Bills Digest no. 51 2008–09
Migration Legislation Amendment (Worker Protection) Bill
2008
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.
CONTENTS
Passage history
Purpose
Background
Financial implications
Main provisions
Concluding comments
Contact officer & copyright details
Passage history
Migration Legislation Amendment (Worker
Protection) Bill 2008
Date
introduced: 24
September 2008
House: Senate
Portfolio: Immigration and
Citizenship
Commencement:
Sections 1 to 3 commence
on the day of Royal Assent. All other provisions commence on a day
to be fixed by Proclamation, or nine (9) months after the day of
Royal Assent, whichever is the sooner.
Links: The
relevant links to the Bill, Explanatory Memorandum and second
reading speech can be accessed via BillsNet, which is at http://www.aph.gov.au/bills/.
When Bills have been passed they can be found at ComLaw, which is
at http://www.comlaw.gov.au/.
The purpose of this Bill is to
amend the Migration Act 1958 (the Migration Act) to create
a new sponsorship framework with heightened enforcement mechanisms
(including civil penalty provisions, monitoring and investigation
powers, and information sharing provisions) and to amend the
Taxation Administration Act 1953 to enable disclosure of
information to the Department of Immigration and Citizenship (DIAC
or the Department).
This Bill revives some of the provisions
of the
Migration Amendment (Sponsorship Obligations) Bill 2007 ( the
Sponsorship Obligations Bill ) which was introduced to the House of
Representatives on 21 June 2007. It was referred to the Senate
Legal and Constitutional Affairs Committee on 21 June 2007, which
subsequently tabled its
report on 7 August 2007.[1] The Sponsorship Obligations Bill was not debated in
either house and subsequently lapsed when Parliament was prorogued
for the 2007 federal election.[2]
The Temporary Business (Long Stay)(Subclass 457 visa) was
introduced by the Howard Government in 1996 to rationalise
arrangements for the temporary entry of business people and highly
qualified specialists, to simplify procedures, and to introduce a
degree of self-regulation for certain employers of holders of
Subclass 457 visas .[3] During 2007/08, almost 60,000 visas were granted to
overseas workers (including Subclass 457 visas).[4]
In the 2008/09 Budget, the Government announced that it would be
allocating $19.6 million to improve the processing and compliance
of the temporary skilled migration program:
The Government will provide $19.6 million
over four years (including $0.4 million in capital funding in
2008‑09) to strengthen the integrity of temporary working
visa arrangements, including the 457 visa program, by clarifying
the obligations and rights of employers and workers, further
protecting workers from exploitation.
The funding will support a comprehensive
information strategy and the development and introduction of
legislation to better define employers' obligations, improve
investigative powers of the Department of Immigration and
Citizenship, and develop a more robust sanctions framework to
protect workers' rights.
This measure also includes the establishment of
a departmental working group to develop a longer‑term reform
package to improve the responsiveness and integrity of temporary
working visa arrangements. The group will receive input from an
expert in industrial relations, and representatives from state and
territory governments, industry and unions.[5]
A number of reviews of the temporary skilled migration program
are currently underway. These include:
- The Skilled Migration Consultative Panel comprising
representatives of the New South Wales, Victorian, Queensland and
Western Australian State Governments; Australian Chamber of
Commerce and Industry; Australian Industry Group; Business Council
of Australia; Australian Council of Trade Unions and the Minerals
Council of Australia;[6]
- Subclass 457 Integrity Review by Ms Barbara Deegan
(Commissioner of the Australian Industrial Relations
Commission);[7]
See further:
- External Reference Group, Visa Subclass 457
(April 2008);[8]
- Joint Standing Committee on Migration, Temporary
visas permanent benefits: Ensuring the effectiveness, fairness and
integrity of the temporary visa program (August 2007) (see
Committee consideration below).
According to DIAC s discussion paper, Business (Long Stay)
Subclass 457 and related temporary visa reforms released on 30 June
2008:
The Minister has also announced that a Working
Party will be established to consider and implement the
recommendations of these review processes and other recent review
processes and the Council of Australian Government s directed
review by the Commonwealth State Working Party on Skilled Migration
The Working Party will develop a longer term reform agenda to be
presented to Government in the 2009-10 Budget context.[9]
Though this Bill is similar in many respects to the Sponsorship
Obligations Bill in that they both expand the powers to monitor and
investigate, and create punitive penalties for non-compliance,
there are some significant differences. The most notable is that
this Bill, unlike its predecessor does not attempt to
elevate key sponsorship obligations into the Migration Act. The two
reasons provided for this in the second reading speech are:
First there will be a need to prescribe
additional obligations as more visas are brought within the new
sponsorship framework; and second, a high degree of flexibility is
essential for the efficient and effective program operation over
time in a dynamic area such as this.[10]
Another reason put forward for prescribing the obligations in
the Migration Regulations rather than the Migration Act is to
provide an opportunity for the Minister to consider advice provided
through various review processes before finalising each particular
sponsorship obligation[11] (see Current reviews and consultation processes above).
Importantly, there has been some disagreement in the past
especially amongst industry groups, as to the nature of sponsorship
undertakings and the financial impact such obligations have on
businesses (see Committee consideration below).[12]
Other potentially contentious aspects of this Bill might
include:
- The impact of the Bill on pre-existing sponsorship arrangements
including the applicability of enforcement mechanisms to existing
Subclass 457 visa sponsors. The Minister will also have the power
to make amendments to pre-existing sponsorship obligations
(proposed subsections 140E and 140H see also
Transitional matters below);
- The appropriateness of civil penalty provisions in the
Migration Act and whether the penalties for contravention (in
proposed section 140Q) are reasonable;
- the use of a non-disallowable legislative instrument to work
out the actual cost to the Commonwealth in relation to a
sponsorship obligation (proposed subsection
140J(2));[13]
- The scope of inspectors powers (under proposed
subsection 140X(2)) and whether they should be in
accordance with the Guide to Framing Commonwealth Offences,
Civil Penalties and Enforcement Powers;[14]
- The shorter minimum period of 7 days in which to respond to an
inspector s written notice to produce a document or thing (rather
than 14 days which is presently the case) (proposed
paragraph 140X(2)(c));[15]
- The impact on privacy because the Minister need not provide
written notice to the person about whom information relates, when
disclosing personal information to another government agency
(proposed subsection 140ZH(4)); and
- The inclusion of more visas within the new sponsorship
framework[16]
(perhaps including visas that do not currently have a sponsorship
requirement).[17]
Employers currently seeking to employ overseas persons to work
in Australia on a temporary basis have to make certain undertakings
in relation to those employees. Presently, section 140H of the
Migration Act provides that the Regulations may require a proposed
sponsor to make prescribed undertakings.[18] For the purposes of section 140H of
the Migration Act, Regulation 1.20CB prescribes some 14
undertakings a sponsor must make for approval as a standard
business sponsor.[19] Importantly, existing subsection 140H(2) and (3)
provide that the undertakings only have effect once the applicant
consents in writing to sponsor that person and the undertakings do
not take effect until the visa is granted.
