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2013 - 2014 - 2015
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (CHARGING FOR A MIGRATION
OUTCOME) BILL 2015
EXPLANATORY MEMORANDUM
(Circulated by authority of the Assistant Minister for Immigration and Border Protection,
Senator the Hon. Michaelia Cash)
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Migration Amendment (Charging for a Migration Outcome) Bill 2015
OUTLINE
The Migration Amendment (Charging for a Migration Outcome) Bill 2015 (the Bill) amends
the Migration Act 1958 (the Act) to make it unlawful for a person to give or receive a benefit
in return for a migration outcome in relation to certain skilled work visa programmes.
The Bill responds to recommendation 10.7 of the Independent Review into Integrity in the
Subclass 457 Programme, in its report „Robust New Foundations - A Streamlined,
Transparent and Responsive System for the Subclass 457 Programme‟, which was released
on 10 September 2014. Recommendation 10.7 is that it be made unlawful for a sponsor to be
paid by visa applicants for a migration outcome and that this be reinforced by a robust
penalty and conviction framework.
The report found that some sponsors in the 457 visa programme have been paid by visa
applicants in return for a migration outcome. Currently, the Australian Government is not
able specifically to take action against such „payment for visas‟ activity, which occurs where
a benefit is asked for, received, offered or provided in return for a migration outcome.
The Government considers that „payment for visas‟ activity is unacceptable because it
undermines the integrity of Australia‟s visa programmes. It is not acceptable for sponsors,
employers or other third parties to make a personal gain from their position in a „payment for
visas‟ arrangement and it is not acceptable for a visa holder to become an Australian
permanent resident by engaging in „payment for visas‟ behaviour. Applicants who have paid
for their visa are more vulnerable to exploitation and extortion by their sponsor, behaviour
which endangers workers and undermines Australian workplace law.
The Bill therefore introduces a new criminal offence and civil penalty provision which will
allow sanctions to be imposed on sponsors and other third parties who engage in „payment
for visas‟ activity. These sanctions are not limited to the 457 visa programme but also extend
to other temporary and permanent skilled visa programmes where there is potential for
„payment for visas‟ activity to occur.
The Bill also introduces a new civil penalty provision which will provide for a fine to be
imposed on visa applicants or holders, or other third parties, who offer to provide, or provide,
a benefit as part of a „payment for visas‟ arrangement.
The Bill also introduces a new discretionary power to consider cancellation of a temporary or
permanent visa where the visa holder has engaged in „payment for visas‟ activity.
In particular, the Bill amends the Act to:
introduce a discretionary power to consider cancellation of a temporary or permanent
visa where the Minister is satisfied that:
- a benefit was asked for, or received by, or on behalf of, the visa holder in
return for the occurrence of a sponsorship-related event; or
- a benefit was offered or provided by, or on behalf of, the visa holder in return
for the occurrence of a sponsorship-related event;
define a "sponsorship-related event" to mean, broadly, a person entering into a
sponsorship arrangement or making a nomination in relation to certain sponsored
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visas or classes of sponsor, employing or engaging a person in work or an activity, the
grant of a visa, or an event prescribed in the regulations;
define a "benefit" to include a payment or other valuable consideration, a deduction of
an amount, any kind of real or personal property, an advantage, a service or a gift;
introduce a criminal offence which applies to a sponsor or other third party who asks
for or receives a benefit from another person in return for the occurrence of a
sponsorship-related event, and which carries a maximum penalty of 2 years
imprisonment or 360 penalty units, or both;
introduce a civil penalty provision which applies to a sponsor or other third party who
asks for or receives a benefit from another person in return for the occurrence of a
sponsorship-related event, and which carries a maximum penalty of 240 penalty units;
introduce a civil penalty provision which applies to a visa holder or other third party
who provides, or offers to provide, a benefit in return for the occurrence of a
sponsorship-related event, and which carries a maximum penalty of 240 penalty units;
impose civil and criminal liability on executive officers of a body corporate, which
have been found to be involved in „payment for visas‟ activity, in certain
circumstances where the officer knew that (or was reckless or negligent as to whether)
the activity was occurring;
provide for extended extraterritorial application of the offence as per Category B of
the Criminal Code 1995 and provide for equivalent extraterritorial application of the
civil penalty provisions;
clarify how the offence and civil penalty provisions apply to partnerships and
unincorporated associations; and
allow existing inspector powers and investigation powers to be used in relation to the
offence and civil penalty provisions.
The amendments in the Bill are necessary for the Government to send a clear message that
„payment for visas‟ activity is unacceptable and to provide for explicit sanctions to address
this conduct.
FINANCIAL IMPACT STATEMENT
The financial impact of the Bill is low. Any costs will be met from within existing resources
of the Department of Immigration and Border Protection.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill and assesses that the amendments are compatible with Australia‟s
human rights obligations. A copy of the Statement of Compatibility with Human Rights is at
Attachment A.
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MIGRATION AMENDMENT (CHARGING FOR A MIGRATION OUTCOME)
BILL 2015
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the short title by which this Act may be cited is the Migration
Amendment (Charging for a Migration Outcome) Act 2015.
Clause 2 Commencement
2. Subclause 2(1) provides that each provision of this 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.
3. Table item 1 provides that sections 1 to 3 and anything in this Act not elsewhere covered
by the table will commence on the day this Act receives the Royal Assent.
4. Table item 2 provides that Schedule 1 to the Bill commences on a single day to be fixed
by Proclamation. However, if the provisions do not commence within the period of 6
months beginning on the day this Act receives the Royal Assent, they commence on the
day after the end of that period.
5. A note explains that this table relates only to the provisions of this Act as originally
enacted. It will not be amended to deal with any later amendments of this Act.
6. Subclause 2(2) provides that any information in column 3 of the table is not part of this
Act. Information may be inserted in this column, or information in it may be edited, in
any published version of this Act.
Clause 3 Schedules
7. This clause provides that legislation that is specified in a Schedule to this Act is amended
or repealed as set out in the applicable items in the Schedule concerned, and any other
item in a Schedule to this Act has effect according to its terms.
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SCHEDULE 1 - Amendments
Migration Act 1958
Item 1 After subsection 116(1AB)
1. This item inserts new subsections 116(1AC) and (1AD) in Subdivision D of Division 3 of
Part 2 of the Act.
2. New subsection 116(1AC) provides that subject to subsections 116(2) and (3), the
Minister may cancel a visa (the "current visa") if he or she is satisfied that:
a benefit was asked for or received by, or on behalf of, the person (the "visa
holder") who holds the current visa from another person in return for the
occurrence of a sponsorship-related event; or
a benefit was offered or provided by, or on behalf of, the person (the "visa
holder") who holds the current visa to another person in return for the occurrence
of a sponsorship-related event.
3. This amendment provides the Minister with the discretion to cancel a temporary or
permanent visa held by a person who has been involved in a „payment for visas‟
arrangement. The first limb of the cancellation ground may apply to a sponsor, or another
visa holder involved in such an arrangement, who has asked for or received the benefit in
return for the occurrence of a sponsorship-related event. The second limb of the
cancellation ground may apply to a visa holder who has offered or provided the benefit to
the sponsor or another person in return for the occurrence of a sponsorship-related event,
whether in relation to their own visa or another person‟s visa. The visa cancellation
ground also applies to a person if the benefit is asked for, received, offered or provided on
behalf of the person.
4. "Sponsorship-related event" is defined in new section 245AQ inserted by item 6 of this
Schedule to include events such as applying for approval as a sponsor or making a
nomination, which must occur for an applicant to meet the criteria for grant of certain
visas.
5. The purpose of this new visa cancellation ground is to make clear that a visa holder who
has been granted a visa on the basis of a sponsorship, nomination or other event which
has occurred pursuant to a „payment for visas‟ arrangement will be liable to visa
cancellation. It also makes clear that any other person who holds a visa and has asked for,
received, offered or provided a benefit in return for their support for a visa as part of a
„payment for visas‟ arrangement will be liable to visa cancellation.
6. Subsection 116(1AD) provides that the cancellation ground applies:
whether or not the visa holder held the current visa or any previous visa at the
time the benefit was asked for, received, offered or provided; and
whether or not the sponsorship-related event relates to the current visa or any
previous visa that the visa holder held; and
whether or not the sponsorship-related event occurred.
7. This firstly makes clear that the new cancellation ground applies whether or not the visa
holder held the current visa or a previous visa at the time the „payment for visas‟ activity
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occurred. At the time the benefit was asked for, received, offered or provided, the person
may have held a previous visa, or may not yet have applied for, or been granted, a visa.
Secondly, it makes clear that the sponsorship-related event need not relate to the current
visa or any previous visa and need not have resulted in the grant of a visa.
8. The application provision in item 18 of this Schedule provides that the new visa
cancellation ground applies in relation to a visa granted before or after commencement of
the new provision, if the benefit was asked for, received, offered or provided after
commencement.
Item 2 Subsections 116(2) and (3)
9. This item omits "(1AA) or (1AB)" and substitutes "(1AA), (1AB) or (1AC)" in
subsections 116(2) and (3) in Subdivision D of Division 3 of Part 2 of the Act.
10. The effect of the amendment to subsection 116(2) is to provide that the Minister is not to
cancel a visa under new subsection 116(1AC) if there exist prescribed circumstances in
which a visa is not to be cancelled. New subsection 116(1AC) is inserted by item 1 of this
Schedule.
11. The effect of the amendment to subsection 116(3) is to provide that if the Minister may
cancel a visa under subsection 116(1AC), the Minister must do so if there exist prescribed
circumstances in which a visa must be cancelled.
12. This amendment ensures consistency with the other cancellation grounds in section 116
of the Act, which are also subject to subsections 116(2) and (3), and will allow
circumstances in which a visa is not to be cancelled, or must be cancelled, to be
prescribed in the regulations in the future.
