Save Search

Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Migration Amendment (Reform of Employer Sanctions) Bill 2012

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

 

 

2010 - 2011 - 2012

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

 

 

 

 

 

MIGRATION AMENDMENT (REFORM OF EMPLOYER SANCTIONS) BILL 2012

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

the Hon. Chris Bowen MP)



Migration Amendment (Reform of Employer Sanctions) Bill 2012

 

OUTLINE

 

The Migration Amendment (Reform of Employer Sanctions) Bill 2012 (the Bill) amends the Migration Act 1958 (the Act) to implement the Government’s response to the independent report entitled Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007 (the Howells Review) conducted by independent legal expert Mr Stephen Howells.

 

The Howells Review considered the effectiveness of the current employer sanctions framework, including criminal sanctions and an administrative warning notice scheme that was introduced in 2007 as a result of a Howard Government commissioned review, the Review of Illegal Work in Australia (RIWA) in 1999.  Mr Howells found that the employer sanctions framework was wholly ineffective as a deterrent against the number of employers and labour intermediaries who persist in allowing or referring non-citizens to work without the required permission.



The Government announced on 12 December 2011 that it will legislate to reform the employer sanctions regime.  The Government has agreed to a package of reforms based largely on the recommendations of the Howells Review, although some of these recommendations have been modified as a result of broad stakeholder consultations undertaken in 2011 and 2012.  

Modifications were made to ensure consistency with the preferred approach to drafting offences and civil penalty provisions promoted by the Attorney General’s Department’s A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers and to achieve the aim of establishing a simple, practical, cost effective employer sanctions regime that is easy to understand and administer.

 

Unfettered, illegal work hire practices undermine the integrity of Australia’s migration program and can result in exploitation of vulnerable workers.  Such conduct may also put businesses that only engage workers who are entitled to work at a competitive disadvantage and reduce work opportunities for Australian citizens and foreign nationals with permission to work. 

The intention is to develop an enforcement strategy that can be used to deter illegal work hire practices and sanction employers and labour suppliers who persist in non-compliant behaviour.

 

The amendments in this Bill will amend the criminal offences and create new

non-fault civil penalty provisions for persons who allow an unlawful non-citizen to work, refer an unlawful non-citizen to a third person for work, allow a lawful

non-citizen to work in breach of a work-related visa condition or refer a lawful

non-citizen to a third person for work in breach of a work-related visa condition

(the work-related offences and work-related provisions).  Infringement notices will also be made available as an alternative to proceedings for a civil penalty order and it is intended that the details of the infringement notice scheme would be prescribed in the Migration Regulations 1994

(the Regulations).

 

These legislative measures supplement the amended criminal offences.  They also work in concert with existing administrative measures of information and education for businesses and administrative Illegal Worker Warning Notices.  Together, all these measures are designed to deter non-compliant behaviour by creating enforceable graduated sanctions.  

Enforcement of the measures in the Bill are contemplated in an environment where business is first educated and made aware of provisions prohibiting non-citizens to work without a visa permitting such work.  Where non-compliant behaviour is identified by the Department of Immigration and Citizenship (the Department), administrative Illegal Worker Warning Notices would usually be given in the first instance. 

Where repeated non-compliance is identified, an infringement notice would be issued or, in more substantial cases of non-compliance, a civil penalty order would be sought from the courts.  Criminal prosecution remains available for the most serious cases or ongoing repeated

non-compliance.  This enforcement strategy is focused on encouraging voluntary compliance by informing businesses of the new penalties, how they can comply and pursuing only as many breaches as is necessary to enhance the deterrence message.  It is designed to maximise voluntary compliance by acknowledging that most people will do the right thing if they understand their responsibilities and the consequences of non-compliance.  It also means that persistent

non-compliant behaviour is a matter of choice to be sanctioned accordingly.

 

In order to address the illegal practices of sham contracting, informal labour hire and use of illegal workers by various entities within a conglomerate, t he application of the criminal offences and civil penalty provisions will be broadened so that a person who participates in the chain of events that results in a non-citizen allowed or referred to work without the required permission can be held liable for contravening the work-related offences and work-related provisions. 

In addition, the Bill will extend both criminal and civil liability, in certain circumstances,

to executive officers of bodies corporate, partners in a partnership and members of an unincorporated association’s committee of management.

 

The Bill will also introduce new investigation powers to allow authorised officers to gather evidence of suspected breaches of the work-related offences and work-related provisions.

 

In particular, the Bill amends the Act to:

 

·                create non-fault civil penalty provisions and amend criminal offences

(the work-related offences and work-related provisions) which would be contravened in circumstances where a person:

-                 allows, or continues to allow, an unlawful non-citizen to work;

-                 refers an unlawful non-citizen to a third person for work; or

-                 allows, or continues to allow, a lawful non-citizen to work in breach of a visa condition that restricts or prohibits work (a work-related condition) where the breach occurs solely because of doing that work;

-                 refers a lawful non-citizen to a third person for work who holds a visa that is subject to a work-related condition, and the non-citizen will be in breach of that condition solely because of doing the work in relation to which he or she was referred;

·                amend the definition of “allows to work” so that it extends liability for contravention of the work-related offences and work-related provisions to a wide range of persons; specifically, a person who participates in an arrangement, or a series of arrangements, for the performance of work by the worker for either themselves or another participant in the arrangement or any such arrangement;

·                create an infringement notice scheme with a financial penalty as an alternative to commencing civil penalty proceedings for contraventions of the work-related provisions in the circumstances referred to above;

·                create a specific defence to the work-related offences and work-related provisions for a person to allow or continue to allow, or refer to a third person for work, an unlawful non-citizen if that person takes reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen, including (but not limited to) using a computer system prescribed by the Regulations;

·                create a specific defence to the work-related offences and work-related provisions for a person to allow or continue to allow or refer to a third person for work, a lawful

non-citizen if that person takes reasonable steps at reasonable times to verify that the worker is not in breach of the work-related condition solely because of doing that work including (but not limited to) using a computer system prescribed by the Regulations to verify that matter;

·                provide that an evidentiary certificate signed by an officer stating whether or not a specified person used a specified computer system at a specified time, or during a specified period, to obtain information about another specified person, and the information provided by the system to the user at the time or during that period, is prima facie evidence of those matters;

·                amend the current aggravated offences to provide that a person commits an aggravated offence in circumstances where the worker is or will be exploited in doing the relevant work, and the person who allows the worker to work, or refers the worker for work, knows of, or is reckless as to, that circumstance;

·                provide that the extended geographical jurisdiction that applies to the current criminal offences also applies to civil proceedings in relation to a contravention of a

work-related provision in certain circumstances;

·                extend criminal and civil liability of the work-related offences and work-related provisions to executive officers of bodies corporate where the body corporate commits a work-related offence or contravenes a work-related provision in certain circumstances;

·                provide that work-related offences and provisions that would otherwise be committed or contravened by a partnership or an unincorporated association are taken to have been committed or contravened by each partner in the partnership, or each member of the association’s committee of management, in certain circumstances;

·                establish a new civil penalty framework by which civil penalty provisions may be enforced and revise procedures for obtaining an order for a civil penalty in relation to an alleged contravention of a civil penalty provision;

·                introduce new investigation powers to:

-                 allow the Secretary to require a person to give information or produce documents relevant to a possible work-related offence or a possible contravention of a

work-related provision and
provide that the information given or documents produced by a person can be admissible in evidence against them in civil proceedings for a civil penalty order for an alleged contravention of a

work-related provision (and not in criminal proceedings for a work-related offence);

-                 allow authorised officers to enter and search premises either with the consent of the occupier or under a search warrant, ask questions, require the production of documents, and where entry to premises is under a search warrant, seize material relevant to a work-related offence or the contravention of a work-related provision;

·                provide for the issue of identity cards to authorised officers to be used in exercising the new investigation powers;

·                provide for the transitional application of certain provisions; and

·                make certain consequential amendments.

CONSULTATION

 

External consultations in relation to the Bill have taken place with various Commonwealth agencies including the Attorney-General’s Department, the Treasury, the Department of Education, Employment and Workplace Relations and the Department of the Prime Minister and Cabinet. There has been extensive stakeholder consultation on the issue of the employment of unlawful

non-citizens and the employment of lawful non-citizens working in breach of work-related visa conditions over the past 13 years.  Consultations in July and August 2011 were focused on the recommendations of the Howells Review.  Industry representative bodies, union groups and the general public were consulted and were generally supportive of the Government’s in-principle agreement to the recommendations.

 

An exposure draft of the Bill was released for public consultation on 3 August 2012. 

The Department subsequently hosted a roundtable consultation with industry representative bodies and union groups; held a number of more general briefing sessions; and published the exposure draft Bill together with a policy commentary. 

 

financial impact statement

 

The financial impact of these amendments is low.  The amendments to the Act will result in revenue being raised by an estimated $1.7 million over three years.  The current estimated costs associated with the implementation of the proposed amendments will be met from within the Department’s existing funding by the reprioritising of resources.

 

REGULATION impact statement

 

The Office of Best Practice Regulation has assessed the Regulation Impact Statement (RIS) prepared by the Department as being adequate (No.12633).  A copy of the RIS is at Attachment A

 

statement OF COMPATIBILITY with Human rights

 

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill and assesses that the amendments are compatible with Australia’s human rights obligations.  A copy of the Statement of Compatibility with Human Rights is at Attachment B .



Migration amendment (REFORM OF EMPLOYER SANCTIONS) B ILL 2012

 

notes on individual clauses

 

Clause 1          Short title

1.               Clause 1 provides that the short title by which this Act may be cited is the

Migration Amendment (Reform of Employer Sanctions) Act 2012 .

Clause 2          Commencement

 

2.               Subclause 2(1) provides that each provision of this 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.

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

4.               Table item 2 provides that Schedule 1 will commence on a single day to be fixed by Proclamation. It also provides that if any provision(s) do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

5.               The note in subclause 2(1) makes it clear that the table relates only to the provisions of this Act as originally enacted.  The table will not be amended to deal with any later amendments of this Act.

6.               Subclause 2(2) provides that any information in column 3 of the table is not part of this Act.  It provides that information may be inserted in column 3, or information in it may be edited, in any published version of this Act.

Clause 3          Schedule(s)

 

7.               This clause provides that each Act that is 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 - Employer sanctions etc.

 

Part 1 - Amendments

Migration Act 1958

 

Item 1             Subsection 5(1)

 

1.               This item inserts a new defined term civil penalty order in subsection 5(1) of the Act.

2.               The new defined term provides that civil penalty order has the meaning given by

subsection 486R(4).

3.               New subsection 486R(4), inserted by item 24 below, provides that an order made under subsection 486R(3) is a civil penalty order. 

4.               New subsection 486R(1), inserted by item 24 below, provides that the Minister may apply to an eligible court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty. 

5.               New subsection 486R(3), inserted by item 24 below, provides that if the eligible court is satisfied that the person has contravened a civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate. 

Item 2             Subsection 5(1)

 

6.               This item inserts a new defined term evidential burden in subsection 5(1) of the Act.

7.               The new defined term provides that evidential burden in relation to a matter, means the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist.

Item 3             Subsection 5(1)

 

8.               This item inserts a new defined term work-related condition in subsection 5(1) of the Act.

9.               The new defined term provides that work-related condition means a condition:

·         prohibiting the holder of a visa from working in Australia; or

·         restricting the work that the holder of a visa may do in Australia.

10.           The purpose of this amendment is to define what a work-related condition is for the purposes of the new work-related offences and provisions inserted by item 17 below. 

11.           Subsection 41(1) of the Act provides that the regulations may provide that visas, or visas of a specified class, are subject to specified conditions.  Relevantly, paragraph 41(2)(b) of the Act provides that the regulations may provide that a visa, or visas of a specified class, are subject to a condition imposing restrictions about the work that may be done in Australia by the holder, which, without limiting the generality of this paragraph, may be restrictions on doing:

·         any work; or

·         work other than specified work; or

·         work of a specified kind.

12.           Subregulation 2.05(1) of Part 2 to the Regulations relevantly provides that for the purposes of subsection 41(1) of the Act (which deals with conditions that apply to a visa), the conditions to which a visa is subject are the conditions (if any) set out in, or referred to in, the

Part of Schedule 2 that relates to visas of the subclass in which the visa is included. 

Schedule 8 to the Regulations sets out all the visa conditions including conditions imposing restrictions about work. 

13.           The effect of this amendment is to provide that a work-related condition can mean a condition that:

·         prohibits work entirely (for example condition 8101 - the holder must not engage in work in Australia); or

·         places certain restrictions on the amount of work that may be done

(for example condition 8104 - the holder must not engage in work for more than

40 hours a fortnight while the holder is in Australia); or

·         places certain restrictions on what sort of work may be done

(for example condition 8106 - the holder must engage in work in Australia only if the work is relevant to the conduct of the business, or performance of the tasks specified in the visa application).

14.           There are a variety of conditions attached to temporary visas which may include restricting the type and/or amount of work the visa holder may undertake.  The examples cited above are illustrative only and are not an exhaustive list of the types of conditions that can be imposed.

Item 4             Subparagraph 140K(1)(a)(iii)

15.           This item omits the words “an order for a civil penalty under Part 8D” and substitutes the words “a civil penalty order” in subparagraph 140K(1)(a)(iii) of the Act.

16.           Current subparagraph 140K(1)(a)(iii) provides that if a person is an approved sponsor and fails to satisfy an applicable sponsorship obligation, the Minister may, among other things, apply for an order for a civil penalty under Part 8D. 

17.           New subparagraph 140K(1)(a)(iii) provides that if a person is an approved sponsor and fails to satisfy an applicable sponsorship obligation, the Minister may, among other things,

apply for an order for a civil penalty order.

18.           The purpose of this amendment is to ensure the provision reflects the new definition of

“civil penalty order” which is inserted by item 1 above. 
This item is a consequential amendment as a result of item 1 above and item 29 below.

Item 5             Paragraph 140K(1)(b)

19.           This item repeals paragraph 140K(1)(b) and substitutes new paragraph 140K(1)(b) in the Act.

20.           Current paragraph 140K(1)(b) provides that if a person is an approved sponsor and fails to satisfy an applicable sponsorship obligation, the Minister may, among other things, issue a person with an infringement notice, as an alternative to civil penalty proceedings, under

section 140R. 

21.           New paragraph 140K(1)(b) provides that if a person is an approved sponsor and fails to satisfy an applicable sponsorship obligation, the Minister may, among other things, issue a person with an infringement notice under regulations made for the purposes of section 506A as an alternative to proceedings for a civil penalty order. 

22.           The purpose of this amendment is to clarify that the Minister may issue an infringement notice, as an alternative to proceedings for a civil penalty order, to an approved sponsor who fails to satisfy an applicable sponsorship obligation, under regulations made for the purposes of new section 506A. 

23.           This item is a consequential amendment as a result of item 29 below which inserts

new section 506A in the Act. 

Item 6             Subparagraph 140K(2)(a)(ii)

24.           This item omits the words “an order for a civil penalty under Part 8D” and substitutes the words “a civil penalty order” in subparagraph 140K(2)(a)(ii) of the Act.

25.           Current subparagraph 140K(2)(a)(ii) provides that if a person was an approved sponsor and fails to satisfy an applicable sponsorship obligation, the Minister may, among other things, apply for an order for a civil penalty under Part 8D. 

26.           New subparagraph 140K(2)(a)(ii) provides that if a person was an approved sponsor and fails to satisfy an applicable sponsorship obligation, the Minister may, relevantly, apply for a civil penalty order.

27.           The purpose of this amendment is to ensure the provision reflects the new definition of

“civil penalty order” which is inserted by item 1 above. 
This item is a consequential amendment as a result of item 1 above and item 29 below.

Item 7                         Paragraph 140K(2)(b)

 

28.           This item repeals paragraph 140K(2)(b) and substitutes new paragraph 140K(2)(b) in the Act.

29.           Current paragraph 140K(2)(b) provides that if a person was an approved sponsor and fails to satisfy an applicable sponsorship obligation, the Minister may, among other things, issue a person with an infringement notice, as an alternative to civil penalty proceedings,

under section 140R. 

30.           New paragraph 140K(2)(b) provides that if a person was an approved sponsor and fails to satisfy an applicable sponsorship obligation, the Minister may, among other things, issue a person with an infringement notice under regulations made for the purposes of section 506A as an alternative to proceedings for a civil penalty order. 

31.           The purpose of this amendment is to clarify that the Minister may issue an infringement notice, as an alternative to civil penalty proceedings, to a former approved sponsor who fails to satisfy an applicable sponsorship obligation, under regulations made for the purposes of new section 506A. 

32.           This item is a consequential amendment as a result of item 29 below which inserts

new section 506A in the Act. 

Item 8             Subsections 140Q(1) and (2) (civil penalties)

 

33.           This item repeals the civil penalties and substitutes new civil penalties in subsections 140Q(1) and 140Q(2) of the Act. 

34.           Current section 140Q creates civil penalty provisions in relation to failing to satisfy sponsorship obligations. 

35.           Current subsections 140Q(1) and 140Q(2) provide for the following civil penalties for contravening those subsections:

·         for an individual - 60 penalty units; and

·         for a body corporate - 300 penalty units.

36.           New subsections 140Q(1) and 140Q(2) provide for the following civil penalty for contravening those subsections:

·         Civil penalty:   60 penalty units.

37.           This amendment is a consequential amendment to items 17 and 24 below. 

The new work-related offences and provisions inserted by item 17 below will only contain pecuniary penalties for individuals and will not contain separate pecuniary penalties for bodies corporate.  This is because New paragraph 486R(5)(a) provides that the pecuniary penalty for a contravention of a civil penalty provision must not be more than 5 times the amount of the pecuniary penalty specified for the civil penalty provision, if the person is a body corporate.  As new paragraph 486R(5)(a) will also apply to the sponsorship civil penalty provisions, the civil penalties in subsections 140Q(1) and 140Q(2) will now only contain the pecuniary penalty for individuals as it is not necessary to specify the pecuniary penalty for a body corporate in this provision. 

Item 9             Section 140R



38.           This item repeals section 140R of the Act. 

39.           Current subsection 140R(1) provides that the regulations may make provision enabling a person who is alleged to have contravened a civil penalty provision to pay to the Commonwealth, as an alternative to civil penalty proceedings against the person, a specified penalty.  Subsection 140R(2) provides that the penalty must not exceed an amount equal to one-fifth of the maximum penalty prescribed for contravening that provision.

40.           Section 140R is contained in Subdivision D of Division 3A of Part 2 of the Act which relates to sponsorship.  Division 3A contains civil penalty provisions for failure to satisfy an applicable sponsorship obligation.  Relevantly, section 140Q comprises two civil penalty provisions relating to a failure to satisfy a sponsorship obligation.      

41.           The effect of existing section 140R is that in accordance with a regime established by the Regulations, an approved sponsor (or former approved sponsor) who allegedly contravenes a civil penalty provision in section 140Q may be issued with an infringement notice to pay an amount as an alternative to civil penalty proceedings against the person. 

That amount cannot exceed 60 penalty units for a body corporate, or 12 penalty units for an individual. 

42.           As new work-related provisions are inserted by item 17 below, new section 506A, inserted by item 29 below, will provide that the regulations may provide for a person who is alleged to have contravened either a sponsorship civil penalty provision or a work-related provision to pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.

43.           This amendment, along with item 29 below, which inserts new section 506A,

consolidates provisions which allow the Regulations to provide for the payment of a penalty as an alternative to proceedings for a civil penalty order against the person. 

Item 10           Subsection 140S(3)

 

44.           This item omits the words “civil penalty proceedings” substitutes the words

“proceedings for a civil penalty order” in subsection 140S(3) of the Act.

45.           Subsection 140S(3) provides that to avoid doubt, an amount may be recovered under this section if civil penalty proceedings are brought under Part 8D and discontinued or completed without the court making an order under subsection 486R(6) in relation to the amount. 

46.           The purpose of this amendment is to ensure that the provision contains the new definition of “civil penalty order” inserted by item 1 above.

Item 11           Subsection 140S(3)

 

47.           This item omits the words “under subsection 486R(6)” and substitutes the words

“of a kind referred to in subsection 486S(4)” in subsection 140S(3) of the Act.

48.           Current section 140S, broadly, deals with liability to pay amounts in the sponsorship context.  Current subsection 140S(3) provides that to avoid doubt, an amount may be recovered under this section if civil penalty proceedings are brought under Part 8D and discontinued or completed without the court making an order under subsection 486R(6) in relation to the amount.

49.           New subsection 140S(3) will provide that the court will now make an order of a kind referred to in subsection 486S(4) in the above circumstances.

50.           Current subsection 486R(6) is a restitution provision.  It allows the court to make an order, as part of civil penalty proceedings, that an amount be paid to the Commonwealth, a State or Territory or another person, which is an amount of a kind prescribed in the regulations, that is required to be paid to the Commonwealth, a State or Territory or another person

(as the case may be) and the amount remains unpaid after the time for payment.  

An order under current subsection 486R(6) cannot be made if proceedings to recover the amount (which is the subject of the order) have been brought under current section 140S.

51.           New subsection 486S(4), inserted by item 24 below, replicates current subsection 486R(6) and retains the effect of current subsection 486R(6). 

52.           This amendment is a consequential amendment to item 24 below which inserts

new subsection 486S(4) in the Act. 

 

 

Item 12           Subsections 140XE(3) and 140XF(3) (civil penalties)

 

53.           This item repeals the civil penalties and substitutes new civil penalties in

subsections 140XE(3) and 140XF(3) of the Act.

54.           Current section 140XE, broadly, creates a power for an inspector to ask for a person’s name and address, in the sponsorship context.  Current section 140XF, broadly, creates a power for an inspector to require persons to produce records or documents, in the sponsorship context.  Both sections 140XE and 140XF, broadly, create civil penalty provisions in relation to failing to comply with an inspector’s request.

55.           Current subsections 140XE(3) and 140XF(3) provide for the following civil penalties for contravening those subsections:

·         for an individual - 60 penalty units; and

·         for a body corporate - 300 penalty units.

56.           New subsections 140XE(3) and 140XF(3) provide for the following civil penalty for contravening those subsections:

·         Civil penalty:   60 penalty units.

57.           This amendment is a consequential amendment to items 17 and 24 below. 

The new work-related offences and provisions inserted by item 17 below will only contain pecuniary penalties for individuals and will not contain separate pecuniary penalties for bodies corporate.  This is because New paragraph 486R(5)(a) provides that the pecuniary penalty for a contravention of a civil penalty provision must not be more than 5 times the amount of the pecuniary penalty specified for the civil penalty provision, if the person is a body corporate.   As new paragraph 486R(5)(a) will also apply to the sponsorship civil penalty provisions, the civil penalties in subsections 140Q(1) and 140Q(2) will now only contain the pecuniary penalty for individuals. 

Item 13           Division 12 of Part 2 (heading)

 

58.           This item repeals the current heading “Division 12 - Offences in relation to entry into, and remaining in Australia” and substitutes it with the new heading

“Division 12 - Offences etc. in relation to entry into, and remaining in, Australia”.

59.           The purpose of this amendment is to ensure that the heading of Division 12 of Part 2 is broad enough to capture the new work-related provisions inserted by item 17 below.

Item 14           Subdivision C of Division 12 of Part 2 (heading)

60.           This item repeals the current heading “Subdivision C - Offences in relation to persons who allow non-citizens to work, or refer non-citizens for work, in certain circumstances” and substitutes it with the new heading “Subdivision C - Offences and civil penalties in relation to work by non-citizens”.

61.           The purpose of this amendment is to ensure that the heading of Subdivision C of Division 12 of Part 2 specifically refers to the civil penalties, inserted by item 17 below, as well as the work-related criminal offences.

 

Item 15           Subsection 245AA(1)

62.           This item inserts the words “, and provides for civil penalties,” after the word “offences” in subsection 245AA(1) of the Act.

63.           Current subsection 245AA(1) provides that Subdivision C of Division 12 of Part 2 creates offences to deal with the following situations:

·         where a person allows an unlawful non-citizen to work, or refers an unlawful

non-citizen for work;

·         where a person allows a non-citizen to work, or refers a non-citizen for work,

in breach of the non-citizen’s visa conditions.

64.           The purpose of this amendment is to clarify that Subdivision C of Division 12 of Part 2 of the Act also provides for civil penalties, in addition to creating offences, to deal with the abovementioned situations.

65.           This amendment is a consequential amendment to item 17 below which inserts new

work-related provisions.

Item 16           Subsection 245AA(2)

66.           This item omits the words “The offences make use of”, and substitutes the words

“This Subdivision uses” in subsection 245AA(2) of the Act.

67.           Current subsection 245AA(2) refers the reader to the definition of a number of terms contained in current Subdivision C of Division 12 of Part 2.  

68.           The purpose of this amendment is to clarify that the new civil penalty provisions inserted by item 17 below also make use of the defined terms which are listed in subsection 245AA(2).

69.           This amendment is a consequential amendment to item 17 below which inserts new

work-related provisions.

Item 17           Sections 245AB to 245AE

70.           This item repeals sections 245AB to 245AE and substitutes new sections 245AB to 245AEB in the Act. 

71.           Currently, under sections 245AB to 245AE, a person commits an offence if:

·         the person allows, or continues to allow, an unlawful non-citizen to work;

·         the person allows, or continues to allow, a non-citizen to work in breach of a visa condition restricting work;

·         the person refers an unlawful non-citizen for work; or

·         the person refers a non-citizen for work in breach of a visa condition restricting work.

72.           Section 13 of the Act provides that a lawful non-citizen is a non-citizen in the migration zone who holds a visa that is in effect.

73.           Section 14 of the Act, when read in conjunction with section 13, effectively provides that an unlawful non-citizen is a non-citizen in the migration zone who does not hold a visa that is in effect.  For example, this may include non-citizens who overstay their visas or non-citizens who enter Australia without visas.

74.           This item creates new civil penalty provisions to deal with the above situations and amends the criminal offences contained in current sections 245AB to 245AE. 

This item implements the recommendation of the Howells Review that the Act should be amended to include civil penalty provisions to supplement the current criminal offences contained in the Act.

Restructure of offences and civil penalties in relation to work by non-citizens

75.           As this item creates new civil penalty provisions, the criminal offences contained in current subsections 245AB(1), 245AC(1), 245AD(1) and 245AE(1) are amended to accommodate the application of these new civil penalty provisions.  The structure of the new work-related offences and provisions is illustrated in the following table:

Structural breakdown of new section 245AB 

(Allowing an unlawful non-citizen to work)

Elements for contravention

New subsection 245AB(1) provides that a person (the first person ) contravenes this subsection if:

-the first person allows, or continues to allow, another person

(the worker ) to work; and

-the worker is an unlawful non-citizen

Defence/exception

New subsection 245AB(2) provides that subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen, including

(but not limited to) either of the following steps:

-using a computer system prescribed by the regulations to verify that matter;

-doing any one or more things prescribed by the regulations.

Creation of criminal offence

New subsection 245AB(3) provides that a person commits an offence if the first person contravenes subsection (1). 

Physical elements of the criminal offence

New subsection 245AB(3) provides that the physical elements of the offence are set out in subsection 245AB(1).  These are that:

-the first person allows, or continues to allow, another person

(the worker) to work; and

-the worker is an unlawful non-citizen.

Penalty for committing the criminal offence

New subsection 245AB(3) provides that the maximum penalty for committing an offence is 2 years imprisonment.

Fault elements of the criminal offence

New subsection 245AB(4) provides that the fault element of the offence is knowledge or recklessness as to whether the worker is an unlawful non-citizen.

Creation of civil penalty provision

New subsection 245AB(5) provides that a person is liable to a civil penalty if the person contravenes subsection 245AB(1).  That is, if:

-the first person allows, or continues to allow, another person

(the worker) to work; and

-the worker is an unlawful non-citizen

Civil penalty

New subsection 245AB(5) provides that the maximum penalty for contravening subsection 245AB(1) is 90 penalty units.

* Note: This structural breakdown also applies to new sections 245AC, 245AE and 245AEA

 

76.           This item also amends and restructures the aggravated offences contained in current subsections 245AB(2), 245AC(2), 245AD(2) and 245AE(2) and creates self-contained provisions for the new aggravated offences.  This is because, as noted above, the current criminal offences are amended to accommodate the application of the new civil penalty provisions.  The new aggravated offences contain the same physical and fault elements as the new criminal offences.  The aggravating circumstance in the new aggravated offences is

“the worker is being exploited” and this has not changed from the current aggravated offences contained in
subsections 245AB(2), 245AC(2), 245AD(2) and 245AE(2).

Section 245AB             Allowing an unlawful non-citizen to work

 

77.           Current section 245AB deals with allowing an unlawful non-citizen to work. 

Current subsection 245AB(1) provides that a person commits an offence if:

·         the person allows, or continues to allow, a person ( the worker ), to work; and

·         the worker is an unlawful non-citizen; and

·         the person knows that, or is reckless as to whether, the worker is an

unlawful non-citizen.

78.           Both the physical and fault elements of the offence are set out in current subsection 245AB(1).

79.           Current subsection 245AB(3) provides that an offence against section 245AB is punishable on conviction by whichever of the following applies:

·         in the case of an aggravated offence - imprisonment for 5 years;

·         in any other case - imprisonment for 2 years.

80.           New section 245AB replaces current section 245AB and also deals with allowing an unlawful non-citizen to work. 

81.           New subsection 245AB(1) provides that a person ( the first person ) contravenes this subsection if:

·         the first person allows, or continues to allow, another person ( the worker ) to work; and;

·         the worker is an unlawful non-citizen.

82.           This provision sets out the elements for contravening new subsection 245AB(1).

83.           New subsection 245AB(2) provides that new subsection 245AB(1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen, including (but not limited to) either of the following steps:

·         using a computer system prescribed by the regulations to verify that matter;

·         doing any one or more things prescribed by the regulations.

 

84.           The purpose of this amendment is to provide an exception to new subsection 245AB(1) so that where a person took reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen, the first person would not contravene new subsection 245AB(1).  Accordingly, new subsection 245AB(2) creates a specific defence in relation to a contravention of new subsection 245AB(1). 

85.           New paragraph 245AB(2)(a) specifies that a reasonable step includes using a computer system prescribed by the Regulations to verify that the worker is not an unlawful non-citizen.  It is intended that the computer system that would be prescribed by the Regulations is the Visa Entitlement Verification Online System (VEVO), which is a computer system that a person can use to verify, among other things, whether a non-citizen holds a visa that is in effect, or whether a non-citizen holds a visa with a condition or conditions which prohibit or restrict them from working in Australia.

86.           New paragraph 245AB(2)(b) specifies that a reasonable step includes doing any one or more things prescribed by the regulations.  This amendment creates a regulation-making power for the Regulations to prescribe any further reasonable steps that could be taken to verify that a worker is not an unlawful non-citizen.

87.           New subsection 245AB(2) makes it clear that the reasonable steps specified in new paragraphs 245AB(2)(a) and 245AB(2)(b) are not exhaustive.  It is intended that a person could still persuade a court that other non-specified reasonable steps were taken at reasonable times to verify that a worker was not an unlawful non-citizen. 

88.           The defences are designed to be sufficiently broad to cover the practices of individuals and businesses that make genuine attempts to verify that a non-citizen is not an unlawful

non-citizen. Depending on the circumstances, reasonable steps at reasonable times may include, but are not to be limited to, any of the following:

·         checking VEVO prior to or within a few days of initially allowing the worker to work, relying on that information until the date VEVO indicates the worker’s visa will cease and then checking VEVO prior to the cessation date to see if the worker is still a lawful non-citizen and holds a visa with the required entitlement to work;

·         creating a contractual obligation for another party to verify that a worker holds a visa with the required entitlement to work; or to specify supply of labour that includes only non-citizens with the required entitlement to work;

·         viewing what appears to be evidence of the grant to the worker of a permanent visa or a temporary visa that has the required work entitlement attached; or

·         viewing what appears to be evidence of the worker having been approved as an Australian citizen or holding Australian citizenship.

Offence

89.           New subsection 245AB(3) provides that a person commits an offence if the person contravenes subsection 245AB(1).  It further provides that the physical elements of that offence are set out in subsection 245AB(1). 

