BILLS DIGEST NO. 46, 2015–16              12 November 2015

Migration Amendment (Charging for a Migration Outcome) Bill 2015

Leah Ferris
Law & Bills Digest Section 

Date introduced: 16 September 2015

House:  House of Representatives

Portfolio: Immigration and Border Protection

Commencement:  Sections 1 to 3 upon Royal Assent; all other provisions on the earlier of a single day to be fixed by Proclamation or six months after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

Purpose of the Bill

The purpose of the Migration Amendment (Charging for a Migration Outcome) Bill 2015 (the Bill) is to amend the Migration Act 1958 (the Act)[1] to (amongst other things):

•       introduce discretionary powers to allow the Minister to cancel a person’s visa where a visa holder has asked for, received, offered or provided a benefit in exchange for the occurrence of a ‘sponsorship-related event’

•       introduce civil and criminal liability for sponsors or other third parties who ask for or received a ‘benefit’ in exchange for a ‘sponsorship-related event’

•       introduce civil liability for visa holders or other third parties who provide, or offer to provide a ‘benefit’ in exchange for a ‘sponsorship-related event’

•       introduce civil and criminal liability for executive officers of a body corporate which have been found to be involved in ‘payment for visas’ activity and

•       extend the current investigation powers and power of inspectors to allow officers of the Department to use these powers in relation to allegations about persons offering or receiving a benefit in return for a ‘sponsorship-related event’. [2]

Background

‘Payment for visas’ conduct

The Explanatory Memorandum to the Bill provides that ‘payment for visas’ conduct occurs ‘where a benefit is asked for, received, offered or provided in return for a migration outcome’.[3]  

The Minister for Immigration and Border Protection, Peter Dutton explains that ‘payment for visas’ conduct:

… may occur through an employer offering to sponsor a visa applicant in return for a payment or benefit. It may occur before the applicant applies for a visa or during the visa holder’s stay in Australia. Evidence obtained through monitoring sponsors indicates that the sponsor and applicant are complicit in the majority of ‘payment for visas’ activity. Employers may also exploit an employee by requiring payment in return for an ongoing sponsorship.[4]

The Explanatory Memorandum further states that ‘payment for visas’ activity:

is unacceptable because it undermines the integrity of Australia’s visa programmes. It is not acceptable for sponsors, employers or other third parties to make a personal gain from their position in a ‘payment for visas’ arrangement and it is not acceptable for a visa holder to become an Australian permanent resident by engaging in ‘payment for visas’ behaviour.[5]

Independent Review into Integrity in the Subclass 457 Programme

According to Minister Dutton, the genesis for these amendments was the recent review into the integrity of the 457 visa programme announced in February 2014 by then Assistant Minister for Immigration and Border Protection, Michaelia Cash.[6] The review, conducted by John Azarias, Jenny Lambert, Professor Peter McDonald and Katie Malyon, released its report in September 2014. [7] Entitled ‘Robust New Foundations - A Streamlined, Transparent and Responsive System for the 457 Programme’, the panel’s report contained 22 recommendations which were aimed at strengthening the integrity and improving the flexibility of the program.[8]

The panel relevantly noted:

In our examination of compliance it has come to our attention that some sponsors have been paid by visa applicants for a migration outcome. This undermines the integrity of the programme and we consider sanctions including possible criminal sanctions should apply. [9]

Though the panel did not elaborate further on this issue, it subsequently recommended, at recommendation 10.7, ‘that it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome, and that this be reinforced by a robust penalty and conviction framework’.[10]

On 18 March 2015, the Government released its response to the panel’s recommendations, wherein it agreed to the above recommendation.[11]

In introducing the Bill, Minister Dutton noted that ‘payment for visas’ conduct is not currently unlawful. Such conduct is considered ‘unacceptable to the Government and the Australian people because it undermines the genuine purpose for which visas are intended to be granted’.[12]

The Bill will give legislative effect to recommendation 10.7 and the Minister expects it will also ‘strengthen the integrity of Australia’s migration programme’, including by providing for its possible expansion to a broader group of visas where there is the potential for similar conduct to occur.[13]

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee

The Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report.[14] The Committee received 11 submissions.[15] The Committee released its report on 10 November 2015, which recommended that the Bill be passed and that a comprehensive information campaign be conducted to ensure relevant parties are aware of the changes being introduced.[16] The Greens released a dissenting report, recommending that the Bill be rejected by the Senate if proposed amendments to section 116 (at item 1) and proposed section 245AS (at item 6) are not removed from the Bill.[17]

Further details about the inquiry can be found on the Committee’s inquiry homepage.[18]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) raised concerns about certain aspects of the Bill.[19] In particular, the Committee focused on a number of provisions which impact on personal rights and liberties.[20] These concerns are discussed below, alongside the relevant provisions.

Policy position of non-government parties/independents

While Labor has indicated that it supports the substance of the Bill, namely ‘that it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome and that this be reinforced by a robust penalty and conviction framework’, it has announced that it will move amendments in the Senate.[21] In his second reading speech in the House of Representatives, Richard Marles, the Shadow Minister for Immigration and Border Protection, announced that Labor would be proposing to amend the Bill to:

•       extend the provisions of the Bill to persons on student visas and working holiday visas

•       provide that the penalty regime in the Bill cannot apply to a visa applicant who has been coerced by the sponsor or a related third party into offering, making, asking for or receiving a benefit or who has been the subject of human trafficking, forced labour or slavery offences

•       increase the level of penalties for sponsors in relations to the offences contained in the Bill

•       institute a new measure to provide that a person working under a student visa or a working holiday visa cannot have an ABN and instead must have a contract of employment

•       increase protections for whistleblowers in relation to exploitation cases

•       require the Minister to table an annual report about the operation and the impact of provisions of the Bill and

