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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (PROTECTING MIGRANT WORKERS) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration, Citizenship, Migrant Services
and Multicultural Affairs, the Honourable Alex Hawke MP)
MIGRATION AMENDMENT (PROTECTING MIGRANT WORKERS) BILL 2021
GENERAL OUTLINE
The Government is taking action to strengthen the legislative framework that protects
migrant workers from exploitation and unscrupulous practices in the workplace. This Bill
enhances protections for vulnerable migrant workers and increases sanctions under the
Migration Act 1958 (the Migration Act) against unscrupulous employers, labour hire
intermediaries and others who seek to exploit them. The amendments in this Bill also
complement existing protections for vulnerable workers under the Fair Work Act 2009 (the
Fair Work Act), ensuring that migrant workers in Australia are appropriately protected and
empowered to address unlawful conduct in the workplace.
The underpayment and exploitation of migrant workers is a longstanding problem with
significant impacts on individuals and the community. Unscrupulous employers exploit
migrant workers in a number of ways, including through wage underpayment, pressure to
work beyond visa restrictions and withholding of passports. The exploitation of vulnerable
workers is equally unacceptable to non-citizens as it is to citizens. It threatens to damage
Australia's reputation and distorts the proper functioning of the labour market and economy.
The Migration Amendment (Protecting Migrant Workers) Bill 2021 (the Bill) amends the
Migration Act to introduce new offences and related civil penalty provisions for employers,
labour hire intermediaries and other persons in the employment chain who coerce or exert
undue influence or undue pressure on a non-citizen to accept or agree to an arrangement in
relation to work:
• involving a breach of a work-related condition applying to the non-citizen; or
• to satisfy a work-related visa requirement; or
• to avoid an adverse effect on the non-citizen's immigration status.
The Bill also includes amendments to the Migration Act that will:
• establish a power to declare a person to be a prohibited employer if they are subject
to a specified migrant worker sanction, and to prevent that prohibited employer from
allowing additional non-citizens to begin working for that employer for a specified
period;
• introduce positive obligations for employers and other parties in the employment
chain to use the Visa Entitlement Verification Online (VEVO) system to verify
prospective non-citizen workers' immigration status and work-related visa
conditions, prior to employing or referring non-citizens for work;
• align and increase penalties for work-related offences and contraventions of work-
related civil penalty provisions under the Migration Act, to act as effective deterrent
against unscrupulous employers who exploit vulnerable migrant workers because
the costs associated with being caught may be viewed as an acceptable cost of doing
business;
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• provide the Australian Border Force (ABF) with new regulatory powers (in relation
to compliance notices and enforceable undertakings) to support behavioural change
and enhance compliance and enforcement efforts in relation to the work-related
offences and civil penalty provisions under the Migration Act.
Through the amendments of the Migration Act included in this Bill, the Government is
delivering on its response to the recommendations made in the Report of the Migrant
Workers' Taskforce (March 2019), particularly recommendations 19 and 20:
Recommendation 19: It is recommended that the Government consider developing
legislation so that a person who knowingly unduly influences, pressures or coerces
a temporary migrant worker to breach a condition of their visa is guilty of an
offence.
Recommendation 20: It is recommended that the Government explore mechanisms
to exclude employers who have been convicted by a court of underpaying temporary
migrant workers from employing new temporary visa holders for a specific period.
The Migrant Workers' Taskforce released its Report on 7 March 2019. The Report is
available at https://www.ag.gov.au/industrial-relations/migrant-workers-taskforce.
This Bill implements the Government's response to recommendations 19 and 20, and builds
on existing compliance mechanisms and sanctions available under the Migration Act. The
Bill also supports Australia's economic recovery from COVID-19. The amendments in this
Bill will ensure Australia maintains a strong reputation as a destination of choice for
working holiday makers, students and temporary migrant workers in general, as well as
skilled migrants.
The Bill enhances the role of the Migration Act in combatting migrant worker exploitation
by supporting visa program integrity. The national workplace relations system, including
the Fair Work Act and the Fair Work Regulations 2009, remains the primary legislation that
establishes a safety net of minimum entitlements and conditions of employment for
employees in Australia, regardless of a person's immigration status. The Attorney General's
Department remains the lead agency responsible for policies that promote fair, productive,
flexible and safe workplaces, and the Fair Work Ombudsman continues to lead on
compliance and enforcement activities under the Fair Work Act.
Consultation
The Government released an exposure draft of the Bill on 26 July 2021, and invited
stakeholders and the broader Australian community to provide feedback on the proposed
amendments of the Migration Act. The Department of Home Affairs (the Department)
received 32 submissions in the course of the consultation process, and also sought the views
of the Ministerial Advisory Council on Skilled Migration. Feedback on the exposure draft
of the Bill has enabled the Government to refine the Bill to clarify the measures, and to
ensure the amendments of the Migration Act are appropriately targeted to support and
enhance the Government's efforts to combat migrant worker exploitation.
The Department has also undertaken consultation with appropriate Commonwealth agencies
in the course of developing the Bill, including the Department of the Prime Minister and
Cabinet, the Attorney-General's Department, the Fair Work Ombudsman and the Office of
Best Practice Regulation.
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FINANCIAL IMPACT STATEMENT
The amendments in the Bill have a low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
A statement of compatibility with human rights has been prepared in accordance with Part
3 of the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment A.
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COMMON ABBREVIATIONS AND ACRONYMS
Abbreviation or acronym Meaning
AAT Administrative Appeals Tribunal
AAT Act Administrative Appeals Tribunal Act 1975
Acts Interpretation Act Acts Interpretation Act 1901
ABF Australian Border Force
AGD Framing Guide The Attorney-General's Department's Guide to Framing
Commonwealth Offences, Infringement Notices and Enforcement
Powers
APP (or APPs) The Australian Privacy Principles, under the Privacy Act 1988
Crimes Act Crimes Act 1914
Bill Migration Amendment (Protecting Migrant Workers) Bill 2021
Criminal Code The Commonwealth Criminal Code
Department Department of Home Affairs
Fair Work Act Fair Work Act 2009
FWO Fair Work Ombudsman
Legislation Act Legislation Act 2003
Migration Act Migration Act 1958
Migration Regulations Migration Regulations 1994
Privacy Act Privacy Act 1988
Regulatory Powers Act Regulatory Powers (Standard Provisions) Act 2014
SES Senior Executive Service
Subdivision C Subdivision C of Division 12 of Part 2 of the Migration Act
Taskforce Migrant Workers' Taskforce
Taskforce Report Report of the Migrant Workers' Taskforce (March 2019)
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MIGRATION AMENDMENT (PROTECTING MIGRANT WORKERS) BILL 2021
NOTES ON INDIVIDUAL CLAUSES
Section 1 Short title
1. Section 1 provides that the short title of this Bill, once enacted, will be the Migration
Amendment (Protecting Migrant Workers) Act 2021.
Section 2 Commencement
2. Section 2 sets out the times at which the various provisions of the Act commence.
3. Subsection 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.
4. Table item 1 provides that sections 1 to 3 and anything in the Act not covered
elsewhere by the table will commence on the day the Act receives the Royal Assent.
5. Table item 2 provides that Schedule 1 will commence on a single day to be fixed by
Proclamation. If the provisions do not commence within the period of 12 months beginning
on the day the Act receives the Royal Assent, they commence on the day after the end of
that period.
6. A note at the foot of the table explains that the table relates only to the provisions of
the Act as originally enacted. The table will not be amended to deal with any later
amendments of the Act.
7. Subsection 2(2) provides that any information in column 3 of the table is not part of
the Act. Information may be inserted in this column, or information in it may be edited, in
any published version of the Act.
8. Commencement by Proclamation with a restriction of 12 months is appropriate in
relation to the provisions of Schedule 1 of the Act. Given the nature of the amendments of
the Migration Act by the provisions of Schedule 1 to the Act, this commencement provision
is intended to provide sufficient time for the Department and the ABF to ensure the
necessary systems, business processes and training are in place to support implementation
of the new requirements, together with any consequential amendments of the Migration
Regulations 1994 (the Migration Regulations) required to support the amendments of the
Migration Act.
9. This commencement provision also provides time for the Department and the ABF
to engage with stakeholders, and to ensure that employers, labour hire intermediaries and
other parties to the employment chain are aware of the new requirements, and have had the
opportunity to implement any necessary changes to their business processes and practices.
If a day is fixed by Proclamation, stakeholders will be provided with appropriate notice
before the amendments of the Migration Act commence.
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Section 3 Schedules
10. This section provides that legislation specified in a Schedule to the Act is amended
or repealed as set out in the applicable items in the Schedule concerned. This section also
provides that any other item in a Schedule to the Act has effect according to its terms.
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SCHEDULE 1 Amendments
Part 1 New employer sanctions
Migration Act 1958
Item 1 Subsection 5(1)
11. This item inserts a new signpost definition for the term work-related visa
requirement in subsection 5(1) of the Migration Act. This new definition provides that, for
the purposes of the Migration Act, this term has the meaning given by new section 245AAB.
New section 245AAB is inserted by item 4 of this Part of Schedule 1 to the Bill.
12. The purpose of this amendment is to establish that where the term work-related visa
requirement is used in the Migration Act, it has the meaning given by section 245AAB,
unless a contrary intention appears.
Item 2 Before paragraph 245AA(1)(a)
13. This item amends current subsection 245AA(1) of the Migration Act, inserting new
paragraph 245AA(1)(aa) before current paragraph 245AA(1)(a), to refer to the new offences
and civil penalty provisions inserted by item 4 in this Part.
14. Current section 245AA provides an explanatory overview of current Subdivision C
of Division 12 of Part 2 of the Migration Act (Subdivision C). It also refers the reader to
current section 235 in Subdivision A of Division 12 of Part 2 of the Migration Act. Section
235 contains offences relating to work by an unlawful non-citizen, and a non-citizen in
breach of a visa condition.
15. Current subsection 245AA(1) provides an outline of the offences and civil penalty
provisions in Subdivision C. The insertion of new paragraph 245AA(1)(aa) ensures that the
overview of Subdivision C, as amended, includes reference to new sections 245AAA and
245AAB, which contain the new criminal offences and civil penalty provisions inserted by
item 4 in this Part. These new offences and civil penalty provisions relate to circumstances
where a person coerces, or exerts undue influence or undue pressure on, a non-citizen to
accept or agree to a work arrangement:
• involving a breach of a work-related condition applying to the non-citizen; or
• to satisfy a work-related visa requirement; or
• to avoid an adverse effect on the non-citizen's immigration status.
Item 3 After paragraph 245AA(2)(a)
16. This item inserts new paragraph 245AA(2)(ab) in current subsection 245AA(2) of
the Migration Act.
17. As part of the overview of Subdivision C provided in current section 245AA, current
subsection 245AA(2) sets out various terms that are used by provisions in Subdivision C.
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The terms listed in this subsection are defined in various sections of Subdivision C, or
elsewhere in the Migration Act.
18. The insertion of new paragraph 245AA(2)(ab), after current paragraph 245AA(2)(a),
ensures that the overview includes the new term work-related visa requirement, which is
defined in new subsection 245AAB(5). New section 245AAB is inserted by item 4 in this
Part. Section 245AAB is described in more detail below, including in relation to the new
defined term work-related visa requirement and the purpose of this term in that section.
Item 4 After section 245AA
19. This item inserts new sections 245AAA and 245AAB in current Subdivision C,
immediately after current section 245AA.
20. New sections 245AAA and 245AAB establish new criminal offences and related
civil penalty provisions that apply where a person coerces, or exerts undue influence or
undue pressure on, a non-citizen to accept or agree to a work arrangement:
• involving a breach of a work-related condition applying to the non-citizen; or
• to satisfy a work-related visa requirement; or
• to avoid an adverse effect on the non-citizen's immigration status.
New section 245AAB - offence to coerce, exert undue influence or pressure on a non-
citizen to breach work-related conditions
21. New section 245AAA establishes a new offence in current Subdivision C for a
person to coerce, or to exert undue influence or undue pressure on a non-citizen to accept
or agree to a work arrangement involving a breach of a work-related condition applying to
the non-citizen. Section 245AAA also establishes a civil penalty in relation to this conduct,
as an alternative to the offence.
Physical elements of the offence
22. New subsection 245AAA(1) establishes the physical elements that constitute the
new offence. Paragraphs 245AAA(1)(a), (b) and (c) set out the elements of the offence.
23. New paragraph 245AAA(1)(a) provides that the first element of the offence is that a
person (the first person) coerces, or exerts undue influence or undue pressure on, a non-
citizen to accept or agree to an arrangement in relation to work.
24. New paragraph 245AAA(1)(b) provides that the second element of the offence is
that the work referred to in paragraph 245AAA(1)(a) is carried out, or is to be carried out,
by the non-citizen in Australia, whether for the first person or for someone else.
25. New paragraph 245AAA(1)(c) provides that the third element of the offence is that,
as a result of the arrangement referred to in paragraph 245AAA(1)(a), either:
• the non-citizen breaches a work-related condition; or
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• there are reasonable grounds to believe that, if the non-citizen were to accept or agree
to the arrangement, the non-citizen would breach a work-related condition.
The meaning of 'work' and 'work-related condition'
26. The term work-related condition is defined under current subsection 5(1) of the
Migration Act, to mean a condition:
• prohibiting the holder of a visa from working in Australia; or
• restricting the work that the holder of a visa may do in Australia.
27. The term work is also relevantly defined for the purposes of Subdivision C. Current
subsection 245AG(1) provides that, for the purposes of this Subdivision, work means any
work, whether for reward or otherwise.
Coercion, undue influence or undue pressure
28. New section 245AAA does not define coercion, undue influence or undue pressure,
instead leaving the meaning of these terms to the general law. Relevantly, the purpose of
criminalising undue influence or pressure in this offence, rather than any influence or
pressure, is to target conduct that, similar to coercion, may be characterised as excessive,
unfair or exploitative.
29. Undue influence or pressure may arise from widely different sources, dependent on
the facts and circumstances of the alleged offending, one of which is excessive pressure. It
is not intended that, to be considered undue, the influence or pressure must be characterised
as illegitimate or improper. Undue influence or pressure is a lower threshold than coercion.
New subsection 245AAA(1) - illustrative example
Person A is a student visa holder, subject to a work-related condition that provides that the
holder must not work more than 40 hours a fortnight during any fortnight when the holder's
course of study is in session.
Person A has been working for Employer A1 (a local café) for approximately six months
on a casual basis. Person A is usually rostered on to work shifts equating to approximately
35 hours per fortnight.
Employer A1's café has been experiencing a downturn in customer numbers. Having also
recently refurbished the premises, Employer A1 reduces the number of staff it employs in
an effort to save on expenses. Employer A1 asks Person A to accept a temporary reduction
in their hourly rate, explaining that they can make up the money by doing some extra shifts
(to cover the staff that have been let go). Employer A1 indicates this will only be a temporary
arrangement, until business picks up again.
Person A reluctantly accepts the offer - temporarily - because they need the money. They
request that they are paid 'cash in hand'.
Two months later, Person A is still working over 50 hours per fortnight. It is affecting their
studies, and they are becoming increasingly nervous.
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Person A asks to have their hours reduced so that they are working less than 40 hours per
fortnight, and to have their original hourly rate reinstated. Employer A1 responds by saying
that Person A's hours will be cut completely if they do not continue working as rostered,
for the lower rate. In need of the income to pay their rent, Person A reluctantly agrees to the
arrangement.
In this scenario, Employer A1 has contravened new subsection 245AAA(1).
Offence
30. New subsection 245AAA(2) provides that a person commits an offence if the person
contravenes subsection 245AAA(1). This subsection also makes clear that the physical
elements of the offence are set out in subsection 245AAA(1).
31. The penalty for this offence is imprisonment for two years, or 360 penalty units, or
both.
32. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty units in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
Attempts to commit an offence
33. The effect of section 11.1 of the Criminal Code is that criminal liability would also
extend to persons who attempt to commit the offence in section 245AAA(1). This is
reflected in the element of the offence at subparagraph 245AAA(1)(c)(ii), which
contemplates circumstances in which the non-citizen does not accept or agree to the
arrangement in paragraph 245AAA(1)(a), but if they had done so, there are reasonable
grounds to believe the non-citizen would breach a work-related condition.
34. Subparagraph 245AAA(1)(c)(ii) is intended to be objective--that is, it is met if the
coercion, or undue influence or undue pressure, to agree to the arrangement would,
objectively assessed, result in a person in the position of the non-citizen believing if the non-
citizen were to accept or agree to the arrangement, the non-citizen would breach a work-
related condition.
Fault elements
35. New subsection 245AAA(3) provides that, for the purposes of the offence provision
in new subsection 245AAA(2), the fault element for paragraphs 245AAA(1)(b) and (c) is
knowledge or recklessness by the first person.
36. By expressly providing that the fault elements in relation to the physical elements in
new paragraphs 245AAA(1)(b) and (c) of the offence are knowledge or recklessness, this
operates to ensure that a person could not be wilfully ignorant of the work-related condition
of the visa of a non-citizen that they allow to work, and proceed to act recklessly as to
whether, as the result of an arrangement in relation to work, the non-citizen might breach
the work-related condition.
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37. The purpose of this subsection is to prevent the prosecution from having to prove
that the defendant intended to put the non-citizen in breach of a work-related condition of
their visa by reason of the arrangement referred to in new paragraph 245AAA(1)(a). Without
this provision, proof of this element to the required standard could be difficult in cases where
the defendant has been wilfully blind or recklessly indifferent to the non-citizen's visa
conditions. It is not acceptable for a person to seek to rely on a claim that they did not
enquire in relation to the work-related conditions of a non-citizen worker or prospective
worker's visa, and that they were therefore unaware that the arrangement would or may
result in the non-citizen breaching a work-related condition.
38. New subsection 245AAA(3) has the effect that it would, for example, suffice for the
prosecution to prove either that an employer knew that an arrangement as to increased
working hours would cause the non-citizen to breach a work-related condition of their visa,
or that the employer was reckless as to that outcome. It is not necessary to prove that the
employer intended for the non-citizen to breach the visa condition.
39. For example, an employer knows an employee is a student visa holder, but they
intentionally roster that employee onto shifts that would result in them exceeding 40 hours
per fortnight (the maximum hours permitted while their course is in session). The employer
threatens to replace them if they do not do the additional work, and suggests they have done
the same to other employees in the past. That employer should not be able to avoid criminal
liability on the basis that they did not know the exact terms of the work-related condition of
the employee's student visa.
40. Relevantly, new subsection 245AAA(3) does not specify a fault element for new
paragraph 245AAA(1)(a). Accordingly, under current subsection 5.6(1) of the Criminal
Code, intention applies as the default fault element in relation to this paragraph. In criminal
proceedings, this would require the prosecution to prove beyond reasonable doubt that the
defendant engaged in conduct of an illegitimate nature intended to lead the non-citizen to
agree to the work arrangement. For clarity, it is not intended for the prosecution to be
required to prove a link between the conduct by the first person under new paragraph
245AAA(1)(a) and knowledge or recklessness by the first person as to compliance by the
non-citizen with a work-related condition of the non-citizen's visa. These are separate
elements of the conduct rule.
41. Section 5.3 of the Criminal Code provides that a person has knowledge of a
circumstance or a result if they are aware that it exists or will exist in the ordinary course of
events.
42. Subsection 5.4(1) of the Criminal Code provides that a person is reckless with
respect to a circumstance if:
• they are aware of a substantial risk that the circumstance exists or will exist; and
• having regard to the circumstances known to that person, it is unjustifiable to take
the risk.
43. Subsection 5.4(2) of the Criminal Code provides that a person is reckless with
respect to a result if:
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• they are aware of a substantial risk that the result will occur; and
• having regard to the circumstances known to that person, it is unjustifiable to take
the risk.
General defences under the Criminal Code
44. As they have not been excluded, the general defences in Chapter 2 of the Criminal
Code will apply in relation to this offence.
Civil penalty provision
45. New subsection 245AAA(4) provides that a person is liable to a civil penalty of 240
penalty units if the person contravenes subsection 245AAA(1).
46. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty units in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
47. This penalty must also be read with current paragraph 486R(5)(a) of the Migration
Act. Paragraph 486R(5)(a) provides that the pecuniary penalty for a contravention of a civil
penalty provision must not be more than five times the amount of the pecuniary penalty
specified for the civil penalty provision, if the person is a body corporate.
48. This penalty must also be read with current subsection 486R(6) of the Migration Act,
which provides that in determining the amount of the pecuniary penalty, the court must take
into account all relevant matters, including the matters listed in that subsection.
49. A note immediately below new subsection 245AAA(4) draws the reader's attention
to current section 486ZF of the Migration Act. Section 486ZF relevantly provides that it is
not necessary to prove a person's state of mind in proceedings for a civil penalty order
against a person for a contravention of a civil penalty provision of the Migration Act (other
than subsection 245AK(2)).
50. The intent of this note is to clarify that, for the purposes of new subsection
245AAA(4), it is sufficient to establish that a person contravened new subsection
245AAA(1). This is distinguishable from the requirement to prove the fault elements of
knowledge or recklessness by the first person in relation to new paragraphs 245AAA(1)(b)
and (c) in a criminal offence, or the default element of intention in relation to new paragraph
245AAA(1)(a).
51. This means that a person is liable to a civil penalty under new subsection 245AAA(4)
without knowing or being reckless as to whether the non-citizen is or would be in breach of
a work-related condition as a result of the arrangement. The application of non-fault civil
penalties in Subdivision C reflects the Government's determination to address the problems
of illegal work hire practices and exploitation of migrant workers.
52. The AGD Framing Guide has been considered in relation to this provision, and the
civil penalty of 240 penalty units. It is appropriate that a person who contravenes subsection
245AAA(1) is liable to a civil penalty of this order. The civil penalty in subsection
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245AAA(4) sits alongside the offence in subsection 245AAA(2), and reflects the serious
character and potential consequences of the conduct set out in subsection 245AAA(1). This
civil penalty also aligns with the increased penalties for the current work-related provisions,
as amended by the items in Part 4 of the Schedule to the Bill. As well as providing an
effective deterrent, it is appropriate that a person who contravenes subsection 245AAA(1)
should be liable to a substantial penalty in relation to that contravention.
The conduct rule provision
53. New subsection 245AAA(4) relies on the conduct rule provision in current section
245AL of Subdivision C. The purpose of the conduct rule provision is to ensure that
references to a contravention of a civil penalty provision in Subdivision C of Division 12 of
Part 2 of the Migration Act pick up a contravention of the relevant conduct rule provision.
54. Subsection 245AL(1) applies to those provisions that state a person is liable to a civil
penalty if they contravene another provision of Subdivision C. The effect of subsection
245AL(2) is that, if a person contravenes a provision that states that a person contravenes
that provision if they do a certain act, the person is taken to contravene the associated civil
penalty provision and so is liable for a civil penalty.
55. For example, the effect of subsection 245AL(2) is that if a person contravenes new
subsection 245AAA(1), they are taken to have contravened new subsection 245AAA(4) (the
civil penalty provision), and so are liable to a civil penalty. In the absence of current section
245AL, the person would not be liable to a civil penalty because new subsection 245AAA(4)
cannot be contravened in its own right.
New section 245AAB - offence to coerce, exert undue influence or pressure on a non-
citizen by using migration rules
56. New section 245AAB establishes a new offence for a person to coerce, or to exert
undue influence or undue pressure on a non-citizen to accept or agree to a work arrangement:
• to satisfy a work-related visa requirement; or
• to avoid an adverse effect on the non-citizen's immigration status under Division 1
of Part 2 of the Migration Act.
57. Section 245AAB also establishes a civil penalty in relation to this conduct, as an
alternative to the offence.
Physical elements of the offence
58. New subsection 245AAB(1) establishes the physical elements that constitute the
new offence. Paragraphs 245AAB(1)(a), (b) and (c) set out the elements of the offence.
59. New paragraph 245AAA(1)(a) provides that the first element of the offence is that a
person (the first person) coerces, or exerts undue influence or undue pressure on a non-
citizen to accept or agree to an arrangement in relation to work.
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60. New paragraph 245AAA(1)(b) provides that the second element of the offence is
that the work referred to in paragraph 245AAA(1)(a) is carried out, or is to be carried out,
by the non-citizen in Australia, whether for the first person or for someone else.
61. New paragraph 245AAA(1)(c) provides that the third element of the offence is that
the non-citizen believes, or there are reasonable grounds to believe, that the non-citizen must
accept or agree to the arrangement, either:
• to satisfy a work-related visa requirement (within the meaning given by new
subsection 245AAB(5)); or
• to avoid an adverse effect on the non-citizen's immigration status under Division 1
of Part 2 of the Migration Act.
The non-citizen's immigration status under Division 1 of Part 2 of the Migration Act
62. Current Division 1 of Part 2 of the Migration Act includes sections 13 and 14, which
define the terms lawful non-citizen and unlawful non-citizen respectively for the purposes
of the Migration Act. Section 15 also relevantly clarifies the effect of visa cancellation on a
non-citizen's immigration status.
63. Section 13 of the Migration Act provides that a lawful non-citizen is a non-citizen
in the migration zone who holds a visa that is in effect.
64. Section 14 of the Migration Act, when read in conjunction with section 13,
effectively provides that an unlawful non-citizen is a non-citizen in the migration zone who
does not hold a visa that is in effect. For example, this may include non-citizens who
overstay their visas or non-citizens who enter and remain in Australia without holding visas.
New subsection 245AAB(1) - illustrative examples
Subparagraph 245AAB(1)(c)
Person B is a student visa holder, subject to a work-related condition that provides that the
holder must not work more than 40 hours a fortnight during any fortnight when the holder's
course of study is in session.
Person B has been working for Employer A2 for approximately six months on a casual basis.
When Person B started working for Employer A2, they were usually rostered on to work
shifts equating to approximately 25-30 hours per fortnight.
Person B's hours have gradually increased following the departure of other employees.
Person B is now working on average 45-50 hours per fortnight, including when their course
of study is in session.
Person B approaches Employer A2 to ask for their hours to be reduced so that they are only
working 40 hours per fortnight. Person B explains that they are finding it difficult to balance
their study and work commitments, and are concerned because they have recently become
aware of other student visa holders whose visas have been cancelled for a breach of the
work-related condition after working more than 40 hours per fortnight.
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Employer A2 declines Person B's request. Employer A2 states that Person B needs to keep
working their current shifts, because Employer A2 has not yet been able to backfill vacant
positions. Person B asks again, and Employer A2 responds that Person B needs to keep
working the same hours, and that if they do not, Employer A2 will report them to the ABF
for breaching their visa conditions. Person B had heard from a colleague that Employer A2
had done something similar previously to another student visa holder - and that that student
visa holder is no longer in Australia. Person B agrees to keep working as rostered.
In this scenario, Employer A2 has contravened new subsection 245AAB(1).
Coercion, undue influence or undue pressure
65. New section 245AAB does not define coercion, undue influence or undue pressure,
instead leaving the meaning of these terms to the general law. Relevantly, the purpose of
criminalising undue influence or pressure in this offence, rather than any influence or
pressure, is to target conduct that, similar to coercion, may be characterised as excessive,
unfair or exploitative.
66. Undue influence or pressure may arise from widely different sources, dependent on
the facts and circumstances of the alleged offending, one of which is excessive pressure. It
is not intended that, to be considered undue, the influence or pressure must be characterised
as illegitimate or improper. Undue influence or pressure is a lower threshold than coercion.
Offence
67. New subsection 245AAB(2) provides that a person commits an offence if the person
contravenes subsection 245AAB(1). It further provides that the physical elements of that
offence are set out in subsection 245AAB(1).
68. The maximum penalty for an offence under new subsection 245AAB(2) is 2 years
imprisonment, or 360 penalty units, or both. This penalty must be read together with section
4AA of the Crimes Act. Subsection 4AA(1) provides the meaning of penalty units in a law
of the Commonwealth or a Territory Ordinance, unless the contrary intention appears.
Subsection 4AA(1) provides the amount of a penalty unit expressed in dollars, subject to
indexation under subsection 4AA(3).
Attempts to commit an offence
69. The effect of section 11.1 of the Criminal Code is that criminal liability would also
extend to persons who attempt to commit the offence in section 245AAB(1). This is
reflected in the element of the offence at subparagraph 245AAB(1)(c), which contemplates
circumstances in which the non-citizen does not accept or agree to the arrangement in
paragraph 245AAA(1)(a), but if they had done so, there are reasonable grounds to believe
that the non-citizen must accept or agree to the arrangement:
• to satisfy a work-related visa requirement; or
• to avoid an adverse effect on the non-citizen's immigration status.
70. Subparagraph 245AAB(1)(c) is intended to be objective--that is, it is met if the
coercion, or undue influence or undue pressure, to agree to the arrangement would,
16
objectively assessed, result in a person in the position of the non-citizen believing they had
to agree to the arrangement, otherwise they would not be able to satisfy a work-related visa
requirement or avoid an adverse effect on their immigration status.
