action can be commenced from a court of competent jurisdiction to an eligible court .  Eligible court is defined in new section 140QA.

 

This item also provides at subsection (2) that sections 140SC to 140SE of the Migration Act 1958 as inserted by item 22 of Schedule 1 of the bill apply only in relation to proceedings started on or after the commencement of those sections.  New sections 140SC to 140SE deal with issues such as interest on monies due up to judgment, interest on judgment and using a small claims procedure in a magistrates court.  These provisions did not apply to actions commenced under section 140R or 140S prior to the amendments to be made by this bill and this provision makes it clear that they do not apply to those pre-existing proceedings after commencement of item 22.

 

Item 50           Effect of certain amendments on existing obligations, liabilities and rights

 

Item 50 makes it clear that the amendment made by items 6, 30 to 34, and items 36 to 41 do not affect any obligation that was imposed, or liability or right that arose, before those amendments commence.

The amendments referred to in these items are to change the time at which undertakings take effect in relation to a person, a partnership or an unincorporated association respectively.  The new time of effect (generally speaking) is when the sponsor becomes an approved sponsor.  This provision makes it clear that this change is not to affect any obligation imposed, liability or right that arose as a result of the provisions in effect prior to the commencement of these items.

 

 

Schedule 2 - Taxation Administration Act 1953

Part 1 -  Amendment

 

Item 1             After section 3EC

 

This item amends the Taxation  Administration Act 1953 (“TAA”) to insert a new section 3ED after section 3EC of the TAA.

 

New subsection 3ED(1) overrides any taxation secrecy provision and allows the Commissioner of Taxation to disclose tax information to the Department of Immigration and Citizenship (DIAC), if the Commissioner is satisfied that the information:

(a)     relates to a holder or former holder of a visa, or an approved sponsor or former approved sponsor whose identity is disclosed to the Commissioner under section 140V of the Migration Act 1958 and

(b)    is relevant to the exercise of the Minister’s powers under, or the administration of, Division 3A of Part 2 of the Migration Act 1958 or regulations made under that Division.

 

New paragraph 3ED(1)(a) requires that the tax information relates to either a holder (or former holder) of a visa, or an approved sponsor (or former approved sponsor) of a person for a visa whose identity is disclosed to the Commissioner under section 140V of the Migration Act 1958. This means that the Commissioner may only disclose information about a sponsor or visa holder to DIAC if the visa holder or sponsor’s identity has first been disclosed to the Commissioner pursuant to new section 140V(1B) as inserted by item 25.

 

New paragraph 3ED(1)(b) provides that in addition to the requirements set out in 3ED(1)(a), the tax information may only be disclosed if it is relevant to the exercise of the Minister’s powers under, or the administration of, Division 3A of Part 2 (or the regulations made under it). A note is included at the bottom of subsection 3ED(1) which explains that Division 3A of Part 2 deals with sponsorship.

 

DIAC will use the tax information to monitor whether approved sponsors are complying with their sponsorship obligations and are good corporate citizens, in that they are complying with laws of the Commonwealth, of a State or Territory that are relevant to the sponsor’s fitness to be a sponsor of visa holders.

 

New subsection 3ED(2) establishes a criminal offence and provides that a person to whom information is disclosed under subsections (1) or (3) must not disclose the information to another person or make a record of the information. Contravention of this provision attracts a maximum penalty of 2 years imprisonment. This subsection operates to prohibit a person (whether the officer who initially received the information or a person who received it pursuant to subsection (3))) from disclosing the information to another person. The person must also not make a record of the information.

 

Subsection 3ED(3) provides that subsection (2) does not apply to the extent that the information was disclosed, or the record of the information was made, for or in connection with the purposes set out in paragraphs (a) - (e).

 

Paragraph 3ED(3)(a) covers the exercise of the Minister’s powers under, or the administration of Division 3A (or the regulations made under that Division). This would cover such powers as the power to bar a sponsorship, the power to waive a bar on sponsorship, power to bring a civil remedy proceeding for breach of an obligation (such as failure to pay minimum salary level (MSL), or failure to pay travel costs).

 

Paragraph 3ED(3)(b) covers merits review and judicial review of a decision concerning the exercise of the Minister’s powers under Division 3A. For example, this new paragraph would permit disclosure to the Migration Review Tribunal (MRT) of information that led the Minister to make a decision to bar a sponsor’s sponsorship, which is a reviewable decision. The MRT decision could be subject to judicial review on questions of law. Therefore, the information needs to be made available to the MRT and the courts.

 

New Paragraph 3ED(3)(c) covers proceedings under Subdivision BE of Division 3A, which includes the recovery of civil penalties. This means that the information may be disclosed or recorded etc for the purposes of civil remedy proceedings brought under Subdivision BE for breach of a sponsorship obligation.

 

New paragraph 3ED(3)(d) covers penalties which are paid by a person (as an alternative to facing civil penalty proceedings) in accordance with the regulations made under paragraph 504(1)(jb) of the Migration Act. It is proposed that regulations will be made under 504(1)(jb) to set up an infringement notices regime. This paragraph operates so that information may be disclosed, or recorded for the purposes of issuing an infringement notice as an alternative to civil proceedings.

 

New paragraph 3ED(3)(e) covers any proceedings arising from the proceedings mentioned in paragraph (c) or penalty mentioned in paragraph (d). This is to cover any judicial review that might be undertaken in relation to civil remedy proceedings or the imposition of an infringement notice.

 

New subsection 3ED(4) provides that section 3ED applies in addition to, and not in derogation of, any other provision of the TAA or of any other law relating to the communication of information.

 

Subsection 3ED(5) defines "tax information" for the purposes of new section 3ED by reference to the definition in section 3EA. This subsection also defines taxation secrecy provision for the purposes of new section 3ED by reference to its meaning given by section 3E.

 

 It is intended that DIAC would be providing the ATO with very specific information about a sponsor that indicates the sponsor may be in breach of an obligation or not complying with tax laws of the Commonwealth, State or Territory. This information could be obtained through compliance and intelligence programs, or via a complaint from a visa holder. DIAC may, for example give the Tax Office documentation (such as business records obtained by inspectors) which indicates a possible breach of an obligation, or breach of tax laws, and this information could include the amount of income the visa holder should have received, the amounts withheld by the employer, details of the employer, including the Australian Business Number (ABN). 

 

If the Tax Office has conducted compliance activity in relation to a taxpayer identified by DIAC, then the Tax Office may provide DIAC with information relating to non-compliance with taxation laws.

 

In relation to retention of tax information DIAC obtained from the Commissioner of Taxation, DIAC intends to keep the information for the shortest amount of time necessary to complete any of the purposes for which it was initially disclosed.

 

Part 2 - Application

 

Item 2             Application of amendment of the Taxation Administration Act 1953

 

This item makes it clear that the amendment made by item 1 of Schedule 2 applies to tax information that was collected by the Tax Commissioner either before or after the commencement of item 1.