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Act No. 159 of 2008 as made
An Act to amend the law relating to migration, and for other purposes
Administered by: Immigration and Border Protection
Originating Bill: Migration Legislation Amendment (Worker Protection) Bill 2008
Registered 19 Dec 2008
Date of Assent 18 Dec 2008
Table of contents.

 

 

 

 

 

 

Migration Legislation Amendment (Worker Protection) Act 2008

 

No. 159, 2008

 

 

 

 

 

An Act to amend the law relating to migration, and for other purposes

  

  


Contents

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

2............ Commencement.................................................................................. 2

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

Schedule 1—Migration Act 1958                                                                                   3

Part 1—Amendments                                                                                                      3

Part 2—Transitional matters                                                                                        34

Schedule 2—Taxation Administration Act 1953                                                  38

Part 1—Amendment                                                                                                      38

Part 2—Application                                                                                                        41

 


 

 

Migration Legislation Amendment (Worker Protection) Act 2008

No. 159, 2008

 

 

 

An Act to amend the law relating to migration, and for other purposes

[Assented to 18 December 2008]

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Migration Legislation Amendment (Worker Protection) Act 2008.

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.

18 December 2008

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 9 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.

14 September 2009

(see F2009L02375)

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) (definition of approved sponsor)

Repeal the definition, substitute:

approved sponsor means:

                     (a)  a person:

                              (i)  who has been approved by the Minister under section 140E in relation to a class prescribed by the regulations for the purpose of subsection 140E(2); and

                             (ii)  whose approval has not been cancelled under section 140M, or otherwise ceased to have effect under section 140G, in relation to that class; or

                     (b)  a person (other than a Minister) who is a party to a work agreement.

Note:          A partnership or an unincorporated association may be an approved sponsor: see subsections 140ZB(1) and 140ZE(1) respectively.

2  Subsection 5(1)

Insert:

civil penalty provision means a subsection, or a section that is not divided into subsections, that has set out at its foot the words “civil penalty” and one or more amounts in penalty units.

3  Subsection 5(1)

Insert:

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

4  Subsection 5(1)

Insert:

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.

5  Subsection 5(1)

Insert:

lawyer means:

                     (a)  a barrister; or

                     (b)  a solicitor; or

                     (c)  a barrister and solicitor; or

                     (d)  a legal practitioner;

of the High Court or of the Supreme Court of a State or Territory.

6  Subsection 5(1)

Insert:

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

7  Subsection 5(1)

Insert:

personal information has the same meaning as in the Privacy Act 1988.

8  Subsection 5(1)

Insert:

work agreement means an agreement that satisfies the requirements prescribed by the regulations for the purposes of this definition.

9  Subdivision GA of Division 3 of Part 2

Repeal the Subdivision.

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

Repeal the heading, substitute:

Subdivision APreliminary

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

Repeal the heading.

12  Sections 140B to 140D

Repeal the sections, substitute:

Subdivision BApproving sponsors and nominations

13  Subsection 140E(1)

After “sponsor”, insert “in relation to one or more classes prescribed for the purpose of subsection (2)”.

Note:       The heading to section 140E is replaced by the heading “Minister to approve sponsor”.

14  At the end of subsection 140E(1)

Add:

Note:          A person (other than a Minister) who is a party to a work agreement is an approved sponsor and does not need to be approved as a sponsor under this section: see paragraph (b) of the definition of approved sponsor.

15  Subsection 140E(2)

Repeal the subsection, substitute:

             (2)  The regulations must prescribe classes in relation to which a person may be approved as a sponsor.

             (3)  Different criteria may be prescribed for:

                     (a)  different kinds of visa (however described); and

                     (b)  different classes in relation to which a person may be approved as a sponsor; and

                     (c)  different classes of person within a class in relation to which a person may be approved as a sponsor.

16  Subsection 140F(2)

Repeal the subsection, substitute:

             (2)  Different processes may be prescribed for:

                     (a)  different kinds of visa (however described); and

                     (b)  different classes in relation to which a person may be approved as a sponsor.

17  Subsection 140G(3)

Repeal the subsection, substitute:

             (3)  An actual term may be prescribed by the regulations.

             (4)  Different kinds of terms may be prescribed for:

                     (a)  different kinds of visa (however described); and

                     (b)  different classes in relation to which a person may be approved as a sponsor.

18  After section 140G

Insert:

140GA  Variation of terms of approval as a sponsor

             (1)  The regulations may establish a process for the Minister to vary a term of a person’s approval as a sponsor.

             (2)  The Minister must vary a term specified in an approval if:

                     (a)  the term is of a kind prescribed by the regulations for the purposes of this paragraph; and

                     (b)  prescribed criteria are satisfied.

             (3)  Different processes and different criteria may be prescribed for:

                     (a)  different kinds of visa (however described); and

                     (b)  different kinds of terms; and

                     (c)  different classes in relation to which a person may be approved as a sponsor.

140GB  Minister to approve nominations

             (1)  An approved sponsor may nominate:

                     (a)  an applicant, or proposed applicant, for a visa of a prescribed kind (however described), in relation to:

                              (i)  the applicant or proposed applicant’s proposed occupation; or

                             (ii)  the program to be undertaken by the applicant or proposed applicant; or

                            (iii)  the activity to be carried out by the applicant or proposed applicant; or

                     (b)  a proposed occupation, program or activity.

             (2)  The Minister must approve an approved sponsor’s nomination if prescribed criteria are satisfied.

             (3)  The regulations may establish a process for the Minister to approve an approved sponsor’s nomination.