•       enable registered employee organisations (unions) to undertake prosecutions for breaches of the Migration Act in relation to ‘payment for visas’ activity.[22]

Position of major interest groups

Ernst & Young

In its submission to the Senate inquiry into the impact of Australia’s temporary work visa programmes, Ernst & Young (E&Y) noted that the percentage of sponsors sanctioned in 2013–14 was one per cent.[23] E&Y submitted that the:

recommendation of the Independent Review that made it unlawful for a sponsor to be paid by visa applicants for a migration outcome is an appropriate measure to enable the immigration department to penalise the 1% of sponsors and temporary residents who may seek to misuse visa programmes.[24]

While continuing to support the Government’s efforts ‘to improve the integrity of Australia’s visa programmes’, E&Y raised some concerns about the way the provisions of the Bill had been drafted.[25] E&Y was particularly concerned about how the provisions allowing for a person to ‘receive a benefit as payment of a reasonable amount for a professional service’ would operate in practice. E&Y argued that the Bill and explanatory materials are unclear as to how a ‘reasonable amount for a professional service’ will be determined:

Fees for immigration services, for instance, vary significantly across the market which encompasses a wide range of providers from sole traders to global law firms. Commercial in confidence information regarding fees charged by competitors may not be available to a defendant and is unlikely to be available to a delegate of the Minister. There is therefore scope for a delegate to erroneously find that a fee charged for a legitimate professional service is not “a reasonable amount”.[26]

E&Y also noted in its submission to the inquiry into this Bill that while it is clear that immigration assistance and recruitment advice are considered to fall under the term professional service, the explanatory materials are silent as to labour hire services. E&Y argued that these should also fall within the exception:

We acknowledge that some elements of the labour hire sector have historically presented certain challenges in relation to immigration compliance. However, it must also be acknowledged that the majority of labour hire businesses operate within the spirit and letter of the law to meet the demands of other Australian businesses for a legitimate and necessary professional service.[27]

Law Institute of Victoria

The Law Institute of Victoria (LIV) raised concerns about the impact the provisions will have on migrant workers, ‘a vulnerable group already subject to exploitation and poor treatment in the Australian workforce’. While the LIV was supportive of the idea of targeting employers/sponsors who take advantage of migrant workers by way of the visa application process, it submitted that the proposed provisions would have an unfair impact on the very people it is aimed at protecting:

It is paradoxical that this Bill seeks to protect migrant workers from exploitation and at the same time includes severe penalties for migrant workers who may be at risk of exploitation. The LIV is concerned that the high penalties contained in this Bill may have the practical effect of deterring migrant workers in exploitative situations from coming forward, for fear that they may have their visa cancelled or be subject to civil penalties.[28]

Similar concerns are raised in a submission from Associate Professor Joo-Cheong Tham of the University of Melbourne (supported by a number of leading academics including Joanna Howe and Peter Mares) who argues that in order to protect the rights of non-citizen workers, the Bill should be amended so that no penalties (including criminal offences, civil penalties, and the prospect of visa cancellation) are imposed on visa-holders, who are considered to be victims.[29]

These concerns are discussed further in the ‘Key issues and provisions’ section of the Digest.

Migration Institute of Australia

The Migration Institute of Australia (MIA) noted that ‘payments for visas’ activity is commonplace, particularly in the 457 visa programme and expressed its support for the wide definition of ‘sponsorship related events’:

Over the years the MIA has heard anecdotal reports of payment for visa models, from, at the most basic level, requiring the visa applicant to pay the sponsor’s costs for 457 sponsorship, up to payments of $250,000 per year which included an amount to ‘recycled’ [sic] back as a high income salary that allowed the visa holder to bypass the English language requirement.[30]

The MIA recommended that the Government conduct media campaigns aimed at informing sponsors and visa applicants of their obligations and rights (including providing multilingual information) and ensure that potential visa applicants understood that paying for professional assistance was not prohibited under the new provisions.[31]

Australian Council of Trade Unions

The Australian Council of Trade Unions (ACTU) adopted a similar position to the LIV, noting that while the provisions aimed at preventing employers from soliciting and receiving payments from migrant workers ‘are a long overdue law reform that addresses a known problem’, there is a significant danger that it will be the migrant workers themselves who end up ‘on the wrong side of this law’.[32]

Financial implications

The Explanatory Memorandum states that the financial impact of the new provisions is low, with costs to be met from within existing resources of the Department.[33]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible with human rights ‘because it protects the rights of non-citizen workers’.[34] The Statement of Compatibility argues that the Bill engages positively with Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and Article 8 of the International Covenant on Civil and Political Rights (ICCPR):[35]

The introduction of penalties for asking for or receiving a benefit for a sponsorship-related event positively engages these Articles because the Bill reduces the risk that a person will accept payment to sponsor or nominate a person for a visa. Persons who have paid for sponsorship or nomination may be more vulnerable to exploitation and extortion such as unfavourable/unsafe/unhealthy working conditions, unfair pay, slavery/servitude/forced labour due to the risk of having their visa cancelled if their employment ceases.[36]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considered the provisions of the Bill and found that they did not require additional comments as they either promote human rights and/or contain justifiable limitations on human rights.[37]

Key issues and provisions

New criminal and civil penalty regime

Item 6 of the Bill inserts proposed Subdivision D in Division 12 of Part 2 of the Act, which introduces new criminal offence and civil penalty provisions for individuals and corporations who either give or receive a benefit in exchange for some form of sponsor-related activity.[38]

Proposed section 245AQ sets out a number of definitions used in new Subdivision D, as well as the new visa cancellation ground (contained in proposed subsection 116(1AC), at item 1).

A ‘benefit’ will include any of the following:

•       a payment or other valuable consideration

•       a deduction of an amount

•       any kind of real or personal property

•       an advantage

•       a service or

•       a gift.

