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2008
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION LEGISLATION AMENDMENT (WORKER PROTECTION) BILL 2008
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
Senator the Hon. Chris Evans)
MIGRATION LEGISLATION AMENDMENT (WORKER PROTECTION) BILL 2008
OUTLINE
The Migration Legislation Amendment (Worker Protection) Bill 2008 ('the
Bill') amends the Migration Act 1958 ('the Migration Act') to enhance the
framework for the sponsorship of non-citizens seeking entry to Australia.
The bill is designed to preserve the integrity of the Australian labour
market and ensure that the working conditions of sponsored visa holders
meet Australian standards.
The sponsorship framework is improved through four main measures:
. providing the structure for better defined sponsorship obligations for
employers;
. improved information sharing across all levels of government;
. expanded powers to monitor and investigate possible non-compliance by
sponsors; and
. introduction of meaningful penalties for sponsors found in breach of
their obligations.
More specifically the Bill:
. repeals provisions providing for sponsorship undertakings to be made and
replaces them with provisions allowing for the creation of new
sponsorship obligations that will automatically apply to an approved
sponsor;
. introduces civil penalty provisions for failure to satisfy a sponsorship
obligation, and a supporting civil penalty framework which provides that
in addition to ordering payment of a pecuniary civil penalty, a court may
order payment of a debt owed to a person in relation to a sponsorship
obligation.
. maintains and enhances the existing sanction and enforcement tools in
relation to sponsorship which include:
o barring a sponsor from sponsoring more people, or making further
applications for approval as a sponsor;
o cancelling a person's approval as a sponsor;
o requiring the taking or enforcing of a security bond;
o providing that a person to whom a debt is owed in relation to a
sponsorship obligation may apply to a court to recover that amount.
. establishes a monitoring regime to promote compliance with sponsorship
obligations which provides for the appointment of inspectors with powers
to enter premises and require documents or things in relation to a
sponsor's compliance with the sponsorship obligations and other
requirements;
. ensures that personal information regarding sponsored visa holders or
former sponsored visa holders and approved sponsors or former approved
sponsors can be disclosed to the other party or to prescribed agencies of
the Commonwealth or of a State or Territory;
. amends the Tax Administration Act 1953 (the TAA) to allow the
Commissioner of Taxation to disclose certain information to an officer of
the Department of Immigration and Citizenship. The information must be
relevant to the exercise of the Minister's powers under Division 3A of
Part 2 of the Migration Act;
. provides that a party to an agreement entered into with the Minister to
facilitate the entry to Australia of non-citizens for the purposes of
work, is subject to sponsorship obligations, civil penalties for breach
of sponsorship obligations, and the new monitoring and information
gathering powers;
. ensures that where a partnership or unincorporated association is an
approved sponsor, it is the persons who are the partners or members of
the association's committee of management at any given time who are
required to satisfy the sponsorship obligations;
. includes transitional provisions clarifying that the new sponsorship
obligations will apply to existing approved sponsors of prescribed kinds
of visas on commencement. Where the new obligations are imposed, any
previous sponsorship undertakings that related to the sponsorship for
that visa will cease to be enforceable.
financial impact statement
The Bill will have minimal financial impact.
The 2008/09 Budget allocated $19.6 million over four years (including $0.4
million in capital funding in 20008/09) to develop and introduce
legislation to better define employers' obligations, improve investigative
powers and develop a more robust sanctions framework and conduct a related
comprehensive information campaign.
There will also be modest revenue in the forward years from the new civil
penalties and infringement notices regime.
MIGRATION LEGISLATION AMENDMENT (WORKER PROTECTION) BILL 2008
notes on individual clauses
Clause 1 Short title
1. Clause 1 provides that the short title by which the Act may be cited is
the Migration Legislation Amendment (Worker Protection) Act 2008.
Clause 2 Commencement
2. Subclause 2(1) provides that each provision of the Act specified in
column 1 of the table commences, or is taken to have commenced, in
accordance with column 2 of the table. Any other statement in column 2
has effect according to its terms.
Table Item 1 provides that sections 1 to 3 of the Act and anything in the
Act not elsewhere covered by the table will commence on the day on which
this Act receives the Royal Assent.
Table Item 2 provides that Schedules 1 and 2 commence on a single day to
be fixed by Proclamation. However, it also provides that if any of the
provision(s) do not commence within the period of 9 months beginning on
the day on which the Act receives the Royal Assent, they commence on the
first day after the end of that period.
3. The period is set at 9 months to allow the recommendations of various
review and consultation processes to be taken into account in drafting
the regulations, policies and procedures that will support the new
provisions on commencement. This includes a Visa Subclass 457 Integrity
Review being conducted by an industrial relations expert as well as
considerations by a Skilled Migration Consultative Panel consisting of
representatives from industry, unions and State Governments.
4. Subclause 2(2) explains that column 3 of the table contains additional
information that is not part of this Act. It specifies that information
in this column may be added to or edited in any published version of this
Act.
5. An explanatory note is provided to assist the reader at the end of this
table. It specifies that the table relates only to the provisions of
this Act as originally passed by both Houses of Parliament and assented
to. It states clearly that the table will not be expanded to deal with
provisions inserted in this Act after assent.
Clause 3 Schedule(s)
6. This clause provides that each Act specified in a Schedule to the
Migration Legislation Amendment (Worker Protection) Act 2008 is amended
or repealed as set out in the applicable items in the Schedule concerned.
In addition, any other item in a Schedule to Migration Legislation
Amendment (Worker Protection) Act 2008 has effect according to its terms.
Schedule 1-Migration Act 1958
Part 1-Amendments
Item 1 Subsection 5(1) (definition of approved sponsor)
7. This item substitutes the current definition of "approved sponsor" in
subsection 5(1) of the Migration Act with a new definition. The current
definition of "approved sponsor" provides that in relation to a visa of a
kind to which Division 3A of Part 2 of the Migration Act applies,
"approved sponsor" has the meaning given by section 140D.
8. Current section 140D has the effect that a person (the first person) is
an "approved sponsor" in relation to another person (the second person)
once the first person, approved under existing section 140E, has
consented in writing to sponsor the second person.
9. Item 1 replaces this definition to provide that a person is an "approved
sponsor" if they meet one of two descriptions; namely the person is
approved as a sponsor under section 140E, or is a party to a work
agreement.
10. An "approved sponsor" is a person who has been approved by the Minister
under section 140E in relation to a class of approved sponsor (the
classes are prescribed under subsection 140E(2)), and whose approval in
relation to that class of approved sponsor has not been cancelled under
section 140M or otherwise ceased to have effect under section 140G.
11. Alternatively, an approved sponsor is a person, other than a Minister,
who is a party to a work agreement (item 8 inserts a definition of work
agreement by reference to satisfying prescribed requirements). Generally,
a work agreement is an agreement between the Commonwealth, represented by
one or more Ministers, and another person or organisation detailing
arrangements whereby the other person may sponsor temporary visa holders
to perform work.
12. In relation to persons approved under section 140E, the effect of this
amendment is that a person becomes an "approved sponsor" once they have
met certain approval criteria (prescribed under section 140E), as opposed
to when they have provided their consent in writing to sponsor a
particular visa applicant (which is the position under the current law).
13. The purpose of moving forward the point at which a person becomes an
"approved sponsor" is to ensure that a person can be required to satisfy
a sponsorship obligation from the time they meet the sponsorship
approval criteria under section 140E (i.e. before a visa is granted). An
example of the type of obligation that would be desirable to impose
before a visa is granted could be the obligation to notify the Department
of Immigration and Citizenship (the department) of any change in
circumstances that may affect the sponsor's capacity to comply with
obligations; or any change to the information that contributed to the
business or organisation being approved as a sponsor, or the approval of
a nomination.
14. Under new section 140H (inserted by item 19) a person can only be
required to satisfy sponsorship obligations if they are an "approved
sponsor" or former "approved sponsor".
15. For sponsors approved under section 140E, a further effect of this
amendment is that a person ceases to be an "approved sponsor" in relation
to a class of approved sponsor when their approval as a sponsor in
relation to that class is cancelled under section 140M, or a term of the
approval under section 140G ceases the approval. However, a person will
continue to be an "approved sponsor" in relation to a particular class of
approved sponsor despite being the subject of a barring action under
section 140M.
16. In relation to sponsors who are a party to a work agreement, the effect
of this amendment is that a party to a work agreement, other than a
Minister, is an approved sponsor. This means that a party to a work
agreement is required to satisfy the sponsorship obligations prescribed
under subsection 140H(1), unless a sponsorship obligation is varied by a
term of the work agreement (this is discussed at item 19). By virtue of
being an approved sponsor, a person who is a party to a work agreement is
also subject to the civil penalty provisions, investigation powers,
information disclosure powers, and other provisions in Division 3A of
Part 2 of the Migration Act.
17. This item also inserts a note under the definition of "approved
sponsor". The note advises that due to new subsections 140ZB(1) and
140ZE(1) (inserted by item 30), a "person" is not limited to being a body
corporate or a natural person, but may also be a partnership or an
unincorporated association.
Item 2 Subsection 5(1)
18. This item inserts a definition of "civil penalty provision" into the
definitions section of the Migration Act. It provides that "civil penalty
provision" means a provision of the Migration Act that has set out at its
foot the words "civil penalty" and one or more amounts in penalty units.
19. New section 140Q (inserted by item 27) inserts two civil penalty
provisions. Civil penalty provisions have not previously been included in
the Migration Act.
Item 3 Subsection 5(1)
20. This item inserts a definition of "committee of management" of an
unincorporated association into the definitions section of the Migration
Act. It provides that "committee of management" of an unincorporated
association means a body, however described, that governs, manages or
conducts the affairs of the association.
21. This definition is currently included in Subdivision C of Division 3A
of Part 2 of the Migration Act and is defined for the purposes of that
Subdivision. The effect of this amendment is that the definition will
apply for the purposes of the Migration Act.
Item 4 Subsection 5(1)
22. This item inserts a definition of "eligible court" into the definitions
section of the Migration Act. It provides a list of courts that are
"eligible courts" which includes the Federal Court, the Federal
Magistrates Court, a District, County or Local Court, a magistrates
court, or any other State or Territory court as prescribed.
23. This definition allows the regulations to prescribe other State or
Territory courts as "eligible courts". Additionally, new subsection
140S(4) (inserted by item 27) confirms that for the purposes of the
definition of "eligible court", the regulations may prescribe other State
or Territory courts as "eligible courts" in which an amount may be
recovered under section 140S.
Item 5 Subsection 5(1)
24. This item inserts a definition of "lawyer" into the definitions section
of the Migration Act. It provides that "lawyer" means a barrister, a
solicitor, a barrister and solicitor, or a legal practitioner of the High
Court or of the Supreme Court of a State or Territory.
25. This definition of "lawyer" is currently provided at section 275 of the
Migration Act for the purposes of Part 3 of the Migration Act. Section
486K of the Migration Act also provides that "lawyer" has the same
meaning as in Part 3 of the Migration Act. New section 486U (inserted by
item 42 of this Bill) also includes the word "lawyer".
26. The effect of this amendment is that the definition will apply for the
purposes of the whole Migration Act. Items 32 and 41 repeal the
definition of "lawyer" from sections 275 and 486K respectively.
Item 6 Subsection 5(1)
27. This item inserts a definition of "penalty unit" into the definitions
section of the Migration Act. It provides that "penalty unit" has the
same meaning as that given in section 4AA of the Crimes Act 1914. Section
4AA of the Crimes Act 1914 sets out a dollar amount to which one penalty
unit equates. Currently, 1 penalty unit is equal to $110.
Item 7 Subsection 5(1)
28. This item inserts a definition of "personal information" into the
definitions section of the Migration Act. It provides that "personal
information" has the same meaning as that given in the Privacy Act 1988.
Section 6 of the Privacy Act 1988 provides that personal information
means information or an opinion (including information or an opinion
forming part of a database), whether true or not, and whether recorded in
a material form or not, about an individual whose identity is apparent,
or can reasonably be ascertained, from the information or opinion.
29. The definition of "personal information" is currently included in
various places throughout the Migration Act for the purposes of specific
provisions. The definition of "personal information" in each of these
provisions is the same definition inserted by this item.
30. The effect of this amendment is to include the definition of "personal
information" for the purposes of the whole Migration Act. Items 31, 33-
40, and 43 repeal the definition of "personal information" or remove
reference to the Privacy Act 1988 from other provisions of the Migration
Act.
Item 8 Subsection 5(1)
31. This item inserts a definition of "work agreement" into the definitions
section of the Migration Act. It provides that a "work agreement" is an
agreement which satisfies requirements prescribed by the regulations.
This definition allows the regulations to prescribe the requirements that
an agreement must satisfy to be a "work agreement". Additionally, new
section 140GC (inserted by item 18) clarifies that for the purposes of
the definition of work agreement, the regulations may prescribe
requirements that an agreement must satisfy.
32. The term "work agreement" is intended as an 'umbrella' term to refer to
various types of agreements defined or referred to by the regulations. It
is necessary to prescribe the meaning of "work agreement" in the
regulations to provide flexibility to include new types of agreements,
and incorporate any new definition of the current kinds of agreements in
the meaning of "work agreement".
33. It is envisaged that the regulations will prescribe labour agreements,
Invest Australia Supported Skills agreements, religious worker
agreements, and any similar kind of agreement as they are developed. The
common element of these agreements is that they are between the
Commonwealth, represented by one or more Ministers, and another person or
organisation detailing arrangements whereby the other person may sponsor
temporary visa holders to perform work.
34. It is also envisaged that the regulations will prescribe "work
agreements" to include existing agreements of a kind which are in force
at the time of commencement. The purpose of this is to ensure that a
party to an existing agreement of a kind can be an "approved sponsor"
(see item 1 in relation to the definition of "approved sponsor") on
commencement.
Item 9 Subdivision GA of Division 3 of Part 2
35. This item repeals Subdivision GA of Division 3 of Part 2 of the
Migration Act, which comprises current sections 137A through to 137H.
This subdivision provides the process and power to cancel a person's
approval as a business sponsor. A business sponsor, for the purposes of
the Subdivision, is a person who is approved to sponsor a person for a
Subclass 457 (Business (Long Stay)) visa.
36. Division 3A of Part 2 of the Migration Act sets out the process and
power to cancel the approval of a sponsor for a visa of a kind prescribed
for the purposes of the Division. The Subclass 457 (Business (Long Stay))
visa is currently prescribed by the purposes of the Division. However,
current subsections 140J(5) and 140K(5) provide that the approval of a
sponsor in relation to a Subclass 457 (Business (Long Stay)) visa cannot
be cancelled under Division 3A of Part 2 of the Migration Act.
37. Subdivision GA of Division 3 of Part 2 of the Migration Act is repealed
because it is no longer necessary to have a cancellation process and
power for business sponsors as well as the cancellation process and
powers under Division 3A of Part 2 of the Migration Act. Subdivision GA
of Division 3 of Part 2 of the Migration Act was inserted in the
Migration Act prior to the insertion of Division 3A of Part 2 of the
Migration Act. When Division 3A of Part 2 of the Migration Act commenced,
the Subclass 457 (Business (Long Stay)) visa was not prescribed for the
purposes of the Division. As a result it was still necessary to have the
cancellation powers and process in Subdivision GA of Division 3 of Part 2
of the Migration Act. As the Subclass 457 (Business (Long Stay)) visa is
currently prescribed for the purposes of Division 3A of Part 2 of the
Migration Act, it is not necessary to maintain Subdivision GA of Division
3 of Part 2 of the Migration Act.
Item 10 Subdivision A of Division 3A of Part 2 (heading)
38. This item repeals the existing heading "Subdivision A - Application of
Division", and replaces it with the new heading "Subdivision A -
Preliminary".
Item 11 Subdivision B of Division 3A of Part 2 (heading)
39. This item repeals the existing heading "Subdivision B - Sponsorship
System".
40. This heading is repealed because item 12 inserts a new heading for
Subdivision B of Division 3A of Part 2 of the Migration Act.
Item 12 Sections 140B to 140D
41. This item repeals sections 140B to 140D, and inserts a new heading for
Subdivision B of Division 3A of Part 2 of the Migration Act -
"Subdivision B - Approving sponsors and nominations".
42. Current subsection 140B(1) provides that sponsorship by an approved
sponsor may be prescribed in the regulations as a criterion for a visa of
a prescribed kind. Subsection 140B(2) makes it clear that subsection
140B(1) does not limit the criteria which may be prescribed under other
provisions of the Migration Act. This includes subsection 31(3) of the
Migration Act which provides that the regulations may prescribe criteria
for a visa or visas of a specified class.
43. The purpose of section 140B is to provide the context as to when
sponsorship may be required for visas to which Division 3A of Part 2 of
the Migration Act applies. That is, it points out that sponsorship may be
a criterion to be satisfied for a visa. The provision does not create a
power to make any regulations that could not be made under subsection
31(3) of the Migration Act. Therefore, the provision is repealed because
it is not necessary.
44. Current subsections 140C(1) and (2) provide that the regulations may
prescribe as a criterion for a valid application for a visa of a
prescribed kind that the applicant is sponsored by an approved sponsor;
and/or that the applicant's proposed sponsor has applied to be an
approved sponsor at or before the time the application for the visa is
made. Subsection 140C(3) makes it clear that subsection 140C(1) does not
limit the criteria which may be prescribed under other provisions of the
Migration Act. This includes subsection 46(3) of the Migration Act which
provides that the regulations may prescribe criteria that must be
satisfied for an application for a visa of a specified class to be a
valid application.
45. The purpose of section 140C is to provide context as to when
sponsorship may be required for visas to which Division 3A of Part 2 of
the Migration Act applies. That is, it points out that sponsorship
(whether proposed or already in place) may be required to make a valid
application for a visa. The provision does not create a power to make any
regulations that could not be made under subsection 46(3) of the
Migration Act. Therefore, the provision is repealed because it is not
necessary.
46. Subsection 140D sets out the meaning of "approved sponsor". It has the
effect that a person (the first person) is an "approved sponsor" in
relation to another person (the second person) once the first person, who
must be approved under existing section 140E, has consented in writing to
sponsor the second person.
47. Section 140D is repealed because item 1 inserts a definition of
"approved sponsor" into the definitions section of the Migration Act,
effectively replacing the definition of "approved sponsor" in existing
section 140D.
Item 13 Subsection 140E(1)
48. This item amends subsection 140E(1) to provide that rather than
approving a person as a sponsor, the Minister must approve a person as a
sponsor in relation to one or more classes of approved sponsor prescribed
for the purposes of subsection 140E(2).
49. The purpose of this amendment is to clarify that a person who meets the
criteria prescribed in the regulations under subsection 140E(1) is to be
approved as a sponsor in relation to a class or classes of approved
sponsor.
50. Currently, the regulations include a 'title' to refer to a person who
is approved as a sponsor for certain visa subclasses. For example, a
"standard business sponsor" is a person who is approved as a sponsor for
Subclass 457 (Business (Long Stay)) visas. This item provides express
support in the Migration Act for this approach in the regulations by
providing an express power to prescribe classes of approved sponsor. For
example, a class of approved sponsor may be a "standard business
sponsor".
51. This item also includes a note which provides that the existing heading
to section 140E "Approving sponsor" is replaced with the new heading
"Minister to approve sponsor".
Item 14 At the end of subsection 140E(1)
52. This item inserts a note at the end of subsection 140E(1) which advises
that a person (other than a Minister) who is a party to a work agreement
is an approved sponsor and does not need to be approved as a sponsor
under this section.
53. A definition of "approved sponsor" is inserted by item 1, and a
definition of "work agreement" is inserted by item 8.
Item 15 Subsection 140E(2)
54. This item repeals subsection 140E(2) and replaces it with new
subsections 140E(2) and 140E(3).
New subsection 140E(2)
55. New subsection 140E(2) provides that the regulations must prescribe
classes in relation to which a person may be approved as a sponsor. The
purpose of new subsection 140E(2) is to include an express provision
requiring classes of approved sponsor to be prescribed in the
regulations.
56. The regulations must prescribe classes of approved sponsor so that a
person can be approved as a sponsor in relation to a particular class.
Otherwise, there will be no class of approved sponsor that the person can
be approved in relation to, rendering the sponsorship framework
redundant.
