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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (STRENGTHENING EMPLOYER COMPLIANCE)
BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural
Affairs, the Honourable Andrew Giles MP)
MIGRATION AMENDMENT (STRENGTHENING EMPLOYER COMPLIANCE)
BILL 2023
GENERAL OUTLINE
The Government is taking action to strengthen the legislative framework in the Migration
Act to improve employer compliance and protect temporary migrant workers from
exploitation. The proposed amendments in the Migration Amendment (Strengthening
Employer Compliance) Bill 2023 seek to ensure employers do not misuse migration rules
to exploit temporary migrant workers. In doing so, the amendments complement existing
protections for vulnerable temporary migrant workers under Australia's workplace laws,
ensuring temporary migrant workers in Australia are appropriately empowered to address
unlawful conduct in the workplace. The Bill also contains provisions to improve employer
compliance using both deterrence and remediation, and to protect temporary migrant
workers from employers that have been found to have engaged in serious, deliberate or
repeated non-compliance.
Through the amendments in this Bill, the Government is delivering on its response to two
key recommendations made in the Report of the Migrant Workers' Taskforce (March 2019):
Recommendation 19: It is recommended that the Government consider developing
legislation so that a person who knowingly unduly influences, pressures or coerces
a temporary migrant worker to breach a condition of their visa is guilty of an
offence.
Recommendation 20: It is recommended that the Government explore mechanisms
to exclude employers who have been convicted by a court of underpaying temporary
migrant workers from employing new temporary visa holders for a specific period.
The Bill amends the Migration Act to address these recommendations and strengthen the
Government's response to the exploitation of temporary migrant workers in Australia by:
• establishing new criminal offences and associated civil penalty provisions for a
person who unduly influences, unduly pressures, or coerces a non-citizen to:
o breach a work-related condition of their visa; or
o accept an exploitative work arrangement to meet a work-related condition of
their visa;
• introducing a new mechanism to allow the Minister for Immigration, Citizenship and
Multicultural Affairs, or an authorised delegate, to prohibit an employer from
employing any additional non-citizens for a specified period where:
o a court has found the employer has contravened:
▪ a work-related provision under the Migration Act;
▪ a provision under the Fair Work Act in relation to their treatment of a
temporary migrant worker, including failure to comply with a compliance
notice under subsection 716(5);
▪ offences under Divisions 270 (Slavery and slavery-like practices) or 271
(Trafficking in persons) of the Criminal Code; or
▪ an offence or civil penalty provision prescribed by the regulations; or
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o the employer has contravened a term of an enforceable undertaking accepted
under section 715, or has failed to comply with a compliance notice given under
section 716 of the Fair Work Act; or
o the employer is subject to a bar under the employer sponsorship framework;
• introducing a mechanism to publish the names and relevant details of employers
subjected to the proposed prohibition;
• introducing a new criminal offence (with a fault element of intention) and associated
civil penalty provision for employing an additional temporary migrant worker while
being subject to a prohibition, including ancillary liability under the Criminal Code
and for contravention of the civil penalty provision;
• increasing and aligning the maximum criminal and civil penalties prescribed in the
Migration Act in relation to current and proposed work-related and employer-
sponsored related breaches;
• triggering the enforceable undertaking provisions in the Regulatory Powers Act to
expand the compliance tools available for work-related offences and provisions
under the Migration Act;
• providing for enforceable compliance notices where an officer suspects a
contravention of a work or sponsorship related offence or related provision under
the Migration Act;
• repealing section 235 of the Migration Act, which makes it a criminal offence to
breach a work-related visa condition and insert an avoidance of doubt clause for
remaining work-related offence provisions to resolve unintended consequences
associated with breaches of work-related visa conditions that have inadvertently
contributed to the abrogation of employer responsibility to provide workplace rights
and entitlements; and
• introducing provisions that support amendments to the Migration Regulations to
prescribe protections available to exploited temporary migrant workers.
The amendments in this Bill send a strong message to unscrupulous employers and labour
hire intermediaries, and to the Australian community in general, that the exploitation of
temporary migrant workers is not acceptable. It can cause long-term harm to temporary
migrant workers. It is unfair and creates a competitive disadvantage for those employers
who seek to do the right thing. It has the potential to put downward pressure on wages and
conditions for Australian workers. It damages confidence in our migration system and
threatens social cohesion. It also damages Australia's reputation as a preferred destination
for prospective migrant workers.
This Bill also sends a clear signal to temporary migrant workers that the Government is
committed to combatting migrant worker exploitation, helping them feel more confident
and secure about working in those industries where high-profile cases of exploitation have
been reported.
Addressing the problem of temporary migrant worker exploitation requires concerted,
whole-of-government action. The amendments to the Migration Act contained in this Bill
(if enacted) complement other measures being progressed by the Government to prevent the
exploitation of temporary migrant workers, and they support the integrity of Australia's
migration system.
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CONSULTATION
The Department has undertaken consultation with several Commonwealth agencies in the
course of developing the Bill, including the Department of the Prime Minister and Cabinet,
the Department of Employment and Workplace Relations, the Attorney-General's
Department, the Fair Work Ombudsman and the Office of Impact Analysis.
The Department has also engaged in targeted consultations with industry, union and civil
society stakeholders to inform the proposed measures.
FINANCIAL IMPACT STATEMENT
The Government has announced $50 million over four year to support an uplift in
immigration compliance and enforcement and to support the implementation of the
measures included in this Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011, to the extent the Bill may limit some human rights, those limitations are
reasonable, necessary and proportionate.
A statement of compatibility with human rights has been prepared in accordance with Part 3
of the Human Rights (Parliamentary Scrutiny) Act 2011, and is at Attachment A.
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COMMON ABBREVIATIONS AND ACRONYMS
Abbreviation or acronym Meaning
AAT Administrative Appeals Tribunal
AAT Act Administrative Appeals Tribunal Act 1975
Acts Interpretation Act Acts Interpretation Act 1901
ABF Australian Border Force
The Attorney-General's Department's Guide to Framing
AGD Framing Guide Commonwealth Offences, Infringement Notices and Enforcement
Powers
APP (or APPs) The Australian Privacy Principles, under the Privacy Act 1988
Crimes Act Crimes Act 1914
Migration Amendment (Strengthening Employer Compliance) Bill
Bill
2023
Criminal Code Schedule 1 to the Criminal Code Act 1995
Department Department of Home Affairs
Fair Work Act Fair Work Act 2009
FWO Fair Work Ombudsman
Migration Act Migration Act 1958
Migration Regulations Migration Regulations 1994
Regulatory Powers Act Regulatory Powers (Standard Provisions) Act 2014
SES Senior Executive Service
Subdivision C Subdivision C of Division 12 of Part 2 of the Migration Act
Taskforce Migrant Workers' Taskforce
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MIGRATION AMENDMENT (STRENGTHENING EMPLOYER COMPLIANCE)
BILL 2023
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Section 1 provides that the short title of this Bill, once enacted, will be the Migration
Amendment (Strengthening Employer Compliance) Act 2023.
Clause 2 Commencement
2. This section sets out the times at which the various sections and provisions of the Act
commence.
3. Clauses 1 to 3 and anything not specifically covered below commences on the day
after the Bill receives Royal Assent.
4. Parts 1 to 5 and Division 1 of Part 6 of Schedule 1 to the Bill commence the earlier of
on Proclamation or the day after 12 months after Royal Assent.
5. Given the nature of the amendments made by this Bill, commencement by
Proclamation is intended to provide sufficient time for the Department and the ABF
to ensure the necessary systems, business processes and training are in place to support
implementation of the new requirements, together with any consequential
amendments of the Migration Regulations required to support these amendments.
6. This commencement provision also provides time for the Department and the ABF to
engage with stakeholders, and to ensure that employers and third parties to the
employment chain are aware of the new requirements, and have had the opportunity
to implement any necessary changes to their business processes and practices. If a day
is fixed by Proclamation, stakeholders will be provided with appropriate notice before
the amendments of the Migration Act commence.
7. The commencement of Division 2 of Part 6 of Schedule 1 to the Bill is contingent on
the commencement of Schedule 1 to the Fair Work Legislation Amendment
(Protecting Worker Entitlements) Act 2023. This Division commences the later of
immediately after the commencement of Division 1 of Part 6 of Schedule 1 to the Bill
and the commencement of Schedule 1 to Fair Work Legislation Amendment
(Protecting Worker Entitlements) Act 2023. If commencement of Schedule 1 to the
Fair Work Legislation Amendment (Protecting Worker Entitlements) Act 2023 does
not occur, then Division 1 of Part 6 of Schedule 1 to the Bill does not commence.
Clause 3 Schedules
8. This section provides that legislation specified in a Schedule to the Act is amended or
repealed as set out in the applicable items in the Schedule concerned. This section also
provides that any other item in a Schedule to the Act has effect according to its terms.
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SCHEDULE 1 Amendments
Part 1 New employer sanctions
Migration Act 1958
Item 1 Before paragraph 245AA(1)(a)
9. This item amends current subsection 245AA(1) of the Migration Act, inserting new
paragraphs 245AA(1)(aa) and 245AA(1)(ab) to refer to the new offences and civil
penalty provisions to be inserted by this Part.
10. Current section 245AA provides an explanatory overview of Subdivision C. The
amendments insert a summary of the new offences and civil penalty provisions for the
purpose of this explanatory overview section.
Item 2 After section 245AA
11. This item inserts new sections 245AAA, 245AAB and 245AAC into the Migration
Act.
12. New sections 245AAA, 245AAB and 245AAC establish new criminal offences and
related civil penalty provisions that apply where a person coerces, or exerts undue
influence or undue pressure on, a lawful non-citizen to accept or agree to a work
arrangement in the circumstances described in new paragraph 245AA(1)(aa) and an
unlawful non-citizen in the circumstances described in new paragraph 245AA(1)(ab).
New section 245AAA - Coercing etc. a lawful non-citizen to work in breach of work-
related conditions
13. New section 245AAA establishes a new offence in Subdivision C.
Physical elements of the offence
14. New subsection 245AAA(1) establishes the physical elements that constitute the new
offence. New subsection 245AAA(2) provides that a person commits an offence if the
person contravenes new subsection 245AAA(1). The term person in new
section 245AAA includes an individual, a body corporate and a body politic, pursuant
to current section 2C of the Acts Interpretations Act.
15. New paragraph 245AAA(1)(a) provides that the first element of the offence is that the
first person coerces, or exerts undue influence or undue pressure on, another person
(the worker) to accept or agree to an arrangement in relation to work.
16. New paragraph 245AAA(1)(b) provides that the second element of the offence is that
the worker is a lawful non-citizen.
17. New paragraph 245AAA(1)(c) provides that the third element of the offence is that
the work is done, or is to be done, by the worker in Australia, whether for the first
person or someone else.
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18. New paragraph 245AAA(1)(d) provides that the fourth element of the offence is that
the worker holds a visa that is subject to a work-related condition.
19. New paragraph 245AAA(1)(e) provides that the fifth element of the offence is either:
• the worker is in breach of the work-related condition solely because of doing the
work in accordance with the arrangement; or
• the worker would be in breach of the work-related condition if the worker were
to do the work in accordance with the arrangement.
20. The terms lawful non-citizen and work-related conditions are each given their
meaning as defined in current subsection 5(1) of the Migration Act. The term work is
also relevantly defined for the purposes of Subdivision C. Current subsection
245AG(1) provides that, for the purposes of Subdivision C, work means any work,
whether for reward or otherwise.
Coercion, undue influence or undue pressure
21. New section 245AAA does not define coercion, undue influence or undue pressure,
instead leaving the meaning of these terms to the general law. Under the general law,
undue influence or pressure is a lower threshold than coercion.
22. The purpose of criminalising coercion, undue influence and undue pressure in this
offence is to target conduct that may be characterised as excessive, unfair or
exploitative.
Offence
23. New subsection 245AAA(2) provides that a person commits an offence if the person
contravenes new subsection 245AAA(1). This subsection also clarifies that the
physical elements of the offence are set out in new subsection 245AAA(1).
Extensions of criminal responsibility
24. Current section 245AJ of the Migration Act is an offence provision concerning
executive officers of bodies corporate, which is relevant to new subsection
245AAA(2). An executive officer of a body corporate commits an offence if: the body
commits a work-related offence; the officer knew that, or was reckless or negligent as
to whether, the work-related offence would be committed; the officer was in a position
to influence the conduct of the body in relation to the work-related offence; and the
officer failed to take all reasonable steps to prevent the work-related offence being
committed (in light of the mandatory but not exclusive considerations in current
subsection 245AJ(3)). The term executive officer is defined in current
subsection 245AJ(5) for the purposes of that section. The term work-related offence,
which will be repealed from current section 487A and inserted as a new definition in
current subsection 5(1) by this Bill, includes new subsection 245AAA(2).
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25. Current subsections 245AO(1) and (2) of the Migration Act concern the treatment of
partnerships, and current subsections 245AP(1) and (2) concern the treatment of
unincorporated associations, which are also relevant to new subsection 245AAA(2).
An offence against Subdivision C that would otherwise be committed by a partnership
or unincorporated association is taken to have been committed by each partner in the
partnership, or each member of the associations committee of management, at the time
the offence is committed, who: did the relevant act; or aided, abetted, counselled or
procured the relevant act; or was in any way knowingly concerned in, or party to, the
relevant act (whether directly or indirectly or whether by any act of the partner or
member, as the case may be). The term committee of management is defined in
current subsection 5(1) to mean a body (however described) that governs, manages or
conducts the affairs of the association. New subsection 245AAA(2) will appear in
Subdivision C.
26. Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the
Migration Act. Current Part 2.4 of the Criminal Code sets out the rules extending
criminal responsibility for the offence. For example, the effect of current section 11.1
of the Criminal Code is that criminal liability would also extend to persons who
attempt to commit the offence in new subsection 245AAA(2) by attempting to
contravene new subsection 245AAA(1).
27. In the case of joint commission, section 11.2A of the Criminal Code does not create
an offence, but in effect extends primary criminal responsibility to all those who enter
into an agreement to commit an offence against new subsection 245AAA(2).
28. Current section 6 of the Crimes Act provides that it is an offence to be an accessory
after the fact, which is relevant to the offence in new subsection 245AAA(2).
Penalty
29. Current subsection 4AA(1) of the Crimes Act provides the meaning of penalty units
in relation to the offence in new subsection 245AAA(2).
30. Current subsection 4B(3) of the Crimes Act provides in effect that, where a body
corporate is convicted of an offence against new subsection 245AAA(2) of the
Migration Act, the court may, if the contrary intention does not appear and the court
thinks fit, impose a pecuniary penalty not exceeding an amount equal to five times the
amount of the maximum pecuniary penalty that could be imposed by the court on a
natural person convicted of the same offence.
31. The maximum penalty for contravening new subsection 245AAA(1) is imprisonment
for two years, or 360 penalty units, or both. The maximum penalty for an offence
against current subsection 245AJ(1) (concerning criminal liability of executive
officers of bodies corporate) in relation to new subsection 245AAA(2) is, in effect,
360 penalty units (being a pecuniary penalty not exceeding one-fifth of the maximum
pecuniary penalty that a court could impose on the body corporate for the offence).
32. The maximum penalty in Part 2.4 of the Criminal Code is, in the context of the offence
in new subsection 245AAA(2):
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• in the case of attempt (section 11.1), complicity and common purpose (section
11.2), commission by proxy (section 11.3), conspiracy (section 11.5)--the same
as the offence in new subsection 245AAA(2); and
• in the case of incitement (section 11.4)--imprisonment for two years, noting this
may be converted into a monetary fine under current subsection 4B(2) of the
Crimes Act.
33. The maximum penalty for an offence against current section 6 (Accessory after the
fact) of the Crimes Act is imprisonment for 2 years.
34. Combined with increases in enforcement capability, and measures to encourage
increased reporting of non-compliance, the potential for a criminal penalty will act as
a strong deterrent for current and future employers of non-citizens from engaging in
exploitative work practices with respect to migrant workers.
35. Migrant workers make a significant contribution to Australia's labour market and are
a vital part of Australia's economy and the community. They meet skills and labour
shortages, and contribute a diversity of ideas and experience. Migrant workers are also
known to be particularly vulnerable to underpayment and related exploitative work
practices, which can have negative long-term impacts on them and their families. The
exploitation of migrant workers, if unaddressed, can also put downward pressure on
the wages and conditions of Australian workers, which has the potential to cause
broader damage to economic and labour market outcomes, particularly in migrant
dominant sectors of the economy, and it can also cause damage to social cohesion.
The issue of migrant worker exploitation is corrosive, and concerted action is required
to ensure it does not become entrenched. Accordingly, it is appropriate that a person
who contravenes subsection 245AAA(1) should be liable to a substantial penalty in
relation to that contravention and the imposition of both criminal and civil penalties
is proportionate and reasonable to act as an effective deterrent against the conduct of
the kind contemplated by paragraph 425AAA(1)(a).
Fault elements
36. New subsection 245AAA(3) provides that, for the purposes of new
subsection 245AAA(2), the fault element for new paragraphs 245AAA(1)(b), (c), (d)
and (e) is knowledge or recklessness.
37. By expressly providing that the fault elements in relation to the physical elements in
new paragraphs 245AAA(1)(b), (c) (d) and (e) of the offence are knowledge or
recklessness, this operates to ensure that a person could not be wilfully ignorant of the
work-related condition of the visa of a non-citizen that they allow to work, and
proceed to act recklessly as to whether, as the result of an arrangement in relation to
work, the non-citizen might breach the work-related condition.
38. New subsection 245AAA(3) does not specify a fault element for new
paragraph 245AAA(1)(a). Accordingly, current subsection 5.6(1) of the Criminal
Code provides that intention applies as the default fault element in relation to new
paragraph 245AAA(1)(a).
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General defences under the Criminal Code
39. The general defences in Chapter 2 of the Criminal Code apply in relation to the offence
in new subsection 245AAA(2).
Civil penalty provision
40. New subsection 245AAA(4) provides that a person is liable to a civil penalty of
240 penalty units if the person contravenes new subsection 245AAA(1). The term
person in new section 245AAA includes an individual, a body corporate and a body
politic, pursuant to current section 2C of the Acts Interpretations Act.
Extensions of civil responsibility
41. Current section 245AK of the Migration Act is a civil penalty provision concerning
executive officers of bodies corporate, which is relevant to new subsection
245AAA(4). An executive officer of a body corporate contravenes current
subsection 245AK(1) if: the body contravenes a civil penalty provision in
Subdivision C; the officer knew that, or was reckless or negligent as to whether, the
contravention would occur; the officer was in a position to influence the conduct of
the body in relation to the contravention; and the officer failed to take all reasonable
steps to prevent the contravention (in light of the mandatory but not exclusive
considerations in current subsection 245AK(3)). The terms executive officer,
negligent and reckless are defined in current subsection 245AK(5) for the purposes
of that section. New subsection 245AAA(4) will appear in Subdivision C.
42. Current subsections 245AO(1) and (3) of the Migration Act concern the treatment of
partnerships, and current subsections 245AP(1) and (3) concern the treatment of
unincorporated associations, which are relevant to the civil liability provision in new
subsection 245AAA(4). A civil penalty provision in Subdivision C that would
otherwise be contravened by a partnership or an unincorporated association is taken
to have been contravened by each partner in the partnership, or each member of the
association's committee of management, at the time of the conduct constituting the
contravention, who: engaged in the conduct; or aided, abetted, counselled or procured
the conduct; or was in any way knowingly concerned in, or party to, the conduct
(whether directly or indirectly or whether by any act of the partner or member, as the
case may be). The term committee of management is defined in current
subsection 5(1) to mean a body (however described) that governs, manages or
conducts the affairs of the association. New subsection 245AAA(4) will appear in
Subdivision C.
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43. Current section 486ZD of the Migration Act concerns ancillary contravention of a
civil penalty provision, such as new subsection 245AAA(4). Current subsection
486ZD(1) provides that a person must not: attempt to contravene a civil penalty
provision; or aid, abet, counsel or procure a contravention of a civil penalty provision;
or induce (by threats, promises or otherwise) a contravention of a civil penalty
provision; or be in any way, directly or indirectly, knowingly concerned in, or party
to, a contravention of a civil penalty provision; or conspire with others to effect a
contravention of a civil penalty provision. Current subsection 486ZD(1) provides in
effect that a person who contravenes current subsection 486ZD(1) in relation to the
civil liability provision in new subsection 245AAA(4) is taken to have contravened
that provision.
State of mind
44. A note immediately below new subsection 245AAA(4) draws the reader's attention
to current section 486ZF of the Migration Act. Current section 486ZF relevantly
provides that it is not necessary to prove a person's state of mind in proceedings for a
civil penalty order against a person for a contravention of a civil penalty provision,
such as new subsection 245AAA(4). The relevant exceptions to this are proceedings
for a contravention of current subsection 245AK(2) (concerning civil liability of
executive officers of bodies corporate) or to the extent that the proceedings relate to a
contravention of subsection 486ZD(1) (concerning ancillary contravention of civil
penalty provisions).
45. The intent of this note is to clarify that, for the purpose of new subsection 245AAA(4),
it is sufficient to establish that a person contravened new subsection 245AAA(1). This
is distinguishable from the requirement to prove the fault elements of a criminal
offence, for the purpose of new subsection 245AAA(2).
46. This means that a person is liable to a civil penalty under new subsection 245AAA(4)
without knowing or being reckless as to whether the non-citizen is or would be in
breach of a work-related condition as a result of the arrangement.
47. Current subsection 486ZE of the Migration Act provides a mistake of fact defence to
a civil penalty order in relation to a contravention of a civil penalty provision, such as
new subsection 245AAA(4). A person who wishes to rely on a mistake of fact defence
in proceedings for a civil penalty order bears the evidential burden in relation to that
matter. Current subsection 5(1) provides that evidential burden, in relation to a
matter, means the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist.
Civil penalty
48. Current subsection 4AA(1) of the Crimes Act provides the meaning of penalty units
in relation to new subsection 245AAA(4).
49. Current paragraph 486R(5)(a) of the Migration Act provides that, if the liable person
is a body corporate, the pecuniary penalty for a contravention of a civil penalty
provision, such as new subsection 245AAA(4), must not be more than five times the
amount of the pecuniary penalty specified for the civil penalty provision.
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50. Current subsection 486R(6) of the Migration Act provides that in determining the
amount of the pecuniary penalty, the court must take into account all relevant matters,
including the matters listed in that subsection.
51. The maximum civil penalty for contravening new subsection 245AAA(1) is
240 penalty units. The maximum civil penalty for contravening current
subsection 245AK(1) of the Migration Act (concerning the civil liability of executive
officers of bodies corporate) in relation to new subsection 245AAA(1) is 90 penalty
units.
52. The AGD Framing Guide has been considered in relation to this provision, and the
civil penalty of 240 penalty units. It is appropriate that a person who contravenes new
subsection 245AAA(1) is liable to a civil penalty of this order. The civil penalty in
new subsection 245AAA(4) sits alongside the offence in new subsection 245AAA(2),
and reflects the serious nature and potential consequences of the conduct set out in
subsection 245AAA(1). This civil penalty also aligns with the increased penalties for
the current work-related provisions. It provides a strong and effective deterrent for
current and future employers of non-citizens from engaging in exploitative work
practices in relation to migrant workers and is a proportionate response to conduct of
the kind contemplated by paragraph 245AAA(1)(a). It is appropriate that a person who
contravenes subsection 245AAA(1) should be liable to a substantial penalty in relation
to that contravention.
53. Current section 486Z of the Migration Act provides that an eligible court may not
make a civil penalty order against a person for a contravention of a civil penalty
provision, such as new subsection 245AAA(4), if the person has been convicted of an
offence constituted by conduct that is the same, or substantially the same, as the
conduct constituting the contravention. However, current section 486ZB provides that
criminal proceedings may be commenced against a person for conduct that is the
same, or substantially the same, as conduct that would constitute a contravention of a
civil penalty provision regardless of whether a civil penalty order has been made
against the person in relation to the contravention.
54. Current section 486ZG of the Migration Act provides that if a person is ordered to pay
a pecuniary penalty for contravening a civil penalty provision, such as new
subsection 245AAA(4), in respect of particular conduct, the person is not liable to a
pecuniary penalty under some other provision of a law of the Commonwealth in
respect of that conduct.
Conduct rule provision
55. New subsection 245AAA(4) relies on current section 245AL of the Migration Act,
which applies if a civil penalty provision, such as new subsection 245AAA(4),
provides that a person contravening another provision of Subdivision C (the conduct
rule provision) is liable to a civil penalty. Current subsection 245AL(2) provides that
the person is taken to contravene the civil penalty provision if the person contravenes
the conduct rule provision.
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56. For example, the effect of current subsection 245AL(2) of the Migration Act is that if
a person contravenes new subsection 245AAA(1), they are taken to have contravened
new subsection 245AAA(4) (the civil penalty provision), and so are liable to a civil
penalty.
57. The interaction between criminal proceedings in relation to an offence and civil
proceedings for a civil penalty order are described in current Division 2 of Part 8D of
the Migration Act.
New section 245AAB - Coercing etc. an unlawful non-citizen to work--adverse effect on
presence in Australia
58. New section 245AAB establishes a new offence under Subdivision C.
Physical elements of the offence
59. New subsection 245AAB(1) establishes the physical elements that constitute the new
offence. New subsection 245AAB(2) provides that a person commits an offence if the
person contravenes new subsection 245AAB(1). The term person in new
section 245AAA includes am individual, a body corporate and a body politic, pursuant
to current section 2C of the Acts Interpretations Act.
60. New paragraph 245AAB(1)(a) provides that the first element of the offence is that a
person (the first person) coerces, or exerts undue influence or undue pressure on,
another person (the worker) to accept or agree to an arrangement in relation to work.
