Bills Digest no. 63 2012–13
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Ian McCluskey
Law and Bills Digest Section
4 February 2013
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Parliamentary consideration
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Date introduced: 19 September 2012
House: House of Representatives
Portfolio: Immigration and Citizenship
Commencement: Clauses 1, 2 and 3 - on Royal Assent. Schedule 1 - Proclamation or, if this has not occurred within six months of Royal Assent, the day after six months from Royal Assent.
Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.
The Bill implements all of the legislative recommendations contained in the Report of the 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007 (the Employer Sanctions Act), known as ’the Howells Review’.[1]
The Employer Sanctions Act addressed the issues of (i) unlawful non‑citizens working in Australia, together with (ii) lawful non-citizens in Australia who work in breach of their work rights. Following the Howells Review, this Bill seeks to further address these same issues.
The Bill adds to existing sanctions in the Migration Act 1958 (the Act) against employers and labour suppliers. [2] There is to be a set of civil penalty provisions, the breach of which may give rise to civil penalty orders. Existing criminal penalties are to be modified by this Bill.
It is envisaged that these additional sanctions will be invoked when persistent non-compliance occurs and/or where there are serious breaches of Australian immigration law by employers and labour suppliers.
It is intended that these additional sanctions will reduce the numbers of unlawful non-citizens working in Australia, together with the numbers of lawful non-citizens in Australia who work in breach of work limitations.
The Bill is made up of three covering clauses and a schedule, Schedule 1, which is divided into Part 1 (amendments to the Act) and Part 2 (application and transitional provisions). The most significant provisions are at item 24.
An outline of Schedule 1 follows:
- items 1-3: new entries in the definitions section in the Act
- items 4-12: changes to existing enforcement of sponsorship provisions[3]
- items 13-20: amendments to Part 2, Division 12, Subdivision C concerning offences and civil penalties in relation to work by non-citizens (proposed sections 245AA-245AP)
- items 21-23: changes to an existing provision concerning proof of certain matters in migration proceedings (section 271)
- item 24: the insertion of new Parts 8D and 8E (proposed sections 486R-487ZH) to cover civil penalties and investigation powers respectively
- items 25-28: changes to an existing provision concerning the conduct of directors, servants and agents (section 493) to refer to the new civil penalty provisions
- item 29: the insertion of a proposed section 506A, to allow regulations to be made allowing a person to pay a fine as an alternative to certain litigation taking place and
- items 30-33: application and transitional provisions.
The various provisions of Australian immigration law are largely contained in the Act and in regulations made pursuant to it, principally the Migration Regulations 1994.
All people in Australia are either Australian citizens or non-citizens. The latter are divided into lawful and unlawful non-citizens.[4] Lawful non-citizens may have either (i) full work rights, (ii) limited work rights, or (iii) no work rights at all. Unlawful non-citizens have no work rights.
The Report of the 1999 Review of Illegal Workers in Australia by the then Department of Immigration and Multicultural Affairs contained a number of recommendations. [5] One was that a system of sanctions be introduced to discourage recruitment of illegal workers. Another was that there be a range of offence and penalty provisions devised to reflect the relative seriousness of breaches of Australian immigration law by employers and labour suppliers.[6] Certain of these recommendations were given effect to by the Employer Sanctions Act, which inserted sections 245AA-245AK into the Act.[7] The key provisions in the Employer Sanctions Act commenced operation on 19 August 2007.