90.           The maximum penalty for an offence under new subsection 245AB(3) is 2 years imprisonment.  This penalty must be read with sections 4AA and 4B of the Crimes Act 1914 , the effect of which is that a court could impose, instead of, or in addition to, this penalty of imprisonment, a pecuniary penalty not exceeding $13,200 for a natural person and not exceeding $66,000 for a body corporate.

91.           The note to new subsection 245AB(3) advises that in accordance with

subsection 13.3(3) of the Criminal Code a defendant bears the evidential burden in relation to proving the matter in new subsection 245AB(2).

92.           New subsection 245AB(4) provides that for the purposes of subsection 245AB(3),

the fault element for paragraph 245AB(1)(b) (the worker is an unlawful non-citizen) is knowledge or recklessness by the first person.

93.           Section 5.3 of the Criminal Code provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

94.           Subsection 5.4(1) of the Criminal Code provides that a person is reckless with respect to a circumstance if:

·         he or she is aware of a substantial risk that the circumstance exists or will exist; and

·         having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

95.           To prove that an employer recklessly allowed an unlawful non-citizen to work, it would be necessary for the prosecution to establish that:

·         there was a substantial risk that the worker was an unlawful non-citizen;

·         the employer was aware of this substantial risk; and

·         having regard to the circumstances known to the employer, it was unjustifiable for the employer to have taken the risk.

96.           It is intended that a person would be reckless as to whether a worker is an unlawful

non-citizen, where he or she is aware of the possibility that a worker could be an unlawful non-citizen.  An employer might become aware of that risk through the Department’s employer awareness campaigns or by being given an administrative Illegal Worker Warning Notice for allowing an unlawful non-citizen to work.

Civil penalty provision

97.           New subsection 245AB(5) provides that a person is liable to a civil penalty if the person contravenes subsection 245AB(1).  The maximum civil penalty for contravention of that provision is 90 penalty units. 

98.           This penalty must also be read with subsection 5(1) of the Act which provides that

penalty unit has the meaning given by section 4AA of the Crimes Act 1914. 

Section 4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty unit equates.  Currently, one penalty unit is equal to $110.  Accordingly, the maximum penalty equates to $9,900 for an individual. 

99.           This penalty must also be read with new paragraph 486R(5)(a) inserted by item 24 below.  New paragraph 486R(5)(a) provides that the pecuniary penalty for a contravention of a civil penalty provision must not be more than 5 times the amount of the pecuniary penalty specified for the civil penalty provision, if the person is a body corporate. 

Accordingly, the maximum penalty equates to $49,500 for a body corporate.

100.       This penalty must also be read with new subsection 486R(6) inserted by item 24 below. 

New subsection 486R(6) provides that in determining the amount of the pecuniary penalty, the court must take into account all relevant matters, including the matters listed in that subsection.

101.       The note to new subsection 245AB(5) provides that it is not necessary to prove a person’s state of mind in proceedings for a civil penalty order and refers the reader to new section 486ZF.

102.       New section 486ZF, inserted by item 24 below, provides that in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision

(other than subsection 245AK(2)), it is not necessary to prove the person’s intention, knowledge, recklessness, negligence or any other state of mind of the person.

103.       The effect of this note is to clarify that it is enough to establish that a person contravened new subsection 245AB(1) by allowing, or continuing to allow, an unlawful non-citizen to work.  This is clearly distinguished from the requirement to prove the fault elements of knowledge or recklessness in relation to new paragraph 245AB(1)(b) in a criminal offence. 

This means that a person is liable to a civil penalty under new subsection 245AB(5) without knowing or being reckless as to whether a worker is an unlawful non-citizen, if they allow or continue to allow that worker to work.  The decision to introduce non-fault civil penalties reflects the Government’s determination to address the problem of illegal work hire practices.

104.       New subsection 245AB(6) provides that a person who wishes to rely on subsection 245AB(2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

105.       The matter of verifying that a worker is not an unlawful non-citizen (the matter) has been included as a specific defence, as opposed to being specified as an element of the offence/civil penalty provision.  This means that the burden is on the first person

(the defendant) to establish that they have taken reasonable steps at reasonable times to verify that matter in new subsection 245AB(2), in accordance with the note to new subsection 245AB(3) (in relation to the criminal offences) and new subsection 245AB(6)

(in relation to the civil penalty provisions).

106.       Chapter 4.3 of A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states that a matter should only be included in an offence-specific defence, as opposed to being specified as an element of the offence, where:

·         it is peculiarly within the knowledge of the defendant; and

·         it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

107.       The question of whether the defendant has taken reasonable steps at reasonable times to verify that a worker is not an unlawful non-citizen is something peculiarly within the knowledge of the defendant.  While it is arguable that the prosecution would also know whether the first person used VEVO to check whether the worker is an unlawful non-citizen, only the defendant would know whether that check was undertaken at a reasonable time, having regard to the circumstances in which the worker was engaged. 

108.       In addition, the amendments made by item 22 below provide that an evidentiary certificate signed by an officer stating whether or not a specified person used a specified computer system at a specified time, or during a specified period, to obtain information about another specified person, and the information provided by the system to the user at the time or during that period, is prima facie evidence of those matters.  A defendant will also be able to rely on this evidentiary certificate in the same way, obviating the need to keep separate records of work entitlements checks undertaken via the specified computer system.

109.       Further, only the defendant would have knowledge of any other steps that were taken to verify that the worker is not an unlawful non-citizen, and the knowledge of whether those steps were taken at reasonable times.

110.       Accordingly, without knowing exactly what steps, if any, were taken by the defendant in relation to verifying that the worker is not an unlawful non-citizen, it would be significantly more difficult and costly for the Department to monitor such activity. 

Evidence of such activity, however, could be readily and cheaply provided by the defendant.

Section 245AC                        Allowing a lawful non-citizen to work in breach of a work-related condition

111.       Current section 245AC deals with allowing a non-citizen to work in breach of a visa condition.  Current subsection 245AC(1) provides that a person commits an offence if:

·         the person allows, or continues to allow, a person ( the worker ) to work; and

·         the worker is a non-citizen and the person knows of, or is reckless as to,

that circumstance; and

·         the worker holds a visa that is subject to a condition restricting the work that the worker may do in Australia, and the person knows of, or is reckless as to,

that circumstance; and

·         the worker is in breach of the condition and the person knows of, or is reckless as to, that circumstance.

112.       Both the physical and fault elements of the offence are set out in current

subsection 245AC(1).

113.       Current subsection 245AC(3) provides that an offence against section 245AC is punishable on conviction by whichever of the following applies:

·         in the case of an aggravated offence - imprisonment for 5 years;

·         in any other case - imprisonment for 2 years.

114.       New section 245AC replaces current section 245AC and deals with allowing a lawful

non-citizen to work in breach of a work-related condition.

115.       New subsection 245AC(1) provides that a person ( the first person ) contravenes this subsection if:

·         the first person allows, or continues to allow, another person (the worker ) to work; and

·         the worker is a lawful non-citizen; and

·         the worker holds a visa that is subject to a work-related condition; and

·         the worker is in breach of the work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a).

116.       This provision sets out the elements for contravening new subsection 245AC(1).

117.       The fourth element, contained in new paragraph 245AC(1)(d), is that the worker is in breach of the work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a).  Paragraph 245AC(1)(d) reflects the recommendation of the Howells Review which recognises that an employer may not be aware that a non-citizen working for that employer may also be working elsewhere and should not be expected to know. 

Such an employer should not be liable for contravening subsection 245AC(1). 

That is, an employer will only contravene subsection 245AC(1) where allowing a person to work in breach of a work-related condition is an exclusive consequence of the employer’s actions.

118.       For example, a non-citizen holds a student visa which is subject to condition 8104 of Schedule 8 to the Regulations.  Condition 8104 provides that subject to subclauses (2) to (6), the holder must not engage in work for more than 40 hours a fortnight while the holder is in Australia.  The student is working 45 hours a week with an employer and working more hours than allowed by their visa condition.  In this instance, the student is in breach of condition 8104 and this has occurred solely as a consequence of the work undertaken for that employer.  Therefore, that employer would be held liable for contravening

subsection 245AC(1).

119.       However, if the student has three different jobs, working for 15 hours at each job, even though the student has breached condition 8104, neither of the three employers would be held liable for contravening subsection 245AC(1).  This is because, although the student is in breach of condition 8104, this breach has not occurred as an exclusive consequence of the actions of any one employer.  That is, the actions of each employer are not relevant to the question of whether the other employer has contravened subsection 245AC(1).

120.       New subsection 245AC(2) provides that new subsection 245AC(1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not in breach of the work-related condition solely because of doing the work referred to in

paragraph 245AC(1)(a), including (but not limited to) either of the following steps:

·         using a computer system prescribed by the regulations to verify that matter;

·         doing any one or more things prescribed by the regulations.

121.       The purpose of this amendment is to provide an exception to new subsection 245AC(1) so that where a person took reasonable steps at reasonable times to verify that the worker is not in breach of the work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a), the first person would not contravene new subsection 245AC(1).  Accordingly, new subsection 245AC(2) creates a specific defence in relation to a contravention of new subsection 245AC(1). 

122.       New paragraph 245AC(2)(a) specifies that a reasonable step includes using a computer system prescribed by the regulations to verify that the worker is not in breach of the

work-related condition solely because of doing the work referred to in new

paragraph 245AC(1)(a).  It is intended that the computer system that would be prescribed by the Regulations is VEVO which is a computer system that a person can use to verify, among other things, whether a non-citizen holds a visa that is in effect, or whether a non-citizen holds a visa with a condition or conditions which prohibit or restrict them from working in Australia.

123.       New paragraph 245AC(2)(b) specifies that a reasonable step includes doing any one or more things prescribed by the regulations.  This amendment creates a regulation-making power for the Regulations to prescribe any further reasonable steps that could be taken to verify that a worker is not in breach of the work-related condition solely because of doing the work referred to in new paragraph 245AC(1)(a).

124.       New subsection 245AC(2) makes it clear that the reasonable steps specified in new paragraphs 245AC(2)(a) and 245AC(2)(b) are not exhaustive.  It is intended that a person could still persuade a court that other non-specified reasonable steps were taken at reasonable times to verify that a worker was not in breach of the work-related condition solely because of doing the work referred to in new paragraph 245AC(1)(a).

125.       The defences are designed to be sufficiently broad to cover the practices of individuals and businesses that make genuine attempts to verify that a non-citizen holds a visa that prohibits or restricts them from working in Australia.  Depending on the individual circumstances, reasonable steps at reasonable times may include, but are not to be limited to, any of the following:

·         checking VEVO prior to or within a few days of initially allowing the non-citizen to work, relying on that information until the date VEVO indicates the person’s visa will cease and then checking VEVO prior to the cessation date, to confirm that the non-citizen has been granted a further visa with the required entitlement to work;

·         creating a contractual obligation for another party to verify that a worker holds a visa with the required entitlement to work; or to specify supply of labour that includes only non-citizens with the required entitlement to work;

·         viewing what appears to be evidence of the grant to the worker of a permanent visa or a temporary visa that has the required entitlement to work; or

·         viewing what appears to be evidence of the worker having been approved as an Australian citizen or holding Australian citizenship.

Offence

126.       New subsection 245AC(3) provides that a person commits an offence if the person contravenes subsection 245AC(1).  It further provides that the physical elements of that offence are set out in subsection 245AC(1). 

127.       The maximum penalty for an offence under new subsection 245AC(3) is 2 years imprisonment.  This penalty must be read with sections 4AA and 4B of the Crimes Act 1914 , the effect of which is that a court could impose, instead of, or in addition to, this penalty of imprisonment, a pecuniary penalty not exceeding $13,200 for a natural person and not exceeding $66,000 for a body corporate.

128.       The note to new subsection 245AC(3) advises that in accordance with

subsection 13.3(3) of the Criminal Code a defendant bears the evidential burden in relation to proving the matter in new subsection 245AC(2).

129.       New subsection 245AC(4) provides that for the purposes of subsection 245AC(3), the fault element for paragraphs 245AC(1)(b) to 245AC(1)(d) is knowledge or recklessness by the first person.

130.       Section 5.3 of the Criminal Code provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

131.       Subsection 5.4(1) of the Criminal Code provides that a person is reckless with respect to a circumstance if:

·         he or she is aware of a substantial risk that the circumstance exists or will exist; and

·         having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

132.       To prove that an employer recklessly allowed a lawful non-citizen to work, in breach of a work-related condition, solely because of doing that work, it would be necessary for the prosecution to establish that:

·         there was a substantial risk that the worker was a lawful non-citizen, in breach of a work-related condition on their visa, solely because of doing the work the employer allowed them to do; and

·         the employer was aware of this substantial risk; and

·         having regard to the circumstances known to the employer, it was unjustifiable for the employer to have taken the risk.

133.       It is intended that a person would be reckless as to whether a worker was a lawful non-citizen, in breach of a work-related condition on their visa, solely because of doing the work the employer allowed them to do, where he or she is aware of the possibility that a worker could be in breach.  An employer might become aware of that risk through the Department’s employer awareness campaigns or by being given an administrative Illegal Worker Warning Notice for allowing a lawful non-citizen to work in breach of a work-related condition.

Civil penalty provision

134.       New subsection 245AC(5) provides that a person is liable to a civil penalty if the person contravenes subsection 245AC(1).  The maximum civil penalty for contravention of that provision is 90 penalty units. 

135.       This penalty must also be read with subsection 5(1) of the Act which provides that

penalty unit has the meaning given by section 4AA of the Crimes Act 1914. 

Section 4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty unit equates.  Currently, one penalty unit is equal to $110.  Accordingly, the maximum penalty equates to $9,900 for an individual. 

136.       This penalty must also be read with new paragraph 486R(5)(a) inserted by item 24 below.  New paragraph 486R(5)(a) provides that the pecuniary penalty for a contravention of a civil penalty provision must not be more than 5 times the amount of the pecuniary penalty specified for the civil penalty provision, if the person is a body corporate. 

Accordingly, the maximum penalty equates to $49,500 for a body corporate.

137.       This penalty must also be read with new subsection 486R(6) (inserted by item 24 below).  New subsection 486R(6) provides that in determining the amount of the pecuniary penalty, the court must take into account all relevant matters, including the matters listed in that subsection.

138.       The note to new subsection 245AC(5) provides that it is not necessary to prove a person’s state of mind in proceedings for a civil penalty order and refers the reader to new section 486ZF.

139.       New section 486ZF, inserted by item 24 below, provides that in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision

(other than subsection 245AK(2)), it is not necessary to prove the person’s intention, knowledge, recklessness, negligence or any other state of mind of the person.

140.       The effect of this note is to clarify that it is enough to establish that a person contravened new subsection 245AC(1) by allowing, or continuing to allow, a lawful non-citizen to work, in breach of a work-related condition on their visa, solely because of doing that work. 

This is clearly distinguished from the requirement to prove the fault elements of knowledge or recklessness in relation to new paragraph 245AC(1)(c) in a criminal offence. 

This means that a person is liable to a civil penalty under new subsection 245AC(5) without knowing or being reckless as to whether a worker is a lawful non-citizen, in breach of a

work-related condition on their visa, solely because of doing the work the person allowed them to do.  The decision to introduce non-fault civil penalties reflects the Government’s determination to address the problem of illegal work hire practices.

141.       New subsection 245AC(6) provides that a person who wishes to rely on new subsection 245AC(2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

142.       The matter of verifying that a worker is not in breach of the work-related condition solely because of doing the work the first person allowed them to do (the matter) has been included as a specific defence, as opposed to being specified as an element of the offence/civil penalty provision.  This means that the burden is on the first person (the defendant) to establish that they have taken reasonable steps at reasonable times to verify that matter in new subsection 245AC(2), in accordance with the note to new subsection 245AC(3)

(in relation to the criminal offences) and new subsection 245AC(6)

(in relation to the civil penalty provisions).

143.       Chapter 4.3 of A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states that a matter should only be included in an offence-specific defence, as opposed to being specified as an element of the offence, where:

·         it is peculiarly within the knowledge of the defendant, and

·         it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

144.       The question of whether the defendant has taken reasonable steps at reasonable times to verify that the worker is not in breach of the work-related visa condition solely because of doing the work the first person allowed them to do is something peculiarly within the knowledge of the defendant.  While it is arguable that the prosecution would also know whether the defendant used VEVO to verify that matter, only the defendant would know whether that check was undertaken at a reasonable time, having regard to the circumstances in which the worker was engaged. 

145.       In addition, the amendments made by item 22 below provide that an evidentiary certificate signed by an officer stating whether or not a specified person used a specified computer system at a specified time, or during a specified period, to obtain information about another specified person, and the information provided by the system to the user at the time or during that period, is prima facie evidence of those matters.  A defendant will also be able to rely on this evidentiary certificate in the same way, obviating the need to keep separate records of work entitlements checks undertaken via the specified computer system.

146.       Further, only the defendant would have knowledge of any other steps that were taken to verify that the worker is not in breach of the work-related condition solely because of doing the work the defendant allowed them to do, and the knowledge of whether those steps were taken at reasonable times.

147.       Accordingly, without knowing exactly what steps, if any, were taken by the defendant in relation to verifying that the worker is not in breach of the work-related condition solely because of doing the work the defendant allowed them to do, it would be significantly more difficult and costly for the Department to monitor such activity.  Evidence of such activity, however, could be readily and cheaply provided by the defendant.

Section 245AD            Aggravated offences if a person allows, or continues to allow, another person to work

148.       New section 245AD creates aggravated offences if a person allows, or continues to allow, another person to work.  As noted above, in new section 245AD the aggravated offences have been separated from their baseline offences.  This is because, as seen above, the current criminal offences have been restructured to accommodate the application of the new civil penalty provisions.  The new aggravated offences contain the same physical and fault elements as the baseline offences but have been amended to include the solely concept described above.  The aggravating circumstance in new section 245AD is that “the worker is being exploited” and this has not changed from the current aggravated offences.

Allowing an unlawful non-citizen to work

149.       Current section 245AB deals with allowing an unlawful non-citizen to work. 

Current subsection 245AB(1) provides that a person commits an offence if:

·         the person allows, or continues to allow, a person ( the worker ), to work; and

·         the worker is an unlawful non-citizen; and

·         the person knows that, or is reckless as to whether, the worker is an unlawful

non-citizen.

150.       Current subsection 245AB(2) provides that an offence against subsection 245AB(1) is an aggravated offence if the worker is being exploited and the person knows of, or is reckless as to, that circumstance.

151.       Current subsection 245AB(3) provides that an offence against section 245AB is punishable on conviction by whichever of the following applies:

·         in the case of an aggravated offence - imprisonment for 5 years;

·         in any other case - imprisonment for 2 years.

152.       In current section 245AB, the aggravated offence and the baseline offence are contained in the same provision. 

153.       New subsection 245AD(1) replaces current section 245AB. 

154.       New subsection 245AD(1) provides that a person (the first person ) commits an offence if:

·         the first person allows, or continues to allow, another person (the worker ) to work; and

·         the worker is an unlawful non-citizen; and

·         the worker is being exploited; and

·         the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs 245AD(1)(b) and (c).

155.       Section 5.3 of the Criminal Code provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

156.       Subsection 5.4(1) of the Criminal Code provides that a person is reckless with respect to a circumstance if:

·         he or she is aware of a substantial risk that the circumstance exists or will exist; and

·         having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

157.       To prove that an employer recklessly allowed an unlawful non-citizen to work and that the unlawful non-citizen was being exploited, it would be necessary for the prosecution to establish that:

·         there was a substantial risk that the worker was an unlawful non-citizen;

·         there was a substantial risk that the worker was being exploited;

·         the employer was aware of this substantial risk; and

·         having regard to the circumstances known to the employer, it was unjustifiable for the employer to have taken the risk.

158.       It is intended that a person would be reckless as to whether a worker is an unlawful

non-citizen and is being exploited, where he or she is aware of the possibility of these matters.  An employer might become aware of that risk through the Department’s employer awareness campaigns or by being given an administrative Illegal Worker Warning Notice for allowing an unlawful non-citizen to work.

159.       The maximum penalty for an offence under new subsection 245AD(1) is 5 years imprisonment.  This penalty must be read with sections 4AA and 4B of the Crimes Act 1914 , the effect of which is that a court could impose, instead of, or in addition to, this penalty of imprisonment, a pecuniary penalty not exceeding $33,000 for a natural person and not exceeding $165,000 for a body corporate.

160.       The note to new subsection 245AD(1) refers the reader to section 245AH for when a person is being exploited .  This is discussed further below.

Allowing a lawful non-citizen to work in breach of a work-related condition

161.       Current section 245AC deals with allowing a non-citizen to work in breach of a visa condition.  Current subsection 245AC(1) provides that a person commits an offence if:

·         the person allows, or continues to allow, a person ( the worker ) to work; and

·         the worker is a non-citizen and the person knows of, or is reckless as to,

that circumstance; and

·         the worker holds a visa that is subject to a condition restricting the work that the worker may do in Australia, and the person knows of, or is reckless as to,

that circumstance; and

·         the worker is in breach of the condition and the person knows of, or is reckless as to, that circumstance.

162.       Current subsection 245AC(2) provides that an offence against subsection 245AC(1) is an aggravated offence if the worker is being exploited and the person knows of, or is reckless as to, that circumstance. 

163.       Current subsection 245AC(3) provides that an offence against section 245AC is punishable on conviction by whichever of the following applies:

·         in the case of an aggravated offence - imprisonment for 5 years;

·         in any other case - imprisonment for 2 years.

164.       In current section 245AC, the aggravated offence and the baseline offence are contained in the same provision. 

165.       New subsection 245AD(2) replaces current section 245AC. 

166.       New subsection 245AD(2) provides that a person (the first person ) commits an offence if:

·         the first person allows, or continues to allow, another person (the worker ) to work; and

·         the worker is a lawful non-citizen; and

·         the worker holds a visa that is subject to a work-related condition; and

·         the worker is in breach of the work-related condition solely because of doing the work referred to in paragraph 245AD(2)(a); and

·         the worker is being exploited; and

·         the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs 245AD(2)(b), (c), (d) and (e).

167.       Section 5.3 of the Criminal Code provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

168.       Subsection 5.4(1) of the Criminal Code provides that a person is reckless with respect to a circumstance if:

·         he or she is aware of a substantial risk that the circumstance exists or will exist; and

·         having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

169.       To prove that an employer recklessly allowed lawful non-citizen to work in breach of a

work-related condition solely because of doing that work, and that the lawful non-citizen is being exploited, it would be necessary for the prosecution to establish that:

·         there was a substantial risk that the worker was a lawful non-citizen, in breach of a work-related condition on their visa, solely because of doing the work the employer allowed them to do;

·         there was a substantial risk that the worker was being exploited;

·         the employer was aware of this substantial risk; and

·         having regard to the circumstances known to the employer, it was unjustifiable for the employer to have taken the risk.

170.       It is intended that a person would be reckless as to whether a worker was a lawful non-citizen in breach of a work-related condition on their visa solely because of doing the work the employer allowed them to do, where he or she is aware of the possibility that a worker could be in breach.  Further, a person would be reckless as to whether a worker was being exploited, where he or she is aware of the possibility.  An employer might become aware of that risk through the Department’s employer awareness campaigns or by being given an administrative Illegal Worker Warning Notice for allowing a lawful non-citizen to work in breach of a work-related condition.

171.       The maximum penalty for an offence under new subsection 245AD(2) is 5 years imprisonment.  This penalty must be read with sections 4AA and 4B of the Crimes Act 1914 , the effect of which is that a court could impose, instead of, or in addition to, this penalty of imprisonment, a pecuniary penalty not exceeding $33,000 for a natural person and not exceeding $165,000 for a body corporate.

172.       The note to new subsection 245AD(2) refers the reader to section 245AH for when a person is being exploited

173.       Current section 245AH of the Act defines exploited as follows:

For the purposes of this Subdivision, a person is being exploited if the person is in a condition of forced labour, sexual servitude or slavery in Australia.

174.       The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 will amend section 245AH by substituting the following provision:

For the purposes of this Subdivision, a person is exploited if the person is subjected to exploitation within the meaning of the Criminal Code (see section 271.1A of the Criminal Code).

175.       Proposed section 271.1A of the Criminal Code (to be inserted by item 22 of the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012) contains the following definition of “exploitation”:

For the purposes of this Division, exploitation , of one person (the victim ) by another person, occurs if the other person’s conduct causes the victim to enter into any of the following conditions:

·         slavery, or a condition similar to slavery;

·         servitude;

·         forced labour;

·         forced marriage;

·         debt bondage.

176.       The note to that provision states that Division 270 (slavery and slavery-like offences) deals with slavery, servitude, forced labour and forced marriage.  Subdivision C of this Division deals with debt bondage.

177.       The amendments to section 245AH by the Crimes Legislation Amendment

(Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 will broaden the range of circumstances in which a person will be exploited to include a situation where the person’s conduct causes the victim to enter into a condition of slavery, or a condition similar to slavery, servitude, forced labour, forced marriage or debt bondage. 

178.       The statutory defences mentioned in new sections 245AB and 245AC will not apply to new section 245AD.  This reflects the policy intention that it is not appropriate for a person to have the benefit of those defences in circumstances where the worker is being exploited.  Rather, the common law defences, and the statutory defences in the Criminal Code will apply to new section 245AD.

179.       New section 245AD has been drafted broadly so that the exploitation need not necessarily be committed by the person who is allowing the non-citizen to work.

This is to ensure the aggravated offence would apply in situations where an employer knows of, or is reckless to, the fact that their non-citizen worker is being exploited by another person who has hired or loaned the non-citizen to the employer to perform work, as sometimes occurs in the sex industry.  Unless an employer is connected to the person who is exploiting the worker, it is extremely unlikely that the employer would be in a position to commit the aggravated offence.  This is because the very nature of forced labour, sexual servitude and slavery strongly suggests that the victim of the exploitation would not be free to find work with an employer who is not connected with the exploitation.

 

 

 

Section 245AE             Referring an unlawful non-citizen for work

180.       Current section 245AD deals with referring an unlawful non-citizen for work. 

Current subsection 245AD(1) provides that a person commits an offence if:

·         the person operates a service, whether for reward or otherwise, referring one person to another for work; and

·         the person refers a person (the prospective worker ) to another for work; and

·         at the time of the referral, the prospective worker is an unlawful non-citizen and the person knows of, or is reckless as to, that circumstance.

181.       Both the physical and fault elements of the offence are set out in current subsection 245AD(1).

182.       Current subsection 245AD(3) provides that an offence against section 245AD is punishable on conviction by whichever of the following applies:

·         in the case of an aggravated offence - imprisonment for 5 years;

·         in any other case - imprisonment for 2 years.

183.       New section 245AE replaces current section 245AD and deals with referring an unlawful non-citizen for work.

184.       New subsection 245AE(1) provides that a person (the first person ) contravenes this subsection if:

·         the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and

·         the first person refers another person (the prospective worker ) to a third person for work; and

·         at the time of the referral, the prospective worker is an unlawful non-citizen.

185.       This provision sets out the elements for contravening new subsection 245AE(1).

186.       New subsection 245AE(2) provides that new subsection 245AE(1) does not apply if the first person takes reasonable steps at reasonable times before the referral to verify that the prospective worker is not an unlawful non-citizen, including (but not limited to) either of the following steps:

·         using a computer system prescribed by the regulations to verify that matter;

·         doing any one or more things prescribed by the regulations.

187.       The purpose of this amendment is to provide an exception to new subsection 245AE(1) so that where a person took reasonable steps at reasonable times, before the referral, to verify that the prospective worker is not an unlawful non-citizen, the first person would not contravene new subsection 245AE(1).  Accordingly, new subsection 245AE(2) creates a specific defence in relation to a contravention of new subsection 245AE(1). 

188.       New paragraph 245AE(2)(a) specifies that a reasonable step includes using a computer system prescribed by the regulations to verify that the worker is not an unlawful non-citizen.  It is intended that the computer system that would be prescribed by the Regulations is VEVO which is a computer system that a person can use to verify, among other things, whether a non-citizen holds a visa that is in effect, or whether a non-citizen holds a visa with a condition or conditions which prohibit or restrict them from working in Australia.

189.       New paragraph 245AE(2)(b) specifies that a reasonable step includes doing any one or more things prescribed by the regulations.  This amendment creates a regulation-making power for the Regulations to prescribe any further reasonable steps that could be taken to verify that a prospective worker is not an unlawful non-citizen.

190.       New subsection 245AE(2) makes it clear that the reasonable steps specified in new paragraphs 245AE(2)(a) and 245AE(2)(b) are not exhaustive.  It is intended that a person could still persuade a court that other non-specified reasonable steps were taken at reasonable times before the referral to verify that a prospective worker was not an unlawful non-citizen. 

191.       The defences are designed to be sufficiently broad to cover the practices of individuals and businesses that make genuine attempts to verify that a non-citizen is not an unlawful

non-citizen before referring the non-citizen to a third person for work. Depending on the circumstances, reasonable steps at reasonable times may include, but are not to be limited to, any of the following:

·         checking VEVO a few days prior to referring the prospective worker for work, and relying on that information for all subsequent referrals until the date VEVO indicated the prospective worker’s visa will cease;

·         creating a contractual obligation for the third party to whom the prospective worker is referred,  or another party, to verify that the prospective worker holds a visa with the required entitlement to work; or to specify supply of labour that includes only non-citizens with the required entitlement to work;

·         viewing what appears to be evidence of the grant to the prospective worker of a permanent visa or a temporary visa that has the required entitlement to work; or

·         viewing what appears to be evidence of the prospective worker having been approved as an Australian citizen or holding Australian citizenship.

Offence

192.       New subsection 245AE(3) provides that a person commits an offence if the person contravenes subsection 245AE(1).  It further provides that the physical elements of that offence are set out in subsection 245AE(1). 

193.       The maximum penalty for an offence under new subsection 245AE(3) is 2 years imprisonment.  This penalty must be read with sections 4AA and 4B of the Crimes Act 1914 , the effect of which is that a court could impose, instead of, or in addition to, this penalty of imprisonment, a pecuniary penalty not exceeding $13,200 for a natural person and not exceeding $66,000 for a body corporate.

194.       The note to new subsection 245AE(3) advises that in accordance with subsection 13.3(3) of the Criminal Code a defendant bears the evidential burden in relation to proving the matter in new subsection 245AE(2).

195.       New subsection 245AE(4) provides that for the purposes of subsection 245AE(3),

the fault element for paragraph 245AE(1)(c) (at the time of the referral, the prospective worker is an unlawful non-citizen) is knowledge or recklessness by the first person.

196.       Section 5.3 of the Criminal Code provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

197.       Subsection 5.4(1) of the Criminal Code provides that a person is reckless with respect to a circumstance if:

·         he or she is aware of a substantial risk that the circumstance exists or will exist; and

·         having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

198.       To prove that a referrer recklessly referred an unlawful non-citizen to a third person for work, it would be necessary for the prosecution to establish that:

·         there was a substantial risk that, at the time of the referral, the prospective worker was an unlawful non-citizen;

·         the referrer was aware of this substantial risk; and

·         having regard to the circumstances known to the referrer, it was unjustifiable for the referrer to have taken the risk.

199.       It is intended that a referrer would be reckless as to whether, at the time of the referral,

the prospective worker was an unlawful non-citizen, where he or she was aware of the possibility that the prospective worker was an unlawful non-citizen.   A referrer might become aware of that risk through the Department’s employer awareness campaigns or by being given an administrative Illegal Worker Warning Notice for referring an unlawful

non-citizen to a third person for work. 

Civil penalty provision

200.       New subsection 245AE(5) provides that a person is liable to a civil penalty if the person contravenes subsection 245AE(1).  The maximum civil penalty for contravention of that provision is 90 penalty units. 

201.       This penalty must also be read with subsection 5(1) of the Act which provides that

penalty unit has the meaning given by section 4AA of the Crimes Act 1914. 

Section 4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty unit equates. Currently, one penalty unit is equal to $110.  Accordingly, the maximum penalty equates to $9,900 for an individual. 

202.       This penalty must also be read with new paragraph 486R(5)(a) inserted by item 24 below.  New paragraph 486R(5)(a) provides that the pecuniary penalty for a contravention of a civil penalty provision must not be more than 5 times the amount of the pecuniary penalty specified for the civil penalty provision, if the person is a body corporate. 