61. New paragraph 245AAB(1)(b) provides that the second element of the offence is that
the worker as referred to in paragraph 245AAB(1)(a) is an unlawful non-citizen.
62. New paragraph 245AAB(1)(c) provides that the third element of the offence is that
the arrangement provides for the work to be done by the worker in Australia, whether
for the first person or someone else.
63. New paragraph 245AAB(1)(d) provides that the fourth element of the offence is that
if the first person's conduct mentioned in paragraph 245AAB(1)(a) results in the
worker believing that, if they do not accept or agree to the arrangement, there will be
an adverse effect on their continued presence in Australia. In effect, this would be
their detention and removal from Australia.
64. The term unlawful non-citizen is defined in current subsection 5(1) of the Migration
Act. The term work is also relevantly defined for the purposes of Subdivision C.
Current subsection 245AG(1) provides that, for the purposes of Subdivision C, work
means any work, whether for reward or otherwise.
Coercion, undue influence or undue pressure
65. New section 245AAB does not define coercion, undue influence or undue pressure,
instead leaving the meaning of these terms to the general law. Under the general law,
undue influence or pressure is a lower threshold than coercion.
14
66. The purpose of criminalising coercion, undue influence and undue pressure in this
offence is to target conduct that may be characterised as excessive, unfair or
exploitative.
Offence
67. New subsection 245AAB(2) provides that a person commits an offence if the person
contravenes new subsection 245AAB(1). This subsection also clarifies that the
physical elements of the offence are set out in new subsection 245AAB(1).
Extensions of criminal responsibility
68. Current section 245AJ of the Migration Act is an offence provision concerning
executive officers of bodies corporate, which is relevant to new subsection
245AAB(2). An executive officer of a body corporate commits an offence if: the body
commits a work-related offence; the officer knew that, or was reckless or negligent as
to whether, the work-related offence would be committed; the officer was in a position
to influence the conduct of the body in relation to the work-related offence; and the
officer failed to take all reasonable steps to prevent the work-related offence being
committed (in light of the mandatory but not exclusive considerations in current
subsection 245AJ(3)). The term executive officer is defined in current
subsection 245AJ(5) for the purposes of that section. The term work-related offence,
which will be repealed from current section 487A and inserted as a new definition in
current subsection 5(1) by this Bill, includes new subsection 245AAB(2).
69. Current subsections 245AO(1) and (2) of the Migration Act concern the treatment of
partnerships, and current subsections 245AP(1) and (2) concern the treatment of
unincorporated associations, which are also relevant to new subsection 245AAB(2).
An offence against Subdivision C that would otherwise be committed by a partnership
or unincorporated association is taken to have been committed by each partner in the
partnership, or each member of the associations committee of management, at the time
the offence is committed, who: did the relevant act; or aided, abetted, counselled or
procured the relevant act; or was in any way knowingly concerned in, or party to, the
relevant act (whether directly or indirectly or whether by any act of the partner or
member, as the case may be). The term committee of management is defined in
current subsection 5(1) to mean a body (however described) that governs, manages or
conducts the affairs of the association. New subsection 245AAB(2) will appear in
Subdivision C.
70. Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the
Migration Act. Current Part 2.4 of the Criminal Code sets out the rules extending
criminal responsibility for the offence. For example, the effect of current section 11.1
of the Criminal Code is that criminal liability would also extend to persons who
attempt to commit the offence in new subsection 245AAB(2) by attempting to
contravene new subsection 245AAB(1).
71. In the case of joint commission, section 11.2A of the Criminal Code does not create
an offence, but in effect extends primary criminal responsibility to all those who enter
into an agreement to commit an offence against new subsection 245AAB(2).
15
72. Current section 6 of the Crimes Act provides that it is an offence to be an accessory
after the fact, which is relevant to the offence in new subsection 245AAB(2).
Penalty
73. Current subsection 4AA(1) of the Crimes Act provides the meaning of penalty units
in relation to the offence in new subsection 245AAB(2).
74. Current subsection 4B(3) of the Crimes Act provides in effect that, where a body
corporate is convicted of an offence against new subsection 245AAB(2) of the
Migration Act, the court may, if the contrary intention does not appear and the court
thinks fit, impose a pecuniary penalty not exceeding an amount equal to five times the
amount of the maximum pecuniary penalty that could be imposed by the court on a
natural person convicted of the same offence.
75. The maximum penalty for contravening new subsection 245AAB(1) is imprisonment
for two years, or 360 penalty units, or both. The maximum penalty for an offence
against current subsection 245AJ(1) (concerning criminal liability of executive
officers of bodies corporate) in relation to new subsection 245AAB(2) is, in effect,
360 penalty units (being a pecuniary penalty not exceeding one-fifth of the maximum
pecuniary penalty that a court could impose on the body corporate for the offence).
76. The maximum penalty in Part 2.4 of the Criminal Code is, in the context of the offence
in new subsection 245AAB(2):
• in the case of attempt (section 11.1), complicity and common purpose (section
11.2), commission by proxy (section 11.3), conspiracy (section 11.5)--the same
as the offence in new subsection 245AAA(2); and
• in the case of incitement (section 11.4)--imprisonment for two years, noting this
may be converted into a monetary fine under current subsection 4B(2) of the
Crimes Act.
77. The maximum penalty for an offence against current section 6 (Accessory after the
fact) of the Crimes Act is imprisonment for 2 years.
78. The potential for a criminal penalty will act as a strong deterrent for current and future
employers of non-citizens from engaging in exploitative work practices with respect
to migrant workers.
16
79. Migrant workers make a significant contribution to Australia's labour market and are
a vital part of Australia's economy and the community. They meet skills and labour
shortages, and contribute a diversity of ideas and experience. Migrant workers are
particularly vulnerable to underpayment and related exploitative work practices,
which can have negative long-term impacts. The exploitation of migrant workers, if
unaddressed, can also put downward pressure on the wages and conditions of
Australian workers, which has the potential to cause broader harm to economic and
labour market outcomes, particularly in migrant dominant sectors of the economy, and
cause damage to our social cohesion. The issue of migrant worker exploitation is
corrosive, and concerted action is required to ensure it does not become entrenched.
Accordingly, it is appropriate that a person who contravenes subsection 245AAB(1)
should be liable to a substantial penalty in relation to that contravention and the
imposition of both criminal and civil penalties is proportionate and reasonable to act
as an effective deterrent against the conduct of the kind contemplated by paragraph
245AAB(1)(a).
Fault elements
80. New subsection 245AAB(3) provides that, for the purposes of new subsection
245AAB(2), the fault element for paragraphs 245AAB(1)(b), (c) and (d) is knowledge
or recklessness.
81. By expressly providing that the fault elements in relation to the physical elements in
new paragraphs 245AAB(1)(b), (c) and (d) of the offence are knowledge or
recklessness, this operates to ensure that a person could not be wilfully ignorant of the
effect of their conduct, as prescribed at new subsection 245AAB(1)(a), on an unlawful
non-citizen and to proceed to act recklessly as to whether, as the result of an
arrangement in relation to work, the unlawful non-citizen entered into the arrangement
in fear of an adverse effect on their continued presence in Australia.
82. New subsection 245AAB(3) does not specify a fault element for new
paragraph 245AAB(1)(a). Accordingly, current subsection 5.6(1) of the Criminal
Code provides that intention applies as the default fault element in relation to new
paragraph 245AAB(1)(a).
General defences under the Criminal Code
83. The general defences in Chapter 2 of the Criminal Code apply in relation to the offence
in new subsection 245AAB(2).
Civil penalty provision
84. New subsection 245AAB(4) provides that a person is liable to a civil penalty of
240 penalty units if the person contravenes new subsection 245AAB(1). The term
person in new section 245AAB includes an individual, a body corporate and a body
politic, pursuant to current section 2C of the Acts Interpretations Act.
Extensions of civil responsibility
17
85. Current section 245AK of the Migration Act is a civil penalty provision concerning
executive officers of bodies corporate, which is relevant to new subsection
245AAB(4). An executive officer of a body corporate contravenes current
subsection 245AK(1) if: the body contravenes a civil penalty provision in
Subdivision C; the officer knew that, or was reckless or negligent as to whether, the
contravention would occur; the officer was in a position to influence the conduct of
the body in relation to the contravention; and the officer failed to take all reasonable
steps to prevent the contravention (in light of the mandatory but not exclusive
considerations in current subsection 245AK(3)). The terms executive officer,
negligent and reckless are defined in current subsection 245AK(5) for the purposes
of that section. New subsection 245AAB(4) will appear in Subdivision C.
86. Current subsections 245AO(1) and (3) of the Migration Act concern the treatment of
partnerships, and current subsections 245AP(1) and (3) concern the treatment of
unincorporated associations, which are relevant to the civil liability provision in new
subsection 245AAB(4). A civil penalty provision in Subdivision C that would
otherwise be contravened by a partnership or an unincorporated association is taken
to have been contravened by each partner in the partnership, or each member of the
association's committee of management, at the time of the conduct constituting the
contravention, who: engaged in the conduct; or aided, abetted, counselled or procured
the conduct; or was in any way knowingly concerned in, or party to, the conduct
(whether directly or indirectly or whether by any act of the partner or member, as the
case may be). The term committee of management is defined in current
subsection 5(1) to mean a body (however described) that governs, manages or
conducts the affairs of the association. New subsection 245AAB(4) will appear in
Subdivision C.
87. Current section 486ZD of the Migration Act concerns ancillary contravention of a
civil penalty provision, such as new subsection 245AAB(4). Current subsection
486ZD(1) provides that a person must not: attempt to contravene a civil penalty
provision; or aid, abet, counsel or procure a contravention of a civil penalty provision;
or induce (by threats, promises or otherwise) a contravention of a civil penalty
provision; or be in any way, directly or indirectly, knowingly concerned in, or party
to, a contravention of a civil penalty provision; or conspire with others to effect a
contravention of a civil penalty provision. Current subsection 486ZD(1) provides in
effect that a person who contravenes current subsection 486ZD(1) in relation to the
civil liability provision in new subsection 245AAB(4) is taken to have contravened
that provision.
State of mind
88. A note immediately below new subsection 245AAB(4) draws the reader's attention to
current section 486ZF of the Migration Act. Current section 486ZF relevantly
provides that it is not necessary to prove a person's state of mind in proceedings for a
civil penalty order against a person for a contravention of a civil penalty provision,
such as new subsection 245AAB(4). The relevant exceptions to this are proceedings
for a contravention of current subsection 245AK(2) (concerning civil liability of
executive officers of bodies corporate) or to the extent that the proceedings relate to a
contravention of subsection 486ZD(1) (concerning ancillary contravention of civil
penalty provisions).
18
89. The intent of this note is to clarify that, for the purpose of new subsection 245AAB(4),
it is sufficient to establish that a person contravened new subsection 245AAB(1). This
is distinguishable from the requirement to prove the fault elements of a criminal
offence, for the purpose of new subsection 245AAB(2).
90. This means that a person is liable to a civil penalty under new subsection 245AAB(4)
without knowing or being reckless as to whether the non-citizen is or would be in
breach of a work-related condition as a result of the arrangement.
91. Current subsection 486ZE of the Migration Act provides a mistake of fact defence to
a civil penalty order in relation to a contravention of a civil penalty provision, such as
new subsection 245AAB(4). A person who wishes to rely on a mistake of fact defence
in proceedings for a civil penalty order bears the evidential burden in relation to that
matter. Current subsection 5(1) provides that evidential burden, in relation to a
matter, means the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist.
Civil penalty
92. Current subsection 4AA(1) of the Crimes Act provides the meaning of penalty units
in relation to new subsection 245AAB(4).
93. Current paragraph 486R(5)(a) of the Migration Act provides that, if the liable person
is a body corporate, the pecuniary penalty for a contravention of a civil penalty
provision, such as new subsection 245AAB(4), must not be more than five times the
amount of the pecuniary penalty specified for the civil penalty provision.
94. Current subsection 486R(6) of the Migration Act provides that in determining the
amount of the pecuniary penalty, the court must take into account all relevant matters,
including the matters listed in that subsection.
95. The maximum civil penalty for contravening new subsection 245AAB(1) is
240 penalty units. The maximum civil penalty for contravening current
subsection 245AK(1) of the Migration Act (concerning the civil liability of executive
officers of bodies corporate) in relation to new subsection 245AAB(1) is 90 penalty
units.
96. The AGD Framing Guide has been considered in relation to this provision, and the
civil penalty of 240 penalty units. It is appropriate that a person who contravenes new
subsection 245AAB(1) is liable to a civil penalty of this order. The civil penalty in
new subsection 245AAB(4) sits alongside the offence in new subsection 245AAB(2),
and reflects the serious nature and potential consequences of the conduct set out in
subsection 245AAB(1). This civil penalty also aligns with the increased penalties for
the current work-related provisions. It provides a strong and effective deterrent for
current and future employers of non-citizens from engaging in exploitative work
practices in relation to migrant workers and is a proportionate response to conduct of
the kind contemplated by paragraph 245AAB(1)(a). It is appropriate that a person who
contravenes subsection 245AAB(1) should be liable to a substantial penalty in relation
to that contravention.
19
97. Current section 486Z of the Migration Act provides that an eligible court may not
make a civil penalty order against a person for a contravention of a civil penalty
provision, such as new subsection 245AAB(4), if the person has been convicted of an
offence constituted by conduct that is the same, or substantially the same, as the
conduct constituting the contravention. However, current section 486ZB provides that
criminal proceedings may be commenced against a person for conduct that is the
same, or substantially the same, as conduct that would constitute a contravention of a
civil penalty provision regardless of whether a civil penalty order has been made
against the person in relation to the contravention.
98. Current section 486ZG of the Migration Act provides that if a person is ordered to pay
a pecuniary penalty for contravening a civil penalty provision, such as new
subsection 245AAB(4), in respect of particular conduct, the person is not liable to a
pecuniary penalty under some other provision of a law of the Commonwealth in
respect of that conduct.
Conduct rule provision
99. New subsection 245AAB(4) relies on current section 245AL of the Migration Act,
which applies if a civil penalty provision, such as new subsection 245AAB(4),
provides that a person contravening another provision of Subdivision C (the conduct
rule provision) is liable to a civil penalty. Current subsection 245AL(2) provides that
the person is taken to contravene the civil penalty provision if the person contravenes
the conduct rule provision.
100. For example, the effect of current subsection 245AL(2) of the Migration Act is that if
a person contravenes new subsection 245AAB(1), they are taken to have contravened
new subsection 245AAB(4) (the civil penalty provision), and so are liable to a civil
penalty.
101. The interaction between criminal proceedings in relation to an offence and civil
proceedings for a civil penalty order are described in current Division 2 of Part 8D of
the Migration Act.
New section 245AAC - Coercing etc. a lawful non-citizen to work--adverse effect on
status etc.
102. New section 245AAC establishes a new offence in Subdivision C.
Physical elements of the offence
103. New subsection 245AAC(1) establishes the physical elements that constitute the new
offence. New subsection 245AAC(2) provides that a person commits an offence if the
person contravenes new subsection 245AAC(1). The term person in new
section 245AAC includes an individual, a body corporate and a body politic, pursuant
to current section 2C of the Acts Interpretations Act.
104. New paragraph 245AAC(1)(a) provides that the first element of the offence is that a
person (the first person) coerces, or exerts undue influence or undue pressure on,
another person (the worker) to accept or agree to an arrangement in relation to work.
20
105. New paragraph 245AAC(1)(b) provides that the second element of the offence is that
the worker referred to in paragraph 245AAC(1)(a) is a lawful non-citizen, other than
a permanent visa holder.
106. New paragraph 245AAC(1)(c) provides that the third element of the offence provides
for the work to be done by the worker in Australia, whether for the first person or
someone else.
107. New paragraph 245AAC(1)(d) provides that the fourth element is that if the first
person's conduct mentioned in paragraph 245AAC(1)(a) results in the worker
believing that, if they do not accept or agree to the arrangement, there will be, either:
• an adverse effect on the worker's status as a lawful non-citizen (such as visa
cancellation); or
• the worker will be unable to provide information or documents about work the
worker has done in Australia that the worker is required, under the Migration
Act or the regulations, to provide in connection with a visa held by the worker
or an application for a visa by the worker (for example, they would not be able
to meet the requirements to support a visa application).
108. The term lawful non-citizen is defined in current subsection 5(1) of the Migration
Act. The term work is also relevantly defined for the purposes of Subdivision C.
Current subsection 245AG(1) provides that, for the purposes of Subdivision C, work
means any work, whether for reward or otherwise.
Coercion, undue influence or undue pressure
109. New section 245AAC does not define coercion, undue influence or undue pressure,
instead leaving the meaning of these terms to the general law. Under the general law,
undue influence or pressure is a lower threshold than coercion.
110. The purpose of criminalising coercion, undue influence and undue pressure in this
offence is to target conduct that may be characterised as excessive, unfair or
exploitative.
Offence
111. New subsection 245AAC(2) provides that a person commits an offence if the person
contravenes new subsection 245AAC(1). This subsection also clarifies that the
physical elements of the offence are set out in new subsection 245AAC(1).
Extensions of criminal responsibility
21
112. Current section 245AJ of the Migration Act is an offence provision concerning
executive officers of bodies corporate, which is relevant to new subsection
245AAC(2). An executive officer of a body corporate commits an offence if: the body
commits a work-related offence; the officer knew that, or was reckless or negligent as
to whether, the work-related offence would be committed; the officer was in a position
to influence the conduct of the body in relation to the work-related offence; and the
officer failed to take all reasonable steps to prevent the work-related offence being
committed (in light of the mandatory but not exclusive considerations in current
subsection 245AJ(3)). The term executive officer is defined in current
subsection 245AJ(5) for the purposes of that section. The term work-related offence,
which will be repealed from current section 487A and inserted as a new definition in
current subsection 5(1) by this Bill, includes new subsection 245AAC(2).
113. Current subsections 245AO(1) and (2) of the Migration Act concern the treatment of
partnerships, and current subsections 245AP(1) and (2) concern the treatment of
unincorporated associations, which are also relevant to new subsection 245AAC(2).
An offence against Subdivision C that would otherwise be committed by a partnership
or unincorporated association is taken to have been committed by each partner in the
partnership, or each member of the associations committee of management, at the time
the offence is committed, who: did the relevant act; or aided, abetted, counselled or
procured the relevant act; or was in any way knowingly concerned in, or party to, the
relevant act (whether directly or indirectly or whether by any act of the partner or
member, as the case may be). The term committee of management is defined in
current subsection 5(1) to mean a body (however described) that governs, manages or
conducts the affairs of the association. New subsection 245AAC(2) will appear in
Subdivision C.
114. Chapter 2 of the Criminal Code (except Part 2.5) applies to all offences against the
Migration Act. Current Part 2.4 of the Criminal Code sets out the rules extending
criminal responsibility for the offence. For example, the effect of current section 11.1
of the Criminal Code is that criminal liability would also extend to persons who
attempt to commit the offence in new subsection 245AAC(2) by attempting to
contravene new subsection 245AAC(1).
115. In the case of joint commission, section 11.2A of the Criminal Code does not create
an offence, but in effect extends primary criminal responsibility to all those who enter
into an agreement to commit an offence against new subsection 245AAC(2).
116. Current section 6 of the Crimes Act provides that it is an offence to be an accessory
after the fact, which is relevant to the offence in new subsection 245AAC(2).
Penalty
117. Current subsection 4AA(1) of the Crimes Act provides the meaning of penalty units
in relation to the offence in new subsection 245AAC(2).
22
118. Current subsection 4B(3) of the Crimes Act provides in effect that, where a body
corporate is convicted of an offence against new subsection 245AAC(2) of the
Migration Act, the court may, if the contrary intention does not appear and the court
thinks fit, impose a pecuniary penalty not exceeding an amount equal to five times the
amount of the maximum pecuniary penalty that could be imposed by the court on a
natural person convicted of the same offence.
119. The maximum penalty for contravening new subsection 245AAC(1) is imprisonment
for two years, or 360 penalty units, or both. The maximum penalty for an offence
against current subsection 245AJ(1) (concerning criminal liability of executive
officers of bodies corporate) in relation to new subsection 245AAC(2) is, in effect,
360 penalty units (being a pecuniary penalty not exceeding one-fifth of the maximum
pecuniary penalty that a court could impose on the body corporate for the offence).
120. The maximum penalty in Part 2.4 of the Criminal Code is, in the context of the offence
in new subsection 245AAC(2):
• in the case of attempt (section 11.1), complicity and common purpose (section
11.2), commission by proxy (section 11.3), conspiracy (section 11.5)--the same
as the offence in new subsection 245AAC(2); and
• in the case of incitement (section 11.4)--imprisonment for two years, noting this
may be converted into a monetary fine under current subsection 4B(2) of the
Crimes Act.
121. The maximum penalty for an offence against current section 6 (Accessory after the
fact) of the Crimes Act is imprisonment for 2 years.
122. The potential for a criminal penalty will act as a strong deterrent for current and future
employers of non-citizens from engaging in exploitative work practices with respect
to migrant workers.
123. Migrant workers make a significant contribution to Australia's labour market and are
a vital part of Australia's economy and the community. They meet skills and labour
shortages, and contribute a diversity of ideas and experience. Migrant workers are
particularly vulnerable to underpayment and related exploitative work practices,
which can have negative impacts. The exploitation of migrant workers, if
unaddressed, can also put downward pressure on the wages and conditions of
Australian workers, which has the potential to cause broader harm to economic and
labour market outcomes, particularly in migrant dominant sectors of the economy, and
cause damage to our social cohesion. The issue of migrant worker exploitation is
corrosive, and concerted action is required to ensure it does not become entrenched.
Accordingly, it is appropriate that a person who contravenes subsection 245AAC(1)
should be liable to a substantial penalty in relation to that contravention and the
imposition of both criminal and civil penalties is proportionate and reasonable to act
as an effective deterrent against the conduct of the kind contemplated by paragraph
245AAC(1)(a).
23
Fault elements
124. New subsection 245AAC(3) provides that, for the purposes of new subsection
245AAC(2), the fault element for paragraphs 245AAC(1)(b), (c) and (d) is knowledge
or recklessness by the first person.
125. By expressly providing that the fault elements in relation to the physical elements in
new paragraphs 245AAC(1)(b), (c) and (d) of the offence are knowledge or
recklessness, this operates to ensure that a person could not be wilfully blind or
reckless as to the worker's immigration status or in relation to any obligations on the
worker to provide information or documentation about the work they have done in
Australia in order to satisfy requirements under Migration legislation in relation to
their current visa or an application for a future visa.
126. New subsection 245AAC(3) does not specify a fault element for new
paragraph 245AAC(1)(a). Accordingly, current subsection 5.6(1) of the Criminal
Code provides that intention applies as the default fault element in relation to new
paragraph 245AAC(1)(a).
General defences under the Criminal Code
127. The general defences in Chapter 2 of the Criminal Code apply in relation to the offence
in new subsection 245AAC(2).
Civil penalty provision
128. New subsection 245AAC(4) provides that a person is liable to a civil penalty of
240 penalty units if the person contravenes new subsection 245AAC(1). The term
person in new section 245AAC includes an individual, a body corporate and a body
politic, pursuant to current section 2C of the Acts Interpretations Act.
Extensions of civil responsibility
129. Current section 245AK of the Migration Act is a civil penalty provision concerning
executive officers of bodies corporate, which is relevant to new subsection
245AAC(4). An executive officer of a body corporate contravenes current
subsection 245AK(1) if: the body contravenes a civil penalty provision in
Subdivision C; the officer knew that, or was reckless or negligent as to whether, the
contravention would occur; the officer was in a position to influence the conduct of
the body in relation to the contravention; and the officer failed to take all reasonable
steps to prevent the contravention (in light of the mandatory but not exclusive
considerations in current subsection 245AK(3)). The terms executive officer,
negligent and reckless are defined in current subsection 245AK(5) for the purposes
of that section. New subsection 245AAC(4) will appear in Subdivision C.
24
130. Current subsections 245AO(1) and (3) of the Migration Act concern the treatment of
partnerships, and current subsections 245AP(1) and (3) concern the treatment of
unincorporated associations, which are relevant to the civil liability provision in new
subsection 245AAC(4). A civil penalty provision in Subdivision C that would
otherwise be contravened by a partnership or an unincorporated association is taken
to have been contravened by each partner in the partnership, or each member of the
association's committee of management, at the time of the conduct constituting the
contravention, who: engaged in the conduct; or aided, abetted, counselled or procured
the conduct; or was in any way knowingly concerned in, or party to, the conduct
(whether directly or indirectly or whether by any act of the partner or member, as the
case may be). The term committee of management is defined in current
subsection 5(1) to mean a body (however described) that governs, manages or
conducts the affairs of the association. New subsection 245AAC(4) will appear in
Subdivision C.
131. Current section 486ZD of the Migration Act concerns ancillary contravention of a
civil penalty provision, such as new subsection 245AAC(4). Current subsection
486ZD(1) provides that a person must not: attempt to contravene a civil penalty
provision; or aid, abet, counsel or procure a contravention of a civil penalty provision;
or induce (by threats, promises or otherwise) a contravention of a civil penalty
provision; or be in any way, directly or indirectly, knowingly concerned in, or party
to, a contravention of a civil penalty provision; or conspire with others to effect a
contravention of a civil penalty provision. Current subsection 486ZD(1) provides in
effect that a person who contravenes current subsection 486ZD(1) in relation to the
civil liability provision in new subsection 245AAC(4) is taken to have contravened
that provision.
State of mind
132. A note immediately below new subsection 245AAC(4) draws the reader's attention to
current section 486ZF of the Migration Act. Current section 486ZF relevantly
provides that it is not necessary to prove a person's state of mind in proceedings for a
civil penalty order against a person for a contravention of a civil penalty provision,
such as new subsection 245AAC(4). The relevant exceptions to this are proceedings
for a contravention of current subsection 245AK(2) (concerning civil liability of
executive officers of bodies corporate) or to the extent that the proceedings relate to a
contravention of subsection 486ZD(1) (concerning ancillary contravention of civil
penalty provisions).
