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Migration Legislation Amendment (Worker Protection) Bill 2008

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2008

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

SENATE

 

 

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (WORKER PROTECTION) BILL 2008

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

Senator the Hon. Chris Evans)

 



MIGRATION LEGISLATION AMENDMENT (WORKER PROTECTION) BILL 2008

 

OUTLINE

The Migration Legislation Amendment (Worker Protection) Bill 2008 (‘the Bill’) amends the Migration Act 1958 (‘the Migration Act’) to enhance the framework for the sponsorship of non-citizens seeking entry to Australia.  The bill is designed to preserve the integrity of the Australian labour market and ensure that the working conditions of sponsored visa holders meet Australian standards.

 

The sponsorship framework is improved through four main measures:

·          providing the structure for better defined sponsorship obligations for employers;

·          improved information sharing across all levels of government;

·          expanded powers to monitor and investigate possible non-compliance by sponsors; and

·          introduction of meaningful penalties for sponsors found in breach of their obligations.

 

More specifically the Bill:

·          repeals provisions providing for sponsorship undertakings to be made and replaces them with provisions allowing for the creation of new sponsorship obligations that will automatically apply to an approved sponsor;

·          introduces civil penalty provisions for failure to satisfy a sponsorship obligation, and a supporting civil penalty framework which provides that in addition to ordering payment of a pecuniary civil penalty, a court may order payment of a debt owed to a person in relation to a sponsorship obligation.

·          maintains and enhances the existing sanction and enforcement tools in relation to sponsorship which include:

o    barring a sponsor from sponsoring more people, or making further applications for approval as a sponsor;

o    cancelling a person’s approval as a sponsor;

o    requiring the taking or enforcing of a security bond;

o    providing that a person to whom a debt is owed in relation to a sponsorship obligation may apply to a court to recover that amount.

·          establishes a monitoring regime to promote compliance with sponsorship obligations which provides for the appointment of  inspectors with powers to enter premises and require documents or things in relation to a sponsor’s compliance with the sponsorship obligations and other requirements;

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

·          amends the Tax Administration Act 1953 (the TAA) to allow the Commissioner of Taxation to disclose certain information to an officer of the Department of Immigration and Citizenship. The information must be relevant to the exercise of the Minister’s powers under Division 3A of Part 2 of the Migration Act;

·          provides that a party to an agreement entered into with the Minister to facilitate the entry to Australia of non-citizens for the purposes of work, is subject to sponsorship obligations, civil penalties for breach of sponsorship obligations, and the new monitoring and information gathering powers;

·          ensures that where a partnership or unincorporated association is an approved sponsor, it is the persons who are the partners or members of the association’s committee of management at any given time who are required to satisfy the sponsorship obligations;

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

 

 

financial impact statement

 

The Bill will have minimal financial impact.

 

The 2008/09 Budget allocated $19.6 million over four years (including $0.4 million in capital funding in 20008/09) to develop and introduce legislation to better define employers’ obligations, improve investigative powers and develop a more robust sanctions framework and conduct a related comprehensive information campaign.

 

There will also be modest revenue in the forward years from the new civil penalties and infringement notices regime.

 

 

 

 

 

 

 

 

 



MIGRATION LEGISLATION AMENDMENT (WORKER PROTECTION) BILL 2008

 

notes on individual clauses

 

Clause 1          Short title

 

1.       Clause 1 provides that the short title by which the Act may be cited is the Migration Legislation Amendment (Worker Protection) Act 2008.

 

Clause 2          Commencement

 

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

 

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

 

Table Item 2   provides that Schedules 1 and 2 commence on a single day to be fixed by Proclamation.  However, it also provides that if any of the provision(s) do not commence within the period of 9 months beginning on the day on which the Act receives the Royal Assent, they commence on the first day after the end of that period.

 

3.       The period is set at 9 months to allow the recommendations of various review and consultation processes to be taken into account in drafting the regulations, policies and procedures that will support the new provisions on commencement.  This includes a Visa Subclass 457 Integrity Review being conducted by an industrial relations expert as well as considerations by a Skilled Migration Consultative Panel consisting of representatives from industry, unions and State Governments.

 

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

 

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

 

Clause 3          Schedule(s)

 

6.       This clause provides that each Act specified in a Schedule to the Migration Legislation Amendment (Worker Protection) Act 2008 is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to Migration Legislation Amendment (Worker Protection) Act 2008 has effect according to its terms.



Schedule 1—Migration Act 1958

 

Part 1—Amendments

 

Item 1                         Subsection 5(1) (definition of approved sponsor )

 

7.       This item substitutes the current definition of “approved sponsor” in subsection 5(1) of the Migration Act with a new definition.  The current definition of “approved sponsor” provides that in relation to a visa of a kind to which Division 3A of Part 2 of the Migration Act applies, “approved sponsor” has the meaning given by section 140D.

 

8.       Current section 140D has the effect that a person (the first person) is an “approved sponsor” in relation to another person (the second person) once the first person, approved under existing section 140E, has consented in writing to sponsor the second person.

 

9.       Item 1 replaces this definition to provide that a person is an “approved sponsor” if they meet one of two descriptions; namely the person is approved as a sponsor under section 140E, or is a party to a work agreement.

 

10.   An “approved sponsor” is a person who has been approved by the Minister under section 140E in relation to a class of approved sponsor (the classes are prescribed under subsection 140E(2)), and whose approval in relation to that class of approved sponsor has not been cancelled under section 140M or otherwise ceased to have effect under section 140G.

 

11.   Alternatively, an approved sponsor is a person, other than a Minister, who is a party to a work agreement (item 8 inserts a definition of work agreement by reference to satisfying prescribed requirements). Generally, a work agreement is a n agreement between the Commonwealth, represented by one or more Ministers, and another person or organisation detailing arrangements whereby the other person may sponsor temporary visa holders to perform work.

 

12.   In relation to persons approved under section 140E, the effect of this amendment is that a person becomes an “approved sponsor” once they have met certain approval criteria (prescribed under section 140E), as opposed to when they have provided their consent in writing to sponsor a particular visa applicant (which is the position under the current law).

 

13.   The purpose of moving forward the point at which a person becomes an “approved sponsor” is to ensure that a person can be required to satisfy a sponsorship obligation  from the time they meet the sponsorship approval criteria under section 140E (i.e. before a visa is granted). An example of the type of obligation that would be desirable to impose before a visa is granted could be the obligation to notify the Department of Immigration and Citizenship (the department) of any change in circumstances that may affect the sponsor’s capacity to comply with obligations; or any change to the information that contributed to the business or organisation being approved as a sponsor, or the approval of a nomination.

 

14.   Under new section 140H (inserted by item 19) a person can only be required to satisfy sponsorship obligations if they are an “approved sponsor” or former “approved sponsor”.

 

15.   For sponsors approved under section 140E, a further effect of this amendment is that a person ceases to be an “approved sponsor” in relation to a class of approved sponsor when their approval as a sponsor in relation to that class is cancelled under section 140M, or a term of the approval under section 140G ceases the approval. However, a person will continue to be an “approved sponsor” in relation to a particular class of approved sponsor despite being the subject of a barring action under section 140M.

 

16.   In relation to sponsors who are a party to a work agreement, the effect of this amendment is that a party to a work agreement, other than a Minister, is an approved sponsor. This means that a party to a work agreement is required to satisfy the sponsorship obligations prescribed under subsection 140H(1), unless a sponsorship obligation is varied by a term of the work agreement (this is discussed at item 19). By virtue of being an approved sponsor, a person who is a party to a work agreement is also subject to the civil penalty provisions, investigation powers, information disclosure powers, and other provisions in Division 3A of Part 2 of the Migration Act.

 

17.   This item also inserts a note under the definition of “approved sponsor”. The note advises that due to new subsections 140ZB(1) and 140ZE(1) (inserted by item 30), a “person” is not limited to being a body corporate or a natural person, but may also be a partnership or an unincorporated association.

 

Item 2                         Subsection 5(1)

 

18.   This item inserts a definition of “civil penalty provision” into the definitions section of the Migration Act. It provides that “civil penalty provision” means a provision of the Migration Act that has set out at its foot the words “civil penalty” and one or more amounts in penalty units.

 

19.   New section 140Q (inserted by item 27) inserts two civil penalty provisions. Civil penalty provisions have not previously been included in the Migration Act.

 

Item 3             Subsection 5(1)

 

20.   This item inserts a definition of “committee of management” of an unincorporated association into the definitions section of the Migration Act. It provides that “committee of management” of an unincorporated association means a body, however described, that governs, manages or conducts the affairs of the association.

 

21.   This definition is currently included in Subdivision C of Division 3A of Part 2 of the Migration Act and is defined for the purposes of that Subdivision. The effect of this amendment is that the definition will apply for the purposes of the Migration Act. 

 

Item 4             Subsection 5(1)

 

22.   This item inserts a definition of “eligible court” into the definitions section of the Migration Act. It provides a list of courts that are “eligible courts” which includes the Federal Court, the Federal Magistrates Court, a District, County or Local Court, a magistrates court, or any other State or Territory court as prescribed.

 

23.   This definition allows the regulations to prescribe other State or Territory courts as “eligible courts”. Additionally, new subsection 140S(4) (inserted by item 27) confirms that for the purposes of the definition of “eligible court”, the regulations may prescribe other State or Territory courts as “eligible courts” in which an amount may be recovered under section 140S.

 

Item 5             Subsection 5(1)

 

24.   This item inserts a definition of “lawyer” into the definitions section of the Migration Act. It provides that “lawyer” means 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.

 

25.   This definition of “lawyer” is currently provided at section 275 of the Migration Act for the purposes of Part 3 of the Migration Act. Section 486K of the Migration Act also provides that “lawyer” has the same meaning as in Part 3 of the Migration Act. New section 486U (inserted by item 42 of this Bill) also includes the word “lawyer”.

 

26.   The effect of this amendment is that the definition will apply for the purposes of the whole Migration Act. Items 32 and 41 repeal the definition of “lawyer” from sections 275 and 486K respectively.

 

Item 6             Subsection 5(1)

 

27.   This item inserts a definition of “penalty unit” into the definitions section of the Migration Act. It provides that “penalty unit” has the same meaning as that given in 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.

 

Item 7             Subsection 5(1)

 

28.   This item inserts a definition of “personal information” into the definitions section of the Migration Act. It provides that “personal information” has the same meaning as that given in the Privacy Act 1988 . Section 6 of the Privacy Act 1988 provides that personal information means information or an opinion (including information or an opinion forming part of a database), whether true or not, and whether recorded in a material form or not, about an individual whose identity is apparent, or can reasonably be ascertained, from the information or opinion.

 

29.   The definition of “personal information” is currently included in various places throughout the Migration Act for the purposes of specific provisions. The definition of “personal information” in each of these provisions is the same definition inserted by this item.

 

30.   The effect of this amendment is to include the definition of “personal information” for the purposes of the whole Migration Act. Items 31, 33-40, and 43 repeal the definition of “personal information” or remove reference to the Privacy Act 1988 from other provisions of the Migration Act.

 

Item 8             Subsection 5(1)

 

31.   This item inserts a definition of “work agreement” into the definitions section of the Migration Act. It provides that a “work agreement” is an agreement which satisfies requirements prescribed by the regulations. This definition allows the regulations to prescribe the requirements that an agreement must satisfy to be a “work agreement”. Additionally, new section 140GC (inserted by item 18) clarifies that for the purposes of the definition of work agreement, the regulations may prescribe requirements that an agreement must satisfy. 

 

32.   The term “work agreement” is intended as an ‘umbrella’ term to refer to various types of agreements defined or referred to by the regulations. It is necessary to prescribe the meaning of “work agreement” in the regulations to provide flexibility to include new types of agreements, and incorporate any new definition of the current kinds of agreements in the meaning of “work agreement”.

 

33.   It is envisaged that the regulations will prescribe labour agreements, Invest Australia Supported Skills agreements, religious worker agreements, and any similar kind of agreement as they are developed. The common element of these agreements is that they are between the Commonwealth, represented by one or more Ministers, and another person or organisation detailing arrangements whereby the other person may sponsor temporary visa holders to perform work.

 

34.   It is also envisaged that the regulations will prescribe “work agreements” to include existing agreements of a kind which are in force at the time of commencement. The purpose of this is to ensure that a party to an existing agreement of a kind can be an “approved sponsor” (see item 1 in relation to the definition of “approved sponsor”) on commencement.

 

 

 

 

Item 9             Subdivision GA of Division 3 of Part 2

 

35.   This item repeals Subdivision GA of Division 3 of Part 2 of the Migration Act, which comprises current sections 137A through to 137H. This subdivision provides the process and power to cancel a person’s approval as a business sponsor. A business sponsor, for the purposes of the Subdivision, is a person who is approved to sponsor a person for a Subclass 457 (Business (Long Stay)) visa.

 

36.   Division 3A of Part 2 of the Migration Act sets out the process and power to cancel the approval of a sponsor for a visa of a kind prescribed for the purposes of the Division. The Subclass 457 (Business (Long Stay)) visa is currently prescribed by the purposes of the Division. However, current subsections 140J(5) and 140K(5) provide that the approval of a sponsor in relation to a Subclass 457 (Business (Long Stay)) visa cannot be cancelled under Division 3A of Part 2 of the Migration Act.

 

37.   Subdivision GA of Division 3 of Part 2 of the Migration Act is repealed because it is no longer necessary to have a cancellation process and power for business sponsors as well as the cancellation process and powers under Division 3A of Part 2 of the Migration Act. Subdivision GA of Division 3 of Part 2 of the Migration Act was inserted in the Migration Act prior to the insertion of Division 3A of Part 2 of the Migration Act. When Division 3A of Part 2 of the Migration Act commenced, the Subclass 457 (Business (Long Stay)) visa was not prescribed for the purposes of the Division. As a result it was still necessary to have the cancellation powers and process in Subdivision GA of Division 3 of Part 2 of the Migration Act. As the Subclass 457 (Business (Long Stay)) visa is currently prescribed for the purposes of Division 3A of Part 2 of the Migration Act, it is not necessary to maintain Subdivision GA of Division 3 of Part 2 of the Migration Act.

 

  Item 10          Subdivision A of Division 3A of Part 2 (heading)

 

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

 

Item 11           Subdivision B of Division 3A of Part 2 (heading)

 

39.   This item repeals the existing heading “Subdivision B - Sponsorship System”.

 

40.   This heading is repealed because item 12 inserts a new heading for Subdivision B of Division 3A of Part 2 of the Migration Act.

 

Item 12           Sections 140B to 140D 

 

41.   This item repeals sections 140B to 140D, and inserts a new heading for Subdivision B of Division 3A of Part 2 of the Migration Act - “Subdivision B - Approving sponsors and nominations”.

 

42.   Current subsection 140B(1) provides that sponsorship by an approved sponsor may be prescribed in the regulations as a criterion for a visa of a prescribed kind. Subsection 140B(2) makes it clear that subsection 140B(1) does not limit the criteria which may be prescribed under other provisions of the Migration Act. This includes subsection 31(3) of the Migration Act which provides that the regulations may prescribe criteria for a visa or visas of a specified class.

 

43.   The purpose of section 140B is to provide the context as to when sponsorship may be required for visas to which Division 3A of Part 2 of the Migration Act applies. That is, it points out that sponsorship may be a criterion to be satisfied for a visa. The provision does not create a power to make any regulations that could not be made under subsection 31(3) of the Migration Act. Therefore, the provision is repealed because it is not necessary.

 

44.   Current subsections 140C(1) and (2) provide that the regulations may prescribe as a criterion for a valid application for a visa of a prescribed kind that the applicant is sponsored by an approved sponsor; and/or that the applicant’s proposed sponsor has applied to be an approved sponsor at or before the time the application for the visa is made. Subsection 140C(3) makes it clear that subsection 140C(1) does not limit the criteria which may be prescribed under other provisions of the Migration Act. This includes s ubsection 46(3) of the Migration Act which provides that the regulations may prescribe criteria that must be satisfied for an application for a visa of a specified class to be a valid application.

 

45.   The purpose of section 140C is to provide context as to when sponsorship may be required for visas to which Division 3A of Part 2 of the Migration Act applies. That is, it points out that sponsorship (whether proposed or already in place) may be required to make a valid application for a visa. The provision does not create a power to make any regulations that could not be made under subsection 46(3) of the Migration Act. Therefore, the provision is repealed because it is not necessary.

 

46.   Subsection 140D sets out the meaning of “approved sponsor”. It has the effect that a person (the first person) is an “approved sponsor” in relation to another person (the second person) once the first person, who must be approved under existing section 140E, has consented in writing to sponsor the second person.

 

47.   Section 140D is repealed because item 1 inserts a definition of “approved sponsor” into the definitions section of the Migration Act, effectively replacing the definition of “approved sponsor” in existing section 140D.

 

Item 13           Subsection 140E(1)

 

48.   This item amends subsection 140E(1) to provide that rather than approving a person as a sponsor, the Minister must approve a person as a sponsor in relation to one or more classes of approved sponsor prescribed for the purposes of subsection 140E(2).

 

49.   The purpose of this amendment is to clarify that a person who meets the criteria prescribed in the regulations under subsection 140E(1) is to be approved as a sponsor in relation to a class or classes of approved sponsor.

 

50.   Currently, the regulations include a ‘title’ to refer to a person who is approved as a sponsor for certain visa subclasses. For example, a “standard business sponsor” is a person who is approved as a sponsor for Subclass 457 (Business (Long Stay)) visas. This item provides express support in the Migration Act for this approach in the regulations by providing an express power to prescribe classes of approved sponsor. For example, a class of approved sponsor may be a “standard business sponsor”.

 

51.   This item also includes a note which provides that the existing heading to section 140E “Approving sponsor” is replaced with the new heading “Minister to approve sponsor”.

 

Item 14           At the end of subsection 140E(1)

 

52.   This item inserts a note at the end of subsection 140E(1) which advises that a person (other than a Minister) who is a party to a work agreement is an approved sponsor and does not need to be approved as a sponsor under this section.

 

53.   A definition of “approved sponsor” is inserted by item 1, and a definition of “work agreement” is inserted by item 8.

 

Item 15           Subsection 140E(2)

 

54.   This item repeals subsection 140E(2) and replaces it with new subsections 140E(2) and 140E(3).

 

New subsection 140E(2)

 

55.   New subsection 140E(2) provides that the regulations must prescribe classes in relation to which a person may be approved as a sponsor. The purpose of new subsection 140E(2) is to include an express provision requiring classes of approved sponsor to be prescribed in the regulations.

 

56.   The regulations must prescribe classes of approved sponsor so that a person can be approved as a sponsor in relation to a particular class. Otherwise, there will be no class of approved sponsor that the person can be approved in relation to, rendering the sponsorship framework redundant.

 

57.   As discussed above at item 13, the regulations include a ‘title’ to refer to a person who is approved as a sponsor for certain visa subclasses. For example, a “standard business sponsor” is a person who is approved as a sponsor for Subclass 457 (Business (Long Stay)) visas. New subsection 140E(2), in conjunction with amended subsection 140E(1) provides express support in the Migration Act for this approach in the regulations by providing an express power to prescribe classes of approved sponsor.

 

58.   For example, a class of approved sponsor may be a “standard business sponsor”. Another example of a possible class of approved sponsor is the “professional development sponsor” - a sponsor of a Subclas s 470 (Professional Development) visa holder.