The Explanatory Memorandum notes that this definition was drafted to be wide enough to include benefits ‘known to be offered or provided in ‘payment for visas’ arrangements by visa holders, including deductions of a visa holder’s salary or wages, payment for goods or services above market value or unpaid work’.[39] The Department noted that the definition is also wide enough to include anything given in exchange for sponsorship, including sexual favours.[40]

However, the LIV submitted that the definition was overly broad and combined with the other proposed provisions ‘allows for strong penalties to be imposed on vulnerable migrant workers who do not understand the full implications of their behaviour in this complex area’.[41] The Australian Industry Group (AI Group) also argued that the amendments would have unintended consequences.[42] They submitted that the Bill ‘would appear to make unlawful various legitimate benefits currently provided by businesses for the benefit of visa holders and their families’, such as advances of salary paid to the visa holder, aimed at assisting them with finding accommodation, meeting the cost of living expenses when moving to Australia and paying for the addition of a family member to the 457 visa.[43] While the payment of advances to visa holders would not be considered unlawful, the AI Group argued that any attempt by the visa holder to reimburse the business could contravene the new provisions. Both E&Y and the MIA shared similar concerns, with E&Y suggesting that the Bill be amended to make clear that it does not ‘encompass situations where a person or employer derives the ordinary benefit arising out of the lawful employment of a visa holder’.[44]

Proposed section 245AQ also defines a ‘sponsorship-related event’. This definition is very wide as it is intended to ‘capture ‘payment for visas’ conduct that occurs at any point before and during the visa application process or while the visa is in effect, including entering the sponsorship arrangement, making a nomination or employing a person’:[45]

A person might enter into a ‘payment for visas’ arrangement in return for agreeing to sponsor or making a nomination in relation to a visa applicant or holder. A person might also enter into a ‘payment for visas’ arrangement in relation to a wide range of events associated with a sponsorship or nomination, such as applying for approval to become a sponsor, entering into a work agreement, employing a person to work in an occupation or position, or including a family member in a nomination. The events also anticipate the possibility that a benefit might be extracted from a visa applicant or holder under threat of withdrawal of a nomination or termination of their employment. Also, a benefit could be given upon grant of the sponsored visa in recognition that it was the sponsorship or nomination which allowed the visa criteria to be met.[46]

Proposed paragraph 245AQ(l) of the definition of ‘sponsorship-related event’ allows additional events to be prescribed. This can occur by way of legislative instrument which will not be subject to disallowance.[47]

Proposed section 245AQ also clarifies which classes of sponsors and which sponsored visas are relevant for the purposes of determining when a ‘sponsorship-related event’ has occurred. Specifically, both ‘sponsor class’ and ‘sponsored visa’ are to be prescribed in the regulations. The Explanatory Memorandum states that it is intended that the following temporary and permanent classes of visas will be prescribed for the purposes of the definition of ‘sponsored visa’ in proposed section 245AQ:

•       Subclass 457 (Temporary Work (Skilled)) visa

•       Subclass 401 (Temporary Work (Long Stay Activity)) visa

•       Subclass 402 (Temporary Work (Training and Research)) visa

•       Subclass 420 (Temporary Work (Entertainment)) visa

•       Subclass 488 (Superyacht Crew) visa

•       Subclass 186 (Employer Nomination Scheme) visa and

•       Subclass 187 (Regional Sponsored Migration Scheme) visa.[48]

In his second reading speech, the Minister noted that it was his intention ‘to later expand the ‘payment for visas’ provisions to family and other visas where there is the potential for this conduct to occur’.[49] The Department commented that ‘these visas were chosen based on existing allegations within some of these programmes, as well as aiming to reduce the potential for ‘payment for visas’ conduct to become an issue in other visa programmes’.[50]

Paragraphs (a) and (b) of the new definition of ‘sponsorship-related event’ refer to applying for approval as a sponsor or applying for a variation of a term of an approval as a sponsor under section 140E in relation to a particular sponsor class.

Regulation 2.58 of the Migration Regulations 1994 currently prescribes the classes of sponsor in relation to which a person may be approved as a sponsor (for the purposes of subsection 140E(2) of the Act). The following sponsor classes are currently prescribed:

•       a standard business sponsor

•       a professional development sponsor

•       a special program sponsor

•       an entertainment sponsor

•       a superyacht crew sponsor

•       a long stay activity sponsor and

•       a training and research sponsor.[51]

Paragraphs (d) to (k) of the new definition of ‘sponsorship-related event’ refer to actions that can be taken in relation to a sponsored visa, including agreeing to be a person’s sponsor, including a family member in a person’s nomination, not withdrawing a nomination and employing or engaging a person to work in an occupation or position for which a visa has been granted.

Proposed subsection 245AR(1) prohibits a person from asking for or receiving a benefit in return for a ‘sponsorship-related event’ occurring, while proposed subsection 245AS(1) prohibits a person from providing or offering to provide a benefit in return for a ‘sponsorship-related event’ occurring. There is no need for the ‘sponsorship related-event’ to have actually occurred for a person to be found to have contravened either proposed subsection 245AR(1) or proposed subsection 245AS(1). In addition, a defence is available to those offering a legitimate professional service. The above provisions will not have been contravened if:

•       the benefit asked for, or received by the first person is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the first person or a third person or

•       the benefit offered, or provided by the first person is a payment of a reasonable amount for a professional service provided or to be provided by a second or third person.[52]

The Explanatory Memorandum clarifies:

it is not considered that the provision of immigration assistance or recruitment advice would normally constitute conduct that contravenes subsection 245AR(1), however, there may be situations in which ‘payment for visas’ conduct occurs in a context in which legitimate professional services are also being provided.[53]