Item 3 At the end of section 116
13. This item adds new subsection 116(4) in Subdivision D of Division 3 of Part 2 of the Act.
14. New subsection 116(4) provides that the term "benefit" has a meaning affected by section
245AQ and the term "sponsorship-related event" has the meaning given by section
245AQ, which is inserted by item 6 of this Schedule.
15. The terms "benefit" and "sponsorship-related event" are used in new subsections
116(1AC) and (1AD) inserted by item 1 of this Schedule.
Item 4 Subsection 117(1)
16. This item omits "(1AA), or (1AB)" and substitutes "(1AA), (1AB) or (1AC)" in
Subdivision D of Division 3 of Part 2 of the Act.
17. The effect of this amendment is to provide that subject to subsection 117(2), a temporary
or permanent visa held by a non-citizen may be cancelled under subsection 116(1AC)
when the non-citizen is in or outside Australia or in immigration clearance.
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18. It is intended that where a person has been involved in „payment for visas‟ activity, a visa
should be liable for cancellation whether it is a temporary or permanent visa. The visa
cancellation ground is discretionary and requires consideration to be given to a range of
factors such as the person‟s complicity in the „payment for visas‟ arrangement, strength of
ties to Australia and contribution to the Australian community, in considering whether or
not to cancel the visa.
Item 5 Paragraph 140X(aa)
19. This item inserts "or D" after "Subdivision C" in paragraph 140X(aa) of Division 3A of
Part 2 of the Act.
20. The effect of this amendment is to provide that the powers of an inspector under
Subdivision F of Division 3A of Part 2 of the Act may be exercised for the purpose of
investigating whether a person who is required under subsection 140H(1) to satisfy a
sponsorship obligation has committed an offence, or contravened a civil penalty
provision, under Subdivision D of Division 12 of this Part.
21. Subdivision D of Division 12 of Part 2 is inserted by item 6 of this Schedule and provides
for new offences and civil penalties in relation to sponsored visas.
22. Expanding the powers of an inspector will allow information to be gathered in relation to
whether a person who is or was an approved sponsor has engaged in „payment for visas‟
activity that constitutes an offence or contravenes a civil penalty provision in relation to
sponsored visas. In many instances, evidence of asking for, receiving, offering or
providing a benefit in return for the occurrence of a sponsorship-related event will only be
held by the parties to the „payment for visas‟ arrangement. The powers in Subdivision F
of Division 3A of Part 2 of the Act are therefore necessary to facilitate the collection of
evidence to enable the effective enforcement of the sanctions in Subdivision D of
Division 12 of the Act against a person who is or was an approved sponsor.
23. Current section 140XG relevantly provides that a person is required to produce a record
or document to the inspector even if this might tend to incriminate the person or expose
the person to a penalty. However, such a record or document is not admissible against the
individual in criminal proceedings (except in relation to certain offences relating to the
provision of false or misleading information or documents).
24. The investigation powers under Part 8E of the Act, including entry under search warrant,
will also be available to investigate whether any person, including a person who is or was
an approved sponsor, has committed an offence or contravened a civil penalty provision
under new Subdivision D of Division 12 of Part 2 of the Act.
Item 6 At the end of Division 12 of Part 2
25. This item inserts new Subdivision D - Offences and civil penalties in relation to
sponsored visas, in Division 12 of Part 2 of the Act.
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Section 245AQ - Definitions
26. New section 245AQ sets out the definitions of certain terms used in Subdivision D -
Offences and civil penalties in relation to sponsored visas.
27. New section 245AQ provides that "benefit" includes:
a payment or other valuable consideration; and
a deduction of an amount; and
any kind of real or personal property; and
an advantage; and
a service; and
a gift.
28. The meaning of "benefit" provided for in new section 245AQ reflects the broad range of
benefits that are known to be offered or provided in „payment for visas‟ arrangements,
including deductions of a visa holder‟s salary or wages, payment for goods or services
above market value, or unpaid work. The term "benefit" is used in new section 245AR
and 245AS inserted by this item. It is also used in the new visa cancellation ground in
subsection 116(1AC) inserted by item 1 of this Schedule.
29. New section 245AQ also provides that "executive officer" of a body corporate means a
director, the chief executive officer (however described), the chief financial officer
(however described) or the secretary of a body corporate. The term "executive officer" is
relevant to new sections 245AT and 245AU inserted by this item, which set out the
criminal and civil liability of executive officers of body corporates in relation to
sponsorship-related offences and contraventions.
30. New section 245AQ also provides that "sponsor class" means a class of sponsor
prescribed in the regulations. This definition would allow the regulations to prescribe the
classes of sponsor that are relevant to the events set out paragraphs (a) and (b) of the
definition of "sponsorship-related event". These events relate to a person applying for
approval as a sponsor under section 140E, or applying for a variation of a term of an
approval as a sponsor under section 140E of the Act. For this reason, the only sponsor
classes that could be prescribed in the regulations under the definition of "sponsor class"
are those that are prescribed for the purposes of subsection 140E(2) in Division 3A of
Part 2 of the Act. Division 3A of Part 2 of the Act provides the framework for the
temporary sponsored work visa programme (which includes the Subclass 457 visa
programme).
31. Currently regulation 2.58 of the Migration Regulations 1994 sets out the classes of
sponsor in relation to which a person may be approved for the purposes of subsection
140E(2) of the Act. At this time, the subset of sponsor classes that are intended to be
prescribed for the purposes of the definition of "sponsor class" in new section 245AQ
include the standard business sponsor, long stay activity sponsor, training and research
sponsor, entertainment sponsor and superyacht crew sponsor classes.
32. New section 245AQ also provides that "sponsored visa" means a visa of a kind (however
described) prescribed in the regulations. This definition would allow for the regulations to
prescribe the visa classes, subclasses or streams that are relevant to the events set out at
paragraphs (d) to (k) of the definition of "sponsorship-related event". These events relate
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to a person agreeing to become an approved sponsor or making a nomination under
Division 3A of Part 2 of the Act, a person applying under the regulations for approval of a
nomination of a position, and other related events.
33. At this time, it is intended that the following temporary sponsored work visas will be
prescribed for the purposes of the definition of "sponsored visa" in new section 245AQ:
the Subclass 457 (Temporary Work (Skilled)) visa, the Subclass 401 (Temporary Work
(Long Stay Activity)) visa, the Subclass 402 (Training and Research) visa in the Research
stream, the Subclass 420 (Temporary Work (Entertainment)) visa and the Subclass 488
(Superyacht Crew) visa. It is intended that the following permanent skilled visas will be
prescribed: the Subclass 186 (Employer Nomination Scheme) visa and the Subclass 187
(Regional Sponsored Migration Scheme) visa.
34. Visa classes, subclasses and streams, and classes of sponsor, are prescribed in the
regulations pursuant to section 31 and section 140E of the Act, and the class and subclass
numbers and titles of the visas and sponsor classes may be amended from time to time. It
is therefore necessary to also prescribe in the regulations the sponsored visas and sponsor
classes for the purposes of the definitions in section 245AQ of the Act.
35. Section 245AQ also provides that a "sponsorship-related event" means the events listed in
paragraphs (a) to (l) of the definition. The term "sponsorship-related event" is used in
sections 245AR and 245AS inserted by this item. It is also used in the new visa
cancellation ground in subsection 116(1AC) inserted by item 1 of this Schedule.
36. The sponsorship-related events listed in the definition are intended to capture all the
events in relation to which a „payment for visas‟ arrangement might be made. A person
might enter into a „payment for visas‟ arrangement in return for agreeing to sponsor or
making a nomination in relation to a visa applicant or holder. A person might also enter
into a „payment for visas‟ arrangement in relation to a wide range of events associated
with a sponsorship or nomination, such as applying for approval to become a sponsor,
entering into a work agreement, employing a person to work in an occupation or position,
or including a family member in a nomination.
37. The events also anticipate the possibility that a benefit might be extracted from a visa
applicant or holder under threat of withdrawal of a nomination or termination of their
employment. Also, a benefit could be given upon grant of the sponsored visa in
recognition that it was the sponsorship or nomination which allowed the visa criteria to be
met.
38. Paragraph (l) of the definition also provides for further sponsorship-related events to be
prescribed. It is intended that this may be used in the future to prescribe events of the
same kind as those set out above, but where the criteria for grant of a sponsored visa are
amended such that they are no longer covered by the events listed in section 245AQ of
the Act. This recognises that the criteria for grant of the sponsored visas are set out in the
regulations and may be amended from time to time.
39. Section 44 of the Legislative Instruments Act 2003 provides that a legislative instrument
made under Part 2 of the Act is not subject to disallowance.
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Section 245AR - Prohibition on asking for or receiving a benefit in return for the occurrence
of a sponsorship-related event
40. Section 245AR provides for a new offence and civil penalty provision where a person
asks for, or receives, a benefit from another person in return for the occurrence of a
sponsorship-related event.
41. The purpose of new section 245AR is to ensure that it is prohibited to solicit or receive a
benefit as an inducement to sponsor, nominate or otherwise provide the support necessary
for a person to be eligible for a visa, or to continue to hold the visa. It is not considered
acceptable for sponsors or other third parties to make a personal gain from their
involvement in a „payment for visas‟ arrangement and the opportunity it may provide for
the visa applicant or holder to become an Australian permanent resident.
42. This reflects the Government‟s position that the purpose of the temporary sponsored visa
and skilled visa programmes is to address genuine skills shortages in the Australian
labour market, not to provide employers with benefits above and beyond the visa holder‟s
lawful employment or engagement in the sponsor‟s business, organisation or programme.