133. The intent of this note is to clarify that, for the purpose of new subsection 245AAC(4),
it is sufficient to establish that a person contravened new subsection 245AAC(1). This
is distinguishable from the requirement to prove the fault elements of a criminal
offence, for the purpose of new subsection 245AAC(2).
134. This means that a person is liable to a civil penalty under new subsection 245AAC(4)
without knowing or being reckless as to whether the non-citizen is or would be in
breach of a work-related condition as a result of the arrangement.
25
135. Current subsection 486ZE of the Migration Act provides a mistake of fact defence to
a civil penalty order in relation to a contravention of a civil penalty provision, such as
new subsection 245AAC(4). A person who wishes to rely on a mistake of fact defence
in proceedings for a civil penalty order bears the evidential burden in relation to that
matter. Current subsection 5(1) provides that evidential burden, in relation to a
matter, means the burden of adducing or pointing to evidence that suggests a
reasonable possibility that the matter exists or does not exist.
Civil penalty
136. Current subsection 4AA(1) of the Crimes Act provides the meaning of penalty units
in relation to new subsection 245AAC(4).
137. Current paragraph 486R(5)(a) of the Migration Act provides that, if the liable person
is a body corporate, the pecuniary penalty for a contravention of a civil penalty
provision, such as new subsection 245AAC(4), must not be more than five times the
amount of the pecuniary penalty specified for the civil penalty provision.
138. Current subsection 486R(6) of the Migration Act provides that in determining the
amount of the pecuniary penalty, the court must take into account all relevant matters,
including the matters listed in that subsection.
139. The maximum civil penalty for contravening new subsection 245AAC(1) is
240 penalty units. The maximum civil penalty for contravening current
subsection 245AK(1) of the Migration Act (concerning the civil liability of executive
officers of bodies corporate) in relation to new subsection 245AAC(1) is 90 penalty
units.
140. The AGD Framing Guide has been considered in relation to this provision, and the
civil penalty of 240 penalty units. It is appropriate that a person who contravenes new
subsection 245AAC(1) is liable to a civil penalty of this order. The civil penalty in
new subsection 245AAC(4) sits alongside the offence in new subsection 245AAC(2),
and reflects the serious nature and potential consequences of the conduct set out in
subsection 245AAC(1). This civil penalty also aligns with the increased penalties for
the current work-related provisions. It provides a strong and effective deterrent for
current and future employers of non-citizens from engaging in exploitative work
practices in relation to migrant workers and is a proportionate response to conduct of
the kind contemplated by paragraph 245AAC(1)(a). It is appropriate that a person who
contravenes subsection 245AAC(1) should be liable to a substantial penalty in relation
to that contravention.
141. Current section 486Z of the Migration Act provides that an eligible court may not
make a civil penalty order against a person for a contravention of a civil penalty
provision, such as new subsection 245AAC(4), if the person has been convicted of an
offence constituted by conduct that is the same, or substantially the same, as the
conduct constituting the contravention. However, current section 486ZB provides that
criminal proceedings may be commenced against a person for conduct that is the
same, or substantially the same, as conduct that would constitute a contravention of a
civil penalty provision regardless of whether a civil penalty order has been made
against the person in relation to the contravention.
26
142. Current section 486ZG of the Migration Act provides that if a person is ordered to pay
a pecuniary penalty for contravening a civil penalty provision, such as new
subsection 245AAC(4), in respect of particular conduct, the person is not liable to a
pecuniary penalty under some other provision of a law of the Commonwealth in
respect of that conduct.
Conduct rule provision
143. New subsection 245AAC(4) relies on current section 245AL of the Migration Act,
which applies if a civil penalty provision, such as new subsection 245AAC(4),
provides that a person contravening another provision of Subdivision C (the conduct
rule provision) is liable to a civil penalty. Current subsection 245AL(2) provides that
the person is taken to contravene the civil penalty provision if the person contravenes
the conduct rule provision.
144. For example, the effect of current subsection 245AL(2) of the Migration Act is that if
a person contravenes new subsection 245AAC(1), they are taken to have contravened
new subsection 245AAC(4) (the civil penalty provision), and so are liable to a civil
penalty.
145. The interaction between criminal proceedings in relation to an offence and civil
proceedings for a civil penalty order are described in current Division 2 of Part 8D of
the Migration Act.
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Part 2 Prohibited employers
Division 1 Amendments
Migration Act 1958
Item 3 Subsection 5(1)
146. This item amends current subsection 5(1) of the Migration Act to insert new defined
terms.
147. The new defined term relevant workplace law has the meaning given by new
subsection 245APA(2).
148. The new defined term work-related offence means:
• an offence against Subdivision C or E of Division 12 of Part 2 of the Migration
Act; or
• an offence against section 6 of the Crimes Act that relates to an offence against
Subdivision C or E; or
• an ancillary offence (within the meaning of the Criminal Code) that is, or relates
to, an offence against Subdivision C or E.
149. The new defined term work-related provision means a civil penalty provision in
Subdivision C, E or F of Division 12 of Part 2 of the Migration Act.
150. Currently, the terms work-related offence and work-related provision are defined in
section 487A of the Migration Act for the purposes of Part 8E only. Part 8E deals with
investigation powers relating to certain offences and provisions, including work-
related offences and work-related provisions.
151. This amendment moves these definitions from current section 487A to current
subsection 5(1), ensuring the terms have a consistent meaning across the Migration
Act.
Item 4 Paragraph 140X(aa)
152. This item amends current paragraph 140X(aa), inserting a consequential reference to
new Subdivisions E and F of Division 12 of Part 2 of the Migration Act. This
amendment ensures that the powers of an inspector under Subdivision F of Division
3A of Part 2 of the Migration Act may be exercised for the purposes of investigating
whether a person who is or was an approved work sponsor has committed an offence,
or contravened a civil penalty provision, under new Subdivisions E and F of Division
12 of Part 2 of the Migration Act.
153. This consequential amendment is necessary because a person subject to a bar under
current paragraph 140M(1)(c) or (d) in Subdivision D of Division 3A may also be a
prohibited employer under new Subdivision E of Division 12 or subject to a
compliance notice under new Subdivision F of Division 12.
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Item 5 In the appropriate position in Division 12 of Part 2
154. This item inserts a new Subdivision E at the end of Division 12 of Part 2 of the
Migration Act. The amendments operate collectively to establish a new framework to
prohibit certain persons from allowing certain additional non-citizens to begin work
for a specified period with associated offence and civil penalty provisions for non-
compliance, and to provide reporting obligations with associated civil penalty
provisions for non-compliance.
Overview
155. New section 245AYA provides an overview and simplified outline of new
Subdivision E of Division 12 of Part 2 of the Migration Act.
156. New subsection 245AYA(1) outlines the circumstances in which certain persons
(called prohibited employers) may be prohibited by the Minister from allowing
additional non-citizens to begin work.
157. New subsection 245AYA(2) sets out the provisions that provide for when a person
can be subject to a migrant worker sanction, which enlivens the Minister's power to
make a prohibition declaration.
158. New subsection 245AYA(3) summarises the conduct that is prohibited when a
prohibition declaration is in effect.
159. New subsection 245AYA(4) summarises reporting obligations for a person who
ceases to be a prohibited employer.
Definitions
160. New section 245AYB inserts the following definitions for the purpose of new
Subdivision E:
• ABN has the same meaning as in the A New Tax System (Australian Business
Number) Act 1999;
• allows a non-citizen to begin work has the meaning given by new section
245AYC;
• Fair Work Ombudsman means the Fair Work Ombudsman provided for by
current section 681 of the Fair Work Act;
• FW order means an order under current Division 2 of Part 4-1 of the Fair Work
Act (which relate to orders for civil remedies);
• inspector has the same meaning as in the Fair Work Act;
• involved in has the same meaning as in the Fair Work Act.
• migrant worker sanction has the meaning given by new sections 245AYE to
245AYJ;
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• prohibited employer has the meaning given by new section 245AYD;
• relevant fair work provision is defined to include specified provisions of the Fair
Work Act and a civil remedy provision (within the meaning of the Fair Work
Act) prescribed by the regulations;
• remuneration-related matter in relation to an employee means any one of the
following: the underpayment of wages, or other monetary entitlements, of the
employee; the unreasonable deduction of amounts from amounts owed to the
employee; the placing of unreasonable requirements on the employee to spend
or pay amounts paid, or payable, to the employee; the method or frequency of
amounts payable to the employee in relation to the performance of work; and
• work means any work, whether for reward or otherwise.
161. The definition of work is intended to be a broad definition and may include, for
example, paid work, voluntary work or work done in return for accommodation, food
or any other benefit. A broad definition is also needed to capture situations where
persons may work in conditions of sexual servitude without receiving any
remuneration.
162. Work is also defined in this way to ensure consistency with current
subsection 245AG(1) of the Migration Act, which defines work for the purposes of
current Subdivision C of Division 12 of Part 2 of the Migration Act. This approach
also reflects the close relationship between current Subdivision C, which contains
work-related offences and work-related provisions, and new Subdivision E.
Meaning of allows a non-citizen to begin work
163. New section 245AYC sets out the exhaustive list of circumstances in which a person
allows a non-citizen to begin work at a particular time.
164. The circumstances are sufficiently broad to cover the traditional employer-employee
relationships, as well as alternative working arrangements, including where workers
are made available for ad hoc work by an intermediary in return for payment to that
intermediary, or arrangements in other industries in which non-citizens may be
vulnerable, such as in the construction, taxi, hospitality, cleaning and sex industries.
165. New paragraph 245AYC(1)(a) provides that a person allows a non-citizen to begin
work at a particular time if the person employs the non-citizen by entering into a
contract of service at that time. Consistent with the intention of the comparable
provision in current paragraph 245AG(2)(a) of the Migration Act, a person employs
another person under a contract of service if they are in an employer-employee
relationship.
166. New paragraph 245AYC(1)(b) provides that a person allows a non-citizen to begin
work at a particular time if the person engages the non-citizen by entering into a
contract for services at that time. Consistent with the intention of the comparable
provision in current paragraph 245AG(2)(b) of the Migration Act, a person engages
another person under a contract for services if the other person is an independent
contractor.
30
167. New paragraph 245AYC(1)(c) provides that a person allows a non-citizen to begin
work at a particular time if the person begins at that time to participate in an
arrangement, or any arrangement included in a series of arrangements, for the
performance of work by the non-citizen for: the first person; or another participant in
the arrangement or any such arrangement.
168. Consistent with the comparable provision in current paragraph 245AG(2)(ba) of the
Migration Act, this provision ensures that a person who participates in a chain of
events which results in a contravention of the work-related offences or work-related
provisions can be held liable for committing that work-related offence or contravening
that work-related provision.
169. New paragraph 245AYC(1)(d) provides that a person allows a non-citizen to begin
work at a particular time if the person enters into a contract at that time to bail or
license a chattel to the non-citizen or another person with the intention that the
non-citizen will use the chattel to perform a transportation service.
170. This paragraph is intentionally limited to transportation services. The amendments are
intended to only affect, for example, taxi companies and other chauffeured car hire
services. It is not intended to apply to car rental agencies.
171. An example of a situation of allowing a non-citizen to work is where an owner of a
taxi bails or licenses their taxi to a non-citizen driver for agreed periods, on agreed
terms and conditions. The owner and the driver are not in an employment relationship,
but the owner clearly intends the driver to work and payment for the use of the taxi
may be calculated as a proportion of the driver's fares.
172. New paragraph 245AYC(1)(d) also allows for the situation in which the owner of a
taxi bails or licenses a taxi to a person who is not the non-citizen driver. In these
circumstances, if the owner intends that the driver will drive the taxi, the owner will
allow the driver to begin work, despite the fact that the contractual relationship is
between the owner and another person.
173. New paragraph 245AYC(1)(e) provides that a person allows a non-citizen to begin
work at a particular time if the person enters into a contract at that time to lease or
license premises, or a space within premises, to the non-citizen or another person with
the intention that the non-citizen will use the premises or space to perform sexual
services (within the meaning of the Criminal Code).
174. This paragraph is only intended to capture persons who lease or license premises with
the intention that the other party provides sexual services from those premises.
Consistent with the intention of the comparable provision in current paragraph
245AG(2)(d) of the Migration Act, new paragraph 245AYC(1)(e) is designed to
capture brothel owners who claim to be merely renting rooms to sex workers instead
of providing employment.
175. New paragraph 245AYC(1)(f) creates a regulation-making power to allow for the
Governor-General to prescribe any new forms of work arrangements that may emerge
that do not fit within the intended scope of the meaning allows a non-citizen to begin
work in new subsection 245AYC(1).
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176. This provision mirrors current paragraph 245AG(2)(e) in Subdivision C. It provides
flexibility to prescribe other situations in which a person allows a non-citizen to begin
work to specifically cover these new employment or contractual relationships or
arrangements.
177. A note has also been inserted to clarify that differing speech and grammatical forms
of the term 'allows a non-citizen to begin work' have a corresponding meaning
pursuant to current section 18A of the Acts Interpretations Act.
178. New subsection 245AYC(2) provides that, for the purposes of new
paragraph 245AYC(1)(e), premises means an area of land or other place, whether or
not it is enclosed or built on, a building or other structure, or a vehicle or vessel. This
definition is intended to ensure that a person allows a non-citizen to begin work even
where the premises are other than a building. For example, a person that leases a
caravan with the intention that the lessee will use the caravan to provide sexual
services would be captured by paragraph 245AYC(1)(e).
Meaning of prohibited employer
179. New section 245AYD provides that a person is a prohibited employer if a declaration
in relation to the person has been made under subsection 245AYK(1), and the
declaration is in effect at the time.
Migrant worker sanctions that trigger the ability to declare a prohibited employer
180. Migrant worker sanctions enable the Minister to make a declaration that a person is a
prohibited employer.
181. There are a number of migrant worker sanctions which enliven the Minister's power
to make a prohibition declaration. These include sanctions, offences or civil penalties
in the Migration Act, the Criminal Code and the Fair Work Act. Regulation-making
powers enable the prescribing of further provisions.
Migrant worker sanction - bar placed on approved work sponsor and failure to comply
with compliance notice
182. New section 245AYE outlines the circumstances in which a person is subject to a
migrant worker sanction in relation to a bar being placed on an approved work
sponsor.
183. Subsection 245AYE(1) provides that a person is subject to a migrant worker sanction:
• if they are an approved work sponsor who is subject to a bar imposed under
current paragraph 140M(1)(c) or (d) of the Migration Act;
• and either:
o they have not requested the Minister to waive the bar in accordance with
any regulations made for the purposes of current section 140P; or
o if they have made such a request - the Minister has not waived the bar
under current subsection 140O(2).
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184. Subsection 245AYE(2) provides that a person is subject to a migrant worker sanction
if the person is or was an approved work sponsor and a civil penalty order is made
against them in relation to a contravention of new subsection 140RB(5).
Migrant worker sanction - conviction of work-related offence, offences, certain offences
against humanity and certain offences against the Fair Work Act
185. New section 245AYF outlines the circumstances in which a person is subject to a
migrant worker sanction as a result of being convicted of certain work-related
offences.
186. Subsection 245AYF(1) provides that a person is subject to a migrant worker sanction
if the person is convicted of a work-related offence. The definition of work-related
offence is being inserted into current subsection 5(1) of the Migration Act.
187. Subsection 245AYF(2) provides that a person is subject to a migrant worker sanction
if the Minister is satisfied that:
• the person has been convicted of an offence against Division 270 (other than
section 270.7B, or section 270.8 to the extent an offence against that section
relates to an offence against section 270.7B) or Division 271 (other than
Subdivision BA) of the Criminal Code;
• the person engaged in the relevant conduct in Australia; and
• the offence related, wholly or partly, to another person who, at the time the
relevant conduct was engaged in, was a non-citizen (other than the holder of a
permanent visa).
188. This provision excludes the crimes against humanity offences of forced marriage,
organ trafficking and overseas travel by certain registered offenders from triggering a
prohibition declaration, but includes offences such as slavery, servitude, forced
labour, human trafficking and debt bondage. The inclusions and exclusions support
coherence with the overarching focus of the Bill to address the exploitation of
temporary migrant workers in Australia.
189. Subsection 245AYF(3) provides that a person is subject to a migrant worker sanction
if the Minister is satisfied that:
• the person has been convicted of an offence against the Fair Work Act, or a
relevant workplace law, that is an offence of a kind prescribed by the regulations;
• the offence related, wholly or partly, to a prescribed person who, at the time the
relevant conduct was engaged in, was a non-citizen (other than the holder of a
permanent visa); and
• any circumstances prescribed by the regulations apply in relation to the offence.
33
190. New subsection 245AYF(3) provides for a regulation-making power to allow certain
offences against the Fair Work Act and workplace laws to be prescribed as triggers.
An offence can only be prescribed if it is against the Fair Work Act or relevant
workplace law. The prescribed offence can only be used as a trigger if the underlying
offence related, wholly or partly, to a prescribed person who was a non-citizen at the
time of the offence. Circumstances applicable to the contravention can also be
prescribed.
191. The design of this power seeks to ensure that only appropriate offences can be
prescribed, and once prescribed, can only enliven the Minister's power to impose a
migrant worker sanction in appropriate circumstances. Regulations made under this
provision will be subject to disallowance.
192. The purpose of this regulation-making power is to provide the Government with the
ability to respond to changes to workplace laws and to the dynamic and shifting nature
of migrant worker exploitation, ensuring that the scheme continues to remain fit for
purpose in the future. Focusing the scope and application of the power aligns with
scrutiny principles and best practice for provision of matters in delegated legislation,
and ensures that the regulation-making power is appropriately targeted to achieving
the scheme's overarching objectives as a measure under the legislative framework that
supports migration, namely the Migration Act.
Migrant worker sanction - contravention of certain civil penalty provisions in the
Migration Act and certain provisions of relevant workplace laws
193. New section 245AYG sets out the civil penalty provisions and certain provisions of
relevant workplace laws that are migrant worker sanctions. New subsection
245AYG(1) relates to certain civil penalty provisions in the Migration Act, while
subsection 245AYG(2) relates to certain provisions of relevant workplace laws.
194. New subsection 245AYG(1) provides that a person is subject to a migrant worker
sanction if a civil penalty order is made against the person in relation to the
contravention of:
• a work-related provision; or
• another civil penalty prescribed by the regulations, in certain circumstances.
195. For a civil penalty prescribed by the regulations, a person is only subject to a migrant
worker sanction if the contravention of the civil penalty that is prescribed relates,
wholly or partly, to an employee of the person and, at the time of the contravention,
the employee was a non-citizen (other than the holder of a permanent visa).
196. New subsection 245AYG(2) provides that a person is subject to a migrant worker
sanction if the Minister is satisfied that:
• a court has made an order under a relevant workplace law (that was not made in
criminal proceedings) that the person pay a pecuniary penalty for the
contravention of that law;
• the provision is prescribed by the regulations;
34
• the order was not made in criminal proceedings;
• the contravention related, wholly or partly, to a prescribed person who, at the
time of the contravention, was a non-citizen (other than the holder of a permanent
visa); and
• any circumstances prescribed by the regulations apply in relation to the
contravention.
197. Relevant workplace law has the meaning given by new subsection 245APA(2).
198. New subsections 245AYG(1) and (2) provide for regulation-making powers for
matters to be prescribed for the purposes of a migrant worker sanction. A provision
can only be prescribed if it is a certain type of provision. The prescribed provisions
can only be used if the underlying contravening conduct related, wholly or partly, to
a prescribed person who was a non-citizen at the time of the conduct.
199. The design of this power ensures that only appropriate matters can be prescribed, and
once prescribed, can only enliven the Minister's power to impose a migrant worker
sanction in appropriate circumstances. This provides governance over the power,
given what is prescribed will reside in subordinate legislation. Regulations made
under these provisions will be subject to disallowance.
200. The purpose of this regulation-making power is to provide the Government with the
ability to respond to changes to workplace laws and to the dynamic and shifting nature
of migrant worker exploitation, ensuring that the scheme continues to remain fit for
purpose in the future. Focusing the scope and application of the power aligns with
scrutiny principles and best practice for provision of matters in delegated legislation,
and ensures that the regulation-making power is appropriately targeted to achieving
the scheme's overarching objectives.
Migrant worker sanction - contravention of certain civil remedy provisions of the Fair
Work Act
201. New section 245AYH sets out the contraventions of civil remedy provisions in the
Fair Work Act that are migrant worker sanctions. These include contraventions of
relevant fair work provisions, specified provisions in the Fair Work Act,
contraventions relating to the advertisement of rates of pay, and contraventions
relating to compliance notices.
202. New subsection 245AYH(1) relates to contravention of relevant fair work provisions
and provides that a person is subject to a migrant worker sanction if the Minister is
satisfied that:
• a FW order has been made against the person in relation to a contravention for a
relevant fair work provision;
• the FW order was not made on the basis that the person was involved in the
contravention (that is, the person was not an accessory, rather was the main
contravener); and
35
• the contravention related, wholly or partly, to an employee, prospective
employee or former employee, who, at the time of the contravention, was a non-
citizen (other than the holder of a permanent visa).
203. New subsection 245AYH(2) concerns contraventions relating to remuneration matters
and provides that a person is subject to a migrant worker sanction if the Minister is
satisfied that:
• a FW order has been made against the person in relation to a contravention of
specified provisions of the Fair Work Act;
• the FW order was not made on the basis that the person was involved in the
contravention (that is, the person was not an accessory, rather was the main
contravener);
• the contravention related, wholly or partly, to an employee, who, at the time of
the contravention, was a non-citizen (other than the holder of a permanent visa);
and
• the contravention related, wholly or partly, to one or more remuneration-related
matters in relation to the employee.
204. The provisions of the Fair Work Act for which a contravention can result in a
FW order for the purposes of this subsection are listed in new paragraph
245AYH(2)(a). Remuneration-related matter is defined in new subsection 245AYB.
205. New subsection 245AYH(3) relates to contraventions relating to the advertisement of
rates of pay and provides that a person is subject to a migrant worker sanction if the
Minister is satisfied that:
• a FW order has been made against the person in relation to a contravention of
current subsection 536AA(1) or (2) of the Fair Work Act (which provide for
employer obligations in relation to advertising rates of pay), and the FW order
was not made on the basis that the person was involved in the contravention (that
is, the person was not an accessory, rather was the main contravener); or
• a FW order has been made against the person in relation to a contravention of
current subsection 716(5) (which relates to a failure to comply with a compliance
notice), the FW order was not made on the basis that the person was involved in
the contravention (that is, the person was not an accessory, rather was the main
contravener), and the underlying compliance notice related to a contravention of
current subsection 536AA(1) and (2).
206. New subsection 245AYH(4) relates to contraventions relating to compliance notices
and provides that a person is subject to a migrant worker sanction if the Minister is
satisfied that:
• a FW order has been made against the person in relation to a contravention of
current subsection 716(5) of the Fair Work Act (which relates to a failure to
comply with a compliance notice);
36
• the FW order was not made on the basis that the person was involved in the
contravention (that is, the person was not an accessory, rather was the main
contravener);
• the compliance notice related to a contravention of certain provisions of the Fair
Work Act;
• the contravention related, wholly or partly, to an employee who, at the time of
the contravention, was a non-citizen (other than the holder of a permanent visa);
and
• the contravention related, wholly or partly, to one or more remuneration-related
matters in relation to the employee, in the case of a contravention of a provision
or term in: a provision of the National Employment Standards; a term of a
modern award; a term of an enterprise agreement; or a term of a workplace
determination.
207. The provisions for which the underlying compliance notice can relate to for the
purposes of this subsection are listed in new paragraph 245AYH(4)(c).
208. New subsection 245AYH(5) provides that a person is subject to a migrant worker
sanction if the Minister is satisfied that:
• a FW order has been made against the person in relation to a contravention of a
civil remedy provision in Fair Work Act;
• the FW order was not made on the basis that the person was involved in the
contravention (that is, the person was not an accessory, rather was the main
contravener);
• the provision is prescribed by the regulations; and
• any circumstances prescribed by the regulations apply in relation to the
contravention.
209. New subsection 245AYH(6) provides that a person is subject to a migrant worker
sanction if the Minister is satisfied that:
• a FW order has been made against the person in relation to a contravention of a
civil remedy provision in Fair Work Act;
• the FW order was made on the basis that the person was involved in the
contravention (that is, the person was an accessory rather than the main
contravener);
• the provision is prescribed by the regulations; and
• any circumstances prescribed by the regulations apply in relation to the
contravention.
37
210. New subsections 245AYH(5) and (6) provide for a regulation-making power for
matters to be prescribed for the purposes of a migrant worker sanction.
211. The purpose of these regulation-making powers is to provide the Government with
the ability to respond to changes to workplace laws and to the dynamic and shifting
nature of migrant worker exploitation. While the power is limited in terms of
provisions that can be prescribed, being civil remedy provisions in the Fair Work Act,
it is expressed broadly in terms of the circumstances that can be prescribed. The
intention is to predominately cover circumstances that that relate to migrant workers,
however noting that other circumstances may arise and that can be appropriate to
cover to ensure the overarching scheme continues to operate as intended and remains
fit for purpose. Regulations made under these provisions will be subject to
disallowance.
Migrant worker sanction - contravention of term of enforceable undertaking
212. New subsection 245AYI(1) relates to contraventions of a term of an enforceable
undertaking in relation to a relevant fair work provision determined by a court, and
provides that a person is subject to a migrant worker sanction if the Minister is
satisfied that:
• the FWO has accepted an undertaking given by the person under current
section 715 of the Fair Work Act in relation to a contravention of a relevant fair
work provision; and
• a court has made one or more orders undercurrent subsection 715(7) of the Fair
Work Act in relation to the undertaking; and
• the contravention related, wholly or partly, to an employee, prospective
employee or former employee, who, at the time of the contravention, was a non-
citizen (other than the holder of a permanent visa).