The onus will be on the defendant to prove that the benefit constitutes a reasonable amount (proposed subsections 245AR(6) and 245AS(4)). The Explanatory Memorandum argues that it is necessary to reverse the onus of proof in this case as ‘the information as to whether the benefit constitutes a reasonable fee for a professional service is uniquely within the knowledge of the defendant’.[54] A person found to have contravened proposed subsection 245AR(1) will have committed an offence (with a maximum penalty of two years imprisonment and/or 360 penalty units)[55] or be liable for a civil penalty (with a maximum penalty of 240 penalty units).[56]

A person found to have contravened proposed subsection 245AS(1) will be liable for a civil penalty (with a maximum penalty of 240 penalty units).[57]

The Scrutiny of Bills Committee noted that subsections 245AR(5) and 245AS(1) (the civil penalty provisions) operate as strict liability penalties, due to the operation of section 486ZF of the Act, which provides that it is not necessary to prove a person’s state of mind in proceedings for a civil penalty order.[58] Due to the significant number of penalty units imposed, the Committee sought further justification from the Minister.[59] At the time of writing this Digest, the Committee had not published any response received from the Minister.

The Department has argued that these penalties are needed in order to deter businesses and visa holders from engaging in ‘payment for visas’ conduct:

To protect the integrity of Australia’s migration programme, the penalties must be set sufficiently high to cover any potential gain and to discourage or deter people from this conduct. The high maximum penalties for the criminal offence and civil penalty provisions are commensurate with anecdotal evidence as to the upper limits of amounts paid in ‘payment for visas’ cases and the severity of the consequences of ‘payment for visas’ conduct whilst remaining proportionate with other offences under the [Act]. For example, section 233D-Supporting the offences of people smuggling and section 233E-Concealing and harbouring non-citizens etc. both carry a much heavier maximum penalty of imprisonment for 10 years or 1,000 penalty units, or both.[60]

It is also relevant to note the way in which the Department plans to punish less serious instances of the prohibited conduct:

The criminal offence and civil penalty framework is only one aspect of the Department’s options to mitigate and respond to unlawful conduct in the migration programme. It is intended that complementary changes will be introduced into the Regulations to allow the application of established administrative sanctions to apply to less serious instances of the conduct. This may include barring from future sponsorship, cancelling current sponsorship and the issuance of an infringement notice to sponsors involved in ‘payment for visas’ conduct. Under the intended infringement notice provisions, a person alleged to have contravened a civil penalty provision may be served with an infringement notice giving the person an option of paying a fine of one-fifth of the maximum civil penalty as an alternative to civil penalty action being taken.[61]

However a number of stakeholders have raised concerns about the impact these proposed amendments will have on overseas workers, particular those on temporary visas who are particularly vulnerable:

Many visa applicants and visa holders have limited knowledge of Australian law and business culture and come from cultures where it may be common practice to provide a “benefit” of some kind in return for job placement or other services. Further, as the media investigation into the 7-Eleven labour practices has highlighted, temporary visa holders are vulnerable to exploitative employers and can be coerced into breaches of the law which cements the exploitative situation.[62]

The ACTU stated that while the issue of worker exploitation has recently been the subject of much media attention, these recent revelations are simply the latest in a long history of cases:

A recurring theme with these cases is the vulnerable situation the temporary visa holders were in, whether that was influenced by their desire to stay in Australia or achieve permanent residency, the fear of retribution if they spoke out, their lack of knowledge of their workplace rights, their poor English, the spectre of a debt hanging over them, or a combination of all these factors. In many cases, it is their direct employer who is taking advantage of them, but in others it is an agent of some description based in Australia or the home country of the visa holder. In some cases, employers and agents are acting together in organised scams which are more akin to labour trafficking and even slavery. In all cases, workers are left disillusioned with their experience of working in Australia.[63]

The ACTU argued that the provisions should only target employers or other persons who seek to exploit workers and that there is no good policy reason to also penalise migrant workers.[64] It does appear somewhat inconsistent for the Department to claim that these provisions are required in order to protect overseas workers who may be more vulnerable to exploitation and extortion and then subject overseas workers to the same financial penalty as those seeking to exploit them.[65]

While the Department refers to cases where some employers have sought to take advantage of visa holders, there does not appear to be any evidence of situations where overseas workers have offered or provided payments on their own initiative.[66] The proposed provisions contain no exceptions to cover situations where an overseas worker has been pressured or coerced into offering or providing a benefit. Thus, it may be the case that instead of reducing the risk of exploitation of overseas workers, the proposed provisions will actually result in them being put in a more vulnerable position then they are currently in.

New subsections 245AT and 245AU respectively set out the criminal and civil liability of executive officers of bodies corporate for offences listed under new Subdivision D. An executive officer is considered to be a director, the chief executive officer, the chief financial officer or the secretary of the body corporate (see definitions in proposed section 245AQ). The executive officer will be considered to be liable for the actions of the body corporate where the body corporate commits an offence against, or contravenes a civil penalty provision of, proposed subdivision D (‘sponsorship-related offence’) and the executive officer knew or was reckless or negligent as to whether the contravention would occur, the executive officer was in a position to influence the conduct of the body corporate and failed to take all reasonable steps to prevent the contravention from occurring.[67] An offence against section 245AT will result in the executive officer having committed an offence being liable to a maximum penalty of 360 penalty units.[68] Contravention of section 245AU will result in an executive officer being liable for a civil penalty with a maximum penalty of 240 penalty units.[69]

Proposed sections 245AX and 245AY provide that proposed subdivision D applies to partnerships and unincorporated associations as if they were a person, but with the changes set out in the respective sections.

Geographical scope

Proposed section 245AW extends the geographical scope of the offences and civil penalty provisions contained in proposed subdivision D.