57. As discussed above at item 13, the regulations include a 'title' to
refer to a person who is approved as a sponsor for certain visa
subclasses. For example, a "standard business sponsor" is a person who is
approved as a sponsor for Subclass 457 (Business (Long Stay)) visas. New
subsection 140E(2), in conjunction with amended subsection 140E(1)
provides express support in the Migration Act for this approach in the
regulations by providing an express power to prescribe classes of
approved sponsor.
58. For example, a class of approved sponsor may be a "standard business
sponsor". Another example of a possible class of approved sponsor is the
"professional development sponsor" - a sponsor of a Subclass 470
(Professional Development) visa holder.
New subsection 140E(3)
59. New subsection 140E(3) expands existing subsection 140E(3) by providing
that in addition to prescribing different criteria for different kinds of
visa, the regulations may also prescribe different approval criteria for
different classes of approved sponsor. New subsection 140(3) also
provides the ability to prescribe different criteria for different
classes of person within a class in relation to which a person may be
approved as a sponsor.
60. The purpose of new subsection 140E(3) is to provide flexibility in the
criteria that may be prescribed. For example, the regulations may do one
or more of the following:
. prescribe criteria that are relevant for the purposes of particular
kinds of visa;
. prescribe criteria that are relevant for the purposes of being
approved as a class of approved sponsor;
. prescribe criteria that are to be met by a particular type of entity
(such as a government agency) in order to be approved as an approved
sponsor in relation to a class of approved sponsor.
Item 16 Subsection 140F(2)
61. This item repeals subsection 140F(2) and replaces it with new
subsection 140F(2).
62. Section 140F provides the ability to prescribe a process for the
Minister to approve a person as a sponsor. For example, the regulations
may prescribe a method by which a person must make an application to be
approved as a sponsor.
63. New subsection 140F(2) provides that in addition to prescribing
different processes for different kinds of visa, the regulations may also
prescribe different processes for different classes in relation to which
a person may be approved as a sponsor.
64. The purpose of this amendment is to provide flexibility in the
processes that may be prescribed. For example, the regulations may do one
or both of the following:
. prescribe processes that are relevant for the purposes of particular
kinds of visa;
. prescribe processes that are relevant for the purposes of being approved
as a class of approved sponsor.
Item 17 Subsection 140G(3)
65. This item repeals subsection 140G(3) and replaces it with new
subsections 140G(3) and 140G(4). Section 140G relates to the terms upon
which a person is approved as a sponsor.
New subsection 140G(3)
66. Subsection 140G(2) provides that a term must be of a kind prescribed by
the regulations. New subsection 140G(3) provides that an actual term
(rather than a kind of term) may also be prescribed in the regulations.
67. For example, the regulations may prescribe an actual term of approval
which provides when the approval as a sponsor ceases (eg. two years after
the approval was granted). Alternatively, the regulations may prescribe a
kind of term that may be included in an approval (eg a ceasing term).
68. To illustrate, the regulations may provide that the approval could
include a ceasing term. The details of the ceasing term would then be set
out in the relevant approval sent to the particular sponsor (rather than
in the regulations).
New subsection 140G(4)
69. New subsection 140G(4) expands existing subsection 140G(3) by providing
that (in addition to prescribing different kinds of terms in relation to
different kinds of visa), the regulations may also prescribe different
kinds of terms for different classes of approved sponsor.
70. The purpose of this amendment is to provide flexibility in the terms
that may be prescribed. For example, the regulations may do one or both
of the following:
. prescribe terms that are relevant for the purposes of particular kinds
of visa;
. prescribe terms that are relevant for the purposes of particular
classes of approved sponsor.
Item 18 After section 140G
71. This item inserts new sections 140GA, 140GB, and 140GC. New section
140GA relates to varying terms of approval as a sponsor. New section
140GB relates to approval of nominations. New section 140GC relates to
work agreements.
140GA Variation of terms of approval as a sponsor
New subsection 140GA(1)
72. New subsection 140GA(1) provides that the regulations may establish a
process for the Minister to vary a term of a person's approval as a
sponsor.
New subsection 140GA(2)
73. New subsection 140GA(2) provides that the Minister must vary a term
specified in an approval provided that:
. the term is of a kind that is prescribed in the regulations as a term
that can be varied; and
. prescribed criteria for the term to be varied are satisfied.
New subsection 140GA(3)
74. New subsection 140GA(3) provides the power to prescribe different
processes (to vary a term of approval as a sponsor) and different
criteria (to vary a term of approval as a sponsor) for different kinds of
visa; different classes in relation to which a person may be approved as
a sponsor; and different kinds of terms.
75. The purpose of new subsection 140GA(3) is to provide flexibility in the
processes and criteria that may be prescribed in relation to variation of
a term of approval as a sponsor. For example, the regulations may do one
or more of the following:
. prescribe processes and criteria that are relevant for the purposes of
particular kinds of visa;
. prescribe processes and criteria that are relevant for the purposes of
particular classes of approved sponsor;
. prescribe processes and criteria that are relevant for the purposes of
particular kinds of terms.
76. The purpose of allowing a term of approval to be varied is so that a
person who is already approved as a sponsor does not have to lodge
another sponsorship application to do something more than their current
terms of approval allow them to do.
77. For example, the regulations may prescribe a process for an approved
sponsor to apply to the Minister to increase the number of people they
are permitted to sponsor. If the number of people who can be sponsored is
a term of a kind that can be varied and the sponsor meets prescribed
criteria for varying that term, then the term may be varied. This means
that the approved sponsor will only need to be assessed against criteria
specific to sponsoring additional visa applicants rather than being
reassessed against all the criteria for approval as a sponsor.
Section 140GB Minister to approve nominations
78. The purpose of new section 140GB is to provide an express power in the
Migration Act to prescribe regulations in relation to the nomination
process. Currently, regulations dealing with the nomination process are
prescribed under existing sections 140E and 140F because nomination is
part of the process of becoming an "approved sponsor".
79. An express power to prescribe a process and criteria in relation to
nomination is required because nomination will no longer be part of the
process of becoming an "approved sponsor", rather a nomination will be
made by a person who is already an "approved sponsor" (new definition of
"approved sponsor" is inserted by item 1).
80. The kinds of criteria for approval of a nomination may include criteria
which ensure that a non-citizen's skills are appropriate for their
proposed occupation, program or activity that they will undertake in
Australia; or an occupation is specified in an instrument in writing
setting out occupations for which there is a skills shortage.
New subsection 140GB(1)
81. New subsection 140GB(1) provides that an approved sponsor may nominate,
in relation to a visa of a prescribed kind a person or a proposed
occupation, program or activity.
82. More specifically, an approved sponsor may nominate (in relation to a
visa of a prescribed kind):
. a person who is a visa applicant, or proposed visa applicant, in
relation to a proposed occupation, program or activity to be
undertaken by the person;
. a proposed occupation, program or activity.
83. The nomination may be of a visa applicant, or a proposed visa
applicant, because the person who is being nominated may not have made a
visa application at the time of nomination. Where the nomination is of a
proposed occupation, program or activity, the particular non-citizen who
will undertake the proposed occupation, program or activity does not
necessarily need to be identified or known at the time of nomination.
84. An approved nomination may be required to make a valid visa
application, or may be required at time of decision of the visa
application. This new provision provides the flexibility to provide for
either in the regulations.
85. A nomination stage may not be required in relation to all kinds of visa
for which sponsorship is a criterion for grant, or a criterion to make a
valid application. An approved sponsor will only be required to seek an
approved nomination from the Minister if an approved nomination is
required to make a valid visa application, or is a criterion for grant of
a visa.
New subsection 140GB(2)
86. New subsection 140GB(2) provides that the Minister must approve an
approved sponsor's nomination if prescribed criteria are satisfied. This
means that the Minister does not have discretion not to approve the
nomination if prescribed criteria are satisfied.
New subsection 140GB(3)
87. New subsection 140GB(3) provides that the regulations may establish a
process for the Minister to approve an approved sponsor's nomination.
New subsection 140GB(4)
88. New subsection 140GB(4) provides that different processes and different
criteria may be prescribed for different kinds of visa or different
classes in relation to which a person may be approved as a sponsor.
89. The purpose of new subsection 140GB(4) is to provide flexibility in the
processes and criteria that may be prescribed. For example, the
regulations may do one or more of the following:
. prescribe processes and criteria that are relevant for the purposes of
particular kinds of visa;
. prescribe processes and criteria that are relevant for the purposes of
particular classes of approved sponsor.
Section 140GC Work agreements
90. New section 140GC provides that, for the purposes of the definition of
"work agreement" (inserted by item 8) the regulations may prescribe
requirements that a work agreement must satisfy.
91. The term "work agreement" is intended as an 'umbrella' term to refer to
various types of agreements defined or referred to by the regulations. It
is necessary to prescribe the meaning of "work agreement" in the
regulations to provide flexibility to include new types of agreements,
and incorporate any new definition of the current kinds of agreements in
the meaning of "work agreement".
92. It is envisaged that the regulations will prescribe labour agreements,
Invest Australia Supported Skills agreements, religious worker
agreements, and any similar kind of agreement as they are developed. The
common element of these agreements is that they are an agreement between
the Commonwealth, represented by one or more Ministers, and another
person or organisation detailing arrangements whereby the other person
may sponsor temporary visa holders to perform work.
93. It is also envisaged that the regulations will prescribe "work
agreements" to include certain existing agreements which are in force at
the time of commencement. The purpose of this is to ensure that a party
to certain existing agreements can be an "approved sponsor" (see item 1
in relation to the definition of "approved sponsor") on commencement.
94. The note following new section 140GC advises that a person (other than
a Minister) who is a party to a work agreement is an approved sponsor and
must satisfy sponsorship obligations. This note explains the relevance of
a work agreement to the new sponsorship framework.
Item 19 Sections 140H, 140I, 140J, 140K, 140L and 140M
95. This item repeals sections 140H, 140I, 140J, 140K, 140L and 140M and
replaces them with new sections 140H, 140J, 140K, 140L and 140M.
Sections 140H and 140J comprise new Subdivision C - Sponsorship
obligations. Sections 140K, 140L and 140M comprise the first three
sections of new Subdivision D - Enforcement.
Subdivision C - Sponsorship Obligations
Section 140H Sponsorship obligations
96. New section 140H replaces existing section 140H. Existing section 140H
provides that the regulations may require an applicant for approval as a
sponsor to make prescribed undertakings. The undertakings only have
effect once a visa is granted to a person who the sponsor has consented
in writing to sponsor.
New subsection 140H(1)
97. New subsection 140H(1) provides that a person who is or was an approved
sponsor must satisfy sponsorship obligations prescribed in the
regulations.
98. Item 1 inserts a definition of approved sponsor. "Approved sponsor"
includes two groups of people. First, a person who is approved as a
sponsor under new section 140E; or second, a person (other than a
Minister) who is a party to a work agreement. Therefore, a person who
meets (or previously met) either of these two descriptions may be
required to satisfy a sponsorship obligation prescribed by the
regulations.
99. The note following new subsection 140H(1) provides examples of the
kinds of sponsorship obligations that may be prescribed in the
regulations.
100. The difference between the new sponsorship obligations and the
existing sponsorship undertakings is that a person has to make the
undertakings to be bound by them. Under these provisions a person will be
required to satisfy a sponsorship obligation by operation of law if they
are a person to whom the sponsorship obligation applies.
101. For example, the regulations may prescribe that an approved sponsor
(within the meaning of the definition inserted by item 1) or former
approved sponsor must comply with the Department's requirements to
provide information to the Department. A person who is an approved
sponsor or former approved sponsor must satisfy this sponsorship
obligation regardless of whether they expressly agreed to be bound by the
sponsorship obligation. As a matter of good practice, the Department
intends to ensure that all persons who apply to be an approved sponsor
understand the sponsorship obligations that they will be required to
satisfy as an approved sponsor.
102. Subsection 140H(1) allows the sponsorship obligations to prescribe the
period of time for which a person is required to satisfy a sponsorship
obligation. The earliest point in time at which a person can be required
to satisfy a sponsorship obligation is when they become an approved
sponsor (within the meaning of the definition inserted by item 1). A
person can continue to be required to satisfy a sponsorship obligation
after they cease to be an approved sponsor.
103. For example, the regulations may prescribe that an approved sponsor
must keep records in relation to a sponsored visa holder from the time
the visa is granted, for 6 years after the visa holder leaves the
employment of the approved sponsor. If the approved sponsor ceases to be
an approved sponsor during this period of time (for example, by being
cancelled as an approved sponsor), they will continue to be required to
satisfy the sponsorship obligation.
New subsection 140H(2)
104. New subsection 140H(2) provides that if a person is a party to a work
agreement (other than a Minister), and the terms of the work agreement
vary a sponsorship obligation that would otherwise be imposed by
regulations made under subsection 140H(1), the person must satisfy that
sponsorship obligation as set out in the work agreement rather than the
sponsorship obligation prescribed in the regulations which has been
varied.
105. A person who is a party to a work agreement (other than a Minister),
is an approved sponsor within the meaning of the definition inserted by
item 1. Item 8 inserts a definition of work agreement. In general terms a
work agreement is an agreement between the Commonwealth, represented by
one or more Ministers, and another person or organisation detailing
arrangements whereby the other person may sponsor temporary visa holders
to perform work.
106. The effect of subsection 140H(1) and 140H(2) in relation to a person
who is a party to work agreement (other than a Minister) is that the
person is required to satisfy a sponsorship obligation prescribed in the
regulations under section 140H(1) except for a sponsorship obligation
which has been varied by the terms of the work agreement. Where a
sponsorship obligation has been varied that sponsorship obligation must
be satisfied in accordance with the obligation as set out in the work
agreement rather than as set out in the regulations.
New subsection 140H(3)
107. New subsection 140H(3) provides that if a person is a party to a work
agreement (other than a Minister) and the terms of the agreement include
a term identified as a sponsorship obligation, then the person must
satisfy that sponsorship obligation as set out in the work agreement, in
addition to satisfying the sponsorship obligations imposed by the
regulations.
108. A person who is a party to a work agreement (other than a Minister),
is an approved sponsor within the meaning of the definition inserted by
item 1. Item 8 inserts a definition of work agreement. In general terms a
work agreement is an agreement between the Commonwealth, represented by
one or more Ministers, and another person or organisation detailing
arrangements whereby the other person may sponsor temporary visa holders
to perform work.
New subsection 140H(4)
109. New subsection 140H(4) provides that a person who is or was an
approved sponsor must satisfy sponsorship obligations prescribed in the
regulations either:
. in respect of each visa holder sponsored by the approved sponsor (or
former approved sponsor); or
. generally (for example, there is an intention to prescribe an
obligation to notify the department of any change in circumstances
that may affect the sponsor's capacity to honour its sponsorship. This
is an example of an obligation that should apply generally rather than
in respect of a particular visa holder).
New subsection 140H(5)
110. New subsection 140H(5) provides that the regulations may prescribe the
manner in which a sponsorship obligation must be satisfied and the period
of time within which the sponsorship obligation must be satisfied.
111. For example, the regulations may prescribe that an approved sponsor
(or former approved sponsor) must keep records in relation to a visa
holder for whom they are a sponsor; that those records must be kept
electronically; and that those records must be provided to the Department
within 14 days of a request to provide the records. If the records are
not kept electronically then the sponsorship obligation will not be
satisfied, and if the records are provided 15 days after the request then
the sponsorship obligation will not be satisfied.
112. Therefore, the combined effect of new subsections 140H(1) and (5) is
that the regulations may prescribe a length of time during which the
sponsorship obligations must be satisfied, and the manner and time within
which the sponsorship obligations must be satisfied during that length of
time.
New subsection 140H(6)
113. New subsection 140H(6) provides that different kinds of sponsorship
obligations may be prescribed for different kinds of visa and different
classes in relation to which a person may be, or may have been approved
as a sponsor. This allows the regulations to prescribe, for example,
sponsorship obligations that are required to be satisfied by an approved
sponsor (or former approved sponsor) in relation to a Subclass 457
(Business (Long Stay)) visa holder, and different sponsorship obligations
that are required to be satisfied by an approved sponsor (or former
approved sponsor) in relation to a Subclass 470 (Professional
Development) visa holder.
114. The sponsorship obligations will be prescribed in the regulations,
rather than being set out in the Migration Act, to provide flexibility to
remove or add sponsorship obligations in the future. This flexibility is
required for three main reasons:
. there will be a need to prescribe additional obligations as more visas
are brought within the new sponsorship framework;
. a high degree of flexibility is essential for the efficient and
effective program operation over time in a dynamic area such temporary
skilled work visas; and
. it will provide the opportunity to consider advice provided through
various review processes before finalising the detail around each
particular sponsorship obligation.
115. When new sponsorship obligations are prescribed in the regulations
they may be prescribed to apply to existing sponsors at the time of
commencement of the new sponsorship obligations. It is intended that the
nature and purpose of the obligation will be assessed to determine
whether it is necessary and appropriate to apply the new sponsorship
obligations to existing sponsors at the time of commencement of the new
sponsorship obligation.
Section 140J Amounts payable in relation to sponsorship
obligations
116. New section 140J replaces existing section 140I. Existing section 140I
provides that an amount required to be paid to the Commonwealth under an
undertaking is not enforceable to the extent that the amount required to
be paid exceeds the costs of the Commonwealth in relation to the amount.
However, if the amount is in relation to the costs of locating and
detaining a person, the amount required to be paid cannot exceed an
amount prescribed in the regulations. Existing section 140I also allows
the Minister to make a determination setting out how particular kinds of
costs are to be calculated.
117. New section 140J expands existing section 140I and includes the
concept of sponsorship obligations rather than undertakings.
New subsection 140J(1)
118. New subsection 140J(1) provides that if an amount is required to be
paid to the Commonwealth by an approved sponsor (or former approved
sponsor) in relation to a sponsorship obligation, the approved sponsor
(or former approved sponsor is not liable to pay more than the lesser of:
. the actual costs of the Commonwealth in relation to the amount; or
. a limit prescribed in the regulations (if a limit is prescribed).
119. New subsection 140J(1) expands on existing section 140I by providing
that a recovery limit in relation to sponsorship obligations can be
prescribed in the regulations in relation to any kind of sponsorship
obligation, not just location and detention costs as is currently the
case.
120. The note to section 140J provides the example that, if the
Commonwealth incurs costs in locating and detaining a person, the maximum
amount that a person who is or was an approved sponsor is liable to pay
to the Commonwealth is the lesser of the total amount of those costs or
an amount prescribed in the regulations (if a limit is prescribed in the
regulations).
New subsection 140J(2)
121. New subsection 140J(2) maintains a similar provision to existing
section 140I by providing that the Minister may by written instrument
specify one or more methods for working out the actual costs incurred by
the Commonwealth in relation to a sponsorship obligation.
122. For example, in relation to a sponsorship obligation to pay the costs
of locating and detaining a person, the Minister may specify by written
instrument a method to calculate this cost. This could be done, for
example, by allocating a specified dollar amount to the number of field
operations undertaken to locate the person.
123. It is intended that a written instrument under new subsection 140J(2)
is a legislative instrument within the meaning of section 5 of the
Legislative Instruments Act 2003 and any such instrument will be
registered on the Federal Register of Legislative Instruments.
124. This instrument will not be subject to disallowance because item 26 of
the table in subsection 44(2) of the Legislative Instruments Act 2003
relevantly provides that legislative instruments (other than regulations)
under Part 2 of the Migration Act are not subject to disallowance.
Subsection 140J(2) is in Division 3A of Part 2 of the Migration Act. Part
2 of the Migration Act relates to the control of arrival and presence of
non-citizens in Australia.
New subsection 140J(3)
125. New subsection 140J(3) provides that if an amount is payable by a
person who is or was an approved sponsor in relation to a sponsorship
obligation (prescribed under new section 140H, inserted by item 19), the
person is taken not to have satisfied the sponsorship obligation if a
visa holder, or former visa holder, or a person on behalf of a visa
holder or former visa holder, reimburses the sponsor, or another person,
for all or part of the amount.
126. The purpose of new subsection 140J(3) is to ensure that an approved
sponsor (or former approved sponsor) is liable to enforcement action if
they require a visa holder or former visa holder to reimburse them,
directly or indirectly, for costs which the prescribed sponsorship
obligations require the approved sponsor (or former approved sponsor) to
pay.
127. For example, if an approved sponsor arranges for the employer of a
visa holder (where the approved sponsor is not also the employer) to
reimburse the approved sponsor for the costs of a sponsorship obligation,
and the employer then recovers those costs from the visa holder, the
approved sponsor will not have satisfied their sponsorship obligation.
