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This is a Bill, not an Act. For current law, see the Acts databases.
2013-2014-2015
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment (Charging for a
Migration Outcome) Bill 2015
No. , 2015
(Immigration and Border Protection)
A Bill for an Act to amend the Migration Act 1958,
and for other purposes
No. , 2015
Migration Amendment (Charging for a Migration Outcome) Bill 2015
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Migration Act 1958
3
No. , 2015
Migration Amendment (Charging for a Migration Outcome) Bill 2015
1
A Bill for an Act to amend the Migration Act 1958,
1
and for other purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act may be cited as the Migration Amendment (Charging for
5
a Migration Outcome) Act 2015.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Migration Amendment (Charging for a Migration Outcome) Bill 2015
No. , 2015
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1
A single day to be fixed by Proclamation.
However, if the provisions do not commence
within the period of 6 months beginning on
the day this Act receives the Royal Assent,
they commence on the day after the end of
that period.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments Schedule 1
No. , 2015
Migration Amendment (Charging for a Migration Outcome) Bill 2015
3
Schedule 1
--Amendments
1
2
Migration Act 1958
3
1 After subsection 116(1AB)
4
Insert:
5
(1AC) Subject to subsections (2) and (3), the Minister may cancel a visa
6
(the current visa) if he or she is satisfied that:
7
(a) a benefit was asked for or received by, or on behalf of, the
8
person (the visa holder) who holds the current visa from
9
another person in return for the occurrence of a
10
sponsorship-related event; or
11
(b) a benefit was offered or provided by, or on behalf of, the
12
person (the visa holder) who holds the current visa to another
13
person in return for the occurrence of a sponsorship-related
14
event.
15
(1AD) Subsection (1AC) applies:
16
(a) whether or not the visa holder held the current visa or any
17
previous visa at the time the benefit was asked for, received,
18
offered or provided; and
19
(b) whether or not the sponsorship-related event relates to the
20
current visa or any previous visa that the visa holder held;
21
and
22
(c) whether or not the sponsorship-related event occurred.
23
2 Subsections 116(2) and (3)
24
Omit "(1AA) or (1AB)", substitute "(1AA), (1AB) or (1AC)".
25
3 At the end of section 116
26
Add:
27
(4) In this section:
28
benefit has a meaning affected by section 245AQ.
29
sponsorship-related event has the meaning given by
30
section 245AQ.
31
Schedule 1 Amendments
4
Migration Amendment (Charging for a Migration Outcome) Bill 2015
No. , 2015
4 Subsection 117(1)
1
Omit "(1AA), or (1AB)", substitute "(1AA), (1AB) or (1AC)".
2
5 Paragraph 140X(aa)
3
After "Subdivision C", insert "or D".
4
6 At the end of Division 12 of Part 2
5
Add:
6
Subdivision D--Offences and civil penalties in relation to
7
sponsored visas
8
245AQ Definitions
9
In this Subdivision:
10
benefit includes:
11
(a) a payment or other valuable consideration; and
12
(b) a deduction of an amount; and
13
(c) any kind of real or personal property; and
14
(d) an advantage; and
15
(e) a service; and
16
(f) a gift.
17
executive officer of a body corporate means:
18
(a) a director of the body corporate; or
19
(b) the chief executive officer (however described) of the body
20
corporate; or
21
(c) the chief financial officer (however described) of the body
22
corporate; or
23
(d) the secretary of the body corporate.
24
sponsor class means a prescribed class of sponsor.
25
sponsored visa means a visa of a prescribed kind (however
26
described).
27
sponsorship-related event means any of the following events:
28
(a) a person applying for approval as a sponsor under
29
section 140E in relation to a sponsor class;
30
Amendments Schedule 1
No. , 2015
Migration Amendment (Charging for a Migration Outcome) Bill 2015
5
(b) a person applying for a variation of a term of an approval as a
1
sponsor under section 140E in relation to a sponsor class;
2
(c) a person becoming, or not ceasing to be, a party to a work
3
agreement;
4
(d) a person agreeing to be, or not withdrawing his or her
5
agreement to be, an approved sponsor in relation to an
6
applicant or proposed applicant for a sponsored visa;
7
(e) a person making a nomination under section 140GB in
8
relation to a holder of, or an applicant or proposed applicant
9
for, a sponsored visa, or including another person in such a
10
nomination;
11
(f) a person not withdrawing a nomination made under
12
section 140GB in relation to a holder of, or an applicant or
13
proposed applicant for, a sponsored visa;
14
(g) a person applying under the regulations for approval of the
15
nomination of a position in relation to the holder of, or an
16
applicant or proposed applicant for, a sponsored visa, or
17
including another person in such a nomination;
18
(h) a person not withdrawing the nomination under the
19
regulations of a position in relation to the holder of, or an
20
applicant or proposed applicant for, a sponsored visa;
21
(i) a person employing or engaging, or not terminating the
22
employment or engagement of, a person to work in an
23
occupation or position in relation to which a sponsored visa
24
has been granted, has been applied for or is to be applied for;
25
(j) a person engaging, or not terminating the engagement of, a
26
person to undertake a program, or carry out an activity, in
27
relation to which a sponsored visa has been granted, has been
28
applied for or is to be applied for;
29
(k) the grant of a sponsored visa;
30
(l) a prescribed event.
