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2004 2005 2006 2007
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (SPONSORSHIP OBLIGATIONS) BILL 2007
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
the Honourable Kevin Andrews MP)
MIGRATION AMENDMENT (SPONSORSHIP OBLIGATIONS) BILL 2007
OUTLINE
The Migration Amendment (Sponsorship Obligations) Bill 2007 (`the bill') amends the
Migration Act 1958 (`the Act') to introduce a regime of obligations to be met by
employers who are approved sponsors in relation to a person for a visa. The new regime
will apply to prescribed kinds of visas and where the obligations apply these will replace
the current undertakings arrangements. Importantly the new regime also incorporates
enforcement provisions by way of civil penalties if an approved sponsor breaches an
obligation.
The bill also includes provisions for inspectors to monitor an employer's compliance with
their sponsorship obligations which is an important element of the enforcement regime.
In addition there are enhanced information exchange powers between the Department and
other prescribed Commonwealth, State and Territory agencies.
More specifically the bill:
· creates a new subdivision of sponsorship obligations that will automatically apply
to an approved sponsor;
· includes an enforcement and sanctions regime for compliance with those
obligations including provisions for:
o the appointment of inspectors with powers to undertake
investigations in relation to a sponsor's compliance with the
sponsorship obligations or other requirements. These are standard
powers which have been adopted (with some modifications) from the
Workplace Relations Act 1996 (the WRA);
o provision of civil penalties for breach by an approved sponsor of any
of the obligations in the Act and provision for additional obligations
with penalties to be prescribed in the regulations;
o remedies for those "out of pocket" as a result of an approved
sponsor's non compliance with an obligation. This will include power
for an eligible court in civil remedy proceedings to make orders in
relation to money to be paid and the inclusion of additional provisions
allowing aggrieved persons (including the Commonwealth, States and
Territories) to bring separate actions to recover monies payable
pursuant to an obligation.
· includes general provisions relating to civil remedies which would apply across
the Migration Act not just to the new sponsorship obligations civil remedy
provisions;
· as part of the regime of remedies, provisions have been included that deal with
matters such as interest up to and upon judgment, small claims procedures and
unclaimed monies. These provisions will also apply to breaches of undertakings;
· includes a requirement that approved sponsors comply with laws of the
Commonwealth, State or Territories and allows for administrative barring of a
sponsor if a decision maker reasonably believes that a law has been breached.
Compliance with relevant Australian laws may bear upon an approved sponsor's
fitness to be a sponsor;
· includes provisions allowing for the administrative action of cancelling approval
as a sponsor or barring a sponsor where the decision maker reasonably believes
that an obligation has been breached;
· will ensure that personal information regarding sponsored visa holders or former
sponsored visa holders and approved sponsors or former approved sponsors can
be disclosed to the other party or to prescribed agencies of the Commonwealth or
of a State or Territory;
· changes the time that undertakings (in cases where these are still applicable) come
into effect, from the time the visa is granted to the sponsored person to the time
the sponsor becomes an approved sponsor. This will make the time that
undertakings come into effect consistent with when the new obligations are
imposed. i.e. on a sponsor becoming an approved sponsor;
· amends the Tax Administration Act 1953 (the TAA) to allow the Tax Office to
disclose certain information. The information must be relevant to the exercise of
the Minister's powers under, or the administration of Division 3A of Part 2 of the
Migration Act;
· includes transitional provisions clarifying that the new obligations will apply to
existing approved sponsors of prescribed kinds of visas on commencement.
Where the new obligations are imposed any undertakings that related to the
sponsorship for that visa will cease to be enforceable.
The bill is designed to preserve the integrity of the Australian labour market and
ensure the working conditions of overseas sponsored employees.
FINANCIAL IMPACT STATEMENT
The cost to implement the changes to the administration of the temporary skilled
migration visa category has been estimated at $85.3 million over the next four years from
2007-08. This amount of funding has been included in the 2007-08 Budget and forward
year estimates. $66.1 million has been allocated to the Department of Immigration and
Citizenship of which $35.9 million will directly support the implementation of the
sponsorship obligations regime set up under this bill. The balance of the budget funding
for this particular measure has been allocated to Office of Workplace Services,
Department of Employment and Workplace Relations, Department of Education, Science
and Training and the Australian Taxation Office. The revenue from the inclusion of fines
had been estimated at $7.9 million over four years from 2007-08. However, this figure
will need to be revised in light of necessary changes made in the course of drafting of the
bill.
REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation in the Productivity Commission has been
consulted and has advised that the Business Cost Calculation Report is the appropriate
level of regulatory analysis for the proposal. The report is as follows:
Business Cost Calculation Report
Sponsorship Obligations
Problem: The inadequacy of the existing regulatory framework in enforcing and
encouraging compliance with relevant laws. Non-compliance may impact
on the integrity of the Australian labour market and can seriously affect
the standard of living for overseas workers.
Objectives: The primary objective is increased compliance with relevant laws. The
secondary objectives are preserving the integrity of the Australian labour
market and ensuring the conditions of overseas workers.
Policy Options
Option Name Quickscan Result
Sponsorship Obligations
Compliance Costs Summary
Option Name: Sponsorship Obligations
Businesses Affected: 15,000
Type Cost per Business Total Cost of Regulation
Startup: $133.33 $2,000,000.00
OnGoing: $14.08 $211,230.00
Option Cost: $147.41 $2,211,230.00
MIGRATION AMENDMENT (SPONSORSHIP OBLIGATIONS) BILL 2007
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the short title by which the Act may be cited is the
Migration Amendment (Sponsorship Obligations) Act 2007.
Clause 2 Commencement
2. Subclause 2(1) provides that each provision of the Act specified in column 1 of
the table commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its terms.
- Table Item 1 provides that sections 1 to 3 of the Act and anything in the Act not
elsewhere covered by this table will commence on the day on which this Act receives the
Royal Assent.
- Table Item 2 provides that Schedules 1 and 2 commence on a single day to be fixed by
Proclamation. However, it also provides that if any of the provision(s) do not commence
within the period of 6 months beginning on the day on which the Act receives the Royal
Assent, they commence on the first day after the end of that period.
3. Subclause 2(2) explains that column 3 of the table contains additional information
that is not part of this Act. It specifies that information in this column may be added to or
edited in any published version of this Act.
4. An explanatory note is provided to assist the reader at the end of this table. It
specifies that the table relates only to the provisions of this Act as originally passed by
both House of Parliament and assented to. It states clearly that the table will not be
expanded to deal with provisions inserted in this Act after assent.
Clause 3 Schedule(s)
4. This clause provides that each Act specified in a Schedule to this Act is amended
or repealed as set out in the applicable items in the Schedule concerned. In addition, any
other item in a Schedule to this Act has effect according to its terms.
Schedule 1--Migration Act 1958
Part 1--Amendments
Item 1 Subsection 5(1)
This item inserts a definition of "civil remedy provision" into the definitions section of
the Act. It will provide that "civil remedy provision" has the meaning given by new
section 486R.
Item 2 Subsection 5(1)
This item inserts a definition of "penalty unit" into the definitions section of the Act. It
provides that "penalty unit" has the meaning given by section 4AA of the Crimes Act
1914.
Item 3 Subdivision A of Division 3A of Part 2 (heading)
This item repeals the existing heading and replaces it with the new heading "Subdivision
A - Application of Division and definitions".
Item 4 At the end of Subdivision A of Division 3A of Part 2
This item inserts new section 140AA which provides the meanings for the defined terms
"undertaking" and "obligation". These definitions will have application throughout
Division 3A of Part 2 of the Act subject to section 140XA (inserted by item 29).
This item provides that "obligation" means, subject to section 140XA (inserted by item
29), an obligation imposed by Subdivision BB or by regulations made under Subdivision
BB. This definition is subject to section 140XA as that provision provides a special
definition of sponsorship obligation for the purposes of Subdivision C of Division 3A of
Part 2 of the Act.
This item also provides that "undertaking" means an undertaking required by Subdivision
BA or by regulations made under Subdivision BA.
Item 5 After section 140G
This item inserts a new Subdivision heading "Subdivision BA Sponsorship
undertakings may be required for approval as a sponsor".
Item 6 Subsection 140H(3)
This item repeals and replaces subsection 140H(3) to make it clear that like the
sponsorship obligations that arise under new Subdivision BB or regulations made under
that subdivision, undertakings made under Subdivision BA or regulations made under
that subdivision, do not have effect until the applicant becomes an approved sponsor of
the person for the visa.
This item also inserts a note which directs the reader to section 140D which sets out the
circumstances where a sponsor is an approved sponsor.
Item 7 After section 140I
This item inserts new "Subdivision BB Sponsorship obligations of certain approved
sponsors". The new subdivision comprises 11 new sections.
140IA Subdivision applies only in relation to prescribed visas
New section 140IA provides that Subdivision BB only applies to an approved sponsor of
a person for a visa if the visa is of a prescribed kind (however described). The wording
referring to a prescribed kind of visa (however described) rather than to a class of visa is
to allow visas within certain classes and subclasses to be prescribed allowing greater
targeting of the sponsorship obligations regime to specific visas obtained by meeting
specific criteria.
140IB Meaning of primary person and secondary person in relation to an
approved sponsor
Item 140IB provides, for the purposes of Subdivision BB, definitions of "primary person"
and "secondary person".
Primary person in relation to an approved sponsor of a person for a visa means the person
whom the approved sponsor consented to sponsor for that visa who is to work or works in
the nominated activity in respect of which the visa is granted. This is essentially the
sponsored person who is to undertake the nominated activity and who is granted a visa by
meeting the primary criteria for that visa.
Secondary person in relation to an approved sponsor of a person for a visa means a
person whom the approved sponsor consented to sponsor for that visa, who is granted the
visa on the basis of his or her relationship to the primary person. This provision picks up
the fact that certain persons may be granted a visa through meeting the secondary criteria
prescribed in the regulations. That is, they are granted a visa on the basis of their
relationship to the person who meets the primary criteria (the person who is granted their
visa on the basis that they will perform the nominated activity). Such a relationship may
for example be that of spouse, dependent child, interdependent partner or dependent child
of an interdependent partner.
140IC Obligation to pay at least minimum salary level etc.
New paragraph140IC(1)(a) provides that an approved sponsor of a person for a visa must
pay a salary to the person that is at or above the level that is worked out in a way
specified from time to time by the Minister in a legislative instrument for the purposes of
this subsection. This makes it clear that the level of salary may be varied from time to
time and that it is the salary level in place at any particular time that that must be paid by
the approved sponsor not the salary level that was in place when the sponsor became an
approved sponsor.
While the subdivision BB sponsorship obligations apply once a sponsor becomes an
approved sponsor, new paragraph 140IC(1)(b) sets out the time from when the approved
sponsor must pay the sponsored visa holder the minimum salary. If the visa holder is
outside Australia when the visa is granted the minimum salary must be paid from either
the time the visa holder starts working for the approved sponsor or 28 days after the visa
holder enters Australia, whichever is the earlier. If the visa holder is in Australia at the
time the visa is granted the approved sponsor must pay the minimum salary from the day
on which the person starts working for the approved sponsor or 28 days after the visa is
granted to the person, whichever is the earlier.
In the case of the grant of a new section 140IA prescribed kind of visa while the person is
in Australia, it will be the new approved sponsor in respect of that visa that will be
required to pay the minimum salary level in accordance with subparagraph
140IC(1)(b)(ii) not the originally approved sponsor (unless they are the same person)
New paragraph 140IC(1)(b) provides that the approved sponsor must pay the sponsored
visa holder in the manner specified in the legislative instrument referred to in paragraph
140IC(1)(b). This will allow the instrument to specify such things as the way in which the
person may be paid and the types of deductions (if any) that may be allowed to be made
from the person's salary.
New subsection140IC(1) is a civil penalty provision with no fault elements for which the
maximum penalty for an individual is 60 penalty units and the maximum penalty for a
body corporate is 300 penalty units.
Item 2 of the bill provides that "penalty unit" is defined in section 4AA of the Crimes Act
1914.
The justification for use of civil penalty provisions, as opposed to criminal sanctions, is
that the imposition of criminal sanctions on sponsors could have harsh consequences on
the sponsor such 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 provisions 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 infringements notices regime. A power has been
included to provide for such a regime in the Migration Regulations 1994. (See item 46
which inserts new paragraph 504(1)(jb).
