Bills Digest no. 46 2015–16
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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.
Leah Ferris
Law and Bills Digest Section
12 November 2015
Contents
Purpose
of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Date introduced: 16
September 2015
House: House of
Representatives
Portfolio: Immigration
and Border Protection
Commencement: Sections
1 to 3 upon Royal Assent; all other provisions on the earlier of a single day
to be fixed by Proclamation or six months after 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 the Australian
Parliament website.
When Bills have been passed and have received Royal Assent, they
become Acts, which can be found at the ComLaw
website.
The purpose of the Migration Amendment (Charging for a
Migration Outcome) Bill 2015 (the Bill) is to amend the Migration Act 1958
(the Act)[1]
to (amongst other things):
- introduce
discretionary powers to allow the Minister to cancel a person’s visa where a
visa holder has asked for, received, offered or provided a benefit in exchange for
the occurrence of a ‘sponsorship-related event’
- introduce
civil and criminal liability for sponsors or other third parties who ask for or
received a ‘benefit’ in exchange for a ‘sponsorship-related event’
- introduce
civil liability for visa holders or other third parties who provide, or offer
to provide a ‘benefit’ in exchange for a ‘sponsorship-related event’
- introduce
civil and criminal liability for executive officers of a body corporate which have
been found to be involved in ‘payment for visas’ activity and
- extend
the current investigation powers and power of inspectors to allow officers of
the Department to use these powers in relation to allegations about persons
offering or receiving a benefit in return for a ‘sponsorship-related event’. [2]
‘Payment for visas’ conduct
The Explanatory Memorandum to the Bill provides that
‘payment for visas’ conduct occurs ‘where a benefit is asked for, received,
offered or provided in return for a migration outcome’.[3]
The Minister for Immigration and Border Protection, Peter
Dutton explains that ‘payment for visas’ conduct:
... may occur through an employer offering to sponsor a visa
applicant in return for a payment or benefit. It may occur before the applicant
applies for a visa or during the visa holder’s stay in Australia. Evidence
obtained through monitoring sponsors indicates that the sponsor and applicant
are complicit in the majority of ‘payment for visas’ activity. Employers may
also exploit an employee by requiring payment in return for an ongoing sponsorship.[4]
The Explanatory Memorandum further states that ‘payment
for visas’ activity:
is unacceptable because it undermines the integrity of
Australia’s visa programmes. It is not acceptable for sponsors, employers or
other third parties to make a personal gain from their position in a ‘payment
for visas’ arrangement and it is not acceptable for a visa holder to become an
Australian permanent resident by engaging in ‘payment for visas’ behaviour.[5]
Independent Review into Integrity
in the Subclass 457 Programme
According to Minister Dutton, the genesis for these
amendments was the recent review into the integrity of the 457 visa programme
announced in February 2014 by then Assistant Minister for Immigration and
Border Protection, Michaelia Cash.[6]
The review, conducted by John Azarias, Jenny Lambert, Professor Peter McDonald
and Katie Malyon, released its report in September 2014. [7]
Entitled ‘Robust
New Foundations - A Streamlined, Transparent and Responsive System for the 457
Programme’, the panel’s report contained 22 recommendations which were
aimed at strengthening the integrity and improving the flexibility of the
program.[8]
The panel relevantly noted:
In our examination of compliance it has come to our attention
that some sponsors have been paid by visa applicants for a migration outcome.
This undermines the integrity of the programme and we consider sanctions
including possible criminal sanctions should apply. [9]
Though the panel did not elaborate further on this issue, it
subsequently recommended, at recommendation 10.7, ‘that it be made unlawful for
a sponsor to be paid by visa applicants for a migration outcome, and that this
be reinforced by a robust penalty and conviction framework’.[10]
On 18 March 2015, the Government released its response
to the panel’s recommendations, wherein it agreed to the above recommendation.[11]
In introducing the Bill, Minister Dutton noted that
‘payment for visas’ conduct is not currently unlawful. Such conduct is
considered ‘unacceptable to the Government and the Australian people because it
undermines the genuine purpose for which visas are intended to be granted’.[12]
The Bill will give legislative effect to recommendation 10.7
and the Minister expects it will also ‘strengthen the integrity of Australia’s
migration programme’, including by providing for its possible expansion to a
broader group of visas where there is the potential for similar conduct to
occur.[13]
Senate Legal and Constitutional
Affairs Legislation Committee
The Bill was referred to the Senate Legal and Constitutional
Affairs Legislation Committee for inquiry and report.[14]
The Committee received 11 submissions.[15]
The Committee released its report on 10 November 2015, which recommended that
the Bill be passed and that a comprehensive information campaign be conducted
to ensure relevant parties are aware of the changes being introduced.[16]
The Greens released a dissenting report, recommending that the Bill be rejected
by the Senate if proposed amendments to section 116 (at item 1) and
proposed section 245AS (at item 6) are not removed from the Bill.[17]
Further details about the inquiry can be found on the Committee’s
inquiry homepage.[18]
Senate Standing Committee for the
Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
(Scrutiny of Bills Committee) raised concerns about certain aspects of the
Bill.[19]
In particular, the Committee focused on a number of provisions which impact on
personal rights and liberties.[20]
These concerns are discussed below, alongside the relevant provisions.