31
245AR Prohibition on asking for or receiving a benefit in return for
32
the occurrence of a sponsorship-related event
33
(1) A person (the first person) contravenes this subsection if:
34
(a) the first person asks for, or receives, a benefit from another
35
person; and
36
(b) the first person asks for, or receives, the benefit in return for
37
the occurrence of a sponsorship-related event.
38
Schedule 1 Amendments
6
Migration Amendment (Charging for a Migration Outcome) Bill 2015
No. , 2015
(2) To avoid doubt, the first person contravenes subsection (1) even if
1
the sponsorship-related event does not occur.
2
(3) Subsection (1) does not apply if the benefit is a payment of a
3
reasonable amount for a professional service that has been
4
provided, or is to be provided, by the first person or a third person.
5
Note:
A defendant bears an evidential burden in relation to the matter in this
6
subsection (see subsection 13.3(3) of the Criminal Code).
7
Offence
8
(4) A person commits an offence if the person contravenes
9
subsection (1). The physical elements of the offence are set out in
10
that subsection.
11
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
12
Civil penalty provision
13
(5) A person is liable to a civil penalty if a person contravenes
14
subsection (1).
15
Civil penalty:
240 penalty units.
16
(6) A person who wishes to rely on subsection (3) in proceedings for a
17
civil penalty order bears an evidential burden in relation to the
18
matter in that subsection.
19
Note:
It is not necessary to prove a person's state of mind in proceedings for
20
a civil penalty order (see section 486ZF).
21
245AS Prohibition on offering to provide or providing a benefit in
22
return for the occurrence of a sponsorship-related event
23
(1) A person (the first person) contravenes this subsection if:
24
(a) the first person offers to provide, or provides, a benefit to
25
another person (the second person); and
26
(b) the first person offers to provide, or provides, the benefit in
27
return for the occurrence of a sponsorship-related event.
28
Civil penalty:
240 penalty units.
29
(2) To avoid doubt, the first person contravenes subsection (1) even if
30
the sponsorship-related event does not occur.
31
Amendments Schedule 1
No. , 2015
Migration Amendment (Charging for a Migration Outcome) Bill 2015
7
(3) Subsection (1) does not apply if the benefit is a payment of a
1
reasonable amount for a professional service that has been
2
provided, or is to be provided, by the second person or a third
3
person.
4
(4) A person who wishes to rely on subsection (3) in proceedings for a
5
civil penalty order bears an evidential burden in relation to the
6
matter in that subsection.
7
Note:
It is not necessary to prove a person's state of mind in proceedings for
8
a civil penalty order (see section 486ZF).
9
245AT Criminal liability of executive officers of bodies corporate
10
(1) An executive officer of a body corporate commits an offence if:
11
(a) the body commits an offence (the sponsorship-related
12
offence) against this Subdivision; and
13
(b) the officer knew that, or was reckless or negligent as to
14
whether, the sponsorship-related offence would be
15
committed; and
16
(c) the officer was in a position to influence the conduct of the
17
body in relation to the sponsorship-related offence; and
18
(d) the officer failed to take all reasonable steps to prevent the
19
sponsorship-related offence being committed.
20
Penalty: 360 penalty units.
21
(2) In determining whether the executive officer of the body corporate
22
failed to take all reasonable steps to prevent the
23
sponsorship-related offence being committed by the body, a court
24
must have regard to:
25
(a) what action (if any) the officer took towards ensuring that the
26
body's employees, agents and contractors had a reasonable
27
knowledge and understanding of the requirements to comply
28
with this Subdivision, insofar as those requirements affected
29
the employees, agents or contractors concerned; and
30
(b) what action (if any) the officer took when he or she became
31
aware that the body was committing the sponsorship-related
32
offence.
33
(3) Subsection (2) does not limit subsection (1).