             (4)  Different criteria and different processes may be prescribed for:

                     (a)  different kinds of visa (however described); and

                     (b)  different classes in relation to which a person may be approved as a sponsor.

140GC  Work agreements

                   For the purposes of the definition of work agreement, the regulations may prescribe requirements that an agreement must satisfy.

Note:          A person (other than a Minister) who is a party to a work agreement is an approved sponsor and must satisfy sponsorship obligations.

19  Sections 140H, 140I, 140J, 140K, 140L and 140M

Repeal the sections, substitute:

Subdivision CSponsorship obligations

140H  Sponsorship obligations

             (1)  A person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations.

Note:          The following are examples of the kinds of sponsorship obligations that might be prescribed by the regulations:

(a)              to pay a minimum wage (however described) to a visa holder sponsored by the approved sponsor;

(b)              to pay to the Commonwealth certain costs, which may include costs of locating, detaining and removing from Australia a visa holder sponsored by the approved sponsor;

(c)              to pay the costs of the departure from Australia of a visa holder sponsored by the approved sponsor;

(d)              to comply with the Department’s requirements to provide information to the Department;

(e)              to notify the Department of changes in the circumstances of the sponsor or of a visa holder sponsored by the approved sponsor;

(f)               to cooperate with the Department’s monitoring of the approved sponsor or of a visa holder sponsored by the sponsor.

             (2)  However, if:

                     (a)  a person (other than a Minister) is or was a party to a work agreement; and

                     (b)  a sponsorship obligation, that would otherwise be imposed on the person by the regulations, is varied by a term of the agreement;

then, the person must satisfy the sponsorship obligation as so varied.

             (3)  If:

                     (a)  a person (other than a Minister) is or was a party to a work agreement; and

                     (b)  an obligation, identified in the agreement as a sponsorship obligation, is imposed on the person by a term of the agreement;

then, the person must also satisfy the sponsorship obligation imposed by the term of the agreement.

             (4)  The regulations may require a person to satisfy sponsorship obligations in respect of each visa holder sponsored by the person or generally.

             (5)  Sponsorship obligations must be satisfied in the manner (if any) and within the period (if any) prescribed by the regulations.

             (6)  Different kinds of sponsorship obligations may be prescribed for:

                     (a)  different kinds of visa (however described); and

                     (b)  different classes in relation to which a person may be, or may have been, approved as a sponsor.

140J  Amounts payable in relation to sponsorship obligations

             (1)  If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person is not liable to pay to the Commonwealth more than the lesser of:

                     (a)  if a limit is prescribed by the regulations—that limit; and

                     (b)  the actual costs incurred by the Commonwealth.

Example:    If the Commonwealth incurs costs in locating and detaining a person, the person who is or was an approved sponsor is not liable to pay to the Commonwealth more than the total amount of those costs or a lesser amount (if a limit is prescribed in the regulations and that limit is less than the actual costs incurred by the Commonwealth).

             (2)  The Minister may, by legislative instrument, specify one or more methods for working out the actual costs incurred by the Commonwealth in relation to a sponsorship obligation.

             (3)  If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person (the sponsor) is taken not to have satisfied the sponsorship obligation if a visa holder or former visa holder, or a person on behalf of a visa holder or former visa holder, reimburses the sponsor or another person for all or part of the amount.

Subdivision DEnforcement

140K  Sanctions for failing to satisfy sponsorship obligations

Actions that may be taken in relation to approved sponsors

             (1)  If a person is an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:

                     (a)  the Minister may do one or more of the following:

                              (i)  if regulations are prescribed under section 140L, bar the sponsor under subsection 140M(1) from doing certain things;

                             (ii)  if regulations are prescribed under section 140L, cancel the person’s approval as a sponsor under subsection 140M(1);

                            (iii)  apply for an order for a civil penalty under Part 8D;

                     (b)  the person may be issued with an infringement notice, as an alternative to civil penalty proceedings, under section 140R;

                     (c)  an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.

Actions that may be taken in relation to former approved sponsors

             (2)  If a person was an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:

                     (a)  the Minister may do either or both of the following:

                              (i)  if regulations are prescribed under section 140L, bar the person under subsection 140M(2) from making future applications for approval;

                             (ii)  apply for an order for a civil penalty under Part 8D;

                     (b)  the person may be issued with an infringement notice, as an alternative to civil penalty proceedings, under section 140R;

                     (c)  an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.

             (3)  To avoid doubt, subsections (1) and (2) do not limit the circumstances in which:

                     (a)  the Minister may:

                              (i)  bar a sponsor under section 140M from doing certain things; or

                             (ii)  cancel a person’s approval as a sponsor under section 140M; or

                     (b)  an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.

140L  Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled

Circumstances in which the Minister may take action

             (1)  The regulations may prescribe:

                     (a)  either or both of the following:

                              (i)  circumstances in which the Minister may take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;

                             (ii)  other circumstances in which the Minister may take one or more of the actions mentioned in section 140M; and

                     (b)  the criteria to be taken into account by the Minister in determining what action to take under section 140M.

Circumstances in which the Minister must take action

             (2)  The regulations may prescribe either or both of the following:

                     (a)  circumstances in which the Minister must take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;

                     (b)  other circumstances in which the Minister must take one or more of the actions mentioned in section 140M.

             (3)  Different circumstances and different criteria may be prescribed for:

                     (a)  different kinds of visa (however described); and

                     (b)  different classes in relation to which a person may be, or may have been, approved as a sponsor.