These new provisions criminalised persons who knowingly allowed unlawful non-citizens to work or who allowed lawful non-citizens to work in breach of work limitations attached to their visas. Referring such people to others for work was also made a criminal offence. An aggravated offence was committed when the worker was exploited, which is defined at section 245AH of the Act to occur when a person is in a condition of forced labour, sexual servitude or slavery in Australia.[8]
Melbourne Barrister Stephen Howells was engaged by the Minister for Immigration and Citizenship in March 2010 to review the operation of the Employer Sanctions Act. The report of this review (often referred to as the Howells Review) was presented to the Minister on 2 March 2011.[9]
Mr Howells considered the criminal sanctions regime had been ineffective as a deterrent to improper work hire practices.[10] He therefore recommended that civil penalty provisions with strict liability and maximum penalties of $10 000 should be introduced for employers who allow non‑citizens to work when they have no permission to do so. Mr Howells recommended that this should also apply to labour suppliers who refer such people to work. He considered that there should nevertheless be a statutory defence open to employers who make appropriate checks and take reasonable steps to ensure there is indeed permission to work. It was also recommended there be a system of infringement notices carrying a smaller fine.[11]
This Bill seeks to implement these recommendations of the Howells Report.
The Senate Standing Committee for the Scrutiny of Bills (the Committee) in its Alert Digest No. 12 of 2012 dated 10 October 2012 noted various features of the Bill.[12] Mention was made of various provisions reversing the burden of proof and the various strict liability provisions. The Committee also noted the abrogation of the privilege against self-incrimination, discussed below in this Digest. The Committee decided to leave to the Senate as a whole the question of whether the approach taken in the Bill to each one of these matters was appropriate.[13]
The Bill was tabled in the House of Representatives on 19 September 2012. The Minister for Immigration and Citizenship stated in his second reading speech:
The bill creates non-fault civil penalty provisions for allowing to work, or referring to a third person for work, unlawful non-citizens and non-citizens who do not have permission to work in Australia. It creates capacity to issue an infringement notice as an alternative to court proceedings under the civil penalty provisions. Note it will not be necessary to prove fault in an application for a civil penalty order.
The measures in this bill supplement a refocused, revamped employer education and awareness strategy; and the existing Illegal Worker Warning Notice scheme currently administered by the department.
Thus a tiered enforcement model is created by first informing and educating businesses on the requirement that only non-citizens with a visa permitting work are entitled to work.
Then, where departmental officers identify a business or employer who is not complying with the legislation, they will usually issue an Illegal Worker Warning Notice.
Subsequently infringement notices may be issued where repeated noncompliance with the legislation is detected.
Finally, proceedings for a civil penalty order or prosecutions for criminal offences may be pursued where persistent noncompliance occurs and/or where serious breaches of the legislation are detected.[14]
Debate was adjourned until 1 November 2012, when the Shadow Minister for Immigration and Citizenship stated that the Coalition would not be supporting the Bill.[15] He considered it to be an unreasonable regulatory burden to impose on Australian employers.[16] While agreeing that the exploitation of foreign workers was a serious issue[17], the Shadow Minister felt ‘the department has existing laws to do the job that is needed to ensure compliance in relation to migration’.[18]
The Report of the Howells Review noted that employer groups and small business representative organisations such as the Master Builders Association, the National Farmers Federation, the Australian Industry Group and the Australian Chamber of Commerce and Industry were all opposed to any additional sanctions and penalties on employers.[19] Their opposition was based upon concerns as to additional administrative burdens being placed on businesses. There was also concern about strict liability provisions leading to the imposition of penalties upon persons who inadvertently employed non-citizens in breach of Australian immigration law.[20] Similar concerns were expressed in submissions provided to the 1999 Review of Illegal Workers in Australia.[21]
The financial impact of these amendments is anticipated to be low. The Explanatory Memorandum states that the measures in the Bill are expected to raise $1.7 million in revenue over three years. The implementation costs are to be met from the Department of Immigration and Citizenship’s existing resources.[22]
As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act.[23] The Government considers that the Bill is compatible.
The Bill was examined by the Parliamentary Joint Committee on Human Rights in accordance with the provisions of the Human Rights (Parliamentary Scrutiny) Act.[24]
The Committee was concerned about the abrogation of the right against self-incrimination contained in proposed section 487C of the Act (inserted by item 24 of Schedule 1 to the Bill).[25] Proposed section 487C provides that a person is not excused from giving information or providing a document on the grounds that doing so might tend to incriminate the person or expose him or her to liability. However, such information or document is not to be admissible in evidence against the individual in almost all criminal proceedings and in civil proceedings other than ones in which a civil penalty order is sought under these new provisions.