34
Schedule 1 Amendments
8
Migration Amendment (Charging for a Migration Outcome) Bill 2015
No. , 2015
245AU Civil liability of executive officers of bodies corporate
1
(1) An executive officer of a body corporate contravenes this
2
subsection if:
3
(a) the body contravenes (the sponsorship-related
4
contravention) a civil penalty provision in this Subdivision;
5
and
6
(b) the officer knew that, or was reckless or negligent as to
7
whether, the sponsorship-related contravention would occur;
8
and
9
(c) the officer was in a position to influence the conduct of the
10
body in relation to the sponsorship-related contravention; and
11
(d) the officer failed to take all reasonable steps to prevent the
12
sponsorship-related contravention.
13
Note:
Section 486ZF (which provides that a person's state of mind does not
14
need to be proven in proceedings for a civil penalty order) does not
15
apply in relation to a contravention of this subsection.
16
Civil penalty provision
17
(2) An executive officer of a body corporate is liable to a civil penalty
18
if the officer contravenes subsection (1).
19
Civil penalty:
240 penalty units.
20
Reasonable steps to prevent the contravention
21
(3) In determining whether the executive officer of the body corporate
22
failed to take all reasonable steps to prevent the
23
sponsorship-related contravention by the body, a court must have
24
regard to:
25
(a) what action (if any) the officer took towards ensuring that the
26
body's employees, agents and contractors had a reasonable
27
knowledge and understanding of the requirements to comply
28
with this Subdivision, insofar as those requirements affected
29
the employees, agents or contractors concerned; and
30
(b) what action (if any) the officer took when he or she became
31
aware that the body was engaging in the sponsorship-related
32
contravention.
33
(4) Subsection (3) does not limit subsection (1).
34
Amendments Schedule 1
No. , 2015
Migration Amendment (Charging for a Migration Outcome) Bill 2015
9
Definitions
1
(5) In this section:
2
negligent: an executive officer of a body corporate is negligent as
3
to whether a sponsorship-related contravention would occur if the
4
officer's conduct involves:
5
(a) such a great falling short of the standard of care that a
6
reasonable person would exercise in the circumstances; and
7
(b) such a high risk that the sponsorship-related contravention
8
would occur;
9
that the conduct merits the imposition of a pecuniary penalty.
10
reckless: an executive officer of a body corporate is reckless as to
11
whether a sponsorship-related contravention would occur if:
12
(a) the officer is aware of a substantial risk that the
13
sponsorship-related contravention would occur; and
14
(b) having regard to the circumstances known to the officer, it is
15
unjustifiable to take the risk.
16
245AV Contravening civil penalty provisions
17
(1) This section applies if a civil penalty provision in this Subdivision
18
provides that a person contravening another provision of this
19
Subdivision (the conduct rule provision) is liable to a civil penalty.
20
(2) For the purposes of this Act, the person is taken to contravene the
21
civil penalty provision if the person contravenes the conduct rule
22
provision.
23
245AW Geographical scope of offence and civil penalty provisions
24
Offences
25
(1) Section 15.2 of the Criminal Code (extended geographical
26
jurisdiction--category B) applies to an offence against this
27
Subdivision.
28
Schedule 1 Amendments
10
Migration Amendment (Charging for a Migration Outcome) Bill 2015
No. , 2015
Contraventions of civil penalty provisions
1
(2) An order must not be made against a person in civil proceedings
2
relating to a contravention by the person of a civil penalty
3
provision in this Subdivision unless:
4
(a) the person's conduct that allegedly contravenes the provision
5
occurs:
6
(i) wholly or partly in Australia; or
7
(ii) wholly or partly on board an Australian aircraft or an
8
Australian ship; or
9
(b) the person's conduct that allegedly contravenes the provision
10
occurs wholly outside Australia and, at the time of the
11
alleged contravention, the person is:
12
(i) an Australian citizen; or
13
(ii) a resident of Australia; or
14
(iii) a body corporate incorporated by or under a law of the
15
Commonwealth or of a State or Territory; or
16
(c) all of the following conditions are satisfied:
17
(i) the person's conduct allegedly contravenes the
18
provision because of section 486ZD (the ancillary
19
contravention);
20
(ii) the conduct occurs wholly outside Australia;
21
(iii) the conduct constituting the primary contravention to
22
which the ancillary contravention relates occurs, or is
23
intended by the person to occur, wholly or partly in
24
Australia or wholly or partly on board an Australian
25
aircraft or an Australian ship.
