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A Bill for an Act to amend the Migration Act 1958 and the Taxation Administration Act 1953, and for related purposes
Administered by: Immigration and Citizenship
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 28 Jun 2007
Introduced HR 21 Jun 2007

2004‑2005‑2006‑2007

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Migration Amendment (Sponsorship Obligations) Bill 2007

 

No.      , 2007

 

(Immigration and Citizenship)

 

 

 

A Bill for an Act to amend the Migration Act 1958 and the Taxation Administration Act 1953, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Schedule(s).......................................................................................... 2

Schedule 1—Migration Act 1958                                                                                   3

Part 1—Amendments                                                                                                      3

Part 2—Transitional matters                                                                                        32

Schedule 2—Taxation Administration Act 1953                                                  34

Part 1—Amendment                                                                                                      34

Part 2—Application                                                                                                        36

 


A Bill for an Act to amend the Migration Act 1958 and the Taxation Administration Act 1953, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Migration Amendment (Sponsorship Obligations) Act 2007.

2  Commencement

             (1)  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.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day on which this Act receives the Royal Assent.

 

2.  Schedules 1 and 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Schedule(s)

                   Each Act 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.


 

Schedule 1Migration Act 1958

Part 1Amendments

1  Subsection 5(1)

Insert:

civil remedy provision has the meaning given by section 486R.

2  Subsection 5(1)

Insert:

penalty unit has the meaning given by section 4AA of the Crimes Act 1914.

3  Subdivision A of Division 3A of Part 2 (heading)

Repeal the heading, substitute:

Subdivision AApplication of Division and definitions

4  At the end of Subdivision A of Division 3A of Part 2

Add:

140AA  Meaning of obligation and undertaking

                   In this Division:

obligation means, subject to section 140XA, an obligation imposed by Subdivision BB or by regulations made under that Subdivision.

undertaking means an undertaking required by Subdivision BA or by regulations made under that Subdivision.

5  After section 140G

Insert:

Subdivision BASponsorship undertakings may be required for approval as a sponsor

6  Subsection 140H(3)

Repeal the subsection, substitute:

             (3)  The undertakings do not have effect until the applicant is an approved sponsor of the person for the visa.

Note:          For approved sponsor, see section 140D.

7  After section 140I

Insert:

Subdivision BBSponsorship obligations of certain approved sponsors

140IA  Subdivision applies only in relation to prescribed visas

                   This Subdivision applies to an approved sponsor of a person for a visa if the visa is of a prescribed kind (however described).

Note:          For approved sponsor, see section 140D.

140IB  Meaning of primary person and secondary person in relation to an approved sponsor

                   In this Subdivision:

primary person, in relation to an approved sponsor of a person for a visa, means the person whom the approved sponsor consented to sponsor for that visa who is to work or works in the nominated activity in respect of which the visa is granted.

secondary person, in relation to an approved sponsor of a person for a visa, means a person whom the approved sponsor consented to sponsor for that visa who is granted the visa on the basis of his or her relationship to the primary person.

140IC  Obligation to pay at least minimum salary level etc.

             (1)  An approved sponsor of a primary person for a visa must pay a salary to the person:

                     (a)  that is at or above the level that is worked out in a way specified from time to time by the Minister in a legislative instrument for the purposes of this subsection; and

                     (b)  from whichever of the following applies:

                              (i)  if the person is not in Australia when the visa is granted, the day on which the person starts working for the approved sponsor, or the day that is 28 days after the day on which the person enters Australia, whichever is earlier;

                             (ii)  if the person is in Australia when the visa is granted, the day on which the person starts working for the approved sponsor, or the day that is 28 days after the day on which the visa is granted, whichever is earlier; and

                     (c)  in the manner specified in the legislative instrument.

Civil penalty:

                     (a)  for an individual—60 penalty units;

                     (b)  for a body corporate—300 penalty units.

             (2)  A legislative instrument made for the purposes of subsection (1) may specify different ways of working out the level of salary in respect of:

                     (a)  different occupations or classes or subclasses of occupations; and

                     (b)  persons working in particular geographical areas; and

                     (c)  any other circumstance or matter the Minister considers appropriate;

and may include mechanisms for the level to be varied on one or more specified days or at the end of one or more specified periods.

             (3)  For the purposes of subsection (1), an approved sponsor of a primary person for a visa is taken to have satisfied the obligation in subsection (1) to the extent that another person (other than the primary person or secondary person), by arrangement with the approved sponsor, pays some or all of the person’s salary.

Example:    An approved sponsor may obtain insurance that, in certain circumstances, would require another person to pay some or all of the person’s salary. The approved sponsor has satisfied the obligation in subsection (1) if the other person pays the primary person’s salary and the approved sponsor pays the amount of any shortfall.

             (4)  However, subsection (3) only applies if the approved sponsor has paid the costs (if any) of the arrangement with the other person.

140ID  Obligation to employ primary person in the same or a higher‑skilled activity

                   An approved sponsor of a primary person for a visa must not employ the person in an activity other than an activity that requires skills at a level that is the same as, or at least equivalent to, the skills required for the nominated activity in respect of which the visa was granted to the person.

Civil penalty:

                     (a)  for an individual—60 penalty units;

                     (b)  for a body corporate—300 penalty units.

140IE  Obligation to pay travel costs of leaving Australia

             (1)  Subject to subsection (3), an approved sponsor of a primary person for a visa must, when the primary person leaves Australia (other than temporarily), pay for his or her travel, including any travel within Australia, for the purpose of returning to the place from which he or she initially travelled to Australia.

