245Offences of making false or unsupported statements

245  Offences of making false or unsupported statements  (1) A person must not make a statement, or give information, in writing, to an officer in relation to the consideration for the purposes of this Act or the regulations of any of the following questions:  (a) whether or not other persons are in a married relationship (within the meaning of subsection 5F(2));  (b) whether or not other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another; if:  (d) the person knows that the statement or information is false or misleading in a material particular; and  (e) the statement is made, or the information is given, in a document that describes, and shows the penalty for, an offence against this subsection. Penalty: Imprisonment for 12 months.  (3) A person must not make a statement, or give information, in writing, to an officer in relation to the consideration for the purposes of this Act or the regulations of any of the following questions:  (a) whether or not other persons are in a married relationship (within the meaning of subsection 5F(2));  (b) whether or not other persons are in a de facto relationship (within the meaning of subsection 5CB(2)) with one another; if:  (d) the statement or information is false or misleading in a material particular; and  (e) the person making the statement, or giving the information, did not make appropriate inquiries to satisfy himself or herself that the statement or information was neither false nor misleading; and  (f) the statement is made, or the information is given, in a document that describes, and shows the penalty for, an offence against this subsection. Penalty for a contravention of this subsection: 120 penalty units. Subdivision C—Offences and civil penalties in relation to work by non‑citizens 245AA  Overview  (1) This Subdivision creates offences, and provides for civil penalties, to deal with the following situations:  (aa) where a person coerces, or exerts undue influence or undue pressure on, a lawful non‑citizen to accept or agree to an arrangement in relation to work:  (i) involving a breach of a work‑related condition applying to a visa held by the lawful non‑citizen; or  (ii) to avoid an adverse effect on the lawful non‑citizen’s status as a lawful non‑citizen; or  (iii) to satisfy certain requirements to provide information or documents about work the lawful non‑citizen has done in Australia;  (ab) where a person coerces, or exerts undue influence or undue pressure on, an unlawful non‑citizen to accept or agree to an arrangement in relation to work to avoid an adverse effect on the unlawful non‑citizen’s continued presence in Australia;  (a) where a person allows an unlawful non‑citizen to work, or refers an unlawful non‑citizen for work;  (b) where a person allows a non‑citizen to work, or refers a non‑citizen for work, in breach of the non‑citizen’s visa conditions.  (2) This Subdivision uses a number of terms that are defined in the following sections:  (a) section 14 (defines unlawful non‑citizen);  (b) section 245AG (defines work and allows to work);  (ba) section 245AGA (defines arrangement in relation to work);  (c) section 245AH (defines exploited).  (3) To avoid doubt, section 245AF sets out some circumstances in which this Subdivision does not apply. 245AAA  Coercing etc. a lawful non‑citizen to work in breach of work‑related conditions  (a) the first person coerces, or exerts undue influence or undue pressure on, another person (the worker) to accept or agree to an arrangement in relation to work; and  (d) the worker holds a visa that is subject to a work‑related condition; and  (e) either:  (i) the worker is in breach of the work‑related condition solely because of doing the work in accordance with the arrangement; or  (ii) the worker would be in breach of the work‑related condition if the worker were to do the work in accordance with the arrangement.  (2) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.  (3) For the purposes of subsection (2), the fault element for paragraphs (1)(b), (c), (d) and (e) is knowledge or recklessness by the first person. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF). 245AAB  Coercing etc. an unlawful non‑citizen to work—adverse effect on presence in Australia  (a) the first person coerces, or exerts undue influence or undue pressure on, another person (the worker) to accept or agree to an arrangement in relation to work; and  (b) the worker is an unlawful non‑citizen; and  (d) the first person’s conduct mentioned in paragraph (a) results in the worker believing that, if the worker does not accept or agree to the arrangement, there will be an adverse effect on the worker’s continued presence in Australia.  (2) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.  (3) For the purposes of subsection (2), the fault element for paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the first person. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF). 245AAC  Coercing etc. a lawful non‑citizen to work—adverse effect on status etc.  (a) the first person coerces, or exerts undue influence or undue pressure on, another person (the worker) to accept or agree to an arrangement in relation to work; and  (b) the worker is a lawful non‑citizen (other than a holder of a permanent visa); and  (d) the first person’s conduct mentioned in paragraph (a) results in the worker believing that, if the worker does not accept or agree to the arrangement:  (i) there will be an adverse effect on the worker’s status as a lawful non‑citizen; or  (ii) the worker will be unable to provide information or documents about work the worker has done in Australia that the worker is required, under this Act or the regulations, to provide in connection with a visa held by the worker or an application for a visa by the worker.  (2) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.  (3) For the purposes of subsection (2), the fault element for paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the first person. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF). 245AB  Allowing an unlawful non‑citizen to work  (b) the worker is an unlawful non‑citizen.  (2) Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not an unlawful non‑citizen, including (but not limited to) either of the following steps:  (3) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).  (4) For the purposes of subsection (3), the fault element for paragraph (1)(b) is knowledge or recklessness by the first person. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).  (6) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. 245AC  Allowing a lawful non‑citizen to work in breach of a work‑related condition  (c) the worker holds a visa that is subject to a work‑related condition; and  (d) the worker is in breach of the work‑related condition solely because of doing the work referred to in paragraph (a).  (2) Subsection (1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not in breach of the work‑related condition solely because of doing the work referred to in paragraph (1)(a), including (but not limited to) either of the following steps:  (3) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).  (4) For the purposes of subsection (3), the fault element for paragraphs (1)(b), (c) and (d) is knowledge or recklessness by the first person. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).  (6) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. 245AD  Aggravated offences if a person allows, or continues to allow, another person to work Allowing an unlawful non‑citizen to work  (b) the worker is an unlawful non‑citizen; and  (c) the worker is being exploited; and  (d) the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (b) and (c). Note: See section 245AH for when a person is being exploited. Allowing a lawful non‑citizen to work in breach of a work‑related condition  (c) the worker holds a visa that is subject to a work‑related condition; and  (d) the worker is in breach of the work‑related condition solely because of doing the work referred to in paragraph (a); and  (e) the worker is being exploited; and  (f) the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (b), (c), (d) and (e). Note: See section 245AH for when a person is being exploited. 245AE  Referring an unlawful non‑citizen for work  (a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and  (c) at the time of the referral, the prospective worker is an unlawful non‑citizen.  (2) Subsection (1) does not apply if the first person takes reasonable steps at reasonable times before the referral to verify that the prospective worker is not an unlawful non‑citizen, including (but not limited to) either of the following steps:  (3) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).  (4) For the purposes of subsection (3), the fault element for paragraph (1)(c) is knowledge or recklessness by the first person. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).  (6) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. 245AEA  Referring a lawful non‑citizen for work in breach of a work‑related condition  (a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and  (c) at the time of the referral:  (i) the prospective worker is a lawful non‑citizen; and  (ii) the prospective worker holds a visa that is subject to a work‑related condition; and  (iii) the prospective worker will be in breach of the work‑related condition solely because of doing the work in relation to which he or she is referred.  (2) Subsection (1) does not apply if the first person takes reasonable steps at reasonable times before the referral to verify that the prospective worker will not be in breach of the 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:  (3) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection. Note: A defendant bears an evidential burden in relation to the matter in subsection (2) (see subsection 13.3(3) of the Criminal Code).  (4) For the purposes of subsection (3), the fault element for paragraph (1)(c) is knowledge or recklessness by the first person. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).  (6) A person who wishes to rely on subsection (2) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. 245AEB  Aggravated offences if a person refers another person to a third person for work Referring an unlawful non‑citizen for work  (a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and  (c) at the time of the referral, the prospective worker is an unlawful non‑citizen; and  (d) the prospective worker will be exploited in doing that work, or any other work, for the third person; and  (e) the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (c) and (d). Note: See section 245AH for when a person will be exploited. Referring a lawful non‑citizen for work in breach of a work‑related condition  (a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and  (c) at the time of the referral:  (i) the prospective worker is a lawful non‑citizen; and  (ii) the prospective worker holds a visa that is subject to a work‑related condition; and  (iii) the prospective worker will be in breach of the work‑related condition solely because of doing the work in relation to which he or she is referred; and  (d) the prospective worker will be exploited in doing the work in relation to which he or she is referred, or in doing any other work, for the third person; and  (e) the first person knows of, or is reckless as to, the circumstances mentioned in paragraphs (c) and (d). Note: See section 245AH for when a person will be exploited. 