Receiving a benefit as an inducement to enter into a sponsorship or nomination
arrangement undermines the integrity of skilled visa programmes and has the potential to
affect the Australian job market.
43. In some cases, „payment for visas‟ arrangements leave visa applicants and holders
vulnerable to exploitation and further extortion once in Australia, due to the risk that their
visa will be cancelled if the sponsor withdraws their support.
44. Subsection 245AR(1) provides that a person (the "first person") contravenes this
subsection if:
the first person asks for, or receives, a benefit from another person; and
the first person asks for, or receives, the benefit in return for the occurrence of a
sponsorship-related event.
45. The meaning of "benefit" is affected by section 245AQ and the definition of
"sponsorship-related event" is also provided in section 245AQ inserted by this item.
46. Subsection 245AR(2) provides that to avoid doubt, the first person contravenes
subsection 245AR(1) even if the sponsorship-related event does not occur. For example,
subsection 245AR(1) applies if a person asks for or receive a benefit in return for making
a nomination, but the nomination application is not lodged.
47. Subsection 245AR(3) provides that subsection 245AR(1) does not apply if the benefit is a
payment of a reasonable amount for a professional service that has been provided, or is to
be provided, by the first person or a third person. This defence is available to a person
who may be providing a legitimate professional service involving conduct of the kind
described in subsection 245AR(1), that is, asking for or receiving a benefit in return for
the occurrence of a sponsorship-related event. An amount would be considered
reasonable if it is commensurate with market rates. It is not considered that the provision
of immigration assistance or recruitment advice would normally constitute conduct that
contravenes subsection 245AR(1), however, there may be situations in which „payment
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for visas‟ conduct occurs in a context in which legitimate professional services are also
being provided.
48. As explained in the note below subsection 245AR(3), the defendant bears the evidential
burden in relation to the matter in subsection 245AR(3). It is necessary to reverse the
onus of the burden of proof in relation to this matter because the information as to
whether the benefit constitutes a reasonable fee for a professional service is uniquely
within the knowledge of the defendant. The prosecution would still be required to prove
that the benefit was asked for or received in return for the occurrence of a sponsorship-
related event.
Offence
49. Subsection 245AR(4) provides that a person commits an offence if the person
contravenes subsection 245AR(1). The physical elements of the offence are set out in that
subsection.
50. The fault elements of the offence are provided for in section 5.6 of the Criminal Code.
51. The maximum penalty for the offence is imprisonment for 2 years or 360 penalty units, or
both.
52. Subsection 4B(3) of the Crimes Act 1914 provides that where a body corporate is
convicted of an offence against a law of the Commonwealth, the court may impose a
maximum penalty of an amount equal to five times the amount of the maximum penalty
that could be imposed on an individual person.
53. Therefore, at this time, the maximum penalty of 360 penalty units currently equates to
$64,800 for an individual person or $324,000 for a body corporate.
54. The maximum fine of 360 penalty units is set higher than the standard fine/imprisonment
ratio provided for in section 4B of the Crimes Act to counter the potential financial gains
from committing the offence, which have been assessed as typically ranging from
$15,000 to $70,000 in relation to an individual visa holder, and up to $700,000 where
multiple visa holders were involved in „payment for visas‟ arrangements with the one
sponsor.
Civil penalty provision
55. Subsection 245AR(5) provides that a person is liable to a civil penalty if a person
contravenes subsection 245AR(1) of the Act.
56. The maximum civil penalty is 240 penalty units. Subsection 486R of the Act provides
that the maximum pecuniary penalty for a body corporate is five times the amount
specified for the civil penalty provision. Therefore, at this time, the maximum penalty
currently equates to $43,200 for an individual person or $216,000 for a body corporate.
57. A high civil penalty has been set for this civil penalty provision to appropriately address
the severity of the prohibited conduct. A strong civil penalty is required to ensure that a
person who asks for or receives a benefit in relation to the occurrence of a sponsorship-
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related event faces a penalty which is proportionate to the unlawful behaviour and which
counters the potential financial gains made pursuant to „payment for visas‟ arrangements.
58. Subsection 245AR(6) provides that a person who wishes to rely on subsection 245AR(3)
in proceedings for a civil penalty order bears an evidential burden in relation to the matter
in that subsection.
59. It is necessary to reverse the onus of the burden of proof in relation to this matter because
the information as to whether the benefit constitutes a reasonable fee for a professional
service is uniquely within the knowledge of the defendant. The applicant for a civil
penalty order would still be required to prove that the benefit was asked for or received in
return for the occurrence of a sponsorship-related event.
60. The note following subsection 245AR(6) provides that it is not necessary to prove a
person‟s state of mind in proceedings for a civil penalty order (see section 486ZF).
Section 245AS - Prohibition on offering to provide or providing a benefit in return for the
occurrence of a sponsorship-related event
61. New section 245AS provides for a new civil penalty provision where a person offers to
provide, or provides, a benefit to another person in return for the occurrence of a
sponsorship-related event.
62. The purpose of new section 245AS is to ensure that an application for a civil penalty
order can be made in relation to a person who is complicit in a „payment for visas‟
arrangement by offering or providing a benefit to induce another person to enter into a
sponsorship arrangement or make a nomination. It is not considered acceptable for visa
holders or other third parties to attempt to obtain a temporary or permanent visa, for him
or herself or any other person, through a „payment for visas‟ arrangement.
63. Subsection 245AS(1) provides that a person (the "first person") contravenes this
subsection if:
the first person offers to provide, or provides, a benefit to another person (the "second
person"); and
the first person offers to provide, or provides, the benefit in return for the occurrence
of a sponsorship-related event.
64. The meaning of "benefit" is affected by section 245AQ and the definition of
"sponsorship-related event" is also provided in section 245AQ inserted by this item.
65. The maximum civil penalty is 240 penalty units, which at this time currently equates to
$43,200 for an individual person or $216,000 for a body corporate.
66. A high civil penalty has been set for this civil penalty provision to appropriately address
the severity of the prohibited conduct. A strong civil penalty is required to ensure that a
person who offers to provide, or provides, a benefit in relation to the occurrence of a
sponsorship-related event faces a penalty which is proportionate to the unlawful
behaviour which undermines the integrity of skilled visa programmes.
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67. Subsection 245AS(2) provides that to avoid doubt, the first person contravenes subsection
245AS(1) even if the sponsorship-related event does not occur. For example, subsection
245AS(1) applies even if a person offers to provide or provides a benefit in return for
being identified in a nomination made by a sponsor, but the nomination application is not
lodged.
68. Subsection 245AS(3) provides that subsection 245AS(1) does not apply if the benefit is a
payment of a reasonable amount for a professional service that has been provided, or is to
be provided, by the second person or a third person. This defence is available where the
benefit is being offered or provided to a person who may be providing a legitimate
professional service in return for the occurrence of a sponsorship-related event. An
amount would be considered reasonable if it is commensurate with market rates. It is not
considered that procuring immigration assistance or recruitment advice would normally
constitute conduct that contravenes subsection 245AS(1), however, there may be
situations in which „payment for visas‟ conduct occurs in a context in which legitimate
professional services are also being provided.
69. Subsection 245AS(4) provides that a person who wishes to rely on subsection 245AS(3)
in proceedings for a civil penalty order bears an evidential burden in relation to the matter
in that subsection.
70. It is necessary to reverse the onus of the burden of proof in relation to this matter because
the information as to whether the benefit constitutes a reasonable fee for a professional
service is uniquely within the knowledge of the defendant. The applicant for a civil
penalty order would still be required to prove that the benefit was asked for or received in
return for the occurrence of a sponsorship-related event.
71. The note following subsection 245AS(4) provides that it is not necessary to prove a
person‟s state of mind in proceedings for a civil penalty order (see section 486ZF).
Subsection 245AT - Criminal liability of executive officers of bodies corporate
72. New subsection 245AT(1) provides that an executive officer of a body corporate commits
an offence if:
the body commits an offence against new Subdivision D of Division 12 of Part 2 of
the Act (in new section 245AT called a "sponsorship-related offence"); and
the officer knew that, or was reckless or negligent as to whether, the sponsorship-
related offence would be committed; and
the officer was in a position to influence the conduct of the body in relation to the
sponsorship-related offence; and
the officer failed to take all reasonable steps to prevent the sponsorship-related
offence being committed.
73. New section 254AQ inserted by this item provides that "executive officer" of a body
corporate means a director, the chief executive officer (however described), the chief
financial officer (however described) and the secretary of the body corporate.
74. The purpose of new subsection 245AT(1) is to extend criminal liability of bodies
corporate that commit sponsorship-related offences against new Subdivision D to
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executive officers of those bodies corporate, in certain circumstances where the officer
failed to take all reasonable steps to prevent the offence being committed.
75. An executive officer of a body corporate will not be held criminally liable in respect of a
sponsorship-related offence committed by the body corporate unless all of the specified
circumstances exist. The effect of this provision is that responsible individual persons
who are executive officers of a body corporate involved in the commission of
sponsorship-related offences may be penalised in the specified circumstances, even when
the sponsorship-related offence is committed by the body corporate.
76. New subsection 245AT(1) provides that an offence committed by an executive officer of
a body corporate against the subsection is punishable on conviction by a maximum
pecuniary penalty of 360 penalty units. This is the same as the maximum pecuniary
penalty that may be imposed on an individual person convicted of a sponsorship-related
offence under new sections 245AR and 245AS inserted by this item.
77. New subsection 245AT(2) provides that in determining whether the executive officer of a
body corporate failed to take all reasonable steps to prevent a sponsorship-related offence
being committed by the body corporate, a court must have regard to:
what action (if any) the officer took towards ensuring that the body corporate‟s
employees, agents and contractors had a reasonable knowledge and understanding of
the requirements to comply with Subdivision D, insofar as those requirements
affected the employees, agents or contractors concerned; and
what action (if any) the officer took when he or she became aware that the body was
committing the sponsorship-related offence.