Civil penalty:

                     (a)  for an individual—60 penalty units;

                     (b)  for a body corporate—300 penalty units.

             (2)  Subject to subsection (3), an approved sponsor of a secondary person for a visa must, when the secondary person leaves Australia (other than temporarily), pay for his or her travel, including any travel within Australia, for the purpose of returning to the place from which he or she initially travelled to Australia.

Civil penalty:

                     (a)  for an individual—60 penalty units;

                     (b)  for a body corporate—300 penalty units.

             (3)  If there has been more than one approved sponsor of the primary person or secondary person, subsections (1) and (2) only apply to the last approved sponsor of the primary person or secondary person (as the case may be) before he or she leaves Australia.

             (4)  For the purposes of subsections (1) and (2), an approved sponsor of a primary person or secondary person for a visa is taken to have satisfied the obligation in subsection (1) or (2) (as the case may be) to the extent that:

                     (a)  another person (whether or not the primary person or secondary person) pays some or all of the costs of the travel concerned; and

                     (b)  the approved sponsor fully reimburses that other person for the costs paid within 14 days after being given a receipt.

140IF  Obligation to pay certain medical costs

             (1)  An approved sponsor of a primary person for a visa must pay the prescribed medical costs of the primary person.

Civil penalty:

                     (a)  for an individual—60 penalty units;

                     (b)  for a body corporate—300 penalty units.

             (2)  An approved sponsor of a secondary person for a visa must pay the prescribed medical costs of the secondary person.

Civil penalty:

                     (a)  for an individual—60 penalty units;

                     (b)  for a body corporate—300 penalty units.

             (3)  Regulations prescribing medical costs may specify:

                     (a)  particular medical costs or classes of medical costs; and

                     (b)  a limit in respect of the medical costs of a person; and

                     (c)  a limit in respect of particular medical costs or classes of medical costs.

             (4)  For the purposes of subsections (1) and (2), an approved sponsor of a primary person or secondary person for a visa is taken to have satisfied the obligation in subsection (1) or (2) (as the case may be) to the extent that:

                     (a)  another person (whether or not the primary person or secondary person) pays some or all of the costs concerned; and

                     (b)  the approved sponsor fully reimburses that other person for the costs paid within 14 days after being given a receipt.

             (5)  For the purposes of subsections (1) and (2), an approved sponsor of a primary person or secondary person for a visa is taken to have satisfied the obligation in subsection (1) or (2) (as the case may be) to the extent that another person (other than the primary person or secondary person), by arrangement with the approved sponsor, pays some or all of the costs concerned.

Example:    An approved sponsor may obtain insurance that, in certain circumstances, would require another person to pay some or all of the primary person’s medical costs. The approved sponsor has satisfied the obligation in subsection (1) if the other person pays the prescribed medical costs of the primary person and the approved sponsor pays the amount of any shortfall.

             (6)  However, subsection (5) only applies if the approved sponsor has paid the costs (if any) of the arrangement with the other person.

140IG  Obligation to pay certain other fees and costs

             (1)  An approved sponsor of a primary person for a visa must pay:

                     (a)  the fees (including licence, registration, membership or other fees) (if any) that must be paid under a law of the Commonwealth or of a State or Territory for the primary person to work in the nominated activity in respect of which the visa is granted; and

                     (b)  the costs (if any) associated with recruiting the primary person for the nominated activity in respect of which the visa is granted; and

                     (c)  the fees of a migration agent (if any) involved with the visa application.

Civil penalty:

                     (a)  for an individual—60 penalty units;

                     (b)  for a body corporate—300 penalty units.

             (2)  An approved sponsor of a secondary person for a visa must pay the fees of a migration agent (if any) involved with the visa application.

Civil penalty:

                     (a)  for an individual—60 penalty units;

                     (b)  for a body corporate—300 penalty units.

             (3)  For the purposes of subsections (1) and (2), an approved sponsor of a primary person or secondary person for a visa is taken to have satisfied the obligation in subsection (1) or (2) (as the case may be) to the extent that:

                     (a)  another person (whether or not the primary person or secondary person) pays some or all of the fees or costs concerned; and

                     (b)  the approved sponsor fully reimburses that person for the fees or costs paid within 14 days after being given a receipt.

140IH  Obligation to keep records

                   An approved sponsor of a person for a visa must keep:

                     (a)  prescribed records of all payments made by the approved sponsor as required by this Subdivision or by the regulations made under this Subdivision; and

                     (b)  such other records as are prescribed by the regulations.

Civil penalty:

                     (a)  for an individual—60 penalty units;

                     (b)  for a body corporate—300 penalty units.

Note:          The approved sponsor may be required to produce records to an inspector (see section 140ZJ).

140IJ  Obligation to pay costs of locating, detaining and removing etc. sponsored person

             (1)  An approved sponsor of a person for a visa must pay to the Commonwealth an amount equal to the costs of the Commonwealth in relation to:

                     (a)  locating and detaining the person; and

                     (b)  removing or deporting the person from Australia (including airfares); and

                     (c)  processing an application for a protection visa made by the person.

             (2)  For the purposes of subsection (1), costs:

                     (a)  in the case of the costs of locating a person or processing an application for a protection visa, means the costs worked out in accordance with a method prescribed by reference to a determination made in writing by the Minister; and

                     (b)  in the case of the costs of detaining, removing or deporting a person, has the same meaning as in Division 10.

However, the regulations may prescribe a limit for each of the costs mentioned in paragraphs (a) and (b) for the purposes of this section.

             (3)  To the extent that an approved sponsor of a person for a visa is liable under this section to pay costs that one or more other persons are liable to pay under Division 10, the approved sponsor and the other person or persons are jointly and severally liable to pay those costs.