Fault elements
71. New subsection 245AAB(3) provides that, for the purposes of the offence provision
in new subsection 245AAB(2), the fault element for paragraphs 245AAB(1)(b) and (c) is
knowledge or recklessness by the first person.
72. By expressly providing that the fault elements in relation to the physical elements in
new paragraphs 245AAA(1)(b) and (c) of the offence are knowledge or recklessness, this
operates to ensure that a person could not be wilfully ignorant of the work-related condition
of the visa of a non-citizen that they allow to work, and proceed to act recklessly as to
whether, as the result of an arrangement in relation to work, the non-citizen might breach
the work-related condition.
73. The purpose of this subsection is to prevent the prosecution from having to prove
that the defendant intended to cause the non-citizen to believe that the non-citizen must
accept or agree to the arrangement (identified in new paragraph 245AAB(1)(a)) in order to
satisfy a work-related visa requirement or to avoid an adverse effect on the non-citizen's
immigration status. Without this provision, proof of this element to the required standard
could be difficult in cases where the defendant has been wilfully blind or recklessly
indifferent as to the potential consequences for the non-citizen.
74. It is intended that paragraph 245AAB(1)(c) would be met if the coercion, undue
influence or undue pressure to agree to the arrangement would, objectively assessed, result
in a person in the position of the non-citizen believing they had to agree to the arrangement,
otherwise they would not be able to satisfy a work-related visa requirement, or alternatively
avoid an adverse impact on their immigration status.
75. Relevantly, new subsection 245AAB(3) does not specify a fault element for the
physical element in new paragraph 245AAB(1)(a). Current subsection 5.6(1) of the
Criminal Code therefore provides that intention applies as the default fault element in
relation to this paragraph. This would require the prosecution to prove the defendant
engaged in conduct of an illegitimate nature intended to lead the non-citizen to agree to the
work arrangement. For clarity, it is not intended for the prosecution to be required to prove
a link between the conduct by the first person under new paragraph 245AAB(1)(a) and
knowledge or recklessness by the first person as to the matters covered by paragraph
245AAB(1)(c). These are separate elements of the conduct rule.
76. Section 5.3 of the Criminal Code provides that a person has knowledge of a
circumstance or a result if they are aware that it exists or will exist in the ordinary course of
events.
77. Subsection 5.4(1) of the Criminal Code provides that a person is reckless with
respect to a circumstance if:
• they are aware of a substantial risk that the circumstance exists or will exist; and
17
• having regard to the circumstances known to that person, it is unjustifiable to take
the risk.
78. Subsection 5.4(2) of the Criminal Code provides that a person is reckless with
respect to a result if:
• they are aware of a substantial risk that the result will occur; and
• having regard to the circumstances known to that person, it is unjustifiable to take
the risk.
General defences under the Criminal Code
79. As they have not been excluded, the general defences in Chapter 2 of the Criminal
Code will apply in relation to this offence.
Civil penalty provision
80. New subsection 245AAB(4) provides that a person is liable to a civil penalty of 240
penalty units if the person contravenes subsection 245AAB(1).
81. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty units in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
82. This penalty must also be read with current paragraph 486R(5)(a) of the Migration
Act. Paragraph 486R(5)(a) provides that the pecuniary penalty for a contravention of a civil
penalty provision must not be more than five times the amount of the pecuniary penalty
specified for the civil penalty provision, if the person is a body corporate.
83. This penalty must also be read with current subsection 486R(6) of the Migration Act,
which provides that in determining the amount of the pecuniary penalty, the court must take
into account all relevant matters, including the matters listed in that subsection.
84. A note immediately below new subsection 245AAA(4) draws the reader's attention
to current section 486ZF of the Migration Act. Section 486ZF relevantly provides that it is
not necessary to prove a person's state of mind in proceedings for a civil penalty order
against a person for a contravention of a civil penalty provision of the Migration Act (other
than current subsection 245AK(2)).
85. The effect of this note is to clarify that it is sufficient to establish that a person
contravened new subsection 245AAB(1).
86. This is distinguishable from the requirement to prove knowledge or recklessness by
the first person in relation to new paragraphs 245AAB(1)(b) and (c) in criminal proceedings.
87. A person is liable to a civil penalty under new subsection 245AAB(4) without
knowing or being reckless as to the matters covered by new paragraph 245AAB(1)(c). The
application of non-fault civil penalties in Subdivision C reflects the Government's
18
determination to address the problem of illegal work hire practices and exploitation of
migrant workers.
88. The AGD Framing Guide has been considered in relation to this provision, and the
civil penalty of 240 penalty units. It is appropriate that a person who contravenes subsection
245AAB(1) is liable to a civil penalty of this order. The civil penalty in subsection
245AAB(4) sits alongside the offence in subsection 245AAB(2), and reflects the serious
character and potential consequences of the conduct set out in subsection 245AAB(1). This
civil penalty also aligns with the increased penalties for the current work-related provisions,
as amended by the items in Part 4 of the Schedule to the Bill. As well as providing an
effective deterrent, it is appropriate that a person who contravenes subsection 245AAB(1)
should be liable to a substantial penalty in relation to that contravention.
The conduct rule provision
89. New subsection 245AAB(4) relies on the conduct rule provision in current section
245AL of Subdivision C. The purpose of the conduct rule provision is to ensure that
references to a contravention of a civil penalty provision in Subdivision C of Division 12 of
Part 2 of the Migration Act pick up a contravention of the relevant conduct rule provision.
90. Subsection 245AL(1) applies to those provisions that state a person is liable to a civil
penalty if they contravene another provision of Subdivision C. The effect of subsection
245AL(2) is that, if a person contravenes the provision that states that a person contravenes
that section if they do a certain act, the person is taken to contravene the associated civil
penalty provision and so is liable for a civil penalty.
91. For example, the effect of subsection 245AL(2) is that if a person contravenes
subsection 245AAB(1), they are taken to have contravened subsection 245AAB(4) (the civil
penalty provision), and so are liable to a civil penalty. In the absence of section 245AL, the
person would not be liable to a civil penalty in this situation because subsection 245AAB(4)
cannot be contravened in its own right.
Meaning of 'work-related visa requirement'
92. New subsection 245AAB(5) provides that a work-related visa requirement, in
relation to a non-citizen, means a requirement under this Act or the regulations for the non-
citizen to provide, in connection with a visa held by the non-citizen or an application by the
non-citizen for a visa, information or evidence about work the non-citizen has undertaken
in Australia.
New subsection 245AAB(5) and subparagraph 245AAB(1)(c)(i)
- illustrative example
A working holiday visa holder may be eligible for grant of a second working holiday visa
if the Minister is satisfied the applicant has carried out a period (or periods) of specified
work as the holder of their initial working holiday visa (and where the applicant also satisfies
other relevant criteria for grant of the visa).
19
In these circumstances, the visa applicant is dependent on their employer(s) for evidence to
support assessment of this criterion, such as pay slips or a completed employment
verification form signed by the employer.
Under departmental policy, for the purposes of a further working holiday visa application,
acceptable evidence of specified work would be:
- original or certified copies of pay slips; or
- a completed employment verification form (form 1263) signed by the employer.
As such, pay slips or a completed employment verification form would be material to
whether the Minister is satisfied that the visa applicant has carried out the relevant period(s)
of specified work.
If an employer were to withhold pay slips or refuse to sign form 1263 for a non-citizen
employee, unless the employee agreed to work for less than the minimum wage, this may
give rise to a contravention of subsection 245AAB(1) by the employer, in relation to
subparagraph 245AAB(1)(c)(i).
Item 5 Subsection 245AN(3)
93. This item makes a consequential amendment to current subsection 245AN(3) to
include new sections 245AAA and 245AAB, alongside current sections 245AB and 245AC.
As amended, subsection 245AN(3) provides that when on a trial for an offence against
section 245AD, the trier of fact may find the defendant not guilty of that offence but guilty
of an offence against current section 245AB or 245AC, or new section 245AAA or
245AAB, if:
• the trier of fact is not satisfied that the defendant is guilty of an offence against
section 245AD; and
• the trier of fact is satisfied that the defendant is guilty of an offence against section
245AB, 245AC, 245AAA or 245AAB; and
• the defendant has been accorded procedural fairness in relation to that finding of
guilt.
94. The purpose of this provision is to ensure that a defendant who is charged with the
aggravated offence in section 245AD and is not found guilty of that offence but is found
guilty of the baseline offence in current section 245AB or 245AC, or new section 245AAA
or 245AAB, can nevertheless be convicted of the relevant baseline offence, provided the
defendant has been given an opportunity to be heard in relation to that finding of guilt.
Item 6 Subsection 245AN(4)
95. This item makes a consequential amendment to subsection 245AN(4) to include new
sections 245AAA and 245AAB, alongside current sections section 245AE or 245AEA. As
amended, subsection 245AN(4) provides that on a trial for an offence against section
245AEB, the trier of fact may find the defendant not guilty of that offence but guilty of an
offence against current section 245AB or 245AC, or new section 245AAA or 245AAB, if:
20
• the trier of fact is not satisfied that the defendant is guilty of an offence against
section 245AEB; and
• the trier of fact is satisfied that the defendant is guilty of an offence against section
245AE, 245AEA, 245AAA or 245AAB; and
• the defendant has been accorded procedural fairness in relation to that finding of
guilt.
96. The purpose of this provision is to ensure that a defendant who is charged with the
aggravated offence in section 245AEB and is not found guilty of that offence but is found
guilty of the baseline offence in current section 245AE or 245AEA, or new section 245AAA
or 245AAB, can nevertheless be convicted of the relevant baseline offence, provided the
defendant has been given an opportunity to be heard in relation to that finding of guilt.
21
Part 2 Prohibition on certain employers allowing additional non-citizens to
work
Division 1 Amendments
Migration Act 1958
Item 7 Subsection 5(1)
97. This item amends subsection 5(1) of the Migration Act to insert new defined terms.
The insertion of these terms supports new Subdivision E of Division 12 of Part 2 of the
Migration Act, as inserted by item 9 in this Part of the Schedule to the Bill. The new defined
terms include ABN, migrant worker sanction, prohibited employer, remuneration-related
contravention, work-related offence and work-related provision.
98. The new defined term ABN has the same meaning in the Migration Act as in the A
New Tax System (Australian Business Number) Act 1999. Section 41 of that Act currently
provides that the term ABN, for an entity, means the entity's Australian Business Number
as shown in the Australian Business Register. The term entity in that Act has the meaning
given by section 184-1 of the A New Tax System (Goods and Services Tax) Act 1999.
99. The term ABN is relevant to new section 245AYI in new Subdivision E. Subject to
the exception in subsection 245AYI(2), subsection 245AYI(1) requires the Minister to
publish certain information in relation to a person who is a prohibited employer on the
Department's website. The required information is set out in subsection 245AYI(3), and
includes the prohibited employer's ABN, if they have one. New section 245AYI is described
in more detail below.
100. The new defined term migrant worker sanction is a signpost definition, providing
that the term has the meaning given by section 245AYD of the Migration Act (described
further below).
101. The new defined term prohibited employer is a signpost definition, providing that
the term has the meaning given by new section 245AYB of the Migration Act (described
further below).
102. The new defined term remuneration-related contravention is a signpost definition,
providing that the term has the meaning given by new section 245AYF of the Migration Act
in relation to a civil remedy provision of the Fair Work Act (described further below).
103. The new defined term work-related offence means:
• an offence against Subdivision C of Division 12 of Part 2 of the Migration Act; or
• an offence against section 6 of the Crimes Act that relates to an offence against that
Subdivision; or
• an ancillary offence (within the meaning of the Criminal Code) that is, or relates to,
an offence against that Subdivision.
104. Prior to the commencement of the amendments by the items in the Schedule to the
Bill, the term work-related offence was defined in section 487A of the Migration Act for
22
the purposes of Part 8E only. Part 8E deals with investigation powers relating to certain
offences and provisions, including work-related offences and work-related provisions.
105. The effect of the amendment by item 7, together with the amendment by item 10, is
to move the current definition of work-related offence from section 487A to subsection
5(1). The amendment by item 7 adopts the current definition in section 487A, and, by
inserting it in subsection 5(1), ensures that the term has a consistent meaning across the
Migration Act, unless a contrary intention appears in a specific provision. This ensures that
where new Subdivision E relies on the term work-related offence, particularly in relation to
new section 245AYD and the defined term migrant worker sanction, it has the same
meaning as in Part 8E of the Migration Act.
106. The related amendment by item 10 to current section 487A is dealt with below.
The meaning of 'work-related provision'
107. As amended, subsection 5(1) of the Migration Act provides that, unless the contrary
intention applies, the term work-related provision means a civil penalty provision in
Subdivision C or E of Division 12 of Part 2 of the Migration Act.
108. Prior to the commencement of the amendments by the items in the Schedule to the
Bill, the term work-related provision was defined in section 487A of the Migration Act for
the purposes of Part 8E only. Part 8E deals with investigation powers relating to certain
offences and provisions, including work-related offences and work-related provisions.
109. The effect of the amendment by item 7, working together with the amendment by
item 10, is to move the current definition of work-related provision from section 487A to
subsection 5(1). The amendment by item 7 adopts the current definition in section 487A,
and, by inserting it in subsection 5(1), ensures that the term has a consistent meaning across
the provisions of the Migration Act, unless a contrary intention appears in a specific
provision. This ensures that where new Subdivision E relies on the term work-related
provision, particularly in relation to new section 245AYD and the defined term migrant
worker sanction, it has the same meaning as in Part 8E of the Migration Act.
110. The related amendment by item 10 to section 487A is dealt with below.
Item 8 Paragraph 140X(aa)
111. This item amends current paragraph 140X(aa), inserting a reference to new
Subdivision E of Division 12 of Part 2 of the Migration Act (as inserted by the amendments
by item 9 of this Part). This amendment provides that the powers of an inspector under
Subdivision F of Division 3A of Part 2 of the Migration Act may be exercised for the
purposes of investigating whether a person who is or was an approved work sponsor has
committed an offence, or contravened a civil penalty provision, under Subdivision C, D or
E of Division 12 of Part 2 of the Migration Act.
23
112. This amendment ensures the investigation of contraventions of the civil penalty
provisions in new Subdivision E is included as a purpose for which the powers of an
inspector under Subdivision F of Division 3A of Part 2 may be exercised. This is appropriate
and necessary, given that a person subject to a bar under paragraph 140M(1)(c) or (d) in
Subdivision D of Division 3A may also be a prohibited employer under new Subdivision E
of Division 12. It is consistent with the inclusion of current Subdivisions C and D of
Division 12 of Part 2 in current paragraph 140X(aa).
Item 9 At the end of Division 12 of Part 2
113. This item inserts a new Subdivision E at the end of Division 12 of Part 2 of the
Migration Act. This new Subdivision comprises new sections 245AYA, 245AYB, 245AYC,
245AYD, 245AYE, 245AYF, 245AYG, 245AYH, 245AYI, 245AYJ and 245AYK. These
provisions operate collectively to establish a new framework to prohibit certain employers
from employing additional non-citizens for a specified period, as well as associated
reporting obligations and civil penalty provisions.
Overview
114. New section 245AYA provides an overview and simplified outline of new
Subdivision E of Division 12 of Part 2 of the Migration Act. New section 245AYA does not
give the authority to prohibit an employer from employing additional non-citizens; instead,
section 245AYA provides an outline of the operative provisions in new Subdivision E.
115. New subsection 245AYA(1) states that new Subdivision E sets out the circumstances
in which certain persons (called prohibited employers) may be prohibited from allowing
additional non-citizens to begin work.
116. New subsection 245AYA(2) sets out the persons who may be declared to be
prohibited employers. Under new subsection 245AYG(1), the Minister may declare a person
who has become subject to a migrant worker sanction (within the meaning given by new
section 245AYD) to be a prohibited employer.
117. New subsection 245AYA(3) states that the period during which a prohibited
employer is subject to a prohibition under new Subdivision E is specified in the declaration.
New subsections 245AYG(8) and (9) deal with the commencement and period of effect of
the declaration respectively.
118. New subsection 245AYA(4) describes the new prohibition on allowing additional
non-citizens to begin work. The prohibition is established by new section 245AYH, and
applies where a person is declared to be a prohibited employer under new section 245AYG.
New section 245AYH is a civil penalty provision.
119. New subsection 245AYA(5) notes that a person who ceases to be a prohibited
employer may allow additional non-citizens to begin work, but is subject to additional
reporting obligations for a period of 12 months after ceasing to be a prohibited employer.
These additional reporting obligations are established in new section 245AYJ, which is also
a civil penalty provision.
24
Meaning of 'prohibited employer'
120. New section 245AYB provides that a person is a prohibited employer if the person
is declared by the Minister to be a prohibited employer under subsection 245AYD(1). This
provision establishes a signpost definition of prohibited employer for the purposes of new
Subdivision E of Division 12 of Part 2 of the Migration Act. This expression has the
meaning given by new section 245AYD.
Meaning of 'work' and 'allows' to work
121. New section 245AYC defines work for the purposes of new Subdivision E, and sets
out the circumstances in which a person allows a non-citizen to work.
122. New subsection 245AYC(1) defines work, for the purposes of the new Subdivision,
to mean any work, whether for reward or otherwise. This is intended to be a broad definition
and may include, for example, paid work, voluntary work or work done in return for
accommodation, food or any other benefit. A broad definition is also needed to capture
situations where persons may work in conditions of sexual servitude without receiving any
remuneration. Work is also defined in this way to ensure consistency with current subsection
245AG(1) of the Migration Act, which defines work for the purposes of current Subdivision
C of Division 12 of Part 2 of the Migration Act. This approach also reflects the close
relationship between current Subdivision C, which contains work-related offences and
work-related provisions, and new Subdivision E.
123. New subsection 245AYC(2) defines the circumstances in which a person allows
another person to work for the purposes of the new Subdivision. The circumstances are
sufficiently broad to cover the traditional employer-employee relationships, as well as
alternative working arrangements, including where workers are made available for ad hoc
work by an intermediary in return for payment to that intermediary, or arrangements in other
industries in which non-citizens may be vulnerable, such as in the construction, taxi,
hospitality, cleaning and sex industries.
124. New paragraph 245AYC(2)(a) provides that a person allows a non-citizen to work
if the person employs the non-citizen under a contract of service. Consistent with the
intention of the comparable provision in current paragraph 245AG(2)(a) of the Migration
Act, a person employs another person under a contract of service if they are in an employer-
employee relationship.
125. New paragraph 25AYC(2)(b) provides that a person allows a non-citizen to work if
the person engages the second person under a contract for services (other than in a domestic
context). Consistent with the intention of the comparable provision in current paragraph
245AG(2)(b) of the Migration Act, a person engages another person under a contract for
services if the other person is an independent contractor.
126. This paragraph intentionally excludes contracts for services in a domestic context
from the meaning of allows given by paragraph 245AYC(2)(b). The amendments by the
items in this Part are not intended to prevent an individual from engaging the services of
contractors at their home, such as plumbers, electricians or cleaners. The 'domestic context'
exclusion in this paragraph is therefore intended to ensure that an individual who is a
prohibited employer is still able to engage, in relation to their household (domestic context),
25
an independent contractor who is a non-citizen. This exclusion is particularly relevant to
new sections 245AYH and 245AYJ, described further below.
127. Importantly, the reference to 'domestic context' in this paragraph is not intended to
exclude general domestic activities or services, in a commercial context, from the meaning
of allows. For example, the prohibition in new subsection 245AYH is intended to apply
where the business operated by a prohibited employer is a cleaning business offering
domestic cleaning services. The 'domestic context' exclusion is only relevant here to the
prohibited employer's own household. The exclusion does not cover circumstances in which
the prohibited employer allows a non-citizen to work as a cleaner in another household, as
part of that prohibited employer's cleaning business.
128. Persons who engage non-citizens as independent contractors in a domestic context
are excluded because of the short-term basis of the relationship (unlike employment) and
the limited capacity of householders to check the work entitlements of non-citizens.
129. New paragraph 245AYC(2)(c) provides that a person allows a non-citizen to work
if the person participates in an arrangement, or any arrangement included in a series of
arrangements, for the performance of work by the non-citizen for:
• the first person; or
• another participant in the arrangement or any such arrangement.
130. Consistent with the comparable provision in current paragraph 245AG(2)(ba) of the
Migration Act, this provision ensures that a person who participates in a chain of events
which results in a contravention of the work-related offences or work-related provisions can
be held liable for committing that work-related offence or contravening that work-related
provision.
131. New paragraph 245AYC(d) provides that a person allows a non-citizen to work if
the person bails or licenses a chattel to the non-citizen, or another person, with the intention
that the non-citizen will use the chattel to perform a transportation service.
132. This paragraph is intentionally limited to transportation services. The amendments
are intended to only affect taxi companies and other chauffeured car hire services. It is not
intended to apply to car rental agencies.
133. An example of a situation of allowing a non-citizen to work is where an owner of a
taxi bails or licenses their taxi to a driver for agreed periods, on agreed terms and conditions.
The owner and the driver are not in an employment relationship, but the owner clearly
intends the driver to work and payment for the use of the taxi may be calculated as a
proportion of the driver's fares.
134. This paragraph also allows for the situation in which the owner of a taxi bails or
licenses a taxi to a person who is not the driver. In these circumstances, if the owner intends
that the driver will drive the taxi, the owner will allow the driver to work, despite the fact
that the contractual relationship is between the owner and another person.
135. New paragraph 245AYC(e) provides that a person allows a non-citizen to work if
the person leases or licences premises, or a space within premises, to the non-citizen, or
26
another person, with the intention that the person will use the premises or space to perform
sexual services within the meaning of the Criminal Code.
136. This paragraph is only intended to capture persons who lease or license premises
with the intention that the other party provides sexual services from those premises.
Consistent with the intention of the comparable provision in current paragraph 245AG(2)(d)
of the Migration Act, new paragraph 245AYC(e) is designed to capture brothel owners who
claim to be merely renting rooms to their sex workers instead of providing employment.
137. New paragraph 245AYC(2)(f) creates a regulation-making power to allow for the
Migration Regulations to prescribe any new forms of work arrangements that may emerge
with the intention of attempting to circumvent the scope of the meaning given to the
expression allows to work by new subsection 245AYC(2).
138. This provision mirrors current paragraph 245AG(2)(e) in Subdivision C. It provides
flexibility to prescribe other situations in which a person will be allowed to work to
specifically cover these new employment relationships.
139. New subsection 245AYC(3) provides that, for the purposes of new paragraph
245AYC(2)(e), premises means an area of land or other place, whether or not it is enclosed
or built on, a building or other structure, or a vehicle or vessel. This definition is intended
to ensure that a person allows a non-citizen to work as defined in new paragraph
245AYC(2)(e) even where the premises are other than a building. For example, a person
that leases a caravan with the intention that the lessee will use the caravan to provide sexual
services would be captured by paragraph 245AYC(2)(e).
Meaning of 'migrant worker sanction'
140. New section 245AYD establishes the meaning of migrant worker sanction for the
purposes of new Subdivision E. A person may only be declared to be a prohibited employer
under new subsection 245AYG(1) if that person has become subject to a migrant worker
sanction.
141. New section 245AYD provides that there are four circumstances in which a person
may be subject to a migrant worker sanction:
• if the person is an approved work sponsor who is subject to a bar imposed under
current paragraph 140M(1)(c) or (d) of the Migration Act: new paragraph
245AYD(a);
• if the person is convicted of a work-related offence: new paragraph 245AYD(b);
• if the person is the subject of a civil penalty order in relation to the contravention of
a work-related provision: new paragraph 245AYD(c); or
• if the person is the subject of an order made for contravention of a relevant civil
remedy provision of the Fair Work Act (as set out in a table covered by new section
245AYE): new paragraph 245AYD(d).
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142. Importantly, a person who is the subject of an order made under the Fair Work Act
for contravention of a civil remedy provision of that Act is only subject to a migrant worker
sanction if both:
• the order is made for contravention of a civil remedy provision covered by new
section 245AYE: new subparagraph 245AYD(d)(i); and
• the contravention is in relation to an employee who is a non-citizen: new
subparagraph 245AYD(d)(ii).
Migrant worker sanctions - Fair Work Act 2009
143. New section 245AYE sets out the civil remedy provisions of the Fair Work Act that
are relevant for the purposes of new subparagraph 245AYD(d)(i) of the Migration Act.
144. New section 245AYE covers a table that sets out 18 items. Each table item
corresponds to a civil remedy provision of the Fair Work Act. Column 1 identifies the
subject of the provision. Column 2 provides the corresponding section or subsection
reference for that provision as it appears in the Fair Work Act.
145. Column 3 of the table mentions the kind of contravention of the provision identified
in columns 1 and 2. The information in column 3 then identifies the kind of contravention,
in relation to the provision mentioned in the same row in columns 1 and 2, that constitutes
a contravention of a civil remedy provision for the purposes of new subparagraph
245AYD(d)(i), for the meaning of migrant worker sanction.
146. There are two kinds of contravention identified in column 3. Where column 3
mentions 'any contravention', the effect of this is that any contravention of the
corresponding provision identified in columns 1 and 2 of that same row is a contravention
of a civil remedy provision for the purposes of new subparagraph 245AYD(d)(i).
147. Where column 3 mentions 'a remuneration-related contravention', the effect is to
limit the contraventions of the corresponding provision identified in columns 1 and 2, so
that only remuneration-related contraventions of that provision are relevant for the purposes
of new subparagraph 245AYD(i).
148. The meaning of remuneration-related contravention, in relation to a civil remedy
provision of the Fair Work Act, is established by new section 245AYF.
149. Where any contravention of a provision mentioned in columns 1 and 2 is a
contravention for the purposes of subparagraph 245AYD(d)(i), this is either because the
provision is inherently remuneration-related (for example, subsection 323(1) of the Fair
Work Act - method and frequency of payment), or because the provision often relates to
underpayments or the exploitation of employees in some way (for example, sham
contracting or failure to keep proper employment records).
Meaning of 'remuneration-related contravention'
150. New section 245AYF establishes the meaning of the term remuneration-related
contravention, in relation to a civil remedy provision of the Fair Work Act, for the purposes
of new section 245AYE. Where the term remuneration-related contravention appears in a
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row in the table covered by section 245AYE, its purpose is to limit contraventions of the
civil remedy provision mentioned in that row.
151. In this way, only a remuneration-related contravention of that civil remedy
provision is relevant for the purposes of subparagraph 245AYD(d)(i). Paragraphs
245AYF(a) to (d) set out the circumstances or characteristics that would make a
contravention of one of the provisions identified at table items 1 to 4 in the table under
section 245AYE to be remuneration-related - that is, where the contravention is related to
one or more of the following:
• the underpayment of wages, or other monetary entitlements of employees;
• the unreasonable deduction of amounts from amounts owed to employees;
• the placing of unreasonable requirements on employees to spend or pay amounts
paid, or payable, to employees;
• the method or frequency of amounts payable to employees in relation to the
performance of work.
Declaration of person as a prohibited employer
152. New section 245AYG establishes the power for the Minister to declare a person to
be a prohibited employer. This section also provides for the process to be followed before
making a declaration; what the Minister must consider in making a decision to declare a
person to be a prohibited employer; notification requirements; the duration of the
declaration; as well as providing for review of the decision by the AAT.
153. New subsection 245AYG(1) provides that the Minister may declare a person to be a
prohibited employer, where that person is covered by new subsection 245AYD(4). The
declaration must be in writing.
154. If the Minister makes a declaration under subsection 245AYG(1) that a person is a
prohibited employer, the Minister may also revoke that declaration. Subsection 33(3) of the
Acts Interpretation Act relevantly provides that where an Act confers a power to make, grant
or issue any instrument of a legislative or administrative character (including rules,
regulations or by-laws), the power shall be construed as including a power exercisable in
the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend,
or vary any such instrument.
155. New subsection 245AYG(2) provides that a declaration must not be made under new
subsection 245AYG(1) after the end of the five-year period starting on the day the person
first became subject to the migrant worker sanction.
156. A note below this subsection provides that if a person is subject to more than one
migrant worker sanction, the five-year period is separate for each sanction. This makes clear
that if a person has, for example, been the subject of multiple civil penalty orders, over
several years, in relation to contravention of work-related provisions of the Migration Act,
there is a separate 5-year period in relation to each order. Even if the five-year period has
elapsed for the earliest of these orders, a declaration could still be made under subsection
245AYG(1) where the person is also the subject of a more recent order.
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157. New subsection 245AYG(3) provides that a declaration made under subsection
245AYG(1) is not a legislative instrument. This provision is included to assist the reader, as
a declaration made in writing under subsection 245AYG(1) is not a legislative instrument
within the meaning of subsection 8(1) of the Legislation Act.