 

New subsection 140E(3)

 

59.   New subsection 140E(3) expands existing subsection 140E(3) by providing that in addition to prescribing different criteria for different kinds of visa, the regulations may also prescribe different approval criteria for different classes of approved sponsor. New subsection 140(3) also provides the ability to prescribe different criteria for different classes of person within a class in relation to which a person may be approved as a sponsor.

 

60.   The purpose of new subsection 140E(3) is to provide flexibility in the criteria that may be prescribed. For example, the regulations may do one or more of the following:

·          prescribe criteria that are relevant for the purposes of particular kinds of visa;

·          prescribe criteria that are relevant for the purposes of being approved as a class of approved sponsor;

·          prescribe criteria that are to be met by a particular type of entity (such as a government agency) in order to be approved as an approved sponsor in relation to a class of approved sponsor.

 

Item 16           Subsection 140F(2)

 

61.   This item repeals subsection 140F(2) and replaces it with new subsection 140F(2).

 

62.   Section 140F provides the ability to prescribe a process for the Minister to approve a person as a sponsor.  For example, the regulations may prescribe a method by which a person must make an application to be approved as a sponsor.

 

63.   New subsection 140F(2) provides that in addition to prescribing different processes for different kinds of visa, the regulations may also prescribe different processes for different classes in relation to which a person may be approved as a sponsor.

 

64.   The purpose of this amendment is to provide flexibility in the processes that may be prescribed. For example, the regulations may do one or both of the following:

·          prescribe processes that are relevant for the purposes of particular kinds of visa;

·          prescribe processes that are relevant for the purposes of being approved as a class of approved sponsor.

 

 

Item 17           Subsection 140G(3)

 

65.   This item repeals subsection 140G(3) and replaces it with new subsections 140G(3) and 140G(4). Section 140G relates to the terms upon which a person is approved as a sponsor.  

 

New subsection 140G(3)

 

66.   Subsection 140G(2) provides that a term must be of a kind prescribed by the regulations. New subsection 140G(3) provides that an actual term (rather than a kind of term) may also be prescribed in the regulations.

 

67.   For example, the regulations may prescribe an actual term of approval which provides when the approval as a sponsor ceases (eg. two years after the approval was granted). Alternatively, the regulations may prescribe a kind of term that may be included in an approval (eg a ceasing term).

 

68.   To illustrate, the regulations may provide that the approval could include a ceasing term. The details of the ceasing term would then be set out in the relevant approval sent to the particular sponsor (rather than in the regulations).

 

New subsection 140G(4)

 

69.   New subsection 140G(4) expands existing subsection 140G(3) by providing that (in addition to prescribing different kinds of terms in relation to different kinds of visa), the regulations may also prescribe different kinds of terms for different classes of approved sponsor.

 

70.   The purpose of this amendment is to provide flexibility in the terms that may be prescribed. For example, the regulations may do one or both of the following:

·          prescribe terms that are relevant for the purposes of particular kinds of visa;

·          prescribe terms that are relevant for the purposes of particular classes of approved sponsor.

 

Item 18           After section 140G

 

71.   This item inserts new sections 140GA, 140GB, and 140GC. New section 140GA relates to varying terms of approval as a sponsor. New section 140GB relates to approval of nominations. New section 140GC relates to work agreements.

 

140GA            Variation of terms of approval as a sponsor

 

New subsection 140GA(1)

 

72.   New subsection 140GA(1) provides that the regulations may establish a process for the Minister to vary a term of a person’s approval as a sponsor.

 

New subsection 140GA(2)

 

73.   New subsection 140GA(2) provides that the Minister must vary a term specified in an approval provided that:

·          the term is of a kind that is prescribed in the regulations as a term that can be varied; and

·          prescribed criteria for the term to be varied are satisfied.

 

New subsection 140GA(3)

 

74.   New subsection 140GA(3) provides the power to prescribe different processes (to vary a term of approval as a sponsor) and different criteria (to vary a term of approval as a sponsor) for different kinds of visa; different classes in relation to which a person may be approved as a sponsor; and different kinds of terms.

 

75.   The purpose of new subsection 140GA(3) is to provide flexibility in the processes and criteria that may be prescribed in relation to variation of a term of approval as a sponsor. For example, the regulations may do one or more of the following:

·          prescribe processes and criteria that are relevant for the purposes of particular kinds of visa;

·          prescribe processes and criteria that are relevant for the purposes of particular classes of approved sponsor;

·          prescribe processes and criteria that are relevant for the purposes of particular kinds of terms.

 

76.   The purpose of allowing a term of approval to be varied is so that a person who is already approved as a sponsor does not have to lodge another sponsorship application to do something more than their current terms of approval allow them to do.

 

77.   For example, the regulations may prescribe a process for an approved sponsor to apply to the Minister to increase the number of people they are permitted to sponsor. If the number of people who can be sponsored is a term of a kind that can be varied and the sponsor meets prescribed criteria for varying that term, then the term may be varied. This means that the approved sponsor will only need to be assessed against criteria specific to sponsoring additional visa applicants rather than being reassessed against all the criteria for approval as a sponsor.

 

Section 140GB           Minister to approve nominations

 

78.   The purpose of new section 140GB is to provide an express power in the Migration Act to prescribe regulations in relation to the nomination process. Currently, regulations dealing with the nomination process are prescribed under existing sections 140E and 140F because nomination is part of the process of becoming an “approved sponsor”.

 

79.   An express power to prescribe a process and criteria in relation to nomination is required because nomination will no longer be part of the process of becoming an “approved sponsor”, rather a nomination will be made by a person who is already an “approved sponsor” (new definition of “approved sponsor” is inserted by item 1).

 

80.   The kinds of criteria for approval of a nomination may include criteria which ensure that a non-citizen’s skills are appropriate for their proposed occupation, program or activity that they will undertake in Australia; or an occupation is specified in an instrument in writing setting out occupations for which there is a skills shortage.

 

New subsection 140GB(1)

 

81.   New subsection 140GB(1) provides that an approved sponsor may nominate, in relation to a visa of a prescribed kind a person or a proposed occupation, program or activity.

 

82.   More specifically, an approved sponsor may nominate (in relation to a visa of a prescribed kind):

·          a person who is a visa applicant, or proposed visa applicant, in relation to a proposed occupation, program or activity to be undertaken by the person;

·          a proposed occupation, program or activity.

 

83.   The nomination may be of a visa applicant, or a proposed visa applicant, because the person who is being nominated may not have made a visa application at the time of nomination. Where the nomination is of a proposed occupation, program or activity, the particular non-citizen who will undertake the proposed occupation, program or activity does not necessarily need to be identified or known at the time of nomination.

 

84.   An approved nomination may be required to make a valid visa application, or may be required at time of decision of the visa application. This new provision provides the flexibility to provide for either in the regulations.

 

85.   A nomination stage may not be required in relation to all kinds of visa for which sponsorship is a criterion for grant, or a criterion to make a valid application. An approved sponsor will only be required to seek an approved nomination from the Minister if an approved nomination is required to make a valid visa application, or is a criterion for grant of a visa.

 

New subsection 140GB(2)

 

86.   New subsection 140GB(2) provides that the Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied. This means that the Minister does not have discretion not to approve the nomination if prescribed criteria are satisfied.

 

 

New subsection 140GB(3)

 

87.   New subsection 140GB(3) provides that the regulations may establish a process for the Minister to approve an approved sponsor’s nomination.

 

New subsection 140GB(4)

 

88.   New subsection 140GB(4) provides that different processes and different criteria may be prescribed for different kinds of visa or different classes in relation to which a person may be approved as a sponsor.

 

89.   The purpose of new subsection 140GB(4) is to provide flexibility in the processes and criteria that may be prescribed. For example, the regulations may do one or more of the following:

·          prescribe processes and criteria that are relevant for the purposes of particular kinds of visa;

·          prescribe processes and criteria that are relevant for the purposes of particular classes of approved sponsor.

 

Section 140GC           Work agreements

 

90.   New section 140GC provides that, for the purposes of the definition of “work agreement” (inserted by item 8) the regulations may prescribe requirements that a work agreement must satisfy.

 

91.   The term “work agreement” is intended as an ‘umbrella’ term to refer to various types of agreements defined or referred to by the regulations. It is necessary to prescribe the meaning of “work agreement” in the regulations to provide flexibility to include new types of agreements, and incorporate any new definition of the current kinds of agreements in the meaning of “work agreement”.

 

92.   It is envisaged that the regulations will prescribe labour agreements, Invest Australia Supported Skills agreements, religious worker agreements, and any similar kind of agreement as they are developed. The common element of these agreements is that they are a n agreement between the Commonwealth, represented by one or more Ministers, and another person or organisation detailing arrangements whereby the other person may sponsor temporary visa holders to perform work.

 

93.   It is also envisaged that the regulations will prescribe “work agreements” to include certain existing agreements which are in force at the time of commencement. The purpose of this is to ensure that a party to certain existing agreements can be an “approved sponsor” (see item 1 in relation to the definition of “approved sponsor”) on commencement.

 

94.   The note following new section 140GC advises that a person (other than a Minister) who is a party to a work agreement is an approved sponsor and must satisfy sponsorship obligations. This note explains the relevance of a work agreement to the new sponsorship framework.

 

Item 19           Sections 140H, 140I, 140J, 140K, 140L and 140M

 

95.   This item repeals sections 140H, 140I, 140J, 140K, 140L and 140M and replaces them with new sections 140H, 140J, 140K, 140L and 140M.  Sections 140H and 140J comprise new Subdivision C - Sponsorship obligations.  Sections 140K, 140L and 140M comprise the first three sections of new Subdivision D - Enforcement.

 

Subdivision C - Sponsorship Obligations

 

Section 140H             Sponsorship obligations

 

96.   New section 140H replaces existing section 140H. Existing section 140H provides that the regulations may require an applicant for approval as a sponsor to make prescribed undertakings. The undertakings only have effect once a visa is granted to a person who the sponsor has consented in writing to sponsor.

 

New subsection 140H(1)

 

97.   New subsection 140H(1) provides that a person who is or was an approved sponsor must satisfy sponsorship obligations prescribed in the regulations.

 

98.   Item 1 inserts a definition of approved sponsor. “Approved sponsor” includes two groups of people. First, a person who is approved as a sponsor under new section 140E; or second, a person (other than a Minister) who is a party to a work agreement. Therefore, a person who meets (or previously met) either of these two descriptions may be required to satisfy a sponsorship obligation prescribed by the regulations.

 

99.   The note following new subsection 140H(1) provides examples of the kinds of sponsorship obligations that may be prescribed in the regulations.

 

100.           The difference between the new sponsorship obligations and the existing sponsorship undertakings is that a person has to make the undertakings to be bound by them. Under these provisions a person will be required to satisfy a sponsorship obligation by operation of law if they are a person to whom the sponsorship obligation applies.

 

101.           For example, the regulations may prescribe that an approved sponsor (within the meaning of the definition inserted by item 1) or former approved sponsor must comply with the Department’s requirements to provide information to the Department. A person who is an approved sponsor or former approved sponsor must satisfy this sponsorship obligation regardless of whether they expressly agreed to be bound by the sponsorship obligation. As a matter of good practice, the Department intends to ensure that all persons who apply to be an approved sponsor understand the sponsorship obligations that they will be required to satisfy as an approved sponsor.

 

102.           Subsection 140H(1) allows the sponsorship obligations to prescribe the period of time for which a person is required to satisfy a sponsorship obligation. The earliest point in time at which a person can be required to satisfy a sponsorship obligation is when they become an approved sponsor (within the meaning of the definition inserted by item 1). A person can continue to be required to satisfy a sponsorship obligation after they cease to be an approved sponsor.

 

103.           For example, the regulations may prescribe that an approved sponsor must keep records in relation to a sponsored visa holder from the time the visa is granted, for 6 years after the visa holder leaves the employment of the approved sponsor. If the approved sponsor ceases to be an approved sponsor during this period of time (for example, by being cancelled as an approved sponsor), they will continue to be required to satisfy the sponsorship obligation.



New subsection 140H(2)

 

104.           New subsection 140H(2) provides that if a person is a party to a work agreement (other than a Minister), and the terms of the work agreement vary a sponsorship obligation that would otherwise be imposed by regulations made under subsection 140H(1), the person must satisfy that sponsorship obligation as set out in the work agreement rather than the sponsorship obligation prescribed in the regulations which has been varied.

 

105.           A person who is a party to a work agreement (other than a Minister), is an approved sponsor within the meaning of the definition inserted by item 1. Item 8 inserts a definition of work agreement. In general terms a work agreement is an agreement between the Commonwealth, represented by one or more Ministers, and another person or organisation detailing arrangements whereby the other person may sponsor temporary visa holders to perform work.

 

106.           The effect of subsection 140H(1) and 140H(2) in relation to a person who is a party to work agreement (other than a Minister) is that the person is required to satisfy a sponsorship obligation prescribed in the regulations under section 140H(1) except for a sponsorship obligation which has been varied by the terms of the work agreement. Where a sponsorship obligation has been varied that sponsorship obligation must be satisfied in accordance with the obligation as set out in the work agreement rather than as set out in the regulations.

 

New subsection 140H(3)

 

107.           New subsection 140H(3) provides that if a person is a party to a work agreement (other than a Minister) and the terms of the agreement include a term identified as a sponsorship obligation, then the person must satisfy that sponsorship obligation as set out in the work agreement, in addition to satisfying the sponsorship obligations imposed by the regulations.

 

108.           A person who is a party to a work agreement (other than a Minister), is an approved sponsor within the meaning of the definition inserted by item 1. Item 8 inserts a definition of work agreement. In general terms a work agreement is an agreement between the Commonwealth, represented by one or more Ministers, and another person or organisation detailing arrangements whereby the other person may sponsor temporary visa holders to perform work.

 

New subsection 140H(4)

 

109.           New subsection 140H(4) provides that a person who is or was an approved sponsor must satisfy sponsorship obligations prescribed in the regulations either:

·          in respect of each visa holder sponsored by the approved sponsor (or former approved sponsor); or

·          generally (for example, there is an intention to prescribe an obligation to notify the department of any change in circumstances that may affect the sponsor’s capacity to honour its sponsorship. This is an example of an obligation that should apply generally rather than in respect of a particular visa holder).

 

New subsection 140H(5)

 

110.           New subsection 140H(5) provides that the regulations may prescribe the manner in which a sponsorship obligation must be satisfied and the period of time within which the sponsorship obligation must be satisfied.

 

111.           For example, the regulations may prescribe that an approved sponsor (or former approved sponsor) must keep records in relation to a visa holder for whom they are a sponsor; that those records must be kept electronically; and that those records must be provided to the Department within 14 days of a request to provide the records. If the records are not kept electronically then the sponsorship obligation will not be satisfied, and if the records are provided 15 days after the request then the sponsorship obligation will not be satisfied.

 

112.           Therefore, the combined effect of new subsections 140H(1) and (5) is that the regulations may prescribe a length of time during which the sponsorship obligations must be satisfied, and the manner and time within which the sponsorship obligations must be satisfied during that length of time.

 

New subsection 140H(6)

 

113.           New subsection 140H(6) provides that different kinds of sponsorship obligations may be prescribed for different kinds of visa and different classes in relation to which a person may be, or may have been approved as a sponsor. This allows the regulations to prescribe, for example, sponsorship obligations that are required to be satisfied by an approved sponsor (or former approved sponsor) in relation to a Subclass 457 (Business (Long Stay)) visa holder, and different sponsorship obligations that are required to be satisfied by an approved sponsor (or former approved sponsor) in relation to a Subclass 470 (Professional Development) visa holder.

 

114.           The sponsorship obligations will be prescribed in the regulations, rather than being set out in the Migration Act, to provide flexibility to remove or add sponsorship obligations in the future. This flexibility is required for three main reasons:

·          there will be a need to prescribe additional obligations as more visas are brought within the new sponsorship framework;

·          a high degree of flexibility is essential for the efficient and effective program operation over time in a dynamic area such temporary skilled work visas; and

·          it will provide the opportunity to consider advice provided through various review processes before finalising the detail around each particular sponsorship obligation.

 

115.           When new sponsorship obligations are prescribed in the regulations they may be prescribed to apply to existing sponsors at the time of commencement of the new sponsorship obligations. It is intended that the nature and purpose of the obligation will be assessed to determine whether it is necessary and appropriate to apply the new sponsorship obligations to existing sponsors at the time of commencement of the new sponsorship obligation.

 

Section 140J               Amounts payable in relation to sponsorship obligations

 

116.           New section 140J replaces existing section 140I. Existing section 140I provides that an amount required to be paid to the Commonwealth under an undertaking is not enforceable to the extent that the amount required to be paid exceeds the costs of the Commonwealth in relation to the amount. However, if the amount is in relation to the costs of locating and detaining a person, the amount required to be paid cannot exceed an amount prescribed in the regulations. Existing section 140I also allows the Minister to make a determination setting out how particular kinds of costs are to be calculated.

 

117.           New section 140J expands existing section 140I and includes the concept of sponsorship obligations rather than undertakings.

 

New subsection 140J(1)

 

118.           New subsection 140J(1) provides that if an amount is required to be paid to the Commonwealth by an approved sponsor (or former approved sponsor) in relation to a sponsorship obligation, the approved sponsor (or former approved sponsor is not liable to pay more than the lesser of:

·          the actual costs of the Commonwealth in relation to the amount; or

·          a limit prescribed in the regulations (if a limit is prescribed).

 

119.           New subsection 140J(1) expands on existing section 140I by providing that a recovery limit in relation to sponsorship obligations can be prescribed in the regulations in relation to any kind of sponsorship obligation, not just location and detention costs as is currently the case.

 

120.           The note to section 140J provides the example that, if the Commonwealth incurs costs in locating and detaining a person, the maximum amount that a person who is or was an approved sponsor is liable to pay to the Commonwealth is the lesser of the total amount of those costs or an amount prescribed in the regulations (if a limit is prescribed in the regulations).

 

New subsection 140J(2)

 

121.           New subsection 140J(2) maintains a similar provision to existing section 140I by providing that the Minister may by written instrument specify one or more methods for working out the actual costs incurred by the Commonwealth in relation to a sponsorship obligation.

 

122.           For example, in relation to a sponsorship obligation to pay the costs of locating and detaining a person, the Minister may specify by written instrument a method to calculate this cost. This could be done, for example, by allocating a specified dollar amount to the number of field operations undertaken to locate the person.

 

123.           It is intended that a written instrument under new subsection 140J(2) is a legislative instrument within the meaning of section 5 of the Legislative Instruments Act 2003 and any such instrument will be registered on the Federal Register of Legislative Instruments.

 

124.           This instrument will not be subject to disallowance because item 26 of the table in subsection 44(2) of the Legislative Instruments Act 2003 relevantly provides that legislative instruments (other than regulations) under Part 2 of the Migration Act are not subject to disallowance. Subsection 140J(2) is in Division 3A of Part 2 of the Migration Act. Part 2 of the Migration Act relates to the control of arrival and presence of non-citizens in Australia.

 

New subsection 140J(3)

 

125.           New subsection 140J(3) provides that if an amount is payable by a person who is or was an approved sponsor in relation to a sponsorship obligation (prescribed under new section 140H, inserted by item 19), the person is taken not to have satisfied the sponsorship obligation if a visa holder, or former visa holder, or a person on behalf of a visa holder or former visa holder, reimburses the sponsor, or another person, for all or part of the amount.