             (4)  This section has effect despite anything to the contrary in Division 10.

140IK  Obligation to provide information

             (1)  The Secretary may, by written notice, require an approved sponsor of a person for a visa to provide such information as the notice specifies.

             (2)  The Secretary may only require information that is to be used by the Secretary or Minister for the purpose of the administration of this Act or of the regulations.

             (3)  A notice under subsection (1) must state that the information must be provided within the specified period (of not less than 7 days).

             (4)  A notice under subsection (1) must be given to the approved sponsor by one of the methods specified in section 494B. For the purposes of this subsection, a reference in section 494B or 494C to the Minister is instead taken to be a reference to the Secretary.

             (5)  An approved sponsor to whom a notice under subsection (1) is given must comply with the notice.

Civil penalty:

                     (a)  for an individual—60 penalty units;

                     (b)  for a body corporate—300 penalty units.

             (6)  Despite subsection (5), an approved sponsor is not required to comply with a notice that is withdrawn (in writing) by the Secretary.

140IL  Other obligations may be prescribed

             (1)  The regulations may require an approved sponsor of a person for a visa to comply with one or more additional obligations prescribed by the regulations.

             (2)  The regulations may prescribe a civil penalty for breaching a prescribed obligation not exceeding:

                     (a)  for an individual—50 penalty units; and

                     (b)  for a body corporate—250 penalty units.

Subdivision BCCancelling approval as a sponsor or barring a sponsor

8  Paragraph 140J(2)(a)

Omit “(cancelling or barring approval as a sponsor)”, substitute “(cancelling approval as a sponsor or barring a sponsor)”.

Note:       The heading to section 140J is replaced by the heading “Cancelling approval as a sponsor or barring a sponsor if undertakings breached”.

9  Subsection 140J(3)

Omit “(cancelling or barring approval as a sponsor)”, substitute “(cancelling approval as a sponsor or barring a sponsor)”.

10  Before subsection 140K(1)

Insert:

          (1A)  If the Minister reasonably believes that:

                     (a)  an approved sponsor of a person for a visa has breached an obligation; or

                     (b)  a person who is no longer an approved sponsor of a person for a visa but remains bound by an obligation has breached the obligation;

the Minister may take one or more of the actions set out in section 140L (cancelling approval as a sponsor or barring a sponsor).

          (1B)  If the Minister reasonably believes that:

                     (a)  an approved sponsor, or former approved sponsor, of a person for a visa has breached a law of the Commonwealth or of a State or Territory; and

                     (b)  because of that breach, it is appropriate to take one or more of the actions set out in paragraphs 140L(c) to (g) in relation to the approved sponsor or former approved sponsor;

the Minister may take the action or actions.

Note:          Paragraphs 140L(c) to (g) deal with barring a sponsor.

Note:       The heading to section 140K is replaced by the heading “Cancelling approval as a sponsor or barring a sponsor in other circumstances”.

11  Paragraph 140K(1)(a)

Omit “(cancelling or barring approval as a sponsor)”, substitute “(cancelling approval as a sponsor or barring a sponsor)”.

12  Subsection 140K(2)

Omit “(cancelling or barring approval as a sponsor)”, substitute “(cancelling approval as a sponsor or barring a sponsor)”.

Note:       The heading to section 140N is replaced by the heading “Process for cancelling approval as a sponsor or barring a sponsor”.

13  After section 140P

Insert:

Subdivision BDConsequences of change of status

14  Subsection 140Q(1)

After “undertaking”, insert “or obligation”.

15  At the end of section 140Q

Add:

             (3)  To avoid doubt, a change described in paragraph (1)(a) or (b) does not affect any liability incurred in respect of an obligation (including a breach of an obligation) imposed by Subdivision BB or regulations made under that Subdivision.

16  After section 140Q

Insert:

Subdivision BELiability, enforcement and recovery

140QA  Definitions

                   In this Subdivision:

eligible court means:

                     (a)  the Federal Court; or

                     (b)  the Federal Magistrates Court; or

                     (c)  a District, County or Local Court; or

                     (d)  a magistrates court; or

                     (e)  any other State or Territory court that is prescribed by the regulations.

Subdivision BB civil penalty provision means:

                     (a)  a provision in Subdivision BB that specifies a civil penalty:

                              (i)  in the case of a provision that is a section without subsections, at the foot of the section; or

                             (ii)  in the case of a provision that is a subsection, at the foot of the subsection; or

                     (b)  a provision in the regulations made under section 140IL (Other obligations may be prescribed) that prescribes an obligation the breach of which attracts a civil penalty prescribed in accordance with subsection 140IL(2).

17  Subsections 140R(1) to (3)

After “undertaking” (wherever occurring), insert “or obligation”.

18  Subsection 140R(3)

Omit “a court of competent jurisdiction”, substitute “an eligible court”.

19  Subsections 140S(2) and (3)

After “undertaking” (wherever occurring), insert “or obligation”.

20  Subsection 140S(3)

Omit “a court of competent jurisdiction”, substitute “an eligible court”.

21  At the end of section 140S

Add:

             (4)  Without limiting any other provision of this Act, amounts payable to the Commonwealth or to a State or Territory under the undertaking or obligation may be recovered by the Commonwealth, State or Territory (as the case may be) in an eligible court.

22  After section 140S

Insert:

140SA  Who may apply for civil penalties under Subdivision BB

                   The Minister may apply to an eligible court for an order under section 140SB in relation to a breach of a Subdivision BB civil penalty provision by a person.

