140XPurpose for which powers of inspectors may be exercised

140X  Purpose for which powers of inspectors may be exercised   The powers of an inspector under this Subdivision may be exercised:  (a) for the purpose of investigating whether a sponsorship obligation is being, or has been, complied with by a person who is or was an approved work sponsor; or  (aaa) for the purpose of investigating whether a person who is or was an approved work sponsor has contravened subsection 140RB(5); or  (aa) for the purpose of investigating whether a person who is or was an approved work sponsor has committed an offence, or contravened a civil penalty provision, under Subdivision C, D, E or F of Division 12 of this Part; or  (b) for a purpose prescribed by the regulations. 140XA  When powers of inspectors may be exercised   An inspector may exercise powers under this Subdivision:  (a) at any time during working hours; or  (b) at any other time, if the inspector reasonably believes that it is necessary to do so for the purposes referred to in section 140X. 140XB  Power of inspectors to enter premises or places  (1) An inspector may, without force, enter business premises or another place, if the inspector reasonably believes that there are records or documents relevant to the purposes referred to in section 140X on the premises or at the place, or accessible from a computer on the premises or at the place.  (2) The inspector must, either before or as soon as practicable after entering those premises or that place, show his or her identity card to the occupier, or another person who apparently represents the occupier, if the occupier or other person is present at the premises or place. 140XC  Powers of inspectors while on premises or at a place  (1) An inspector who enters premises or a place under section 140XB may exercise one or more of the following powers while on the premises or at the place:  (a) inspect any work, process or object;  (b) interview any person;  (c) require a person to tell the inspector who has custody of, or access to, a record or document;  (d) require a person who has the custody of, or access to, a record or document to produce the record or document to the inspector either while the inspector is on the premises or at the place, or within a specified period;  (e) inspect, and make copies of, any record or document that:  (i) is kept on the premises or at the place; or  (ii) is accessible from a computer that is kept on the premises or at the place.  (2) A Fair Work Inspector who enters premises or a place under the Fair Work Act 2009 for any compliance purpose under section 706 of that Act may, for a purpose mentioned in section 140X of this Act, exercise any of the powers mentioned in subsection (1) of this section while on the premises or at the place. Note: See also sections 140XG, 140XH and 140XI (which deal with self‑incrimination and produced documents etc.). 140XD  Persons assisting inspectors  (1) A person (the assistant) may accompany an inspector onto premises or to a place mentioned in subsection 140XC(1) to assist the inspector if:  (a) for any inspector—the Secretary or Australian Border Force Commissioner is satisfied that:  (i) the assistance is necessary and reasonable; and  (ii) the assistant has suitable qualifications and experience to properly assist the inspector; or  (b) for an inspector who is a Fair Work Inspector—the assistant is authorised to accompany the inspector onto the premises or to the place under section 710 of the Fair Work Act 2009 for any compliance purpose under section 706 of that Act.  (2) The assistant:  (a) may do such things on the premises or at the place as the inspector requires to assist the inspector to exercise powers under this Subdivision; but  (b) must not do anything that the inspector does not have power to do.  (3) Anything done by the assistant is taken for all purposes to have been done by the inspector. 140XE  Power to ask for person’s name and address  (1) An inspector may require a person to tell the inspector the person’s name and address if the inspector reasonably believes that the person has contravened a civil penalty provision.  (2) If the inspector reasonably believes that the name or address is false, the inspector may require the person to give evidence of its correctness.  (3) A person contravenes this subsection if:  (a) the inspector requires the person to do a thing referred to in subsection (1) or (2); and  (b) the inspector advises the person that he or she may contravene a civil penalty provision if he or she fails to comply with the requirement; and  (c) the inspector shows his or her identity card to the person; and  (d) the person does not comply with the requirement. Civil penalty: 60 penalty units.  (4) Subsection (3) does not apply if the person has a reasonable excuse. 140XF  Power to require persons to produce records or documents  (1) An inspector may require a person, by notice, to produce a record or document to the inspector.  (2) The notice must:  (a) be in writing; and  (b) be served on the person; and  (c) require the person to produce the record or document at a specified place within a specified period of at least 7 days. The notice may be served by sending the notice to the person’s fax number.  (3) A person contravenes this subsection if:  (a) the person is served with a notice to produce under subsection (1); and  (b) the person fails to comply with the notice. Civil penalty: 60 penalty units.  (4) Subsection (3) does not apply if the person has a reasonable excuse. 140XG  Self‑incrimination  (1) A person is not excused from producing a record or document under paragraph 140XC(1)(d), or subsection 140XF(1), on the ground that the production of the record or document might tend to incriminate the person or expose the person to a penalty.  (2) However, in the case of an individual, none of the following are admissible in evidence against the individual in criminal proceedings:  (a) the record or document produced;  (b) producing the record or document;  (c) any information, document or thing obtained as a direct or indirect consequence of producing the record or document; except in 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. 140XH  Certain records and documents are inadmissible   The following are not admissible in evidence in criminal proceedings against an individual:  (a) any record or document inspected or copied under paragraph 140XC(1)(e) of which the individual had custody, or to which the individual had access, when it was inspected or copied;  (b) any information, document or thing obtained as a direct or indirect consequence of inspecting or copying a record or document of which the individual had custody, or to which the individual had access, when it was inspected or copied under paragraph 140XC(1)(e). 140XI  Power to keep records or documents  (1) If a record or document is produced to an inspector in accordance with this Subdivision, the inspector may:  (a) inspect, and make copies of, the record or document; and  (b) keep the record or document for such period as is necessary.  (2) While an inspector keeps a record or document, the inspector must allow the following persons to inspect, or make copies of, the record or document at all reasonable times:  (a) the person who produced the record or document;  (b) any person otherwise entitled to possession of the record or document;  (c) a person authorised by the person referred to in paragraph (b). 140XJ  Disclosure of information by the Secretary or Australian Border Force Commissioner Information to which this section applies  (1) This section applies to the following information:  (a) information acquired by an inspector in the course of performing functions, or exercising powers, as an inspector under this Subdivision;  (b) information acquired by a person in the course of assisting an inspector under section 140XD. Disclosure that is necessary or appropriate, or likely to assist administration or enforcement  (2) The Secretary or Australian Border Force Commissioner may disclose, or authorise the disclosure of, the information if the Secretary or Australian Border Force Commissioner reasonably believes:  (a) that it is necessary or appropriate to do so in the course of performing functions, or exercising powers, under Division 3A of Part 2 of this Act; or  (b) that the disclosure is likely to assist in the administration or enforcement of a law of the Commonwealth, a State or a Territory. Subdivision G—Application of Division to partnerships and unincorporated associations 140ZB  Partnerships—sponsorship rights and obligations  (1) This Division, the regulations made under it and any other provision of this Act as far as it relates to this Division or the regulations, apply to a partnership as if it were a person, but with the changes set out in this section and sections 140ZC and 140ZD.  (2) A sponsorship right that would otherwise be exercisable by the partnership is exercisable by each partner instead.  (3) A sponsorship obligation that would otherwise be imposed on the partnership:  (a) is imposed on each partner instead; but  (b) may be discharged by any of the partners.  (4) Subject to section 140ZC, the partners are jointly and severally liable to pay an amount in relation to a sponsorship obligation. 140ZC  Partnerships—offences and civil penalties  (1) An offence against this Division that would otherwise be committed by a partnership is taken to have been committed by each partner in the partnership, at the time the offence is committed, who:  (a) did the relevant act or made the relevant omission; or  (b) aided, abetted, counselled or procured the relevant act or omission; or  (c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the partner).  (2) A civil penalty provision of this Division that would otherwise be contravened by a partnership is taken to have been contravened by each partner in the partnership, at the time of the conduct constituting the contravention, who:  (c) was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the partner).  (3) If a partner in a partnership contravenes a civil penalty provision, the civil penalty that may be imposed on the partner must not exceed an amount equal to one‑fifth of the maximum penalty that could be imposed on a body corporate for the same contravention.  (4) For the purposes of subsections (1) and (2), to establish that a partnership engaged in particular conduct, it is sufficient to show that the conduct was engaged in by a partner:  (a) in the ordinary course of the business of the partnership; or  (b) within the scope of the actual or apparent authority of the partner.  (5) For the purposes of subsection (1), to establish that a partnership had a particular state of mind when it engaged in particular conduct, it is sufficient to show that a relevant partner had the relevant state of mind. 140ZD  Partnership ceases to exist  (1) If a partnership ceases to exist, the persons who were partners immediately before the cessation must continue to satisfy any applicable sponsorship obligation.  (2) Section 140ZB applies as if:  (a) references to a partnership were to a partnership that ceases to exist; and  (b) references to partners of the partnership were to the persons who were partners immediately before the cessation.  (3) For the purpose of this section, a partnership ceases to exist if the dissolution of the partnership does not result in the creation of another partnership. 140ZE  Unincorporated associations—sponsorship rights and obligations  (1) This Division, the regulations made under it and any other provision of this Act as far as it relates to this Division or the regulations, apply to an unincorporated association as if it were a person, but with the changes set out in this section and sections 140ZF and 140ZG.  (2) A sponsorship right that would otherwise be exercisable by the unincorporated association is exercisable by each member of the association’s committee of management instead.  (3) A sponsorship obligation that would otherwise be imposed on the unincorporated association:  (a) is imposed on each member of the association’s committee of management instead; but  (b) may be discharged by any of those members.  (4) Subject to section 140ZF, the members are jointly and severally liable to pay an amount in relation to a sponsorship obligation. 140ZF  Unincorporated associations—offences and civil penalties  (1) An offence against this Division that would otherwise be committed by an unincorporated association is taken to have been committed by each member of the association’s committee of management, at the time the offence is committed, who:  (a) did the relevant act or made the relevant omission; or  (b) aided, abetted, counselled or procured the relevant act or omission; or  (c) was in any way knowingly concerned in, or party to, the relevant act or omission (whether directly or indirectly or whether by any act or omission of the member).  (2) A civil penalty provision of this Division that would otherwise be contravened by an unincorporated association is taken to have been contravened by each member of the association’s committee of management, at the time of the conduct constituting the contravention, who:  (c) was in any way knowingly concerned in, or party to, the conduct (whether directly or indirectly or whether by any act or omission of the member).  (3) If a member of an unincorporated association’s committee of management contravenes a civil penalty provision, the civil penalty that may be imposed on the member must not exceed an amount equal to one‑fifth of the maximum penalty that could be imposed on a body corporate for the same contravention.  (4) For the purposes of subsection (1), to establish that an unincorporated association had a particular state of mind when it engaged in particular conduct, it is sufficient to show that a relevant member of the association’s committee of management had the relevant state of mind. 140ZG  Unincorporated association ceases to exist  (1) If an unincorporated association ceases to exist, the persons who were members of the association’s committee of management immediately before the cessation must continue to satisfy any applicable sponsorship obligation.  (2) Section 140ZE applies as if:  (a) references to an unincorporated association were to an unincorporated association that ceases to exist; and  (b) references to members of the association’s committee of management were to the persons who were members immediately before the cessation.  (3) To avoid doubt, for the purpose of this section, an unincorporated association ceases to exist if the dissolution of the association does not result in the creation of another association. Subdivision H—Miscellaneous 140ZH  Disclosure of personal information by Minister Personal information about approved work sponsors etc.  (1) The Minister may disclose personal information of a prescribed kind about a person mentioned in column 2 of an item of the following table to a person or body mentioned in column 3 of the item:   - Disclosure of personal information - Item If the personal information is about ... then, the Minister may disclose that personal information to the following ... - 1 a person who is a holder of, or former holder of, a visa of a prescribed kind (however described) (a) an approved work sponsor of the person;(b) a former approved work sponsor of the person;(c) an agency of the Commonwealth, or of a State or Territory, prescribed by the regulations - 2 an approved work sponsor of, or former approved work sponsor of, a person mentioned in item 1 of this table (a) the person;(b) an agency of the Commonwealth, or of a State or Territory, prescribed by the regulations Personal information about approved family sponsors etc.  (1A) The Minister may disclose personal information of a prescribed kind about a person mentioned in column 2 of an item of the following table to a person or body mentioned in column 3 of the item:   - Disclosure of personal information - Item If the personal information is about ... then, the Minister may disclose that personal information to the following ... - 1 a person who proposes to apply for a visa of a prescribed kind (however described) (a) an applicant for approval as a family sponsor in relation to the person;(b) an approved family sponsor of the person;(c) an agency of the Commonwealth, or of a State or Territory, prescribed by the regulations - 2 a person who is an applicant for, or a holder or former holder of, a visa of a prescribed kind (however described) (a) an approved family sponsor of the person;(b) an agency of the Commonwealth, or of a State or Territory, prescribed by the regulations - 3 an applicant for approval as a family sponsor (a) a person who proposes to apply for a visa if the applicant is approved as a family sponsor;(b) an agency of the Commonwealth, or of a State or Territory, prescribed by the regulations - 4 an approved family sponsor of a person mentioned in item 1 or 2 of this table (a) the person;(b) an agency of the Commonwealth, or of a State or Territory, prescribed by the regulations - 5 a former approved family sponsor of a person who is an applicant for, or a holder of, a visa of a prescribed kind (however described) (a) the person;(b) an agency of the Commonwealth, or of a State or Territory, prescribed by the regulations Regulations may prescribe circumstances for disclosure etc.  (2) The regulations may prescribe circumstances in which the Minister may disclose the personal information under subsection (1) or (1A).  (3) The regulations may prescribe circumstances in which the recipient may use or disclose the personal information disclosed under subsection (1) or (1A). Notice of disclosure  (4) If the Minister discloses personal information under subsection (1) or (1A) (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. Note: The Minister may also publish personal information relating to actions taken under section 140K (sanctions for failing to satisfy sponsorship obligations) (see subsection 140K(4)). 140ZI  Disclosure of personal information to Minister  (1) For the purposes of this Division, the Minister may request a person mentioned in column 2 of the following table in relation to an item to disclose to the Minister personal information of a prescribed kind about a person mentioned in column 3 of the table in relation to the item:   - From whom the Minister may request disclosure of personal information - Item The Minister may request ... to disclose personal information of a prescribed kind to the Minister about ... - 1 an approved sponsor or former approved sponsor of a visa holder the visa holder - 2 an approved sponsor or former approved sponsor of a former visa holder the former visa holder  (2) For the purposes of:  (a) paragraph 6.2(b) of Australian Privacy Principle 6; and  (c) a provision of a law of a State or Territory that provides that information that is personal may be disclosed if the disclosure is authorised by law; the disclosure of information by a person in response to a request under this section is taken to be a disclosure that is authorised by this Act.  (3) Nothing in this section has the effect of authorising a disclosure that, despite subsection (2), is prevented by a law of the Commonwealth, a State or Territory. 140ZJ  Unclaimed money  (1) If a person who is or was an approved work sponsor has not paid an amount in relation to a sponsorship obligation because the person does not know the location of the intended recipient, the person may pay the amount to the Commonwealth.  (2) The Commonwealth holds the amount in trust for the intended recipient.  (3) Payment of the amount to the Commonwealth is a sufficient discharge to the person, as against the intended recipient, for the amount paid. 140ZK  Other regulation making powers not limited   Regulations made for the purposes of this Division do not limit the power to make regulations under any other provision of this or any other Act. 140ZL  Division binds the Crown  (1) This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.  (2) However, this Division does not make the Crown liable to be prosecuted for an offence.  (3) To avoid doubt, subsection (2) does not prevent the Crown being liable to pay a pecuniary penalty under this Division. Division 3B—Nominations 140ZM  Nomination training contribution charge  (1) A person is liable to pay nomination training contribution charge to the Commonwealth in relation to a nomination by the person under section 140GB if the nomination is a nomination of a kind prescribed by the regulations.  (2) A person applying under the regulations, or in accordance with the terms of a work agreement, for approval of a nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a visa, is liable to pay nomination training contribution charge to the Commonwealth in relation to the nomination if:  (a) the visa is of a kind (however described) prescribed by the regulations; and  (b) the nomination is a nomination of a kind prescribed by the regulations. 140ZN  Regulations about nomination training contribution charge  (1) The regulations may make provision for, or in relation to, all or any of the following matters:  (a) when nomination training contribution charge is due and payable;  (b) the method of paying nomination training contribution charge (including the currency in which the charge must be paid);  (c) the remission or refund of nomination training contribution charge;  (d) the overpayment or underpayment of nomination training contribution charge;  (e) the payment of a penalty in relation to the underpayment of nomination training contribution charge;  (f) the giving of information and keeping of records relating to a person’s liability to pay nomination training contribution charge.  (2) For the purposes of paragraph (1)(e), the penalty payable must be a civil penalty not exceeding 60 penalty units. 140ZO  Recovery of nomination training contribution charge and late payment penalty   If an amount of:  (a) nomination training contribution charge; or  (b) a penalty in relation to the underpayment of such a charge; is due and payable to the Commonwealth, the amount is a debt due to the Commonwealth and may be recovered by action in a court of competent jurisdiction. 140ZP  Notional application of nomination training contribution charge in relation to nominations by the Commonwealth  (1) The Commonwealth is not liable to pay nomination training contribution charge that is payable under section 140ZM. However, it is the Parliament’s intention that the Commonwealth should be notionally liable to pay such charge.  (2) The Finance Minister may give such written directions as are necessary or convenient for carrying out or giving effect to subsection (1) and, in particular, may give directions in relation to the transfer of money within an account, or between accounts, operated by the Commonwealth.  (3) Directions under subsection (2) have effect, and must be complied with, despite any other Commonwealth law.  (4) A direction under subsection (2) is not a legislative instrument.  (5) In subsections (1) and (2), Commonwealth includes a Commonwealth entity (within the meaning of the Public Governance, Performance and Accountability Act 2013) that cannot be made liable to taxation by a Commonwealth law. 140ZQ  Division binds the Crown  (1) This Division binds the Crown in right of the Commonwealth, of each of the States, of the Australian Capital Territory and of the Northern Territory.  (2) However, this Division does not make the Crown liable to be prosecuted for an offence.  (3) To avoid doubt, subsection (2) does not prevent the Crown being liable to pay a pecuniary penalty under this Division.