Accordingly, the maximum penalty equates to $49,500 for a body corporate.

203.       This penalty must also be read with new subsection 486R(6) inserted by item 24 below. 

New subsection 486R(6) provides that in determining the amount of the pecuniary penalty, the court must take into account all relevant matters, including the matters listed in that subsection.

204.       The note to new subsection 245AE(5) provides that it is not necessary to prove a person’s state of mind in proceedings for a civil penalty order and refers the reader to new section 486ZF.

205.       New section 486ZF, inserted by item 24 below, provides that in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision

(other than subsection 245AK(2)), it is not necessary to prove the person’s intention, knowledge, negligence or any other state of mind of the person.

206.       The effect of this note is to clarify that it is enough to establish that a person contravened new subsection 245AE(1) by referring an unlawful non-citizen to a third person for work. 

This is clearly distinguished from the requirement to prove the fault elements of knowledge or recklessness in relation to new paragraph 245AE(1)(c) in a criminal offence. 

This means that a person is liable to a civil penalty under new subsection 245AE(5) without knowing or being reckless as to whether a prospective worker is an unlawful non-citizen prior to the referral.  The decision to introduce non-fault civil penalties reflects the Government’s determination to address the problem of illegal work hire practices.

207.       New subsection 245AE(6) provides that a person who wishes to rely on subsection 245AE(2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

208.       The matter of verifying that a prospective worker is not an unlawful non-citizen (the matter) has been included as a specific defence, as opposed to being specified as an element of the offence/civil penalty provision.  This means that the burden is on the first person

(the defendant) to establish that they have taken reasonable steps at reasonable times before the referral to verify that matter in new subsection 245AE(2), in accordance with the note to new subsection 245AE(3) (in relation to the criminal offences) and new subsection 245AE(6) (in relation to the civil penalty provisions).

209.       Chapter 4.3 of the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states that a matter should only be included in an offence-specific defence, as opposed to being specified as an element of the offence, where:

·         it is peculiarly within the knowledge of the defendant, and

·         it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

210.       The question of whether the defendant has taken reasonable steps at reasonable times to verify that a prospective worker is not an unlawful non-citizen is something peculiarly within the knowledge of the defendant. While it is arguable that the prosecution would also know whether the first person used VEVO to check whether the prospective worker is an unlawful non-citizen, only the defendant would know whether that check was undertaken before the referral and at a reasonable time, having regard to the circumstances in which the prospective worker was engaged. 

211.       In addition, the amendments made by item 22 below provide that an evidentiary certificate signed by an officer stating whether or not a specified person used a specified computer system at a specified time, or during a specified period, to obtain information about another specified person, and the information provided by the system to the user at the time or during that period, is prima facie evidence of those matters.  A defendant will also be able to rely on this evidentiary certificate in the same way, obviating the need to keep separate records of work entitlements checks undertaken via the computer system.

212.       Further, only the defendant would have knowledge of any other steps that were taken to verify that the prospective worker is not an unlawful non-citizen, and the knowledge of whether those steps were taken at reasonable times before the referral.

213.       Accordingly, without knowing exactly what steps, if any, were taken by the defendant in relation to verifying that the prospective worker is not an unlawful non-citizen, it would be significantly more difficult and costly for the Department to monitor such activity. 

Evidence of such activity, however, could be readily and cheaply provided by the defendant.

Section 245AEA          Referring a lawful non-citizen for work in breach of a work-related visa condition

214.       Current section 245AE deals with referring a non-citizen for work in breach of a visa condition.  Current subsection 245AE(1) provides that a person commits an offence if:

·         the person operates a service, whether for reward or otherwise, referring one person to another for work; and

·         the person refers a person (the prospective worker ) to another for work; and

·         at the time of the referral:

-           the prospective worker is a non-citizen and the person knows of, or is reckless as to, that circumstance; and

-           the prospective worker holds a visa that is subject to a condition restricting the work that the prospective worker may do in Australia, and the person knows of, or is reckless as to, that circumstance; and

-           the prospective worker will, in doing the work in relation to which he or she was referred, be in breach of the condition and the person knows of, or is reckless as to, that circumstance.

215.       Current subsection 245AE(3) provides that an offence against section 245AE is punishable on conviction by whichever of the following applies:

·         in the case of an aggravated offence - imprisonment for 5 years;

·         in any other case - imprisonment for 2 years.

216.       New section 245AEA replaces current section 245AE and deals with referring a lawful

non-citizen for work in breach of a work-related condition.

217.       New subsection 245AEA(1) provides that a person (the first person ) contravenes this subsection if:

·         the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and

·         the first person refers another person (the prospective worker ) to a third person for work; and

·         at the time of the referral:

-           the prospective worker is a lawful non-citizen; and

-           the prospective worker holds a visa that is subject to a work-related condition; and

-           the prospective worker will be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred.

218.       This provision sets out the elements for contravening new subsection 245AEA(1).

219.       The fifth element, contained in subparagraph 245AEA(1)(c)(iii), is that the prospective worker will be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred.  The effect of subparagraph 245AEA(1)(c)(iii) is to recognise that a referrer may not be aware that a non-citizen is also working elsewhere and should not be expected to know.  Such a person should not be liable for contravening subsection 245AEA(1).  That is, a referrer will only contravene subsection 245AEA(1) where referring a prospective worker to a third person for work in breach of a work-related condition is an exclusive consequence of the referrer’s actions.

220.       For example, a non-citizen holds a student visa which is subject to condition 8104 of Schedule 8 to the Regulations.  Condition 8104 provides that subject to subclauses (2) to (6), the holder must not engage in work for more than 40 hours a fortnight while the holder is in Australia.  A referrer refers the student for a full-time position of 38 hours per week with an employer.  In this instance, the student will be in breach of condition 8104 and this will occur solely because of doing the work in relation to which they were referred. 

Therefore, this referrer could be liable for contravening subsection 245AEA(1).

221.       However, if the referrer refers the student to three positions each of less than 40 hours per fortnight with three separate businesses, the student will breach condition 8104 but the referrer would not be held liable for contravening subsection 245AEA(1).  

This is because, although the student may go on to work in breach of condition 8104, this breach will not have occurred as an exclusive consequence of any one individual referral. 

That is, with regard to one instance of referring a non-citizen to a third person for work, the question of whether any other referral has occurred, or whether any other work is being undertaken is not relevant.

222.       New subsection 245AEA(2) provides that new subsection  245AEA(1) does not apply if the first person takes reasonable steps at reasonable times before the referral to verify that the prospective worker will not be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred, including (but not limited to) either of the following steps:

·         using a computer system prescribed by the regulations to verify that matter;

·         doing any one or more things prescribed by the regulations.

223.       The purpose of this amendment is to provide an exception to new subsection 245AEA(1) so that where a referrer took reasonable steps at reasonable times before the referral to verify that the prospective worker will not be in breach of the work-related condition solely because of doing that work, the first person would not be held liable for contravening new subsection 245AEA(1).  Accordingly, new subsection 245AEA(2) creates a specific defence in relation to a contravention under new subsection 245AEA(1). 

224.       New paragraph 245AEA(2)(a) specifies that a reasonable step includes using a computer system prescribed by the regulations to verify that the prospective worker will not be in breach of the work-related condition solely because of doing that work in relation to which he or she is referred.  It is intended that the computer system that would be prescribed by the Regulations is VEVO which is a computer system that a person can use to verify whether a non-citizen holds a visa that is in effect, or whether a non-citizen holds a visa with a condition or conditions which prohibit or restrict them from working in Australia.

225.       New paragraph 245AEA(2)(b) specifies that a reasonable step includes doing any one or more things prescribed by the regulations.  This amendment creates a regulation-making power for the Regulations to prescribe any further reasonable steps that could be taken to verify that a prospective worker will not be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred.

226.       New subsection 245AEA(2) makes it clear that the reasonable steps specified in new paragraphs 245AEA(2)(a) and (b) are not exhaustive.  It is intended that a person could still persuade a court that other non-specified reasonable steps were taken at reasonable times before the referral to verify that a prospective worker will not be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred.

227.       The defences are designed to be sufficiently broad to cover the practices of individuals and businesses that make genuine attempts before the referral to verify that the prospective worker will not be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred.  Depending on the individual circumstances, reasonable steps at reasonable times before the referral may include, but would not be limited to, any of the following:

·         checking VEVO prior to referring the prospective worker to a third person for work, relying on that information for all subsequent referrals until the date VEVO indicated the prospective worker’s visa will cease;

·          creating a contractual obligation for the third party to whom the prospective worker is referred, or another party, to verify that the prospective worker holds a visa with the required entitlement to work; or to specify supply of labour that includes only non-citizens with the required entitlement to work;

·         viewing what appears to be evidence of the grant to the prospective worker of a permanent visa or a temporary visa that has the required entitlement to work; or

·         viewing what appears to be evidence of the prospective worker having been approved as an Australian citizen or holding Australian citizenship.

Offence

228.       New subsection 245AEA(3) provides that a person commits an offence if the person contravenes subsection 245AEA(1).  It further provides that the physical elements of that offence are set out in subsection 245AEA(1). 

229.       The maximum penalty for an offence under new subsection 245AEA(3) is 2 years imprisonment.  This penalty must be read with sections 4AA and 4B of the Crimes Act 1914 , the effect of which is that a court could impose, instead of, or in addition to, this penalty of imprisonment, a pecuniary penalty not exceeding $13,200 for a natural person and not exceeding $66,000 for a body corporate.

230.       The note to new subsection 245AEA(3) advises that in accordance with subsection 13.3(3) of the Criminal Code a defendant bears the evidential burden in relation to proving the matter in new subsection 245AEA(2).

231.       New subsection 245AEA(4) provides that for the purposes of subsection 245AEA(3),

the fault element for paragraph 245AEA(1)(c) is knowledge or recklessness by the first person.

232.       Section 5.3 of the Criminal Code provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

233.       Subsection 5.4(1) of the Criminal Code provides that a person is reckless with respect to a circumstance if:

·         he or she is aware of a substantial risk that the circumstance exists or will exist; and

·         having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

234.       To prove that a referrer recklessly referred a lawful non-citizen to a third person for work who will be in breach of a work-related condition solely because of doing the work in relation to which he or she was referred, it would be necessary for the prosecution to establish that:

·         there was a substantial risk that, at the time of the referral, the prospective worker was a lawful non-citizen, who will be in breach of a work-related condition on their visa, solely because of doing the work in relation to which he or she was referred; and

·         the referrer was aware of this substantial risk; and

·         having regard to the circumstances known to the referrer, it was unjustifiable for the referrer to have taken the risk.

235.       It is intended that a referrer would be reckless as to whether a prospective worker was a lawful non-citizen, who will be in breach of a work-related condition on their visa solely because of doing the work in relation to which he or she was referred, where the referrer was aware of the possibility that a prospective worker could be in breach.  Further, referrer would be reckless as to whether a prospective worker would be exploited, where he or she is aware of the possibility. A referrer might become aware of that risk through the Department’s employer awareness campaigns or by being given an administrative Illegal Worker Warning Notice for referring a lawful non-citizen to a third person for work in breach of a work-related condition.

Civil penalty provision

236.       New subsection 245AEA(5) provides that a person is liable to a civil penalty if the person contravenes subsection 245AEA(1).  The maximum civil penalty for contravention of that provision is 90 penalty units. 

237.       This penalty must also be read with subsection 5(1) of the Act which provides that

penalty unit has the meaning given by section 4AA of the Crimes Act 1914. 

Section 4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty unit equates. Currently, one penalty unit is equal to $110.  Accordingly, the maximum penalty equates to $9,900 for an individual. 

238.       This penalty must also be read with new paragraph 486R(5)(a) inserted by item 24 below.  New paragraph 486R(5)(a) provides that the pecuniary penalty for a contravention of a civil penalty provision must not be more than 5 times the amount of the pecuniary penalty specified for the civil penalty provision, if the person is a body corporate. 

Accordingly, the maximum penalty equates to $49,500 for a body corporate.

239.       This penalty must also be read with new subsection 486R(6) (inserted by item 24 below).  New subsection 486R(6) provides that in determining the amount of the pecuniary penalty, the court must take into account all relevant matters, including the matters listed in that subsection.

240.       The note to new subsection 245AEA(5) provides that it is not necessary to prove a person’s state of mind in proceedings for a civil penalty order and refers the reader to new section 486ZF.

241.       New section 486ZF, inserted by item 24 below, provides that in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision

(other than subsection 245AK(2)), it is not necessary to prove the person’s intention, knowledge, recklessness, negligence or any other state of mind of the person.

242.       The effect of this note is to clarify that it is enough to establish that a person contravened new subsection 245AEA(1) by referring a lawful non-citizen to a third person for work

(the prospective worker), and in doing the work in relation to which he or she is referred, the prospective worker will be in breach of a work-related condition on their visa. 

This is clearly distinguished from the requirement to prove the fault elements of knowledge or recklessness in relation to new paragraph 245AEA(1)(b) in a criminal offence. 

This means that a person is liable to a civil penalty under new subsection 245AEA(5) without knowing or being reckless as to whether a worker is a lawful non-citizen, who will be in breach of a work-related condition on their visa, solely because of doing the work in relation to which he or she is referred.  The decision to introduce non-fault civil penalties reflects the Government’s determination to address the problem of illegal work hire practices.

243.       New subsection 245AEA(6) provides that a person who wishes to rely on

new subsection 245AEA(2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection.

244.       The matter of verifying that a prospective worker will not be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred

(the matter) has been included as a specific defence, as opposed to being specified as an element of the offence/civil penalty provision.  This means that the burden is on the first person (the defendant) to establish that they have taken reasonable steps at reasonable times before the referral to verify the matter in new subsection 245AEA(2), in accordance with the note to new subsection 245AEA(3) (in relation to the criminal offences) and new

subsection 245AEA(6) (in relation to the civil penalty provisions).

245.       Chapter 4.3 of A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states that a matter should only be included in an offence-specific defence, as opposed to being specified as an element of the offence, where:

·         it is peculiarly within the knowledge of the defendant; and

·         it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.

246.       The question of whether the defendant has taken reasonable steps at reasonable times to verify that the worker is not in breach of the work-related condition solely because of doing the work the first person referred them to do is something peculiarly within the knowledge of the defendant. While it is arguable that the prosecution would also know whether the defendant used VEVO to verify that matter, only the defendant would know whether that check was undertaken before the referral and at a reasonable time, having regard to the circumstances in which prospective worker was referred.

247.       In addition, the amendments made by item 22 below provide that an evidentiary certificate signed by an officer stating whether or not a specified person used a specified computer system at a specified time, or during a specified period, to obtain information about another specified person, and the information provided by the system to the user at the time or during that period, is prima facie evidence of those matters.  A defendant will also be able to rely on this evidentiary certificate in the same way, obviating the need to keep separate records of work entitlements checks undertaken via the computer system. 

248.       Further, only the defendant would have knowledge of any other steps that were taken to verify that the worker will not be in breach of the work-related condition solely because of doing the work in relation to which they were referred, and knowledge of whether those steps were taken at a reasonable time before the referral.

249.       Accordingly, without knowing exactly what steps, if any, were taken by the defendant in relation to verifying that the prospective worker will not be in breach of the work-related condition solely because of doing the work they were referred to do, it would be significantly more difficult and costly for the Department to monitor such activity. 

Evidence of such activity, however, could be readily and cheaply provided by the defendant.

Section 245AEB          Aggravated offences if a person refers another person to a third person for work

250.       New section 245AEB creates aggravated offences if a person refers another person to a third person for work.  As noted above, in new section 245AEB, the aggravated offences have been separated from their baseline offences.  This is because, as seen above, the current criminal offences have been restructured to accommodate the application of the new civil penalty provisions.  The new aggravated offences contain the same physical and fault elements as the baseline offences but have been amended to include the solely concept described above. 

The aggravating circumstance in new section 245AEB is that “the prospective worker is being exploited” and this has not changed from the current aggravated offences.

Referring an unlawful non-citizen for work

251.       Current section 245AD deals with referring an unlawful non-citizen for work. 

Current subsection 245AD(1) provides that a person commits an offence if:

·         the person operates a service, whether for reward or otherwise, referring one person to another for work; and

·         the person refers a person (the prospective worker ) to another for work; and

·         at the time of the referral, the prospective worker is an unlawful non-citizen and the person knows of, or is reckless as to, that circumstance.

252.       Current subsection 245AD(2) provides that an offence against subsection 245AD(1) is an aggravated offence if:

·         the prospective worker will be exploited in doing the work in relation to which he or she is referred, or in doing any other work for the person to whom he or she is referred; and

·         the person operating the referral service knows of, or is reckless as to, that circumstance.

253.       Current subsection 245AD(3) provides that an offence against section 245AD is punishable on conviction by whichever of the following applies:

·         in the case of an aggravated offence - imprisonment for 5 years;

·         in any other case - imprisonment for 2 years.

254.       In current section 245AD, the aggravated offence and the baseline offence are contained in the same provision. 

255.       New subsection 245AEB(1) replaces current section 245AD. 

256.       New subsection 245AEB(1) provides that a person (the first person ) commits an offence if:

·         the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and

·         the first person refers another person (the prospective worker ) to a third person for work; and

·         at the time of the referral, the prospective worker is an unlawful non-citizen; and

·         the prospective worker will be exploited in doing that work, or any other work, for the third person; and

·         the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs 245AEB(1) (c) and (d).

257.       Section 5.3 of the Criminal Code provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

258.       Subsection 5.4(1) of the Criminal Code provides that a person is reckless with respect to a circumstance if:

·         he or she is aware of a substantial risk that the circumstance exists or will exist; and

·         having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

259.       To prove that a referrer recklessly referred an unlawful non-citizen to a third person for work, and that the unlawful non-citizen would be exploited, it would be necessary for the prosecution to establish that:

·         there was a substantial risk that, at the time of the referral, the prospective worker was an unlawful non-citizen;

·         there was a substantial risk that the prospective worker would be exploited;

·         the referrer was aware of these substantial risks; and

·         having regard to the circumstances known to the referrer, it was unjustifiable for the referrer to have taken the risk.

260.       It is intended that a referrer would be reckless as to whether, at the time of the referral, the prospective worker was an unlawful non-citizen and would be exploited, where he or she is aware of the possibility of these matters.  A referrer might become aware of that risk through the Department’s employer awareness campaigns or by being given an administrative

Illegal Worker Warning Notice for referring an unlawful non-citizen to a third person for work.

261.       The maximum penalty for an offence under new subsection 245AEB(1) is 5 years imprisonment.  This penalty must be read with sections 4AA and 4B of the Crimes Act 1914 , the effect of which is that a court could impose, instead of, or in addition to, this penalty of imprisonment, a pecuniary penalty not exceeding $33,000 for a natural person and not exceeding $165,000 for a body corporate.

262.       The note to new subsection 245AEB(1) refers the reader to section 245AH for when a person is being exploited .  This is discussed further below.

Referring a lawful non-citizen for work in breach of a work-related condition

263.       Current section 245AE deals with referring a non-citizen for work in breach of a visa condition.  Current subsection 245AE(1) provides that a person commits an offence if:

·         the person operates a service, whether for reward or otherwise, referring one person to another for work; and

·         the person refers a person (the prospective worker ) to another for work; and

·         at the time of the referral:

-           the prospective worker is a non-citizen and the person knows of, or is reckless as to, that circumstance; and

-           the prospective worker holds a visa that is subject to a condition restricting the work that the prospective worker may do in Australia, and the person knows of, or is reckless as to, that circumstance; and

-           the prospective worker will, in doing the work in relation to which he or she was referred, be in breach of the condition and the person knows of, or is reckless as to, that circumstance.

264.       Current subsection 245AE(2) provides that an offence against subsection 245AE(1) is an aggravated offence if:

·         the prospective worker will be exploited in doing the work in relation to which he or she is referred, or in doing any other work for the person to whom he or she is referred; and

·         the person operating the referral service knows of, or is reckless as to, that circumstance.

265.       Current subsection 245AE(3) provides that an offence against section 245AE is punishable on conviction by whichever of the following applies:

·         in the case of an aggravated offence - imprisonment for 5 years;

·         in any other case - imprisonment for 2 years.

266.       In current section 245AE, the aggravated offence and the baseline offence are contained in the same provision. 

267.       New subsection 245AEB(2) replaces current section 245AE. 

268.       New subsection 245AEB(2) provides that a person (the first person ) commits an offence if:

·         the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and

·         the first person refers another person (the prospective worker ) to a third person for work; and

·         at the time of the referral:

-           the prospective worker is a lawful non-citizen; and

-           the prospective worker holds a visa that is subject to a work-related condition; and

-           the prospective worker will be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred; and

·         the prospective worker will be exploited in doing the work in relation to which he or she is referred, or in doing any other work for the third person; and

·         the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs 245AEB(2)(c) and (d).

269.       Section 5.3 of the Criminal Code provides that a person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

270.       Subsection 5.4(1) of the Criminal Code provides that a person is reckless with respect to a circumstance if:

·         he or she is aware of a substantial risk that the circumstance exists or will exist; and

·         having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

271.       To prove that a referrer recklessly referred a lawful non-citizen to a third person for work who would be in breach of a work-related condition solely because of doing the work in relation to which he or she was referred and that the lawful non-citizen would be exploited,

it would be necessary for the prosecution to establish that:

·         there was a substantial risk at the time of the referral that the prospective worker was a lawful non-citizen who will be in breach of a work-related condition on their visa solely because of doing the work in relation to which he or she was referred;

·         there was a substantial risk that the prospetive worker was going to be exploited;

·         the referrer was aware of these substantial risks; and

·         having regard to the circumstances known to the referrer, it was unjustifiable for the referrer to have taken these risks.

272.       It is intended that a referrer would be reckless as to whether a prospective worker was a lawful non-citizen who will be in breach of a work-related condition on their visa solely because of doing the work in relation to which he or she was referred, where the referrer was aware of the possibility that a prospective worker could be in breach.  Further, a referrer would be reckless as to whether a prospective worker would be exploited where he or she is aware of that possibility.  A referrer might become aware of that risk through the Department’s employer awareness campaigns or by being given an administrative

Illegal Worker Warning Notice for referring a lawful non-citizen to a third person for work in breach of a work-related condition.

273.       The maximum penalty for an offence under new subsection 245AEB(2) is 5 years imprisonment.  This penalty must be read with sections 4AA and 4B of the Crimes Act 1914 , the effect of which is that a court could impose, instead of, or in addition to, this penalty of imprisonment, a pecuniary penalty not exceeding $33,000 for a natural person and not exceeding $165,000 for a body corporate.

274.       The note to new subsection 245AEB(2) refers the reader to section 245AH for when a person is being exploited .

275.       Current section 245AH defines exploited as follows:

For the purposes of this Subdivision, a person is being exploited if the person is in a condition of forced labour, sexual servitude or slavery in Australia.

276.       Current section 245AI defines the terms in current section 245AH. 

Current section 245AI provides:

In this Subdivision:

forced labour has the same meaning as in section 73.2 of the Criminal Code.

sexual service means the commercial use or display of the body of the person providing the service for the sexual gratification of others.

sexual servitude has the meaning given by section 270.4 of the Criminal Code.

slavery has the meaning given by section 270.1 of the Criminal Code.

277.       The Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 will amend section 245AH by substituting the following provision:

For the purposes of this Subdivision, a person is exploited if the person is subjected to exploitation within the meaning of the Criminal Code (see section 271.1A of the Criminal Code).

278.       Proposed section 271.1A of the Criminal Code (to be inserted by item 22 of the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012) contains the following definition of “exploitation”:

For the purposes of this Division, exploitation , of one person (the victim ) by another person, occurs if the other person’s conduct causes the victim to enter into any of the following conditions:

·         slavery, or a condition similar to slavery;

·         servitude;

·         forced labour;

·         forced marriage;

·         debt bondage.

279.       The note to that provision states that Division 270 (slavery and slavery-like offences) deals with slavery, servitude, forced labour and forced marriage. 

Subdivision C of this Division deals with debt bondage.

280.       The amendments to section 245AH of the Act by the Crimes Legislation Amendment (Slavery, Slavery-like Conditions and People Trafficking) Bill 2012 will broaden the range of circumstances in which a person will be exploited to include a situation where the person’s conduct causes the victim to enter into a condition of slavery or a condition similar to slavery, servitude, forced labour, forced marriage or debt bondage. 

281.       The statutory defences mentioned in new sections 245AE and 245AEA will not apply to new section 245AEB.  This reflects the policy intention that it is not appropriate for a person to have the benefit of those defences in circumstances where the prospective worker will be exploited.  Rather, the common law defences, and the statutory defences under the

Criminal Code will apply to new section 245AEB.

282.       New section 245AEB has been drafted broadly so that the exploitation need not necessarily be committed by the person who is referring the non-citizen for work or the person the

non-citizen has been referred to (the prospective employer).  

This is to ensure the aggravated offence would apply in situations where a referrer knows or is reckless to the fact that their non-citizen worker will be exploited by another person who will hire or loan the non-citizen to another person to perform work, as sometimes occurs in the sex industry.  Unless a referrer is connected to the person who is exploiting the worker, it is extremely unlikely that the referrer would be in a position to commit the aggravated offence.  This is because the very nature of forced labour, sexual servitude and slavery strongly suggests that the victim of the exploitation would not be free to find work through a referrer who is not connected with the exploitation.

Item 18           After paragraph 245AG(2)(b)

283.       This item inserts new paragraph 245AG(2)(ba) after paragraph 245AG(2)(b) in the Act.

284.       Current subsection 245AG(2) provides that in Subdivision C of Division 12 of Part 2 of the Act, a person allows a person to work if, and only if:

·         the first person employs the second person under a contract of service; or

·         the first person engages the second person, other than in a domestic context,

under a contract for services; or

·         the first person bails or licences a chattel to the second person or another person with the intention that the second person will use the chattel to perform a transportation service; or

·         the first person leases or licences premises, or a space within premises, to the second person or another person with the intention that the second person will use the premises or space to perform sexual services.

285.       Current subsection 245AG(2) defines the circumstances in which a person “allows” another person to work for the purposes of Subdivision C.  The circumstances are broad enough to cover not only the traditional employer-employee relationships, but also alternative working arrangements that are common in industries where illegal work occurs, such as in the construction, taxi, hospitality, cleaning and sex industries.

286.       However, this definition does not capture people who enable unlawful non-citizens to work or lawful non-citizens to work in breach of work-related conditions otherwise than through conventional employment relationships.  By way of example, an intermediary may offer to supply workers for an employer to do a particular job in return for payment, or may offer to buy a farmer’s crop and then supply the workers to harvest the crop. 

New paragraph 245AG(2)(ba) will extend the definition of “allows to work” to cover these types of employment relationships.

287.       New paragraph 245AG(2)(ba) provides that the first person participates in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by the second person for:

·         the first person; or

·         another participant in the arrangement or any such arrangement.

288.       The purpose of this amendment is to implement the intent of a key recommendation of the Howells Review to broaden the application of the work-related offences and the work-related provisions, so that a person who participates in a chain of events which results in a contravention of the work-related offences or work-related provisions can be held liable for committing that work-related offence or contravening that work-related provision. 

289.       For example, the owner of Business A has a contract for services with Business B to provide carpenters at short notice for additional work for two weeks.  Business B contacts one of its sub-contractors, Business C to source the carpenters.  Business C provides four carpenters to Business A.  Business A pays Business B for the workers and Business B pays Business C a commission for providing the workers.  The worker’s wages are paid by Business C. 

One of the carpenters is an unlawful non-citizen. 

290.       Business C has allowed the unlawful non-citizen to work under the existing definition of “allows to work” in paragraph 245AG(2)(b) as they have engaged the unlawful non-citizen under a contract for services.  However, neither Business B, nor Business A, has allowed the unlawful non-citizen to work within the meaning of current subsection 245AG(2), as neither company has employed the unlawful non-citizen under a contract of service or engaged the unlawful non-citizen under a contract for services.

291.       However, both companies will have allowed the unlawful non-citizen to work within the meaning of new paragraph 245AG(2)(ba).  By entering into a contract for services with Business B to provide carpenters, Business A has participated in an arrangement for the performance of work by the unlawful non-citizen for itself. 

By contracting Business C to source the carpenters, Business B has participated in an arrangement for the performance of work by the unlawful non-citizen for another participant in the arrangement, namely, Business A.  Both companies will have contravened subsection 245AB(1) unless they can establish that subsection 245AB(2) applies

(that is, the specific defence of taking reasonable steps at reasonable times to verify the matter referred to in subsection 245AB(2), that is, that the person is not an unlawful non-citizen).

Item 19           At the end of subsection 245AG(2)

292.       This item adds the words “; or (e) the prescribed circumstances exist.” at the end of current subsection 245AG(2) of the Act.

293.       The purpose of this amendment is to create a regulation-making power to allow for the Regulations to prescribe any new employment relationships that may emerge with the objective of circumventing the amended definition of “allows to work” in subsection 245AG(2), including new paragraph 245AG(2)(ba). 

294.       This amendment provides flexibility to prescribe other situations in which a person will be “allowed to work” to specifically cover these new employment relationships.

Item 20           Sections 245AJ and 245AK

295.       This item repeals current sections 245AJ and 245AK and substitutes new sections 245AJ, 245AK, 245AL, 245AM, 245AN, 245AO and 245AP.

Section 245AJ             Criminal liability of executive officers of bodies corporate

296.       New subsection 245AJ(1) provides that an executive officer of a body corporate commits an offence if:

·         the body commits an offence (the work-related offence ) against this Subdivision; and

·         the officer knew that, or was reckless or negligent as to whether, the work-related offence would be committed; and

·         the officer was in a position to influence the conduct of the body in relation to the work-related offence; and

·         the officer failed to take all reasonable steps to prevent the work-related offence being committed.

297.       The purpose of this provision is to extend the criminal liability of bodies corporate in respect of offences against Subdivision C of Division 12 of Part 2 of the Act

( the work-related offences ) to executive officers of those bodies corporate in the specific circumstances specified in that provision.  That is, the officer must have known that, or was reckless or negligent as to whether, the work-related offence would be committed, must have been in a position to influence the conduct of the body corporate in relation to the

work-related offence, and must have failed to take all reasonable steps to prevent the

work-related offence being committed. An executive officer of a body corporate will not be held criminally liable in respect of a work-related offence committed by the body corporate unless all of those circumstances exist. 

298.       This amendment provides for additional protection of vulnerable workers, while providing safeguards to ensure that only those with involvement in the work-related offence will be penalised.

299.       New subsection 245AJ(2) provides that an offence against subsection 245AJ(1) is punishable on conviction by a pecuniary penalty not exceeding one-fifth of the maximum pecuniary penalty that a court could impose on the body corporate for the work-related offence. 

300.       The purpose of this provision is to clarify that if an executive officer of a body corporate is convicted of an offence under subsection 245AJ(1), they can only be given a pecuniary penalty of up to one-fifth of the maximum pecuniary penalty that a court could impose on the body corporate for that offence.  The provision reflects the policy of the Commonwealth that the maximum pecuniary penalty that can be imposed on an individual is significantly lower than the maximum pecuniary penalty that can be imposed on a body corporate.

301.       The maximum penalty for the non-aggravated work-related offences is 2 years imprisonment.  This penalty must be read with sections 4AA and 4B of the Crimes Act 1914 , the effect of which is that a court could impose, instead of, or in addition to, this penalty of imprisonment, a pecuniary penalty not exceeding $13,200 for a natural person and not exceeding $66,000 for a body corporate.  Therefore, the maximum pecuniary penalty that could be imposed on an executive officer of a body corporate is $13,200 for committing an offence under

new subsection 245AJ(1). 

302.       The maximum penalty for the aggravated work-related offences is 5 years imprisonment.  This penalty must be read with sections 4AA and 4B of the Crimes Act 1914 , the effect of which is that a court could impose, instead of, or in addition to, this penalty of imprisonment, a pecuniary penalty not exceeding $33,000 for a natural person and not exceeding $165,000 for a body corporate.  Therefore, the maximum pecuniary penalty that could be imposed on an executive officer of a body corporate is $33,000 for committing an offence under

new subsection 245AJ(1). 

Reasonable steps to prevent the offence

303.       New subsection 245AJ(3) provides that in determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the work-related offence being committed by the body, a court must have regard to:

·         what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and

·         what action (if any) the officer took when he or she became aware that the body was committing the work-related offence.