128. A further example, if an approved sponsor requires the spouse of a
visa holder, or former visa holder (on behalf of the approved sponsor) to
reimburse the approved sponsor for the cost of a sponsorship obligation,
then the approved sponsors will not have satisfied their sponsorship
obligation because they have been reimbursed by a person on behalf of the
visa holder or former visa holder.
Subdivision D - Enforcement
Section 140K Sanctions for failing to satisfy sponsorship
obligations
129. New section 140K sets out the various enforcement tools that are
available to sanction an approved sponsor (or former approved sponsor)
for failing to satisfy a sponsorship obligation. Section 140K does not
give the authority to impose a sanction, rather it provides a list of the
sanctions that may be available under other provisions in the Migration
Act.
130. The purpose of the section is to make it clear that one, several or
all of the sanctions may be imposed for failing to satisfy a sponsorship
obligation - ie one sanction does not act to exclude imposition of
another.
131. The exception to this is if an infringement notice is issued and paid,
then the Minister cannot also bring a civil penalty proceeding. In this
way, new subsection 140K maintains the effect of, and broadens, existing
subsection 140M which provides that nothing in the provisions allowing
cancelling or barring action to be taken against an approved sponsor
affects the right to require, take, or enforce a security under section
269.
Actions that may be taken in relation to approved sponsors
132. New subsection 140K(1) sets out the sanctions that may be imposed on
an approved sponsor for failing to satisfy a sponsorship obligation. The
actions that may be taken are:
. the Minister may bar the approved sponsor from doing certain things
under section 140M if regulations prescribe (under section 140L) the
circumstances in which the barring action can be taken;
. the Minister may cancel the approved sponsor's approval under section
140M if regulations prescribe (under section 140L) the circumstances
in which a person's approval can be cancelled;
. the Minister may apply for an order for a civil penalty under Part 8D
(Part 8D is inserted by item 42).
. the approved sponsor may be issued with an infringement notice under
section 140R, as an alternative to civil penalty proceedings under
Part 8D.
. an authorized officer may require and take a security under section
269 or enforce a security already taken.
Actions that may be taken in relation to former approved sponsors
133. New subsection 140K(2) sets out the sanctions that may be imposed on a
former approved sponsor for failing to satisfy a sponsorship obligation.
The actions that may be taken are:
. the Minister may bar the former approved sponsor under subsection
140M(2) from making future applications for approval as a sponsor if
regulations prescribe (under section 140L) the circumstances in which
the barring action can be taken;
. the Minister may apply for an order for a civil penalty under Part 8D;
. the former approved sponsor may be issued with an infringement notice
under section 140R, as an alternative to civil penalty proceedings
under Part 8D.
. an authorised officer may require and take a security under section
269 or enforce a security already taken.
134. In relation to a former approved sponsor, the power to cancel is not
necessary. Similarly, there is no existing approval to bar in relation to
a former approved sponsor, therefore the only barring action that is
appropriate is to bar the former approved sponsor from making future
applications for approval as a sponsor.
135. The sanctions of cancelling a person's approval as a sponsor, barring
a person's approval as a sponsor, and requiring, taking and enforcing a
security are existing sanctions. The sanctions of civil penalty
proceedings, and issuing an infringement notice, are new sanctions
introduced by items 29 and 42.
New subsection 140K(3)
136. New subsection 140K(3) provides that the subsections 140K(1) and (2)
do not limit the circumstances in which the Minister may bar a sponsor
from doing certain things or cancel a person's approval as a sponsor
under section 140M; or require, take or enforce a security under section
269.
137. The purpose of subsection 140K(3) is to clarify that section 140K does
not limit the circumstances in which a person may be have their approval
as a sponsor barred or cancelled under subparagraph 140L(1)(a)(ii) or
paragraph 140L(2)(b). These provisions allow the regulations to prescribe
circumstances, other than failure to satisfy a sponsorship obligation, in
which a person may have their approval as a sponsor cancelled or barred.
Section 140L Regulations may prescribe circumstances in which sponsor
may be barred or sponsor's approval cancelled
138. New section 140L has a similar effect as existing sections 140J and
140K but with two main differences. First, new section 140L is expressed
in the context of sponsorship obligations rather than sponsorship
undertakings. Second, existing sections 140J and 140K only apply in
relation to an approved sponsor of a person for a temporary visa.
139. New section 140L can apply in relation to an approved sponsor for any
kind of visa, it is not limited to temporary visas. The purpose of this
change is so that, in the future, the sponsorship framework in Division
3A of Part 2 of the Migration Act can be used for all kinds of visa for
which sponsorship is a criterion.
Circumstances in which the Minister may take action
140. New subsection 140L(1) provides that the regulations may prescribe
circumstances in which the Minister may take one or more barring or
cancelling actions set out in section 140M if the Minister is reasonably
satisfied that the approved sponsor or former approved sponsor has failed
to satisfy a sponsorship obligation.
141. New subsection 140L(1) also provides that the regulations may
prescribe other circumstances in which the Minister may take one or more
barring or cancelling actions set out in section 140M. These
circumstances may be circumstances that are not in relation to a failure
to satisfy a sponsorship obligation.
142. Under new subsection 140L(1) the regulations may also prescribe
criteria to be taken into account by the Minister in determining which
cancelling or barring action(s) to take under section 140M.
Circumstances in which the Minister must take action
143. New subsection 140L(2) differs from new subsection 140L(1) in that it
provides that the regulations may prescribe circumstances in which the
Minister must take one or more cancelling or barring actions under
section 140M, as opposed to new subsection 140L(1) which provides the
Minister with a discretion to take one or more of the actions.
144. Like subsection 140L(1), circumstances may be prescribed in relation
to a failure to satisfy a sponsorship obligation, and other circumstances
prescribed (that are not in relation to a sponsorship obligation) may be
prescribed in the regulations.
145. New subsection 140L(2) does not allow for criteria to be prescribed
which set out the circumstances which the Minister is to take into
account in determining which cancelling and barring action(s) to take
into account under section 140M. This is because the Minister must take
one or more particular actions as prescribed. The Minister will not have
discretion as to which action to take.
146. New subsection 140L(3) provides that different circumstances and
criteria may be prescribed for different kinds of visa and different
classes in relation to which an approved sponsor or former approved
sponsor is or was approved.
Section 140M Cancelling approval as a sponsor or barring a
sponsor
147. New section 140M replaces existing section 140L. Existing section 140L
provides the barring and cancelling actions that the Minister may or must
take in accordance with existing sections 140J and 140K.
148. New section 140M provides the barring and cancelling actions that the
Minister may or must take in accordance with new section 140L. New
section 140M maintains the effect of the cancelling and barring
provisions set out in existing section 140L, but expresses the power to
cancel or bar the approved sponsor in the context of classes of approved
sponsor.
149. This is consistent with new subsection 140E(1) which provides that a
person is approved as an approved sponsor in relation to one or more
classes of approved sponsor, rather than just as a sponsor.
150. New section 140M also ensures the actions are not just in relation to
classes of approved sponsor who are sponsors for temporary visas. This is
consistent with section 140L which does not limit the application of the
section to an approved sponsor of a person for a temporary visa.
151. The purpose of not limiting the availability of the barring and
cancelling actions to sponsors of temporary visa holders is so that, in
the future, the Division 3A of Part 2 of the Migration Act sponsorship
framework can be used by all kinds of visa for which sponsorship is a
criterion.
Actions that may be taken in relation to approved sponsors
152. New subsection 140M(1) provides that the actions which the Minister
may or must take, (in the circumstances prescribed under regulation
section 140L), in relation to an approved sponsor are:
. cancelling the approval of the person as a sponsor in relation to one,
several or all classes of approved sponsor to which the sponsor
belongs;
. barring the sponsor, for a specified period, from sponsoring more
people under the terms of one or more existing specified approvals for
different kinds of visas. This means that an approved sponsor can be
barred, for a specified period, from being the approved sponsor for a
person seeking to be granted a specified visa subclass; and
. barring the sponsor, for a specified period, from making future
applications for approval as a sponsor in relation to one or more
classes of approved sponsor prescribed for the purposes of section
140E (amended by items 13-15).
153. The Minister may (or must) take one or more of the section 140M
actions in relation to an approved sponsor. For example, a circumstance
that may be prescribed under section 140L could provide that the Minister
may cancel the approval of an approved sponsor, and bar the sponsor for
10 years from making future applications for approval as a sponsor in
relation to a particular class of approved sponsor prescribed for the
purpose of new section 140E (see items 13-15).
Actions that may be taken in relation to former approved sponsors
154. New subsection 140M(2) provides that the action which the Minister may
or must take (in the circumstances prescribed under section 140L) in
relation to a former approved sponsor is barring the former approved
sponsor, for a specified period, from making future applications for
approval as a sponsor in relation to one or more classes of approved
sponsor prescribed by the regulations.
155. New subsection 140M(2) does not include all the barring and cancelling
actions which are included for approved sponsors in new subsection
140M(1), because these actions are not relevant once a person has ceased
to be an approved sponsor. For example, there is no approval to cancel
for a person who is a former approved sponsor.
Item 20 Subsections 140N(1) and (2)
156. This item amends subsections 140N(1) and 140N(2)to refer to new
section 140M, rather than current sections 140J or 140K.
157. Existing subsection 140N(1) provides that the regulations may
establish a process for the Minister to cancel the approval of a person
as a sponsor under sections 140J or 140K.
158. Existing subsection 140N(2) provides that the regulations may
establish a process for the Minister to place a bar on a person under
section 140J or 140K.
159. The purpose of the amendment made by this item is to ensure that the
reference to the section under which an approved sponsor is cancelled is
correct.
Item 21 Subsection 140N(3)
160. This item repeals subsection 140N(3) and replaces it with new
subsection 140N(3).
161. New subsection 140N(3) expands existing subsection 140N(3) by
providing that in addition to prescribing different processes to take
barring or cancelling action for different kinds of visa, the regulations
may also prescribe different processes for different classes in relation
to which an approved sponsor is or was approved.
162. The purpose of this amendment is to provide flexibility in the
processes that may be prescribed. For example, the regulations may do one
or both of the following:
. prescribe processes that are relevant for the purposes of particular
kinds of visa;
. prescribe processes that are relevant for the purposes of particular
classes of approved sponsor or former approved sponsor.
Item 22 Subsection 140O(1)
163. This item repeals subsection 140O(1).
164. Section 140O provides that in prescribed circumstances the Minister
may waive a bar. Subsection 140O(1) provides that section 140O applies to
temporary visas of a prescribed kind. This subsection is not necessary
because the intention is that section 140O applies to all kinds of visa
that are prescribed as visas to which Division 3A of Part 2 of the
Migration Act applies (under section 140A).
Item 23 Subsection 140O(2)
165. This item amends subsection 140O(2) to refer to new section 140M,
rather than current sections 140J or 140K. This item also removes the
reference to 'in relation to a visa to which this section applies.
166. Existing subsection 140O(2) provides that the regulations may
prescribe circumstances in which the Minister may waive a bar placed on a
person under existing sections 140J or 140K in relation to a visa to
which section 140O applies. The purpose of the amendment made by this
item is to ensure:
. that the reference to the section under which a person who is or was
an approved sponsor is barred is correct; and
. that the reference to a visa to which this section applies is removed,
because the amendment made by item 22 means that section 140O applies
to all Division 3A of Part 2 of the Migration Act visas, and not visas
prescribed specifically for section 140O.
Item 24 Subsection 140O(4)
167. This item repeals subsection 140O(4) and replaces it with new
subsection 140O(4).
168. New subsection 140O(4) expands existing subsection 140O(4) by
providing that in addition to prescribing different circumstances and
different criteria to waive a bar for different kinds of visa, the
regulations may also prescribe different circumstances and criteria for
different classes in relation to which an approved sponsor is or was
approved.
169. The purpose of this amendment is to provide flexibility in the
different circumstances and criteria that may be prescribed. For example,
the regulations may do one or both of the following:
. prescribe circumstances and criteria that are relevant for the
purposes of particular kinds of visa;
. prescribe circumstances and criteria that are relevant for the
purposes of particular classes of approved sponsor.
Item 25 Subsection 140P(1)
170. This item amends subsection 140P(1) to refer to new section 140M,
rather than current sections 140J or 140K.
171. Existing subsection 140P(1) provides that the regulations may
establish a process for the Minister to waive a bar place on a person
under existing sections 140J or 140K. The purpose of the amendment made
by this item is to ensure that the reference to the section under which a
person who is or was an approved sponsor may be barred is correct.
Item 26 Subsection 140P(2)
172. This item repeals subsection 140P(2) and replaces it with new
subsection 140P(2).
173. New subsection 140P(2) expands existing subsection 140P(2) by
providing that in addition to prescribing different processes to waive a
bar for different kinds of visa, the regulations may also prescribe
different processes for different classes in relation to which a person
may be, or may have been, approved as a sponsor.
174. The purpose of this amendment is to provide flexibility in the
processes that may be prescribed. For example, the regulations may do one
or both of the following:
. prescribe processes that are relevant for the purposes of particular
kinds of visa;
. prescribe processes that are relevant for the purposes of particular
classes of approved sponsor.
Item 27 Sections 140Q, 140R and 140S
175. This item repeals existing sections 140Q, 140R and 140S and replaces
them with new sections 140Q, 140R, 140S, 140SA, 140SB and 140SC. New
sections 140S, 140SA, 140SB and 140SC are included in new Subdivision E -
Liability and recovery of amounts.
176. Existing sections 140Q and 140R are not replaced by similar
provisions.
177. New section 140H (inserted by item 19) removes the need for existing
section 140Q. Existing section 140Q provides that the regulations may
prescribe circumstances in which a person remains bound by an undertaking
even though they have ceased to be an approved sponsor, or their visa
holder has ceased to hold the relevant visa. Such a provision is no
longer required because new section 140H provides that regulations may be
prescribed that require not only approved sponsors, but former approved
sponsors to satisfy sponsorship obligations.
178. The regulations will also prescribe the period in which, or the date
by which, a sponsorship obligation must be satisfied. Therefore, existing
section 140Q is not required because new section 140H provides that the
regulations may prescribe a sponsorship obligation that will be required
to be satisfied even after a person ceases to be an approved sponsor or
the visa holder ceases to hold the relevant visa.
179. Existing section 140R is repealed, and is not replaced by a similar
provision. Existing section 140R deals with the liability of sponsors to
pay certain debts. It provides that a visa holder is jointly and
severally liable to pay a debt which relates to an amount required by an
undertaking to be paid by the sponsor on behalf of the visa holder.
180. The purpose of repealing existing section 140R and not replacing it
with a similar provision is to reflect the policy intention of
sponsorship obligations. The purpose of the new sponsorship obligations
which are prescribed under new section 140H (inserted by item 19) is to
place responsibility on a person who is or was an approved sponsor for
certain costs. It is not intended that a visa holder is jointly and
severally liable for any of the costs which are the subject of a
sponsorship obligation.
Section 140Q Civil penalty - failing to satisfy sponsorship
obligations
181. New section 140Q comprises of two civil penalty provisions (item 2
inserts a definition of civil penalty in subsection 5(1) of the Act). A
civil penalty provision is a provision which a person can contravene. If
a person contravenes a civil penalty provision, new Part 8D (inserted by
item 42) provides that the Minister may apply to the Federal Court or the
Federal Magistrates Court for a pecuniary penalty order against the
person.
182. New subsection 140Q(1) is the first civil penalty provision. The
subsection is contravened if the following two things occur:
. the regulations impose a sponsorship obligation on the person; and
. the person fails to satisfy the sponsorship obligation in the manner
(if any) or within the period (if any) prescribed by the regulations.
183. The sponsorship obligations are prescribed under new section 140H.
Under new section 140H, only an approved sponsor or a former approved
sponsor can be required to satisfy a sponsorship obligation.
184. Item 1 inserts a definition of approved sponsor. "Approved sponsor"
includes two groups of people. First, a person who is approved as a
sponsor under new section 140E; or second, a person (other than a
Minister) who is a party to a work agreement. Therefore, a person who
meets (or previously met) either of these two descriptions may be
required to satisfy a sponsorship obligation prescribed by the
regulations, and may contravene subsection 140Q(1) if they do not satisfy
those sponsorship obligations.
185. Under new section 140H the regulations will also prescribe whether a
particular sponsorship obligation must be satisfied in respect of each
visa holder, or generally. This means that subsection 140Q(1) can be
contravened in respect of each visa holder sponsored by the approved
sponsor or former approved sponsor, or generally.
186. For example, if the sponsorship obligation is to pay a minimum wage
(however that is described) to a visa holder, and the minimum wage is not
paid to four visa holders sponsored by the approved sponsor (or former
approved sponsor), then subsection 140Q(1) will have been breached at
least four times.
187. New subsection 140Q(2) is the second civil penalty provision. The
subsection is contravened if the following three things occur:
. the person is a party to a work agreement (other than a Minister); and
. the terms of the work agreement vary a sponsorship obligation that
would otherwise be imposed on the person by the regulations, or impose
an obligation, identified in the agreement as a sponsorship obligation
on the person; and
. the person fails to satisfy the sponsorship obligation in the manner
(if any) or within the period (if any) specified in the work
agreement.
188. The effect of subsection 140Q(2) is that if a term of a work agreement
(a definition of work agreement is inserted into subsection 5(1) by item
8) varies a sponsorship obligation which is prescribed in the
regulations, or imposes an additional sponsorship obligation on a person,
then the person is liable to a civil penalty if they fail to satisfy the
sponsorship obligation in the work agreement.
189. This ensures consistency in the type of pecuniary penalty that can be
applied for failure to satisfy a sponsorship obligation. That is, rather
than relying on pecuniary damages that may be available through contract
law in relation to the work agreement, new subsection 140Q(2) ensures
that the pecuniary penalty for failure to satisfy a sponsorship
obligation regardless of whether it is prescribed in the regulations or
included in a work agreement, will be through the civil penalty framework
in Part 8D of the Migration Act (inserted by item 42).
190. The party to a work agreement to whom subsection 140Q(2) applies does
not include a Minister because a Minister cannot be an approved sponsor
(see the definition of "approved sponsor" inserted into subsection 5(1)
of the Migration Act by item 1), and therefore cannot be required to
satisfy a sponsorship obligation prescribed in the regulations under
section 140H.
191. If a person contravenes subsections 140Q(1) or 140Q(2) the civil
penalty for an individual is 60 penalty units and for a body corporate is
300 penalty units. Currently, this represents $6,600 for an individual
and $33,000 for a body corporate as one penalty unit is equal to $110 (a
definition of penalty unit is inserted by item 6).
192. This civil penalty amount is the same as for civil penalty provisions
in the Workplace Relations Act 1996. The civil penalty provisions in the
Workplace Relations Act 1996 also relate to workplace relations matters.
Section 140R Infringement notices in respect of civil penalty
provisions
193. New subsection 140R(1) provides that regulations may be prescribed so
that a person who is alleged to have contravened a civil penalty
provision can pay to the Commonwealth a specified amount as an
alternative to civil penalty proceedings being commenced.
194. New subsection 140R(2) provides that an amount imposed as a penalty
under the regime prescribed in the regulations under subsection 140R(1)
must not exceed an amount equal to one-fifth of the maximum civil penalty
which could be imposed by a court for contravening the civil penalty
provision. This amount is in accordance with the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers issued in
2004 by authority of the Minister for Justice and Customs. It is also in
accordance with the interim Guide issued in February 2008 by the Criminal
Law Branch of the Attorney-General's Department.
195. The effect of section 140R is that in accordance with a regime
established by the regulations an approved sponsor (or former approved
sponsor) who allegedly contravenes a civil penalty provision may be
issued with an infringement notice to pay an amount. That amount cannot
exceed 60 penalty units for a corporation, or 12 penalty units for an
individual.
196. If the approved sponsor (or former approved sponsor) pays the amount
then the Minister cannot commence civil penalty proceedings in relation
to the alleged contravention. The approved sponsor (or former approved
sponsor), however, can elect to not pay the amount specified in the
infringement notice. The Minister will then be entitled to commence civil
penalty proceedings.
197. The purpose of new section 140R is to provide a sanction option, that
is, an infringement notice regime, which provides the flexibility to
appropriately, and expeditiously, deal with less serious contraventions
of sponsorship obligations.