New subsection 140IC(2) provides that the legislative instrument made for the purposes
of subsection (1) may specify different ways of working out the level of salary in respect
of different occupations or classes or subclasses of occupations, persons working in
particular geographical areas and any other circumstance or matter the Minister considers
appropriate. For example, this will allow for the level to be worked out on the basis of an
hourly or weekly rate and also allow provision to be made for hours worked above the
standard 38 hour week.
Subsection 140IC(2) also provides that the instrument may include mechanisms for the
level to be varied on one or more specified days or at the end of one or more specified
periods.
New subsection 140IC(3) deals with the situation where the approved sponsor has made
arrangements, such as taking out insurance that will cover or partly cover the obligation
in subsection (1). For instance the approved sponsor will take out workers compensation
insurance for the primary person and if there is a work related accident, such that workers
compensation is payable, this will potentially meet the approved sponsor's obligation to
pay the minimum salary level. If the compensation payment does not meet the minimum
salary level then the approved sponsor would remain liable for payment of the difference.
Subsection 140IC(3) specifically provides that an approved sponsor is taken to have
satisfied the obligation in subsection (1) to the extent that another person (other than the
primary person or secondary person), by arrangement with the approved sponsor, pays
some or all of the primary person's salary. An example is also included for greater
clarity which deals with the approved sponsor taking out insurance.
New subsection 140IC(4) provides that subsection (3) only applies if the costs (if any) of
the arrangement between the approved sponsor and the other person are paid by the
approved sponsor. This is to ensure that any cost involved in the arrangement (eg the
payment of an insurance premium) must be met by the sponsor and not for example,
passed on to the primary person.
140ID Obligation to employ primary person in the same or a higher-skilled
activity
New section140ID provides that an approved sponsor of a person for a visa must not
employ the person in an activity that requires a lower skills level then the skills required
for the nominated activity which was the basis of the grant of the visa to the person. This
makes it clear that an approved sponsor may employ the sponsored person in a different
activity to that nominated (and on which basis the visa was granted), but it must be an
activity that requires at least the same or a higher level of skill as the originally proposed
activity.
New section 140ID is a civil penalty provision with no fault elements for which the
maximum penalty for an individual is 60 penalty units and the maximum penalty for a
body corporate is 300 penalty units.
Item 2 of the bill provides that "penalty unit" is defined in section 4AA of the Crimes Act
1914.
The justification for use of civil penalty provisions, as opposed to criminal sanctions, is
that the imposition of criminal sanctions on sponsors could have harsh consequences on
the sponsor such 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 provisions 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 improving
the conditions of overseas workers. In addition, the justification for no fault civil penalty
offences is to facilitate an infringements notices regime. A power has been included to
provide for such a regime in the Migration Regulations 1994. (See item 46 which inserts
new paragraph 504(1)(jb).
140IE Obligation to pay travel costs of leaving Australia
New section 140IE deals with the obligation of an approved sponsor to meet the return
travel costs of the primary person (defined in new section 140IB inserted by item 7) and
any secondary person (defined in new section 140IB inserted by item 7). This will
normally be after the primary person completes the employment (nominated activity) for
which he/she was granted a visa to come to Australia but it may also be at an earlier time
or in circumstances where they are otherwise required to leave Australia.
The intention of this provision is to make the person or body that is the last approved
sponsor of the person responsible for meeting the costs of the primary person and the
secondary persons' travel from Australia (including travel in Australia) back to the place
from where they initially travelled to come to Australia.
This recognises that a sponsored person may have changed sponsor while in Australia
such that responsibility for the return travel costs shifts from the original approved
sponsor to a new one.
The obligation in subsection 140IE(1) applies to the approved sponsor of a primary
person and the obligation in subsection 140IE(2) applies to the approved sponsor of a
secondary person. The obligation is such that when a sponsored person leaves Australia
(other than temporarily) the approved sponsor must pay for his or her travel (including
any travel within Australia) for the purpose of returning to the place from where he or she
initially travelled to Australia.
Both subsections 140IE(1) and (2) are civil penalty provisions with no fault elements for
which the maximum penalty for an individual is 60 penalty units and the maximum
penalty for a body corporate is 300 penalty units.
Item 2 of the bill provides that "Penalty unit" is defined in section 4AA of the Crimes Act
1914.
The justification for use of civil penalty provisions, as opposed to criminal sanctions, is
that the imposition of criminal sanctions on sponsors could have harsh consequences on
the sponsor such 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 provisions 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 infringements notices regime. A power has been
included to provide for such a regime in the Migration Regulations 1994. (See item 46
which inserts new paragraph 504(1)(jb).
New subsection 140IE(3) provides that if there has been more than one approved sponsor
of the primary or secondary person, subsections (1) and (2) only apply to the last
approved sponsor before their final departure from Australia.
New subsection 140IE(4) provides that an approved sponsor is taken to have satisfied the
obligations in subsections (1) and (2), if another person (whether or not the primary or
secondary person) has paid the costs referred to and the approved sponsor fully
reimburses the person within 14 days after being given a receipt. It is intended that this
provision will operate even if the payment by the primary person has been an indirect
payment. The primary person will be taken to have paid the costs the approved sponsor
is obligated to pay under this section where the approved sponsor has made a deduction
from his or her salary to facilitate direct payment of those costs by the approved sponsor.
In this case the sponsor will not be taken to have satisfied this obligation until the primary
person is reimbursed an amount equivalent to those deductions.
This provision recognises that for practical reasons it may be appropriate for the visa
holder for instance, to initially pay the travel costs and then seek reimbursement from the
approved sponsor rather than the sponsor paying for them up front.
140IF Obligation to pay certain medical costs
New subsection 140IF(1) provides that an approved sponsor of a primary person for a
visa must pay the prescribed medical costs of the primary person.
Similarly new subsection 140IF(2) provides that an approved sponsor of a secondary
person must pay the prescribed medical costs of the secondary person.
Both subsections 140IF(1) and (2) are civil penalty provisions with no fault elements for
which the maximum penalty for an individual is 60 penalty units and the maximum
penalty for a body corporate is 300 penalty units.
Item 2 of the bill provides that "Penalty unit" is defined in section 4AA of the Crimes Act
1914.
The justification for use of civil penalty provisions, as opposed to criminal sanctions, is
that the imposition of criminal sanctions on sponsors could have harsh consequences on
the sponsor such 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 provisions 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 infringements notices regime. A power has been
included to provide for such a regime in the Migration Regulations 1994. (See item 46
which inserts new paragraph 504(1)(jb).
New subsection 140IF(3) indicates what the regulations prescribing the medical costs (if
any) may specify. That is, particular medical costs or classes of medical costs, a limit in
respect of the medical costs of a person and a limit in respect of particular medical costs
or classes of medical costs.
It is intended that the regulations specify to what extent sponsors are responsible for
medical costs which may include, but are not limited to public hospital costs, costs
normally covered by Medicare and the cost of pharmaceuticals.
Subsection 140IF(4) provides that for the purposes of subsections (1) and (2), an
approved sponsor is taken to have satisfied the obligation in subsections (1) and (2) if
another person (whether or not the primary person or secondary person) has paid some or
all of the costs concerned and the approved sponsor fully reimburses that person for the
costs paid within 14 days after being given a receipt. It is intended that this provision will
operate even if the payment by the primary person has been an indirect payment. The
primary person will be taken to have paid the costs the approved sponsor is obligated to
pay under this section where the approved sponsor has made a deduction from his or her
salary to facilitate direct payment of those costs by the approved sponsor. In this case the
sponsor will not be taken to have satisfied this obligation until the primary person is
reimbursed an amount equivalent to those deductions.
This provision recognises that for practical reasons it may be appropriate for the visa
holder for instance, to initially pay the medical costs and then seek reimbursement from
the approved sponsor rather than the sponsor paying for them up front.
New subsection 140IF(5) deals with the situation where the approved sponsor has made
arrangements, such as taking out insurance that will cover or partly cover the obligations
in subsections (1) and (2). For instance the approved sponsor may take out health
insurance for the sponsored persons. If the medical costs required to be met by the
approved sponsor are met by the health insurance fund the approved sponsor will be
taken to have satisfied the obligation in subsection (1) or (2). If the health insurance
payment does not meet the full medical cost the approved sponsor is obliged to pay, the
approved sponsor would remain liable for payment of the difference.
Subsection 140IF(5) specifically provides that an approved sponsor is taken to have
satisfied the obligation in subsection (1) or (2) to the extent that another person (other
than the primary person or secondary person), by arrangement with the approved sponsor,
pays some or all of the costs concerned. An example is also included for greater clarity
which deals with the approved sponsor taking out insurance.
New subsection 140IF(6) provides that subsection (5) only applies if the costs (if any) of
the arrangement between the approved sponsor and the other person are paid by the
approved sponsor. This is to ensure that any cost involved in the arrangement (eg the
payment of an insurance premium) must be met by the sponsor and not passed on to the
sponsored persons.
140IG Obligation to pay certain other fees and costs
New section 140IG deals with additional costs that must be paid for by an approved
sponsor.
New paragraph 140IG(1)(a) provides that an approved sponsor of a primary person for a
visa must pay any fees imposed under a law of the Commonwealth, State or Territory that
must be paid in order for the primary person to work in the nominated activity in respect
of which the visa is granted. This might include such things as licensing, registration or
membership fees for example.
New paragraph 140IG(1)(b) provides that an approved sponsor must meet the costs (if
any) associated with recruiting the primary person who is to be employed in the
nominated activity in respect of which the visa is granted. In the past some employers
have sought to impose recruitment costs on the visa holder. This will no longer be
allowed and will be a breach of this obligation.
New paragraph 140IG(1)(c) provides that an approved sponsor must pay the costs of a
migration agent (if any) involved with the visa application of the primary person. That is,
the migration agent's costs of obtaining a visa for the primary person must be met by the
approved sponsor.
New subsection 140IG(1) is a civil penalty provision with no fault elements for which the
maximum penalty for an individual is 60 penalty units and the maximum penalty for a
body corporate is 300 penalty units.
Item 2 of the bill provides that "Penalty unit" is defined in section 4AA of the Crimes Act
1914.
The justification for use of civil penalty provisions, as opposed to criminal sanctions, is
that the imposition of criminal sanctions on sponsors could have harsh consequences on
the sponsor such 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 provisions 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 infringements notices regime. A power has been
included to provide for such a regime in the Migration Regulations 1994. (See item 46
which inserts new paragraph 504(1)(jb).
New subsection 140IG(2) creates an obligation for an approved sponsor to pay the costs
of a migration agent (if any) involved with the visa application of any secondary person.
That is, the migration agent's costs of obtaining a visa for any secondary person or
persons must be met by the approved sponsor.
New subsection 140IG(2) is a civil penalty provision with no fault elements for which
the maximum penalty for an individual is 60 penalty units and the maximum penalty for a
body corporate is 300 penalty units.
Item 2 of the bill provides that "Penalty unit" is defined in section 4AA of the Crimes Act
1914.
The justification for use of civil penalty provisions, as opposed to criminal sanctions, is
that the imposition of criminal sanctions on sponsors could have harsh consequences on
the sponsor such 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 provisions 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 infringements notices regime. A power has been
included to provide for such a regime in the Migration Regulations 1994. (See item 46
which inserts new paragraph 504(1)(jb).
New 140IG(3) provides that for the purposes of subsections (1) and (2), an approved
sponsor is taken to have satisfied the obligation in subsections (1) and (2) if another
person (whether or not the primary person or secondary person) has paid some or all of
the fees or costs concerned and the approved sponsor fully reimburses that person for the
fees or costs paid within 14 days after being given a receipt. It is intended that this
provision will operate even if the payment by the primary person has been an indirect
payment. The primary person will be taken to have paid the costs the approved sponsor
is obligated to pay under this section where the approved sponsor has made a deduction
from his or her salary to facilitate direct payment of those costs by the approved sponsor.
In this case the sponsor will not be taken to have satisfied this obligation until the primary
person is reimbursed an amount equivalent to those deductions.
This provision recognises that for practical reasons it may be appropriate for the visa
holder for instance to initially pay certain costs and then seek reimbursement from the
approved sponsor rather than the sponsor paying for them up front.