304.       The purpose of this provision is to set out the circumstances a court must take into account in deciding whether an executive officer of a body corporate failed to take all reasonable steps to prevent a work-related offence from being committed by the body corporate. 

That is, the court must take into account what action the officer took to ensure the employees, contractors and agents of the body corporate had a reasonable knowledge and understanding of their obligations to comply with the work-related offences to the extent that those requirements affected them.  The court must also take into account whether the officer took any action (and if so, the action that they took) when they discovered the body corporate was committing the work-related offence.

305.       New subsection 245AJ(4) provides that subsection 245AJ(3) does not limit subsection 245AJ(1). 

306.       The purpose of this provision is to make it clear that, although a court must have regard to the matters in subsection 245AJ(3) in determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the work-related offence being committed by the body corporate, the court may also have regard to any other matters it considers relevant.

Definition

307.       New subsection 245AJ(5) provides that in section 245AJ, executive officer of a body corporate means:

·         a director of the body corporate; or

·         the chief executive officer (however described) of the body corporate; or

·         the chief financial officer (however described) of the body corporate; or

·         the secretary of the body corporate.

308.       The purpose of this definition is to clarify who is an executive officer of a body corporate for the purposes of new section 245AJ.  That is, only certain senior office holders within the body corporate are included in the definition and therefore, are potentially criminally liable for the work-related offence committed by the body corporate under new section 245AJ.

Section 245AK                        Civil liability of executive officers of bodies corporate

309.       New subsection 245AK(1) provides that an executive officer of a body corporate contravenes this subsection if:

·         the body contravenes (the work-related contravention ) a civil penalty provision in this Subdivision; and

·         the officer knew that, or was reckless or negligent as to whether, the work-related contravention would occur; and

·         the officer was in a position to influence the conduct of the body in relation to the work-related contravention; and

·         the officer failed to take all reasonable steps to prevent the work-related contravention.

310.       The purpose of this provision is to extend the civil liability of bodies corporate in respect of the work-related civil penalty provisions in Subdivision C of Division 12 of Part 2 of the Act (the work-related contraventions) to executive officers of those bodies corporate in the specific circumstances specified in that provision.  That is, the officer must have known that, or was reckless or negligent as to whether, the contravention of the work-related provision would occur, must have been in a position to influence the conduct of the body corporate in relation to the contravention of the work-related provision, and must have failed to take all reasonable steps to prevent the contravention of the work-related provision. 

Civil liability in respect of a contravention of a work-related provision by a body corporate will not extend to an executive officer of the body corporate unless all of those circumstances exist. 

311.       This amendment provides for additional protection of vulnerable workers, while providing safeguards to ensure that only those with involvement in work-related contraventions will be penalised.

Civil penalty provision

312.       New subsection 245AK(2) provides that an executive officer of a body corporate is liable to a civil penalty if the officer contravenes subsection 245AK(1).  The maximum civil penalty for contravention of that provision is 90 penalty units. 

313.       This penalty must also be read with subsection 5(1) of the Act which provides that

penalty unit has the meaning given by section 4AA of the Crimes Act 1914. 

Section 4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty unit equates.  Currently, 1 penalty unit is equal to $110.  Accordingly, the maximum penalty equates to $9,900 for an executive officer of a body corporate. 

314.       This penalty must also be read with new subsection 486R(6) (inserted by item 24 below).  New subsection 486R(6) provides that in determining the amount of the pecuniary penalty, the court must take into account all relevant matters, including the matters listed in that subsection.

315.       The note to new subsection 245AK(2) provides that section 486ZF, inserted by item 24 below (which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to this subsection.

316.       New section 486ZF, inserted by item 24 below, provides that in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision

(other than subsection 245AK(2)), it is not necessary to prove the person’s intention, knowledge, negligence, recklessness or any other state of mind of the person.

317.       The purpose of this provision is to create a civil penalty provision so that an executive officer of a body corporate who has been found by a court to have contravened a work-related provision is liable to a maximum civil penalty of 90 penalty units in respect of that contravention. 

 

 

Reasonable steps to prevent the contravention

318.       New subsection 245AK(3) provides that in determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the contravention by the body,

a court must have regard to:

·         what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents and contractors concerned; and

·         what action (if any) the officer took when he or she became aware that the body was engaging in the work-related contravention.

319.       The purpose of this provision is to set out the circumstances a court must take into account in deciding whether an executive officer of a body corporate failed to take all reasonable steps to prevent a contravention of a work-related provision by the body corporate. 

That is, the court must take into account what action the officer took to ensure the employees, contractors and agents of the body corporate had a reasonable knowledge and understanding of their obligations to comply with the work-related provisions to the extent that those requirements affected them.  The court must also take into account whether the officer took any action (and if so, the action that they took) when they discovered the body corporate was engaging in the contravention of a work-related provision.

320.       New subsection 245AK(4) provides that subsection 245AK(3) does not limit subsection 245AK(1).

321.       The purpose of this provision is to make it clear that, although a court must have regard to the matters in subsection 245AK(3) in determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the contravention of a work-related provision by the body corporate, the court may also have regard to any other matters it considers relevant.

Definitions

322.       New subsection 245AK(5) provides that in section 245AK, executive officer of a body corporate means:

·         a director of the body corporate; or

·         the chief executive officer (however described) of the body corporate; or

·         the chief financial officer (however described) of the body corporate; or

·         the secretary of the body corporate.

323.       The purpose of this definition is to clarify who is an executive officer of a body corporate for the purposes of new section 245AK.  That is, only certain senior office holders within the body corporate are included in the definition and therefore, are potentially liable for a

work-related contravention committed by the body corporate under new section 245AK.

324.       New subsection 245AK(5) also provides that an executive officer of a body corporate is negligent as to whether a work-related contravention would occur if the officer’s conduct involves:

·         such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

·         such a high risk that the work-related contravention would occur;

that the conduct merits the imposition of a pecuniary penalty.

325.       The purpose of this provision is to ensure that the word “negligent” in the context of new section 245AK is as consistent as possible with that term as defined in section 5.5 of the Criminal Code .  Section 5.5 of the Criminal Code provides that a person is negligent with respect to a physical element of an offence if his or her conduct involves:

·         such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and

·         such a high risk that the physical element exists or will exist;

that the conduct merits criminal punishment for the offence.

326.       New subsection 245AK(5) also provides that an executive officer of a body corporate is reckless as to whether a work-related contravention would occur if:

·         the officer is aware of a substantial risk that the work-related contravention would occur; and

·         having regard to the circumstances known to the officer, it is unjustifiable to take the risk.

327.       The purpose of this provision is to ensure that the word “reckless” in the context of section 245AK is as consistent as possible with that term as defined in section 5.4 of the

Criminal Code.

328.       Subsection 5.4(1) of the Criminal Code provides that a person is reckless with respect to a circumstance if:

·         he or she is aware of a substantial risk that the circumstance exists or will exist; and

·         having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

329.       Subsection 5.4(2) of the Criminal Code provides that a person is reckless with respect to a result if:

·         he or she is aware of a substantial risk that the result will occur; and

·         having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

Section 245AL             Contravening civil penalty provisions

330.       New subsection 245AL(1) provides that this section applies if a civil penalty provision in this Subdivision provides that a person contravening another provision of this Subdivision

(the conduct rule provision ) is liable to a civil penalty.

331.       New subsection 245AL(2) provides that for the purposes of this Act, a person is taken to contravene the civil penalty provision if the person contravenes the conduct rule provision.

332.       The purpose of these provisions is to ensure that references to a contravention of a civil penalty provision pick up a contravention of the conduct rule provision.

333.       New subsection 245AL(1) applies to those provisions that state a person is liable to a civil penalty if they contravene another provision of Subdivision C of Division 12 of Part 2 of the Act.  For example, subsection 245AB(5) makes a person liable to a civil penalty if they contravene subsection 245AB(1) (which provides that a person contravenes this subsection if they allow, or continue to allow, a worker to work, and the worker is an unlawful

non-citizen).

334.       The effect of subsection 245AL(2) is that, if the person contravenes the provision that states that a person contravenes that section if they do a certain act, the person is taken to contravene the associated civil penalty provision and so is liable for a civil penalty. 

335.       For example, the effect of subsection 245AL(2) is that if a person contravenes subsection 245AB(1) (which provides that a person (the first person ) contravenes this subsection if the first person allows, or continues to allow, another person (the worker ) to work, and the worker is an unlawful non-citizen) they are taken to have contravened subsection 245AB(5) (the civil penalty provision) and so is liable to a civil penalty.  In the absence of section 245AL, the person would not be liable to a civil penalty in this situation because subsection 245AB(5) cannot be contravened in its own right.

Section 245AM            Geographical scope of offence and civil penalty provisions

336.       Current section 245AJ provides that section 15.2 of the Criminal Code

(extended geographical jurisdiction - category B) applies to an offence against sections 245AB, 245AC, 245AD and 245AE in Subdivision C of Division 12 of Part 2 of the Act

337.       New section 245AM replaces current section 245AJ.  The extended geographical jurisdiction of the work-related offences and work-related provisions is covered by new section 245AM.

Offences

338.       New subsection 245AM(1) provides that section 15.2 of the Criminal Code

(extended geographical jurisdiction - category B) applies to an offence against

Subdivision C of Division 12 of Part 2 of the Act.

339.       The purpose of this provision is to apply the extended geographical jurisdiction - category B - to the criminal offences in new Subdivision C of Division 12 of Part 2 of the Act.

340.       The application of the geographical jurisdiction set out in section 15.2 of the Criminal Code will ensure that, for example, a person would commit an offence under new section 245AB if he or she employs another person under a contract of service outside Australia and that other person entered Australia and performed work in Australia under that contract.

341.       The scope of the offences in new Subdivision C of Division 3 of Part 2 of the Act is limited to where the worker is working in Australia by the very nature of the offences.

This is because the offences only relate to unlawful non-citizens, which by definition means a

non-citizen in the migration zone, or in relation to work in breach of a work-related condition as the provisions cover non-citizens who are allowed to work or who are referred for work in Australia.

Contraventions of civil penalty provisions

342.       New subsection 245AM(2) provides that an order must not be made against a person in civil proceedings relating to a contravention by the person of a civil penalty provision in this Subdivision unless:

·         the person’s conduct that allegedly contravenes the provision occurs:

-           wholly or partly in Australia; or

-           wholly or partly on board an Australian aircraft or an Australian ship; or

·         the person’s conduct that allegedly contravenes the provision occurs wholly outside Australia and, at the time of the alleged contravention, the person is:

-           an Australian citizen; or

-           a resident of Australia; or

-           a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or

·         all of the following conditions are satisfied:

-           the person’s conduct allegedly contravenes the provision because of section 486ZD (the ancillary contravention );

-           the conduct occurs wholly outside Australia;

-           the conduct constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

343.       The purpose of this provision is to provide for an extended geographical jurisdiction for the contravention of the civil penalty provisions in Subdivision C of Division 12 of Part 2 of the Act (work-related provisions) that is similar to the extended geographical

jurisdiction - category B for criminal offences.

344.       That is, if a person has contravened a work-related provision, the person will be liable to a civil penalty if they contravene the provision wholly or partly in Australia, or wholly or partly on board an Australian aircraft or an Australian ship.  In this scenario, it is the fact that the conduct contravening the work-related provision has occurred, for example, wholly or partly in Australia that makes the person potentially liable to a civil penalty.

345.       A person who has contravened a work-related provision will also be liable to a civil penalty even if the contravention occurred wholly outside Australia, provided that, at the time of the contravention, the person is either an Australian citizen, a resident of Australia, or a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory. That is, the person has to have a link with Australia in terms of their citizenship, residence or incorporation (in the case of a body corporate) in order to be caught by this limb of the provision.

346.       Finally, a person who is taken to have contravened a work-related provision because of new section 486ZD will be liable to a civil penalty if the conduct occurs wholly outside Australia, and the conduct constituting the civil penalty provision taken to have been contravened occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

347.       For example, if a person has attempted to contravene the civil penalty provision in new subsection 245AB(1) (that is, they allowed an unlawful non-citizen to work) they are taken to have contravened that provision under new subsection 486ZD(2) which is inserted by item 24 below.  Even if the person was outside Australia when they attempted to allow the unlawful non-citizen to work, they will be caught by this limb of the provision if they intended the act of allowing the unlawful non-citizen to work to occur wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

Defences relating to contraventions of civil penalty provisions

348.       New subsection 245AM(3) provides that in civil proceedings relating to a primary contravention by a person, it is a defence if:

·         the conduct constituting the alleged primary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

·         the person is neither:

-           an Australian citizen; nor

-           a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

·         there is not in force in:

-           the foreign country where the conduct constituting the alleged primary contravention occurs; or

-           the part of the foreign country where the conduct constituting the alleged primary contravention occurs;

a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for such conduct.

349.       New subsection 245AM(4) provides that in civil proceedings relating to a contravention

(the ancillary contravention ) by a person of a civil penalty provision in this Subdivision because of section 486ZD, it is a defence if:

·         the conduct constituting the alleged ancillary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

·         the conduct ( the primary conduct ) constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and

·         the person is neither:

-           an Australian citizen; nor

-           a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and

·         there is not in force in:

-           the foreign country where the primary conduct occurs or is intended by the person to occur; or

-           the part of the foreign country where the primary conduct occurs or is intended by the person to occur;

a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for the primary conduct.

350.       The purpose of new subsections 245AM(3) and 245AM(4) is to provide for defences relating to contraventions of civil penalty provisions which are taken to have occurred under new subsection 245AM(1).

351.       For example, in relation to subsection 245AM(3), if a person is subject to a civil penalty order under subsection 245AM(2) relating to a contravention of subsection 245AB(1) in

Country X, they will have a defence if they are not an Australian citizen or a body corporate incorporated by or under an Australian law, and there is no pecuniary or criminal penalty in Country X for allowing an unlawful non-citizen to work.

352.       In relation to subsection 245AM(4), if a person has attempted to contravene the civil penalty provision in subsection 245AB(1) in Country X (and so is taken to have contravened that provision under new subsection 486ZD(2) which is inserted by item 24 below) paragraph 245AM(4)(a) will apply because the attempt to contravene subsection 245AB(1) has occurred wholly in a foreign country, but not on board an Australian aircraft or an Australian ship.  The person will have a defence if the act of allowing the unlawful non-citizen to work is intended by the person to occur wholly in Country X but not on board an Australian aircraft or an Australian ship, the person is not an Australian citizen nor a body corporate incorporated under an Australian law, and there is no pecuniary or criminal penalty in Country X for allowing an unlawful non-citizen to work.

353.       New subsection 245AM(5) provides that a defendant bears an evidential burden in relation to the matter in subsection 245AM(3) or 245AM(4).

354.       The purpose of this provision is to clarify that it is a matter for the defendant to establish the evidential burden in subsection 245AM(3) or 245AM(4). It is considered appropriate for the defendant to bear the evidential burden in subsection 245AM(3) or 245AM(4) because the issue of whether the conduct constituting the alleged primary contravention, or the conduct constituting the primary contravention to which the ancillary contravention relates has occurred wholly in a foreign country is a matter best within the knowledge of the defendant. Similarly, in relation to paragraph 245AM(4)(b), the question of whether the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly in a foreign country is something peculiarly within the knowledge of the defendant.

Attorney-General’s consent needed for certain proceedings

355.       New subsection 245AM(6) provides that civil proceedings relating to a contravention of a civil penalty provision in this Subdivision must not be commenced without the

Attorney-General’s written consent if:

·         the conduct constituting the alleged contravention occurs wholly in a foreign country; and

·         at the time of the alleged contravention, the person alleged to have contravened the provision is neither:

-           an Australian citizen; nor

-           a body corporate incorporated by or under a law of the Commonwealth or of a State or a Territory.

356.       The purpose of this provision is to require the Attorney-General to give his or her written consent to the commencement of civil proceedings relating to a contravention of a

work-related provision in Subdivision C of Division 12 of Part 2 in circumstances where the conduct constituting the alleged contravention occurs wholly in a foreign country, and at the time of the alleged contravention, the person is neither an Australian citizen nor a body corporate incorporated by or under an Australian law.

When conduct taken to occur partly in Australia

357.       New subsections 245AM(7) and 245AM(8) deal with when conduct is taken to occur partly in Australia. 

358.       New subsection 245AM(7) provides that for the purposes of this section, if a person sends a thing, or causes a thing to be sent:

·         from a point outside Australia to a point in Australia; or

·         from a point in Australia to a point outside Australia;

that conduct is taken to have occurred partly in Australia.

359.       The effect of this provision is to clarify that if a person sends something, or causes something to be sent, from somewhere outside Australia to somewhere in Australia, and from somewhere in Australia to somewhere outside Australia, that conduct is taken to have occurred partly in Australia for the purposes of new section 245AM.

360.       For example, if a referrer in Country X sends a letter to an employer in Australia, referring a worker for work with that employer, the letter has been sent from a place outside Australia to a place in Australia.  The conduct of that referral is taken to have occurred partly in Australia for the purposes of section 245AM.

361.       New subsection 245AM(8) provides that for the purposes of this section, if a person sends,

or causes to be sent, an electronic communication:

·         from a point outside Australia to a point in Australia; or

·         from a point in Australia to a point outside Australia

that conduct is taken to have occurred partly in Australia.

362.       The effect of this provision is to clarify that if a person sends, or causes to be sent, an electronic communication from somewhere outside Australia to somewhere in Australia, and from somewhere in Australia to somewhere outside Australia, that conduct is taken to have occurred partly in Australia for the purposes of new section 245AM.

363.       For example, if a referrer in Country X sends an e-mail to an employer in Australia, referring a worker for work with that employer, the e-mail has been sent from a place outside Australia to a place in Australia.  The conduct of that referral is taken to have occurred partly in Australia for the purposes of new section 245AM.

 

Definitions

364.       New subsection 245AM(9) provides definitions for the purposes of new section 245AM.  Subsection 245AM(9) provides that in this section:

·         Australian aircraft has the same meaning as in the Criminal Code.

·         Australian ship has the same meaning as in the Criminal Code .

·         electronic communication has the same meaning as in the Criminal Code .

·         foreign country has the same meaning as in the Criminal Code .

·         point has the same meaning as in section 16.2 of the Criminal Code .

·         primary contravention means a contravention of a civil penalty provision in this Subdivision other than because of section 486ZD.

·         resident of Australia has the same meaning as in the Criminal Code .

365.       The purpose of subsection 245AM(9) is to clarify that certain expressions used in that provision (with the exception of the expression “primary contravention”) have the same meaning as in the Criminal Code .

366.       The expression “primary contravention” refers to a contravention of a civil penalty provision in Subdivision C of Division 12 of Part 2 of the Act (that is, the new civil penalty provisions in subsections 245AB(5), 245AC(5), 245AE(5) and 245AEA(5)). 

However, the expression “primary contravention” does not refer to a situation in which a person is taken to have contravened one of those subsections in accordance with section 486ZD (ancillary contraventions) which is inserted by item 24 below.

Section 245AN                        Charge and trial for an aggravated offence

367.       Current section 245AK concerns the procedure to be observed by the prosecution when prosecuting a person for an aggravated offence.  Subsection 245AK(1) provides that if, on trial for an offence against section 245AB or 245AC, the prosecution intends to prove an aggravated offence, the charge must allege that the worker has been exploited.

368.       Current subsection 245AK(2) provides that if, on trial for an offence against

section 245AD or 245AE, the prosecution intends to prove an aggravated offence, the charge must allege either that:

·         the prospective worker has been or will be exploited in doing the work in relation to which he or she was referred; or

·         the prospective worker has been or will be exploited in doing other work for the person to whom he or she was referred.

369.       Current subsection 245AK(3) provides that if, on trial for an aggravated offence against sections 245AB, 245AC, 245AD or 245AE, the trier of fact is not satisfied that the defendant is guilty of an aggravated offence, but is otherwise satisfied that he or she is guilty of an offence against that section, it may find the defendant not guilty of the aggravated offence but guilty of an offence against that section.

370.       New section 245AN replaces current section 245AK. 

371.       New section 245AN sets out the procedure to be observed if a person has been charged with an aggravated offence in section 245AD or 245AEB.

372.       New subsection 245AN(1) provides that if the prosecution intends to prove an offence against subsection 245AD(1) or 245AD(2), the charge must allege that the worker referred to in that subsection has been exploited.

373.       The purpose of this provision is to clarify that, where the prosecution intends to prosecute a person for an offence against new subsection 245AD(1) or 245AD(2), the prosecution must put the defendant on notice of that fact by specifying in the charge that the worker has been exploited.

374.       New subsection 245AN(2) provides that if the prosecution intends to prove an offence against subsection 245AEB(1) or 245AEB(2), the charge must allege that the prospective worker referred to in that subsection has or will be exploited:

·         in doing the work in relation to which the prospective worker was referred; or

·         in doing other work for the person to whom the prospective worker was referred.

375.       The purpose of this provision is to clarify that, where the prosecution intends to prosecute a person for an offence against subsection 245AEB(1) or 245AEB(2), the prosecution must put the defendant on notice of that fact by specifying the matters referred to in paragraph 245AN(2)(a) or 245AN(2)(b) in the charge against the person.

376.       New subsection 245AN(3) provides that on a trial for an offence against section 245AD,

the trier of fact may find the defendant not guilty of that offence but guilty of an offence against section 245AB or 245AC if:

·         the trier of fact is not satisfied that the defendant is guilty of an offence against section 245AD; and

·         the trier of fact is satisfied that the defendant is guilty of an offence against section 245AB or 245AC; and

·         the defendant has been accorded procedural fairness in relation to that finding of guilt.

377.       The purpose of this provision is to ensure that a defendant who is charged with the aggravated offence in section 245AD and is not found guilty of that offence but is found guilty of the baseline offence in section 245AB or 245AC can nevertheless be convicted of the relevant baseline offence, provided the defendant has been given an opportunity to be heard in relation to that finding of guilt.

378.       New subsection 245AN(4) provides that on trial for an offence against section 245AEB,

the trier of fact may find the defendant not guilty of that offence but guilty of an offence against section 245AE or 245AEA if:

·         the trier of fact is not satisfied that the defendant is guilty of an offence against section 245AEB; and

·         the trier of fact is satisfied that the defendant is guilty of an offence against section 245AE or 245AEA; and

·         the defendant has been accorded procedural fairness in relation to that finding of guilt.

379.       The purpose of this provision is to ensure that a defendant who has been charged with an aggravated offence in new section 245AEB and is not found guilty of that offence but is found guilty of the baseline offence in new section 245AE or 245AEA can nevertheless be convicted of the relevant baseline offence, provided the defendant has been given an opportunity to be heard in relation to that finding of guilt.

Section 245AO            Treatment of partnerships

380.       New subsection 245AO(1) provides that this Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to a partnership as if it were a person, but with the changes set out in this section.

381.       The purpose of this provision is to make partners in a partnership liable for the work-related offences and work-related provisions in new Subdivision C of Division 12 of Part 2 of the Act in certain circumstances.

382.       New subsection 245AO(2) provides that an offence against new Subdivision C of Division 12 of Part 2 that would otherwise be committed by a partnership is taken to have been committed by each partner in the partnership, at the time the offence is committed, who:

·         did the relevant act; or

·         aided, abetted, counselled or procured the relevant act; or

·         was in any way knowingly concerned in, or party to, the relevant act

(whether directly or indirectly or whether by any act of the partner).

383.       New subsection 245AO(2) relates to criminal offences. It provides that where a work-related offence, under new Subdivision C of Division 12 of Part 2 of the Act, would have been committed by a partnership because of new subsection 245AO(1), each partner at the time the offence is committed is taken to have committed the offence if they did the relevant act,

or aided, abetted, counselled or procured the relevant act, or was in any way knowingly concerned in, or party to, the relevant act.

384.       The effect of this provision is that only the partners who did or were involved in the relevant act constituting the offence commit a work-related offence.  The maximum penalty that could be imposed on a partner is equivalent to the maximum penalty that could be imposed on an individual.

385.       New subsection 245AO(3) provides that a civil penalty provision in this Subdivision that would otherwise be contravened by a partnership is taken to have been contravened by each partner in the partnership, at the time of the conduct constituting the contravention, who:

·         engaged in the conduct; or

·         aided, abetted, counselled or procured the conduct; or

·         was in any way knowingly concerned in, or party to, the conduct

(whether directly or indirectly or whether by any act of the partner).

386.       New subsection 245AO(3) relates to civil penalty provisions. It provides that where a civil penalty provision in new Subdivision C of Division 12 (work-related provision) would have been contravened by a partnership because of subsection 245AO(1), each partner at the time of the contravention is taken to have contravened the civil penalty provision if they did the relevant act, or aided, abetted, counselled or procured the relevant act, or was in any way knowingly concerned in, or party to, the relevant act.

387.       The effect of this provision is that it is only the partners who did or were involved in the relevant act constituting the contravention who are liable to pay a pecuniary penalty ordered for contravention of a work-related provision .  The maximum penalty that could be imposed on a partner is equivalent to the maximum penalty that could be imposed on an individual.

Section 245AP             Treatment of unincorporated associations

388.       New subsection 245AP(1) provides that this Subdivision, and any other provisions of this Act to the extent that it relates to this Subdivision, apply to an unincorporated association as if it were a person, but with the changes set out in this section.

389.       The purpose of this provision is to make members of an unincorporated association’s committee of management liable for the work-related offences and work-related provisions in new Subdivision C of Division 12 of Part 2 of the Act in certain circumstances.

390.       New subsection 245AP(2) provides that an offence against

new Subdivision C of Division 12 of Part 2 that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the association’s committee of management, at the time the offence is committed, who:

·         did the relevant act; or

·         aided, abetted, counselled or procured the relevant act; or

·         was in any way knowingly concerned in, or party to, the relevant act

(whether directly or indirectly or whether by any act of the member).

391.       Subsection 5(1) of the Act provides that committee of management of an unincorporated associated means a body (however described) that governs, manages or conducts the affairs of the association.

392.       New subsection 245AP(2) relates to criminal offences. It provides that where a work-related offence under new Subdivision C of Division 12 would have been committed by an unincorporated association because of subsection 245AP(1), each member of the association’s committee of management at the time the offence is committed is taken to have committed the offence if they did the relevant act, or aided, abetted, counselled or procured the relevant act, or was in any way knowingly concerned in, or party to, the relevant act.

393.       The effect of this provision is that only the members of the unincorporated association’s committee of management who did or were involved in the relevant act constituting the offence commit a work-related offence.  The maximum penalty that could be imposed on a member is equivalent to the maximum penalty that could be imposed on an individual.

394.       New subsection 245AP(3) provides that a civil penalty provision in this Subdivision that would otherwise be contravened by an unincorporated association is taken to have been contravened by each member of the association’s committee of management, at the time of the conduct constituting the contravention, who:

·         engaged in the conduct; or

·         aided, abetted, counselled or procured the conduct; or

·         was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act of the member).

395.       New subsection 245AP(3) relates to civil penalty provisions.  It provides that where a civil penalty provision in new Subdivision C of Division 12 of Part 2 (work-related provision) would have been contravened by an unincorporated association because of

subsection 245AP(1), each member of the association’s committee of management at the time of the contravention is taken to have contravened the civil penalty provision if they did the relevant act, or aided, abetted, counselled or procured the relevant act, or was in any way knowingly concerned in, or party to, the relevant act.

396.       The effect of this provision is that it is only the members of the unincorporated association’s committee of management who did or were involved in the relevant act or omission constituting the contravention who are liable to pay a pecuniary penalty ordered for contravention of a work-related provision .  The maximum penalty that could be imposed on a member is equivalent to the maximum penalty that could be imposed on an individual.

Item 21           At the end of paragraphs 271(1)(a) to (g)

397.       This item adds the word “and” at the end of paragraphs 271(1)(a) to 271(1)(g) of the Act.

398.       Current section 271 sets out the things that are taken to be prima facie evidence of certain matters for the purposes of migration proceedings.  “Migration proceedings” is defined in current subsection 271(4) to mean:

·         proceedings in a court (including criminal proceedings) or the

Migration Review Tribunal:

-           under this Act or in relation to an offence against this Act; or

-           in relation to a deportation order; or

·         proceedings in the Refugee Review Tribunal under this Act; or

·         proceedings in the Administrative Appeals Tribunal under this Act.

399.       The purpose of this amendment is to ensure that paragraphs 271(1)(a) to 271(1)(g) are drafted consistently with paragraphs 271(1)(h), 271(1)(i), 271(1)(j) and 271(1)(k) (all of which end with the word “;and”).

Item 22           At the end of subsection 271(1)

400.       This item adds new paragraph (m) at the end of subsection 271(1) of the Act.

401.       New paragraph 271(1)(m) provides that a certificate signed by an officer stating:

·         whether or not a specified person used a specified computer system at a specified time, or during a specified period, to obtain information about another specified person; and

·         if the specified computer system was so used - the information about the other specified person that was provided by the system to the user at that time or during that period;

is prima facie evidence of the matters stated in the certificate.

402.       The purpose of this provision is to clarify that the use of a computer system prescribed by the Regulations to verify whether a person holds a visa or holds a visa subject to a work-related condition, and the information the system provided to the user about that person, is prima facie evidence of the matters in the certificate.

403.       The effect of this provision is that the Department or another party will be able to rely on checks of the Visa Entitlement Verification Online (VEVO) system to submit to the court, in proceedings, that a person did or did not verify the permission of a worker or a prospective worker to work in Australia and for this evidence to be taken as prima facie evidence of the fact.  Another party will also be able to rely on this evidence in the same way, obviating the need to keep separate records of work entitlements checks undertaken via the computer system.  This evidence can be rebutted in court.

Item 23           Subsection 271(4) (subparagraph (a)(i) of the definition of

migration proceedings )

404.       This item adds the words “or a contravention of a civil penalty provision” after the words “against this Act” in subparagraph 271(4)(a)(i) of the definition of “migration proceedings” in subsection 271(4) of the Act.

405.       The purpose of this provision is to amend the definition of “migration proceedings” in subsection 271(4) so that it extends to proceedings in a court for contravention of a civil penalty provision in Subdivision C of Division 12 of Part 2 of the Act. 

Item 24           Part 8D

 

406.       This item repeals Part 8D of the Act and substitutes it with new Part 8D - Civil penalties.  This item also inserts a new Part 8E - Investigation powers relating to work-related offences and provisions. 

Part 8D - Civil penalties

 

407.       This Part establishes a new framework by which civil penalty provisions may be enforced through applications for civil penalty orders.  It further revises the procedures for obtaining an order for a civil penalty in relation to an alleged contravention of a civil penalty provision.

408.       Currently, the only civil penalty provisions in the Act are in relation to breaching sponsorship obligations which are contained in Division 3A of Part 2 of the Act. 

As this Bill inserts new civil penalty provisions into the Act in relation to employer sanctions, Part 8D has been amended to reflect a modern approach to enforcing civil penalty provisions.  As a result, this item inserts a new Part 8D which adopts provisions endorsed by the Attorney-General’s Department for consistent use across Commonwealth legislation. 

409.       The new civil penalty framework inserted by this item w ill apply to civil penalty provisions in the Act generally.  That is, it will apply to both the new work-related provisions and the sponsorship civil penalty provisions and any other civil penalty provisions subsequently created.

Division 1 - Obtaining a civil penalty order

410.       This Division sets out the conditions under which a civil penalty order may be sought and enforced for contravention of a civil penalty provision. 

Section 486R               Civil penalty orders

 

411.       New section 486R sets out the civil penalty orders that may be applied for and made by a court; the things that a court must consider in making an order; and the rules of evidence which are to apply to the proceedings.

Application for order

 

412.       Current subsection 486R(1) provides that within 6 years of a person (the wrongdoer ) contravening a civil penalty provision, the Minister may apply to the Federal Court or the Federal Magistrates Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.

413.       New subsections 486R(1) and 486R(2) replace current subsection 486R(1).

414.       New subsection 486R(1) provides that the Minister may apply to an eligible court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.

415.       New subsection 486R(2) provides that the Minister must make the application within 6 years of the alleged contravention. 

416.       An eligible court is defined in subsection 5(1) of the Act as the Federal Court,

the Federal Magistrates Court, a District, County or Local Court, a magistrates court, or any other State or Territory court that is prescribed by the regulations.