Subdivision E - Liability and recovery of amounts
Section 140S Liability to pay amounts
198. New subsections 140S(1) and (2) provide that where a person who is or
was an approved sponsor is required to pay an amount of a kind prescribed
in the regulations to the Commonwealth, a State or a Territory or another
person in relation to a sponsorship obligation, then the person to whom
the money is owed (including the Commonwealth, a State, or a Territory)
may seek to recover the amount as a debt due in an eligible court.
199. New subsections 140S(1) and (2) are similar to existing section 140S
but differ in four main ways:
. First, they are in relation to sponsorship obligations rather than
sponsorship undertakings
. Second, they apply to all debts arising in relation to a sponsorship
obligation because section 140R is repealed
. Third, they clarify that a debt recovery action can be brought by the
Commonwealth, a State or a Territory as well as another person, and
. Finally, they provide that a debt recovery action can be brought in an
eligible court rather than in a court of competent jurisdiction
(eligible court is a defined term inserted by item 4).
200. The practical effect of this is that in addition to the existing
courts, a debt recovery action could be brought in a Territory Court, or
in the Federal Magistrates Court. The purpose of this change is to
improve access to the courts for a person to recover money owed in
relation to a sponsorship obligation.
201. New subsection 140S(3) clarifies that an amount may still be recovered
if civil penalty proceedings are brought under Part 8D (inserted by item
42) and discontinued or completed without the court making an order under
subsection 486R(6) in relation to the amount. Under new subsection
486R(6) (inserted by item 42) the court can make an order that has the
same effect as section 140S - that is, that an outstanding amount be paid
that is required to be paid under a sponsorship obligation.
202. New subsection 140S(4) provides that for the purpose of paragraph (e)
of the definition of "eligible court" (inserted by item 4) the
regulations may prescribe a court of a State or Territory in which an
amount may be recovered under new section 140S. Paragraph (e) of the
definition of "eligible court" provides that an eligible court may
include a State or Territory court prescribed by the regulations.
Section 140SA Interest up to judgment
203. New section 140SA deals with the issue of interest on amounts that
should have been paid pursuant to a sponsorship obligation in
circumstances where an action to recover the amount has been brought
under section 140S or subsection 486R(6).
204. New section 140S provides that where a person who is or was an
approved sponsor is required to pay an amount of a kind prescribed in the
regulations to the Commonwealth, a State or a Territory or another person
in relation to a sponsorship obligation, then the person to whom the
money is owed (including the Commonwealth, a State, or a Territory) may
seek to recover the amount as a debt due in an eligible court.
205. New subsection 486R(6) is a restitution provision. It allows the court
to make an order, as part of civil penalty proceedings, that an amount be
paid to the Commonwealth, a State or Territory or another person, which
is an amount of a kind prescribed in the regulations that is required to
be paid to the Commonwealth, a State or Territory or another person (as
the case may be).
206. New subsection 486R(7) provides that if a court makes an order under
subsection 486R(6), an application may be made, and an order may be
given, under subsection 140SA as if the proceedings were commenced under
section 140S.
207. New subsections 140SA(1) and (2) provide that, upon application, a
court must, unless good cause is shown to the contrary, order that
interest be included in the sum for which judgment is given. The interest
may be awarded at an interest rate considered appropriate by the court or
as a lump sum. If it is awarded as an interest rate, it may be awarded on
the whole or part of the money, and for the whole or any part of the
period between the date when the cause of action arose and the date of
the judgment.
208. New subsection 140SA(3) provides that subsection 140S(2) does not
allow:
. interest to be given upon interest, either as a sum or at an interest
rate;
. interest to be paid on debts which already have an interest component
built-in;
. interest to be given, other than by consent, upon judgements given by
consent.
209. In the absence of section 140SA, the amount of interest that may be
payable on an amount awarded by a judgement would be calculated in
accordance with the court rules of the court where the judgement is made.
The purpose of section 140SA is to ensure that the method of calculating
interest is the same for all actions under section 140S (and subsection
486R(6) orders) rather than it being dependent on the court in which the
action is brought.
Section 140SB Interest on judgment
210. New section 140SB provides that where an order to pay an amount has
been made as a result of a section 140S action or under subsection
486R(6), that amount carries interest from the date on which the judgment
is entered at the rate that would apply under section 52 of the Federal
Court of Australia Act 1976.
211. New section 140S provides that where a person who is or was an
approved sponsor is required to pay an amount of a kind prescribed in the
regulations to the Commonwealth, a State or a Territory or another person
in relation to a sponsorship obligation, then the person to whom the
money is owed (including the Commonwealth, a State, or a Territory) may
seek to recover the amount as a debt due in an eligible court.
212. New subsection 486R(6) is a restitution provision. It allows the court
to make an order, as part of civil penalty proceedings, that an amount be
paid to the Commonwealth, a State or Territory or another person, which
is an amount of a kind prescribed in the regulations that is required to
be paid to the Commonwealth, a State or Territory or another person (as
the case may be).
213. New subsection 486R(7) provides that if a court makes an order under
subsection 486R(6), an application may be made, and an order may be
given, under subsection 140SA as if the proceedings were commenced under
section 140S.
Section 140SC Certain plaintiffs may choose small claims procedure in
magistrates courts
214. New section 140SC provides a capacity for section 140S actions to be
brought using a small claims procedure. The purpose of new section 140SC
is to improve access to the courts for a person to recover money owed in
relation to a sponsorship obligation. A small claims procedure is easier
to understand and less costly to commence than standard court
proceedings.
215. New subsection 140SC(1) provides that if a person starts an action
under section 140S in a magistrates court and they indicate, in a manner
prescribed by the regulations or by rules of court relating to that
court, that they want a small claims procedure to apply, subsections (2)
and (3) apply in relation to the action.
216. New subsection 140SC(2) provides that the small claims procedure is
governed by four conditions:
. the court may not award an amount exceeding $5,000 or such higher
amount as is prescribed;
. the court may act in an informal manner, is not bound by any rules of
evidence, and may act without regard to legal forms and
technicalities;
. at any stage of the action, the court may amend the papers initiating
the action if sufficient notice is given to any party adversely
affected by the amendment; and
. a person is not entitled to legal representation unless allowed by the
court.
217. New subsection 140SC(3) provides that if the court allows a person to
have legal representation, the court may, if it thinks fit, do so subject
to conditions designed to ensure that a party is not unfairly
disadvantaged.
218. New subsection 140SC(4) provides that for the purposes of a case heard
in a court of a State, the regulations may prohibit or restrict legal
representation of the parties to the same extent as a law of the State
for particular proceedings. It also provides that for the purposes of a
case heard in a court of a Territory, the regulations may prohibit or
restrict legal representation of the parties. New subsection 140SC(4)
applies despite new paragraph 140SC(2)(d) and new subsection 140SC(3).
219. The purpose of new subsection 140SC(4) is to enable consistency for a
State or Territory court in their rules relating to legal representation
in small claims proceedings.
Item 28 Subsection 140T(1)
220. Existing section 140T relates to notices issued by the Minister
stating an amount that is owed in relation to a sponsorship undertaking.
This item amends existing section 140T by replacing the term 'has
undertaken' with 'is required'.
221. The purpose of this amendment is so that section 140T does not relate
to undertakings, but relates more generally to amounts required to be
paid to the Commonwealth under the amended Division 3A of Part 2 of the
Migration Act (including amounts arising out of an approved sponsor's
obligations).
Item 29 Sections 140V and 140W
222. This item repeals these sections.
223. Existing section 140V relates to the disclosure of personal
information in prescribed circumstances. New sections 140ZH and 140ZI
(inserted by item 30) replace existing section 140V and relate to the
disclosure of personal information in prescribed circumstances.
224. Existing section 140W, in broad terms, provides that other regulation
making powers in the Act are not limited by the regulation making powers
in Division 3A of Part 2 of the Migration Act. New section 140ZK
(inserted by item 30) replaces existing section 140W and provides that
other regulation making powers are not limited by the regulation making
powers in Division 3A of Part 2 of the Migration Act.
Item 30 Subdivision C of Division 3A of Part 2
225. This item repeals Subdivision C and inserts the following new
subdivisions:
. Subdivision F - Inspectors (sections 140V - 140ZA)
. Subdivision G - Application of Division to partnerships and
unincorporated associations (sections 140ZB - 140ZG)
. Subdivision H - Miscellaneous (sections 140ZH - 140ZK)
226. Existing Subdivision C sets out how sponsor obligations and rights are
to apply in relation to partnerships and unincorporated associations. It
is necessary to include specific application provisions for partnerships
and unincorporated associations because unlike a natural person, or a
body corporate, partnerships and unincorporated associations do not have
the status of a separate legal entity.
227. The content of existing Subdivision C is replaced by new Subdivision G
- Application of Division to partnerships and unincorporated
associations.
Section 140V Inspectors
228. New section 140V which deals with appointment of inspectors.
229. New subsection 140V(1) provides that the Minister may, by written
instrument, appoint a person to be an inspector, or appoint a class of
persons to be inspectors. This provides the flexibility to appoint a
particular person as an inspector, or appoint a class of persons to be
inspectors. An example of a class of persons who may be appointed to be
inspectors are persons who are appointed as Workplace Inspectors under
the Workplace Relations Act 1996.
230. This written instrument is an instrument of appointment which means
that it is not a legislative instrument.
231. Item 24 of the table in subsection 7(2) of the Legislative Instruments
Act 2003 provides that an instrument prescribed in the regulations for
the purposes of the table is not a legislative instrument. Clause 9 of
Part 1 to Schedule 1 of the Legislative Instruments Regulations 2004
provides that an instrument of appointment is not a legislative
instrument for the purposes of item 24 of the table in subsection 7(2) of
the Legislative Instruments Act 2003.
232. The effect of this is that any written instruments made by the
Minister under new subsection 140V(1) do not have to be registered and
are not disallowable.
233. New subsection 140V(2) provides that a person or a class of persons is
appointed for the period specified in the instrument of appointment. This
period must not be longer than a period specified in the regulations.
234. It is envisaged that an instrument of appointment may include that the
appointment ceases at the earlier of an appointed person resigning from
their position as inspector, or a specified date that is not longer than
the period specified in the regulations.
235. New subsection 140V(3) provides that an inspector has the powers that
are specified in his or her instrument of appointment. The powers
specified in an instrument of appointment must be powers conferred on an
inspector by the Migration Act or by the regulations (the instrument may
include powers conferred by both the Migration Act and the regulations).
236. The inspector powers in the Migration Act are set out in new sections
140X and 140Y. Inspector powers may also be prescribed in the regulations
under new paragraph 140X(2)(d). The purpose of new subsection 140V(3) is
to enable the Minister to appoint inspectors with limited powers (rather
than all available powers) if necessary.
237. The note following subsection 140V(3) advises that in accordance with
section 499 of the Migration Act, the Minister may give written
directions specifying the manner in which, and any conditions and
qualifications subject to which, powers conferred on inspectors are to be
exercised. A written instrument made under section 499 must be tabled in
each House of the Parliament within 15 sitting days of that House after
the direction was given.
Section 140W Identity Cards
238. New section 140W sets out rules in relation to the issue and use of
inspectors' identity cards.
Issue of identity card and form of identity card
239. New subsections 140W(1) and (2) provide that the Minister must issue
an identity card to an inspector, and that the card must be in a form
prescribed by the regulations and contain a recent photograph of the
inspector.
Identity card to be carried
240. New subsection 140W(3) provides that an inspector must carry the
identity card at all times when exercising powers as an inspector.
Offence
241. New subsection 140W(4) creates an offence in relation to identity
cards. A person commits an offence attracting a penalty of 1 penalty unit
(currently equal to $110), if the person has been issued with an identity
card and does not return the identity card to the Secretary of the
Department of Immigration and Citizenship within 14 days of ceasing to be
an inspector.
242. New subsections 140W(5) and (6) provide that the offence is one of
strict liability. However, a person does not commit an offence against
subsection (4) if the person's identity card was lost or destroyed.
243. A note has been inserted under subsection (5) which advises that for a
definition of strict liability, see section 6.1 of the Criminal Code.
244. A note has been inserted under subsection (6) which advises that in
accordance with subsection 13.3(3) of the Criminal Code a defendant bears
the evidential burden in relation to proving that the defendant's
identity card was lost or destroyed.
245. The Criminal Code requires that if an offence is intended to be one of
strict liability, it must be expressly stated. Strict liability is
criminal responsibility where there is an absence of any requirement of
fault. The defense of reasonable mistake of fact is however available in
strict liability offences.
246. It is important that identity cards be returned as soon as practicable
after an inspector ceases their appointment in order to prevent the
improper use of such cards. This is an administrative obligation
provision, with a small penalty attached, and an illustration of where
strict liability is sometimes applied under Commonwealth law. Examples of
similar provisions where strict liability is applied in relation to
failure to return identity cards include section 268CZA of the Migration
Act 1958 and section 168 of the Workplace Relations Act 1996.
140X Powers of Inspectors
Purpose for which powers of inspectors can be exercised
247. New subsection 140X(1) provides the purposes for which inspectors
powers can be exercised. The powers of an inspector are set out in new
subsection 140X(2) and section 140Y, and may include powers prescribed in
the regulations (see new paragraph 140X(2)(d)).
248. New subsection 140X(1) provides that the purposes for which these
powers may be exercised are:
. for the purpose of determining whether a sponsorship obligation is
being, or has been, complied with; or
. for a purpose prescribed in the regulations.
249. The sponsorship obligations referred to are those which may be
prescribed under new section 140H (inserted by item 19), or set out in
the terms of a work agreement (a definition of "work agreement" is
inserted by item 8). New section 140K (also inserted by item 19) sets out
the sanctions which may be imposed on a person who is or was an approved
sponsor for failure to satisfy a sponsorship obligation.
250. It is envisaged that the kind of purpose which may be prescribed in
the regulations will be a purpose relating to whether cancellation or
barring action may be taken in relation to a sponsor under new section
140M, as a result of regulations prescribed under new subparagraphs
140L(1)(a)(ii) and paragraph 140L(2)(b) (inserted by item 19).
251. These provisions provide that the regulations may prescribe
circumstances (other than failure to satisfy a sponsorship obligation) in
which the Minister may or must take a barring or cancelling action set
out in new section 140M.
Powers of inspectors
252. New subsection 140X(2) sets out powers of inspectors. Subsection
140X(2) is modelled on the powers set out in section 169 of the Workplace
Relations Act 1996, which are available to inspectors appointed under
section 167 of that Act.
253. These powers are not in accordance with the Guide to Framing
Commonwealth Offences, Civil Penalties and Enforcement Powers. However,
it is necessary for inspectors appointed under new section 140V to have
similar powers as Workplace Inspectors, as it is probable that Workplace
Inspectors will also be appointed as inspectors under new section 140V.
If so, it would be intended that the Workplace Inspectors will exercise
their powers for the purposes of both the Workplace Relations Act 1996,
and the purposes in section 140X(1), concurrently.
254. It would be impractical for inspectors to ensure compliance with their
powers, if they are exercising two different sets of powers on the same
workplace inspection. To ensure that consistency is maintained, any
future amendments made to the provisions relating to Workplace Inspectors
in the Workplace Relations Act 1996, are expected to include
consequential amendments to provisions in the Migration Act 1958 relating
to inspectors appointed under new section 140V.
255. The only power available to Workplace Inspectors which will not be
available for an inspector appointed under new section 140V is to collect
samples of a prescribed kind. There is no circumstance in which
collecting samples would be relevant to a purpose set out in new
subsection 140X(1).
256. Paragraph 140X(2)(a) permits an inspector to enter, without force, a
place of business or other place where he or she has reasonable cause to
believe that there is information, documents or any other thing relevant
to the purposes set out in subsection 140X(1).
257. Paragraph 140X(2)(b) provides that once an inspector has entered a
place referred to in paragraph 140X(2)(a) he or she may:
. inspect any work, material, machinery, appliance, article or facility;
. interview any person;
. require a person who has custody of, or access to, a document or
thing, relevant to the purpose for which the inspector is exercising
the power, to produce the document to the inspector within a specified
period;
. require a person to tell the inspector who has custody of a document
or thing.
258. Paragraph 140X(2)(c) provides that inspectors are also able to require
a person, by written notice, to produce a document or thing to the
inspector at a specified place within a specified period (of not less
than 7 days).
259. The minimum period in which to respond to a written notice has been
set at 7 days rather than the 14 days provided for in a similar provision
found at section 169 of the Workplace Relations Act 1996. This is because
there may be compelling reasons in special cases for requesting
information in as few as 7 days, taking into account the special
vulnerability of non-citizens in Australia on temporary visas to
exploitation. In normal circumstances however inspectors will be expected
to provide sponsors with at least 14 days in which to respond to a
written notice.
260. Note 1 to paragraph 140X(2)(c) advises that if a person fails to
produce a document or thing under paragraph 140X(2)(c) then they may
commit an offence under new section 140Z. New section 140Z has a maximum
penalty of 6 months imprisonment.
261. Note 2 to paragraph 140X(2)(c) advises that new subsection 140Y(3)
deals with the methods by which the written notice must be given to the
person.
262. Paragraph 140X(2)(d) provides that powers of inspectors may also be
prescribed in the regulations. The purpose of this provision is to ensure
that if a relevant power is prescribed for Workplace Inspectors under
subsection 167(5) or paragraph 169(1)(b) of the Workplace Relations Act
1996, if appropriate, the power may also be prescribed for inspectors
appointed under new section 140V.
263. Subsection 140X(3) confirms that an inspector is not prevented from
requiring a person , by written notice, to produce a document or thing
under paragraph 140X(2)(c), if the document or thing has already been
requested during an inspection under paragraph 140X(2)(b).
264. The note inserted under subsection 140X(3) advises that a failure to
produce a document or thing under paragraph 140X(2)(c) may be an offence
under section 140Z. New section 140Z has a maximum penalty of 6 months
imprisonment.
265. Subsection 140X(4) provides that an inspector is not to exercise his
or her powers in relation to business premises or other places, or to
remain there, where the occupier has requested production of the identity
card and the inspector has failed to do so. The purpose of this provision
is to ensure that inspectors carry their identity cards and identify
themselves.
When may the powers be exercised?
266. Subsection 140X(5) provides that an inspector may exercise his or her
powers at any time during ordinary working hours, or at any other time
which is necessary for the purposes of subsection 140X(1) powers.
267. The purpose of this amendment to provide consistency with the
regulation of when Workplace Inspectors can exercise powers for the
purposes of the Workplace Relations Act 1996 (the need for consistency is
explained above in relation to subsection 140X(2)).
Section 140Y Requirement to produce a document or thing
268. Subsection 140Y(1) provides that once a document or thing is produced
to an inspector (under paragraphs 140X(2)(b) or (c)), the inspector may
take possession of the document or thing and make copies or take extracts
from it. The document may be retained for such period as is necessary
for the purpose of exercising powers as an inspector.
269. Subsection 140Y(2) provides that where an inspector retains a document
or thing produced by a person, the inspector is to allow that person (or
a person authorised by that person), at all reasonable times, to inspect,
make copies, and take extracts of it.
Giving notices requiring production of a document
270. Subsection 140Y(3) provides that a written notice issued under
paragraph 140X(2)(c) must be given by one of the methods set out in
section 494B, which is a general provision setting out methods by which
documents are given to a person. The methods in section 494B include
giving a notice by hand, handing to a person at their residential or
business address, transmission by fax, e-mail or other electronic means.
If a notice is given by one of the methods in section 494B the recipient
is taken to have received the notice in accordance with the provisions of
section 494C.
271. Reference to the Minister in sections 494B and 49C are to be taken as
referring to inspectors, and despite the wording of section 494B,
inspectors may not use "authorised officers" as defined in section 5 to
deliver a notice.
272. For the purposes of a written notice issued under paragraph
140X(2)(c), paragraphs 140Y(3)(a) - (c) provide that a reference in
sections 494B or 494C to the Minister is instead taken to be a reference
to the inspector and despite subsection 494B(2), (3) and (6), an
inspector must not act by way of an authorised officer. As inspectors
will be performing an operational role it is not appropriate that other
officers should be authorised for the purposes of providing notices.
Self-incrimination
273. Subsection 140Y(4) provides that a person must give information or
produce a document or thing when requested or required to do so under
section 140X even if doing so would tend to incriminate them or expose
them to a penalty. The effect of this provision is that it abrogates the
common law privilege against self-incrimination for individuals.