140M  Cancelling approval as a sponsor or barring a sponsor

Actions that may be taken in relation to approved sponsors

             (1)  If regulations are prescribed under section 140L, the Minister may (or must) take one or more of the following actions in relation to an approved sponsor:

                     (a)  cancelling the approval of a person as a sponsor in relation to a class to which the sponsor belongs;

                     (b)  cancelling the approval of a person as a sponsor for all classes to which the sponsor belongs;

                     (c)  barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals for different kinds of visa (however described);

                     (d)  barring the sponsor, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).

Action that may be taken in relation to former approved sponsors

             (2)  If regulations are prescribed under section 140L and a person was an approved sponsor, the Minister may (or must) bar the person, for a specified period, from making future applications for approval as a sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).

20  Subsections 140N(1) and (2)

Omit “section 140J or 140K”, substitute “section 140M”.

21  Subsection 140N(3)

Repeal the subsection, substitute:

             (3)  Different processes may be prescribed for:

                     (a)  different kinds of visa (however described); and

                     (b)  different classes in relation to which a person may be, or may have been, approved as a sponsor.

22  Subsection 140O(1)

Repeal the subsection.

23  Subsection 140O(2)

Omit “section 140J or 140K in relation to a visa to which this section applies”, substitute “section 140M”.

24  Subsection 140O(4)

Repeal the subsection, substitute:

             (4)  Different circumstances and different criteria may be prescribed for:

                     (a)  different kinds of visa (however described); and

                     (b)  different classes in relation to which a person may be, or may have been, approved as a sponsor.

25  Subsection 140P(1)

Omit “section 140J or 140K”, substitute “section 140M”.

26  Subsection 140P(2)

Repeal the subsection, substitute:

             (2)  Different processes may be prescribed for:

                     (a)  different kinds of visa (however described); and

                     (b)  different classes in relation to which a person may be, or may have been, approved as a sponsor.

27  Sections 140Q, 140R and 140S

Repeal the sections, substitute:

140Q  Civil penalty—failing to satisfy sponsorship obligations

             (1)  A person contravenes this subsection if:

                     (a)  the regulations impose a sponsorship obligation on the person; and

                     (b)  the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations.

Civil penalty:

                     (a)  for an individual—60 penalty units; and

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

             (2)  A person contravenes this subsection if:

                     (a)  the person (other than a Minister) is a party to a work agreement; and

                     (b)  the terms of the work agreement:

                              (i)  vary a sponsorship obligation that would otherwise be imposed on the person by the regulations; or

                             (ii)  impose an obligation, identified in the agreement as a sponsorship obligation, on the person; and

                     (c)  the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) specified in the work agreement.

Civil penalty:

                     (a)  for an individual—60 penalty units; and

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

140R  Infringement notices in respect of civil penalty provisions

             (1)  The regulations may make provision enabling a person who is alleged to have contravened a civil penalty provision to pay to the Commonwealth, as an alternative to civil penalty proceedings against the person, a specified penalty.

             (2)  The penalty must not exceed an amount equal to one‑fifth of the maximum penalty prescribed for contravening that provision.

Subdivision ELiability and recovery of amounts

140S  Liability to pay amounts

             (1)  This section applies if a person who is or was an approved sponsor is required to pay an amount of a kind prescribed in the regulations to the Commonwealth, a State or Territory or another person (the payee) in relation to a sponsorship obligation.

             (2)  The payee may recover the amount as a debt due to the payee in an eligible court.

             (3)  To avoid doubt, an amount may be recovered under this section if civil penalty proceedings are brought under Part 8D and discontinued or completed without the court making an order under subsection 486R(6) in relation to the amount.

             (4)  For the purpose of paragraph (e) of the definition of eligible court, the regulations may prescribe a court of a State or Territory in which an amount may be recovered under this section.

140SA  Interest up to judgment

             (1)  A party to proceedings under section 140S may apply to the eligible court for an order under subsection (2).

             (2)  If an application is made under subsection (1), the eligible court must, unless good cause is shown to the contrary, either:

                     (a)  order that there be included in the sum for which judgment is 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:

                              (i)  the date when the cause of action arose; and

                             (ii)  the date as of which judgment is entered; or

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

             (3)  Subsection (2) 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 because 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.

140SB  Interest on judgment

                   A judgment debt under a judgment of an eligible court under section 140S carries interest:

                     (a)  from the date as of which the judgment is entered; and

                     (b)  at the rate that would apply under section 52 of the Federal Court of Australia Act 1976 as if the debt were a judgment debt to which that section applies.

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

             (1)  This section applies if:

                     (a)  a person brings proceedings under section 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 the person wants a small claims procedure to apply in relation to the proceeding.

             (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 legal representation unless allowed by the court.

             (3)  If the court allows a person to have legal representation, the court may, if it thinks fit, do so subject to conditions designed to ensure that a party is not unfairly disadvantaged.

             (4)  Despite paragraph (2)(d) and subsection (3):

                     (a)  in a case heard in a court of a State—if, in a particular proceeding (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; and

                     (b)  in a case heard in a court of a Territory—the regulations may prohibit or restrict legal representation of the parties.

28  Subsection 140T(1)

Omit “has undertaken”, substitute “is required”.

29  Sections 140V and 140W

Repeal the sections.

30  Subdivision C of Division 3A of Part 2

Repeal the Subdivision, substitute:

Subdivision FInspectors

140V  Inspectors

             (1)  The Minister may, by written instrument:

                     (a)  appoint a person to be an inspector; or

                     (b)  appoint a class of persons to be inspectors.

             (2)  A person, or a class of persons, is appointed for the period specified in the instrument of appointment, which must not be longer than the period specified in regulations made for the purposes of this subsection.

