Migration Amendment Regulation 2013 (No. 3)
Select Legislative Instrument No. 76, 2013
I, Quentin Bryce AC CVO, Governor‑General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following regulation under the Migration Act 1958.
Dated 16 May 2013
Quentin Bryce
Governor‑General
By Her Excellency’s Command
Brendan O’Connor
Minister for Immigration and Citizenship
Contents
1............ Name of regulation.............................................................................. 1
2............ Commencement................................................................................... 1
3............ Authority............................................................................................. 1
4............ Schedule(s)......................................................................................... 1
Schedule 1—Amendments 2
Migration Regulations 1994 2
1 Name of regulation
This regulation is the Migration Amendment Regulation 2013 (No. 3).
2 Commencement
This regulation commences on the commencement of Schedule 1 to the Migration Amendment (Reform of Employer Sanctions) Act 2013.
3 Authority
This regulation is made under the Migration Act 1958.
4 Schedule(s)
Each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1—Amendments
Migration Regulations 1994
1 Paragraph 2.103(2)(g)
Omit “section 140R”, substitute “section 506A”.
2 At the end of regulation 5.19B
Add:
Note: Regulations 5.19C to 5.19F are reserved for future use.
3 After Division 5.3
Insert:
Division 5.3A—Offences and civil penalties in relation to work by non‑citizens
5.19G Allowing an unlawful non‑citizen to work
(1) For paragraph 245AB(2)(a) of the Act, the computer system operated by the Department, and known as “Visa Entitlement Verification Online”, or “VEVO”, is prescribed.
(2) For paragraph 245AB(2)(b) of the Act, each of the following is a prescribed thing:
(a) the entry into a contract under which a party to the contract performs either or both of the following functions:
(i) verifying that a person has the required permission to work in Australia (however that is described in the contract);
(ii) supplying persons who have the required permission to work in Australia (however that is described in the contract);
(b) the inspection of:
(i) a document that appears to be the worker’s Australian passport; or
(ii) a document that appears to be the worker’s New Zealand passport; or
(iii) a document that appears to be the worker’s Australian certificate of citizenship, accompanied by a form of identification featuring a photograph of the worker; or
(iv) a document that appears to be a certificate of evidence of the worker’s Australian citizenship, accompanied by a form of identification featuring a photograph of the worker; or
(v) a document that appears to be the worker’s Australian birth certificate, accompanied by a form of identification featuring a photograph of the worker; or
(vi) a document that appears to be a Certificate of Evidence of Resident Status for the worker, accompanied by a form of identification featuring a photograph of the worker; or
(vii) a document that appears to be a Certificate of Status for New Zealand Citizens in Australia for the worker, accompanied by a form of identification featuring a photograph of the worker.
Example: An example of a form of identification is a driver’s licence.
Note: Subsection 245AB(1) of the Act does not apply if reasonable steps are taken at reasonable times to verify that a worker is not an unlawful non‑citizen, including (but not limited to) either of the following steps:
(a) using a computer system prescribed by the regulations to verify that matter;
(b) doing any one or more things prescribed by the regulations.
5.19H Allowing a lawful non‑citizen to work in breach of a work‑related condition
(1) For paragraph 245AC(2)(a) of the Act, the computer system operated by the Department, and known as “Visa Entitlement Verification Online”, or “VEVO”, is prescribed.
(2) For paragraph 245AC(2)(b) of the Act, each of the following is a prescribed thing:
(a) the entry into a contract under which a party to the contract performs either or both of the following functions:
(i) verifying that a person has the required permission to work in Australia (however that is described in the contract);
(ii) supplying persons who have the required permission to work in Australia (however that is described in the contract);
(b) the inspection of:
(i) a document that appears to be the worker’s Australian passport; or
(ii) a document that appears to be the worker’s New Zealand passport; or
(iii) a document that appears to be the worker’s Australian certificate of citizenship, accompanied by a form of identification featuring a photograph of the worker; or
(iv) a document that appears to be a certificate of evidence of the worker’s Australian citizenship, accompanied by a form of identification featuring a photograph of the worker; or
(v) a document that appears to be the worker’s Australian birth certificate, accompanied by a form of identification featuring a photograph of the worker; or
(vi) a document that appears to be a Certificate of Evidence of Resident Status for the worker, accompanied by a form of identification featuring a photograph of the worker; or
(vii) a document that appears to be a Certificate of Status for New Zealand Citizens in Australia for the worker, accompanied by a form of identification featuring a photograph of the worker.