274. This provision is necessary because the privilege extends beyond
information that may expose an individual to a criminal penalty to also
cover information that may expose an individual to a civil or
administrative penalty. If individuals were able to claim the privilege
in relation to information which may expose them to one of these latter
penalties, then an inspector could never perform his or her functions.
The provision merely restates the legal position for bodies corporate, as
a body corporate cannot claim the privilege against self-incrimination.
275. Subsection 140Y(5) provides for limited use immunity, and derivative
use immunity in relation to information provided by individuals in
recognition of the fact that subsection 140Y(4) also abrogates the
privilege against self incrimination in respect of information that may
expose the individual to a criminal penalty. This allows the
Commonwealth to effectively pursue civil and administrative sanctions in
relation to information provided that may also reveal a criminal offence.
276. However, the Commonwealth cannot pursue criminal sanctions in relation
to an offence evidenced by the information given, or documents or things
produced, as they are not admissible as evidence in criminal proceedings
against an individual, if without subsection 140Y(4), the privilege
against self-incrimination could have been claimed for the information,
document or thing (limited use immunity).
277. In addition, any information, document or thing obtained as a direct
or indirect consequence of producing the information, document or thing,
is not admissible as evidence in criminal proceedings against an
individual, if without subsection 140Y(4), the privilege against self-
incrimination could have been claimed for the information, document or
thing (derivative use immunity).
278. The limited use immunity and derivative use immunity, however, do not
apply in proceedings for an offence against section 137.1 or 137.2 of the
Criminal Code that relate to the information or document itself. Sections
137.1 and 137.2 are about the provision of false or misleading
information or documents. The effect of this provision is that limited
use and derivative use immunity do not limit the ability to prosecute an
individual for providing information, documents or things that are false
or misleading.
279. The limited use immunity and derivative use immunity provided in
subsection 140Y(5) only apply in relation to information provided by an
individual. The immunities are not available to information or documents
provided by a body corporate. This is because, regardless of subsection
140Y(4), a body corporate does not have a right to claim the privilege
against self-incrimination.
280. It is necessary to abrogate the privilege against self incrimination
to enable a key purpose of the Bill, namely the protection of non-citizen
temporary workers from exploitation. It would be unacceptable for a
sponsor who is exploiting non-citizen temporary workers to legitimately
rely on the privilege against self-incrimination to refuse to produce
documents or information to an inspector that relate to that
exploitation.
281. Abrogating the privilege against self-incrimination protects the
interests of non-citizen temporary workers by ensuring that compliance
with sponsorship obligations can effectively be monitored. The interests
of sponsors, however, are also provided for through the limited use and
derivative use immunity.
Section 140Z Offence - failing to comply with requirement of
inspector
282. New section 140Z provides that a person commits an offence if an
inspector requires them to produce a document or thing under paragraph
140X(2)(c), and they do not comply with the requirement. This offence
attracts a maximum penalty of imprisonment for 6 months.
283. New paragraph 140X(2)(c) provides that inspectors may require a
person, by written notice, to produce a document or thing to the
inspector at a specified place within a specified period (of not less
than 7 days). As discussed above, the minimum period in which to respond
to a written notice has been set at 7 days rather than the 14 days
provided for in a similar provision found at section 169 of the Workplace
Relations Act 1996. This is because there may be compelling reasons in
special cases for requesting information in as few as 7 days, taking into
account the special vulnerability of non-citizens in Australia on
temporary visas to exploitation. In normal circumstances however
inspectors will be expected to provide sponsors with at least 14 days in
which to respond to a written notice.
284. The purpose of this offence is to provide an inspector power for which
there is a sanction for non-compliance. The inspector powers under new
subsection 140X(2) do not allow an inspector to enter premises by force.
Therefore, a person could effectively prevent access to documents
relating to compliance with sponsorship obligations by refusing access to
premises.
285. The effect of 140Z is to ensure that there is a sanction if documents
or things are not produced in accordance with a notice which requests
production. The maximum penalty of 6 months imprisonment is consistent
with the penalty for the similar offence under section 819 of the
Workplace Relations Act 1996.
Section 140ZA Disclosure of information by inspectors
286. New section 140ZA sets out the circumstances in which an inspector can
disclose information to another person.
287. The purpose of the section is to ensure that certain disclosures of
personal information are authorised by law for the purposes of paragraph
(1)(d) of Information Privacy Principle 11 in section 14 of the Privacy
Act 1988 (which provides that an exception to the principle that personal
information must not be disclosed, is if the disclosure is required or
authorised by law).
288. New subsection 140ZA(1) provides that disclosure of information (which
was acquired in the course of the inspector exercising powers) by an
inspector is authorised where the inspector considers, on reasonable
grounds that the disclosure in the course of exercising his or her powers
or performing his or her functions is necessary or appropriate. For
example, a disclosure will be necessary where an Inspector requires
certain information and there is no reasonable way of obtaining that
information without making the relevant disclosure.
289. This provision will allow an inspector who is not also an employee of
the Department of Immigration and Citizenship (or who is not otherwise an
officer for the purposes of the Migration Act) to disclose information,
which was acquired by the inspector in the course of exercising his or
her powers as an inspector, to the Department of Immigration and
Citizenship.
290. New subsection 140ZA(2) provides that an inspector may also disclose
information to the Secretary or an employee of a Department administered
by a Minister who administers the Workplace Relations Act 1996 if the
inspector considers on reasonable grounds that the disclosure is likely
to assist the Secretary or employee in the administration of that Act.
291. This provision is necessary because it is likely that information
gathered from business premises for the purposes of determining
compliance with sponsorship obligations will also be relevant to
compliance with the Workplace Relations Act 1996. This is because the
sponsorship obligations will relate to protecting workers in the
workplace.
292. New subsection 140ZA(3) also provides that the regulations may
authorise inspectors to disclose information of the prescribed kind, for
prescribed purposes, to:
. a person who holds any office or appointment under a law of the
Commonwealth, or under a law of a State or Territory (this includes,
for example, a Secretary of a department; or
. employees of the Commonwealth of the prescribed kind; or
. employees of a State or Territory of the prescribed kind.
293. It is intended that such information may be disclosed where relevant
to the performance of the functions of State and Territory agencies
responsible for the administration of any of the following matters:
health, workplace safety, public safety, industrial relations, law
enforcement, fair trading or trade practices.
294. New subsection 140ZA(4) provides that a person who acquires
information because of a disclosure under section 140ZA may only use or
disclose the information for the same purposes for which the original
disclosure was made.
295. In the majority of circumstances, the further disclosure of
information disclosed by an inspector under new section 140ZA will be
regulated by the Privacy Act 1988, or a state Privacy Act. The purpose of
new subsection 140ZA(4) is to ensure that further disclosure of
information disclosed under new section 140ZA is regulated for the
purposes of persons who are not bound by any other privacy laws.
Subdivision G - Application of Division to partnerships and unincorporated
associations
296. New Subdivision G sets out how sponsorships obligations, civil
penalties, and offences included in Division 3A of Part 2 of the
Migration Act are to apply in relation to partnerships and unincorporated
associations. It is necessary to include these specific application
provisions for partnerships and unincorporated associations because
unlike a natural person, or a body corporate, partnerships and
unincorporated associations do not have the status of a separate legal
entity.
297. New Subdivision G replaces the content of existing Subdivision C.
298. Existing Subdivision C provides that sponsorship obligations are
imposed upon each person who is a partner or member of a committee of
management rather than on the partnership or unincorporated association.
The provisions provide that a new partner or new member of a committee
can elect whether or not to be bound by an obligation, and that the
regulations may prescribe the circumstances in which a retiring partner
or member of a committee remains bound by an obligation.
299. The result of this approach is that none of the existing partners or
members of a committee may be bound by the obligations as they may have
all elected to not be bound by the obligations.
300. New Subdivision G differs to existing Subdivision C in the following
ways:
. It does not provide for a new partner or member of an unincorporated
association to elect whether they wish to be bound by a sponsorship
obligation or to be able to exercise a sponsorship right. Rather, it
provides that all existing partners of a partnership at any given time
are required to satisfy a sponsorship obligation and can exercise a
sponsorship right;
. It does not provide that the regulations may prescribe when and for
how long a retiring partner remains bound by a sponsorship obligation.
Rather, it provides that all existing partners of a partnership at any
given time are required to satisfy a sponsorship obligation and can
exercise a sponsorship right. If a partnership ceases to exist, and
consequently there are no existing partners, all the persons who were
partners immediately prior to the partnership ceasing to exist
continue to be required to satisfy a sponsorship obligation as if they
were an existing partner and the partnership had not ceased; and
. It includes provisions which set out how offences and civil penalty
provisions included in Division 3A of Part 2 of the Migration Act
apply to partnerships and unincorporated associations.
301. The first purpose of these changes is to ensure that existing partners
or members are required to satisfy sponsorship obligations. Under
existing Subdivision C, it may occur that no existing partners or members
are bound to discharge a sponsorship obligation because all existing
partners or members are new and have elected not to be bound.
302. The second purpose of these changes is to set out how the new offences
and civil penalties in Division 3A of Part 2 of the Migration Act apply
to partnerships and unincorporated associations.
Section 140ZB Partnerships - sponsorship rights and obligations
303. New subsection 140ZB(1) provides that Division 3A, the regulations
made under it, and any other provisions of the Migration Act that relate
to Division 3A (and regulations made under such provision) apply to a
partnership as if it were a person, but with the changes set out in new
subsections 140ZB(2) - (4) and new sections 140ZC and 140ZD.
304. The effect of new subsection 140ZB(1) is that a partnership is a
person for the purposes of the definition of "approved sponsor" (inserted
by item 1), and is a person for the purposes of the civil penalty regime
set out in Part 8D (inserted by item 42), as well as being a person for
the purposes of Division 3A of Part 2 of the Migration Act.
305. New section 140ZC sets out how Division 3A of Part 2 of the Migration
Act offences and civil penalties apply to partnerships. New section 140ZD
sets out how Division 3A of Part 2 of the Migration Act applies in
relation to partnerships that have ceased to exist.
306. New subsection 140ZB(2) provides that a sponsorship right is
exercisable by a each partner rather than by the partnership.
307. New subsection 140ZB(3) provides that a sponsorship obligation is
imposed on each partner, rather than on the partnership and may be
discharged by any of the partners.
308. New subsection 140ZB(4) provides that the partners are jointly and
severally liable to pay an amount in relation to a sponsorship
obligation. Partners are not, however, jointly and severally liable for a
pecuniary penalty ordered to be paid as a result of civil penalty
proceedings. Under section 140ZC, only a partner who did, aided, abetted,
counselled, procured or was in any way knowingly concerned in the act or
omission that contravened the civil penalty (a civil penalty is
contravened if there is failure to satisfy a sponsorship obligation), is
liable for a pecuniary penalty.
Section 140ZC Partnerships - offences and civil penalties
309. New section 140ZC sets out how criminal offences and civil penalties
included in Division 3A of Part 2 of the Migration Act apply in relation
to partnerships. The civil penalty provisions included in Division 3A are
subsections 140Q(1) and (2). These civil penalty provisions relate to
failure to satisfy sponsorship obligations.
310. The offence provision included in Division 3A which could relate to a
partnership is section 140Z which relates to a failure to comply with a
written notice issued by an inspector to produce a document or thing (the
written notice is issued under paragraph 140X(2)(c)).
311. Subsection 140ZC(1) relates to criminal offences. It provides that
where an offence under Division 3A would have been committed by a
partnership but-for subsection 140ZB(1), each partner at the time the
offence is committed is taken to have committed the offence if they did
the relevant act or made the relevant omission, or aided, abetted,
counselled or procured the act or omission, or was in any way knowingly
concerned in, or party to, the act or omission.
312. The effect of this provision is that it is only the partners who did
or were involved in the relevant act or omission constituting the offence
who commit the offence.
313. Subsection 140ZC(2) relates to civil penalty provisions. It provides
that where a civil penalty provision under Division 3A would have been
contravened by a partnership but-for subsection 140ZB(1), each partner at
the time of the contravention is taken to have contravened the civil
penalty provision if they did the relevant act or made the relevant
omission, or aided, abetted, counselled or procured the act or omission,
or was in any way knowingly concerned in, or party to, the act or
omission.
314. The effect of this provision is that it is only the partners who did
or were involved in the relevant act or omission constituting the
contravention that are liable to pay a pecuniary penalty ordered for
contravention of a civil penalty provision.
315. Subsection 140ZC(3) provides that the maximum civil penalty which may
be imposed on each partner who is liable to pay the civil penalty is one-
fifth of the amount which could be imposed on a body corporate for that
contravention.
316. The maximum amount that could be imposed on a body corporate for
failing to satisfy a sponsorship obligation is 300 penalty units (see new
section 140Q inserted by item 27). Therefore, the maximum that could be
imposed on a partner is 60 penalty units. This is the same maximum amount
that could be imposed on an individual, and currently equates to $6600
(see definition of penalty unit inserted by item 6).
317. Subsection 140ZC(4) provides that to establish that a partnership
engaged in particular conduct (relating to a civil penalty or a criminal
offence), it is sufficient to show that the conduct was engaged in by one
partner in the ordinary course of business of the partnership, and within
the scope of the actual or apparent authority of the partner.
318. Subsection 140ZC(5) provides that to establish that a partnership had
a particular state of mind when it engaged in conduct (relating to a
criminal offence), it is sufficient to show that a relevant partner had
the relevant state of mind. This provision is necessary for the purposes
of proving the fault (or mental) elements which, under the Criminal Code,
must be satisfied to establish an offence. The Criminal Code does not
require fault elements to be established in relation to civil penalties.
Section 140ZD Partnership ceases to exist
319. The purpose of section 140ZD is to ensure that there is always a
person who is required to satisfy a sponsorship obligation, even when a
partnership ceases to exist.
320. New subsection 140ZD(1) provides that if a partnership ceases to
exist, the partners immediately prior to cessation must continue to
satisfy applicable sponsorship obligations.
321. New paragraph 140ZD(2)(a) provides that section 140ZB applies to a
partnership that has ceased to exist as if references to a partnership
were to a partnership that ceases to exist. Paragraph 140ZD(2)(b)
provides that references to partners of the partnership were to the
persons who were partners immediately prior to cessation. The effect of
this provision is that the provisions governing how sponsorship
obligations and rights apply to a partnership, apply in the same way to a
partnership that ceases to exist.
322. New subsection 140ZD(3) clarifies that a partnership ceases to exist
if the dissolution of the partnership does not result in the creation of
another partnership.
Section 140ZE Unincorporated association - sponsorship rights and
obligations
323. New subsection 140ZE(1) provides that Division 3A, the regulations
made under it, and any other provisions of the Migration Act that relate
to Division 3A (and regulations made under such provision) apply to an
unincorporated association as if it were a person, but with the changes
set out in new subsections 140ZE(2) - (4) and new sections 140ZF and
140ZG.
324. The effect of new subsection 140ZE(1) is that an unincorporated
association is a person for the purposes of the definition of "approved
sponsor" (inserted by item 1), and is a person for the purposes of the
civil penalty regime set out in Part 8D (inserted by item 42), as well as
being a person for the purposes of Division 3A of Part 2 of the Migration
Act.
325. New section 140ZF sets out how Division 3A of Part 2 of the Migration
Act offences and civil penalties apply to unincorporated associations.
New section 140ZG sets out how Division 3A applies in relation to
unincorporated associations that have ceased to exist.
326. New subsection 140ZE(2) provides that a sponsorship right is
exercisable by a each member of the association's committee of management
rather than by the unincorporated association.
327. A definition of "committee of management" of an unincorporated
association is inserted by item 3. It is defined to mean a body (however
described) that governs, manages or conducts the affairs of the
association.
328. New subsection 140ZE(3) provides that a sponsorship obligation is
imposed on each member of the association's committee of management,
rather than on the unincorporated association and may be discharged by
any of the members of the association's committee of management.
329. New subsection 140ZE(4) provides that the members of the committee of
management are jointly and severally liable to pay an amount in relation
to a sponsorship obligation.
330. Members are not, however, jointly and severally liable for a pecuniary
penalty ordered to be paid as a result of civil penalty proceedings.
Under section 140ZF, only a member who did, aided, abetted, counselled,
procured or was in any way knowingly concerned in the act or omission
that contravened the civil penalty (a civil penalty is contravened if
there is failure to satisfy a sponsorship obligation), is liable for a
pecuniary penalty.
Section 140ZF Unincorporated association - offences and civil penalties
331. New section 140ZF sets out how criminal offences and civil penalties
included in Division 3A apply in relation to unincorporated associations.
The civil penalty provisions included in Division 3A are subsections
140Q(1) and (2). These civil penalty provisions relate to failure to
satisfy sponsorship obligations.
332. The offence provision included in Division 3A which could relate to an
unincorporated association is section 140Z which relates to a failure to
comply with a written notice issued by an inspector to produce a document
or thing (the written notice is issued under paragraph 140X(2)(c))
333. Subsection 140ZF(1) relates to criminal offences. It provides that
where an offence under Division 3A would have been committed by an
unincorporated association but-for subsection 140ZE(1), each member of
the committee of management at the time the offence is committed is taken
to have committed the offence if they did the relevant act or made the
relevant omission, or aided, abetted, counselled or procured the act or
omission, or was in any way knowingly concerned in, or party to, the act
or omission.
334. The effect of this provision is that it is only the members who did or
were involved in the relevant act or omission constituting the offence
who commit the offence.
335. Subsection 140ZF(2) relates to civil penalty provisions. It provides
that where a civil penalty provision under Division 3A would have been
contravened by an unincorporated association but for subsection 140ZE(1),
each member of the committee of management at the time of the
contravention is taken to have contravened the civil penalty provision if
they did the relevant act or made the relevant omission, or aided,
abetted, counselled or procured the act or omission, or was in any way
knowingly concerned in, or party to, the act or omission.
336. The effect of this provision is that it is only the members who did or
were involved in the relevant act or omission constituting the
contravention who are liable to pay a pecuniary penalty ordered for
contravention of a civil penalty provision.
337. Subsection 140ZF(3) provides that the maximum civil penalty which may
be imposed on each member of the committee of management who is liable to
pay the civil penalty is one-fifth of the amount which could be imposed
on a body corporate for that contravention.
338. The maximum amount that could be imposed on a body corporate for
failing to satisfy a sponsorship obligation is 300 penalty units (see new
section 140Q inserted by item 27). Therefore, the maximum that could be
imposed on a member is 60 penalty units. This is the same maximum amount
that could be imposed on an individual, and currently equates to $6600
(see definition of penalty unit inserted by item 6).
339. Subsection 140ZF(4) provides that to establish that an unincorporated
association had a particular state of mind when it engaged in conduct
(relating to a criminal offence), it is sufficient to show that a
relevant member of the committee of management had the relevant state of
mind. This provision is necessary for the purposes of proving the fault
(or mental) elements which, under the Criminal Code, must be satisfied to
establish an offence. The Criminal Code does not require fault elements
to be established in relation to civil penalties.
340. There is no equivalent of 140ZC(4) included in relation to
unincorporated associations because an unincorporated association does
not engage in business as a partnership does.
Section 140ZG Unincorporated association ceases to exist
341. New subsection140ZG(1) provides that if an unincorporated association
ceases to exist, the member of the committee of management immediately
prior to cessation must continue to satisfy applicable sponsorship
obligations.
342. New paragraph 140ZG(2)(a) provides that section 140ZE applies to an
unincorporated association that has ceased to exist as if references to
an unincorporated association were to a unincorporated association that
ceases to exist.
343. New paragraph 140ZG(2)(b) provides that references to members of the
association's committee of management in section 140ZE are to the persons
who were members immediately prior to cessation. The effect of this
provision is that the provisions governing how sponsorship obligations
and rights apply to an unincorporated association, apply in the same way
to an unincorporated association that ceases to exist.
344. New subsection 140ZG(3) clarifies that an unincorporated association
ceases to exist if the dissolution of the unincorporated association does
not result in the creation of another unincorporated association.
345. The purpose of 140ZG is to ensure that there is always a person who is
required to satisfy a sponsorship obligation, even when an unincorporated
association ceases to exist.
Subdivision H - Miscellaneous
Section 140ZH Disclosure of personal information by Minister
346. New section 140ZH authorises the Minister to disclose personal
information of a prescribed kind about certain types of persons to other
types of persons.