140SB  Imposition and recovery of civil penalties under Subdivision BB

             (1)  An eligible court may make an order imposing a pecuniary penalty on a person if the person breaches a Subdivision BB civil penalty provision when he or she is bound by that provision.

Note:          A person who is involved in a breach of a Subdivision BB civil penalty provision is treated as having breached that provision (see subsection (9)).

             (2)  The maximum penalty that may be imposed under subsection (1) for a breach of a Subdivision BB civil penalty provision is the civil penalty specified in respect of that provision.

             (3)  Subject to subsections (4) and (5), if:

                     (a)  2 or more breaches of a Subdivision BB civil penalty provision are committed by the same person; and

                     (b)  the breaches arose out of a course of conduct by the person;

the breaches are, for the purposes of this section, to be taken to constitute a single breach of the provision.

             (4)  For the purposes of subsection (3), 2 or more breaches of a Subdivision BB civil penalty provision that relates to an obligation in respect of another person arise out of a course of conduct only if each of the breaches relates to an obligation in respect of the same person.

Example:    An approved sponsor of 2 persons for a visa fails to pay each of those persons a salary in accordance with section 140IC. Because the breaches are in respect of 2 persons, they are not to be taken to constitute a single breach of the provision; the approved sponsor has breached that provision in respect of each of the persons.

             (5)  Subsection (3) does not apply to a breach of a Subdivision BB civil penalty provision that is committed by a person after an eligible court has imposed a penalty on the person for an earlier breach of the provision.

             (6)  If, in a proceeding against a person under this section, it appears to the eligible court that an amount that was required to be paid under a Subdivision BB civil penalty provision has not been paid to:

                     (a)  the Commonwealth, or a State or Territory; or

                     (b)  another person;

the court may order the first‑mentioned person to pay the amount of the underpayment to the Commonwealth, State, Territory or other person (as the case may be).

Note:          Sections 140R and 140S allow for recovery in an eligible court of amounts owed in accordance with an undertaking or obligation.

             (7)  An order must not be made under subsection (6) in relation to so much of an underpayment as relates to any period more than 6 years before the commencement of the proceeding.

             (8)  A proceeding under this section in relation to a breach of a Subdivision BB civil penalty provision must be commenced not later than 6 years after the commission of the breach.

             (9)  A person who, in relation to a breach of a Subdivision BB civil penalty provision, has:

                     (a)  aided, abetted, counselled or procured the breach; or

                     (b)  induced the breach, whether by threats or promises or otherwise; or

                     (c)  conspired with others to effect the breach;

is treated as having breached the Subdivision BB civil penalty provision and, for the purposes of subsection (1), is taken to have done so when he or she was bound by that provision.

Note:          Part 8D contains general provisions relating to civil remedies.

140SC  Interest up to judgment

             (1)  In exercising its powers under subsection 140SB(6) or in a proceeding under section 140R or 140S, an eligible court must, upon application, unless good cause is shown to the contrary, either:

                     (a)  order that there be included in the sum for which an order is made or judgment given, interest at such rate as the eligible court thinks fit on the whole or any part of the money for the whole or any part of the period between the date when the cause of action arose and the date on which the order is made or judgment entered; or

                     (b)  without proceeding to calculate interest in accordance with paragraph (a), order that there be included in the sum for which an order is made or judgment given, a lump sum instead of any such interest.

             (2)  Subsection (1) does not:

                     (a)  authorise the giving of interest upon interest or of a sum instead of such interest; or

                     (b)  apply in relation to any debt upon which interest is payable as of right whether by virtue of an agreement or otherwise; or

                     (c)  authorise the giving of interest, or a sum instead of interest, otherwise than by consent, upon any sum for which judgment is given by consent.

140SD  Interest on judgment

                   A debt under a judgment or order of an eligible court made under subsection 140SB(6), or section 140R or 140S, carries interest from the date on which the judgment is entered or order made at such rate as would apply under section 52 of the Federal Court of Australia Act 1976 if the debt were a judgment debt to which that section applies.

140SE  Certain plaintiffs may choose small claims procedure in magistrates courts

             (1)  If:

                     (a)  a person starts an action under section 140R or 140S in a magistrates court; and

                     (b)  the person indicates, in a manner prescribed by the regulations or by rules of court relating to that court, that he or she wants a small claims procedure to apply;

subsections (2) to (4) apply in relation to the action.

             (2)  The procedure is governed by the following conditions:

                     (a)  the court may not award an amount exceeding $5,000 or such higher amount as is prescribed;

                     (b)  the court may act in an informal manner, is not bound by any rules of evidence, and may act without regard to legal forms and technicalities;

                     (c)  at any stage of the action, the court may amend the papers initiating the action if sufficient notice is given to any party adversely affected by the amendment;

                     (d)  a person is not entitled to be represented by counsel or a solicitor unless the court permits;

                     (e)  if the court permits a party to be represented by counsel or a solicitor, the court may, if it thinks fit, do so subject to conditions designed to ensure that no other party is unfairly disadvantaged.

             (3)  In a case heard in a court of a Territory, the regulations may prohibit or restrict legal representation of the parties despite paragraphs (2)(d) and (e).

             (4)  In a case heard in a court of a State, if in a particular proceeding in that court (whatever the nature of the proceeding) the law of the State prohibits or restricts legal representation of the parties, the regulations may prohibit or restrict legal representation of the parties to the same extent as that law despite paragraphs (2)(d) and (e).