417.       The purpose of this amendment is to provide the Minister with discretion as to which court he or she may apply to for a civil penalty order.  Currently, an application for a civil penalty order can only be made in the Federal Court and the Federal Magistrates Court while prosecutions of criminal offences arising from the same conduct could only be brought in State and Territory courts.  By conferring jurisdiction in respect of the civil penalty provisions on State and Territory Courts, in addition to the Federal Court and the

Federal Magistrates Court, there is the ability to commence civil penalty proceedings arising from the same conduct, in the same court, where a prosecution is withdrawn or dismissed and

vice-versa.

Eligible court may order person to pay pecuniary penalty

418.       Current subsection 486R(2) provides that if the court is satisfied that the wrongdoer has contravened a civil penalty provision, the court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the court determines is appropriate (but not more than the relevant amount specified for the provision). 

419.       New subsection 486R(3) replaces and retains the effect of current subsection 486(2) except that it substitutes the term “wrongdoer” with “person”. 

420.       New subsection 486R(3) provides that if the eligible court is satisfied that the person has contravened a civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate.

421.       The note to new subsection 486R(3) provides that subsection 486R(5) sets out the maximum penalty that the eligible court may order the person to pay. 

422.       New subsection 486R(4) provides that an order under subsection 486R(3) is a

civil penalty order .  

423.       The definition of civil penalty order , inserted by item 1 above, in subsection 5(1) provides that “civil penalty order” has the meaning given by subsection 486R(4). 

The purpose of this amendment is to clarify that a civil penalty order is made where an eligible court is satisfied that the person has contravened a civil penalty provision and the court orders the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate.

424.       A pecuniary penalty may be awarded for each contravention of a civil penalty provision.

425.       For example, in the context of the new work-related provisions, if an employer allowed or continued to allow three workers to work and the workers were all unlawful non-citizens, then this is at least three contraventions of new section 245AB.  The employer could then receive a total maximum penalty of 270 penalty units if they are an individual, or

1350 penalty units if they are a body corporate (see new section 486V in relation to joining actions for multiple contraventions of a civil penalty provision). 

Determining pecuniary penalty

426.       New subsection 486R(5) provides that the pecuniary penalty must not be more than:

·         if the person is a body corporate - 5 times the amount of the pecuniary penalty specified for the civil penalty provision; and

·         otherwise - the amount of the pecuniary penalty specified for the civil penalty provision.

427.       The purpose of new paragraph 486R(5)(a) is to set the maximum penalty that can be imposed on a body corporate which is 5 times the amount of the pecuniary penalty specified for the civil penalty provision.   Under new paragraph 486R(5)(b), if the person is not a

body corporate, the pecuniary penalty must not be more than the amount of the pecuniary penalty specified for the civil penalty provision. 

428.       The sponsorship civil penalty provisions have been amended by items 8 and 12 above so that they will only specify the pecuniary penalties for individuals. 

The work-related provisions inserted by item 17 above also only specify the pecuniary penalties for individuals.  Any future civil penalty provisions inserted into the Act would only need to specify the pecuniary penalty for individuals due to the effect of

new paragraph 486R(5)(a). 

429.       Current subsection 486R(3) provides that in determining the pecuniary penalty, the court must have regard to all relevant matters, including:

·         the nature and extent of the contravention; and

·         the nature and extent of any loss or damage suffered as a result of the contravention; and

·         the circumstances in which the contravention took place; and

·         whether the person has previously been found by a court in proceedings under this Act to have engaged in the same or similar conduct.

430.       New subsection 486R(6) provides that in determining the pecuniary penalty, the eligible court must take into account all relevant matters, including:

·         the nature and extent of the contravention; and

·         the nature and extent of any loss or damage suffered because of the contravention; and

·         the circumstances in which the contravention took place; and

·         whether the Department has taken any administrative action against the person in relation to the conduct constituting the contravention or any similar conduct; and

·         whether the person has been issued with an infringement notice under regulations made for the purposes of section 506A in relation to the conduct constituting the contravention or any similar conduct; and

·         whether the person has previously been found by a court in proceedings under this Act to have engaged in similar conduct.

431.       The purpose of new subsection 486R(6) is to broaden the range of matters a court must take into account when determining the pecuniary penalty. 

432.       By specifying that the eligible court must take into account whether the department has taken any administrative action against the person in relation to conduct constituting the contravention or any similar conduct, the Department would have to provide the court with relevant information about these matters so that it can consider them. 

The court would consider these matters and give them such weight as it sees fit.

433.       It is intended that administrative actions include formal actions taken by the Department specified in both policy documents and in the legislation.  This would include administrative Illegal Worker Warning Notices issued by the Department to employers. 

434.       For example, if an administrative Illegal Worker Warning Notice had been issued to an employer, evidence of this notice would have to be provided to the court during sentencing for the court to take such an administrative action into account in determining the pecuniary penalty.  From a policy perspective, specifying such matters means that persons are able to take their legal responsibilities and dealings with the Department more seriously.

435.       The list of matters included in new subsection 486R(6) are not exhaustive and a court must have regard to all relevant matters in determining the pecuniary penalty, regardless of whether they are expressly stated in new subsection 486R(6).

Section 486S                Additional rules relating to the sponsorship civil penalty provisions

 

436.       New section 486S provides for additional rules relating to the sponsorship civil penalty provisions.  New subsection 486S(1) provides that section 486S applies if an application for a civil penalty order against a person is made to an eligible court in relation to an alleged contravention of a civil penalty provision in Division 3A of Part 2 of the Act.

437.       Current subsections 486R(4), 486R(6) and  486R(7) only apply to the sponsorship civil penalty provisions for a breach of sponsorship obligations and are contained in current Part 8D.  As this Bill creates new work-related civil penalty provisions, and a new Part 8D is inserted, these additional rules relating to sponsorship civil penalty provisions are now

self-contained in a separate section.

438.       New section 486S does not apply to the work-related civil penalty provisions or any other future civil penalty provisions that are inserted into the Act.

Engaging in similar conduct

439.       Current subsection 486R(4) clarifies the meaning of “similar conduct” for the purposes of current paragraph 486R(3)(d) in relation to a contravention of a civil penalty provision under Division 3A of Part 2 of the Act (the sponsorship civil penalty provisions).

440.       Current subsection 486R(4) provides that for the purposes of paragraph 486R(3)(d), in relation to proceedings for contravention of a civil penalty provision in Division 3A of Part 2, a person is taken to have engaged in similar conduct if the person has failed to satisfy a sponsorship obligation that is different from the sponsorship obligation to which the proceedings relate.  However, this subsection does not limit the circumstances in which a person may be found to have engaged in similar conduct.

441.       New subsection 486S(2) provides that for the purposes of subsection 486R(6),

the person is taken to have engaged in similar conduct if the person has failed to satisfy a sponsorship obligation that is different from the sponsorship obligation to which the application relates. 

442.       The two civil penalty provisions included in Division 3A of Part 2 of the Act relate to failure by an approved sponsor or former approved sponsor to satisfy a sponsorship obligation (section 140Q).  These obligations are prescribed in Division 2.19 of Part 2A of the Regulations.  New subsection 486S(2) clarifies that in this context “similar conduct” includes where a person has previously been found by a court to have failed to satisfy a sponsorship obligation which is different from the sponsorship obligation to which the application relates.

443.       New subsection 486S(3) provides that new subsection 486S(2) does not limit the circumstances in which a person may be found to have engaged in similar conduct. 

444.       The purpose of this amendment is to put beyond doubt that the meaning of “similar conduct” is not confined to the meaning contained in new subsection 486S(2).    

Similar conduct can refer to a sponsorship obligation that is similar to the sponsorship obligation to which the application refers. 

 

Order to pay a required amount

445.       Current subsection 486R(6) is a restitution provision.  It allows the court to make an order, as part of civil penalty proceedings, that an amount be paid to the Commonwealth, a State or Territory or another person, which is an amount of a kind prescribed in the regulations, that is required to be paid to the Commonwealth, a State or Territory or another person

(as the case may be) and the amount remains unpaid after the time for payment.  

An order under current subsection 486R(6) cannot be made if proceedings to recover the amount (which is the subject of the order) have been brought under current section 140S.

446.       New subsection 486S(4) replaces current subsection 486R(6) and retains the same effect of current subsection 486R(6).  New paragraph 486S(4)(a) clarifies that the amount of a kind must be prescribed in the regulations made for the purposes of subsection 140S(1).

447.       Subsections 140S(1) and 140S(2) provide that if a person who is or was an approved sponsor is required to pay an amount of a kind prescribed in the regulations to the Commonwealth, a State or a Territory or another person (the payee ) in relation to a sponsorship obligation, then the payee may recover the amount as a debt due in an eligible court.

448.       The benefit of an order under new subsection 486S(4) is that a person to whom money is owed in relation to a sponsorship obligation, or in relation to another amount of a kind prescribed by the Regulations, does not bear the expense and inconvenience of initiating separate court proceedings to recover the money under section 140S.

449.       If, however, the Minister does not commence civil penalty proceedings, or does commence civil penalty proceedings and no order under new subsection 486S(4) is made by the court as part of those proceedings, then a person will need to pursue an action under section 140S to recover the money.

450.       If an action under section 140S has already been commenced in relation to the amount at the time the order under new subsection 486S(4) is being considered, then an order under new subsection 486S(4) cannot be made, and liability to pay the amount will be decided through the proceedings that have already commenced under section 140S.

This will ensure that two orders are not made in relation to the same amount.

451.       New subsection 140S(3) as amended by item 11 above clarifies that an amount may still be recovered under section 140S if civil penalty proceedings are brought under new Part 8D and discontinued or completed without the court making an order of a kind referred to in new subsection 486S(4) in relation to the amount.

452.       New subsection 486S(5) replaces and retains the effect of current subsection 486R(7). 

453.       Current subsection 486R(7) provides that if a court makes an order under subsection 486R(6):

·          an application may be made under subsection 140SA(1), and an order made under subsection 140SA(2), as if proceedings for an order under this section were proceedings under section 140S; and

·          section 140SB applies as if the amount ordered under subsection (6) of this section were a judgment debt of the eligible court made under section 140S.

454.       New subsection 486S(5) relates to the interest payable on an amount ordered to be paid under new subsection 486R(6).

455.       New paragraph 486S(5)(a) provides that if the eligible court makes an order under subsection 486S(4), an application may be made, and an order may be made, under

subsection 140SA(2) as if proceedings for a civil penalty order were proceedings under section 140S.  Current section 140SA broadly provides that, upon application, a court may impose interest upon an amount ordered to be paid, and sets out the amount of interest which can be imposed.

456.       New paragraph 486S(5)(b) provides that if the eligible court makes an order under subsection 486S(4), section 140SB applies as if the amount ordered to be paid under subsection 486S(4) were a judgment debt made.  S ection 140SB provides that a judgment debt under a judgment of an eligible court under section 140S carries interest from the date as of which the judgment is entered, and at the rate that would apply under section 52 of the Federal Court of Australia Act 1976 as if the debt were a judgment debt to which that section applies.

Section 486T               Civil enforcement of penalty

 

457.       Current section 486T provides that if the Federal Court or the Federal Magistrates Court orders a person to pay a pecuniary penalty, the Commonwealth may enforce the order as if it were a judgment of the relevant court.

458.       New subsection 486T(1) provides that a pecuniary penalty is a debt due to the Commonwealth.  New subsection 486T(2) provides that the Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person.  The debt arising from the order is taken to be a judgment debt.

459.       As with current section 486T, the effect of new section 486T is that if an eligible court orders payment of a civil penalty, the Commonwealth may enforce the order as if it were a judgment of the relevant court.  This effect has not changed from the operation of current section 486T. 

Section 486U               Conduct contravening more than one civil penalty provision

460.       New section 486U is a new provision. 

461.       New subsection 486U(1) provides that if conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions. 

However, under new subsection 486U(2), the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct.

462.       The effect of new section 486U is that where conduct contravenes 2 or more civil penalty provisions, proceedings may be instituted against a person in relation to any of those provisions but the person will only be liable for one pecuniary penalty in relation to the same conduct.  This provision allows for a more efficient and effective use of the court’s resources in relation to handling civil penalty proceedings. 

Section 486V               Multiple contraventions

463.       New section 486V replaces current section 486ZA. 

464.       New subsection 486V(1) provides that an eligible court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of,

a series of contraventions of the same or a similar character.

465.       New subsection 486V(2) provides that however, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.

466.       For example, if an employer allowed or continued to allow 3 workers to work and the workers were all unlawful non-citizens, then the employer may contravene new section 245AB (inserted by item 17 above) 3 times if they did not take reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen.  

467.       Subsection 245AB(5) is a civil penalty provision which is contravened if a person allows, or continues to allow, another person (the worker ) to work and the worker is an unlawful

non-citizen.  The maximum penalty specified for contravening this civil penalty provision is 90 penalty units for individuals (and 450 penalty units for bodies corporate). 

468.       Under new section 486V, proceedings for an order in relation to all three alleged contraventions could be joined, and a single order made in relation to all three contraventions.  The employer could then only receive a total maximum penalty of 270 penalty units if they are an individual, or 1350 penalty units if they are a body corporate.

This is because, under subsection 486V(2), the penalty must not exceed the sum of the maximum penalty that could be ordered if a separate penalty were ordered for each contravention (see new subsection 486R(3) in relation to eligible courts ordering persons to pay pecuniary penalties). 

Section 486W              Proceedings may be heard together

 

469.       New section 486W provides that an eligible court may direct that 2 or more proceedings for civil penalty orders are to be heard together.

470.       The effect of new section 486W is that an eligible court can direct that 2 or more proceedings for civil penalty orders be heard at the same time.  Doing so may be in the interests of efficient use of the court’s time.  This might be done, for example, where the proceedings involve alleged contraventions by different parties in the supply chain in relation to particular employment relationships. 

Section 486X               Civil evidence and procedure rules for civil penalty orders

471.       Current subsection 486R(5) provides that the court must apply the rules of evidence and procedure for civil matters when hearing and determining an application for an order under current section 486R. 

472.       New section 486X replaces current subsection 486R(5) and provides that an eligible court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.

Section 486Y                Requirement for persons to assist in applications for civil penalty orders

473.       New section 486Y replaces current section 486U.

474.       Current section 486U concerns the gathering of information, from persons other than the alleged wrongdoer, which is relevant to existing or potential civil penalty proceedings against the alleged wrongdoer.  New section 486Y deals with the same subject-matter, but there are differences between the provisions.

 

475.       New subsection 486Y(1) provides that a person commits an offence if:

·         the Secretary requests, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order; and

·         the person fails to comply with the request.

476.       Current subsection 486U(5) provides that if a person fails to give assistance as required under subsection 486U(2), the person commits an offence against this subsection.

The maximum penalty for failure to give assistance as required under current subsection 486U(2) is 30 penalty units.

477.       This penalty must also be read with subsection 5(1) of the Act which provides that

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.  

Section 4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty unit equates.  Currently, 1 penalty unit is equal to $110.  Accordingly, the maximum penalty equates to $3,300 for an individual. 

478.       New subsection 486Y(1) provides that the maximum penalty for an offence under new subsection 486Y(1) is 10 penalty units.

479.       This penalty must also be read with subsection 5(1) of the Act which provides that

penalty unit has the meaning given by section 4AA of the Crimes Act 1914. 

Section 4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty unit equates.  Currently, 1 penalty unit is equal to $110.  Accordingly, the maximum penalty equates to $1,100 for an individual. 

480.        This penalty has been adjusted to align with the requirements of A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.    

481.       New subsection 486Y(2) provides that a request under subsection 486Y(1) for a person to give all reasonable assistance in connection with an application for a civil penalty order is not a legislative instrument.  This provision is declaratory and is not intended as an exemption to the Legislative Instruments Act 2003 but is included to assist readers in the interpretation of this provision.

482.       New subsection 486Y(3) provides that the Secretary can request a person to assist under subsection 486Y(1) only if:

·         it appears to the Secretary that the person is unlikely to have:

                                                              i.       contravened the civil penalty provision to which the application relates; or

                                                            ii.       committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and

·         the Secretary suspects or believes that the person can give the information relevant to the application.

483.       The effect of this amendment is that the Secretary cannot request assistance from a person to give reasonable assistance in connection with an application for a civil penalty order if that person is the subject of that application or has committed an offence constituted by the same or substantially same conduct as the conduct to which that application relates. 

Further, the Secretary can only request information from persons where the Secretary suspects or believes that those persons can give information relevant to the application.

484.       New subsection 486Y(4) clarifies that the Secretary cannot request a person to assist under subsection 486Y(1) if the person is or has been a lawyer for the person suspected of contravening the civil penalty provision to which the application relates. 

A lawyer is defined in subsection 5(1) of the Act to mean a barrister, a solicitor, a barrister and solicitor, or a legal practitioner of the High Court or of the Supreme Court of a State

or Territory.

485.       New subsection 486Y(5) provides that an eligible court may order a person to comply with a request under subsection 486Y(1) in a specified way.  Only the Secretary may apply to the eligible court for an order under new subsection 486Y(5). 

486.       Examples of specified ways may include a person giving oral evidence in a civil proceeding or signing an affidavit. 

487.       New subsection 486Y(6) provides that for the purposes of this section, it does not matter whether the application for the civil penalty order has actually been made. 

488.       The effect of this amendment is that a Secretary can require persons to assist in preparing an application for a civil penalty order in order to gather relevant information, regardless of whether an application for a civil penalty order has been made.

489.       An offence under subsection 486Y(1) is not an offence of strict liability and therefore, the fault elements set out in Division 5 of the Criminal Code will apply.

Division 2 - Civil proceedings and criminal proceedings

490.       This Division explains and clarifies the interaction between proceedings for civil penalty orders and criminal proceedings, in relation to the same conduct. 

491.       The Commonwealth will decide in each particular case whether to prosecute a person for a fault-based offence, or whether to bring proceedings for a civil penalty order. 

If a person is prosecuted for a fault-based offence, and convicted of that offence, a person could not be pursued for civil penalties in relation to the same, or substantially the same conduct as the conduct constituting the offence.  However, proceedings for a contravention of a civil penalty provision could be brought prior to a person being prosecuted for a criminal offence.

Section 486Z               Civil proceedings after criminal proceedings

492.       New section 486Z replaces and retains the effect of current section 486V. 

493.       New section 486Z provides that an eligible court may not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.

494.       The effect of new section 486Z is that where a person is convicted of a criminal offence for conduct under this Act, an eligible court cannot make a civil penalty order against the person for contravention of a civil penalty provision for conduct that is the same, or substantially the same, as the conduct constituting the contravention.  New section 486Z ensures that a person who is convicted of a criminal offence will not face a pecuniary penalty in relation to substantially the same conduct as that which constituted the offence.

Section 486ZA             Criminal proceedings during civil proceedings

495.       New section 486ZA replaces current section 486W and retains the effect of that provision.

496.       New subsection 486ZA(1) provides that proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:

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

·         the offence is constituted by conduct that is the same, or substantially the same,

as the conduct alleged to constitute the contravention.

497.       New subsection 486ZA(2) provides that the proceedings for the civil penalty order may be resumed if the person is not convicted of the offence.  Otherwise, the proceedings are dismissed.

498.       The effect of this amendment is that if criminal proceedings are underway or commence for an offence under this Act, any proceedings for a civil penalty order against the same person and in relation to conduct that is the same, or substantially the same, are stayed. 

The civil penalty proceedings can be resumed if the person is not convicted of the criminal offence.

Section 486ZB             Criminal proceedings after civil proceedings

499.       Current section 486X provides that if a person has been ordered to pay a pecuniary penalty for a contravention of a civil penalty provision, criminal proceedings may not be commenced against the person in relation to substantially the same conduct. 

500.       New section 486ZB provides that criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person in relation to the contravention.

501.       New section 486ZB reverses current section 486X in that it allows criminal proceedings to be commenced against a person in relation to the same, or substantially the same conduct, that would constitute a contravention of a civil penalty provision, regardless of whether a civil penalty order has been made against that person in relation to the contravention. 

502.       New section 486ZB is consistent with similar provisions in other Commonwealth legislation.  The purpose of this provision is to provide the Department with the ability to commence criminal proceedings if and when new evidence arises in relation to the same or substantially the same conduct, even if a civil penalty order has been made against the person in relation to the contravention.  This evidence may indicate that a more serious contravention of the

work-related provisions has occurred.  In these circumstances, it may be more appropriate for the Department to seek a criminal sanction in addition to a civil penalty order, especially where such evidence suggests exploitation may have allegedly occurred.  

 

 

Section 486ZC             Evidence given in civil proceedings not admissible in criminal proceedings

503.       New section 486ZC replaces current section 486Y and concerns evidence of information given, or evidence of documents produced, by a person in civil penalty proceedings.

504.       New subsection 486ZC(1) provides that evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:

·         the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and

·         the conduct alleged to constitute the offence is the same, or substantially the same,

as the conduct alleged to constitute the contravention.

505.        However, new subsection 486ZC(2) provides that subsection 486ZC(1) does not apply to criminal proceedings in relation to falsity of evidence given by the individual in the proceedings for the civil penalty order.

506.       The purpose of this provision is to prevent documents or information being used against an individual in criminal proceedings if that information or those documents have been given in the context of proceedings for a civil penalty order against the individual in respect of the same or substantially the same conduct.

Division 3 - Miscellaneous

507.       This Division sets out miscellaneous matters relevant to civil penalty provisions.

Section 486ZD                        Ancillary contravention of civil penalty provisions

508.       Current section 486S provides that a person involved in a contravention of a civil penalty provision is to be treated as having contravened that provision.

The scope of involvement comprises aiding, abetting, counselling, procuring, or inducing (whether by threats, promises or otherwise) such a contravention as well as conspiring with others to contravene a civil penalty provision.

509.       New section 486ZD replaces current section 486S and provides that a person must not:

·         attempt to contravene a civil penalty provision;

·         aid, abet, counsel or procure a contravention of a civil penalty provision;

·         induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or

·         be in any way, directly or indirectly, knowingly concerned in, or party to,

a contravention of a civil penalty provision; or

·         conspire with others to effect a contravention of a civil penalty provision.

510.       The note to new section 486ZD provides that section 486ZF

(which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to this section. 

511.       New section 486ZD creates a mechanism to establish secondary liability for a contravention of a civil penalty provision in the Act.  For example, new paragraph 486ZD(1)(a) extends liability to a person who did not contravene the civil penalty provision but attempted to do so.  

512.       To establish secondary liability under new section 486ZD, an element of “fault” needs to be proven.  This is not the case with establishing primary liability in either existing sponsorship civil penalty provisions or the new work-related civil penalty provisions

(the primary civil penalty provisions).  For example, although proof of knowledge will be unnecessary for a principal contravener (i.e. anyone directly involved in a chain in an employment relationship), it will be necessary to prove knowledge on the part of any person who, for example, is alleged to have aided or abetted the contravention of the primary civil penalty provision. 

513.       New subsection 486ZD(2) provides that a person who contravenes subsection 486ZD(1) in relation to a civil penalty provision is taken to have contravened the provision. 

Therefore, the pecuniary penalty that could be ordered for a contravention of new section 486ZD would be specified in the primary civil penalty provision. 

Section 486ZE             Mistake of Fact           

514.       New section 486ZE is a new provision. 

515.       New subsection 486ZE(1) provides that a person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if:

·         at or before the time of the conduct constituting the contravention, the person:

-           considered whether or not facts existed; and

-           was under a mistaken but reasonable belief about those facts; and

·         had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.

516.       New subsection 486ZE(2) provides that for the purposes of subsection 486ZE(1),

a person may be regarded as having considered whether or not facts existed if:

·         the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and

·         the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.

517.       New subsection 486ZE(3) provides that a person who wishes to rely on subsections 487ZE(1) or 486ZE(2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.

518.       The effect of this new provision is that it provides that a person will not be liable for a civil penalty if they can show that they considered whether or not facts existed and were under a mistaken but reasonable belief about the facts surrounding a contravention, and had a correct understanding of the facts existed, a contravention of the civil penalty provision would not have occurred. 

519.       This provision provides that the circumstances include where a person reasonably believes the circumstances in the present situation to be the same as those in a past situation which did not constitute a contravention.

520.       This provision requires a person to prove their own mistake of fact on the balance of probabilities.  This is because the defendant in civil penalty proceedings will be much better placed to present evidence about their state of mind with respect to having a mistaken belief.

521.       An example of a situation where the mistake of fact defence could be used is where an employer cites an Australian passport to verify that a worker is an Australian citizen and is therefore able to work in Australia.  It may then come to the attention of the Department that the worker is actually an unlawful non-citizen.  The Department may decide to commence civil penalty proceedings against the employer alleging that the employer allowed an unlawful non-citizen to work in contravention of new section 245AB. 

522.       During civil penalty proceedings in relation to the alleged contravention of section 245AB, the defendant could raise the mistake of fact defence.  To establish the defence, the defendant would need to satisfy all the elements in subsections 486ZE(1) and 486ZE(2). 

For example, they would need to show that at or before the time the employer allowed the unlawful non-citizen to work, they considered whether or not the worker was an unlawful non-citizen and was under a mistaken but reasonable belief about that fact. 

They might have done so by asking the worker to show evidence of Australian citizenship (such as an Australian passport) and they would have been under the mistaken

(but reasonable) belief that the person was an Australian citizen on the basis of having sighted an Australian passport produced by the person.  Further, had the worker been an Australian citizen the employer would not have contravened section 245AB by allowing them to work.

Section 486ZF             State of Mind

523.       New section 486ZF is a new provision.  Subsection 486ZF(1) provides that in proceedings for a civil penalty order against a person for a contravention of a civil penalty provision

(other than subsection 245AK(2)), it is not necessary to prove:

·         the person’s intention; or

·         the person’s knowledge; or

·         the person’s recklessness; or

·         the person’s negligence; or

·         any other state of mind of the person.

524.       New subsection 486ZF(2) provides that subsection 486ZF(1) does not apply to the extent that the proceedings relate to a contravention of new subsection 486ZD(1)

(which is about ancillary contraventions of civil penalty provisions).

525.       New subsection 486ZF(3) provides that subsection 486ZF(1) does not affect the operation of new section 486ZE (which is about mistake of fact).

526.       The effect of new section 486ZF is that it is not necessary to prove a person’s intention, knowledge, recklessness, negligence or any other state of mind of the person in order to prove the person’s contravention of a civil penalty provision.

527.       However, this new provision does not apply to subsection 245AK(2)

(which is about civil liability of executive officers of bodies corporate) and proceedings relating to a contravention of section 486ZD (which is about ancillary contraventions of civil penalty provisions).  Further, this provision does not affect the operation of section 486ZE (which is about mistake of fact).

528.       The effect of new section 486ZF is that, subject to limited exceptions, it is not necessary to prove the person’s state of mind in proceedings for a civil penalty order for a person for contravention of a civil penalty provision.

Section 486ZG            Civil double jeopardy

529.       New section 486ZG replaces and replicates current section 486Z. 

530.       New section 486ZG provides that if a person is ordered to pay a pecuniary penalty for contravening a civil penalty provision in respect of particular conduct, the person is not liable to a pecuniary penalty under some other provision of a law of the Commonwealth in respect of that conduct.

531.       However, under new section 486ZB, criminal proceedings may be commenced against a person and a person could be convicted of an offence in respect of the same, or substantially the same, conduct as the conduct that constituted a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person in relation to that contravention.      

Part 8E - Investigation powers relating to work-related offences and provisions



532.       This Part deals with the powers of officers who are authorised to investigate suspected contraventions of work-related offences and work-related provisions. 

Part 8E creates a regime under which warrants to search premises and seize evidence may be issued, and certain authorised officers may be appointed to execute warrants, in order to enforce the requirements of the Bill.  The regime includes the ability to enter and search premises with a warrant, and to seize evidence to support investigation of suspected

work-related offences or contraventions of work-related provisions. 

The provisions of the Bill also empower authorised officers to ask questions, and to seek production of documents. 

533.       This Part allows the Secretary to require a person to give information or produce documents relevant to a possible work-related offence or a possible contravention of a

work-related provision.  It
provides that the information given or documents produced by a person can be admissible in evidence against them in civil proceedings for a civil penalty order for an alleged contravention of a work-related provision

(and not in criminal proceedings for a work-related offence).

534.       This Part also contains safeguards and obligations to which authorised officers must adhere when exercising their powers.  These include that authorised officers must provide details of a warrant to occupiers of premises, and must announce themselves before entering premises.  The occupiers of premises which are entered and searched will also have responsibilities under the legislation.  The legislation requires seized items to be handled in a particular way, and provides for the circumstances in which seized items will be returned to their owner.  Provisions in this Part are consistent with Chapters 9 and 10 of A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.    

Division 1 - Preliminary

535.       This Division sets out defined terms referred to in Part 8E.

 S ection 487A              Definitions

536.       New section 487A defines the following terms for the purposes of new Part 8E. 

537.       Evidential material means:

·         in relation to a work-related offence:

-           a thing with respect to which the offence has been committed or is reasonably suspected of having been committed; or

-           a thing that it is reasonably suspected will afford evidence as to the commission of the offence; or

-           a thing that is reasonably suspected of being intended to be used for the purpose of committing the offence; or

·         in relation to a contravention of a work-related provision:

-           a thing with respect to which the provision has been contravened or is reasonably suspected of having been contravened; or

-           a thing that it is reasonably suspected will afford evidence as to the contravention of the provision; or

-           a thing that is reasonably suspected of being intended to be used for the purpose of contravening the provision.

538.       Issuing officer means:

·                     a magistrate; or

·         a Federal Magistrate; or

·         a Judge of the Federal Court.

539.       The purpose of this definition is to make clear who may issue a warrant under new section 487ZC.  The note to the definition of issuing officer states that for conferral of powers on an issuing officer, see section 487ZH.

540.       Occupier , in relation to premises comprising a vehicle or vessel, means the person apparently in charge of the vehicle or vessel.

541.       Person assisting has the meaning given by section 487H.

542.       Premises includes the following:

·         a structure, building, vehicle or vessel;

·         a place (whether or not enclosed or built on);

·         a part of a thing referred to in paragraph (a) or (b).

543.       Related provision means a work-related offence or work-related provision.

544.       Search powers has the meaning given by sections 487E, 487F and 487G.

545.       Search warrant means:

·         a warrant issued by an issuing officer under section 487ZC; or

·         a warrant signed by an issuing officer under section 487ZD.

546.       Work-related offence means :

·         an offence against Subdivision C of Division 12 of Part 2; or

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

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

547.       Work-related provision means a civil penalty provision in Subdivision C of Division 12 of Part 2.

Division 2 - Requiring persons to give information or produce documents

548.       This Division sets out provisions relating to a written notice given by the Secretary requiring persons to give information or produce documents. 

Section 487B               Secretary may require a person to give information or produce a document

549.       New section 487B creates a notice to produce power.  Under new subsection 487B(1), if the Secretary has reason to believe that a person has information or a document that is relevant to a possible work-related offence or a possible contravention of a work-related provision (defined in new section 487A), the Secretary may, by written notice given to the person, require the person to give the information, or produce the document to an authorised officer.

Content of notice

550.       New subsection 487B(2) sets out what must be included in a notice issued under new subsection 487B(1).  New paragraph 487B(2)(a) provides that the notice must specify the period (which must be at least 14 days after the notice is given to the person) within which the person is required to comply with the notice. 

551.       Under new paragraph 487B(2)(b), the notice must specify how the information or document must be given by a person who has been issued with a notice. 

For example, if the notice is to require the person to appear before a specified authorised officer to give the relevant information or produce the relevant documents, it must specify a time and place at which the person must appear under new paragraph 487B(2)(b). 

552.       Under new paragraph 487B(2)(c), the notice must set out the effect of subsection 487B(3) which is that a person commits an offence if they fail to comply with the notice. 

Further, the notice must set out the effect of sections 137.1 and 137.2 of the Criminal Code .  Section 137.1 of the Criminal Code creates an offence for providing false or misleading information and section 137.2 creates an offence for providing false or misleading documents.

553.       The purpose of subsections 487B(1) and 487B(2) is to provide the Secretary of the Department with a power to require a recipient to provide documents or information that the Secretary has reason to believe are relevant to a possible work-related offence or a possible contravention of a work-related provision at least 14 days after the notice is given. 