             (3)  An inspector has the powers conferred on an inspector by this Division, or the regulations, that are specified in his or her instrument of appointment.

Note:          The Minister may give written directions specifying the manner in which, and any conditions and qualifications subject to which, powers conferred on inspectors are to be exercised: see section 499.

140W  Identity cards

Issue of identity card

             (1)  The Minister must issue an identity card to an inspector.

Form of identity card

             (2)  An identity card:

                     (a)  must be in the form prescribed by the regulations; and

                     (b)  must contain a recent photograph of the inspector.

Identity card to be carried

             (3)  An inspector must carry the identity card at all times when exercising powers as an inspector.

Offence

             (4)  A person commits an offence if:

                     (a)  the person has been issued with an identity card; and

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

                     (c)  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.

             (5)  An offence against subsection (4) is an offence of strict liability.

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

             (6)  However, a person does not commit an offence against subsection (4) if the person’s identity card was lost or destroyed.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (6): see subsection 13.3(3) of the Criminal Code.

140X  Powers of inspectors

Purpose for which powers of inspectors can be exercised

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

                     (a)  for the purpose of determining whether a sponsorship obligation is being, or has been, complied with; or

                     (b)  for a purpose prescribed by the regulations.

Powers of inspectors

             (2)  An inspector has the following powers:

                     (a)  if the inspector has reasonable cause to believe that there is information, documents or any other thing relevant to the purposes mentioned in subsection (1) at business premises or another place—to enter, without force, those premises or that place;

                     (b)  once the inspector has entered those premises or that place—to:

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

                             (ii)  interview any person; and

                            (iii)  require a person who has custody of, or access to, a document or thing relevant to the purposes mentioned in subsection (1) to produce the document or thing to the inspector within a specified period; and

                            (iv)  require a person to tell the inspector who has custody of a document or thing;

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

                     (d)  any other power prescribed by the regulations.

Note 1:       Paragraph (c)—failure to produce a document or thing under paragraph (2)(c) may be an offence under section 140Z.

Note 2:       Paragraph (c)—subsection 140Y(3) deals with the methods by which the notice must be given to the person.

             (3)  To avoid doubt, an inspector may exercise the power to require a person to produce a document or thing (as mentioned in paragraph (2)(c)) even if the inspector has required the person to produce the document or thing when exercising power under subparagraph (2)(b)(iii).

Note:          Failure to produce a document or thing under paragraph (2)(c) may be an offence under section 140Z.

             (4)  An inspector is not entitled to exercise powers in relation to, or remain on, business premises or another place if:

                     (a)  the occupier of those premises or that place requires the inspector to produce his or her identity card for inspection by the occupier; and

                     (b)  the inspector fails to comply with the requirement.

When may the powers be exercised?

             (5)  An inspector may exercise the powers in subsection (2):

                     (a)  at any time during ordinary working hours; or

                     (b)  at any other time when it is necessary to do so for the purposes set out in subsection (1).

140Y  Requirement to produce a document or thing

             (1)  If a document or thing is produced to an inspector in accordance with a request under section 140X, the inspector:

                     (a)  may take possession of, and may make copies of, the document or thing, or take extracts from the document; and

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

             (2)  While an inspector retains a document or thing, the inspector must allow a person otherwise entitled to possession of the document or thing (or a person authorised by the person) to do the following at all reasonable times:

                     (a)  inspect the document or view the thing;

                     (b)  make copies of the document or thing;

                     (c)  take extracts from the document.

Giving notices requiring production of a document

             (3)  A notice referred to in paragraph 140X(2)(c) 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) and (3), an inspector must not act by way of an authorised officer; and

                     (c)  subsection 494B(6) does not apply.

Self‑incrimination

             (4)  A person is not excused from:

                     (a)  giving information; or

                     (b)  producing a document or thing;

when requested or required to do so under section 140X on the ground that doing so would tend to incriminate the person or expose the person to a penalty.

             (5)  However, in the case of an individual:

                     (a)  the information given; or

                     (b)  the production of the document or thing; or

                     (c)  any information, document or thing obtained as a direct or indirect consequence of the producing of the information, document or thing;

is not admissible in evidence in criminal proceedings against the individual, except proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to the information or document.

140Z  Offence—failing to comply with requirement of inspector

                   A person commits an offence if:

                     (a)  an inspector requires the person to produce a document or thing under paragraph 140X(2)(c); and

                     (b)  the person contravenes the requirement.

Penalty:  Imprisonment for 6 months.

140ZA  Disclosure of information by inspectors

             (1)  An inspector may disclose information acquired by the inspector in the course of exercising powers 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 as an inspector.

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

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

                     (a)  a person who holds any office or appointment under a law of the Commonwealth, or under a law of a State or Territory; or

                     (b)  employees of the Commonwealth of the prescribed kind; or

                     (c)  employees of a State or Territory of the prescribed kind.

             (4)  A person who acquires information because of a disclosure under this section may only use or disclose the information for the same purposes for which the original disclosure was made.

Subdivision GApplication of Division to partnerships and unincorporated associations

140ZB  Partnerships—sponsorship rights and obligations

             (1)  This Division, the regulations made under it and any other provision of this Act as far as it relates to this Division or the regulations, apply to a partnership as if it were a person, but with the changes set out in this section and sections 140ZC and 140ZD.

             (2)  A sponsorship right that would otherwise be exercisable by the partnership is exercisable by each partner instead.

             (3)  A sponsorship obligation that would otherwise be imposed on the partnership:

                     (a)  is imposed on each partner instead; but

                     (b)  may be discharged by any of the partners.