347. The purpose of this provision is to ensure that the Minister is
authorised by law to disclose the prescribed kinds of personal
information for the purposes of paragraph (1)(d) of Information Privacy
Principle 11 in Section 14 of the Privacy Act 1988. Information Privacy
Principle 11 sets out the circumstances in which personal information can
be disclosed by a Commonwealth government agency. The circumstances
include that the disclosure is required or authorised by law.
348. New section 140ZH expands the information disclosure provisions in
existing section 140V. Existing section 140V provides for the personal
information of a prescribed kind about a visa holder or former visa
holder to be disclosed to their approved sponsor or former approved
sponsor.
349. New subsection 140ZH(1) expands this in table form by providing that:
. personal information of a prescribed kind about visa holders or former
visa holders may be disclosed to their approved sponsor, former
approved sponsor, or an agency of the Commonwealth or a State or
Territory prescribed by the regulations; and
. personal information of a prescribed kind about an approved sponsor or
former approved sponsor may be disclosed to their visa holder, former
visa holder, or an agency of the Commonwealth or a State or Territory
prescribed by the regulations.
350. Subsection 140ZH(2) mirrors existing subsection 140V(2) by providing
that the regulations may prescribe the circumstances in which the
Minister may disclose the personal information prescribed under
subsection 140ZH(1).
351. An example of the kind of personal information that may be prescribed
and the circumstances in which it may be disclosed include disclosing to
a visa holder that their approved sponsor has failed to pay an amount
that they are required to pay to the visa holder under a sponsorship
obligation (sponsorship obligations are prescribed under new section140H,
inserted by item 19). This disclosure could assist the visa holder to
bring an action to recover the unpaid amounts. Another example is
explained in detail below under the heading 'Schedule 2'.
352. Subsection 140ZH(3) mirrors existing subsection 140V(3) by providing
that the regulations may prescribe circumstances in which the recipient
may use or disclose the personal information disclosed in accordance with
subsections 140ZH(1) and (2).
353. Subsection 140ZH(4) mirrors existing subsection 140V(4) by providing
that where information is disclosed in accordance with subsections
140ZH(1) and (2), the Minister must give written notice to the person
about whom the information is disclosed that the disclosure has occurred
and include details of the personal information disclosed.
354. However, new subsection 140ZH(4) differs to existing subsection
140V(4) by also providing that written notice does not need to be
provided where the personal information has been disclosed to an agency
of the Commonwealth or a State or Territory prescribed by the
regulations.
355. Written notification does not need to be provided in these cases
because the personal information will often be disclosed for the purpose
of confirming compliance with a law administered by the prescribed
government agency to whom the information has been disclosed. If
notification were provided that the information had been disclosed it may
impede any compliance investigation resulting from the disclosure by the
Minister.
Section 140ZI Disclosure of personal information to Minister
356. New subsection 140ZI(1) authorises approved sponsors and former
approved sponsors of a visa holder or former visa holder to disclose
personal information of a prescribed kind to the Minister about the visa
holder or former visa holder, if the Minister requests the personal
information.
357. New subsection 140ZI(2) clarifies that if personal information of a
prescribed kind is disclosed by an approved sponsor or former approved
sponsor as a result of a request by the Minister under subsection
140ZI(1), then the disclosure is taken to be authorised by law for the
purposes of:
. paragraph 1(d) of Information Privacy Principle 11 in section 14 of
the Privacy Act 1988;
. paragraph 2.1(g) of National Privacy Principle 2 in Schedule 3 to the
Privacy Act 1988; and
. a provision of a law of a State or Territory that provides that
information that is personal may be disclosed if the disclosure is
authorised by law.
358. Paragraph (1)(d) of Information Privacy Principle 11 in Section 14 of
the Privacy Act 1988 sets out the circumstances in which personal
information can be disclosed by a Commonwealth government agency. The
circumstances include that the disclosure is required or authorised by
law.
359. Paragraph 2.1(g) of National Privacy Principle 2 in Schedule 3 to the
Privacy Act 1988 sets out the circumstance in which personal information
can be disclosed by an organisation (that is not a small business
operator) . The circumstances include that the disclosure is required or
authorised by law.
360. New subsection 140ZI(3) clarifies that section 140ZI does not
authorise a disclosure of personal information that is prevented by a law
of the Commonwealth, a State or Territory, other than authorising
disclosure for the purposes of the laws set out in new subsection
140ZI(2).
361. New section 140ZI does not mean that an approved sponsor or former
approved sponsor is required to provide personal information requested by
the Minister. Rather new section 140ZI ensures that an approved sponsor
or former approved sponsor is not prevented from providing personal
information about a visa holder or former visa holder to the Minister
when requested by the Minister.
362. The kinds of personal information which may be prescribed in the
regulations as information that the Minister may request and the approved
sponsor or former approved sponsor is authorised to disclose include a
visa holder's contact details to facilitate direct communication with the
Department.
Section 140ZJ Unclaimed money
363. New section 140ZJ deals with the issue of unclaimed money and makes it
clear that if a person is required to pay an amount in accordance with a
sponsorship obligation and the whereabouts of the intended recipient is
unknown, the person may pay the money to the Commonwealth on trust for
the intended recipient. If this occurs the person paying the money is
taken to have discharged the sponsorship obligation to pay to the extent
of the amount paid.
364. More specifically new subsection 140ZJ(1) provides that if a person
(the intended recipient) has not been paid an amount that was required to
be paid to him or her in accordance with a sponsorship obligation; and
the person who is required to pay the amount is unable to do so because
the person does not know the intended recipient's location, the person
may pay the amount to the Commonwealth.
365. Subsection 140ZJ(2) provides that the Commonwealth holds the amount in
trust for the intended recipient.
366. Subsection 140ZJ(3) provides that payment of the amount to the
Commonwealth is a sufficient discharge to the person, as against the
intended recipient, for the amount paid. If the full amount is not paid
the unpaid portion remains outstanding and enforcement or recovery action
may be taken in respect of that outstanding amount.
Section 140ZK Other regulation making powers not limited
367. New section 140ZK provides that regulations made for the purposes of
Division 3A of Part 2 of the Migration Act do not limit the power to make
regulations under other provisions of the Migration Act or under other
legislation.
368. New section 140ZK replaces existing section 140W. New subsection 140ZK
replicates existing subsection 140W(1).
369. New section 140ZK does not replicate existing subsections 140W(2) and
(3) because these provisions merely restate the legal position - that is,
it is not necessary to legislate or clarify that nothing in Division 3A
of Part 2 of the Migration Act is intended to effect the operation of
regulations made under the Migration Act, or the ability to repeal or
amend those regulations.
Item 31 Subsection 245L(2)(note 1)
370. This item omits the phrase "(as defined in the Privacy Act 1988)" from
note 1 following subsection 245L(2). This phrase is included in the
existing note for the purpose of clarifying that "personal information"
has the same meaning as in the Privacy Act 1988.
371. Item 7 inserts a definition of "personal information" into the general
definitions section of the Migration Act (section 5(1)). The new
definition provides that "personal information" has the same meaning as
that given in Privacy Act 1988.
372. The effect of the amendment made by item 7 is to define "personal
information" for the purposes of the whole Migration Act.
Item 32 Section 275 (definition of lawyer)
373. This item repeals the definition of "lawyer" from section 275 of Part
3 of the Migration Act.
374. Item 5 inserts a definition of "lawyer" into the general definitions
section of the Migration Act (section 5(1)). This new definition is the
same as the definition in existing section 275. The effect of the
amendment made by item 5 is to define "lawyer" for the purposes of the
whole Migration Act.
Item 33 Subsection 320(3)
375. This item omits the phrase "(as defined in the Privacy Act 1988)" from
subsection 320(3). This phrase is included in the existing subsection for
the purpose of clarifying that "personal information" has the same
meaning as in the Privacy Act 1988.
376. Item 7 inserts a definition of "personal information" into the general
definitions section of the Migration Act (section 5(1)). The new
definition provides that "personal information" has the same meaning as
that given in Privacy Act 1988. The effect of the amendment made by item
7 is to define "personal information" for the purposes of the whole
Migration Act.
Item 34 Subsection 321(1)
377. This item omits the phrase "(as defined in the Privacy Act 1988)" from
subsection 321(1). This phrase is included in the existing subsection for
the purpose of clarifying that "personal information" has the same
meaning as in the Privacy Act 1988.
378. Item 7 inserts a definition of "personal information" into the general
definitions section of the Migration Act (section 5(1)). The new
definition provides that "personal information" has the same meaning as
that given in Privacy Act 1988. The effect of the amendment made by item
7 is to define "personal information" for the purposes of the whole
Migration Act.
Item 35 Subsection 321A(4) (definition of personal information)
379. This item repeals the definition of "personal information" from
subsection 321A(4).
380. Item 7 inserts a definition of "personal information" into the general
definitions section of the Migration Act (section 5(1)). The new
definition provides that "personal information" has the same meaning as
that given in Privacy Act 1988. This is the same definition as in
existing subsection 321A(4). The effect of the amendment made by item 7
is to define "personal information" for the purposes of the whole
Migration Act.
Item 36 Subsection 332F(4) (definition of personal information)
381. This item repeals the definition of "personal information" from
subsection 332F(4).
382. Item 7 inserts a definition of "personal information" into the general
definitions section of the Migration Act (section 5(1)). The new
definition provides that "personal information" has the same meaning as
that given in Privacy Act 1988. This is the same definition as in
existing subsection 332F(4). The effect of the amendment made by item 7
is to define "personal information" for the purposes of the whole
Migration Act.
Item 37 Subsection 332G(5) (definition of personal information)
383. This item repeals the definition of "personal information" from
subsection 332G(5).
384. Item 7 inserts a definition of "personal information" into the general
definitions section of the Migration Act (section 5(1)). The new
definition provides that "personal information" has the same meaning as
that given in Privacy Act 1988. This is the same definition as in
existing subsection 332G(5). The effect of the amendment made by item 7
is to define "personal information" for the purposes of the whole
Migration Act.
Item 38 Subsection 336FB(1)
385. This item omits the phrase "(as defined in the Privacy Act 1988)" from
subsection 336FB(1). This phrase is included in the existing subsection
for the purpose of clarifying that "personal information" has the same
meaning as in the Privacy Act 1988.
386. Item 7 inserts a definition of "personal information" into the general
definitions section of the Migration Act (section 5(1)). The new
definition provides that "personal information" has the same meaning as
that given in Privacy Act 1988. The effect of the amendment made by item
7 is to define "personal information" for the purposes of the whole
Migration Act.
Item 39 Paragraph 336FC(2)(e)
387. This item omits the phrase "(as defined in the Privacy Act 1988)" from
paragraph 336FC(2)(e). This phrase is included in the existing paragraph
for the purpose of clarifying that "personal information" has the same
meaning as in the Privacy Act 1988.
388. Item 7 inserts a definition of "personal information" into the general
definitions section of the Migration Act (section 5(1)). The new
definition provides that "personal information" has the same meaning as
that given in Privacy Act 1988. The effect of the amendment made by item
7 is to define "personal information" for the purposes of the whole
Migration Act.
Item 40 Subsection 336FD(1)
389. This item omits the phrase "(as defined in the Privacy Act 1988)" from
subsection 336FD(1). This phrase is included in the existing subsection
for the purpose of clarifying that "personal information" has the same
meaning as in the Privacy Act 1988.
390. Item 7 inserts a definition of "personal information" into the general
definitions section of the Migration Act (section 5(1)). The new
definition provides that "personal information" has the same meaning as
that given in Privacy Act 1988. The effect of the amendment made by item
7 is to define "personal information" for the purposes of the whole
Migration Act.
Item 41 Section 486K (definition of lawyer)
391. This item repeals the definition of "lawyer" from section 486K of the
Migration Act. The definition of "lawyer" in existing section 486K
provides that it has the same meaning as for Part 3 of the Migration Act.
Section 275 defines "lawyer" for the purposes of Part 3 of the Migration
Act. This definition in section 275 is repealed by item 32.
392. Item 5 inserts a definition of "lawyer" into the general definitions
section of the Migration Act (section 5(1)). This new definition is the
same as the definition in existing section 275, and consequently the same
definition as in section 486K. The effect of the amendment made by item 5
is to define "lawyer" for the purposes of the whole Migration Act
Item 42 After Part 8C
393. This item inserts a new Part 8D into the Migration Act. Part 8D sets
out a civil penalty framework and is made up of :
. Division 1 - Obtaining an order for a civil penalty (sections 486R-
486U)
. Division 2 - Civil penalty proceedings and criminal proceedings
(sections 486V-486Z); and
. Division 3 - Miscellaneous (section 486ZA).
394. The new civil penalty framework inserted by this item is designed so
that it can apply to any future civil penalty provisions which may be
included in the Migration Act in the future (item 2 inserts a definition
of civil penalty provision).
395. Civil penalties have been preferred to criminal penalties as the
appropriate sanction in this context as a sponsor's conviction for a
criminal offence may have unintended consequences. For example the mere
fact of a criminal conviction may mean that the sponsor loses
entitlements to licences or other things essential to their business or
livelihood, and this outcome would not be in Australia's best interests.
396. The use of civil penalties is also considered appropriate for the
enforcement scheme to be flexible and administratively manageable. In
addition, civil penalties facilitate the infringement notice scheme
provided for in proposed new section 140R (inserted by item 27).
Section 486R Person may be ordered to pay pecuniary penalty for
contravening civil penalty provision
397. New section 486R sets out the civil penalty orders that may be applied
for and made by a court; the things that a court must consider in making
an order; and the rules of evidence which are to apply to the
proceedings.
Application for order
398. New subsection 486R(1) provides that the Minister may apply to the
Federal Court or the Federal Magistrates Court for an order that a person
who has contravened a civil penalty provision pay the Commonwealth a
pecuniary penalty. The Minister must apply to the court within 6 years of
a person allegedly contravening a civil penalty provision.
399. A definition of "civil penalty provision" is inserted by item 2. The
only civil penalty provisions included in the Migration Act are new
subsections 140Q(1) and (2) inserted by item 27. These civil penalty
provisions relate to failure by an approved sponsor or former approved
sponsor to satisfy a sponsorship obligation that is imposed on them. This
may be through the regulations or through the terms of a work agreement
(see new section 140H inserted by item 19).
Court may order wrongdoer to pay pecuniary penalty
400. New subsection 486R(2) provides that if the court is satisfied that
the person alleged to have contravened a civil penalty provision has
contravened the provision, the court may order the person to pay to the
Commonwealth a pecuniary penalty which the court determines is
appropriate.
401. For the purposes of the alleged contravention of a civil penalty
provision under Division 3A of Part 2 of the Migration Act, a 'person' in
subsection 486(2) (and in Part 8D generally) a partner in a partnership,
or a member of a committee of management of an unincorporated association
(see new subsections 140ZB(1) and 140ZE(1) inserted by item 30).
402. The pecuniary penalty cannot be more than the maximum penalty amount
provided in the civil penalty provision which has been contravened. For
new subsection 140Q(1) and (2) (which are the only civil penalty
provisions proposed to be included in the Migration Act) the maximum
penalty is 60 penalty units for an individual (currently $6600) and 300
penalty units for a body corporate (currently $33,000).
403. A pecuniary penalty may be awarded for each contravention of a civil
penalty provision.
404. For example, the sponsorship obligations prescribed under new section
140H (inserted by item 19) are required to be satisfied in respect of
each visa holder (or former visa holder) sponsored by the approved
sponsor. If the sponsorship obligation prescribed in the regulations
provides that an approved sponsor must pay at least a minimum wage
(however this is described) to their visa holders, and the approved
sponsor does not pay at least the required minimum wage to each of their
three visa holders, then this is at least three contraventions of a civil
penalty provision. The approved sponsor could then receive a total
maximum penalty of 180 penalty units if they are an individual, or 900
penalty units if they are a body corporate (see new section 486ZA in
relation to joining actions for multiple contraventions of civil penalty
provisions).
Determining amount of pecuniary penalty
405. New subsection 486R(3) sets out the relevant matters which a court
must have regard to when determining the amount of the pecuniary penalty.
The list of matters included in subsection 486R(3) are not exhaustive, a
court must have regard to all relevant matters, regardless of whether
they are expressly stated in subsection 486R(3).
406. The list of matters included in subsection 486R(3) are:
. the nature and extent of the contravention;
. the nature and extent of any loss or damage suffered as a result of
the contravention;
. the circumstances in which the contravention took place; and
. whether the person has previously been found by an eligible court in
proceedings under the Migration Act to have engaged in the same or
similar conduct.
407. New subsection 486R(4) clarifies the meaning of "similar conduct" for
the purposes of subsection 486R(3) in relation to a contravention of a
civil penalty provision under Division 3A of Part 2 of the Migration Act.
408. The two civil penalty provisions included in Division 3A of Part 2 of
the Migration Act (inserted by item 27) relate to failure by an approved
sponsor or former approved sponsor to satisfy a sponsorship obligation.
New subsection 486R(4) clarifies that in this context "similar conduct"
includes where a person has previously been found by a court to have
failed to satisfy a sponsorship obligation which is the same or different
from the sponsorship obligation to which the proceedings relate.
Civil evidence and procedure rules apply
409. New subsection 486R(5) provides that the court must apply the rules of
evidence and procedure for civil matters when hearing and determining an
application for an order under section 486R. The orders that may be made
under section 486R are set out in subsections 486R(2) and 486R(6).
410. The note to subsection 486R(5) advises that the standard of proof in
civil proceedings is the balance of probabilities.
Court may order wrongdoer to pay amount prescribed by regulations
411. New subsection 486R(6) is a restitution provision. It allows the court
to make an order, as part of civil penalty proceedings, that an amount be
paid to the Commonwealth, a State or Territory or another person, which
is an amount of a kind prescribed in the regulations that is required to
be paid to the Commonwealth, a State or Territory or another person (as
the case may be) and the amount remains unpaid after the time for
payment.
412. A subsection 486R(6) order cannot be made if proceedings to recover
the amount (which is the subject of the order) have been brought under
new subsection 140S. New subsections 140S(1) and (2) provide that where a
person who is or was an approved sponsor is required to pay an amount of
a kind prescribed in the regulations to the Commonwealth, a State or a
Territory or another person, in relation to a sponsorship obligation,
then the person to whom the money is owed (including the Commonwealth, a
State, or a Territory) may seek to recover the amount as a debt due in an
eligible court.
413. The benefit of a subsection 486R(6) order is that a person to whom
money is owed in relation to a sponsorship obligation, or in relation to
another amount of a kind prescribed by the regulations, does not bear the
expense and inconvenience of initiating separate court proceedings to
recover the money under section 140S.
414. If, however, the Minister does not commence civil penalty proceedings,
or does commence civil penalty proceedings and no subsection 486R(6)
order is made by the court as part of those proceedings, then a person
will need to pursue a section 140S action to recover the money.
415. If a section 140S action has already been commenced in relation to the
amount at the time the subsection 486R(6) order is being considered, the
subsection 486R(6) cannot be made, and liability to pay the amount will
be decided through the already commenced section 140S proceedings. This
will ensure that two orders are not made in relation to the same amount.
416. New subsection 140S(3) (inserted by item 27) clarifies that an amount
may still be recovered under section 140S if civil penalty proceedings
are brought under Part 8D and discontinued or completed without the court
making an order under subsection 486R(6) in relation to the amount.
417. The note following subsection 140SB(6) highlights that section 140S
allows a person to bring proceedings to recover an amount owed if the
court does not make an order under subsection 486R(6).
418. New subsection 486R(7) relates to the interest payable on an amount
ordered to be paid under new subsection 486R(6).
419. New paragraph 486R(7)(a) provides that if a court makes an order under
subsection 486R(6), an application may be made, and an order may be
given, under subsection 140SA as if the proceedings were commenced under
section 140S. New section 140SA (inserted by item 27) provides that,
upon application, a court may impose interest upon an amount ordered to
be paid, and sets out the amount of interest which can be imposed.
420. New paragraph 486R(6)(b) provides that if a court makes an order under
subsection 486R(6), section 140SB shall apply as if the amount so ordered
were a judgment debt made under section 140S. New section 140SB
(inserted by item 27) provides that where an order to pay an amount has
been made as a result of a section 140S action or under subsection
486R(6), that amount carries interest from the date on which the judgment
is entered at the rate that would apply under section 52 of the Federal
Court of Australia Act 1976.