Extended geographical jurisdiction for criminal offences

In relation to the criminal offences, proposed subsection 245AW(1) provides that extended geographical jurisdiction category B, as provided in section 15.2 of the Criminal Code Act 1995, applies.[70] Extended geographical jurisdiction category B already applies to offences against Subdivision C of Division 12 of Part 2 of the Act.[71]

Standard geographical jurisdiction

The standard geographical jurisdiction that applies to federal offences is set out at section 14.1 of the Criminal Code and will be satisfied if the relevant conduct occurs:

•       wholly or partly in Australia, or wholly or partly on an Australian ship or Australian aircraft or

•       wholly outside Australia and a result of the conduct occurs wholly or partly in Australia, or wholly or partly on an Australian ship or Australian aircraft.[72]

In relation to an ancillary offence (such as attempt, incitement or conspiracy to commit an offence[73]) the standard geographical jurisdictional requirement will also be satisfied if:

•       the conduct constituting the ancillary offence (for example, the attempt) occurs wholly outside Australia and

•       the conduct constituting the primary offence (for example, a person receiving a benefit in return for the occurrence of a sponsorship-related event) or a result of that conduct occurs, or is intended to occur, wholly or partly in Australia, or wholly or partly on an Australian ship or Australian aircraft.[74]

Section 14.1 of the Criminal Code provides for a defence in circumstances where the conduct occurs entirely in a foreign country (but not aboard an Australian ship or aircraft) and that foreign country does not have an offence that corresponds to the Australian offence. The defendant bears the evidential burden of establishing that the defence is applicable. This means that the defendant needs to adduce or point to evidence that suggests a reasonable possibility that the relevant circumstances exist.[75]  

Extended geographical jurisdiction

Under extended geographical jurisdiction category B, jurisdictional requirements are satisfied if:

•       standard geographical jurisdiction is met or

•       the relevant conduct occurs wholly outside Australia and the person charged was, at the time of the alleged offence, an Australian citizen, Australian resident or a body corporate incorporated in Australia.[76]

As is the case under standard geographical jurisdiction, a person will have a defence to a charge if the conduct occurs entirely in a foreign country (but not aboard an Australian ship or aircraft) and that foreign country does not have an offence that corresponds to the Australian offence, but this defence cannot be used if the defendant is an Australian citizen or Australian corporation. 

Extended geographical jurisdiction for civil penalties

In relation to the civil penalty provisions in proposed subdivision D, proposed subsection 245AW(2) largely reflects the extended jurisdiction relevant to criminal offences due to the application of section 15.2 of the Criminal Code, by providing that a civil penalty order against a person must not be made unless:

•       their prohibited conduct occurs wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship

•       their conduct occurs wholly outside Australia and they are an Australian citizen or resident or an Australian incorporated corporation or

•       all of the following conditions are satisfied—the offence constitutes an ancillary contravention (see above), the conduct occurs wholly outside Australia, and the conduct constituting the primary contravention occurs or is intended to occur wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.

Proposed subsections 245AW (3) and (4) create defences for contraventions of civil penalty provisions, which also mirror the defences set out under section 15.2 of the Criminal Code. Proposed subsection 245AW(3) provides that it is a defence in civil proceedings relating to a primary contravention if:

•       the conduct occurs wholly in a foreign country (but not on board an Australian aircraft or ship)

•       the offender is not an Australian citizen or Australian body corporate and

•       there is not in force an equivalent foreign law that penalises such conduct in the territory where the contravention occurs.

As is the case in relation to the criminal provisions, the onus is on the defendant to establish that one of the defences listed in proposed subsections 245AW (3) or (4) applies. The Scrutiny of Bills Committee raised concerns over the lack of justification for placing the evidential burden on the person who is alleged to have contravened a civil penalty provision, noting that it is not clear how information about a person’s citizenship/the place of incorporation of a body corporate can be considered information ‘peculiarly within the knowledge of the defendant’ nor ‘why it is appropriate to require a defendant to establish the legal position in the other country’.[77]

Power of the Minister to cancel visa when a person has engaged in ‘payment for visas’ activity

Section 116 of the Act sets out circumstances when the Minister may cancel a visa. Item 1 of the Bill inserts proposed subsection 116(1AC) into the Act which introduces a new ground for when the Minister may cancel a person’s visa. Specifically, proposed subsection 116(1AC) provides that the Minister has the discretion to cancel a person’s visa if satisfied that:

•       a ‘benefit’ was asked for or received by, or on behalf of, the visa holder from another person in return for the occurrence of a ‘sponsorship-related event’, or

•       a ‘benefit’ was offered or provided by, or on behalf of, the visa holder to another person in return for the occurrence of a ‘sponsorship-related event’.[78]

Proposed subsection 116(1AD) clarifies that it is irrelevant whether or not the ‘sponsorship-related event’ actually occurred. It is also irrelevant whether the person held a visa at the time the prohibited conduct occurred or whether the ‘sponsorship-related event’ relates to a visa held by the person.

Item 2 amends subsections 116(2) and (3) to allow for the Regulations to prescribe circumstances when the Minister cannot cancel a visa or when the Minister must cancel a visa under proposed subsection 116(1AC).

Item 4 inserts a reference to proposed subsection 116(1AC) into subsection 117(1) to ensure that the current rules setting out the point in time at which a visa can be cancelled also apply to visa cancellations under the new subsection.