The Committee was also concerned about the Statement of Compatibility not going into sufficient detail about certain strict liability and reverse burden offences contained in the Bill.[26] As recorded in its Fifth Report of 2012, the Committee proposed to write to the Minister setting out these concerns.[27] A letter was sent on 10 October 2012.
The Committee received a response from the Acting Minister on 20 October 2012.[28] The Acting Minister stated that the privilege against self-incrimination was abrogated in proposed section 487C because there were major difficulties involved in obtaining evidence from workers, leaving employers as the best source of relevant material. Retaining the right against self‑incrimination in these cases would mean an employer would be able to resist disclosing most or indeed all relevant documents and information. There are significant limits on the use of such information. It can only be used for (i) proceedings in which a civil penalty order is sought under the provisions contained in the Bill and (ii) limited offences under the Criminal Code relating to provision of false or misleading information and documents. The documents and information cannot be used for other purposes. The penalties payable under civil penalty orders are relatively small and the Acting Minister contended that the abrogation of the right against self-incrimination was legitimate, proportionate, reasonable and consistent with Australia’s human rights obligations.
The Acting Minister also referred to the Committee’s concerns about the lack of sufficient detail in the Statement of Compatibility as to strict liability and reverse burden offences. The Acting Minister advised that the Explanatory Memorandum provided the detail missing from the Statement of Compatibility. References in the Explanatory Memorandum were provided.
After considering the Acting Minister’s response, the Committee was satisfied that the Bill did not raise any human rights concerns.[29]
The Explanatory Memorandum accompanying this Bill contains a detailed explanation of every provision in the Bill. What follows is a reference to, and brief discussion of, the most significant provisions.
Items 13-20 in Schedule 1 to the Bill insert various new penalty provisions into the Act.
Proposed section 245AB of the Act, inserted at item 17, would make it an offence to allow or to continue to allow an unlawful non-citizen to work. Proposed subsection 245AB(2) provides that a person does not contravene this section if they have taken reasonable steps to verify that an employee is not an unlawful non-citizen. These reasonable steps can include using a computer system prescribed in the regulations.[30] The offence can lead to a maximum penalty of two years imprisonment, but it is required that there be actual knowledge or reckless indifference by the convicted person as to the unlawful status of the worker. A civil penalty of 90 penalty units can also be imposed on an individual.[31] Proposed subsection 486R(5), inserted at item 24, provides that the penalty for a corporation that contravenes a civil penalty provision must not be more than five times the specified penalty. As a result, a maximum penalty of 450 penalty units could be imposed on a corporation that breaches proposed section 245AB of the Act.[32] Proposed subsection 245AB(6) provides that a person who wishes to rely on subsection 245AB(2) in civil penalty proceedings bears the evidential burden in relation to those matters. The rationale for this is that where a matter is peculiarly within the defendant’s knowledge, and it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter, it is legitimate to cast the matter as a defence.[33] The matters in proposed subsection 245AB(2) may be regarded as falling into this category.
Proposed section 245AC would make it an offence to allow or to continue to allow a lawful non‑citizen to work in breach of a work-related condition attached to the non-citizen’s visa. Proposed subsection 245AC(2) provides that a person does not contravene this section if they have taken reasonable steps to verify that an employee is not in breach of the work-related condition. These reasonable steps can include using a computer system prescribed in the regulations. The offence can lead to a maximum penalty of two years imprisonment, but it is required that there be actual knowledge or reckless indifference by the convicted person as to unlawful status of the worker. A civil penalty of 90 penalty units for an individual, or 450 penalty units for a corporation, can also be imposed.[34] Proposed subsection 245AC(6) provides that a person who wishes to rely on subsection 245AC(2) in civil penalty proceedings bears the evidential burden in relation to those matters. The rationale for this approach is discussed above in relation to proposed subsection 245AB(6).