 

126.           The purpose of new subsection 140J(3) is to ensure that an approved sponsor (or former approved sponsor) is liable to enforcement action if they require a visa holder or former visa holder to reimburse them, directly or indirectly, for costs which the prescribed sponsorship obligations require the approved sponsor (or former approved sponsor) to pay.

 

127.           For example, if an approved sponsor arranges for the employer of a visa holder (where the approved sponsor is not also the employer) to reimburse the approved sponsor for the costs of a sponsorship obligation, and the employer then recovers those costs from the visa holder, the approved sponsor will not have satisfied their sponsorship obligation.

 

128.           A further example, if an approved sponsor requires the spouse of a visa holder, or former visa holder (on behalf of the approved sponsor) to reimburse the approved sponsor for the cost of a sponsorship obligation, then the approved sponsors will not have satisfied their sponsorship obligation because they have been reimbursed by a person on behalf of the visa holder or former visa holder.

 

Subdivision D - Enforcement

 

Section 140K              Sanctions for failing to satisfy sponsorship obligations

 

129.           New section 140K sets out the various enforcement tools that are available to sanction an approved sponsor (or former approved sponsor) for failing to satisfy a sponsorship obligation. Section 140K does not give the authority to impose a sanction, rather it provides a list of the sanctions that may be available under other provisions in the Migration Act.

 

130.           The purpose of the section is to make it clear that one, several or all of the sanctions may be imposed for failing to satisfy a sponsorship obligation - ie one sanction does not act to exclude imposition of another.

 

131.           The exception to this is if an infringement notice is issued and paid, then the Minister cannot also bring a civil penalty proceeding. In this way, new subsection 140K maintains the effect of, and broadens, existing subsection 140M which provides that nothing in the provisions allowing cancelling or barring action to be taken against an approved sponsor affects the right to require, take, or enforce a security under section 269.

 

 

 

 

 

 

 

 

Actions that may be taken in relation to approved sponsors

 

132.           New subsection 140K(1) sets out the sanctions that may be imposed on an approved sponsor for failing to satisfy a sponsorship obligation. The actions that may be taken are:

·          the Minister may bar the approved sponsor from doing certain things under section 140M if regulations prescribe (under section 140L) the circumstances in which the barring action can be taken;

·          the Minister may cancel the approved sponsor’s approval under section 140M if regulations prescribe (under section 140L) the circumstances in which a person’s approval can be cancelled;

·          the Minister may apply for an order for a civil penalty under Part 8D (Part 8D is inserted by item 42).

·          the approved sponsor may be issued with an infringement notice under section 140R, as an alternative to civil penalty proceedings under Part 8D.

·          an authorized officer may require and take a security under section 269 or enforce a security already taken.

 

Actions that may be taken in relation to former approved sponsors

 

133.           New subsection 140K(2) sets out the sanctions that may be imposed on a former approved sponsor for failing to satisfy a sponsorship obligation. The actions that may be taken are:

·          the Minister may bar the former approved sponsor under subsection 140M(2) from making future applications for approval as a sponsor if regulations prescribe (under section 140L) the circumstances in which the barring action can be taken;

·          the Minister may apply for an order for a civil penalty under Part 8D;

·          the former approved sponsor may be issued with an infringement notice under section 140R, as an alternative to civil penalty proceedings under Part 8D.

·          an authorised officer may require and take a security under section 269 or enforce a security already taken.

 

134.           In relation to a former approved sponsor, the power to cancel is not necessary. Similarly, there is no existing approval to bar in relation to a former approved sponsor, therefore the only barring action that is appropriate is to bar the former approved sponsor from making future applications for approval as a sponsor.

 

135.           The sanctions of cancelling a person’s approval as a sponsor, barring a person’s approval as a sponsor, and requiring, taking and enforcing a security are existing sanctions. The sanctions of civil penalty proceedings, and issuing an infringement notice, are new sanctions introduced by items 29 and 42.

 

New subsection 140K(3)

 

136.           New subsection 140K(3) provides that the subsections 140K(1) and (2) do not limit the circumstances in which the Minister may bar a sponsor from doing certain things or cancel a person’s approval as a sponsor under section 140M; or require, take or enforce a security under section 269.

 

137.           The purpose of subsection 140K(3) is to clarify that section 140K does not limit the circumstances in which a person may be have their approval as a sponsor barred or cancelled under subparagraph 140L(1)(a)(ii) or paragraph 140L(2)(b). These provisions allow the regulations to prescribe circumstances, other than failure to satisfy a sponsorship obligation, in which a person may have their approval as a sponsor cancelled or barred.

 

Section 140L              Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled

 

138.           New section 140L has a similar effect as existing sections 140J and 140K but with two main differences. First, new section 140L is expressed in the context of sponsorship obligations rather than sponsorship undertakings. Second, existing sections 140J and 140K only apply in relation to an approved sponsor of a person for a temporary visa.

 

139.           New section 140L can apply in relation to an approved sponsor for any kind of visa, it is not limited to temporary visas. The purpose of this change is so that, in the future, the sponsorship framework in Division 3A of Part 2 of the Migration Act can be used for all kinds of visa for which sponsorship is a criterion.

 

Circumstances in which the Minister may take action

 

140.           New subsection 140L(1) provides that the regulations may prescribe circumstances in which the Minister may take one or more barring or cancelling actions set out in section 140M if the Minister is reasonably satisfied that the approved sponsor or former approved sponsor has failed to satisfy a sponsorship obligation.

 

141.           New subsection 140L(1) also provides that the regulations may prescribe other circumstances in which the Minister may take one or more barring or cancelling actions set out in section 140M. These circumstances may be circumstances that are not in relation to a failure to satisfy a sponsorship obligation.

 

142.           Under new subsection 140L(1) the regulations may also prescribe criteria to be taken into account by the Minister in determining which cancelling or barring action(s) to take under section 140M. 

 

Circumstances in which the Minister must take action

 

143.           New subsection 140L(2) differs from new subsection 140L(1) in that it provides that the regulations may prescribe circumstances in which the Minister must take one or more cancelling or barring actions under section 140M, as opposed to new subsection 140L(1) which provides the Minister with a discretion to take one or more of the actions.

 

144.           Like subsection 140L(1), circumstances may be prescribed in relation to a failure to satisfy a sponsorship obligation, and other circumstances prescribed (that are not in relation to a sponsorship obligation) may be prescribed in the regulations.

 

145.           New subsection 140L(2) does not allow for criteria to be prescribed which set out the circumstances which the Minister is to take into account in determining which cancelling and barring action(s) to take into account under section 140M. This is because the Minister must take one or more particular actions as prescribed. The Minister will not have discretion as to which action to take.

 

146.           New subsection 140L(3) provides that different circumstances and criteria may be prescribed for different kinds of visa and different classes in relation to which an approved sponsor or former approved sponsor is or was approved.

 

Section 140M             Cancelling approval as a sponsor or barring a sponsor

 

147.           New section 140M replaces existing section 140L. Existing section 140L provides the barring and cancelling actions that the Minister may or must take in accordance with existing sections 140J and 140K.

 

148.           New section 140M provides the barring and cancelling actions that the Minister may or must take in accordance with new section 140L. New section 140M maintains the effect of the cancelling and barring provisions set out in existing section 140L, but expresses the power to cancel or bar the approved sponsor in the context of classes of approved sponsor.

 

149.           This is consistent with new subsection 140E(1) which provides that a person is approved as an approved sponsor in relation to one or more classes of approved sponsor, rather than just as a sponsor.

 

150.           New section 140M also ensures the actions are not just in relation to classes of approved sponsor who are sponsors for temporary visas. This is consistent with section 140L which does not limit the application of the section to an approved sponsor of a person for a temporary visa.

 

151.           The purpose of not limiting the availability of the barring and cancelling actions to sponsors of temporary visa holders is so that, in the future, the Division 3A of Part 2 of the Migration Act sponsorship framework can be used by all kinds of visa for which sponsorship is a criterion.

 

 

 

 

Actions that may be taken in relation to approved sponsors

 

152.           New subsection 140M(1) provides that the actions which the Minister may or must take, (in the circumstances prescribed under regulation section 140L), in relation to an approved sponsor are:

·          cancelling the approval of the person as a sponsor in relation to one, several or all classes of approved sponsor to which the sponsor belongs;

·          barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals for different kinds of visas. This means that an approved sponsor can be barred, for a specified period, from being the approved sponsor for a person seeking to be granted a specified visa subclass; and

·          barring the sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes of approved sponsor prescribed for the purposes of section 140E (amended by items 13-15).

 

153.           The Minister may (or must) take one or more of the section 140M actions in relation to an approved sponsor. For example, a circumstance that may be prescribed under section 140L could provide that the Minister may cancel the approval of an approved sponsor, and bar the sponsor for 10 years from making future applications for approval as a sponsor in relation to a particular class of approved sponsor prescribed for the purpose of new section 140E (see items 13-15).

 

Actions that may be taken in relation to former approved sponsors

 

154.           New subsection 140M(2) provides that the action which the Minister may or must take (in the circumstances prescribed under section 140L) in relation to a former approved sponsor is barring the former approved sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes of approved sponsor prescribed by the regulations.

 

155.           New subsection 140M(2) does not include all the barring and cancelling actions which are included for approved sponsors in new subsection 140M(1), because these actions are not relevant once a person has ceased to be an approved sponsor. For example, there is no approval to cancel for a person who is a former approved sponsor.

 

Item 20           Subsections 140N(1) and (2)

 

156.           This item amends subsections 140N(1) and 140N(2)to refer to new section 140M, rather than current sections 140J or 140K.

 

157.           Existing subsection 140N(1) provides that the regulations may establish a process for the Minister to cancel the approval of a person as a sponsor under sections 140J or 140K.

 

158.           Existing subsection 140N(2) provides that the regulations may establish a process for the Minister to place a bar on a person under section 140J or 140K.

 

159.           The purpose of the amendment made by this item is to ensure that the reference to the section under which an approved sponsor is cancelled is correct.

 

Item 21           Subsection 140N(3)

 

160.           This item repeals subsection 140N(3) and replaces it with new subsection 140N(3).

 

161.           New subsection 140N(3) expands existing subsection 140N(3) by providing that in addition to prescribing different processes to take barring or cancelling action for different kinds of visa, the regulations may also prescribe different processes for different classes in relation to which an approved sponsor is or was approved.

 

162.           The purpose of this amendment is to provide flexibility in the processes that may be prescribed. For example, the regulations may do one or both of the following:

·          prescribe processes that are relevant for the purposes of particular kinds of visa;

·          prescribe processes that are relevant for the purposes of particular classes of approved sponsor or former approved sponsor.

 

Item 22           Subsection 140O(1)

 

163.           This item repeals subsection 140O(1).

 

164.           Section 140O provides that in prescribed circumstances the Minister may waive a bar. Subsection 140O(1) provides that section 140O applies to temporary visas of a prescribed kind. This subsection is not necessary because the intention is that section 140O applies to all kinds of visa that are prescribed as visas to which Division 3A of Part 2 of the Migration Act applies (under section 140A).

 

Item 23           Subsection 140O(2)

 

165.           This item amends subsection 140O(2) to refer to new section 140M, rather than current sections 140J or 140K. This item also removes the reference to ‘in relation to a visa to which this section applies.

 

166.           Existing subsection 140O(2) provides that the regulations may prescribe circumstances in which the Minister may waive a bar placed on a person under existing sections 140J or 140K in relation to a visa to which section 140O applies. The purpose of the amendment made by this item is to ensure:

·          that the reference to the section under which a person who is or was an approved sponsor is barred is correct; and

·          that the reference to a visa to which this section applies is removed, because the amendment made by item 22 means that section 140O applies to all Division 3A of Part 2 of the Migration Act visas, and not visas prescribed specifically for section 140O.

 

Item 24           Subsection 140O(4)

 

167.           This item repeals subsection 140O(4) and replaces it with new subsection 140O(4).

 

168.           New subsection 140O(4) expands existing subsection 140O(4) by providing that in addition to prescribing different circumstances and different criteria to waive a bar for different kinds of visa, the regulations may also prescribe different circumstances and criteria for different classes in relation to which an approved sponsor is or was approved.

 

169.           The purpose of this amendment is to provide flexibility in the different circumstances and criteria that may be prescribed. For example, the regulations may do one or both of the following:

·          prescribe circumstances and criteria that are relevant for the purposes of particular kinds of visa;

·          prescribe circumstances and criteria that are relevant for the purposes of particular classes of approved sponsor.

 

Item 25           Subsection 140P(1)

 

170.           This item amends subsection 140P(1) to refer to new section 140M, rather than current sections 140J or 140K.

 

171.           Existing subsection 140P(1) provides that the regulations may establish a process for the Minister to waive a bar place on a person under existing sections 140J or 140K. The purpose of the amendment made by this item is to ensure that the reference to the section under which a person who is or was an approved sponsor may be barred is correct.

 

Item 26           Subsection 140P(2)

 

172.           This item repeals subsection 140P(2) and replaces it with new subsection 140P(2).

 

173.           New subsection 140P(2) expands existing subsection 140P(2) by providing that in addition to prescribing different processes to waive a bar for different kinds of visa, the regulations may also prescribe different processes for different classes in relation to which a person may be, or may have been, approved as a sponsor.

 

 

 

 

174.           The purpose of this amendment is to provide flexibility in the processes that may be prescribed. For example, the regulations may do one or both of the following:

·          prescribe processes that are relevant for the purposes of particular kinds of visa;

·          prescribe processes that are relevant for the purposes of particular classes of approved sponsor.

 

Item 27           Sections 140Q, 140R and 140S

 

175.           This item repeals existing sections 140Q, 140R and 140S and replaces them with new sections 140Q, 140R, 140S, 140SA, 140SB and 140SC.  New sections 140S, 140SA, 140SB and 140SC are included in new Subdivision E - Liability and recovery of amounts.

 

176.           Existing sections 140Q and 140R are not replaced by similar provisions.

 

177.           New section 140H (inserted by item 19) removes the need for existing section 140Q. Existing section 140Q provides that the regulations may prescribe circumstances in which a person remains bound by an undertaking even though they have ceased to be an approved sponsor, or their visa holder has ceased to hold the relevant visa. Such a provision is no longer required because new section 140H provides that regulations may be prescribed that require not only approved sponsors, but former approved sponsors to satisfy sponsorship obligations.

 

178.           The regulations will also prescribe the period in which, or the date by which, a sponsorship obligation must be satisfied. Therefore, existing section 140Q is not required because new section 140H provides that the regulations may prescribe a sponsorship obligation that will be required to be satisfied even after a person ceases to be an approved sponsor or the visa holder ceases to hold the relevant visa.

 

179.           Existing section 140R is repealed, and is not replaced by a similar provision. Existing section 140R deals with the liability of sponsors to pay certain debts. It provides that a visa holder is jointly and severally liable to pay a debt which relates to an amount required by an undertaking to be paid by the sponsor on behalf of the visa holder.

 

180.           The purpose of repealing existing section 140R and not replacing it with a similar provision is to reflect the policy intention of sponsorship obligations. The purpose of the new sponsorship obligations which are prescribed under new section 140H (inserted by item 19) is to place responsibility on a person who is or was an approved sponsor for certain costs. It is not intended that a visa holder is jointly and severally liable for any of the costs which are the subject of a sponsorship obligation.

 

Section 140Q              Civil penalty - failing to satisfy sponsorship obligations

 

181.           New section 140Q comprises of two civil penalty provisions (item 2 inserts a definition of civil penalty in subsection 5(1) of the Act).  A civil penalty provision is a provision which a person can contravene. If a person contravenes a civil penalty provision, new Part 8D (inserted by item 42) provides that the Minister may apply to the Federal Court or the Federal Magistrates Court for a pecuniary penalty order against the person.

 

182.           New subsection 140Q(1) is the first civil penalty provision. The subsection is contravened if the following two things occur:

·          the regulations impose a sponsorship obligation on the person; and

·          the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations.

 

183.           The sponsorship obligations are prescribed under new section 140H. Under new section 140H, only an approved sponsor or a former approved sponsor can be required to satisfy a sponsorship obligation.

 

184.           Item 1 inserts a definition of approved sponsor. “Approved sponsor” includes two groups of people. First, a person who is approved as a sponsor under new section 140E; or second, a person (other than a Minister) who is a party to a work agreement. Therefore, a person who meets (or previously met) either of these two descriptions may be required to satisfy a sponsorship obligation prescribed by the regulations, and may contravene subsection 140Q(1) if they do not satisfy those sponsorship obligations.

 

185.           Under new section 140H the regulations will also prescribe whether a particular sponsorship obligation must be satisfied in respect of each visa holder, or generally. This means that subsection 140Q(1) can be contravened in respect of each visa holder sponsored by the approved sponsor or former approved sponsor, or generally.

 

186.           For example, if the sponsorship obligation is to pay a minimum wage (however that is described) to a visa holder, and the minimum wage is not paid to four visa holders sponsored by the approved sponsor (or former approved sponsor), then subsection 140Q(1) will have been breached at least four times.

 

187.           New subsection 140Q(2) is the second civil penalty provision. The subsection is contravened if the following three things occur:

·          the person is a party to a work agreement (other than a Minister); and

·          the terms of the work agreement vary a sponsorship obligation that would otherwise be imposed on the person by the regulations, or impose an obligation, identified in the agreement as a sponsorship obligation on the person; and

·          the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) specified in the work agreement.

 

188.           The effect of subsection 140Q(2) is that if a term of a work agreement (a definition of work agreement is inserted into subsection 5(1) by item 8) varies a sponsorship obligation which is prescribed in the regulations, or imposes an additional sponsorship obligation on a person, then the person is liable to a civil penalty if they fail to satisfy the sponsorship obligation in the work agreement.

 

189.           This ensures consistency in the type of pecuniary penalty that can be applied for failure to satisfy a sponsorship obligation. That is, rather than relying on pecuniary damages that may be available through contract law in relation to the work agreement, new subsection 140Q(2) ensures that the pecuniary penalty for failure to satisfy a sponsorship obligation regardless of whether it is prescribed in the regulations or included in a work agreement, will be through the civil penalty framework in Part 8D of the Migration Act (inserted by item 42).

 

190.           The party to a work agreement to whom subsection 140Q(2) applies does not include a Minister because a Minister cannot be an approved sponsor (see the definition of “approved sponsor” inserted into subsection 5(1) of the Migration Act by item 1), and therefore cannot be required to satisfy a sponsorship obligation prescribed in the regulations under section 140H.

 

191.           If a person contravenes subsections 140Q(1) or 140Q(2) the civil penalty for an individual is 60 penalty units and for a body corporate is 300 penalty units. Currently, this represents $6,600 for an individual and $33,000 for a body corporate as one penalty unit is equal to $110 (a definition of penalty unit is inserted by item 6).

 

192.           This civil penalty amount is the same as for civil penalty provisions in the Workplace Relations Act 1996 . The civil penalty provisions in the Workplace Relations Act 1996 also relate to workplace relations matters.

 

Section 140R              Infringement notices in respect of civil penalty provisions

 

193.           New subsection 140R(1) provides that regulations may be prescribed so that a person who is alleged to have contravened a civil penalty provision can pay to the Commonwealth a specified amount as an alternative to civil penalty proceedings being commenced. 

 

194.           New subsection 140R(2) provides that an amount imposed as a penalty under the regime prescribed in the regulations under subsection 140R(1) must not exceed an amount equal to one-fifth of the maximum civil penalty which could be imposed by a court for contravening the civil penalty provision. This amount is in accordance with the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers issued in 2004 by authority of the Minister for Justice and Customs.  It is also in accordance with the interim Guide issued in February 2008 by the Criminal Law Branch of the Attorney-General’s Department .