The Scrutiny of Bills Committee questioned whether merits review will be available in relation to decisions made by the Minister pursuant to subsection 116(1AC).[79] Clarification was provided by the Department, which also highlighted that the Minister would weigh up a number of factors before deciding to cancel a person’s visa:

Visa cancellation is discretionary and, consistent with other cancellation powers in the Act, the visa holder would be afforded procedural fairness during the cancellation process. In considering whether to exercise the discretion to cancel, the Minister or delegate would consider a range of factors including the visa holder’s complicity in the ‘payment for visas’ conduct, the extent of the ‘payment for visas’ conduct, and whether a benefit was obtained as a result of the ‘payment for visas’ conduct. Other considerations would include the strength of the visa holder’s ties to Australia and contribution to the Australia community, as well as Australia’s international obligations such as the best interest of children, family unit and non-refoulement obligations.[80]

As with the new penalty provisions, a number of organisations have argued that the proposed amendments will have an adverse impact on overseas workers and will put ‘vulnerable applicants and trafficking victims at unacceptable risk of having their visa cancelled’.[81] The Law Society of South Australia noted that the amendments have been drafted very broadly and ‘would apply in respect of a person who has no knowledge that payment has been proposed or made in return for visa sponsorship’.[82]

The Federation of Ethic Communities’ Councils of Australia (FECCA) shared similar concerns:

Many visa holders fear losing their visa or being deported if they report misconduct and mistreatment to Fair Work Ombudsman and/or Department of Immigration and Border Protection. Visa holders will be less likely to come forward about payment for sponsorship arrangements if they fear the cancellation of their visa and/or being subject to substantial civil penalty provisions. These penalties give employers leverage over their employees; if temporary visa holders report their employer for unlawful conduct, it may result in their own visa cancellation.[83]

It is also relevant to note that the proposed amendments contain no exceptions for situations where a visa holder was exploited or tricked into offering or providing a benefit. The amendments may also discourage visa holders reporting their employer to the Department or from making a complaint to a union or non-government organisation for fear of being reported.[84] It is also argued that, as a result of the proposed visa cancellation power, visa holders will be in a worse position than their employers for committing the same offence:

The ease with which the Minister will be able to cancel a visa, over the difficulty of obtaining enough evidence to mount a successful civil prosecution means the Bill is likely to result in the visas of many trafficked and exploited workers being cancelled with few successful prosecutions of those who have trafficked or exploited them. This is particularly the case as most of the offers of a sponsorship-related event are made verbally, so the only evidence of the offer being made is the verbal evidence of both the visa holder and the sponsor. Both will now be given an incentive not to report the new offence.[85]

While the Department has clarified that the Minister or his delegates will consider a ‘range of factors’ when making a determination to cancel a person’s visa these are not included in the proposed provisions. The LIV expressed concern about the level of training to be provided to delegates and argued that ‘given the significant consequences of the exercise of the power and the fact that it may be exercised by delegates of the Minister, safeguards are desirable and necessary’.[86]

Expansion of investigation powers and powers of inspectors

Item 5 amends paragraph 140X(aa) to allow the powers of an inspector under Subdivision F of Division 3A of Part 2 of the Act to be exercised for the purposes of investigating whether a person who is or was an approved sponsor, and therefore obliged to satisfy a sponsorship obligation, has committed an offence, or contravened a civil penalty provision, under new Subdivision D of Division 12 of Part 2.[87]

Subdivision F sets out a number of powers that can be exercised by inspectors, including the power to enter any place or business premises, the power to inspect any work, process or object on the premises, the power to interview any person and the power to inspect, and make copies of, any record or document on the premises. In particular, subsection 140XG(1) provides that where a person has been requested to provide a record or document by an inspector, they cannot refuse to do so even if this might incriminate them or expose them to some form of penalty. Subsection 140XG(2) provides that the record or document produced is not admissible in criminal proceedings (including any information obtained as result of the production of the document or record) except in relation to certain offences where the person is alleged to have produced false or misleading information or documents.

Item 8 renames Part 8E of the Act from ‘Investigation powers relating to work-related offences and provisions’ to ‘Investigation powers relating to certain offences and provisions’ to reflect that the investigation powers under this part will now be expanded to include the new ‘sponsorship-related offences’ in Subdivision D and not just work related offences. Items 9-11 insert references to ‘sponsorship-related offences’ in order to clarify that the provisions requiring a person to give information or produce documents or to comply with a search warrant will now apply to persons suspected of having committed a ‘sponsorship-related offence’.

Item 12 amends section 487A to define ‘sponsorship-related offence’ to mean in effect those offences set out in Subdivision D relating to ‘payment for visas’ activity. Item 13 repeals paragraphs 487B(1)(a) and (b) and inserts proposed paragraphs 487B(1)(a) to (d), to allow the Secretary or Australian Border Force Commissioner, by way of written notice, to require a person to give information, or to produce documents, to an authorised officer where they believe that the person has information or a document relevant to a possible ‘sponsorship related offence’ or a possible contravention of a ‘sponsorship-related provision’ (defined in item 12 as a civil penalty provision in subdivision D).

As with the amendments to section 140XG (discussed above), items 14 and 15 amend section 487C to expand the abrogation of the privilege against self-incrimination to ‘sponsorship-related offences’ in Subdivision D. Subsection 487C(1) provides that a person who is required, under section 487B, to provide information or produce a document, cannot refuse to do so on the basis that this might incriminate them or expose them to a penalty. Subsection 487C(2) then provides that the record or document produced, and any information or document acquired as a consequence, is not admissible in certain court proceedings. Put another way, the subsection provides a qualified use and derivative use immunity. If amended as proposed by items 14 and 15 of the Bill, paragraphs 487C(2)(d) and (e) will provide that information or documents produced, or obtained as a consequence are not admissible:

(d)              in criminal proceedings (other than proceedings for an offence against section 137.1 or 137.2 of the Criminal Code that relates to Subdivision C or D of Division 12 of Part 2 of this Act); or

(e)               in civil proceedings (other than proceedings for a civil penalty order for an alleged contravention of a sponsorship-related provision or a work-related provision).