213. New subsection 245AYI(2) relates to the Minister being satisfied of a contravention
of a term of an enforceable undertaking in relation to a fair work provision, and
provides that a person is subject to a migrant worker sanction if the Minister is
satisfied that:
• the FWO has accepted an undertaking given by the person under current section
715 of the Fair Work Act in relation to a contravention of a relevant fair work
provision; and
• the undertaking has not been withdrawn and an application for certain orders in
current subsection 715(7) of the Fair Work Act has not been made, or a court has
not made such orders; and
• the contravention related, wholly or partly, to an employee, prospective
employee or former employee, who, at the time of the contravention, was a non-
citizen (other than the holder of a permanent visa); and
• the person has contravened a term of the undertaking.
38
214. New subsection 245AYI(3) relates to contraventions of a term of an enforceable
undertaking in relation to certain Fair Work Act provisions determined by a court, and
provides that a person is subject to a migrant worker sanction if the Minister is
satisfied that:
• the FWO has accepted an undertaking given by the person under current
section 715 of the Fair Work Act in relation to a contravention of certain
provisions in the Fair Work Act; and
• a court has made one or more orders under current subsection 715(7) of the Fair
Work Act in relation to the undertaking; and
• the contravention related, wholly or partly, to an employee who, at the time of
the contravention, was a non-citizen (other than the holder of a permanent visa);
and
• the contravention related, wholly or partly, to one or more remuneration-related
matters in relation to the employee, in the case of a contravention of a provision
or term in: a provision of the National Employment Standards; a term of a
modern award; a term of an enterprise agreement; or a term of a workplace
determination.
215. New subsection 245AYI(4) relates to the Minister being satisfied of a contravention
of a term of an enforceable undertaking in relation to certain Fair Work Act provisions,
and provides that a person is subject to a migrant worker sanction if the Minister is
satisfied that:
• the FWO has accepted an undertaking given by the person under current section
715 of the Fair Work Act in relation to a contravention of certain provisions in
the Fair Work Act; and
• the undertaking has not been withdrawn and an application for certain orders in
current subsection 715(7) of the Fair Work Act has not been made, and a court
has not made such orders; and
• the contravention related, wholly or partly, to an employee who, at the time of
the contravention, was a non-citizen (other than the holder of a permanent visa);
and
• the contravention related, wholly or partly, to one or more remuneration-related
matters in relation to the employee, in the case of a contravention of a provision
or term in: a provision of the National Employment Standards; a term of a
modern award; a term of an enterprise agreement; or a term of a workplace
determination; and
• the person has contravened a term of the undertaking.
216. New subsection 245AYI(5) relates to contraventions of a term of an enforceable
undertaking determined by a court relating to advertised rates of pay, and provides
that a person is subject to a migrant worker sanction if the Minister is satisfied that:
39
• the FWO has accepted an undertaking given by the person under current
section 715 of the Fair Work Act in relation to a contravention of current
subsection 536AA(1) or (2) of the Fair Work Act (employer obligations in
relation to advertising rates of pay); and
• a court has made one or more orders under current subsection 715(7) of the Fair
Work Act in relation to the undertaking.
217. New subsection 245AYI(6) relates to the Minister being satisfied of a contravention
of a term of an enforceable undertaking relating to advertised rates of pay, and
provides that a person is subject to a migrant worker sanction if the Minister is
satisfied that
• the FWO has accepted an undertaking given by the person under current
section 715 of the Fair Work Act in relation to a contravention of current
subsection 536AA(1) or (2) of the Fair Work Act (employer obligations in
relation to advertising rates of pay); and
• the undertaking has not been withdrawn and an application for certain orders in
current subsection 715(7) of the Fair Work Act has not been made, or a court has
not made such orders; and
• the person has contravened a term of the undertaking.
218. New subsection 245AYI(7) provides regulation-making powers to ensure that
contravention of a term of an enforceable undertaking in relation to other provisions
can be prescribed and trigger the making of a prohibition declaration.
219. New subsection 245AYI(7) provides that a person is subject to a migrant worker
sanction if the Minister is satisfied that:
• the FWO has accepted an undertaking given by the person under current
section 715 of the Fair Work Act in relation to a contravention of a civil remedy
provision (within the meaning of the Fair Work Act); and
• the provision is prescribed by the regulations; and
• any circumstances prescribed by the regulations apply in relation to the
undertaking.
220. The purpose of these regulation-making powers is to provide the Government with
the ability to respond to changes to workplace laws and to the dynamic and shifting
nature of migrant worker exploitation. While the power is limited in terms of
provisions that can be prescribed, being enforceable undertakings accepted in relation
contraventions of civil remedy provisions in the Fair Work Act, it is expressed broadly
in terms of the circumstances and provisions that can be prescribed. The intention is
to predominately cover circumstances that that relate to migrant workers, however
noting that other circumstances may arise and that can be appropriate to cover to
ensure the overarching scheme continues to operate as intended and remains fit for
purpose. Regulations made under these provisions will be subject to disallowance.
40
Migrant worker sanction - failure to comply with certain compliance notices
221. New section 245AYJ sets out where failures to comply with certain compliance
notices issued in relation to certain matters are migrant worker sanctions. These
include failure to comply with compliance notices issues in relation to contravention
of remuneration-related matters and contraventions relating to the advertisement of
rates of pay.
222. New subsection 245AYJ(1) relates to failure to comply with compliance notices
issued in respect of particular remuneration-related matters and provides that a person
is subject to a migrant worker sanction if the Minister is satisfied that:
• an inspector has given the person a compliance notice under current subsection
716(2) of the Fair Work Act in relation to a contravention of: a provision of the
National Employment Standards; a term of a modern award; a term of an
enterprise agreement; a term of a workplace determination; a term of a national
minimum wage order; or a term of an equal remuneration order, and
• a court has confirmed the compliance notice after reviewing it under current
subsection 717(1) of the Fair Work Act, and
• the contravention related, wholly or partly, to an employee of the person, and at
the time of the contravention, the employee was a non-citizen (other than the
holder of a permanent visa); and
• in relation to a contravention of a provision of the National Employment
Standards, a term of a modern award, a term of an enterprise agreement or a term
of a workplace determination, the contravention related, wholly or partly, to one
or more remuneration-related matters in relation to the employee; and
• the person failed to comply with the compliance notice and does not have a
reasonable excuse for their failure to comply.
223. New subsection 245AYJ(2) provides that a person is subject to a migrant worker
sanction if the Minister is satisfied that:
• an inspector has given the person a compliance notice under current subsection
716(2) of the Fair Work Act in relation to a contravention of: a provision of the
National Employment Standards; a term of a modern award; a term of an
enterprise agreement; a term of a workplace determination; a term of a national
minimum wage order; or a term of an equal remuneration order; and
• the compliance notice has not been withdrawn, an application has not been made
under current subsection 717(1) of the Fair Work Act, and a court has not made
such orders; and
• the contravention related, wholly or partly, to an employee of the person, and at
the time of the contravention, the employee was a non-citizen (other than the
holder of a permanent visa); and
41
• in relation to a contravention of a provision of the National Employment
Standards, a term of a modern award, a term of an enterprise agreement or a term
of a workplace determination, the contravention related, wholly or partly, to one
or more remuneration-related matters in relation to the employee; and
• the person failed to comply with the compliance notice and does not have a
reasonable excuse for their failure to comply with the compliance notice.
224. New subsection 245AYJ(3) deals with compliance notices in relation to a
contravention relating to the advertisement of rates of pay and provides a person is
subject to a migrant worker sanction if the Minister is satisfied that:
• an inspector has given the person a compliance notice under current subsection
716(2) of the Fair Work Act in relation to a contravention of current subsection
536AA(1) or (2) of the Fair Work Act, and
• a court has confirmed the compliance notice after reviewing it under subsection
717(1) of the Fair Work Act, and
• the person failed to comply with the compliance notice and does not have a
reasonable excuse for their failure to comply.
225. New subsection 245AYJ(4) provides that a person is subject to a migrant worker
sanction if the Minister is satisfied that:
• an inspector has given the person a compliance notice under current
subsection 716(2) of the Fair Work Act in relation to a contravention of current
subsection 536AA(1) or (2) of the Fair Work Act, and
• the compliance notice has not been withdrawn, an application has not been made
under current subsection 717(1) of the Fair Work Act, and a court has not made
such orders, and
• the person failed to comply with the compliance notice and does not have a
reasonable excuse for their failure to comply.
Declaration of person as a prohibited employer
226. New section 245AYK establishes the power for the Minister to declare a person to be
a prohibited employer. This section also provides for the process to be followed before
making a declaration; what the Minister must consider in making a decision to declare
a person to be a prohibited employer; notification requirements; the duration of the
declaration; as well as providing for review of the decision by the AAT.
227. The amendments inserted by this Part of the Bill, particularly the power to declare a
person to be a prohibited employer, provide for a scheme that is protective of an
important public interest and are not punitive in nature. These provisions
fundamentally seek to protect migrant works from exploitation, by preventing
employers who have already been found to contravene various fair work and work-
related provisions from engaging future migrant workers, and assisting future migrant
workers to avoid exploitation by making public a list of prohibited employees.
42
228. New subsection 245AYK(1) provides that the Minister may in writing declare a
person to be a prohibited employer if the person subject to a migrant worker sanction
and it has not yet been five years since the day the person became subject to the
migrant worker sanction.
229. A note has also been inserted that clarifies a person may be subject to a migrant worker
sanction under more than one provision or subject to a migrant worker sanction
multiple times under a single provision, and that there is a separate five year period
each time.
230. New subsection 245AYK(2) provides that a declaration made under new subsection
245AYK(1) is not a legislative instrument.
231. A note below this subsection provides that a declaration made under new subsection
245AYK(1) can be varied or revoked in accordance with current subsection 33(3) of
the Acts Interpretation Act.
232. New subsection 245AYK(3) sets out the process that must be followed before the
Minister can declare a person to be a prohibited employer. This subsection provides
that the Minister must give the person a written notice stating that the Minister
proposes to make such a declaration, and the reasons for it. The written notice must
also invite the person to make a written submission to the Minister, setting out reasons
why the Minister should not make the declaration.
233. New subsection 245AYK(4) establishes the period within which the person is to make
a written submission to the Minister, when invited to do so under new paragraph
245AYK(3)(b). Unless a longer period is stated in the notice given under new
subsection 245AYK(4)(b), the period ends 28 days after the day the person is given
notice by the Minister.
234. New subsection 245AYK(5) sets out what the Minister must consider in making a
decision whether to declare a person to be a prohibited employer. This includes:
• any written submission made by the person, so long as it is received by the
Minister within the required period; and
• any criteria prescribed by the regulations.
235. The Minister must consider criteria for the purposes of new paragraph 245AYK(5)(b)
in making a decision to declare a person to be a prohibited employer. Without limiting
what might be prescribed, such criteria might relate to matters such as:
• the seriousness of the offence or contravention leading to the person being the
subject of the migrant worker sanction (including consideration of any
aggravating factors), recognising the underlying intent is to protect additional
temporary migrant workers from employers found to have engaged in serious,
deliberate of repeated non-compliance in their treatment of temporary migrant
workers; or
43
• the potential impact on the viability of the person's business if declared a
prohibited employer, particularly in relation to the person's capacity to attract
and recruit new employees while subject to the prohibition.
236. By providing for the criteria to be prescribed by the Regulations, this ensures
appropriate ability to review and adjust the criteria as needed, while also ensuring that
there is appropriate parliamentary oversight. The Regulations would be subject to
disallowance.
237. New subsection 245AYK(6) provides that if the Minister declares a person to be a
prohibited employer, the Minister must, as soon as reasonably practicable, give the
person a copy of the declaration.
238. New subsection 245AYK(7) provides that the declaration comes into effect at the start
of whichever of the following days is later:
• the day after the day the declaration is given to the prohibited employer; or
• the day stated in the declaration as the day the declaration comes into effect.
239. New subsection 245AYK(8) provides that the declaration has effect during the period
specified in the declaration (unless revoked sooner).
240. This provision does not include a limit on the period for which a declaration has effect.
This ensures that the Minister has the discretion to specify a period that the Minister
considers proportionate to the nature and significance of the migrant worker sanction
that gives rise to consideration of whether to declare the person to be a prohibited
employer. Matters raised by the person in their written submission to the Minister
under new subsection 245AYK(3) may also be taken into account in determining the
declaration's period of effect.
241. New subsection 245AYK(9) provides that applications may be made to the AAT for
review of a decision under subsection 245AYK(1) to declare a person to be a
prohibited employer.
242. A note immediately below new subsection 245AYK(9) provides that current section
27A of the Administrative Appeals Act 1975 (the AAT Act) requires that people whose
interests are affected by the Minister's decision be given notice of their rights to seek
review of the decision. Where a person is declared to be a prohibited employer, that
person will be given a copy of the declaration as soon as reasonably practicable, as
required under new subsection 245AYK(6). Having regard to current sections 27A
and 28 of the AAT Act, the person will also be given notice of their rights to seek
review of the decision, and a statement of reasons for that decision.
Prohibition on allowing additional non-citizens to begin work
243. New section 245AYL establishes the prohibition on allowing additional non-citizens
to begin work.
44
244. New subsection 245AYL(1) provides that a person contravenes this subsection if that
person is a prohibited employer, and that person either allows a non-citizen to begin
work or has a material role in a decision made by a body corporate to allow a non-
citizen to begin work, and the non-citizen is either an unlawful non-citizen, or a lawful
non-citizen (who is not the holder of a permanent visa).
245. The purpose of new subsection 245AYL(1) is to prevent a person who is a prohibited
employer from allowing additional non-citizens to begin work. This is not intended to
prevent a non-citizen who has an established work relationship with the person -
before that person is declared to be a prohibited employer - from continuing to work
for the employer.
246. New subsection 245AYL(2) provides that a person commits an offence if they
contravene subsection 245AYL(1). The maximum penalty for an offence is 2 years
imprisonment or 360 penalty units, or both.
247. New subsection 245AYL(3) provides that the fault element for subparagraph
245AYL(1)(b)(ii) is intention by the first person.
248. Under the Criminal Code, where legislation does not specify any fault element for a
criminal offence, the default fault elements will be imported. As the physical element
in subparagraph 245AYL(1)(b)(i) is conduct, the default fault element for this
physical element would be intention. However, as the physical element in
subparagraph 245AYL(1)(b)(ii) is a circumstance or result, the default fault element
for this physical element would be recklessness.
249. To align the constitution of the offence, and to ensure it achieves the policy intent of
being an offence of intention, new subsection 245AYL(3) provides that the fault
element for subparagraph 245AYL(1)(b)(ii) is intention.
250. New subsection 245AYL(4) provides that a person who contravenes subsection
245AYH(1) is liable to a civil penalty of 240 penalty units. A note under new
subsection 245AYJ(4) draws the reader's attention to current section 486ZF of the
Migration Act. Current section 486ZF provides that it is not necessary to prove a
person's state of mind in proceedings for a civil penalty order.
251. The AGD Framing Guide has been considered in relation to this provision, and
particularly in relation to the penalty. While subsection 245AYL(4) is a civil penalty
provision, it is appropriate that a person who contravenes subsection 245AYL(1) is
liable to a penalty of 240 penalty units. This penalty aligns with the increased penalties
for the current work-related provisions. It also acknowledges the serious
circumstances that lead to a person being declared a prohibited employer. It is
appropriate that a person who is already the subject of a migrant worker sanction,
who then also goes on to contravene subsection 245AYL(1) as a prohibited employer,
should be liable to a substantial penalty in relation to that contravention.
Publishing information about prohibited employers
252. New section 245AYM establishes a requirement for the Minister to publish certain
information about a prohibited employer on the Department's website.
45
253. New subsection 245AYM(1) provides that if the Minister has declared a person to be
a prohibited employer, the Minister must cause the following information to be
published on the Department's website:
• the name of the person;
• the ABN of the person (if they have an ABN);
• any other information that the Minister considers is reasonably necessary to
identify the person;
• the reasons as to why the person has been declared a prohibited employer; and
• the period during which the declaration has effect.
254. New subsection 245AYM(2) provides for an exception to the requirement in new
subsection 245AYK(1), in the prescribed circumstances.
255. New subsection 245AYM(3) prohibits personal information about any individual
other than the prohibited employer from being published under subsection
245AYM(1).
256. New subsection 245AYM(4) provides that no civil liability arises from action taken
by a person in good faith in publishing information under new subsection
245AYM(1). This ensures the integrity of the scheme by allowing persons to be
confident that publishing information in good faith will not attract any civil liability.
257. New subsection 245AYM(5) makes clear that the Minister is not required to arrange
for the removal, from the Department's website, of information about a person
published under new subsection 245AYM(1) when the person stops being a prohibited
employer. Relevantly, although the Minister is not required to arrange for the removal
of this information, the intention is that such information would be removed from the
Department's website as soon as reasonably practicable after the person stops being a
prohibited employer.
258. APPs 10 and 13 outline an APP entity's responsibility to take reasonable steps to
ensure information is accurate, up-to-date, complete and relevant, and to take action
to correct any information that has become inaccurate or out of date. There are no
authorised by law exemptions to these APPs, but rather compliance is required when
reasonable in the circumstances.
Former prohibited employers - additional reporting obligations
259. New section 245AYN establishes reporting obligations on a person who was
previously a prohibited employer.
260. New subsection 245AYN(1) provides new section 245AYN applies if a person was a
prohibited employer for a particular period and the person allows a lawful non-citizen
who is not a permanent visa holder to begin work on a particular day during the 12-
month period starting on the day after the prohibition period ends.
46
261. New subsection 245AYN(2) prescribes the matters which a prohibited employer must,
before the end of the 28-day period, provide written notice of. They are:
• the name of the non-citizen;
• the kind of visa held by the non-citizen;
• the work to be done by the non-citizen;
• if the non-citizen holds a visa that is subject to one or more work-related
conditions: each of those conditions; and a statement that the non-citizen will not
be in breach of those conditions solely because of doing that work; and
• any other prescribed information.
262. The purpose of new subsection 245AYN(2) is to establish that former prohibited
employers are subject to additional reporting requirements for the duration of the 12-
month period after they have ceased being a prohibited employer. The effect of this
provision is that the former prohibited employer must provide the Department with
certain information in relation to any lawful non-citizens that they employ within the
12-month period. The aim is to ensure the (previously) prohibited employer is mindful
of their obligations to uphold visa program integrity under the Migration Act. This
requirement does not apply in relation to non-citizens who hold a permanent visa.
263. New subsection 245AYN(3) provides that a person who contravenes subsection
245AYN(2) is liable for a civil penalty of 48 penalty units. Current section 486ZF of
the Migration Act provides that a person's state of mind does not need to be proven
in proceedings for a civil penalty order. The note under new paragraph 245AYN(4)
draws the reader's attention to this provision.
264. The penalty of 48 penalty units is appropriate in this case given the civil penalty
provision relates to reporting obligations. The penalty amount aligns with the
seriousness of other penalties for civil penalty provisions being inserted by these
reforms.
265. New subsection 245AYN(4) provides that for the purposes of
paragraph 245AYN(2)(e), personal information may be prescribed only to the extent
that it is reasonably necessary for monitoring compliance with this Division.
266. The intention of this provision is to limit the scope of personal information that may
be prescribed in the Regulations by reference to its purpose, while providing
appropriate flexibility in relation to the information (including personal information)
that may be identified as necessary, to be prescribed by regulations made for the
purposes of new paragraph 245AYN(2)(e). This may cover both personal information
of a non-citizen and personal information of an individual who is a prohibited
employer - for example, where personal information may be required to identify if
that person is a prohibited employer, having a material role in the decision of a body
corporate to employ a non-citizen.
47
Contravening civil penalty provisions
267. New section 245AYO describes the effect of contravening civil penalty provisions.
268. New subsection 245AYO(1) provides it applies if a civil penalty provision in this
Subdivision provides that a person contravening another provision of this Subdivision
(the conduct rule provision) is liable to a civil penalty.
269. New subsection 245AYO(2) provides that for the purposes of this Act, the person is
taken to contravene the conduct rule provision.
Item 6 Section 487A
270. This item amends current section 487A of the Migration Act by repealing the
definitions of work-related offence and work-related provision. This is a
consequential amendment to import the definitions into current subsection 5(1) of the
Migration Act.
271. The purpose of this amendment is to provide that the defined terms work-related
offence and work-related provision are terms of general application in the Migration
Act, defined in subsection 5(1). This ensures that where these terms are relied on,
whether in Subdivision C of Division 12 of Part 2 of the Migration Act, or later in
Part 8E, they have one, consistent meaning.
Division 2 Application provisions
Item 7 Application--bar placed on approved work sponsor etc.
272. Subitem (1) of this item provides that new subsection 245AYE(1), as inserted by this
Part, applies in relation to a bar placed on a person under current
paragraph 140M(1)(c) or (d) of the Migration Act on or after the commencement of
this item. It is intended that conduct (including an omission) giving rise to the bar can
occur before, on or after the commencement of this item.
273. Subitem (2) of this item provides that new subsection 245AYE(2), as inserted by this
Part, applies in relation to a civil penalty order made on or after the commencement
of this item. It is intended that conduct (including an omission) giving rise to the civil
penalty order can occur before, on or after the commencement of this item.
Item 8 Application--conviction of work related offence etc.
274. This item provides that new section 245AYF, as inserted by this Part, applies in
relation to a conviction that occurs on or after the commencement of this item. It is
intended that conduct (including an omission) giving rise to the conviction can occur
before, on or after the commencement of this item.
Item 9 Application--contravention of certain civil penalty provisions etc.
275. Subitem (1) of this item provides that new subsection 245AYG(1), as inserted by this
Part, applies in relation to a civil penalty order made on or after the commencement
of this item. It is intended that conduct (including an omission) giving rise to the civil
penalty order can occur before, on or after the commencement of this item.
48
276. Subitem (2) of this item provides that new subsection 245AYG(2), as inserted by this
Part, applies in relation to an order made under a relevant workplace law on or after
the commencement of this item. It is intended that conduct (including an omission)
giving rise to the order can occur before, on or after the commencement of this item.
Item 10 Application--contravention of certain civil remedy provisions of the
Fair Work Act
277. This item provides that new section 245AYH, as inserted by this Part, applies in
relation to a FW order made on or after the commencement of this item. It is intended
that conduct (including an omission) giving rise to the FW order can occur before, on
or after the commencement of this item.
Item 11 Application--contravention of term of enforceable undertaking etc.
278. This item provides that new section 245AYI applies in relation to an undertaking
accepted under current section 715 of the Fair Work Act on or after commencement
of this item (whether the relevant conduct or omission was engaged in before, on or
after that commencement).
Item 12 Application--failure to comply with certain compliance notices
279. This item provides that new section 245AYJ applies in relation to a compliance notice
given under current subsection 716(2) of the Fair Work Act on or after commencement
of this item (whether the relevant conduct or omission was engaged in before, on or
after that commencement).
49
Part 3 Aligning and increasing penalties for work-related breaches
Migration Act 1958
280. The amendments in this Part increase the maximum pecuniary penalties that apply in
relation to the various work-related offences and work-related provisions in the
Migration Act, as well as the civil penalty provisions under current section 140Q in
relation to sponsorship obligations for an approved work sponsor. The increases
largely align these penalties with the pecuniary penalties available in relation to the
offences and civil penalty provisions under current sections 245AR and 245AS of the
Migration Act, which deal with giving or receiving a benefit in return for the
occurrence of a sponsorship-related event.
281. The AGD Framing Guide has been considered in relation to the amendments in this
Part, particularly the guidance in relation to setting an appropriate penalty. Relevantly,
the AGD Framing Guide observes that "[a] maximum penalty should aim to provide
an effective deterrent to the commission of the offence, and should reflect the
seriousness of the offence within the relevant legislative scheme. A higher maximum
penalty will be justified where there are strong incentives to commit the offence, or
where the consequences of the commission of the offence are particularly dangerous
or damaging."
282. Increasing the available pecuniary penalties is intended to send a strong message to
employers and other persons involved in the employment of temporary migrant
workers, that a contravention of the provisions of the Migration Act relating to
temporary migrant workers constitutes a serious breach. Such contraventions are
damaging to the integrity of our migration system.
283. The increases to the pecuniary penalties in this Part result in a revised penalty
framework that is more appropriate and proportionate than the current penalty regime.
The increased penalties better reflect the seriousness of illegal work practices and the
exploitation of temporary migrant workers, and are intended to allow for more
appropriate deterrence and punishment of wilful and serious offending. The
amendments increase the pecuniary penalties available to reflect the gains that
individuals and businesses might obtain, or seek to obtain, from engaging in conduct
that contravenes relevant provisions of the Migration Act.
284. For pecuniary penalties to have a deterrent effect, they must be set at a level that
actually deters people from contravening and offending. These increased penalties
reflect the severity of the impact of a contravention on the individual temporary
migrant worker directly affected by that conduct, but also the significant damage that
the actions of unscrupulous employers or third parties can have on Australia's visa
program integrity and its reputation as a destination of choice for prospective migrant
workers. Combined with an uplift in enforcement and measures to support increased
reporting, these increases should assist in changing non-compliant behaviour by
employers.
Increases to penalty units for civil penalties
285. Table 1.1 below sets out the increased civil penalties under the various work-related
provisions in Subdivision C of Division 12 of Part 2 of the Migration Act.