158. New subsection 245AYG(4) sets out the process that must be followed before the
Minister can declare a person to be a prohibited employer. This subsection provides that the
Minister must give the person a written notice stating that the Minister proposes to make
such a declaration, and the reasons for it. The written notice must also invite the person to
make a written submission to the Minister, setting out reasons why the Minister should not
make the declaration.
159. New subsection 245AYG(5) establishes the period within which the person is to
make a written submission to the Minister, when invited to do so under paragraph
245AYG(4)(b). Unless a longer period is stated in the notice given under subsection
245AYG(4), the period ends 28 days after the day the person is given notice by the Minister.
160. New subsection 245AYG(6) sets out what the Minister must consider in making a
decision whether to declare a person to be a prohibited employer. This includes:
• any written submission made by the person under subsection 245AYG(4), so long
as it is received by the Minister within the period covered by subsection 245AYG(5);
and
• any criteria prescribed by the regulations for the purposes of paragraph
245AYG(6)(b).
161. Where criteria are prescribed by the Migration Regulations for the purposes of
paragraph 245AYG(6)(b), the Minister must consider these criteria in making a decision to
declare a person to be a prohibited employer. Without limiting the criteria that may be
prescribed, such criteria might relate to matters such as:
• the potential impact on the viability of the person's business if declared a prohibited
employer, particularly in relation to the person's capacity to attract and recruit new
employees while subject to the prohibition under new subsection 245AYH;
• the seriousness of the offence or contravention leading to the person being the
subject of the migrant worker sanction (including consideration of any aggravating
factors).
162. By providing for the criteria to be prescribed by the Migration Regulations, this
ensures appropriate flexibility to review and adjust the criteria from time to time, while also
ensuring that there is appropriate parliamentary oversight, including through the Senate
Standing Committee for the Scrutiny of Delegated Legislation.
163. New subsection 245AYG(7) provides that if the Minister declares a person to be a
prohibited employer, the Minister must, as soon as reasonably practicable, give the person
a copy of the declaration. This provision aligns with APP 6.5. Relevantly, the Department
has commissioned a Privacy Impact Assessment to support the implementation of these
amendments, and to ensure that privacy considerations are addressed appropriately. The
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recommendations of this assessment will be considered, and actioned where appropriate, in
the context of implementation.
164. New subsection 245AYG(8) provides that the declaration comes into effect at the
start of whichever of the following days is later:
• the day after the day the declaration is given to the prohibited employer; or
• the day stated in the declaration as the day the declaration comes into effect.
165. New subsection 245AYG(9) provides that the declaration has effect during the
period specified in the declaration (unless sooner revoked).
166. This provision does not include a limit on the period for which a declaration has
effect. This ensures that the Minister has the discretion to specify a period that the Minister
considers proportionate to the nature and significance of the migrant worker sanction that
gives rise to consideration of whether to declare the person to be a prohibited employer.
Matters raised by the person in their written submission to the Minister under new
subsection 245AYG(4) may also be taken into account in determining the declaration's
period of effect.
167. For example, an approved work sponsor who is subject to a bar under paragraph
140M(1)(c) or (d) would also be subject to a migrant worker sanction. If this person is
declared to be a prohibited employer, it may be considered appropriate that the declaration
made under subsection 245AYG(1) has effect for the same period as the bar. Where the
person is subject to a migrant worker sanction because the person has been convicted of a
work-related offence, the Minister may consider it appropriate, having regard to the
circumstances of the case, for the declaration to specify that it is in effect for a longer period,
such as two years. Where the nature of the offending is particularly serious, the declaration
may specify a significantly longer period. It is important that the provision is open in relation
to the period of effect of the declaration; this flexibility is necessary to ensure the period
appropriately reflects the circumstances, and severity, of the individual case.
168. New subsection 245AYG(10) provides that applications may be made to the AAT
for review of a decision under subsection 245AYG(1) to declare a person to be a prohibited
employer.
169. A note immediately below subsection 245AYG(10) provides that section 27A of the
AAT Act requires that people whose interests are affected by the Minister's decision be
given notice of their rights to seek review of the decision. Where a person is declared to be
a prohibited employer, that person will be given a copy of the declaration as soon as
reasonably practicable, as required under subsection 245AYG(7). Having regard to sections
27A and 28 of the AAT Act, the person will also be given notice of their rights to seek
review of the decision, and a statement of reasons for that decision.
Prohibition on allowing additional non-citizens to begin work
170. New section 245AYH establishes the prohibition on allowing additional non-
citizens to begin work.
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171. New subsection 245AYH(1) provides that a person contravenes this subsection if
that person is a prohibited employer, and that person either:
• allows a non-citizen to begin work; or
• has a material role in a decision made by a body corporate to allow a non-citizen to
begin work.
172. The prohibition does not apply where the non-citizen referred to in subparagraph
245AYH(1)(b)(i) or (ii) holds a permanent visa (which has the meaning given by current
subsection 30(1) of the Migration Act). New paragraph 245AYH(1)(c) provides that a
person who is a prohibited employer would contravene this subsection if the non-citizen
referred to in subparagraph 245AYH(1)(b)(i) or (ii) is either:
• a non-citizen who does not hold a visa; or
• a non-citizen who holds a visa other than a permanent visa.
173. The purpose of new subsection 245AYH(1) is to prevent a person who is a prohibited
employer from allowing additional non-citizens to begin work. This provision relies on the
meaning of work and allows to work provided by new section 245AYC for the purposes of
new Subdivision E.
174. For clarity, the intention of this provision is not to prevent a non-citizen who has an
established work relationship with the person - before that person is declared to be a
prohibited employer - from continuing to be allowed to work. The inclusion of the word
'begin' in subparagraphs 245AYH(1)(b)(i) and (ii) is intended to provide that the person
would only contravene subsection 245AYH(1) where the non-citizen mentioned in either
subparagraph 245AYH(1)(b)(i) or (ii) has not previously been allowed to work by the
person, prior to that person being declared by the Minister to be a prohibited employer under
new subsection 245AYG(1).
New subsection 245AYH(1) - illustrative examples
Employer A3 is the subject of a court order to pay a pecuniary penalty for contravention of
a work-related provision of the Migration Act. Person D is the owner/director of Employer
A3, and is also the subject of a court order for contravention of the work-related provision
in current section 245AK of the Migration Act (civil liability of executive officers of bodies
corporate).
Employer A3 and Person D are subsequently considered for declaration as prohibited
employers under subsection 245AYG(1).
Following consideration, the Minister makes a declaration under subsection 245AYG(1) in
relation to both Employer A3 and Person D. The declaration comes into effect on
1 July 2022, and is specified to have effect for a period of 12 months from that day, in
relation to both Employer A3 and Person D.
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Pre-existing work relationship
Person B1 is a student visa holder. Person B1 began working for Employer A3 on 1 October
2021, on a casual basis, and is still working for Employer A3 when the prohibited employer
declaration comes into effect on 1 July 2022.
Employer A3 does not contravene subsection 245AYH(1) by continuing to allow Person B1
to work.
No pre-existing work relationship
Person B2 is a working holiday visa holder. On 25 June 2022, Person B2 responds to an
advertisement by Employer A3 for casual work. Person B2 has not previously worked for
Employer A3.
Employer A3 interviews Person B2 on 5 July 2022, and offers Person B2 the job.
The prohibited employer declaration in relation to Employer A3 came into effect on 1 July
2022. If Employer A3 allows Person B2 to begin work, Employer A3 would contravene
subsection 245AYH(1).
The prohibited employer is an individual
In addition to being the owner/director of Employer A3, Person D also works in a
management position in a labour hire company, LHC1. In this role, Person D would
ordinarily be involved in reviewing and signing off on all recruitment and work referrals.
While Person D, as an individual, is a prohibited employer, LHC1 has not been declared to
be a prohibited employer.
For the period of 12 months from 1 July 2022, if Person D were to be involved in allowing
any non-citizens to begin work through Person D's role in LHC1, Person D would
contravene subsection 245AYH(1).
Person D's status as a prohibited employer does not prevent LHC1 from allowing additional
non-citizens to begin work - but as a prohibited employer, Person D must not have a role in
deciding to allow a non-citizen to begin work (excluding permanent visa holders).
175. New subsection 245AYH(2) provides that subsection 245AYH(1) does not apply in
relation to work that a non-citizen is allowed to do if the work is merely incidental to a
business of the person or the body corporate.
176. The purpose of this subsection is to provide a limited exception to the prohibition in
relation to allowing additional non-citizens to begin work. Where the nature of the work that
a prohibited employer allows a non-citizen to carry out is incidental to the prohibited
employer's business - and not part of the prohibited employer's core business or services -
the prohibited employer would not be in contravention of subsection 245AYH by allowing
that non-citizen to begin work.
177. This exception is intended to cover circumstances where a person may have limited
choice but to engage the services of a non-citizen temporarily or on an ad hoc basis as an
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independent contractor - for example, to undertake repairs at the prohibited employer's
business premises, or to provide occasional catering services for meetings and events. It is
not the intention that new section 245AYH would impede a person's capacity to contract
for such services during the period that a prohibited employer declaration is in effect in
relation to that person, particularly where repairs may be necessary to address work health
and safety issues at a work site, or to provide necessary maintenance or related services.
178. Where the prohibited employer can demonstrate that the work is incidental to the
business of the prohibited employer, the exception in new subsection 245AYH(2) would be
available, such that subsection 245AYH(1) would not apply. Current section 96 of the
Regulatory Powers Act relevantly provides that in proceedings for a civil penalty order
against a person for a contravention of a civil penalty provision, if the person wishes to rely
on any exception provided by the law creating the civil penalty provision, then the person
bears an evidential burden in relation to that matter.
New subsection 245AYH(2) - illustrative example
Employer C1 (a body corporate) owns and operates a mushroom processing plant.
Following an investigation by the ABF, Employer C1 is found to have employed a large
number of visitor visa holders and unlawful non-citizens in the plant, over several years.
Court proceedings against Employer C1 are initiated, and the court makes pecuniary penalty
orders for multiple contraventions of work-related provisions under the Migration Act.
Following this, Employer C1 is referred to the Minister for consideration under section
245AYG, to be declared a prohibited employer. The Minister subsequently declares
Employer C1 to be a prohibited employer for a period of two years.
Six months into the period of effect of the declaration, the mushroom processing plant
experiences electrical issues. Employer C1 is required to close the plant temporarily for
work health and safety reasons, until the issues are resolved.
Employer C1 engages the services of a local electrician to inspect and repair the plant's
electrical wiring urgently. The electrician is a temporary visa holder.
Employer C1's status as a prohibited employer does not prevent Employer C1 from
engaging the services of the electrician, in spite of the prohibition in section 245AYH.
Although the electrician holds a temporary visa, as an ad hoc arrangement where the nature
of the work can be characterised as incidental to Employer C1's business, this arrangement
between Employer C1 and the electrician constitutes an exception to the civil penalty in
section 245AYH.
Employer C1 subsequently advertises several vacancies at the plant. A group of six
backpackers respond to the advertisement. They indicate to Employer C1 that they all have
their own ABNs, and hold working holiday visas. Employer C1 offers to engage them all
on six-month contracts for services to work at the plant, performing a range of duties
consistent with the duties of current employees. All six accept the offer, and commence
working at the plant.
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This action by Employer C1 contravenes the prohibition in subsection 245AYH(1). The
exception that applied in relation to Employer C1's engagement of the electrician does not
apply in these circumstances. Where the six working holiday visa holders are performing
work with duties that are consistent with, or comparable to, the duties of employees of the
business, the work would not be characterised as 'merely incidental' to Employer C1's
business.
179. New subsection 245AYH(3) provides that a person who contravenes subsection
245AYH(1) is liable to a civil penalty of 240 penalty units. A note under new paragraph
245AYG(1)(c) draws the reader's attention to section 486ZF of the Migration Act. Current
section 486ZF provides that it is not necessary to prove a person's state of mind in
proceedings for a civil penalty order.
180. The AGD Framing Guide has been considered in relation to this provision, and
particularly in relation to the penalty. While subsection 245AYH(3) is a civil penalty
provision, it is appropriate that a person who contravenes subsection 245AYH(1) is liable
to a penalty of 240 penalty units. This penalty aligns with the increased penalties for the
current work-related provisions, as amended by the items in Part 4 of the Schedule to the
Bill. It also acknowledges the serious character of the circumstances that lead to a person
being declared a prohibited employer. It is appropriate that a person who is already the
subject of a migrant worker sanction, who then also goes on to contravene subsection
245AYH(1) as a prohibited employer, should be liable to a substantial penalty in relation to
that contravention.
Publishing information about prohibited employers
181. New section 245AYI establishes a requirement for the Minister to publish certain
information about a prohibited employer on the Department's website.
182. New subsection 245AYI(1) provides that if a person is a prohibited employer, the
Minister must publish the information required by new subsection 245AYI(3) on the
Department's website. The purpose of publishing this information is to put the Australian
community, and prospective migrant workers in particular, on notice that the person is a
prohibited employer, and is subject to the prohibition under new section 245AYH. It will
also serve as a further deterrent against committing a work-related offence or contravening
a work-related provision of the Migration Act.
183. New subsection 245AYI(2) provides for an exception to the requirement in
subsection 245AYI(1), in circumstances prescribed by regulations made for the purposes of
subsection 245AYI(2).
184. New subsection 245AYI(3) sets out the information that is required to be published
by subsection 245AYI(1). This includes:
• the name of the prohibited employer; and
• the ABN of the prohibited employer (if they have an ABN); and
• any other information that the Minister considers is reasonably necessary to identify
the prohibited employer; and
35
• a brief summary of the migrant worker sanction that is the basis of the person's
declaration as a prohibited employer; and
• the period during which the person is a prohibited employer.
185. New subsection 245AYI(4) provides that subsection 245AYI(1) authorises the
publication of personal information, constituting an 'authorised by law' exemption to APP
6 (enlivening the exception in APP 6.2(b)). Relevantly, the Department has commissioned
a Privacy Impact Assessment to support the implementation of these amendments, and to
ensure that privacy considerations are addressed appropriately. The recommendations of
this assessment will be considered, and actioned where appropriate, in the context of
implementation.
186. New subsection 245AYI(5) provides that no civil liability arises from action taken
by the Minister in good faith in publishing information under subsection 245AYI(1).
187. New subsection 245AYI(6) makes clear that the Minister is not required to arrange
for the removal, from the Department's website, of information about a person published
under subsection 245AYI(1) when the person stops being a prohibited employer.
Relevantly, although the Minister is not required to arrange for the removal of this
information, the intention is that such information would be removed from the Department's
website as soon as reasonably practicable after the person stops being a prohibited employer.
188. APPs 10 and 13 outline an APP entity's responsibility to take reasonable steps to
ensure information is accurate, up-to-date, complete and relevant, and to take action to
correct any information that has become inaccurate or out of date. There are no authorised
by law exemptions to these APPs, but rather compliance is required when reasonable in the
circumstances.
Prohibited employers - additional reporting obligations
189. New section 245AYJ establishes reporting obligations on a person who was
previously a prohibited employer.
190. New subsection 245AYJ(1) establishes that a person contravenes this subsection if:
• the person was, but no longer is, a prohibited employer;
• within the period of 12 months starting on the day after the person stopped being a
prohibited employer, the person starts to employ a non-citizen (other than a non-
citizen who holds a permanent visa);
• the person does not give the Department, in writing, information required by new
subsection 245AYJ(3), before the end of the 28-day period starting on the day after
the person allows the non-citizen to begin work.
191. A person who contravenes this subsection is liable for a civil penalty of 48 penalty
units. Current section 486ZF of the Migration Act provides that a person's state of mind
does not need to be proven in proceedings for a civil penalty order. The note under new
paragraph 245AYJ(1)(c) draws the reader's attention to this provision.
36
192. The purpose of this subsection is to establish that former prohibited employers are
subject to additional reporting requirements for the duration of the 12-month period after
the end of their prohibited employer status. The effect of this provision is that the former
prohibited employer must provide the Department with certain information in relation to
any non-citizens that they employ within the 12-month period. This requirement does not
apply in relation to non-citizens who hold a permanent visa, within the meaning given by
subsection 30(1) of the Migration Act.
193. New subsection 245AYJ(2) provides that new subsection 245AYJ(1) does not apply
in relation to work that the non-citizen is allowed to do if the work is merely incidental to a
business of the person.
194. The purpose of this subsection is to provide a limited exception to the civil penalty
provision in new subsection 245AYJ(1), specifically in relation to work that a non-citizen
is allowed to do by a former prohibited employer, where that work is merely incidental to a
business of the former prohibited employer. This mirrors the exception under new
subsection 245AYH(2) in relation to the prohibition on a prohibited employer allowing an
additional non-citizen to begin work. Where the nature of the work that a former prohibited
employer allows a non-citizen to carry out is incidental to that person's business, it is not
intended that the former prohibited employer should be required to provide information to
the Department in relation to that non-citizen.
195. Where the former prohibited employer can demonstrate that the work is incidental
to the business of the prohibited employer, the exception in new subsection 245AYJ(2)
would be available, such that subsection 245AYJ(1) would not apply. Current section 96 of
the Regulatory Powers Act relevantly provides that in proceedings for a civil penalty order
against a person for a contravention of a civil penalty provision, if the person wishes to rely
on any exception provided by the law creating the civil penalty provision, then the person
bears an evidential burden in relation to that matter.
196. New subsection 245AYJ(3) establishes the information required for the purposes of
new paragraph 245AYG(1)(c). The following information is required:
• the name of the non-citizen: new paragraph 245AYJ(3)(a);
• a description of the work the non-citizen is allowed to do: new paragraph
245AYJ(3)(b);
• if the non-citizen holds a visa that is subject to a work-related condition, details of
the condition: new paragraph 245AYJ(3)(c);
• any other information prescribed by regulations made for the purposes of this
paragraph: new paragraph 245AYJ(3)(d).
197. New subsection 245AYJ(4) provides that for the purposes of paragraph
245AYJ(3)(d), personal information may be prescribed only to the extent that it is
reasonably necessary for monitoring compliance with this Division.
198. The intention of this provision is to limit the scope of personal information that may
be prescribed in the Migration Regulations by reference to its purpose, while providing
appropriate flexibility in relation to the information (including personal information) that
37
may be identified as necessary, to be prescribed by regulations made for the purposes of
new paragraph 245AYJ(3)(d). This may cover both personal information of a non-citizen
and personal information of an individual who is a prohibited employer - for example,
where personal information may be required to identify if that person is a prohibited
employer, having a material role in the decision of a body corporate to employ a non-citizen
(as it relates to the prohibition in new section 245AYH, and particularly subparagraph
245AYH(1)(b)(ii)). Relevantly, the Department has commissioned a Privacy Impact
Assessment to support the implementation of these amendments, and to ensure that privacy
considerations are addressed appropriately. The recommendations of this assessment will
be considered, and actioned where appropriate, in the context of implementation.
199. The reference to Division 12 of Part 2 of the Migration Act in subsection 245AYJ(4)
is deliberate, in order to cover monitoring of compliance with Subdivision C as well,
particularly in consideration of the relationship between the work-related offences and
work-related provisions in Subdivision C and new Subdivision E.
Exhaustive statement of natural justice hearing rule
200. New section 245AYK provides an exhaustive statement of the natural justice hearing
rule for the purposes of new Subdivision E of Division 12 of Part 2 of the Migration Act.
201. New subsection 245AYK(1) provides that new Subdivision E is taken to be an
exhaustive statement of the requirements of the natural justice hearing rule in relation to the
matters it deals with.
202. New subsection 245AYK(2) provides that sections 494A to 494D, in so far as they
relate to new Subdivision E, are taken to be an exhaustive statement of the requirements of
the natural justice hearing rule in relation to the matters they deal with, across the
Subdivision. These sections deal with giving documents, by the Minister, to a person, and
when a person is taken to have received a document from the Minister.
203. The purpose of this amendment is to provide a clear legislative statement that the
provisions in new Subdivision E are an exhaustive and comprehensive statement of the of
the requirements of the natural justice hearing rule in relation to the matters they deal with.
Item 10 Section 487A (definitions of work-related offence and work-related
provision)
204. This item amends current section 487A of the Migration Act by repealing the
definitions of work-related offence and work-related provision. This is a consequential
amendment, related to the amendment by item 7 of this Part.
205. The purpose of this amendment is to provide that the defined terms work-related
offence and work-related provision are terms of general application in the Migration Act,
defined in subsection 5(1). This ensures that where these terms are relied on, whether in
Subdivision C of Division 12 of Part 2 of the Migration Act, or later in Part 8E, they have
one, consistent meaning.
38
Division 2 Application
Item 11 Application of amendments
206. This item provides that the amendments of the Migration Act made by this Part apply
in relation to migrant worker sanctions to which a person becomes subject on or after the
commencement of this Schedule. The conduct leading to the sanction may occur before, on
or after the commencement of this Schedule.
207. This provision ensures that a declaration can only be made in relation to a person
where the relevant migrant worker sanction occurs on or after commencement of the
amendments of the Migration Act. This acknowledges the significant effect of the
declaration, if made, but balances this against the fact that the migrant worker sanctions
are well-established, and include long-standing offences and civil penalty or civil remedy
provisions under the Migration Act and the Fair Work Act.
208. The prohibited employer declaration and the related prohibition and reporting
requirements under new Subdivision E are intended to reinforce the Government's strong
stance against illegal work practices and the exploitation of migrant workers.
39
Part 3 Use of computer system to verify immigration status
Division 1 Amendments
Migration Act 1958
Item 12 Subsection 5(1)
209. This item inserts several new signpost definitions in subsection 5(1) of the Migration
Act.
210. The expression logging into, and the terms prescribed computer system and
required permission, are defined in new section 245APE for the purposes of Subdivision C
of Division 12 of Part 2. The meaning of required system user is given by new section
245APB, in relation to the use of the prescribed computer system for the purposes of
Subdivision C of Division 12 of Part 2.
211. The insertion of these signpost definitions in current subsection 5(1) of the Migration
Act supports the amendments, by items 13 to 20 in this Part, of current Subdivision C of
Division 12 of Part 2 of the Migration Act. The signpost definitions direct the reader to the
relevant provisions that give each term or expression its meaning for the purposes of
Subdivision C of Division 12 of Part 2 of the Migration Act.
Item 13 At the end of subsection 245AA(1)
212. This item inserts new paragraph 245AA(1)(c) at the end of current subsection
245AA(1).
213. Current section 245AA provides an overview of Subdivision C of Division 12 of
Part 2 of the Migration Act. The purpose of the amendment by item 13 is to update this
overview to include reference to the new civil penalty provisions at new sections 245AEC
and 245AED, inserted by item 19 in this Part.
214. New paragraph 245AA(1)(c) provides an outline of the requirements under new
sections 245AEC and 245AED in relation to determining whether a non-citizen has the
required permission to work, by using information sourced from the prescribed computer
system or another prescribed source.
Item 14 At the end of subsection 245AA(2)
215. This item inserts new paragraphs 245AA(2)(d) and (e) at the end of current
subsection 245AA(2).
216. As part of the overview of Subdivision C in current section 245AA, subsection
245AA(2) identifies a number of sections of the Migration Act that define terms that are
relevant for the purposes of Subdivision C.
217. The purpose of the amendment by item 14 is to update current subsection 245AA(2)
to ensure that it includes reference to new defined terms and expressions for the purposes
of Subdivision C established by the amendments in this Part.
40
218. Specifically, the insertion of new paragraphs 245AA(2)(d) and (e) revises the
overview of Subdivision C to include reference to new section 245APB, which defines
required system user, and new section 245APE, which defines logging into, prescribed
computer system and required permission.
Item 15 Subsection 245AB(2)
219. This item repeals current subsection 245AB(2) and substitutes a new subsection
245AB(2).
220. Current section 245AB deals with allowing an unlawful non-citizen to work. Current
subsection 245AB(1) provides that a person (the first person) contravenes this subsection
if:
• the first person allows, or continues to allow, another person (the worker) to work;
and
• the worker is an unlawful non-citizen.
221. Current subsection 245AB(2) provides an exception to subsection 245AB(1) so that
where a person takes reasonable steps at reasonable times to verify that the worker is not an
unlawful non-citizen, the first person would not contravene current subsection 245AB(1).
Accordingly, current subsection 245AB(2) provides a specific defence in relation to a
contravention of subsection 245AB(1). It operates as a defence to the offence in current
subsection 245AB(3), and as an exception to the related civil penalty provision in current
subsection 245AB(5).
222. New subsection 245AB(2), which replaces current subsection 245AB(2), recasts the
defence to focus on obtaining information from the prescribed computer system, and for the
first person to be reasonably satisfied, on the basis of that information, that the worker is not
an unlawful non-citizen.
223. New subsection 245AB(2) provides that current subsection 245AB(1) does not apply
if the first person is, and continues to be, reasonably satisfied that the worker is not an
unlawful non-citizen, on the basis of information obtained:
• by logging into and using the prescribed computer system to source the information;
or
• under an arrangement by which another person logs into and uses the prescribed
computer system to source the information (unless the first person is a required
system user under new section 245APB); or
• by doing any one or more things prescribed by the regulations.
224. The purpose of new paragraph 245AB(2)(a) is to provide that the defence (or
exception) is available if the first person logs into and uses the prescribed computer system
to obtain information to satisfy themselves that the worker is not an unlawful non-citizen.
New section 245APE relevantly defines the expression logging into for the purposes of
Subdivision C. As defined by section 245APE, a person logs into the prescribed computer
system by accessing the system under an account maintained by or for the person.
41
225. The purpose of new paragraph 245AB(2)(b) is to provide that the defence (or the
exception, in relation to the civil penalty in current subsection 245AB(5)) is, alternatively,
available to the first person where the information is obtained under an arrangement by
which another person logs into and uses the prescribed computer system to source the
information.
New paragraph 245AB(2)(b) - illustrative examples
Checks may be "contracted out"
Employer A1 has in excess of 200 active employees at any time, including a large seasonal
workforce of non-citizens holding student visas, working holiday visas and various other
temporary and permanent visas.
Given the volume and turnover of non-citizen workers, Employer A1 engages the services
of another business - Service B1 - to conduct checks of prospective non-citizen workers'
details in VEVO (the prescribed computer system).
When hiring a new non-citizen worker, Employer A1 obtains the non-citizen's agreement
for the necessary information (name, date of birth, passport details etc) to be provided to
Service B1 to conduct a check in VEVO. Service B1 logs into VEVO and conducts the
check, and provides the results of that check to Employer A1.
On the basis of this information, Employer A1 may be reasonably satisfied that the new
non-citizen worker is not an unlawful non-citizen.
The worker can provide the information
Employer A2 is a small business with fewer than 20 employees. Employer A2 has not
registered as an organisation to use VEVO to check non-citizen workers' immigration status
and work-related visa conditions.
Employer A2 advertises a new part-time vacancy and identifies a suitable candidate. The
candidate indicates they are a non-citizen, and that they hold a student visa.
As Employer A2 has not registered to use VEVO, Employer A2 is unable to log into VEVO
to obtain information to be satisfied of the non-citizen's immigration status and work-related
conditions. Instead, the candidate offers to log into VEVO directly and initiate a system-
generated email, to be sent directly from VEVO to Employer A2's email address.
Employer A2 agrees, and provides an email address to the candidate for this purpose. The
candidate logs into VEVO as a visa holder, and generates an auto-generated email to
Employer A2's address.
Shortly after this, Employer A2 receives the email from VEVO. It includes information
including the candidate's name, date of birth and other details. The email includes
information about the candidate's immigration status and work-related conditions, and
confirms that the candidate holds a student visa.
42
On the basis of this information, Employer A2 may be reasonably satisfied that the candidate
is not an unlawful non-citizen.
226. Importantly, new paragraph 245AB(2)(b) also provides that the defence is not
available under this paragraph if the first person is a required system user within the
meaning given by new section 245APB. If a person is a required system user, the person
may not obtain the information by arranging for another person to log into and use the
system (as otherwise contemplated by new paragraph 245AB(2)(b)). If a person is a required
system user, the new subsection 245AB(2) defence may still be available where the person
obtains information by the means specified in either paragraph 245AB(2)(a), or paragraph
245AB(2)(c).
227. New paragraph 245AB(2)(c) establishes a regulation-making power for the
Migration Regulations to prescribe other things that the first person could do in order to
obtain information to be reasonably satisfied that the worker is not an unlawful non-citizen.
This provision provides the flexibility to prescribe other things that may be done to obtain
information on the basis of which the first person may be satisfied that a worker is not an
unlawful non-citizen. This provision complements new section 245APA, which deals with
circumstances in which information is unobtainable by accessing the prescribed computer
system.
228. The defence in new subsection 245AB(2) is available where the first person is, and
continues to be, reasonably satisfied that the worker is not an unlawful non-citizen, on the
basis of information obtained by any of the means set out at paragraphs 245AB(2)(a), (b) or
(c). This is intended to clarify that the defence is not available if information so obtained
reasonably indicates that the worker concerned may be an unlawful non-citizen. The
requirement that the first person is, and continues to be, reasonably satisfied, is intended to
make clear that, in the context of an ongoing arrangement with a non-citizen to allow that
non-citizen to work, the first person would be expected to check at reasonable intervals or
after receiving information that might raise a potential issue or change in the worker's
immigration status.