In relation to the proposed amendment to paragraph 487C(1)(d), the Explanatory Memorandum to the Bill states:

The effect of this amendment is that information or a document required to be given by a person under section 487B may be used in criminal proceedings against the person in relation to a sponsorship-related offence under new Subdivision D of Division 12 of Part 2 of the Act, but is not admissible evidence against the person in any other criminal proceedings.[88]

However, that assessment does not appear to reflect the actual effect of the proposed amendment. As set out above, the amended paragraph would provide that the criminal proceedings in which the information and documents are admissible are limited to proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (which relate to the provision of false or misleading information or documents) that relates to Subdivision C or D of Division 12 of Part 2 of the Migration Act. This would not appear to extend admissibility to proceedings for offences against Subdivision C or D of Division 12 of Part 2 of the Migration Act per se. This interpretation is supported by the Explanatory Memorandum to the Migration Amendment (Reform of Employer Sanctions) Bill 2012, which inserted section 487 into the Migration Act.[89] That Explanatory Memorandum stated:

Subsection 487C(2) protects individuals from information given or documents produced in response to a notice under new section 487B from being admissible in evidence against them in criminal proceedings (except for certain offences under the Criminal Code) and the majority of civil penalty proceedings. It does not, however, protect individuals from the document or information being admissible in evidence against them in proceedings for a civil penalty order for an alleged contravention of a work-related provision (emphasis added).[90]   

Based in part on the assessment of the impact on item 14 as set out in the Explanatory Memorandum to the Bill, the Scrutiny of Bills Committee raised concerns over from the abrogation of the privilege against self-incrimination in proposed paragraphs 487C(2)(d) and (e).[91] The Committee noted that the justification provided by the Department was insufficiently compelling and it had not been established that the relevant information could not be obtained by other lawful means.[92]

Item 17 allows for search warrants to be issued in relation to a ‘sponsorship-related offence’ or a ‘sponsorship related provision’.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500

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[1].              Migration Act 1958, accessed 10 November 2015.

[2].              Explanatory Memorandum, Migration Amendment (Charging for a Migration Outcome) Bill 2015, pp. 1–2.

[3].              Ibid., p. 1.

[4].              P Dutton (Minister for Immigration and Border Protection), ‘Second reading speech: Migration Amendment (Charging for a Migration Outcome) Bill 2015’, Senate, Debates, 16 September 2015, p. 10350, accessed 10 November 2015.

[5].              Explanatory Memorandum, Migration Amendment (Charging for a Migration Outcome) Bill 2015, op. cit., p. 1.

[6].              M Cash (Assistant Minister for Immigration and Border Protection), Independent review of 457 visa programme, media release, 25 February 2014, accessed 21 October 2015.

[7].                            J Azarias, J Lambert, P McDonald and K Malyon, Robust new foundations – a streamlined, transparent and responsive system for the 457 programme, report prepared for the Department of Immigration and Border Protection (DIBP), DIBP, September 2014, accessed 21 October 2015.

[8].                            Ibid., pp. 14–20.

[9].              Ibid., p. 73.

[10].              J Azarias et al, Robust new foundations – a streamlined, transparent and responsive system for the 457 programme, op. cit., p. 73.

[11].              DIBP, ‘Government response to the Independent Review into the integrity of the subclass 457 programme’, DIBP website, accessed 21 October 2015.

[12].              P Dutton, ‘Second reading speech: Migration Amendment (Charging for a Migration Outcome) Bill 2015’, House of Representatives, Debates, 16 September 2015, p. 10350, accessed 12 November 2015.

[13].              Ibid., p. 10351.

[14].              Selection of Bills Committee, Report, 12, 2015, The Senate, 17 September 2015.

[15].              Senate Legal and Constitutional Affairs Committee, Submissions, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, accessed 11 November 2015.

[16].              Senate Legal and Constitutional Affairs Committee, Migration Amendment (Charging for a Migration Outcome) Bill 2015 [Provisions], The Senate, Canberra, 10 November 2015, p. vii, accessed 11 November 2015.

[17].              The provisions that the Greens have recommended are removed from the Bill would allow the Minister to cancel a visa if the visa holder asked for, received, offered or provided a benefit in return for a sponsorship-related event (item 1) and prohibit offering or providing  a benefit in return for the occurrence of a sponsorship-related event (proposed section 245AS (at item 6)). (The Dissenting report as originally published incorrectly referred to section 245AR, rather than 245AS.) Senator Hanson-Young, Dissenting report from the Australian Greens, Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, The Senate, Canberra, 10 November 2015, accessed 11 November 2015.

[18].              Senate Legal and Constitutional Affairs Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, The Senate, Canberra, 2015, accessed 9 November 2015.

[19].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 11, 2015, The Senate, 14 October 2015, pp. 20–25.

[20].              Ibid., pp. 21–25.

[21].              R Marles (Shadow Minister for Immigration and Border Protection), ‘Second reading speech: Migration Amendment (Charging for a Migration Outcome) Bill 2015’, House of Representatives, Debates, 10 November 2015, p. 9.

[22].              Ibid.

[23].              Ernst & Young, Submission to Senate Education and Employment References Committee, Inquiry into the impact of Australia's temporary work visa programs on the Australian labour market and on the temporary work visa holders, Submission 24, May 2015, p. 8, accessed 21 October 2015.

[24].              Ibid.

[25].              Ernst & Young, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, 8 October 2015, p. 1, accessed 21 October 2015.

[26].              Ibid., p. 3.

[27].              Ibid., p. 3.

[28].              Law Institute of Victoria (LIV), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, October 2015, p. 4, accessed 21 October 2015.

[29].              Joo-Cheong Tham, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, 8 October 2015, p. 5, accessed 21 October 2015.

[30].              Migration Institute of Australia (MIA), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, October 2015, accessed 21 October 2015, p. 3.