According to Departmental guidelines, existing section 140Q of
the Migration Act provides that unless otherwise specified in
regulation 1.20DB, a sponsor s undertakings remain enforceable
against the sponsor until either the sponsored person ceases to
hold the 457 visa for which they were sponsored or the approval of
the sponsor ceases under regulation 1.20E. Under regulation 1.20DB,
some undertakings may continue to be enforceable until a later date
such as those relating to co-operation with monitoring, payment of
medical and hospital expenses and costs to the
Commonwealth.[20]
This Bill will make changes to existing sponsorship obligations.
Most significantly, under the proposed amendments:
- A person will be required to satisfy sponsorship obligations
automatically, by operation of law as opposed to when they have
consented in writing and the visa has been granted, as is presently
the case (proposed section 140H);
- A person will be required to satisfy sponsorship obligations in
the manner (if any) and within the period (if any) prescribed by
the Regulations (proposed section 140H);
- A person who is party to a work agreement (as defined) will be
expressly subject to the new sponsorship regime (proposed
subsection 140H(2));
- Different kinds of sponsorship obligations may be prescribed
for different kinds of visa and different classes in relation to
which a person may be, or may have been approved as a sponsor under
proposed subsection 140H(6);
- All existing partners of a partnership or members of an
unincorporated association s committee of management at any given
time are required to satisfy a sponsorship obligation under
proposed Subdivision G, where previously new
partners or new members of a committee could elect whether to be
bound by an obligation.[21]
Presently the Minister may disclose personal information (as
defined in the Privacy Act 1988) about a visa holder or
former visa holder to an approved sponsor or former approved
sponsor. However, the Minister must notify the visa holder in
writing of the disclosure and of the details of the personal
information disclosed (existing section 140V). Regulation 1.20IA
lists the type of information that may be disclosed about a visa
holder (or former visa holder) and the circumstances in which it
may be disclosed.
This Bill will make significant changes to the manner in which
personal and other information is handled. Most significantly,
under the proposed amendments:
- DIAC may disclose personal information (of a prescribed kind)
about visa holders (including former visa holders) and approved
sponsors (including former approved sponsors) to the visa holders
and sponsors as well as to other government agencies;
- DIAC need not provide written notice to the person about whom
information relates, when disclosing personal information to other
government agencies (proposed subsection
140ZH(4));
- DIAC may request that an approved sponsor (or former approved
sponsor) disclose personal information (of a prescribed kind) about
a visa holder (or former visa holder) (proposed section
140ZI);
- The Secretary of the Department has new information gathering
powers under proposed section 486U. They enable
the Secretary to require a person (other than the wrongdoer), who
the Secretary suspects on reasonable grounds can give information
relevant to an application for a civil penalty order to give all
reasonable assistance in connection with such an application. A
Court may enforce compliance with such a request and the penalty
for failing to give assistance is a maximum of 30 penalty
units.
- The Commissioner of Taxation may disclose information acquired
under a taxation law to DIAC if satisfied that the information
satisfies two requirements. These relate to whom the information
concerns, and the purpose for which it must be relevant. DIAC may
then disclose or make a record of such information for specified
purposes (proposed section 3ED of the Taxation
Administration Act 1953).
- Inspectors (see below for discussion of provisions introducing
inspectors) may disclose information acquired in the course of
their duties to another person if they consider, on reasonable
grounds that it is necessary or appropriate to do so in the course
of exercising their power. More specifically, an inspector may
disclose information so acquired to the Department of Employment
and Workplace Relations (DEWR) if the inspector considers on
reasonable grounds that the disclosure will assist the
administration of the Workplace Relations Act 1996.
However, such information may only then be used or further
disclosed for the same purposes for which the original disclosure
was made (proposed section 140ZA);
Presently, DIAC monitors business sponsors through a variety of
means including through education and awareness raising activities,
desk auditing using a monitoring form, interviews and site visits
etc.[22] DIAC can
acquire information for monitoring under existing subsections
137H(1) and (2) of the Migration Act which permits them to seek
information from sponsors in relation to all matters arising from
the business sponsorship application and approval e.g. payslips,
record of hours worked, evidence of deductions etc. Under existing
subsection 137H(3) the time allowed to respond to such a request
for information must be reasonable . Departmental Guidelines
presently provide that 14 days would be a reasonable period but as
little as 7 days might also be reasonable if the Department
believes there are extenuating circumstances . If no response is
received within the time specified, an extension of 14 days is
normally provided.[23] Failure to respond can result in a breach notice
[24] being sent and
a site visit being scheduled.
The authority to conduct site visits comes from both existing
section 137H of the Migration Act ( provision of information
business sponsors ) and specifically from regulation 1.20CB(1)(c) (
to comply with its responsibilities under the immigration laws of
Australia ) and regulation 1.20CB(1)(e) ( to cooperate with the
Department s monitoring of the applicant and the sponsored person
), both of which the sponsor undertakes to comply with during their
sponsorship application.[25]
Presently, Departmental officers must request permission to
enter premises and a sponsor may lawfully refuse entry to
Department staff wanting to conduct a site visit. In this regard it
should be noted that the Migration Act does not presently contain
any search powers. A sponsor s failure to co-operate can be
considered a breach of sponsorship undertakings and may result in a
breach notice being issued and sanctions being imposed (such as
cancellation or barring action).