78. New subsection 245AT(3) provides that subsection 245AJ(2) does not limit subsection
245ATJ(1) of the Act.
79. The purpose of new subsection 245AT(3) is to make clear that, although a court must
have regard to the matters in subsection 245AT(2) in determining whether an executive
officer of a body corporate failed to take all reasonable steps to prevent a sponsorship-
related offence being committed by the body corporate, the court may also have regard to
any other matters it considers relevant.
Section 245AU - Civil liability of executive officers of bodies corporate
80. New subsection 245AU(1) provides that an executive officer of a body corporate
contravenes the subsection if:
the body contravenes a civil penalty provision in new Subdivision D of Division 12 of
Part 2 of the Act (in new section 245AU called a "sponsorship-related
contravention"); and
the officer knew that, or was reckless or negligent as to whether, the sponsorship-
related contravention would occur; and
the officer was in a position to influence the conduct of the body in relation to the
sponsorship-related contravention; and
the officer failed to take all reasonable steps to prevent the sponsorship-related
contravention.
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81. New section 254AQ inserted by this item provides that "executive officer" of a body
corporate means a director, the chief executive officer (however described), the chief
financial officer (however described) and the secretary of the body corporate.
82. The purpose of new subsection 245AU(1) is to extend the civil liability of bodies
corporate in respect of the sponsorship-related civil penalty provisions in new
Subdivision D to executive officers of those bodies corporate, in certain circumstances
where the officer failed to take all reasonable steps to prevent the sponsorship-related
contravention.
83. Civil liability in respect of a sponsorship-related contravention by a body corporate will
not extend to an executive officer of the body corporate unless all of the specified
circumstances exist. The effect of this provision is that responsible individual persons
who are executive officers of a body corporate involved in sponsorship-related
contraventions may be penalised in the specified circumstances, even when the
contravention is committed by the body corporate.
84. The note to new subsection 245AU(1) advises that section 486ZF of the Act (which
provides that a person‟s state of mind does not need to be proven in proceedings for a
civil penalty order, subject to specific exceptions) does not apply in relation to a
contravention of the new subsection.
85. Section 486ZF provides that, except in specified instances, in proceedings for a civil
penalty order against a person for a contravention of a civil penalty provision, it is not
necessary to prove the person‟s intention, knowledge, negligence, recklessness, or any
other state of mind of the person. Subsection 486ZF(1) is amended by item 7 inserted by
this Schedule to provide that section 486ZF does not apply to a contravention of new
subsection 245AU(2) of the Act.
Civil penalty provision
86. New subsection 245AU(2) provides that an executive officer of a body corporate is liable
to a civil penalty of a maximum of 240 penalty units if the officer contravenes subsection
245AU(1) of the Act. This is the same as the maximum civil penalty that may be
imposed on an individual person who contravenes sponsorship-related civil penalty
provisions under new sections 245AR and 245AS inserted by this item.
87. The penalty must be read in conjunction with subsection 486R(6) of the Act, which
provides that in determining the amount of a pecuniary penalty, the court must take into
account all relevant matters, including the matters listed in that subsection.
Reasonable steps to prevent the contravention
88. New subsection 245AU(3) provides that in determining whether an executive officer of a
body corporate failed to take all reasonable steps to prevent a sponsorship-related
contravention by the body corporate, a court must have regard to:
what action (if any) the officer took towards ensuring that the body corporate‟s
employees, agents and contractors had a reasonable knowledge and understanding of
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the requirements to comply with new Subdivision D, insofar as those requirements
affected the employees, agents and contractors concerned; and
what action (if any) the officer took when he or she became aware that the body
corporate was engaging in a sponsorship-related contravention.
89. New subsection 245AU(4) provides that subsection 245AU(3) does not limit subsection
245AU(1) of the Act.
90. The purpose of new subsection 245AU(4) is to make it clear that, although a court must
have regard to the matters in subsection 245AU(3) in determining whether an executive
officer of a body corporate failed to take all reasonable steps to prevent a sponsorship-
related contravention by the body corporate, the court may also have regard to any other
matters it considers relevant.
Definitions
91. New subsection 245AU(5) provides that an executive officer of a body corporate is
"negligent" as to whether a sponsorship-related contravention would occur if the officer‟s
conduct involves:
such a great falling short of the standard of care that a reasonable person would
exercise in the circumstances; and
such a high risk that the sponsorship-related contravention would occur;
that the conduct merits the imposition of a pecuniary penalty.
92. The purpose of this definition is to ensure that the word "negligent" in the context of new
section 245AU is consistent with that term as defined in section 5.5 of the Criminal
Code.
93. New subsection 245AU(5) also provides that an executive officer of a body corporate is
"reckless" as to whether a sponsorship-related contravention would occur if:
the officer is aware of a substantial risk that the sponsorship-related contravention
would occur; and
having regard to the circumstances known to the officer, it is unjustifiable to take the
risk.
94. The purpose of this definition is to ensure that the word "reckless" in the context of new
section 245AU is consistent with that term as defined in section 5.4 of the Criminal Code.
Section 245AV - Contravening civil penalty provisions
95. New subsection 245AV(1) provides that section 245AV applies if a civil penalty
provision in new Subdivision D of Division 12 of Part 2 of the Act provides that a person
contravening another provision of the subdivision (called "a conduct rule provision") is
liable to a civil penalty.
96. New subsection 245AV(2) provides that for the purposes of the Act, a person is taken to
contravene a civil penalty provision if the person contravenes a "conduct rule provision",
as described in subsection 245AV(1) of the Act.
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97. The purpose of these provisions is to ensure that references in the Act to a contravention
of a civil penalty provision include a contravention of a conduct rule provision in new
Subdivision D of Division 12 of Part 2 of the Act.
98. New section 245AV applies to those provisions in new Subdivision D which state that a
person is liable to a civil penalty if the person contravenes another provision of
Subdivision D. For example, new subsection 245AR(5) makes a person liable to a civil
penalty if the person contravenes subsection 245AR(1) (which is contravened by a person
who asks for, or receives, a benefit from another person in return for the occurrence of a
sponsorship-related event).
99. The effect of subsection 245AV(2) is that, if the person contravenes a provision by doing
a certain act, the person is taken to contravene the associated civil penalty provision and
so is liable for a civil penalty. This is necessary because the civil penalty provision itself
cannot be contravened in its own right. For instance, in the above example, a person
contravening new subsection 245AR(1) is taken to be liable for the civil penalty set out in
new subsection 245AV(5) (the civil penalty provision). However, in the absence of new
subsection 245AV(2), the person could not be taken to have contravened a civil penalty
provision, which is a requirement for civil penalty action to be taken under Part 8D of the
Act, because subsection 245AR(5) cannot be contravened in its own right.
Section 245AW - Geographical scope of offence and civil penalty provisions
Offences
100. New subsection 245AW(1) provides that section 15.2 of the Criminal Code
(extended geographical jurisdiction - category B) applies to an offence against new
Subdivision D of Division 12 of Part 2 of the Act.
101. The application of the geographical jurisdiction set out in section 15.2 of the Criminal
Code will ensure that, for example, a person would commit an offence under new section
245AR if the person is an Australian citizen, a resident of Australia, or a body corporate
incorporated in Australia, and while outside Australia asks for or receives a benefit in
return for the occurrence of a sponsorship-related event. In certain circumstances, other
persons outside Australia who ask for or receive a benefit in return for the occurrence of a
sponsorship-related event may also commit the offence if a result of the person‟s conduct
leading to the commission of the offence occurs in Australia.
Contraventions of civil penalty provisions
102. New subsection 245AW(2) provides that an order for a civil penalty must not be made
against a person in civil proceedings relating to a contravention by the person of a civil
penalty provision in new Subdivision D unless:
the person‟s conduct that allegedly contravenes the provision occurs:
- wholly or partly in Australia; or
- wholly or partly on board an Australian aircraft or an Australian ship; or
the person‟s conduct that allegedly contravenes the provision occurs wholly outside
Australia and, at the time of the alleged contravention, the person is:
- an Australian citizen; or
- a resident of Australia; or
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- a body corporate incorporated by or under a law of the Commonwealth or of a
State or Territory; or
all of the following conditions are satisfied:
- the person‟s conduct allegedly contravenes the provision because of section
486ZD of the Act (called an "ancillary contravention" in new section
245AW);
- the conduct occurs wholly outside Australia;
- the conduct constituting the primary contravention to which the ancillary
contravention relates occurs, or is intended by the person to occur, wholly or
partly in Australia or wholly or partly on board an Australian aircraft or an
Australian ship.
103. "Primary contravention" is defined in new subsection 245AW(9) inserted by this
item, to mean a contravention of a civil penalty provision in new Subdivision D, other
than because of section 486ZD of the Act.
104. The purpose of this provision is to provide for an extended geographical jurisdiction
for the contravention of the sponsorship-related civil penalty provisions in new
Subdivision D of Division 12 of Part 2 of the Act that is similar to the extended
extraterritorial application - category B that applies to the criminal offences in the same
Subdivision.
105. That is, if a person engages in conduct which contravenes a sponsorship-related
provision, the person will be liable to a civil penalty if they engage in the conduct wholly
or partly in Australia, or wholly or partly on board an Australian aircraft or an Australian
ship. The fact that the conduct contravening the sponsorship-related provision has
occurred, for example, wholly or partly in Australia makes the person potentially liable to
a civil penalty.
106. A person who has contravened a sponsorship-related provision will also be liable to a
civil penalty even if the contravention occurred wholly outside Australia, provided that, at
the time of the contravention, the person is either an Australian citizen, a resident of
Australia, or a body corporate incorporated by or under a law of the Commonwealth or of
a State or Territory.