             (4)  Subject to section 140ZC, the partners are jointly and severally liable to pay an amount in relation to a sponsorship obligation.

140ZC  Partnerships—offences and civil penalties

             (1)  An offence against this Division 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:

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

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

                     (c)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the partner).

             (2)  A civil penalty provision of this Division 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:

                     (a)  engaged in the conduct; or

                     (b)  aided, abetted, counselled or procured the conduct; or

                     (c)  was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the partner).

             (3)  If a partner in a partnership contravenes a civil penalty provision, the civil penalty that may be imposed on the partner must not exceed an amount equal to one‑fifth of the maximum penalty that could be imposed on a body corporate for the same contravention.

             (4)  For the purposes of subsections (1) and (2), to establish that a partnership engaged in 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.

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

140ZD  Partnership ceases to exist

             (1)  If a partnership ceases to exist, the persons who were partners immediately before the cessation must continue to satisfy any applicable sponsorship obligation.

             (2)  Section 140ZB applies as if:

                     (a)  references to a partnership were to a partnership that ceases to exist; and

                     (b)  references to partners of the partnership were to the persons who were partners immediately before the cessation.

             (3)  For the purpose of this section, a partnership ceases to exist if the dissolution of the partnership does not result in the creation of another partnership.

140ZE  Unincorporated associations—sponsorship rights and obligations

             (1)  This Division, the regulations made under it and any other provision of this Act as far as it relates to this Division or the regulations, apply to an unincorporated association as if it were a person, but with the changes set out in this section and sections 140ZF and 140ZG.

             (2)  A sponsorship right that would otherwise be exercisable by the unincorporated association is exercisable by each member of the association’s committee of management instead.

             (3)  A sponsorship obligation that would otherwise be imposed on the unincorporated association:

                     (a)  is imposed on each member of the association’s committee of management instead; but

                     (b)  may be discharged by any of those members.

             (4)  Subject to section 140ZF, the members are jointly and severally liable to pay an amount in relation to a sponsorship obligation.

140ZF  Unincorporated associations—offences and civil penalties

             (1)  An offence against this Division 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:

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

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

                     (c)  was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the member).

             (2)  A civil penalty provision of this Division 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:

                     (a)  engaged in the conduct; or

                     (b)  aided, abetted, counselled or procured the conduct; or

                     (c)  was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the member).

             (3)  If a member of an unincorporated association’s committee of management contravenes a civil penalty provision, the civil penalty that may be imposed on the member must not exceed an amount equal to one‑fifth of the maximum penalty that could be imposed on a body corporate for the same contravention.

             (4)  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 relevant member of the association’s committee of management had the relevant state of mind.

140ZG  Unincorporated association ceases to exist

             (1)  If an unincorporated association ceases to exist, the persons who were members of the association’s committee of management immediately before the cessation must continue to satisfy any applicable sponsorship obligation.

             (2)  Section 140ZE applies as if:

                     (a)  references to an unincorporated association were to an unincorporated association that ceases to exist; and

                     (b)  references to members of the association’s committee of management were to the persons who were members immediately before the cessation.

             (3)  To avoid doubt, for the purpose of this section, an unincorporated association ceases to exist if the dissolution of the association does not result in the creation of another association.

Subdivision HMiscellaneous

140ZH  Disclosure of personal information by Minister

             (1)  The Minister may disclose personal information of a prescribed kind about a person mentioned in column 2 of the following table in relation to an item to the person or persons mentioned in column 3 of the table in relation to the item:

 

To whom the Minister may disclose personal information

 

Column 1

Column 2

Column 3

Item

If the personal information of a prescribed kind is about ...

then, the Minister may disclose that personal information to ...

1

a visa holder

(a) an approved sponsor of the visa holder; or

(b) a former approved sponsor of the visa holder; or

(c) an agency of the Commonwealth or a State or Territory prescribed by the regulations

2

a former visa holder

(a) an approved sponsor of the visa holder; or

(b) a former approved sponsor of the visa holder; or

(c) an agency of the Commonwealth or a State or Territory prescribed by the regulations

3

an approved sponsor of a visa holder or an approved sponsor of a former visa holder

(a) the visa holder; or

(b) a former visa holder; or

(c) an agency of the Commonwealth or a State or Territory prescribed by the regulations

4

a former approved sponsor of a visa holder or a former approved sponsor of a former visa holder

(a) the visa holder; or

(b) a former visa holder; or

(c) an agency of the Commonwealth or a State or Territory prescribed by the regulations

             (2)  The regulations may prescribe circumstances in which the Minister may disclose the personal information.

             (3)  The regulations may prescribe circumstances in which the recipient may use or disclose the personal information disclosed.

             (4)  If the Minister discloses personal information under subsection (1) (other than to an agency of the Commonwealth or a State or Territory prescribed by the regulations), the Minister must give written notice to the person about whom the information is disclosed of:

                     (a)  the disclosure; and

                     (b)  the details of the personal information disclosed.

140ZI  Disclosure of personal information to Minister

             (1)  For the purposes of this Division, the Minister may request a person mentioned in column 2 of the following table in relation to an item to disclose to the Minister personal information of a prescribed kind about a person mentioned in column 3 of the table in relation to the item:

 

From whom the Minister may request disclosure of personal information

 

Column 1

Column 2

Column 3

Item

The Minister may request ...

to disclose personal information of a prescribed kind to the Minister about ...