DIAC s 2006/07 Annual Report states under the heading Robust
integrity measures ,
There continues to be an overall, high level of
business sponsor compliance with sponsorship undertakings. However,
in response to allegations of abuse of the subclass 457 programme
and issues emerging from the department s own monitoring in
2006-07, a more targeted, risk-based approach was developed and
implemented.[26]
However, of the 6463 business sponsors monitored to assess their
compliance with sponsorship undertakings in 2006/07, only 26 per
cent were visited onsite based on DIAC s new targeted risk
profiling.[27] In
addition, statistics provided in DIAC s 2006/07 Annual Report
indicate a decrease in the number of sponsors monitored
and site visits conducted since 2004:
| |
2004/05
|
2005/06
|
2006/07
|
|
|
|
|
|
|
100 per cent of subclass 457 visa sponsors
monitored for compliance with visa conditions.
|
96.60
|
65.20
|
58.00
|
|
25 per cent of subclass 457 visa sponsors site
visited at place of employment.
|
22.40
|
18.00
|
13.70[28]
|
This Bill will make changes to existing monitoring arrangements.
Most significantly, under the proposed amendments:
- Inspectors will be appointed by an instrument of appointment
under proposed section 140V;
- The powers exercisable by inspectors will be expressly set out
in the Migration Act (proposed section 140X).
Though the Migration Regulations may prescribe other additional
powers (proposed paragraph 140X(2)(d));
- Inspectors will not have the power to enter premises using
force (proposed paragraph 140X(2)(a)); and
- A person will commit an offence punishable by a maximum 6
months imprisonment, if they do not comply with an inspector s
request to produce a document or thing at a specified place or
within a specified period (of not less than 7 days) under
proposed section 140Z.
There are a number of actions that may currently be taken with
respect to sponsors found to be in breach of a sponsorship
undertaking (or former standard business sponsors against whom an
undertaking remains enforceable). Existing section 137B of the
Migration Act provides express statutory authority for the Minister
to cancel a sponsorship approval. The Regulations prescribe the
grounds for cancelling business sponsorship approvals under section
137B of the Act.[29] These include providing incorrect or false information
to DIAC, failing to comply with sponsorship undertakings, and not
continuing to satisfy the requirements for approval as a standard
business sponsor.
In addition, existing section 140L lists the actions that may
(or must) be taken under existing sections 140J and 140K.[30] These include
cancelling the sponsorship for specified kinds of temporary visas
or all kinds of visas, barring the sponsor for a specified period
from sponsoring more people under one or all existing approvals, or
barring the sponsor for a specified period from making future
applications for approval as a sponsor etc. An authorized officer
may also require and take a security (which is akin to a bond)
under existing section 269 or enforce a security already taken.
According to DIAC s 2006/07 Annual Report, during the year 313
sponsors were formally warned and 95 sponsors had a bar imposed on
sponsoring further workers, including 14 who had their sponsorship
agreement cancelled .[31]
This Bill will introduce new civil penalties that may apply to
sponsors. Most significantly, under the proposed amendments:
- Two civil penalty provisions (as defined) are inserted into the
Migration Act by proposed subsections 140Q(1) and
(2). Civil penalty provisions have not previously been
included in the Migration Act.[32]
- If a person fails to satisfy a sponsorship obligation in the
manner (if any) or within the period (if any) prescribed by the
Regulations, a person contravenes a civil penalty provision under
proposed section 140Q which currently imposes a
maximum penalty of $6,600 for an individual and $33,000 for a body
corporate;
- The Government or another person owed an amount (prescribed in
the Regulations) by an approved sponsor (or former approved
sponsor) in relation to a sponsorship obligation may recover the
amount as a debt in an eligible court (as defined) under
proposed section 140S (including through an
informal small claims procedure in a Magistrates Court under
proposed section 140SC);
- The Minister may commence civil penalty proceedings against a
person who contravenes a civil penalty provision or against others
involved in the contravention under proposed Part
8D. Under these civil penalty proceedings, a Court may
order a person to pay a pecuniary penalty for each contravention
(but not more than the relevant amount specified for the provision)
under proposed section 486R;
- The regulations may make provision enabling a person who is
alleged to have contravened a civil penalty provision to pay a
specified penalty (not exceeding one-fifth of the maximum
prescribed penalty) as an alternative to civil penalty
proceedings (proposed section 140R);
- The actions that may be taken for failing to satisfy a
sponsorship obligation (such as cancellation and barring) will not
be limited to sponsors of temporary visa holders and will
not be limited to circumstances relating to a failure to satisfy a
sponsorship obligation (proposed sections 140L and
140M);[33]
and
- A visa holder will not be jointly and severally liable for any
of the costs which arise from a sponsorship obligation because
item 27 repeals existing section 140R.
On the 15 October 2008, the Senate Selection of Bills Committee
referred this Bill to the Legal and Constitutional Affairs
Committee for inquiry and report by 7 November 2008. The reasons
for referral/principal issues for consideration included issues
about retrospectivity, additional red tape, compliance costs and
additional visa holder costs to be met by sponsors will
disadvantage small employers .[34]
This Bill has also been considered by the Senate Standing
Committee for the Scrutiny of Bills which commented on three
aspects of the Bill. Namely, its commencement more than six months
after assent (which the Committee noted was due to reviews being
conducted by persons and bodies not directly under the control of
the Minister), investigators power to enter another place without
warrant (the rationale for which the Committee accepted), and the
abrogation of the privilege against self-incrimination (which the
Committee found struck a reasonable balance between the competing
interests of obtaining information and protecting individuals
rights).[35]
The issue of monitoring and enforcement of temporary business
visas has been the subject of a previous inquiry by the Joint
Standing Committee on Migration. Similarly, provisions of the 2007
Sponsorship Obligations Bill have previously been the subject of an
inquiry by the Senate Legal and Constitutional Affairs Committee.
Accordingly, the following information is provided for historical
reference.