229. The purpose of the amendment by item 15 is to recast and tighten the defence to the
established offence at current subsection 245AB(3) for contravention of subsection
245AB(1), which also operates as an exception to the related civil penalty provision at
subsection 245AB(5). The amendment establishes a clear connection between current
section 245AB, as an established offence and civil penalty under Subdivision C, and the
new civil penalty provisions at new sections 245AEC and 245AED. It reinforces the central
role of the prescribed computer system as the means by which a person is required to satisfy
themselves of a non-citizen's immigration status and work-related conditions when
allowing that non-citizen to work or referring that non-citizen for work.
230. The defence is designed to be sufficiently broad to cover the practices of individuals
and businesses that make genuine attempts to verify that a non-citizen is not an unlawful
non-citizen, while ensuring the defence is centred on use of the prescribed computer system.
Regardless of whether the information is obtained directly from the system by the first
person, or by another person under an arrangement to source the information, the onus is on
the first person to be satisfied, on the basis of that information, that the worker is not an
unlawful non-citizen.
43
Item 16 Subsection 245AC(2)
231. This item repeals current subsection 245AC(2) and substitutes a new subsection
245AC(2).
232. Current section 245AC deals with allowing a non-citizen to work in breach of a visa
condition. Current subsection 245AC(1) provides that a person (the first person)
contravenes this subsection if:
• the first person allows, or continues to allow, another person (the worker) to work;
and
• the worker is a lawful non-citizen; and
• the worker holds a visa that is subject to a work-related condition; and
• the worker is in breach of the work-related condition solely because of doing the
work referred to in paragraph 245AC(1)(a).
233. Current subsection 245AC(2) provides an exception to current subsection 245AC(1),
so that where a person takes reasonable steps at reasonable times to verify that the worker
is not in breach of the work-related condition solely because of doing the work referred to
in paragraph 245AC(1)(a), the first person would not contravene current subsection
245AC(1). Accordingly, current subsection 245AC(2) provides a specific defence in
relation to a contravention of subsection 245AC(1). It operates as a defence to the offence
in current subsection 245AC(3), and as an exception to the related civil penalty provision in
current subsection 245AC(5).
234. New subsection 245AC(2), which replaces current subsection 245AC(2), recasts the
defence to focus on obtaining information from the prescribed computer system, and for the
first person to be reasonably satisfied, on the basis of that information, that the worker is not
in breach of a work-related condition solely by reason of doing the work referred to in
current paragraph 245AC(1)(a).
235. New subsection 245AC(2) provides that current subsection 245AC(1) does not apply
if the first person is, and continues to be, reasonably satisfied that the worker is not in breach
of the work-related condition solely because of doing the work allowed by the first person,
on the basis of information obtained:
• by logging into and using the prescribed computer system to source the information;
or
• under an arrangement by which another person logs into and uses the prescribed
computer system to source the information (unless the first person is a required
system user under new section 245APB); or
• by doing any one or more things prescribed by the regulations.
236. The purpose of new paragraph 245AC(2)(a) is to provide that the defence (or
exception) is available if the first person logs into and uses the prescribed computer system
to obtain information to satisfy themselves that the worker would not be in breach of the
44
work-related condition of their visa solely because of doing the work allowed by the first
person (per current paragraph 245AC(1)(a)). New section 245APE relevantly defines
logging into for the purposes of Subdivision C. As defined by section 245APE, a person
logs into the prescribed computer system by accessing the system under an account
maintained by or for the person.
237. The purpose of new paragraph 245AC(2)(b) is to provide that the defence (or the
exception, in relation to the civil penalty in current subsection 245AC(5)) is, alternatively,
available to the first person where the information is obtained under an arrangement by
which another person logs into and uses the prescribed computer system to source the
information.
New paragraph 245AC(2)(b) - illustrative examples
Checks may be "contracted out"
Employer A1 has in excess of 200 active employees at any time, including a large seasonal
workforce of non-citizens on student visas, working holiday visas and various other
temporary and permanent visas.
Given the volume and turnover of non-citizen workers, Employer A1 engages the services
of another business - Service B1 - to conduct checks of prospective non-citizen workers'
details in VEVO (the prescribed computer system).
When hiring a new non-citizen worker, Employer A1 obtains the non-citizen's agreement
for the necessary information (name, date of birth, passport details etc) to be provided to
Service B1 to conduct a check in VEVO. Service B1 logs into VEVO and conducts the
check, and provides the results of that check to Employer A1.
On the basis of this information, Employer A1 may be reasonably satisfied that the new
non-citizen worker would not be in breach of the work-related condition of their visa
because of working for Employer A1.
The worker can provide the information
Employer A2 is a small business with fewer than 20 employees. Employer A2 has not
registered as an organisation to use VEVO to check non-citizen workers' immigration status
and work-related visa conditions.
Employer A2 advertises a new part-time vacancy (to work up to 15 hours per week) and
identifies a suitable candidate. The candidate indicates they are a non-citizen, and that they
hold a student visa.
As Employer A2 has not registered to use VEVO, Employer A2 is unable to log into VEVO
to obtain information to be satisfied of the non-citizen's immigration status and work-related
conditions. Instead, the candidate offers to log into VEVO directly and initiate a system-
generated email, to be sent directly from VEVO to Employer A2's email address.
Employer A2 agrees, and provides an email address to the candidate for this purpose. The
candidate logs into VEVO as a visa holder, and generates an auto-generated email to
Employer A2's address.
45
Shortly after this, Employer A2 receives the email from VEVO. It includes information
including the candidate's name, date of birth and other details. The email includes
information about the candidate's immigration status and work-related conditions, and
confirms that the candidate holds a student visa.
On the basis of this information, Employer A2 may be reasonably satisfied that the
candidate, working up to 15 hours per week for Employer A2, would not be in breach of the
work-related condition of their student visa because of that work.
238. Importantly, new paragraph 245AC(2)(b) also provides that the defence is not
available under this paragraph if the first person is a required system user within the
meaning given by new section 245APB. If a person is a required system user, the person
may not obtain the information by arranging for another person to log into and use the
system (as otherwise contemplated by new paragraph 245AC(2)(b)). If a person is a
required system user, the new subsection 245AC(2) defence may still be available where
the person obtains information by the means specified in either paragraph 245AC(2)(a), or
paragraph 245AC(2)(c).
239. New paragraph 245AC(2)(c) establishes a regulation-making power for the
Migration Regulations to prescribe other things that the first person could do in order to
obtain information to be reasonably satisfied that the worker would not be in breach of the
work-related condition of their visa solely because of doing the work allowed by the first
person (per current paragraph 245AC(1)(a)). This provision provides the flexibility to
prescribe other things that may be done to obtain information on the basis of which the first
person may be satisfied that a worker would not be in breach of the work-related condition
of their visa solely because of doing the work allowed by the first person (per current
paragraph 245AC(1)(a)). This provision complements new section 245APA, which deals
with circumstances in which information is unobtainable by accessing the prescribed
computer system.
240. The defence in new subsection 245AC(2) is available where the first person is, and
continues to be, reasonably satisfied that the worker is not an unlawful non-citizen, on the
basis of information obtained by any of the means set out at paragraphs 245AC(2)(a), (b) or
(c). This is intended to clarify that the defence is not available if information so obtained
reasonably indicates that the worker concerned may be in breach of a work-related
condition. The requirement that the first person is, and continues to be, reasonably satisfied,
is intended to make clear that the intention is that, in the context of an ongoing arrangement
with a non-citizen to allow that non-citizen to work, the first person would be expected to
check at reasonable intervals or after receiving information that might raise a potential issue
or change in the worker's immigration status.
241. The purpose of the amendment by item 16 is to recast and tighten the defence to the
established offence at current subsection 245AC(3) for contravention of subsection
245AC(1), which also operates as an exception to the related civil penalty provision at
subsection 245AC(5). The amendment establishes a clear connection between current
section 245AC, as an established offence and civil penalty under Subdivision C, and the
new civil penalty provisions at new sections 245AEC and 245AED. It reinforces the central
role of the prescribed computer system as the means by which a person is required to satisfy
themselves of a non-citizen's immigration status and work-related conditions when
allowing that non-citizen to work or referring that non-citizen for work.
46
242. The defence is designed to be sufficiently broad to cover the practices of individuals
and businesses that make genuine attempts to verify that a non-citizen is not working in
breach of a work-related condition of their visa, while ensuring the defence is centred on
use of the prescribed computer system. Regardless of whether the information is obtained
directly from the system by the first person, or by another person under an arrangement to
source the information, the onus is on the first person to be reasonably satisfied, on the basis
of that information, that the worker would not be in breach of the work-related condition of
their visa solely because of doing the work allowed by the first person (per current paragraph
245AC(1)(a)).
Item 17 Subsection 245AE(2)
243. This item repeals current subsection 245AE(2) and substitutes a new subsection
245AE(2).
244. Current section 245AE deals with referring an unlawful non-citizen for work.
Current subsection 245AE(1) provides that a person (the first person) contravenes this
subsection if:
• the first person operates a service, whether for reward or otherwise, referring other
persons to a third person for work; and
• the first person refers another person (the prospective worker) to a third person for
work; and
• at the time of the referral, the prospective worker is an unlawful non-citizen.
245. Current subsection 245AE(2) provides an exception to subsection 245AE(1) so that
where a person takes reasonable steps at reasonable times to verify that a prospective worker
is not an unlawful non-citizen, the first person would not contravene current subsection
245AE(1). Accordingly, current subsection 245AE(2) provides a specific defence in relation
to a contravention of subsection 245AE(1). It operates as a defence to the offence in current
subsection 245AE(3), and as an exception to the related civil penalty provision in current
subsection 245AE(5).
246. New subsection 245AE(2), which replaces current subsection 245AE(2), recasts the
defence to focus on obtaining information from the prescribed computer system, and for the
first person to be reasonably satisfied at the time of referral, on the basis of that information,
that the prospective worker is not an unlawful non-citizen.
247. New subsection 245AE(2) provides that current subsection 245AE(1) does not apply
if the first person is, and continues to be, reasonably satisfied that the prospective worker is
not an unlawful non-citizen, on the basis of information obtained:
• by logging into and using the prescribed computer system to source the information;
or
• under an arrangement by which another person logs into and uses the prescribed
computer system to source the information (unless the first person is a required
system user under new section 245APB); or
47
• by doing any one or more things prescribed by the regulations.
248. The purpose of new paragraph 245AE(2)(a) is to provide that the defence (or the
exception, in relation to the civil penalty in current subsection 245AE(5)) is available if the
first person logs into and uses the prescribed computer system to obtain information to
satisfy themselves that the prospective worker is not an unlawful non-citizen. New section
245APE relevantly defines the expression logging into for the purposes of Subdivision C.
As defined by section 245APE, a person logs into the prescribed computer system by
accessing the system under an account maintained by or for the person.
249. The purpose of new paragraph 245AE(2)(b) is to provide that the defence (or
exception) is, alternatively, available to the first person where the information is obtained
under an arrangement by which another person logs into and uses the prescribed computer
system to source the information.
New paragraph 245AE(2)(b) - illustrative examples
Checks may be "contracted out"
Labour hire company B1 supplies workers on a short-term basis to businesses in the
agriculture sector to harvest fruit and vegetables. B1 has in excess of 500 registered workers
available to be referred for harvest work as needed. These workers are primarily non-
citizens.
As part of its operating model, B1 advertises for and recruits workers, but outsources checks
of non-citizen workers' immigration status and work-related visa conditions under a
contractual arrangement with Service C1. Service C1 provides a range of reference-
checking and other verification services, including VEVO checks in relation to prospective
non-citizen workers.
To ensure that any non-citizen workers that it is referring for work are not unlawful non-
citizens, B1 has established a process with Service C1 whereby B1 provides a list to Service
C1 with details of prospective workers before referring them to a farm or orchard for work.
This process is repeated each time a non-citizen is referred for work.
Service C1 logs into VEVO and uses the information provided in relation to prospective
workers on the list from B1 to check the workers' immigration status and work-related visa
conditions.
Service C1 provides the results of these checks to B1. On the basis of this information, B1
is able to consider and may be reasonably satisfied as to whether the prospective workers
are not unlawful non-citizens before referring them for work.
The prospective worker can provide the information
Labour hire company B2 has not registered as an organisation to use VEVO to check
prospective non-citizen workers' immigration status and work-related visa conditions.
As part of B2's operating model, when a non-citizen registers interest with B2 in being
referred for short-term or seasonal work, B2 requires the non-citizen to provide B2 with
information about their current immigration status and work-related visa conditions (if any).
48
B2 requires the non-citizen to do this by logging into VEVO and initiating a system-
generated email to a dedicated email address maintained by B2 to receive information from
VEVO in relation to prospective workers.
When B2 identifies suitable work for a non-citizen who has registered with B2, B2 requires
the non-citizen to initiate another VEVO check and system-generated email to the same
email address maintained by B2, to check whether the non-citizen's immigration status has
changed in the intervening period.
On the basis of this information, B2 may be reasonably satisfied that the prospective worker
is not an unlawful non-citizen at the time of referral.
250. Importantly, new paragraph 245AE(2)(b) also provides that the defence is not
available under this paragraph if the first person is a required system user within the
meaning given by new section 245APB. If a person is a required system user, the person
may not obtain the information by arranging for another person to log into and use the
system (as otherwise contemplated by new paragraph 245AE(2)(b)). If a person is a
required system user, the new subsection 245AE(2) defence may still be available where
the person obtains information by the means specified in either paragraph 245AE(2)(a), or
paragraph 245AE(2)(c).
251. New paragraph 245AE(2)(c) establishes a regulation-making power for the
Migration Regulations to prescribe other things that the first person could do in order to
obtain information to be reasonably satisfied that the prospective worker is not an unlawful
non-citizen. This provision provides the flexibility to prescribe other things that may be
done to obtain information on the basis of which the first person may be satisfied that a
prospective worker is not an unlawful non-citizen. This provision complements new section
245APA, which deals with circumstances in which information is unobtainable by accessing
the prescribed computer system.
252. The purpose of the amendment by item 17 is to recast and tighten the defence to the
established offence at current subsection 245AE(3) for contravention of subsection
245AE(1), which also operates as an exception to the related civil penalty provision at
subsection 245AE(5). The amendment establishes a clear connection between current
section 245AE, as an established offence and civil penalty under Subdivision C, and the
new civil penalty provisions at new sections 245AEC and 245AED. It reinforces the central
role of the prescribed computer system as the means by which a person is required to satisfy
themselves of a non-citizen's immigration status and work-related conditions when
allowing that non-citizen to work or referring that non-citizen for work.
253. The defence is designed to be sufficiently broad to cover the practices of individuals
and businesses that make genuine attempts to verify that a non-citizen is not an unlawful
non-citizen, while ensuring the defence is centred on use of the prescribed computer system.
Regardless of whether the information is obtained directly from the system by the first
person, or by another person under an arrangement to source the information, the onus is on
the first person to be reasonably satisfied, on the basis of that information, that the
prospective worker is not an unlawful non-citizen.
49
Item 18 Subsection 245AEA(2)
254. This item repeals current subsection 245AEA(2) and substitutes a new subsection
245AEA(2).
255. Current section 245AEA deals with referring a lawful non-citizen for work in breach
of a work-related condition. Current subsection 245AEA(1) provides that a person (the first
person) contravenes subsection 245AEA(1) if:
• the first person operates a service, whether for reward or otherwise, referring other
persons to third persons for work; and
• the first person refers another person (the prospective worker) to a third person for
work; and
• at the time of the referral:
- the prospective worker is a lawful non-citizen; and
- the prospective worker holds a visa that is subject to a work-related
condition; and
- the prospective worker will be in breach of the work-related condition
solely because of doing the work in relation to which they are referred.
256. Current subsection 245AEA(2) provides an exception to subsection 245AEA(1) so
that where a person takes reasonable steps at reasonable times before the referral to verify
that the prospective worker will not be in breach of the work-related condition solely
because of doing the work in relation to which they are referred, the first person would not
contravene current subsection 245AEA(1). Accordingly, current subsection 245AEA(2)
provides a specific defence in relation to a contravention of subsection 245AEA(1). It
operates as a defence to the offence in current subsection 245AEA(3), and as an exception
to the related civil penalty provision in current subsection 245AEA(5).
257. New subsection 245AEA(2), which replaces current subsection 245AEA(2), recasts
the defence to focus on obtaining information from the prescribed computer system, and for
the first person to be reasonably satisfied, at the time of referral, that the prospective worker
would not be in breach of the work-related condition solely because of doing the work
mentioned in current paragraph 245AEA(1)(b).
258. New subsection 245AEA(2) provides that current subsection 245AEA(1) does not
apply if the first person, at the time of referral, is reasonably satisfied that the prospective
worker would not be in breach of the work-related condition solely because of doing the
work for which they are referred, on the basis of information obtained:
• by logging into and using the prescribed computer system to source the information;
or
• under an arrangement by which another person logs into and uses the prescribed
computer system to source the information (unless the first person is a required
system user under new section 245APB); or
50
• by doing any one or more things prescribed by the regulations.
259. The purpose of new paragraph 245AEA(2)(a) is to provide that the defence (or
exception) is available if the first person logs into and uses the prescribed computer system
to obtain information to satisfy themselves that the prospective worker would not be in
breach of the work-related condition of their visa solely because of doing the work allowed
by the first person (per current paragraph 245AEA(1)(b)). New section 245APE relevantly
defines logging into for the purposes of Subdivision C. As defined by section 245APE, a
person logs into the prescribed computer system by accessing the system under an account
maintained by or for the person.
260. The purpose of new paragraph 245AEA(2)(b) is to provide that the defence (or
exception) is, alternatively, available to the first person where the information is obtained
under an arrangement by which another person logs into and uses the prescribed computer
system to source the information.
New paragraph 245AEA(2)(b) - illustrative examples
Checks may be "contracted out"
Labour hire company B1 supplies workers on a short-term basis to businesses in the
agriculture sector to harvest fruit and vegetables. B1 has in excess of 500 registered workers
available to be referred for harvest work as needed. These workers are primarily non-
citizens.
As part of its operating model, B1 advertises for and recruits workers, but outsources checks
of non-citizen workers' immigration status and work-related visa conditions under a
contractual arrangement with Service C1. Service C1 provides a range of reference-
checking and other verification services, including VEVO checks in relation to prospective
non-citizen workers.
To ensure that any non-citizen workers that it refers for work would not be in breach of the
work-related conditions of their visas, B1 has established a process with Service C1 whereby
B1 provides a list to Service C1 with details of prospective workers before referring them
to a farm or orchard for work. This process is repeated each time a non-citizen is referred
for work.
Service C1 logs into VEVO and uses the information provided in relation to prospective
workers on the list from B1 to check the workers' immigration status and work-related visa
conditions.
Service C1 provides the results of these checks to B1. On the basis of this information, B1
is able to consider and may be reasonably satisfied, at the time of referring them for work,
whether the prospective workers would be working in breach of a work-related condition of
their visas as a result of doing that work.
The prospective worker can provide the information
Labour hire company B2 has not registered as an organisation to use VEVO to check
prospective non-citizen workers' immigration status and work-related visa conditions.
51
As part of B2's operating model, when a non-citizen registers interest with B2 in being
referred for short-term or seasonal work, B2 requires the non-citizen to provide B2 with
information about their current immigration status and work-related visa conditions (if any).
B2 requires the non-citizen to do this by logging into VEVO and initiating a system-
generated email to a dedicated email address maintained by B2 to receive information from
VEVO in relation to prospective workers.
When B2 identifies suitable work for a non-citizen who has registered with B2, B2 requires
the non-citizen to initiate another VEVO check and system-generated email to the same
email address maintained by B2, to reconfirm the non-citizen's immigration status and
current work-related visa conditions.
On the basis of this information, B2 may be reasonably satisfied that, at the time of referral,
the prospective worker would not be working in breach of a work-related condition of their
visa on the basis of the work for which B2 is referring them.
261. Importantly, new paragraph 245AEA(2)(b) also provides that the defence is not
available under this paragraph if the first person is a required system user within the
meaning given by new section 245APB. If a person is a required system user, the person
may not obtain the information by arranging for another person to log into and use the
system (as otherwise contemplated by new paragraph 245AEA(2)(b)). If a person is a
required system user, the new subsection 245AEA(2) defence may still be available where
the person obtains information by the means specified in either paragraph 245AEA(2)(a),
or paragraph 245AEA(2)(c).
262. New paragraph 245AEA(2)(c) establishes a regulation-making power for the
Migration Regulations to prescribe other things that the first person could do in order to
obtain information to be reasonably satisfied, at the time of referral, that the prospective
worker would not be in breach of the work-related condition of their visa solely because of
doing the work for which they are referred (per current paragraph 245AEA(1)(b)). This
provision provides the flexibility to prescribe other things that may be done to obtain
information on the basis of which the first person may be satisfied that a prospective worker
would not be in breach of the work-related condition of their visa solely because of doing
the work for which they are referred. This provision complements new section 245APA,
which deals with circumstances in which information is unobtainable by accessing the
prescribed computer system.
263. The purpose of the amendment by item 18 is to recast and tighten the defence to the
established offence at current subsection 245AEA(3) for contravention of subsection
245AEA(1), which also operates as an exception to the related civil penalty provision at
subsection 245AEA(5). The amendment establishes a clear connection between current
section 245AEA, as an established offence and civil penalty under Subdivision C, and the
new civil penalty provisions at new sections 245AEC and 245AED. It reinforces the central
role of the prescribed computer system as the means by which a person is required to satisfy
themselves of a non-citizen's immigration status and work-related conditions when
allowing that non-citizen to work or referring that non-citizen for work.
264. The defence is designed to be sufficiently broad to cover the practices of individuals
and businesses that make genuine attempts to verify that a non-citizen is not working in
52
breach of a work-related condition of their visa, while ensuring the defence is centred on
use of the prescribed computer system. Regardless of whether the information is obtained
directly from the system by the first person, or by another person under an arrangement to
source the information, the onus is on the first person to be reasonably satisfied at the time
of referral, on the basis of that information, that the prospective worker would not be in
breach of the work-related condition of their visa solely because of doing the work for which
they are referred (per current paragraph 245AEA(1)(b)).
Item 19 After section 245AEB
265. This item inserts new sections 245AEC and 245AED after current section 245AEB.
New section 245AEC - Verifying permission to work--allowing non-citizens to begin work
266. New section 245AEC establishes a new statutory requirement that a person must not
allow a non-citizen to begin work unless the person has determined whether that non-citizen
would have the required permission to do that work.
267. The term required permission is defined in section 245APE to mean that a non-
citizen has, or would have, the required permission to do particular work if:
• the person is a lawful non-citizen; and
• the person is not, or would not be, in breach of any work-related condition to which
the visa held by the person is subject solely because of doing that work.
268. New paragraphs 245AEC(a) and (b) set out the means by which information may be
obtained for the purposes of determining this. This includes:
• by logging into and using the prescribed computer system to source the information
(new paragraph 245AEC(a)); or
• under an arrangement by which another person logs into and uses the prescribed
computer system to source the information (new paragraph 245AEC(b)).
269. Importantly, if a person is a required system user (within the meaning given by new
section 245APB), that person is not able to obtain the relevant information under an
arrangement of a kind described in new paragraph 245AEC(b). Where a person is a required
system user, the information must be obtained by the person logging into and using the
prescribed computer system to source the information. This requirement is subject to the
application of new section 245APA, which provides that information may be obtained by
other means (prescribed by regulations) if, on a particular occasion, information cannot be
sourced by logging into and using the prescribed computer system, due to circumstances
beyond the reasonable control of the person.
270. New section 245AEC is a civil penalty provision. A person who contravenes this
provision would be liable to a maximum civil penalty of 48 penalty units.
271. A note at the foot of Examples 1 and 2, which appear immediately below new section
245AEC, draws the reader's attention to the application of current section 486ZF of the
53
Migration Act to section 245AEC. Current section 486ZF provides that it is not necessary
to prove a person's state of mind in proceedings for a civil penalty order.
272. New section 245AEC establishes a positive obligation on a person (the first person)
to obtain information about a non-citizen's immigration status and any work-related
conditions from the prescribed computer system, before allowing that non-citizen to begin
work. If the information obtained under paragraph 245AEC(a) or (b) reasonably indicates
the non-citizen does not have the required permission, and the first person nonetheless
allows the non-citizen to work, this would not amount to a contravention of section 245AEC.
In this case, the first person has complied with the requirements of section 245AEC, but by
allowing the non-citizen to work without the required permission, would contravene either
section 245AB (allowing an unlawful non-citizen to work) or section 245AC (allowing a
non-citizen to work in breach of a work-related condition of their visa). In this way, new
section 245AEC is intended to complement the established offences and civil penalty
provisions in current sections 245AB and 245AC.
273. The purpose of new section 245AEC is to reinforce the importance of using the
prescribed computer system to determine whether a non-citizen worker would have the
required permission to do that work - before allowing the non-citizen to begin that work.
274. This provision is intended to complement the defences at subsections 245AB(2),
245AC(2), 245AE(2) and 245AEA(2), while also establishing an express legislative
requirement to use the prescribed computer system to obtain information before allowing a
non-citizen to begin work. Use of a prescribed computer system has been available as a
statutory defence to the offences in sections 245AB, 245AC, 245AE and 245AEA since
these provisions were inserted in the Migration Act by amendments by the Migration
Amendment (Employer Sanctions) Act 2007, which commenced on 19 August 2007.
275. VEVO is central to the Department's efforts to support employers, labour hire
intermediaries and others to determine whether a non-citizen is allowed to work. Introducing
new express statutory requirements to use the prescribed computer system (VEVO) when
allowing a non-citizen to begin work, or when referring a non-citizen for work, is intended
to ensure that employers, labour hire intermediaries are taking the necessary steps, not only
to protect migrant workers, but also themselves against the risk of committing an offence
against current sections 245AB, 245AC, 245AE and 245AEA.
Evidence in court proceedings - obtaining information from the prescribed computer system
276. Current section 271 sets out the things that are taken to be prima facie evidence of
certain matters for the purposes of migration proceedings. The term migration proceedings
is defined in current subsection 271(4) to mean:
• proceedings in a court (including criminal proceedings) under the Migration Act or
in relation to an offence a contravention of a civil penalty provision under the
Migration Act, or in relation to a deportation order; or
• proceedings in the AAT for the review of a decision under the Migration Act,
including a decision to make a deportation order; or
54
• proceedings in the Immigration Assessment Authority for the review of a fast-track
reviewable decision.
277. Relevantly, current paragraph 271(1)(m) provides that a certificate signed by an
officer (as defined in subsection 5(1) of the Migration Act) stating:
• whether or not a specified person used a specified computer system at a specified
time, or during a specified period, to obtain information about another specified
person; and
• if the specified computer system was so used - the information about the other
specified person that was provided by the system to the user at that time or during
that period;
is prima facie evidence of the matters stated in the certificate.
278. The purpose of this provision is to clarify that the use of a prescribed computer
system to verify whether a person holds a visa or holds a visa subject to a work-related
condition, and the information the system provided to the user about that person, is prima
facie evidence of the matters in the certificate.
279. The effect of this provision is that the Department, the ABF or another party is able
to rely on checks of the VEVO system, as the prescribed computer system, to submit to the
court, in proceedings, that a person did or did not verify the permission of a worker or a
prospective worker to work in Australia, and for this evidence to be taken as prima facie
evidence of the fact. Another party is able to rely on this evidence in the same way, obviating
the need to keep separate records of work entitlements checks undertaken via the prescribed
computer system. This evidence can be rebutted in court.
New section 245AED - Verifying permission to work--referring non-citizens for work
280. New section 245AED establishes a new statutory requirement that a person must not
refer a non-citizen for work unless the first person has determined whether the non-citizen,
as a prospective worker, would have the required permission to do that work.
281. New subsection 245AED(1) provides that section 245AED applies to a person (the
first person) who operates a service, whether for reward or otherwise, referring other
persons to third persons for work. This provision is intended to apply to labour hire
intermediaries, recruitment agencies, subcontractors and other persons operating a service
that refers a person to another person for work, where it is appropriate that the onus is on
the first person to determine whether a non-citizen would have the required permission to
work, before referring them to another person for work.
282. New subsection 245AED(2) provides that the first person must not refer a non-
citizen for work unless the first person has determined whether the non-citizen would have
the required permission to do that work. The term required permission is defined in section
245APE to mean that a non-citizen has, or would have, the required permission to do
particular work if:
• the person is a lawful non-citizen; and
55
• the person is not, or would not be, in breach of any work-related condition to which
the visa held by the person is subject solely because of doing that work.