107. Finally, a person who is taken to have contravened a sponsorship-related provision
because of section 486ZD (Ancillary contravention of civil penalty provisions) will be
liable to a civil penalty if the conduct constituting the ancillary contravention occurs
wholly outside Australia, and the conduct constituting the actual contravention of the civil
penalty provision civil penalty occurs, or is intended by the person to occur, wholly or
partly in Australia or wholly or partly on board an Australian aircraft or an Australian
ship.
108. For example, a person outside Australia who is involved, in any of the ways set out in
subsection 486ZD, in a benefit being asked for or received (or attempts to have a benefit
asked for or received) in Australia in return for the occurrence of a sponsorship-related
event, in contravention of new subsection 245AR(1), will be taken to have contravened
that provision under subsection 486ZD(2) of the Act.
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Defences relating to contraventions of civil penalty provisions
109. New subsection 245AW(3) provides that in civil proceedings relating to a primary
contravention by a person, it is a defence if:
the conduct constituting the alleged primary contravention occurs wholly in a foreign
country, but not on board an Australian aircraft or an Australian ship; and
the person is neither:
- an Australian citizen; nor
- a body corporate incorporated by or under a law of the Commonwealth or of a
State or Territory; and
there is not in force in:
- the foreign country where the conduct constituting the alleged primary
contravention occurs; or
- the part of the foreign country where the conduct constituting the alleged
primary contravention occurs;
a law of that foreign country, or a law of that part of that foreign country, that provides
for a pecuniary or criminal penalty for such conduct.
110. New subsection 245AW(4) provides that in civil proceedings relating to a
contravention (referred to as "an ancillary contravention") by a person of a civil penalty
provision in new Subdivision D because of section 486ZD, it is a defence if:
the conduct constituting the alleged ancillary contravention occurs wholly in a foreign
country, but not on board an Australian aircraft or an Australian ship; and
the conduct (referred to as "the primary conduct") constituting the primary
contravention to which the ancillary contravention relates occurs, or is intended by the
person to occur, wholly in a foreign country, but not on board an Australian aircraft or
an Australian ship; and
the person is neither:
- an Australian citizen; nor
- a body corporate incorporated by or under a law of the Commonwealth or of a
State or Territory; and
there is not in force in:
- the foreign country where the primary conduct occurs or is intended by the
person to occur; or
- the part of the foreign country where the primary conduct occurs or is intended
by the person to occur;
a law of that foreign country, or a law of that part of that foreign country, that provides
for a pecuniary or criminal penalty for the primary conduct.
111. The purpose of new subsections 245AW(3) and 245AW(4) is to provide for defences
relating to contraventions of civil penalty provisions where a civil penalty order would
not be prevented from being made by new subsection 245AW(2) of the Act.
112. For example, in relation to new subsection 245AW(3), if a resident of Australia
contravenes new subsection 245AR(1) while in in Country X, the person will have a
defence if the person is not an Australian citizen or a body corporate incorporated by or
under an Australian law, and there is no pecuniary or criminal penalty in Country X for
asking for or receiving a benefit in return for the occurrence of a sponsorship-related
event.
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113. In relation to new subsection 245AW(4), if a person who is neither an Australian
citizen nor a body corporate incorporated in Australia, has attempted to contravene the
civil penalty provision in new subsection 245AR(1) in Country X (and so is taken to have
contravened that provision under subsection 486ZD(2) of the Act), new paragraph
245AW(4)(a) will apply if the attempt to contravene subsection 245AR(1) occurred
wholly in a foreign country (but not on board an Australian aircraft or an Australian
ship). The person will have a defence if there is no pecuniary or criminal penalty in
Country X for asking for or receiving a benefit in return for the occurrence of a
sponsorship-related event.
114. New subsection 245AW(5) provides that a defendant bears an evidential burden in
relation to the matter in subsections 245AW(3) or 245AW(4).
115. It is considered appropriate for the defendant to bear the evidential burden if the
defendant seeks to rely on a defence in subsections 245AW(3) or 245AW(4) because the
citizenship of the person and the place of incorporation of a body are matters peculiarly
within the knowledge of the defendant.
Attorney-General's consent needed for certain proceedings
116. New subsection 245AW(6) provides that civil proceedings relating to a contravention
of a civil penalty provision in new Subdivision D in Division 12 of Part 2 of the Act must
not be commenced without the Attorney-General‟s written consent if:
the conduct constituting the alleged contravention occurs wholly in a foreign country;
and
at the time of the alleged contravention, the person alleged to have contravened the
provision is neither:
- an Australian citizen; nor
- a body corporate incorporated by or under a law of the Commonwealth or of a
State or a Territory.
117. The purpose of this provision is to require the Attorney-General‟s written consent to
be obtained for the commencement of civil proceedings relating to a contravention of a
sponsorship-related provision in new Subdivision D, in circumstances where the conduct
constituting the alleged contravention occurs wholly in a foreign country, and at the time
of the alleged contravention, the person is neither an Australian citizen nor a body
corporate incorporated by or under an Australian law.
When conduct taken to occur partly in Australia
118. New subsections 245AW(7) and 245AW(8) deal with when conduct is taken to occur
partly in Australia.
119. New subsection 245AW(7) provides that for the purposes of new section 245AW, if a
person sends a thing, or causes a thing to be sent:
from a point outside Australia to a point in Australia; or
from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
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120. For example, if a person in Country X sends a letter to a person in Australia asking
for, offering or transmitting a benefit in return for the occurrence of a sponsorship-related
event, the conduct is taken to have occurred partly in Australia for the purposes of section
245AW of the Act.
121. New subsection 245AW(8) provides that for the purposes of this section, if a person
sends, or causes to be sent, an electronic communication:
from a point outside Australia to a point in Australia; or
from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
122. For example, if a person in Country X sends an electronic communication (for
instance, an email) to a person in Australia asking for, offering or transmitting a benefit in
return for the occurrence of a sponsorship-related event, the conduct is taken to have
occurred partly in Australia for the purposes of section 245AW of the Act.
Definitions
123. New subsection 245AW(9) provides definitions for the purposes of new section
245AW. The new subsection provides that in section 245AW:
"Australian aircraft" has the same meaning as in the Criminal Code.
"Australian ship" has the same meaning as in the Criminal Code.
"electronic communication" has the same meaning as in the Criminal Code.
"foreign country" has the same meaning as in the Criminal Code.
"point" has the same meaning as in section 16.2 of the Criminal Code.
"primary contravention" means a contravention of a civil penalty provision in this
Subdivision other than because of section 486ZD.
"resident of Australia" has the same meaning as in the Criminal Code.
124. The purpose of subsection 245AW(9) is to clarify that certain expressions used in new
section 245AW (with the exception of the expression "primary contravention") have the
same meaning as in the Criminal Code.
125. The expression "primary contravention" refers to a contravention of a civil penalty
provision in new Subdivision D of Division 12 of Part 2 of the Act (that is, the new civil
penalty provisions in subsections 245AR(5), 245AS(1) and 245AU(2) inserted by this
item). However, the expression "primary contravention" does not refer to a situation in
which a person is taken to have contravened one of those subsections in accordance with
section 486ZD of the Act, which deals with ancillary contraventions of civil penalty
provisions.
Section 245AX - Treatment of partnerships
126. New subsection 245AX(1) provides that new Subdivision D in Division 12 of Part 2
of the Act, and any other provision of the Act to the extent that it relates to Subdivision D,
apply to a partnership as if it were a person, but with the changes set out in this section.
127. The purpose of new subsection 245AX(1) is to make a partnership liable as if it were
a person for the sponsorship-related offences and sponsorship-related provisions in new
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Subdivision D but subject to the other provisions in new section 245AX which, under
certain circumstances, may make partners individually liable.
128. New subsection 245AX(2) provides that an offence against new Subdivision D that
would otherwise be committed by a partnership is taken to have been committed by each
partner in the partnership, at the time the offence is committed, who:
did the relevant act; or
aided, abetted, counselled or procured the relevant act; or
was in any way knowingly concerned in, or party to, the relevant act
(whether directly or indirectly or whether by any act of the partner).
129. New subsection 245AX(2) relates to criminal offences against new sections 245R and
245AS in new Subdivision D. It provides that where a sponsorship-related offence under
new Subdivision D would have been committed by a partnership because of new
subsection 245AX(1), each partner at the time the offence is committed is taken to have
committed the offence if the partner did the relevant act, or aided, abetted, counselled or
procured the relevant act, or was in any way knowingly concerned in, or party to, the
relevant act.
130. The effect of new subsection 245AX(2) is only the partners who did or were involved
in the relevant act constituting the offence commit a sponsorship-related offence. The
maximum penalty that could be imposed on a partner is equivalent to the maximum
penalty that could be imposed on an individual.
131. New subsection 245AX(3) provides that a civil penalty provision in new Subdivision
D that would otherwise be contravened by a partnership is taken to have been
contravened by each partner in the partnership, at the time of the conduct constituting the
contravention, who:
engaged in the conduct; or
aided, abetted, counselled or procured the conduct; or
was in any way knowingly concerned in, or party to, the conduct
(whether directly or indirectly or whether by any act of the partner).
132. New subsection 245AX(3) relates to civil penalty provisions. It provides that where a
civil penalty provision in new Subdivision D would have been contravened by a
partnership because of subsection 245AX(1), each partner at the time of the contravention
is taken to have contravened the civil penalty provision if the partner did the relevant act,
or aided, abetted, counselled or procured the relevant act, or was in any way knowingly
concerned in, or party to, the relevant act.