Section 486S Persons involved in contravening civil penalty
provision
421. New section 486S provides that a person involved in a contravention of
a civil penalty provision is to be treated as having contravened that
provision. The scope of involvement comprises aiding, abetting,
counselling, procuring, or inducing (whether by threats, promises or
otherwise) such a contravention as well as conspiring with others to
contravene a civil penalty provision.
422. The effect of this provision in relation to the new subsections
140Q(1) and (2) civil penalty provisions (inserted by item 27) is that
persons who are not required to satisfy a sponsorship obligation
prescribed under new section 140H (inserted by item 19) may still breach
the civil penalty provision if they are involved in the way described in
an act or omission that amounts to a breach of the subsection 140Q(1) or
(2) civil penalty provisions.
Section 486T Recovery of pecuniary penalties
423. New section 486T provides that if the Federal Court or the Federal
Magistrates Court orders a person to pay a pecuniary penalty under Part
8D, the Commonwealth may enforce the order as if it were a judgment of
the relevant court.
Section 486U Gathering information for application for pecuniary
penalty
424. New section 486U concerns the gathering of information, from persons
other than the alleged wrongdoer, which is relevant to existing or
potential civil penalty proceedings against the alleged wrongdoer. The
new section creates a criminal offence for failing to give the assistance
required under new subsection 486U(2).
425. New subsection 486U(1) provides that the Secretary may exercise the
information gathering powers set out in section 486U if it appears to the
Secretary that a person (the alleged wrongdoer) may have contravened a
civil penalty provision.
426. New subsection 486U(2) provides that where the Secretary suspects on
reasonable grounds that a person, other than the alleged wrongdoer, can
give information relevant to an application for a civil penalty order,
the Secretary may, by writing given to the person, require the person to
give all reasonable assistance in connection with the application for the
civil penalty order.
427. New subsection 486U(3) clarifies that a lawyer who is acting, or has
acted, for the alleged wrongdoer cannot be required to provide
information under section 486U. A definition of lawyer is inserted into
the general definitions section of the Migration Act by item 5, and is
defined to mean a barrister, a solicitor, a barrister and solicitor, or a
legal practitioner of the High Court or of the Supreme Court of a State
or Territory.
428. New subsection 486U(4) empowers a court, upon an application by the
Secretary, to order that a person complies with a request made under
subsection 486U(2).
429. New subsection 486U(5) creates a criminal offence for failure to give
assistance as required under subsection 486U(2). The maximum penalty is
30 penalty units. This maximum penalty is the same as the maximum
penalty for a similar offence provision found at section 42YE of the
Therapeutic Goods Act 1989.
430. This is not an offence of strict liability. Therefore, the fault
elements set out in Division 5 of the Criminal Code will apply.
Division 2 - Civil penalty proceedings and criminal proceedings
Section 486V Civil proceedings after criminal proceedings
431. New section 486V provides that a court must not order that a pecuniary
penalty be paid for contravention of civil penalty provision if that
person has been convicted of an offence arising from substantially the
same conduct that constitutes the contravention of the civil penalty
provision.
432. New section 486V ensures that a person who is convicted of a criminal
offence will not face a pecuniary penalty in relation to substantially
the same conduct as that which constituted the offence.
Section 486W Criminal proceedings during civil proceedings
433. Section 486W provides that where criminal proceedings have been
commenced, any civil proceedings against the same person seeking a
pecuniary penalty in relation to substantially the same conduct shall be
stayed. The civil proceedings may be resumed if the criminal proceedings
do not result in a conviction, otherwise the civil proceedings are to be
dismissed if and when the person is convicted as a result of the criminal
proceedings.
434. New section 486W sets out the interrelationship between criminal and
civil proceedings that relate to conduct of a person which may be a
breach of a civil penalty provision and also a criminal offence.
435. Under new subsection 486W(1), civil penalty proceedings will be stayed
where:
. criminal proceedings are started or have already been started against
the person for an offence; and
. the offence is constituted by conduct that is substantially the same
as the conduct in relation to which a civil penalty pecuniary order is
proposed to be made.
436. Under new subsection 486W(2), proceedings for an order under a civil
penalty provision would be able to be resumed if the person is not
convicted of an offence. If the person is convicted, civil penalty
proceedings for a pecuniary penalty will be dismissed.
Section 486X Criminal proceedings after civil proceedings
437. New section 486X provides that where a person is ordered to pay a
pecuniary penalty for contravention of a civil penalty provision,
criminal proceedings may not be commenced in relation to substantially
the same conduct.
Section 486Y Evidence given in proceedings for civil penalty not
admissible in civil proceedings
438. New section 486Y concerns evidence of information given, or documents
produced, by persons in civil penalty proceedings.
439. New section 486Y provides that such evidence is inadmissible in any
later criminal proceedings against the same persons if those later
proceedings relate to substantially the same conduct that was the subject
of the civil penalty proceedings. This section does not however apply to
criminal proceedings which may arise from giving false evidence in the
civil penalty proceedings.
Section 486Z Civil double jeopardy
440. New section 486Z provides that any person ordered to pay a pecuniary
penalty for contravening a civil penalty provision shall not be liable to
pay any pecuniary penalty under some other law of the Commonwealth in
relation to that same conduct.
Section 486ZA Multiple contraventions of civil penalty provisions
441. Subsection 486ZA(1) provides that proceedings may be joined where the
proceedings are against the same person for any number of orders to pay
pecuniary penalties for contraventions of a civil penalty provision that
are founded on the same facts or form, or are part of, a series of
contraventions of the same or a similar character.
442. Subsection 486ZA(2) provides that where actions are joined under
subsection 486ZA(1), the court may make a single order imposing a
pecuniary penalty, so long as the penalty does not exceed the sum of the
maximum penalties which could have been imposed had the actions not been
joined.
443. For example, if a sponsorship obligation prescribed under new section
140H (inserted by item 19) requires a person to pay at least a minimum
salary to the visa holders that they sponsor, and to pay the minimum
salary at least once a month, the person may contravene subsection
140Q(1) (inserted by item 27) 10 times if they do not satisfy the
obligation in relation to five visa holders for a period of 2 months
(there is 10 contraventions because there is a contravention for each
visa holder (5), for each month (2)).
444. Subsection 140Q(1) is a civil penalty provision which is contravened
if a person fails to satisfy a sponsorship obligation. Under new section
486ZA proceedings for an order in relation to all 10 alleged
contraventions could be joined, and a single order made in relation to
all 10 contraventions.
Item 43 Subsection 488B(1)
445. This item omits the phrase "(as defined in the Privacy Act 1988)" from
subsection 488B(1). This phrase is included in the existing subsection
for the purpose of clarifying that "personal information" has the same
meaning as in the Privacy Act 1988.
446. Item 7 inserts a definition of "personal information" into the general
definitions section of the Migration Act (section 5(1)). The new
definition provides that "personal information" has the same meaning as
that given in Privacy Act 1988. The effect of the amendment made by item
7 is to include the definition of "personal information" for the purposes
of the whole Migration Act.
Part 2-Transitional matters
Item 44 Definitions
447. This item sets out five definitions that apply for the purposes of the
transitional provisions included in Part 2 to Schedule 1 of the Bill.
448. The first definition is "approved sponsor". This item provides that
"approved sponsor" has the same meaning as in the old law. Existing
section 140D provides that a person is an "approved sponsor" when they
have consented in writing to sponsor a person for a visa; consent has not
been withdrawn; the Minister has approved the sponsorship; and the person
has not been cancelled as a sponsor.
449. This definition, however, does not apply where a contrary intention
appears. For example, where an item provides that a person is an
"approved sponsor" or former "approved sponsor" under the new law (see
for example subitem 46(2)).
450. The second definition is "approved professional development sponsor".
This item provides that "approved professional development sponsor" has
the same meaning as in regulation 1.03 of the Migration Regulations 1994
as in force immediately before Schedule 1 of the Bill commences.
451. Regulation 1.03 of the Migration Regulations 1994 currently provides
that "approved professional development sponsor" means an organisation
that has been approved as a professional development sponsor under
existing subsection 140E(1) of the Migration Act and on the terms
specified in regulation 1.20O. Items 48 and 49 set out transitional
provisions which apply to approved professional development sponsors.
452. The third definition is "new law". This item provides that "new law"
means Division 3A of Part 2 of the Migration Act 1958 as in force
immediately after Schedule 1 of the Bill commences, and any other law of
the Commonwealth as far as it relates to Division 3A of Part 2 the
Migration Act 1958.
453. This ensures that "new law" includes both Division 3A of Part 2 of the
Migration Act and other laws such as new Part 8D of the Migration Act
(inserted by item 42). The term "new law" is used in items 45, 46, 47,
and 49.
454. The fourth definition is "old law". This item provides that "old law"
means Division 3A of Part 2 of the Migration Act 1958 as in force
immediately before Schedule 1 of the Bill commences. There are no other
laws of the Commonwealth that relate to Division 3A of Part 2 of the
Migration Act as there are for "new law" in relation to Division 3A of
Part 2 of the Migration Act. The term "old law" is used in items 45 - 49.
455. The fifth definition is "standard business sponsor". This item
provides that "standard business sponsor" has the same meaning as in
regulation 1.20B of the Migration Regulations 1994 as in force
immediately before Schedule 1 of the Bill commences.
456. Regulation 1.20B of the Migration Regulations 1994 currently
relevantly provides that a "standard business sponsor" means a person
whose application for approval as a standard business sponsor is made on
or after 1 July 2003, and approved in accordance with regulation 1.20D or
1.20DA.
457. Regulation 1.20D of the Migration Regulations 1994 currently sets out
the criteria for approval as a standard business sponsor for businesses
lawfully operating in Australia, and when a person ceases to be a
standard business sponsor. Regulation 1.20DA sets out the criteria for
approval as a standard business sponsor for businesses lawfully operating
outside Australia, and when a person ceases to be a standard business
sponsor (the ceasing provision is the same as under regulation 1.20D in
relation to businesses lawfully operating inside Australia).
Item 45 Standard business sponsors to satisfy sponsorship obligations
from commencement
458. This item sets out the transitional arrangements for two groups of
people:
. a person who is a standard business sponsor immediately before
Schedule 1 of the Bill commences (item 44 defines the term "standard
business sponsor"); and
. a person who is an approved sponsors, other than an approved sponsor
who is an approved professional development sponsor immediately before
Schedule 1 of the Bill commences (item 44 defines approved
professional development sponsor and approved sponsor).
459. A person is an approved sponsor, other than an approved professional
development sponsor, when they have ceased to be a standard business
sponsor, but remain an "approved sponsor" (within the meaning of section
140D) in relation to a Subclass 457 (Business (Long Stay)) visa holder.
460. Existing section 140D provides that a person is an "approved sponsor"
when they have consented in writing to sponsor a person for a visa;
consent has not been withdrawn; the Minister has approved the
sponsorship; and the person has not been cancelled as a sponsor.
461. Currently, a person ceases to be a standard business sponsor at the
earliest of reaching the maximum number of people that they are approved
to sponsor; and twenty-four months after the approval as a sponsor was
given. However, a person will remain an "approved sponsor" after ceasing
to be a standard business sponsor if they cease to be a standard business
sponsor through reaching their maximum number of people or twenty-four
months passing, but not if they cease to be a standard business sponsor
as a result of being cancelled.
462. Subitem 45(1) provides that item 45 only applies to the above two
groups of people (standard business sponsors; and approved sponsors,
other than an approved sponsor who is an approved professional
development sponsor). The following explanation of this item will refer
to these two groups collectively as "existing subclass 457 visa
sponsors".
463. Subitem 45(2) provides that the amendments made by Schedule 1 of the
Bill (the new sponsorship framework) apply to existing subclass 457 visa
sponsors as if they were approved as a sponsor under new section 140E
(amended by items 13-15) in relation to the class prescribed in the
regulations for standard business sponsors.
464. The effect of this provision is that an existing subclass 457 visa
sponsor will become an "approved sponsor" within the meaning of the
definition of "approved sponsor" inserted by item 1.
465. The effect of falling within the new meaning of "approved sponsor" is
that all provisions of the new sponsorship framework which refer to an
approved sponsor or former approved sponsor will apply to existing
subclass 457 visa sponsor. This includes (amongst other things) the new
sponsorship obligations, civil penalty provisions, monitoring and
investigation powers, and information sharing provisions.
466. The application of the new sponsorship framework to existing subclass
457 visa sponsors is necessary for the following reasons:
. the nature of the sponsorship obligations which will be required to be
satisfied will not be significantly different from the existing
undertakings;
. the possible transitional period if these existing sponsors are not
transitioned into the new sponsorship framework is impractically long
(up to six years) for the large caseload;
. the administrative complexity for sponsors, the Department of
Immigration and Citizenship, and other stakeholders of administering
two sponsorship frameworks makes the alternative unworkable for the
large caseload; and
. existing subclass 457 visa sponsors will have sufficient notice to
terminate the sponsorship of their Subclass 457 (Business (Long Stay))
visa holders if they are not prepared to satisfy the new sponsorship
obligations in relation to those visa holders.
467. Subitem 45(3) provides that despite being an "approved sponsor" for
the purposes of the new sponsorship framework, the terms of approval
specified under existing section 140G in an existing subclass 457 visa
sponsor's approval as a sponsor continue to have effect. This means, for
example, that an existing subclass 457 visa sponsor will cease to be
approved as a sponsor at the earlier of reaching the maximum number
people who they are approved to sponsor or 24 months after they were
first approved as a sponsor.
468. Subitem 45(4) provides that a term of a kind specified under existing
section 140G in an existing subclass 457 visa sponsor's approval as a
sponsor, may be prescribed by the regulations as a term of a kind that
can be varied under new paragraph 140GA(2)(a) (inserted by item 18).
469. The note following subitem 45(4) advises that the effect of subitem
45(4) is that a term under existing section 140G may be varied under new
section 140GA (inserted by item 18) if it is a prescribed term of a kind
under new section 140GA.
470. Subitem 45(5) provides that if an existing subclass 457 visa sponsor
has made an undertaking under existing section 140H, then the undertaking
ceases to have effect when Schedule 1 of the Bill commences, and they
must satisfy any applicable sponsorship obligation prescribed by the
regulations under new section 140H (inserted by item 19). An applicable
sponsorship obligation is only required to be satisfied on and from
commencement of the new sponsorship framework, a person cannot fail to
satisfy a sponsorship obligation through an action that occurred prior to
commencement of the new sponsorship framework.
471. Subitem 45(6) provides that if an existing subclass 457 visa sponsor
breaches an undertaking prior to the undertaking ceasing to have effect
(by virtue of subitem 45(5)), then the existing subclass 457 visa
sponsor, can be sanctioned under new section 140M (inserted by item 19)
in the circumstances set out in existing regulation 1.20HA, as if
existing regulation 1.20HA were made under new section 140L (also
inserted by item 19).
472. The purpose of this subitem is to ensure that the ability to sanction
an existing subclass 457 visa sponsor for breach of an undertaking that
occurs prior to commencement of the new sponsorship framework is not lost
when the new sponsorship framework commences.
473. It is necessary to be able to impose the sanction under the new
cancelling and barring powers in new section 140M rather than the
cancelling and barring powers under existing section 140L because subitem
45(2) provides that an existing subclass 457 visa sponsor is taken to be
approved as a class of sponsor under new section 140E (amended by items
13-15), rather than continuing to be approved under existing section
140E.
474. It is therefore the approval as a class of approved sponsor under new
section 140E that needs to be cancelled or barred, rather than the
original approval as a sponsor under existing section 140E - existing
section 140L does not provide for approval in relation to a class of
approved sponsor to be cancelled.
475. Subitem 45(7) provides that the new sponsorship framework applies to a
partner or member of the committee of management of an unincorporated
association even if the partner or member did not make an election to be
bound by sponsorship obligations under existing sections 140Z and 140ZE.
476. New sections 140ZB to 140ZG set out how Division 3A of Part 2 of the
Migration Act applies in relation to partnerships and unincorporated
associations (inserted by item 30). These sections provide (amongst other
things) that the current partners of a partnership at any given time, and
the current members of the committee of management of an unincorporated
association at any given time, are required to satisfy sponsorship
obligations in relation to a visa holder sponsored by the partnership or
unincorporated association.
477. The effect this subitem is that a partner or member of the committee
management who had previously elected not to be bound by sponsorship
obligations will be bound by sponsorship obligations from commencement.
It is necessary that this occur to ensure that there is always someone
required to satisfy a sponsorship obligation in relation to a sponsored
visa holder.
478. Under the current law setting out when a partner or member of a
committee is bound by sponsorship undertakings (see existing Subdivision
C of Division 3A of Part 2 of the Migration Act), there may be no person
who is required to satisfy a sponsorship obligation in respect of a
sponsored visa holder, as all existing partners or members may not have
made and election to be bound by sponsorship undertakings, and the
partners or members who made the sponsorship undertakings have retired
from the partnership or unincorporated association and are no longer
bound by the undertakings.
479. Subitem 45(7) only applies in respect of existing subclass 457 visa
sponsors - therefore, the partners of partnerships, and the members of
the committee of management of unincorporated associations, who are
approved professional development sponsors will not be affected by new
sections 140ZB to 140ZG (inserted by item 30).
Item 46 Certain former standard business sponsors to satisfy
sponsorship obligations from commencement
480. This item sets out the transitional arrangements for a person who,
immediately before the commencement of Schedule 1 of the Bill, is a
former standard business sponsor (item 44 defines the term "standard
business sponsor"); is also a former approved sponsor within the meaning
of existing section 140D; and is bound by an undertaking made under
existing section 140H. Subitem 46(1) provides that these are the people
to whom item 46 applies. Subitem 46(1) also clarifies that a person is
'bound' by an undertaking if the undertaking could be enforced under
existing section 140Q.
481. A person is a former approved sponsor in relation to a visa holder (or
former visa holder) within the meaning of existing section 140D if the
person has withdrawn their consent to sponsor the visa holder; if the
person has been cancelled or barred in relation to the visa holder; or if
they no longer satisfy the terms on which they were approved as a
sponsor.
482. Existing section 140Q provides that an undertaking remains enforceable
against a person in circumstances prescribed in the regulations in
relation to a visa holder to which the undertaking related ceasing to
hold the relevant visa; or in relation to the person ceasing to be an
approved sponsor of the visa holder. Existing regulation 1.20DB sets out
the circumstances in which the undertakings remain enforceable.
483. Subitem 46(2) provides that the amendments made by Schedule 1 of the
Bill apply to a person to whom item 46 applies as if they had been a
former approved sponsor within the meaning of the new definition of
approved sponsor inserted by item 1, in relation to the class prescribed
in the regulations for standard business sponsors. That is, they will be
treated as a former approved sponsor within the meaning of that term
under the new law.
484. The effect of this provision is that a person to whom item 46 applies
is deemed to be a former "approved sponsor" within the meaning of the
definition of "approved sponsor" inserted by item 1.
485. The effect of falling within the new meaning of former "approved
sponsor" is that all provisions of the new sponsorship framework which
refer to an approved sponsor or former approved sponsor will apply to the
person to whom item 46 applies. This includes (amongst other things) the
new sponsorship obligations, civil penalty provisions, monitoring and
investigation powers, and information sharing provisions.
486. Subitem 46(3) provides that for a person to whom item 46 applies (see
subitem 46(1)) any undertakings made by the person under existing section
140H cease to have effect when Schedule 1 of the Bill commences, and the
person must satisfy any applicable sponsorship obligation prescribed by
the regulations under new section 140H (inserted by item 19).
487. The effect of this subitem is that, for the purposes of sponsorship
obligations, a person to whom item 46 applies is deemed to be a person
who was, but is no longer an "approved sponsor" within the meaning of the
definition of "approved sponsor" inserted by item 1. The person will be a
former "approved sponsor" in relation to the class of approved sponsor
prescribed for standard business sponsors.
488. The purpose of deeming the person to be a former "approved sponsor" is
to ensure that the sponsorship obligations prescribed in the regulations
can apply to a person to whom item 46 applies. Under new section 140H
(inserted by item 19), only an approved sponsor or former approved
sponsor can be required to satisfy a sponsorship obligation prescribed in
the regulations.
489. Subitem 46(4) provides that if a person to whom item 46 applies
breaches an undertaking prior to the undertaking ceasing to have effect
(by virtue of subitem 46(3)), then the person, can be sanctioned under
new section 140M (inserted by item 19) in the circumstances set out in
existing regulation 1.20HA, as if existing regulation 1.20HA were made
under new section 140L (also inserted by item 19).
