MIGRATION LEGISLATION AMENDMENT (WORKER PROTECTION) BILL 2008

i Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

Contents

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

Commencement .................................................................................. 1

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

Schedule 1--Migration Act 1958

Part 1--Amendments

Part 2--Transitional matters

Schedule 2--Taxation Administration Act 1953

Part 1--Amendment

Part 2--Application

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 1

A Bill for an Act to amend the law relating to

migration, and for other purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Migration Legislation Amendment

(Worker Protection) Act 2008.

2 Commence ment

(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.

2 Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedules 1

and 2

A single day to be fixed by Proclamation.

However, if any of the provision(s) do not

commence with in 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.

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repealed as set out in the applicable items in the Schedule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.

Migration Act 1958 Schedule 1

Amend ments Part 1

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 3

Schedule 1

Migration Act 1958

Part 1

Amendments

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

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(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

(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:

Migration Act 1958 Schedule 1

Amend ments Part 1

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 5

Subdivision A--Preliminary

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

Repeal the heading.

12 Sections 140B to 140D

Repeal the sections, substitute:

Subdivision B--Approving 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

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

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(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

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

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(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 C--Sponsorship 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;

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(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,

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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 D--Enforcement

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;

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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;

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

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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;

more people under the terms of one or more existing

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Part 1 A mend ments

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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.

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Amend ments Part 1

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 13

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

manner (if any) or within the period (if any) specified in the

work agreement.

Civil penalty:

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

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

140R Infringe ment 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 E--Liability 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

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Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 15

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

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;

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(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;

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 F--Inspectors

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.

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Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 17

(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

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.

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(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 Powe rs 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;

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.

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(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 Require ment 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;

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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

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

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 require ment 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.

Migration Act 1958 Schedule 1

Amend ments Part 1

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 21

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

(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 G--Application of Division to partnerships and

unincorporated associations

140ZB Partne rships--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.

Schedule 1 Migration Act 1958

Part 1 A mend ments

22 Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

(4) Subject to section 140ZC, the partners are jointly and severally

liable to pay an amount in relation to a sponsorship obligation.

140ZC Partne rships--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

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

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.

Migration Act 1958 Schedule 1

Amend ments Part 1

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 23

140ZD Partne rship 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

Schedule 1 Migration Act 1958

Part 1 A mend ments

24 Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

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

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

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

Migration Act 1958 Schedule 1

Amend ments Part 1

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 25

(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 H--Miscellaneous

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 ...

a visa holder

(a) an approved sponsor of the visa

holder; or

(b) a former approved sponsor of

the visa holder; or

Co mmonwealth or a State or

Territory prescribed by the

regulations

a former visa holder

(a) an approved sponsor of the visa

holder; or

(b) a former approved sponsor of

the visa holder; or

Co mmonwealth or a State or

Territory prescribed by the

regulations

an approved sponsor of a

visa holder or an approved

(a) the visa holder; or

(b) a former visa holder; or

Schedule 1 Migration Act 1958

Part 1 A mend ments

26 Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

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 ...

sponsor of a former v isa

holder

Co mmonwealth or a State or

Territory prescribed by the

regulations

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

Co mmonwealth 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 pe rsonal 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:

Migration Act 1958 Schedule 1

Amend ments Part 1

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 27

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 ...

an approved sponsor or

former approved sponsor

of a visa holder

the visa holder

an approved sponsor or

former approved sponsor

of a former v isa holder

the former v isa 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

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 Unclaime d 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.

Schedule 1 Migration Act 1958

Part 1 A mend ments

28 Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

140ZK Other regulation making powe rs 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.

Migration Act 1958 Schedule 1

Amend ments Part 1

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 29

42 After Part 8C

Insert:

Part 8D--Civil penalties

Division 1--Obtaining 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

(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

Schedule 1 Migration Act 1958

Part 1 A mend ments

30 Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

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

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:

Migration Act 1958 Schedule 1

Amend ments Part 1

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 31

(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

(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.

Schedule 1 Migration Act 1958

Part 1 A mend ments

32 Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

Division 2--Civil 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 afte r 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

Migration Act 1958 Schedule 1

Amend ments Part 1

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 33

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 3--Miscellaneous

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)".

Schedule 1 Migration Act 1958

Part 2 Transitional matters

34 Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

Part 2

Transitional 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.

Migration Act 1958 Schedule 1

Transitional matters Part 2

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 35

(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:

Schedule 1 Migration Act 1958

Part 2 Transitional matters

36 Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

(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:

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

Migration Act 1958 Schedule 1

Transitional matters Part 2

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 37

(b) the person's application is not fina lly determined (within the

meaning of subsection 5(9) of the Migration Act 1958) before

the day on which this Schedule commences;

then:

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 2 Taxation Administration Act 1953

Part 1 A mend ment

38 Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

Schedule 2

Taxation Administration Act 1953

Part 1

Amendment

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);

Taxation Admin istration Act 1953 Schedule 2

Amend ment Part 1

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 39

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.

Schedule 2 Taxation Administration Act 1953

Part 1 A mend ment

40 Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008

(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.

Taxation Admin istration Act 1953 Schedule 2

Application Part 2

Migration Legislation Amendment (Worker Protection) Bill 2008 No. , 2008 41

Part 2

Application

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

(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.

Commonwealth of Australia Bills

MIGRATION LEGISLATION AMENDMENT (WORKER PROTECTION) BILL 2008