 

195.           The effect of 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 may be issued with an infringement notice to pay an amount. That amount cannot exceed 60 penalty units for a corporation, or 12 penalty units for an individual.

 

196.           If the approved sponsor (or former approved sponsor) pays the amount then the Minister cannot commence civil penalty proceedings in relation to the alleged contravention. The approved sponsor (or former approved sponsor), however, can elect to not pay the amount specified in the infringement notice. The Minister will then be entitled to commence civil penalty proceedings.

 

197.           The purpose of new section 140R 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 sponsorship obligations.

 

Subdivision E - Liability and recovery of amounts

 

Section 140S               Liability to pay amounts

 

198.           New subsections 140S(1) and (2) provide that where 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 in relation to a sponsorship obligation, then the person to whom the money is owed (including the Commonwealth, a State, or a Territory) may seek to recover the amount as a debt due in an eligible court.

 

199.           New subsections 140S(1) and (2) are similar to existing section 140S but differ in four main ways:

·          First, they are in relation to sponsorship obligations rather than sponsorship undertakings

·          Second, they apply to all debts arising in relation to a sponsorship obligation because section 140R is repealed

·          Third, they clarify that a debt recovery action can be brought by the Commonwealth, a State or a Territory as well as another person, and

·          Finally, they provide that a debt recovery action can be brought in an eligible court rather than in a court of competent jurisdiction (eligible court is a defined term inserted by item 4).

 

200.           The practical effect of this is that in addition to the existing courts, a debt recovery action could be brought in a Territory Court, or in the Federal Magistrates Court. The purpose of this change is to improve access to the courts for a person to recover money owed in relation to a sponsorship obligation.

 

201.           New subsection 140S(3) clarifies that an amount may still be recovered if civil penalty proceedings are brought under Part 8D (inserted by item 42) and discontinued or completed without the court making an order under subsection 486R(6) in relation to the amount. Under new subsection 486R(6) (inserted by item 42) the court can make an order that has the same effect as section 140S - that is, that an outstanding amount be paid that is required to be paid under a sponsorship obligation.

 

202.           New subsection 140S(4) provides that for the purpose of paragraph (e) of the definition of “eligible court” (inserted by item 4) the regulations may prescribe a court of a State or Territory in which an amount may be recovered under new section 140S. Paragraph (e) of the definition of “eligible court” provides that an eligible court may include a State or Territory court prescribed by the regulations.

 

Section 140SA            Interest up to judgment

 

203.           New section 140SA deals with the issue of interest on amounts that should have been paid pursuant to a sponsorship obligation in circumstances where an action to recover the amount has been brought under section 140S or subsection 486R(6).

 

204.           New section 140S provides that where 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 in relation to a sponsorship obligation, then the person to whom the money is owed (including the Commonwealth, a State, or a Territory) may seek to recover the amount as a debt due in an eligible court.

 

205.           New 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).

 

206.           New subsection 486R(7) provides that if a court makes an order under subsection 486R(6), an application may be made, and an order may be given, under subsection 140SA as if the proceedings were commenced under section 140S.

 

207.           New subsections 140SA(1) and (2) provide that, upon application, a court must, unless good cause is shown to the contrary, order that interest be included in the sum for which judgment is given. The interest may be awarded at an interest rate considered appropriate by the court or as a lump sum. If it is awarded as an interest rate, it may be awarded on the whole or part of the money, and for the whole or any part of the period between the date when the cause of action arose and the date of the judgment.

 

208.           New subsection 140SA(3) provides that subsection 140S(2) does not allow:

·          interest to be given upon interest, either as a sum or at an interest rate;

·          interest to be paid on debts which already have an interest component built-in;

·          interest to be given, other than by consent, upon judgements given by consent.

 

209.           In the absence of section 140SA, the amount of interest that may be payable on an amount awarded by a judgement would be calculated in accordance with the court rules of the court where the judgement is made. The purpose of section 140SA is to ensure that the method of calculating interest is the same for all actions under section 140S (and subsection 486R(6) orders) rather than it being dependent on the court in which the action is brought.

 

Section 140SB            Interest on judgment

 

210.           New section 140SB provides that where an order to pay an amount has been made as a result of a section 140S action or under subsection 486R(6), that amount carries interest from the date on which the judgment is entered at the rate that would apply under section 52 of the Federal Court of Australia Act 1976 .

 

211.           New section 140S provides that where 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 in relation to a sponsorship obligation, then the person to whom the money is owed (including the Commonwealth, a State, or a Territory) may seek to recover the amount as a debt due in an eligible court.

 

212.           New 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).

 

213.           New subsection 486R(7) provides that if a court makes an order under subsection 486R(6), an application may be made, and an order may be given, under subsection 140SA as if the proceedings were commenced under section 140S.

 

Section 140SC            Certain plaintiffs may choose small claims procedure in magistrates courts

 

214.           New section 140SC provides a capacity for section 140S actions to be brought using a small claims procedure. The purpose of new section 140SC is to improve access to the courts for a person to recover money owed in relation to a sponsorship obligation. A small claims procedure is easier to understand and less costly to commence than standard court proceedings.

 

215.           New subsection 140SC(1) provides that if a person starts an action under section 140S in a magistrates court and they indicate, in a manner prescribed by the regulations or by rules of court relating to that court, that they want a small claims procedure to apply, subsections (2) and (3) apply in relation to the action.

 

216.           New subsection 140SC(2) provides that the small claims procedure is governed by four conditions:

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

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

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

·          a person is not entitled to legal representation unless allowed by the court.

 

217.           New subsection 140SC(3) provides that if the court allows a person to have legal representation, the court may, if it thinks fit, do so subject to conditions designed to ensure that a party is not unfairly disadvantaged.

 

218.           New subsection 140SC(4) provides that for the purposes of a case heard in a court of a State, the regulations may prohibit or restrict legal representation of the parties to the same extent as a law of the State for particular proceedings. It also provides that for the purposes of a case heard in a court of a Territory, the regulations may prohibit or restrict legal representation of the parties. New subsection 140SC(4) applies despite new paragraph 140SC(2)(d) and new subsection 140SC(3).

 

219.           The purpose of new subsection 140SC(4) is to enable consistency for a State or Territory court in their rules relating to legal representation in small claims proceedings.

 

Item 28           Subsection 140T(1)

 

220.           Existing section 140T relates to notices issued by the Minister stating an amount that is owed in relation to a sponsorship undertaking. This item amends existing section 140T by replacing the term ‘has undertaken’ with ‘is required’.

 

221.           The purpose of this amendment is so that section 140T does not relate to undertakings, but relates more generally to amounts required to be paid to the Commonwealth under the amended Division 3A of Part 2 of the Migration Act (including amounts arising out of an approved sponsor’s obligations).

 

Item 29           Sections 140V and 140W

 

222.           This item repeals these sections.

 

223.           Existing section 140V relates to the disclosure of personal information in prescribed circumstances. New sections 140ZH and 140ZI (inserted by item 30) replace existing section 140V and relate to the disclosure of personal information in prescribed circumstances.

 

224.           Existing section 140W, in broad terms, provides that other regulation making powers in the Act are not limited by the regulation making powers in Division 3A of Part 2 of the Migration Act. New section 140ZK (inserted by item 30) replaces existing section 140W and provides that other regulation making powers are not limited by the regulation making powers in Division 3A of Part 2 of the Migration Act.

 

Item 30           Subdivision C of Division 3A of Part 2

 

225.           This item repeals Subdivision C and inserts the following new subdivisions:

·          Subdivision F - Inspectors (sections 140V - 140ZA)

·          Subdivision G - Application of Division to partnerships and unincorporated associations (sections 140ZB - 140ZG)

·          Subdivision H - Miscellaneous  (sections 140ZH - 140ZK)

 

226.           Existing Subdivision C sets out how sponsor obligations and rights are to apply in relation to partnerships and unincorporated associations. It is necessary to include specific application provisions for partnerships and unincorporated associations because unlike a natural person, or a body corporate, partnerships and unincorporated associations do not have the status of a separate legal entity.

 

227.           The content of existing Subdivision C is replaced by new Subdivision G - Application of Division to partnerships and unincorporated associations.

 

Section 140V              Inspectors

 

228.           New section 140V which deals with appointment of inspectors.

 

229.           New subsection 140V(1) provides that the Minister may, by written instrument, appoint a person to be an inspector, or appoint a class of persons to be inspectors. This provides the flexibility to appoint a particular person as an inspector, or appoint a class of persons to be inspectors. An example of a class of persons who may be appointed to be inspectors are persons who are appointed as Workplace Inspectors under the Workplace Relations Act 1996 .

 

230.           This written instrument is an instrument of appointment which means that it is not a legislative instrument.

 

231.           Item 24 of the table in subsection 7(2) of the Legislative Instruments Act 2003 provides that an instrument prescribed in the regulations for the purposes of the table is not a legislative instrument. Clause 9 of Part 1 to Schedule 1 of the Legislative Instruments Regulations 2004 provides that an instrument of appointment is not a legislative instrument for the purposes of item 24 of the table in subsection 7(2) of the Legislative Instruments Act 2003 .

 

232.           The effect of this is that any written instruments made by the Minister under new subsection 140V(1) do not have to be registered and are not disallowable.

 

233.           New subsection 140V(2) provides that a person or a class of persons is appointed for the period specified in the instrument of appointment. This period must not be longer than a period specified in the regulations.

 

234.           It is envisaged that an instrument of appointment may include that the appointment ceases at the earlier of an appointed person resigning from their position as inspector, or a specified date that is not longer than the period specified in the regulations.

 

235.           New subsection 140V(3) provides that an inspector has the powers that are specified in his or her instrument of appointment. The powers specified in an instrument of appointment must be powers conferred on an inspector by the Migration Act or by the regulations (the instrument may include powers conferred by both the Migration Act and the regulations).

 

236.           The inspector powers in the Migration Act are set out in new sections 140X and 140Y. Inspector powers may also be prescribed in the regulations under new paragraph 140X(2)(d). The purpose of new subsection 140V(3) is to enable the Minister to appoint inspectors with limited powers (rather than all available powers) if necessary.

 

237.           The note following subsection 140V(3) advises that in accordance with section 499 of the Migration Act, the Minister may give written directions specifying the manner in which, and any conditions and qualifications subject to which, powers conferred on inspectors are to be exercised. A written instrument made under section 499 must be tabled in each House of the Parliament within 15 sitting days of that House after the direction was given.

 

Section 140W             Identity Cards

 

238.           New section 140W sets out rules in relation to the issue and use of inspectors’ identity cards.

 

Issue of identity card and form of identity card

 

239.           New subsections 140W(1) and (2) provide that the Minister must issue an identity card to an inspector, and that the card must be in a form prescribed by the regulations and contain a recent photograph of the inspector.

 

Identity card to be carried

 

240.           New subsection 140W(3) provides that an inspector must carry the identity card at all times when exercising powers as an inspector.

 

 

 

Offence

 

241.           New subsection 140W(4) creates an offence in relation to identity cards. A person commits an offence attracting a penalty of 1 penalty unit (currently equal to $110), if the person has been issued with an identity card and does not return the identity card to the Secretary of the Department of Immigration and Citizenship within 14 days of ceasing to be an inspector.

 

242.           New subsections 140W(5) and (6) provide that the offence is one of strict liability. However, a person does not commit an offence against subsection (4) if the person’s identity card was lost or destroyed.

 

243.           A note has been inserted under subsection (5) which advises that for a definition of strict liability , see section 6.1 of the Criminal Code.

 

244.           A note has been inserted under subsection (6) which advises that in accordance with subsection 13.3(3) of the Criminal Code a defendant bears the evidential burden in relation to proving that the defendant’s identity card was lost or destroyed.

 

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

 

246.           It is important that identity cards be returned as soon as practicable after an inspector ceases their appointment in order to prevent the improper use of such cards. This is an administrative obligation provision, with a small penalty attached, and an illustration of where strict liability is sometimes applied under Commonwealth law. Examples of similar provisions where strict liability is applied in relation to failure to return identity cards include section 268CZA of the Migration Act 1958 and section 168 of the Workplace Relations Act 1996 .

 

140X               Powers of Inspectors

 

Purpose for which powers of inspectors can be exercised

 

247.           New subsection 140X(1) provides the purposes for which inspectors powers can be exercised. The powers of an inspector are set out in new subsection 140X(2) and section 140Y, and may include powers prescribed in the regulations (see new paragraph 140X(2)(d)).

 

248.           New subsection 140X(1) provides that the purposes for which these powers may be exercised are:

·          for the purpose of determining whether a sponsorship obligation is being, or has been, complied with; or

·          for a purpose prescribed in the regulations.

 

249.           The sponsorship obligations referred to are those which may be prescribed under new section 140H (inserted by item 19), or set out in the terms of a work agreement (a definition of “work agreement” is inserted by item 8). New section 140K (also inserted by item 19) sets out the sanctions which may be imposed on a person who is or was an approved sponsor for failure to satisfy a sponsorship obligation.

 

250.           It is envisaged that the kind of purpose which may be prescribed in the regulations will be a purpose relating to whether cancellation or barring action may be taken in relation to a sponsor under new section 140M, as a result of regulations prescribed under new subparagraphs 140L(1)(a)(ii) and paragraph 140L(2)(b) (inserted by item 19).

 

251.           These provisions provide that the regulations may prescribe circumstances (other than failure to satisfy a sponsorship obligation) in which the Minister may or must take a barring or cancelling action set out in new section 140M.

 

Powers of inspectors

 

252.           New subsection 140X(2) sets out powers of inspectors. Subsection 140X(2) is modelled on the powers set out in section 169 of the Workplace Relations Act 1996 , which are available to inspectors appointed under section 167 of that Act .

 

253.           These powers are not in accordance with the Guide to Framing Commonwealth Offences, Civil Penalties and Enforcement Powers . However, it is necessary for inspectors appointed under new section 140V to have similar powers as Workplace Inspectors, as it is probable that Workplace Inspectors will also be appointed as inspectors under new section 140V. If so, it would be intended that the Workplace Inspectors will exercise their powers for the purposes of both the Workplace Relations Act 1996 , and the purposes in section 140X(1), concurrently.

 

254.           It would be impractical for inspectors to ensure compliance with their powers, if they are exercising two different sets of powers on the same workplace inspection. To ensure that consistency is maintained, any future amendments made to the provisions relating to Workplace Inspectors in the Workplace Relations Act 1996, are expected to include consequential amendments to provisions in the Migration Act 1958 relating to inspectors appointed under new section 140V.

 

255.           The only power available to Workplace Inspectors which will not be available for an inspector appointed under new section 140V is to collect samples of a prescribed kind. There is no circumstance in which collecting samples would be relevant to a purpose set out in new subsection 140X(1).

 

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

 

257.           Paragraph 140X(2)(b) provides that once an inspector has entered a place referred to in paragraph 140X(2)(a) he or she may:

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

·          interview any person;

·          require a person who has custody of, or access to, a document or thing, relevant to the purpose for which the inspector is exercising the power, to produce the document to the inspector within a specified period;

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

 

258.           Paragraph 140X(2)(c) provides that inspectors are also able to require a person, by written notice, to produce a document or thing to the inspector at a specified place within a specified period (of not less than 7 days).

 

259.           The minimum period in which to respond to a written notice has been set at 7 days rather than the 14 days provided for in a similar provision found at section 169 of the Workplace Relations Act 1996 . This is because there may be compelling reasons in special cases for requesting information in as few as 7 days, taking into account the special vulnerability of non-citizens in Australia on temporary visas to exploitation. In normal circumstances however inspectors will be expected to provide sponsors with at least 14 days in which to respond to a written notice.

 

260.           Note 1 to paragraph 140X(2)(c) advises that if a person fails to produce a document or thing under paragraph 140X(2)(c) then they may commit an offence under new section 140Z. New section 140Z has a maximum penalty of 6 months imprisonment.

 

261.           Note 2 to paragraph 140X(2)(c) advises that new subsection 140Y(3) deals with the methods by which the written notice must be given to the person.

 

262.           Paragraph 140X(2)(d) provides that powers of inspectors may also be prescribed in the regulations. The purpose of this provision is to ensure that if a relevant power is prescribed for Workplace Inspectors under subsection 167(5) or paragraph 169(1)(b) of the Workplace Relations Act 1996, if appropriate, the power may also be prescribed for inspectors appointed under new section 140V.

 

263.           Subsection 140X(3) confirms that an inspector is not prevented from requiring a person , by written notice, to produce a document or thing under paragraph 140X(2)(c), if the document or thing has already been requested during an inspection under paragraph 140X(2)(b).

 

264.           The note inserted under subsection 140X(3) advises that a failure to produce a document or thing under paragraph 140X(2)(c) may be an offence under section 140Z. New section 140Z has a maximum penalty of 6 months imprisonment.

 

265.           Subsection 140X(4) provides that an inspector is not to exercise his or her powers in relation to business premises or other places, or to remain there, where the occupier has requested production of the identity card and the inspector has failed to do so. The purpose of this provision is to ensure that inspectors carry their identity cards and identify themselves.

 

When may the powers be exercised?

 

266.           Subsection 140X(5) provides that an inspector may exercise his or her powers at any time during ordinary working hours, or at any other time which is necessary for the purposes of subsection 140X(1) powers.

 

267.           The purpose of this amendment to provide consistency with the regulation of when Workplace Inspectors can exercise powers for the purposes of the Workplace Relations Act 1996 (the need for consistency is explained above in relation to subsection 140X(2)).

 

Section 140Y              Requirement to produce a document or thing

 

268.           Subsection 140Y(1) provides that once a document or thing is produced to an inspector (under paragraphs 140X(2)(b) or (c)), the inspector may take possession of the document or thing and make copies or take extracts from it.  The document may be retained for such period as is necessary for the purpose of exercising powers as an inspector.

 

269.           Subsection 140Y(2) provides that where an inspector retains a document or thing produced by a person, the inspector is to allow that person (or a person authorised by that person), at all reasonable times, to inspect, make copies, and take extracts of it.

 

Giving notices requiring production of a document

 

270.           Subsection 140Y(3) provides that a written notice issued under paragraph 140X(2)(c) must be given by one of the methods set out in section 494B, which is a general provision setting out methods by which documents are given to a person. The methods in section 494B include giving a notice by hand, handing to a person at their residential or business address, transmission by fax, e-mail or other electronic means.  If a notice is given by one of the methods in section 494B the recipient is taken to have received the notice in accordance with the provisions of section 494C.

 

271.           Reference to the Minister in sections 494B and 49C are to be taken as referring to inspectors, and despite the wording of section 494B, inspectors may not use “authorised officers” as defined in section 5 to deliver a notice.

 

272.           For the purposes of a written notice issued under paragraph 140X(2)(c) , paragraphs 140Y(3)(a) - (c) provide that a reference in sections  494B or 494C to the Minister is instead taken to be a reference to the inspector and despite subsection 494B(2), (3) and (6), an inspector must not act by way of an authorised officer.  As inspectors will be performing an operational role it is not appropriate that other officers should be authorised for the purposes of providing notices. 

 

Self-incrimination

 

273.           Subsection 140Y(4) provides that a person must give information or produce a document or thing when requested or required to do so under section 140X even if doing so would tend to incriminate them or expose them to a penalty.  The effect of this provision is that it abrogates the common law privilege against self-incrimination for individuals. 