On 6 December 2006, the Joint Standing Committee on Migration
was tasked with inquiring into the eligibility requirements and
monitoring, enforcement and reporting arrangements for temporary
business visas .[36] The report
of the inquiry, entitled visas...permanent benefits: ensuring
the effectiveness, fairness and integrity of the temporary business
visa program was subsequently tabled on 12 September
2007.[37]
Importantly, the Sponsorship Obligations Bill was announced late in
the inquiry process after the majority of evidence had been
received by the Committee. Therefore, it did not examine the
legislation or its proposed effect in any great detail.[38]
Nonetheless, the Committee found that a central theme that
emerged in the evidence it received was broad support for a
stronger monitoring and compliance regime, as this would reinforce
the integrity of the program and reduce exploitation of subclass
457 visa holders.[39]
In noting that several inquiry participants raised concerns
about the small number of sponsors monitored by DIAC and the low
rate of site visits,[40] the Committee found that the following issues were
identified by a range of organisations about DIAC s existing
monitoring, reporting and enforcement arrangements:
- it lacked the enforcement provisions to fine sponsors;
- provided pre-notification to employer sponsors before making a
site visit for an alleged breach of program requirements;
- had to refer certain matters to other agencies for
investigation (alleged OH&S or workplace relations breaches,
for example) but legislative difficulties complicated the sharing
of information with these agencies, particularly across the states
and territories;
- did not have the power to order an employer to pay a 457 worker
owed money under the minimum salary level requirement;
- lacked sufficient resources to undertake adequate monitoring;
and
- had limited investigative powers to access employer documents,
particularly in terms of monitoring the minimum salary level
requirement.[41]
A number of suggestions for improvement were put forward to the
Committee by a range of organisations. Some of these were adopted
by the Sponsorship Obligations Bill and are in the present Bill.
The recommendations included:
- workplace inspections should be both announced and unannounced
and workplace inspectors should have the power to conduct
interviews with temporary business visa holders and employer
staff;
- monitoring and integrity measures should focus on what is at
the heart of the sponsorship mechanism that is, ensuring that the
right money is paid and that the work nominated is being undertaken
;
- any employer found abusing the system should be excluded from
further participation in the scheme and be subject to civil and
criminal penalties ;
- in order to expedite the 457 visa process, standard business
sponsors who have a demonstrable record of compliance with the
spirit and intent of the 457 visa process should be provided with
dispensation in respect of some of the requirements ;
- DIAC should have the same powers as the OWS to demand access to
company information particularly where it relates to pay rates and
conditions ;
- there should be data matching of 457 data against tax records
of 457 visa-holders held by the ATO ;
- there should be capacity to source information from other
Government Departments and joint and priority investigation of
breaches of Australian laws such as those related to employment
relations, superannuation, occupational health and safety, workers
compensation, taxation ;
- there should be a ban on agents charging potential 457 holders
exorbitant fees to secure employment and a visa ;
- there is a need for appropriate legislation that is enforceable
the current 457 visa program does not have sufficient legislative
support to ensure integrity in the enforcement process ; and
- some attention is immediately required to make clear what are
permissible and impermissible deductions and what deductions cannot
be brought into account in determining whether minimum salary
levels have been met .[42]
Relevantly, the Joint Committee made the following
recommendations in relation to compliance arrangements:
- DIAC should commission an independent review to assess the
impact of the proposed changes to the program s effectiveness,
fairness and integrity;
- DIAC should ensure that adequate resources are allocated to the
compliance regime under the 457 visa program, and in particular, to
the implementation and enforcement of the new arrangements;
and
- DIAC should regularly report on its website details of
monitoring and enforcement activities.[43]
As previously mentioned, the Senate Legal and Constitutional
Affairs Committee inquiry into the provisions of the Sponsorship
Obligations Bill of 2007 tabled its
report on 7 August 2007. The Committee considered that the
Bill:
represents a justifiable measure to better
ensure the integrity of the 457 visa system. The obligations
contained in the Bill are generally aimed at reflecting, in
legislation, the existing undertakings that must be observed by
sponsors employing workers under the 457 visa scheme. The Bill
further aims to ensure these obligations are met without being
circumvented by employers undermining stipulated minimum salary
levels by passing on costs to employees. The Committee supports
both these objectives.[44]
The Committee also noted that matters relating to greater
investigative powers of departmental officers and stronger
penalties were not in dispute during the inquiry.[45]
Submissions to the Committee canvassed a number of concerns. For
example:
- Some business organisations expressed the view that the Bill
represented a disproportionate and potentially detrimental response
to a limited problem;
- The Association of Consulting Engineers Australia (ACEA)
considered that medical costs would be a significant cost for
sponsors and that employees should pay their own costs;
- The Australian Industry Group was of the view that visa holders
should pay their own travel costs;
- the Law Institute of Victoria considered that the requirement
to pay migration agents costs would unnecessarily inhibit employers
from utilising the scheme;
- The Australian Industry Group was of the view that
retrospectivity of the operation of the Bill s provisions to
current visa holders and sponsors was a major concern;
- The ACEA considered that more compliance time was needed to
respond to provide information on request and 21 days would be a
reasonable time. [46]
The Committee recognised that although it was undesirable to
have retrospective application of laws, in the case of 457 visas
and the length that current visas may run, that it was impractical
for the law not to apply to these visas as well.[47]
The Committee recommended that the Bill be passed subject to the
following recommendations:
- that there should be a right to challenge unreasonable and
unspecified migration agents and recruitment agents charges;
- that a minimum of 14 days to provide information replace the
proposal in the Bill of not less than 7 days;
- that the Department establish guidelines relating to the
exercise of powers proposed in sections 140IK (obligation to
provide information) and 140ZJ (powers of inspectors) and that
notices under these sections clearly state the consequences of
non-compliance.