140IH Obligation to keep records
New section 140IH requires an approved sponsor to keep certain records. This will assist
inspectors appointed pursuant to new section 140ZH (see item 44) with their function of
monitoring compliance by approved sponsors with the obligations imposed by or under
Subdivision BB. It will also facilitate the Secretary obtaining information in compliance
with the obligation in new section 140IK (inserted by item 7)
Pursuant to paragraph 140IH(a) an approved sponsor of a person for a visa must keep
prescribed records of all payments made by the approved sponsor as required by
Subdivision BB or by the regulations made under subdivision BB. Pursuant to paragraph
140IH(b) the approved sponsor of a person for a visa must also keep such other records
as are prescribed by the regulations.
New section 140IH is a civil penalty provision with no fault elements for which the
maximum penalty for an individual is 60 penalty units and the maximum penalty for a
body corporate is 300 penalty units.
Item 2 of the bill provides that "Penalty unit" is defined in section 4AA of the Crimes Act
1914.
The justification for use of civil penalty provisions, as opposed to criminal sanctions, is
that the imposition of criminal sanctions on sponsors could have harsh consequences on
the sponsor such 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 provisions 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 infringements notices regime. A power has been
included to provide for such a regime in the Migration Regulations 1994. (See item 46
which inserts new paragraph 504(1)(jb).
A note has also been included at the end of section 140IH which refers the reader to
section 140ZJ where an approved sponsor may be required to produce records to an
inspector.
140IJ Obligation to pay costs of locating, detaining and removing etc.
sponsored person
Section 140IJ deals with the situation where persons sponsored by the approved sponsor
have not departed Australia in accordance with the terms of their visa and the
Commonwealth has incurred expense in their location, detention and removal or the
processing of any protection visa application made by them. 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.
Subsection 140IJ(1) provides that an approved sponsor of a person for a visa must pay to
the Commonwealth an amount equal to the costs incurred by the Commonwealth in
relation to the locating and detaining of the person, removing or deporting them or
processing an application for a protection visa (see section 36 of the Act) made by them.
The obligation to meet these costs imposed on the approved sponsor relates to both the
primary person and any secondary person who holds a visa as a result of their
relationship to the primary person.
Paragraphs 140IJ(2)(a) and (b) set out the way in which the costs referred to in subsection
(1) are to be determined. In the case of the costs of locating a person or processing an
application for a protection visa, paragraph140IJ(2)(a) provides that costs means the costs
worked out in accordance with a method prescribed by reference to a determination made
in writing by the Minister. This allows for the regulations to prescribe the method for
calculating the costs including by reference to a determination in writing by the Minister.
Paragraph 140IJ(2)(b) provides that in the case of the costs of detaining, removing or
deporting a person, costs has the same meaning as in Division 10 of Part 2 of the Act.
Section 207 which is an interpretation provision in Division 10 of Part 2 provides that
costs, in relation to detention, means the costs of transporting the person and a custodian
between places of detention and from the place of detention to the place from where the
person is to be removed or deported or to be released. It also means the daily
maintenance amount for each day of detention which is further defined to mean the
amount determined under section 208.
Subsection 140IJ(2) also provides that the regulations may prescribe a limit for each of
the costs mentioned in paragraphs (2)(a) and (b) for the purposes of this section.
New subsection140IJ(3) provides that to the extent that an approved sponsor of a person
for a visa is liable to pay the costs that one or more other persons are liable to pay under
Division 10 of Part 2, the approved sponsor and the other person or persons are jointly
and severally liable to pay those costs.
Subsection 140IJ(4) provides that 140IJ has effect despite anything to the contrary in
Division 10 of Part 2. This makes it clear that the provisions of Division 10 of Part 2,
which make persons other than an approved sponsor liable for the costs of locating,
detaining, removing or deporting a person, are not to override section 140IJ (which also
creates a liability for the approved sponsor to pay these costs).
These provisions are designed to ensure consistency between the approved sponsor's
obligation to meet the Commonwealth's costs in relation to locating detaining, removing
or deporting a sponsored person with any liability for these costs created in existing
Division 10 of Part 2.
140IK Obligation to provide information
New section 140IK creates an obligation for a sponsor to provide information requested
by the Secretary. This obligation is also an important obligation to assist in monitoring
compliance by approved sponsors with their sponsorship obligations.
Subsection 140IK(1) provides that the Secretary may require an approved sponsor of a
person for a visa to provide such information as is required in a written notice.
Subsection 140IK(2) provides a limit on the type of information that the Secretary can
require an approved sponsor to provide. That is, the Secretary may only require
information that is to be used by the Secretary or the Minister for the purposes of the
administration of this Act or of the regulations.
Subsection 140IK(3) provides that a notice given under subsection (1) must state that the
information must be provided within the specified period which cannot be a period of less
than 7 days.
Subsection 140IK(4) provides that a notice given under subsection (1) must be given to
the approved sponsor by one of the methods specified in section 494B. When one of
those methods is used the provisions in section 494C will apply to determine when the
notice is taken to have been received by the approved sponsor.
Subsection 140IK(4) also provides that for the purposes of this subsection a reference in
section 494B and 494C to the Minister is instead taken to be a reference to the Secretary.
Subsection 140IK(5) provides that a person to whom a notice is given under subsection
(1) must comply with the notice, which includes providing the information within the
time specified.
New subsection 140IK(5) is a civil penalty provision with no fault elements for which the
maximum penalty for an individual is 60 penalty units and the maximum penalty for a
body corporate is 300 penalty units.
Item 2 of the bill provides that "Penalty unit" is defined in section 4AA of the Crimes Act
1914.
The justification for use of civil penalty provisions, as opposed to criminal sanctions, is
that the imposition of criminal sanctions on sponsors could have harsh consequences on
the sponsor such 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 provisions 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 infringements notices regime. A power has been
included to provide for such a regime in the Migration Regulations 1994. (See item 46
which inserts new paragraph 504(1)(jb).
New subsection 140IK(6) provides that despite subsection (5) a person is not required to
comply with a notice that is withdrawn in writing by the Secretary.
140IL Other obligations may be prescribed
New section 140IL allows for additional obligation to those in Subdivision BB to be
prescribed in the regulations and for approved sponsors breaching those obligations to be
liable to a civil penalty.
Specifically, subsection 140IL(1) provides that the regulation may require an approved
sponsor of a person for a visa to comply with one or more additional obligations
prescribed in the regulations.
New subsection 140IL(2) provides that the civil penalty that the regulations may
prescribe for breach of an obligation in the regulations can not exceed 50 penalty units
for an individual and 250 penalty units for a body corporate.
Item 2 of the bill provides that "Penalty unit" is defined in section 4AA of the Crimes Act
1914.
There is a need to allow for further obligations with civil penalty provisions to be
prescribed in the regulations to provide the flexibility to respond to possible exploitation
by sponsors of visa holders and also to cover minor more administrative obligations such
as an approved sponsor keeping in the Commonwealth advised of any change of address
etc.
Subdivision BC Cancelling approval as a sponsor or barring a sponsor
Item 8 Paragraph 140J(2)(a)
This item makes a technical amendment to paragraph 140J(2)(a) to omit the words
(cancelling or barring approval as a sponsor) and replacing them with "(cancelling
approval as a sponsor or barring a sponsor)". This is to better reflect the actions that can
be taken under section 140L which do not include barring approval as a sponsor.
The note in this item also provides that the heading to section 140J is replaced by the
heading "Cancelling approval as a sponsor or barring a sponsor if undertakings
breached".
Item 9 Subsection 140J(3)
This item makes a technical amendment to subsection 140J(3) to omit the words
(cancelling or barring approval as a sponsor) and replacing them with "(cancelling
approval as a sponsor or barring a sponsor)". This is to better reflect the actions that can
be taken under section 140L which do not include barring approval as a sponsor.
Item 10 Before subsection 140K(1)
Item 10 inserts new subsections (1A) and (1B) before existing subsection 140K(1).
Existing section 140K provides for the regulations to prescribe the circumstances in
which the Minister may or must take one of the actions in section 140L (action to cancel
approval as a sponsor or to bar a sponsor).
New subsection 140K(1A) provides that if the Minister reasonably believes that an
approved sponsor or former approved sponsor of a person for a visa has breached an
obligation or a person who is no longer an approved sponsor but remains bound by an
obligation, has breached the obligation, the Minister may take one or more of the actions
set out in section 140L (to cancel approval as a sponsor or to bar a sponsor from doing
certain things).
New subsection 140K(1B) provides that if the Minister reasonably believes that an
approved sponsor of a person for a visa has breached a Commonwealth, State or Territory
law and because of that breach it is appropriate to take one or more of the actions in
section 140L(c) - (g) (which involve barring a sponsor), the Minister may take the action
or actions in relation to the approved sponsor or former approved sponsor.
This provision is designed to ensure that where the Minister reasonably believes that an
approved sponsor or former approved sponsor has breached a law that is relevant to their
status as a sponsor the Minister can take action barring a sponsor from doing certain
things such as sponsoring more people under existing approvals. The basis for this power
is the reasonable belief that the person has breached a law so that if the approved sponsor
or former approved sponsor is actually acquitted of the offence or is successful in
appealing a conviction the power to bar sponsorship will nevertheless have been validly
exercised provided the Minister reasonably held the belief that the law had been
breached.
It is intended that one of the circumstances to be prescribed under section 140O, as a
circumstance when the Minister can waive a bar placed a sponsor under section 140K,
will include the circumstance that the approved sponsor, or former approved sponsor did
not actually breach a law.
The note at the end of subsection 140K(1B) notes that paragraphs 140L(c) (g) referred
to in subsection (1B) deal with barring a sponsor.
An additional note at item 10 (also provides that the heading to section 140K is replaced
by the heading "Cancelling approval as a sponsor or barring a sponsor in other
circumstances".
Item 11 Paragraph 140K(1)(a)
Item 11 makes a technical amendment to paragraph 140K(1)(a) to omit the words
"(cancelling or barring approval as a sponsor)" and replacing them with "(cancelling
approval as a sponsor or barring a sponsor)". This is to better reflect the actions that can
be taken under section 140L which do not include barring approval as a sponsor.
Item 12 Subsection 140K(2)
Item 12 makes a technical amendment to subsection 140K(2) to omit the words
"(cancelling or barring approval as a sponsor)" and replacing them with "(cancelling
approval as a sponsor or barring a sponsor)". This is to better reflect the actions that can
be taken under section 140L which do not include barring approval as a sponsor.
This item also includes a note which provides that the heading to section 140N is
replaced by the heading "process for cancelling approval as a sponsor or barring a
sponsor".
Item 13 After section 140P
Item 13 inserts a new subdivision after section 140P. It is "Subdivision BD
Consequences of change of status". The only section in new subdivision BD is section
140Q which deals with the consequences if either the visa holder or the approved sponsor
cease to hold their respective statuses.
Item 14 Subsection 140Q(1)
Item 14 inserts "or obligation" after the word "undertaking" in subsection 140Q(1)
making it clear that section 140Q applies to both the current undertakings and to the new
obligations being created by or under new Subdivision BB.
Subsection 140Q(1) provides that the regulations may prescribe the circumstances in
which, and for how long, an undertaking or obligation arising out of the sponsorship
remains enforceable against the sponsor concerned if the visa holder ceases to hold the
visa for which he or she was sponsored or the sponsor ceases to be an approved sponsor
of the visa holder.
This means that there may be circumstances and a period after the relevant approved
sponsor has ceased to be an approved sponsor in relation to a visa holder (or former visa
holder) where they can still breach an obligation and be liable to a civil penalty. For
instance, the regulations may prescribe that the obligation in 140IC for example to pay a
certain salary level must continue for a certain period after the sponsor ceases to be an
approved sponsor of the visa holder.
Item 15 At the end of section 140Q
Item 15 inserts a new subsection 140Q(3). This important provision makes it absolutely
clear that a change described in paragraphs 140Q(1)(a) or (b) (i.e. a change in status of
the relevant visa holder or approved sponsor) does not affect any liability incurred in
respect of an obligation (including a breach of an obligation) imposed by Subdivision BB
or regulations made under that subdivision.
New subsection 140(3) means that if an approved sponsor has breached an obligation
they remain liable to civil penalty proceedings and recovery of any monies they are liable
to pay under an obligation even if they cease to be an approved sponsor in relation to the
affected visa holder or the affected visa holder ceases to hold the visa for which the
approved sponsor sponsored them.