While Labor has indicated that it supports the substance of
the Bill, namely ‘that it be made unlawful for a sponsor to be paid by visa
applicants for a migration outcome and that this be reinforced by a robust
penalty and conviction framework’, it has announced that it will move
amendments in the Senate.[21]
In his second reading speech in the House of Representatives, Richard Marles,
the Shadow Minister for Immigration and Border Protection, announced that Labor
would be proposing to amend the Bill to:
- extend
the provisions of the Bill to persons on student visas and working holiday
visas
- provide
that the penalty regime in the Bill cannot apply to a visa applicant who has
been coerced by the sponsor or a related third party into offering, making,
asking for or receiving a benefit or who has been the subject of human
trafficking, forced labour or slavery offences
- increase
the level of penalties for sponsors in relations to the offences contained in
the Bill
- institute
a new measure to provide that a person working under a student visa or a
working holiday visa cannot have an ABN and instead must have a contract of
employment
- increase
protections for whistleblowers in relation to exploitation cases
- require
the Minister to table an annual report about the operation and the impact of
provisions of the Bill and
- enable
registered employee organisations (unions) to undertake prosecutions for
breaches of the Migration Act in relation to ‘payment for visas’
activity.[22]
Ernst & Young
In its submission to the Senate inquiry into the impact of
Australia’s temporary work visa programmes, Ernst & Young (E&Y) noted
that the percentage of sponsors sanctioned in 2013–14 was one per cent.[23]
E&Y submitted that the:
recommendation of the Independent Review that made it
unlawful for a sponsor to be paid by visa applicants for a migration outcome is
an appropriate measure to enable the immigration department to penalise the 1%
of sponsors and temporary residents who may seek to misuse visa programmes.[24]
While continuing to support the Government’s efforts ‘to
improve the integrity of Australia’s visa programmes’, E&Y raised some
concerns about the way the provisions of the Bill had been drafted.[25]
E&Y was particularly concerned about how the provisions allowing for a
person to ‘receive a benefit as payment of a reasonable amount for a
professional service’ would operate in practice. E&Y argued that the Bill
and explanatory materials are unclear as to how a ‘reasonable amount for a
professional service’ will be determined:
Fees for immigration services, for instance, vary
significantly across the market which encompasses a wide range of providers
from sole traders to global law firms. Commercial in confidence information
regarding fees charged by competitors may not be available to a defendant and
is unlikely to be available to a delegate of the Minister. There is therefore
scope for a delegate to erroneously find that a fee charged for a legitimate
professional service is not “a reasonable amount”.[26]
E&Y also noted in its submission to the inquiry into
this Bill that while it is clear that immigration assistance and recruitment
advice are considered to fall under the term professional service, the
explanatory materials are silent as to labour hire services. E&Y argued
that these should also fall within the exception:
We acknowledge that some elements of the labour hire sector
have historically presented certain challenges in relation to immigration
compliance. However, it must also be acknowledged that the majority of labour
hire businesses operate within the spirit and letter of the law to meet the
demands of other Australian businesses for a legitimate and necessary
professional service.[27]
Law Institute of Victoria
The Law Institute of Victoria (LIV) raised concerns about
the impact the provisions will have on migrant workers, ‘a vulnerable group
already subject to exploitation and poor treatment in the Australian workforce’.
While the LIV was supportive of the idea of targeting employers/sponsors who
take advantage of migrant workers by way of the visa application process, it
submitted that the proposed provisions would have an unfair impact on the very
people it is aimed at protecting:
It is paradoxical that this Bill seeks to protect migrant
workers from exploitation and at the same time includes severe penalties for
migrant workers who may be at risk of exploitation. The LIV is concerned that
the high penalties contained in this Bill may have the practical effect of
deterring migrant workers in exploitative situations from coming forward, for
fear that they may have their visa cancelled or be subject to civil penalties.[28]
Similar concerns are raised in a submission from Associate
Professor Joo-Cheong Tham of the University of Melbourne (supported by a number
of leading academics including Joanna Howe and Peter Mares) who argues that in
order to protect the rights of non-citizen workers, the Bill should be amended
so that no penalties (including criminal offences, civil penalties, and the
prospect of visa cancellation) are imposed on visa-holders, who are considered
to be victims.[29]
These concerns are discussed further in the ‘Key issues
and provisions’ section of the Digest.
Migration Institute of Australia
The Migration Institute of Australia (MIA) noted that
‘payments for visas’ activity is commonplace, particularly in the 457 visa
programme and expressed its support for the wide definition of ‘sponsorship
related events’:
Over the years the MIA has heard anecdotal reports of payment
for visa models, from, at the most basic level, requiring the visa applicant to
pay the sponsor’s costs for 457 sponsorship, up to payments of $250,000 per
year which included an amount to ‘recycled’ [sic] back as a high income salary
that allowed the visa holder to bypass the English language requirement.[30]
The MIA recommended that the Government conduct media
campaigns aimed at informing sponsors and visa applicants of their obligations
and rights (including providing multilingual information) and ensure that
potential visa applicants understood that paying for professional assistance
was not prohibited under the new provisions.[31]
Australian Council of Trade Unions
The Australian Council of Trade Unions (ACTU) adopted a
similar position to the LIV, noting that while the provisions aimed at
preventing employers from soliciting and receiving payments from migrant
workers ‘are a long overdue law reform that addresses a known problem’, there
is a significant danger that it will be the migrant workers themselves who end
up ‘on the wrong side of this law’.[32]
The Explanatory Memorandum states that the financial
impact of the new provisions is low, with costs to be met from within existing
resources of the Department.[33]
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. The
Government considers that the Bill is compatible with human rights ‘because it
protects the rights of non-citizen workers’.[34]
The Statement of Compatibility argues that the Bill engages positively with Articles
6 and 7 of the International Covenant on Economic, Social and Cultural
Rights (ICESCR), and Article 8 of the International Covenant on Civil
and Political Rights (ICCPR):[35]
The introduction of penalties for asking for or receiving a
benefit for a sponsorship-related event positively engages these Articles
because the Bill reduces the risk that a person will accept payment to sponsor
or nominate a person for a visa. Persons who have paid for sponsorship or
nomination may be more vulnerable to exploitation and extortion such as
unfavourable/unsafe/unhealthy working conditions, unfair pay,
slavery/servitude/forced labour due to the risk of having their visa cancelled
if their employment ceases.[36]
Parliamentary Joint Committee on
Human Rights
The Parliamentary Joint Committee on Human Rights considered
the provisions of the Bill and found that they did not require additional
comments as they either promote human rights and/or contain justifiable
limitations on human rights.[37]
New criminal and civil penalty
regime
Item 6 of the Bill inserts proposed Subdivision
D in Division 12 of Part 2 of the Act, which introduces new criminal
offence and civil penalty provisions for individuals and corporations who
either give or receive a benefit in exchange for some form of sponsor-related
activity.[38]
Proposed section 245AQ sets out a number of
definitions used in new Subdivision D, as well as the new visa cancellation
ground (contained in proposed subsection 116(1AC), at item 1).