50
Increases to pecuniary penalties in relation to specified civil penalties under the
Migration Act
Table 1.1 - civil penalty
provisions where the
Current maximum New maximum
maximum pecuniary Brief description
penalty units penalty units
penalty has been
increased
approved work sponsor failing to satisfy
140Q(1) 60 - 240 sponsorship
other - 60* obligations
failing to satisfy
sponsorship
140Q(2) 60 240
obligations (party to
a work agreement)
allowing an unlawful
245AB(5) 90 240
non-citizen to work
allowing a lawful
non-citizen to work
245AC(5) 90 240
in breach of a work-
related condition
referring an unlawful
245AE(5) 90 240
non-citizen for work
referring a lawful
non-citizen for work
245AEA(5) 90 240
in breach of a work-
related condition
civil liability of
245AK(2) 90 240 executive officers of
bodies corporate
*Note: While the pecuniary penalty for failing to meet a sponsorship obligation under
subsections 140Q(1) and (2) is increased to 240 penalty units for an approved work sponsor, the
penalty remains 60 penalty units for any other case. The Sponsorship Framework under the
Migration Act also extends to family sponsors, who are outside the scope of these amendments.
Work-related offences - changes to penalties and increases to penalty units
286. Table 1.2 sets out the increased pecuniary penalties available for an offence against
work-related offences under the Migration Act.
51
Increases to pecuniary penalties for work-related offences under the Migration Act
Table 1.2 - offences
where the maximum Current maximum New maximum
Brief description
penalty has been penalty penalty
increased
2 years imprisonment
allowing an unlawful
245AB(3) 2 years imprisonment or 360 penalty units
non-citizen to work
or both
allowing a lawful
2 years imprisonment
non-citizen to work
245AC(3) 2 years imprisonment or 360 penalty units
in breach of a work-
or both
related condition
aggravated offences
5 years imprisonment if a person allows, or
245AD(1) and (2) 5 years imprisonment or 900 penalty units continues to allow,
or both another person to
work
2 years imprisonment
referring an unlawful
245AE(3) 2 years imprisonment or 360 penalty units
non-citizen for work
or both
referring a lawful
2 years imprisonment
non-citizen for work
245AEA(3) 2 years imprisonment or 360 penalty units
in breach of a work-
or both
related condition
aggravated offences
5 years imprisonment
if a person refers
245AEB(1) and (2) 5 years imprisonment or 900 penalty units
another person to a
or both
third person for work
Item 13 Subsection 140Q(1) (penalty)
Item 14 Subsection 140Q(2) (penalty)
287. These items repeal the civil penalty under each of subsections 140Q(1) and (2), and
substitutes a new civil penalty. As amended, a person who contravenes subsection
140Q(1) is liable to a penalty of 240 penalty units if that person is an approved work
sponsor, and 60 penalty units in any other case, and 240 penalty units for a
contravention of subsection 140Q(2). The term approved work sponsor is relevantly
defined under current subsection 5(1) of the Migration Act.
288. Current subsections 140Q(1) and 140Q(2) of the Migration Act are civil penalty
provisions that apply if a person has failed to satisfy applicable sponsorship
obligations. If a person contravenes current subsection 140Q(1) or 140Q(2), they are
liable to a civil penalty of 60 penalty units.
52
289. The increased pecuniary penalty in relation to approved work sponsors ensures
alignment across the civil penalty provisions relevant to employers and other persons
involved in the employment of non-citizens. The increased penalty is proportionate to
the seriousness of failing to meet sponsorship obligations as an approved work
sponsor, and is intended to deter non-compliance with provisions of the Migration Act
that are intended to protect non-citizens working in Australia.
290. As amended, the civil penalties under subsections 140Q(1) and (2) differentiate the
civil penalty available in relation to an approved work sponsor from other cases. While
the pecuniary penalty for failing to meet a sponsorship obligation under
subsections 140Q(1) and (2) is increased to 240 penalty units for an approved work
sponsor, the penalty remains at 60 penalty units for any other case. This ensures that
the amendments are appropriately targeted, noting the Sponsorship Framework in the
Migration Act also extends to family sponsors, who are outside the scope of the
amendments of the Migration Act by the Schedule to this Bill.
Item 15 Subsection 245AB(3)
291. This item repeals the current offence provision at subsection 245AB(3) of the
Migration Act, and substitutes a new offence provision, with an increased penalty, as
new subsection 245AB(3).
292. Current subsection 245AB(1) provides that a person (the first person) contravenes
this subsection if:
• the first person allows, or continues to allow, another person (the worker) to
work; and;
• the worker is an unlawful non-citizen.
293. New subsection 245AB(3) is equivalent in effect to current subsection 245AB(3),
aside from the penalty.
294. Subsection 4B(2) of the Crimes Act provides that where a natural person is convicted
of an offence against a law of the Commonwealth punishable by imprisonment only,
the court may, if the contrary intention does not appear and the court thinks it
appropriate in all the circumstances of the case, impose, instead of, or in addition to,
a penalty of imprisonment, a pecuniary penalty not exceeding the number of penalty
units calculated using the formula (term of imprisonment x 5), where the 'term of
imprisonment' is the maximum term of imprisonment, expressed in months, by which
the offence is punishable.
295. Under current subsection 245AB(3), the maximum pecuniary penalty available on
conviction for an offence against subsection 245AB(1), as calculated under
subsection 4B(2) of the Crimes Act, would be 120 penalty units.
53
296. The maximum pecuniary penalty of 360 penalty units under new subsection 245AB(3)
is set substantially higher than the standard penalty unit/imprisonment ratio provided
for in subsection 4B(2) of the Crimes Act. Given the nature of the conduct covered by
section 245AB as amended, it is appropriate that the pecuniary penalty available for
the offence is set at the same amount as for current section 245AR, particularly where
a lower pecuniary penalty may be perceived as able to be offset against the potential
unlawful gains from committing the offence. This amendment is intended to send a
clear signal that offences against section 245AB as amended are viewed seriously, and
that an offence against section 245AB warrants a significant penalty.
297. The note to new subsection 245AB(3) advises that in accordance with current
subsection 13.3(3) of the Criminal Code, a defendant bears the evidential burden in
relation to proving the matter in subsection 245AB(2). Current subsection 13.3(6) of
the Criminal Code provides an evidential burden, in relation to a matter, means the
burden of adducing or pointing to evidence that suggests a reasonable possibility that
the matter exists or does not exist. This remains appropriate as the matters that
compromise the defence are peculiarly within the knowledge of the defendant as they
relate to actions taken by the defendant to verify certain matters. It would be more
difficult and costly for the prosecution to have to prove these matters due to the nature
and possession of the evidence required to establish these matters.
Item 16 Subsection 245AB(5)
298. This item repeals the civil penalty provision at current subsection 245AB(5) of the
Migration Act, and substitutes a new civil penalty provision, with an increased civil
penalty of 240 penalty units, as new subsection 245AB(5).
299. Current subsection 245AB(5) provides that a person is liable to a civil penalty if the
person contravenes current subsection 245AB(1). Under current
subsection 245AB(5), the maximum civil penalty for contravention of that provision
is 90 penalty units.
300. Civil penalties must also be read with current paragraph 486R(5)(a) of the Migration
Act, which provides that the pecuniary penalty for a contravention of a civil penalty
provision must not be more than five times the amount of the pecuniary penalty
specified for the civil penalty provision, if the person is a body corporate.
301. Civil penalties must also be read with subsection 486R(6) of the Migration Act, which
provides that in determining the amount of the pecuniary penalty, the court must take
into account all relevant matters, including the matters listed in that subsection.
302. The note to new subsection 245AB(5) provides that it is not necessary to prove a
person's state of mind in proceedings for a civil penalty order and refers the reader to
section 486ZF of the Migration Act.
303. Current section 486ZF provides that in proceedings for a civil penalty order against a
person for a contravention of a civil penalty provision, (other than subsection
245AK(2)), it is not necessary to prove the person's intention, knowledge,
recklessness, negligence or any other state of mind of the person.
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304. The effect of this note is to clarify that it is sufficient to establish that a person
contravened new subsection 245AB(1) by allowing, or continuing to allow, an
unlawful non-citizen to work. This is clearly distinguished from the requirement to
prove the fault elements of knowledge or recklessness in relation to paragraph
245AB(1)(b) in a criminal offence.
305. This means that a person is liable to a civil penalty under new subsection 245AB(5)
without knowing or being reckless as to whether a worker is an unlawful non-citizen,
if they allow or continue to allow that worker to work.
Item 17 Subsection 245AC(3)
306. This item repeals the offence provision at current subsection 245AC(3) of the
Migration Act, and substitutes a new offence provision and penalty, as new subsection
245AC(3).
307. Current section 245AC of the Migration Act deals with allowing a lawful non-citizen
to work in breach of a work-related condition. The maximum penalty for an offence
under current subsection 245AC(3) is 2 years imprisonment.
308. New subsection 245AC(3) is equivalent in effect to current subsection 245AC(3),
aside from the penalty. The penalty under new subsection 245AC(3) provides that the
new maximum penalty for an offence under new subsection 245AC(3) is 2 years
imprisonment, or 360 penalty units, or both.
309. This penalty must also be read with subsection 4B(2) of the Crimes Act.
310. Under current subsection 245AC(3), the maximum pecuniary penalty available on
conviction for an offence against subsection 245AC(1), as calculated under
subsection 4B(2) of the Crimes Act, would be 120 penalty units.
311. The maximum pecuniary penalty of 360 penalty units under new subsection 245AC(3)
is set substantially higher than the standard penalty unit/imprisonment ratio provided
for in section 4B of the Crimes Act. Given the nature of the conduct covered by
section 245AC as amended, it is appropriate that the pecuniary penalty available for
the offence is set at the same amount as for current section 245AR, particularly where
a lower pecuniary penalty may be perceived as able to be offset against the potential
unlawful gains from committing the offence. This amendment is intended to send a
clear signal that offences against section 245AC as amended are viewed seriously, and
that an offence against section 245AC warrants a significant penalty.
312. The note to new subsection 245AC(3) advises that in accordance with
subsection 13.3(3) of the Criminal Code, a defendant bears the evidential burden in
relation to proving the matter in subsection 245AC(2). Current subsection 13.3(6) of
the Criminal Code provides an evidential burden, in relation to a matter, means the
burden of adducing or pointing to evidence that suggests a reasonable possibility that
the matter exists or does not exist. This remains appropriate as the matters that
compromise the defence are peculiarly within the knowledge of the defendant as they
relate to actions taken by the defendant to verify certain matters. It would be more
difficult and costly for the prosecution to have to prove these matters due to the nature
and possession of the evidence required to establish these matters.
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Item 18 Subsection 245AC(5)
313. This item repeals the civil penalty provision at current subsection 245AC(5) of the
Migration Act, and substitutes a new civil penalty provision, with an increased civil
penalty, as new subsection 245AC(5).
314. Current section 245AC of the Migration Act deals with allowing a lawful non-citizen
to work in breach of a work-related condition. The maximum civil penalty is
90 penalty units.
315. New subsection 245AC(5) is equivalent in effect to current subsection 245AC(5),
aside from the penalty. Under new subsection 245AC(5), the maximum civil penalty
for which a person is liable if the person contravenes current subsection 245AC(1) is
240 penalty units.
316. The note to new subsection 245AC(5) provides that it is not necessary to prove a
person's state of mind in proceedings for a civil penalty order and refers the reader to
section 486ZF of the Migration Act.
Item 19 Subsections 245AD(1) and (2) (penalty and note)
317. This item repeals the penalty under current subsections 245AD(1) and (2) and
substitutes a new penalty.
318. Current section 245AD of the Migration Act creates aggravated offences if a person
allows, or continues to allow, another person to work.
319. The current penalty for an offence against subsection 245AD(1) or (2) is five years
imprisonment. The amendments replace this penalty with a new penalty of five years
imprisonment, or 900 penalty units, or both.
320. The notes in subsections 245AD(1) and (2) have been amended to appear above the
penalty. The note continues to direct the reader to current section 245AH of the
Migration Act in relation to when a person will be exploited, within the meaning given
by that section.
321. This penalty must be read with subsection 4B(2) of the Crimes Act.
322. Under current subsections 245AD(1) and (2), the maximum pecuniary penalty
available on conviction for an offence against either subsection, as calculated under
subsection 4B(2) of the Crimes Act, would be 300 penalty units.
323. The maximum pecuniary penalty of 900 penalty units under the new penalties under
each subsection is set substantially higher than the standard penalty unit/imprisonment
ratio provided for in section 4B of the Crimes Act. Given the nature of the conduct
covered by section 245AD, the pecuniary penalty is appropriate and necessary to deter
any potential unlawful gains from committing the offence. This amendment is
intended to send a clear signal that offences against section 245AD as amended are
viewed seriously, and that an offence against section 245AD warrants a significant
penalty.
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Item 20 Subsection 245AE(3)
324. This item repeals the offence provision at current subsection 245AE(3) of the
Migration Act, and substitutes a new offence provision and penalty, as new subsection
245AE(3).
325. Current section 245AE of the Migration Act deals with referring an unlawful non-
citizen for work. The maximum penalty for an offence under current
subsection 245AE(3) is 2 years imprisonment.
326. New subsection 245AE(3) is equivalent in effect to current subsection 245AE(3),
aside from the penalty. The penalty under new subsection 245AE(3) provides that the
new maximum penalty for an offence under new subsection 245AE(3) is
imprisonment for 2 years, or 360 penalty units, or both.
327. This penalty must also be read with subsection 4B(2) of the Crimes Act.
328. Under current subsection 245AE(3), the maximum pecuniary penalty available on
conviction for an offence against subsection 245AE(1), as calculated under subsection
4B(2) of the Crimes Act, would be 120 penalty units.
329. The maximum pecuniary penalty of 360 penalty units under new subsection 245AE(3)
is set substantially higher than the standard penalty unit/imprisonment ratio provided
for in section 4B of the Crimes Act. Given the nature of the conduct covered by section
245AE, it is appropriate that the pecuniary penalty available for the offence is set at
the same amount as for current section 245AR, particularly where a lower pecuniary
penalty may be perceived as able to be offset against the potential unlawful gains from
committing the offence. This amendment is intended to send a clear signal that
offences against section 245AE as amended are viewed seriously, and that an offence
against section 245AE warrants a significant penalty.
330. The note to new subsection 245AE(3) advises that in accordance with
subsection 13.3(3) of the Criminal Code, a defendant bears the evidential burden in
relation to proving the matter in subsection 245AE(2). Current subsection 13.3(6) of
the Criminal Code provides an evidential burden, in relation to a matter, means the
burden of adducing or pointing to evidence that suggests a reasonable possibility that
the matter exists or does not exist. This remains appropriate as the matters that
compromise the defence are peculiarly within the knowledge of the defendant as they
relate to actions taken by the defendant to verify certain matters. It would be more
difficult and costly for the prosecution to have to prove these matters due to the nature
and possession of the evidence required to establish these matters.
Item 21 Subsection 245AE(5)
331. This item repeals the civil penalty provision at current subsection 245AE(5) of the
Migration Act and substitutes a new civil penalty provision as new subsection
245AE(5).
332. Current section 245AE of the Migration Act deals with referring an unlawful non-
citizen for work. The maximum civil penalty for contravention of that provision is
90 penalty units.
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333. New subsection 245AE(5) is equivalent in effect to current subsection 245AE(5),
aside from the penalty. Under new subsection 245AE(5), the maximum civil penalty
for which a person is liable if the person contravenes current subsection 245AE(1) is
240 penalty units.
334. The note to new subsection 245AE(5) provides that it is not necessary to prove a
person's state of mind in proceedings for a civil penalty order and refers the reader to
section 486ZF of the Migration Act.
Item 22 Subsection 245AEA(3)
335. This item repeals the offence provision at current subsection 245AEA(3) of the
Migration Act and substitutes a new offence provision as new subsection 245AEA(3).
336. Current section 245AEA deals with referring a lawful non-citizen for work in breach
of a work-related condition. The maximum penalty for an offence under current
subsection 245AEA(3) is 2 years imprisonment.
337. New subsection 245AEA(3) is equivalent in effect to current subsection 245AE(3),
aside from the penalty. The penalty under new subsection 245AEA(3) provides that
the new maximum penalty for an offence under new subsection 245AEA(3) is 2 years
imprisonment, or 360 penalty units, or both.
338. This penalty must be read with subsection 4B(2) of the Crimes Act.
339. Under current subsection 245AEA(3), the maximum pecuniary penalty available on
conviction for an offence against subsection 245AEA(1), as calculated under
subsection 4B(2) of the Crimes Act, would be 120 penalty units.
340. The maximum pecuniary penalty of 360 penalty units under new subsection
245AEA(3) is set substantially higher than the standard penalty unit/imprisonment
ratio provided for in section 4B of the Crimes Act. Given the nature of the conduct
covered by section 245AE, it is appropriate that the pecuniary penalty available for
the offence is set at the same amount as for current section 245AR, particularly where
a lower pecuniary penalty may be perceived as able to be offset against the potential
unlawful gains from committing the offence. This amendment is intended to send a
clear signal that offences against section 245AEA as amended are viewed seriously,
and that an offence against section 245AEA warrants a significant penalty.
341. The note to new subsection 245AEA(3) advises that in accordance with subsection
13.3(3) of the Criminal Code, a defendant bears the evidential burden in relation to
proving the matter in subsection 245AEA(2). Current subsection 13.3(6) of the
Criminal Code provides an evidential burden, in relation to a matter, means the burden
of adducing or pointing to evidence that suggests a reasonable possibility that the
matter exists or does not exist. This remains appropriate as the matters that
compromise the defence are peculiarly within the knowledge of the defendant as they
relate to actions taken by the defendant to verify certain matters. It would be more
difficult and costly for the prosecution to have to prove these matters due to the nature
and possession of the evidence required to establish these matters.
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Item 23 Subsection 245AEA(5)
342. This item repeals the civil penalty provision in current subsection 245AEA(5) of the
Migration Act and substitutes a new civil penalty provision, in new
subsection 245AEA(5).
343. Current section 245AEA deals with referring a lawful non-citizen for work in breach
of a work-related condition. Under new subsection 245AEA(5), the maximum civil
penalty for which a person is liable if the person contravenes current
subsection 245AEA(1) is 240 penalty units, an increase from 90 penalty units.
344. The note to new subsection 245AEA(5) provides that it is not necessary to prove a
person's state of mind in proceedings for a civil penalty order and refers the reader to
section 486ZF of the Migration Act.
Item 24 Subsections 245AEB(1) and (2) (penalty and note)
345. This item repeals the current penalty in current subsections 245AEB(1) and (2), and
substitutes a new penalty that provides for a sentence of up to five years'
imprisonment, or 900 penalty units, or both.
346. The notes in subsections 245AEB(1) and (2) have also been amended to appear above
the penalty. The note continues to direct the reader to current section 245AH of the
Migration Act in relation to when a person will be exploited, within the meaning given
by that section.
347. Current subsections 245AEB(1) and (2) of the Migration Act provide for aggravated
offences if a person refers another person to a third person for work. If a person is
convicted for an offence against either of these subsections, the current penalty is five
years' imprisonment.
348. This penalty must be read with subsection 4B(2) of the Crimes Act.
349. In relation to current subsections 245AEB(1) and (2), the maximum pecuniary penalty
as calculated under subsection 4B(2) of the Crimes Act would be 300 penalty units.
350. The maximum pecuniary penalty of 900 penalty units under the new penalties under
each subsection is set substantially higher than the standard penalty unit/imprisonment
ratio provided for in section 4B of the Crimes Act. Given the nature of the conduct
covered by section 245AEB, the pecuniary penalty is appropriate and necessary to
deter any potential unlawful gains from committing the offence. This amendment is
intended to send a clear signal that offences against section 245AEB as amended are
viewed seriously, and that an offence against section 245AEB warrants a significant
penalty.
Item 25 Subsection 245AK(2)
351. This item repeals the civil penalty provision in current subsection 245AK(2) and
substitutes a new civil penalty provision in new subsection 245AK(2).
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352. Current subsection 245AK(2) provides that that an executive officer of a body
corporate is liable to a civil penalty if the officer contravenes subsection 245AK(1).
The maximum civil penalty is currently 90 penalty units. The penalty has been
increased to 240 penalty units.
353. The note to new subsection 245AE(5) provides that it is not necessary to prove a
person's state of mind in proceedings for a civil penalty order and refers the reader to
section 486ZF of the Migration Act.
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Part 4 Enforceable undertakings for work-related breaches
Migration Act 1958
Item 26 After section 245AL
354. This item inserts new section 245ALA after current section 245AL of the Migration
Act.
355. New section 245ALA sets out the triggering provisions of the standard enforceable
undertakings powers available under Part 6 of the Regulatory Powers Act, and makes
these powers available in relation to the work-related offences and work-related
provisions of the Migration Act.
Enforceable undertakings under Part 6 of the Regulatory Powers Act
356. The Regulatory Powers Act provides for a standard suite of provisions that can be
triggered by other Acts in relation to monitoring and investigation powers, as well as
civil penalties, infringement notices, enforceable undertakings and injunctions. The
standard provisions of the Regulatory Powers Act are an accepted baseline of powers
required for an effective monitoring, investigation or enforcement regulatory regime,
providing adequate safeguards and protecting important common law privileges.
357. Part 6 of the Regulatory Powers Act creates a standard framework for accepting and
enforcing undertakings relating to compliance with provisions of an Act. Subsection
110(2) of the Regulatory Powers Act states that, in order for Part 6 of the Regulatory
Powers Act to operate, a provision of an Act or legislative instrument must be made
enforceable under Part 6 by a triggering Act.
358. When a triggering Act applies Part 6 of the Regulatory Powers Act, it must identify
who is an authorised person and the relevant court or courts that may exercise powers
under Part 6 of the Regulatory Powers Act (see sections 112 and 113 of the Regulatory
Powers Act). It must also express whether the authorised person may delegate their
powers and functions under Part 6 of the Regulatory Powers Act in relation to the
enforceable undertakings provisions of the triggering Act. If provisions of the
triggering Act are subject to enforceable undertakings and apply in external Territories
or offshore areas, the triggering Act should identify whether Part 6 of the Regulatory
Powers Act extends to any external Territories.
359. The purpose of these amendments is to enhance the compliance and enforcement
framework relating to the work-related offences and work-related provisions of the
Migration Act. This provides another option to deal with non-compliance (by
encouraging co-operative compliance) instead of pursuing court proceedings.
Enforceable undertakings will provide the necessary flexibility to require a person to
take specific action to address the underlying non-compliance issue based on the
circumstances of the individual case.
360. For example, an enforceable undertaking could include:
• a commitment by the employer to comply with a specific legislative provision,
to undertake checks of prospective non-citizen employees' immigration status
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and work-related visa conditions via the Visa Entitlement Verification Online
system;
• an undertaking by the employer to refrain from allowing non-citizens to work in
breach of the work-related conditions of their visa; or
• an agreement by the employer to participate in an education program in relation
to compliance with the work-related provisions of the Migration Act.
New section 245ALA - Enforceable undertakings
361. New section 245ALA sets out the triggering provisions of the standard enforceable
undertakings powers available in relation to contraventions of work-related offences
and work-related provisions under the Migration Act, through the application of Part
6 of the Regulatory Powers Act. Part 6 of the Regulatory Powers Act, as applied by
new section 245ALA, provides the Migration Act with a framework for accepting and
enforcing undertakings relating to compliance with work-related offences and work-
related provisions under the Migration Act.
362. Subsection 114(1) of Part 6 of the Regulatory Powers Act provides that an authorised
person may accept any of the following undertakings:
• a written undertaking given by a person that the person will, in order to comply
with a provision enforceable under Part 6, take specified action;
• a written undertaking given by a person that the person will, in order to comply
with a provision enforceable under Part 6, refrain from taking specified action;
• a written undertaking given by a person that the person will take specified action
directed towards ensuring that the person does not contravene a provision
enforceable under Part 6, or is unlikely to contravene such a provision, in the
future.
Enforceable provisions
363. New subsection 245ALA(1) provides that a provision is enforceable under Part 6 of
the Regulatory Powers Act if it is a work-related offence or a work-related provision.
These terms are being inserted into subsection 5(1) of the Migration Act by this Bill.
364. Subsection 110(2) of the Regulatory Powers Act provides that, for Part 6 of the
Regulatory Powers Act to operate, a provision of an Act or a legislative instrument
must be made enforceable under Part 6 by the triggering Act. Section 111 of the
Regulatory Powers Act also relevantly provides that a provision of an Act or a
legislative instrument is enforceable under Part 6 if an Act provides that the provision
is enforceable under this Part. New subsection 245ALA(1) has the effect of making
the work-related offences and work-related provisions of the Migration Act
enforceable within the meaning of section 111 of the Regulatory Powers Act.
62
365. A note at the foot of new subsection 245ALA(1) explains that Part 6 of the Regulatory
Powers Act creates a framework for accepting and enforcing undertakings relating to
compliance with provisions. This note is intended to assist readers and draw their
attention to Part 6 of the Regulatory Powers Act, which provides the substantive
framework for accepting and enforcing undertakings in relation to work-related
offences and work-related provisions. Subsection 245ALA(1) and the other
provisions in new section 245ALA are the triggering provisions necessary to apply
this framework in relation to the work-related offences and work-related provisions
of the Migration Act.
Authorised person
366. Section 112 of the Regulatory Powers Act provides that if a triggering Act provides
that a person is an authorised person in relation to that provision for the purposes of
Part 6 of the Regulatory Powers Act, that person is an authorised person for the
purposes of exercising powers under Part 6 in relation to an enforceable provision.
367. New subsection 245ALA(2) provides that for the purposes of Part 6 of the Regulatory
Powers Act, the Minister is an authorised person in relation to the work-related
offences and work-related provisions of the Migration Act (as made enforceable
under Part 6 of the Regulatory Powers Act by new subsection 245ALA(1)).