Example: An example of a form of identification is a driver’s licence.
Note: Subsection 245AC(1) of the Act does not apply if reasonable steps are taken at reasonable times to verify that a worker is not in breach of a work‑related condition solely because of doing the work referred to in that subsection, including (but not limited to) either of the following steps:
(a) using a computer system prescribed by the regulations to verify that matter;
(b) doing any one or more things prescribed by the regulations.
5.19J Referring an unlawful non‑citizen for work
(1) For paragraph 245AE(2)(a) of the Act, the computer system operated by the Department, and known as “Visa Entitlement Verification Online”, or “VEVO”, is prescribed.
(2) For paragraph 245AE(2)(b) of the Act, each of the following is a prescribed thing:
(a) the entry into a contract under which a party to the contract performs the function of verifying that a person has, or will have, the required permission to work in Australia (however that is described in the contract);
(b) the inspection of:
(i) a document that appears to be the prospective worker’s Australian passport; or
(ii) a document that appears to be the prospective worker’s New Zealand passport; or
(iii) a document that appears to be the prospective worker’s Australian certificate of citizenship, accompanied by a form of identification featuring a photograph of the prospective worker; or
(iv) a document that appears to be a certificate of evidence of the prospective worker’s Australian citizenship, accompanied by a form of identification featuring a photograph of the prospective worker; or
(v) a document that appears to be the prospective worker’s Australian birth certificate, accompanied by a form of identification featuring a photograph of the prospective worker; or
(vi) a document that appears to be a Certificate of Evidence of Resident Status for the prospective worker, accompanied by a form of identification featuring a photograph of the prospective worker; or
(vii) a document that appears to be a Certificate of Status for New Zealand Citizens in Australia for the prospective worker, accompanied by a form of identification featuring a photograph of the prospective worker.
Example: An example of a form of identification is a driver’s licence.
Note: Subsection 245AE(1) of the Act does not apply if reasonable steps are taken at reasonable times before the referral to verify that a prospective worker is not an unlawful non‑citizen, including (but not limited to) either of the following steps:
(a) using a computer system prescribed by the regulations to verify that matter;
(b) doing any one or more things prescribed by the regulations.
5.19K Referring a lawful non‑citizen for work in breach of a work‑related condition
(1) For paragraph 245AEA(2)(a) of the Act, the computer system operated by the Department, and known as “Visa Entitlement Verification Online”, or “VEVO”, is prescribed.
(2) For paragraph 245AEA(2)(b) of the Act, each of the following is a prescribed thing:
(a) the entry into a contract under which a party to the contract performs the function of verifying that a person has, or will have, the required permission to work in Australia (however that is described in the contract);
(b) the inspection of:
(i) a document that appears to be the prospective worker’s Australian passport; or
(ii) a document that appears to be the prospective worker’s New Zealand passport; or
(iii) a document that appears to be the prospective worker’s Australian certificate of citizenship, accompanied by a form of identification featuring a photograph of the prospective worker; or
(iv) a document that appears to be a certificate of evidence of the prospective worker’s Australian citizenship, accompanied by a form of identification featuring a photograph of the prospective worker; or
(v) a document that appears to be the prospective worker’s Australian birth certificate, accompanied by a form of identification featuring a photograph of the prospective worker; or
(vi) a document that appears to be a Certificate of Evidence of Resident Status for the prospective worker, accompanied by a form of identification featuring a photograph of the prospective worker; or
(vii) a document that appears to be a Certificate of Status for New Zealand Citizens in Australia for the prospective worker, accompanied by a form of identification featuring a photograph of the prospective worker.
Example: An example of a form of identification is a driver’s licence.
Note: Subsection 245AEA(1) of the Act does not apply if reasonable steps are taken at reasonable times before the referral to verify that a prospective worker will not be in breach of a work‑related condition solely because of doing the work in relation to which he or she is referred, including (but not limited to) either of the following steps:
(a) using a computer system prescribed by the regulations to verify that matter;
(b) doing any one or more things prescribed by the regulations.