A ‘benefit’ will include any of the following:
- a
payment or other valuable consideration
- a
deduction of an amount
- any
kind of real or personal property
- an
advantage
- a
service or
- a
gift.
The Explanatory Memorandum notes that this definition was
drafted to be wide enough to include benefits ‘known to be offered or provided in
‘payment for visas’ arrangements by visa holders, including deductions of a
visa holder’s salary or wages, payment for goods or services above market value
or unpaid work’.[39]
The Department noted that the definition is also wide enough to include anything
given in exchange for sponsorship, including sexual favours.[40]
However, the LIV submitted that the definition was overly
broad and combined with the other proposed provisions ‘allows for strong
penalties to be imposed on vulnerable migrant workers who do not understand the
full implications of their behaviour in this complex area’.[41]
The Australian Industry Group (AI Group) also argued that the amendments would
have unintended consequences.[42]
They submitted that the Bill ‘would appear to make unlawful various legitimate
benefits currently provided by businesses for the benefit of visa holders and
their families’, such as advances of salary paid to the visa holder, aimed at
assisting them with finding accommodation, meeting the cost of living expenses
when moving to Australia and paying for the addition of a family member to the
457 visa.[43]
While the payment of advances to visa holders would not be considered unlawful,
the AI Group argued that any attempt by the visa holder to reimburse the
business could contravene the new provisions. Both E&Y and the MIA shared
similar concerns, with E&Y suggesting that the Bill be amended to make
clear that it does not ‘encompass situations where a person or employer derives
the ordinary benefit arising out of the lawful employment of a visa holder’.[44]
Proposed section 245AQ also defines a ‘sponsorship-related
event’. This definition is very wide as it is intended to ‘capture ‘payment for
visas’ conduct that occurs at any point before and during the visa application
process or while the visa is in effect, including entering the sponsorship
arrangement, making a nomination or employing a person’:[45]
A person might enter into a ‘payment for visas’ arrangement
in return for agreeing to sponsor or making a nomination in relation to a visa
applicant or holder. A person might also enter into a ‘payment for visas’
arrangement in relation to a wide range of events associated with a sponsorship
or nomination, such as applying for approval to become a sponsor, entering into
a work agreement, employing a person to work in an occupation or position, or
including a family member in a nomination. The events also anticipate the
possibility that a benefit might be extracted from a visa applicant or holder
under threat of withdrawal of a nomination or termination of their employment.
Also, a benefit could be given upon grant of the sponsored visa in recognition
that it was the sponsorship or nomination which allowed the visa criteria to be
met.[46]
Proposed paragraph 245AQ(l) of the definition of
‘sponsorship-related event’ allows additional events to be prescribed. This can
occur by way of legislative instrument which will not be subject to
disallowance.[47]
Proposed section 245AQ also clarifies which classes
of sponsors and which sponsored visas are relevant for the purposes of
determining when a ‘sponsorship-related event’ has occurred. Specifically, both
‘sponsor class’ and ‘sponsored visa’ are to be prescribed in the regulations. The
Explanatory Memorandum states that it is intended that the following temporary
and permanent classes of visas will be prescribed for the purposes of the
definition of ‘sponsored visa’ in proposed section 245AQ:
- Subclass
457 (Temporary Work (Skilled)) visa
- Subclass
401 (Temporary Work (Long Stay Activity)) visa
- Subclass
402 (Temporary Work (Training and Research)) visa
- Subclass
420 (Temporary Work (Entertainment)) visa
- Subclass
488 (Superyacht Crew) visa
- Subclass
186 (Employer Nomination Scheme) visa and
- Subclass
187 (Regional Sponsored Migration Scheme) visa.[48]
In his second reading speech, the Minister noted that it was
his intention ‘to later expand the ‘payment for visas’ provisions to family and
other visas where there is the potential for this conduct to occur’.[49]
The Department commented that ‘these visas were chosen based on existing
allegations within some of these programmes, as well as aiming to reduce the
potential for ‘payment for visas’ conduct to become an issue in other visa
programmes’.[50]
Paragraphs (a) and (b) of the new definition of ‘sponsorship-related
event’ refer to applying for approval as a sponsor or applying for a variation
of a term of an approval as a sponsor under section 140E in relation to a
particular sponsor class.
Regulation 2.58 of the Migration Regulations 1994 currently
prescribes the classes of sponsor in relation to which a person may be approved
as a sponsor (for the purposes of subsection 140E(2) of the Act). The following
sponsor classes are currently prescribed:
- a
standard business sponsor
- a
professional development sponsor
- a
special program sponsor
- an
entertainment sponsor
- a
superyacht crew sponsor
- a
long stay activity sponsor and
- a
training and research sponsor.[51]
Paragraphs (d) to (k) of the new definition of ‘sponsorship-related
event’ refer to actions that can be taken in relation to a sponsored visa,
including agreeing to be a person’s sponsor, including a family member in a
person’s nomination, not withdrawing a nomination and employing or engaging a
person to work in an occupation or position for which a visa has been granted.