The National Secretary of the Construction, Forestry, Mining and
Energy Union (CFMEU), Mr John Sutton, is reportedly supportive of
the Bill. In an article in the Australian Financial Review
he is quoted as having said the bill is positive and represents
steps in the right direction,
He wanted the new obligations to apply
retrospectively and cover all 457 visa holders, not just those who
arrived following the introduction of the legislation. Otherwise
there would be a "duality" among such workers, where some would
benefit from the greater protections while others would
not.[48]
In the same article, Immigration analyst Bob Kinnaird is quoted
as having said the bill was overdue , considering the Howard
government tried to introduce a similar piece of legislation in
June last year .[49]
Federal shadow immigration minister, the Hon Dr Sharman Stone MP
s response was reportedly as follows, she would support sweeping
changes to the 457 visa scheme, admitting it had led to cases of
exploitation ,
Dr Stone said the scheme which allows temporary
migrants to enter to the country to fill short-term vacancies had
been extraordinarily successful. "Of course just one case of
exploitation is one too many; therefore it is important that this
program evolves to a tighter regime," she said.[50]
The Explanatory Memorandum states that the Bill will have
minimal financial impact. Whilst making reference to the $19.6
million allocated under the 2008/09 Budget to improve the temporary
skilled migration program, it also states that there will be modest
revenue from the new civil penalties and infringement notices
regime.[51]
Item 9 repeals existing Subdivision GA of
Division 3 of Part 2 of the Migration Act (relating to the
cancellation of approval as a business sponsor). While item
12 repeals sections 140B ( sponsorship as a criterion for
prescribed visas ), 140C ( Sponsorship as a criterion for valid
visa applications), and 140D ( Approved sponsor ).
The proposed new definition of approved sponsor contained in
subsection 5(1) will include:
- a person who has been approved by the Minister under
proposed subsection 140E(2)[52]; and
- a person (other than the Minister) who is a party to a work
agreement (including a partnership or unincorporated
association).
Items 1 8 insert various definitions into
subsection 5 of the Migration Act (the interpretation section).
Item 15 broadens existing section 140E
(Approving sponsor) by inserting subsection (3) which provides that
different criteria for approval as a sponsor may be prescribed in
the regulations for different purposes. Namely:
- for different kinds of visa,
- for different classes in relation to which a person may be
approved as a sponsor e.g. professional development sponsor for the
Subclass 470 (Professional Development) visa holder;[53] and
- for different classes of person within a class in relation to
which a person may be approved as a sponsor.
Items 16 similarly provides that different
processes may be prescribed for different kinds of visa and
different classes in relation to which a person may be approved as
a sponsor. Item 17 provides that the actual term
of approval as a sponsor may be prescribed by the regulations and
different terms may be prescribed for different kinds of visa and
different classes in relation to which a person may be approved as
a sponsor. Item 18 inserts proposed
section 140GA which similarly provides that the
regulations may also create a process for the Minister to vary a
term of a person s approval as a sponsor. Subsection (3) states
that different processes and different criteria may be
prescribed.
Proposed section 140GB relates to nomination.
The Explanatory Memorandum notes that an express power to prescribe
a process and criteria in relation to nomination is required
because nomination will no longer be part of the process of
becoming an approved sponsor, rather a nomination will be
made by a person who is already an approved sponsor (as
defined).[54]
Subsection (1) provides that the sponsor may nominate either:
- an occupation, program or activity; or
- the visa applicant or proposed visa applicant in relation to
their occupation or a program to be undertaken or an activity to be
carried out by them.
Though the Minister must approve a nomination if the
prescribed criteria are satisfied, subsection (4) provides that
different criteria and different processes may be prescribed for
different kinds of visa and different classes in relation to which
a person may be approved as a sponsor.
Proposed section 140GC provides that the
regulations may prescribe requirements that work agreements
must satisfy.
Item 19 repeals sections 140H 140M which relate
to the current sponsorship system.
Proposed section 140H provides that a person
who is (or was) an approved sponsor must satisfy their sponsorship
obligations which are prescribed by the regulations. A note is to
be inserted which lists the types of obligations that
might be prescribed. These include the obligation to pay a
minimum wage, to pay to the Commonwealth certain costs, to pay the
costs of the departure from Australia of the person being sponsored
by them etc. Proposed subsections 2 and 3 provide
that persons who have a work agreement that may contain other
sponsorship obligations or a term that varies a sponsorship
obligation must also comply with such other or varied undertakings.
The proposed amendment also expressly provides that the regulations
may require a person to satisfy the sponsorship obligations in
respect of each visa holder or generally. Furthermore, different
sponsorship obligations may be prescribed for different kinds of
visa and different classes in relation to which a person may be, or
may have been, approved as a sponsor. Existing section 140H states
that the undertakings only have effect if the applicant consents in
writing and do not have effect until the visa is granted.
Significantly, neither of these restrictions are retained in
proposed section 140H.
Proposed section 140J provides that if an
amount is payable (under the regulations) by an approved sponsor in
relation to a sponsorship obligation, then they are not liable to
pay the Commonwealth more than:
- if a limit is prescribed by the regulations that limit;
and
- the actual costs incurred by the Commonwealth (whichever is the
lesser amount).
Importantly, an approved sponsor is deemed not to have
satisfied the sponsorship obligation if they are reimbursed an
amount payable under the regulations by the visa holder, or on
behalf of the visa holder (proposed subsection
140J(3)).
The sanctions that may be imposed on approved sponsors are set
out in three interlinked provisions. Namely, proposed sections
140K, 140L and 140M.
Proposed section 140K does not give the
authority to impose a sanction rather, it provides a list of
actions that may be available under other provisions. It provides
that if a sponsor fails to satisfy a sponsorship obligation one
or more of the following actions may be taken:
- the Minister may bar the sponsor under subsection 140M(1) from
doing certain things (if prescribed under the regulations);
- the Minister may cancel the person s approval as a sponsor
under subsection 140M(1) (if prescribed under the
regulations);
- the Minister may apply for a civil penalty order under Part
8D;
- the person may be issued with an infringement notice under
section 140R;
- an authorized officer may require and take a security under
section 269 or enforce a security already taken under than
section.
This action (excluding cancellation) may also be taken against
former approved sponsors under subsection (2).
Proposed section 140L provides that the
regulations may prescribe the circumstances in which the Minister
may take action and the circumstances in which the
Minister must do so. To this end, the Regulations may
prescribe the circumstances in which the Minister may take one of
more of the actions outlined in proposed section
140M. These circumstances may be circumstances that are
not in relation to a failure to satisfy a sponsorship obligation.