 

274.           This provision is necessary because the privilege extends beyond information that may expose an individual to a criminal penalty to also cover information that may expose an individual to a civil or administrative penalty.  If individuals were able to claim the privilege in relation to information which may expose them to one of these latter penalties, then an inspector could never perform his or her functions.   The provision merely restates the legal position for bodies corporate, as a body corporate cannot claim the privilege against self-incrimination.

 

275.           Subsection 140Y(5) provides for limited use immunity, and derivative use immunity in relation to information provided by individuals in recognition of the fact that subsection 140Y(4) also abrogates the privilege against self incrimination in respect of information that may expose the individual to a criminal penalty.  This allows the Commonwealth to effectively pursue civil and administrative sanctions in relation to information provided that may also reveal a criminal offence. 

 

276.           However, the Commonwealth cannot pursue criminal sanctions in relation to an offence evidenced by the information given, or documents or things produced, as they are not admissible as evidence in criminal proceedings against an individual, if without subsection 140Y(4), the privilege against self-incrimination could have been claimed for the information, document or thing (limited use immunity).

 

277.           In addition, any information, document or thing obtained as a direct or indirect consequence of producing the information, document or thing, is not admissible as evidence in criminal proceedings against an individual, if without subsection 140Y(4), the privilege against self-incrimination could have been claimed for the information, document or thing (derivative use immunity).

 

278.           The limited use immunity and derivative use immunity, however, do not apply in proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relate to the information or document itself. Sections 137.1 and 137.2 are about the provision of false or misleading information or documents. The effect of this provision is that limited use and derivative use immunity do not limit the ability to prosecute an individual for providing information, documents or things that are false or misleading.

 

279.           The limited use immunity and derivative use immunity provided in subsection 140Y(5) only apply in relation to information provided by an individual. The immunities are not available to information or documents provided by a body corporate. This is because, regardless of subsection 140Y(4), a body corporate does not have a right to claim the privilege against self-incrimination.

 

280.           It is necessary to abrogate the privilege against self incrimination to enable a key purpose of the Bill, namely the protection of non-citizen temporary workers from exploitation. It would be unacceptable for a sponsor who is exploiting non-citizen temporary workers to legitimately rely on the privilege against self-incrimination to refuse to produce documents or information to an inspector that relate to that exploitation.

 

281.           Abrogating the privilege against self-incrimination protects the interests of non-citizen temporary workers by ensuring that compliance with sponsorship obligations can effectively be monitored. The interests of sponsors, however, are also provided for through the limited use and derivative use immunity.

 

Section 140Z              Offence - failing to comply with requirement of inspector

 

282.           New section 140Z provides that a person commits an offence if an inspector requires them to produce a document or thing under paragraph 140X(2)(c), and they do not comply with the requirement. This offence attracts a maximum penalty of imprisonment for 6 months.

 

283.           New paragraph 140X(2)(c) provides that inspectors may require a person, by written notice, to produce a document or thing to the inspector at a specified place within a specified period (of not less than 7 days). As discussed above, the minimum period in which to respond to a written notice has been set at 7 days rather than the 14 days provided for in a similar provision found at section 169 of the Workplace Relations Act 1996 . This is because there may be compelling reasons in special cases for requesting information in as few as 7 days, taking into account the special vulnerability of non-citizens in Australia on temporary visas to exploitation. In normal circumstances however inspectors will be expected to provide sponsors with at least 14 days in which to respond to a written notice.

 

284.           The purpose of this offence is to provide an inspector power for which there is a sanction for non-compliance. The inspector powers under new subsection 140X(2) do not allow an inspector to enter premises by force. Therefore, a person could effectively prevent access to documents relating to compliance with sponsorship obligations by refusing access to premises.

 

285.           The effect of 140Z is to ensure that there is a sanction if documents or things are not produced in accordance with a notice which requests production. The maximum penalty of 6 months imprisonment is consistent with the penalty for the similar offence under section 819 of the Workplace Relations Act 1996 .

 

Section 140ZA           Disclosure of information by inspectors

 

286.           New section 140ZA sets out the circumstances in which an inspector can disclose information to another person.

 

287.           The purpose of the section is to ensure that certain disclosures of personal information are authorised by law for the purposes of paragraph (1)(d) of Information Privacy Principle 11 in section 14 of the Privacy Act 1988 (which provides that an exception to the principle that personal information must not be disclosed, is if the disclosure is required or authorised by law).

 

288.           New subsection 140ZA(1) provides that disclosure of information (which was acquired in the course of the inspector exercising powers) by an inspector is authorised where the inspector considers, on reasonable grounds that the disclosure in the course of exercising his or her powers or performing his or her functions is necessary or appropriate. For example, a disclosure will be necessary where an Inspector requires certain information and there is no reasonable way of obtaining that information without making the relevant disclosure. 

 

289.           This provision will allow an inspector who is not also an employee of the Department of Immigration and Citizenship (or who is not otherwise an officer for the purposes of the Migration Act) to disclose information, which was acquired by the inspector in the course of exercising his or her powers as an inspector, to the Department of Immigration and Citizenship.

 

290.           New subsection 140ZA(2) provides that an inspector may also disclose information to the Secretary or an employee of a Department administered by a Minister who administers the Workplace Relations Act 1996 if the inspector considers on reasonable grounds that the disclosure is likely to assist the Secretary or employee in the administration of that Act.

 

291.           This provision is necessary because it is likely that information gathered from business premises for the purposes of determining compliance with sponsorship obligations will also be relevant to compliance with the Workplace Relations Act 1996 . This is because the sponsorship obligations will relate to protecting workers in the workplace.

 

292.           New subsection 140ZA(3) also provides that the regulations may authorise inspectors to disclose information of the prescribed kind, for prescribed purposes, to:

·          a person who holds any office or appointment under a law of the Commonwealth, or under a law of a State or Territory (this includes, for example, a Secretary of a department; or

·          employees of the Commonwealth of the prescribed kind; or

·          employees of a State or Territory of the prescribed kind. 

 

293.           It is intended that such information may be disclosed where relevant to the performance of the functions of State and Territory agencies responsible for the administration of any of the following matters: health, workplace safety, public safety, industrial relations, law enforcement, fair trading or trade practices.

 

294.           New subsection 140ZA(4) provides that a person who acquires information because of a disclosure under section 140ZA may only use or disclose the information for the same purposes for which the original disclosure was made.

 

295.           In the majority of circumstances, the further disclosure of information disclosed by an inspector under new section 140ZA will be regulated by the Privacy Act 1988 , or a state Privacy Act. The purpose of new subsection 140ZA(4) is to ensure that further disclosure of information disclosed under new section 140ZA is regulated for the purposes of persons who are not bound by any other privacy laws.

 

Subdivision G - Application of Division to partnerships and unincorporated associations

 

296.           New Subdivision G sets out how sponsorships obligations, civil penalties, and offences included in Division 3A of Part 2 of the Migration Act are to apply in relation to partnerships and unincorporated associations. It is necessary to include these specific application provisions for partnerships and unincorporated associations because unlike a natural person, or a body corporate, partnerships and unincorporated associations do not have the status of a separate legal entity.

 

297.           New Subdivision G replaces the content of existing Subdivision C.

 

298.           Existing Subdivision C provides that sponsorship obligations are imposed upon each person who is a partner or member of a committee of management rather than on the partnership or unincorporated association. The provisions provide that a new partner or new member of a committee can elect whether or not to be bound by an obligation, and that the regulations may prescribe the circumstances in which a retiring partner or member of a committee remains bound by an obligation.

 

299.           The result of this approach is that none of the existing partners or members of a committee may be bound by the obligations as they may have all elected to not be bound by the obligations.

 

 

 

300.           New Subdivision G differs to existing Subdivision C in the following ways:

·          It does not provide for a new partner or member of an unincorporated association to elect whether they wish to be bound by a sponsorship obligation or to be able to exercise a sponsorship right. Rather, it provides that all existing partners of a partnership at any given time are required to satisfy a sponsorship obligation and can exercise a sponsorship right;

·          It does not provide that the regulations may prescribe when and for how long a retiring partner remains bound by a sponsorship obligation. Rather, it provides that all existing partners of a partnership at any given time are required to satisfy a sponsorship obligation and can exercise a sponsorship right. If a partnership ceases to exist, and consequently there are no existing partners, all the persons who were partners immediately prior to the partnership ceasing to exist continue to be required to satisfy a sponsorship obligation as if they were an existing partner and the partnership had not ceased; and

·          It includes provisions which set out how offences and civil penalty provisions included in Division 3A of Part 2 of the Migration Act apply to partnerships and unincorporated associations.

 

301.           The first purpose of these changes is to ensure that existing partners or members are required to satisfy sponsorship obligations. Under existing Subdivision C, it may occur that no existing partners or members are bound to discharge a sponsorship obligation because all existing partners or members are new and have elected not to be bound.

 

302.           The second purpose of these changes is to set out how the new offences and civil penalties in Division 3A of Part 2 of the Migration Act apply to partnerships and unincorporated associations.

 

Section 140ZB            Partnerships - sponsorship rights and obligations

 

303.           New subsection 140ZB(1) provides that Division 3A, the regulations made under it, and any other provisions of the Migration Act that relate to Division 3A (and regulations made under such provision) apply to a partnership as if it were a person, but with the changes set out in new subsections 140ZB(2) - (4) and new sections 140ZC and 140ZD.

 

304.           The effect of new subsection 140ZB(1) is that a partnership is a person for the purposes of the definition of “approved sponsor” (inserted by item 1), and is a person for the purposes of the civil penalty regime set out in Part 8D (inserted by item 42), as well as being a person for the purposes of Division 3A of Part 2 of the Migration Act.

 

305.           New section 140ZC sets out how Division 3A of Part 2 of the Migration Act offences and civil penalties apply to partnerships. New section 140ZD sets out how Division 3A of Part 2 of the Migration Act applies in relation to partnerships that have ceased to exist.

 

306.           New subsection 140ZB(2) provides that a sponsorship right is exercisable by a each partner rather than by the partnership.

 

307.           New subsection 140ZB(3) provides that a sponsorship obligation is imposed on each partner, rather than on the partnership and may be discharged by any of the partners. 

 

308.           New subsection 140ZB(4) provides that the partners are jointly and severally liable to pay an amount in relation to a sponsorship obligation. Partners are not, however, jointly and severally liable for a pecuniary penalty ordered to be paid as a result of civil penalty proceedings. Under section 140ZC, only a partner who did, aided, abetted, counselled, procured or was in any way knowingly concerned in the act or omission that contravened the civil penalty (a civil penalty is contravened if there is failure to satisfy a sponsorship obligation), is liable for a pecuniary penalty. 

 

Section 140ZC           Partnerships - offences and civil penalties

 

309.           New section 140ZC sets out how criminal offences and civil penalties included in Division 3A of Part 2 of the Migration Act apply in relation to partnerships. The civil penalty provisions included in Division 3A are subsections 140Q(1) and (2). These civil penalty provisions relate to failure to satisfy sponsorship obligations.

 

310.           The offence provision included in Division 3A which could relate to a partnership is section 140Z which relates to a failure to comply with a written notice issued by an inspector to produce a document or thing (the written notice is issued under paragraph 140X(2)(c)).

 

311.           Subsection 140ZC(1) relates to criminal offences. It provides that where an offence under Division 3A would have been committed by a partnership but-for subsection 140ZB(1), each partner at the time the offence is committed is taken to have committed the offence if they did the relevant act or made the relevant omission, or aided, abetted, counselled or procured the act or omission, or was in any way knowingly concerned in, or party to, the act or omission.

 

312.           The effect of this provision is that it is only the partners who did or were involved in the relevant act or omission constituting the offence who commit the offence.

 

313.           Subsection 140ZC(2) relates to civil penalty provisions. It provides that where a civil penalty provision under Division 3A would have been contravened by a partnership but-for subsection 140ZB(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 made the relevant omission, or aided, abetted, counselled or procured the act or omission, or was in any way knowingly concerned in, or party to, the act or omission.

 

314.           The effect of this provision is that it is only the partners who did or were involved in the relevant act or omission constituting the contravention that are liable to pay a pecuniary penalty ordered for contravention of a civil penalty provision.

 

315.           Subsection 140ZC(3) provides that the maximum civil penalty which may be imposed on each partner who is liable to pay the civil penalty is one-fifth of the amount which could be imposed on a body corporate for that contravention.

 

316.           The maximum amount that could be imposed on a body corporate for failing to satisfy a sponsorship obligation is 300 penalty units (see new section 140Q inserted by item 27). Therefore, the maximum that could be imposed on a partner is 60 penalty units. This is the same maximum amount that could be imposed on an individual, and currently equates to $6600 (see definition of penalty unit inserted by item 6).

 

317.           Subsection 140ZC(4) provides that to establish that a partnership engaged in particular conduct (relating to a civil penalty or a criminal offence), it is sufficient to show that the conduct was engaged in by one partner in the ordinary course of business of the partnership, and within the scope of the actual or apparent authority of the partner.

 

318.           Subsection 140ZC(5) provides that to establish that a partnership had a particular state of mind when it engaged in conduct (relating to a criminal offence), it is sufficient to show that a relevant partner had the relevant state of mind. This provision is necessary for the purposes of proving the fault (or mental) elements which, under the Criminal Code, must be satisfied to establish an offence. The Criminal Code does not require fault elements to be established in relation to civil penalties.  

 

Section 140ZD           Partnership ceases to exist

 

319.           The purpose of section 140ZD is to ensure that there is always a person who is required to satisfy a sponsorship obligation, even when a partnership ceases to exist.

 

320.           New subsection 140ZD(1) provides that if a partnership ceases to exist, the partners immediately prior to cessation must continue to satisfy applicable sponsorship obligations.

 

321.           New paragraph 140ZD(2)(a) provides that section 140ZB applies to a partnership that has ceased to exist as if references to a partnership were to a partnership that ceases to exist. Paragraph 140ZD(2)(b) provides that references to partners of the partnership were to the persons who were partners immediately prior to cessation. The effect of this provision is that the provisions governing how sponsorship obligations and rights apply to a partnership, apply in the same way to a partnership that ceases to exist.

 

322.           New subsection 140ZD(3) clarifies that a partnership ceases to exist if the dissolution of the partnership does not result in the creation of another partnership.

 

Section 140ZE            Unincorporated association - sponsorship rights and obligations

 

323.           New subsection 140ZE(1) provides that Division 3A, the regulations made under it, and any other provisions of the Migration Act that relate to Division 3A (and regulations made under such provision) apply to an unincorporated association as if it were a person, but with the changes set out in new subsections 140ZE(2) - (4) and new sections 140ZF and 140ZG.

 

324.           The effect of new subsection 140ZE(1) is that an unincorporated association is a person for the purposes of the definition of “approved sponsor” (inserted by item 1), and is a person for the purposes of the civil penalty regime set out in Part 8D (inserted by item 42), as well as being a person for the purposes of Division 3A of Part 2 of the Migration Act.

 

325.           New section 140ZF sets out how Division 3A of Part 2 of the Migration Act offences and civil penalties apply to unincorporated associations. New section 140ZG sets out how Division 3A applies in relation to unincorporated associations that have ceased to exist.

 

326.           New subsection 140ZE(2) provides that a sponsorship right is exercisable by a each member of the association’s committee of management rather than by the unincorporated association.

 

327.           A definition of “committee of management” of an unincorporated association is inserted by item 3. It is defined to mean a body (however described) that governs, manages or conducts the affairs of the association.

 

328.           New subsection 140ZE(3) provides that a sponsorship obligation is imposed on each member of the association’s committee of management, rather than on the unincorporated association and may be discharged by any of the members of the association’s committee of management. 

 

329.           New subsection 140ZE(4) provides that the members of the committee of management are jointly and severally liable to pay an amount in relation to a sponsorship obligation.

 

330.           Members are not, however, jointly and severally liable for a pecuniary penalty ordered to be paid as a result of civil penalty proceedings. Under section 140ZF, only a member who did, aided, abetted, counselled, procured or was in any way knowingly concerned in the act or omission that contravened the civil penalty (a civil penalty is contravened if there is failure to satisfy a sponsorship obligation), is liable for a pecuniary penalty. 

 

Section 140ZF            Unincorporated association - offences and civil penalties

 

331.           New section 140ZF sets out how criminal offences and civil penalties included in Division 3A apply in relation to unincorporated associations. The civil penalty provisions included in Division 3A are subsections 140Q(1) and (2). These civil penalty provisions relate to failure to satisfy sponsorship obligations.

 

332.           The offence provision included in Division 3A which could relate to an unincorporated association is section 140Z which relates to a failure to comply with a written notice issued by an inspector to produce a document or thing (the written notice is issued under paragraph 140X(2)(c))

 

333.           Subsection 140ZF(1) relates to criminal offences. It provides that where an offence under Division 3A would have been committed by an unincorporated association but-for subsection 140ZE(1), each member of the committee of management at the time the offence is committed is taken to have committed the offence if they did the relevant act or made the relevant omission, or aided, abetted, counselled or procured the act or omission, or was in any way knowingly concerned in, or party to, the act or omission.

 

334.           The effect of this provision is that it is only the members who did or were involved in the relevant act or omission constituting the offence who commit the offence.

 

335.           Subsection 140ZF(2) relates to civil penalty provisions. It provides that where a civil penalty provision under Division 3A would have been contravened by an unincorporated association but for subsection 140ZE(1), each member of the 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 made the relevant omission, or aided, abetted, counselled or procured the act or omission, or was in any way knowingly concerned in, or party to, the act or omission.

 

336.           The effect of this provision is that it is only the members 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 civil penalty provision.

 

337.           Subsection 140ZF(3) provides that the maximum civil penalty which may be imposed on each member of the committee of management who is liable to pay the civil penalty is one-fifth of the amount which could be imposed on a body corporate for that contravention.

 

338.           The maximum amount that could be imposed on a body corporate for failing to satisfy a sponsorship obligation is 300 penalty units (see new section 140Q inserted by item 27). Therefore, the maximum that could be imposed on a member is 60 penalty units. This is the same maximum amount that could be imposed on an individual, and currently equates to $6600 (see definition of penalty unit inserted by item 6).

 

339.           Subsection 140ZF(4) provides that to establish that an unincorporated association had a particular state of mind when it engaged in conduct (relating to a criminal offence), it is sufficient to show that a relevant member of the committee of management had the relevant state of mind. This provision is necessary for the purposes of proving the fault (or mental) elements which, under the Criminal Code, must be satisfied to establish an offence. The Criminal Code does not require fault elements to be established in relation to civil penalties.  

 

340.           There is no equivalent of 140ZC(4) included in relation to unincorporated associations because an unincorporated association does not engage in business as a partnership does.

 

Section 140ZG           Unincorporated association ceases to exist

 

341.           New subsection140ZG(1) provides that if an unincorporated association ceases to exist, the member of the committee of management immediately prior to cessation must continue to satisfy applicable sponsorship obligations.

 

342.           New paragraph 140ZG(2)(a)  provides that section 140ZE applies to an unincorporated association that has ceased to exist as if references to an unincorporated association were to a unincorporated association that ceases to exist.

 

343.           New paragraph 140ZG(2)(b) provides that references to members of the association’s committee of management in section 140ZE are to the persons who were members immediately prior to cessation. The effect of this provision is that the provisions governing how sponsorship obligations and rights apply to an unincorporated association, apply in the same way to an unincorporated association that ceases to exist.