368. New subsection 245ALA(3) provides that the Minister may delegate the Minister's
powers and functions under Part 6 of the Regulatory Powers Act to an authorised
officer, in relation to the provisions mentioned in subsection 245ALA(1). The
delegation must be in writing.
369. Subsection 5(1) of the Migration Act provides that the expression authorised officer,
when used in a provision of the Migration Act, means an officer authorised in writing
by the Minister, the Secretary of the Department or the Australian Border Force
Commissioner for the purposes of that provision.
370. New subsection 245ALA(4) provides that the Minister may delegate a power or
function under subsection 245ALA(3) only if the Minister is satisfied that the
authorised officer has appropriate qualifications, training or experience to exercise
the power or perform the function. This provision has the effect of limiting the general
delegation power in subsection 245ALA(3), ensuring that matters relevant to the
experience, qualifications and training of an authorised officer must be taken into
account when the Minister exercises the delegation power in subsection 245ALA(3).
371. In general, the delegation of the Minister's powers and functions under Part 6 of the
Regulatory Powers Act in relation to work-related offences and work-related
provisions will be confined to members of the Department's SES, or ABF officers at
Commander level or higher. While new subsection 245ALA(3) does not expressly
include this limitation, this is appropriate in order to provide sufficient flexibility to
allow for the Minister to delegate the Minister's powers and functions to certain
authorised officers below these levels from time to time - but only where the Minister
is satisfied, as required by new subsection 245ALA(4), that that authorised officer
has the appropriate qualifications, training or experience to exercise the power or
perform the function.
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372. The combined effect of subsections 245ALA(3) and (4) ensures there is appropriate
flexibility in the legislation to accommodate future structural changes in the
Department and ABF, where certain functions might be assigned to appropriately
qualified, experienced authorised officers at management levels below SES or
Commander. It is foreseeable, for example, that responsibility for enforceable
undertakings might be appropriately assigned to a superintendent in the ABF who has
also been delegated other functions and powers as the authorised officer centrally
responsible for ABF operations relating to compliance with the work-related offences
and work-related provisions of the Migration Act.
373. New subsection 245ALA(5) provides that an authorised officer exercising powers or
performing functions under a delegation under subsection 245ALA(3) must comply
with any directions of the Minister.
Relevant court
374. New subsection 245ALA(6) provides that, for the purposes of Part 6 of the Regulatory
Powers Act, an eligible court is a relevant court in relation to the provisions mentioned
in subsection 245ALA(1) - that is, the work-related offences and work-related
provisions of the Migration Act.
375. Subsection 5(1) of the Migration Act provides that eligible court means:
• the Federal Court; or
• the Federal Circuit and Family Court of Australia (Division 2); or
• a District, County or Local Court; or
• a Magistrates Court; or
• any other State or Territory court that is prescribed by the regulations.
376. Section 113 of the Regulatory Powers Act states that a relevant court can exercise
powers under Part 6 of the Regulatory Powers Act concerning enforceable
undertakings, provided that an Act designates the court as a relevant court. In other
words, the court must be designated by an Act as relevant to the provision that Part 6
seeks to enforce in order to exercise powers under Part 6 in relation to an undertaking
given in relation to that provision.
377. The purpose of new subsection 245ALA(6) is to provide that an eligible court within
the meaning of subsection 5(1) of the Migration Act is a relevant court for the
purposes of exercising the powers in Part 6 of the Regulatory Powers Act, in relation
to an undertaking given in relation to any of the work-related offences and work-
related provisions of the Migration Act.
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Enforceable undertaking may be published on the internet
378. New subsection 245ALA(7) provides the Minister the discretion to publish an
enforceable undertaking that a person has given, in relation to a work-related offence
or work-related provision, on the Department's website. As the undertaking would
have been given in circumstances where the person has contravened one or more of
the relevant offence or civil penalty provisions, the publication of the undertaking
draws public attention to that contravention, and is intended to deter the person from
breaching undertakings in future.
379. Publication of an enforceable undertaking provides transparency to the Australian
community, demonstrating that the Minister is taking action against employers and
third parties who do not comply with obligations under the Migration Act, or
otherwise act in contravention of work-related offences and work-related provisions.
Publication also serves as a general deterrent by publicising these provisions and
related obligations, and what action may be taken for contravention of these
provisions.
Extension to external Territories
380. New subsection 245ALA(8) provides that Part 6 of the Regulatory Powers Act, as
applied by section 245ALA in relation to work-related offences and work-related
provisions, extends to a Territory to which the Migration Act extends.
381. A note at the foot of this subsection directs the reader to section 7 of the Migration
Act. Subsection 7(2) relevantly provides that the Migration Act extend to a prescribed
Territory. Subsection 7(1) provides that prescribed territory means Norfolk Island,
the Coral Sea Islands Territory, the Territory of Cocos (Keeling) Islands, the Territory
of Christmas Island and the Territory of Ashmore and Cartier Islands.
382. The purpose of this provision is to make clear that the provisions in Part 6 of the
Regulatory Powers Act extend to the prescribed Territories within the meaning of
section 7 of the Migration Act.
Relationship with civil penalty orders
383. New subsection 245ALA(9) sets out the relationship between enforceable
undertakings and civil penalty orders. This subsection provides that while an
enforceable undertaking under subsection 245ALA(1) remains on foot and has not
been withdrawn, the Minister must not apply for a civil penalty order under current
subsection 486R(1) of the Migration Act in relation to the same contravention of a
work-related provision by the person.
384. This restriction ensures the Minister cannot pursue multiple enforcement mechanisms
in relation to the same contravention concurrently. It does not preclude the Minister
from taking action under section 115 of the Regulatory Powers Act by applying to a
relevant court for an order in relation to a breach of the enforceable undertaking by
the person who gave it.
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385. Part 6 of the Regulatory Powers Act enables an authorised person to accept written
undertakings committing a person to particular action (or inaction) in order to prevent
or respond to a breach of an enforceable provision. Undertakings are enforceable in
their own right (see section 111 of the Regulatory Powers Act), and they may be
entered into instead of, or in addition to, the authorised person taking other
disciplinary action.
386. Undertakings provide a remedy other than financial sanctions to past or prospective
breaches of a provision.
387. Section 115 enables the authorised person to apply to have undertakings given under
section 114 enforced in a relevant court. This clause lists the orders a court can impose
to remedy a breach of an undertaking, including orders to comply with the
undertaking, to pay a pecuniary penalty to the Commonwealth, to compensate other
people, or any other order the court sees fit.
Item 27 Application of amendments
388. This item provides for the application of the enforceable undertakings provisions of
Part 6 of the Regulatory Powers Act, as that Part applies under new section 245ALA
of the Migration Act, in relation to work-related offences and work-related
provisions. The amendment clarifies that Part 6 of the Regulatory Powers Act applies
in relation to undertakings given on or after the commencement of the Schedule to the
Bill.
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Part 5 Compliance notices for work-related breaches
Division 1 Amendments
Migration Act 1958
Item 28 At the end of subsection 140K(1)
Item 29 At the end of subsection 140K(2)
389. Current section 140K of the Migration Act deals with sanctions for failing to satisfy
sponsorship obligations. Current subsection 140K(1) sets out the actions that may be
taken in relation to approved sponsors. Current subsection 140K(2) sets out the actions
that may be taken in relation to former approved sponsors.
390. New paragraph 140K(1)(d) adds an additional enforcement tool to these available
actions by providing that an authorised officer may give the approved sponsor a
compliance notice under new section 140RB.
391. New paragraph 140K(2)(d) adds an additional enforcement tool to these available
actions by providing that an authorised officer may give the approved sponsor a
compliance notice under new section 140RB.
Item 30 After subsection 140RA(3)
392. Current section 140RA sets out the framework for the administration of enforceable
undertakings as they relate to sponsorship obligations under current section 140H
(Sponsorship obligations--general).
393. New subsection 140RA(3A) provides that the relevant authorised person under
subsection 140RA(1) must not accept an undertaking from an approved sponsor or a
former approved sponsor in relation to a sponsorship obligation if that individual has
been given a notice under new section 140RB in relation to a contravention relating
to the sponsorship obligation.
Item 31 At the end of Subdivision D of Division 3A of Part 2
394. This item adds new section 140RB at the end of Subdivision D of Division 3A of
Part 2.
395. New section 140RB provides the requirements for compliance notices issued in
relation to contraventions of current subsections 140Q(1) or (2) (failing to satisfy
sponsorship obligations).
396. New subsection 140RB(1) sets out the scope of the provision and provides that the
section applies if an authorised officer reasonably believes that a person who is or was
an approved work sponsor has contravened subsection 140Q(1) or (2).
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397. The authorised officer needs only to hold a reasonable belief that the person has
engaged in or is engaging in conduct which would contravene current
subsection 140Q(1) or (2). The authorised officer is not required to consider what the
person's state of mind was, or is, when engaging in the relevant conduct. The
authorised officer is also not required to consider any associated defences.
Giving a compliance notice
398. New subsection 140RB(2) provides that an authorised officer may give the person a
compliance notice specifying action that the person must take, or refrain from taking,
to address the contravention of subsection 140Q(1) or (2) (as applicable), within the
time specified in the notice.
399. Compliance notices will provide the necessary flexibility to require a person to take
specific action to address the underlying non-compliance issue, based on the
circumstances of the individual case.
400. A note at the foot of new subsection 140RB(2) clarifies that a compliance notice can
also be varied or withdrawn under subsection 33(3) of the Acts Interpretation Act.
401. New subsection 140RB(3) provides that the compliance notice may require the person
to produce reasonable evidence of compliance with the notice.
402. New subsection 140RB(4) provides the information that must be included in a
compliance notice, being:
• the name of the person;
• the name of the authorised officer;
• a summary of the contravention;
• an explanation that a failure to comply with the notice may contravene a civil
penalty provision; and
• any other prescribed matters.
Person must comply with compliance notice
403. New subsection 140RB(5) provides that a person who is given a compliance notice
must comply with it.
404. A person who contravenes this subsection is liable to a civil penalty of 48 penalty
units.
405. Current section 486ZF of the Migration Act provides that a person's state of mind
does not need to be proven in proceedings for a civil penalty order. The note under
new subsection 140RB(5) draws the reader's attention to this provision.
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Effect of compliance with compliance notice
406. New subsection 140RB(6) provides that a person who complies with a notice is not
taken to have admitted to the contravention in relation to which the notice is given.
Relationship with enforceable undertakings
407. New subsection 140RB(7) provides that an authorised officer must not give a person
a compliance notice in relation to a contravention relating to a sponsorship obligation
if:
• the person has given an undertaking under section 140RA in relation to that
sponsorship obligation; and
• the undertaking has not been withdrawn.
408. The effect of this subsection is that while an enforceable undertaking under section
140RA remains on foot and has not been withdrawn, the authorised officer must not
give a person a compliance notice in relation to the same contravention of a
sponsorship obligation by the person.
Relationship with civil penalty provisions
409. New subsection 140RB(8) prevents the Minister from instituting proceedings under
current subsection 486R(1) of the Migration Act in relation to a contravention of
subsection 140Q(1) or (2) by a person if:
• if an authorised officer has already given the person a notice in relation to the
contravention and either:
o the notice has not been withdrawn, and the person has complied with the
notice; or
o the person has applied to a court for judicial review of the decision to
give the notice, and that application has not been completely dealt with.
Item 32 After paragraph 140X(a)
410. This item inserts new paragraph 140X(aaa) after current paragraph 140X(a).
411. Current section 140X deals with when the powers of an inspector under this
Subdivision may be exercised.
412. New paragraph 140X(aaa) has the effect of providing another instance of when the
powers of an inspector may be exercised - for the purpose of investigating whether
another person who is or was an approved work sponsor has contravened new
subsection 140RB(5).
Item 33 In the appropriate position in Division 12 of Part 2
413. This item inserts new Subdivision F--Compliance notices for work-related breaches.
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414. New item 245AYP deals with compliance notices.
415. New subsection 245AYP(1) provides that section applies if an authorised officer
reasonably believes that a person has contravened a conduct rule provision (within the
meaning of subsection 245AL(1) or 245AYO(1)).
416. The authorised officer needs only to be satisfied that the person has engaged in, or is
engaging in, the relevant conduct. The authorised officer is not required to consider
what the person's state of mind was, or is, when engaging in the relevant conduct. The
authorised officer is also not required to consider any associated defences.
Giving a compliance notice
417. New subsection 245AYP(2) provides that the authorised officer may give the person
a notice (a compliance notice) specifying action that the person must, within such
reasonable time as is specified in the notice, take or refrain from taking to address the
contravention.
418. A note immediately below this subsection clarifies that a compliance notice given
under new subsection 245AYP(2) can be varied or withdrawn under subsection 33(3)
of the Acts Interpretation Act.
419. New subsection 245AYP(3) provides that the compliance notice may require the
person to produce reasonable evidence of compliance with the notice.
420. New subsection 245AYP(4) sets out the requirements for the information that must
be included in a compliance notice, being:
• the name of the person to whom the notice is given;
• the name of the authorised officer giving the notice;
• a summary of the contravention;
• an explanation that a failure to comply with the notice may contravene a civil
penalty provision; and
• any other prescribed matters.
Person must comply with notice
421. New subsection 245AYP(5) provides that a person who is given a compliance notice
must comply with it.
422. A person who contravenes this subsection is liable to a civil penalty of 48 penalty
units.
423. Current section 486ZF of the Migration Act provides that a person's state of mind
does not need to be proven in proceedings for a civil penalty order. The note under
new subsection 245AYP(5) draws the reader's attention to this provision.
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Effect of compliance with compliance notice
424. New subsection 245AYP(6) provides that a person who complies with a notice is not
taken to have admitted to the contravention in relation to which the notice is given.
Relationship with enforceable undertakings
425. New subsection 245AYP(7) provides that an authorised officer must not give a person
a compliance notice in relation to a contravention if:
• the person has given an undertaking under new section 245ALA in relation to
that sponsorship obligation; and
• the undertaking has not been withdrawn.
426. The effect of this subsection is that while an enforceable undertaking under new
section 245ALA remains on foot and has not been withdrawn, the authorised officer
must not give a person a compliance notice in relation to the same contravention by
the person.
Relationship with civil penalty provisions
427. New subsection 245AYP(8) prevents the Minister from instituting proceedings under
current subsection 486R(1) of the Migration Act in relation to a contravention of
subsection 140Q(1) or (2) by a person if:
• if an authorised officer has already given the person a notice in relation to the
contravention and either:
o the notice has not been withdrawn, and the person has complied with the
notice; or
o the person has applied to a court for judicial review of the decision to
give the notice, and that application has not been completely dealt with.
Item 34 Subsection 474(4) (before table item 1)
428. This item inserts new item 1A (section 140RB) in the table at current
subsection 474(4) of the Migration Act after current item 1 of the table.
429. Current section 474 of the Migration Act provides that certain decisions under the
Migration Act, referred to as privative clause decisions, are final. Subsection 474(4)
provides for decisions under a provision that are not privative clause decisions, and
which are non-privative clause decisions by operation of subsection 474(6).
Subsection 474(2) of the Migration Act provides that a privative clause decision
means a decision of an administrative character made, proposed to be made, or
required to be made, as the case may be, under the Migration Act or under a regulation
or other instrument made under the Migration Act (whether in the exercise of a
discretion or not), other than a decision referred to in current subsection 474(4) or (5).
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430. The definition of non-privative clause decision in current subsection 474(6) of the
Migration Act is included to support current section 476A, which has the effect of
directing matters arising from decisions under provisions in the table under
subsection 474(4) to the Federal Circuit and Family Court of Australia (Federal
Circuit Court) and not the Federal Court. Subsection 476(3) provides that section 476
does not affect any jurisdiction that the Federal Circuit Court may have in relation to
non-privative clause decisions under section 8 of the Administrative Decisions
(Judicial Review) Act 1977 (AD(JR) Act) or section 44AA of the AAT Act. The
Federal Circuit Court has jurisdiction under the AD(JR) Act in relation to
non-privative clause decisions.
431. The amendment made by this item makes clear that a decision under new
section 140RB is not a privative clause decision.
Item 35 Subsection 474(4) (before table item 6)
432. Similarly, this item inserts new item 6A (section 245AYP) in the table at current
subsection 474(4) of the Migration Act after current item 6 of the table.
433. Current section 474 of the Migration Act provides that certain decisions under the
Migration Act, referred to as privative clause decisions, are final.
434. The amendment made by this item makes clear that a decision under new
section 245AYP is not a privative clause decision.
Division 2 Application provision
Item 36 Application of amendments
435. This item provides that the amendments of the Migration Act made by this Part apply
in relation to conduct (including an omission) engaged in before, on or after the
commencement of this Schedule.
436. The introduction of compliance notices as an additional compliance tool to deal with
conduct constituting a work-related offence or a contravention of a work-related
provision is intended to provide an alternative to court proceedings, in an effort to
encourage greater compliance by employers. Aside from the new work-related
offences and civil penalty provisions introduced in this Bill, the work-related offences
and work-related provisions in Subdivision C of Division 12 of Part 2 of the Migration
Act are long-standing, well-established provisions.
437. There is limited excuse for employers, labour hire intermediaries and other parties
involved in the employment of non-citizens to be unaware of these existing
provisions. The establishment of the Migrant Workers' Taskforce was preceded by a
significant number of high-profile cases revealing exploitation of migrant workers to
a concerning level. These cases were highlighted by government investigations, public
inquiries and media reports. Among other things, these cases exposed unacceptable
gaps in Australia's legal system designed to treat all workers equally, regardless of
their visa status.
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438. The Taskforce was set the specific task to identify proposals for improvements in law,
law enforcement and investigation, and other practical measures to more quickly
identify and rectify cases of migrant worker exploitation.
439. The introduction of compliance notices as an additional legislative tool under the
Migration Act, to deal with non-compliance with work-related provisions under the
Migration Act, is consistent with this approach. Compliance notices provide a
legislative basis and framework for the ABF to promote compliance by employers,
labour hire intermediaries and other persons with the work-related provisions of the
Migration Act.
440. The application of the amendments to the Migration Act by this Part to conduct
(including an omission) occurring before, on or after the commencement of the
Schedule ensures that the ABF has the necessary tools to deal effectively with
existing, and in some cases intractable, non-compliance with provisions of the
Migration Act that are intended to protect migrant workers, as well as Australia's
reputation as a destination of choice.
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Part 6 Other amendments
Main amendments
Migration Act 1958
Item 37 Subsection 116(1A)
441. This item amends section 116 (Power to cancel) of the Migration Act by repealing
current subsection 116(1A) and substituting it with new subsections 116(1A) and
(1B). This will allow the Governor-General to prescribe matters to which the Minister
must, may or must not, have regard in determining whether the Minister is satisfied
of certain matters relevant to the cancellation of visas, and to specify the weight to be
given to any such matters.
442. For example, this will allow measures such as the Assurance Protocol, which is an
administrative arrangement between the FWO and the Department, to be codified in
the regulations. Codifying the Assurance Protocol will give additional assurance to
migrant workers that they can seek help without fear of visa cancellation, even if they
have breached their work-related visa conditions. The terms and conditions of the
Assurance Protocol are subject to consultation before they are prescribed under new
subsection 116(1A) to ensure they are holistic and robust, while maintaining visa
program integrity.
New subsections 116(1A) and (1B)
443. New subsection 116(1A) provides that the regulations may do any one or more of the
following:
• prescribe matters to which the Minister must, or must not, have regard in
determining whether the Minister is satisfied as mentioned in a paragraph of
current subsection 116(1) or (1AC) or current subsection 116(1AA) or (1AB);
or
• prescribe matters to which the Minister may have regard in determining whether
the Minister is satisfied as mentioned in a paragraph of current subsection 116(1)
or (1AC), or current subsection 116(1AA) or (1AB); or
• specify the weight to be given to a matter prescribed under current
paragraph 116(1A)(a) or (b).
444. New subsection 116(1B) provides that new subsection 116(1A) does not limit the
matters to which the Minister may have regard in determining whether the Minister is
satisfied as mentioned in a paragraph of subsection 116(1) or (1AC), or
subsection 116(1AA) or (1AB).
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Current subsections 116(1A), (1AA), (1AB) and (1AC)
445. Current subsection 116(1A) of the Migration Act provides that the regulations may
prescribe matters to which the Minister may have regard in determining whether he
or she is satisfied as mentioned in current paragraph 116(1)(fa), and that such
regulations do not limit the matters to which the Minister may have regard for that
purpose.
446. Current paragraph 116(1)(fa) provides that the Minister may cancel a student visa if
he or she is satisfied that a student visa holder: is not, or likely to not be, a genuine
student; or has engaged, is engaging, or is likely to engage, while in Australia, in
conduct (including omissions) not contemplated by the visa.
447. Current subregulations 2.43(1C) and (1D) of the Migration Regulations, which are
made under subsection 116(1A) of the Migration Act, will continue to be supported
by new subsection 116(1A).
448. Current subsection 116(1AA) provides that, subject to subsections 116(2) and (3), the
Minister may cancel a visa if he or she is not satisfied as to the visa holder's identity.
449. Current subsection 116(1AB) provides that, subject to subsections 116(2) and (3), the
Minister may cancel a visa if he or she is satisfied of certain matters relating to
incorrect information.
450. Current subsection 116(1AC) provides that, subject to subsections 116(2) and (3), the
Minister may cancel a visa if he or she is satisfied of certain matters relating to the
asking, receiving, offering or providing of a benefit in return for the occurrence of a
'sponsorship-related event' as defined in current subsection 245AQ.
Current subsections 116(2) and (3)
451. Current subsection 116(2) provides that the Minister is not to cancel a visa under
subsection 116(1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in
which a visa is not to be cancelled.
452. Current subsection 116(3) provides that if the Minister may cancel a visa under
subsection 116(1), (1AA), (1AB) or (1AC), the Minister must do so if there exist
prescribed circumstances in which a visa must be cancelled.
Item 38 After subsection 140RA(2)
453. This item amends current section 140RA (Enforceable undertakings) of the Migration
Act by inserting new subsections 140RA(2A), (2B) and (2C).
Authorised person
454. Current subsection 5(1) of the Migration Act provides that the expression authorised
officer, when used in a provision of the Migration Act, means an officer authorised in
writing by the Minister, the Secretary of the Department of Home Affairs or the
Australian Border Force Commissioner for the purposes of that provision.
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455. New subsection 140RA(2A) provides that the Minister may, in writing, delegate the
Minister's powers and functions under Part 6 of the Regulatory Powers Act to an
authorised officer in relation to the provision mentioned in subsection 140RA(1).
456. New subsection 140RA(2B) provides that the Minister may delegate a power or
function under new subsection 140RA(2A) only if the Minister is satisfied that the
authorised officer has appropriate qualifications, training or experience to exercise the
power or perform the function. Consistent with new subsection 245ALA(4), new
subsection 140RA(2B) has the effect of limiting the general delegation power in
subsection 140RA(2A), ensuring that matters relating to the experience, qualifications
and training of an authorised officer must be taken into account when the Minister
exercises the delegation power in subsection 140RA(2A).
457. New subsection 140RA(2C) provides that an authorised officer exercising powers or
performing functions under a delegation under new subsection 140RA(2A) must
comply with any directions of the Minister.
458. In general, the delegation of the Minister's powers and functions under Part 6 of the
Regulatory Powers Act in relation to current section 140H (Sponsorship obligation--
general), which is an enforceable provision, will be confined to members of the
Department's SES, or ABF officers at Commander level or higher. While new
subsection 140RA(2A) does not expressly include this limitation, the alternative
requirement to consider matters of experience, qualifications and training is
appropriate in order to provide necessary flexibility to allow for the Minister to
delegate the Minister's powers and functions to certain authorised officers below these
levels in certain circumstances - but only where the Minister is satisfied, as required
by new subsection 140RA(2B), that the authorised officer has the appropriate
qualifications, training or experience to exercise the power or perform the function
and will only exercise the delegated powers and perform the functions as directed by
the Minister.
459. The combined effect of new subsections 140RA(2A), (2B) and (2C) is to ensure there
is appropriate flexibility in the legislation to accommodate future structural changes
in the Department and ABF, where certain functions might be assigned to
appropriately qualified, experienced authorised officers at management levels below
SES or Commander. It is foreseeable, for example, that responsibility for enforceable
undertakings might be appropriately assigned to a superintendent in the ABF who has
also been delegated other functions and powers as the authorised officer centrally
responsible for ABF operations relating to sponsor monitoring and enforcement under
Subdivision C of Division 3A of Part 2 of the Migration Act.
460. The purpose of these amendments is to ensure that there is consistency in the
Migration Act in relation to the delegation of the Minister's powers and functions
under Part 6 of the Regulatory Powers Act, as they relate to amended section 140RA,
and new section 245ALA.
Item 39 Section 235
461. This item repeals current section 235 (Offences in relation to work) of the Migration
Act.
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462. Current subsection 235(1) of the Migration Act provides that a non-citizen commits a
strict liability offence if the temporary visa held by the non-citizen is subject to a
prescribed condition restricting the work that the non-citizen may do in Australia and
the non-citizen contravenes that condition.
463. Current subsection 235(3) of the Migration Act provides that an unlawful non-citizen
commits a strict liability offence if the unlawful non-citizen performs work in
Australia whether for reward or otherwise.
464. Current subsection 235(4) of the Migration Act provides that a non-citizen commits a
strict liability offence if there is a criminal justice certificate or a criminal justice stay
warrant about the non-citizen and the non-citizen does certain work in Australia,
whether for reward or otherwise.
465. The repeal of current section 235 of the Migration Act is intended to have the principal
effect of preventing an employer from arguing that a migrant worker is not entitled to
the same workplace protections as other workers in Australia because of their
immigration status or right to work, and to encourage increased reporting of employer
non-compliance with workplace laws (exploitation). The existence of section 235 has
resulted in findings that certain contracts for or of service entered into by migrant
workers are void for illegality and thereby enabling some employers to abrogate their
obligations to provide safe and fair workplaces. Section 235 has also been cited as a
reason temporary migrants refrain from reporting exploitation in the workplace.