Proposed subsection 245AR(1) prohibits a person
from asking for or receiving a benefit in return for a ‘sponsorship-related
event’ occurring, while proposed subsection 245AS(1) prohibits a person
from providing or offering to provide a benefit in return for a ‘sponsorship-related
event’ occurring. There is no need for the ‘sponsorship related-event’ to have
actually occurred for a person to be found to have contravened either proposed
subsection 245AR(1) or proposed subsection 245AS(1). In addition, a defence is
available to those offering a legitimate professional service. The above
provisions will not have been contravened if:
- the
benefit asked for, or received by the first person is a payment of a reasonable
amount for a professional service that has been provided, or is to be provided,
by the first person or a third person or
- the
benefit offered, or provided by the first person is a payment of a reasonable
amount for a professional service provided or to be provided by a second or
third person.[52]
The Explanatory Memorandum clarifies:
it is not considered that the provision of immigration
assistance or recruitment advice would normally constitute conduct that
contravenes subsection 245AR(1), however, there may be situations in which
‘payment for visas’ conduct occurs in a context in which legitimate
professional services are also being provided.[53]
The onus will be on the defendant to prove that the
benefit constitutes a reasonable amount (proposed subsections 245AR(6) and
245AS(4)). The Explanatory Memorandum argues that it is necessary to
reverse the onus of proof in this case as ‘the information as to whether the
benefit constitutes a reasonable fee for a professional service is uniquely
within the knowledge of the defendant’.[54]
A person found to have contravened proposed subsection 245AR(1) will
have committed an offence (with a maximum penalty of two years imprisonment
and/or 360 penalty units)[55]
or be liable for a civil penalty (with a maximum penalty of 240 penalty units).[56]
A person found to have contravened proposed subsection
245AS(1) will be liable for a civil penalty (with a maximum penalty of 240
penalty units).[57]
The Scrutiny of Bills Committee noted that subsections
245AR(5) and 245AS(1) (the civil penalty provisions) operate as strict liability
penalties, due to the operation of section 486ZF of the Act, which provides
that it is not necessary to prove a person’s state of mind in proceedings for a
civil penalty order.[58]
Due to the significant number of penalty units imposed, the Committee sought
further justification from the Minister.[59]
At the time of writing this Digest, the Committee had not published any response
received from the Minister.
The Department has argued that these penalties are needed
in order to deter businesses and visa holders from engaging in ‘payment for
visas’ conduct:
To protect the integrity of Australia’s migration programme,
the penalties must be set sufficiently high to cover any potential gain and to
discourage or deter people from this conduct. The high maximum penalties for
the criminal offence and civil penalty provisions are commensurate with
anecdotal evidence as to the upper limits of amounts paid in ‘payment for
visas’ cases and the severity of the consequences of ‘payment for visas’
conduct whilst remaining proportionate with other offences under the [Act]. For
example, section 233D-Supporting the offences of people smuggling and section
233E-Concealing and harbouring non-citizens etc. both carry a much heavier
maximum penalty of imprisonment for 10 years or 1,000 penalty units, or both.[60]
It is also relevant to note the way in which the
Department plans to punish less serious instances of the prohibited conduct:
The criminal offence and civil penalty framework is only one
aspect of the Department’s options to mitigate and respond to unlawful conduct
in the migration programme. It is intended that complementary changes will be
introduced into the Regulations to allow the application of established
administrative sanctions to apply to less serious instances of the conduct.
This may include barring from future sponsorship, cancelling current
sponsorship and the issuance of an infringement notice to sponsors involved in
‘payment for visas’ conduct. Under the intended infringement notice provisions,
a person alleged to have contravened a civil penalty provision may be served
with an infringement notice giving the person an option of paying a fine of
one-fifth of the maximum civil penalty as an alternative to civil penalty
action being taken.[61]
However a number of stakeholders have raised concerns
about the impact these proposed amendments will have on overseas workers,
particular those on temporary visas who are particularly vulnerable:
Many visa applicants and visa holders have limited knowledge
of Australian law and business culture and come from cultures where it may be
common practice to provide a “benefit” of some kind in return for job placement
or other services. Further, as the media investigation into the 7-Eleven labour
practices has highlighted, temporary visa holders are vulnerable to
exploitative employers and can be coerced into breaches of the law which
cements the exploitative situation.[62]
The ACTU stated that while the issue of worker
exploitation has recently been the subject of much media attention, these
recent revelations are simply the latest in a long history of cases:
A recurring theme with these cases is the vulnerable situation
the temporary visa holders were in, whether that was influenced by their desire
to stay in Australia or achieve permanent residency, the fear of retribution if
they spoke out, their lack of knowledge of their workplace rights, their poor
English, the spectre of a debt hanging over them, or a combination of all these
factors. In many cases, it is their direct employer who is taking advantage of
them, but in others it is an agent of some description based in Australia or
the home country of the visa holder. In some cases, employers and agents are
acting together in organised scams which are more akin to labour trafficking
and even slavery. In all cases, workers are left disillusioned with their
experience of working in Australia.[63]
The ACTU argued that the provisions should only target
employers or other persons who seek to exploit workers and that there is no
good policy reason to also penalise migrant workers.[64]
It does appear somewhat inconsistent for the Department to claim that these
provisions are required in order to protect overseas workers who may be more
vulnerable to exploitation and extortion and then subject overseas workers to
the same financial penalty as those seeking to exploit them.[65]
While the Department refers to cases where some employers
have sought to take advantage of visa holders, there does not appear to be any
evidence of situations where overseas workers have offered or provided payments
on their own initiative.[66]
The proposed provisions contain no exceptions to cover situations where an
overseas worker has been pressured or coerced into offering or providing a
benefit. Thus, it may be the case that instead of reducing the risk of
exploitation of overseas workers, the proposed provisions will actually result
in them being put in a more vulnerable position then they are currently in.
New subsections 245AT and 245AU respectively
set out the criminal and civil liability of executive officers of bodies
corporate for offences listed under new Subdivision D. An executive officer is
considered to be a director, the chief executive officer, the chief financial
officer or the secretary of the body corporate (see definitions in proposed
section 245AQ). The executive officer will be considered to be liable for
the actions of the body corporate where the body corporate commits an offence
against, or contravenes a civil penalty provision of, proposed subdivision D
(‘sponsorship-related offence’) and the executive officer knew or was
reckless or negligent as to whether the contravention would occur, the
executive officer was in a position to influence the conduct of the body
corporate and failed to take all reasonable steps to prevent the contravention
from occurring.[67]
An offence against section 245AT will result in the executive officer having
committed an offence being liable to a maximum penalty of 360 penalty units.[68]
Contravention of section 245AU will result in an executive officer being liable
for a civil penalty with a maximum penalty of 240 penalty units.[69]
Proposed sections 245AX and 245AY provide
that proposed subdivision D applies to partnerships and
unincorporated associations as if they were a person, but with the changes set
out in the respective sections.
Geographical scope
Proposed section 245AW extends the geographical
scope of the offences and civil penalty provisions contained in proposed
subdivision D.