283. New paragraphs 245AED(2)(a) and (b) set out the means by which information may
be obtained for the purposes of determining this. This includes:
• by logging into and using the prescribed computer system to source the information
(new paragraph 245AED(2)(a)); or
• under an arrangement by which another person logs into and uses the prescribed
computer system to source the information (new paragraph 245AED(2)(b)).
284. Importantly, if a person is a required system user (within the meaning given by new
section 245APB), that person is not able to obtain the relevant information under an
arrangement of a kind described in new paragraph 245AED(2)(b). Where a person is a
required system user, the information must be obtained by the person logging into and using
the prescribed computer system to source the information. This requirement is subject to the
application of new section 245APA, which provides that information may be obtained by
other means (prescribed by regulations) if, on a particular occasion, information cannot be
sourced by logging into and using the prescribed computer system, due to circumstances
beyond the reasonable control of the person.
285. New section 245AED is a civil penalty provision. A person who contravenes this
provision would be liable for a maximum civil penalty of 48 penalty units.
286. A note at the foot of Examples 1 and 2, which appear immediately below new section
245AED, draws the reader's attention to the application of current section 486ZF of the
Migration Act to section 245AED. Current section 486ZF provides that it is not necessary
to prove a person's state of mind in proceedings for a civil penalty order.
287. New section 245AED establishes a positive obligation on a person (the first person)
to obtain information about a non-citizen's immigration status and any work-related
conditions from the prescribed computer system, before referring that non-citizen for work.
If the information obtained under paragraph 245AED(2)(a) or (b) reasonably indicates the
non-citizen does not have the required permission, and the first person nonetheless refers
the non-citizen for work, this would not amount to a contravention of section 245AED. In
this case, the first person has complied with the requirements of section 245AED, but by
referring the non-citizen for work without the required permission, would contravene either
section 245AE (referring an unlawful non-citizen for work) or section 245AEA (referring a
non-citizen for work in breach of a work-related condition of their visa). In this way, new
section 245AED is intended to complement the established offences and civil penalty
provisions in current sections 245AE and 245AEA.
288. The purpose of new section 245AED is to reinforce the importance of using the
prescribed computer system to determine whether a non-citizen worker would have the
required permission to do that work - before allowing the non-citizen to begin that work.
289. This provision is intended to complement the defences at subsections 245AB(2),
245AC(2), 245AE(2) and 245AEA(2), while also establishing an express legislative
requirement to use the prescribed computer system to obtain information before allowing a
56
non-citizen to begin work. Use of a prescribed computer system has been available as a
statutory defence to the offences in sections 245AB, 245AC, 245AE and 245AEA since
these provisions were inserted in the Migration Act by amendments by the Migration
Amendment (Employer Sanctions) Act 2007, which commenced on 19 August 2007.
290. VEVO is central to the Department's efforts to support employers, labour hire
intermediaries and others to determine whether a non-citizen is allowed to work. Introducing
new express statutory requirements to use the prescribed computer system (VEVO) when
allowing a non-citizen to begin work, or when referring a non-citizen for work, is intended
to ensure that employers, labour hire intermediaries are taking the necessary steps, not only
to protect migrant workers, but also themselves against the risk of committing an offence
against current sections 245AB, 245AC, 245AE and 245AEA.
Item 20 At the end of Subdivision C of Division 12 of Part 2
291. This item inserts new sections 245APA, 245APB, 245APC, 245APD and 245APE
at the end of current Subdivision C of Division 12 of Part 2 of the Migration Act.
New section 245APA - Prescribed computer system--information unobtainable by
accessing the system
292. New section 245APA provides for alternative means by which a person may obtain
information from the prescribed computer system, where that information cannot be sourced
from the system due to circumstances beyond that person's reasonable control.
293. New subsection 245APA(2) provides that where the circumstances in subsection
245APA(1) apply, information may be obtained by doing one or more things prescribed by
regulations made for the purposes of subsection 245APA(2).
294. The purpose of new section 245APA is to ensure that in the event information is
unobtainable by accessing the prescribed computer system, there are alternative means of
obtaining the necessary information are available in the legislation.
295. This section contemplates that the prescribed system may be unavailable from time
to time, due to planned or unplanned outages. In the event this occurs at a time where a
person requires access to the system for the purposes of new section 245AEC or 245AED,
or for another purpose under Subdivision C, the Migration Regulations will prescribe
alternative means by which to obtain the relevant information on that occasion.
296. In addition to system outages, the Migration Regulations may also prescribe actions
to be taken where, on occasion, information concerning the immigration stats or work-
related conditions of certain visa holders is not available in the prescribed computer system.
In particular, this may arise in relation to some non-citizens on certain Act-based visas, such
as the absorbed person visa (taken to have been granted under section 34 of the Migration
Act) or some special purpose visas (taken to have been granted under section 33 of the
Migration Act).
New section 245APB - Prescribed computer system--meaning of required system user
297. New section 245APB establishes the meaning of required system user for the
purposes of Subdivision C as amended by the items in this Part.
57
298. It provides that a person is a required system user at any time if:
• the person has been a prohibited employer within the previous 12 months; or
• the person is included in a class that is determined by an instrument under new
section 245APC; or
• the person is declared under new section 245APD to be a required system user.
299. Subsection 5(1) of the Migration Act, as amended by item 7 in Part 2 of the Schedule
to the Bill, refers the reader to new section 245AYC for the meaning of the term prohibited
employer.
New section 245APC - Prescribed computer system--determination of required system
users by class
300. New subsection 245APC(1) establishes a new power for the Minister to determine a
class of persons for the purposes of paragraph 245APB(b) of the definition of required
system user. A determination under new subsection 245APC(1) is made by legislative
instrument.
301. New subsection 245APC(2) establishes a precondition to the exercise of the power
in new subsection 245APC(1). For the Minister to determine a class of persons for the
purposes of new paragraph 245APB(b), the Minister must first be satisfied that making the
determination is reasonably necessary to enhance the exclusive use of the prescribed
computer system to confirm that non-citizens allowed to work, or referred for work, by those
persons have the required permission to do that work.
302. New subsection 245APC(3) provides that section 42 of the Legislation Act applies
to an instrument made under new subsection 245APC(1). Section 42 of the Legislation Act
provides for the disallowance of legislative instruments, subject to section 44 of that Act.
The purpose of new subsection 245APC(3) is to provide that a legislative instrument made
under subsection 245APC(1) is disallowable, despite regulations made for the purposes of
paragraph 44(2)(b) of the Legislation Act.
303. The intention of new section 245APC is to provide a means by which the Minister
may determine a class of persons who would be precluded from relying on an arrangement
by which another person logs into and uses the prescribed computer system to source the
information on their behalf. The effect of this is that a person in such a class is required to
log into and use the prescribed computer system to source the information directly, for the
purposes of new sections 245AEC and 245AED, as well as the amended defences in
subsections 245AB(2), 245AC(2), 245AE(2) and 245AEA(2).
304. This provision may be used in circumstances where the Department or the ABF
identify systemic issues or trends of concern in a particular industry in relation to allowing
or referring non-citizens for work without the required permission. In order to address such
issues, it may be considered a necessary and proportionate response to impose a general
requirement for persons in that industry who are involved in allowing or referring non-
citizens for work to use the prescribed system directly, and to prevent them from relying on
a third-party arrangement to obtain the necessary information to confirm prospective
workers have the required permission.
58
305. This provision is also distinct from new section 245APD, under which the Minister
may declare a particular person to be a required system user for the purposes of new
paragraph 245APB(c). A declaration made under new section 245APD is an administrative
decision.
New section 245APD - Prescribed computer system--declaration of specific required
system users
306. New subsection 245APD(1) provides that the Minister may declare a person to be a
required system user for the purposes of new paragraph 245APB(c). This must be done by
written notice to the person.
307. New subsection 245APD(2) establishes a criterion to be satisfied before making a
declaration under new subsection 245APD(1) to declare a person to be a required system
user. If a particular person has a history of non-compliance with the requirements of
Subdivision C, it may be considered reasonably necessary to require that person to log into
and use the prescribed computer system directly, instead of relying on other arrangements
to obtain information from the system.
308. New subsection 245APD(3) provides that a declaration given to a person under
subsection 245APD(1) has effect from a day specified in the declaration, but that this day
can be no sooner than 10 days after the day the declaration is given. The declaration must
also specify a period after that day, of no longer than 12 months, for which the declaration
remains in effect. Under paragraph 245APD(3)(c), a declaration given under subsection
245APD(1) may be renewed, or further renewed, for a period on each occasion of no longer
than 12 months (unless sooner revoked). Written notice of the renewal must be given to the
person.
309. New subsection 245APD(4) provides that if the Minister renews (or further renews)
a declaration by notice to a person under paragraph 245APD(3)(c), the notice of renewal
must be given to the person no sooner than 10 days before the declaration would otherwise
stop having effect. Under paragraph 245APD(4)(b), in order to renew the declaration, the
Minister must also be satisfied that subsection 245APD(2) continues to apply in relation to
the person.
310. New subsection 245APD(5) provides that applications may be made to the AAT for
review of either:
• a decision under subsection 245APD(1) to declare a person to be a required system
user; or
• a decision under paragraph 245APD(3)(c) to renew or to further renew a declaration
of a person as a required system user.
311. A note immediately below this subsection draws the reader's attention to section
27A of the AAT Act, which requires that people whose interests are affected by the
Minister's decision be given notice of their rights to seek review of the decision.
59
New section 245APE - Work by non-citizens--further definitions
312. New section 245APE provides definitions for the new expression logging into, and
the terms prescribed computer system and required permission, for the purposes
Subdivision C, as amended by the items in this Part.
The meaning of 'logging into'
313. The expression logging into is defined, in the context of the prescribed computer
system, to mean that a person accesses the system under an account maintained by or for
that person.
314. For the purposes of new sections 245AEC and 245AED, and Subdivision C more
broadly, this term contemplates that the prescribed computer system will require a person
to register as a user of that system, and establish an account with unique credentials for the
purposes of accessing and obtaining information from the system. This may be by way of a
user logon and password, or other secure means.
315. The definition provides that the account may be maintained either by or for the
person. In the context of Subdivision C, this definition contemplates that while some users
of the prescribed system are individuals, others are not. For example, in some small
businesses, the owner of the business may maintain an individual account in the prescribed
system and conduct checks of that system directly before engaging a new non-citizen
employee. Where the person is a larger corporation, or a business that offers a service that
engages or refers large numbers of non-citizens to another person for work on a labour hire
basis, this person may have arrangements in place whereby the required checks in the
prescribed computer system are undertaken by an employee of the person, for example, in
the human resources department - that is, where the account is maintained for the person,
as provided for in the definition.
316. This definition is intended to provide appropriate flexibility in the legislation, in
relation to the arrangements that an employer or another party subject to Subdivision C -
without subverting the requirement to use the prescribed computer system.
The meaning of 'prescribed computer system'
317. The term prescribed computer system is defined to mean the computer system
prescribed by the regulations for the purposes of this definition. It is intended that the
computer system that will be prescribed by the regulations is the Visa Entitlement
Verification Online (VEVO) system, which is a computer system that a person can use to
verify, among other things, whether a non-citizen holds a visa that is in effect, or whether a
non-citizen holds a visa with a condition or conditions which prohibit or restrict them from
working in Australia.
The meaning of 'required permission'
318. The term required permission provides that a person has, or would have, the
required permission to do particular work if:
• the person is a lawful non-citizen; and
60
• the person is not, or would not be, in breach of any work-related condition to which
the visa held by the person is subject solely because of doing that work.
319. This definition is particularly relevant to new sections 245AEC and 245AED, which
relate to verifying permission to work before allowing non-citizens to begin work, or
referring non-citizens for work. A person who is subject to either of these sections is
required to determine whether a non-citizen worker would have the required permission to
work.
Division 2 Application
Item 21 Application of amendments
320. This item provides that the amendments of the Migration Act by this Part apply in
relation to a person who is allowed to begin work, or a person referred for work, on or after
the commencement of this Schedule.
321. This provision ensures that the new civil penalty provisions introduced at sections
245AEC and 245AED are wholly prospective in their application. Importantly, this does not
affect the established requirements under current Subdivision C on a person who allows a
non-citizen to work, or refers a non-citizen for work, to ensure that the non-citizen is not an
unlawful non-citizen, and would not be in breach of work-related conditions of their visa as
a result of the work.
61
Part 4 Aligning and increasing penalties for work-related breaches
Migration Act 1958
322. The amendments of the Migration Act by items in this Part of the Schedule to the
Bill increase the pecuniary penalties that apply in relation to the various work-related
offences and work-related provisions in the Migration Act, as well as the civil penalty
provisions under current section 140Q in relation to sponsorship obligations for an approved
work sponsor. The increases align these penalties with the pecuniary penalties available in
relation to the offences and civil penalty provisions under current sections 245AR and
245AS of the Migration Act, which deal with giving or receiving a benefit in return for the
occurrence of a sponsorship-related event.
323. The AGD Framing Guide has been considered in relation to the amendments by the
items in this Part, particularly the guidance in relation to setting an appropriate penalty.
Relevantly, the AGD Framing Guide observes that "[a] maximum penalty should aim to
provide an effective deterrent to the commission of the offence, and should reflect the
seriousness of the offence within the relevant legislative scheme. A higher maximum
penalty will be justified where there are strong incentives to commit the offence, or where
the consequences of the commission of the offence are particularly dangerous or damaging."
324. Increasing the available pecuniary penalties in the provisions amended by the items
in this Part is intended to send a strong message to employers and other persons involved in
the employment of migrant workers, that any contravention of the provisions of the
Migration Act relating to migrant workers constitutes a serious breach.
325. The increases to the maximum pecuniary penalties for both criminal offences and
civil penalty provisions by items in this Part are therefore more appropriate and
proportionate than under the current penalty regime. The increased penalties better reflect
the seriousness of illegal work practices and the exploitation of migrant workers, and are
intended to allow for more appropriate deterrence and punishment of wilful and serious
offending. The amendments increase the maximum pecuniary penalties available to reflect
the gains that individuals and businesses might obtain, or seek to obtain, from engaging in
conduct that contravenes relevant provisions of the Migration Act, or which is an offence
against the Act.
326. For pecuniary penalties to have a deterrent effect, they must be set at a level that
actually deters people from contravening and offending. These increased penalties reflect
the severity of the impact of a contravention on the individual migrant worker directly
affected by that conduct, but also the significant damage that the actions of unscrupulous
employers or labour hire intermediaries can have on visa program integrity and Australia's
reputation as a destination of choice for prospective migrant workers. The amendments by
items in this Part demonstrate that the Government considers all contraventions of
provisions relating to the employment of non-citizens to be equally serious.
62
Increases to penalty units for civil penalties
327. Table 1.1 below sets out a comparison of the current maximum penalty units and the
new maximum penalty units under the various work-related provisions in Subdivision C of
Division 12 of Part 2 of the Migration Act, as amended by items in this Part. This table also
sets out the current and new penalty units under subsections 140Q(1) and (2) of the
Migration Act, as amended. Subsections 140Q(1) and (2) are civil penalty provisions in
relation to failing to satisfy sponsorship obligations.
Increases to pecuniary penalties in relation to specified civil penalties under the
Migration Act
Table 1.1 - civil penalty Current maximum New maximum Brief description
provisions where the penalty units penalty units
maximum pecuniary
penalty has been
increased
140Q(1) 60 approved work sponsor failing to satisfy
- 240 sponsorship
obligations
other - 60*
140Q(2) 60 approved work sponsor failing to satisfy
- 240 sponsorship
obligations (party to
other - 60*
a work agreement)
245AB(5) 90 240 allowing an unlawful
non-citizen to work
245AC(5) 90 240 allowing a lawful
non-citizen to work
in breach of a
work-related
condition
245AE(5) 90 240 referring an unlawful
non-citizen for work
245AEA(5) 90 240 referring a lawful
non-citizen for work
in breach of a
work-related
condition
*Note: While the pecuniary penalty for failing to meet a sponsorship obligation under
subsections 140Q(1) and (2) is increased to 240 penalty units for an approved work sponsor, the
penalty remains 60 penalty units for any other case. The Sponsorship Framework under the
Migration Act also extends to family sponsors, who are outside the scope of these amendments.
63
328. For clarity, Table 1.1 does not include the amendment in relation to current
subsection 245AK(2) by item 35 in this Part. This is a technical amendment, to ensure that
new subsection 245AK(2) is consistent with current drafting practice. It does not result in a
change in the penalty units specified under this civil penalty provision.
Work-related offences - changes to penalties and increases to penalty units
329. The amendments by items in this Part also increase the pecuniary penalties available
for an offence against any of the work-related offences under the Migration Act. These
increases are summarised in Table 1.2 below.
Increases to pecuniary penalties for work-related offences under the Migration Act
Table 1.2 - offences Current maximum New maximum Brief description
where the maximum penalty penalty
penalty has been
increased
245AB(3) 2 years imprisonment 2 years imprisonment allowing an unlawful
or 360 penalty units non-citizen to work
or both
245AC(3) 2 years imprisonment 2 years imprisonment allowing a lawful
or 360 penalty units non-citizen to work
or both in breach of a
work-related
condition
245AD(1) and (2) 5 years imprisonment 5 years imprisonment aggravated offences
or 360 penalty units if a person allows, or
or both continues to allow,
another person to
work
245AE(3) 2 years imprisonment 2 years imprisonment referring an unlawful
or 360 penalty units non-citizen for work
or both
245AEA(3) 2 years imprisonment 2 years imprisonment referring a lawful
or 360 penalty units non-citizen for work
or both in breach of a
work-related
condition
245AEB(1) and (2) 5 years imprisonment 5 years imprisonment aggravated offences
or 360 penalty units if a person refers
or both another person to a
third person for work
64
Item 22 Subsections 140Q(1) and (2) (penalty)
330. This item repeals the civil penalty under each of subsections 140Q(1) and (2), and
substitutes a new civil penalty. As amended, a person who contravenes either subsection
140Q(1) or (2) is liable to a penalty of 240 penalty units if that person is an approved work
sponsor, and 60 penalty units in any other case. The term approved work sponsor is
relevantly defined under current subsection 5(1) of the Migration Act.
331. Current subsections 140Q(1) and 140Q(2) of the Migration Act are civil penalty
provisions that apply if a person has failed to satisfy applicable sponsorship obligations. If
a person contravenes current subsection 140Q(1) or 140Q(2), they are liable to a civil
penalty of 60 penalty units.
332. A person contravenes current subsection 140Q(1) if:
• the regulations (prescribed under current section 140H) 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.
333. A person contravenes current subsection 140Q(2) if:
• the person (other than a Minister) is a party to a work agreement; 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.
334. The increased pecuniary penalty in relation to approved work sponsors ensures
alignment across the civil penalty provisions relevant to employers and other persons
involved in the employment of non-citizens. The increased penalty is proportionate to the
seriousness of failing to meet sponsorship obligations as an approved work sponsor, and is
intended to deter non-compliance with provisions of the Migration Act that are intended to
protect non-citizens working in Australia.
335. As amended, the civil penalties under subsections 140Q(1) and (2) differentiate the
civil penalty available in relation to an approved work sponsor from other cases. While the
pecuniary penalty for failing to meet a sponsorship obligation under subsections 140Q(1)
and (2) is increased to 240 penalty units for an approved work sponsor, the penalty remains
at 60 penalty units for any other case. This ensures that the amendments are appropriately
targeted, noting the Sponsorship Framework in the Migration Act also extends to family
sponsors, who are outside the scope of the amendments of the Migration Act by the Schedule
to this Bill.
65
Item 23 Subsection 245AB(3)
336. This item repeals the current offence provision at subsection 245AB(3) of the
Migration Act, and substitutes a new offence provision, with an increased penalty, as new
subsection 245AB(3).
337. Current subsection 245AB(1) provides that a person (the first person) contravenes
this subsection if:
• the first person allows, or continues to allow, another person (the worker) to work;
and;
• the worker is an unlawful non-citizen.
338. Current subsection 245AB(3) provides that a person commits an offence if the
person contravenes current subsection 245AB(1). It further provides that the physical
elements of that offence are set out in current subsection 245AB(1). The maximum penalty
for an offence under current subsection 245AB(3) is 2 years imprisonment.
339. New subsection 245AB(3) is equivalent in effect to current subsection 245AB(3),
aside from the penalty. The penalty under new subsection 245AB(3) provides that the new
maximum penalty for an offence under new subsection 245AB(3) is 2 years imprisonment,
or 360 penalty units, or both.
340. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty units in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
341. Subsection 4B(2) of the Crimes Act provides that where a natural person is convicted
of an offence against a law of the Commonwealth punishable by imprisonment only, the
court may, if the contrary intention does not appear and the court thinks it appropriate in all
the circumstances of the case, impose, instead of, or in addition to, a penalty of
imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated
using the formula (term of imprisonment x 5), where the 'term of imprisonment' is the
maximum term of imprisonment, expressed in months, by which the offence is punishable.
342. Under current subsection 245AB(3), the maximum pecuniary penalty available on
conviction for an offence against subsection 245AB(1), as calculated under subsection
4B(2) of the Crimes Act, would be 120 penalty units.
343. The maximum pecuniary penalty of 360 penalty units under new subsection
245AB(3) is set substantially higher than the standard penalty unit/imprisonment ratio
provided for in section 4B of the Crimes Act. Given the nature of the conduct covered by
section 245AB as amended, it is appropriate that the pecuniary penalty available for the
offence is set at the same amount as for current section 245AR, particularly where a lower
pecuniary penalty may be perceived as able to be offset against the potential unlawful gains
from committing the offence. This amendment is intended to send a clear signal that
offences against section 245AB as amended are viewed seriously, and that an offence
against section 245AB warrants a significant penalty.
66
344. The note to new subsection 245AB(3) advises that in accordance with subsection
13.3(3) of the Criminal Code, a defendant bears the evidential burden in relation to proving
the matter in subsection 245AB(2) (as amended by item 15 in Part 3 of the Schedule to the
Bill).
Item 24 Subsection 245AB(5)
345. This item repeals the civil penalty provision at current subsection 245AB(5) of the
Migration Act, and substitutes a new civil penalty provision, with an increased civil penalty,
as new subsection 245AB(5).
346. Current subsection 245AB(5) provides that a person is liable to a civil penalty if the
person contravenes current subsection 245AB(1). Under current subsection 245AB(5), the
maximum civil penalty for contravention of that provision is 90 penalty units.
347. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty unit in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
348. This penalty must also be read with current paragraph 486R(5)(a) of the Migration
Act, which provides that the pecuniary penalty for a contravention of a civil penalty
provision must not be more than five times the amount of the pecuniary penalty specified
for the civil penalty provision, if the person is a body corporate.
349. This penalty must also be read with subsection 486R(6) of the Migration Act, which
provides that in determining the amount of the pecuniary penalty, the court must take into
account all relevant matters, including the matters listed in that subsection.
350. The note to new subsection 245AB(5) provides that it is not necessary to prove a
person's state of mind in proceedings for a civil penalty order and refers the reader to section
486ZF of the Migration Act. Current section 486ZF provides that in proceedings for a civil
penalty order against a person for a contravention of a civil penalty provision, (other than
subsection 245AK(2)), it is not necessary to prove the person's intention, knowledge,
recklessness, negligence or any other state of mind of the person.
351. The effect of this note is to clarify that it is sufficient to establish that a person
contravened new subsection 245AB(1) by allowing, or continuing to allow, an unlawful
non-citizen to work. This is clearly distinguished from the requirement to prove the fault
elements of knowledge or recklessness in relation to paragraph 245AB(1)(b) in a criminal
offence.
352. This means that a person is liable to a civil penalty under new subsection 245AB(5)
without knowing or being reckless as to whether a worker is an unlawful non-citizen, if they
allow or continue to allow that worker to work. The application of established non-fault
civil penalties in relation to contravention of work-related provisions reflects the
Government's determination to address the problem of the misuse of the temporary
migration program through illegal work hire practices and the exploitation of migrant
workers.
67
Item 25 Subsection 245AC(3)
353. This item repeals the offence provision at current subsection 245AC(3) of the
Migration Act, and substitutes a new offence provision and penalty, as new subsection
245AC(3).
354. Current section 245AC of the Migration Act deals with allowing a lawful non-citizen
to work in breach of a work-related condition. Current subsection 245AC(1) provides that
a person (the first person) contravenes this subsection if:
• the first person allows, or continues to allow, another person (the worker) to work;
and
• the worker is a lawful non-citizen; and
• the worker holds a visa that is subject to a work-related condition; and
• the worker is in breach of the work-related condition solely because of doing the
work allowed by the first person.
355. Current subsection 245AC(3) provides that a person commits an offence if the
person contravenes current subsection 245AC(1). It further provides that the physical
elements of that offence are set out in current subsection 245AC(1). The maximum penalty
for an offence under current subsection 245AC(3) is 2 years imprisonment.
356. New subsection 245AC(3) is equivalent in effect to current subsection 245AC(3),
aside from the penalty. The penalty under new subsection 245AC(3) provides that the new
maximum penalty for an offence under new subsection 245AC(3) is 2 years imprisonment,
or 360 penalty units, or both.
357. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty unit in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
358. This penalty must also be read with subsection 4B(2) of the Crimes Act. Subsection
4B(2) of the Crimes Act provides that where a natural person is convicted of an offence
against a law of the Commonwealth punishable by imprisonment only, the court may, if the
contrary intention does not appear and the court thinks it appropriate in all the circumstances
of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary
penalty not exceeding the number of penalty units calculated using the formula (term of
imprisonment x 5), where the 'term of imprisonment' is the maximum term of
imprisonment, expressed in months, by which the offence is punishable.
359. Under current subsection 245AC(3), the maximum pecuniary penalty available on
conviction for an offence against subsection 245AC(1), as calculated under subsection
4B(2) of the Crimes Act, would be 120 penalty units.
68
360. The maximum pecuniary penalty of 360 penalty units under new subsection
245AC(3) is set substantially higher than the standard penalty unit/imprisonment ratio
provided for in section 4B of the Crimes Act. Given the nature of the conduct covered by
section 245AC as amended, it is appropriate that the pecuniary penalty available for the
offence is set at the same amount as for current section 245AR, particularly where a lower
pecuniary penalty may be perceived as able to be offset against the potential unlawful gains
from committing the offence. This amendment is intended to send a clear signal that
offences against section 245AC as amended are viewed seriously, and that an offence
against section 245AC warrants a significant penalty.
361. The note to new subsection 245AC(3) advises that in accordance with subsection
13.3(3) of the Criminal Code, a defendant bears the evidential burden in relation to proving
the matter in subsection 245AC(2) (as amended by item 16 in Part 3 of the Schedule to the
Bill).
Item 26 Subsection 245AC(5)
362. This item repeals the civil penalty provision at current subsection 245AC(5) of the
Migration Act, and substitutes a new civil penalty provision, with an increased civil penalty,
as new subsection 245AC(5).
363. Current section 245AC of the Migration Act deals with allowing a lawful non-citizen
to work in breach of a work-related condition. Current subsection 245AC(1) provides that
a person (the first person) contravenes this subsection if:
• the first person allows, or continues to allow, another person (the worker) to work;
and
• the worker is a lawful non-citizen; and
• the worker holds a visa that is subject to a work-related condition; and
• the worker is in breach of the work-related condition solely because of doing the
work allowed by the first person.
364. Current subsection 245AC(5) provides that a person is liable to a civil penalty if the
person contravenes current subsection 245AC(1). The maximum civil penalty for
contravention of that provision is 90 penalty units.
365. New subsection 245AC(5) is equivalent in effect to current subsection 245AC(5),
aside from the penalty. Under new subsection 245AC(5), the maximum civil penalty for
which a person is liable if the person contravenes current subsection 245AC(1) is 240
penalty units.
366. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty unit in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
69
367. This penalty must also be read with current paragraph 486R(5)(a) of the Migration
Act, which provides that the pecuniary penalty for a contravention of a civil penalty
provision must not be more than five times the amount of the pecuniary penalty specified
for the civil penalty provision, if the person is a body corporate.
368. This penalty must also be read with current subsection 486R(6) of the Migration Act,
which provides that in determining the amount of the pecuniary penalty, the court must take
into account all relevant matters, including the matters listed in that subsection.
369. The note to new subsection 245AC(5) provides that it is not necessary to prove a
person's state of mind in proceedings for a civil penalty order and refers the reader to section
486ZF of the Migration Act. Current section 486ZF provides that in proceedings for a civil
penalty order against a person for a contravention of a civil penalty provision, (other than
subsection 245AK(2)), it is not necessary to prove the person's intention, knowledge,
recklessness, negligence or any other state of mind of the person.
370. The effect of this note is to clarify that it is sufficient to establish that a person
contravened subsection 245AC(1) by allowing, or continuing to allow, an unlawful non-
citizen to work. This is clearly distinguished from the requirement to prove the fault
elements of knowledge or recklessness in relation to paragraphs 245AC(1)(b), (c) and (d) in
a criminal offence.