245AF  Circumstances in which this Subdivision does not apply   To avoid doubt, this Subdivision does not apply where:  (a) a detainee in immigration detention voluntarily engages in an activity of a kind approved in writing by the Secretary for the purposes of this paragraph; or  (b) a prisoner in a prison or remand centre of the Commonwealth, a State or a Territory engages in an activity as a prisoner; or  (c) a person engages in an activity in compliance with:  (i) a sentence passed, or an order made, under subsection 20AB(1) of the Crimes Act 1914 (community service orders etc.); or  (ii) a community service order, a work order, a sentence of periodic detention, an attendance centre order, a sentence of weekend detention, an attendance order, or a similar sentence or order, passed or made under the law of a State or Territory. 245AG  Meaning of work and allows to work work means any work, whether for reward or otherwise.  (2) In this Subdivision, a person allows a person to work if, and only if:  (a) the first person employs the second person under a contract of service; or  (b) the first person engages the second person, other than in a domestic context, under a contract for services; or  (ba) the first person participates in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by the second person for:  (i) the first person; or  (ii) another participant in the arrangement or any such arrangement; or  (c) the first person bails or licenses a chattel to the second person or another person with the intention that the second person will use the chattel to perform a transportation service; or  (d) the first person leases or licenses premises, or a space within premises, to the second person or another person with the intention that the second person will use the premises or space to perform sexual services within the meaning of the Criminal Code (see the Dictionary to the Criminal Code); or  (e) the prescribed circumstances exist.  (3) In paragraph (2)(d): premises means:  (a) an area of land or any other place, whether or not it is enclosed or built on; or  (b) a building or other structure; or  (c) a vehicle or vessel. 245AGA  Meaning of arrangement in relation to work  (1) For the purposes of this Subdivision, arrangement in relation to work means an arrangement, in connection with a person (the first person) allowing another person to work, for the other person to:  (a) accept certain conditions; or  (b) perform, or refrain from performing, an activity, whether for the first person or someone else; or  (c) participate in, or refrain from participating in, an activity, whether for the first person or someone else.  (2) To avoid doubt, a reference in subsection (1) to an activity includes a reference to a work‑related activity or a non‑work‑related activity. Examples: An arrangement in relation to work includes, but is not limited to, an arrangement for a person to: (a) accept unsafe housing provided or arranged by the first person or another person; or (b) surrender the person’s passport to the first person or another person; or (c) perform sexual favours for the first person or another person. 245AH  Meaning of exploited   For the purposes of this Subdivision, a person is exploited if the person is subjected to exploitation within the meaning of the Criminal Code (see section 271.1A of the Criminal Code). 245AJ  Criminal liability of executive officers of bodies corporate  (1) An executive officer of a body corporate commits an offence if:  (a) the body commits an offence (the work‑related offence) against this Subdivision; and  (b) the officer knew that, or was reckless or negligent as to whether, the work‑related offence would be committed; and  (c) the officer was in a position to influence the conduct of the body in relation to the work‑related offence; and  (d) the officer failed to take all reasonable steps to prevent the work‑related offence being committed.  (2) An offence against subsection (1) is punishable on conviction by a pecuniary penalty not exceeding one‑fifth of the maximum pecuniary penalty that a court could impose on the body corporate for the work‑related offence. Reasonable steps to prevent the offence  (3) In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the work‑related offence being committed by the body, a court must have regard to:  (a) what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and  (b) what action (if any) the officer took when he or she became aware that the body was committing the work‑related offence. 245AK  Civil liability of executive officers of bodies corporate  (1) An executive officer of a body corporate contravenes this subsection if:  (a) the body contravenes (the work‑related contravention) a civil penalty provision in this Subdivision; and  (b) the officer knew that, or was reckless or negligent as to whether, the work‑related contravention would occur; and  (c) the officer was in a position to influence the conduct of the body in relation to the work‑related contravention; and  (d) the officer failed to take all reasonable steps to prevent the work‑related contravention.  (2) An executive officer of a body corporate is liable to a civil penalty if the officer contravenes subsection (1). Note: Section 486ZF (which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to this subsection. Reasonable steps to prevent the contravention  (3) In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the work‑related contravention by the body, a court must have regard to:  (a) what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and  (b) what action (if any) the officer took when he or she became aware that the body was engaging in the work‑related contravention. negligent: an executive officer of a body corporate is negligent as to whether a work‑related contravention would occur if the officer’s conduct involves:  (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and  (b) such a high risk that the work‑related contravention would occur; that the conduct merits the imposition of a pecuniary penalty. reckless: an executive officer of a body corporate is reckless as to whether a work‑related contravention would occur if:  (a) the officer is aware of a substantial risk that the work‑related contravention would occur; and  (b) having regard to the circumstances known to the officer, it is unjustifiable to take the risk. 245AL  Contravening civil penalty provisions  (1) This section applies if a civil penalty provision in this Subdivision provides that a person contravening another provision of this Subdivision (the conduct rule provision) is liable to a civil penalty.  (2) For the purposes of this Act, the person is taken to contravene the civil penalty provision if the person contravenes the conduct rule provision. 245ALA  Enforceable undertakings Enforceable provisions  (1) The following provisions are enforceable under Part 6 of the Regulatory Powers Act:  (a) a work‑related offence;  (b) a work‑related provision. Note: Part 6 of the Regulatory Powers Act creates a framework for accepting and enforcing undertakings relating to compliance with provisions. Authorised person  (2) For the purposes of Part 6 of the Regulatory Powers Act, the Minister is an authorised person in relation to the provisions mentioned in subsection (1).  (3) The Minister may, in writing, delegate the Minister’s powers and functions under Part 6 of the Regulatory Powers Act to an authorised officer in relation to the provisions mentioned in subsection (1).  (4) The Minister may delegate a power or function under subsection (3) only if the Minister is satisfied that the authorised officer has appropriate qualifications, training or experience to exercise the power or perform the function.  (5) An authorised officer exercising powers or performing functions under a delegation under subsection (3) must comply with any directions of the Minister. Relevant court  (6) For the purposes of Part 6 of the Regulatory Powers Act, an eligible court is a relevant court in relation to the provisions mentioned in subsection (1). Enforceable undertaking may be published on the internet  (7) An authorised person in relation to a provision mentioned in subsection (1) may publish an undertaking given in relation to the provision on the Department’s website. Extension to external Territories  (8) Part 6 of the Regulatory Powers Act, as it applies in relation to the provisions mentioned in subsection (1), extends to a Territory to which this Act extends. Note: See section 7 of this Act. Relationship with civil penalty orders  (9) The Minister must not apply for an order under subsection 486R(1) (civil penalty orders) in relation to a contravention of a work‑related provision by a person if an undertaking given by the person under Part 6 of the Regulatory Powers Act in relation to the contravention has not been withdrawn. 245AM  Geographical scope of offence and civil penalty provisions Offences  (1) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against this Subdivision. Contraventions of civil penalty provisions  (2) An order must not be made against a person in civil proceedings relating to a contravention by the person of a civil penalty provision in this Subdivision unless:  (a) the person’s conduct that allegedly contravenes the provision occurs:  (i) wholly or partly in Australia; or  (ii) wholly or partly on board an Australian aircraft or an Australian ship; or  (b) the person’s conduct that allegedly contravenes the provision occurs wholly outside Australia and, at the time of the alleged contravention, the person is:  (ii) a resident of Australia; or  (iii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or  (c) all of the following conditions are satisfied:  (i) the person’s conduct allegedly contravenes the provision because of section 486ZD (the ancillary contravention);  (ii) the conduct occurs wholly outside Australia;  (iii) the conduct constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship. Defences relating to contraventions of civil penalty provisions  (3) In civil proceedings relating to a primary contravention by a person, it is a defence if:  (a) the conduct constituting the alleged primary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and  (b) the person is neither:  (c) there is not in force in:  (i) the foreign country where the conduct constituting the alleged primary contravention occurs; or  (ii) the part of the foreign country where the conduct constituting the alleged primary contravention occurs;   a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for such conduct.  (4) In civil proceedings relating to a contravention (the ancillary contravention) by a person of a civil penalty provision in this Subdivision because of section 486ZD, it is a defence if:  (a) the conduct constituting the alleged ancillary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and  (b) the conduct (the primary conduct) constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and  (c) the person is neither:  (d) there is not in force in:  (i) the foreign country where the primary conduct occurs or is intended by the person to occur; or  (ii) the part of the foreign country where the primary conduct occurs or is intended by the person to occur;   a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for the primary conduct.  (5) A defendant bears an evidential burden in relation to the matter in subsection (3) or (4). Attorney‑General’s consent needed for certain proceedings  (6) Civil proceedings relating to a contravention of a civil penalty provision in this Subdivision must not be commenced without the Attorney‑General’s written consent if:  (a) the conduct constituting the alleged contravention occurs wholly in a foreign country; and  (b) at the time of the alleged contravention, the person alleged to have contravened the provision is neither:  (ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory. When conduct taken to occur partly in Australia  (7) For the purposes of this section, if a person sends a thing, or causes a thing to be sent:  (8) For the purposes of this section, if a person sends, or causes to be sent, an electronic communication: Australian aircraft has the same meaning as in the Criminal Code. Australian ship has the same meaning as in the Criminal Code. electronic communication has the same meaning as in the Criminal Code. foreign country has the same meaning as in the Criminal Code. point has the same meaning as in section 16.2 of the Criminal Code. primary contravention means a contravention of a civil penalty provision in this Subdivision other than because of section 486ZD. resident of Australia has the same meaning as in the Criminal Code. 245AN  Charge and trial for an aggravated offence  (1) If the prosecution intends to prove an offence against subsection 245AD(1) or (2), the charge must allege that the worker referred to in that subsection has been exploited.  (2) If the prosecution intends to prove an offence against subsection 245AEB(1) or (2), the charge must allege that the prospective worker referred to in that subsection has been or will be exploited:  (a) in doing the work in relation to which the prospective worker was referred; or  (b) in doing other work for the person to whom the prospective worker was referred.  (3) On a trial for an offence against section 245AD, the trier of fact may find the defendant not guilty of that offence but guilty of an offence against section 245AB or 245AC if:  (a) the trier of fact is not satisfied that the defendant is guilty of an offence against section 245AD; and  (b) the trier of fact is satisfied that the defendant is guilty of an offence against section 245AB or 245AC; and  (c) the defendant has been accorded procedural fairness in relation to that finding of guilt.  (4) On a trial for an offence against section 245AEB, the trier of fact may find the defendant not guilty of that offence but guilty of an offence against section 245AE or 245AEA if:  (a) the trier of fact is not satisfied that the defendant is guilty of an offence against section 245AEB; and  (b) the trier of fact is satisfied that the defendant is guilty of an offence against section 245AE or 245AEA; and  (c) the defendant has been accorded procedural fairness in relation to that finding of guilt. 245AO  Treatment of partnerships  (1) This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to a partnership as if it were a person, but with the changes set out in this section.  (2) An offence against this Subdivision 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:  (c) was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the partner).  (3) A civil penalty provision in this Subdivision 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 of the partner). 245AP  Treatment of unincorporated associations  (1) This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to an unincorporated association as if it were a person, but with the changes set out in this section.  (2) An offence against this Subdivision 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:  (c) was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the member).  (3) A civil penalty provision in this Subdivision 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 of the member). 245APA  Effect of this Subdivision on the validity of certain contracts is to be disregarded  (1) For the purposes of a relevant workplace law, any effect of this Subdivision on the validity of a contract of service, or the validity of a contract for services, is to be disregarded. relevant workplace law means:  (a) another law of the Commonwealth (other than the Fair Work Act 2009) that regulates the relationships between the parties to a contract of service, or a contract for services, in relation to the performance of work; or  (b) a law of a State or Territory that regulates the relationships between the parties to a contract of service, or a contract for services, in relation to the performance of work; and includes a law dealing with occupational health and safety matters and a law dealing with workers’ compensation. Note: Section 40B of the Fair Work Act 2009 also provides that for the purposes of that Act, any effect of this Act, or an instrument made under this Act, on the validity of a contract of employment, or a contract for services, is to be disregarded. Subdivision D—Offences and civil penalties in relation to sponsored visas 245AQ  Definitions benefit includes:  (a) a payment or other valuable consideration; and  (b) a deduction of an amount; and  (c) any kind of real or personal property; and  (d) an advantage; and  (e) a service; and  (f) a gift. sponsor class means a prescribed class of work sponsor or family sponsor. sponsored visa means a visa of a prescribed kind (however described). sponsorship‑related event means any of the following events:  (a) a person applying for approval as a work sponsor or family sponsor under section 140E in relation to a sponsor class;  (b) a person applying for a variation of a term of an approval as a work sponsor or family sponsor under section 140E in relation to a sponsor class;  (c) a person becoming, or not ceasing to be, a party to a work agreement;  (d) a person agreeing to be, or not withdrawing his or her agreement to be, an approved sponsor in relation to an applicant or proposed applicant for a sponsored visa;  (e) a person making a nomination under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;  (f) a person not withdrawing a nomination made under section 140GB in relation to a holder of, or an applicant or proposed applicant for, a sponsored visa;  (g) a person applying under the regulations for approval of the nomination of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa, or including another person in such a nomination;  (h) a person not withdrawing the nomination under the regulations of a position in relation to the holder of, or an applicant or proposed applicant for, a sponsored visa;  (i) a person employing or engaging, or not terminating the employment or engagement of, a person to work in an occupation or position in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;  (j) a person engaging, or not terminating the engagement of, a person to undertake a program, or carry out an activity, in relation to which a sponsored visa has been granted, has been applied for or is to be applied for;  (k) the grant of a sponsored visa;  (l) a prescribed event. 