Extended geographical jurisdiction
for criminal offences
In relation to the criminal offences, proposed
subsection 245AW(1) provides that extended geographical jurisdiction
category B, as provided in section 15.2 of the Criminal Code Act 1995,
applies.[70]
Extended geographical jurisdiction category B already applies to offences
against Subdivision C of Division 12 of Part 2 of the Act.[71]
Standard geographical jurisdiction
The standard geographical jurisdiction that applies to
federal offences is set out at section 14.1 of the Criminal Code and will
be satisfied if the relevant conduct occurs:
- wholly
or partly in Australia, or wholly or partly on an Australian ship or Australian
aircraft or
- wholly
outside Australia and a result of the conduct occurs wholly or partly in
Australia, or wholly or partly on an Australian ship or Australian aircraft.[72]
In relation to an ancillary offence (such as attempt,
incitement or conspiracy to commit an offence[73])
the standard geographical jurisdictional requirement will also be satisfied if:
-
the conduct constituting the ancillary offence (for example, the
attempt) occurs wholly outside Australia and
- the
conduct constituting the primary offence (for example, a person receiving a
benefit in return for the occurrence of a sponsorship-related event) or a
result of that conduct occurs, or is intended to occur, wholly or partly in
Australia, or wholly or partly on an Australian ship or Australian aircraft.[74]
Section 14.1 of the Criminal Code provides for a
defence in circumstances where the conduct occurs entirely in a foreign country
(but not aboard an Australian ship or aircraft) and that foreign country does
not have an offence that corresponds to the Australian offence. The defendant
bears the evidential burden of establishing that the defence is applicable.
This means that the defendant needs to adduce or point to evidence that
suggests a reasonable possibility that the relevant circumstances exist.[75]
Extended geographical jurisdiction
Under extended geographical jurisdiction category B,
jurisdictional requirements are satisfied if:
- standard
geographical jurisdiction is met or
- the
relevant conduct occurs wholly outside Australia and the person charged was, at
the time of the alleged offence, an Australian citizen, Australian resident or a
body corporate incorporated in Australia.[76]
As is the case under standard geographical jurisdiction, a
person will have a defence to a charge if the conduct occurs entirely in a foreign
country (but not aboard an Australian ship or aircraft) and that foreign
country does not have an offence that corresponds to the Australian offence,
but this defence cannot be used if the defendant is an Australian citizen or
Australian corporation.
Extended geographical jurisdiction
for civil penalties
In relation to the civil penalty provisions in
proposed subdivision D, proposed subsection 245AW(2) largely reflects
the extended jurisdiction relevant to criminal offences due to the application
of section 15.2 of the Criminal Code, by providing that a civil penalty
order against a person must not be made unless:
- their
prohibited conduct occurs wholly or partly in Australia or wholly or partly on
board an Australian aircraft or an Australian ship
- their
conduct occurs wholly outside Australia and they are an Australian citizen or
resident or an Australian incorporated corporation or
- all
of the following conditions are satisfied—the offence constitutes an ancillary contravention
(see above), the conduct occurs wholly outside Australia, and the conduct
constituting the primary contravention occurs or is intended to occur wholly or
partly in Australia or wholly or partly on board an Australian aircraft or an
Australian ship.
Proposed subsections 245AW (3) and (4) create
defences for contraventions of civil penalty provisions, which also mirror the
defences set out under section 15.2 of the Criminal Code. Proposed
subsection 245AW(3) provides that it is a defence in civil proceedings
relating to a primary contravention if:
- the
conduct occurs wholly in a foreign country (but not on board an Australian
aircraft or ship)
- the
offender is not an Australian citizen or Australian body corporate and
- there
is not in force an equivalent foreign law that penalises such conduct in the
territory where the contravention occurs.
As is the case in relation to the criminal provisions, the
onus is on the defendant to establish that one of the defences listed in
proposed subsections 245AW (3) or (4) applies. The Scrutiny of
Bills Committee raised concerns over the lack of justification for placing the
evidential burden on the person who is alleged to have contravened a civil
penalty provision, noting that it is not clear how information about a person’s
citizenship/the place of incorporation of a body corporate can be considered
information ‘peculiarly within the knowledge of the defendant’ nor ‘why it is
appropriate to require a defendant to establish the legal position in the other
country’.[77]
Power of the Minister to cancel visa
when a person has engaged in ‘payment for visas’ activity
Section 116 of the Act sets out circumstances when the
Minister may cancel a visa. Item 1 of the Bill inserts proposed subsection
116(1AC) into the Act which introduces a new ground for when the Minister
may cancel a person’s visa. Specifically, proposed subsection 116(1AC)
provides that the Minister has the discretion to cancel a person’s visa if
satisfied that:
- a
‘benefit’ was asked for or received by, or on behalf of, the visa holder from
another person in return for the occurrence of a ‘sponsorship-related event’,
or
- a
‘benefit’ was offered or provided by, or on behalf of, the visa holder to
another person in return for the occurrence of a ‘sponsorship-related event’.[78]
Proposed subsection 116(1AD) clarifies that it is
irrelevant whether or not the ‘sponsorship-related event’ actually occurred. It
is also irrelevant whether the person held a visa at the time the prohibited
conduct occurred or whether the ‘sponsorship-related event’ relates to a visa
held by the person.
Item 2 amends subsections 116(2) and (3) to
allow for the Regulations to prescribe circumstances when the Minister cannot
cancel a visa or when the Minister must cancel a visa under proposed
subsection 116(1AC).
Item 4 inserts a reference to proposed subsection
116(1AC) into subsection 117(1) to ensure that the current rules setting
out the point in time at which a visa can be cancelled also apply to visa
cancellations under the new subsection.