140SF  Unclaimed money

             (1)  If:

                     (a)  a person (the intended recipient) has not been paid an amount that was required to be paid to him or her in accordance with an undertaking or obligation; and

                     (b)  the person who is required to pay the amount is unable to do so because the person does not know the intended recipient’s location;

the person may pay the amount to the Commonwealth.

             (2)  The Commonwealth holds the amount in trust for the intended recipient.

             (3)  Payment of the amount to the Commonwealth is a sufficient discharge to the person, as against the intended recipient, for the amount paid.

23  Subsection 140T(1)

After “undertaken”, insert “or is obliged”.

24  After section 140U

Insert:

Subdivision BFOther matters

25  After subsection 140V(1)

Insert:

          (1A)  The Minister may disclose to a visa holder or former visa holder personal information of a prescribed kind about an approved sponsor or former approved sponsor of the visa holder or former visa holder.

          (1B)  The Minister may disclose to a prescribed agency of the Commonwealth or of a State or Territory personal information of a prescribed kind about:

                     (a)  a holder or former holder of a visa of a kind (however described) that is prescribed for the purposes of section 140IA; or

                     (b)  an approved sponsor or former approved sponsor of a person for such a visa.

26  Subsection 140V(3)

Repeal the subsection, substitute:

             (3)  The regulations may prescribe circumstances in which the recipient of the personal information disclosed under subsection (1), (1A) or (1B) may use or disclose that personal information.

27  Subsection 140V(4)

Repeal the subsection, substitute:

             (4)  If the Minister discloses personal information about a visa holder or former visa holder, or an approved sponsor or former approved sponsor, under subsection (1) or (1A), the Minister must notify (in writing) the person about whom the information is disclosed of the disclosure and of the details of the information disclosed.

28  Section 140X

Repeal the section, substitute:

140X  Application to partnerships

                   This Division, and regulations made under it, apply to a partnership as if it were a person, but with the changes set out in sections 140Y to 140ZBA.

29  After section 140X

Insert:

140XA  Sponsorship obligation means all obligations of sponsorship

                   In this Subdivision, sponsorship obligation means an obligation in relation to sponsorship or as a result of sponsorship and includes an obligation:

                     (a)  that arises under an undertaking required by Subdivision BA or by regulations made under that Subdivision; or

                     (b)  imposed by Subdivision BB or by regulations made under that Subdivision.

140XB  Other definitions

                   In this Subdivision:

committee of management of an unincorporated association means a body (however described) that governs, manages or conducts the affairs of the association.

sponsorship right means a right in relation to sponsorship or as a result of sponsorship.

30  Subsection 140Y(1)

Repeal the subsection, substitute:

             (1)  Subject to section 140ZA, a sponsorship obligation that would otherwise be imposed on a partnership is instead imposed on each person who is a partner:

                     (a)  at the time the partnership becomes an approved sponsor of a person for a visa; or

                     (b)  in the case of an obligation imposed on the partnership because Subdivision BB applies to the partnership as an approved sponsor of a person for a visa, at the time that Subdivision begins to apply to the partnership as an approved sponsor of a person for a visa.

31  Subsection 140Y(2)

Repeal the subsection, substitute:

             (2)  Subject to section 140ZA, a sponsorship right that would otherwise be exercisable by a partnership is instead a right exercisable by each person who is a partner:

                     (a)  at the time the partnership becomes an approved sponsor of a person for a visa; or

                     (b)  in the case of a right arising because Subdivision BB applies to the partnership as an approved sponsor of a person for a visa, at the time that Subdivision begins to apply to the partnership as an approved sponsor of a person for a visa.

32  Paragraphs 140Y(3)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  each person who is a partner at the time the partnership becomes an approved sponsor of a person for a visa; or

                     (b)  in the case of a liability arising because Subdivision BB applies to the partnership as an approved sponsor of a person for a visa, each person who is a partner at the time that Subdivision begins to apply to the partnership as an approved sponsor of a person for a visa.

33  Subsection 140Z(1)

Omit “is approved as a sponsor,”, substitute “becomes an approved sponsor of a person for a visa or after Subdivision BB begins to apply to the partnership as an approved sponsor of a person for a visa,”.

34  Subsection 140ZA(1)

Omit “is approved as a sponsor,”, substitute “becomes an approved sponsor of a person for a visa or after Subdivision BB begins to apply to the partnership as an approved sponsor of a person for a visa,”.

35  After section 140ZB

Insert:

140ZBA  Liability of partners for offences and civil penalties

             (1)  An offence against a provision in this Division that would otherwise be committed by a partnership is taken to have been committed by each partner who:

                     (a)  did the relevant act or made the relevant omission; or

                     (b)  aided, abetted, counselled or procured the relevant act or omission.

             (2)  Despite anything to the contrary in this Division, a pecuniary penalty must not be imposed on a partner who is bound by a Subdivision BB civil penalty provision (as defined in section 140QA), in respect of a breach of that provision, unless the partner:

                     (a)  did the relevant act or made the relevant omission; or

                     (b)  aided, abetted, counselled or procured the relevant act or omission.

             (3)  For the purposes of subsections (1) and (2), to establish that a partnership engaged in a particular conduct, it is sufficient to show that the conduct was engaged in by a partner:

                     (a)  in the ordinary course of the business of the partnership; or

                     (b)  within the scope of the actual or apparent authority of the partner.

             (4)  For the purposes only of subsection (1), to establish that a partnership had a particular state of mind when it engaged in a particular conduct, it is sufficient to show that the partner had the relevant state of mind.

36  Section 140ZC

Repeal the section, substitute:

140ZC  Application to unincorporated associations

                   This Division, and regulations made under it, apply to an unincorporated association as if it were a person, but with the changes set out in sections 140ZD to 140ZGA.