Item 16 After section 140Q
Item 16 inserts a new "Subdivision BE Liability, Enforcement and recovery" which
deals with what liability is created when an obligation or undertaking is breached, what
action can be taken to enforce compliance with an obligation or undertaking and capacity
to recover money a person is required to pay pursuant to an undertaking or obligation.
New section 140QA also inserted by item 16 provides some specific definitions for the
purposes of new Subdivision BE.
"Eligible court" is defined to mean the Federal Court, the Federal Magistrates Court, a
District, County or Local Court, a magistrate's court or any other State or Territory court
that is prescribed by the regulations.
A "Subdivision BB civil penalty provision" is defined to mean:
(a) a provision in Subdivision BB that specifies a civil penalty at the foot of the section
(where it is a section without subsections) or at the foot of the subsection where the
provision is s subsection; or
(b) a provision in the regulations made under section140IL (Other obligations that may
be prescribed) that prescribes an obligation, the breach of which attracts a civil penalty
prescribed in accordance with subsection 140IL(4).
Item 17 Subsections 140R(1) to (3)
Item 17 provides that after the word "undertaking" wherever occurring, the words "or
obligation" are to be inserted. This makes it clear that section 140R which deals with
certain debts relates to both undertakings referred to in Subdivision BA or obligations
imposed by or under Subdivision BB.
Item 18 Subsection 140R(3)
This item amends subsection 140R(3) so that it refers to an eligible court rather than a
court of competent jurisdiction. This ensures that recovery action for debts payable to a
person under an undertaking or an obligation can be taken in an eligible court as
specifically defined for Subdivision BE. This would apply for example, to medical costs
incurred by the sponsored persons where an approved sponsor is bound by the obligation
in section 140IF.
Item 19 Subsections 140S(2) and (3)
Item 19 provides that after the word "undertaking" wherever occurring, the words "or
obligation" are to be inserted. This makes it clear that section 140S which deals with
liability to pay amounts pursuant to an undertaking or obligation (that is not a debt dealt
with in section 140R) deals with both undertakings referred to in Subdivision BA or
obligations imposed by or under Subdivision BB (See new section 140QA inserted by
item 16).
Item 20 Subsection 140S(3)
This item amends subsection 140S(3) so that it refers to an eligible court rather than a
court of competent jurisdiction. This ensures that recovery action for amounts payable
pursuant to an undertaking or obligation (that is not a debt dealt with in section 140R) can
be taken in an eligible court as specifically defined for Subdivision BE.
Item 21 At the end of section 140S
Item 21 inserts a new subsection (4) into existing section 140S. New subsection (4)
makes it clear that without limiting any other provision of the Act, amounts payable to
the Commonwealth or to a State or Territory under an undertaking or an obligation may
be recovered by the Commonwealth, State or Territory (as the case may be) in an eligible
court.
The difference between amounts referred to in section 140S and debts referred to in
section 140R is that the visa holder does not have any liability to repay costs dealt with in
section 140S. In fact it may be the visa holder to whom the amount is payable e.g. the
minimum salary level. (See section 140IC inserted by item 7).
Item 22 After section 140S
140SA Who may apply for civil penalties under Subdivision BB
New section 140SA sets out who may apply for civil penalties to be invoked under
Subdivision BB. It provides that the Minister may apply to an eligible court for an order
under new section 140SB in relation to a breach of a Subdivision BB civil penalty
provision by a person. New section 140SB provides that an eligible court may make an
order imposing a pecuniary penalty on a person if they have breached a Subdivision BB
civil penalty provision.
This section refers to a "person" rather than an approved sponsor consistent with the fact
that by the time the civil penalty proceeding commences the approved a sponsor may
have ceased to hold that status.
140SB Imposition and recovery of civil penalties under Subdivision BB
Item 22 also insert new section 140SB which provides that an eligible court can impose a
pecuniary penalty for breach of a Subdivision BB civil penalty provision (as defined in
section 140QA inserted by item 16), the maximum penalty that can be imposed and how
continuing breaches and breaches in respect of many visa holders are to be treated.
More specifically subsection 140SB(1) provides that an eligible court may make an order
imposing a pecuniary penalty on a person if the person breaches a Subdivision BB civil
penalty provision when he or she is bound by that provision. A person is bound by an
obligation while they remain an approved sponsor for the visaed person or for such
additional period after they have ceased to be an approved sponsor as may be prescribed
in the regulations pursuant to section 140Q. In referring to a person subsection 140SB(1)
recognises that by the time a pecuniary penalty is to be imposed for a previous breach an
approved sponsor may no longer hold that status.
A note is also included after subsection 140SB(1) alerting the reader to the fact that
certain persons involved in a breach of a Subdivision BB civil penalty provision may also
be treated as having breached the provision. The reader is specifically referred to
subsection 140SB(9).
New subsection 140SB(2) provides that the maximum penalty that may be imposed under
subsection (1) for a breach of a Subdivision BB civil penalty provision is the civil penalty
specified in respect of that provision. In the case of obligations imposed by Subdivision
BB this is 60 penalty units for a person and 300 penalty units for a body corporate. In the
case of an obligation imposed by regulations made under Subdivision BB it is a
maximum of 50 penalty units for an individual and 250 penalty units for a body
corporate.
New subsection 140SB(3) deals with the situation of a series of breaches arising out of a
course of conduct. It provides that subject to subsections (4) and (5) if 2 or more
breaches of a Subdivision BB civil penalty provision are committed by the same person
and the breaches arose out of a course of conduct by the person, the breaches are to be
taken to constitute a single breach of the provision.
Subsection 140SB(4) provides that for the purposes of subsection (3), if the breaches of
the Subdivision BB civil penalty provision relate to an obligation in respect of another
person, 2 or more breaches of that provision arise out of a course of conduct only if each
of the breaches relates to an obligation in respect of the same person. For additional
clarity an example has been included.
Example: An approved sponsor of 2 persons for a visa fails to pay each of those
persons a salary in accordance with section 140IC. Because the breaches are in respect of
2 persons, they are not to be taken to constitute a single breach of the provision; the
approved sponsor has breached that provision in respect of each of the persons.
Subsection 140SB(5) also qualifies subsection 140SB(3) in that it provides that
subsection (3) does not apply to a breach of a Subdivision BB civil penalty provision that
is committed by a person after an eligible court has imposed a penalty on the person for
an earlier breach of the provision. That is, a further breach or breaches can occur from
the same course of conduct in relation to the same person if the course of conduct
continues after the time that a penalty has been imposed for an earlier breach.
Subsection 140SB(6) is a restitution provision which allows an eligible court as part of
the civil penalty proceedings to make and order that amounts required to be paid pursuant
to the obligations should be paid. More specifically it provides that in a civil remedy
proceeding against a person under section 140SB, if it appears to the eligible court that an
amount that was required to be paid under a Subdivision BB civil penalty provision has
not been paid to the Commonwealth, a State or Territory or another person, the court may
order the first-mentioned person to pay the amount of the underpayment to the
Commonwealth, State, Territory or other person (as the case may be).
A note is also inserted after subsection 140SB(6) drawing the readers attention to the fact
that section 140R and 140S also allow for separate recover actions to be taken in an
eligible court for amounts owed in accordance with an undertaking or obligation.
Subsection 140SB(7) provides that an order must not be made under subsection (6) in
relation to so much of an underpayment as relates to any period more than 6 years before
the commencement of the proceeding.
Subsection 140SB(8) provides that a proceeding under section 140SB in relation to a
breach of a Subdivision BB civil penalty provision must be commenced not later than 6
years after the commission of the breach.
A note is also inserted after subsection 140SB(8) which draws the readers attention to the
fact that Part 8D contains general provisions relating to civil remedies.
New subsection 140SB(9) provides that certain persons involved in a breach of a
Subdivision BB civil penalty provisions are to be treated as having breached it for the
purposes of subsection (1). They are taken to have been bound by the civil penalty
provision at the time they committed the breach. The persons covered are those who aid,
abet, counsel, procure, induce (whether by threats or promises or otherwise) or conspire
with others to effect the breach. This means that persons who are not approved sponsors,
but are involved in the way described in an act or omission that amounts to a breach of
the civil penalty provision may also be liable for breach of that provision as well as the
approved sponsor.
140SC Interest up to judgment
New section 140SC deals with the issue of interest on monies that should have been paid
pursuant to an undertaking or obligation and action has been brought in an eligible court
pursuant to 140SB, 140R or 140S.
Subsection 140SC(1) specifically provides that in exercising its powers under subsection
140SB(6) or in a proceeding under section 140R or 140S, an eligible court must, upon
application, unless good cause is shown to the contrary, either:
(a) order that there be included in the sum for which an order is made or
judgment given, interest at such rate as the eligible court thinks fit on the
whole or any part of the money for the whole or any part of the period
between the date when the cause of action arose and the date on which the
order is made or judgment entered; or
(b) without proceeding to calculate interest in accordance with paragraph (a),
order that there be included in the sum for which an order is made or
judgment given, a lump sum instead of any such interest.
Subsection 140SC(2) provides that subsection (1) does not authorise:
(a) the giving of interest upon interest or of a sum instead of such interest; or
(b) apply in relation to any debt upon which interest is payable as of right
whether by virtue of an agreement or otherwise; or
(c) authorise the giving of interest, or a sum instead of interest, otherwise than
by consent, upon any sum for which judgment is given by consent.
140SD Interest on judgment
New section 140SD deals with the issue of interest on any judgment or order of an
eligible court in proceedings taken pursuant to 140SB, section 140R or section 140S.
Section 140SD provides that a debt under a judgment or order of an eligible court made
under subsection 140SB(6) or section 140R or 140S carries interest from the date on
which the judgment is entered or order made at such rate as would apply under section 52
of the Federal Court of Australia Act 1976 if the debt were a judgment debt to which that
section applies.
140SE Certain plaintiffs may choose small claims procedure
in magistrates courts
New section 140SE also inserted by item 22 provides a capacity for section 140R and
section 140S actions to be brought using a small claims procedure. This will be available
to persons commencing actions which means it will also be available to bodies corporate
and politic.
New subsection 140SE(1) provides that if a person starts an action under section 140R or
140S in a magistrate's court and they indicate, in a manner prescribed by the regulations
or by rules of court relating to that court, that they want a small claims procedure to
apply, subsections (2) to (4) apply in relation to the action.
Subsection 140SE(2) provides that the small claims procedure is governed by certain
conditions as follows:
(a) the court may not award an amount exceeding $5,000 or such higher
amount as is prescribed;
(b) the court may act in an informal manner, is not bound by any rules of
evidence, and may act without regard to legal forms and technicalities;
(c) at any stage of the action, the court may amend the papers initiating the
action if sufficient notice is given to any party adversely affected by the
amendment;
(d) a person is not entitled to be represented by counsel or a solicitor unless
the court permits;
(e) if the court permits a party to be represented by counsel or a solicitor, the
court may, if it thinks fit, do so subject to conditions designed to ensure
that no other party is unfairly disadvantaged.
Subsection 140SE(3) provides that in a case heard in a court of a Territory, the
regulations may prohibit or restrict legal representation of the parties despite paragraphs
(2)(d) and (e).
Subsection 140SE(4) provides that in a case heard in a court of a State, if in a particular
proceeding in that court (whatever the nature of the proceeding) the law of the State
prohibits or restricts legal representation of the parties, the regulations may prohibit or
restrict legal representation of the parties to the same extent as that law despite
paragraphs (2)(d) and (e).
140SF Unclaimed money
New section 140SF deals with the issue of unclaimed money and makes it clear that if a
person is required to pay an amount in accordance with an undertaking or obligation and
the whereabouts of the intended recipient is unknown, the person may pay the money to
the Commonwealth on trust for the intended recipient. If this occurs the person paying
the money is taken to have discharged the obligation to pay to the extent of the amount
paid.
More specifically new subsection 140SF(1) provides that if a person (the intended
recipient) has not been paid an amount that was required to be paid to him or her in
accordance with an undertaking or obligation; and the person who is required to pay the
amount is unable to do so because the person does not know the intended recipient's
location, the person may pay the amount to the Commonwealth.