490. The purpose of this subitem is to ensure that the ability to sanction
a person for breach of an undertaking that occurs prior to commencement
of the new sponsorship framework is not lost when the new sponsorship
framework commences.
491. It is necessary to be able to impose the sanction under the barring
power in new subsection 140M(2) rather than the barring powers under
existing section 140L because new section 140E (amended by items 13-15)
provides that a person is approved in relation to class of approved
sponsor, therefore the bar needs to be placed in relation to applications
to be approved as one or more classes of approved sponsor. Existing
section 140L does not allow for this, as it does not include the concept
of classes of approved sponsor.
492. The effect of this item in conjunction with item 45 is that all
persons who are bound by an undertaking in relation to a Subclass 457
(Business (Long Stay) visa holder (or former holder) at the time of
commencement, are required to satisfy sponsorship obligations, rather
than undertakings.
493. This is necessary for the following reasons:
. the nature of the sponsorship obligations which will be required to be
satisfied will not be significantly different from the existing
undertakings;
. the possible transitional period if these existing former approved
sponsors are not transitioned into the new sponsorship framework is
impractically long (up to six years) for the large caseload;
. the administrative complexity for sponsors, the Department of
Immigration and Citizenship, and other stakeholders of administering
two sponsorship frameworks makes the alternative unworkable for the
large caseload; and
. existing sponsors will have sufficient notice to terminate the
sponsorship of their Subclass 457 (Business (Long Stay)) visa holders
if they are not prepared to satisfy the new sponsorship obligations in
relation to those visa holders.
Item 47 Recovery of debts from standard business sponsors
494. This item preserves the ability of a person to commence proceedings
against a person who was a standard business sponsor (item 44 defines the
term "standard business sponsor") for a debt owed in relation to an
undertaking under the existing law.
495. More specifically, this item provides that an action to recover a debt
could have been brought under existing sections 140S and 140R (repealed
by item 27), but it has not yet been commenced, then on and from
commencement of the Bill, the action can be brought under new section
140S (inserted by item 27).
496. In this circumstance, new section 140S should be read as if the debt
were an amount prescribed by the regulations in relation to a sponsorship
obligation (prescribed under new section 140H inserted by item 19); and
if the person who owes the debt is a standard business sponsor or former
standard business sponsor (immediately before the day on which Schedule 1
of the Bill commences), as if the person is approved as a sponsor under
new section 140E and consequently is an approved sponsor within the
meaning of the definition of "approved sponsor" inserted by item 1.
497. If a proceeding has already been commenced under existing section 140R
or section 140S, section 8 of the Acts Interpretation Act 1901 has the
effect that those proceedings are not affected by the commencement of
provisions which repeal sections 140R and 140S.
Item 48 Continued effect of Division 3A of the Migration Act 1958 for
approved professional development sponsors
498. This item provides that notwithstanding amendments made to Division 3A
of Part 2 of the Migration Act, the existing Division 3A of Part 2
continues to apply to a person who is an "approved professional
development sponsor" (item 44 defines "approved professional development
sponsors) until the person ceases to be an approved professional
development sponsor.
499. The effect of this item is that a person who is an "approved
professional development sponsor" is not affected by the amendments made
to Division 3A of Part 2 of the Migration Act, as the existing law will
continue to apply to them.
500. The caseload of "approved professional development sponsors" is very
small and it will not be difficult to continue to administer the existing
sponsorship framework for this small group at the same time as
administering the new sponsorship framework.
Item 49 Pending applications
501. This item sets out how applications for approval as a sponsor (made
under existing section 140E) which have been made but have not been
finally determined on commencement of Schedule 1 of the Bill will be
decided.
502. Subsection 5(9) of the Migration Act provides that an application is
not finally determined if it is subject to merits review.
503. This item provides that an application for approval as a sponsor made
under existing section 140E, that has not yet been finally determined on
commencement of Schedule 1 of the Bill, is to be treated as if it had
been made on the day on which Schedule 1 of the Bill commences, and the
Minister (or delegate) must approve (or not approve) the person as a
sponsor in accordance with new section 140E (amended by items 13-15).
504. The purpose of this amendment is to ensure that the existing
sponsorship framework does not apply to existing applicants. This would
be undesirable in the case of sponsors for Subclass 457 (Business (Long
Stay)) visas because this would be inconsistent with items 45 and 46
which ensure that existing subclass 457 visa sponsors are transitioned
into the new sponsorship framework.
505. This would also be undesirable in the case of sponsors for Subclass
470 (Professional Development) visas because this would increase the
number of people who are in the existing sponsorship framework, and
prolong the transitional period in which people will be on the existing
sponsorship framework.
Item 50 Application
506. This item provides that new sections 140SA, 140SB and 140SC (inserted
by item 27) apply to a court proceeding that begins on or after the date
of commencement of Schedule 1 of the Bill.
507. New sections 140SA and 140SB relate to the interest that can be
awarded on an amount in a proceeding to recover a debt that is owed in
relation to a sponsorship obligation prescribed under new section 140H
(inserted by item 19). New section 140SC provides the circumstances in
which proceedings to recover a debt in relation to a sponsorship
obligation may be conducted as a small claims proceeding.
508. This clarifies that new sections 140SA, 140SB and 140SC do not apply
to proceedings which have already been commenced at the date of
commencement of Schedule 1 of the Bill.
Item 51 Transitional regulations
509. This item provides that the Governor-General may make regulations
prescribing matters of a transitional nature in relation to amendments or
repeals made by Part 1 of Schedule 1 to the Bill. Transitional provisions
include any saving or application provisions.
510. This item is necessary to ensure that transitional provisions can be
prescribed as necessary, for example, in relation to new visa subclasses
which are prescribed as subject to Division 3A of Part 2 of the Migration
Act.
Schedule 2 - Taxation Administration Act 1953
Part 1 - Amendment
Item 1 After section 3EC
511. This item amends the Taxation Administration Act 1953 ("TAA") to
insert new section 3ED.
512. New section 3ED sets out an exception to the "taxation secrecy
provisions" as defined by section 3E of the TAA. A "taxation secrecy
provision" is a provision of taxation law that prohibits the
communication or divulging of information.
513. Subsection 3ED(1) provides that despite any taxation secrecy provision
the Commissioner of Taxation may disclose information acquired under a
taxation law to a migration officer if the Commissioner is satisfied that
the information satisfies two requirements relating to who the
information may be about, and the purposes for which it must be relevant.
514. First, the information must relate to a holder or former holder of a
visa, or an approved sponsor or former approved sponsor of a person for a
visa, whose identity is disclosed to the Commissioner under section 140ZH
of the Migration Act 1958 (the Migration Act). New section 140ZH
(inserted by item 30) provides that the Minister may disclose personal
information of a prescribed kind to a prescribed Commonwealth government
agency, which is about a visa holder or former visa holder, or an
approved sponsor or former approved sponsor.
515. Second, the information must be relevant to:
. exercise of the Minister's powers under, or the administration of,
Division 3A of Part 2 of the Migration Act, or regulations made under
Division 3A of Part 2 of the Migration Act; or
. exercise of the Minister's powers under Part 8D of the Migration Act,
to the extent that Part 8D relates to contravention of a civil penalty
provision in Division 3A of Part 2 of the Migration Act.
516. New subsection 3ED(1) includes a number of defined terms:
. "taxation secrecy provision" is defined by new subsection 3ED(5)
(inserted by this item).
. "taxation law" is defined by new subsection 3ED(5) (inserted by this
item).
. "migration officer" is defined by new subsection 3ED(5) (inserted by
this item).
. "Approved sponsor" is defined by new subsection 3ED(5) (inserted by
this item).
. "civil penalty provision" is defined by the definition inserted into
section 5(1) of the Migration Act by item 2.
517. A note following subsection 3ED(1) explains that Division 3A of Part 2
of the Migration Act deals with sponsorship obligations, and that Part 8D
(inserted by item 42) allows proceedings to be brought for contraventions
of civil penalties provisions. A failure to satisfy a sponsorship
obligation prescribed under new section 140H (inserted by item 19) may be
a contravention of the civil penalty provision in section 140Q (inserted
by item 27).
518. The Department of Immigration and Citizenship (the department) will
use information received under new subsection 3ED(1) for two main
purpsoses:
. to monitor whether approved sponsors are complying with their
sponsorship obligations (prescribed under new section 140H inserted by
item 19); and
. to assess whether a person who has applied to be approved as a
sponsor should be approved as a sponsor.
519. For example, a sponsorship obligation prescribed under new section
140H (inserted by item 19) may provide that an approved sponsor must pay
at least a minimum salary to the visa holders who they sponsor. Under new
section 3ED(1) the Commissioner of Taxation may disclose information to
the department which will assist in determining whether this sponsorship
obligation has been complied with.
520. A further example is that a criteria for approval as a sponsor
prescribed under new section 140E (amended by items 13-15) may provide
that a person must be in compliance with taxation laws. Under new section
3ED(1) the Commissioner of Taxation may disclose information to the
department which advises whether a person has a history of non-compliance
with taxation laws.
521. To ensure that only the minimum necessary information is collected, it
is intended that the department will request specific information from
the Commissioner of Taxation in relation to a particular approved sponsor
or visa holder (or former approved sponsor or former visa holder). This
is rather than requesting all information which may be relevant to the
matters listed in new paragraph 3ED(1)(b).
522. For example, to determine whether an approved sponsor is complying
with a sponsorship obligation to pay at least a minimum salary to a visa
holder, the department would expect to initially disclose to the
Commissioner of Taxation the identity of the approved sponsor and visa
holder, and the amount that the approved sponsor or visa holder has
advised the department is being paid to the visa holder. The department
would request that the Commissioner of Taxation advise whether the amount
that the department has been advised has been paid is consistent with the
information held by the department. If the amount is not consistent then
the department will request further details.
523. New subsection 3ED(2) establishes a criminal offence. It provides that
a person must not disclose information to another person, or a court, or
make a record of information that has been disclosed to the person under
new subsection 3ED(1) or (3). In relation to information disclosed under
new subsection 3ED(1), new subsection 3ED(2) only relates to a person who
is or has been a migration officer ("migration officer" is defined by new
subsection 3ED(5)). In relation to information disclosed under new
subsection 3ED(3), new subsection 3ED(2) relates to any person.
524. If a person contravenes new subsection 3ED(2), it is a criminal
offence attracting a maximum penalty of 2 years imprisonment. This
maximum penalty is consistent with the maximum penalty for other similar
offences in the TAA which relate to disclosure or recording of taxation
information despite any taxation secrecy provision.
525. New subsection 3ED(3) sets out the circumstances in which the offence
provision in subsection 3ED(2) does not apply.
526. New paragraph 3ED(3)(a) provides that a migration officer does not
commit an offence under new subsection 3ED(2) if the information is
disclosed, or a record of the information is made for the purposes of, or
in connection with:
. the exercise of the Minister's powers under, or the administration of,
Division 3A of Part 2 of the Migration Act, or regulations made under
Division 3A of Part 2 of the Migration Act; or
. the exercise of the Minister's powers under Part 8D of the Migration
Act to the extent that Part 8D relates to civil penalty provision in
Division 3A of Part 2 of the Migration Act.
527. The purpose of this paragraph is to ensure that a migration officer
can disclose information received under subsection 3ED(1) for the same
purposes for which the information was received.
528. New paragraph 3ED(3)(b) provides that a person (regardless of whether
they are a migration officer or otherwise) does not commit an offence
under new subsection 3ED(2) if the information is disclosed, or a record
made, for the purposes of, or in connection with:
. the merits review and judicial review of a decision concerning the
exercise of the Minister's powers under Division 3A of Part 2 of the
Migration Act, or proceedings arising from the review;
. civil penalty proceedings under Part 8D of the Migration Act (inserted
by item 42) in relation to a contravention of a provision in Division 3A
of Part 2 of the Migration Act, or proceedings arising from the civil
penalty proceedings; or
. a penalty to be paid by a person, as an alternative to civil penalty
proceedings against the person, in accordance with regulations made under
new section 140R (inserted by item 27), or proceedings arising from the
issuing of the infringement notice.
529. The effect of this paragraph is that information provided to the
department by the Commissioner of Taxation under subsection 3ED(1) could
be disclosed by the department, or disclosed by another person who has
received the information from the department (or recorded by these
persons), only in connection with the things set out in new paragraph
3ED(3)(b).
530. New subsection 3ED(4) confirms that new section 3ED is in addition to,
and not in derogation of, any other provision of the TAA or of any other
law relating to the communication of information.
531. New subsection 3ED(5) sets out four definitions that apply for the
purposes of new section 3ED. First, it defines "approved sponsor" to have
the same meaning as in the Migration Act. Item 1 of Schedule 1 of the
Bill inserts a new definition of "approved sponsor".
532. Second, it defines "migration officer" to mean the Secretary or an
employee of the Department administered by the Minister who administers
the Migration Act. Currently, this is the Minister for Immigration and
Citizenship, and the Department of Immigration and Citizenship.
533. Third, it defines "taxation law" to have the meaning given by the
Income Tax Assessment Act 1997. This Act provides that taxation law
means a provision of an Act or regulations which are administered by the
Commissioner of Taxation.
534. Lastly, it defines "taxation secrecy provision" to have the meaning
given by section 3E of the TAA. Section 3E of the TAA provides that
"taxation secrecy provision" means a provision of a tax law that
prohibits the communication or divulging of information.
535. In relation to retention of tax information the department obtains
from the Commissioner of Taxation, the clear intention is that the
department should keep the information for the shortest amount of time
necessary to complete any of the purposes for which it was initially
disclosed.
Part 2-Application
Item 2 Application of amendment of the Taxation Administration
Act 1953
536. Subitem 2(1) makes it clear that under new section 3ED, the
Commissioner of Taxation may disclose information which was collected by
the Commissioner of Taxation either before or after the commencement of
proposed section 3ED.
537. Despite this item allowing for disclosure of information collected
prior to commencement, the information that the Commissioner of Taxation
can disclose to the department gathered prior to commencement will be
limited by the purposes for which the information can be disclosed. The
Commissioner can disclose information to the department which is relevant
to the new sponsorship framework set out in Schedule 1 of the Bill.
538. This sponsorship framework introduces sponsorship obligations, and the
intention is that the department use proposed new section 3ED to gather
information to determine whether sponsorship obligations are being
complied with, and for the purposes of the enforcement of the sponsorship
obligations. The sponsorship obligations will have to be complied with
from commencement, and not before, therefore the circumstances will be
limited in which information provided to the Commissioner prior to
commencement will be information relevant to a purpose for which the
department can record or use the information.
539. It is necessary to include the application provision allowing for
disclosure of information collected by the Commissioner of Taxation to
ensure that information such as names and addresses which may have been
collected prior to commencement of new section 3ED can be disclosed to
give meaning to other information, such as the amount of salary paid to a
person for a period.
540. Subitem 2(2) clarifies who is an approved sponsor, or former approved
sponsor for the purposes of disclosure of information under proposed
section 3ED. Paragraph 3ED(1)(a) provides that information about a visa
holder may be disclosed (if other requirements are met). Subitem 2(2)
clarifies that in addition to a person who is an "approved sponsor" or
former "approved sponsor" within the meaning of the Migration Act, the
following three groups of people are also "approved sponsors" or former
"approved sponsors" for the purposes of new section 3ED:
. a person who, before the day on which Schedule 1 of the Bill
commences, is a standard business sponsor (defined by subitem 2(3));
. a person who, before the day on which Schedule 1 of the Bill
commences, is an approved sponsor, other than an approved professional
development sponsor (defined by subitem 2(3));
. a person who, before the day on which Schedule 1 of the Bill
commences, is a former standard business sponsor, and a former
approved sponsor, and remained bound by an undertaking made under
existing section 140H of the Migration Act that was enforceable under
existing section 140Q of the Migration Act immediately before the day
on which Schedule 1 of the Bill commences.
541. A person is an approved sponsor, other than an approved professional
development sponsor, when they have ceased to be a standard business
sponsor, but remain an "approved sponsor" (within the meaning of section
140D) in relation to a Subclass 457 (Business (Long Stay)) visa holder.
542. Existing section 140D provides that a person is an "approved sponsor"
when they have consented in writing to sponsor a person for a visa;
consent has not been withdrawn; the Minister has approved the
sponsorship; and the person has not been cancelled as a sponsor.
543. Currently, a person ceases to be a standard business sponsor at the
earliest of reaching the maximum number of people that they are approved
to sponsor; and twenty-four months after the approval as a sponsor was
given. However, a person will remain an "approved sponsor" after ceasing
to be a standard business sponsor if they cease to be a standard business
sponsor through reaching their maximum number of people or twenty-four
months passing, but not if they cease to be a standard business sponsor
as a result of being cancelled.
544. A person is a former approved sponsor in relation to a visa holder (or
former visa holder) within the meaning of existing section 140D if the
person has withdrawn their consent to sponsor the visa holder; if the
person has been cancelled or barred in relation to the visa holder; or if
they no longer satisfy the terms on which they were approved as a
sponsor.
545. Existing section 140Q provides that an undertaking remains enforceable
against a person in circumstances prescribed in the regulations in
relation to a visa holder to which the undertaking related ceasing to
hold the relevant visa; or in relation to the person ceasing to be an
approved sponsor of the visa holder. Existing regulation 1.20DB sets out
the circumstances in which the undertakings remain enforceable.
546. Subitem 2(2) is necessary because the persons described in subitem
2(2) are not an "approved sponsor" or former "approved sponsor" within
the meaning of "approved sponsor" inserted by item 1 of Schedule 1 of the
Bill. However, the transitional provisions, item 45 and 46 of Schedule 1
of the Bill, provide that these three groups of people are approved
sponsors or former approved sponsors for the purposes of the amendments
made by Schedule 1 of the Bill. Therefore, these groups of people may be
required to satisfy sponsorship obligations, and it is important that
information in relation to these groups of people is available to
determine whether they have satisfied any applicable sponsorship
obligations.
547. New section 3ED will not authorise disclosure of information in
relation to a person who is an approved sponsor or former approved
sponsor within the meaning of existing section 140D, and who is not also
an approved sponsor or former approved sponsor under the new definition
of approved sponsor inserted by item 1 of Schedule 1 of the Bill, or
person to whom new section 3ED applies by virtue of subitem 2(2).
548. Subitem 2(3) sets out five definitions which apply for the purposes of
Part 2 of Schedule 2 of the Bill. First, it provides that "approved
professional development sponsor" has the same meaning as in regulation
1.03 of the Migration Regulations 1994 as in force immediately before
Schedule 2 of the Bill commences. Regulation 1.03 of the Migration
Regulations 1994 currently provides that "approved professional
development sponsor" means an organisation that has been approved as a
professional development sponsor under existing subsection 140E(1) of the
Migration Act and on the terms specified in regulation 1.20O.
549. Second, it provides that "approved sponsor" has the same meaning as in
the Migration Act 1958 as in force immediately before Schedule 2 of the
bill commences. Existing section 140D provides that a person is an
"approved sponsor" when they have consented in writing to sponsor a
person for a visa; consent has not been withdrawn; the Minister has
approved the sponsorship; and the person has not been cancelled as a
sponsor.
550. Third, it provides that "Migration Act 1958" means the Migration Act
1958 as in force immediately before Schedule 2 of the Bill commences.
551. Fourth, it provides that "standard business sponsor" has the same
meaning as in regulation 1.20B of the Migration Regulations 1994 as in
force immediately before Schedule 2 of the Bill commences.
552. Regulation 1.20B of the Migration Regulations 1994 currently
relevantly provides that a "standard business sponsor" means a person
whose application for approval as a standard business sponsor is made on
or after 1 July 2003, and approved in accordance with regulation 1.20D or
1.20DA. Regulation 1.20D currently sets out the criteria for approval as
a standard business sponsor for businesses lawfully operating in
Australia, and when a person ceases to be a standard business sponsor.
Regulation 1.20DA sets out the criteria for approval as a standard
business sponsor for businesses lawfully operating outside Australia, and
when a person ceases to be a standard business sponsor (the ceasing
provision is the same as under regulation 1.20D in relation to businesses
lawfully operating inside Australia).
553. Finally, it provides that "taxation law" has the meaning give by the
Income Tax Assessment Act 1997. This Act provides that taxation law
means a provision of an Act or regulations which are administered by the
Commissioner of Taxation.