MIGRATION ACT 1958 - SECT 235 Offences in relation to work

MIGRATION ACT 1958 - SECT 235

  (1)   If:

  (a)   the temporary visa held by a non - citizen is subject to a prescribed condition restricting the work that the non - citizen may do in Australia; and

  (b)   the non - citizen contravenes that condition;

the non - citizen commits an offence against this section.

Note:   Subdivision C of this Division also contains offences relating to work by a non - citizen in breach of a visa condition.

  (2)   For the purposes of subsection   (1), a condition restricts the work that a non - citizen may do if, but not only if, it prohibits the non - citizen doing:

  (a)   any work; or

  (b)   work other than specified work; or

  (c)   specified work.

  (3)   An unlawful non - citizen who performs work in Australia whether for reward or otherwise commits an offence against this subsection.

Note:   Subdivision C of this Division also contains offences relating to work by an unlawful non - citizen.

  (4)   If:

  (a)   there is a criminal justice certificate or a criminal justice stay warrant about a non - citizen; and

  (b)   the person does any work within the meaning of subsection   160(2), in Australia, whether for reward or otherwise;

then without limiting the operation of any other provision of this Act, the person commits an offence against this subsection.

  (4A)   Subsection   (4) does not apply to a non - citizen who holds a criminal justice stay visa, but this subsection does not affect the operation of subsection   (1).

Note:   A defendant bears an evidential burden in relation to the matters in subsection   (4A) (see subsection   13.3(3) of the Criminal Code ).

  (4B)   An offence against subsection   (1), (3) or (4) is an offence of strict liability.

Note:   For strict liability , see section   6.1 of the Criminal Code .

  (5)   The penalty for an offence against subsection   (1), (3) or (4) is a fine not exceeding 100 penalty units.

  (6)   For the purposes of this section, a reference in a visa, and the reference in subsection   (3), to the performance of any work in Australia by a person, shall each be read as not including a reference to the performance by the person of any work of a prescribed kind or of work in prescribed circumstances.

  (7)   To avoid doubt, for the purposes of this section, a reference in a visa, and the reference in subsection   (3), to the performance of any work in Australia by a person, does not refer to engaging in:

  (a)   an activity in which a person who is a detainee in immigration detention voluntarily engages where the activity is of a kind approved in writing by the Secretary for the purposes of this paragraph; or

  (b)   an activity in which a person who is a prisoner in a prison or remand centre of the Commonwealth, a State or a Territory engages as a prisoner; or

  (c)   an activity in which a person engages in compliance with:

  (i)   a sentence passed, or an order made, under subsection   20AB(1) of the Crimes Act 1914 (community service orders etc.); or

  (ii)   a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention, an attendance order, or a similar sentence or order, passed or made under the law of a State or Territory.