Subsection 140SF(2) provides that the Commonwealth holds the amount in trust for the
intended recipient.
Subsection 140SF(3) provides that payment of the amount to the Commonwealth is a
sufficient discharge to the person, as against the intended recipient, for the amount paid.
If the full amount is not paid the unpaid portion remains outstanding and enforcement or
recovery action may be taken in respect of that outstanding amount.
Item 23 Subsection 140T(1)
This item inserts the words "or is obliged" after "undertaken" into subsection 140T(1) of
the Act. Section 140T complements current section 140I, which deals with amounts
payable to the Commonwealth arising from the sponsorship undertakings which may be
required under regulations made pursuant to current section 140H in Division 3A .
Subsection 140T(1) provides that, where a debt, or other amount, that a person has
undertaken to pay to the Commonwealth becomes payable, the Minister may issue a
notice in writing stating the amount of the debt or other amount.
Subsection 140T(2) provides that in any proceedings a notice under this section is prima
facie evidence of the amount of the debt or other amount.
This amendment will ensure that this subsection will also apply to debts payable to the
Commonwealth that arise as a result of one or more of the obligations contained in new
Subdivision BB. The effect of this amendment is such that where a debt, or other amount,
that a person is obliged to pay (because of the operation of one or more of the obligations
in Subdivision BB), becomes payable, the Minister may issue a notice in writing stating
the amount of the debt or other amount which will be prima facie evidence of that debt or
other amount in proceedings taken pursuant to new 140SB, section 140R or section 140S.
Item 24 After section 140U
This item inserts new "Subdivision BF Other matters". The new subdivision BF
comprises sections 140V and 140W which will deal with disclosure of personal
information and ensuring that other regulation making powers are not limited by the
regulation making powers in Division 3A.
Item 25 After subsection 140V(1)
This item inserts a new subsections 140V(1A) after subsection (1) of the Act. Existing
subsection 140V(1) authorises the Minister to disclose personal information to an
approved sponsor or former approved sponsor in certain circumstances. These
circumstances are where:
· the personal information is about a visa holder or former visa holder whom the
approved sponsor or former approved sponsor agreed to sponsor; and
· the personal information to be disclosed is of a prescribed kind.
New subsection (1A) provides that the Minister may disclose to a visa holder or former
visa holder, personal information of a prescribed kind about an approved sponsor or
former approved sponsor of the visa holder or former visa holder.
Information such as the fact that proceedings are being taken against an approved sponsor
for breach of an obligation for example, may assist a sponsored person (a visa holder) in
pursuing any remedy that may be available to them.
This item also inserts new subsection (1B) after new subsection 140V(1A) of the Act.
New subsection (1B) provides that the Minister may disclose to a prescribed agency of
the Commonwealth or of a State or Territory, personal information of a prescribed kind
about:
· a holder of a visa (including a former holder of a visa) of a kind prescribed for the
purposes of new section 140IA (inserted by item 7); or
· an approved sponsor (including a former approved sponsor).
Subsection 140V(3) provides power for the regulations to prescribe circumstances in
which the recipients of personal information under section 140V may use or disclose that
personal information.
The purpose of new subsection (1A) is to authorise disclosure by the Minister of personal
information about a sponsor or former approved sponsor to a visa holder. Disclosure
could occur in circumstances where a sponsor has breached an obligation such as failure
to pay certain amounts (eg. minimum salary level, travel or medical costs) as required by
some of the obligations in Subdivision BB, and as a result of that breach the visa holder
(or former visa holder) is owed money. The information could assist the visa holder to
bring an action to recover the unpaid amounts. Advising a visa holder that an approved
sponsor has been barred from further sponsoring could also allow the visa holder time to
look for a new approved sponsor should they wish to extend their stay in Australia (i.e.
they will have knowledge that their current employer will not be able to sponsor them for
a further visa)
The objective of new subsection (1B) is to permit the disclosure of information (of a kind
prescribed in the regulations) by the Minister to other Commonwealth, State or Territory
agencies (as prescribed in the regulations) for the purpose of monitoring the approved
sponsor's compliance with their obligations and the new requirement to comply with all
Commonwealth, State and Territory laws (set out in new subsection 140K(2)) that are
relevant to the sponsor's fitness to continue to sponsor visa holders.
Item 26 Subsection 140V(3)
This item omits subsection 140V(3) of the Act and substitutes a new subsection which
includes reference to the new subsections 140V(1A) and (1B) and refers to "the recipient
"of personal information as different types of persons will be able to have information
disclosed to them under amended section 140V.
Subsection 140V(3) provides power for the regulations to prescribe circumstances in
which the recipient of personal information disclosed pursuant to subsections (1),(1A)
and (1B) may use or disclose that personal information. Subsection 140V(1) authorises
the Minister to disclose personal information of a prescribed kind to an approved sponsor
or former approved sponsor. New subsection 140V(1A) authorises the Minister to
disclose personal information of a prescribed kind to a visa holder or former visa holder
about the approved sponsor or former approved sponsor of that visa holder. New
subsection 140V(1B) authorises the Minister to disclose personal information of a
prescribed kind to a prescribed Commonwealth, State or territory agency about an
approved sponsor (or former approved sponsor) or about a person who holds a visa
covered by Division 3A of Part 2 or a former such visa holder.
Regulations will need to prescribe the circumstances under which personal information
received under new subsections (1),(1A) and (1B) can be used and disclosed.
Item 27 Subsection 140V(4)
This item repeals subsection 140V(4) and replaces it with a new subsection. New
subsection 140V(4) provides that if the Minister discloses information about a visa holder
(or former visa holder) or an approved sponsor (or former approved sponsor) pursuant to
subsections 140V(1) or (1A) the Minister must notify (in writing) the person about whom
the information is disclosed. That notification must include the fact that there has been a
disclosure and the details of the information actually disclosed.
Item 28 Section 140X
This item repeals section 140X of the Act and substitutes wording that refers to "this
Division" and also to new section 140ZBA (inserted by item 35) . The purpose of this
amendment is to ensure that all of the subdivisions in Division 3A, and any regulations
made under that Division apply to a partnership as if it were a person. This is subject,
however, to the changes set out in sections 140Y to 140ZBA.
This is to ensure that where the approved sponsor is a partnership it is clear that the
obligations created by or under subdivisions BA and BB apply to the partnership as if it
were a person.
Item 29 After section 140X
140XA Sponsorship obligation means all obligations of sponsorship
This item inserts a new section 140XA after section 140X of the Act.
New section 140XA provides a definition of `sponsorship obligation' for the purposes of
Subdivision C Application of the sponsorship system to partnerships and
unincorporated associations. `Sponsorship obligation' is defined to mean an obligation in
relation to sponsorship or as a result of sponsorship and includes an obligation that arises
under an undertaking required by Subdivision BA (or regulations made under that
subdivision) or an obligation imposed by Subdivision BB (or regulations made under that
subdivision).
This item also inserts a new section 140XB after new section 140XA which provides
other definitions for the purposes of new Subdivision C.
Item 4 of this bill provides a definition of "obligation" for the purposes of Division 3A,
which is made subject to section 140XA.
140XB Other definitions
For the purposes of Subdivision C, in Part 2 of Division 3A, new section 140XB defines
committee of management of an unincorporated association to mean a body (however
described) that governs, manages or conducts the affairs of an association.
It also defines sponsorship right to mean a right in relation to sponsorship or as a result
of sponsorship.
Item 30 Subsection 140Y(1)
This item repeals subsection 140Y(1) of the Act and substitutes a new subsection
140Y(1).
Subsection 140Y sets out ways in which sponsorship obligations and rights apply to a
partnership.
New subsection 140Y(1) establishes the general rule that a sponsorship obligation that
would otherwise be imposed on a partnership (if it was a legal entity) is instead imposed
on each partner in a partnership at particular times. This general rule is subject to section
140ZA as amended, which deals with retiring partners.
New paragraphs 140Y(1)(a) and (b) together provide that the partners covered are those
in the partnership either at the time the partnership becomes an approved sponsor or in
relation to the Subdivision BB obligations at the time the Subdivision begins to apply to
the partnership as an approved sponsor.
Paragraph (1)(b) will have limited application to those partnerships that were approved
sponsors for a Subdivision BB prescribed kind of visa prior to commencement of
Subdivision BB. In this case the partners subject to the obligations in Subdivision BB
will be those persons who are partners at the time Subdivision BB commences. This will
then also be subject to section 140ZA concerning retiring partners.
New subsection 140Y(1) is made subject to section 140ZA which provides that the
regulations may deal with the consequences of a partner leaving a partnership after it
becomes an approved sponsor or after Subdivision BB applies to the partnership and may
cover circumstances such as:
· how long, a sponsorship obligation remains enforceable against the retiring
partner; and
· the circumstances in which, and for how long, a sponsorship right is exercisable
by the retiring partner; and
· which debts remain payable by the retiring partner.
However, no regulations have been made under section 140ZA.
Item 31 Subsection 140Y(2)
This item repeals subsection 140Y(2) of the Act and substitutes a new subsection
140Y(2).
Subsection 140Y sets out ways in which sponsorship obligations and rights may be
exercised by a partnership.
New subsection 140Y(2) establishes the general rule that a sponsorship right that would
otherwise be exercisable by a partnership (if it was a legal entity) is instead a right
exercisable by each partner in a partnership at particular times. This general rule is
subject to section 140ZA as amended, which deals with retiring partners.
New paragraphs 140Y(2)(a) and (b) together provide that the partners covered are those
in the partnership either at the time the partnership becomes an approved sponsor or in
relation to the Subdivision BB rights, at the time the Subdivision begins to apply to the
partnership as an approved sponsor.
Paragraph (1)(b) will have limited application to those partnerships that were approved
sponsors for a Subdivision BB prescribed kind of visa prior to commencement of
Subdivision BB. In that case the partners with the Subdivision BB rights will be those
persons who are partners at the time Subdivision BB commences. This will then also be
subject to section 140ZA concerning retiring partners
New subsection 140Y(2) is made subject to section 140ZA which provides that the
regulations may deal with the consequences of a partner leaving a partnership after it
becomes an approved sponsor or after Subdivision BB applies to the partnership and may
cover circumstances such as:
· how long, a sponsorship obligation remains enforceable against the retiring
partner; and
· the circumstances in which, and for how long, a sponsorship right is exercisable
by the retiring partner; and
· which debts remain payable by the retiring partner.
However, no regulations have been made under section 140ZA.
Item 32 Paragraphs 140Y(3)(a) and (b)
This item repeals paragraphs 140Y(3)(a) and (b) of the Act and substitutes new
paragraphs 140Y(3)(a) and (b).
Subsection 140Y(3) sets out who, in a partnership, is jointly and severally liable to pay an
amount that would otherwise be payable by a partnership in relation to sponsorship or as
a result of sponsorship.
New paragraphs 140Y(3)(a) and (b) together provide that the partners covered are those
in the partnership either at the time the partnership becomes an approved sponsor or in
relation to liability arising from Subdivision BB obligations, at the time the Subdivision
begins to apply to the partnership as an approved sponsor.
Subsection 140Y(3) is specifically made subject to section 140Z (new partners) and
section 140ZA (retiring partners). Section 140Z provides a mechanism for new partners
that join a partnership after it has become an approved sponsor or after the time when
Subdivision BB applies to the partnership, to elect to accept obligations that arise after
the time of the election. If a partner chooses to make such an election the rights that may
be exercised in respect of and the liabilities associated with that obligation also attach to
the new partner. Section 140ZA provides that the regulations may deal with the
consequences of a partner leaving a partnership after it becomes an approved sponsor or
after Subdivision BB applies to the partnership and may cover circumstances such as:
· how long, a sponsorship obligation remains enforceable against the retiring
partner; and
· the circumstances in which, and for how long, a sponsorship right is exercisable
by the retiring partner; and
· which debts remain payable by the retiring partner.
However, no regulations have been made under section 140ZA.
Item 33 Subsection 140Z(1)
This item amends subsection 140Z(1) of the Act to omit the words "is approved as a
sponsor" and to substitute the words "becomes an approved sponsor of a person for a visa
or after Subdivision BB begins to apply to the partnership as an approved sponsor".
Section 140Z deals with the way in which sponsorship obligations or rights apply to a
person who becomes a partner after the partnership becomes an approved sponsor or after
Subdivision BB applies to it as an approved sponsor.