The Scrutiny of Bills Committee questioned whether merits
review will be available in relation to decisions made by the Minister pursuant
to subsection 116(1AC).[79]
Clarification was provided by the Department, which also highlighted that the
Minister would weigh up a number of factors before deciding to cancel a
person’s visa:
Visa cancellation is discretionary and, consistent with other
cancellation powers in the Act, the visa holder would be afforded procedural
fairness during the cancellation process. In considering whether to exercise
the discretion to cancel, the Minister or delegate would consider a range of
factors including the visa holder’s complicity in the ‘payment for visas’
conduct, the extent of the ‘payment for visas’ conduct, and whether a benefit
was obtained as a result of the ‘payment for visas’ conduct. Other considerations
would include the strength of the visa holder’s ties to Australia and
contribution to the Australia community, as well as Australia’s international
obligations such as the best interest of children, family unit and
non-refoulement obligations.[80]
As with the new penalty provisions, a number of
organisations have argued that the proposed amendments will have an adverse
impact on overseas workers and will put ‘vulnerable applicants and trafficking
victims at unacceptable risk of having their visa cancelled’.[81]
The Law Society of South Australia noted that the amendments have been drafted
very broadly and ‘would apply in respect of a person who has no knowledge that
payment has been proposed or made in return for visa sponsorship’.[82]
The Federation of Ethic Communities’ Councils of Australia
(FECCA) shared similar concerns:
Many visa holders fear losing their visa or being deported if
they report misconduct and mistreatment to Fair Work Ombudsman and/or
Department of Immigration and Border Protection. Visa holders will be less
likely to come forward about payment for sponsorship arrangements if they fear
the cancellation of their visa and/or being subject to substantial civil
penalty provisions. These penalties give employers leverage over their employees;
if temporary visa holders report their employer for unlawful conduct, it may
result in their own visa cancellation.[83]
It is also relevant to note that the proposed amendments
contain no exceptions for situations where a visa holder was exploited or
tricked into offering or providing a benefit. The amendments may also
discourage visa holders reporting their employer to the Department or from making
a complaint to a union or non-government organisation for fear of being
reported.[84]
It is also argued that, as a result of the proposed visa cancellation power,
visa holders will be in a worse position than their employers for committing
the same offence:
The ease with which the Minister will be able to cancel a
visa, over the difficulty of obtaining enough evidence to mount a successful
civil prosecution means the Bill is likely to result in the visas of many
trafficked and exploited workers being cancelled with few successful
prosecutions of those who have trafficked or exploited them. This is
particularly the case as most of the offers of a sponsorship-related event are
made verbally, so the only evidence of the offer being made is the verbal
evidence of both the visa holder and the sponsor. Both will now be given an
incentive not to report the new offence.[85]
While the Department has clarified that the Minister or his
delegates will consider a ‘range of factors’ when making a determination to
cancel a person’s visa these are not included in the proposed provisions. The
LIV expressed concern about the level of training to be provided to delegates
and argued that ‘given the significant consequences of the exercise of the
power and the fact that it may be exercised by delegates of the Minister,
safeguards are desirable and necessary’.[86]
Expansion of investigation powers and powers of inspectors
Item 5 amends paragraph 140X(aa) to allow the
powers of an inspector under Subdivision F of Division 3A of Part 2 of the Act to
be exercised for the purposes of investigating whether a person who is or was
an approved sponsor, and therefore obliged to satisfy a sponsorship obligation,
has committed an offence, or contravened a civil penalty provision, under new
Subdivision D of Division 12 of Part 2.[87]
Subdivision F sets out a number of powers that can be
exercised by inspectors, including the power to enter any place or business
premises, the power to inspect any work, process or object on the premises, the
power to interview any person and the power to inspect, and make copies of, any
record or document on the premises. In particular, subsection 140XG(1) provides
that where a person has been requested to provide a record or document by an
inspector, they cannot refuse to do so even if this might incriminate them or
expose them to some form of penalty. Subsection 140XG(2) provides that the
record or document produced is not admissible in criminal proceedings
(including any information obtained as result of the production of the document
or record) except in relation to certain offences where the person is alleged
to have produced false or misleading information or documents.
Item 8 renames Part 8E of the Act from ‘Investigation powers relating to work‑related
offences and provisions’ to ‘Investigation powers relating to certain
offences and provisions’ to reflect that the investigation powers under this
part will now be expanded to include the new ‘sponsorship-related offences’ in Subdivision
D and not just work related offences. Items 9-11 insert references to ‘sponsorship-related
offences’ in order to clarify that the provisions requiring a person to give
information or produce documents or to comply with a search warrant will now
apply to persons suspected of having committed a ‘sponsorship-related offence’.
Item 12 amends section 487A to define ‘sponsorship-related
offence’ to mean in effect those offences set out in Subdivision D relating to
‘payment for visas’ activity. Item 13 repeals paragraphs 487B(1)(a) and
(b) and inserts proposed paragraphs 487B(1)(a) to (d), to allow the Secretary
or Australian Border Force Commissioner, by way of written notice, to require a
person to give information, or to produce documents, to an authorised officer
where they believe that the person has information or a document relevant to a
possible ‘sponsorship related offence’ or a possible contravention of a ‘sponsorship-related
provision’ (defined in item 12 as a civil penalty provision in
subdivision D).
As with the amendments to section 140XG (discussed above),
items 14 and 15 amend section 487C to expand the abrogation
of the privilege against self-incrimination to ‘sponsorship-related offences’
in Subdivision D. Subsection 487C(1) provides that a person who is required,
under section 487B, to provide information or produce a document, cannot
refuse to do so on the basis that this might incriminate them or expose them to
a penalty. Subsection 487C(2) then provides that the record or document
produced, and any information or document acquired as a consequence, is not
admissible in certain court proceedings. Put another way, the subsection
provides a qualified use and derivative use immunity. If amended as proposed by
items 14 and 15 of the Bill, paragraphs 487C(2)(d) and (e) will provide
that information or documents produced, or obtained as a consequence are not admissible:
(d) in
criminal proceedings (other than proceedings for an offence against section
137.1 or 137.2 of the Criminal Code that relates to Subdivision C or D of
Division 12 of Part 2 of this Act); or
(e) in
civil proceedings (other than proceedings for a civil penalty order for an
alleged contravention of a sponsorship-related provision or a work‑related
provision).