1

an approved sponsor or former approved sponsor of a visa holder

the visa holder

2

an approved sponsor or former approved sponsor of a former visa holder

the former visa holder

             (2)  For the purposes of:

                     (a)  paragraph (1)(d) of Information Privacy Principle 11 in section 14 of the Privacy Act 1988; and

                     (b)  paragraph 2.1(g) of National Privacy Principle 2 in Schedule 3 to the Privacy Act 1988; and

                     (c)  a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law;

the disclosure of information by a person in response to a request under this section is taken to be a disclosure that is authorised by law.

             (3)  Nothing in this section has the effect of authorising a disclosure that, despite subsection (2), is prevented by a law of the Commonwealth, a State or Territory.

140ZJ  Unclaimed money

             (1)  If a person who is or was an approved sponsor has not paid an amount in relation to a sponsorship obligation because the person does not know the location of the intended recipient, 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.

140ZK  Other regulation making powers not limited

                   Regulations made for the purposes of this Division do not limit the power to make regulations under any other provision of this or any other Act.

31  Subsection 245L(2) (note 1)

Omit “(as defined in the Privacy Act 1988)”.

32  Section 275 (definition of lawyer)

Repeal the definition.

33  Subsection 320(3)

Omit “(as defined in the Privacy Act 1988)”.

34  Subsection 321(1)

Omit “(as defined by the Privacy Act 1988)”.

35  Subsection 321A(4) (definition of personal information)

Repeal the definition.

36  Subsection 332F(4) (definition of personal information)

Repeal the definition.

37  Subsection 332G(5) (definition of personal information)

Repeal the definition.

38  Subsection 336FB(1)

Omit “(within the meaning of the Privacy Act 1988)”.

39  Paragraph 336FC(2)(e)

Omit “(within the meaning of the Privacy Act 1988)”.

40  Subsection 336FD(1)

Omit “(within the meaning of the Privacy Act 1988)”.

41  Section 486K (definition of lawyer)

Repeal the definition.

42  After Part 8C

Insert:

Part 8DCivil penalties

Division 1Obtaining an order for a civil penalty

486R  Person may be ordered to pay pecuniary penalty for contravening civil penalty provision

Application for order

             (1)  Within 6 years of a person (the wrongdoer) contravening a civil penalty provision, the Minister may apply to the Federal Court or the Federal Magistrates Court for an order that the wrongdoer pay the Commonwealth a pecuniary penalty.

Court may order wrongdoer to pay pecuniary penalty

             (2)  If the court is satisfied that the wrongdoer has contravened a civil penalty provision, the court may order the wrongdoer to pay to the Commonwealth for each contravention the pecuniary penalty that the court determines is appropriate (but not more than the relevant amount specified for the provision).

Determining amount of pecuniary penalty

             (3)  In determining the pecuniary penalty, the court must have regard to all relevant matters, including:

                     (a)  the nature and extent of the contravention; and

                     (b)  the nature and extent of any loss or damage suffered as a result of the contravention; and

                     (c)  the circumstances in which the contravention took place; and

                     (d)  whether the person has previously been found by a court in proceedings under this Act to have engaged in the same or similar conduct.

             (4)  For the purpose of paragraph (3)(d), in relation to proceedings for a contravention of a civil penalty provision in Division 3A of Part 2, a person is taken to have engaged in similar conduct if the person has failed to satisfy a sponsorship obligation that is different from the sponsorship obligation to which the proceedings relate. However, this subsection does not limit the circumstances in which a person may be found to have engaged in similar conduct.

Civil evidence and procedure rules apply

             (5)  The court must apply the rules of evidence and procedure for civil matters when hearing and determining an application for an order under this section.

Note:          The standard of proof in civil proceedings is the balance of probabilities: see section 140 of the Evidence Act 1995.

Court may order wrongdoer to pay amount prescribed by regulations

             (6)  If, when determining an application for an order under this section, it appears to the court that:

                     (a)  an amount of a kind prescribed in the regulations is required to be paid to:

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

                             (ii)  another person; and

                     (b)  the amount remains unpaid after the time for payment; and

                     (c)  proceedings to recover the amount have not been brought under section 140S;

the court may order that the amount be paid to the Commonwealth, State, Territory or other person (as the case may be).

Note:          Section 140S allows a person to bring proceedings to recover an amount owed if the court does not make an order under this subsection.

             (7)  If the court makes an order under subsection (6):

                     (a)  an application may be made under subsection 140SA(1), and an order made under subsection 140SA(2), as if proceedings for an order under this section were proceedings under section 140S; and

                     (b)  section 140SB applies as if the amount ordered under subsection (6) of this section were a judgment debt of the eligible court made under section 140S.

486S  Persons involved in contravening civil penalty provision

             (1)  A person must not:

                     (a)  aid, abet, counsel or procure a contravention of a civil penalty provision; or

                     (b)  induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or

                     (c)  conspire to contravene a civil penalty provision.

             (2)  This Act applies to a person who contravenes subsection (1) in relation to a civil penalty provision as if the person had contravened the provision.

486T  Recovery of pecuniary penalty

                   If the Federal Court or the Federal Magistrates Court orders a person to pay a pecuniary penalty, the Commonwealth may enforce the order as if it were a judgment of the relevant court.

486U  Gathering information for application for pecuniary penalty

             (1)  This section applies if it appears to the Secretary that a person (the wrongdoer) may have contravened a civil penalty provision.

             (2)  If the Secretary, on reasonable grounds, suspects that a person other than the wrongdoer can give information relevant to an application for a civil penalty order in relation to the contravention, whether or not such an application has been made, the Secretary may, by writing given to the person, require the person to give all reasonable assistance in connection with such an application.

             (3)  Subsection (2) does not apply in relation to a lawyer who is acting, or has acted, for the wrongdoer.