The general rule, that sponsorship obligations only apply to a new partner if he or she
elects to accept these obligations, is set out in subsection 140Z(1). Subsection 140Z(1)
also spells out that the sponsorship obligations a new partner may elect to accept are
those that:
· would, but for subsection 140Y(1) or any previous application of section 140Z, be
imposed on the partnership; and
· arise after the new partner makes the election.
If a partner chooses to make such an election the rights that may be exercised in respect
of, and the liabilities associated with that obligation, also attach to the new partner.
The effect of this amendment is to ensure consistency in language with amended section
140Y i.e. by referring to partners who join the partnership after it becomes an approved
sponsor or in the case of Subdivision BB obligations, after that Subdivision applies to the
partnership as an approved sponsor.
Item 34 Subsection 140ZA(1)
This item amends subsection 140ZA(1) of the Act to omit the words "is approved as a
sponsor" and to substitute the words "becomes an approved sponsor of a person for a visa
or after Subdivision BB begins to apply to the partnership as an approved sponsor of a
person for a visa".
Section 140ZA enables the regulations to deal with the consequences of a partner leaving
a partnership after it becomes an approved sponsor or after Subdivision BB applies to it
as an approved sponsor.
Subsection 140ZA(1) provides that, despite section 140Y, the regulations may prescribe:
· the circumstances in which, and for how long, a sponsorship obligation remains
enforceable against the retiring partner;
· the circumstances in which, and for how long, a sponsorship right is exercisable by
the retiring partner;
· which debts remain payable by the retiring partner.
However, no regulations have been made under section 140ZA.
The effect of this amendment is to ensure consistency in language with amended section
140Y i.e. by referring to partners who leave the partnership after it becomes an approved
sponsor or in the case of Subdivision BB obligations, after that Subdivision applies to the
partnership.
Item 35 After section 140ZB
This item inserts a new section 140ZBA Liability of partners for offences and civil
penalties.
New subsection 140ZBA sets out who is liable for offences and civil penalties in the
context of a partnership.
New subsection 140ZBA(1) provides that an offence against a provision in Division 3A,
that would otherwise have been committed by a partnership is taken to have been
committed by each partner who:
· did the relevant act or made the relevant omission; or
· aided or abetted, counselled or procured the relevant act or omission.
Currently, the only applicable offence in Division 3A is failure to produce a document at
the request of an inspector (See new section 140ZK inserted by item 44).
New subsection 140ZBA(2) provides that despite anything to the contrary in Division
3A, a pecuniary penalty must not be imposed on a partner who is bound by a Subdivision
BB civil penalty provision in respect of a breach of that provision, unless the partner:
· did the relevant act or made the relevant omission; or
· aided or abetted, counselled or procured the relevant act or omission.
New subsection 140ZBA(3) provides that for the purposes of subsections (1) and (2), to
establish that a partnership engaged in a particular conduct, it is sufficient to show that
the conduct was engaged in by a partner:
· in the ordinary course of the business of the partnership; or
· within the scope of the actual or apparent authority of the partner.
New subsection 140ZBA(4) provides that for the purposes only of subsection (1), to
establish that a partnership had a particular state of mind when it engaged in a particular
conduct, it is sufficient to show that the partner had the relevant state of mind.
Subsection (4) does not refer to subsection 140ZBA(2) which deals with civil penalty
proceedings as there are no mental elements required to establish breach of a Subdivision
BB civil penalty.
Item 36 Section 140ZC
This item repeals section 140ZC and substitutes wording that refers to "this Division"
and also to new section 140ZGA (inserted by item 42). Section 140ZC mirrors section
140X (which relates to partnerships) except it deals with unincorporated associations.
Section 140ZC as amended provides that new Division 3A and regulations made under it,
apply to an unincorporated association as if it were a person.
The purpose of this amendment is to ensure that new Division 3A, and any regulations
made under that Division apply to an unincorporated association as if it were a person.
This is subject however, to the changes set out in sections 140ZD to 140ZGA.
Item 37 Subsection 140ZD(1)
This item repeals subsection 140ZD(1) of the Act and substitutes a new subsection
140ZD(1).
Subsection 140ZD(1) sets out ways in which sponsorship obligations and rights apply to
an unincorporated association.
New subsection 140ZD(1) establishes the general rule that a sponsorship obligation that
would otherwise be imposed on a unincorporated association (if it was a legal entity) is
instead imposed on each person who is a member of the association's committee of
management at particular times. This general rule is subject to section 140ZF as
amended, which deals with former members of the association's committee of
management.
New paragraphs 140ZD(1)(a) and (b) together provide that the members of the
association's committee of management covered are those on the committee either at the
time the association becomes an approved sponsor or in the case of Subdivision BB
obligations, at the time the Subdivision begins to apply to the association as an approved
sponsor.
Paragraph (1)(b) will have limited application to those associations that were approved
sponsors for a Subdivision BB prescribed kind of visa prior to the commencement of
Subdivision BB. In that case the members of the association's committee of management
subject to the obligations in Subdivision BB will be those persons who are members at
the time Subdivision BB commences. This will then also be subject to section 140ZF
concerning former members.
New subsection 140ZD(1) is made subject to section 140ZF which provides that the
regulations may deal with the consequences of a person who is a member of the
association's committee leaving the association after it becomes an approved sponsor or
in relation to Subdivision BB obligations, after Subdivision BB applies to the association
as an approved sponsor and may cover circumstances such as:
· how long, a sponsorship obligation remains enforceable against the former
member; and
· the circumstances in which, and for how long, a sponsorship right is exercisable
by the former member; and
· which debts remain payable by the former member.
However, no regulations have been made under section 140ZF.
Item 38 Subsection 140ZD(2)
This item repeals subsection 140ZD(2) of the Act and substitutes a new subsection
140ZD(2).
New subsection 14ZD(2) establishes the general rule that a sponsorship right that would
otherwise be exercisable by an unincorporated association (if it was a legal entity ) is
instead a right exercisable by each person who is a member of the association's
committee of management at particular times. This general rule is subject to section
140ZF as amended, which deals with former members.
New paragraphs 140ZD(2)(a) and (b) together provide that the members of the
association's committee of management covered are those on the committee either at the
time the association becomes an approved sponsor or in the case of Subdivision BB
rights, the time the Subdivision begins to apply to the association as an approved sponsor.
Paragraph (2)(b) will have limited application to those associations who were approved
sponsors for a Subdivision BB prescribed kind of visa prior to commencement of
Subdivision BB. In that case the members of the association's committee of management
who may exercise the Subdivision BB rights will be those persons who were members of
the association's committee of management at the time Subdivision BB commences.
This will then also be subject to section 140ZF concerning former members.
New subsection 140ZD(2) is made subject to section 140ZF which provides that the
regulations may deal with the consequences of a member leaving an association after it
becomes an approved sponsor or in relation to Subdivision BB obligations, after
Subdivision BB applies to the association as an approved sponsor, and may cover
circumstances such as:
· how long, a sponsorship obligation remains enforceable against the former
member; and
· the circumstances in which, and for how long, a sponsorship right is exercisable
by the former member; and
· which debts remain payable by the former member.
However, no regulations have been made under section 140ZF to date.
Item 39 Paragraphs 140ZD(3)(a) and (b)
This item repeals paragraphs 140ZD(3)(a) and (b) of the Act and substitutes new
paragraphs 140ZD(3)(a) and (b).
Subsection 140ZD(3) sets out who, in an unincorporated association, is liable to pay an
amount that would otherwise be payable by an unincorporated association in relation to
sponsorship or as a result of sponsorship.
New paragraphs 140ZD(3)(a) and (b) together provide that the members of an
unincorporated association's committee of management covered are those on the
committee either at the time the association becomes an approved sponsor or in relation
to liability arising from Subdivision BB obligations, at the time Subdivision BB begins to
apply to the association as an approved sponsor.
Subsection 140ZD(3) is specifically made subject to section 140ZE (new members) and
section 140ZF (former members). Section 140ZE provides a mechanism for new
members of an association's committee of management that join an unincorporated
association after it has become an approved sponsor or after the time when Subdivision
BB applies to the association, to elect to accept obligations that arise after the time of the
election. If a member chooses to make such an election the rights that may be exercised
in respect of, and the liabilities associated with that obligation, also attach to the new
member. Section 140ZF provides that the regulations may deal with the consequences of
a member leaving a committee of management of an unincorporated association after it
becomes an approved sponsor or after Subdivision BB applies to the association and may
cover circumstances such as:
· how long, a sponsorship obligation remains enforceable against the former
member; and
· the circumstances in which, and for how long, a sponsorship right is exercisable
by the former member; and
· which debts remain payable by the former member.
However, no regulations have been made under section 140ZF.
Item 40 Subsection 140ZE(1)
This item amends subsection 140ZE(1) of the Act to omit "is approved as a sponsor" and
substitute the words "becomes an approved sponsor of a person for a visa or after
Subdivision BB begins to apply to the association as an approved sponsor of a person for
a visa".
Section 140ZE deals with what happens when a new member joins the association's
committee of management after it has become an approved sponsor or after the time
when Subdivision BB applies to the association .
The general rule, that sponsorship obligations only apply to a new member if he or she
elects to accept these obligations, is set out in subsection 140ZE(1). New subsection
140ZE(1) also spells out that the sponsorship obligations a new member may elect to
accept are those that:
· would, but for subsection 140ZD(1) or any previous application of section 140ZE, be
imposed on the association; and
· arise after the new member makes the election.
If a member chooses to make such an election the rights that may be exercised in respect
of, and the liabilities associated with that obligation, also attach to the new member.
The effect of this amendment is to ensure consistency in language with amended section
140ZD i.e. by referring to members who join the committee of management of the
association after it becomes an approved sponsor or Subdivision BB applies to the
association.
Item 41 Subsection 140ZF(1)
This item amends subsection 140ZF(1) of the Act to omit the words "is approved as a
sponsor" and to substitute the words "becomes an approved sponsor of a person for a visa
or after Subdivision BB begins to apply to the association as an approved sponsor of a
person for a visa".
Section 140ZF enables the regulations to deal with the consequences of a member of an
association's committee of management leaving the association after it becomes an
approved sponsor or after Subdivision BB applies to it as an approved sponsor.
Subsection 140ZF(1) provides that, despite section 140ZD, the regulations may prescribe:
· the circumstances in which, and for how long, a sponsorship obligation remains
enforceable against the former member;
· the circumstances in which, and for how long, a sponsorship right is exercisable by
the former member;
· which debts remain payable by the former member.
However, no regulations have been made under section 140ZF to date.
The effect of this amendment is to ensure consistency in language with amended section
140ZD for sponsorship obligations to apply to a member who has left the committee of
management after the association becomes an approved sponsor or after Subdivision BB
applies to the association.
Item 42 After section 140ZG
This item inserts a new section 140ZGA Liability of members of committees of
management for offences and civil penalties.
New subsection 140ZGA sets out who is liable for offences and civil penalties in the
context of an unincorporated association.
New subsection 140ZGA(1) provides that an offence against a provision in Division 3A,
that would otherwise have been committed by an unincorporated association is taken to
have been committed by each member of the committee of management who:
· did the relevant act or made the relevant omission; or
· aided or abetted, counseled or procured the relevant act or omissions.
Currently, the only relevant offence in Division 3A is failure to produce a document at
the request of an inspector (See new section 140ZK inserted by item 44).
New subsection 140ZGA(2) provides that despite anything to the contrary in Division
3A, a pecuniary penalty must not be imposed on a member who is bound by a
Subdivision BB civil penalty provision in respect of a breach of that provision, unless the
member:
· did the relevant act or made the relevant omission; or
· aided or abetted, counseled or procured the relevant act or omissions.
New subsection 140ZGA(4) provides that for the purposes of subsection (1), to establish
that an association had a particular state of mind when it engaged in a particular conduct,
it is sufficient to show that the member had the relevant state of mind. Subsection (4)
does not refer to subsection 140ZGA(2) which deals with civil penalty proceedings as
there are no mental elements required to establish breach of a Subdivision BB civil
penalty provision in Division 3A.
Item 43 Section 140ZH
This item repeals section 140ZH. The definitions currently in that section have been
amended and moved up to the front of Subdivision C in new sections 140XA and 140XB
inserted by item 29.