26
Defences relating to contraventions of civil penalty provisions
27
(3) In civil proceedings relating to a primary contravention by a
28
person, it is a defence if:
29
(a) the conduct constituting the alleged primary contravention
30
occurs wholly in a foreign country, but not on board an
31
Australian aircraft or an Australian ship; and
32
(b) the person is neither:
33
(i) an Australian citizen; nor
34
(ii) a body corporate incorporated by or under a law of the
35
Commonwealth or of a State or Territory; and
36
(c) there is not in force in:
37
Amendments Schedule 1
No. , 2015
Migration Amendment (Charging for a Migration Outcome) Bill 2015
11
(i) the foreign country where the conduct constituting the
1
alleged primary contravention occurs; or
2
(ii) the part of the foreign country where the conduct
3
constituting the alleged primary contravention occurs;
4
a law of that foreign country, or a law of that part of that
5
foreign country, that provides for a pecuniary or criminal
6
penalty for such conduct.
7
(4) In civil proceedings relating to a contravention (the ancillary
8
contravention) by a person of a civil penalty provision in this
9
Subdivision because of section 486ZD, it is a defence if:
10
(a) the conduct constituting the alleged ancillary contravention
11
occurs wholly in a foreign country, but not on board an
12
Australian aircraft or an Australian ship; and
13
(b) the conduct (the primary conduct) constituting the primary
14
contravention to which the ancillary contravention relates
15
occurs, or is intended by the person to occur, wholly in a
16
foreign country, but not on board an Australian aircraft or an
17
Australian ship; and
18
(c) the person is neither:
19
(i) an Australian citizen; nor
20
(ii) a body corporate incorporated by or under a law of the
21
Commonwealth or of a State or Territory; and
22
(d) there is not in force in:
23
(i) the foreign country where the primary conduct occurs or
24
is intended by the person to occur; or
25
(ii) the part of the foreign country where the primary
26
conduct occurs or is intended by the person to occur;
27
a law of that foreign country, or a law of that part of that
28
foreign country, that provides for a pecuniary or criminal
29
penalty for the primary conduct.
30
(5) A defendant bears an evidential burden in relation to the matter in
31
subsection (3) or (4).
32
Attorney-General's consent needed for certain proceedings
33
(6) Civil proceedings relating to a contravention of a civil penalty
34
provision in this Subdivision must not be commenced without the
35
Attorney-General's written consent if:
36
Schedule 1 Amendments
12
Migration Amendment (Charging for a Migration Outcome) Bill 2015
No. , 2015
(a) the conduct constituting the alleged contravention occurs
1
wholly in a foreign country; and
2
(b) at the time of the alleged contravention, the person alleged to
3
have contravened the provision is neither:
4
(i) an Australian citizen; nor
5
(ii) a body corporate incorporated by or under a law of the
6
Commonwealth or of a State or Territory.
7
When conduct taken to occur partly in Australia
8
(7) For the purposes of this section, if a person sends a thing, or causes
9
a thing to be sent:
10
(a) from a point outside Australia to a point in Australia; or
11
(b) from a point in Australia to a point outside Australia;
12
that conduct is taken to have occurred partly in Australia.
13
(8) For the purposes of this section, if a person sends, or causes to be
14
sent, an electronic communication:
15
(a) from a point outside Australia to a point in Australia; or
16
(b) from a point in Australia to a point outside Australia;
17
that conduct is taken to have occurred partly in Australia.
18
Definitions
19
(9) In this section:
20
Australian aircraft has the same meaning as in the Criminal Code.
21
Australian ship has the same meaning as in the Criminal Code.
22
electronic communication has the same meaning as in the
23
Criminal Code.
24
foreign country has the same meaning as in the Criminal Code.
25
point has the same meaning as in section 16.2 of the Criminal
26
Code.
27
primary contravention means a contravention of a civil penalty
28
provision in this Subdivision other than because of section 486ZD.
29
resident of Australia has the same meaning as in the Criminal
30
Code.
31
Amendments Schedule 1
No. , 2015
Migration Amendment (Charging for a Migration Outcome) Bill 2015
13
245AX Treatment of partnerships
1
(1) This Subdivision, and any other provision of this Act to the extent
2
that it relates to this Subdivision, apply to a partnership as if it were
3
a person, but with the changes set out in this section.
4
(2) An offence against this Subdivision that would otherwise be
5
committed by a partnership is taken to have been committed by
6
each partner in the partnership, at the time the offence is
7
committed, who:
8
(a) did the relevant act; or
9
(b) aided, abetted, counselled or procured the relevant act; or
10
(c) was in any way knowingly concerned in, or party to, the
11
relevant act (whether directly or indirectly or whether by any
12
act of the partner).
13
(3) A civil penalty provision in this Subdivision that would otherwise
14
be contravened by a partnership is taken to have been contravened
15
by each partner in the partnership, at the time of the conduct
16
constituting the contravention, who:
17
(a) engaged in the conduct; or
18
(b) aided, abetted, counselled or procured the conduct; or
19
(c) was in any way knowingly concerned in, or party to, the
20
conduct (whether directly or indirectly or whether by any act
21
of the partner).