In relation to the proposed amendment to paragraph
487C(1)(d), the Explanatory Memorandum to the Bill states:
The effect of this amendment is that information or a
document required to be given by a person under section 487B may be used
in criminal proceedings against the person in relation to a sponsorship-related
offence under new Subdivision D of Division 12 of Part 2 of the Act, but is not
admissible evidence against the person in any other criminal proceedings.[88]
However, that assessment does not appear to reflect the
actual effect of the proposed amendment. As set out above, the amended
paragraph would provide that the criminal proceedings in which the information
and documents are admissible are limited to proceedings for an offence
against section 137.1 or 137.2 of the Criminal Code (which relate to the provision
of false or misleading information or documents) that relates to Subdivision
C or D of Division 12 of Part 2 of the Migration Act. This would not
appear to extend admissibility to proceedings for offences against Subdivision
C or D of Division 12 of Part 2 of the Migration Act per se. This
interpretation is supported by the Explanatory Memorandum to the Migration Amendment (Reform of Employer Sanctions) Bill 2012, which inserted section 487 into the Migration Act.[89]
That Explanatory Memorandum stated:
Subsection 487C(2) protects individuals from information
given or documents produced in response to a notice under new section 487B from
being admissible in evidence against them in criminal proceedings (except
for certain offences under the Criminal Code) and the majority
of civil penalty proceedings. It does not, however, protect individuals from
the document or information being admissible in evidence against them in
proceedings for a civil penalty order for an alleged contravention of a
work-related provision (emphasis added).[90]
Based in part on the assessment of the impact on item
14 as set out in the Explanatory Memorandum to the Bill, the Scrutiny of
Bills Committee raised concerns over from the abrogation of the privilege
against self-incrimination in proposed paragraphs 487C(2)(d) and (e).[91]
The Committee noted that the justification provided by the Department was
insufficiently compelling and it had not been established that the relevant
information could not be obtained by other lawful means.[92]
Item 17 allows for search warrants to be issued in
relation to a ‘sponsorship-related offence’ or a ‘sponsorship related
provision’.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500
[1]. Migration Act 1958,
accessed 10 November 2015.
[2]. Explanatory
Memorandum, Migration Amendment (Charging for a Migration Outcome) Bill
2015, pp. 1–2.
[3]. Ibid.,
p. 1.
[4]. P
Dutton (Minister for Immigration and Border Protection), ‘Second
reading speech: Migration Amendment (Charging for a Migration Outcome) Bill
2015’, Senate, Debates, 16 September 2015, p. 10350, accessed 10
November 2015.
[5]. Explanatory
Memorandum, Migration Amendment (Charging for a Migration Outcome) Bill 2015,
op. cit., p. 1.
[6]. M
Cash (Assistant Minister for Immigration and Border Protection), Independent
review of 457 visa programme, media release,
25 February 2014, accessed 21 October 2015.
[7]. J Azarias, J
Lambert, P McDonald and K Malyon, Robust
new foundations – a streamlined, transparent and responsive system for the 457
programme, report prepared for the Department of Immigration and Border
Protection (DIBP), DIBP, September 2014, accessed 21 October 2015.
[8]. Ibid., pp. 14–20.
[9]. Ibid.,
p. 73.
[10]. J
Azarias et al, Robust
new foundations – a streamlined, transparent and responsive system for the 457
programme, op. cit., p. 73.
[11]. DIBP,
‘Government
response to the Independent Review into the integrity of the subclass 457
programme’, DIBP website, accessed 21 October 2015.
[12]. P
Dutton, ‘Second
reading speech: Migration Amendment (Charging for a Migration Outcome) Bill
2015’, House of Representatives, Debates,
16 September 2015, p. 10350, accessed 12 November 2015.
[13]. Ibid.,
p. 10351.
[14]. Selection
of Bills Committee, Report,
12, 2015, The Senate, 17 September 2015.
[15]. Senate
Legal and Constitutional Affairs Committee, Submissions,
Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill
2015, accessed 11 November 2015.
[16]. Senate
Legal and Constitutional Affairs Committee, Migration
Amendment (Charging for a Migration Outcome) Bill 2015 [Provisions],
The Senate, Canberra, 10 November 2015, p. vii, accessed 11 November 2015.
[17]. The
provisions that the Greens have recommended are removed from the Bill would
allow the Minister to cancel a visa if the visa holder asked for, received,
offered or provided a benefit in return for a sponsorship-related event (item
1) and prohibit offering or providing a benefit in return for the
occurrence of a sponsorship-related event (proposed section 245AS (at item 6)).
(The Dissenting report as originally published incorrectly referred to section
245AR, rather than 245AS.) Senator Hanson-Young, Dissenting
report from the Australian Greens, Senate Legal and Constitutional Affairs
Committee, Inquiry into the Migration Amendment (Charging for a Migration
Outcome) Bill 2015, The Senate, Canberra, 10 November 2015, accessed
11 November 2015.
[18]. Senate
Legal and Constitutional Affairs Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
The Senate, Canberra, 2015, accessed 9 November 2015.
[19]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 11, 2015, The Senate, 14 October 2015, pp. 20–25.
[20]. Ibid.,
pp. 21–25.
[21]. R
Marles (Shadow Minister for Immigration and Border Protection), ‘Second
reading speech: Migration Amendment (Charging for a Migration Outcome) Bill
2015’, House of Representatives, Debates, 10 November 2015, p. 9.
[22]. Ibid.
[23]. Ernst
& Young, Submission
to Senate Education and Employment References Committee, Inquiry into the
impact of Australia's temporary work visa programs on the Australian labour
market and on the temporary work visa holders, Submission 24, May 2015, p.
8, accessed 21 October 2015.
[24]. Ibid.
[25]. Ernst
& Young, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into
the Migration Amendment (Charging for a Migration Outcome) Bill 2015, 8 October
2015, p. 1, accessed 21 October 2015.
[26]. Ibid.,
p. 3.
[27]. Ibid.,
p. 3.
[28]. Law
Institute of Victoria (LIV), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
October 2015, p. 4, accessed 21 October 2015.
[29]. Joo-Cheong
Tham, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
8 October 2015, p. 5, accessed 21 October 2015.
[30]. Migration
Institute of Australia (MIA), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
October 2015, accessed 21 October 2015, p. 3.