Item 44 At the end of Division 3A of Part 2
This item inserts a new "Subdivision D Inspectors" at the end of Division 3A of Part 2.
This new Subdivision D comprises 5 sections.
This new subdivision sets out the powers of inspectors who will be monitoring
compliance of approved sponsors with their sponsorship obligations such as power to
search certain premises as well as the power to disclose information. This subdivision
also prescribes two criminal offences for the purposes of Division 3A. The first is for
failure to produce a document at the request of an inspector (new section 140JK) and the
second is failure, on the part of an inspector, to return his/her identity card with 14 days
of ceasing to be an inspector (new subsection 140ZI(3)).
140ZH Inspectors
This item inserts new section 140ZH which deals with appointment of inspectors.
New subsection 140ZH(1) provides that the Minister may, by written instrument, appoint
such inspectors as the Minister considers necessary from time to time.
New subsection 140ZH(2) provides that the Minister may appoint as an inspector either:
(a) a person who has been appointed (or is employed) by the Commonwealth; or
(b) a person, other than a person mentioned in paragraph 140ZH(2)(a).
New subsection 140ZH(3) provides that a person appointed under paragraph 140ZH(2)(a)
is appointed for the period specified in regulations made under this subsection. New
subsection 140ZH(4) provides that a person appointed under paragraph 140ZH(2)(b) is
appointed for the period specified in the person's instrument of appointment, which must
not be longer than the period specified in the regulations made under section 140ZH(4).
New subsection 140ZH(5) which is subject to subsection (6) provides that an inspector
has the powers and functions conferred on an inspector by this Act or by the regulations.
New subsection 140ZH(6), to which subsection (5) is made subject, provides that a
person appointed under paragraph (2)(b) has only such of the powers and functions
mentioned in subsection (5) as are specified in his or her instrument of appointment. This
means that inspectors appointed pursuant to 140ZH(2)(b) may be provided with limited
powers or functions if necessary.
New subsection 140ZH(7) provides that the Minister may give directions (in writing)
specifying the manner in which, and any conditions and qualifications subject to which,
powers or functions conferred on inspectors are to be exercised or performed. This
provision gives the Minister power to provide guidance and direction to inspectors as to
how their powers or functions should be exercised and any conditions or qualifications on
those powers or functions.
New subsection 140ZH(8) provides that an inspector must comply with those directions.
The sanction for non-compliance would be for the Minister to revoke the inspector's
appointment as an inspector.
140ZI Identity Cards
This item inserts new section 140ZI which sets out rules in relation to the issue and use of
inspectors' identity cards.
New subsection 140ZI(1) provides that the Minister may issue to an inspector an identity
card in a prescribed form.
New subsection 140ZI(2) compels an inspector to carry the identity card at all times
when exercising powers of performing functions as an inspector.
New subsection 140ZI(3) provides that a person commits a criminal offence if the person
ceases to be an inspector and the person fails to return his or her identity card to the
Secretary within 14 days after ceasing to be an inspector. The maximum penalty which
can be imposed for this offence is 1 penalty unit.
New Subsection 140ZI(4) states that strict liability applies to the offence in subsection
(3).
A note has been inserted under subsection (4) which provides that for a definition of
strict liability, see section 6.1 of the Criminal Code.
The Criminal Code requires that if an offence is intended to be one of strict liability, it
must be expressly stated. Strict liability is criminal responsibility where there is an
absence of any requirement of fault. The defense of reasonable mistake of fact is however
available in strict liability offences.
It is important that identity cards be returned as soon as practicable after an inspector
ceases their appointment in order to prevent the improper use of such cards. This is an
administrative obligation provision, with a small penalty attached where strict
liability is commonly applied under Commonwealth law.
140ZJ Powers of Inspectors
Purpose for which powers of inspectors can be exercised
Inspectors are given certain powers under the Act (see subsection 140ZJ(2)) and
additional powers or functions may be prescribed in the regulations (see subsection
140ZH(5)). New subsection 140ZJ(1) provides the purposes for which inspectors powers
can be exercised. The powers of an inspector may only be exercised for the purposes of
determining whether the obligations imposed by Subdivision BB or by regulations made
under that Subdivision are being, or have been, complied with; or for the purposes of a
provision of the regulations that confers powers or functions on inspectors.
Powers of inspectors
New subsection 140ZJ(2) sets out the powers of inspectors.
Subparagraph 140ZJ(2)(a) permits an inspector 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 the purposes set out in subsection
(1).
Paragraph 140ZJ(2)(b) provides that in a place (referred to in paragraph 140ZJ(2)(a))
inspectors are authorised to:
· inspect any work, material, machinery, appliance, article or facility;
· interview any person;
· require a person having the custody of, or access to, a document relevant to that
purpose to produce the document to the inspector within a specified period;
· inspect a document produced to him or her and make copies of, or take extracts
from, the document; and
· require a person to tell the inspector who has custody of a document.
Inspectors are also able to require a person, by written notice, to produce a document to
the inspector at a specified place within a specified period (of not less than 7 days).
Note 1 explains that a contravention of a requirement under subparagraph140ZJ(2)(b)(iii)
(requiring a person having the custody of, or access to, a document relevant to that
purpose to produce the document to the inspector within a specified period) or paragraph
140ZJ(2)(c) (requiring a person, by written notice, to produce a document to the inspector
at a specified place within a specified period) may constitute an offence under section
140ZK. The penalty for an offence under section 140ZK is imprisonment for 6 months.
Note 2 explains that subsection (7) deals with the methods by which the notice must be
given to the person.
When may the powers be exercised
Subsection 140ZJ(3) sets out when inspectors powers may be exercised and provides that
inspectors may exercise their powers at any time during working hours or at any other
time at which it is necessary to do so for the purposes set out in subsection (1).
Subsection 140ZJ(4) provides that if a person who is required under subparagraph
(2)(b)(iii) to produce a document contravenes that requirement, an inspector may, by
written notice given to the person, require the person to produce the document at a
specified place within a specified period (of not less than 7 days).
Note 1 explains that a contravention of a requirement under subsection 140ZJ(4) may
constitute an offence under section 140ZK. The penalty for an offence under section
140ZK is imprisonment for 6 months.
Note 2 explains that subsection (7) deals with the methods by which the notice must be
given to the person.
Subsection 140ZJ(5) provides that if a document is produced to an inspector under
paragraph (2)(c) or subsection (4) the inspector may make copies of, or take extracts from
the document and retain the document for such period as is necessary for the purpose of
exercising powers or performing functions as an inspector.
Subsection 140ZJ(6) provides during the period a document is in the possession of an
inspector, the inspector must permit the person otherwise entitled to possession of the
document, or a person authorised by the person, to inspect, make copies of or take
extracts from the document at all reasonable times.
Giving notices under paragraph (2)(c) and subsection (4)
This subsection provides that a notice referred to in paragraph (2)(c) or subsection (4)
must be given to the person by one of the methods specified in section 494B.
The methods in section 494B include giving a notice by hand, handing to person at their
residential or business address, transmission by fax, e-mail or other electronic means. If
a notice is given by one of the methods in section 494B the recipient is taken to have
received the notice in accordance with the provisions of section 494C
Subsection 140ZJ(7), provides at paragraph (a) and (b) that a reference in sections 494B
or 494C to the Minister is instead taken to be a reference to the inspector and despite
subsection 494B(2), (3) and (6), an inspector must not act by way of an authorised
officer. As inspectors will be performing an operational role it is not appropriate that
other officers should be authorised for the purposes of providing notices. It is appropriate
that inspectors perform this important function personally.
Information and documents that incriminate a person
Under subsection 140ZJ(8) a person must still produce a document or provide
information to an inspector notwithstanding the fact that the document or information
could incriminate them.
However, under subsection 140ZJ(9) if an individual gives information or produces a
document under section 140ZJ none of the following are admissible in evidence against
the individual in any criminal proceedings other than proceedings for an offence against
140ZK:
· the giving of the information or the production of the document;
· any information, document or thing obtained as a direct or indirect consequence
of giving the information or producing the document.
Subsection 140ZJ(10) provides that an inspector who is proposing to enter, or has
entered, premises and has been required by the occupier of the premises to produce
evidence of authority, the inspector is not entitled to enter or remain on the premises
without producing his her identity card to the occupier.
140ZK Non-compliance with requirement of inspector
This section provides that a person commits an offence if the person contravenes a
requirement made by an inspector under subparagraph 140ZJ(2)(b)(iii), paragraph
140ZJ(2)(c) or subsection 140ZJ(4), which all deal with requirements to produce
documents.
This offence attracts a maximum penalty of imprisonment of 6 months.
Subparagraph 140ZJ(2)(b)(iii) requires a person having the custody of, or access to, a
document (relevant to a purpose for which the powers of an inspector can be exercised)
to produce the document to an inspector within a specified period.
Paragraph 140ZJ(2)(c) provides than an inspector may require a person, by written
notice, to produce a document to the inspector at a specified place within a specified
period (of not less than 7 days).
Subsection 140Z(4) provides that if a person who is required under subparagraph
(2)(b)(iii) to produce a document contravenes that requirement, an inspector may, by
written notice given to the person, require the person to produce the document at a
specified place within a specified period (of not less than 7 days).
140ZL Disclosure of Information by inspectors
New section 140ZL sets out the circumstances in which an inspector can disclose
information to another person. Under this section, the disclosure of information (acquired
in the course of exercising powers or performing functions as an inspector) by an
inspector is authorised where the inspector considers, on reasonable grounds that the
disclosure in the course of exercising his or her powers or performing his or her functions
is necessary or appropriate.
Pursuant to subsection 140ZL(2) and inspector may also disclose information to an
officer of the Department administered by the Minister who administers the Workplace
Relations Act 1996 if the inspector considers on reasonable grounds that the disclosure is
likely to assist the officer in the administration of that Act.
Subsection 140ZL(3) also provides that the regulations may authorise inspectors to
disclose information of the prescribed kind, for prescribed purposes, to officers of the
Commonwealth of the prescribed kind or officers of a State or Territory of the prescribed
kind.
Item 45 After Part 8C
This item inserts a new "Part 8D - General provisions relating to civil remedies", after
Part 8C of the Act. This new Part comprises 9 sections.
New Part 8D sets up a general framework for civil remedies that is to have application
across the Act and the regulations.
486R Operation of this Part
Section 486R indicates that the rules set out in Part 8D apply for the purposes of:
· Section 140SB imposition and recovery of civil penalties under Subdivision
BB;
· Any other provision of the Migration Act or of the regulations declared to be a
civil remedy provision whether or not for the purposes of a particular segment of
the Act or regulations; and
· Any other provision of the Migration Act or of the regulations that provides a
remedy for a contravention of a civil remedy provision.
Subsection 486R(2) also provides that the provisions referred to above are called civil
remedy provisions.
486S Involvement in contravention treated in same way as actual contravention
New section 486S establishes that a person involved in a contravention of a civil remedy
provision is to be treated as having contravened that provision personally. The term
involved in is defined in subsection 486S(2) to mean when the person has aided, abetted,
counseled, procured, induced (whether by threats or promises or otherwise) the
contravention or has conspired with others to effect the contravention .
486T Civil evidence and procedure rules for civil remedy orders
New section 486T, which is self explanatory, provides that a court hearing a matter under
a civil remedy provision must apply the rules of evidence and procedure for civil matters.
486U Recovery of pecuniary penalties
New section 486U provides that a pecuniary penalty payable under an order made under
a civil remedy provision is a debt due and payable to the Commonwealth. The
Commonwealth and may enforce the order as if it were an order made in civil
proceedings against the person to recover the debt. The debt is taken to be a judgment
debt.
486V Civil proceedings after criminal proceedings
Pursuant to new section 486V, a court must not make an order under a civil remedy
provision in relation to certain conduct that requires a person to pay a pecuniary penalty
if that person has been convicted of an offence arising from substantially the same
conduct.
New section 486V ensures that a person who is convicted of a criminal offence will not
face a pecuniary penalty in relation to substantially the same conduct.
486W Criminal proceedings during civil proceedings
This new section sets out the interrelationship between criminal and civil proceedings
that relate to conduct of a person which may be a breach of a civil penalty provision and
also a criminal offence. Under subsection 486W(1), proceedings for an order under a
civil remedy provision which will require that person to pay a pecuniary penalty will be
stayed where:
· criminal proceedings are started or have already been started against the person
for an offence; and
· the offence is constituted by conduct that is substantially the same as the conduct
in relation to which an order under a civil remedy provision is proposed to be
made.