37  Subsection 140ZD(1)

Repeal the subsection, substitute:

             (1)  Subject to section 140ZF, a sponsorship obligation that would otherwise be imposed on an unincorporated association is instead imposed on each person who is a member of the association’s committee of management:

                     (a)  at the time the association becomes an approved sponsor of a person for a visa; or

                     (b)  in the case of an obligation imposed on the association because Subdivision BB applies to the association as an approved sponsor of a person for a visa, at the time that Subdivision begins to apply to the association as an approved sponsor of a person for a visa.

38  Subsection 140ZD(2)

Repeal the subsection, substitute:

             (2)  Subject to section 140ZF, a sponsorship right that would otherwise be exercisable by an unincorporated association is instead a right exercisable by each person who is a member of the association’s committee of management:

                     (a)  at the time the association becomes an approved sponsor of a person for a visa; or

                     (b)  in the case of a right arising because Subdivision BB applies to the association as an approved sponsor of a person for a visa, at the time that Subdivision begins to apply to the association as an approved sponsor of a person for a visa.

39  Paragraphs 140ZD(3)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  each person who is a member of the association’s committee of management at the time the association becomes an approved sponsor of a person for a visa; or

                     (b)  in the case of a liability arising because Subdivision BB applies to the association as an approved sponsor of a person for a visa, each person who is a member of the association’s committee of management at the time that Subdivision begins to apply to the association as an approved sponsor of a person for a visa.

40  Subsection 140ZE(1)

Omit “is approved as a sponsor,”, substitute “becomes an approved sponsor of a person for a visa or after Subdivision BB begins to apply to the association as an approved sponsor of a person for a visa,”.

41  Subsection 140ZF(1)

Omit “is approved as a sponsor,”, substitute “becomes an approved sponsor of a person for a visa or after Subdivision BB begins to apply to the association as an approved sponsor of a person for a visa,”.

42  After section 140ZG

Insert:

140ZGA  Liability of members of committees of management for offences and civil penalties

             (1)  An offence against a provision in this Division that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the committee of management who:

                     (a)  did the relevant act or made the relevant omission; or

                     (b)  aided, abetted, counselled or procured the relevant act or omission.

             (2)  Despite anything to the contrary in this Division, a pecuniary penalty must not be imposed on a member of the committee of management of an unincorporated association who is bound by a Subdivision BB civil penalty provision (as defined in section 140QA), in respect of a breach of that provision, unless the member:

                     (a)  did the relevant act or made the relevant omission; or

                     (b)  aided, abetted, counselled or procured the relevant act or omission.

             (3)  For the purposes of subsection (1), to establish that an unincorporated association had a particular state of mind when it engaged in particular conduct, it is sufficient to show that a member of the committee of management had the relevant state of mind.

43  Section 140ZH

Repeal the section.

44  At the end of Division 3A of Part 2

Add:

Subdivision DInspectors

140ZH  Inspectors

             (1)  The Minister may, by written instrument, appoint such inspectors as the Minister considers are necessary from time to time.

             (2)  The Minister may appoint as an inspector:

                     (a)  a person who has been appointed, or who is employed, by the Commonwealth; or

                     (b)  a person other than a person mentioned in paragraph (a).

             (3)  A person appointed under paragraph (2)(a) is appointed for the period specified in regulations made for the purposes of this subsection.

             (4)  A person appointed under paragraph (2)(b) is appointed for the period specified in the person’s instrument of appointment, which must not be longer than the period specified in regulations made for the purposes of this subsection.

             (5)  Subject to subsection (6), an inspector has the powers and functions conferred on an inspector by this Act or by the regulations.

             (6)  A person appointed under paragraph (2)(b) has only such of the powers and functions mentioned in subsection (5) as are specified in his or her instrument of appointment.

             (7)  The Minister may give directions (in writing) specifying the manner in which, and any conditions and qualifications subject to which, powers or functions conferred on inspectors are to be exercised or performed.

             (8)  An inspector must comply with those directions.

140ZI  Identity cards

             (1)  The Minister may issue to an inspector an identity card in a prescribed form.

             (2)  An inspector must carry the identity card at all times when exercising powers or performing functions as an inspector.

             (3)  A person commits an offence if:

                     (a)  the person ceases to be an inspector; and

                     (b)  the person does not return his or her identity card to the Secretary within 14 days after ceasing to be an inspector.

Penalty:  1 penalty unit.

             (4)  Strict liability applies to subsection (3).

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

140ZJ  Powers of inspectors

Purpose for which powers of inspectors can be exercised

             (1)  The powers of an inspector under this section may be exercised:

                     (a)  for the purpose of determining whether the obligations imposed by Subdivision BB or by regulations made under that Subdivision are being, or have been, complied with; or

                     (b)  for the purposes of a provision of the regulations that confers powers or functions on inspectors.

Powers of inspectors

             (2)  The powers of an inspector are:

                     (a)  to, without force, enter a place of business or other place in which the inspector has reasonable cause to believe that there is information, documents or any other thing relevant to the purposes set out in subsection (1); and

                     (b)  in such a place:

                              (i)  to inspect any work, material, machinery, appliance, article or facility; and

                             (ii)  to interview any person; and

                            (iii)  to require a person having the custody of, or access to, a document relevant to that purpose to produce the document to the inspector within a specified period; and

                            (iv)  to inspect a document produced to him or her and make copies of, or take extracts from, the document; and

                             (v)  to require a person to tell the inspector who has custody of a document; and

                     (c)  to require a person, by written notice, to produce a document to the inspector at a specified place within a specified period (of not less than 7 days).