 

344.           New subsection 140ZG(3) clarifies that an unincorporated association ceases to exist if the dissolution of the unincorporated association does not result in the creation of another unincorporated association.

 

345.           The purpose of 140ZG is to ensure that there is always a person who is required to satisfy a sponsorship obligation, even when an unincorporated association ceases to exist.

 

Subdivision H - Miscellaneous

 

Section 140ZH           Disclosure of personal information by Minister

 

346.           New section 140ZH authorises the Minister to disclose personal information of a prescribed kind about certain types of persons to other types of persons.

 

347.           The purpose of this provision is to ensure that the Minister is authorised by law to disclose the prescribed kinds of personal information for the purposes of paragraph (1)(d) of Information Privacy Principle 11 in Section 14 of the Privacy Act 1988 .  Information Privacy Principle 11 sets out the circumstances in which personal information can be disclosed by a Commonwealth government agency. The circumstances include that the disclosure is required or authorised by law.

 

348.           New section 140ZH expands the information disclosure provisions in existing section 140V. Existing section 140V provides for the personal information of a prescribed kind about a visa holder or former visa holder to be disclosed to their approved sponsor or former approved sponsor.

 

349.           New subsection 140ZH(1) expands this in table form by providing that:

·          personal information of a prescribed kind about visa holders or former visa holders may be disclosed to their approved sponsor, former approved sponsor, or an agency of the Commonwealth or a State or Territory prescribed by the regulations; and

·          personal information of a prescribed kind about an approved sponsor or former approved sponsor may be disclosed to their visa holder, former visa holder, or an agency of the Commonwealth or a State or Territory prescribed by the regulations.

 

350.           Subsection 140ZH(2) mirrors existing subsection 140V(2) by providing that the regulations may prescribe the circumstances in which the Minister may disclose the personal information prescribed under subsection 140ZH(1).

 

351.           An example of the kind of personal information that may be prescribed and the circumstances in which it may be disclosed include disclosing to a visa holder that their approved sponsor has failed to pay an amount that they are required to pay to the visa holder under a sponsorship obligation (sponsorship obligations are prescribed under new section140H, inserted by item 19). This disclosure could assist the visa holder to bring an action to recover the unpaid amounts. Another example is explained in detail below under the heading ‘Schedule 2’.

 

352.           Subsection 140ZH(3) mirrors existing subsection 140V(3) by providing that the regulations may prescribe circumstances in which the recipient may use or disclose the personal information disclosed in accordance with subsections 140ZH(1) and (2).

 

353.           Subsection 140ZH(4) mirrors existing subsection 140V(4) by providing that where information is disclosed in accordance with subsections 140ZH(1) and (2), the Minister must give written notice to the person about whom the information is disclosed that the disclosure has occurred and include details of the personal information disclosed.

 

354.           However, new subsection 140ZH(4) differs to existing subsection 140V(4) by also providing that written notice does not need to be provided where the personal information has been disclosed to an agency of the Commonwealth or a State or Territory prescribed by the regulations.

 

355.           Written notification does not need to be provided in these cases because the personal information will often be disclosed for the purpose of confirming compliance with a law administered by the prescribed government agency to whom the information has been disclosed. If notification were provided that the information had been disclosed it may impede any compliance investigation resulting from the disclosure by the Minister.

 

Section 140ZI             Disclosure of personal information to Minister

 

356.           New subsection 140ZI(1) authorises approved sponsors and former approved sponsors of a visa holder or former visa holder to disclose personal information of a prescribed kind to the Minister about the visa holder or former visa holder, if the Minister requests the personal information.

 

357.           New subsection 140ZI(2) clarifies that if personal information of a prescribed kind is disclosed by an approved sponsor or former approved sponsor as a result of a request by the Minister under subsection 140ZI(1), then the disclosure is taken to be authorised by law for the purposes of:

·          paragraph 1(d) of Information Privacy Principle 11 in section 14 of the Privacy Act 1988;

·          paragraph 2.1(g) of National Privacy Principle 2 in Schedule 3 to the Privacy Act 1988; and

·          a provision of a law of a State or Territory that provides  that information that is personal may be disclosed if the disclosure is authorised by law.

 

358.           Paragraph (1)(d) of Information Privacy Principle 11 in Section 14 of the Privacy Act 1988 sets out the circumstances in which personal information can be disclosed by a Commonwealth government agency. The circumstances include that the disclosure is required or authorised by law.

 

359.           Paragraph 2.1(g) of National Privacy Principle 2 in Schedule 3 to the Privacy Act 1988 sets out the circumstance in which personal information can be disclosed by an organisation (that is not a small business operator) . The circumstances include that the disclosure is required or authorised by law.

 

360.           New subsection 140ZI(3) clarifies that section 140ZI does not authorise a disclosure of personal information that is prevented by a law of the Commonwealth, a State or Territory, other than authorising disclosure for the purposes of the laws set out in new subsection 140ZI(2).

 

361.           New section 140ZI does not mean that an approved sponsor or former approved sponsor is required to provide personal information requested by the Minister. Rather new section 140ZI ensures that an approved sponsor or former approved sponsor is not prevented from providing personal information about a visa holder or former visa holder to the Minister when requested by the Minister.

 

362.           The kinds of personal information which may be prescribed in the regulations as information that the Minister may request and the approved sponsor or former approved sponsor is authorised to disclose include a visa holder’s contact details to facilitate direct communication with the Department.

 

Section 140ZJ            Unclaimed money

 

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

 

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

 

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

 

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

 

Section 140ZK           Other regulation making powers not limited

 

367.           New section 140ZK provides that regulations made for the purposes of Division 3A of Part 2 of the Migration Act do not limit the power to make regulations under other provisions of the Migration Act or under other legislation.

 

368.           New section 140ZK replaces existing section 140W. New subsection 140ZK replicates existing subsection 140W(1).

 

369.           New section 140ZK does not replicate existing subsections 140W(2) and (3) because these provisions merely restate the legal position - that is, it is not necessary to legislate or clarify that nothing in Division 3A of Part 2 of the Migration Act is intended to effect the operation of regulations made under the Migration Act, or the ability to repeal or amend those regulations.

 

Item 31           Subsection 245L(2)(note 1)

 

370.           This item omits the phrase “(as defined in the Privacy Act 1988 )” from note 1 following subsection 245L(2). This phrase is included in the existing note for the purpose of clarifying that “personal information” has the same meaning as in the Privacy Act 1988 .

 

371.           Item 7 inserts a definition of “personal information” into the general definitions section of the Migration Act (section 5(1)). The new definition provides that “personal information” has the same meaning as that given in Privacy Act 1988 .

 

372.           The effect of the amendment made by item 7 is to define “personal information” for the purposes of the whole Migration Act.

 

Item 32           Section 275 (definition of lawyer)

 

373.           This item repeals the definition of “lawyer” from section 275 of Part 3 of the Migration Act.

 

374.           Item 5 inserts a definition of “lawyer” into the general definitions section of the Migration Act (section 5(1)). This new definition is the same as the definition in existing section 275. The effect of the amendment made by item 5 is to define “lawyer” for the purposes of the whole Migration Act.

 

Item 33           Subsection 320(3)

 

375.           This item omits the phrase “(as defined in the Privacy Act 1988 )” from subsection 320(3). This phrase is included in the existing subsection for the purpose of clarifying that “personal information” has the same meaning as in the Privacy Act 1988 .

 

376.           Item 7 inserts a definition of “personal information” into the general definitions section of the Migration Act (section 5(1)). The new definition provides that “personal information” has the same meaning as that given in Privacy Act 1988 . The effect of the amendment made by item 7 is to define “personal information” for the purposes of the whole Migration Act.

 

Item 34           Subsection 321(1)

 

377.           This item omits the phrase “(as defined in the Privacy Act 1988 )” from subsection 321(1). This phrase is included in the existing subsection for the purpose of clarifying that “personal information” has the same meaning as in the Privacy Act 1988 .

 

378.           Item 7 inserts a definition of “personal information” into the general definitions section of the Migration Act (section 5(1)). The new definition provides that “personal information” has the same meaning as that given in Privacy Act 1988 . The effect of the amendment made by item 7 is to define “personal information” for the purposes of the whole Migration Act.

 

Item 35           Subsection 321A(4) (definition of personal information)

 

379.           This item repeals the definition of “personal information” from subsection 321A(4).

 

380.           Item 7 inserts a definition of “personal information” into the general definitions section of the Migration Act (section 5(1)). The new definition provides that “personal information” has the same meaning as that given in Privacy Act 1988 . This is the same definition as in existing subsection 321A(4). The effect of the amendment made by item 7 is to define “personal information” for the purposes of the whole Migration Act.

 

Item 36           Subsection 332F(4) (definition of personal information)

 

381.           This item repeals the definition of “personal information” from subsection 332F(4).

 

382.           Item 7 inserts a definition of “personal information” into the general definitions section of the Migration Act (section 5(1)). The new definition provides that “personal information” has the same meaning as that given in Privacy Act 1988 . This is the same definition as in existing subsection 332F(4). The effect of the amendment made by item 7 is to define “personal information” for the purposes of the whole Migration Act.

 

Item 37           Subsection 332G(5) (definition of personal information)

 

383.           This item repeals the definition of “personal information” from subsection 332G(5).

 

384.           Item 7 inserts a definition of “personal information” into the general definitions section of the Migration Act (section 5(1)). The new definition provides that “personal information” has the same meaning as that given in Privacy Act 1988 . This is the same definition as in existing subsection 332G(5). The effect of the amendment made by item 7 is to define “personal information” for the purposes of the whole Migration Act.

 

Item 38           Subsection 336FB(1)

 

385.           This item omits the phrase “(as defined in the Privacy Act 1988 )” from subsection 336FB(1). This phrase is included in the existing subsection for the purpose of clarifying that “personal information” has the same meaning as in the Privacy Act 1988 .

 

386.           Item 7 inserts a definition of “personal information” into the general definitions section of the Migration Act (section 5(1)). The new definition provides that “personal information” has the same meaning as that given in Privacy Act 1988 . The effect of the amendment made by item 7 is to define “personal information” for the purposes of the whole Migration Act.

 

Item 39           Paragraph 336FC(2)(e)

 

387.           This item omits the phrase “(as defined in the Privacy Act 1988 )” from paragraph 336FC(2)(e). This phrase is included in the existing paragraph for the purpose of clarifying that “personal information” has the same meaning as in the Privacy Act 1988 .

 

388.           Item 7 inserts a definition of “personal information” into the general definitions section of the Migration Act (section 5(1)). The new definition provides that “personal information” has the same meaning as that given in Privacy Act 1988 . The effect of the amendment made by item 7 is to define “personal information” for the purposes of the whole Migration Act.

 

Item 40           Subsection 336FD(1)

 

389.           This item omits the phrase “(as defined in the Privacy Act 1988 )” from subsection 336FD(1). This phrase is included in the existing subsection for the purpose of clarifying that “personal information” has the same meaning as in the Privacy Act 1988 .

 

390.           Item 7 inserts a definition of “personal information” into the general definitions section of the Migration Act (section 5(1)). The new definition provides that “personal information” has the same meaning as that given in Privacy Act 1988 . The effect of the amendment made by item 7 is to define “personal information” for the purposes of the whole Migration Act.

 

Item 41           Section 486K (definition of lawyer )

 

391.           This item repeals the definition of “lawyer” from section 486K of the Migration Act. The definition of “lawyer” in existing section 486K provides that it has the same meaning as for Part 3 of the Migration Act. Section 275 defines “lawyer” for the purposes of Part 3 of the Migration Act. This definition in section 275 is repealed by item 32.

 

392.           Item 5 inserts a definition of “lawyer” into the general definitions section of the Migration Act (section 5(1)). This new definition is the same as the definition in existing section 275, and consequently the same definition as in section 486K. The effect of the amendment made by item 5 is to define “lawyer” for the purposes of the whole Migration Act

 

Item 42           After Part 8C

 

393.           This item inserts a new Part 8D into the Migration Act.  Part 8D sets out a civil penalty framework and is made up of :

·          Division 1 - Obtaining an order for a civil penalty (sections 486R-486U)

·          Division 2 - Civil penalty proceedings and criminal proceedings (sections 486V-486Z); and

·          Division 3 - Miscellaneous (section 486ZA).

 

394.           The new civil penalty framework inserted by this item is designed so that it can apply to any future civil penalty provisions which may be included in the Migration Act in the future (item 2 inserts a definition of civil penalty provision).

 

395.           Civil penalties have been preferred to criminal penalties as the appropriate sanction in this context as a sponsor’s conviction for a criminal offence may have unintended consequences.  For example the mere fact of a criminal conviction may mean that the sponsor loses entitlements to licences or other things essential to their business or livelihood, and this outcome would not be in Australia’s best interests.

 

396.           The use of civil penalties is also considered appropriate for the enforcement scheme to be flexible and administratively manageable.  In addition, civil penalties facilitate the infringement notice scheme provided for in proposed new section 140R (inserted by item 27).

 

Section 486R              Person may be ordered to pay pecuniary penalty for contravening civil penalty provision

 

397.           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

 

398.           New subsection 486R(1) provides that the Minister may apply to the Federal Court or the Federal Magistrates Court for an order that a person who has contravened a civil penalty provision pay the Commonwealth a pecuniary penalty. The Minister must apply to the court within 6 years of a person allegedly contravening a civil penalty provision.

 

399.           A definition of “civil penalty provision” is inserted by item 2. The only civil penalty provisions included in the Migration Act are new subsections 140Q(1) and (2) inserted by item 27. These civil penalty provisions relate to failure by an approved sponsor or former approved sponsor to satisfy a sponsorship obligation that is imposed on them. This may be through the regulations or through the terms of a work agreement (see new section 140H inserted by item 19).

 

Court may order wrongdoer to pay pecuniary penalty

 

400.           New subsection 486R(2) provides that if the court is satisfied that the person alleged to have contravened a civil penalty provision has contravened the provision, the court may order the person to pay to the Commonwealth a pecuniary penalty which the court determines is appropriate.

 

401.           For the purposes of the alleged contravention of a civil penalty provision under Division 3A of Part 2 of the Migration Act, a ‘person’ in subsection 486(2) (and in Part 8D generally) a partner in a partnership, or a member of a committee of management of an unincorporated association (see new subsections 140ZB(1) and 140ZE(1) inserted by item 30).

 

402.           The pecuniary penalty cannot be more than the maximum penalty amount provided in the civil penalty provision which has been contravened. For new subsection 140Q(1) and (2) (which are the only civil penalty provisions proposed to be included in the Migration Act) the maximum penalty is 60 penalty units for an individual (currently $6600) and 300 penalty units for a body corporate (currently $33,000).

 

403.           A pecuniary penalty may be awarded for each contravention of a civil penalty provision.

 

404.           For example, the sponsorship obligations prescribed under new section 140H (inserted by item 19) are required to be satisfied in respect of each visa holder (or former visa holder) sponsored by the approved sponsor. If the sponsorship obligation prescribed in the regulations provides that an approved sponsor must pay at least a minimum wage (however this is described) to their visa holders, and the approved sponsor does not pay at least the required minimum wage to each of their three visa holders, then this is at least three contraventions of a civil penalty provision.  The approved sponsor could then receive a total maximum penalty of 180 penalty units if they are an individual, or 900 penalty units if they are a body corporate (see new section 486ZA in relation to joining actions for multiple contraventions of civil penalty provisions).

 

Determining amount of pecuniary penalty

 

405.           New subsection 486R(3) sets out the relevant matters which a court must have regard to when determining the amount of the pecuniary penalty. The list of matters included in subsection 486R(3) are not exhaustive, a court must have regard to all relevant matters, regardless of whether they are expressly stated in subsection 486R(3).

 

406.           The list of matters included in subsection 486R(3) are:

·          the nature and extent of the contravention;

·          the nature and extent of any loss or damage suffered as a result of the contravention;

·          the circumstances in which the contravention took place; and

·          whether the person has previously been found by an eligible court in proceedings under the Migration Act to have engaged in the same or similar conduct.

 

407.           New subsection 486R(4) clarifies the meaning of “similar conduct” for the purposes of subsection 486R(3) in relation to a contravention of a civil penalty provision under Division 3A of Part 2 of the Migration Act.

 

408.           The two civil penalty provisions included in Division 3A of Part 2 of the Migration Act (inserted by item 27) relate to failure by an approved sponsor or former approved sponsor to satisfy a sponsorship obligation. New subsection 486R(4) 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 the same or different from the sponsorship obligation to which the proceedings relate.

 

Civil evidence and procedure rules apply

 

409.           New 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 section 486R. The orders that may be made under section 486R are set out in subsections 486R(2) and 486R(6).

 

410.           The note to subsection 486R(5) advises that the standard of proof in civil proceedings is the balance of probabilities.

 

Court may order wrongdoer to pay amount prescribed by regulations

 

411.           New 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.

 

412.           A subsection 486R(6) order cannot be made if proceedings to recover the amount (which is the subject of the order) have been brought under new subsection 140S. New subsections 140S(1) and (2) provide that where 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, in relation to a sponsorship obligation, then the person to whom the money is owed (including the Commonwealth, a State, or a Territory) may seek to recover the amount as a debt due in an eligible court.

 

413.           The benefit of a subsection 486R(6) order 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.

 

414.           If, however, the Minister does not commence civil penalty proceedings, or does commence civil penalty proceedings and no subsection 486R(6) order is made by the court as part of those proceedings, then a person will need to pursue a section 140S action to recover the money.

 

415.           If a section 140S action has already been commenced in relation to the amount at the time the subsection 486R(6) order is being considered, the subsection 486R(6) cannot be made, and liability to pay the amount will be decided through the already commenced section 140S proceedings. This will ensure that two orders are not made in relation to the same amount.

 

416.           New subsection 140S(3) (inserted by item 27) clarifies that an amount may still be recovered under section 140S 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.

 

417.           The note following subsection 140SB(6) highlights that section 140S allows a person to bring proceedings to recover an amount owed if the court does not make an order under subsection 486R(6).

 

418.           New subsection 486R(7) relates to the interest payable on an amount ordered to be paid under new subsection 486R(6).

 

419.           New paragraph 486R(7)(a) provides that if a court makes an order under subsection 486R(6), an application may be made, and an order may be given, under subsection 140SA as if the proceedings were commenced under section 140S.  New section 140SA (inserted by item 27) 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.

 

420.           New paragraph 486R(6)(b) provides that if a court makes an order under subsection 486R(6), section 140SB shall apply as if the amount so ordered were a judgment debt made under section 140S.  New section 140SB (inserted by item 27) provides that where an order to pay an amount has been made as a result of a section 140S action or under subsection 486R(6), that amount carries interest from the date on which the judgment is entered at the rate that would apply under section 52 of the Federal Court of Australia Act 1976 .

 

 

 

Section 486S               Persons involved in contravening civil penalty provision

 

421.           New 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.

 

422.           The effect of this provision in relation to the new subsections 140Q(1) and (2) civil penalty provisions (inserted by item 27) is that persons who are not required to satisfy a sponsorship obligation prescribed under new section 140H (inserted by item 19) may still breach the civil penalty provision if they are involved in the way described in an act or omission that amounts to a breach of the subsection 140Q(1) or (2) civil penalty provisions. 

 

Section 486T              Recovery of pecuniary penalties

 

423.           New section 486T provides that if the Federal Court or the Federal Magistrates Court orders a person to pay a pecuniary penalty under Part 8D, the Commonwealth may enforce the order as if it were a judgment of the relevant court.