Under subsection 486W(2), proceedings for an order under a civil remedy provision
would be able to be resumed if the person is not convicted of an offence. If the person is
convicted, proceedings for an order under a civil remedy provision will be dismissed.
486X Criminal proceedings after civil proceedings
New section 486X provides that criminal proceedings may be commenced against a
person for conduct that is substantially the same as that which could be the basis for an
order under a civil penalty provision regardless of whether or not such an order has been
made.
486Y Evidence given in proceedings for pecuniary penalty not admissible in
criminal proceedings
New section 486Y provides that evidence of information given or evidence of production
of documents in proceedings for an order under a civil remedy provision requiring a
pecuniary penalty is inadmissible in subsequent criminal proceedings which relate to
substantially the same conduct. This section does not however, apply in respect of a
criminal proceeding for false evidence given by the individual in proceedings under the
civil remedy provision.
486Z Civil double jeopardy
New section 486Z applies the double jeopardy principle to civil remedy provisions under
the Migration Act. Under this section, a person would not be liable to pay a pecuniary
penalty under another law of the Commonwealth relating to conduct that was
substantially the same as that for which they have already been ordered to pay a
pecuniary penalty under a civil remedy provision.
Civil remedy provision is defined in new section 486R (inserted by item 45).
Item 46 After paragraph 504(1)(ja)
This item inserts new paragraph 504(1)(jb) after paragraph 504(1)(ja).
New paragraph 504(1)(jb) provides an additional purpose for which the Governor-
General is authorised to make regulations.
Subsection 504(1) provides that the Governor-General may make regulations, not
inconsistent with this Act, prescribing all matters which by this Act are required or
permitted to be prescribed or which are necessary or convenient to be prescribed for the
carrying out or giving effect to this Act and, without limiting the generality of the
foregoing may make regulations.
New Paragraph 504(1)(jb) provides the power to make regulations enabling a persons
who is alleged to have contravened a provision in Subdivision BB of Part 3A of Part 2 (or
regulations made thereunder) to pay to the Commonwealth a prescribed penalty, as an
alternative to a proceeding under section 140SB not exceeding one-fifth of the maximum
penalty (that would otherwise apply).
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.
It is intended that an infringement notices regime be set up in the regulations to
complement the civil penalty regime.
Part 2--Transitional matters
Item 47 Application of amendments to persons who are already approved
sponsors
Section 47 is a provision which has been included in the bill to avoid any doubt that the
new provisions in this bill, such as the new obligations regime and associated civil
penalties are to apply to already approved sponsors (in relation to Subdivision BB
prescribed types of visas).
Section 47 provides, that to avoid doubt, the reference in section 140IA of the Migration
Act 1958 (as inserted by item 7 of Schedule 1 of the bill) to an approved sponsor includes
a reference to an approved sponsor when section 140IA commences.
Item 48 Effect of amendments on undertakings made before commencement
Item 48 is a transitional provisions dealing with undertakings made prior to the
commencement of item 7 of this bill and where Subdivision BB becomes applicable to
the approved sponsor in relation to that visa.
Item 48(1) provides that where an approved sponsor has made undertakings as required
by or under section 140H or 140I in relation to a prescribed kind of visa and after that
time Subdivision BB applies to the approved sponsor in relation to that visa, then the
undertakings cease to be enforceable against the approved sponsor.
Item 48(2) sets out that subsection (1) has effect despite section 140Q of the Migration
Act 1958. Section 140Q allows regulations to prescribe the circumstances in which, and
for how long, an undertaking or obligation arising out of a sponsorship can remain
enforceable against the sponsor where there has been a change in circumstances i.e.
where the sponsor has ceased to be an approved sponsor or the visa holder has ceased to
hold the visa for which he or she was sponsored.
Item 48(3) provides that, to avoid doubt, subsection (1) does not affect any penalty
incurred or other remedy available in respect of an act or omission before Subdivision BB
of Division 3A of Part 2 of the Migration Act 1958 applies to the approved sponsor. Also
subsection (1) does not affect any investigation, proceeding, or other action in respect of
such penalty or other remedy that may be instituted, continued, enforced, imposed or
taken after Subdivision BB applies to the approved sponsor.
Item 48(3) makes it clear that where undertakings made by an approved sponsor cease to
be in enforceable on Subdivision BB applying to an approved sponsor, anything done in
relation to a penalty, remedy, action, proceeding investigation etc is not affected by the
undertakings ceasing to be enforceable. For instance if an approved sponsor had
breached an undertaking at a time when it was enforceable against them (they were
bound by that undertaking) a decision could still be taken post Subdivision BB applying
to that approved sponsor, to for instance, cancel their approval as a sponsor or bar
sponsorship.
Item 49 Effect of certain amendments on current proceedings
This item provides for transitional arrangements in relation to certain amendments by
indicating that those amendments are not to affect ongoing proceedings.
This item provides at subsection (1) that amendments to the Migration Act 1958 made by
items 18, 20 and 21 of Schedule 1 do not apply in relation to, or otherwise affect, any
proceedings started before those amendments commence. Items 18, 20 and 21 deal with
amendments to sections 140R and 140S of the Migration Act 1958 which allow for
recovery of moneys which an approved sponsor is obliged to pay under an undertaking or
obligation. The amendments effectively change the court where an action can be
commenced from a court of competent jurisdiction to an eligible court . Eligible court is
defined in new section 140QA.
This item also provides at subsection (2) that sections 140SC to 140SE of the Migration
Act 1958 as inserted by item 22 of Schedule 1 of the bill apply only in relation to
proceedings started on or after the commencement of those sections. New sections
140SC to 140SE deal with issues such as interest on monies due up to judgment, interest
on judgment and using a small claims procedure in a magistrates court. These provisions
did not apply to actions commenced under section 140R or 140S prior to the amendments
to be made by this bill and this provision makes it clear that they do not apply to those
pre-existing proceedings after commencement of item 22.
Item 50 Effect of certain amendments on existing obligations, liabilities and
rights
Item 50 makes it clear that the amendment made by items 6, 30 to 34, and items 36 to 41
do not affect any obligation that was imposed, or liability or right that arose, before those
amendments commence.
The amendments referred to in these items are to change the time at which undertakings
take effect in relation to a person, a partnership or an unincorporated association
respectively. The new time of effect (generally speaking) is when the sponsor becomes
an approved sponsor. This provision makes it clear that this change is not to affect any
obligation imposed, liability or right that arose as a result of the provisions in effect prior
to the commencement of these items.
Schedule 2 - Taxation Administration Act 1953
Part 1 - Amendment
Item 1 After section 3EC
This item amends the Taxation Administration Act 1953 ("TAA") to insert a new section
3ED after section 3EC of the TAA.
New subsection 3ED(1) overrides any taxation secrecy provision and allows the
Commissioner of Taxation to disclose tax information to the Department of Immigration
and Citizenship (DIAC), if the Commissioner is satisfied that the information:
(a) relates to a holder or former holder of a visa, or an approved sponsor or former
approved sponsor whose identity is disclosed to the Commissioner under section
140V of the Migration Act 1958 and
(b) is relevant to the exercise of the Minister's powers under, or the administration of,
Division 3A of Part 2 of the Migration Act 1958 or regulations made under that
Division.
New paragraph 3ED(1)(a) requires that the tax information relates to either a holder (or
former holder) of a visa, or an approved sponsor (or former approved sponsor) of a
person for a visa whose identity is disclosed to the Commissioner under section 140V of
the Migration Act 1958. This means that the Commissioner may only disclose
information about a sponsor or visa holder to DIAC if the visa holder or sponsor's
identity has first been disclosed to the Commissioner pursuant to new section 140V(1B)
as inserted by item 25.
New paragraph 3ED(1)(b) provides that in addition to the requirements set out in
3ED(1)(a), the tax information may only be disclosed if it is relevant to the exercise of
the Minister's powers under, or the administration of, Division 3A of Part 2 (or the
regulations made under it). A note is included at the bottom of subsection 3ED(1) which
explains that Division 3A of Part 2 deals with sponsorship.
DIAC will use the tax information to monitor whether approved sponsors are complying
with their sponsorship obligations and are good corporate citizens, in that they are
complying with laws of the Commonwealth, of a State or Territory that are relevant to the
sponsor's fitness to be a sponsor of visa holders.
New subsection 3ED(2) establishes a criminal offence and provides that a person to
whom information is disclosed under subsections (1) or (3) must not disclose the
information to another person or make a record of the information. Contravention of this
provision attracts a maximum penalty of 2 years imprisonment. This subsection operates
to prohibit a person (whether the officer who initially received the information or a
person who received it pursuant to subsection (3))) from disclosing the information to
another person. The person must also not make a record of the information.
Subsection 3ED(3) provides that subsection (2) does not apply to the extent that the
information was disclosed, or the record of the information was made, for or in
connection with the purposes set out in paragraphs (a) (e).
Paragraph 3ED(3)(a) covers the exercise of the Minister's powers under, or the
administration of Division 3A (or the regulations made under that Division). This would
cover such powers as the power to bar a sponsorship, the power to waive a bar on
sponsorship, power to bring a civil remedy proceeding for breach of an obligation (such
as failure to pay minimum salary level (MSL), or failure to pay travel costs).
Paragraph 3ED(3)(b) covers merits review and judicial review of a decision concerning
the exercise of the Minister's powers under Division 3A. For example, this new
paragraph would permit disclosure to the Migration Review Tribunal (MRT) of
information that led the Minister to make a decision to bar a sponsor's sponsorship,
which is a reviewable decision. The MRT decision could be subject to judicial review on
questions of law. Therefore, the information needs to be made available to the MRT and
the courts.
New Paragraph 3ED(3)(c) covers proceedings under Subdivision BE of Division 3A,
which includes the recovery of civil penalties. This means that the information may be
disclosed or recorded etc for the purposes of civil remedy proceedings brought under
Subdivision BE for breach of a sponsorship obligation.
New paragraph 3ED(3)(d) covers penalties which are paid by a person (as an alternative
to facing civil penalty proceedings) in accordance with the regulations made under
paragraph 504(1)(jb) of the Migration Act. It is proposed that regulations will be made
under 504(1)(jb) to set up an infringement notices regime. This paragraph operates so that
information may be disclosed, or recorded for the purposes of issuing an infringement
notice as an alternative to civil proceedings.
New paragraph 3ED(3)(e) covers any proceedings arising from the proceedings
mentioned in paragraph (c) or penalty mentioned in paragraph (d). This is to cover any
judicial review that might be undertaken in relation to civil remedy proceedings or the
imposition of an infringement notice.
New subsection 3ED(4) provides that section 3ED applies in addition to, and not in
derogation of, any other provision of the TAA or of any other law relating to the
communication of information.
Subsection 3ED(5) defines "tax information" for the purposes of new section 3ED by
reference to the definition in section 3EA. This subsection also defines taxation secrecy
provision for the purposes of new section 3ED by reference to its meaning given by
section 3E.
It is intended that DIAC would be providing the ATO with very specific information
about a sponsor that indicates the sponsor may be in breach of an obligation or not
complying with tax laws of the Commonwealth, State or Territory. This information
could be obtained through compliance and intelligence programs, or via a complaint from
a visa holder. DIAC may, for example give the Tax Office documentation (such as
business records obtained by inspectors) which indicates a possible breach of an
obligation, or breach of tax laws, and this information could include the amount of
income the visa holder should have received, the amounts withheld by the employer,
details of the employer, including the Australian Business Number (ABN).
If the Tax Office has conducted compliance activity in relation to a taxpayer identified by
DIAC, then the Tax Office may provide DIAC with information relating to non-
compliance with taxation laws.
In relation to retention of tax information DIAC obtained from the Commissioner of
Taxation, DIAC intends to keep the information for the shortest amount of time necessary
to complete any of the purposes for which it was initially disclosed.
Part 2 Application
Item 2 Application of amendment of the Taxation Administration Act 1953
This item makes it clear that the amendment made by item 1 of Schedule 2 applies to tax
information that was collected by the Tax Commissioner either before or after the
commencement of item 1.
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