Different circumstances and criteria may be prescribed for
different kinds of visa and different classes in relation to which
a person may be, or may have been approved as a sponsor (in
circumstances in which the Minister must take action).
Proposed section 140M outlines the action that
may be taken in relation to approved sponsors if regulations are
prescribed under section 140L. These include:
- cancelling the approval of a sponsor in relation to a class to
which the sponsor belongs;
- cancelling the approval of a sponsor for all classes to which
the sponsor belongs;
- barring the sponsor, for a specified period from sponsoring
more people;
- barring the sponsor, for a specified period, from making future
applications for approval as a sponsor in relation to one or more
classes prescribed by the regulations.
Subsection (2) outlines the action that can be taken in relation
to former approved sponsors.
Under proposed section 140Q, if a person fails
to satisfy a sponsorship obligation in the manner (if any), or
within the period (if any), prescribed in the Migration Regulations
or in a work agreement they will incur a civil penalty. The maximum
penalty for an individual is 60 penalty units and for a body
corporate 300 penalty units. Section 4AA of the Crimes Act
1914 defines a penalty unit as $110 (as inserted by
item 6). Criminal penalties have not been used for
the reasons set out in the Explanatory Memorandum,
Civil penalties have been preferred to criminal
penalties as the appropriate sanction in this context as a sponsor
s conviction for a criminal offence may have unintended
consequences. For example the mere fact of a criminal conviction
may mean that the sponsor loses entitlements to licences or other
things essential to their business or livelihood, and this outcome
would not be in Australia s best interests.
The use of civil penalties is also considered
appropriate for the enforcement scheme to be flexible and
administratively manageable. In addition, civil penalties
facilitate the infringement notice scheme provided for in proposed
new section 140R (inserted by item 27).[55]
Proposed section 140R will enable the making of
regulations to enable a person who is alleged to have contravened a
civil penalty provision to pay a specified penalty as an
alternative to civil penalty proceedings. For example, if a person
was in breach of an obligation, instead of proceedings being
instituted against that person for the recovery of a penalty, they
would be given the option of paying a prescribed penalty that would
not exceed one-fifth of the maximum penalty.
Proposed section 140S provides
that a payee (the Commonwealth, a State or Territory or another
person) may recover an amount owed to them in an eligible court as
defined in item 1. Proposed section
140SA provides that a party to such proceedings may apply
to receive interest up to judgment. Alternatively the Court may
instead order that a lump sum be included instead of interest.
Situations where this does not apply are set out in
proposed subsection 140SA(3). Proposed section
140SB outlines the interest applicable to a judgment
debt.
Proposed section 140SC provides that certain
persons commencing proceedings under proposed section
140S may choose to proceed under a small claims procedure.
Though this option is normally only available if the amount to be
recovered does not exceed $5000, the proceedings will be informal
and the court will not be bound by technicalities or the rules of
evidence. However, a person is not entitled to legal representation
in such proceedings unless allowed by the Court (proposed
paragraph 140SC(2)(d)).
Item 30 repeals existing Subdivision C (
Application of the sponsorship system to partnerships and
unincorporated associations ) and inserts new Subdivision F
Inspectors. Proposed subsection 140V(1) provides
that the Minister may appoint an inspector or a class of persons to
be inspectors by written instrument. Proposed subsection
(3) provides that the Act or regulations will confer the
powers and functions of an inspector. Proposed section
140W provides that the Minister must issue an identity
card to an inspector. The inspector must carry the card at all
times when exercising the powers and functions of an inspector
(proposed subsection 140W(3)).
Proposed subsection 140X provides that the
purpose of inspectors is to determine whether a sponsorship
obligation is being, or has been complied with, or a purpose
prescribed by the regulations. Subsection (2) lists the powers of
inspectors. They include:
- to enter a place without force if the inspector believes there
may be information, documents or any other relevant thing relating
to whether obligations are being complied with;
- to inspect any work, material, machinery, appliance, article or
facility at that place;
- to interview any person at that place;
- to require documents or other things to be produced within a
specified period (of not less than 7 days);[56]
- any other power prescribed in the regulations.
The powers may be exercised outside working hours where
considered necessary in order to achieve the purpose of the
inspectors mentioned above.
The power of inspectors to enter business premises or another
place without force, but also without a warrant, is not too
dissimilar to the powers exercisable by workplace inspectors under
the Commonwealth s Workplace Relations Act 1996.[57] However, comparable State and
Territory legislative regimes do not appear to grant inspectors
such broad powers. For example, workplace health and safety
inspectors appointed under Queensland s Workplace Health and
Safety Act 1995 may only enter a (non-public) workplace if its
occupier consents to the entry or the entry is authorized
by a warrant issued by a magistrate.[58] Similarly, though the Commonwealth s
Workplace Relations Act 1996 provides that a workplace
inspector s powers can be conferred by the Act, the regulations or
by another Act[59],
Queensland s Workplace Health and Safety Act 1995 provides
that an inspector s powers may instead be limited under a
regulation, a condition of appointment or by written
notice.[60]
As noted in the Explanatory Memorandum, the powers conferred on
inspectors by subsection 140X(2) are not in accordance
with the
Guide to Framing Commonwealth Offences, Civil Penalties and
Enforcement Powers.[61] The Guide relevantly states:
Legislation should only authorise entry to
premises under warrant or by consent, or in a limited range of
other circumstances such as a condition of a licence. In all cases,
any departure from this general rule requires justification
.[62]
The justification provided in the Explanatory Memorandum is
that:
[It] is necessary for inspectors appointed
under new section 140V to have similar powers as Workplace
Inspectors, as it is probable that Workplace Inspectors will also
be appointed as inspectors under new section 140V. If so, it would
be intended that the Workplace Inspectors will exercise their
powers for the purposes of both the Workplace Relations Act
1996, and the purposes in section 140X(1),
concurrently.[63]
Notwithstanding this justification, it is worth noting that
according to the Guide, the Senate Committee view is that
legislation should authorise entry without consent or warrant only
in situations of emergency, serious danger to public health, or
where national security is involved .[64]
Proposed subsection 140Y(4) provides that a
person is still required to produce information or documents even
though it may tend to incriminate the person or expose them to a
penalty. However, subsection (5) states that producing the
information or document, or the direct or indirect consequences of
doing that is not admissible as evidence in criminal proceedings
other than for an offence against section 137.1 or 2 of the
Criminal Code.[65]
Proposed section 140Z creates a criminal
offence for failing to produce a document or thing to an inspector
at a specified place within a specified period (of not less than 7
days) under proposed paragraph 140X(2)(c). This
offence is punishable with a maximum penalty of imprisonment for 6
months.