 

Section 486U              Gathering information for application for pecuniary penalty

 

424.           New 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. The new section creates a criminal offence for failing to give the assistance required under new subsection 486U(2).

 

425.           New subsection 486U(1) provides that the Secretary may exercise the information gathering powers set out in section 486U if it appears to the Secretary that a person (the alleged wrongdoer) may have contravened a civil penalty provision.  

 

426.           New subsection 486U(2) provides that where the Secretary suspects on reasonable grounds that a person, other than the alleged wrongdoer, can give information relevant to an application for a civil penalty order, the Secretary may, by writing given to the person, require the person to give all reasonable assistance in connection with the application for the civil penalty order.

 

427.           New subsection 486U(3) clarifies that a lawyer who is acting, or has acted, for the alleged wrongdoer cannot be required to provide information under section 486U. A definition of lawyer is inserted into the general definitions section of the Migration Act by item 5, and is defined 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.

 

428.           New subsection 486U(4) empowers a court, upon an application by the Secretary, to order that a person complies with a request made under subsection 486U(2).

 

429.           New subsection 486U(5) creates a criminal offence for failure to give assistance as required under subsection 486U(2).  The maximum penalty is 30 penalty units.  This maximum penalty is the same as the maximum penalty for a similar offence provision found at section 42YE of the Therapeutic Goods Act 1989

 

430.           This is not an offence of strict liability. Therefore, the fault elements set out in Division 5 of the Criminal Code will apply.

 

Division 2 - Civil penalty proceedings and criminal proceedings

 

Section 486V              Civil proceedings after criminal proceedings

 

431.           New section 486V provides that a court must not order that a pecuniary penalty be paid for contravention of civil penalty provision if that person has been convicted of an offence arising from substantially the same conduct that constitutes the contravention of the civil penalty provision.

 

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

 

Section 486W             Criminal proceedings during civil proceedings

 

433.           Section 486W provides that where criminal proceedings have been commenced, any civil proceedings against the same person seeking a pecuniary penalty in relation to substantially the same conduct shall be stayed.  The civil proceedings may be resumed if the criminal proceedings do not result in a conviction, otherwise the civil proceedings are to be dismissed if and when the person is convicted as a result of the criminal proceedings.

 

434.           New section 486W sets out the interrelationship between criminal and civil proceedings that relate to conduct of a person which may be a breach of a civil penalty provision and also a criminal offence.

 

435.           Under new subsection 486W(1), civil penalty proceedings will be stayed where:

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

·          the offence is constituted by conduct that is substantially the same as the conduct in relation to which a civil penalty pecuniary order is proposed to be made.

 

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

 

Section 486X              Criminal proceedings after civil proceedings

 

437.           New section 486X provides that where a person is ordered to pay a pecuniary penalty for contravention of a civil penalty provision, criminal proceedings may not be commenced in relation to substantially the same conduct.  

 

Section 486Y              Evidence given in proceedings for civil penalty not admissible in civil proceedings

 

438.           New section 486Y concerns evidence of information given, or documents produced, by persons in civil penalty proceedings. 

 

439.           New section 486Y provides that such evidence is inadmissible in any later criminal proceedings against the same persons if those later proceedings relate to substantially the same conduct that was the subject of the civil penalty proceedings.  This section does not however apply to criminal proceedings which may arise from giving false evidence in the civil penalty proceedings.

 

Section 486Z              Civil double jeopardy

 

440.           New section 486Z provides that any person ordered to pay a pecuniary penalty for contravening a civil penalty provision shall not be liable to pay any pecuniary penalty under some other law of the Commonwealth in relation to that same conduct.

 

Section 486ZA           Multiple contraventions of civil penalty provisions

 

441.           Subsection 486ZA(1) provides that proceedings may be joined where the proceedings are against the same person for any number of orders to pay pecuniary penalties for contraventions of a civil penalty provision that are founded on the same facts or form, or are part of, a series of contraventions of the same or a similar character.

 

442.           Subsection 486ZA(2) provides that where actions are joined under subsection 486ZA(1), the court may make a single order imposing a pecuniary penalty, so long as the penalty does not exceed the sum of the maximum penalties which could have been imposed had the actions not been joined.

 

443.           For example, if a sponsorship obligation prescribed under new section 140H (inserted by item 19) requires a person to pay at least a minimum salary to the visa holders that they sponsor, and to pay the minimum salary at least once a month, the person may contravene subsection 140Q(1) (inserted by item 27) 10 times if they do not satisfy the obligation in relation to five visa holders for a period of 2 months (there is 10 contraventions because there is a contravention for each visa holder (5), for each month (2)).

 

444.           Subsection 140Q(1) is a civil penalty provision which is contravened if a person fails to satisfy a sponsorship obligation. Under new section 486ZA proceedings for an order in relation to all 10 alleged contraventions could be joined, and a single order made in relation to all 10 contraventions.

 

Item 43           Subsection 488B(1)

 

445.           This item omits the phrase “(as defined in the Privacy Act 1988 )” from subsection 488B(1). This phrase is included in the existing subsection for the purpose of clarifying that “personal information” has the same meaning as in the Privacy Act 1988 .

 

446.           Item 7 inserts a definition of “personal information” into the general definitions section of the Migration Act (section 5(1)). The new definition provides that “personal information” has the same meaning as that given in Privacy Act 1988 . The effect of the amendment made by item 7 is to include the definition of “personal information” for the purposes of the whole Migration Act.

 

 

 



Part 2—Transitional matters

 

Item 44      Definitions

 

447.           This item sets out five definitions that apply for the purposes of the transitional provisions included in Part 2 to Schedule 1 of the Bill.

 

448.           The first definition is “approved sponsor”. This item provides that “approved sponsor” has the same meaning as in the old law. Existing section 140D provides that a person is an “approved sponsor” when they have consented in writing to sponsor a person for a visa; consent has not been withdrawn; the Minister has approved the sponsorship; and the person has not been cancelled as a sponsor.

 

449.           This definition, however, does not apply where a contrary intention appears. For example, where an item provides that a person is an “approved sponsor” or former “approved sponsor” under the new law (see for example subitem 46(2)).

 

450.           The second definition is “approved professional development sponsor”. This item provides that “approved professional development sponsor” has the same meaning as in regulation 1.03 of the Migration Regulations 1994 as in force immediately before Schedule 1 of the Bill commences.

 

451.           Regulation 1.03 of the Migration Regulations 1994 currently provides that “approved professional development sponsor” means an organisation that has been approved as a professional development sponsor under existing subsection 140E(1) of the Migration Act and on the terms specified in regulation 1.20O. Items 48 and 49 set out transitional provisions which apply to approved professional development sponsors.

 

452.           The third definition is “new law”. This item provides that “new law” means Division 3A of Part 2 of the Migration Act 1958 as in force immediately after Schedule 1 of the Bill commences, and any other law of the Commonwealth as far as it relates to Division 3A of Part 2 the Migration Act 1958 .

 

453.           This ensures that “new law” includes both Division 3A of Part 2 of the Migration Act and other laws such as new Part 8D of the Migration Act (inserted by item 42). The term “new law” is used in items 45, 46, 47, and 49.

 

454.           The fourth definition is “old law”. This item provides that “old law” means Division 3A of Part 2 of the Migration Act 1958 as in force immediately before Schedule 1 of the Bill commences. There are no other laws of the Commonwealth that relate to Division 3A of Part 2 of the Migration Act as there are for “new law” in relation to Division 3A of Part 2 of the Migration Act. The term “old law” is used in items 45 - 49.

 

455.           The fifth definition is “standard business sponsor”. This item provides that “standard business sponsor” has the same meaning as in regulation 1.20B of the Migration Regulations 1994 as in force immediately before Schedule 1 of the Bill commences.

 

456.           Regulation 1.20B of the Migration Regulations 1994 currently relevantly provides that a “standard business sponsor” means a person whose application for approval as a standard business sponsor is made on or after 1 July 2003, and approved in accordance with regulation 1.20D or 1.20DA.

 

457.           Regulation 1.20D of the Migration Regulations 1994 currently sets out the criteria for approval as a standard business sponsor for businesses lawfully operating in Australia, and when a person ceases to be a standard business sponsor. Regulation 1.20DA sets out the criteria for approval as a standard business sponsor for businesses lawfully operating outside Australia, and when a person ceases to be a standard business sponsor (the ceasing provision is the same as under regulation 1.20D in relation to businesses lawfully operating inside Australia).

 

Item 45           Standard business sponsors to satisfy sponsorship obligations from commencement

 

458.           This item sets out the transitional arrangements for two groups of people:

·          a person who is a standard business sponsor immediately before Schedule 1 of the Bill commences (item 44 defines the term “standard business sponsor”); and

·          a person who is an approved sponsors, other than an approved sponsor who is an approved professional development sponsor immediately before Schedule 1 of the Bill commences (item 44 defines approved professional development sponsor and approved sponsor).

 

459.           A person is an approved sponsor, other than an approved professional development sponsor, when they have ceased to be a standard business sponsor, but remain an “approved sponsor” (within the meaning of section 140D) in relation to a Subclass 457 (Business (Long Stay)) visa holder.

 

460.           Existing section 140D provides that a person is an “approved sponsor” when they have consented in writing to sponsor a person for a visa; consent has not been withdrawn; the Minister has approved the sponsorship; and the person has not been cancelled as a sponsor.

 

461.           Currently, a person ceases to be a standard business sponsor at the earliest of reaching the maximum number of people that they are approved to sponsor; and twenty-four months after the approval as a sponsor was given. However, a person will remain an “approved sponsor” after ceasing to be a standard business sponsor if they cease to be a standard business sponsor through reaching their maximum number of people or twenty-four months passing, but not if they cease to be a standard business sponsor as a result of being cancelled.

 

462.           Subitem 45(1) provides that item 45 only applies to the above two groups of people ( standard business sponsors; and approved sponsors, other than an approved sponsor who is an approved professional development sponsor). The following explanation of this item will refer to these two groups collectively as “existing subclass 457 visa sponsors”.

 

463.           Subitem 45(2) provides that the amendments made by Schedule 1 of the Bill (the new sponsorship framework) apply to existing subclass 457 visa sponsors as if they were approved as a sponsor under new section 140E (amended by items 13-15) in relation to the class prescribed in the regulations for standard business sponsors.

 

464.           The effect of this provision is that an existing subclass 457 visa sponsor will become an “approved sponsor” within the meaning of the definition of “approved sponsor” inserted by item 1.

 

465.           The effect of falling within the new meaning of “approved sponsor” is that all provisions of the new sponsorship framework which refer to an approved sponsor or former approved sponsor will apply to existing subclass 457 visa sponsor. This includes (amongst other things) the new sponsorship obligations, civil penalty provisions, monitoring and investigation powers, and information sharing provisions.

 

466.           The application of the new sponsorship framework to existing subclass 457 visa sponsors is necessary for the following reasons:

·          the nature of the sponsorship obligations which will be required to be satisfied will not be significantly different from the existing undertakings;

·          the possible transitional period if these existing sponsors are not transitioned into the new sponsorship framework is impractically long (up to six years) for the large caseload;

·          the administrative complexity for sponsors, the Department of Immigration and Citizenship, and other stakeholders of administering two sponsorship frameworks makes the alternative unworkable for the large caseload; and

·          existing subclass 457 visa sponsors will have sufficient notice to terminate the sponsorship of their Subclass 457 (Business (Long Stay)) visa holders if they are not prepared to satisfy the new sponsorship obligations in relation to those visa holders.

 

467.           Subitem 45(3) provides that despite being an “approved sponsor” for the purposes of the new sponsorship framework, the terms of approval specified under existing section 140G in an existing subclass 457 visa sponsor’s approval as a sponsor continue to have effect. This means, for example, that an existing subclass 457 visa sponsor will cease to be approved as a sponsor at the earlier of reaching the maximum number people who they are approved to sponsor or 24 months after they were first approved as a sponsor.

 

468.           Subitem 45(4) provides that a term of a kind specified under existing section 140G in an existing subclass 457 visa sponsor’s approval as a sponsor, may be prescribed by the regulations as a term of a kind that can be varied under new paragraph 140GA(2)(a) (inserted by item 18).

 

469.           The note following subitem 45(4) advises that the effect of subitem 45(4) is that a term under existing section 140G may be varied under new section 140GA (inserted by item 18) if it is a prescribed term of a kind under new section 140GA.

 

470.           Subitem 45(5) provides that if an existing subclass 457 visa sponsor has made an undertaking under existing section 140H, then the undertaking ceases to have effect when Schedule 1 of the Bill commences, and they must satisfy any applicable sponsorship obligation prescribed by the regulations under new section 140H (inserted by item 19). An applicable sponsorship obligation is only required to be satisfied on and from commencement of the new sponsorship framework, a person cannot fail to satisfy a sponsorship obligation through an action that occurred prior to commencement of the new sponsorship framework.

 

471.           Subitem 45(6) provides that if an existing subclass 457 visa sponsor breaches an undertaking prior to the undertaking ceasing to have effect (by virtue of subitem 45(5)), then the existing subclass 457 visa sponsor, can be sanctioned under new section 140M (inserted by item 19) in the circumstances set out in existing regulation 1.20HA, as if existing regulation 1.20HA were made under new section 140L (also inserted by item 19).

 

472.           The purpose of this subitem is to ensure that the ability to sanction an existing subclass 457 visa sponsor for breach of an undertaking that occurs prior to commencement of the new sponsorship framework is not lost when the new sponsorship framework commences.

 

473.           It is necessary to be able to impose the sanction under the new cancelling and barring powers in new section 140M rather than the cancelling and barring powers under existing section 140L because subitem 45(2) provides that an existing subclass 457 visa sponsor is taken to be approved as a class of sponsor under new section 140E (amended by items 13-15), rather than continuing to be approved under existing section 140E.

 

474.           It is therefore the approval as a class of approved sponsor under new section 140E that needs to be cancelled or barred, rather than the original approval as a sponsor under existing section 140E - existing section 140L does not provide for approval in relation to a class of approved sponsor to be cancelled.

 

475.           Subitem 45(7) provides that the new sponsorship framework applies to a partner or member of the committee of management of an unincorporated association even if the partner or member did not make an election to be bound by sponsorship obligations under existing sections 140Z and 140ZE.

 

476.           New sections 140ZB to 140ZG set out how Division 3A of Part 2 of the Migration Act applies in relation to partnerships and unincorporated associations (inserted by item 30). These sections provide (amongst other things) that the current partners of a partnership at any given time, and the current members of the committee of management of an unincorporated association at any given time, are required to satisfy sponsorship obligations in relation to a visa holder sponsored by the partnership or unincorporated association.

 

477.           The effect this subitem is that a partner or member of the committee management who had previously elected not to be bound by sponsorship obligations will be bound by sponsorship obligations from commencement. It is necessary that this occur to ensure that there is always someone required to satisfy a sponsorship obligation in relation to a sponsored visa holder.

 

478.           Under the current law setting out when a partner or member of a committee is bound by sponsorship undertakings (see existing Subdivision C of Division 3A of Part 2 of the Migration Act), there may be no person who is required to satisfy a sponsorship obligation in respect of a sponsored visa holder, as all existing partners or members may not have made and election to be bound by sponsorship undertakings, and the partners or members who made the sponsorship undertakings have retired from the partnership or unincorporated association and are no longer bound by the undertakings.

 

479.           Subitem 45(7) only applies in respect of existing subclass 457 visa sponsors - therefore, the partners of partnerships, and the members of the committee of management of unincorporated associations, who are approved professional development sponsors will not be affected by new sections 140ZB to 140ZG (inserted by item 30).

 

Item 46           Certain former standard business sponsors to satisfy sponsorship obligations from commencement

 

480.           This item sets out the transitional arrangements for a person who, immediately before the commencement of Schedule 1 of the Bill, is a former standard business sponsor (item 44 defines the term “standard business sponsor”); is also a former approved sponsor within the meaning of existing section 140D; and is bound by an undertaking made under existing section 140H. Subitem 46(1) provides that these are the people to whom item 46 applies. Subitem 46(1) also clarifies that a person is ‘bound’ by an undertaking if the undertaking could be enforced under existing section 140Q.

 

481.           A person is a former approved sponsor in relation to a visa holder (or former visa holder) within the meaning of existing section 140D if the person has withdrawn their consent to sponsor the visa holder; if the person has been cancelled or barred in relation to the visa holder; or if they no longer satisfy the terms on which they were approved as a sponsor.

 

482.           Existing section 140Q provides that an undertaking remains enforceable against a person in circumstances prescribed in the regulations in relation to a visa holder to which the undertaking related ceasing to hold the relevant visa; or in relation to the person ceasing to be an approved sponsor of the visa holder. Existing regulation 1.20DB sets out the circumstances in which the undertakings remain enforceable.

 

483.           Subitem 46(2) provides that the amendments made by Schedule 1 of the Bill apply to a person to whom item 46 applies as if they had been a former approved sponsor within the meaning of the new definition of approved sponsor inserted by item 1, in relation to the class prescribed in the regulations for standard business sponsors. That is, they will be treated as a former approved sponsor within the meaning of that term under the new law.

 

484.           The effect of this provision is that a person to whom item 46 applies is deemed to be a former “approved sponsor” within the meaning of the definition of “approved sponsor” inserted by item 1.

 

485.           The effect of falling within the new meaning of former “approved sponsor” is that all provisions of the new sponsorship framework which refer to an approved sponsor or former approved sponsor will apply to the person to whom item 46 applies. This includes (amongst other things) the new sponsorship obligations, civil penalty provisions, monitoring and investigation powers, and information sharing provisions.

 

486.           Subitem 46(3) provides that for a person to whom item 46 applies (see subitem 46(1)) any undertakings made by the person under existing section 140H cease to have effect when Schedule 1 of the Bill commences, and the person must satisfy any applicable sponsorship obligation prescribed by the regulations under new section 140H (inserted by item 19).

 

487.           The effect of this subitem is that, for the purposes of sponsorship obligations, a person to whom item 46 applies is deemed to be a person who was, but is no longer an “approved sponsor” within the meaning of the definition of “approved sponsor” inserted by item 1. The person will be a former “approved sponsor” in relation to the class of approved sponsor prescribed for standard business sponsors.

 

488.           The purpose of deeming the person to be a former “approved sponsor” is to ensure that the sponsorship obligations prescribed in the regulations can apply to a person to whom item 46 applies. Under new section 140H (inserted by item 19), only an approved sponsor or former approved sponsor can be required to satisfy a sponsorship obligation prescribed in the regulations.      

 

489.           Subitem 46(4) provides that if a person to whom item 46 applies breaches an undertaking prior to the undertaking ceasing to have effect (by virtue of subitem 46(3)), then the person, can be sanctioned under new section 140M (inserted by item 19) in the circumstances set out in existing regulation 1.20HA, as if existing regulation 1.20HA were made under new section 140L (also inserted by item 19).

 

490.           The purpose of this subitem is to ensure that the ability to sanction a person for breach of an undertaking that occurs prior to commencement of the new sponsorship framework is not lost when the new sponsorship framework commences.

 

491.           It is necessary to be able to impose the sanction under the barring power in new subsection 140M(2) rather than the barring powers under existing section 140L because new section 140E (amended by items 13-15) provides that a person is approved in relation to class of approved sponsor, therefore the bar needs to be placed in relation to applications to be approved as one or more classes of approved sponsor. Existing section 140L does not allow for this, as it does not include the concept of classes of approved sponsor.