133. The effect of new subsection 245AX(3) is that only the partners who did or were
involved in the relevant act constituting the contravention are liable for civil penalty
action. The maximum penalty that could be imposed on a partner is equivalent to the
maximum penalty that could be imposed on an individual.
Section 245AY Treatment of unincorporated associations
134. New subsection 245AY(1) provides that new Subdivision D in Division 12 of Part 2
of the Act, and any other provisions of the Act to the extent that it relates to Subdivision
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D, apply to an unincorporated association as if it were a person, but with the changes set
out in this section.
135. The effect of new subsection 245AY(1) is to make an unincorporated association
liable as if it were a person in respect of contraventions of sponsorship-related offences
and sponsorship-related civil penalty provisions in new Subdivision D, but subject to
other provisions of new section 245AY, under which individual members of an
unincorporated association‟s committee of management may be liable in certain
circumstances.
136. Subsection 5(1) of the Act provides that "committee of management" of an
unincorporated associated means a body (however described) that governs, manages or
conducts the affairs of the association.
137. New subsection 245AY(2) provides that an offence against new Subdivision D that
would otherwise be committed by an unincorporated association is taken to have been
committed by each member of the association‟s committee of management, at the time
the offence is committed, who:
did the relevant act; or
aided, abetted, counselled or procured the relevant act; or
was in any way knowingly concerned in, or party to, the relevant act
(whether directly or indirectly or whether by any act of the member).
138. New subsection 245AY(2) relates to criminal offences. Where a sponsorship-related
offence against new Subdivision D would have been committed by an unincorporated
association because of new subsection 245AY(1), new subsection 245AY(2) provides
that each member of the association‟s committee of management at the time the offence is
committed is taken to have committed the offence if they did the relevant act, or aided,
abetted, counselled or procured the relevant act, or was in any way knowingly concerned
in, or party to, the relevant act.
139. The effect of new subsection 245AY(2) is that only the members of the
unincorporated association‟s committee of management who did or were involved in the
relevant act constituting the offence commit a sponsorship-related offence. The maximum
penalty that could be imposed on a member is equivalent to the maximum penalty that
could be imposed on an individual.
140. New subsection 245AY(3) provides that a civil penalty provision in new Subdivision
D that would otherwise be contravened by an unincorporated association is taken to have
been contravened by each member of the association‟s committee of management, at the
time of the conduct constituting the contravention, who:
engaged in the conduct; or
aided, abetted, counselled or procured the conduct; or
was in any way knowingly concerned in, or party to, the conduct (whether directly or
indirectly or whether by any act of the member).
141. New subsection 245AY(3) relates to civil penalty provisions. It provides that where a
civil penalty provision in new Subdivision D would have been contravened by an
unincorporated association because of new subsection 245AY(1), each member of the
association‟s committee of management at the time of the contravention is taken to have
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contravened the civil penalty provision if they did the relevant act, or aided, abetted,
counselled or procured the relevant act, or was in any way knowingly concerned in, or
party to, the relevant act.
142. The effect of new subsection 245AY(3) is that it is only the members of the
unincorporated association‟s committee of management who did or were involved in the
relevant act or omission constituting the contravention who are liable to pay a pecuniary
penalty ordered for contravention of a sponsorship-related provision. The maximum
penalty that could be imposed on a member is equivalent to the maximum penalty that
could be imposed on an individual.
Item 7 Subsection 486ZF(1)
143. This item inserts the words "or 245AU(2)" after the words "subsection 245AK(2)" in
section 486ZF in Division 3 of Part 8D of the Act.
144. The effect of section 486ZF is that, subject to specific exceptions, it is not necessary
to prove a person‟s state of mind in proceedings for a civil penalty order against the
person for alleged contravention of a civil penalty provision.
145. The effect of this amendment is that section 486ZF does not apply in relation to
proceedings against a person for contravention of the civil penalty provision in new
subsection 245AU(2). New section 245AU deals with civil liability of executive officers
of bodies corporate for a sponsorship-related contravention under new Subdivision D of
Division 12 of Part 2 of the Act.
146. This amendment is necessary because new paragraph 245AU(1)(b) provides that one
of the circumstances required for a contravention of subsection 245AU(1) is that the
person knew that, or was reckless or negligent as to whether, the contravention of a
sponsorship-related provision would occur. It is necessary to prove the person‟s state of
mind in proceedings for a civil penalty order relating to a contravention of new subsection
245AU(2). Therefore, subsection 245AU(2) is an exception to the general provisions in
section 486ZF.
Item 8 Part 8E (heading)
147. This item repeals the heading of Part 8E of the Act, and substitutes the heading: "Part
8E - Investigation powers relating to certain offences and provisions".
148. Change of the heading of Part 8E is necessary because the effect of amendments made
by items 9 to 17 inserted by this Schedule, is that the investigation powers in Part 8E will
extend to investigation of sponsorship-related offences and contraventions of
sponsorship-related civil penalty provisions under new Subdivision D of Division 12 of
Part 2 of the Act (see item 6 of this Schedule), as well as investigation of work-related
offences and contravention of civil penalty provisions under Subdivision C (Offences and
civil penalties in relation to work by non-citizens) of Division 12 of Part 2 of the Act.
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Item 9 Section 487A (paragraph (a) of the definition of evidential material)
149. This item inserts the words "sponsorship-related offence or a" before the words
"work-related offence" in paragraph (a) of the definition of "evidential material" in
section 487A in Division 1 of Part 8E of the Act.
150. The effect of this amendment is to extend the meaning of the term "evidential
material" in Part 8E of the Act to material relevant to a sponsorship-related offence, as
well as work-related offences. A definition of "sponsorship-related offence" is inserted in
section 487A by item 12 inserted by this Schedule.
151. The term "evidential material" is used in Division 3 of Part 8E of the Act. If an
authorised officer reasonably suspects that there may be "evidential material" on the
premises, the authorised officer may enter the premises and exercise the search powers set
out in Part 8E, provided he or she has the consent of the occupier, or the entry is made
under search warrant, and shows his or her identity card.
Item 10 Section 487A (paragraph (b) of the definition of evidential material)
152. This item inserts the words "sponsorship-related provision or a" before the words
"work-related provision" in paragraph (b) of the definition of "evidential material" in
section 487A in Division 1 of Part 8E of the Act.
153. The effect of this amendment is to extend the meaning of the term "evidential
material" in Part 8E of the Act to material relevant to a sponsorship-related provision, as
well as work-related provisions. A definition of "sponsorship-related offence" is inserted
in section 487A by item 12 inserted by this Schedule.
154. The term "evidential material" is used in Division 3 of Part 8E of the Act. If an
authorised officer reasonably suspects that there may be "evidential material" on the
premises, the authorised officer may enter the premises and exercise the search powers set
out in Part 8E, provided he or she has the consent of the occupier, or the entry is made
under search warrant, and shows his or her identity card.
Item 11 Section 487A (definition of related provision)
155. This item repeals the definition of "related provision" in section 487A in Division 1 of
Part 8E of the Act, and substitutes a new definition.
156. The effect of this amendment is to extend the meaning of "related provision" in Part
8E of the Act to include a sponsorship-related offence and a sponsorship-related
provision, in addition to a work-related offence and a work-related provision.
157. Definitions of "sponsorship-related offence" and "sponsorship-related provision" are
inserted in section 487A by item 12 inserted by this Schedule.
Item 12 Section 487A
158. This item inserts two new definitions in section 487A of Division 1 of Part 8E of the
Act, to define the meanings of the terms "sponsorship-related offence" and "sponsorship-
related provision" for the purposes of Part 8E of the Act.
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159. "Sponsorship-related offence" means:
an offence against new Subdivision D in Division 12 of Part 2 of the Act; or
an offence against section 6 of the Crimes Act that relates to an offence against new
Subdivision D; or
an ancillary offence (within the meaning of the Criminal Code) that is, or relates to an
offence against new Subdivision D.
160. "Sponsorship-related provision" means a civil penalty provision in new Subdivision D
of Division 12 of Part 2 of the Act.
Item 13 Paragraphs 487B(1)(a) and (b)
161. This item repeals paragraphs 487B(1)(a) and (b) in Division 2 of Part 8E of the Act,
and substitutes new paragraphs 487B(1)(a), (b), (c) and (d), to include references to a
possible sponsorship-related offence and a possible contravention of a sponsorship-
related provision in addition to the existing references to a possible work-related offence
and a possible contravention of a work-related provision.
162. The effect of this amendment is that under section 487B, the Secretary of the
Department of Immigration and Border Protection or the Australian Border Force
Commissioner may require a person to give information or to produce a document if there
is reason to believe that the person has information that is relevant to a possible
sponsorship-related offence or a possible contravention of a sponsorship-related
provision.
Item 14 Paragraph 487C(2)(d)
163. This item amends paragraph 487C(2)(d) in Division 2 of Part 8E of the Act by
inserting "or D" after the words "Subdivision C".
164. The effect of this amendment is that information or a document required to be given
by a person under section 487B may be used in criminal proceedings against the person in
relation to a sponsorship-related offence under new Subdivision D of Division 12 of Part
2 of the Act, but is not admissible evidence against the person in any other criminal
proceedings.
165. The purpose of the investigation powers in Part 8E of the Act is to enable evidence to
be collected in relation to suspected sponsorship-related offences and breaches of
sponsorship-related civil penalty provisions. In many instances, evidence of asking for,
receiving or offering payment in return for the occurrence of a sponsorship-related event
will only be held by the people concerned. The powers in Part 8E are therefore necessary
to facilitate the collection of evidence, subject to the provisions of Part 8E, to enable the
effective enforcement of the sponsorship-related sanctions.
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Item 15 Paragraph 487C(2)(e)
166. This item amends paragraph 487C(2)(e) in Division 2 of Part 8E of the Act by
inserting the words "sponsorship-related provision or a" before the words "work-related
provision".