371. This means that a person is liable to a civil penalty under new subsection 245AC(5)
without knowing or being reckless as to whether a worker is in breach of the work-related
condition of their work solely because of doing the work allowed by the first person, if the
first person allows or continues to allow that worker to work. The application of established
non-fault civil penalties in relation to contravention of work-related provisions reflects the
Government's determination to address the problem of the misuse of the temporary
migration program through illegal work hire practices and the exploitation of migrant
workers.
Item 27 Subsections 245AD(1) and (2) (penalty)
372. This item repeals the penalty under current subsections 245AD(1) and (2) and
substitutes a new penalty.
373. Current section 245AD of the Migration Act creates aggravated offences if a person
allows, or continues to allow, another person to work.
374. The current penalty for an offence against subsection 245AD(1) or (2) is five years
imprisonment. The amendments by item 27 replace this penalty with a new penalty of five
years imprisonment, or 360 penalty units, or both.
375. A note appears above the penalty. The note directs the reader to current section
245AH of the Migration Act in relation to when a person will be exploited, within the
meaning given by that section.
376. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty unit in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
70
377. This penalty must also be read with subsection 4B(2) of the Crimes Act. Subsection
4B(2) of the Crimes Act provides that where a natural person is convicted of an offence
against a law of the Commonwealth punishable by imprisonment only, the court may, if the
contrary intention does not appear and the court thinks it appropriate in all the circumstances
of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary
penalty not exceeding the number of penalty units calculated using the formula (term of
imprisonment x 5), where the 'term of imprisonment' is the maximum term of imprisonment,
expressed in months, by which the offence is punishable.
378. Under current subsections 245AD(1) and (2), the maximum pecuniary penalty
available on conviction for an offence against either subsection, as calculated under
subsection 4B(2) of the Crimes Act, would be 300 penalty units.
379. The maximum pecuniary penalty of 360 penalty units under the new penalties under
each subsection is set substantially higher than the standard penalty unit/imprisonment ratio
provided for in section 4B of the Crimes Act. Given the nature of the conduct covered by
section 245AD, it is appropriate that the pecuniary penalty available for the offence is set at
the same amount as for current section 245AR, particularly where a lower pecuniary penalty
may be perceived as able to be offset against the potential unlawful gains from committing
the offence. This amendment is intended to send a clear signal that offences against section
245AD as amended are viewed seriously, and that an offence against section 245AD
warrants a significant penalty.
Item 28 Subsections 245AD(1) and (2) (note)
380. This item amends current subsections 245AD(1) and (2) by repealing the note at the
foot of each subsection. This amendment is consequential to the amendment of the
subsection 245AD(1) and (2) penalties by item 27, whereby the note in relation to section
245AH now appears at the foot of the subsection, above the penalty.
381. This amendment reflects the current drafting convention in relation to penalty
provisions, which requires a note or example to a subsection or section that has a penalty at
its foot to appear before the penalty rather than after it.
Item 29 Subsection 245AE(3)
382. This item repeals the offence provision at current subsection 245AE(3) of the
Migration Act, and substitutes a new offence provision and penalty, as new subsection
245AE(3).
383. Current section 245AE of the Migration Act deals with referring an unlawful non-
citizen for work. Current subsection 245AE(1) provides that a person (the first person)
contravenes this subsection if:
• the first person operates a service, whether for reward or otherwise, referring other
persons to third persons for work; and
• the first person refers another person (the prospective worker) to a third person for
work; and
• at the time of the referral, the prospective worker is an unlawful non-citizen.
71
384. Current subsection 245AE(3) provides that a person commits an offence if the
person contravenes current subsection 245AE(1). It further provides that the physical
elements of that offence are set out in current subsection 245AE(1). The maximum penalty
for an offence under current subsection 245AE(3) is 2 years imprisonment.
385. New subsection 245AE(3) is equivalent in effect to current subsection 245AE(3),
aside from the penalty. The penalty under new subsection 245AE(3) provides that the new
maximum penalty for an offence under new subsection 245AE(3) is imprisonment for 2
years, or 360 penalty units, or both.
386. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty unit in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
387. This penalty must also be read with subsection 4B(2) of the Crimes Act. Subsection
4B(2) of the Crimes Act provides that where a natural person is convicted of an offence
against a law of the Commonwealth punishable by imprisonment only, the court may, if the
contrary intention does not appear and the court thinks it appropriate in all the circumstances
of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary
penalty not exceeding the number of penalty units calculated using the formula (term of
imprisonment x 5), where the 'term of imprisonment' is the maximum term of
imprisonment, expressed in months, by which the offence is punishable.
388. Under current subsection 245AE(3), the maximum pecuniary penalty available on
conviction for an offence against subsection 245AE(1), as calculated under subsection
4B(2) of the Crimes Act, would be 120 penalty units.
389. The maximum pecuniary penalty of 360 penalty units under new subsection
245AE(3) is set substantially higher than the standard penalty unit/imprisonment ratio
provided for in section 4B of the Crimes Act. Given the nature of the conduct covered by
section 245AE, it is appropriate that the pecuniary penalty available for the offence is set at
the same amount as for current section 245AR, particularly where a lower pecuniary penalty
may be perceived as able to be offset against the potential unlawful gains from committing
the offence. This amendment is intended to send a clear signal that offences against section
245AE as amended are viewed seriously, and that an offence against section 245AE
warrants a significant penalty.
390. The note to new subsection 245AE(3) advises that in accordance with subsection
13.3(3) of the Criminal Code, a defendant bears the evidential burden in relation to proving
the matter in subsection 245AE(2) (as amended by item 16 in Part 3 of the Schedule to the
Bill).
Item 30 Subsection 245AE(5)
391. This item repeals the civil penalty provision at current subsection 245AE(5) of the
Migration Act and substitutes a new civil penalty provision as new subsection 245AE(5).
392. Current section 245AE of the Migration Act deals with referring an unlawful non-
citizen for work. Current subsection 245AE(1) provides that a person (the first person)
contravenes this subsection if:
72
• the first person operates a service, whether for reward or otherwise, referring other
persons to third persons for work; and
• the first person refers another person (the prospective worker) to a third person for
work; and
• at the time of the referral, the prospective worker is an unlawful non-citizen.
393. Current subsection 245AE(5) provides that a person is liable to a civil penalty if the
person contravenes subsection 245AE(1). The maximum civil penalty for contravention of
that provision is 90 penalty units.
394. New subsection 245AE(5) is equivalent in effect to current subsection 245AE(5),
aside from the penalty. Under new subsection 245AE(5), the maximum civil penalty for
which a person is liable if the person contravenes current subsection 245AE(1) is 240
penalty units.
395. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty unit in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
396. This penalty must also be read with current paragraph 486R(5)(a) of the Migration
Act, which provides that the pecuniary penalty for a contravention of a civil penalty
provision must not be more than five times the amount of the pecuniary penalty specified
for the civil penalty provision, if the person is a body corporate.
397. This penalty must also be read with current subsection 486R(6) of the Migration Act,
which provides that in determining the amount of the pecuniary penalty, the court must take
into account all relevant matters, including the matters listed in that subsection.
398. The note to new subsection 245AE(5) provides that it is not necessary to prove a
person's state of mind in proceedings for a civil penalty order and refers the reader to section
486ZF of the Migration Act. Current section 486ZF provides that in proceedings for a civil
penalty order against a person for a contravention of a civil penalty provision, (other than
subsection 245AK(2)), it is not necessary to prove the person's intention, knowledge,
recklessness, negligence or any other state of mind of the person.
399. The effect of this note is to clarify that it is sufficient to establish that a person
contravened subsection 245AE(1) by allowing, or continuing to allow, an unlawful non-
citizen to work. This is clearly distinguished from the requirement to prove the fault
elements of knowledge or recklessness in relation to paragraph 245AE(1)(c) in a criminal
offence.
400. This means that a person is liable to a civil penalty under new subsection 245AE(5)
without knowing or being reckless as to whether a worker is in breach of the work-related
condition of their work solely because of doing the work allowed by the first person, if the
first person allows or continues to allow that worker to work. The application of established
non-fault civil penalties in relation to contravention of work-related provisions reflects the
Government's determination to address the problem of illegal work hire practices and the
exploitation of migrant workers.
73
Item 31 Subsection 245AEA(3)
401. This item repeals the offence provision at current subsection 245AEA(3) of the
Migration Act and substitutes a new offence provision as new subsection 245AEA(3).
402. Current section 245AEA deals with referring a lawful non-citizen for work in breach
of a work-related condition. Current subsection 245AEA(1) provides that a person (the first
person) contravenes this subsection if:
• the first person operates a service, whether for reward or otherwise, referring other
persons to third persons for work; and
• the first person refers another person (the prospective worker) to a third person for
work; and
• at the time of the referral:
- the prospective worker is a lawful non-citizen; and
- the prospective worker holds a visa that is subject to a work-related
condition; and
- the prospective worker will be in breach of the work-related condition
solely because of doing the work in relation to which they are referred.
403. Current subsection 245AEA(3) provides that a person commits an offence if the
person contravenes current subsection 245AEA(1). It further provides that the physical
elements of that offence are set out in current subsection 245AEA(1). The maximum penalty
for an offence under current subsection 245AEA(3) is 2 years imprisonment.
404. New subsection 245AEA(3) is equivalent in effect to current subsection 245AE(3),
aside from the penalty. The penalty under new subsection 245AEA(3) provides that the new
maximum penalty for an offence under new subsection 245AEA(3) is 2 years imprisonment,
or 360 penalty units, or both.
405. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty unit in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
406. This penalty must also be read with subsection 4B(2) of the Crimes Act. Subsection
4B(2) of the Crimes Act provides that where a natural person is convicted of an offence
against a law of the Commonwealth punishable by imprisonment only, the court may, if the
contrary intention does not appear and the court thinks it appropriate in all the circumstances
of the case, impose, instead of, or in addition to, a penalty of imprisonment, a pecuniary
penalty not exceeding the number of penalty units calculated using the formula (term of
imprisonment x 5), where the 'term of imprisonment' is the maximum term of imprisonment,
expressed in months, by which the offence is punishable.
407. Under current subsection 245AEA(3), the maximum pecuniary penalty available on
conviction for an offence against subsection 245AEA(1), as calculated under subsection
4B(2) of the Crimes Act, would be 120 penalty units.
74
408. The maximum pecuniary penalty of 360 penalty units under new subsection
245AEA(3) is set substantially higher than the standard penalty unit/imprisonment ratio
provided for in section 4B of the Crimes Act. Given the nature of the conduct covered by
section 245AE, it is appropriate that the pecuniary penalty available for the offence is set at
the same amount as for current section 245AR, particularly where a lower pecuniary penalty
may be perceived as able to be offset against the potential unlawful gains from committing
the offence. This amendment is intended to send a clear signal that offences against section
245AEA as amended are viewed seriously, and that an offence against section 245AEA
warrants a significant penalty.
409. The note to new subsection 245AEA(3) advises that in accordance with subsection
13.3(3) of the Criminal Code, a defendant bears the evidential burden in relation to proving
the matter in subsection 245AEA(2) (as amended by item 18 in Part 3 of the Schedule to the
Bill).
Item 32 Subsection 245AEA(5)
410. This item repeals the civil penalty provision in current subsection 245AEA(5) of the
Migration Act and substitutes a new civil penalty provision, in new subsection 245AEA(5).
411. Current section 245AEA deals with referring a lawful non-citizen for work in breach
of a work-related condition. Current subsection 245AEA(1) provides that a person (the first
person) contravenes this subsection if:
• the first person operates a service, whether for reward or otherwise, referring other
persons to third persons for work; and
• the first person refers another person (the prospective worker) to a third person for
work; and
• at the time of the referral:
- the prospective worker is a lawful non-citizen; and
- the prospective worker holds a visa that is subject to a work-related
condition; and
- the prospective worker will be in breach of the work-related condition
solely because of doing the work in relation to which they are referred.
412. New subsection 245AEA(5) is equivalent in effect to current subsection 245AEA(5),
aside from the penalty. Under new subsection 245AEA(5), the maximum civil penalty for
which a person is liable if the person contravenes current subsection 245AEA(1) is 240
penalty units.
413. This penalty must be read with section 4AA of the Crimes Act. Subsection 4AA(1)
provides the meaning of penalty unit in a law of the Commonwealth or a Territory
Ordinance, unless the contrary intention appears. Subsection 4AA(1) provides the amount
of a penalty unit expressed in dollars, subject to indexation under subsection 4AA(3).
75
414. This penalty must also be read with current paragraph 486R(5)(a) of the Migration
Act, which provides that the pecuniary penalty for a contravention of a civil penalty
provision must not be more than five times the amount of the pecuniary penalty specified
for the civil penalty provision, if the person is a body corporate.
415. This penalty must also be read with current subsection 486R(6) of the Migration Act,
which provides that in determining the amount of the pecuniary penalty, the court must take
into account all relevant matters, including the matters listed in that subsection.
416. The note to new subsection 245AEA(5) provides that it is not necessary to prove a
person's state of mind in proceedings for a civil penalty order and refers the reader to section
486ZF of the Migration Act. Current section 486ZF provides that in proceedings for a civil
penalty order against a person for a contravention of a civil penalty provision, (other than
subsection 245AK(2)), it is not necessary to prove the person's intention, knowledge,
recklessness, negligence or any other state of mind of the person.
417. The effect of this note is to clarify that it is sufficient to establish that a person
contravened subsection 245AEA(1) by allowing, or continuing to allow, an unlawful non-
citizen to work. This is clearly distinguished from the requirement to prove the fault
elements of knowledge or recklessness in relation to paragraph 245AEA(1)(c) in a criminal
offence.
418. This means that a person is liable to a civil penalty under new subsection 245AEA(5)
without knowing or being reckless as to whether at the time of the referral:
• the prospective worker is a lawful non-citizen; and
• the prospective worker holds a visa that is subject to a work-related condition; and
• the prospective worker will be in breach of the work-related condition solely because
of doing the work in relation to which they are referred.
419. The application of established non-fault civil penalties in relation to contravention
of work-related provisions reflects the Government's determination to address the problem
of illegal work hire practices and the exploitation of migrant workers.
Item 33 Subsections 245AEB(1) and (2) (penalty)
420. This item repeals the current penalty at the foot of current subsections 245AEB(1)
and (2), and substitutes a new penalty that provides for a sentence of up to five years'
imprisonment, or 360 penalty units, or both.
421. This item also inserts a note at the foot of each subsection, above the penalty. The
note directs the reader to current section 245AH of the Migration Act in relation to when a
person will be exploited, within the meaning given by that section.
422. Current subsections 245AEB(1) and (2) of the Migration Act provide for aggravated
offences if a person refers another person to a third person for work. If a person is convicted
for an offence against either of these subsections, the current penalty is 5 years'
imprisonment.
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423. Subsection 4B(2) of the Crimes Act provides that where a natural person is convicted
of an offence against a law of the Commonwealth punishable by imprisonment only, the
court may, if the contrary intention does not appear and the court thinks it appropriate in all
the circumstances of the case, impose, instead of, or in addition to, a penalty of
imprisonment, a pecuniary penalty not exceeding the number of penalty units calculated
using the formula (term of imprisonment x 5), where the 'term of imprisonment' is the
maximum term of imprisonment, expressed in months, by which the offence is punishable.
424. In relation to current subsections 245AEB(1) and (2), the maximum pecuniary
penalty as calculated under subsection 4B(2) of the Crimes Act would be 300 penalty units.
425. The purpose of the amendments by item 33 is to express a contrary intention in
relation to the penalties for subsections 245AEB(1) and (2), so that subsection 4B(2) of the
Crimes Act does not apply. As amended, the penalty under each of subsections 245AEB(1)
and (2) expressly provide that the court may impose a sentence of up to five years'
imprisonment, or 360 penalty units, or both.
426. The increase from 300 to 360 penalty units is intended to align the pecuniary penalty
with the pecuniary penalty available on conviction for an offence against current section
245AR (prohibition on asking for or receiving a benefit in return for the occurrence of a
sponsorship related event). As a result of the amendment, the maximum pecuniary penalty
of 360 penalty units is set higher than the standard penalty unit/imprisonment ratio provided
for in section 4B of the Crimes Act. Given the nature of the conduct covered by section
245AEB as amended, it is appropriate that the pecuniary penalty available for the offence
is set at the same amount as for current section 245AR, particularly where a lower pecuniary
penalty may be perceived as offset against the potential unlawful gains from committing the
offence. This amendment is intended to send a clear signal that offences against section
245AEB as amended are viewed seriously, and that an offence against section 245AEB
warrants a significant penalty.
Item 34 Subsections 245AEB(1) and (2) (note)
427. This item amends current subsections 245AEB(1) and (2) by repealing the note at
the foot of each subsection. This amendment is consequential to the amendment of the
subsection 245AEB(1) and (2) penalties by item 33, whereby the note in relation to section
245AH now appears at the foot of the subsection, above the penalty.
428. This amendment reflects the current drafting convention in relation to penalty
provisions, which requires a note or example to a subsection or section that has a penalty at
its foot to appear before the penalty rather than after it.
Item 35 Subsection 245AK(2)
429. This item repeals the civil penalty provision in current subsection 245AK(2) and
substitutes a new civil penalty provision in new subsection 245AK(2).
430. This is a technical amendment, to ensure consistency in the structure of civil penalty
provisions in Subdivision C.
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431. Generally, current drafting practice is for a note or example to a subsection or section
with a penalty at its foot to appear before the penalty, rather than after it. This is to avoid
any uncertainty about the application of section 4D of the Crimes Act and of provisions
about civil penalties that depend on penalties being set out at the foot of subsections and
sections.
432. Where an item in this Part repeals and substitutes an offence or civil penalty
provision in order to increase or otherwise vary the associated penalty, the new provision
has been drafted consistent with current drafting practice. If the remaining offences and civil
penalty provisions in Subdivision C were not similarly revised, this would lead to
inconsistency between current provisions and new provisions as substituted.
433. Current subsection 245AK(2) provides that that an executive officer of a body
corporate is liable to a civil penalty if the officer contravenes subsection 245AK(1). The
maximum civil penalty for contravention of that provision under current subsection
245AK(2) is 90 penalty units. A note appears below the penalty, drawing the reader's
attention to current section 486ZF of the Migration Act, which provides that a person's state
of mind does not need to be proven in proceedings for a civil penalty order, and clarifying
that section 486ZF does not apply in relation to subsection 245AK(2).
434. New subsection 245AK(2) has the same effect as current subsection 245AK(2). The
only substantive difference between current subsection 245AK(2) and new subsection
245AK(2) is the order in which the note to the subsection and the penalty at the foot appear.
The note in relation to new subsection 245AK(2) appears above the civil penalty, consistent
with current drafting practice. This amendment ensures that new subsection 245AK(2) is
structured consistent with the other penalty provisions in Subdivision C.
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Part 5 Enforceable undertakings for work-related breaches
Division 1 Amendments
Migration Act 1958
Item 36 After section 245AL
435. This item inserts new section 245ALA after current section 245AL of the Migration
Act.
436. New section 245ALA sets out the triggering provisions of the standard enforceable
undertakings powers available under Part 6 of the Regulatory Powers Act, and makes these
powers available in relation to the work-related offences and work-related provisions of
the Migration Act.
Enforceable undertakings under Part 6 of the Regulatory Powers Act
437. The Regulatory Powers Act provides for a standard suite of provisions that can be
triggered by other Acts in relation to monitoring and investigation powers, as well as civil
penalties, infringement notices, enforceable undertakings and injunctions. The standard
provisions of the Regulatory Powers Act are an accepted baseline of powers required for an
effective monitoring, investigation or enforcement regulatory regime, providing adequate
safeguards and protecting important common law privileges.
438. Part 6 of the Regulatory Powers Act creates a standard framework for accepting and
enforcing undertakings relating to compliance with provisions of an Act. Subsection 110(2)
of the Regulatory Powers Act states that, in order for Part 6 of the Regulatory Powers Act
to operate, a provision of an Act or legislative instrument must be made enforceable under
Part 6 by a triggering Act.
439. When a triggering Act applies Part 6 of the Regulatory Powers Act, it must identify
who is an authorised person and the relevant court or courts that may exercise powers under
Part 6 of the Regulatory Powers Act (see sections 112 and 113 of the Regulatory Powers
Act). It must also express whether the authorised person may delegate their powers and
functions under Part 6 of the Regulatory Powers Act in relation to the enforceable
undertakings provisions of the triggering Act. If provisions of the triggering Act are subject
to enforceable undertakings and apply in external Territories or offshore areas, the triggering
Act should identify whether Part 6 of the Regulatory Powers Act extends to any external
Territories.
440. The purpose of the amendment by item 36 is to enhance the compliance and
enforcement framework relating to the work-related offences and work-related provisions
of the Migration Act. This provides another option to deal with non-compliance (by
encouraging co-operative compliance) instead of pursuing court proceedings. Enforceable
undertakings will provide the necessary flexibility to require a person to take specific action
to address the underlying non-compliance issue based on the circumstances of the individual
case.
441. For example, an enforceable undertaking could include:
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• a commitment by the employer to comply with a specific legislative provision, to
undertake checks of prospective non-citizen employees' immigration status and
work-related visa conditions via the VEVO system;
• an undertaking by the employer to refrain from allowing non-citizens to work in
breach of the work-related conditions of their visa; or
• an agreement by the employer to participate in an education program in relation to
compliance with the work-related provisions of the Migration Act.
New section 245ALA - Enforceable undertakings
442. As inserted by item 36, section 245ALA sets out the triggering provisions of the
standard enforceable undertakings powers available in relation to contraventions of work-
related offences and work-related provisions under the Migration Act, through the
application of Part 6 of the Regulatory Powers Act. Part 6 of the Regulatory Powers Act, as
applied by new section 245ALA, provides the Migration Act with a framework for accepting
and enforcing undertakings relating to compliance with work-related offences and work-
related provisions under the Migration Act.
443. Subsection 114(1) of Part 6 of the Regulatory Powers Act provides that an authorised
person may accept any of the following undertakings:
• a written undertaking given by a person that the person will, in order to comply with
a provision enforceable under Part 6, take specified action;
• a written undertaking given by a person that the person will, in order to comply with
a provision enforceable under Part 6, refrain from taking specified action;
• a written undertaking given by a person that the person will take specified action
directed towards ensuring that the person does not contravene a provision
enforceable under Part 6, or is unlikely to contravene such a provision, in the future.
Enforceable provisions
444. New subsection 245ALA(1) provides that a provision is enforceable under Part 6 of
the Regulatory Powers Act if it is a work-related offence or a work-related provision. These
terms are defined in subsection 5(1) of the Migration Act (as amended by item 7 in Part 2
of the Schedule to the Bill).
445. Subsection 110(2) of the Regulatory Powers Act provides that, for Part 6 of the
Regulatory Powers Act to operate, a provision of an Act or a legislative instrument must be
made enforceable under Part 6 by the triggering Act. Section 111 of the Regulatory Powers
Act also relevantly provides that a provision of an Act or a legislative instrument is
enforceable under Part 6 if an Act provides that the provision is enforceable under this Part.
New subsection 245ALA(1) has the effect of making the work-related offences and work-
related provisions of the Migration Act enforceable within the meaning of section 111 of
the Regulatory Powers Act.
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446. A note at the foot of new subsection 245ALA(1) explains that Part 6 of the
Regulatory Powers Act creates a framework for accepting and enforcing undertakings
relating to compliance with provisions. This note is intended to assist readers and draw their
attention to Part 6 of the Regulatory Powers Act, which provides the substantive framework
for accepting and enforcing undertakings in relation to work-related offences and work-
related provisions. Subsection 245ALA(1) and the other provisions in new section 245ALA
are the triggering provisions necessary to apply this framework in relation to the work-
related offences and work-related provisions of the Migration Act.
Authorised person
447. Section 112 of the Regulatory Powers Act provides that if a triggering Act provides
that a person is an authorised person in relation to that provision for the purposes of Part 6
of the Regulatory Powers Act, that person is an authorised person for the purposes of
exercising powers under Part 6 in relation to an enforceable provision.
448. New subsection 245ALA(2) provides that for the purposes of Part 6 of the
Regulatory Powers Act, the Minister is an authorised person in relation to the work-related
offences and work-related provisions of the Migration Act (as made enforceable under Part
6 of the Regulatory Powers Act by new subsection 245ALA(1)).
449. New subsection 245ALA(3) provides that the Minister may delegate the Minister's
powers and functions under Part 6 of the Regulatory Powers Act to an authorised officer, in
relation to the provisions mentioned in subsection 245ALA(1). The delegation must be in
writing.
450. Subsection 5(1) of the Migration Act provides that the expression authorised officer,
when used in a provision of the Migration Act, means an officer authorised in writing by
the Minister, the Secretary or the Australian Border Force Commissioner for the purposes
of that provision.
451. New subsection 245ALA(4) provides that the Minister may delegate a power or
function under subsection 245ALA(3) only if the Minister is satisfied that the authorised
officer has appropriate qualifications, training or experience to exercise the power or
perform the function. This provision has the effect of limiting the general delegation power
in subsection 245ALA(3), ensuring that matters relevant to the experience, qualifications
and training of an authorised officer must be taken into account when the Minister exercises
the delegation power in subsection 245ALA(3).
452. In general, the delegation of the Minister's powers and functions under Part 6 of the
Regulatory Powers Act in relation to work-related offences and work-related provisions
will be confined to members of the Department's SES, or ABF officers at Commander level
or higher. While new subsection 245ALA(3) does not expressly include this limitation, this
is appropriate in order to provide sufficient flexibility to allow for the Minister to delegate
the Minister's powers and functions to certain authorised officers below these levels from
time to time - but only where the Minister is satisfied, as required by new subsection
245ALA(4), that that authorised officer has the appropriate qualifications, training or
experience to exercise the power or perform the function.
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453. The combined effect of subsections 245ALA(3) and (4) ensures there is appropriate
flexibility in the legislation to accommodate future structural changes in the Department and
ABF, where certain functions might be assigned to appropriately qualified, experienced
authorised officers at management levels below SES or Commander. It is foreseeable, for
example, that responsibility for enforceable undertakings might be appropriately assigned
to a superintendent in the ABF who has also been delegated other functions and powers as
the authorised officer centrally responsible for ABF operations relating to compliance with
the work-related offences and work-related provisions of the Migration Act.
454. New subsection 245ALA(5) provides that an authorised officer exercising powers
or performing functions under a delegation under subsection 245ALA(3) must comply with
any directions of the Minister.
Relevant court
455. New subsection 245ALA(6) provides that, for the purposes of Part 6 of the
Regulatory Powers Act, an eligible court is a relevant court in relation to the provisions
mentioned in subsection 245ALA(1) - that is, the work-related offences and work-related
provisions of the Migration Act.
456. Subsection 5(1) of the Migration Act provides that eligible court means:
• the Federal Court; or
• the Federal Circuit and Family Court (Division 2); or
• a District, County or Local Court; or
• a magistrates court; or
• any other State or Territory court that is prescribed by the regulations.
457. Section 113 of the Regulatory Powers Act provides that a court is a relevant court
for the purposes of exercising powers under Part 6 of the Regulatory Powers Act in relation
to an undertaking given in relation to a provision enforceable under Part 6, if an Act provides
that the court is a relevant court in relation to that provision for the purposes of this Part.
458. The purpose of new subsection 245ALA(6) is to provide that an eligible court within
the meaning of subsection 5(1) of the Migration Act is a relevant court for the purposes of
exercising the powers in Part 6 of the Regulatory Powers Act, in relation to an undertaking
given in relation to any of the work-related offences and work-related provisions of the
Migration Act.
Enforceable undertaking may be published on the internet
459. New subsection 245ALA(7) provides the Minister the discretion to publish an
enforceable undertaking that a person has given, in relation to a work-related offence or
work-related provision, on the Department's website. As the undertaking would have been
given in circumstances where the person has contravened one or more of the relevant
offence or civil penalty provisions, the publication of the undertaking draws public attention
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to that contravention, and is intended to deter the person from breaching undertakings in
future.
460. Publication of an enforceable undertaking provides transparency to the Australian
community, demonstrating that the Minister is taking action against employers, labour hire
intermediaries and other parties who do not comply with obligations under the Migration
Act, or otherwise act in contravention of work-related offences and work-related
provisions. Publication also serves as a general deterrent by publicising these provisions
and related obligations, and what action may be taken for contravention of these provisions.
Extension to external Territories
461. New subsection 245ALA(8) provides that Part 6 of the Regulatory Powers Act, as
applied by section 245ALA in relation to work-related offences and work-related
provisions, extends to a Territory to which the Migration Act extends.
462. A note at the foot of this subsection directs the reader to section 7 of the Migration
Act. Subsection 7(2) relevantly provides that the Migration Act extends to a prescribed
Territory. Subsection 7(1) provides that prescribed territory means Norfolk Island, the
Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory of
Christmas Island and the Territory of Ashmore and Cartier Islands.
