The Migration Amendment (Reform of Employer Sanctions) Act 2013 recieves Royal Assent

The Migration Amendment (Reform of Employer Sanctions) Act 2013 (‘Employer Sanctions Act’) received Royal Assent yesterday, signalling reform to laws dealing with people who employ or facilitate the employment of unlawful workers in Australia.

The Employer Sanctions Act is a response to the results of the 2010 Howells review of the Migration Amendment (Employer Sanctions) Act 2007, directed by Howells, an independent legal expert. The review examined the current measures in place and concluded that the then-existing employer sanctions framework was entirely unsuccessful in discouraging both employers and on-hire businesses in employing or referring non-citizens for work where they did not hold a suitable visa.
 

Key changes:

Significant reforms of the Employer Sanctions Act include the following: 
 

• A multi-layered system, with both criminal offence provisions and a new civil penalty and infringement notice scheme, for allowing or referring an unlawful non-citizen to work, or allowing or referring a lawful non-citizen to work in breach of a work related visa condition. It will not be required to prove fault in an application for a civil penalty order;  

• Creating statutory defences where reasonable steps are taken to check that a worker or potential worker has entitlement to work. To this end, the government will administer an online verification computer system for individuals and business to check a person’s visa status as well as any conditions that apply;

• Broadening the definition of ‘allows to work’ to extend the application of criminal offences and civil penalty provisions to hold a person liable for participating in an arrangement, or series of arrangements, that results in a non-citizen working without appropriate work rights;

• Extending both criminal and civil liability to executive officers of bodies corporate, partners in a partnership and members of an unincorporated associate’s committee of management, providing safeguards to those not involved in a work related offence; and

• Creating search warrant and notice to produce powers to assist the investigation of alleged breaches of these offences and civil penalties.

Implications for individuals and employers:
 

The new legislation is anticipated to result in increased use of penalties by the Department of Immigration & Citizenship (‘DIAC’) against individuals and employers.  Having the choice between pursuing civil penalty, infringement notices or criminal offence prosecution is designed to ensure that DIAC is no longer reluctant or unable to take action on employer non-compliance.
 

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