167. The effect of this amendment is that information or a document required to be given
by a person under section 487B may be used in civil proceedings against the person in
relation to an alleged contravention of a sponsorship-related provision under new
Subdivision D of Division 12 of Part 2 of the Act, but is not admissible evidence against
the person in any other civil proceedings.
Item 16 Subparagraphs 487Z(3)(a)(i) and (ii)
168. This item repeals subparagraphs 487Z(3)(a)(i) and (ii) in Division 3 of Part 8E of the
Act, and substitutes new subparagraphs 487Z(3)(a)(i), (ii), (iii) and (iv). The new
subparagraphs include references to sponsorship-related offences and sponsorship-related
provisions, in addition to the references to work-related offences and work-related
provisions, with the effect that paragraph 487ZC(3)(a) refers to whether:
a sponsorship-related offence has been committed; or
a sponsorship-related provision has been contravened; or
a work-related offence has been committed; or
a work-related provision has been contravened.
169. Section 487Z deals with power to retain evidence that has been seized by an
authorised officer under Division 3 of Part 8E of the Act. Subsection 487Z(3) empowers
an issuing officer to order that evidence seized may continue to be retained if the issuing
officer is satisfied that retention is necessary for the purposes of investigating a matter
specified in paragraph 487ZC(3)(a), that is, whether a sponsorship-related offence has
been committed, whether a sponsorship-related provision has been contravened, whether
a work-related offence has been committed, or whether a work-related provision has been
contravened.
170. "Issuing officer" is defined in section 487A to mean a magistrate, a Judge of the
Federal Circuit Court, or a Judge of the Federal Court.
Item 17 Paragraph 487ZC(4)(a)
171. This item repeals paragraph 487ZC(4)(a) in Division 3 of Part 8E of the Act, and
substitutes a new paragraph 487ZC(4)(a).
172. Section 487ZC provides that an issuing officer may issue a search warrant, under
certain circumstances, if the issuing officer is satisfied that there are reasonable grounds
for suspecting that there is, or may be within the next 72 hours, evidential material on the
premises. New paragraph 487ZC(4)(a) provides that the search warrant must state:
the sponsorship-related offences or offences; or
the sponsorship-related provision or provisions; or
the work-related offence or offences; or
the work-related provision or provisions;
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to which the search warrant relates.
173. The effect of this amendment is to add references to sponsorship-related offences and
sponsorship-related provisions in paragraph 487ZC(4)(a), in addition to the references to
work-related offences and work-related provisions. This amendment is consequential to
the amendments made by items 9 and 10 inserted by this Schedule, which extend the
definition of "evidential material" in section 487A in Division 1 of Part 8E of the Act to
include material relevant to sponsorship-related offences and sponsorship-related
provisions.
Item 18 Application - subsections 116(1AC) and (1AD) of the Migration Act 1958
174. This item provides that new subsections 116(1AC) and (1AD) of the Act, inserted by
item 1 of this Schedule, apply in relation to a visa granted before or after commencement
if the benefit referred to in subsection 116(1AC) was asked for, received, offered or
provided after commencement.
175. New subsections 116(1AC) and (1AD) inserted by item 1 provide for a new
discretionary power for the Minister to consider cancellation of a visa where a benefit was
asked for, received by, offered or provided by a person, or on behalf of the person, in
return for the occurrence of a sponsorship-related event. The new cancellation ground
applies whether or not the visa holder held the current visa or any previous visa at the
time the benefit was asked for, received, offered or provided; whether or not the
sponsorship-related event relates to the current visa or any previous visa that the visa
holder held; and whether or not the sponsorship-related event occurred.
176. The new visa cancellation ground applies to visas that may have been granted before
commencement of the provision. However, the „payment for visas‟ conduct must have
occurred after commencement of the provision.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Charging for a Migration Outcome) Bill 2015
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Department of Immigration and Border Protection regularly receives allegations about
persons offering or receiving a benefit in return for a sponsorship-related event, to be referred
to as „payment for visas‟ activity. This behaviour undermines Australia‟s migration
programme integrity, however is not currently unlawful. The need for legislative change to
address „payment for visas‟ activity was identified in the Independent Review into Integrity
in the Subclass 457 Programme in recommendation 10.7 that „it be made unlawful for a
sponsor to be paid by visa applicants for a migration outcome, and that this be reinforced by
a robust penalty and conviction framework‟. The Bill implements this recommendation and
expands the application beyond the 457 visa programme to other temporary and permanent
work visas.
The key measures in the Bill include:
- the introduction of a criminal and civil offence for a person to ask for or receive a
benefit in relation to a sponsorship-related event;
- the introduction of a civil penalty framework where a benefit was offered or provided
by or on behalf of the visa holder in return for a sponsorship-related event; and
- the introduction of criminal and civil liability for executive officers of a body
corporate;
- the introduction of a new discretionary visa cancellation ground to allow cancellation
of a temporary or permanent visa where a visa holder has asked for, received, offered
or provided a benefit in return for the occurrence of a sponsorship-related event; and
- the cancellation of a sponsored visa may occur regardless of whether or not the visa
holder held the current visa or any previous visa at the time the benefit was asked for,
received, offered or provided and whether or not the sponsorship-related event relates
to the current visa or any previous visa that the visa holder held and whether or not
the sponsorship-related event occurred.
Human rights implications
The proposed Bill has been assessed against the seven core international human rights treaties
and it positively engages the right to work as per Articles 6 and 7 of the International
Covenant on Economic, Social and Cultural Rights (ICESCR), and Article 8 of the
International Covenant on Civil and Political Rights (ICCPR).
Articles 6.1 and 6.2 of the ICESCR provide that:
"1. The States Parties to the present Covenant recognize the right to work, which
includes the right of everyone to the opportunity to gain his living by work which he
freely chooses or accepts, and will take appropriate steps to safeguard this right.
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2. The steps to be taken by a State Party to the present Covenant to achieve the full
realization of this right shall include technical and vocational guidance and training
programmes, policies and techniques to achieve steady economic, social and cultural
development and full and productive employment under conditions safeguarding
fundamental political and economic freedoms to the individual."
Australia owes a „right to work‟ under Article 6.1 to Australians and certain visa holders who
have been granted permission to work, and correspondingly the obligations under Article 6.2
are engaged. Ensuring that temporary sponsored work visas and permanent employer
nomination or skilled visas, being visas to which this Bill is intended to apply, are used in
a justified and reasonable way in line with their policy intent is an effective mechanism to
comply with this obligation.
Article 7 of the ICESCR provides that:
"The States Parties to the present Covenant recognize the right of everyone to the
enjoyment of just and favourable conditions of work which ensure, in particular:
(a) Remuneration which provides all workers, as a minimum, with:
(i) Fair wages and equal remuneration for work of equal value without
distinction of any kind, in particular women being guaranteed conditions of
work not inferior to those enjoyed by men, with equal pay for equal work;
(ii) A decent living for themselves and their families in accordance with the
provisions of the present Covenant ... "
Furthermore, Article 8 of the ICCPR provides that:
"1. No one shall be held in slavery; slavery and the slave-trade in all their forms shall be
prohibited.
2. No one shall be held in servitude.
3.(a) No one shall be required to perform forced or compulsory labour; ... "
Two independent reports undertaken for the Government have highlighted the activities of
some employers who seek to take advantage of the fact that a person is an unlawful
non-citizen or a lawful non-citizen who holds a visa which is subject to a condition restricting
or prohibiting their work rights in Australia to exploit the worker under the threat of bringing
the individual to the attention of the Department (resulting in cancellation of their visa for
breach of a work-related visa condition, detention and removal from Australia).1
The introduction of penalties for asking for or receiving a benefit for a sponsorship-related
event positively engages these Articles because the Bill reduces the risk that a person will
accept payment to sponsor or nominate a person for a visa. Persons who have paid for
sponsorship or nomination may be more vulnerable to exploitation and extortion such as
unfavourable/unsafe/unhealthy working conditions, unfair pay, slavery/servitude/forced
labour due to the risk of having their visa cancelled if their employment ceases.
1
See Howells 2010 Review of the Migration Amendment (Employer Sanctions) Act 2007 and Knight Review of
the Student Visa Program. Available at www.border.gov.au.
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To the extent that the proposed amendments seek to provide a disincentive for employers to
exploit and keep non-citizens in conditions of slavery and forced labour, they are consistent
with Article 7 of the ICESCR and Articles 8(1), 8(2) and 8(3)(a) of the ICCPR.
The proposed Bill also engages Article 14 of the ICCPR. Proposed subsection 245AR(5) sets
out a civil penalty where a person contravenes subsection 245AR(1) (which is contravened
by a person who asks for, or receives, a benefit from another person in return for the
occurrence of a sponsorship-related event). Similarly proposed subsection 245AS(1) sets out
a civil penalty where a person the person offers to provide or provides a benefit to another
person for the occurrence of a sponsorship-related event. Whilst these may be regarded as
civil penalties under Australian domestic law, they may also be considered „criminal‟ for the
purposes of assessing the human rights implications of this Bill.
This is because these penalties seek to deter behaviours, the penalties applied can be
considered serious and the penalty applies to the public in general rather than being restricted
to people in a specific regulatory or disciplinary context.
Article 14 of the ICCPR provides that:
1. All persons shall be equal before the courts and tribunals. In the determination of
any criminal charge against him, or of his rights and obligations in a suit at law,
everyone shall be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law. The press and the public may be excluded
from all or part of a trial for reasons of morals, public order (ordre public) or
national security in a democratic society, or when the interest of the private lives of
the parties so requires, or to the extent strictly necessary in the opinion of the court in
special circumstances where publicity would prejudice the interests of justice; but any
judgement rendered in a criminal case or in a suit at law shall be made public except
where the interest of juvenile persons otherwise requires or the proceedings concern
matrimonial disputes or the guardianship of children.