4 Regulation 5.20A
Repeal the regulation, substitute:
5.20A Infringement notices—penalty payable to the Commonwealth for section 140Q, 140XE, 140XF, 245AB, 245AC, 245AE or 245AEA of the Act
Sponsorship‑related civil penalty provisions
(1) For subsection 506A(1) of the Act, a person who is alleged to have contravened subsection 140Q(1), 140Q(2), 140XE(3) or 140XF(3) of the Act may pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.
(2) If the person has previously been issued an infringement notice for an alleged contravention of any of those subsections, or has been ordered by a Court to pay a pecuniary penalty for a contravention of any of those subsections, the penalty is:
(a) in the case of a natural person—12 penalty units; or
(b) in the case of a body corporate—60 penalty units.
(3) If subregulation (2) does not apply, the penalty is:
(a) in the case of a natural person—6 penalty units; or
(b) in the case of a body corporate—30 penalty units.
Work‑related civil penalty provisions
(4) For subsection 506A(1) of the Act, a person who is alleged to have contravened subsection 245AB(5), 245AC(5), 245AE(5) or 245AEA(5) of the Act may pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.
(5) If the person has previously been issued an infringement notice for an alleged contravention of any of those subsections, or has been ordered by a Court to pay a pecuniary penalty for a contravention of any of those subsections, the penalty is:
(a) in the case of a natural person—18 penalty units; or
(b) in the case of a body corporate—90 penalty units.
(6) If subregulation (5) does not apply, the penalty is:
(a) in the case of a natural person—9 penalty units; or
(b) in the case of a body corporate—45 penalty units.
5 Subregulation 5.21(1)
Omit “(1) In this Division:”, substitute “In this Division:”.
6 Subregulation 5.21(1)
Insert:
civil penalty provision means any of the following provisions of the Act:
(a) subsection 140Q(1);
(b) subsection 140Q(2);
(c) subsection 140XE(3);
(d) subsection 140XF(3);
(e) subsection 245AB(5);
(f) subsection 245AC(5);
(g) subsection 245AE(5);
(h) subsection 245AEA(5).
7 Subregulation 5.21(1), definition of prescribed penalty
Repeal the definition, substitute:
prescribed penalty means the penalty prescribed by regulation 5.20 for an offence.
8 Subregulation 5.21(1)
Insert:
sponsorship‑related civil penalty provision means any of the following provisions of the Act:
(a) subsection 140Q(1);
(b) subsection 140Q(2);
(c) subsection 140XE(3);
(d) subsection 140XF(3).
9 Subregulation 5.21(1)
Insert:
work‑related civil penalty provision means any of the following provisions of the Act:
(a) subsection 245AB(5);
(b) subsection 245AC(5);
(c) subsection 245AE(5);
(d) subsection 245AEA(5).
10 Subregulation 5.21(1), notes 1 and 2
Repeal the notes, substitute:
Note: Section 137 of the Act permits the Secretary to require information from the holder of a business visa.
Section 229 of the Act prohibits the carrying of persons to Australia without visas.
Section 230 of the Act makes it an offence to have an unlawful non‑citizen concealed on a vessel entering Australia.
Subsection 245L (2) of the Act establishes an obligation on an operator of an aircraft or ship to report to the Department about passengers and crew prior to their arrival in Australia.
Subsection 245N (2) of the Act makes it an offence for an operator of an aircraft or ship to contravene subsection 245L (2).
11 Paragraph 5.23(1)(g)
Omit “notice; and”, substitute “notice.”.
12 Paragraph 5.23(1)(h)
Repeal the paragraph.
13 Subregulation 5.23(2)
Repeal the subregulation, substitute:
(2) An infringement notice for a contravention of a sponsorship‑related civil penalty provision must also state that if the provision is contravened after the day on which, or the period over which, the contravention specified in the notice occurred:
(a) the person will have contravened the provision again; and
(b) further action may be taken as mentioned in section 140K of the Act.
(3) An infringement notice for a contravention of a work‑related civil penalty provision must also state the grounds on which the infringement notice may be withdrawn.
(4) An infringement notice for a contravention of a work‑related civil penalty provision must also state that the grounds on which the infringement notice may be withdrawn are not exhaustive.
(5) An infringement notice may contain any other particulars that the authorised officer considers necessary.