             (4)  If a person fails to give assistance as required under subsection (2), a court may, on the application of the Secretary, order the person to comply with the requirement as specified in the order.

             (5)  If a person fails to give assistance as required under subsection (2), the person commits an offence against this subsection.

Penalty:  30 penalty units.

Division 2Civil penalty proceedings and criminal proceedings

486V  Civil proceedings after criminal proceedings

                   The Federal Court or the Federal Magistrates Court must not order a person to pay a pecuniary penalty for contravening a civil penalty provision if the person has been convicted of an offence constituted by conduct substantially the same as the conduct constituting the contravention.

486W  Criminal proceedings during civil proceedings

             (1)  Proceedings for an order for a person to pay a pecuniary penalty for contravening a civil penalty provision 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 substantially the same as the conduct alleged to constitute the contravention.

             (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 when the criminal proceedings (including any appeals) for the offence end with the conviction of the person of the offence.

486X  Criminal proceedings after civil proceedings

                   Criminal proceedings may not be started against a person for conduct substantially the same as conduct contravening a civil penalty provision if the person has been ordered to pay a pecuniary penalty under this Act for the contravention.

486Y  Evidence given in proceedings for civil 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 for an offence if:

                     (a)  the individual previously gave the evidence or produced the documents in proceedings against the individual for an order for a contravention of a civil penalty provision (whether or not the order was made); and

                     (b)  the conduct alleged to constitute the offence is substantially the same as the conduct that was claimed to constitute the contravention.

However, this does not apply to a criminal proceeding in respect of the falsity of the evidence given by the individual in the proceedings for the pecuniary penalty order.

486Z  Civil double jeopardy

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

Division 3Miscellaneous

486ZA  Multiple contraventions of civil penalty provisions

             (1)  Proceedings against a person for any number of orders to pay pecuniary penalties for contraventions of a civil penalty provision that are founded on the same facts or form, or are part of, a series of contraventions of the same or a similar character, may be joined.

             (2)  The Federal Court or the Federal Magistrates Court may make a single order to pay a pecuniary penalty for all the contraventions described in subsection (1), but the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.

43  Subsection 488B(1)

Omit “(as defined in the Privacy Act 1988)”.


 

Part 2Transitional matters

44  Definitions

In this Part:

approved professional development sponsor has the same meaning as in regulation 1.03 of the Migration Regulations 1994 as in force immediately before this Schedule commences.

approved sponsor has the same meaning as in the old law.

new law means Division 3A of Part 2 of the Migration Act 1958 as in force immediately after this Schedule commences, and any other law of the Commonwealth as far as it relates to Division 3A of that Act.

old law means Division 3A of Part 2 of the Migration Act 1958 as in force immediately before this Schedule commences.

standard business sponsor has the same meaning as in regulation 1.20B of the Migration Regulations 1994 as in force immediately before this Schedule commences.

45  Standard business sponsors to satisfy sponsorship obligations from commencement

(1)        This item applies in respect of a person who, immediately before this Schedule commences:

                     (a)  is a standard business sponsor; or

                     (b)  is an approved sponsor, other than an approved professional development sponsor.

(2)        The new law applies to the person, on and after the day on which this Schedule commences, as if the person were approved as a sponsor under section 140E of the new law in relation to the class prescribed by the regulations for standard business sponsors.

(3)        The terms specified in the person’s approval as a sponsor under section 140G of the old law continue to apply, on and after the day on which this Schedule commences, to the person.

(4)        A term of a kind specified in the person’s approval as a sponsor under section 140G of the old law may be prescribed by the regulations for the purposes of paragraph 140GA(2)(a) of the new law.

Note:       This means that the term may be varied under section 140GA of the new law.

(5)        If the person had made an undertaking under section 140H of the old law, then, on and after the day on which this Schedule commences:

                     (a)  the undertaking ceases to have effect; and

                     (b)  the person must satisfy any applicable sponsorship obligation prescribed by the regulations under section 140H of the new law.

(6)        However, if, before the day on which this Schedule commences, the person breaches an undertaking made under section 140H of the old law, then section 140M of the new law applies as if regulations made under sections 140J and 140K of the old law (and as in force immediately before this Schedule commences) were regulations prescribed under section 140L of the new law.

(7)        To avoid doubt, the new law applies:

                     (a)  in the case of a partnership—in respect of a partner even if the partner has not made an election under section 140Z of the old law in relation to a sponsorship obligation; and

                     (b)  in the case of an unincorporated association—in respect of a member of the committee of management of the association even if the member has not made an election under section 140ZE of the old law in relation to a sponsorship obligation.

46  Certain former standard business sponsors to satisfy sponsorship obligations from commencement

(1)        This item applies in respect of a person who, immediately before this Schedule commences:

                     (a)  was both a standard business sponsor and an approved sponsor (other than an approved professional development sponsor); and

                     (b)  remained bound by an undertaking made under section 140H of the old law that was enforceable under section 140Q of the old law.

(2)        The new law applies to the person, on and after the day on which this Schedule commences, as if the person were a former approved sponsor under the new law in relation to the class prescribed by the regulations for standard business sponsors.

(3)        On and after the day on which this Schedule commences:

                     (a)  the undertaking ceases to have effect; and

                     (b)  the person must satisfy any applicable sponsorship obligation prescribed by the regulations under section 140H of the new law.

(4)        However, if, before the day on which this Schedule commences, the person breaches an undertaking made under section 140H of the old law, then section 140M of the new law applies as if regulations made under sections 140J and 140K of the old law (and as in force immediately before this Schedule commences) were regulations prescribed under section 140L of the new law.

