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

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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.

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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.