Proposed section 245AD would provide for an aggravated version of offences at proposed sections 245AB and 245AC, referred to above, where the worker is being exploited and the person accused knows this or is recklessly indifferent to whether this is so. The offence at proposed section 245AD can lead to a maximum penalty of five years imprisonment. There are no civil penalty provisions.[35]
Proposed section 245AE would make it an offence to refer unlawful non-citizens to work. Proposed subsection 245AE(2) provides that a person does not contravene this section if they have taken reasonable steps to verify that an employee is not an unlawful non-citizen. These reasonable steps can include using a computer system prescribed in the regulations. The offence can lead to a maximum penalty of two years imprisonment, but it is required that there be actual knowledge or reckless indifference by the convicted person as to unlawful status of the worker. A civil penalty of 90 penalty units for an individual, or 450 penalty units for a corporation, can also be imposed.[36] Proposed subsection 245AE(6) provides that a person who wishes to rely on subsection 245AE(2) in civil penalty proceedings bears the evidential burden in relation to those matters. The rationale for this approach is discussed above in relation to proposed subsection 245AB(6).
Proposed section 245AEA would make it an offence to refer a lawful non-citizen to work in breach of a work-related condition attached to the non-citizen’s visa. Proposed subsection 245AE(2) provides that a person does not contravene this section if they have taken reasonable steps to verify that an employee is not in breach of the work-related condition. These reasonable steps can include using a computer system prescribed in the regulations. The offence can lead to a maximum penalty of two years imprisonment, but it is required that there be actual knowledge or reckless indifference by the convicted person as to unlawful status of the worker. A civil penalty of 90 penalty units can also be imposed. Proposed subsection 245AEA(6) provides that a person who wishes to rely on subsection 245AEA(2) in civil penalty proceedings bears the evidential burden in relation to those matters. The rationale for this approach is discussed above in relation to proposed subsection 245AB(6).
Proposed section 245AEB would provide for an aggravated version of the referral offences at proposed sections 245AE and 245AEA of the Act, where the worker will be exploited. This is comparable to proposed section 245AD referred to above. The maximum penalty would be five years imprisonment.[37]
Where a body corporate commits an offence against this Subdivision, proposed section 245AJ would provide that an executive officer of the body corporate can be criminally liable if the executive knew of, or was reckless or was indifferent to, the offence and was in a position to influence the conduct of the organisation but failed to take all reasonable steps to prevent the offence from being committed. The penalty to be imposed is not to exceed one-fifth of the penalty which could be imposed on the body corporate itself.
Civil liability would also apply to executive officers of bodies corporate in the circumstances set out in proposed section 245AK. That is, where a body contravenes a civil penalty provision, and the executive either knew of, or was reckless or negligent as to, that breach, and the executive could have influenced the conduct of the body but failed to take all reasonable steps to do so, he or she will be liable.
Proposed section 245AM relates to the geographical scope of the offence and civil penalty provisions. The conduct must generally take place partly or wholly in Australia or on an Australian aircraft or ship. However, the provisions will apply to conduct which takes place wholly outside Australia if the wrongdoer is an Australian citizen, resident or body corporate.[38]
The whole Subdivision will extend to partnerships[39] and to unincorporated associations. [40]
Section 271 of the Act lists certain documents that are taken to be prima facie evidence of the information contained within them, in court (and certain tribunal) proceedings under the Act. New subparagraphs 271(1)(m)(i) and (ii), inserted by item 22, would provide that a certificate issued by a Departmental officer stating whether someone accessed a specified computer system at a particular time, will be prima facie evidence of the matter stated within.