See the discussion under Penalties in the Bills
Digest for the Migration Amendment (Employer Sanctions) Bill
2006. In Commonwealth legislation section 4B of the Crimes Act
1914 provides that a Court may, if it thinks it appropriate,
impose a pecuniary penalty instead of a prison sentence, unless
there is a contrary intention, or it may impose both a prison
sentence and a pecuniary penalty.[66]
Proposed section 140ZB provides that this
Division, the regulations made under it and any other provision of
the Migration Act as far as it relates to this Division or the
regulations, apply to a partnership as if it were a person. A
sponsorship obligation imposed on the partnership is imposed on
each partner but can be discharged by any.
Proposed subsection 140ZC(1) provides that an
offence that is otherwise committed by the partnership is taken to
have been committed by each partner who committed the act, or made
the omission, or aided and abetted the act or omission, or was in
any way knowingly concerned in, or party to, the act or omission.
Proposed subsection 140ZC(3)
provides that if a partner contravenes a civil penalty provision,
then the civil penalty to be imposed must not exceed an amount
equal to one-fifth of the maximum penalty that could be imposed on
a body corporate for the same contravention. For the purposes of
subsections (1) and (2) if the conduct by a partner was in the
ordinary course of business, or within authority, then this will
suffice to establish the partnership engaged in the particular
conduct. Proposed subsection 140ZC(5) provides
that in relation to (1), to establish that a partnership had a
particular state of mind when engaging in certain conduct, it is
enough to demonstrate that the partner had the relevant state of
mind. Proposed section 140ZD provides that a
partnership must continue to satisfy any applicable sponsorship
obligation even if the partnership ceases to exist.
Proposed sections 140ZE - ZG
applies the above provisions relating to partnerships to
unincorporated associations.
Proposed section 140ZH deals with disclosure of
personal information (of a prescribed kind) by the Minister. This
provision inserts a table which explains that personal information
relating to particular persons can be disclosed to particular
persons or government agencies. For example, personal information
of a prescribed kind about a visa holder can be disclosed by the
Minister to their approved sponsor, their former sponsor and a
government agency prescribed by the regulations. Similarly, such
information about an approved sponsor may be disclosed to the visa
holder, former visa holder or a government agency prescribed by the
regulations.
Proposed subsection
(3) provides that the regulations may prescribe the
circumstances in which the recipient may use or disclose the
personal information disclosed while proposed subsection
(4) provides that if the information is disclosed other
than to a government agency, the person to whom it relates must be
notified in writing of the disclosure and the details of the
information.
Proposed section 140ZI provides that the
Minister may request an approved sponsor or former approved sponsor
to disclose to the Minister personal information of a prescribed
kind about a visa holder or former visa holder. Proposed
subsection (3) provides that nothing in this section has
the effect of authorising a disclosure that is prevented by
law.
Item 42 inserts proposed Part
8D which has three Divisions: Division 1 ( Obtaining an
order for a civil penalty ); Division 2 ( Civil penalty proceedings
and criminal proceedings ) and Division 3 ( Miscellaneous ).
Proposed section 486R provides that a person may
be ordered to pay a pecuniary penalty for contravening a civil
penalty provision.[67] Importantly, proposed subsection (1) provides that an
order can be made within 6 years of the contravention, while
proposed subsection (2) provides that the Court may order payment
for each contravention but the pecuniary penalty must not
be more than the relevant amount specified for the provision.
The Explanatory Memorandum provides an example of how this
provision might apply in practice,
If the sponsorship obligation prescribed in the
regulations provides that an approved sponsor must pay at least a
minimum wage (however this is described) to their visa holders, and
the approved sponsor does not pay at least the required minimum
wage to each of their three visa holders, then this is at least
three contraventions of a civil penalty provision. The approved
sponsor could then receive a total maximum penalty of 180 penalty
units if they are an individual, or 900 penalty units if they are a
body corporate (see new section 486ZA in relation to joining
actions for multiple contraventions of civil penalty
provisions).[68]
Proposed subsection (3) outlines the matters
the Court must have regard to in determining the amount of
pecuniary penalty. These include the nature and extent of the
contravention, the nature and extent of loss or damage, the
circumstances surrounding the contravention and whether the sponsor
has previously been found by a Court to have engaged in the same or
similar conduct . Proposed subsection 486R(4)
defines the term similar conduct . The Explanatory Memorandum notes
that this includes where a person has previously been found by a
court to have failed to satisfy a sponsorship obligation which is
the same or different from the sponsorship obligation to which the
proceedings relate .[69] Proposed subsection (6) and (7) relate
to the Court s ability to order an amount prescribed by the
regulations. More specifically, proposed paragraph
486R(6)(c) provides that the Court may order an amount be
paid if proceedings to recover an amount have not been brought
under proposed section 140S (which allows a person
to bring proceedings to recover an amount owed if the Court does
not make an order under this subsection).
Proposed section 486S provides that a person
involved in contravening a civil penalty provision (say by aiding
its contravention, or conspiring to contravene it) is taken to have
contravened that provision. Proposed section 486U
enables the Minister to require a person (other than the wrongdoer
or their lawyer), who he or she suspects on reasonable grounds can
give information relevant to an application for a civil penalty
order to give all reasonable assistance in connection with such an
application. A Court may order a person to comply and the penalty
for failing to give assistance is an offence punishable with a
maximum of 30 penalty units.
Proposed Division 2 set out how civil
proceedings for contravention of a civil penalty provision will
relate to criminal proceedings commenced for the same actions.
Proposed sections 486V-X cover the situation where
civil proceedings are commenced after criminal
proceedings, criminal proceedings are commenced during
civil proceedings, and criminal proceedings are commenced
after civil proceedings.