While 14 days is the minimum amount of time the person must be given to respond to the notice, the person can be given a longer period within which to respond.

Offence

554.       New subsection 487B(3) provides that a person commits an offence if they fail to comply with the notice issued under new subsection 487B(1).  The maximum penalty for this offence is 30 penalty units.

555.       This penalty must also be read with subsection 5(1) of the Act which provides that

penalty unit has the meaning given by section 4AA of the Crimes Act 1914. 

Section 4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty unit equates.  Currently, 1 penalty unit is equal to $110.  Accordingly, the maximum penalty equates to $3,300 for an individual. 

556.       The maximum penalty for this strict liability offence is in accordance with the recommended penalties indicated in Chapter 2 and Chapter 9 of A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

557.       New subsection 487B(4) provides that an offence against new subsection 487B(3) is an offence of strict liability.  Therefore, a person who is given a notice under new subsection 487B(1) and fails to comply with the notice, commits an offence of strict liability. 

The note to new subsection 487B(4) refers the reader to section 6.1 of the Criminal Code for strict liability. 

558.       However, under new subsection 487B(5), a person does not commit an offence under new subsection 487B(3) to the extent to which they are not capable of complying with the notice.  The note to new subsection 487B(5) refers the reader to subsection 13.3(3) of the

Criminal Code and clarifies that a defendant bears an evidential burden in relation to the matter in this subsection.

559.       The purpose of applying strict liability to this offence is to significantly enhance compliance with a notice to require persons to give information or produce documents under

section 487B that is relevant to a possible work-related offence or a possible contravention of a work-related provision as defined in new section 487A. 

560.       The effect of applying strict liability to an offence under new subsection 487B(1) is that the prosecution is not required to prove fault in a situation where a person does not comply with a notice issued under new subsection 487B(1).  This provision puts a burden on the defendant to show something to escape conviction.

561.       It is considered appropriate to place the evidential burden on the defendant in this context because the question of whether, and the extent to whether, the defendant is capable of complying with the notice is something peculiarly within the knowledge of the defendant.

 

 

 

Section 487C               Self-incrimination

 

562.       New subsection 487C(1) provides that a person is not excused from giving information or producing a document under section 487B on the ground that the information or the production of the document might tend to incriminate the person or expose the person to a penalty.

563.       The effect of new subsection 487C(1) is that it removes a recipient’s privilege against refusing to provide documents or information under new section 487B on the grounds that it might tend to incriminate them or expose them to a penalty. 

That is to say, new subsection 487C(1) abrogates the privilege against self-incrimination. 

564.       New subsection 487C(2) provides that however, in the case of an individual:

·         the information given or document produced; and

·         giving the information or producing the document; and

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

are not admissible in evidence against the individual:

·         in criminal proceedings (other than proceedings for an offence against

section 137.1 or 137.2 of the Criminal Code that relates to

Subdivision C of Division 12 of Part 2 of this Act); or

·         in civil proceedings (other than proceedings for a civil penalty order for an alleged contravention of a work-related provision).

565.       Subsection 487C(2) protects individuals from information given or documents produced in response to a notice under new section 487B from being admissible in evidence against them in criminal proceedings (except for certain offences under the Criminal Code) and the majority of civil penalty proceedings.  It does not, however, protect individuals from the document or information being admissible in evidence against them in proceedings for a civil penalty order for an alleged contravention of a work-related provision.

566.       In the context of work-related provisions, there would be occasions when the only persons who hold relevant documents and information are parties who are suspected of contravening the work-related provisions.  Allowing information or documents obtained from a person, in response to a notice to produce, to be admissible in evidence in work-related civil penalty proceedings against that person will enable the Department to effectively enforce the new work-related provisions.   New paragraph 487C(2)(e) will not adversely impact on a person who is doing the right thing, such as a person who can establish a statutory defence to a

work-related provision.

567.       This approach is a departure from standard practice in relation to handling of

self-incrimination but has been accepted by the Attorney-General’s Department. 

As noted above, the privilege against self-incrimination is only being removed in relation to proceedings for a civil penalty order for an alleged contravention of a work-related provision and the protection will still remain in relation to all other civil penalty proceedings. 

Further, there is no abrogation of legal professional privilege in new section 487B.  

 

Division 3 - Search Warrants

568.       This Division sets out the search powers that may be exercised by authorised officers, or persons assisting them, in the execution of a warrant or when entering premises with consent.

Subdivision A - Search powers

Section 487D               Authorised officer may enter premises by consent or under a search warrant

 

569.       New subsection 487D(1) provides that if an authorised officer reasonably suspects that there may be evidential material on any premises, the authorised officer may enter the premises and exercise the search powers.

570.       However, under subsection 487D(2), an authorised officer is not authorised to enter the premises unless:

·         the occupier of the premises has consented to the entry and the authorised officer has shown his or her identity card if required by the occupier; or

·         the entry is made under a search warrant.

571.       The note to new section 487D provides that if entry to the premises is with the occupier’s consent, the authorised officer must leave the premises if the consent ceases to have effect (see section 487L).

572.       The effect of section 487D is that it provides an authorised officer with the power to enter and search premises, when they reasonably suspect that there may be evidential material on any premises, if they gain consent from the occupier of the premises or they have a search warrant allowing them to enter without permission.

573.       Evidential material, occupier, person assisting, premises and search warrant are defined terms in new section 487A of Division 1 of new Part 8E.

574.       An authorised officer is defined in subsection 5(1) as an officer authorised in writing by the Minister or the Secretary for the purposes of that provision. 

For the purposes of new Division 2 of new Part 8E, an authorised officer is one that has received accredited compliance training.  These training requirements are outlined in policy documents and will be updated frequently based on accreditation requirements.

575.       As with the power to detain an unlawful non-citizen in section 189 of the Act, the power to enter premises and exercise the search powers under new section 487D will only be exercised by appropriately trained and accredited compliance officers, and not by other officers of the Department.   

Section 487E               Search powers of authorised officers

 

576.       New section 487E sets out the search powers that an authorised officer may exercise in relation to premises under new section 487D.  These powers are:

·         if entry to the premises is with the occupier’s consent - the power to search the premises and any thing on the premises for the evidential material the authorised officer reasonably suspects may be on the premises;

·         if entry to the premises is under a search warrant:

-           the power to search the premises, and any thing on the premises, for the kind of evidential material specified in the warrant; and

-           the power to seize evidential material of that kind if the authorised officer finds it on the premises;

·         the power to inspect, examine, take measurements of, conduct tests on or take samples of evidential material referred to in paragraph 487E(a) or 487E(b);

·         the power to make any still or moving image or any recording of the premises or evidential material referred to in paragraph 487E(a) or 487E(b);

·         the power to take onto the premises such equipment and materials as the authorised officer requires for the purpose of exercising powers in relation to the premises;

·         the powers set out in subsections 487F(1) and 487F(2) and section 487G.

577.       The search powers in new paragraph 487E(a) are more limited than the powers granted under a search warrant, to ensure that proper procedure is followed when enforcing the legislation.  It recognises the fact that a wider range of powers can be exercised by an authorised officer who obtains entry to premises under a search warrant than by an authorised officer who gains entry to premises with the consent of the occupier (specifically, the power to seize material).

578.        If an authorised officer enters premises under a warrant and exercises search powers under a warrant under new paragraph 487E(b), they must act in compliance with the terms of the warrant.  This means they can search the premises for the types of evidence that are specified in the warrant, and seize any such evidential material that is found.

Section 487F               Powers relating to electronic equipment

 

579.       New section 487F provides additional search powers to those outlined in new section 487E in relation to electronic equipment.

580.       New subsection 487F(1) provides that search powers include the power to operate electronic equipment on the premises if the authorised officer reasonably suspects that the equipment or a disk, tape or other storage device that is on the premises and can be used with the equipment or is associated with it contains evidential material referred to in paragraph 487E(a) or 487E(b).

581.       New subsection 487F(2) provides that the search powers include the following powers in relation to evidential material described in subsection 487F(1) found in the exercise of the power under that subsection.  The powers are:

·         if entry to the premises is under a search warrant - the power to seize the equipment and the disk, tape or other storage device referred to in that subsection;

·         the power to operate electronic equipment on the premises to put the evidential material in documentary form and remove the documents so produced from the premises;

·         the power to operate electronic equipment on the premises to transfer the evidential material to a disk, tape or other storage device that:

-           is brought to the premises for the exercise of the power; or

-           is on the premises and the use of which for that purpose has been agreed to in writing by the occupier of the premises;

and remove the disk, tape or other storage device from the premises.

582.       Under new subsection 487F(3), an authorised officer may operate electronic equipment as mentioned in subsection 487F(1) or 487F(2) only if the authorised officer reasonably believes that the operation of the equipment can be carried out without damage to the equipment. 

The note to new subsection 487F(3) refers the reader to section 487T for compensation for damage to electronic equipment.

583.       Under new subsection 487F(4), an authorised officer may seize equipment or a disk, tape or other storage device as mentioned in paragraph 487F(2)(a) only if:

·         it is not practicable to put the evidential material in documentary form as mentioned in paragraph 487F(2)(b) or to transfer the evidential material as mentioned in paragraph 487F(2)(c); or

·         possession of the equipment or the disk, tape or other storage device by the occupier could constitute an offence against a law of the Commonwealth.

584.       The purpose of new section 487F is to provide authorised officers with the powers to:

·         operate electronic equipment if there are reasonable grounds for suspecting that the equipment or a related storage device (such as a CD, DVD, or USB) contains evidence;

·         put the evidential material in documentary form, for example by printing the evidence, and remove the documents from the premises;

·         transfer the evidence to a storage device that the authorised officer brought to the premises, or to a storage device that the occupier of the premises agrees in writing may be used to store the evidence and be removed from the premises; and

·         seize the equipment or storage device, if the authorised officer is acting under a search warrant, but only if:

-           it is not practical to put the evidential material into documentary form or transfer it to another storage device that may be taken from the premises; or

-           possession of the equipment or the disk, tape or other storage device by the occupier could constitute an offence against another law of the Commonwealth.

585.       To protect the property of individuals, the authorised officer’s actions are limited to operation of the electronic equipment where they reasonably believe that the equipment will not be damaged.

Section 487G               Seizing evidence of the contravention of related provisions etc.

 

586.       New section 487G provides clarification of the power to seize evidential material from premises, as outlined in new section 487E. 

587.       New subsection 487G(1) provides that this section applies if an authorised officer enters premises under a search warrant to search for evidential material.

588.       New subsection 487G(2) provides the search powers include seizing a thing that is not evidential material of the kind specified in the warrant if:

·         in the course of searching for the kind of evidential material specified in the warrant, the authorised officer finds the thing; and

·         the authorised officer reasonably believes that:

-           a related provision has been contravened with respect to the thing; or

-           the thing is evidence of the contravention of a related provision; or

-           the thing is intended to be used for the purpose of contravening a related provision; and

·         the authorised officer reasonably believes that it is necessary to seize the thing in order to prevent its concealment, loss or destruction.

589.       Under new section 487G, unless provided for separately, or allowed to be taken with the permission of the occupier, “things” may be seized from premises only when entry is under a search warrant, and the following requirements are also met:

·         the “thing” is found in the course of searching for evidential material, as set out in the warrant; and

·         the authorised officer reasonably believes that:

-           the “thing” is evidential material; and

-           if the “thing” is not seized at that time, it would be concealed, lost or destroyed.

Section 487H               Persons assisting authorising officers

 

590.       New section 487H provides that if it is necessary and reasonable, authorised officers may be assisted by other persons when performing their functions and duties.

Authorised officers may be assisted by other persons

591.       New subsection 487H(1) provides that an authorised officer may be assisted by other persons in exercising powers or performing functions or duties under this Division, if that assistance is necessary and reasonable.  A person giving such assistance is a person assisting the authorised officer.

592.       The purpose of this provision is to clarify that a person who helps an authorised officer in the exercise of their functions and duties is described as a “person assisting” the authorised officer.

Powers of a person assisting the authorised officer

593.       New subsection 487H(2) provides that a person assisting the authorised officer:

·         may enter the premises; and

·         may exercise powers and perform functions and duties under this Division in relation to evidential material; and

·         must do so in accordance with a direction given to the person assisting by the authorised officer.

594.       Under new subsection 487H(3), a power exercised by a person assisting the authorised officer as mentioned in subsection 487H(2) is taken for all purposes to have been exercised by the authorised officer.

595.       Under new subsection 487H(4), a function or duty performed by a person assisting the authorised officer as mentioned in subsection 487H(2) is taken for all purposes to have been performed by the authorised officer.

596.       The purpose of new subsections 487H(2) to (4) is to clarify that a person who assists an authorised officer can enter premises, and act in all of the roles of an authorised officer, including the exercise of powers and the performance of functions and duties in relation to evidence, but can only do so when instructed by an authorised officer.

597.       However, under new subsection 487H(5), if a direction is given under paragraph 487H(2)(c) in writing, the direction is not a legislative instrument.

598.       The purpose of new subsection 487H(5) is to clarify that if a written direction is given to a person assisting in writing, the direction is not a legislative instrument. 

This provision is declaratory and is not intended as an exemption to the

Legislative Instruments Act 2003, but is included to assist readers in the interpretation of the Bill.  Therefore, under new paragraph 487H(2)(c), a direction is not required to be in writing and may be given orally.

Section 487J                Use of force in executing a search warrant

 

599.       New section 487J provides that in executing a search warrant, an authorised officer, or a person assisting an authorised officer, may use such force against things as is necessary and reasonable in the circumstances.

600.       The purpose of this provision is to provide that an authorised officer or a person assisting them may use force in executing a search warrant.  The use of force allowed by an authorised officer is only to be exercised against things and not persons (for example, in order to open a door or break a lock on a cabinet during the execution of the warrant). 

The force allowed is limited to that which is necessary and reasonable in the circumstances.  These principles are in accordance with Chapter 8.3.4 of
A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.

Subdivision B - Powers of authorised officers to ask questions and seek production of documents

Section 487K               Authorised officer may ask questions and seek production of documents

601.       New section 487K outlines the extent of an authorised officer’s powers to ask questions and seek production of documents.

 

 

 

Entry with consent

602.       New subsection 487K(1) provides that if an authorised officer is authorised to enter premises because the occupier of the premises consented to the entry, the authorised officer may ask the occupier to:

·         answer any questions relating to the reasons for the authorised officer entering the premises that are put by the authorised officer; and

·         produce any document relating to the reasons for the authorised officer entering the premises that is requested by the authorised officer.

Entry under a search warrant

603.           New subsection 487K(2) provides that if an authorised officer is authorised to enter premises by a search warrant, the authorised officer may require any person on the premises to:

·         answer any questions relating to the reasons for the authorised officer entering the premises that are put by the authorised officer; and

·         produce any document relating to the reasons for the authorised officer entering the premises that is requested by the authorised officer.

Offence

604.           New subsection 487K(3) provides that a person commits an offence if:

·         the person is subject to a requirement under subsection 487K(2); and

·         the person fails to comply with the requirement.

605.       The maximum penalty for an offence under new subsection 487K(3) is 30 penalty units.

606.       This penalty must also be read with subsection 5(1) of the Act which provides that

penalty unit has the meaning given by section 4AA of the Crimes Act 1914. 

Section 4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty unit equates.  Currently, one penalty unit is equal to $110.  Accordingly, the maximum penalty equates to $3,300 for an individual. 

607.       The purpose of new section 487K is to provide that i f an authorised officer enters premises with the occupier’s consent, the authorised officer is permitted to ask the occupier to answer questions and produce documents that relate to the authorised officer’s reasons for entering the premises. 

608.       However, as the authorised officer’s right to be present on the premises is based on the consent of the occupier, it is not an offence to refuse to comply with an authorised officer’s request.  If the authorised officer enters premises under a search warrant, they may require any person on the premises to answer any questions or produce any documents that relate to the authorised officer’s reasons for entering the premises.  A person who fails to comply with any such request will have committed an offence.

609.       A person is excused from answering questions or producing documents that relate to the authorised officer’s reasons for entering the premises on the ground that the answers to the questions or the production of the documents might tend to incriminate the person or expose the person to a penalty. 

Subdivision C - Obligations and incidental powers of authorised officers

610.       This Subdivision sets out the obligations of authorised officers, and clarifies the operation of the search warrant provisions in relation to a number of circumstances that may arise during the execution of a warrant.

  Section 487L               Consent

611.           New section 487L outlines the conditions that apply when an occupier of premises gives consent to an authorised officer seeking to enter and search the premises without a search warrant. 

612.       New subsection 487L(1) provides that before obtaining the consent of an occupier of premises for the purposes of paragraph 487D(2)(a), an authorised officer must inform the occupier that the occupier may refuse consent.

613.       New subsection 487L(2) provides that a consent has no effect unless the consent is voluntary.

614.       New subsection 487L(3) provides that a consent may be expressed to be limited to entry during a particular period.  If so, the consent has effect for that period unless the consent is withdrawn before the end of that period.

615.       New subsection 487L(4) provides that a consent that is not limited as mentioned in subsection 487L(3) has effect until the consent is withdrawn.

616.       New subsection 487L(5) provides that if an authorised officer has entered premises because of the consent of the occupier of the premises, the authorised officer, and any person assisting the authorised officer, must leave the premises if the consent ceases to have effect.

617.       The effect of this new provision is that the authorised officer must tell the occupier that they may refuse consent, and must not coerce the occupier into giving consent, as the consent has no effect unless it is voluntary.  The occupier can limit their consent to a particular period.  The authorised officer and anyone assisting them can enter the premises until a consent period ends, or until consent is withdrawn.  They must leave once consent is withdrawn or, if consent is given for a particular period of time, at the end of that time. 

If consent is given without any limitations, it will continue to have effect until it is withdrawn. 

Section 487M              Announcement before entry under search warrant

618.       New section 487M outlines what an authorised officer must do before entering premises under a search warrant.

619.       New subsection 487M(1) provides that before entering premises under a search warrant,

an authorised officer must:

·         announce that he or she is authorised to enter the premises; and

·         show his or her identity card to the occupier of the premises, or to another person who apparently represents the occupier, if the occupier or other person is present at the premises; and

·         give any person at the premises an opportunity to allow entry to the premises.

620.       However, under new subsection 487M(2), an authorised officer is not required to comply with subsection 487M(1) if the authorised officer reasonably believes that immediate entry to the premises is required:

·         to ensure the safety of a person; or

·         to ensure that the effective execution of the search warrant is not frustrated.

621.       Under new subsection 487M(3), the authorised officer must show his or her identity card to the occupier or another person who apparently represents the occupier, as soon as practicable after entering the premises if:

·         an authorised officer does not comply with subsection 487M(1) because of subsection 487M(2); and

·         the occupier of the premises, or another person who apparently represents the occupier, is present at the premises.

622.       The effect of this provision is to provide what an authorised officer must do before entering premises under a search warrant.  The authorised officer must:

·         announce that they are authorised to enter the premises;

·         show their identity card to the occupier or to another person who apparently represents the occupier, if they are present; and

·         give the occupier or their representative an opportunity to allow entry to the premises.

623.       If the authorised officer believes on reasonable grounds that the safety of a person or the effective execution of the warrant cannot be ensured if they comply with these requirements, they need not comply.  However, if the authorised officer enters premises without complying with the normal requirements then they are required to show the occupier their identity card as soon as practicable after entering the premises.

Section 487N               Authorised officer to be in possession of search warrant

624.       New section 487N provides that an authorised officer who is executing a search warrant must be in possession of:

·         the search warrant issued by the issuing officer under section 487ZC, or a copy of the warrant as so issued; or

·         the form of search warrant completed under subsection 487ZD(6), or a copy of the form as so completed.

625.       The purpose of this provision is to provide that an authorised officer who is executing the warrant must have the search warrant or the form of the search warrant in their possession when they enter premises.

 

Section 487P               Details of search warrant etc. to be given to occupier

626.       New subsection 487P(1) provides that an authorised offer must comply with

subsection 487P(2) if:

·          a search warrant is being executed in relation to premises; and

·         the occupier of the premises, or another person who apparently represents the occupier, is present at the premises.

627.        Under new subsection 487P(2), the authorised officer must, as soon as practicable:

·         do one of the following:

-           if the search warrant was issued under section 487ZC - make a copy of the warrant available to the occupier or other person

(which need not include the signature of the issuing officer who issued it);

-           if the search warrant was signed under section 487ZD - make a copy of the form of warrant completed under subsection 487ZD(6) available to the occupier or other person; and

·         inform the occupier or other person of the rights and responsibilities of the occupier or other person under Subdivision D.

628.       The purpose of this provision is to provide that when a warrant is executed on premises and the occupier or their representative is present, the authorised officer is required to give the occupier or their representative a copy of the warrant (or the form of warrant) and inform the occupier of their rights and responsibilities.

Section 487Q               Completing execution of search warrant after temporary cessation

629.       New subsection 487Q(1) provides that this section applies if an authorised officer, and all persons assisting, who are executing a search warrant in relation to premises temporarily cease its execution and leave the premises.

630.       New subsection 487Q(2) provides that the authorised officer, and persons assisting, may complete the execution of the search warrant if:

·         the warrant is still in force; and

·         the authorised officer and persons assisting are absent from the premises:

-           for not more than 1 hour; or

-           if there is an emergency situation, for not more than 12 hours or such longer period as allowed by an issuing officer under subsection 487Q(5); or

-           for a longer period if the occupier of the premises consents in writing.

 

 

 

 

Application for extension in emergency situation

631.       Under new subsection 487Q(3), an authorised officer, or person assisting, may apply to an issuing officer for an extension of the 12-hour period mentioned in

subparagraph 487Q(2)(b)(ii) if:

·         there is an emergency situation; and

·         the authorised officer or person assisting reasonably believes that the authorised officer and the persons assisting will not be able to return to the premises within that period.

632.       Under new subsection 487Q(4), if it is practicable to do so, before making the application, the authorised officer or person assisting must give notice to the occupier of the premises of his or her intention to apply for an extension.

Extension in emergency situation

633.       New subsection 487Q(5) provides that an issuing officer may extend the period during which the authorised officer and persons assisting may be away from the premises if:

·         an application is made under subsection 487Q(3); and

·         the issuing officer is satisfied, by information on oath or affirmation, that there are exceptional circumstances that justify the extension; and

·         the extension would not result in the period ending after the search warrant ceases to be in force.

634.       An issuing officer is defined in new section 487A to mean a magistrate, a Federal Magistrate or a Judge of the Federal Court. 

635.       The purpose of new section 487Q is to provide that, when an authorised officer and persons assisting them to execute a warrant leave the premises temporarily, the authorised officer can only complete the execution of the warrant if they are absent from the premises for no more than one hour, or if they are absent from the premises for no more than 12 hours due to an emergency, or if the occupier gives written consent. 

636.       However, the authorised officer can apply to an issuing officer for extension of the 12 hour period if there is an emergency situation and the authorised officer will not be able to return to the premises for more than 12 hours. Where practicable, the authorised officer must notify the occupier of the premises that they intend to apply for the extension before doing so. 

On request, an issuing officer can permit the extension if they are satisfied that there are exceptional circumstances, but only when the extension will operate within the period the warrant is in force.

Section 487R               Completing execution of search warrant stopped by court order

637.       New section 487R provides that an authorised officer, and any persons assisting,

may complete the execution of a search warrant that has been stopped by an order of a court if:

·         the order is later revoked or reversed on appeal; and

·         the warrant is still in force when the order is revoked or reversed.

638.       The purpose of section 487R is to provide that if the execution of a warrant is stopped by an order of the Court, the execution can go ahead if the Court order is later revoked or reversed and the warrant is still in force at that time.

Section 487S                Expert assistance to operate electronic equipment

639.       New section 487S applies to situations where expert assistance is required to operate electronic equipment.  New subsection 487S(1) provides that this section applies if an authorised officer enters premises under a search warrant.

Securing equipment

640.       New subsection 487S(2) provides that the authorised officer may do whatever is necessary to secure any electronic equipment that is on premises if the authorised officer reasonably believes that:

·         there is on the premises evidential material of the kind specified in the search warrant; and

·         that evidential material may be accessible by operating the equipment; and

·         expert assistance is required to operate the equipment; and

·         the evidential material may be destroyed, altered or otherwise interfered with, if the authorised officer does not take action under this subsection.

641.       New subsection 487S(2) further provides that the equipment may be secured by locking it up, placing a guard or any other means.

642.       New subsection 487S(3) provides that the authorised officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of:

·         the authorised officer’s intention to secure the equipment; and

·         the fact that the equipment may be secured for up to 24 hours.

Period equipment may be secured

643.       New subsection 487S(4) provides that the equipment may be secured until the earlier of the following happens:

·         the 24-hour period ends;

·         the equipment has been operated by the expert.

644.       The note to new subsection 487S(4) refers the reader to section 487T for compensation for damage to electronic equipment.

 

 

Extensions

645.       New subsection 487S(5) provides that the authorised officer may apply to an issuing officer for an extension of the 24-hour period if the authorised officer reasonably believes that the equipment needs to be secured for longer than that period.

646.       Under new subsection 487S(6), before making the application, the authorised officer must give notice to the occupier of the premises, or another person who apparently represents the occupier, of the authorised officer’s intention to apply for an extension. 

The occupier or other person is entitled to be heard in relation to that application.

647.       New subsection 487S(7) provides that the provisions of this Division relating to the issue of search warrants apply, with such modifications as are necessary, to the issue of an extension.

648.       New subsection 487S(8) provides that the 24-hour period may be extended more than once.

649.       New section 487S applies to situations where expert assistance is required to operate electronic equipment that an authorised officer believes on reasonable grounds may contain evidence; and the evidence may be destroyed, altered or otherwise interfered with if it is not retrieved.  This provision provides that an authorised officer may secure the electronic equipment for up to 24 hours, after giving the occupier or a representative notice of their intention to do so.  The equipment may only be secured until the expert has operated the equipment, but may not be secured for more than 24 hours.  The authorised officer may apply to an issuing officer for an extension to secure the electronic equipment for more than

24 hours, but must give notice to the occupier or a representative of their intention to do so. 

This is so that the occupier or representative has an opportunity to challenge the application.

Section 487T               Compensation for damage to electronic equipment

650.       New subsection 487T(1) provides that section 487T applies if:

·         as a result of electronic equipment being operated as mentioned in this Division:

-           damage is caused to the equipment; or

-           the data recorded on the equipment is damaged; or

-           programs associated with the use of the equipment, or with the use of the data, are damaged or corrupted; and

·         the damage or corruption occurs because:

-           insufficient care was exercised in selecting the person who was to operate the equipment; or

-           insufficient care was exercised by the person operating the equipment.

651.       New subsection 487T(2) provides that the Commonwealth must pay the owner of the equipment, or the user of the data or programs, such reasonable compensation for the damage or corruption as the Commonwealth and the owner or user agree on.

652.       However, under new subsection 487T(3), if the owner or user and the Commonwealth fail to agree, the owner may institute proceedings in a court of competent jurisdiction for such reasonable amount of compensation as the court determines.

 

653.       Under new subsection 487T(4), in determining the amount of compensation payable, regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

654.       New subsection 487T(5) defines damage for the purposes of new section 487T. 

Damage, in subsection 487T(5), in relation to data, includes damage by erasure of data or addition of other data.

655.       The purpose of new section 487T is to provide that if insufficient care by the authorised officer or persons assisting causes damage to electronic equipment or to the data and programs on the electronic equipment, during the course of the equipment being operated, the Commonwealth must pay reasonable compensation to the owner or user, as agreed. 

If the Commonwealth and the owner of the equipment, data or programs fail to agree, the owner may take proceedings in a court to gain reasonable compensation. 

Regard is to be had to whether the occupier of the premises, or the occupier’s employees or agents, if they were available at the time, provided any appropriate warning or guidance on the operation of the equipment.

Subdivision D - Occupier’s rights and responsibilities

656.       This Subdivision sets out the rights and responsibilities that are applicable to the occupier of premises that are searched.

Section 487U               Occupier entitled to observe execution of search warrant

657.       New subsection 487U(1) provides that the occupier, or another person who apparently represents the occupier, is entitled to observe the execution of a search warrant if the occupier or other person is present at the premises while the warrant is being executed.

658.       Under new subsection 487U(2), the right to observe the execution of the search warrant ceases if the occupier or other person impedes that execution.

659.       New subsection 487U(3) provides that this section does not prevent the execution of the search warrant in 2 or more areas of the premises at the same time.

660.       The purpose of new section 487U is to provide that an occupier or their representative may remain and observe the execution of a search warrant, as long as they do not impede the execution of the warrant. 

Section 487V               Occupier to provide authorised officer with facilities and assistance

661.       New subsection 487V(1) provides that the occupier of premises to which a search warrant relates, or another person who apparently represents the occupier, must provide an authorised officer executing the warrant, and any person assisting the authorised officer, with all reasonable facilities and assistance for the effective exercise of their powers, and the effective performance of their functions and duties.

Offence

662.       Under new subsection 487V(2), a person commits an offence if:

·         the person is subject to subsection 487V(1); and

·         the person fails to comply with that subsection.

663.       The penalty for contravening new subsection 487V(2) is 30 penalty units.

664.       This penalty must also be read with subsection 5(1) of the Act which provides that

penalty unit has the meaning given by section 4AA of the Crimes Act 1914. 

Section 4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty unit equates.  Currently, one penalty unit is equal to $110.  Accordingly, the maximum penalty equates to $3,300 for an individual. 

665.       The purpose of new section 487V is to provide that it is an offence for the occupier or their representative to fail to provide all reasonable facilities and assistance to effectively exercise their powers and perform their functions and duties.

Subdivision E - General provisions relating to seizure

666.       The provisions in this Subdivision address the conduct that may be undertaken in relation to items that are seized, including circumstances in which copies and receipts must be provided for seized goods, and circumstances in which items must be returned.

  Section 487W             Copies of seized things to be provided

667.       New subsection 487W(1) provides that this section applies if:

·         a search warrant is being executed in relation to premises; and

·         an authorised officer seizes one or more of the following from the premises under this Division:

-            a document, film, computer file or other thing that can be readily copied;

-           a storage device, the information in which can be readily copied.

668.       Under new subsection 487W(2), the occupier of the premises, or another person who apparently represents the occupier and who is present when the search warrant is executed, may request the authorised officer to give a copy of the thing or the information to the occupier or other person.

669.       Under new subsection 487W(3), the authorised officer must comply with such a request as soon as practicable after the seizure.

670.       However, under new subsection 487W(4), the authorised officer is not required to comply with such a request if possession of the document, film, computer file, thing or information by the occupier or other person could constitute an offence against a law of the Commonwealth.

671.       The purpose of new section 487W is to provide that where an authorised officer, while executing a search warrant, seizes anything that can be readily copied, or a storage device that contains information that can be readily copied, the occupier or a person representing them can request a copy of the seized information or items.  Unless possession of the information or the item would constitute an offence against a Commonwealth law, the authorised officer must provide copies to the occupier or their representative as soon as practicable.

 

Section 487X               Receipts for seized things

672.       New subsection 487X(1) provides that an authorised officer must provide a receipt for a thing that is seized under this Division.

673.       New subsection 487X(2) provides that one receipt may cover 2 or more things that are seized.

674.       The purpose of this provision is to ensure that receipts are provided for things seized under this Division so that a record of items seized by the Department is kept.

Section 487Y               Return of seized things

675.       New subsection 487Y(1) provides that the Secretary must take reasonable steps to return a thing seized under this Division when the earliest of the following happens:

·         the reason for the thing’s seizure no longer exists;

·         it is decided that the thing is not to be used in evidence;

·         the period of 60 days after the thing’s seizure ends.

676.       The note to new subsection 487Y(1) clarifies that exceptions to this rule are contained in subsections 487Y(2) and 487Y(3).

Exceptions

677.       New subsection 487Y(2) provides that subsection 487Y(1) is subject to any contrary order of a court and does not apply if the thing is forfeited or forfeitable to the Commonwealth or is the subject of a dispute as to ownership.

