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6 June 2013 Employers need to be aware of changes to the Migration Act 1958 (Cth)

By Laura Sowden, Solicitor

 


In Brief

In March of this year the Migration Amendment (Reform of Employer Sanctions) Act 2013 (Cth) (the Amendment) was passed. This Amendment has introduced several important changes to the Migration Act 1958 (Cth) (the Act). These include offences and civil contraventions for employers in addition to increased powers for the Department of Immigration and Citizenship.
 


Contraventions and Offences

Unlawful Non Citizens
Individuals who are not Australian citizens and do not hold a visa are not allowed to work in Australia.  The Amendment made several important changes to the provisions surrounding employer responsibility and liability for employing such unlawful non citizens. Employers bear responsibility if they allow unlawful non citizens to work for them. Section 245AB of the Act states

(1)  A person (the first person) contravenes this subsection if:
     (a)  the first person allows, or continues to allow, another person (the worker) to work; and
     (b)  the worker is an unlawful non-citizen

(2)  Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen, including (but not limited to) either of the following steps:
     (a)  using a computer system prescribed by the regulations to verify that matter;
     (b)  doing any one or more things prescribed by the regulations.                     
 
Lawful Non Citizens
Individuals who are not Australian citizens but hold a visa may be either:
 

  • not permitted to work, or
  • permitted to work a restricted number of hours or
  • permitted to work only for a sponsoring employer.

The Amendment also changed employer responsibility for employing such lawful non citizens and then allowing them to work in breach of whatever work restrictions are contained in their visa.

Section 245AC of the Act relates to employing lawful non citizens in contravention of the working conditions in their visas.
(1)  A person (the first person) contravenes this subsection if:
      (a)  the first person allows, or continues to allow, another person (the worker) to work; and
      (b)  the worker is a lawful non-citizen; and
      (c)  the worker holds a visa that is subject to a work-related condition; and
      (d)  the worker is in breach of the work-related condition solely because of doing the work referred to in paragraph (a). 

(2)  Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not in breach of the work-related condition solely because of doing the work referred to in paragraph (1)(a), including (but not limited to) either of the following steps:
     (a)  using a computer system prescribed by the regulations to verify that matter;
     (b)  doing any one or more things prescribed by the regulations.
 
Contravening the above provisions can result in a criminal offence if there is knowledge and or recklessness on the part of the employer with a penalty of 2 years imprisonment. There is also a civil penalty of 90 penalty units which currently equals $9,900. There are also aggravated offences if the employer knows someone is working illegally and continues to employ them.

As can be seen from the above this is a serious matter for employers and they need to be careful regarding prospective and current employees who are not Australian citizens. Employers can however, take "reasonable steps" to reduce their risk and help protect themselves.

The regulations do not currently outline any reasonable steps or an appropriate computer system. However, one reasonable step employers can use in accordance with subsections (2) above is authenticating employees work conditions prior to commencing employment is a necessary step to help avoid breaching the Act. In some cases monthly checking system may need to be implemented as individual's visas, particularly student visas, can be cancelled at short notice. Employers should make use of the Department of Immigration and Citizenships Visa Entitlement Verification Online (VEVO) service
 

Executive Officers and Recruiters Also Responsible

An important feature of the Amendment is that executive officers of a body corporate can be liable for the above civil contraventions or criminal offences.  Pursuant to ss 245AJ and 245AK of the Act executive officers includes Directors, CEO's, CFOs and Company Secretary's. The officer will be liable if the employer contravenes a provision of the Act and:
 

  • The officer knew that, or was reckless or negligent as to whether, the work related contravention or offence would occur; and
  • The officer was in a position to influence the conduct of the body in relation to this work-related contravention or offence; and
  • The officer failed to take all reasonable steps to prevent the contravention of offence.

In the above context reasonable steps refers to what action the officer took to ensure the employer, its agents, contractors and its employees had a reasonable knowledge and understanding of the requirements of the Act and what action they took when they became aware that the employer was engaging in the contravention or offence. This means an executive officer who conducts no visa checks regarding non citizen employees may have breached the act through being reckless as to whether an offence or contravention would occur.

Recruiters must also be careful in light of the Amendment. Section 245AEA of the Act now provides that a person who refers a unlawful non citizen or a lawful non citizen with working conditions for work which they cannot legally undertake without taking "reasonable steps", such as using an online system to check visa status, may have committed a criminal offence or a civil contravention.  If a recruiter or an executive officer has committed an offence or a contravention penalties of either; 2 years imprisonment or 90 penalty units, $9,900.  There are also aggravated offences if the executive officer or recruiter knows someone is working illegally and continues to employ them.
 

Increased Power for the Department of Immigration and Citizenship

The Amendments also enhance the investigatory and coercive powers of the Department of Immigration and Citizenships and its officers. Search warrants and the ability to enter premises following consent have increased officer's ability to investigate.  The Secretary of the Department and thus the Departments officers may require persons including employers to produce documents.

Section 487C of the Act also provides that persons are NOT excused from giving information to the Department if it might incriminate them or expose them to a penalty. However this information cannot then be used in criminal or civil proceedings against that same person.

In light of the new offences and civil contraventions the Department also has the power to prosecute employers, executive officers and recruiters for offences and contraventions.
 

What to do

Employers, executive Officers and recruiters also need to turn their minds to the current procedures in their organisations around hiring employees and undertaking visa checks. This means improving current processes or implementing new processes surrounding employees citizenship status and visa status checks prior to and if necessary during employment.  In light of the Departments increased powers and the penalties that could be imposed it is certainly better to be safe than sorry.  

 


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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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