 

492.           The effect of this item in conjunction with item 45 is that all persons who are bound by an undertaking in relation to a Subclass 457 (Business (Long Stay) visa holder (or former holder) at the time of commencement, are required to satisfy sponsorship obligations, rather than undertakings.

 

493.           This is necessary for the following reasons:

·          the nature of the sponsorship obligations which will be required to be satisfied will not be significantly different from the existing undertakings;

·          the possible transitional period if these existing former approved sponsors are not transitioned into the new sponsorship framework is impractically long (up to six years) for the large caseload;

·          the administrative complexity for sponsors, the Department of Immigration and Citizenship, and other stakeholders of administering two sponsorship frameworks makes the alternative unworkable for the large caseload; and

·          existing sponsors will have sufficient notice to terminate the sponsorship of their Subclass 457 (Business (Long Stay)) visa holders if they are not prepared to satisfy the new sponsorship obligations in relation to those visa holders.

 

Item 47           Recovery of debts from standard business sponsors

 

494.           This item preserves the ability of a person to commence proceedings against a person who was a standard business sponsor (item 44 defines the term “standard business sponsor”) for a debt owed in relation to an undertaking under the existing law.

 

495.           More specifically, this item provides that an action to recover a debt could have been brought under existing sections 140S and 140R (repealed by item 27), but it has not yet been commenced, then on and from commencement of the Bill, the action can be brought under new section 140S (inserted by item 27).

 

496.           In this circumstance, new section 140S should be read as if the debt were an amount prescribed by the regulations in relation to a sponsorship obligation (prescribed under new section 140H inserted by item 19); and if the person who owes the debt is a standard business sponsor or former standard business sponsor (immediately before the day on which Schedule 1 of the Bill commences), as if the person is approved as a sponsor under new section 140E and consequently is an approved sponsor within the meaning of the definition of “approved sponsor” inserted by item 1.

 

497.           If a proceeding has already been commenced under existing section 140R or section 140S, section 8 of the Acts Interpretation Act 1901 has the effect that those proceedings are not affected by the commencement of provisions which repeal sections 140R and 140S.

 

Item 48           Continued effect of Division 3A of the Migration Act 1958 for approved professional development sponsors

 

498.           This item provides that notwithstanding amendments made to Division 3A of Part 2 of the Migration Act, the existing Division 3A of Part 2 continues to apply to a person who is an “approved professional development sponsor” (item 44 defines “approved professional development sponsors) until the person ceases to be an approved professional development sponsor.

 

499.           The effect of this item is that a person who is an “approved professional development sponsor” is not affected by the amendments made to Division 3A of Part 2 of the Migration Act, as the existing law will continue to apply to them.

 

500.           The caseload of “approved professional development sponsors” is very small and it will not be difficult to continue to administer the existing sponsorship framework for this small group at the same time as administering the new sponsorship framework.

 

Item 49           Pending applications

 

501.           This item sets out how applications for approval as a sponsor (made under existing section 140E) which have been made but have not been finally determined on commencement of Schedule 1 of the Bill will be decided.

 

502.           Subsection 5(9) of the Migration Act provides that an application is not finally determined if it is subject to merits review.

 

503.           This item provides that an application for approval as a sponsor made under existing section 140E, that has not yet been finally determined on commencement of Schedule 1 of the Bill, is to be treated as if it had been made on the day on which Schedule 1 of the Bill commences, and the Minister (or delegate) must approve (or not approve) the person as a sponsor in accordance with new section 140E (amended by items 13-15).

 

504.           The purpose of this amendment is to ensure that the existing sponsorship framework does not apply to existing applicants. This would be undesirable in the case of sponsors for Subclass 457 (Business (Long Stay)) visas because this would be inconsistent with items 45 and 46 which ensure that existing subclass 457 visa sponsors are transitioned into the new sponsorship framework.

 

505.           This would also be undesirable in the case of sponsors for Subclass 470 (Professional Development) visas because this would increase the number of people who are in the existing sponsorship framework, and prolong the transitional period in which people will be on the existing sponsorship framework.

 

Item 50           Application

 

506.           This item provides that new sections 140SA, 140SB and 140SC (inserted by item 27) apply to a court proceeding that begins on or after the date of commencement of Schedule 1 of the Bill.

 

507.           New sections 140SA and 140SB relate to the interest that can be awarded on an amount in a proceeding to recover a debt that is owed in relation to a sponsorship obligation prescribed under new section 140H (inserted by item 19). New section 140SC provides the circumstances in which proceedings to recover a debt in relation to a sponsorship obligation may be conducted as a small claims proceeding.

 

508.           This clarifies that new sections 140SA, 140SB and 140SC do not apply to proceedings which have already been commenced at the date of commencement of Schedule 1 of the Bill.

 

Item 51           Transitional regulations

 

509.           This item provides that the Governor-General may make regulations prescribing matters of a transitional nature in relation to amendments or repeals made by Part 1 of Schedule 1 to the Bill. Transitional provisions include any saving or application provisions.

 

510.           This item is necessary to ensure that transitional provisions can be prescribed as necessary, for example, in relation to new visa subclasses which are prescribed as subject to Division 3A of Part 2 of the Migration Act.



Schedule 2 - Taxation Administration Act 1953

 

Part 1 -  Amendment

 

Item 1             After section 3EC

 

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

 

512.           New section 3ED sets out an exception to the “taxation secrecy provisions” as defined by section 3E of the TAA. A “taxation secrecy provision” is a provision of taxation law that prohibits the communication or divulging of information.

 

513.           Subsection 3ED(1) provides that despite any taxation secrecy provision the Commissioner of Taxation may disclose information acquired under a taxation law to a migration officer if the Commissioner is satisfied that the information satisfies two requirements relating to who the information may be about, and the purposes for which it must be relevant.

 

514.           First, the information must relate to a holder or former holder of a visa, or an approved sponsor or former approved sponsor of a person for a visa, whose identity is disclosed to the Commissioner under section 140ZH of the Migration Act 1958 (the Migration Act). New section 140ZH (inserted by item 30) provides that the Minister may disclose personal information of a prescribed kind to a prescribed Commonwealth government agency, which is about a visa holder or former visa holder, or an approved sponsor or former approved sponsor.

 

515.           Second, the information must be relevant to:

·          exercise of the Minister’s powers under, or the administration of, Division 3A of Part 2 of the Migration Act, or regulations made under Division 3A of Part 2 of the Migration Act; or

·          exercise of the Minister’s powers under Part 8D of the Migration Act, to the extent that Part 8D relates to contravention of a civil penalty provision in Division 3A of Part 2 of the Migration Act .

 

516.           New subsection 3ED(1) includes a number of defined terms:

·          “taxation secrecy provision” is defined by new subsection 3ED(5) (inserted by this item).

·          “taxation law” is defined by new subsection 3ED(5) (inserted by this item).

·          “migration officer” is defined by new subsection 3ED(5) (inserted by this item).

·          “Approved sponsor” is defined by new subsection 3ED(5) (inserted by this item).

·          “civil penalty provision” is defined by the definition inserted into section 5(1) of the Migration Act by item 2.

 

517.           A note following subsection 3ED(1) explains that Division 3A of Part 2 of the Migration Act deals with sponsorship obligations, and that Part 8D (inserted by item 42) allows proceedings to be brought for contraventions of civil penalties provisions. A failure to satisfy a sponsorship obligation prescribed under new section 140H (inserted by item 19) may be a contravention of the civil penalty provision in section 140Q (inserted by item 27).

 

518.           The Department of Immigration and Citizenship (the department) will use information received under new subsection 3ED(1) for two main purpsoses:

·          to monitor whether approved sponsors are complying with their sponsorship obligations (prescribed under new section 140H inserted by item 19); and

·           to assess whether a person who has applied to be approved as a sponsor should be approved as a sponsor.

 

519.           For example, a sponsorship obligation prescribed under new section 140H (inserted by item 19) may provide that an approved sponsor must pay at least a minimum salary to the visa holders who they sponsor. Under new section 3ED(1) the Commissioner of Taxation may disclose information to the department which will assist in determining whether this sponsorship obligation has been complied with.

 

520.           A further example is that a criteria for approval as a sponsor prescribed under new section 140E (amended by items 13-15) may provide that a person must be in compliance with taxation laws. Under new section 3ED(1) the Commissioner of Taxation may disclose information to the department which advises whether a person has a history of non-compliance with taxation laws.

 

521.           To ensure that only the minimum necessary information is collected, it is intended that the department will request specific information from the Commissioner of Taxation in relation to a particular approved sponsor or visa holder (or former approved sponsor or former visa holder). This is rather than requesting all information which may be relevant to the matters listed in new paragraph 3ED(1)(b).

 

522.           For example, to determine whether an approved sponsor is complying with a sponsorship obligation to pay at least a minimum salary to a visa holder, the department would expect to initially disclose to the Commissioner of Taxation the identity of the approved sponsor and visa holder, and the amount that the approved sponsor or visa holder has advised the department is being paid to the visa holder. The department would request that the Commissioner of Taxation advise whether the amount that the department has been advised has been paid is consistent with the information held by the department. If the amount is not consistent then the department will request further details.

 

523.           New subsection 3ED(2) establishes a criminal offence. It provides that a person must not disclose information to another person, or a court, or make a record of information that has been disclosed to the person under new subsection 3ED(1) or (3). In relation to information disclosed under new subsection 3ED(1), new subsection 3ED(2) only relates to a person who is or has been a migration officer (“migration officer” is defined by new subsection 3ED(5)). In relation to information disclosed under new subsection 3ED(3), new subsection 3ED(2) relates to any person.

 

524.           If a person contravenes new subsection 3ED(2), it is a criminal offence attracting a maximum penalty of 2 years imprisonment. This maximum penalty is consistent with the maximum penalty for other similar offences in the TAA which relate to disclosure or recording of taxation information despite any taxation secrecy provision.

 

525.           New subsection 3ED(3) sets out the circumstances in which the offence provision in subsection 3ED(2) does not apply.

 

526.           New paragraph 3ED(3)(a) provides that a migration officer does not commit an offence under new subsection 3ED(2) if the information is disclosed, or a record of the information is made for the purposes of, or in connection with:

·          the exercise of the Minister’s powers under, or the administration of, Division 3A of Part 2 of the Migration Act, or regulations made under Division 3A of Part 2 of the Migration Act; or

·          the exercise of the Minister’s powers under Part 8D of the Migration Act  to the extent that Part 8D relates to civil penalty provision in Division 3A of Part 2 of the Migration Act.

 

527.           The purpose of this paragraph is to ensure that a migration officer can disclose information received under subsection 3ED(1) for the same purposes for which the information was received.

 

528.           New paragraph 3ED(3)(b) provides that a person (regardless of whether they are a migration officer or otherwise) does not commit an offence under new subsection 3ED(2) if the information is disclosed, or a record made, for the purposes of, or in connection with:

·         the merits review and judicial review of a decision concerning the exercise of the Minister’s powers under Division 3A of Part 2 of the Migration Act, or proceedings arising from the review;

·         civil penalty proceedings under Part 8D of the Migration Act  (inserted by item 42) in relation to a contravention of a provision in Division 3A of Part 2 of the Migration Act , or proceedings arising from the civil penalty proceedings; or

·         a penalty to be paid by a person, as an alternative to civil penalty proceedings against the person, in accordance with regulations made under new section 140R (inserted by item 27), or proceedings arising from the issuing of the infringement notice.

 

529.           The effect of this paragraph is that information provided to the department by the Commissioner of Taxation under subsection 3ED(1) could be disclosed by the department, or disclosed by another person who has received the information from the department (or recorded by these persons), only in connection with the things set out in new paragraph 3ED(3)(b).

 

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

 

531.           New subsection 3ED(5) sets out four definitions that apply for the purposes of new section 3ED. First, it defines “approved sponsor” to have the same meaning as in the Migration Act. Item 1 of Schedule 1 of the Bill inserts a new definition of “approved sponsor”.

 

532.           Second, it defines “migration officer” to mean the Secretary or an employee of the Department administered by the Minister who administers the Migration Act. Currently, this is the Minister for Immigration and Citizenship, and the Department of Immigration and Citizenship.

 

533.           Third, it defines “taxation law” to have the meaning given by the Income Tax Assessment Act 1997 . This Act provides that taxation law means a provision of an Act or regulations which are administered by the Commissioner of Taxation.

 

534.           Lastly, it defines “taxation secrecy provision” to have the meaning given by section 3E of the TAA. Section 3E of the TAA provides that “taxation secrecy provision” means a provision of a tax law that prohibits the communication or divulging of information.

 

535.           In relation to retention of tax information the department obtains from the Commissioner of Taxation, the clear intention is that the department should keep the information for the shortest amount of time necessary to complete any of the purposes for which it was initially disclosed.

 



Part 2—Application

 

Item 2             Application of amendment of the Taxation Administration Act 1953

 

536.           Subitem 2(1) makes it clear that under new section 3ED, the Commissioner of Taxation may disclose information which was collected by the Commissioner of Taxation either before or after the commencement of proposed section 3ED.

 

537.           Despite this item allowing for disclosure of information collected prior to commencement, the information that the Commissioner of Taxation can disclose to the department gathered prior to commencement will be limited by the purposes for which the information can be disclosed. The Commissioner can disclose information to the department which is relevant to the new sponsorship framework set out in Schedule 1 of the Bill.

 

538.           This sponsorship framework introduces sponsorship obligations, and the intention is that the department use proposed new section 3ED to gather information to determine whether sponsorship obligations are being complied with, and for the purposes of the enforcement of the sponsorship obligations. The sponsorship obligations will have to be complied with from commencement, and not before, therefore the circumstances will be limited in which information provided to the Commissioner prior to commencement will be information relevant to a purpose for which the department can record or use the information.

 

539.           It is necessary to include the application provision allowing for disclosure of information collected by the Commissioner of Taxation to ensure that information such as names and addresses which may have been collected prior to commencement of new section 3ED can be disclosed to give meaning to other information, such as the amount of salary paid to a person for a period.

 

540.           Subitem 2(2) clarifies who is an approved sponsor, or former approved sponsor for the purposes of disclosure of information under proposed section 3ED. Paragraph 3ED(1)(a) provides that information about a visa holder may be disclosed (if other requirements are met). Subitem 2(2) clarifies that in addition to a person who is an “approved sponsor” or former “approved sponsor” within the meaning of the Migration Act, the following three groups of people are also “approved sponsors” or former “approved sponsors” for the purposes of new section 3ED:

·          a person who, before the day on which Schedule 1 of the Bill commences, is a standard business sponsor (defined by subitem 2(3));

·          a person who, before the day on which Schedule 1 of the Bill commences, is an approved sponsor, other than an approved professional development sponsor (defined by subitem 2(3));

·          a person who, before the day on which Schedule 1 of the Bill commences, is a former standard business sponsor, and a former approved sponsor, and remained bound by an undertaking made under existing section 140H of the Migration Act that was enforceable under existing section 140Q of the Migration Act immediately before the day on which Schedule 1 of the Bill commences.

 

541.           A person is an approved sponsor, other than an approved professional development sponsor, when they have ceased to be a standard business sponsor, but remain an “approved sponsor” (within the meaning of section 140D) in relation to a Subclass 457 (Business (Long Stay)) visa holder.

 

542.           Existing section 140D provides that a person is an “approved sponsor” when they have consented in writing to sponsor a person for a visa; consent has not been withdrawn; the Minister has approved the sponsorship; and the person has not been cancelled as a sponsor.

 

543.           Currently, a person ceases to be a standard business sponsor at the earliest of reaching the maximum number of people that they are approved to sponsor; and twenty-four months after the approval as a sponsor was given. However, a person will remain an “approved sponsor” after ceasing to be a standard business sponsor if they cease to be a standard business sponsor through reaching their maximum number of people or twenty-four months passing, but not if they cease to be a standard business sponsor as a result of being cancelled.

 

544.           A person is a former approved sponsor in relation to a visa holder (or former visa holder) within the meaning of existing section 140D if the person has withdrawn their consent to sponsor the visa holder; if the person has been cancelled or barred in relation to the visa holder; or if they no longer satisfy the terms on which they were approved as a sponsor.

 

545.           Existing section 140Q provides that an undertaking remains enforceable against a person in circumstances prescribed in the regulations in relation to a visa holder to which the undertaking related ceasing to hold the relevant visa; or in relation to the person ceasing to be an approved sponsor of the visa holder. Existing regulation 1.20DB sets out the circumstances in which the undertakings remain enforceable.

 

546.           Subitem 2(2) is necessary because the persons described in subitem 2(2) are not an “approved sponsor” or former “approved sponsor” within the meaning of “approved sponsor” inserted by item 1 of Schedule 1 of the Bill. However, the transitional provisions, item 45 and 46 of Schedule 1 of the Bill, provide that these three groups of people are approved sponsors or former approved sponsors for the purposes of the amendments made by Schedule 1 of the Bill. Therefore, these groups of people may be required to satisfy sponsorship obligations, and it is important that information in relation to these groups of people is available to determine whether they have satisfied any applicable sponsorship obligations.

 

547.           New section 3ED will not authorise disclosure of information in relation to a person who is an approved sponsor or former approved sponsor within the meaning of existing section 140D, and who is not also an approved sponsor or former approved sponsor under the new definition of approved sponsor inserted by item 1 of Schedule 1 of the Bill, or person to whom new section 3ED applies by virtue of subitem 2(2).

 

548.           Subitem 2(3) sets out five definitions which apply for the purposes of Part 2 of Schedule 2 of the Bill. First, it provides that “approved professional development sponsor” has the same meaning as in regulation 1.03 of the Migration Regulations 1994 as in force immediately before Schedule 2 of the Bill commences. Regulation 1.03 of the Migration Regulations 1994 currently provides that “approved professional development sponsor” means an organisation that has been approved as a professional development sponsor under existing subsection 140E(1) of the Migration Act and on the terms specified in regulation 1.20O.

 

549.           Second, it provides that “approved sponsor” has the same meaning as in the Migration Act 1958 as in force immediately before Schedule 2 of the bill commences. Existing section 140D provides that a person is an “approved sponsor” when they have consented in writing to sponsor a person for a visa; consent has not been withdrawn; the Minister has approved the sponsorship; and the person has not been cancelled as a sponsor.

 

550.           Third, it provides that “Migration Act 1958” means the Migration Act 1958 as in force immediately before Schedule 2 of the Bill commences.

 

551.           Fourth, it provides that “standard business sponsor” has the same meaning as in regulation 1.20B of the Migration Regulations 1994 as in force immediately before Schedule 2 of the Bill commences.

 

552.           Regulation 1.20B of the Migration Regulations 1994 currently relevantly provides that a “standard business sponsor” means a person whose application for approval as a standard business sponsor is made on or after 1 July 2003, and approved in accordance with regulation 1.20D or 1.20DA. Regulation 1.20D currently sets out the criteria for approval as a standard business sponsor for businesses lawfully operating in Australia, and when a person ceases to be a standard business sponsor. Regulation 1.20DA sets out the criteria for approval as a standard business sponsor for businesses lawfully operating outside Australia, and when a person ceases to be a standard business sponsor (the ceasing provision is the same as under regulation 1.20D in relation to businesses lawfully operating inside Australia).

 

553.           Finally, it provides that “taxation law” has the meaning give by the Income Tax Assessment Act 1997 . This Act provides that taxation law means a provision of an Act or regulations which are administered by the Commissioner of Taxation.