463. The purpose of this provision is to make clear that the provisions in Part 6 of the
Regulatory Powers Act extend to the prescribed Territories within the meaning of section 7
of the Migration Act.
Relationship with civil penalty orders
464. New subsection 245ALA(9) sets out the relationship between enforceable
undertakings and civil penalty orders. This subsection provides that while an enforceable
undertaking under subsection 245ALA(1) remains on foot and has not been withdrawn, the
Minister must not apply for a civil penalty order under current subsection 486R(1) of the
Migration Act in relation to the same contravention of a work-related provision by the
person.
465. This restriction ensures the Minister cannot pursue multiple enforcement
mechanisms in relation to the same contravention concurrently. It does not preclude the
Minister from taking action under section 115 of the Regulatory Powers Act by applying to
a relevant court for an order in relation to a breach of the enforceable undertaking by the
person who gave it.
466. Part 6 of the Regulatory Powers Act enables an authorised person to accept written
undertakings committing a person to particular action (or inaction) in order to prevent or
respond to a breach of an enforceable provision. Undertakings are enforceable in their own
right (see section 111 of the Regulatory Powers Act), and they may be entered into instead
of, or in addition to, the authorised person taking other disciplinary action.
467. Undertakings provide a remedy other than financial sanctions to past or prospective
breaches of a provision.
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468. Section 115 enables the authorised person to apply to have undertakings given under
section 114 enforced in a relevant court. This clause lists the orders a court can impose to
remedy a breach of an undertaking, including orders to comply with the undertaking, to pay
a pecuniary penalty to the Commonwealth, to compensate other people, or any other order
the court sees fit.
Division 2 Application
Item 37 Application of amendments
469. This item provides for the application of the enforceable undertakings provisions of
Part 6 of the Regulatory Powers Act, as that Part applies under new section 245ALA of the
Migration Act, in relation to work-related offences and work-related provisions. Item 37
clarifies that Part 6 of the Regulatory Powers Act applies in relation to undertakings given
on or after the commencement of the Schedule to the Bill.
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Part 6 Compliance notices for work-related breaches
Division 1 Amendments
Migration Act 1958
Item 38 Before section 245AM
470. This item inserts new section 245ALB before current section 245AM of the
Migration Act.
New section 245ALB - Compliance notices
471. New section 245ALB sets out a mechanism for an authorised officer to issue a
compliance notice. This provides another option to deal with non-compliance (by
encouraging co-operative compliance), instead of pursuing court proceedings. The purpose
of new section 245ALB is to enhance the compliance and enforcement framework relating
to the work-related offences and work-related provisions of the Migration Act.
472. Compliance notices will provide the necessary flexibility to require a person to take
specific action to address the underlying non-compliance issue, based on the circumstances
of the individual case. For example, a compliance notice may specify one or more of the
following actions:
• establish or maintain an account to use the prescribed computer system, within such
reasonable time as is specified in the notice;
• comply with section 245AEC (verifying migration status before allowing a non-
citizen to work) before allowing a person to work;
• use the prescribed computer system to undertake an audit, within such reasonable
time as is specified in the notice, of the matters mentioned in paragraph
245AEC(1)(b) in relation to all persons who are, at the time the notice is given,
allowed to work by the person.
Scope
473. New subsection 245ALB(1) provides that new section 245ALB applies if an
authorised officer reasonably believes that a person is engaging in, or has engaged in,
conduct constituting a work-related offence or a contravention of a work-related provision.
474. The authorised officer needs only to be satisfied that the person has engaged in, or
is engaging in, the relevant conduct. The authorised officer is not required to consider what
the person's state of mind was, or is, when engaging in the relevant conduct. The authorised
officer is also not required to consider any associated defences.
Giving a compliance notice
475. New subsection 245ALB(2) provides that an authorised officer may give the person
a compliance notice specifying action that the person must take, or must refrain from taking,
to address the conduct.
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476. A note immediately below this subsection clarifies that a compliance notice given
under subsection 245ALB(2) can be varied or withdrawn under subsection 33(3) of the Acts
Interpretation Act.
477. New subsection 245ALB(3) provides that the compliance notice may require the
person to produce reasonable evidence of compliance with that notice.
New subsection 245ALB(3) - illustrative example
An authorised officer reasonably believes that Employer A1 has been allowing non-citizens
who hold student visas to work shifts exceeding 60 hours per fortnight during the university
semester. This would amount to a breach of the work-related condition of these non-citizens'
student visas - and for Employer A1, would constitute a contravention of the civil penalty
provision in section 245AC of the Migration Act.
In this scenario, the authorised officer could give Employer A1 a compliance notice that
requires Employer A1 to cease allowing non-citizens to work in breach of the work-related
condition of their visa. The compliance notice requires Employer A1 to conduct VEVO
checks in relation to any current non-citizen employees, and to give the authorised officer
evidence of the checks, including the results of those checks.
If Employer A1 does not comply with the compliance notice, the Minister could, for
example, bring an action under section 486R of the Migration Act for an order that Employer
A1 pay the Commonwealth a pecuniary penalty for contravention of the civil penalty
provision.
478. New subsection 245ALB(4) sets out the requirements for the contents of the notice.
This includes:
• the name of the person to whom the notice is given;
• the name of the authorised officer giving the notice;
• a summary of the conduct on which the notice is based;
• an explanation that failing to comply with the notice may contravene a civil penalty
provision;
• an explanation of the process available to the recipient to apply for a review of the
notice by the Federal Circuit and Family Court of Australia (Division 2); and
• any other matters prescribed by regulations made for the purposes of new paragraph
245ALB(4)(f).
479. A notice that is deficient may be invalid and may be reviewed by the Federal Circuit
and Family Court of Australia (Division 2) under new subsection 245ALB(8).
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Person must comply with compliance notice
480. New subsection 245ALB(5) provides that a person must comply with a compliance
notice. This subsection is a civil penalty provision.
481. A person who contravenes this subsection is liable to a civil penalty of 48 penalty
units.
482. Current section 486ZF of the Migration Act provides that a person's state of mind
does not need to be proven in proceedings for a civil penalty order. The note under new
subsection 245ALB(5) draws the reader's attention to this provision.
Effect of compliance with compliance notice
483. New subsection 245ALB(6) provides that a person who complies with a notice is
not taken to have admitted to engaging in the conduct constituting the offence or
contravention in relation to which the notice is given.
Relationship with civil penalty provisions
484. New subsection 245ALB(7) prevents the Minister from instituting proceedings
under current subsection 486R(1) of the Migration Act to enforce a contravention of a work-
related provision if an authorised officer has already given the person a notice in relation to
the contravention and either:
• the notice has not been withdrawn, and the person has complied with the notice; or
• the person has applied, under new subsection 245ALB(8), to the Federal Circuit and
Family Court of Australia (Division 2) for a review of the notice, and that application
has not been completely dealt with.
Review of compliance notice
485. New subsection 245ALB(8) provides that a person who has been given a compliance
notice may apply to the Federal Circuit and Family Court of Australia (Division 2) for a
review of the notice on one or more of the grounds provided at paragraphs 245ALB(8)(a),
(b) or (c).
486. The first ground for review is that the person is not engaging in, or has not engaged
in, the conduct specified in the notice. This ground would be relevant where the provision
that is alleged to have been contravened does not apply - for example, because the alleged
contravention has not occurred.
487. The second ground for review is that the conduct specified in the notice does not
constitute a work-related offence, or a contravention of a work-related provision.
488. The third ground for review is that the notice does not comply with the requirements
set out in new subsections 245ALB(2), (3) or (4). For example, the notice may be
procedurally deficient; or it specifies action a person must take where there is no connection
between the specified action and the conduct to be addressed, in relation to subsection
245ALB(1), and the related work-related offence or work-related provision.
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489. A person can apply for review of a compliance notice on one or more of these
grounds.
490. New subsection 245ALB(9) provides that the court may stay the operation of a
compliance notice on the terms and conditions that the court considers appropriate. For
example, a court could make an interim order staying the operation of the notice while it
decides whether to confirm, cancel or vary the notice. In the absence of such an order, a
person to whom a compliance notice is given would be required to comply with it.
491. New subsection 245ALB(10) provides that the court may confirm, cancel or vary
the compliance notice after reviewing it.
Item 39 Subsection 474(4) (after table item 6)
492. This item inserts new item 6A after current item 6 in the table under subsection
474(4).
493. Section 474 provides that certain decisions under the Migration Act, referred to as
privative clause decisions, are final. Subsection 474(4) provides for decisions under a
provision that are not privative clause decisions, and which are non-privative clause
decisions by operation of subsection 474(6). Subsection 474(2) of the Migration Act
provides that a privative clause decision means a decision of an administrative character
made, proposed to be made, or required to be made, as the case may be, under the Migration
Act or under a regulation or other instrument made under the Migration Act (whether in the
exercise of a discretion or not), other than a decision referred to in current subsection 474(4)
or (5).
494. The amendment by item 39 makes clear that a decision under new section 245ALB
is not a privative clause decision. The insertion of new item 6A (as it refers to new section
245ALB) in the table under subsection 474(4) makes clear that a decision made under new
section 245ALB is not a privative clause decision.
495. The definition of non-privative clause decision in subsection 474(6) is included to
support current section 476A, which has the effect of directing matters arising from
decisions under provisions in the table under subsection 474(4) to the Federal Circuit and
Family Court of Australia (Federal Circuit Court) and not the Federal Court. Subsection
476(3) provides that section 476 does not affect any jurisdiction that the Federal Circuit
Court may have in relation to non-privative clause decisions under section 8 of the
Administrative Decisions (Judicial Review) Act 1977 (AD(JR) Act) or section 44AA of the
AAT Act. The Federal Circuit Court has jurisdiction under the AD(JR) Act in relation to
non-privative clause decisions.
Division 2 Application
Item 40 Application of amendments
496. This item provides that the amendments of the Migration Act made by this Part apply
in relation to conduct (including an omission) occurring before, on or after the
commencement of this Schedule.
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497. The introduction of compliance notices as an additional compliance tool to deal with
conduct constituting a work-related offence or a contravention of a work-related provision
is intended to provide an alternative to court proceedings, in an effort to encourage greater
compliance by employers. Aside from the new work-related offences and civil penalty
provisions introduced in this Bill, the work-related offences and work-related provisions in
Subdivision C of Division 12 of Part 2 of the Migration Act are long-standing, well-
established provisions.
498. There is limited excuse for employers, labour hire intermediaries and other parties
involved in the employment of non-citizens to be unaware of these existing provisions. The
establishment of the Migrant Workers' Taskforce was preceded by a significant number of
high-profile cases revealing exploitation of migrant workers to a concerning level. These
cases were highlighted by government investigations, public inquiries and media reports.
Among other things, these cases exposed unacceptable gaps in Australia's legal system
designed to treat all workers equally, regardless of their visa status.
499. The Taskforce was set the specific task to identify proposals for improvements in
law, law enforcement and investigation, and other practical measures to more quickly
identify and rectify cases of migrant worker exploitation.
500. The introduction of compliance notices as an additional legislative tool under the
Migration Act, to deal with non-compliance with work-related provisions under the
Migration Act, is consistent with this approach. Compliance notices provide a legislative
basis and framework for the ABF to promote compliance by employers, labour hire
intermediaries and other persons with the work-related provisions of the Migration Act.
501. The application of the amendments to the Migration Act by this Part to conduct
(including an omission) occurring before, on or after the commencement of the Schedule
ensures that the ABF has the necessary tools to deal effectively with existing, and in some
cases intractable, non-compliance with provisions of the Migration Act that are intended to
protect migrant workers, as well as Australia's reputation as a destination of choice.
89
Part 7 Other amendments
Migration Act 1958
Item 41 After subsection 140RA(2)
502. This item amends current section 140RA of the Migration Act, inserting new
subsections 140RA(2A) and (2B).
503. New subsection 140RA(2A) allows the Minister to delegate the Minister's powers
and functions under Part 6 of the Regulatory Powers Act, as applied to subsection 140RA(1),
to an authorised officer under the Migration Act. The delegation must be in writing.
Authorised officer is defined in subsection 5(1) of the Migration Act to mean an officer
under the Migration Act authorised in writing by the Minister, the Secretary or the
Australian Border Force Commissioner for the purposes of that provision.
504. New subsection 140RA(2B) provides that the Minister may only delegate the powers
and functions under Part 6 of the Regulatory Powers Act, if satisfied that the person has
appropriate qualifications, training or experience to exercise the power or perform the
function. Consistent with new subsection 245ALA(4), as inserted by item 36 in Part 5 of the
Schedule to the Bill, new subsection 140RA(2B) has the effect of limiting the general
delegation power in subsection 140RA(2A), ensuring that matters relating to the experience,
qualifications and training of an authorised officer must be taken into account when the
Minister exercises the delegation power in subsection 140RA(2A).
505. In general, the delegation of the Minister's powers and functions under Part 6 of the
Regulatory Powers Act in relation to current section 140H as an enforceable provision, in
relation to a sponsorship obligation, will be confined to members of the Department's SES,
or ABF officers at Commander level or higher. While new subsection 140RA(2A) does not
expressly include this limitation, the alternative requirement to consider matters of
experience, qualifications and training is appropriate in order to provide necessary
flexibility to allow for the Minister to delegate the Minister's powers and functions to certain
authorised officers below these levels in certain circumstances - but only where the Minister
is satisfied, as required by new subsection 140RA(2B), that the authorised officer has the
appropriate qualifications, training or experience to exercise the power or perform the
function.
506. The combined effect of new subsections 140RA(2A) and (2B) ensures there is
appropriate flexibility in the legislation to accommodate future structural changes in the
Department and ABF, where certain functions might be assigned to appropriately qualified,
experienced authorised officers at management levels below SES or Commander. It is
foreseeable, for example, that responsibility for enforceable undertakings might be
appropriately assigned to a superintendent in the ABF who has also been delegated other
functions and powers as the authorised officer centrally responsible for ABF operations
relating to sponsor monitoring and enforcement under Subdivision C of Division 3A of Part
2 of the Migration Act.
507. New subsection 140RA(2C) provides that an authorised officer exercising powers
or performing functions under a delegation under subsection 140RA(2A) must comply with
any directions of the Minister.
90
508. The purpose of these amendments is to ensure that there is consistency in the
Migration Act in relation to the delegation of the Minister's powers and functions under Part
6 of the Regulatory Powers Act, as they relate to amended section 140RA, and new section
245ALA, as inserted by item 36 in Part 5 of the Schedule to the Bill.
91
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Migration Amendment (Protecting Migrant Workers) Bill 2021
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Migration Amendment (Protecting Migrant Workers) Bill (the Bill) amends the
Migration Act 1958 (the Migration Act) to strengthen the Government's response to the
exploitation of migrant workers in Australia, and to implement Recommendations 19 and
20 from the Report of the Migrant Workers' Taskforce (the Taskforce Report).
The Migrant Workers' Taskforce (the Taskforce) was established in 2016 as part of the
Government's commitment to protect vulnerable workers. It was asked to identify further
proposals for improvements in law, law enforcement and investigation, and other practical
measures to more quickly identify and rectify any cases of migrant worker exploitation.
The Taskforce Report was released on 7 March 2019 and is available at:
https://www.ag.gov.au/industrial-relations/migrant-workers-taskforce.
The Government is implementing a range of measures to respond to the Taskforce's
recommendations. The Department of Home Affairs is the lead agency responsible for
implementing:
Recommendation 19: It is recommended that the Government consider
developing legislation so that a person who knowingly unduly influences,
pressures or coerces a temporary migrant worker to breach a condition of their
visa is guilty of an offence; and
Recommendation 20: It is recommended that the Government explore
mechanisms to exclude employers who have been convicted by a court of
underpaying temporary migrant workers from employing new temporary visa
holders for a specific period.
This Bill implements Recommendations 19 and 20, and strengthens existing compliance
mechanisms and sanctions available under the Migration Act.
The Bill primarily strengthens the regulatory framework available under the Migration Act
for general employers of temporary migrant workers. This includes employers of
international students, temporary graduate visa holders, working holiday makers, some
bridging visa holders and provisional visa holders (i.e. migrant workers whose visa has not
been sponsored by an employer). However, it does also increase the civil penalties
available under the Employer Sponsorship Framework. That is, the framework regulating
92
the specific obligations on employer sponsors - those employers who sponsor the visa of
non-citizens for the purpose of filling certain labour gaps.
The Government released an exposure draft of the Bill on 26 July 2021 inviting
stakeholders to provide feedback on the new measures. The public submissions have
been published on the Department's website for maximum transparency.
Feedback on the exposure draft has given the Government the opportunity to refine key
components of the Bill, including clarifying key measures and addressing issues of
concern.
The public submissions reflected a diverse range of views from peak bodies, industry
and civil society. Some stakeholders expressed frustration about the limited scope of the
Bill, which focuses primarily on implementing recommendations 19 and 20 from the
Taskforce Report (Department-led recommendations). Some stakeholders provided
dissenting views about the reforms needed, contesting the recommendations from the
Taskforce Report. Other stakeholders articulated their support for the reforms, and
acknowledged that the Bill addresses recommendations 19 and 20 from the Taskforce
Report, and in doing so, it contributes to whole-of-government initiatives to combat
migrant worker exploitation.
The Bill enhances the role of the Migration Act in combatting migrant worker
exploitation by supporting visa program integrity. The national workplace relations
system, including the Fair Work Act 2009 and the Fair Work Regulations 2009, remains
the primary legislation that establishes a safety net of minimum entitlements and
conditions of employment for employees in Australia, regardless of a person's
immigration status. The amendments of the Migration Act in this Bill complement
existing protections for vulnerable workers in the Fair Work Act 2009.
The Attorney-General's Department remains the lead agency responsible for policies
that promote fair, productive, flexible and safe workplaces, and the Fair Work
Ombudsman continues to lead on compliance and enforcement activities under the Fair
Work Act.
The Bill includes five key elements:
• new criminal offences for using a person's migration status to exploit them in the
workplace
• a mechanism to prohibit employers that have engaged in serious or repeated non-
compliance, from accessing temporary migrant workers for a period of time
• positive obligations on employers and third party providers to ensure the status and
work related conditions of all migrant worker employees is verified using specified
departmental systems prior to employment
• increases to pecuniary penalties for existing work-related breaches
• new compliance tools to better support the Australian Border Force to respond
proportionately to cases of non-compliance.
93
These new measures are outlined below.
New offences
The Bill establishes criminal offences and associated civil penalty provisions for a
person who coerces or unduly influences or pressures a non-citizen to either:
• breach a work-related condition of their visa, or
• accept exploitative conditions in order to:
o meet a work-related visa requirement, or
o avoid being reported to the Department of Home Affairs or the Australian
Border Force for fear of an adverse immigration outcome.
The first offence relates to coercing or exerting undue influence or pressure on a non-
citizen to breach work-related visa conditions. This offence would arise where a person
coerces, or exerts undue influence or undue pressure on a non-citizen to accept or agree to
a work arrangement that would involve a breach of a work-related condition1 that applies
to that non-citizen's visa.
The second offence relates to coercing or exerting undue influence or pressure over a non-
citizen by using migration rules. This offence would arise where a person coerces, or
exerts undue influence or undue pressure over a non-citizen to accept or agree to a work
arrangement in order to avoid an adverse effect on the non-citizen's immigration status, or
that would result in the non-citizen being unable to satisfy a work-related visa
requirement.2
The new offences are designed to be applied to an individual and/or business responsible
for the offence, as determined through legal proceedings.
The new offences are supplemented by civil penalty provisions. A civil penalty of 240
penalty units may be imposed as an alternative to criminal proceedings.
These offences and the associated civil penalty provisions provide a holistic response to
the issues that informed Recommendation 19 of the Taskforce Report.
The overarching aim is to address concerns that employers, labour hire intermediaries or
others in the employment chain might use the temporary nature of the migrant's visa status
to exploit them in the workplace. The Taskforce Report outlined the reasoning behind
Recommendation 19:
"In the case of international students, there have been cases where employers have
persuaded students to work longer hours than permitted under their visa
restrictions. Underpayment of wages can have this effect if the student needs to
1
A work-related condition is a condition that either prohibits the holder of a visa from working in Australia, or restricts the work that
the holder of a visa may do in Australia.
2
A work-related visa requirement means a requirement under the Migration Act or the Migration Regulations 1994 (the Migration
Regulations) for a non-citizen to provide information or evidence about work the non-citizen has undertaken in Australia. This could
be in connection with the visa the non-citizen currently holds, or a future visa application.
94
earn a certain income. However, some employers have coerced students into
accepting lower wages on the threat of referring them to the immigration
authorities for breaching their hours' restriction ... "3
The Taskforce Report also noted:
"The three month qualifying period working holiday makers need to meet in order
to be able to obtain a second year on their visa is also alleged to have had
unintended consequences. It is suggested this has allowed unscrupulous employers
to exploit temporary migrant workers. An employer can use the power this
restriction provides by rationing work and seeking other benefits before signing off
on its completion. Changes to the evidence backpackers can provide to support
their claim to have worked the required period are likely to have eased this
problem, but concerns are still being raised by backpackers about these issues ... "4
"There appear to be gaps in the law ... For example, the Migration Act visa
sponsorship laws, which seek to prevent employers extracting inappropriate
advantage for obtaining a visa, do not apply to the working holiday maker visa so
that no action can be taken under the Migration Act against an employer for using
the restrictions attached to the visa to exploit temporary migrants ... "5
Media reports also highlighted the need for reform to prevent a person's migration status
being used to exploit them in the workplace. Some of those reports include:
• Backpacker exploitation: why Australia should look to the Pacific by Stephen
Howes and Henry Sherrell 6
• Calls for a royal commission after report reveals backpackers paid $3 an hour on
NSW blueberry farms by Caroline Riches 7
• Fair Work Ombudsman investigates claims of backpacker exploitation on
Australian farms 8
• There are no human rights here by Katri Uibu 9
3
Taskforce Report p. 122
4
Ibid p. 122
5
Ibid p. 123
6
Published 27 October 2016 online: https://devpolicy.org/backpacker-exploitation-australia-look-pacific-20161027/
7
Published 4 December 2020: https://www.sbs.com.au/news/calls-for-a-royal-commission-after-report-reveals-backpackers-paid-3-an-
hour-on-nsw-blueberry-farms
8
Published 17 September 2020: https://www.sbs.com.au/news/fair-work-ombudsman-investigates-claims-of-backpacker-exploitation-
on-australian-farms
9
Published 15 September 2020: https://www.abc.net.au/news/2020-09-15/backpacker-farm-workers-speak-of-wage-
exploitation/12545294?nw=0
95
• #88dayslave: backpackers share stories of farm work exploitation by Sarah Martin
10
• Allegations of sexual harassment and racism as new report finds majority of
backpackers are underpaid 11
In drafting the new offences, there was consideration of existing legislative provisions that
create offences of coercion, undue influence and undue pressure, and a recognition that
there were limitations and gaps in the existing provisions. For example:
• The Migration Act includes provisions to sanction a person for allowing (section
245AC) or referring (section 245AEA) a non-citizen to work in breach of a condition
of their visa. However, these provisions do not specifically address the issue of an
employer or other person unduly influencing, pressuring or coercing the non-citizen
to do so. The existing provisions also fail to address the behaviour of unscrupulous
employers who might use other provisions in the Migration Act, such as work related
visa requirements (for example, the requirement for working holiday maker visa
holders to engage in 'specified work' in order to meet the requirements for a second
or third visa), to exploit a non-citizen employee.
• The Fair Work Act 2009 includes provisions that prohibit undue influence (section
344) and coercion (section 343). However, those provisions do not specifically
address the issue of employers using the threat of an adverse immigration outcome
to exploit migrant workers.
• The Criminal Code Act 1995 (Criminal Code) also has provisions to address the
issue of 'coercion'; however, it sets a higher standard than that which may be
covered by 'influence or pressure'. Based on stakeholder consultation, it was agreed
that there may be aggravated cases that warrant the pursuit of a sanction (criminal
or civil, depending on the circumstances of the case) that do not fall within the
current remit of the Criminal Code.
• The Criminal Code also includes an offence (section 11.4) for a person to urge the
commission of an offence (i.e. incitement). However, the rules and penalties around
incitement mean that it is considered a lesser offence. The aim of this new offence
is to penalise the act of coercion, influence or pressure, not the migrant worker, so
section 11.4 is unlikely to be able to adequately address the issue.
The proposed offences seek to address these gaps.
10
Published 26 September 2019: https://www.theguardian.com/australia-news/2019/sep/26/88daysaslave-backpackers-share-stories-of-
farm-work-exploitation
11
Published 15 June 2021: https://www.sbs.com.au/news/allegations-of-sexual-harassment-and-racism-as-new-report-finds-majority-of-
backpackers-are-underpaid/89407ac8-c097-49c0-9976-1cf24a81f28b
96
Prohibition
The Bill establishes a mechanism to prohibit an employer from allowing any
additional temporary migrant workers to work for a specified period where:
• that employer is convicted of a work-related offence against the Migration Act
• a court makes an order against the employer in relation to contravention of:
o a work-related provision in the Migration Act, or
o a specified remuneration related civil remedy provision in the Fair Work Act
2009 in their treatment of a migrant worker, or
• an employer has been barred from sponsoring migrant workers through the
Migration Act's Employer Sponsorship Framework.
The measures in the Bill that support the prohibition include:
• a defined set of circumstances that trigger the consideration of whether to declare a
person to be a prohibited employer, namely migrant worker sanctions as defined
under new section 245AYD
• a process that allows the employer to show cause as to why they should not be
prohibited from employing additional temporary migrant workers
• a requirement to publish information about the prohibited employer to support
implementation of the prohibition
• additional reporting requirements for the employer for 12 months following the
prohibition
• review rights
• consequences for failing to comply with the prohibition.
Circumstances that trigger consideration of the prohibition:
The circumstances in which the Minister may declare an employer to be a 'prohibited
employer' under this new mechanism are set at a high threshold. They involve either the
highest level sanction available under the Employer Sponsor Framework or an adverse
outcome from court proceedings.
Examples where the prohibition might apply include:
• an employer who breaches the Employer Sponsorship Framework for failing to
provide terms and conditions that are equivalent to an Australian worker in the same
position (i.e. the market rate, as required under Sponsorship Obligations)
• an employer who is found to have coerced a non-citizen by using migration rules
(one of the new offences in response to recommendation 19 of the Taskforce Report)
97
• an employer who allows an unlawful non-citizen to work, or a migrant worker to
work in breach of the work-related conditions of their visa (and cannot demonstrate
that before allowing the non-citizen to work, they took reasonable steps to check
their visa status and conditions)
• an employer who requires a migrant worker to give some of their pay back to the
employer (or another person), where this behaviour results in the employer being
subject to a court order under the relevant provision of the Fair Work Act 2009
This measure responds holistically to the issues and concerns that underpin
Recommendation 20 of the Taskforce Report, which found there were opportunities to
extend the existing 'bar' available under the Employer Sponsor Framework.
The aim of the prohibition is to create a greater deterrence to those employers engaged in
serious, repeated forms of non-compliance. It also aims to ensure that employers and third
party providers who have been found to have misused Australia's migration program, and
engaged in serious breaches of their obligations when employing temporary migrant
workers, will be prevented from being able to use the migration program to fill labour
needs for a specified period of time. In doing so, the new provision, which also covers
sponsoring employers, builds on an existing 'bar' available within the Employer
Sponsorship Framework, which prevents employer sponsors from sponsoring non-citizen
employees for work related visas to fill labour shortages.
Show cause processes
The Bill provides that before the Minister, or delegate, declares a person to be a prohibited
employer, the Minister must give the person a written notice:
• stating that the Minister proposes to make such a declaration, and giving the reasons
for it, and
• inviting the person to make a written submission to the Minister, setting out reasons
why the Minister should not make the declaration.
This gives the employer an opportunity to respond to the notice and outline any
extenuating circumstances to be considered as part of that decision making process.
The employer will be given a minimum of 28 days to respond to the Minister.
The Minister must consider any written submission made by the person that is received by
the Minister within the time provided. The Minister must also consider any criteria
prescribed by regulations made for the purposes of this provision.
The criteria to be considered by the Minister when deciding whether to make a declaration
will be prescribed by the Migration Regulations 1994 (the Regulations). The Regulations
may include consideration of:
• past and present conduct of the employer in their engagement with the Department
• the employer's history of non-compliance and whether the non-compliance is
recurring
98
• the nature and seriousness of the breach
• the impact on the migrant worker
• any extenuating circumstances outlined by the employer, including the impact the
prohibition would have on the ongoing viability of the business and how that might
impact existing workers and the broader community.
It is intended that the prohibition will be used to address only the most serious breaches.
Requirement to publish
The Minister will be required to publish the details of prohibited employers on the
Department's website, subject to some exceptions that may be provided in the
Regulations.