Item 40 Subsection 245AA(4)
466. This item amends current section 245AA of the Migration Act by repealing
subsection 245AA(4).
467. Current subsection 245AA(4) of the Migration Act provides that section 235 also
contains offences relating to work by an unlawful non-citizen and a non-citizen in
breach of a visa condition. The repeal of current subsection 245AA(4) is a
consequential amendment necessitated by the repeal of section 235.
Item 41 At the end Subdivision C of Division 12 of Part 2
468. This item inserts new section 245APA (Effect of this Subdivision on the validity of
certain contracts is to be disregarded) into the Migration Act.
469. New subsection 245APA(1) provides that, for the purposes of a relevant workplace
law, any effect of Subdivision C of Division 12 of Part 2 on the validity of a contract
of service, or the validity of a contract for services, is to be disregarded.
470. New subsection 245APA(1) is intended to complement the repeal of current
section 235 of the Migration Act by preventing an employer from arguing that a
migrant worker is not entitled to the same workplace protections as other workers in
Australia because of their immigration status or right to work, and to encourage
increased reporting of employer non-compliance with workplace laws (exploitation).
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471. New subsection 245APA(1) is intended to support migration program integrity only
and is not intended to influence the interpretation of other laws. However, new
subsection 245APA(1) may affect the application of some laws to non-citizens whose
contracts of service, or contracts for services, might have otherwise have been found
invalid for illegality because of the provisions in Subdivision C of Division 12 of
Part 2 of the Migration Act.
472. New subsection 245APA(2) defines relevant workplace law to mean:
• another law of the Commonwealth (other than the Fair Work Act) that regulates
the relationships between the parties to a contract of service or a contract for
services in relation to the performance of work; or
• a law of a State or Territory that regulates the relationships between the parties
to a contract of service or a contract for services in relation to the performance
of work;
• and includes a law dealing with occupational health and safety matters and a law
dealing with workers' compensation.
473. A signpost to this definition is inserted into current subsection 5(1) of the Migration
Act. The term relevant workplace law is also used in new section 245AYF and new
section 245AYG.
Contingent amendment
Migration Act 1958
Item 42 At the end of subsection 245APA(2)
474. This item adds a note at the end of new subsection 245APA(2). The note states:
Section 40B of the Fair Work Act 2009 also provides that for the purposes of
that Act, any effect of this Act, or an instrument made under this Act, on the
validity of a contract of employment, or a contract for services, is to be
disregarded.
475. The reference to section 40B is a reference to the proposed section to be inserted into
the Fair Work Act by item 1 of Schedule 1 to the Fair Work Legislation Amendment
(Protecting Worker Entitlements) Bill 2023. Proposed new section 40B provides that,
for the purposes of the Fair Work Act, any effect of the Migration Act, or an
instrument made under that Act, on the validity of a contract of employment, or the
validity of a contract for services, is to be disregarded. Proposed new section 40B
would ensure that migrant workers working in Australia would be entitled to the
benefit of the Fair Work Act regardless of immigration status (Explanatory
Memorandum to the Fair Work Legislation Amendment (Protecting Worker
Entitlements) Bill 2023, paragraph 4).
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476. This item will commence on the later of immediately after the commencement of the
Migration Amendment (Strengthening Employer Compliance) Act 2023 and
immediately after the commencement of Schedule 1 to the Fair Work Legislation
Amendment (Protecting Worker Entitlements) Act 2023. However, this item will not
commence at all if Schedule 1 to the Fair Work Legislation Amendment (Protecting
Worker Entitlements) Act 2023 does not commence.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Migration Amendment (Strengthening Employer Compliance) Bill 2023
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Migration Amendment (Strengthening Employer Compliance) Bill 2023 (the Bill)
amends the Migration Act 1958 (the Migration Act) to strengthen the Government's
response to the exploitation of migrant workers in Australia by targeting employers and
third party providers who misuse visa programs to exploit temporary migrant workers. It
also implements Recommendations 19 and 20 from the Report of the Migrant Workers'
Taskforce (the Taskforce Report).
At the Jobs and Skills Summit in September 2022, the Government made a commitment to
bring forward a package of reforms to address migrant worker exploitation and implement
the recommendations of the Taskforce Report - an election commitment.
The Taskforce Report was released in 2019 and is available at:
https://www.ag.gov.au/industrial-relations/migrant-workers-taskforce.
The Department of Home Affairs is the lead agency responsible for implementing:
Recommendation 19: It is recommended that the Government consider
developing legislation so that a person who knowingly unduly influences,
pressures or coerces a temporary migrant worker to breach a condition of their
visa is guilty of an offence; and
Recommendation 20: It is recommended that the Government explore
mechanisms to exclude employers who have been convicted by a court of
underpaying temporary migrant workers from employing new temporary visa
holders for a specific period.
This Bill implements Recommendations 19 and 20, and strengthens existing compliance
mechanisms and sanctions available under the Migration Act.
The Bill primarily strengthens the regulatory framework available under the Migration Act
for general employers of temporary migrant workers, that is, where the migrant worker's
visa has not been sponsored by an employer. This includes, for example, employers of
international students, temporary graduate visa holders, working holiday makers, and
some bridging visa holders and provisional visa holders. The Bill also increases the
penalties available under the Employer Sponsorship Framework in the Migration Act This
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Framework regulates the specific obligations of those employers who sponsor the visa of
non-citizens for the purpose of filling certain labour gaps.
The Bill strengthens tools to better achieve employer compliance and enhances the
protection of temporary migrant workers from unscrupulous employers. The measures
also support visa program integrity by addressing the misuse of visa programs, or visa
rules, to exploit temporary migrant workers. The national workplace relations system,
including the Fair Work Act 2009 (Fair Work Act) and the Fair Work Regulations 2009,
remains the primary legislation that establishes a safety net of minimum entitlements
and conditions of employment for employees in Australia, regardless of a person's
immigration status. The amendments of the Migration Act in this Bill complement
existing protections for vulnerable workers in the Fair Work Act.
The Department of Employment and Workplace Relations remains the lead agency
responsible for policies that promote fair, productive, flexible and safe workplaces, and
the Fair Work Ombudsman continues to lead on compliance and enforcement activities
under the Fair Work Act.
The Bill includes five key elements:
• new criminal offences and associated civil penalty provisions for using a
person's migration status to exploit them in the workplace;
• a mechanism to prohibit employers that have engaged in deliberate, repeated or
serious non-compliance with relevant migration and workplace-related laws,
from accessing temporary migrant workers for a period of time;
• increases to the maximum criminal and civil penalties for existing work-related
breaches under the Migration Act;
• new compliance tools to better support the Australian Border Force (ABF) to
respond proportionately to cases of non-compliance; and
• measures to support the reporting of exploitation, including repeal of section 235
of the Migration Act, which makes it a criminal offence to breach a work-related
visa condition, the insertion of an avoidance of doubt clause for remaining work-
related offence provisions in the Migration Act to resolve unintended
consequences associated with breaches of work-related visa conditions, and the
introduction of a power to permit the Migration Regulations 1994 (the
Regulations) to prescribe matters to be taken into account in a decision whether
or not to cancel a visa under section 116 of the Migration Act, with the aim of
protecting exploited temporary migrant workers from visa cancellation.
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These new measures are outlined below.
New offences
The Bill establishes criminal offences and associated civil penalty provisions for a
person who coerces or unduly influences or pressures:
• a lawful non-citizen to work in breach of a work-related visa condition, or
• an unlawful non-citizen to accept or agree to a work arrangement to avoid an
adverse effect on their continued presence in Australia
• a lawful non-citizen to accept or agree to a work arrangement in order to:
o meet a work-related visa requirement, or
o avoid an adverse effect on their status as a lawful non-citizen.
The first offence relates to coercing or exerting undue influence or pressure on a lawful
non-citizen to breach work-related visa conditions. This offence would arise where a
person coerces, or exerts undue influence or undue pressure on a lawful non-citizen to
accept or agree to a work arrangement that would involve a breach of a work-related
condition1 that applies to that lawful non-citizen's visa.
The second and third offences relate to coercing or exerting undue influence or pressure
over a non-citizen to accept exploitative work arrangements by using migration rules. This
offence would arise where a person coerces, or exerts undue influence or undue pressure
over a non-citizen to accept or agree to a work arrangement in order to avoid an adverse
effect on the non-citizen's immigration status (for example, visa cancellation and
removal), or that would result in the noncitizen being unable to satisfy a work-related visa
requirement.2
The new offences are designed to be applied to an individual and/or business responsible
for the offence, as determined through legal proceedings.
The new offences are supplemented by civil penalty provisions. A civil penalty of 240
penalty units may be imposed as an alternative to criminal proceedings.
These offences and the associated civil penalty provisions provide a holistic response to
the issues that informed Recommendation 19 of the Taskforce Report.
The overarching aim is to address concerns that employers, labour hire intermediaries or
others in the employment chain might use the nature of the migrant's visa status to exploit
them in the workplace. The Taskforce Report outlined the reasoning behind
Recommendation 19:
1
A work-related condition is a condition that either prohibits the holder of a visa from working in Australia, or restricts the work that
the holder of a visa may do in Australia.
2
A work-related visa requirement means a requirement under the Migration Act or the Migration Regulations for a non-citizen to
provide information or documents about work the non-citizen has undertaken in Australia. This could be in connection with the visa
the non-citizen currently holds, or a future visa application.
82
"In the case of international students, there have been cases where employers have
persuaded students to work longer hours than permitted under their visa
restrictions. Underpayment of wages can have this effect if the student needs to
earn a certain income. However, some employers have coerced students into
accepting lower wages on the threat of referring them to the immigration
authorities for breaching their hours' restriction ... "3
The Taskforce Report also noted:
"The three month qualifying period working holiday makers need to meet in order
to be able to obtain a second year on their visa is also alleged to have had
unintended consequences. It is suggested this has allowed unscrupulous employers
to exploit temporary migrant workers. An employer can use the power this
restriction provides by rationing work and seeking other benefits before signing off
on its completion. Changes to the evidence backpackers can provide to support
their claim to have worked the required period are likely to have eased this
problem, but concerns are still being raised by backpackers about these issues ... "4
Media reports also highlighted the need for reform to prevent a person's migration status
being used to exploit them in the workplace. Some of those reports include:
• Ady moved to Australia for a better life. It took him years to realise his employer
was exploiting him5
• Australia's largest broccolini farmer was fined for hiring unlawful workers. Now
it's being sued by labourers By Simone Fox Koob6
• As migration returns to Australia, advocates call for more protections for exploited
workers By Emilia Terzon7
• Half of migrant workers in Australia feel unsafe at work, survey finds By
Stephanie Convey8
• 'No end to this': six visas, six migration agents, four jobs in regional Australia and
still no permanent residency By Aaron Smith9
3
Taskforce Report p. 122
4
Ibid p. 122
5
Published 5 December 2022: https://www.sbs.com.au/news/article/ady-moved-to-australia-for-a-better-life-it-took-him-years-to-
realise-his-employer-was-exploiting-him/4k8y1d6hq
6
Published 21 February 2023: https://www.smh.com.au/business/workplace/australia-s-largest-broccolini-farmer-was-fined-for-hiring-
unlawful-workers-now-it-s-being-sued-by-labourers-20230220-p5clw0.html
7
Published 1 March 2023: https://www.abc.net.au/news/2023-03-01/wage-theft-migrant-exploitation-visa-immigration-
policy/102025028
8
Published 20 March 2023: https://www.theguardian.com/australia-news/2023/mar/20/half-of-migrant-workers-in-australia-feel-
unsafe-at-work-survey-finds
9
Published 3 April 2023: https://www.theguardian.com/australia-news/2023/apr/03/no-end-to-this-six-visas-six-migration-agents-four-
jobs-in-regional-australia-and-still-no-permanent-residency.
83
In drafting the new offences, there was consideration of existing legislative provisions that
create offences of coercion, undue influence and undue pressure, and a recognition that
there were limitations and gaps in the existing provisions. For example:
• The Migration Act includes provisions to sanction a person for allowing (section
245AC) or referring (section 245AEA) a non-citizen to work in breach of a
condition of their visa. However, these provisions do not specifically address the
issue of an employer or other person unduly influencing, pressuring or coercing
the non-citizen to do so. The existing provisions also fail to address the behaviour
of unscrupulous employers who might use other provisions in the Migration Act,
such as work related visa requirements (for example, the requirement for
working holiday maker visa holders to engage in 'specified work' in order to
meet the requirements for a second or third visa), to exploit a non-citizen
employee.
• The Fair Work Act includes provisions that prohibit undue influence (section
344) and coercion (section 343). However, those provisions do not specifically
address the issue of employers using the threat of an adverse effect on a person's
immigration status to exploit migrant workers.
• The Criminal Code Act 1995 (Criminal Code) also has provisions to address the
issue of 'coercion'; however, it sets a higher standard than that which may be
covered by 'influence or pressure'. Based on stakeholder consultation, it was
agreed that there may be aggravated cases that warrant the pursuit of a penalty
(criminal or civil, depending on the circumstances of the case) that do not fall
within the current remit of the Criminal Code.
• The Criminal Code also includes an offence (section 11.4) for a person to urge
the commission of an offence (i.e. incitement). However, the rules and penalties
around incitement mean that it is considered a lesser offence. The aim of this
new offence is to penalise the act of coercion, influence or pressure, not the
migrant worker, so section 11.4 is unlikely to adequately address the issue.
The proposed offences seek to address these gaps.
84
Prohibition on certain employers allowing additional non-citizens to begin work
The Bill establishes a mechanism to prohibit an employer from allowing, for a
specified period, any additional temporary migrant workers to work, if the employer
is subject to a 'migrant worker sanction' because:
• the employer is convicted of a work-related offence against the Migration Act
• a court makes an order against the employer in relation to the treatment of a
migrant worker in contravention of:
o a work-related provision in the Migration Act, or
o a specified provision under the Fair Work Act, including a failure to comply
with a compliance notice issued for alleged contraventions of certain
provisions, or
o an offence relating to slavery, slavery-like practices or trafficking in persons
under Division 270 or 271 of the Criminal Code, or
o a relevant offence or civil penalty provision prescribed by the regulations.
• the employer has been barred from sponsoring migrant workers through the
Migration Act's Employer Sponsorship Framework
• the employer has failed to comply with a compliance notice issued under the Fair
Work Act for alleged contraventions of certain provisions or failed to comply with
the terms of an enforceable undertaking reached with the Fair Work Ombudsman
under the Fair Work Act
The measures in the Bill that support the prohibition include:
• a defined set of circumstances that trigger the consideration of whether to declare
a person to be a prohibited employer, namely where the employer is subject to a
migrant worker sanction as defined in new sections 245AYE-245AYJ
• a process that allows the employer to show cause as to why they should not be
prohibited from employing additional temporary migrant workers
• a requirement to publish information about the prohibited employer
• additional reporting requirements for the employer for 12 months following the
prohibition
• review rights
• consequences for failing to comply with the prohibition.
Circumstances that trigger consideration of the prohibition:
The circumstances in which the Minister or the Minister's delegate may declare an
employer to be a 'prohibited employer' under this new mechanism are set at a high
threshold. They involve the highest-level sanction available under the Employer Sponsor
Framework, an adverse outcome from court proceedings, a failure to comply with notices
issued by the Fair Work Ombudsman or failing to comply with an agreement entered into
with the Fair Work Ombudsman to rectify non-compliance with the Fair Work Act.
The circumstances that trigger consideration of the prohibition are aimed at employers
with a history of deliberate, repeated or serious non-compliance with relevant laws and
85
obligations in their treatment of migrant workers. It aims to target employers that have a
disregard of their employment obligations and the law, as well as deter those who are
considering exploiting temporary migrant workers as a means of sourcing an artificially
cheap workforce.
Examples where the prohibition might apply include:
• an employer who breaches the Employer Sponsorship Framework for failing to
provide terms and conditions that are equivalent to an Australian worker in the
same position (i.e. the market rate, as required under Sponsorship Obligations)
• an employer who is found to have coerced a non-citizen by using migration rules
(one of the new offences in response to recommendation 19 of the Taskforce
Report)
• an employer who requires a migrant worker to give some of their pay back to the
employer (or another person), where this behaviour results in the employer being
subject to a court order under the relevant provision of the Fair Work Act
• an employer who is found to have deceptively recruited a non-citizen for labour
or services.
The Bill also makes provision for a prohibition to be considered in relation to a relevant
offence or civil penalty provision that would be prescribed by the regulations. The
inclusion of this mechanism is to allow the prohibition framework to be adaptive to
potential future provisions in legislation, such as the Fair Work Act, that protect some of
the most vulnerable in society. This mechanism ensures the Government can be responsive
to new issues relevant to workplace exploitation as they manifest.
This measure responds holistically to the issues and concerns that underpin
Recommendation 20 of the Taskforce Report, which found there were opportunities to
extend the existing 'bar' available under the Employer Sponsor Framework, which
prevents employer sponsors from sponsoring non-citizen employees for work related visas
where they have breached their sponsorship obligations.
It is a privilege to be able to sponsor a worker to come to Australia. For migrant workers,
relocating to a new country brings with it a range of inherent risks and opportunities.
Through their relocation, migrant workers move away from their support networks, and
they may need to adapt to a new language and regulatory environment, unfamiliar laws,
rights and obligations. When employers sponsor migrant workers to come to Australia,
they have an obligation to provide appropriate supports for that migrant worker and to
fulfil their workplace obligations. Where employers have been found to have engaged in
serious, deliberate or repeated non-compliance, they should be excluded from the
opportunity to employ additional migrant workers, whether sponsored or not sponsored,
for a specified period.
The aim of the prohibition is to protect temporary migrant workers from unscrupulous
employers. It also seeks to deter unscrupulous employers from engaging in deliberate,
repeated or serious forms of non-compliance with relevant laws and obligations.
Employers and third party providers who have been found to have misused Australia's
migration program, and engaged in serious breaches of their obligations when employing
temporary migrant workers, will be prevented from being able to use the migration
86
program to fill labour needs for a specified period. In doing so, the new provision builds
on the existing 'bar' available under the Employer Sponsorship Framework.
Show cause processes
The Bill provides that before the Minister, or delegate, declares a person to be a prohibited
employer, the Minister must give the person a written notice:
• stating that the Minister proposes to make such a declaration, and giving the
reasons for it, and
• inviting the person to make a written submission to the Minister, setting out
reasons why the Minister should not make the declaration.
This gives the employer an opportunity to respond to the notice and outline any
extenuating circumstances to be considered as part of that decision making process.
The employer will be given a minimum of 28 days to respond to the Minister.
The Minister must consider any written submission made by the person that is received by
the Minister within the time provided. The Minister must also consider any criteria
prescribed by regulations made for the purposes of this provision.
The criteria to be considered by the Minister when deciding whether to make a declaration
will be prescribed by the Regulations and may include consideration of:
• past and present conduct of the employer in their engagement with relevant
government agencies
• the employer's history of non-compliance and whether the non-compliance is
recurring
• the nature and seriousness of the contravention(s) that gave rise to the
consideration of a prohibition
• the impact on the migrant worker
• any extenuating circumstances outlined by the employer, including the impact
the prohibition would have on the ongoing viability of the business and how that
might impact existing workers and the broader community.
Requirement to publish
The Minister will be required to publish the details of prohibited employers on the
Department's website, subject to some exceptions that may be provided in the
Regulations.
The publication of information relating to prohibited employers provides transparency to
existing and prospective migrant workers and the Australian community generally. It
visibly demonstrates that the Minister will take action to protect vulnerable migrant
workers from unscrupulous employment practices. It will also act as a deterrent to other
employers.
The details included on the website will be limited to those details necessary to support the
prohibition, including:
• details relating to the prohibited employer,
87
• the contravention(s) that gave rise to the prohibition, and
• the period during which the person is a prohibited employer (as determined by
the Minister depending on the circumstances of the case).
Much of the information to be published will have already been publicly available through
the publication of court findings, or entries on the ABF Register of Sanctioned Employers.
Where the information is not already publicly available, such as in circumstances of non-
compliance with a compliance notice, the limited details listed above will be published for
transparency, for the awareness of temporary migrant workers and to act as a deterrent to
other employers.
The Department commissioned a Privacy Impact Assessment to support this publication
process to ensure privacy concerns are addressed. Procedures will be considered carefully
to adhere to the recommendations of that assessment. As recommended, the Department's
website will contain an explanation of the framework relating to the Ministerial
prohibition and publication processes, as well as the existence of review processes.
Additional reporting obligations
When an employer's prohibited employer status ends, that employer will be subject to
certain additional reporting requirements for a period of 12 months.
During that 12-month period, the employer will be required to give the Department certain
information in relation to any new temporary migrant employees, including:
• the name of the temporary migrant worker,
• a description of the work for which the non-citizen is employed,
• if the non-citizen holds a visa that is subject to a work-related condition, the
details of the condition and a statement that the non-citizen will not be in breach
of that condition solely because of doing that work, and
• any other information prescribed by the Regulations.
The aim of the additional reporting requirements is to ensure the employer is aware of and
compliant with their obligations.
Review rights
The Bill provides for merits review by the Administrative Appeals Tribunal of the
decision to declare a person to be a prohibited employer.
Consequences for failing to comply
Contravention of the prohibition is a criminal offence with a penalty of up to 2 years
imprisonment or 360 penalty units or both, or a civil penalty of 240 penalty units.
The consequence of non-compliance with the additional reporting requirements is a civil
penalty of 48 penalty units.
Increases in pecuniary penalties
The Bill increases and aligns the maximum criminal and civil pecuniary penalties for
all equivalent current and proposed work-related offences and provisions to match
88
existing penalties for unlawfully obtaining a benefit from visa sponsorship, as well as
increasing penalties for aggravated offences in a commensurate way.
The Bill proposes to increase pecuniary penalties across the work-related civil penalty
provisions and related offences in the Migration Act and for approved work sponsors who
fail to satisfy a sponsorship obligation under the Sponsorship Obligations Framework in
the Migration Act and Regulations.
The work-related civil penalty provisions in the Migration Act currently attract a
pecuniary penalty of 90 penalty units (for individuals). The civil penalty for breaching
sponsorship obligations is set at 60 penalty units.
The Bill increases all of these pecuniary penalties to 240 penalty units (for individuals).
While the civil penalty for breaching a sponsorship obligation is increased to 240 penalty
units for an approved work sponsor, this remains at 60 penalty units for any other case
(noting the Sponsorship Framework in the Migration Act also extends to family sponsors,
who are not affected by these amendments).
This aligns the civil penalties for work-related civil penalty provisions, and the
sponsorship obligations provision, with the higher penalties associated with the current
prohibitions in sections 245AR and 245AS of the Migration Act in relation to asking for
or receiving, or offering to provide or providing, a benefit in return for the occurrence of a
sponsorship-related event (paying for visa sponsorship provisions).
The alignment of the pecuniary penalties associated with these civil penalty provisions
demonstrates that the Government considers all contraventions of provisions relating to
the employment of non-citizens to be equally serious. It seeks to better address the
corrosive nature of migrant worker exploitation, and the misuse of Australia's Migration
Program by some employers.
For financial penalties to have a deterrent effect, they must be set at a level that deters
people from offending. The increase of civil penalties reflects the seriousness of the
relevant contravention and the impact of that contravention on the migrant worker directly
affected by it as well as the wider society. It also recognises the significant damage the
actions of a few unscrupulous employers or labour hire intermediaries can have on visa
program integrity and Australia's reputation as a destination of choice for migrant
workers.
The aim of the amendments to the penalty provisions and increases to penalty units is to
send a strong message to employers and third party providers that any contravention of the
laws relating to migrant workers constitutes a serious breach.
New compliance tools
The Bill provides additional tools to the Australian Border Force to encourage and
where necessary enforce compliance with work-related provisions in the Migration
Act.
The Bill proposes to give the ABF new tools to address issues of non-compliance
proportionately, and encourage greater levels of voluntary compliance. The tools are
modelled on those available to Fair Work Inspectors, to allow ABF officers to better tailor
89
their response to non-compliant behaviour without imposing a sanction, where
appropriate.
The two new tools to be enabled through this Bill are enforceable undertakings and
compliance notices.
Enforceable Undertakings
The Bill would establish arrangements for the Minister or the Minister's delegate to enter
into an enforceable undertaking (EU) with an employer, labour hire intermediary or other
party that has not complied with work-related provisions under the Migration Act. This
will include the new offences and civil penalty provisions to be introduced by the Bill, in
addition to the established offences and provisions in the Migration Act.
The amendments provide a mechanism to trigger standard provisions for EUs in the
Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act).
EUs are legally binding arrangements in which an employer agrees to address
contraventions and prevent future breaches. They are designed to secure quick and
effective remedies for contraventions of regulatory provisions.
Importantly, EUs provide the necessary flexibility to require a person to take specific
action - or refrain from a specific action - to address the underlying issues of non-
compliance, based on the circumstances of the case.
EUs are most effectively used for complex cases, where there may be systemic issues of
concern, and where the employer is voluntarily seeking to work with the Department to
rectify issues of non-compliance. They can offer an effective mechanism to improve
compliance outcomes as an alternative to prosecuting a case through the courts.
Currently under the Employer Sponsor Framework, the ABF is able to enter into an EU to
improve compliance outcomes. However, there is currently no option to use an EU for
employers not engaged in the 'employer sponsor' program. In order to improve
compliance outcomes, there may be circumstances in which an EU would provide an
effective tool to remedy non-compliance in cooperation with an employer.