678.       New subsection 487Y(3) provides that the Secretary is not required to take reasonable steps to return a thing because of paragraph 487Y(3)(1)(c) if:

·         proceedings in respect of which the thing may afford evidence were instituted before the end of the 60 days and have not been completed (including an appeal to a court in relation to those proceedings); or

·         the thing may continue to be retained because of an order under section 487Z; or

·         the Commonwealth, the Secretary or an authorised officer is otherwise authorised (by a law, or an order of a court, of the Commonwealth or of a State or Territory) to retain, destroy, dispose of or otherwise deal with the thing.

Return of thing

679.       Under new subsection 487Y(4), a thing that is required to be returned under this section must be returned to the person from whom it was seized (or to the owner if that person is not entitled to possess it).

680.       The purpose of this provision is to require the Secretary of the Department to take reasonable steps to return any seized items to the owner or the person they were seized from after

60 days, or sooner than 60 days when the reason for the seizure no longer exists or it is decided that the item will not be used in evidence.  If proceedings are instituted and not completed before the 60 days, the item does not need to be returned until the reason for the seizure no longer exists or it is decided the item will not be used in evidence.

681.       However, the item does not need to be returned when a court order requires otherwise, if the item is forfeited or forfeitable to the Commonwealth, or when there is a dispute about the ownership of the item.

682.       This provision is designed to be consistent with the principles discussed in Chapter 8.5 of

A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.  The retention period of 60 days is specified in order to ensure that seized goods are not held for long periods of time without good reason.

Section 487Z               Issuing officer may permit a seized thing to be retained

            Application to retain seized thing

683.       New subsection 487Z(1) provides that the Secretary may apply to an issuing officer for an order permitting the retention of a thing seized under this Division for a further period if proceedings in respect of which the thing may afford evidence have not commenced before the end of:

·         60 days after the seizure; or

·         a period previously specified in an order of an issuing officer under this section.

684.       Under new subsection 487Z(2), before making the application, the Secretary must:

·         take reasonable steps to discover who has an interest in the retention of the thing; and

·         if it is practicable to do so, notify each person whom the Secretary believes to have such an interest of the proposed application.

Order to retain seized thing

685.       Under new subsection 487Z(3), the issuing officer may order that the thing may continue to be retained for a period specified in the order if the issuing officer is satisfied that it is necessary for the thing to continue to be retained:

·         for the purposes of investigating whether a work-related offence has been committed or a work-related provision has been contravened; or

·         to enable evidence of such an offence or contravention to be secured for the purposes of prosecution or action.

686.       Under new subsection 487Z(4), the period specified must not exceed 3 years.

687.       The purpose of this provision is to provide that the Secretary of the Department may apply to an issuing officer for an extension of the period for retention of seized goods, if the goods need to be kept.  On application from the Secretary, an issuing officer can permit a seized item to be kept for the purposes of legal proceedings that have not started if it is necessary that it be retained for the purposes of investigation or proceedings. 

The issuing officer can specify that the item be kept for a further period, but no longer than three years.  Before making an application, the Secretary must attempt to find and notify each person who has an interest in the proposed application for retention of the item.

Section 487ZA             Disposal of seized things

688.       New subsection 487ZA(1) provides that the Secretary may dispose of a thing seized under this Division if:

·         the Secretary has taken reasonable steps to return the thing to a person; and

·         either:

-           the Secretary has been unable to locate the person; or

-           the person has refused to take possession of the thing.

689.       Under new subsection 487ZA(2), the Secretary may dispose of the thing in any manner that he or she thinks appropriate.

690.       The purpose of this provision is to provide that the Secretary of the Department can dispose of any thing that has been seized in any way they think appropriate, once they have taken reasonable steps to return the thing and either the person refused to take possession of the thing, or the Secretary was unable to locate the person.

Section 487ZB             Compensation for acquisition of property

691.       New subsection 487ZB(1) provides that if the operation of section 487ZA would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.

692.       Under new subsection 487ZB(2), if the Commonwealth and the person do not agree on the amount of the compensation, the person may institute proceedings in a court of competent jurisdiction for the recovery from the Commonwealth of such reasonable amount of compensation as the court determines.

693.       New subsection 487ZB(3) defines terms for the purposes of new section 487ZB. 

It provides that acquisition of property and just terms has the same meaning as in paragraph 51(xxxi) of the Constitution.

694.       The purpose of this provision is to provide that if disposal of an item by the Secretary of the Department under section 487ZA would result in an acquisition of property from a person otherwise than on just terms, the Commonwealth is liable to pay a reasonable amount of compensation to the person.  The person may institute proceedings in a court if the Commonwealth and the person do not agree on the amount of compensation.

Subdivision F - Issue of search warrants

695.       This Subdivision outlines the criteria and circumstances that must be met for a search warrant to be issued.

Section 487ZC             Issue of search warrants

            Application for search warrant

696.       New subsection 487ZC(1) provides that an authorised officer may apply to an issuing officer for a search warrant under this section in relation to premises.

697.       Under new section 487A, an issuing officer means a magistrate, a Federal Magistrate or a Judge of the Federal Court.

Issue of search warrant

698.       Under new subsection 487ZC(2), the issuing officer may issue the search warrant if the issuing officer is satisfied, by information on oath or affirmation, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, evidential material on the premises.

699.       However, under new subsection 487ZC(3), the issuing officer must not issue the search warrant unless the authorised officer or some other person has given to the issuing officer, either orally or by affidavit, such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the search warrant is being sought.

700.       The purpose of new subsections 487ZC(1) to (3) is to articulate that f or a warrant to be issued in relation to premises, an authorised officer must apply to an issuing officer for a warrant.  The issuing officer may only issue the warrant if they are satisfied that there are reasonable grounds for suspecting that there is evidential material on the premises, or will be within the next 72 hours.  The issuing officer can require that additional information is provided to him or her by an authorised officer or some other persons either orally or by affidavit.

Content of search warrant

701.       Under new subsection 487ZC(4), the search warrant must:

·         state the work-related offence or offences, or work-related provision or provisions,

to which the warrant relates; and

·         describe the premises to which the warrant relates; and

·         state that the warrant is issued under this Subdivision; and

·         specify the kind of evidential material that is to be searched for under the warrant; and

·         state that the evidential material specified, and any other evidential material found in the course of executing the warrant, may be seized under the warrant; and

·         name one or more authorised officers; and

·         authorise the authorised officers named in the warrant to enter the premises and to exercise the powers set out in this Division in relation to the premises; and

·         state whether entry is authorised to be made at any time of the day or during specified hours of the day; and

·         specify the day (not more than 1 week after the issue of the warrant) on which the warrant ceases to be in force.

702.       The purpose of new subsection 487ZC(4) is to outline certain information that a warrant must contain.  It is not an exhaustive list.

 

Section 487ZD                        Search warrants by telephone, fax etc.

            Application for search warrant

703.       New section 487ZD sets out a procedure under which an authorised officer can apply for a search warrant by telephone, fax or other electronic means in an urgent case, or if the delay to make an application in person would frustrate the effective execution of the warrant. 

704.       New subsection 487ZD(1) provides that an authorised officer may apply to an issuing officer by telephone, fax or other electronic means for a search warrant under section 487ZC in relation to premises:

·         in an urgent case; or

·         if the delay that would occur if an application were made in person would frustrate the effective execution of the warrant.

705.       Under new subsection 487ZD(2), the issuing officer may require communication by voice to the extent that it is practicable in the circumstances.

706.       Under new subsection 487ZD(3), before applying for the search warrant, the authorised officer must prepare an information of the kind mentioned in subsection 487ZC(2) in relation to the premises that sets out the grounds on which the warrant is sought. 

If it is necessary to do so, the authorised officer may apply for the warrant before the information is sworn or affirmed.
 

707.       The purpose of new subsections 487ZD(2) and 487ZD(3) is to ensure that the requirement for the authorised officer to prepare evidence and information to support the issuing of a warrant is preserved, including the requirement that there are reasonable grounds for suspecting that there is evidential material on the premises, or that there may be within 72 hours. 

The authorised officer may be required to give this evidence by telephone or other voice technology if it is practicable. 

Issuing officer may complete and sign search warrant

708.       Under new subsection 487ZD(4), the issuing officer may complete and sign the same search warrant that would have been issued under section 487ZC if the issuing officer is satisfied that there are reasonable grounds for doing so:

·         after considering the terms of the information; and

·         after receiving such further information (if any) as the issuing officer requires concerning the grounds on which the issue of the warrant is being sought.

709.       Under new subsection 487ZD(5), after completing and signing the search warrant, the issuing officer must inform the authorised officer, by telephone, fax or other electronic means, of the terms of the warrant; and the day on which, and the time at which, the warrant was signed.

Obligations on authorised officer

710.       New subsection 487ZD(6) provides that the authorised officer must then do the following:

·         complete a form of search warrant in the same terms as the warrant completed and signed by the issuing officer;

·         state on the form the following:

-           the name of the issuing officer;

-           the day on which, and the time at which, the search warrant was signed;

·         send the following to the issuing officer:

-           the form of search warrant completed by the authorised officer;

-           the information referred to in subsection 487ZD(3), which must have been duly sworn or affirmed.

711.       Under new subsection 487ZD(7), the authorised officer must comply with

paragraph 487ZD(6)(c) by the end of the day after the earlier of the following:

·         the day on which the search warrant ceases to be in force;

·         the day on which the search warrant is executed.

Issuing officer to attach documents together

712.       Under new subsection 487ZD(8), the issuing officer must attach the documents provided under paragraph 487ZD(6)(c) to the search warrant signed by the issuing officer.

713.       The purpose of subsections 487ZD(4) to (7) is to provide that the issuing officer can complete and sign a warrant, and must inform the authorised officer of that either by telephone, fax or other electronic means.  The authorised officer must then complete a form of warrant in the terms that are communicated to them, and include the name of the issuing officer and the time the original warrant was signed.  The authorised officer must also send a copy of the form of warrant to the issuing officer by the end of the day following the day the warrant is executed or ceases to be in force.  Where the word “sign” is used in this section, it is used as a verb and has its plain English meaning.

Section 487ZE             Authority of search warrant

714.       New subsection 487ZE(1) provides that a form of search warrant duly completed under subsection 487ZD(6) is authority for the same powers as authorised by the search warrant signed by the issuing officer under subsection 487ZD(4).

715.       Under new subsection 487ZE(2), in any proceedings, a court is to assume

(unless the contrary is proved) that an exercise of power was not authorised by a search warrant under section 487ZD if:

·         it is material, in those proceedings, for the court to be satisfied that the exercise of power was authorised by that section; and

·         the warrant signed by the issuing officer authorising the exercise of the power is not produced in evidence.

716.       The purpose of new section 487ZE is to provide that where a form of warrant is completed as a result of a warrant issued by electronic means, a proper form of warrant gives authority for the same powers as would be given by the warrant signed by the issuing officer.  

However, if the warrant signed by the issuing officer is not produced in evidence in court proceedings, the court cannot assume the powers were authorised because of a form of warrant, unless it is otherwise proven that the powers were authorised.

  Section 487ZF            Offence relating to search warrants by telephone, fax etc.

717.       Under new section 487ZF, an authorised officer must not:

·         state in a document that purports to be a form of search warrant under section 487ZD the name of an issuing officer unless that issuing officer signed the warrant; or

·         state on a form of search warrant under that section a matter that, to the authorised officer’s knowledge, departs in a material particular from the terms of the warrant signed by the issuing officer under that section; or

·         purport to execute, or present to another person, a document that purports to be a form of search warrant under that section that the authorised officer knows departs in a material particular from the terms of a warrant signed by an issuing officer under that section; or

·         give to an issuing officer a form of search warrant under that section that is not the form of search warrant that the authorised officer purported to execute.

718.       The maximum penalty for an offence under new section 487ZF is imprisonment for 2 years.

719.       The purpose of new section 487ZF is to create an offence for an authorised officer to falsely state the name of an issuing officer as having signed a warrant, or to depart from the terms of the warrant signed by the issuing officer.  It is also an offence to execute or present a form of warrant that departs from the terms of a warrant signed by an issuing officer, or to give to an issuing officer a form of warrant that is not the form of warrant used to execute a search.

720.       The penalty for any of the above conduct is imprisonment for 2 years. 

This penalty is in place to deter authorised officers from false or improper execution of warrants.

Subdivision G - Identity Cards

Section 487ZG                        Identity cards



721.       New subsection 487ZG(1) provides that the Secretary must issue an identity card to an authorised officer for the purposes of this Division.

Identity card must be carried by authorised officer

722.       Under new subsection 487ZG(2), an authorised officer must carry his or her identity card at all times when exercising powers as an authorised officer under this Division.

Form of identity card

723.       Under new subsection 487ZG(3), the identity card must be in the form approved by the Secretary and contain a recent photograph of the authorised officer.

Offence

724.       New subsection 487ZG(4) provides that a person commits an offence if:

·         the person has been issued with an identity card under subsection 487ZG(1); and

·         the person ceases to be an authorised officer; and

·         the person does not, as soon as practicable after so ceasing, return the identity card to the Secretary.

725.       The maximum penalty for an offence under subsection 487ZG(4) is 1 penalty unit.

726.       This penalty must also be read with subsection 5(1) of the Act which provides that

penalty unit has the meaning given by section 4AA of the Crimes Act 1914. 

Section 4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty unit equates.  Currently, one penalty unit is equal to $110 which is the maximum penalty that can be imposed on an individual.

727.       Under new subsection 487ZG(5), an offence against subsection 487ZG(4) is an offence of strict liability.  The note to new subsection 487ZG(5) refers the reader to section 6.1 of the Criminal Code for strict liability.

728.       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 defence of reasonable mistake of fact is however available in strict liability offences. 

729.       However, under new subsection 487ZG(6), subsection 487ZG(4) does not apply if the identity card was lost or destroyed.  The note to new subsection 487ZG(6) provides that a defendant bears the evidential burden in relation to the matter in this subsection and refers the reader to subsection 13.3(3) of the Criminal Code .

730.       The purpose of new section 487ZG is to require the Secretary of the Department to issue an identity card to authorised officers.  The identity card must incorporate photographic identification of the authorised officer, and the authorised officer is required to carry the identity card when carrying out their duties under the provisions in Division 3. 

A person commits an offence if they do not return their identity card to the Secretary as soon as practicable after ceasing to be an authorised officer.

731.       The purpose of applying strict liability to this offence is to ensure that only properly appointed authorised officers exercise powers and perform the functions of authorised officers, and that authorised officers are accountable for performing the actions appropriate to their role. It is also designed to ensure that authorised officers are properly and easily identified.  It is important that identity cards be returned as soon as practicable after an authorised officer ceases their role in order to prevent the improper use of such cards.  

This is an administrative obligation provision, with a small penalty attached, and an illustration of where strict liability is sometimes applied under Commonwealth law.

732.       A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers was consulted when these provisions were framed and these provisions are consistent with the principles in this Guide in relation to strict liability offences.  

In accordance with Chapter 2 of A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers the maximum penalty for this strict liability offence is only 1 penalty unit. 

 

 

Subdivision H - Powers of issuing officers

Section 487ZH                        Powers of issuing officers

Powers conferred personally



733.       New subsection 487ZH(1) provides that a power conferred on an issuing officer by this Division is conferred on the issuing officer:

·         in a personal capacity; and

·         not as a court or a member of a court.

Powers need not be accepted



734.       New subsection 487ZH(2) provides that the issuing officer need not accept the power conferred.

Protection and immunity



735.       Under new subsection 487ZH(3), an issuing officer exercising a power conferred by this Division has the same protection and immunity as if the issuing officer were exercising the power:

·         as the court of which the issuing officer is a member; or

·         as a member of the court of which the issuing officer is a member.

736.       An issuing officer is defined in new section 487A to mean a magistrate, a Federal Magistrate or a Judge of the Federal Court. 

737.       The purpose of new section 487ZH is to specify that powers conferred on issuing officers are conferred on the individual issuing officer in his or her personal capacity. 

Issuing officers, which include magistrates, Federal Magistrates or Judges of the

Federal Court exercising a power personally have the same protection and immunity as the court, and as a member of the court to which they belong. 

Item 25           Subsection 493(1)

738.       This item inserts the words “or for a civil penalty order.” after the word “regulations”

in subsection 493(1) of the Act.

739.       Current section 493 is designed to assist in the prosecution of bodies corporate who act through directors, servants or agents.  It renders the conduct or state of mind of the director, servant or agent acting within his/her actual or apparent authority to be the conduct or state of mind of the body corporate unless reasonable precautions were taken and due diligence was exercised to avoid the conduct. 

740.       Current subsection 493(1) provides that where in proceedings for an offence against this Act or the regulations, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show:

·         the conduct was engaged in by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority; and

·         that the director, servant or agent had the state of mind.

741.       The purpose of this amendment is to extend subsection 493(1) to cover proceedings for a civil penalty order.  This amendment applies to both a civil penalty order in relation to an alleged contravention of the new work-related civil penalty provisions and the existing sponsorship civil penalty provisions.

Item 26           Subsection 493(2)

 

742.       This item inserts the words “or of proceedings for a civil penalty order.” after the word “regulations” in subsection 493(2) of the Act.

743.       Current subsection 493(2) provides that any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations, to have engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

744.       The purpose of this amendment is to extend subsection 493(2) to cover proceedings for a civil penalty order.  This amendment applies to both a civil penalty order in relation to an alleged contravention of the new work-related civil penalty provisions and the existing sponsorship civil penalty provisions.

Item 27           Subsection 493(3)



745.       This item inserts the words “or for a civil penalty order.” after the word “regulations”

in subsection 493(3) of the Act.

746.       Current subsection 493(3) provides that where in proceedings for an offence against this Act or the regulations, it is necessary to establish the state of mind of a person other than a body corporate in relation to particular conduct, it is sufficient to show:

·         that the conduct was engaged in by a servant or agent of the person within the scope of his or her actual or apparent authority; and

·         that the servant or agent had the state of mind.

747.       The purpose of this amendment is to extend subsection 493(3) to cover proceedings for a civil penalty order.  This amendment applies to both a civil penalty order in relation to an alleged contravention of the new work-related civil penalty provisions and the existing sponsorship civil penalty provisions.

Item 28           Subsection 493(4)

 

748.       This item inserts the words “or of proceedings for a civil penalty order.” after the word “regulations” in subsection 493(4) of the Act.

749.       Current subsection 493(4) provides that any conduct engaged in on behalf of a person other than a body corporate by a servant or agent of the person within the scope of his or her actual or apparent authority shall be taken, for the purposes of a prosecution for an offence against this Act or the regulations, to have engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

750.       The purpose of this amendment is to extend subsection 493(4) to cover proceedings for a civil penalty order.  This amendment applies to both a civil penalty order in relation to an alleged contravention of the new work-related civil penalty provisions and the existing sponsorship civil penalty provisions.

Item 29           After section 506

 

Section 506A               Regulations may provide for infringement notices

 

751.       This item inserts new section 506A after section 506 of the Act. 

752.       New section 506A replaces current section 140R which is being repealed by item 9 above.

753.       Current section 140R creates a regulation-making power enabling a person who is alleged to have contravened a civil penalty provision to pay to the Commonwealth, as an alternative to civil penalty proceedings against the person, a specified penalty.  Currently, section 140R is contained in Subdivision D of Division 3A of Part 2 of the Act which relates to Sponsorship obligations. 

754.       Under new subsection 506A(1), the regulations may provide for a person who is alleged to have contravened a civil penalty provision to pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.

755.       Under new subsection 506A(2), the penalty must not exceed one-fifth of the maximum penalty that a court could impose on the person for a contravention of the civil penalty provision.

756.       As the Bill creates new work-related civil penalty provisions, new section 506A has been drafted to create a new regulation-making power in relation to infringement notice schemes and this will apply to both the new work-related civil penalty provisions, the current sponsorship civil penalty provisions and any future civil penalty provisions a government may wish to enact. 

757.       The purpose of new section 506A is to provide a sanction option, that is, an infringement notice regime, which provides the flexibility to appropriately, and expeditiously, deal with less serious contraventions of the new work-related civil penalty provisions and the current sponsorship civil penalty provisions.

758.       The maximum amount by way of an infringement notice that could be imposed against an individual for contravening the work-related civil penalty provisions would be $1,980 and the maximum amount that could be imposed against a body corporate would be $9,900. 

These amounts are consistent with Chapter 6.3 of A Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers .

759.       The maximum amount by way of an infringement notice that can be imposed against an individual for contravening the current sponsorship civil penalty provisions is $1,320 and the maximum amount that can be imposed against a body corporate is $6,600.

Part 2 - Application and transitional provisions



Item 30           Definitions

760.       This item inserts new definitions.  It provides that, in this Part, “commencement” means the commencement of this Schedule, and that “ Migration Act ” means the Migration Act 1958 .

Item 31           Transitional - regulations

761.       Subitem 31(1) provides that this item applies to regulations if the regulations were made for the purposes of section 140R of the Migration Act, and the regulations were in force immediately before commencement.

762.       Subitem 31(2) provides that the regulations have effect, after commencement, as if they had been made for the purposes of section 506A of that Act, inserted by this Schedule.

763.       The purpose of this amendment is to preserve any regulations made under current section 140R of the Act after the commencement of the new legislation. 

Current section 140R of the Act makes provision for a person to pay a specified penalty as an alternative to civil penalty proceedings against the person who is alleged to have contravened a civil penalty provision.

Item 32           Application - Part 8D of the Migration Act

764.       This item provides that despite the repeal of Part 8D of the Migration Act by this Schedule, that Part continues to apply in relation to the following as if that repeal had not happened:

·         an application under subsection 486R(1) or 486U(4) of that Act that was made before commencement if a decision on the application was not made before commencement;

·         a requirement under subsection 486U(2) of that Act that was made before commencement if the requirement was not complied with before commencement.

765.       Current subsection 486R(1) provides that within 6 years of a person

(the wrongdoer ) contravening a civil penalty provision, the Minister may apply to the

Federal Court or the Federal Magistrates Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.

766.       Current subsection 486U(2) provides that if the Secretary, on reasonable grounds, suspects that a person other than the wrongdoer can give information relevant to an application for a civil penalty order in relation to the contravention, whether or not such an application has been made, the Secretary may, by writing given to the person, require the person to give all reasonable assistance in connection with such an application.

767.       Current subsection 486U(4) provides that if a person fails to give assistance as required under subsection 486U(2), a court may, on the application of the Secretary,

order the person to comply with the requirement as specified in the order.

768.       The purpose of this item is to preserve an outstanding application for a civil penalty order against a person under the new legislation that was made before the new legislation commences.  This item also preserves a requirement by the Secretary to a person other than the wrongdoer to give reasonable assistance in connection with an application for a civil penalty order against another person that was made before the new legislation commences.  Finally, this item preserves the right of a court to order a person to comply with a requirement of the Secretary to give reasonable assistance in connection with an application for a civil penalty order that was made before the new legislation commences.

 

 

Item 33           Application - Part 8E of the Migration Act

769.       This item provides that Part 8E of the Migration Act, as inserted by this Schedule,

applies in relation to a work-related offence that is committed, or allegedly committed, before or after commencement.

770.       This item ensures that the investigation powers in relation to the work-related offences can be exercised in relation to a work-related offence, regardless of whether the offence is committed, or allegedly committed before or after the investigation powers commence.

Thus, even if a work-related offence is alleged to have been committed before the new legislation commences, the investigation powers in new Part 8E can be exercised in relation to the person who is alleged to have committed the offence.

 



                                                                                                                                       Attachment A        

Reform of Employer Sanctions

(Howells Review)

 

Regulation Impact Statement

2011

 

 


Table of Contents

Introduction . 3

Objective . 3

The existing employer sanctions framework   4

The problem .. 5

Other policies in place to reduce illegal work in Australia   7

Options . 7

Consultations . 32

How the proposal has been modified . 33

Recommendation and conclusion . 34

Implementation and review .. 35



Reform of Employer Sanctions (Howells Review)

Regulation Impact Statement

Introduction

1.     This regulation impact statement has been prepared by the Department of Immigration and Citizenship (DIAC).  Its purpose is to assist the Government to make decisions regarding the reduction of illegal work in Australia by non-citizens who work when they do not have a visa with permission to work or who work in breach of their visa conditions.

2.     This issue has arisen following the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007 conducted by independent legal expert Mr Stephen Howells (‘the Howells Review’). [1]   The Howells Review found that the existing employer sanctions framework has not proved to be an effective deterrent against the small number of employers and labour suppliers who persist in allowing or referring for work non-citizens who do not have the required permission.  It is estimated that these types of workers represent less than one per cent of the Australian workforce although the proportion is higher in low skilled occupations and certain industry sectors such as agriculture, forestry and fishing, construction and accommodation and food services. While this number may be relatively small compared to the overall Australian labour force (currently in the region of 12 million), it is a serious issue as it can undermine the perceived integrity of Australia’s migration program, reduce work opportunities for Australians and non-citizens with permission to work, may put at a competitive disadvantage businesses that comply with the law (by checking the work permission of non-citizens whom they employ or refer for work) and can contribute to the exploitation of vulnerable workers. 

3.     The existing employer sanctions framework seeks to deter illegal work hire practices through criminal sanctions for the offences of allowing or referring an unlawful non-citizen for work or allowing or referring a non-citizen to work in breach of a visa condition.  In addition to these criminal offences, the framework includes administrative warning notices and an awareness campaign that informs businesses who employ or refer of their responsibilities under the employer sanctions legislation. 

Objective

1.     The objective of this proposal is to minimise illegal work hire practices in Australia whilst limiting the regulatory impact on compliant businesses.



The existing employer sanctions framework

1.     Under the Migration Act 1958 (Migration Act), it is a criminal offence to ‘allow to work’ or ‘refer for work’ an unlawful non-citizen or a non-citizen who would therefore be in breach of a visa condition. [2]   These offences were introduced in 2007 by the Migration Amendment (Employer Sanctions) Act 2007. The offences are fault based meaning the prosecution must prove both physical and fault elements beyond reasonable doubt.  The physical element is that the employer or referrer allowed or referred for work the unlawful non-citizen or the non-citizen who worked in breach of their visa conditions.  The fault element is that the employer or referrer either knew that the worker did not have the required permission to work or was reckless to that fact.  These criminal offences attract maximum penalties of two years imprisonment and/or fines of up to $13 200 for individuals, and fines of up to $66 000 for companies.  The provisions also include aggravated offences where the employer or referrer knows that, or is reckless to whether, the worker is working in a situation of forced labour, sexual servitude or slavery.  The penalties for an aggravated offence are up to five years imprisonment and/or $33 000 for individuals and $165 000 for companies. 

2.     The employer sanctions provisions were recommended by the 1999 Review of Illegal Workers in Australia (RIWA).  The review recommended three tiers of sanctions: fault based criminal offences; non-fault civil penalty provisions and an infringement notice scheme. The non-fault civil penalty provisions and the infringement notice scheme were deferred in favour of the enactment of the fault-based criminal sanctions (which, as noted above, are the only sanctions in place against allowing or referring non-citizens to work without the required permission ) .

3.     Since the introduction of this sanctions regime was announced, DIAC has conducted an ongoing employer awareness campaign.  This campaign is targeted at businesses in high risk industries, and includes visits to businesses during which departmental officers explain employer responsibilities and how employers can check the work entitlements of prospective non-citizen employees using DIAC’s free Visa Entitlement Verification Online (VEVO) service.  Visits may be generated in a number of ways: from referrals from other government agencies, allegations or dob-ins, DIAC’s monitoring activity, analysis targeting high risk industries and from ad-hoc visits.  

4.     The department regularly visits employers providing advice on employer sanctions and the need to check visa work status.  It also continues to educate the broader business community about its responsibilities through various industry outreach programs, providing technical support and practical information on DIAC’s website and through the operation of the employer hotline.  

5.     Employers and labour suppliers who have previously received an employer awareness visit may be issued with an Illegal Worker Warning Notice (IWWN) to educate and caution them about their responsibilities under the employer sanctions provisions.  The warning notices advise employers that they have employed a non-citizen without the required permission to work and warn of the possibility of criminal prosecution.  The warning notices are administrative actions only and in themselves pose no actual threat of prosecution.  Mr Howells reported that anecdotal evidence indicates that IWWNs rarely create a deterrent.  Thus, despite these initiatives, there remain a number of deliberately non-compliant employers and labour suppliers.  

6.     Experience has shown that the current criminal offences are difficult to prosecute due to the evidential burden to prove ‘knowledge or recklessness’ to the criminal standard of proof and the requirements of the prosecution policy of the Commonwealth (which requires sufficient evidence to prosecute the case and that it must be evident from the facts of the case, and all surrounding circumstances, that the prosecution would be in the public interest).  This difficulty is a key finding by Mr Howells in his review of the effectiveness of the current criminal provisions. 

7.     Over the past four years DIAC has located some 6000 non-citizens working without the required permission, however, only some one hundred related cases of suspected illegal work have been investigated.  One impediment is the lack of clear authority for DIAC officers to gather documentary evidence of the employment relationship or referral for work.  Such evidence can only be gathered under specific warrants issued to the Australian Federal Police for use in criminal cases.  In addition, evidence establishing ‘knowledge or recklessness’ to the criminal standard of proof is often lacking or difficult to obtain.  Only the strongest of the one hundred cases investigated were referred to the Commonwealth Director of Public Prosecutions as the others were assessed as unlikely to be proven to the standard of ‘beyond reasonable doubt’ as required in criminal matters.  In fact only two cases have been prosecuted (with neither case testing the key elements as facts were conceded or a guilty plea entered). 

The problem

1.     The problem is composed of two parts; firstly that illegal work hire practices persist in Australia; and secondly that the current legislation and associated enforcement activity which is aimed at deterring businesses from hiring or referring these workers is ineffective.

2.     Despite the success of individual departmental compliance actions, the number of non-citizens working without permission has not been seen to decrease.  It is not possible to accurately calculate the number of working non-citizens who do not have lawful permission to work or who work in breach of their visa conditions.  As at 30 June 2011, DIAC estimates the number of non-citizens working without permission ranges from a lower limit of around 40 000 to an upper limit of around 93 800. 



Table 1 - List of activities over 3 years for Illegal Workers

ACTIVITY

2008-09

2009-10

2010-11

Employer Awareness Visits

2228

1423

1097

Illegal Worker Warning Notices

597

609

515

Illegal Workers Located

1231*

1669

1788

Estimate of non-citizens working

(range 40 000 to 93 800)  87 200

* As a result of updates to departmental systems, this figure differs from what was provided in the 2008-09 annual report

3.     There is a substantial case for more effective enforcement and deterrent measures.  Particularly in light of Mr Howells’ findings that the failure to curb the problem of illegal work invites exploitation of vulnerable people and encourages abusive employment practices.  It can also be associated with organised crime, abuses of welfare and tax systems and with fraud.  The conduct has impacts on the labour market.  It is unfair to those who wait for authorised entry and access to the labour market and it may mean that Australian citizens do not access employment.  The situation is more pronounced where work is unskilled and/or requires minimal English language proficiency.

4.     The presence of non-citizens who work when they do not have permission distorts the labour market and it gives an unfair competitive advantage to employers who use those workers if they are underpaid.  Mr Howells reported that there is substantial evidence that a small number of employers, labour suppliers and intermediaries are conducting organised rackets in which numbers of non-citizens that do not have permission to work are being brought to Australia, used as a cheaper source of labour and are being exploited.  Mr Howells found that the existing criminal sanctions do not work.  Despite two convictions, key criminal provisions remain untested in the courts.  The provisions do not educate nor deter the relevant group of employers and labour suppliers. 

5.     As discussed above, in DIAC’s experience, compiling evidence of ‘knowledge and/or recklessness’ to satisfy the burden of proof for the criminal offences has been a significant barrier to successful prosecution.  Additionally, the existence of fault-based offences coupled with the fact that there is no other sanction apart from an administrative warning, has had the tendency to encourage some employers to remain deliberately ignorant of the visa and work permission status of their employees.

6.     In his report, Mr Howells has recommended legislative amendments to address weaknesses of the current sanctions framework through the introduction of non-fault civil penalty provisions and an infringement scheme, with necessary evidence gathering powers to investigate and sanction these types of penalties, to enable DIAC to escalate its response to employer non-compliance.  The approach recommended by Mr Howells is detailed below in option two.

Other policies in place to reduce illegal work in Australia

1.     The problem of illegal work hire practices is currently addressed in three ways.  Firstly, through policies enabling non-citizens to work lawfully.  Secondly, through policies aimed at encouraging non-citizens themselves to comply with the conditions attached to their visa, including work conditions.  Thirdly, through policies aimed at encouraging businesses from employing or referring non-citizens who do not have lawful permission to work or who work in breach of their visa conditions as described above. 