47  Recovery of debts from standard business sponsors

If, before the day on which the Schedule commences:

                     (a)  a debt of a kind mentioned in section 140R or 140S of the old law exists; and

                     (b)  proceedings for recovery of the debt have not been brought in a court of competent jurisdiction;

then, section 140S of the new law applies:

                     (c)  in relation to the debt—as if the debt were an amount prescribed by the regulations under section 140H of the new law in relation to a sponsorship obligation; and

                     (d)  in relation to a person who is or was a standard business sponsor immediately before this Schedule commences—as if the person were an approved sponsor under section 140E of the new law.

48  Continued effect of Division 3A of the Migration Act 1958 for approved professional development sponsors

Despite the repeals and amendments made by Schedule 1, the old law continues to apply to a person who is an approved professional development sponsor on the day on which this item commences until the person ceases to be an approved professional development sponsor.

49  Pending applications

            If:

                     (a)  a person has applied for approval as a sponsor under section 140E of the old law; and

                     (b)  the person’s application is not finally determined (within the meaning of subsection 5(9) of the Migration Act 1958) before the day on which this Schedule commences;

then:

                     (c)  the application is treated as if it had been made on the day on which this Schedule commences; and

                     (d)  if criteria prescribed under section 140E of the new law are satisfied—the Minister must approve the person as a sponsor in relation to one or more classes prescribed for the purpose of subsection 140E(2) of the new law.

50  Application

Sections 140SA to 140SC of the Migration Act 1958 (as inserted by item 27 of this Schedule) apply in relation to a proceeding that begins on or after the day on which this Schedule commences.

51  Transitional regulations

The Governor‑General may make regulations prescribing matters of a transitional nature (including any saving or application provisions) relating to the amendments or repeals made by Part 1 of this Schedule.


 

Schedule 2Taxation Administration Act 1953

Part 1Amendment

1  After section 3EC

Insert:

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

             (1)  Despite any taxation secrecy provision, the Commissioner may disclose information acquired under a taxation law to a migration officer 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 140ZH of the Migration Act 1958; and

                     (b)  is relevant to:

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

                             (ii)  the exercise of the Minister’s powers under Part 8D of that Act, to the extent that it relates to a contravention of a civil penalty provision in Division 3A of Part 2 of that Act; or

                            (iii)  the administration of Division 3A of Part 2 of that Act or regulations made under that Division.

Note:          Division 3A of Part 2 of the Migration Act 1958 deals with sponsorship obligations and Part 8D of that Act allows proceedings to be brought for contraventions of civil penalty provisions.

             (2)  If:

                     (a)  both:

                              (i)  a person is or has been a migration officer; and

                             (ii)  information is disclosed to the person under subsection (1); or

                     (b)  a person is someone to whom information is disclosed under subsection (3);

then, the person must not disclose the information to another person or a court, or make a record of the information.

Penalty:  Imprisonment for 2 years.

             (3)  However, subsection (2) does not apply in the following circumstances:

                     (a)  in the case of a person who is a migration officer—the information is disclosed or a record of the information is made for the purposes of, or in connection with:

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

                             (ii)  the exercise of the Minister’s powers under Part 8D of that Act, to the extent that it relates to a contravention of a civil penalty provision in Division 3A of Part 2 of that Act; or

                            (iii)  the administration of Division 3A of Part 2 of that Act or regulations made under that Division;

                     (b)  in any case—the information is disclosed to a person or a court, or a record of the information is made, for the purposes of, or in connection with:

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

                             (ii)  civil penalty proceedings under Part 8D of the Migration Act 1958 in relation to a contravention of a provision in Division 3A of Part 2 of that Act; or

                            (iii)  a penalty to be paid by a person, as an alternative to civil penalty proceedings against the person, in accordance with regulations made under section 140R of the Migration Act 1958; or

                            (iv)  any proceedings arising from the review of a decision mentioned in subparagraph (i), the proceedings mentioned in subparagraph (ii) or the penalty mentioned in subparagraph (iii).

             (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:

approved sponsor has the same meaning as in the Migration Act 1958.

migration officer means the Secretary, or an employee, of the Department administered by the Minister who administers the Migration Act 1958.

taxation law has the meaning given by the Income Tax Assessment Act 1997.

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


 

Part 2Application

2  Application of amendment of the Taxation Administration Act 1953

(1)        The amendment made by Part 1 of this Schedule applies to information acquired by the Commissioner under a taxation law before, on or after the day on which this Schedule commences.

(2)        To avoid doubt, information acquired by the Commissioner under a taxation law may relate to a person who, immediately before this Schedule commences:

                     (a)  is a standard business sponsor; or

                     (b)  is an approved sponsor, other than an approved professional development sponsor; or

                     (c)  both:

                              (i)  was a standard business sponsor and an approved sponsor; and

                             (ii)  remained bound by an undertaking made under section 140H of the Migration Act 1958 that was enforceable under section 140Q of that Act.

(3)        In this item:

approved professional development sponsor has the same meaning as in regulation 1.03 of the Migration Regulations 1994 as in force immediately before this Schedule commences.

approved sponsor has the same meaning as in the Migration Act 1958.

Migration Act 1958 means the Migration Act 1958 as in force immediately before this Schedule commences.

standard business sponsor has the same meaning as in regulation 1.20B of the Migration Regulations 1994 as in force immediately before this Schedule commences.

taxation law has the meaning given by the Income Tax Assessment Act 1997.


[Minister’s second reading speech made in—

Senate on 24 September 2008

House of Representatives on 3 December 2008]

(194/08)