[31]. Ibid.,
pp. 3–4.
[32]. Australian
Council for Trade Unions (ACTU), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
8 October 2015, p. 3, accessed 21 October 2015.
[33]. Explanatory
Memorandum, op. cit., p. 2.
[34]. The
Statement of Compatibility with Human Rights can be found at page 28 of the
Explanatory Memorandum to the Bill.
[35]. International
Covenant on Economic, Social and Cultural Rights, done in New York on
16 December 1966, [1976] ATS 5 (entered into force for Australia on 10 March 1976);
International
Covenant on Civil and Political Rights, done in New York on 16 December
1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13
November 1980; Art. 41 came into force for Australia on 28 January 1994).
[36]. Explanatory
Memorandum, op. cit., p. 29.
[37]. Parliamentary
Joint Committee on Human Rights, Twenty-ninth
report of the 44th Parliament, p. 2, 13 October 2015, accessed 11
November 2015.
[38]. Migration Act 1958,
accessed 10 November 2015.
[39]. Explanatory
Memorandum, op. cit., p. 7.
[40]. DIBP,
Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
October 2015, p. 5, accessed 21 October 2015.
[41]. LIV,
Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
op. cit., p. 8.
[42]. The
Australian Industry Group, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
8 October 2015, pp. 1-2, accessed 21 October 2015.
[43]. Ibid.,
p. 1.
[44]. Ernst
& Young, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into
the Migration Amendment (Charging for a Migration Outcome) Bill 2015, op. cit.,
p. 2; MIA, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
op. cit., pp. 3-4.
[45]. DIBP,
Submission,
op. cit., p. 5.
[46]. Explanatory
Memorandum, op. cit., p. 8.
[47]. Table
item 26, subsection 44(2), Legislative Instruments
Act 2003, accessed 26 October 2015.
[48]. Explanatory
Memorandum, op. cit., p. 8.
[49]. P
Dutton, ‘Second
reading speech: Migration Amendment (Charging for a Migration Outcome) Bill
2015’, Senate, Debates, 16 September 2015, p. 10351.
[50]. DIBP,
Submission,
op. cit., p. 7.
[51]. Migration Regulations 1994,
Regulation 2.58, accessed 9 November 2015.
[52]. Proposed
subsections 245AR(3) and 245AS(3).
[53]. Explanatory
Memorandum, op. cit., pp. 9–10.
[54]. Ibid.,
p. 10.
[55]. This
equates to $64,800 for an individual and $324,000 for a body corporate: see
section 4AA (which provides that a penalty unit is equal to $180) and
subsection 4B(3), Crimes
Act 1914.
[56]. This
equates to $43,200 for an individual and $216,000 for a body corporate: see
subsection 486R(5), Migration Act 1958 and section 4AA, Crimes Act 1914.
[57]. Ibid.
[58]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, op. cit., p. 24.
[59]. Ibid.,
p. 25.
[60]. DIBP,
Submission,
op. cit., p. 8.
[61]. Ibid.
[62]. Ernst
& Young, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
op. cit., p. 4.
[63]. ACTU,
Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
op. cit., p. 4.
[64]. Ibid.,
p. 3.
[65]. Explanatory
Memorandum, op. cit., p. 29.
[66]. Ibid.
[67]. Proposed
subsections 245AT(1) and 245AU(1). Proposed subsections 245AT(2) and
245AU(3) set out the matters a court must have regard to in determining
whether an executive officer failed to take all reasonable steps to prevent the
sponsorship-related offence or contravention from occurring.
[68]. This
equates to $64,800: see section 4AA, Crimes Act 1914.
[69]. This
equates to $43,200: see section 4AA, Crimes Act 1914.
[70]. Criminal Code Act 1995,
accessed 11 November 2015.
[71]. Section
245AM of the Migration Act 1958.
[72]. Section
14.1 of the Criminal Code. See also: I Leader-Elliott, The
Commonwealth Criminal Code—A guide for practitioners, report prepared
for Attorney-General’s Department (AGD) and the Australian Institute of
Judicial Administration, AGD, Canberra, March 2002, p. 357, accessed
11 November 2015.
[73]. See
Division 11 of the Criminal Code.
[74]. Section
15.2 of the Criminal Code.
[75]. Section
13.3 of the Criminal Code.
[76]. Section
15.2 of the Criminal Code. See also: Attorney-General’s Department and
Australian Institute of Judicial Administration, op. cit., pp. 361–363.
[77]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, op. cit., pp. 23–24.
[78]. Item
3 of the Bill clarifies that ‘sponsorship-related event’ and ‘benefit’ are
defined under proposed section 245AQ (discussed above).
[79]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, op. cit., p. 20.
[80]. DIBP,
Submission,
op. cit., p. 9.
[81]. The
Law Society of South Australia, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
9 October 2015, p. 1, accessed 21 October 2015.
[82]. Ibid.
[83]. Federation
of Ethic Communities’ Council of Australia (FECCA), Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
8 October 2015, p. 2, accessed 21 October 2015.
[84]. Justice
and International Mission Unit, Synod of Victoria and Tasmania, Uniting Church
in Australia; The Freedom Partnership – to End Modern Slavery, the Salvation
Army; the National Union of Workers; and Harris Wake Pty Ltd, Submission
to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry
into the Migration Amendment (Charging for a Migration Outcome) Bill 2015,
8 October 2015, p. 4, accessed 21 October 2015.
[85]. Ibid.
[86]. LIV,
Submission,
op. cit., p. 6.
[87]. Subsection
140H(1) provides that a person who is or was an approved sponsor must satisfy
the sponsorship obligations prescribed by the regulations.
[88]. Explanatory
Memorandum, op. cit., p. 25.
[89]. Parliament
of Australia, ‘Migration
Amendment (Reform of Employer Sanctions) Bill 2012 homepage’, Australian
Parliament website accessed 11 November 2015.
[90]. Explanatory
Memorandum, Migration Amendment (Reform of Employer
Sanctions) Bill 2012, p. 78, accessed 11 November 2015
[91]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, op. cit., pp. 21–22.
[92]. Ibid.,
p. 22.
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