Note 1:       Contravening a requirement under subparagraph (b)(iii) or paragraph (c) may be an offence under section 140ZK.

Note 2:       Subsection (7) deals with the methods by which the notice must be given to the person.

When may the powers be exercised?

             (3)  An inspector may exercise the powers in subsection (2) at any time during ordinary working hours or at any other time at which it is necessary to do so for the purposes set out in subsection (1).

             (4)  If a person who is required under subparagraph (2)(b)(iii) to produce a document contravenes the requirement, an inspector may, by written notice given to the person, require the person to produce the document at a specified place within a specified period (of not less than 7 days).

Note 1:       Contravening a requirement under this subsection to produce a document may be an offence under section 140ZK.

Note 2:       Subsection (7) deals with the methods by which the notice must be given to the person.

             (5)  If a document is produced to an inspector under paragraph (2)(c) or subsection (4), the inspector may:

                     (a)  inspect the document and make copies of, or take extracts from, the document; and

                     (b)  retain the document for such period as is necessary for the purpose of exercising powers or performing functions as an inspector.

             (6)  During the period for which an inspector retains a document, the inspector must permit the person otherwise entitled to possession of the document, or a person authorised by the person, to inspect, make copies of or take extracts from the document at all reasonable times.

Giving notices under paragraph (2)(c) and subsection (4)

             (7)  A notice referred to in paragraph (2)(c) or subsection (4) must be given to the person by one of the methods specified in section 494B. For the purposes of this subsection:

                     (a)  a reference in section 494B or 494C to the Minister is instead taken to be a reference to the inspector; and

                     (b)  despite subsections 494B(2), (3) and (6), an inspector must not act by way of an authorised officer.

Information and documents that incriminate a person

             (8)  A person is not excused from giving information or producing a document under this section on the ground that the information or the production of the document may tend to incriminate the person.

             (9)  However, if an individual gives information or produces a document under this section:

                     (a)  the giving of the information or production of the document; or

                     (b)  any information, document or thing obtained as a direct or indirect consequence of the giving of the information or the production of the document;

is not admissible in evidence against the individual in any criminal proceedings other than proceedings for an offence against section 140ZK.

           (10)  If an inspector proposing to enter, or having entered, premises is required by the occupier to produce evidence of authority, the inspector is not entitled to enter or remain on the premises without producing to the occupier the inspector’s identity card.

140ZK  Non‑compliance with requirement of inspector

                   A person commits an offence if the person contravenes a requirement made by an inspector under subparagraph 140ZJ(2)(b)(iii), paragraph 140ZJ(2)(c) or subsection 140ZJ(4).

Penalty:  Imprisonment for 6 months.

140ZL  Disclosure of information by inspectors

             (1)  An inspector may disclose information acquired by the inspector in the course of exercising powers, or performing functions, as an inspector, if the inspector considers on reasonable grounds that it is necessary or appropriate to do so in the course of exercising his or her powers, or performing his or her functions, as an inspector.

             (2)  An inspector may disclose information to an officer of the Department administered by the Minister who administers the Workplace Relations Act 1996 if the inspector considers on reasonable grounds that the disclosure of the information is likely to assist the officer in the administration of that Act.

             (3)  The regulations may authorise inspectors to disclose information of the prescribed kind, for prescribed purposes, to:

                     (a)  officers of the Commonwealth of the prescribed kind; or

                     (b)  officers of a State or Territory of the prescribed kind.

45  After Part 8C

Insert:

Part 8DGeneral provisions relating to civil remedies

  

486R  Operation of this Part

             (1)  This Part sets out rules that apply for the purposes of these provisions:

                     (a)  section 140SB; and

                     (b)  any other provision of this Act or of the regulations that is declared (whether by that provision or by another provision of this Act or of the regulations) to be a civil remedy provision (whether or not for the purposes of a particular segment of this Act or of the regulations); and

                     (c)  any other provision of this Act or of the regulations that provides a remedy for a contravention of a provision referred to in paragraph (b).

             (2)  Those provisions are called the civil remedy provisions.

486S  Involvement in contravention treated in same way as actual contravention

             (1)  A person who is involved in a contravention of a civil remedy provision is treated as having contravened that provision.

             (2)  For this purpose, a person is involved in a contravention of a civil remedy provision if, and only if, the person:

                     (a)  has aided, abetted, counselled or procured the contravention; or

                     (b)  has induced the contravention, whether by threats or promises or otherwise; or

                     (c)  has conspired with others to effect the contravention.

486T  Civil evidence and procedure rules for civil remedy orders

                   A court hearing a proceeding under a civil remedy provision must apply the rules of evidence and procedure for civil matters.

486U  Recovery of pecuniary penalties

                   A pecuniary penalty payable under an order made under a civil remedy provision is a debt payable to the Commonwealth. The Commonwealth may enforce the order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgment debt.

486V  Civil proceedings after criminal proceedings

                   A court must not make an order under a civil remedy provision requiring a person to pay a pecuniary penalty if the person has been convicted of an offence constituted by conduct that is substantially the same as the conduct in relation to which the order would be made.

486W  Criminal proceedings during civil proceedings

             (1)  Proceedings for an order under a civil remedy provision requiring a person to pay a pecuniary penalty are stayed if:

                     (a)  criminal proceedings are started or have already been started against the person for an offence; and

                     (b)  the offence is constituted by conduct that is substantially the same as the conduct in relation to which the order would be made.

             (2)  The proceedings for the order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings for the order are dismissed.