[31].              Ibid., pp. 3–4.

[32].              Australian Council for Trade Unions (ACTU), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, 8 October 2015, p. 3, accessed 21 October 2015.

[33].              Explanatory Memorandum, op. cit., p. 2.

[34].              The Statement of Compatibility with Human Rights can be found at page 28 of the Explanatory Memorandum to the Bill.

[35].              International Covenant on Economic, Social and Cultural Rights, done in New York on 16 December 1966, [1976] ATS 5 (entered into force for Australia on 10 March 1976); International Covenant on Civil and Political Rights, done in New York on 16 December 1966, [1980] ATS 23 (entered into force for Australia (except Art. 41) on 13 November 1980; Art. 41 came into force for Australia on 28 January 1994).

[36].              Explanatory Memorandum, op. cit., p. 29.

[37].              Parliamentary Joint Committee on Human Rights, Twenty-ninth report of the 44th Parliament, p. 2, 13 October 2015, accessed 11 November 2015.

[38].              Migration Act 1958, accessed 10 November 2015.

[39].              Explanatory Memorandum, op. cit., p. 7.

[40].              DIBP, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, October 2015, p. 5, accessed 21 October 2015.

[41].              LIV, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, op. cit., p. 8.

[42].              The Australian Industry Group, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, 8 October 2015, pp. 1-2, accessed 21 October 2015.

[43].              Ibid., p. 1.

[44].              Ernst & Young, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, op. cit., p. 2; MIA, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, op. cit., pp. 3-4.

[45].              DIBP, Submission, op. cit., p. 5.

[46].              Explanatory Memorandum, op. cit., p. 8.

[47].              Table item 26, subsection 44(2), Legislative Instruments Act 2003, accessed 26 October 2015.

[48].              Explanatory Memorandum, op. cit., p. 8.

[49].              P Dutton, ‘Second reading speech: Migration Amendment (Charging for a Migration Outcome) Bill 2015’, Senate, Debates, 16 September 2015, p. 10351.

[50].              DIBP, Submission, op. cit., p. 7.

[51].              Migration Regulations 1994, Regulation 2.58, accessed 9 November 2015.

[52].              Proposed subsections 245AR(3) and 245AS(3).

[53].              Explanatory Memorandum, op. cit., pp. 9–10.

[54].              Ibid., p. 10.

[55].              This equates to $64,800 for an individual and $324,000 for a body corporate: see section 4AA (which provides that a penalty unit is equal to $180) and subsection 4B(3), Crimes Act 1914.

[56].              This equates to $43,200 for an individual and $216,000 for a body corporate: see subsection 486R(5), Migration Act 1958 and section 4AA, Crimes Act 1914.

[57].              Ibid.

[58].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., p. 24.

[59].              Ibid., p. 25.

[60].              DIBP, Submission, op. cit., p. 8.

[61].              Ibid.

[62].              Ernst & Young, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, op. cit., p. 4.

[63].              ACTU, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, op. cit., p. 4.

[64].              Ibid., p. 3.

[65].              Explanatory Memorandum, op. cit., p. 29.

[66].              Ibid.

[67].              Proposed subsections 245AT(1) and 245AU(1). Proposed subsections 245AT(2) and 245AU(3) set out the matters a court must have regard to in determining whether an executive officer failed to take all reasonable steps to prevent the sponsorship-related offence or contravention from occurring.

[68].              This equates to $64,800: see section 4AA, Crimes Act 1914.

[69].              This equates to $43,200: see section 4AA, Crimes Act 1914.

[70].              Criminal Code Act 1995, accessed 11 November 2015.

[71].              Section 245AM of the Migration Act 1958.

[72].              Section 14.1 of the Criminal Code. See also: I Leader-Elliott, The Commonwealth Criminal Code—A guide for practitioners, report prepared for Attorney-General’s Department (AGD) and the Australian Institute of Judicial Administration, AGD, Canberra, March 2002, p. 357, accessed 11 November 2015.     

[73].              See Division 11 of the Criminal Code.  

[74].              Section 15.2 of the Criminal Code.

[75].              Section 13.3 of the Criminal Code.

[76].              Section 15.2 of the Criminal Code. See also: Attorney-General’s Department and Australian Institute of Judicial Administration, op. cit., pp. 361–363.

[77].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., pp. 23–24.

[78].              Item 3 of the Bill clarifies that ‘sponsorship-related event’ and ‘benefit’ are defined under proposed section 245AQ (discussed above).

[79].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., p. 20.

[80].              DIBP, Submission, op. cit., p. 9.

[81].              The Law Society of South Australia, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, 9 October 2015, p. 1, accessed 21 October 2015.

[82].              Ibid.

[83].              Federation of Ethic Communities’ Council of Australia (FECCA), Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, 8 October 2015, p. 2, accessed 21 October 2015.

[84].              Justice and International Mission Unit, Synod of Victoria and Tasmania, Uniting Church in Australia; The Freedom Partnership – to End Modern Slavery, the Salvation Army; the National Union of Workers; and Harris Wake Pty Ltd, Submission to Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Migration Amendment (Charging for a Migration Outcome) Bill 2015, 8 October 2015, p. 4, accessed 21 October 2015.

[85].              Ibid.

[86].              LIV, Submission, op. cit., p. 6.

[87].              Subsection 140H(1) provides that a person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations.

[88].              Explanatory Memorandum, op. cit., p. 25.

[89].              Parliament of Australia, ‘Migration Amendment (Reform of Employer Sanctions) Bill 2012 homepage’, Australian Parliament website accessed 11 November 2015.

[90].              Explanatory Memorandum, Migration Amendment (Reform of Employer Sanctions) Bill 2012, p. 78, accessed 11 November 2015

[91].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, op. cit., pp. 21–22.

[92].              Ibid., p. 22.