Chapter 2 - Overview of the bill
2.1
This chapter briefly outlines the main provisions of the Bill.
Sponsor obligations
2.2
In accordance with regulations made under section 140H of the Migration
Act, employers must currently agree to certain undertakings to be granted
approval to sponsor a person under the 457 visa regime.[1]
These include many, but not all, of the obligations proposed to be incorporated
into new Subdivision BB of the Migration Act. Sponsors who do not comply with the
existing undertakings may be barred from sponsoring employees under the scheme
for a specified period.[2]
2.3
The sponsorship obligations proposed to be included in the Migration Act
are described below. Proposed new civil penalties for non-compliance with these
obligations are outlined below at paragraphs 2.14 – 2.18.
Minimum salary levels
2.4
Proposed paragraph 140IC(1)(a) provides that workers on 457 visas must
be paid a minimum salary subject to determination of the Minister by legislative
instrument. Under proposed paragraph 140IC(1)(b) this must be paid either when
the visa holder begins working or 28 days after the visa holder enters Australia,
whichever occurs first. If the visa holder is in Australia when the visa is
granted payment must commence from the earlier of the date of commencement or
28 days after the visa is granted.[3]
In his second reading speech the Minister stated:
This obligation ... acknowledges the fact that Australian
employers must look first to employing and training Australians and that the
Subclass 457 visa programme will not be used to erode the salaries and
conditions of Australian employees.[4]
Employment in the nominated or
higher skill level activity
2.5
Proposed section 140ID provides that sponsors must not employ 457 visa
holders in a lower skill level activity than that which formed the basis for
granting of the visa. Visa holders may be moved to a different activity, but it
must be of the same or higher skill level than that originally proposed.[5]
In his second reading speech the Minister stated:
This protects against the Subclass 457 visa programme being used
to bring overseas workers to Australia to carry out unskilled jobs.
Travel costs
2.6
Proposed subsections 140IE(1) and (2) provide that approved sponsors are
obliged to meet the return travel costs of the primary, and any secondary, visa
holders. Under subsection 140IE(3), if a person changes sponsorship the last (most
recent) approved sponsor is responsible for meeting his or her travel costs
(and those of any secondary visa holder) back to the country whence they came.[6]
Medical costs
2.7
Proposed subsections 140IF(1) and (2) provide that approved sponsors are
obliged to meet the prescribed medical costs of the primary, and any secondary,
visa holders. Subsection 140IF(3) establishes what the regulations may specify
with respect to the extent of a sponsor's obligation in this area. Instances
where sponsors take out health insurance on behalf of sponsors, including the
obligation to cover gap payments, are dealt with in subsection 140IF(5).[7]
Other fees and costs
2.8
Proposed section 140G addresses additional costs to be paid by the
sponsor. These include fees imposed under Commonwealth, State or Territory law,
costs associated with the recruitment of the visa holder and migration agent
costs.[8]
Record keeping
2.9
Proposed new section 140IH requires sponsors to keep certain records as
prescribed by regulations. New section 140IK obliges sponsors to provide
certain information when requested by the Secretary of DIAC.[9]
Meeting the costs of processing
non-departure
2.10
Proposed section 140IJ provides that sponsors are obliged to meet
expenses incurred by the Commonwealth in locating, detaining and removing 457
visa holders who have overstayed their visa. The Explanatory Memorandum (EM) states:
This amendment ensures that the Australian community does not
end up paying for the removal of a person who has come to Australia to
undertake employment but rather the person responsible for bringing the person
into Australia bears the cost. This is an incentive to employers wishing to
sponsor persons to undertake employment activities in Australia on a temporary
basis, to ensure that the persons they wish to sponsor genuinely intend skilled
employment in Australia.[10]
Other obligations
2.11
Proposed section 140IL allows for further obligations on sponsors to be
prescribed by regulation.
Investigative powers
2.12
Proposed paragraph 140ZJ(2)(a) authorises inspectors to 'enter, without
force, a place of business or other place where he or she has reasonable cause
to believe that there is information, documents or any other thing relevant to
[determining compliance with sponsor obligations]'. Under paragraph 140ZJ(2)(b)
this includes:
- inspecting any work, material, appliance, article or facility;
- interviewing any person;
- requiring documents to be produced within a specified period; and
- inspecting, copying or taking extracts from documents.[11]
2.13
Failure to produce documents requested by an inspector is an offence
attracting a maximum penalty of six months imprisonment under proposed section
140ZK.[12]
Penalties
2.14
Proposed subsection 140SB(2) provides that breaches of sponsorship
obligations are subject to civil penalties of up to 60 penalty units for an
individual and 300 penalty units for a body corporate for each identified
breach. For breaches prescribed in regulations under proposed section 140IL the
maximum is 50 and 250 penalty units respectively.[13]
2.15
Proposed subsection 140SB(6) also allows an eligible court to order that
restitution be paid where a sponsor owes a person or a government money
pursuant to the sponsor's obligations.[14]
2.16
The EM outlines the justification for the use of civil penalty penalties
instead of criminal sanctions as follows:
The justification for the use of civil penalties, as opposed to
criminal sanctions, is that the imposition of criminal sanctions on sponsors
could have harsh consequences on the sponsor such [as] a loss of their export
licence (or any other licence for that matter), which would not be in
Australia's best interest. The use of civil penalties is also considered
appropriate for the enforcement scheme to be flexible and administratively
manageable. The use of civil penalties will increase compliance with migration
legislation (and other relevant laws), thereby preserving the integrity of the
Australian labour market and improving the conditions of overseas workers. In
addition, the justification for no fault civil penalty offences is to
facilitate an infringement notices regime.[15]
2.17
Proposed new paragraph 504(1)(jb) enables regulations to be made to
establish an infringement notice regime as an alternative to civil proceedings.
The EM states:
The purpose of this amendment is to set up a power to make
regulations which provide a person who is alleged to have contravened a
provision in or under Subdivision BB with an alternative to a civil penalty proceeding
under section 140SB. The alternative is to pay to the Commonwealth, an amount
not exceeding one-fifth of the maximum penalty that would have applied for
contravention of the provision.[16]
2.18
Proposed subsection 140K(1A) allows the Minster to cancel sponsorship
approval or bar a sponsor where the Minister reasonably believes an obligation
has been breached. Subsection 140K(1B) also allows the Minister to bar a
sponsor where the Minister reasonably believes that a Commonwealth, State or Territory
law relevant to their status as a sponsor has been breached.[17]
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