The new Part 8D of the Act concerns civil penalty provisions.[41] The Minister for Immigration and Citizenship may apply for civil penalty orders where persons are alleged to have contravened civil penalty provisions. Applications are to be made within six years of an alleged contravention. If the Court is satisfied there has been a contravention, it may make a civil penalty order.[42] The penalty becomes a debt payable to the Commonwealth, and the debt may be enforced.[43]
A court may direct that two or more civil penalty proceedings be heard together.[44]
As set out above, proposed subsection 486R(5) provides that the penalty for a corporation that contravenes a civil penalty provision must not be more than five times the specified penalty.
Proposed section 486Y would provide for an offence of failing to provide all reasonable assistance to the Secretary of the Department in relation to an application for a civil penalty order. A request can only be made under this provision if it appears that the person did not contravene the civil penalty provision himself or herself, or have done something substantially similar, and the Secretary suspects that the person is able to provide information relevant to the application. A person who is, or has been, the lawyer for a person suspected of contravening the civil penalty provision to which the application relates cannot be requested to provide assistance to the Secretary. The provision is similar to current section 486U of the Act, but that provision imposes a higher penalty (30 penalty units compared with ten penalty units under proposed section 486Y)
Some of the provisions proposed by the Bill (for example, proposed sections 245AB and 245AC) set out both civil and criminal penalties. Proposed section 486Z provides that a civil penalty order is not to be made where a person has been convicted of a criminal office in relation to the same conduct. Under proposed section 486ZA, civil proceedings are to be stayed if criminal proceedings are commenced in relation to essentially similar conduct. Proposed subsection 486ZC provides that evidence given in civil proceedings is not admissible in criminal proceedings relating to substantially the same conduct. Of some concern is the possibility of criminal proceedings being commenced after civil proceedings even where civil penalty orders have been granted, as is allowed under proposed section 486ZB.
Proposed section 486ZE would provide that mistake of fact is to be a defence in relation to civil penalty proceedings. This means that if a person is under the mistaken but reasonable belief as to the existence of certain facts, and if those facts had existed the person’s conduct would not have breached the civil penalty provisions, the person will not be liable to have a civil penalty order made against him or her. The onus is on the individual to establish his or her defence under this mistake of fact provision.
Proposed section 486ZG would prevent civil double jeopardy arising by requiring that a person ordered to pay a pecuniary penalty for contravening a civil penalty provision is not liable to pay other pecuniary penalties under other Commonwealth laws in relation to the same conduct.
Item 24 of Schedule 1 would also insert a new Part 8E into the Act (proposed sections 487A-487ZH) to provide for new investigation powers in relation to work-related offences and provisions in the Act.
Under proposed section 487B, the Secretary may require a person to provide information or a document if it is reasonably believed that such information or document would be relevant to a possible offence or contravention. A written notice to the person is required. Failure to comply is an offence with a maximum penalty of 30 penalty units.[45] Such an offence is one of strict liability. This means that no fault element needs to be proven – a person who is given a notice and fails to comply with it has committed an offence. However, the person may raise a defence of mistake of fact. In addition, under proposed subsection 487B(5) a person does not commit an offence if he or she is not capable of complying with the notice. The person bears the evidential burden in this regard, which appears reasonable in the circumstances, as information relevant to determining whether a person could comply with a notice may be regarded as being peculiarly within that person’s knowledge.[46]
Proposed section 487C provides that the possibility of self-incrimination is not a reason for non‑compliance with a notice issued under proposed section 487B. However, the information will only be able to be used against the person in civil penalty proceedings under the provisions inserted by the Bill and in criminal proceedings relating to the provision of false or misleading information. As discussed in this Digest under ‘Statement of Compatibility with Human Rights’, the Joint Parliamentary Committee on Human Rights initially expressed concern with this provision and sought further information from the Minister for Immigration. After receiving the further information, the Committee was satisfied that no human rights concerns were raised.
If an authorised officer reasonably suspects there may be relevant evidence on any premises, he or she may enter those premises and exercise search powers either (i) with the consent of the occupier or (ii) with a search warrant (proposed subsection 487D). The authorised officer may be assisted by other people (proposed subsection 487H).