The publication of information relating to prohibited employers provides transparency to
existing and prospective migrant workers, and the Australian community generally; and it
demonstrates that the Minister will take action against employers who have been found to
breach their obligations when employing migrant workers.
Publication will also act as a deterrent to other employers, putting employers on notice that
the Minister will take action to protect vulnerable migrant workers from unscrupulous
employment practices.
The details included on the website will be limited to those details necessary to support the
prohibition, including:
• details relating to the prohibited employer (either the body corporate or the executive
officer, or both, depending on the application of the prohibited employer decision),
• the contravention(s) that gave rise to the prohibition, and
• the period during which the person is a prohibited employer (as determined by the
Minister depending on the circumstances of the case).
The Department has commissioned a Privacy Impact Assessment to support this
publication process to ensure privacy concerns are addressed.
Additional reporting obligations
When an employer's prohibited employer status ends, that employer will be subject to
certain additional reporting requirements for a period of 12 months.
During that 12-month period, the employer will be required to give the Department certain
information in relation to any new temporary migrant employees, including:
• the name of the temporary migrant worker,
• a description of the work for which the non-citizen is employed,
• if the non-citizen holds a visa that is subject to a work-related condition, the details
of the condition, and
99
• any other information prescribed by the Regulations.
The aim of the additional reporting requirements is to ensure the employer is aware of and
compliant with their obligations.
Review rights
The Bill provides for merits review by the Administrative Appeals Tribunal of the
decision to declare a person to be a prohibited employer.
Consequences for failing to comply
The consequence of non-compliance with the prohibition is a civil penalty of 240 penalty
units.
The consequence of non-compliance with the additional reporting requirements is a civil
penalty of 48 units.
New VEVO obligations
The Bill creates a positive obligation requiring employers, intermediaries and third
party facilitators to ensure relevant departmental systems are used to verify the visa
status and conditions of any prospective temporary migrant worker.
This Bill also builds on existing provisions already available under the Migration Act to
strengthen the integrity of the Migration Program and ensure employers do not misuse it
when filling labour shortages.
The primary aim of the proposed changes in relation to this 'positive obligation' is to:
• clarify existing obligations in relation to allowing or referring non-citizens for work,
and
• outline how employers, intermediaries and third party facilitators are expected to
acquit those obligations.
The overarching aim is to help employers to avoid facing potentially far more severe
consequences associated with allowing or referring an unlawful non-citizen to work or a
non-citizen to work in breach of a work related visa condition.
Existing obligations
Under the existing framework, there are offences for 'allowing' or 'referring' an unlawful
non-citizen for work or a lawful non-citizen who would breach a work related condition of
100
their visa if they participated in the work.12 These are serious offences, punishable by up to
2 years imprisonment.
Currently, an employer or third party provider is able to provide a defence for a
contravention if they have used the relevant departmental systems (currently the Visa
Entitlement Verification Online, or VEVO, system), or if they have undertaken other
reasonable steps, to verify the non-citizen's visa status and conditions.
New positive obligation
The changes proposed in this Bill create a positive obligation on employers to undertake
the necessary checks to avoid inadvertently breaching their obligations and committing
those offences.
Under the new framework, an employer or third party provider is able to acquit their
responsibilities by:
• registering with VEVO and logging into the system themselves to verify that any
prospective non-citizen employee is lawful and would not be in breach of work
related visa conditions if they were to employ them.
• obtaining information from a third party provider (such as a contracted service
provider or labour hire intermediary) that provides evidence that a VEVO
verification check has occurred, and that the non-citizen is lawful and would not be
in breach of work related visa conditions if they were to employ the non-citizen.
• obtaining an automatically generated email from the Department, initiated by the
non-citizen13 that provides evidence, through VEVO, that the non-citizen is lawful
and would not be in breach of work related visa conditions if they were to employ
the non-citizen.
While the new positive obligation is a strengthening of existing expectations, the
Department is seeking to minimise the impost on employers by generally allowing a
degree of flexibility in the manner by which the VEVO verification can occur.
However, the amendments do require that 'required system users' must log into and use
VEVO directly to determine whether a non-citizen is lawful and has permission to work.
A required system user cannot rely on VEVO checks undertaken by another party.
A required system user includes:
• a former 'prohibited employer' (for a period of 12 months after their prohibited
employer status ends)
• a person who is determined by the Minister to be a required system user, or
12
Refer ss 245AB, 245AC, 245AE, 245AEA, 245AEB
13
This can be done by the non-citizen logging into their own VEVO account and using the 'send' function.
101
• a class of persons specified by the Minister in a legislative instrument.
The decision to determine that a person is a required system user might arise in situations
where, for example, an employer is recruiting labour directly from overseas, or where
there are overseas labour hire contractors or overseas third parties supplying labour.
The new measures help employers, intermediaries and third party providers to have a level
of assurance that they are acquitting their responsibilities as required under existing laws.
A new civil penalty has been introduced for failing to meet this requirement (48 penalty
units).
Increases in pecuniary penalties
The Bill aligns the maximum criminal and civil pecuniary penalties for all current
and proposed work-related offences and provisions to match existing penalties for
unlawfully obtaining a benefit from visa sponsorship.
The Bill proposes to increase pecuniary penalties across the work-related civil penalty
provisions and related offences in the Migration Act, and for approved work sponsors who
fail to satisfy a sponsorship obligation under the Sponsorship Obligations Framework in
the Migration Act and Regulations.
The work-related civil penalty provisions in the Migration Act currently attract a
pecuniary penalty of 90 penalty units (for individuals). The civil penalty for breaching
sponsorship obligations is set at 60 penalty units.
The Bill increases all of these pecuniary penalties to 240 penalty units (for individuals).
While the civil penalty for breaching a sponsorship obligation is increased to 240 penalty
units for an approved work sponsor, this remains at 60 penalty units for any other case
(noting the Sponsorship Framework in the Migration Act also extends to family sponsors,
who are not affected by these amendments).
This aligns the civil penalties for work-related civil penalty provisions, and the
sponsorship obligations provision, with the higher penalties associated with the current
prohibitions in sections 245AR and 245AS of the Migration Act in relation to asking for
or receiving, or offering to provide or providing, a benefit in return for the occurrence of a
sponsorship-related event (paying for visa sponsorship provisions).
The alignment of the pecuniary penalties associated with these civil penalty provisions
demonstrates that the Government considers all contraventions of provisions relating to
the employment of non-citizens to be equally serious. It seeks to address the misuse of
Australia's Migration Program by some employers.
For financial penalties to have a deterrent effect, they must be set at a level that actually
deters people from contravening and offending. These increased civil penalties reflect the
severity of the impact of a contravention on the individual migrant worker directly
affected by that act, but also the significant damage that the actions of a few unscrupulous
102
employers or labour hire intermediaries can have on visa program integrity and Australia's
reputation as a destination of choice.
The aim of the amendments to the penalty provisions and increases to penalty units is to
send a strong message to employers and third party providers that any contravention of the
laws relating to migrant workers constitutes a serious breach.
This measure follows the Fair Work Amendment (Protecting Vulnerable Workers) Act
2017, which increased penalties (up to 10 times the previous amount) for 'serious
contraventions'.
The public consultation on the Bill found that while some submissions argued that
increasing penalty amounts is not as effective as criminal offences, the raising and
alignment of penalties did not generally raise concerns.
New compliance tools
The Bill provides additional tools to the Australian Border Force to encourage and
where necessary enforce compliance with work-related provisions in the Migration
Act.
The Bill proposes to give the Australian Border Force (ABF) new tools to address issues
of non-compliance proportionately, and encouraging greater levels of voluntary
compliance. The tools are modelled on those available to Fair Work Inspectors, and they
allow ABF officers to better tailor their response to non-compliant behaviour without
imposing a sanction, where appropriate.
The two new tools to be enabled through this Bill are enforceable undertakings and
compliance notices.
Enforceable Undertakings
The Bill establishes arrangements for the Minister or the Minister's delegate to enter into
an enforceable undertaking with an employer, labour hire intermediary or other party that
has not complied with work-related offences and work-related provisions under the
Migration Act. This will include the new offences and civil penalty provisions to be
introduced by the Bill, in addition to the established offences and provisions in the
Migration Act.
The amendments provide a mechanism to trigger standard provisions for enforceable
undertakings in the Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory
Powers Act).
Enforceable undertakings (EUs) are legally binding arrangements in which an employer
agrees to address contraventions and prevent future breaches. They are designed to secure
quick and effective remedies for contraventions of regulatory provisions.
103
Importantly, EUs provide the necessary flexibility to require a person to take specific
action - or refrain from a specific action - to address the underlying issue(s) of non-
compliance, based on the circumstances of the case.
EUs are most effectively used for complex cases, where there may be systemic issues of
concern, and where the employer is voluntarily seeking to work with the Department to
rectify issues of non-compliance. They can offer an effective mechanism to improve
compliance outcomes as an alternative to prosecuting a case through the courts.
Currently under the Employer Sponsor Framework, the ABF is able to enter into an EU in
order to improve compliance outcomes. However, there is currently no option to use an
EU for employers not engaged in the 'employer sponsor' program. In order to improve
compliance outcomes, there may be circumstances in which an EU would provide an
effective tool to remedy non-compliance in cooperation an employer.
For example, an EU might include an agreement in which the employer undertakes to:
• register with VEVO
• undertake an audit of all non-citizen employees to address any issues of non-
compliance associated with the employment of 'illegal workers'
• provide to the ABF evidence of that audit - and information that demonstrates a
move towards compliance with work related obligations under the Migration Act
(details of non-citizen workers, their visa status and conditions and their conditions
of employment).
• provide to the ABF evidence that it has established procedures to support ongoing
compliance with work related provisions under the Migration Act.
Compliance notices
The primary obligation for employers under the Migration Act is the obligation not to
employ an unlawful non-citizen or a non-citizen in breach of work-related visa conditions
(known as an 'illegal worker'). In terms of compliance, this breach is often initially
addressed with an Illegal Worker Warning Notice (IWWN). An IWWN is an
administrative notice that can be issued on the spot where an officer suspects that an
employer may be employing an unlawful non-citizen or a non-citizen in breach of work
related conditions.
The purpose of an IWWN is to:
• inform the recipient that they have contravened a work-related provision of the
Migration Act, and
• provide information to the recipient about:
o migration laws relating to illegal work
o consequences of illegal work
o statutory defences available against alleged contraventions, such as
taking reasonable steps to check an employee's permission to work in
Australia
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o services available to assist with the checking of visa validity and work
entitlements, such as the VEVO system.
An IWWN is an education tool, informing the employer that the Department suspects non-
compliance, and giving the employer the opportunity to remedy their non-compliant
behaviour.
A compliance notice takes that education one step further and directs the employer to
undertake certain actions - or refrain from certain actions - to remedy the issue of non-
compliance. Compliance notices may also include a requirement for the person to produce
reasonable evidence of compliance with the notice. A compliance notice might direct an
employer to:
• register with VEVO
• undertake an audit of all non-citizen employees to ensure they are not unlawful non-
citizens or working in breach of a work related visa condition
• refrain from employing non-citizens who are either unlawful non-citizens, or if
employed, would be working in breach of a work related visa condition
• provide evidence of that audit - and their compliance with work related obligations
under the Migration Act to the ABF (details of non-citizen workers, their visa status
and conditions and their conditions of employment).
Compliance notices provide a timely, non-punitive mechanism for the Department and the
ABF to work with employers, labour hire intermediaries and other parties to address
alleged contraventions of the work-related provisions of the Migration Act.
A person who complies with a compliance notice is not taken to have admitted to
engaging in the conduct constituting the offence or contravention.
Where a person complies with a compliance notice, the Department is unable to
commence court proceedings against that person for the particular contraventions that are
the subject of the compliance notice.
Human rights implications
These amendments engage the following rights:
• Right to work and the right to just and favourable conditions of work - Articles 6
and 7 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR)
• Right to be free from the requirement to perform forced or compulsory labour or
held in servitude - Article 8 of the International Covenant on Civil and Political
Rights (ICCPR)
• Right to privacy - Article 17 of the ICCPR
• The right to a fair trial and criminal process rights - Articles 14 and 15 of the ICCPR
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• Right to equality and non-discrimination - Article 26 of the ICCPR.
Right to work
The amendment engages Article 6(1) of the ICESCR, which states that:
The States Parties to the present Covenant recognize the right to work, which
includes the right of everyone to the opportunity to gain his living by work which
he freely chooses or accepts, and will take appropriate steps to safeguard this
right.
As outlined above, the amendments to the Migration Act include provisions to prohibit
certain employers, intermediaries or third party providers from allowing additional
temporary migrants to work for a specified period. This prohibition does not affect
existing employees.
The intent of the new measure is to build on existing provisions available in the 'Employer
Sponsor' framework that give the Department the ability to 'bar' an employer sponsor
from engaging in the program (under section 140M).
• The effect of the prohibition for employer sponsors is to extend the bar, prohibiting
the employer from 'allowing' other temporary migrants to work (i.e. those not
engaged through a sponsorship arrangement).14
• The effect for other employers (i.e. any employer not engaging in the employer
sponsor program), is that they will be prohibited from 'allowing' any temporary
migrant worker to work.
In effect, where an employer has misused the Migration Program, this new measure
effectively prohibits that employer from accessing the migration program to meet labour
needs for a period of time.
While some may interpret this measure as limiting the employment opportunities for
temporary migrant workers, the primary focus is the behaviour of the employer, and the
aim is to ensure that employer will stop engaging in exploitative work practices and
misusing the Migration Program.
For temporary migrant workers, there is no penalty for working for a prohibited employer.
While this new measure may limit their opportunity to work for certain businesses (i.e.
prohibited employers are not allowed to employ them), the intent is to ensure employers
are not misusing the Migration Program to access a cheap or exploitable source of labour.
Importantly, the new measure does not:
• prevent those temporary migrant workers from seeking employment with another
employer (or intermediary or third party provider); or
• affect the employment status of existing employees.
The employer is not obliged to cease the employment of any existing employees, and if
they choose to do so, the temporary migrant worker can continue working for the
14
Sponsored migrant workers are already accounted for under the existing bar.
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prohibited employer. The Department will publish details of the prohibition to ensure
existing (and prospective) employees can make informed decisions about where they
choose to work.
The prohibition may have some broader workforce impacts. For example, if an employer
is suffering labour shortages, and that employer is highly dependent on temporary migrant
workers to meet demand, the inability to employ additional temporary migrant workers
may have a negative impact on the existing workers (through workload pressures and
related issues).15 While this could have unintended consequences for existing workers, the
ongoing viability and other impacts to the business can be outlined for consideration in the
Minister's decision to prohibit or not. The employer will have an ability to highlight these
concerns in their response to a notice of intent to take action. This allows the Minister to
take these types of considerations into account when making a decision.
The Minister will be referred cases to consider imposing a prohibition based on the
following triggers:
• a person is an approved work sponsor and they are subject to a bar imposed by the
Minister under paragraph 140M(1)(c) or (d) (the Employer Sponsor Framework);
• a person is convicted of a work-related offence;
• a person is the subject of a civil penalty order in relation to the contravention of a
work-related provision;
• a person is the subject of an order for contravention of certain civil remedy
provisions (remuneration related provisions) under the Fair Work Act 2009 in
relation to the employment of a non-citizen.
The proposal focuses on:
• those contraventions that are most serious in nature (i.e. cases decided in court); and
• addressing a gap identified in the existing Employer Sponsorship Framework (i.e.
the fact that an employer sponsor barred under section140M can currently employ
other temporary migrant workers, even if they are barred from sponsoring visas).
By making the prohibition discretionary, and by providing procedural fairness through the
notice process, the measure provides for a degree of flexibility to consider individual
circumstances (including potential implications for existing employees) before applying
the ban.
Any impact on a person's ability to work for a particular employer that may result from a
prohibition aims to limit the exploitation of temporary migrant workers. The prohibition
would not limit the worker's right to work for another employer or continue working for
the 'prohibited employer' if they chose to do so.
15
It is important to note that the employer can employer other workers, including Australian citizens and permanent residents. The
employer may need to consider how it can attract those other workers.
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Rights relating to conditions of work
Article 7 of the ICESCR states:
The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of just and favourable conditions of work which ensure, in
particular:
...
(b) Safe and healthy working conditions; ...
The Bill seeks to positively enhance the right to safe and healthy working conditions by
combatting the misuse of Australia's migration program and the exploitation of migrant
workers.
The broad aim of the proposed legislative amendments is to ensure temporary migrant
workers are able to enjoy just and favourable (and equitable) conditions in the workplace.
Under the new criminal offences, the amendments provide migrant workers (and others)
with an avenue to pursue employers who exert undue influence, pressure or coercion over
migrant workers in the workplace, including in relation to work related (and health and
safety related) conditions, making it a criminal offence for the employer to do so. It
includes threats relating to:
• a migrant worker's visa conditions or right to work,
• any future visa applications,
• the potential for a visa to be cancelled or refused, and
• removing the migrant worker from Australia.
The aim is to remove possible levers inherent in the temporary nature of a temporary
migrant's status in Australia, which unscrupulous employers might use in order to engage
in exploitative (including unsafe or unhealthy) behaviour.
The other measures included in the Bill, including the increased penalties and the
prohibition, are also - broadly - aimed at promoting the right of migrant workers to enjoy
just and favourable (and equitable) conditions in the workplace by ensuring employers
don't misuse the migration program as an alternative source of cheap and exploitable
labour.
Rights relating to forced or compulsory labour or servitude
Article 8 of the ICCPR states:
No one shall be held in slavery; slavery and the slave-trade in all their forms shall
be prohibited. No one shall be held in servitude. No one shall be required to
perform forced or compulsory labour.
Through the proposed criminal offences, this Bill seeks to address potential gaps in
existing laws that already seek to address the issue of modern slavery under the Criminal
Code.
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As noted above, the intent of the new criminal offences is to ensure employers are not able
to use a temporary migrant worker's immigration status to exert undue influence, pressure
or coercion over them in the workplace - that is, they cannot coerce them into accepting
unfavourable conditions under threat of being reported to the Department of Home Affairs
or the Australian Border Force.
The new offences provide an avenue to pursue aggravated cases that do not meet existing
thresholds for prosecution through the courts.
The measures in the Bill therefore support rights relating to forced or compulsory labour
or servitude.
Rights relating to privacy
Article 17(1) of the ICCPR states:
No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
Pursuant to Article 17(1) of the ICCPR, any interference with an individual's privacy must
have a lawful basis. In addition to requiring a lawful basis for limitation on the right to
privacy, Article 17 prohibits arbitrary interference with privacy. Interference which is
lawful may nonetheless be arbitrary where that interference is not in accordance with the
objectives of the ICCPR and is not reasonable in the circumstances.
As outlined above, the proposed prohibition, which seeks to prevent certain employers
from employing additional temporary migrant workers for a specified period, includes
provisions that require the Minister to publish certain information on the Department's
website. The information that is required to be published includes:
• details of the prohibited employer (either the body corporate or the executive officer,
or both, depending on the application of the prohibited employer decision),
• the contravention(s) that gave rise to the prohibition, and
• the period during which the person is a prohibited employer.
While the Bill does provide for some flexibility for the Minister to be able to prescribe
circumstances in which publication is not required in the regulations, publishing the
details of the prohibition:
• supports the implementation of the prohibition, providing transparency for
employers, enforcement officials and prospective employees about the relevant
contravention and the prohibition;
• informs existing and potential employees of the relevant behaviour of their
employer;16 and
16
The aim is to ensure the prohibition is communicated publicly, via the Department's website, with links from the Visa Entitlement
Verification Online system, providing for maximum transparency to existing non-citizen workers and other non-citizens who might be
looking for employment opportunities.
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• puts other employers on notice and deters them from engaging in non-compliant
behaviour.
In line with the Privacy Impact Assessment undertaken to inform this initiative, the
intention is that the website will list the minimum details necessary for implementation.
The publication of prohibited employers is similar to a number of existing schemes that
publish the details of sanctions, including:
• the 'Register of sanctioned sponsors' on the ABF website
• the 'Disciplinary decisions' register in the Office of the Migration Agents
Registration Authority pages of the Department of Home Affairs website
• the Fair Work Ombudsman's publication of litigation outcomes
• the Australian Securities and Investments Commission's banned and disqualified
people register
• the Australian Taxation Department's disqualified trustees register
• the register of convictions (Victorian Department of Health)
• the Sport Integrity Australia Act 2020 (Cth) which allows for the publication of a
person's details following a sanction
While there is no legislative requirement to remove the details of a prohibited employer
once the prohibition is no longer in effect, the aim is to ensure the details are removed as
soon as reasonably practicable. This will be reflected in policy. It supports a consistent
approach with existing provisions in the Act.
The Government considers the prohibition measure a significant sanction. The Bill
includes a number of processes to ensure that the prohibition only applies to the most
serious cases of non-compliance, including restricting the triggers, incorporating processes
to give the employer an ability to 'show cause' as to why the prohibition should not apply,
and review rights. These processes also provide the employer with an opportunity to
correct any details prior to publication. The details of the contravention would already be
publicly available - whether through court records, the Fair Work Ombudsman's website,
or the ABF's Register of sanctioned employers. The Government considers that the
publication of the prohibited employers list would not only be lawful, but reasonable and
justified.
As noted above, the Department commissioned a Privacy Impact Assessment to address
privacy concerns and to ensure that the publication of the information is proportionate to
the overarching aim of protecting migrant workers.
Fair trial and criminal process rights
The Bill introduces new criminal offences and new civil penalties. It also raises the
maximum pecuniary penalties for existing offences and civil penalty provisions relating to
the employment of migrant workers, and it introduces a new compliance notice scheme.
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These measures may engage the rights in Articles 14 and 15 of the ICCPR, including the
presumption of innocence (article 14(2)), the right not to be tried or punished twice for the
same offence (article 14(7)) and the guarantee against retrospective criminal laws (article
15(1)).
New criminal offences
The new criminal offence provisions are consistent with these rights. They:
• apply to conduct that occurs after the commencement of the provision,
• do not impose minimum sentences or penalties, and
• will be prosecuted in conformity with the normal criminal process guarantees,
including those relating to court proceedings and the use of evidence.
New civil penalty provisions
The Parliamentary Joint Committee on Human Rights Practice Note 2 notes that civil
penalty provisions may engage criminal process rights under Articles 14 and 15 of the
ICCPR, regardless of the distinction between criminal and civil penalties in domestic law.
When a provision imposes a civil penalty, an assessment is required as to whether it
amounts to a criminal penalty for the purposes of ICCPR.
All of the new civil penalty provisions apply to contraventions by employers and labour
hire intermediaries, in the context of a regulatory framework, and do not apply to the
general public.
Some of the new civil penalty provisions are being introduced alongside a criminal
offence and serve as an alternative to prosecution. This is the case for the new offences of
coercing, or exerting undue influence or pressure over a non-citizen to accept or agree to a
work arrangement in breach of a work-related visa condition or in order to avoid an
adverse effect on the non-citizen's immigration status, or that would result in the
non-citizen being unable to satisfy a work-related visa requirement. The availability of
both civil and criminal penalties allows for a graduated response to these practices,
allowing flexibility to discern whether a civil penalty which does not attract the same
consequences as a criminal penalty is more appropriate in a case than using the criminal
offence.
For these civil penalty provisions that are alternatives to prosecution of the two new
criminal offences relating to coercion, the maximum penalty of 240 penalty units reflects
the serious nature of the contravention.
While a contravention of the prohibited employer provisions does not sit alongside a
criminal offence, it is linked to the most serious cases of non-compliance. Noting the
severity of the circumstances that lead to a prohibition, a contravention of the prohibition
is also set at a maximum penalty of 240 penalty units.
If these provisions are considered as criminal in nature due to the substantial pecuniary
sanction, they may limit the right to presumption of innocence since they involve the civil
standard of proof and do not require proof of the person's state of mind. The Government
contends that these limitations would be reasonable, necessary and proportionate to the
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legitimate objective of preventing and deterring the exploitative work practices of
unscrupulous employers and labour hire intermediaries, which harm vulnerable migrant
workers and undermine the integrity of Australia's migration program. It is a matter for
the Court to decide the appropriate penalty depending on the circumstances of the case
before it.
The prohibition on certain employers from employing additional temporary migrant
workers for a specified period may raise concerns about the right not to be tried or
punished twice for the same offence (article 14(7)). However, the Government contends
that the intent is not to 're-prosecute', 're-convict' or punish the employer for the same
offence / contravention, triggering the same penalties; rather it is to provide for an
additional deterrent to employers engaging in serious contraventions, where appropriate,
in order to change behaviour.
The aim is to implement Recommendation 20 from the Taskforce Report, recognising the
policy intent to address the serious misuse of Australia's migration program, addressing:
• persistent issues of underpayment (exploiting migrant workers as a cheap alternative
source of labour); and
• identified gaps in the existing regulatory framework which includes a bar to prevent
employer sponsors engaging in the sponsorship program (currently barred employer
sponsors are not prevented from replacing sponsored employees with other
temporary migrant workers).
The prohibition will only be triggered by the most serious cases and it will come into
effect after a deliberation of the circumstances of the case, including consideration of any
additional information the employer would like considered through 'show cause'
processes. It therefore offers sufficient flexibility to consider individual circumstances and
treat cases differently.
In effect, the prohibition seeks to protect the rights of migrant workers and to deter
unscrupulous employers from misusing the migration program by using migrant workers
as cheap labour. It is not intended as a limitation on the right not to be tried or punished
again for an offence.
The other new civil penalty provisions are set at a lower level because, while important,
the Government classifies them as general civil contraventions. These include
contraventions for:
• breaching the additional reporting obligations for (former) prohibited employers
• breaching the requirement to ensure a migrant worker's visa status and conditions
are verified using the Department's systems before employing them or referring
them for employment
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• failing to comply with a compliance notice.17
As general civil contraventions, lower penalties (48 penalty units) apply. These civil
penalty provisions should not be considered criminal in nature, due to the lower penalties
as well as their regulatory/disciplinary context.
Increasing pecuniary penalties for existing offences and civil penalty provisions
To the extent that increasing the pecuniary penalties for existing work-related civil penalty
provisions and related offences in the Migration Act, and for approved work sponsors who
fail to satisfy a sponsorship obligation under the Sponsorship Obligations Framework in
the Migration Act and Regulations, may result in these provisions also being considered to
be more 'criminal' in nature, the alignment of the pecuniary penalties associated with
these civil penalty provisions demonstrates that the Government considers all
contraventions of provisions relating to the employment of non-citizens to be equally
serious. It seeks to address the misuse of Australia's Migration Program through the
exploitation of temporary migrant workers.
For financial penalties to have a deterrent effect, they must be set at a level that actually
deters people from contravening and offending. These increased civil penalties reflect the
severity of the impact of a contravention on the individual migrant worker directly
affected, but also the significant damage that the actions of a few unscrupulous employers
or labour hire intermediaries can have on visa program integrity and Australia's reputation
as a destination of choice.
The Government contends that any consequent limitations on criminal process rights are
reasonable, necessary and proportionate to these legitimate objectives.
Right of equality and non-discrimination
This Bill may engage the right of equality and non-discrimination in Article 26 of the
ICCPR, which states:
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
The measures in the Bill, particularly the prohibition on sanctioned employers from
employing additional temporary migrant workers, will operate in relation to certain non-
citizens only. They will not operate in relation to the employment of Australian citizens,
and in the case of the prohibition, on the employment of Australian permanent residents.
While this represents a differentiation based on immigration and citizenship status, these
measures are consistent with the overarching intent of the Bill to specifically address the
exploitation of migrant workers. In doing so, it seeks to positively enhance the right of
temporary migrant workers to enjoy equitable conditions at work, as they are more likely
17
Compliance notices give an employer an opportunity to comply with their obligations without punishment. Where an employer
complies with a compliance notice, the Department is unable to commence court proceedings against that person for the particular
contraventions that are the subject of that compliance notice.
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to be in a vulnerable employment position compared to Australian citizen and permanent
resident workers.
Publication of the 'prohibited employer' provisions (and prohibited employers) helps to
minimise the risk of the effects of the Bill being perceived as discriminatory by providing
transparency about the intent, reasons and application of the prohibition. The primary aim
is to enhance the rights of temporary migrant workers and address the misuse of
Australia's migration program. This will help temporary migrant workers understand why
they were not able to be employed by a prohibited employer in comparison to Australian
citizen and permanent resident workers.
Noting the overarching intent, the Government believes this differentiation is reasonable,
necessary and proportionate to achieving legitimate aims.
Conclusion
The measures included in the Migration Amendment (Protecting Migrant Workers) Bill
2021 support the protection of migrant workers from worker exploitation. The measures
are compatible with human rights because they protect the human rights of vulnerable
migrant workers in Australia. To the extent that the proposed measures may limit human
rights, those limitations are reasonable, necessary and proportionate to the objective.
The Hon Alex Hawke MP
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
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