For example, an EU might include an agreement in which the employer undertakes to:
• carry out an audit of all non-citizen employees to address any issues of non-
compliance associated with the employment of unlawful non-citizens
• provide to the ABF evidence of that audit - and information that demonstrates a
move towards compliance with work related obligations under the Migration Act
(e.g. details of non-citizen workers, their visa status and conditions and their
conditions of employment).
• provide to the ABF evidence that it has established procedures to support
ongoing compliance with work related provisions under the Migration Act.
Compliance notices
An 'Illegal Worker Warning Notice' (IWWN) is an existing type of administrative notice
that can be issued on the spot where an officer suspects that an employer may be
employing an unlawful non-citizen or a lawful non-citizen in breach of work-related visa
conditions.
90
The purpose of an IWWN is to:
• inform the recipient that they are suspected to have contravened a work-related
provision of the Migration Act, and
• provide information to the recipient about:
o migration laws relating to employing unlawful non-citizens, or
employing lawful non-citizens in breach of work-related visa conditions
o consequences of employing unlawful non-citizens, or employing lawful
non-citizens in breach of work-related visa conditions
o statutory defences available against alleged contraventions, such as
taking reasonable steps to check an employee's permission to work in
Australia
o services available to assist with the checking of visa validity and work
entitlements, such as the Visa Entitlement Verification Online (VEVO)
system.
An IWWN is an education tool, informing the employer that the Department suspects non-
compliance, and giving the employer the opportunity to remedy their suspected non-
compliant behaviour.
The introduction of compliance notice arrangements by the Bill would take that education
one step further and direct the employer to undertake certain actions - or refrain from
certain actions - to remedy the issue of non-compliance. Compliance notices may also
include a requirement for the person to produce reasonable evidence of compliance with
the notice. A compliance notice might direct an employer to:
• undertake an audit of all non-citizen employees to ensure they are not unlawful
non-citizens or working in breach of a work-related visa condition
• provide evidence of that audit - and their compliance with work-related
obligations under the Migration Act to the ABF (details of non-citizen workers,
their visa status and conditions and their conditions of employment).
Compliance notices provide a timely, non-punitive mechanism for the Department and the
ABF to address alleged contraventions of the work-related provisions of the Migration
Act.
A person who complies with a compliance notice is not taken to have admitted to
engaging in the conduct constituting the offence or contravention.
Where a person complies with a compliance notice, the Department is unable to
commence court proceedings against that person for the particular contraventions that are
the subject of the compliance notice, unless evidence of further non-compliance of those
contraventions is discovered. Where a person does not comply with a compliance notice, a
penalty will be triggered. Under the amendments, a failure to comply with a compliance
notice attracts a civil penalty of 48 units.
91
Additional measures to provide appropriate safeguards to temporary migrant
workers and encourage reporting
The Bill
• repeals section 235 of the Migration Act
• introduces an avoidance of doubt clause for remaining work-related offence
provisions, and
• introduces a power in the Migration Regulations to prescribe matters the Minister
may or must, or must not, take into account, and the weight to be given to those
matters, when considering the exercise of the visa cancellation power under section
116 of the Migration Act
The Bill proposes to repeal section 235 of the Migration Act, which makes it a criminal
offence for a temporary visa holder to work in breach of a visa condition that restricts
the work they may do in Australia, or for an unlawful non-citizen to work in Australia.
Prosecutions of non-citizens under section 235 have seldom been pursued and the
existence of the section has had adverse effects for non-citizens even when they have
not been prosecuted for this offence. Further, section 235 can act as a barrier to
temporary migrant workers voluntarily reporting exploitation for fear of being
prosecuted and/or removed from Australia.
The Government considers it appropriate to focus on non-compliance by employers,
through criminal offence and civil penalty provisions, rather than of the non-citizen in
these circumstances. Stakeholders have provided strong advocacy for the repeal of
section 235 because of the unintended consequences of the offence.
The proposed avoidance of doubt clause in Division 12 Subdivision C of the Migration
Act aims to resolve potential unintended adverse consequences for the non-citizen of
potentially rendering their contract of/for service invalid for possible contravention of
the provisions in Division 12 Subdivision C of the Migration Act. Aligned with the
amendment to repeal section 235, the underlying goal is to ensure that these provisions
do not inadvertently contribute to the abrogation of employer responsibility to provide
workplace rights and entitlements.
The Bill also proposes an enabling provision to be introduced to permit the Migration
Regulations to prescribe matters the Minister (or delegate) may or must, or must not, take
into account when considering the exercise of the visa cancellation power under section
116 of the Migration Act, as well as the weight to be given to those matters. Section 116
of the Migration Act provides a power to cancel a non-citizen's visa on certain grounds
and in certain circumstances, for example non-compliance with visa conditions. Except in
certain limited prescribed circumstances, the power to cancel a visa under section 116 is
discretionary. The enabling provision in the Bill will allow the Government to prescribe
matters that may or must, or must not, be taken into account when exercising the
discretionary power, and the weight to be given to a matter which is so prescribed. For
example, the Government may prescribe certified evidence of exploitation in the
workplace to be taken into account by the Minister or delegate when considering whether
or not to cancel a visa, with the intention that it be a reason for the visa of the non-citizen
who has been exploited not to be cancelled.
92
This amendment follows stakeholder feedback that the Assurance Protocol10 (a
commitment between the Department of Home Affairs and Fair Work Ombudsman that a
temporary migrant's visa will not be cancelled for breaching a work-related visa condition
if certain criteria are met) is not trusted amongst exploited migrant workers. Using this
new enabling power, the Government will be able to reflect the intent of the Assurance
Protocol in the Migration Regulations - that is, to prescribe matters to be taken into
account to ensure that a temporary migrant's visa will not be cancelled for breaching a
work-related visa condition if certain criteria are met. This would provide greater
transparency about the protections available to visa holders who want to report their
employers for exploitative work practices. The application of these protections will be
carefully developed to ensure an appropriate balance can be achieved that protects migrant
workers without unduly damaging the integrity of visa programs.
Human rights implications
These amendments engage the following rights:
• Right to work and the right to just and favourable conditions of work - Articles
6 and 7 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR)
• Right to freedom from slavery and servitude - Article 8 of the International
Covenant on Civil and Political Rights (ICCPR)
• Right to a fair trial and criminal process rights - Articles 14 and 15 of the ICCPR
• Right to privacy - Article 17 of the ICCPR
• Right to equality before the law and non-discrimination - Article 26 of the
ICCPR
• Rights relating to the expulsion of aliens - Article 13 of the ICCPR.
Rights relating to work and just and favourable conditions of work
The amendment engages Article 6(1) of the ICESCR, which states that:
The States Parties to the present Covenant recognize the right to work, which
includes the right of everyone to the opportunity to gain his living by work which
he freely chooses or accepts, and will take appropriate steps to safeguard this
right.
Article 7 of the ICESCR states:
The States Parties to the present Covenant recognize the right of everyone to
the enjoyment of just and favourable conditions of work which ensure, in
particular:
...
(b) Safe and healthy working conditions ...
10
The Assurance Protocol is available at https://immi.homeaffairs.gov.au/visas/working-in-australia/work-rights-and-exploitation and
https://www.fairwork.gov.au/find-help-for/visa-holders-migrants/visa-protections-the-assurance-protocol.
93
As outlined above, the amendments to the Migration Act include provisions to prohibit
certain employers, intermediaries or third party providers from allowing additional
temporary migrants to work for a specified period where there has been deliberate,
repeated or serious non-compliance with relevant laws by the employer, intermediary or
third party provider. This prohibition does not affect existing employees.
The intent of the new measure is to build on existing provisions available in the 'Employer
Sponsor' framework that give the Department the ability to 'bar' an employer sponsor
from engaging in the program for a specified period (under section 140M).
The effect of the prohibition for employer sponsors is to extend the bar, prohibiting the
employer from allowing other additional temporary migrants to work (i.e. employing them
directly or indirectly through a third party or some other means).11 The effect of the
prohibition for other employers (i.e. those not engaging in the employer sponsor program),
is that they will be prohibited from allowing any additional temporary migrant worker to
work for them.
Where an employer has been found to have engaged in serious, deliberate or repeated non-
compliance, this new measure prohibits that employer from allowing additional temporary
migrant workers to begin work - effectively protecting those workers from an
unscrupulous employer. It also prevents that employer from accessing the migration
program to meet labour needs for a specified period of time.
While this new measure may limit a temporary migrant worker's opportunity to work for a
certain business (as a prohibited employer is not allowed to employ additional temporary
migrants), the primary focus is the protection of the temporary migrant worker and
regulating the behaviour of the employer. The aim is to ensure employers will stop
engaging in exploitative work practices and misusing the migration program as an
alternative source of cheap or exploitable labour.
The employer is not obliged to cease the employment of any existing employees and those
existing employees (including those who are temporary migrant workers) can continue
working for the prohibited employer, if they choose to do so.
Importantly, the new measure does not:
• prevent those temporary migrant workers from seeking employment with
another employer; or
• affect the employment status of existing employees; or
• impose a penalty on a temporary migrant worker who chooses to commence
work with a prohibited employer during their prohibited period.
The Department will publish details of the prohibition to ensure existing (and prospective)
employees can make informed decisions about where they choose to work.
The Minister (or delegate) will be referred cases to consider imposing a prohibition based
on the following triggers:
that employer is convicted of a work-related offence against the Migration Act
11
Sponsored migrant workers are already accounted for under the existing bar.
94
a court makes an order against the employer in relation to the treatment of a migrant
worker in contravention of:
o a work-related provision in the Migration Act, or
o a specified provision under the Fair Work Act, including a failure to
comply with a compliance notice issued for alleged contravention of
certain provisions, or
o an offence relating to slavery, slavery-like practices or trafficking in
persons under Division 270 and 271 of the Criminal Code, or
o a relevant offence or civil penalty provision prescribed by the
regulations.
• an employer has been barred from sponsoring migrant workers through the
Migration Act's Employer Sponsorship Framework
• the employer has failed to comply with a compliance notice issued under the Fair
Work Act for alleged contraventions of certain provisions or failed to comply
with the terms of an enforceable undertaking reached with the Fair Work
Ombudsman under the Fair Work Act.
The proposal focuses on:
• those contraventions that are most serious in nature, including deliberate or
repeated non-compliance; and
• addressing a gap identified in the existing Employer Sponsorship Framework,
namely that an employer sponsor barred under section 140M can currently
employ other temporary migrant workers, even if they are barred from
sponsoring visas.
The prohibition may have some broader workforce impacts. For example, if an employer
is suffering labour shortages, and that employer is highly dependent on temporary migrant
workers to meet demand, the inability to employ additional temporary migrant workers
may have a negative impact on the existing workers (through workload pressures or the
ongoing viability of the business itself).12 While this could have unintended consequences
for existing workers, the ongoing viability and other impacts to the business can be
outlined for consideration in the Minister's decision whether or not to impose a
prohibition on the employer. The employer will have an ability to highlight these concerns
prior to a prohibition declaration being made through the 'show cause' process. This
allows the Minister to take these types of considerations into account when making a
decision.
By making the prohibition discretionary, and by providing procedural fairness through the
'show cause' process, the measure provides for a degree of flexibility to consider
individual circumstances (including potential implications for existing employees) before
applying the prohibition.
12
It is important to note that the employ can employ other workers, including Australian citizens and permanent residents. The
employer may need to consider how it can attract those other workers.
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The Bill aims to combat the misuse of Australia's migration program and the exploitation
of migrant workers. The prohibition measure and the other measures in the Bill seek to
protect temporary migrant workers from unscrupulous employers. In doing so, these
measures should positively enhance just and favourable working conditions for temporary
migrant workers by targeting employers who are non-compliant with their workplace
obligations or who are misusing the visa status of those workers to exploit them.
Under the new criminal offences, the amendments provide migrant workers with an
avenue to pursue employers who exert undue influence, pressure or coercion over them in
the workplace, including in relation to work-related visa conditions. It includes threats
relating to:
• a migrant worker's visa conditions or right to work,
• any future visa applications,
• the potential for a visa to be cancelled or refused, and
• removing the non-citizen from Australia.
The aim is to remove possible levers inherent in the temporary nature of a temporary
migrant's status in Australia, which unscrupulous employers might use in order to engage
in exploitative behaviour.
The repeal of section 235 and the introduction of an avoidance of doubt provision for
remaining work offences under the Migration Act further removes the ability of employers
to use a temporary migrant worker's status to engage in exploitation. In addition, the new
ability to prescribe matters that may or must be taken into account when exercising visa
cancellation powers under section 116 of the Migration Act is intended to ensure that
temporary migrant workers are better able to exercise their workplace rights. This is
because the Government intends to clarify the weight to be given to evidence of
exploitation when considering whether or not to cancel a person's visa, in line with the
existing Assurance Protocol and with the broader objective of making it easier for
exploited workers to report their employers without fear of this affecting their immigration
status in Australia.
The other measures included in the Bill are also broadly aimed at promoting the right of
migrant workers to enjoy just and favourable conditions in the workplace by ensuring
employers do not misuse the migration program as an alternative source of cheap and
exploitable labour.
The broad aim of the proposed legislative amendments is to ensure temporary migrant
workers are able to enjoy just and favourable and equitable conditions in the workplace.
Any impact on a person's ability to work for a particular employer that may result from a
prohibition aims to protect temporary migrant workers from exploitation. The prohibition
would not limit the worker's right to work for another employer or continue working for
the 'prohibited employer' if they chose to do so.
Rights relating to freedom from slavery and servitude
Article 8 of the ICCPR states:
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No one shall be held in slavery; slavery and the slave-trade in all their forms shall
be prohibited. No one shall be held in servitude. No one shall be required to
perform forced or compulsory labour...
Through the proposed criminal offences, this Bill seeks to address potential gaps in
existing laws that seek to address the issue of modern slavery.
As noted above, the intent of the new criminal offences is to ensure employers are not able
to use a temporary migrant worker's immigration status to exert undue influence, pressure
or coercion over them in the workplace. That is, they cannot coerce them into accepting
unfavourable conditions under threat of being reported to the Department of Home Affairs
or the Australian Border Force.
The new offences provide an avenue to pursue cases that do not meet existing thresholds
under the Criminal Code for prosecution through the courts.
In addition, the prohibition measure includes triggers that directly reference Division 270
and 271 of the Criminal Code, furthering the goal of protecting temporary migrant
workers from the serious offences of slavery, slavery-like practices and trafficking in
persons.
The measures in the Bill therefore promote the rights relating to freedom from slavery and
servitude.
Rights relating to a fair trial and criminal processes
The Bill introduces new criminal offences and new civil penalties. It also raises the
maximum pecuniary penalties for existing offences and civil penalty provisions relating to
the employment of migrant workers, and introduces new compliance tools.
These measures may engage the rights in Articles 14 and 15 of the ICCPR, including the
presumption of innocence (article 14(2)), the right not to be tried or punished twice for the
same offence (article 14(7)) and the guarantee against retrospective criminal laws (article
15(1)).
New criminal offences
The new criminal offence provisions are consistent with these rights. They:
• apply to conduct that occurs after the commencement of the provision,
• do not impose minimum sentences or penalties, and
• will be prosecuted in conformity with the normal criminal process guarantees,
including those relating to court proceedings and the use of evidence.
New civil penalty provisions
The Parliamentary Joint Committee on Human Rights Practice Note 2 notes that civil
penalty provisions may engage criminal process rights under Articles 14 and 15 of the
ICCPR, regardless of the distinction between criminal and civil penalties in domestic law.
When a provision imposes a civil penalty, an assessment is required as to whether it
amounts to a criminal penalty for the purposes of ICCPR.
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All of the new civil penalty provisions apply to contraventions by employers and labour
hire intermediaries, in the context of a regulatory framework, and do not apply to the
general public.
Some of the new civil penalty provisions are being introduced alongside a criminal
offence and serve as an alternative to prosecution. The availability of both civil and
criminal penalties allows for a graduated response to these practices, allowing flexibility to
discern whether a civil penalty, which does not attract the same consequences as a
criminal penalty, is more appropriate in a case than using the criminal offence.
For the civil penalty provisions that are alternatives to prosecution of the new criminal
offences relating to coercion and the new offence relating to contravening a prohibition,
the maximum penalty of 240 penalty units reflects the serious nature of the contravention
and the severity of the circumstances that lead to a prohibition being imposed.
If these new civil penalty provisions are considered as criminal in nature due to the
substantial pecuniary sanction, they may limit the right to presumption of innocence since
they involve the civil standard of proof and do not require proof of the person's state of
mind. The Government contends that any such limitations would be reasonable, necessary
and proportionate to the legitimate objective of preventing and deterring the exploitative
work practices of unscrupulous employers and labour hire intermediaries, which harm
vulnerable migrant workers and undermine the integrity of Australia's migration program.
It is a matter for the Court to decide the appropriate penalty depending on the
circumstances of the case before it.
The other new civil penalty provisions are set at a lower level because, while important,
the Government classifies them as general civil contraventions. These include
contraventions for:
• breaching the additional reporting obligations for (former) prohibited employers
• failing to comply with a compliance notice.13
As general civil contraventions, lower penalties apply. These civil penalty provisions
should not be considered criminal in nature, due to the lower penalties as well as their
regulatory/disciplinary context.
Prohibition measure
The prohibition on certain employers from employing additional temporary migrant
workers for a specified period may raise concerns about the right not to be tried or
punished twice for the same offence (article 14(7)). However, the Government contends
that the intent is not to 're-prosecute', 're-convict' or punish the employer for the same
offence / contravention, triggering the same penalties; rather it is to protect possible future
temporary migrant workers from an employer that has engaged in serious, repeated or
deliberate non-compliance in their actions against temporary migrant workers. In the
process, it also seeks to act as an additional deterrent to employers engaging in serious
contraventions in order to change non-compliant behaviour.
13
Compliance notices give an employer an opportunity to comply with their obligations without punishment. Where an employer
complies with a compliance notice, the Department is unable to commence court proceedings against that person for the particular
contraventions that are the subject of that compliance notice.
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The prohibition will prohibit a prohibited employer from engaging additional non-citizens
once they have been declared by the Minister to be a prohibited employer. The conduct
prohibited by the provision will not be the same conduct that resulted in the employer
being declared to be a prohibited employer.
The aim is to implement Recommendation 20 from the Taskforce Report, recognising the
policy intent to address the serious misuse of Australia's migration program, addressing:
• persistent issues of underpayment (exploiting migrant workers as a cheap
alternative source of labour) and other exploitative practices; and
• identified gaps in the existing regulatory framework, which includes a bar to
prevent employer sponsors engaging in the sponsorship program (currently
barred employer sponsors are not prevented from replacing sponsored
employees with other temporary migrant workers).
The prohibition will only be triggered by the most serious cases and it will come into
effect after a deliberation of the circumstances of the case, including consideration of any
additional information the employer would like considered through 'show cause'
processes. It therefore offers sufficient flexibility to consider individual circumstances and
treat cases differently. It is not intended as a limitation on the right not to be tried or
punished again for an offence.
Increasing pecuniary penalties for existing offences and civil penalty provisions
To the extent that increasing the pecuniary penalties for the existing civil penalty
provisions may result in these provisions also being considered to be more 'criminal' in
nature, the increase demonstrates the Government's commitment to taking the misuse of
migration rules to exploit a migrant worker seriously.
For financial penalties to have a deterrent effect, they must be set at a level that deters
people from offending. The increased civil penalties reflect the seriousness of the relevant
contravention and the impact of that contravention on the migrant worker directly affected
by it as well as the wider society. It also recognises the significant damage the actions of a
few unscrupulous employers or labour hire intermediaries can have on visa program
integrity and Australia's reputation as a destination of choice.
The Government contends that any consequent limitations on criminal process rights are
reasonable, necessary and proportionate to these legitimate objectives.
Rights relating to privacy
Article 17(1) of the ICCPR states:
No one shall be subjected to arbitrary or unlawful interference with his privacy,
family, home or correspondence, nor to unlawful attacks on his honour and
reputation.
Pursuant to Article 17(1) of the ICCPR, any interference with an individual's privacy must
have a lawful basis. In addition to requiring a lawful basis for limitation on the right to
privacy, Article 17 prohibits arbitrary interference with privacy. Interference which is
lawful may nonetheless be arbitrary where that interference is not in accordance with the
objectives of the ICCPR and is not reasonable in the circumstances.
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As outlined above, the proposed prohibition, which seeks to prevent certain employers
from employing additional temporary migrant workers for a specified period, includes
provisions that require the Minister to publish certain information on the Department's
website. The information that is required to be published includes:
• details of the prohibited employer,
• the contravention(s) that gave rise to the prohibition, and
• the period during which the person is a prohibited employer.
While the Bill does provide for some flexibility for the Minister to be able to prescribe in
the regulations the circumstances in which publication is not required, publishing the
details of the prohibition:
• supports the implementation of the prohibition, providing transparency for
employers, enforcement officials and prospective employees about the relevant
contravention and the prohibition;
• informs existing and potential employees of the relevant behaviour of their
employer;14 and
• deters other employers from engaging in non-compliant behaviour.
The intention is that the website will list the minimum details necessary for
implementation.
The publication of prohibited employers is similar to a number of existing schemes that
publish the details of sanctions, including:
• the 'Register of sanctioned sponsors' on the ABF website
• the 'Disciplinary decisions' register in the Office of the Migration Agents
Registration Authority pages of the Department of Home Affairs website
• the publication of litigation outcomes on the Fair Work Ombudsman's website
• the banned and disqualified people register on the Australian Securities and
Investments Commission's website
• the 'Food safety register of convictions' on the Victorian Department of Health's
website
• the Sport Integrity Australia Act 2020 (Cth) which allows for the publication of
a person's details following a sanction.
The Bill includes a number of processes to ensure that the prohibition only applies to the
most serious cases of non-compliance, incorporating processes to give the employer an
ability to 'show cause' as to why the prohibition should not apply, and review rights.
14
The aim is to ensure the prohibition is communicated publicly, via the Department's website, with links from the Visa Entitlement
Verification Online system, providing for maximum transparency to existing non-citizen workers and other non-citizens who might be
looking for employment opportunities.
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Much of the information to be published if an employer is declared to be a prohibited
employer will be have already been publicly available through the publication of court
findings, or entries on the ABF Register of Sanctioned Employers.
While there is no legislative requirement to remove the details of a prohibited employer
once the prohibition is no longer in effect, the aim is to ensure the details are removed as
soon as reasonably practicable.
The Government considers that the publication of the prohibited employers list would not
only be lawful, but reasonable and justified. The publication of the information is
proportionate to the overarching aim of protecting temporary migrant workers from
employers found to have engaged in serious, repeated or deliberate non-compliance with
workplace laws and obligations.
Rights relating to equality before the law and non-discrimination
Article 26 of the ICCPR states:
All persons are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
This Bill may engage the right to equality before the law and non-discrimination.
The measures in the Bill, particularly the prohibition on sanctioned employers from
employing additional temporary migrant workers, will operate in relation to certain non-
citizens only. They will not operate in relation to the employment of Australian citizens or
Australian permanent residents. While this represents a differentiation based on immigration
and citizenship status, these measures are consistent with the overarching intent of the Bill
to address the exploitation of migrant workers. The Report of the Migrant Workers'
Taskforce highlighted that there are a range of factors that make migrant workers
particularly vulnerable to unscrupulous practices at work. This includes many of these
workers having poor knowledge of their workplace rights, being young and inexperienced,
having low English language proficiency, and trying to fit in with cultural norms and
expectation of other people from their home countries. Through the differentiation, the Bill
seeks to enhance the right of temporary migrant workers to enjoy equitable conditions at
work, as they are more likely to be in a vulnerable employment position compared to
Australian citizen and permanent resident workers.
Noting the overarching intent, the Government believes this differentiation is reasonable,
necessary and proportionate to achieving legitimate aims.
Rights relating to the expulsion of aliens
Article 13 of the ICCPR states:
An alien lawfully in the territory of a State Party to the present Covenant may be
expelled therefrom only in pursuance of a decision reached in accordance with
law and shall, except where compelling reasons of national security otherwise
require, be allowed to submit the reasons against his expulsion and to have his
case reviewed by, and be represented for the purpose before, the competent
authority or a person or persons especially designated by the competent authority.
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As the cancellation of a visa held by a non-citizen lawfully in Australia can lead to
removal, the cancellation process as a whole can amount to expulsion as contemplated in
Article 13 of the ICCPR.
The Bill does not introduce any new visa cancellation powers or grounds, or make any
changes to review of visa cancellation decisions. Rather the Bill would introduce an
enabling provision to permit the Migration Regulations to prescribe matters the Minister
(or delegate) may or must, or must not, take into account when considering the exercise of
the discretionary visa cancellation powers under section 116 of the Migration Act, as well
as the weight to be attributed to those matters. If prescribed, the matters that would be
taken into account will be apparent on the face of the regulations, rather than being matters
of policy.
The Bill does not prescribe any such matters, but in the context of the measures included
in the Bill, the Government's intention is to reflect the existing protections available in
policy to encourage visa holders to report exploitation, and to provide assurance - under
specified circumstances - that they will not have their visa cancelled, even if they have
breached a work-related condition of their visa. It is therefore intended as a positive
measure for affected visa holders and would not lead to their expulsion.
The introduction of this enabling provision does not limit the rights in Article 13 of the
ICCPR. Any time that such matters are prescribed under this new power, they will be
accompanied by a Statement of Compatibility with Human Rights that will provide further
information about the matters being prescribed and the human rights implications of
prescribing those matters.
Conclusion
The measures included in the Migration Amendment (Strengthening Employer
Compliance) Bill 2023 are compatible with human rights as they protect the human rights
of vulnerable migrant workers in Australia. The measures strengthen employer compliance
and support the protection of migrant workers from worker exploitation. To the extent that
the proposed measures may limit human rights, those limitations are reasonable, necessary
and proportionate to the objective.
The Hon Andrew Giles MP
Minister for Immigration, Citizenship and Multicultural Affairs
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