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Tuesday, 24 November 2015
Page: 8827


Senator KIM CARR (Victoria) (18:28): by leave—I move opposition amendments (3), (46) and (56) on sheet 7807:

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

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

   Omit "486R(4)", substitute "486R(2)".

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

6A Subsections 486R(1) to (4)

   Repeal the subsections, substitute:

Eligible court may make civil penalty order

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

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

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

Application for civil penalty order

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

   (a) the Minister; or

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

      (i) a person affected by the contravention; or

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

Payment of penalty

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

   (a) the Commonwealth; or

   (b) a particular industrial association; or

   (c) a particular person.

6B Subsection 486T(1)

   Repeal the subsection, substitute:

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

6C Subsection 486T(2)

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

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

19 Application—civil penalty orders

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

20 Requirement to make regulations—approval of nominations

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

These amendments are intended to ensure that whistleblowers who report instances of charging for migration related events are properly protected. You simply cannot have a situation where there is a racket going on and someone blows the whistle and is then subject to punitive action. The minister would be required, if these amendments were accepted, to amend the migration regulations so that a visa holder whose sponsor is reasonably believed to have contravened the provision of the bill is not disadvantaged for reporting the matter. For example, a 457 visa holder would be given sufficient time to find a replacement sponsor and would not have to reset the clock on the path to a permanent residency.

These amendments further protect workers by allowing unions to instigate proceedings both for existing civil offences under the act and for the new civil offences created by this bill. Allowing unions to bring civil penalty proceedings will increase the resources available to ensure compliance and the integrity of our visa system.