486X  Criminal proceedings after civil proceedings

                   Criminal proceedings may be started against a person for conduct that is substantially the same as conduct in relation to which an order under a civil remedy provision requiring the person to pay a pecuniary penalty could be made regardless of whether such an order has been made against the person.

486Y  Evidence given in proceedings for pecuniary penalty not admissible in criminal proceedings

                   Evidence of information given or evidence of production of documents by an individual is not admissible in criminal proceedings against the individual if:

                     (a)  the individual previously gave the evidence or produced the documents in proceedings for an order under a civil remedy provision requiring the individual to pay a pecuniary penalty (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct in relation to which the order was sought.

However, this does not apply to criminal proceedings in respect of the falsity of the evidence given by the individual in the proceedings under the civil remedy provision.

486Z  Civil double jeopardy

                   If a person is ordered to pay a pecuniary penalty under a civil remedy provision in respect of particular conduct, the person is not liable to be ordered to pay a pecuniary penalty under some other provision of a law of the Commonwealth law in respect of that conduct.

46  After paragraph 504(1)(ja)

Insert:

                     (jb)  enabling a person who is alleged to have contravened a provision in, or regulation made under, Subdivision BB of Division 3A of Part 2 to pay to the Commonwealth a prescribed penalty, as an alternative to a proceeding under section 140SB, not exceeding one‑fifth of the maximum penalty that would apply to the person for a contravention of the provision or regulation; and


 

Part 2Transitional matters

47  Application of amendment to persons who are already approved sponsors

To avoid doubt, the reference in section 140IA of the Migration Act 1958 (as inserted by item 7 of this Schedule) to an approved sponsor of a person for a visa includes a reference to an approved sponsor of a person for a visa when that section commences.

48  Effect of amendments on undertakings made before commencement

(1)        If:

                     (a)  before item 7 of this Schedule commences, an approved sponsor of a person for a visa makes undertakings as required by or under section 140H or 140I of the Migration Act 1958; and

                     (b)  after making those undertakings, Subdivision BB of Division 3A of Part 2 of that Act (as inserted by item 7 of this Schedule) applies to the approved sponsor in respect of that visa;

the undertakings cease to be enforceable against the approved sponsor from the time when that Subdivision applies to the approved sponsor in respect of that visa.

(2)        Subsection (1) has effect despite section 140Q of the Migration Act 1958.

(3)        To avoid doubt, subsection (1) does not affect:

                     (a)  any penalty incurred or other remedy available in respect of an act or omission before Subdivision BB of Division 3A of Part 2 of the Migration Act 1958 applies to the approved sponsor; or

                     (b)  any investigation, proceeding or other action in respect of such penalty or other remedy that may be instituted, continued, enforced, imposed or taken after that Subdivision applies to the approved sponsor.

49  Effect of certain amendments on current proceedings

(1)        The amendments to the Migration Act 1958 made by items 18, 20 and 21 of this Schedule do not apply in relation to, or otherwise affect, any proceedings started before those amendments commence.

(2)        Sections 140SC to 140SE of the Migration Act 1958 (as inserted by item 22 of this Schedule) apply only in relation to proceedings started on or after the commencement of those sections.

50  Effect of certain amendments on existing obligations, liabilities and rights

The amendments to the Migration Act 1958 made by item 6, items 30 to 34 and items 36 to 41 do not affect any obligation that was imposed, or liability or right that arose, before those amendments commence.


 

Schedule 2Taxation Administration Act 1953

Part 1Amendment

1  After section 3EC

Insert:

3ED  Provision of tax information relevant to sponsorship under the Migration Act 1958

             (1)  Despite any taxation secrecy provision, the Commissioner may disclose tax information to an officer of the Department administered by the Minister who administers the Migration Act 1958 if the Commissioner is satisfied that the information:

                     (a)  relates to a holder or former holder of a visa, or an approved sponsor or former approved sponsor of a person for a visa, whose identity is disclosed to the Commissioner under section 140V of the Migration Act 1958; and

                     (b)  is relevant to the exercise of the Minister’s powers under, or the administration of, Division 3A of Part 2 of the Migration Act 1958 or the regulations made under that Division.

Note:          Division 3A of Part 2 of the Migration Act 1958 deals with sponsorship.

             (2)  A person to whom information is disclosed under subsection (1) or (3) must not disclose the information to another person or make a record of the information.

Penalty:  Imprisonment for 2 years.

             (3)  However, subsection (2) does not apply to the extent that the information was disclosed, or the record of the information was made, for or in connection with:

                     (a)  the exercise of the Minister’s powers under, or the administration of, Division 3A of Part 2 of the Migration Act 1958 or the regulations made under that Division; or

                     (b)  a review under the Migration Act 1958, or judicial review, of a decision concerning the exercise of those powers; or

                     (c)  proceedings under Subdivision BE of Division 3A of Part 2 of the Migration Act 1958; or

                     (d)  a penalty to be paid by a person, as an alternative to proceedings under section 140SB of the Migration Act 1958, in accordance with regulations made under paragraph 504(1)(jb) of that Act; or

                     (e)  any proceedings arising from the proceedings mentioned in paragraph (c) or penalty mentioned in paragraph (d).

             (4)  This section is in addition to, and not in derogation of, any other provision of this Act or of any other law relating to the communication of information.

             (5)  In this section:

taxation secrecy provision has the meaning given by section 3E.

tax information has the same meaning as in section 3EA.


 

Part 2Application

2  Application of amendment of the Taxation Administration Act 1953

The amendment made by item 1 of this Schedule applies to tax information acquired by the Commissioner whether before, on or after the commencement of that amendment.