Proposed section 486Y relates to the
inadmissibility of evidence for criminal proceedings previously
given in civil proceedings, while proposed section
486Z provides that a person ordered to pay a
pecuniary penalty for contravening a civil penalty provision is not
liable to pay a pecuniary penalty under some other provision of law
of the Commonwealth.
Proposed subsection 486ZA(1) in proposed Division
3 enables proceedings for multiple contraventions of civil
penalty provisions to be joined in certain circumstances.
Proposed subsection (2) provides that the Court
may make a single order to pay a pecuniary penalty for all
the contraventions but the penalty must not exceed the sum of the
maximum penalties that could be ordered if a separate penalty were
ordered for each of the contraventions. The Explanatory Memorandum
provides an example of how this provision would operate in
practice:
if a sponsorship obligation prescribed under
new section 140H (inserted by item 19) requires a person to pay at
least a minimum salary to the visa holders that they sponsor, and
to pay the minimum salary at least once a month, the person may
contravene subsection 140Q(1) (inserted by item 27) 10 times if
they do not satisfy the obligation in relation to five visa holders
for a period of 2 months (there is 10 contraventions because there
is a contravention for each visa holder (5), for each month (2))
Under new section 486ZA proceedings for an order in relation to all
10 alleged contraventions could be joined, and a single order made
in relation to all 10 contraventions.[70]
Item 45 makes transitional arrangements for
existing standard business sponsors. It provides that the new law
applies to standard business sponsors (as defined) or approved
sponsors (as defined) as if they were approved as a sponsor under
proposed section 140E. The terms of the
sponsorship made under existing section 140G continue to apply
after the new law commences, though the term may be varied under
proposed section 140GA of the new law.
Importantly, if the person had made an undertaking under
existing section 140H, it ceases to have effect when the new law
commences and they must then satisfy any applicable sponsorship
obligation prescribed by the regulations under section 140H of the
new law.
However, if, before the day on which the new law commences, the
person breaches an undertaking made under existing section 140H,
then section 140M of the new law applies as if regulations made
under existing sections 140J and 140K were regulations prescribed
under section 140L of the new law.
Item 46 relates to former sponsors who remained
bound by an undertaking made under existing section 140H. It
provides that the new law applies to them upon commencement as if
they were a former approved sponsor under the new law. Accordingly,
upon commencement any old undertakings cease to have effect and
they must satisfy any applicable sponsorship obligations prescribed
by the new law. However, if, before commencement they breach an
undertaking made under existing section 140H, then proposed
section 140M of the new law applies as if regulations made
under existing sections 140J and 140K were regulations prescribed
under section 140L of the new law.
Item 47 relates to recovery of debts from
standard business sponsors. It provides that proposed
section 140S applies to a debt of a kind mentioned in
existing section 140R (joint and several liability for debts) or
140S (liability to pay other amounts) and where proceedings for
recovery of the debt have not begun.
Item 48 provides that the existing law
continues to apply to approved professional development sponsors
(as defined) until they cease to be an approved professional
development sponsor. Item 49 provides that
applications not finally determined upon commencement, will be
determined in accordance with the new law.
The Explanatory Memorandum notes that the application of the new
sponsorship framework to existing subclass 457 visa sponsors is
necessary for the following reasons:
- the nature of the sponsorship obligations which will be
required to be satisfied will not be significantly different from
the existing undertakings;
- the possible transitional period if these existing sponsors are
not transitioned into the new sponsorship framework is
impractically long (up to six years) for the large caseload;
- the administrative complexity for sponsors, the Department of
Immigration and Citizenship, and other stakeholders of
administering two sponsorship frameworks makes the alternative
unworkable for the large caseload; and
- existing subclass 457 visa sponsors will have sufficient notice
to terminate the sponsorship of their Subclass 457 (Business (Long
Stay)) visa holders if they are not prepared to satisfy the new
sponsorship obligations in relation to those visa holders.[71]
Proposed subsection
3ED(1) overrides secrecy provisions to allow the
Commissioner for taxation to disclose tax information to the
Department in certain circumstances. The Explanatory Memorandum
predicts that DIAC will use such information to monitor whether
approved sponsors are complying with their sponsorship obligations
and to assess whether a person should be approved as a
sponsor.[72]
Under proposed subsection
3ED(2) certain persons (such as migration officers) are
prohibited from disclosing or making a record of the information. A
maximum penalty of two years imprisonment applies. Proposed
subsection 3ED(3) provides that subsection (2) does not
apply if the information was disclosed or recorded in connection
with the exceptions listed; such as the exercise of the Minister s
powers under Division 3A (Sponsorship) or regulations made under
that Division, a review of a decision concerning the exercise of
the Minister s powers under Division 3A, civil penalty proceedings
under Part 8D in relation to a contravention of a provision in
Division 3A etc.
Item 2 provides that the amendments made by
Part 1 of Schedule 2 apply to information acquired by the taxation
Commissioner before, on or after the day on which this schedule
commences. In other words, amendments made in schedule 2 have
retrospective application.
Concluding comments
The aim of this Bill is to establish a new sponsorship framework
to primarily strengthen the integrity of temporary working
visa arrangements which has been eroded primarily due to a lack of
compliance with the existing statutory scheme. However, it appears
that the low rate of compliance can not solely be
attributed to a deficiency in the existing statutory scheme. As Ms
Deegan observed in her third report into the 457 visa review,
current arrangements to ensure compliance with [sponsorship]
undertakings are not well defined; liability is not always clear
and sanctions for infringement are primarily administrative and
rarely enforced .[73]
Notwithstanding, this Bill will make significant amendments to
the Migration Act to give the Department new or greater legislative
authority to: specify sponsorship obligations and the manner in
which they can be breached (with civil penalties for
non-compliance); acquire and share information; monitor and
investigate (with punitive penalties for non-compliance); and the
power to create significantly broader Regulations to define the
scope of the newly expansive sponsorship framework.
Whether these measures are a proportionate and necessary
response to the problem, and whether they will ultimately improve
the integrity of the system remains to be seen.
Elibritt Karlsen
31 October 2008
Bills Digest Service
Parliamentary Library
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