2. Everyone charged with a criminal offence shall have the right to be presumed
innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone shall be entitled
to the following minimum guarantees, in full equality: (a) To be informed promptly
and in detail in a language which he understands of the nature and cause of the
charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to
communicate with counsel of his own choosing;
(c) To be tried without undue delay;
(d) To be tried in his presence, and to defend himself in person or through legal
assistance of his own choosing; to be informed, if he does not have legal assistance,
of this right; and to have legal assistance assigned to him, in any case where the
interests of justice so require, and without payment by him in any such case if he does
not have sufficient means to pay for it;
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(e) To examine, or have examined, the witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same conditions as
witnesses against him;
(f) To have the free assistance of an interpreter if he cannot understand or speak the
language used in court;
(g) Not to be compelled to testify against himself or to confess guilt.
4. In the case of juvenile persons, the procedure shall be such as will take account of
their age and the desirability of promoting their rehabilitation.
5. Everyone convicted of a crime shall have the right to his conviction and sentence
being reviewed by a higher tribunal according to law.
6. When a person has by a final decision been convicted of a criminal offence and
when subsequently his conviction has been reversed or he has been pardoned on the
ground that a new or newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment as a result of such
conviction shall be compensated according to law, unless it is proved that the non-
disclosure of the unknown fact in time is wholly or partly attributable to him.
7. No one shall be liable to be tried or punished again for an offence for which he has
already been finally convicted or acquitted in accordance with the law and penal
procedure of each country."
Strict Liability
The Proposed Bill engages the protection under Article 14(2) of the ICCPR which provides
that everyone charged with a criminal offence shall have the right to be presumed innocent
until proven guilty according to law. The proposed sections 245AR(5) and 245AS(1), create
civil penalties in the proposed Bill which will be strict liability penalties due to the operation
of section 486ZF of the Migration Act, that is it will not be necessary to prove for these
penalties:
(a) the person‟s intention; or
(b) the person‟s knowledge; or
(c) the person‟s recklessness; or
(d) the person‟s negligence; or
(e) any other state of mind of the person.
The imposition of these strict liability penalties does limit the presumption of innocence,
however these penalties are reasonable, necessary and proportionate to the legitimate
objective of preventing and deterring the practice of "payment for visas" which has a number
of detrimental outcomes including undermining the integrity and distorting the function and
operation of Australia‟s migration programme, and the exploitation vulnerable people. It is
necessary to introduce these penalties as there is currently no clear or direct avenue for
addressing "payment for visas" through the legal system and these provisions create in the
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direct legal consequences for engaging in this behaviour. Given the serious, detrimental
effects that can occur from the practice of "payment for visas", including:
making vulnerable non-citizens liable to exploitation;
reducing employment opportunities in Australia for permanent residents;
negative repercussions for Australian wages and conditions;
the potential for persons who receive payment in return for sponsorship to inappropriately
make significant financial gains; and
adversely affecting the integrity of Australia‟s migration programme,
a strong response is required to ensure that this practice does not continue. Additionally, the
Department‟s investigations into this practice often reveal elaborate fraud which would more
appropriately merit criminal prosecution. As such to the extent that the proposed Bill creates
strict liability penalties, these can be considered consistent with the protection set out in
Article 14(2) of the ICCPR.
Placing the evidentiary burden on the defendant
Article 14(2) is further engaged because proposed subsection 245AR(6) and subsection
245AS(4) place the evidentiary burden on the defendant in relation to proving that „the
benefit‟ is a payment of a reasonable amount for a professional service. The placement of the
evidentiary burden on defendants is justifiable in that these proposed subsections act as a
defence to the contravention of subsection 245AR(1) and 245AS(1) in the civil penalty
context and as such it is appropriate for the defendant to prove the defence is available to
them, just as they must in a criminal proceeding and is the standard default position under
s13.3(3) of the Criminal Code. Further, information proving this matter would be uniquely
within the knowledge of the defendant.
In most cases, professional services would not constitute conduct of the kind described in
subsection 245AR(1) because the benefit would not be received "in return for the occurrence
of a sponsorship-related event". This defence has been included as a safety net to cover
unusual circumstances that might arise in the course of work legitimately undertaken by
migration agents or recruitment agents that might inadvertently constitute conduct of the kind
described in subsection 245AR(1).
As such, in as far as these provisions place the evidentiary burden on the defendant they are a
necessary, reasonable and proportionate limitation on the protection in Article 14(2) of the
ICCPR.
Civil Standard of proof
Finally, Article 14(2) of the ICCPR is engaged because the civil penalty provisions may be
considered „criminal‟ in nature and yet still apply the lower civil standard of proof, that is,
requiring proof on the balance of probabilities which may allow for reasonable doubt.
The civil penalties sought to be introduced by this proposed Bill may be considered as
serious. This is in order to appropriately address the severity of the consequences for the
practice of „payment for visas‟. A strong civil penalty is required to ensure that persons who
provide or offer to provide a benefit in relation to the occurrence of a sponsorship related
event face a penalty that is proportionate to the behaviour which undermines the integrity of
Australia‟s migration programme. It is appropriate that people who have knowingly engaged
in the practice of "payment for visas" face significant penalties in the line with the level of
benefit that has changed hands in order to secure a migration outcome.
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Whilst a strong response to the practice of „payment for visas‟ is clear, it should also be noted
that criminal sanctions alone are not necessarily as effective as by implementing enforceable
graduated responses which can include employer education and awareness and can escalate to
administrative warnings and to courts through the non-fault based civil penalties scheme and
the criminal penalties available to address the most serious cases (as discussed in Howells
2010 Review of the Migration Amendment (Employer Sanctions) Act 2007). In this
proposed Bill the use of civil and criminal penalties allows for offences and civil penalties
allows an enforceable graduated response to the practice of "payment for visas" allowing
flexibility to discern whether a civil penalty which does not attract the same consequences as
a criminal penalty (i.e. a conviction) is more appropriate in a case than using the criminal
offence. For example a first-time offender may only merit a civil penalty; however, person
who has repeatedly engaged in this behaviour may more appropriately attract the
consequences of a criminal offence. Further, civil penalties can have a remedial impact on
some types of behaviour. As such, whilst a strong response is needed to deter the practice of
"payment for visas" there needs to be a penalty that carries lesser consequences than a
criminal offence and requiring a lesser standard of proof consistent with a graduated
response. It should also be noted that due to proposed sections 245AR(6) and subsection
245AS(4), the defendant will also have the benefit of a lower standard of proof in terms of
the defence that the benefit was a payment of a reasonable amount for a professional service.
As such, in as far as these provisions place a lower standard of proof on penalties that may be
considered „criminal‟ in nature for the purposes of assessing the human rights implications of
the Bill, they are a necessary, reasonable and proportionate limitation on the protection in
Article 14(2) of the ICCPR.
The right not to be compelled to testify against oneself or to confess guilt
The proposed Bill engages the protection from self-incrimination. Article 14(3)(g) of the
ICCPR provides that in relation to a criminal charge, a person is not to be compelled to testify
against himself or to confess guilt. In Australia, the privilege against self-incrimination has
long been recognised by the common law and applies unless expressly abrogated by statute.
As part of that privilege, an accused may choose not to give evidence at trial, and no adverse
inference is to be taken from the accused‟s refusal.
The proposed Bill seeks to amend section 487C(2)(d) in Division 2 of Part 8E of the Act by
inserting "or D" after the words "Subdivision C". The effect of this amendment is that
information or a document required to be given by a person under section 487B may be used
in criminal proceedings against the person in relation to a sponsorship-related offence under
new Subdivision D of Division 12 of Part 2 of the Act, but is not admissible evidence against
the person in any other criminal proceedings.
Similarly, the proposed Bill also seeks to amend paragraph 487C(2)(e) in Division 2 of Part
8E of the Act by inserting the words "sponsorship-related provision or a" before the words
"work-related provision". The effect of this amendment is that information or a document
required to be given by a person under section 487B may be used in civil proceedings against
the person in relation to an alleged contravention of a sponsorship-related provision under
new Subdivision D of Division 12 of Part 2 of the Act, but is not admissible evidence against
the person in any other civil proceedings.
The purpose of the investigations powers in the proposed Bill is to enable the Department to
identify and gather evidence in relation to „payment for visas‟ conduct. The only persons
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who possess critical information and documents relevant to "payment for visas" conduct are
the individual who offers/provides a benefit, or who receives/requests a benefit, or a third
party (where involved). Allowing information obtained from such persons, to be admissible
in evidence in "payment for visas" civil penalty proceedings will enable the Department to
effectively enforce this sanction.
This approach is a departure from standard practice in relation to handling of
self-incrimination, however is similar to provisions already in place for work-related civil
penalty proceedings. The privilege against self-incrimination is only being removed in
relation to proceedings for the criminal and civil penalties for an alleged contravention of a
„payment for visas‟ matter and the protection will still remain in relation to all other civil
penalty and criminal proceedings. To the extent that the relevant provisions in the proposed
Bill do not permit documents or information collected under sections 487C to be used in
other civil penalty and criminal proceedings (ie those that do not involve a sponsorship-
related offence or sponsorship-related provision), this is consistent with Australia‟s
obligations under Article 14(3)(g) of the ICCPR.
The Bill is consistent with Articles 6 and 7 of the ICESCR, and Article 8 and 14 of the
ICCPR.
Conclusion
This Bill is compatible with human rights because it protects the rights of non-citizen
workers.
Senator the Hon. Michaelia Cash, Assistant Minister for Immigration and Border
Protection