Search powers are spelt out in proposed subsections 487E, 487F and 487G.
In executing a search warrant, such force as is reasonable and necessary in the circumstances may be used.
Authorised officers may ask questions and seek production of documents. Proposed subsection 487K provides that if entry is with the occupier’s consent, an authorised officer may ask the occupier to answer any questions and produce any document. Such requests must be related to the reasons for entering the premises. If entry is under a search warrant, requests must be answered and documents produced and failure to do so can give rise to a penalty of 30 penalty units.
Proposed subsection 487L deals with provision of consent to enter premises. Before obtaining such consent, an authorised officer must inform the occupier that consent may be refused. Consent can be limited to entry during a particular period. It may also be withdrawn. If consent is withdrawn the authorised officer and any person assisting must leave the premises.
Under proposed subsection 487M, an announcement must generally be made by the authorised officer before entry under a search warrant. There are two exceptions to this requirement, in which case an identity card must be shown to the occupier. These exceptions are when immediate entry is reasonably thought to be required to (i) ensure the safety or a person or (ii) to ensure that the effective execution of the search warrant is not frustrated.
An authorised officer seeking entry under a search warrant must be in possession of that warrant, and details of the warrant are to be given to the occupier (proposed subsections 487N and 487P).
If entry is under a search warrant, electronic equipment may be secured (proposed subsection 487S). Compensation is to be paid if the equipment is damaged (proposed subsection 487T).
Proposed section 506A, at item 29, would allow regulations to be made to provide that a person alleged to have contravened a civil penalty provision may choose to pay a penalty to the Commonwealth rather than go through court proceedings. Such a penalty must not exceed one-fifth of the maximum penalty that could be imposed on the person by a court for contravening a civil penalty provision.
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
[3]. See Part 2, Division 3A, Subdivision D of the Act (sections 140K-140R).
[4]. The term ‘illegal immigrant’ does not exist under Australian immigration law.
[6]. Ibid., recommendations (h) and (i), p. 57.
[19]. S Howells, op. cit., p. 76.
[23]. The Statement of Compatibility with Human Rights can be found at Attachment B to the Explanatory Memorandum to the Bill.
[31]. For those offences committed after 28 December 2012, section 4AA of the Crimes Act 1914 provides that a penalty unit is equivalent to $170. This means that the maximum penalty amounts to $15 300 for an individual. The text of the Crimes Act 1914 can be viewed at: http://www.comlaw.gov.au/Details/C2013C00031
[32]. For offences committed after 28 December 2012, the maximum penalty would be $76 500.
[34]. That is, a maximum penalty of $15 300 for an individual and $76 500 for a corporation. See footnotes 31 and 32.
[35]. However, section 4AB of the Crimes Act provides that if a natural person is convicted of a Commonwealth offence punishable by imprisonment only, the court may (unless a contrary intention appears in the legislation) impose a pecuniary penalty of up to five times the term of imprisonment, expressed in months. In this case the maximum pecuniary penalty would be 300 penalty units, which is $51 000. A link to the Crimes Act is provided at footnote 31.
[36]. That is, a maximum penalty of $15 300 for an individual and $76 500 for a corporation. See footnotes 31 and 32.
[37]. However, see footnote 60.
[39]. Proposed section 245AO, contained in Item 20 in Schedule 1 to the Bill.
[40]. Proposed section 245AP, contained in Item 20 in Schedule 1 to the Bill.
[41]. Part 8D comprises proposed sections 486R-486ZG and is contained in item 24 in Schedule 1 to this Bill.
[42]. Proposed section 486R of the Act.
[43]. Proposed section 486T of the Act.
[44]. Proposed section 486U of the Act.
[45]. Which is equivalent to $5100. See footnote 31.
[46]. See the discussion in relation to proposed subsection 245AB(6), above.
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