2.     The department enables lawful work by non-citizens in Australia temporarily through the provision of a range of visas with work entitlements attached (for example: the 457 business; student; working holiday visa subclasses; and Pacific Seasonal Worker Pilot Scheme).  Information is available to prospective visa holders through information to applicants and online fact sheets providing details regarding the range of visas with work entitlements, the conditions of grant and of cancellation.  Registered migration agents also provide immigration information and assistance to visa applicants.

3.      The policies in place that are focussed on non-citizens aim to encourage voluntary compliance by assisting non-citizens to resolve their immigration status.  Where non-citizens are deliberately non-compliant, DIAC has the capacity to enforce compliance through, for example, visa cancellation, detention and removal from Australia.  Non-citizens may also be subject to civil sanctions as set out in section 235 of the Migration Act which provides for a maximum penalty of $10 000 for a non-citizen who works without permission.  This sanction is used rarely, as while the non-citizen may have contravened a civil penalty provision, prosecutions are costly and less effective than removing the non-citizen from Australia.

Options

1.     The options discussed below include both regulatory and non-regulatory options.  Although each option can stand alone, it is also possible to combine a regulatory option with the non-regulatory options to better meet the policy objective.

2.     To illustrate the main components of the regulatory options below are diagrams accompanying each option description, based on applying compliance and responsive regulation theory.  Membership of the categories in the diagrams is fluid, and businesses will change categories due to factors such as: the availability of information; compliance ease; perceived risk or actual sanction; and severity of sanction. 

3.     In these diagrams, the ‘compliers by default’ are businesses that do not need to do anything to comply with the legislation.  This may be for a number of reasons, for instance, they may be in low risk industries; only employ family members or people who they know to have work entitlements such as people who have grown up in their local community.  Rather than this being their active or discriminatory recruitment strategy, it is reflective of a set of circumstances that occur naturally for many businesses in Australia.  The majority of businesses in Australia are compliers by default.

4.     The ‘voluntary compliers’ are businesses that will do the right thing once they know of the requirement and how to comply (i.e. by checking the visa entitlements of prospective or ongoing non-citizen employees).  They will absorb compliance costs into their business practices and ensure that they meet their obligations.

5.     The ‘non-compliers’ are businesses that choose not to comply because they lack incentive or encounter difficulties or may accidentally not comply because they are unaware of their obligations.  To become compliant, some members of this group would respond to education and awareness campaigns, while others would need to perceive the threat of sanction as a cost that the business would seek to avoid.

6.     Finally, at the peak of the triangle, the ‘repeat non-compliers’ are aware of their obligations and are reluctant to comply because they perceive that the effort or cost of complying or the benefits of not-complying outweigh the perceived threat of sanction. They may only comply following imposition of or threat of a sanction, and if the sanction represents a cost that the business would seek to avoid.

Regulatory options

 

Option 1: Continuation of the status quo.

 

Option 2: The Howells approach: reform the employer sanctions framework by supplementing the existing criminal offences with non-fault based civil penalties and an infringement notice scheme. 

 

Option 3: Alternative to the Howells approach: reform the employer sanctions framework by supplementing the existing criminal offences with ‘fault-based’ civil penalty provisions and a statutory warning notice scheme.



Non-regulatory options

 

Option 4: Enhancements to the Employer Awareness Campaign (EAC).



Option 5: Enhancements to the Visa Entitlement Verification Online (VEVO) service.



Option 6: Enhanced education campaign for non-citizens about work entitlements.

Option 1: Continuation of the status quo (not recommended)

1.     This option proposes to continue the status quo as outlined above in paragraphs 1-6, and as discussed in the Howells Review.  Without an effective deterrent mechanism, illegal work hire practices are expected to increase, resulting in more non-citizens working without the required permission. 

2.     The conduct is expected to increase rather than continue at current levels as the Howells Review has brought illegal work hire practices into public focus and made an explicit finding that the existing framework is inadequate.  This accords with the department’s experience in dealing with employers on this issue.  The motivators or drivers for illegal workers will remain, or will increase, with an aging population.  Action to change the behaviour of employers of illegal workers is necessary.   Failure to take action upon the findings of the review could suggest that the government is implicitly accepting the conduct.  As employers are aware that the offences have proved generally unenforceable, opportunistic employers may view illegal work hire practices as more attractive.

3.     The chart below shows that under the status quo, the compliance tool kit is limited to education and awareness and warnings for all non-compliers, and criminal sanctions for repeat non-compliers.  With the existing framework being ineffective, and with no additional compliance tools, the non-compliers and repeat non-compliers will remain undeterred.  When compared to either option two or option three, the status quo presents as the least effective option to achieve the objective.

Pyramid chart showing compliance tools under Option 1 as described in the paragraph above



IMPACT ANALYSIS— Option 1: Continuation of the status quo

Impact groups

Costs

Benefits

Government

The integrity of the government’s migration program would be undermined (by lack of public confidence). 

DIAC would experience continued, possibly escalating, compliance effort associated with removal or regularisation of visa status as a result of likely increase in the number of non-citizens working without permission.

Failure to address the problem of illegal work now may make it harder to address the problem in the future when it is more entrenched.

Continued illegal work could impact the government through non-payment of taxes.

Inability for government to accurately identify (and then address) all areas of labour shortages due to use of illegal workers which mask the problem.

Limited Benefits

A continuation of the current system would require no additional resourcing for DIAC activities to promote education and awareness, or maintenance of the VEVO system; litigation costs remain low due to small number of criminal prosecutions.

 

Community

A continuation of the status quo would encourage a rise in the levels of illegal work, potentially encouraging people trafficking and other unlawful immigration by providing job prospects for non-citizens without work permission. 

A continuation would undermine the voluntary compliance messaging for existing visa holders/over-stayers.

The price of some goods and services may be lower, although this is a result of illegal activity (indirectly through employment of illegal workers).

Job seekers

(with valid work entitlements)

Australian, permanent resident and temporary visa holders with unlimited work rights’ employment opportunities would be undermined by the continued instance of illegal work, as market forces favour the employment of non-citizens who do not have work permission who may be paid lower wages. 

Job seekers with valid work entitlements may not have to provide this documentation to employers.

Less likely to be subjected to discriminatory labour hire practices (as employers are less likely to check work permission).

Non-citizens

(who do not have permission to work or who work in breach of their visa conditions)

Continued likelihood of non-citizens who do not have a visa with permission to work or who work in breach of their visa conditions being exploited through low wages and poor working conditions.

Only foreseeable benefits are resulting from illegal activity.

This group would continue to work (without permission) in the community, thus providing income to themselves and their families. 

Business

Repeat non-compliers

Nil costs.

 

Only foreseeable benefits are resulting from illegal activity.

Without any new evidence gathering powers, successful prosecutions would be unlikely as   knowledge or recklessness would need to be proven (beyond reasonable doubt). This would provide no incentive to change behaviour.  They would continue to avoid compliance costs.

Non-compliant employers can undercut compliant businesses by using cheaper labour (by not paying award rates to non-citizens working without permission) enabling these businesses to charge less for their goods or services.

Non-compliers

Nil costs.

Benefits as above.

Voluntary compliers

Compliance costs are the time taken to undertake a work entitlements check, and the time to read employer awareness material.

Businesses that employ workers at award rates of pay and conditions will continue to experience a competitive disadvantage to those employing and exploiting illegal workers.

Employers using VEVO to check work permission of non-citizen employees will minimise liability for criminal prosecution under existing sanctions.

 

Compliers by default

No compliance costs

Businesses that employ workers at award rates of pay and conditions will continue to experience a competitive disadvantage to those employing and exploiting illegal workers.

By default, minimise liability for criminal prosecution under existing sanctions.

Small business

Compliant small businesses may experience the impacts of competitive disadvantage more than larger businesses.  This may also have a disproportionate impact on regional small businesses. 

No additional time costs for undertaking work entitlements checks on VEVO.

1.     The foreseeable impact on labour market and wages through the continued use of illegal workers is expected to be low as illegal workers comprise less than one per cent of the Australian workforce, although the impact may be higher in some areas due to localised conditions.

Option 2: The Howells approach - reform the employer sanctions framework by supplementing the existing offences with non-fault based civil penalty provisions, and an infringement notice scheme

1.     This option is based on the recommendations of the Howells Review.  The proposed framework is designed to deter non-compliant behaviour by implementing enforceable graduated responses.  It commences with employer education and awareness and can escalate to administrative warnings, low-level financial infringements or, in selected cases, to courts through the non-fault based civil penalties scheme and the criminal penalties remain available to address the most serious cases.

2.     The existing criminal offences and associated penalties will remain in place.  The current criminal offence provisions will be amended to clarify the scope of employment relationships that come within the employer sanctions law to address problems identified by Mr Howells where contractors, sub-contractors or sub-sub-contractors are used which has made it difficult to identify the legally responsible party.  This element would also apply to the proposed non-fault based civil penalty and infringement notice provisions with appropriate defences being available to those who took reasonable steps to ensure that the non-citizen allowed or referred for work has the required work permission.

3.     The new non-fault based civil penalty provisions would be contravened in circumstances where a person:

·         allows a non-citizen to work when that non-citizen does not have current permission to work in Australia

·         refers a non-citizen for work when that non-citizen does not have current permission to work in Australia

·         allows a non-citizen to work in breach of a visa condition that limits or restricts work but only where the breach exclusively occurs as a consequence of that action, or

·         refers a non-citizen for work where that non-citizen would breach a visa condition that limits or restricts work but only where the breach would exclusively occur as a consequence of that action.

4.     The civil penalties will be able to be made out on the balance of probabilities.  The maximum penalty that a court could impose will be less than the maximum that can be imposed under the criminal offences.  There will be statutory defences where the employer or referrer took reasonable steps to confirm or verify a non-citizen held a visa with the required permission to work, thus limiting the impact this proposal has on compliant businesses.  Such steps may include viewing evidence of citizenship or permanent residence; viewing a visa label indicating permission to work; or conducting a work rights check via the VEVO system.  Note: the expectation is that not all prospective employees would have work permission checks done, only those of non-citizens temporarily in Australia.  As now, businesses will continue to need to make judgements about whether it would be appropriate to check the visa and work status of a prospective or ongoing employee.  Such steps may include viewing evidence of citizenship or permanent residence; viewing a visa label indicating permission to work; or conducting a work rights check via VEVO.

5.     An infringement notice scheme will be created as an alternative to commencing court proceedings for contraventions of these civil penalty provisions.  The infringement notice scheme would enable the department to issue an infringement notice in respect of a contravention of a civil penalty provision.  The business receiving the infringement notice would have the option of avoiding court action in the first instance by paying the amount specified.  The amount of the fine would not exceed one-fifth of the maximum penalty that the court could otherwise impose for the civil penalty. 

6.     Current powers under the Migration Act do not allow for gathering evidence for civil penalty provisions (and DIAC can not rely on Crimes Act warrants executed by the Australian Federal Police to gather relevant evidence for civil penalty contraventions).  New evidence gathering powers will be created to allow authorised DIAC officers to enter premises, inspect any work, interview any person, require documentation, seize documentation, and require information from any person in relation to establishing a breach of the new civil penalty regime and to obtain a search warrant if required.  These powers are necessary for DIAC to investigate and sanction employers under the civil penalty and infringement schemes.  The powers would be similar to those already provided in the Migration Act for other enforcement and monitoring activity such as those established by the Migration Legislation Amendment (Worker Protection) Act 2009

7.     The new employer sanctions provisions will be supplemented by the existing administrative Illegal Worker Warning Notice (IWWN) and reinvigorated and targeted employer education and awareness activities already undertaken by departmental officers. 

8.     An enforcement strategy will be developed that is focused on encouraging voluntary compliance by informing businesses of the new penalties, how they can comply and pursuing only as many breaches as is necessary to enhance the deterrence message. 

9.     The proposal will establish an employer sanctions framework designed to maximise voluntary compliance and a graduated series of sanctions where the response can be tailored to the level of non compliance—from education and information, warnings, infringements and civil penalties to criminal prosecution for the most serious of breaches.

10.   Enforcement may be escalated (through the new sanctions framework, as demonstrated in the triangle below) when those who know what to do to comply instead chose non-compliance.  This approach to enforcement will only work when there is a capacity to escalate deterrents - the existence of an effective infringements and civil penalty provisions regime has value in shaping employer behaviour, even if prosecution activity is relatively low.  The DIAC compliance focus will be on information, education and warnings and selective use of infringements and civil penalty provisions where the deterrent impact can be maximised.  This will mean a small number of infringements and civil penalties that are carefully assessed to gain the most positive outcome in the courts and maximising our promotion of such wins.

11.   An effective campaign aimed at employers and industry groups to raise awareness of the new offences and how to comply, including where it would be prudent to check work entitlements is key for successful implementation.  That campaign will focus efforts on high risk industries where employer non-compliance has already been identified.  The campaign is detailed in the non-regulatory options below at option four.  Providing employers with enhancements and referrers to the VEVO service would also be beneficial.  This would be achieved through implementation of option five. 

12.   The chart below shows the majority of businesses remaining as or becoming compliant through this option.  The infringements scheme is designed to deter the non-compliers, as this tool ensures that the risk of detection of non-compliance is real, and the infringements represent a cost that businesses would seek to avoid.  To avoid the cost of a fine, businesses need to move further towards the base of the triangle (ie voluntary compliers).  Taking into account that some businesses would not seek to avoid a fine of this scale, and may not be deterred, this option provides two higher sanction options (civil and criminal penalties).

Pyramid chart showing compliance tools under Option 2 as described in the above paragraph.

13.   With a greater number of more appropriate, and enforceable tools (compared to option one and option three), this option is expected to function as the most effective deterrent.  The triangle demonstrates that the majority of businesses will remain or become compliant through this option.  The infringements scheme is designed to deter the non-compliers, as this tool ensures that the risk of detection of non-compliance is real, and the infringements represent a cost that businesses would seek to avoid.  To avoid the cost of a fine, businesses need to move further towards the base (ie voluntarily complying) of the triangle.  Taking into account that some businesses would not seek to avoid a fine of this scale, and may not be deterred, this option provides two higher sanction options (civil and criminal).

14.   In this option, the non-fault civil penalty provisions can be proven more easily than the fault based offences provided in option three. When compared to option three, this option would secure more civil convictions, and create a greater deterrent effect, whilst not presenting any significant additional compliance burden on business.  Similarly, the infringements scheme presents a cost that businesses would seek to avoid, whereas the statutory warning notice presented in option three does not represent any cost to business and would therefore be unlikely to deter non-compliance.



IMPACT ANALYSIS—Option 2: The Howells approach: reform the employer sanctions framework by introducing strict liability civil penalty and infringement notice schemes.



Impact groups

Costs

Benefits

Government

Legislation is required to amend the Migration Act to impose new strict liability civil penalties and infringement scheme.  The amendments would not affect other regulatory authorities.

The introduction of the new sanctions regime would require resources to implement (DIAC training, IT systems changes, public awareness and information, etc). 

Litigation costs may increase, due to the inclusion of civil penalty provisions.

As a non-fault based civil penalties, proving breaches will be easier (as ‘knowledge or recklessness’ does not need to be proven) making the sanction more effective.

With the expected deterrent effect of the reforms, there would be fewer opportunities and instances of illegal work, particularly when compared to the likely deterrent effect of option three.

The integrity of the visa system controlling the entry of non-citizens would benefit from fewer non-citizens working without permission and supports and reinforces the use of legitimate methods for entering and working in Australia.

There would be more effective use of compliance and investigative resources associated with the sanctioning of employers, as the three tiers of sanctions will allow more graduated options to targeted and sanction for the severity of the offence. 

 

 

The government will receive increased revenue by legal workers paying taxes, and employers/referrers paying penalties. 

The government may be able to better identify areas of labour shortages, as less illegal work is undertaken.

Community

Potentially, the price of some goods and services may not be as low as the labour input will not be using illegal workers.

Increased public confidence in the immigration program due to more effective compliance with visa rules.

Potentially discourages exploitation, people trafficking and other unlawful immigration by reducing job prospects for non-citizens without work permission.   

Job seekers

(with valid work entitlements)

Non-citizen job seekers may need to provide proof of entitlement to work in Australia.

There is the possibility that job seekers may experience discrimination when seeking work, if they cannot easily verify their identity/work entitlements. This could be avoided through the in-tandem adoption of the employer awareness option.

Improved access to employment opportunities for those non-citizens with permission to work and Australian citizens. 

 

Non-citizens

(who do not have lawful permission to work or who work in breach of their visa conditions)

Non-citizens may not be able to obtain work (irrespective that this is the policy objective) and therefore not be able to support their families.

It is likely that there will be less exploitation of this group. 

 

Business

 

Repeat non-compliers

Will be at risk of being issued an infringement or incurring civil or criminal penalties

Employers will not be able to use illegal labour to gain competitive advantage.

Nil benefits

Non-compliers

Will be at risk of being issued an infringement or incurring civil penalties

Employers may not be able to access illegal labour to gain competitive advantage.

Nil benefits

Voluntary compliers

The department currently advises businesses to take a risk based approach to checking the work entitlements of non-citizens they are seeking to employ.  In the case of businesses that do not currently undertake such checks, new low level compliance costs may be incurred.  The impact may be greater across industries that traditionally employ higher numbers of unskilled or low skilled or itinerant workers, such as the agriculture, construction and accommodation/food service industries. 

Businesses may risk taking a discriminatory approach towards hiring of workers, and this could lead to litigation.

Businesses that choose to use VEVO would incur small cost to connect to the internet and in the time taken to check VEVO (of a few minutes only).

VEVO usage is expected to increase as more business become compliant.  This is likely to result in an overall increase in time costs to businesses; however, it is not possible to precisely quantify this across all Australian businesses.

There may be a proportionally higher impact on businesses in regional areas or particular sectors, which are more reliant on illegal workers

Due to their compliance by checking work permission, these businesses would avoid liability under the new civil penalties and infringements. This would provide incentive to non-compliant businesses to change behaviour, and thereby lead to increased compliance.

Increased employer compliance will create greater market competition, as there will be fewer businesses operating with a competitive advantage due to the lower overheads associated with employing illegal workers.

Greater market competition will enable more success for compliant businesses, and encourage those businesses to remain compliant.

 

Compliers by default

The vast majority of businesses fall into this category.  They do not employ non-citizens without permission to work.  There are no costs to these businesses.  

Benefits as above

Small business

Actively compliant small business would likely experience slightly higher time cost when undertaking work entitlements checks.

 

Compliant small businesses would experience the same benefits as noted above for business generally. 

Improved competition may more positively impact compliant small businesses, particularly in certain industries or regions. 

 

  1. The foreseeable impact on labour market and wages through the reduced use of illegal workers is expected to be low as illegal workers comprise less than one per cent of the Australian workforce (and this number is expected to decrease), although the impact may be higher in some areas due to localised conditions.  Similarly, the impact on business in general may differ in some areas due to regional or sectorial conditions, such as greater reliance on itinerant or seasonal non-citizen labour.  It is not possible to calculate this with any accuracy, however, the impact is not significant overall given the size of the Australian workforce and identifiable sources of alternative (legal) labour.  This impact can be minimised through alternative sources of labour (for example, non-citizens with work permission such as working holiday makers or entrants under the Pacific Seasonal Workers Pilot Scheme or other government measures to address labour shortages).

Option 3: Alternative to the Howells approach—reform the employer sanctions framework by supplementing the existing criminal offences with ‘fault based’ civil penalty provisions and a statutory warning notice scheme (Not recommended)

1.     This option is an adapted version of the three tiers recommended by Mr Howells and has been developed as a result of stakeholder consultations. While Mr Howells recommended strict liability civil penalties, some key stakeholders have criticised his approach as untargeted and creating undue burden on businesses who do not seek to do the wrong thing.

2.     Option three proposes fault-based civil penalties that could be made out on the balance of probabilities.  Under this model the burden of proof remains with the prosecution (whereas it shifts to the defendant under the non-fault based provisions in option two). 

3.     The third tier in this option is a statutory warning notice rather than the infringement notice which is available in option two as it would not be consistent with Australian Government policy to attach an infringement scheme to a fault-based offence.

4.     All other aspects described in option two, that is, modifications to the definitions associated with the criminal offences, their application to the civil penalty provisions; and the additional powers to gather documentary evidence are also elements of this option.

5.     The deterrent effect of option three is shown in the chart below in which  the proportion of non-compliers has decreased in comparison to the status quo, however, this reduction is not as pronounced as the reduction shown in option two. The chart also shows an increase in the proportion of ‘active compliers’ compared to the status quo.  This group has absorbed a proportion of the non-complier group, who are expected to actively comply due to the deterrent effect of the new civil sanctions and infringements

6.     The deterrent effect of option three is demonstrated in the triangle whereby there has been a decrease in the numbers of non-compliers when compared to the status quo, but this reduction is not as pronounced as the reduction expected for option two.  As illustrated below, the number of ‘active compliers’ will increase compared to the status quo.  This group will absorb some members of the non-complier groups, who will now actively comply due to the deterrent effect of the new civil sanctions.

 

Pyramid chart showing compliance tools under Option 3 as described in the above paragraph

7.     In this option, proving the fault-based element of the civil penalty  provision, the same evidentiary difficulties would be encountered as are currently encountered with the existing criminal offences.  Comparatively, the fault-based civil penalty provisions would not have the same deterrent effect as the non-fault based civil penalty provisions provided in option two. 

8.     In general, some non-compliers may be deterred from non-compliance through the statutory warning notice, however, this deterrent effect would be markedly less than that of an infringement scheme which would represent a cost that business would seek to avoid.  In order for a penalty to deter, it needs to be recognised and experienced as a cost that the business wants to avoid, and the statutory warning notice does not present any cost to a business.  Further, this option does not provide sufficiently graduated penalties to encourage wider compliance by employers.  An effective sanctions system will need to facilitate voluntary compliance and this will require a demonstrated capacity to escalate deterrents.



IMPACT ANALYSIS— Option 3: Alternative to the Howells approach— reform the employer sanctions framework by supplementing the existing criminal offences with three ‘fault based’ civil penalty provisions and a statutory warning notice scheme



Impact groups

Costs

Benefits

Government

Legislation is required to amend the Migration Act to impose new fault-based civil penalty provisions and statutory warning notices The amendments would not affect other regulatory authorities.  

The introduction of the new sanctions regime would require resources to implement (DIAC training, IT systems changes, public awareness and information, etc). 

Litigation costs may increase, as instances of civil penalty litigation may increase.

Prosecution would need to prove knowledge or recklessness, before a conviction can be achieved, because all the penalties would be fault based. This may provide no incentive to non-compliant businesses to change behaviour as they can plead ignorance as an excuse. This would mean that this model is not as effective a deterrent as option two. 

With the expected deterrent effect of the reforms, there would be fewer opportunities and instances of illegal work - but not to the same degree as in option 2 due to lesser deterrent value of this option.

The integrity of the visa system controlling the entry of non-citizens, will benefit from fewer non-citizens working without permission and reinforces the use of legitimate methods for entering and working in Australia.

There would be more effective use of compliance and investigative resources associated with the sanctioning of employers, as the three tiers of sanctions will allow more options for targeted and appropriate sanctioning for the level of the offence. 

The government will receive increased revenue by legal workers paying taxes. 

The government may be able to better identify areas of labour shortages, as less illegal work is undertaken.

 

Community

 

Increased public confidence in the immigration program due to more effective compliance with visa rules.

The price of some goods and services may be lower, although this is a result of illegal activity (indirectly through employment of illegal workers).

 

 

 

 

Job seekers

(with valid work entitlements)

Non-citizen job seekers may need to provide proof of entitlement to work in Australia.

There is the possibility that non-citizen job seekers may experience discrimination when seeking work, if they cannot easily verify their identity/work entitlements.

Improved access to employment opportunities for those with a right to work and Australian citizens.

 

Non-citizens (who do not have lawful permission to work or who work in breach of their visa conditions)

Non-citizens may not be able to obtain work and therefore not be able to support their families (though not to the same degree as option two).

It is likely that there will be less exploitation of this group. 

 

Business

Repeat non-compliers

Will be at risk of being issued a statutory warning notice or incurring civil or criminal penalties

Reduced opportunities for employers to access illegal labour to gain competitive advantage.

Will be at risk of incurring civil penalties or being issued a statutory warning notice.

Only foreseeable benefits are resulting from illegal activity.

Despite the new evidence gathering powers, successful prosecutions would be less likely than under option two as   knowledge or recklessness would need to be proven (albeit on the balance of probabilities). This would provide less incentive to these businesses to change behaviour, and therefore avoid compliance costs.

 

Non-compliers

Have reduced opportunities to access illegal workers to gain competitive advantage.

Will be at risk of incurring civil penalties or being issued a statutory warning notice.

 

Benefits as above.

Voluntary compliers

The vast majority of businesses in Australia do not employ non-citizens without permission to work.  The impact on most businesses is estimated to be low.  

The department currently advises businesses to take a risk based approach to checking the work entitlements of non-citizens whom they are seeking to employ.  In the case of businesses that do not currently undertake such checks, low level compliance costs may be incurred.  The impact may be greater across industries that traditionally employ higher numbers of unskilled or low skilled or itinerant workers, such as the agriculture, construction and accommodation/food service industries. 

Businesses may risk taking a discriminatory approach towards hiring of workers, and this could lead to litigation.

Businesses that choose to use VEVO would incur small cost to connect to the internet and in the time taken to check VEVO (of a few minutes only).

VEVO usage is expected to increase as more business become compliant.  This is likely to result in an overall increase in time costs to businesses; however, it is not possible to precisely quantify this across all Australian businesses.

There may be a proportionally higher impact on businesses in regional areas or particular sectors, which are more reliant on illegal workers 

Businesses may choose to deliberately ignore requirement to check work permission to avoid liability under fault-based sanctions.

Increased employer compliance will create greater market competition, as there will be fewer businesses operating with a competitive advantage due to the lower overheads associated with employing illegal workers - but not to the same degree as in option 2 due to lesser deterrent value of this option.

Greater market competition will enable more success for compliant businesses, and encourage those businesses to remain compliant, but not to the same degree as in option 2 due to lesser deterrent value of this option.

Employers using VEVO to check work permission of non-citizen employees will minimise liability for criminal prosecution under existing sanctions.

Compliers by default

Nil compliance cost

Benefits as above

Small business

Actively compliant small business would likely experience slightly higher time cost when undertaking work entitlements checks.

Compliant small businesses would experience the same benefits as noted above. 

Improved competition may more positively impact compliant small businesses, particularly in certain industries or regions. 

 

1.     The foreseeable impact on labour market and wages through the reduced use of illegal workers is expected to be low as illegal workers comprise less than one per cent of the Australian workforce (and this number is expected to decrease), although the impact may be higher in some areas due to localised conditions.  Similarly, the impact on business in general may differ in some areas due to regional or sectorial conditions, such as greater reliance on seasonal non-citizen labour.  It is not possible to calculate this with any accuracy; however, the impact is not significant overall, and less than that in option two, given the size of the Australian workforce.  This impact can be minimised through alternative sources of labour (for example, non-citizens with work permission such as working holiday makers or entrants under the Pacific Seasonal Workers Pilot Scheme; or other Government measures to address labour shortages).

Option 4: Enhancements to the Employer Awareness Campaign (EAC)

1.     The department has had an existing national communication strategy and employer awareness campaign for a number of years (predating the 2007 criminal sanctions).  As a part of the strategy and campaign, DIAC has provided information via DIAC’s website and through a range of printed materials distributed through industry stakeholders and networks of departmental outreach officers.

2.     This option provides a reinvigorated awareness campaign and ongoing, targeted employer education activities. The strategy comprises four phases: enhance awareness of requirements for employing non-citizens; inform employers of new infringements/penalties for employing non-citizens who do not have lawful permission to work or who work in breach of their visa conditions; motivate employers to check work rights and immigration status; and generate support for the government’s policy among employers and stakeholders.  Through generating awareness and public support for the policy, it is expected that allegations made through DIAC’s dob-in hotline will increase.  While every Australian employer is a target for receiving information about the changes, the strategy will seek to focus on key industries where non-compliance has been identified.  We will also work with industry associations, unions, peak bodies and chambers of commerce in disseminating key messages.

3.     As employers, visa holders and members of the general public become more familiar with the restrictions against employing non-citizens who do not have the required permission to work and the sanctions involved, it is likely that the employment opportunities for non-citizens who do not have the required permission to work would decrease. 

4.       In order to achieve these objectives, the campaign will seek to focus on key industries where employer non-compliance has already been identified.  The first area of attention would be employers of low-skilled/unskilled, casual/shift workers in targeted high risk industries where, in DIAC’s experience, illegal work commonly occurs.  The second focus of the program will be industry associations, unions, peak bodies and chambers of commerce.  Finally, the campaign would be directed at general employers, outside of the identified high-risk industries.

5.     The awareness campaign is designed to work with either of the two regulatory reform options, as education and awareness are critical to achieving voluntary compliance and the campaign has received strong and wide-spread support in stakeholder consultations to date. 

IMPACT ANALYSIS - Option 4: Enhancements to the Employer Awareness Campaign (EAC)

Impact groups

Costs

Benefits

Government

This option will result in financial outlay for the government

 

This option will be a reasonably cost effective way for government to encourage voluntary compliance.

Community

Non-citizens who do not have lawful permission to work or who work in breach of their visa conditions

As employers become more familiar with the restrictions against employing this group and the sanctions involved, it is likely that the employment opportunities for this group would decrease.

Members of this group who may not have been aware of their visa entitlements, or work standards in Australia could become aware and consequently voluntarily cease working illegally. 

Business

Repeat non-compliers

These businesses may or may not take the time to read or listen to the provided information material.

Employers will become more familiar with the restrictions against employing non-citizens who do not permission to work, the sanctions and the work entitlements verification tools available.

Greater awareness of penalties and ease of checking non-citizens’ work status may lead to increased voluntary compliance by business. If members of this group become voluntarily compliant, they will avoid sanctions. 

The voluntary compliance of businesses will lead to increased market competition, which will benefit business.

Non-compliers

 

Costs as above.

Benefits as above.

 

Voluntary compliers

There are no costs for business under this option other than the time taken to read or listen to the provided information material.

This group may benefit from the refreshed campaign, particularly if the campaign provided more information about the introduction of either option two or three. 

Compliers by default

These businesses may or may not take the time to read or listen to the provided information material.

Nil benefits

Small business

Some small businesses may not have the time to read the information material distributed as a part of the campaign. 

 

Compliant small businesses may become aware, if they are not already aware, of cost efficient ways to verify work entitlements.

If work entitlements checks are undertaken they will avoid the risk of sanction.

Option 5: Enhancements to the Visa Entitlement Verification Online (VEVO) service

1.     VEVO is a free online facility run by DIAC that allows registered users to check a non-citizen’s visa status and visa conditions. [3]   It has been available since 2004 and operates 24 hours seven days a week.  Organisations and non-citizen clients need to register to access VEVO. There are no costs associated with registering for and using the VEVO tool apart from connection to the internet.  Work condition checks on VEVO generally take only a few minutes with an immediate response.   

2.     The department currently recommends employers take a risk-based approach to work entitlements checking for new employees. This recommendation would remain if option two or three were implemented.  As a part of the risk based approach, if employers suspect a person is a non-citizen they should undertake a work entitlements check (via VEVO or the fax back facility) to establish whether the person has work entitlements. Given that visa and work entitlement status for a non-citizen may change over time, the ‘allower’ or ‘referrer’ should also take reasonable checks to ascertain the non-citizen holds a visa with current work permission. 

3.     The Australia Bureau of Statistics estimates that between 87 per cent and 93 per cent of small businesses have internet access and around 97 per cent of these businesses have broadband access. [4]   Internet access for larger businesses was estimated at between 98-99 per cent, and of these 98-99 per cent were using broadband internet.  With the majority of businesses using broadband internet, the costs for most businesses to access VEVO are minimal.

4.     Checking visa details using VEVO is less susceptible to fraud (through people altering or counterfeiting paper visa labels), and provides more accurate and up-to-date information than checking visa labels.  As DIAC has a label-free strategy which aims to