22
245AY Treatment of unincorporated associations
23
(1) This Subdivision, and any other provision of this Act to the extent
24
that it relates to this Subdivision, apply to an unincorporated
25
association as if it were a person, but with the changes set out in
26
this section.
27
(2) An offence against this Subdivision that would otherwise be
28
committed by an unincorporated association is taken to have been
29
committed by each member of the association's committee of
30
management, at the time the offence is committed, who:
31
(a) did the relevant act; or
32
(b) aided, abetted, counselled or procured the relevant act; or
33
Schedule 1 Amendments
14
Migration Amendment (Charging for a Migration Outcome) Bill 2015
No. , 2015
(c) was in any way knowingly concerned in, or party to, the
1
relevant act (whether directly or indirectly or whether by any
2
act of the member).
3
(3) A civil penalty provision in this Subdivision that would otherwise
4
be contravened by an unincorporated association is taken to have
5
been contravened by each member of the association's committee
6
of management, at the time of the conduct constituting the
7
contravention, who:
8
(a) engaged in the conduct; or
9
(b) aided, abetted, counselled or procured the conduct; or
10
(c) was in any way knowingly concerned in, or party to, the
11
conduct (whether directly or indirectly or whether by any act
12
of the member).
13
7 Subsection 486ZF(1)
14
After "subsection 245AK(2)", insert "or 245AU(2)".
15
8 Part 8E (heading)
16
Repeal the heading, substitute:
17
Part 8E--Investigation powers relating to certain
18
offences and provisions
19
9 Section 487A (paragraph (a) of the definition of evidential
20
material)
21
Before "work-related offence", insert "sponsorship-related offence or
22
a".
23
10 Section 487A (paragraph (b) of the definition of evidential
24
material)
25
Before "work-related provision", insert "sponsorship-related provision
26
or a".
27
11 Section 487A (definition of related provision)
28
Repeal the definition, substitute:
29
related provision means:
30
(a) a sponsorship-related offence; or
31
Amendments Schedule 1
No. , 2015
Migration Amendment (Charging for a Migration Outcome) Bill 2015
15
(b) a sponsorship-related provision; or
1
(c) a work-related offence; or
2
(d) a work-related provision.
3
12 Section 487A
4
Insert:
5
sponsorship-related offence means:
6
(a) an offence against Subdivision D of Division 12 of Part 2; or
7
(b) an offence against section 6 of the Crimes Act 1914 that
8
relates to an offence against that Subdivision; or
9
(c) an ancillary offence (within the meaning of the Criminal
10
Code) that is, or relates to, an offence against that
11
Subdivision.
12
sponsorship-related provision means a civil penalty provision in
13
Subdivision D of Division 12 of Part 2.
14
13 Paragraphs 487B(1)(a) and (b)
15
Repeal the paragraphs, substitute:
16
(a) a possible sponsorship-related offence; or
17
(b) a possible contravention of a sponsorship-related provision;
18
or
19
(c) a possible work-related offence; or
20
(d) a possible contravention of a work-related provision;
21
14 Paragraph 487C(2)(d)
22
After "Subdivision C", insert "or D".
23
15 Paragraph 487C(2)(e)
24
Before "work-related provision", insert "sponsorship-related provision
25
or a".
26
16 Subparagraphs 487Z(3)(a)(i) and (ii)
27
Repeal the subparagraphs, substitute:
28
(i) a sponsorship-related offence has been committed; or
29
(ii) a sponsorship-related provision has been contravened;
30
or
31
(iii) a work-related offence has been committed; or
32
Schedule 1 Amendments
16
Migration Amendment (Charging for a Migration Outcome) Bill 2015
No. , 2015
(iv) a work-related provision has been contravened; or
1
17 Paragraph 487ZC(4)(a)
2
Repeal the paragraph, substitute:
3
(a) state:
4
(i) the sponsorship-related offence or offences; or
5
(ii) the sponsorship-related provision or provisions; or
6
(iii) the work-related offence or offences; or
7
(iv) the work-related provision or provisions;
8
to which the warrant relates; and
9
18 Application
--subsections 116(1AC) and (1AD) of the
10
Migration Act 1958
11
Subsections 116(1AC) and (1AD) of the Migration Act 1958, as
12
inserted by this Schedule, apply in relation to a visa granted before or
13
after commencement if the benefit referred to in subsection 116(1AC)
14
of that Act was asked for, received, offered or provided after
15
commencement.
16