245AR  Prohibition on asking for or receiving a benefit in return for the occurrence of a sponsorship‑related event  (a) the first person asks for, or receives, a benefit from another person; and  (b) the first person asks for, or receives, the benefit in return for the occurrence of a sponsorship‑related event.  (2) To avoid doubt, the first person contravenes subsection (1) even if the sponsorship‑related event does not occur.  (3) Subsection (1) does not apply if the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the first person or a third person. Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code).  (4) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.  (5) A person is liable to a civil penalty if a person contravenes subsection (1).  (6) A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF). 245AS  Prohibition on offering to provide or providing a benefit in return for the occurrence of a sponsorship‑related event  (a) the first person offers to provide, or provides, a benefit to another person (the second person); and  (b) the first person offers to provide, or provides, the benefit in return for the occurrence of a sponsorship‑related event.  (2) To avoid doubt, the first person contravenes subsection (1) even if the sponsorship‑related event does not occur.  (3) Subsection (1) does not apply if the benefit is a payment of a reasonable amount for a professional service that has been provided, or is to be provided, by the second person or a third person.  (4) A person who wishes to rely on subsection (3) in proceedings for a civil penalty order bears an evidential burden in relation to the matter in that subsection. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF). 245AT  Criminal liability of executive officers of bodies corporate  (1) An executive officer of a body corporate commits an offence if:  (a) the body commits an offence (the sponsorship‑related offence) against this Subdivision; and  (b) the officer knew that, or was reckless or negligent as to whether, the sponsorship‑related offence would be committed; and  (c) the officer was in a position to influence the conduct of the body in relation to the sponsorship‑related offence; and  (d) the officer failed to take all reasonable steps to prevent the sponsorship‑related offence being committed. Penalty: 360 penalty units.  (2) In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the sponsorship‑related offence being committed by the body, a court must have regard to:  (a) what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and  (b) what action (if any) the officer took when he or she became aware that the body was committing the sponsorship‑related offence.  (3) Subsection (2) does not limit subsection (1). 245AU  Civil liability of executive officers of bodies corporate  (1) An executive officer of a body corporate contravenes this subsection if:  (a) the body contravenes (the sponsorship‑related contravention) a civil penalty provision in this Subdivision; and  (b) the officer knew that, or was reckless or negligent as to whether, the sponsorship‑related contravention would occur; and  (c) the officer was in a position to influence the conduct of the body in relation to the sponsorship‑related contravention; and  (d) the officer failed to take all reasonable steps to prevent the sponsorship‑related contravention. Note: Section 486ZF (which provides that a person’s state of mind does not need to be proven in proceedings for a civil penalty order) does not apply in relation to a contravention of this subsection.  (2) An executive officer of a body corporate is liable to a civil penalty if the officer contravenes subsection (1). Reasonable steps to prevent the contravention  (3) In determining whether the executive officer of the body corporate failed to take all reasonable steps to prevent the sponsorship‑related contravention by the body, a court must have regard to:  (a) what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this Subdivision, insofar as those requirements affected the employees, agents or contractors concerned; and  (b) what action (if any) the officer took when he or she became aware that the body was engaging in the sponsorship‑related contravention. negligent: an executive officer of a body corporate is negligent as to whether a sponsorship‑related contravention would occur if the officer’s conduct involves:  (a) such a great falling short of the standard of care that a reasonable person would exercise in the circumstances; and  (b) such a high risk that the sponsorship‑related contravention would occur; that the conduct merits the imposition of a pecuniary penalty. reckless: an executive officer of a body corporate is reckless as to whether a sponsorship‑related contravention would occur if:  (a) the officer is aware of a substantial risk that the sponsorship‑related contravention would occur; and  (b) having regard to the circumstances known to the officer, it is unjustifiable to take the risk. 245AV  Contravening civil penalty provisions  (1) This section applies if a civil penalty provision in this Subdivision provides that a person contravening another provision of this Subdivision (the conduct rule provision) is liable to a civil penalty.  (2) For the purposes of this Act, the person is taken to contravene the civil penalty provision if the person contravenes the conduct rule provision. 245AW  Geographical scope of offence and civil penalty provisions Offences  (1) Section 15.2 of the Criminal Code (extended geographical jurisdiction—category B) applies to an offence against this Subdivision. Contraventions of civil penalty provisions  (2) An order must not be made against a person in civil proceedings relating to a contravention by the person of a civil penalty provision in this Subdivision unless:  (a) the person’s conduct that allegedly contravenes the provision occurs:  (i) wholly or partly in Australia; or  (ii) wholly or partly on board an Australian aircraft or an Australian ship; or  (b) the person’s conduct that allegedly contravenes the provision occurs wholly outside Australia and, at the time of the alleged contravention, the person is:  (ii) a resident of Australia; or  (iii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; or  (c) all of the following conditions are satisfied:  (i) the person’s conduct allegedly contravenes the provision because of section 486ZD (the ancillary contravention);  (ii) the conduct occurs wholly outside Australia;  (iii) the conduct constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship. Defences relating to contraventions of civil penalty provisions  (3) In civil proceedings relating to a primary contravention by a person, it is a defence if:  (a) the conduct constituting the alleged primary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and  (b) the person is neither:  (c) there is not in force in:  (i) the foreign country where the conduct constituting the alleged primary contravention occurs; or  (ii) the part of the foreign country where the conduct constituting the alleged primary contravention occurs;   a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for such conduct.  (4) In civil proceedings relating to a contravention (the ancillary contravention) by a person of a civil penalty provision in this Subdivision because of section 486ZD, it is a defence if:  (a) the conduct constituting the alleged ancillary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and  (b) the conduct (the primary conduct) constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and  (c) the person is neither:  (d) there is not in force in:  (i) the foreign country where the primary conduct occurs or is intended by the person to occur; or  (ii) the part of the foreign country where the primary conduct occurs or is intended by the person to occur;   a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for the primary conduct.  (5) A defendant bears an evidential burden in relation to the matter in subsection (3) or (4). Attorney‑General’s consent needed for certain proceedings  (6) Civil proceedings relating to a contravention of a civil penalty provision in this Subdivision must not be commenced without the Attorney‑General’s written consent if:  (a) the conduct constituting the alleged contravention occurs wholly in a foreign country; and  (b) at the time of the alleged contravention, the person alleged to have contravened the provision is neither:  (ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory. When conduct taken to occur partly in Australia  (7) For the purposes of this section, if a person sends a thing, or causes a thing to be sent:  (8) For the purposes of this section, if a person sends, or causes to be sent, an electronic communication: Australian aircraft has the same meaning as in the Criminal Code. Australian ship has the same meaning as in the Criminal Code. electronic communication has the same meaning as in the Criminal Code. foreign country has the same meaning as in the Criminal Code. point has the same meaning as in section 16.2 of the Criminal Code. primary contravention means a contravention of a civil penalty provision in this Subdivision other than because of section 486ZD. resident of Australia has the same meaning as in the Criminal Code. 245AX  Treatment of partnerships  (1) This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to a partnership as if it were a person, but with the changes set out in this section.  (2) An offence against this Subdivision 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:  (c) was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the partner).  (3) A civil penalty provision in this Subdivision 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 of the partner). 245AY  Treatment of unincorporated associations  (1) This Subdivision, and any other provision of this Act to the extent that it relates to this Subdivision, apply to an unincorporated association as if it were a person, but with the changes set out in this section.  (2) An offence against this Subdivision 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:  (c) was in any way knowingly concerned in, or party to, the relevant act (whether directly or indirectly or whether by any act of the member).  (3) A civil penalty provision in this Subdivision 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 of the member). Subdivision E—Prohibited employers 245AYAA  Objects of this Subdivision  (1) The objects of this Subdivision are as follows:  (a) to protect, to the extent possible, non‑citizens (other than holders of permanent visas) from being exploited, or further exploited, by employers;  (b) to ensure that such non‑citizens are not exposed to employers or workplaces that have engaged in serious, deliberate or repeated non‑compliance with certain laws;  (c) to ensure that non‑compliance is dealt with in a way that considers the impact of any sanctions on such non‑citizens, the employer and the community as a whole.  (2) This Subdivision aims to achieve its objects by:  (a) empowering the Minister to declare persons to be prohibited employers; and  (b) requiring the Minister to ensure that imposing such a prohibition, including the duration of such a prohibition, is proportionate to the person’s misconduct; and  (c) requiring the Minister to consider the impact on non‑citizens (other than holders of permanent visas) of making such a declaration; and  (d) encouraging employers to demonstrate their ability to:  (i) remediate their non‑compliance; and  (ii) comply with the law relating to migrant worker sanctions in the future. 245AYA  Overview  (1) This Subdivision provides for the Minister to declare a person to be a prohibited employer for a specified period if:  (a) the person is subject to a migrant worker sanction; and  (b) no more than 5 years have passed since the person became subject to that sanction.  (2) Sections 245AYE to 245AYJ set out when a person is subject to a migrant worker sanction.  (3) While a declaration is in effect, a prohibited employer must not:  (a) allow certain additional non‑citizens to begin work; or  (b) have a material role in a decision made by a body corporate or other body to allow certain additional non‑citizens to begin work.  (4) After a person stops being a prohibited employer, the person must give the Department specified information about certain lawful non‑citizens who the person allows to begin to work in the 12 month period after so ceasing. 245AYB  Definitions ABN has the same meaning as in the A New Tax System (Australian Business Number) Act 1999. allows a non‑citizen to begin work has the meaning given by section 245AYC. Fair Work Ombudsman means the Fair Work Ombudsman provided for by section 681 of the Fair Work Act 2009. FW order means an order under Division 2 of Part 4‑1 of the Fair Work Act 2009. inspector has the same meaning as in the Fair Work Act 2009. migrant worker sanction has the meaning given by sections 245AYE to 245AYJ. prohibited employer has the meaning given by section 245AYD. work means any work, whether for reward or otherwise. 245AYC  Meaning of allows a non‑citizen to begin work  (1) A person allows a non‑citizen to begin work at a particular time if, and only if:  (a) the person employs the non‑citizen by entering into a contract of service at that time; or  (b) the person engages the non‑citizen by entering into a contract for services at that time; or  (c) the person begins at that time to participate in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by the non‑citizen for:  (i) the person; or  (ii) another participant in the arrangement or any such arrangement; or  (d) the person enters into a contract at that time to bail or license a chattel to the non‑citizen or another person with the intention that the non‑citizen will use the chattel to perform a transportation service; or  (e) the person enters into a contract at that time to lease or license premises, or a space within premises, to the non‑citizen or another person with the intention that the non‑citizen will use the premises or space to perform sexual services (within the meaning of the Criminal Code); or  (f) the prescribed circumstances exist at that time. Note: Other parts of speech and grammatical forms of “allows a non‑citizen to begin work” (for example, “the non‑citizen is allowed to begin work”) have a corresponding meaning (see section 18A of the Acts Interpretation Act 1901).  (2) In paragraph (1)(e): premises means:  (a) an area of land or any other place, whether or not it is enclosed or built on; or  (b) a building or other structure; or  (c) a vehicle or vessel. 245AYD  Meaning of prohibited employer   A person is a prohibited employer at a particular time if:  (a) a declaration in relation to the person has been made under subsection 245AYK(1); and  (b) the declaration is in effect at that time. 245AYE  When a person is subject to a migrant worker sanction—bar placed on approved work sponsor etc. Bar placed on approved work sponsor  (1) A person is subject to a migrant worker sanction if:  (a) the person is an approved work sponsor; and  (b) a bar is placed on the person under paragraph 140M(1)(c) or (d); and  (i) the person has not requested the Minister to waive the bar in accordance with any regulations made for the purposes of section 140P; or  (ii) if the person has made such a request—the Minister has not waived the bar under subsection 140O(2). Failure to comply with compliance notice  (2) A person is subject to a migrant worker sanction if:  (a) the person is or was an approved work sponsor; and  (b) a civil penalty order is made against the person in relation to a contravention of subsection 140RB(5). 245AYF  When a person is subject to a migrant worker sanction—conviction of work‑related offence etc. Conviction of work‑related offence  (1) A person is subject to a migrant worker sanction if the person is convicted of a work‑related offence. Conviction of certain offences against humanity  (a) the person has been convicted of an offence against the following provisions of the Criminal Code:  (i) Division 270 (other than section 270.7B or section 270.8 to the extent an offence against that section relates to an offence against section 270.7B);  (ii) Division 271 (other than Subdivision BA); and  (b) the person engaged in the relevant conduct in Australia; and  (c) the offence related, wholly or partly, to another person who, at the time the relevant conduct was engaged in, was a non‑citizen (other than the holder of a permanent visa). Conviction of certain offences against the Fair Work Act 2009 etc.  (a) the person has been convicted of an offence against the Fair Work Act 2009, or a relevant workplace law, that is an offence of a kind prescribed by the regulations; and  (b) the offence related, wholly or partly, to a prescribed person who, at the time the relevant conduct was engaged in, was a non‑citizen (other than the holder of a permanent visa); and  (c) any circumstances prescribed by the regulations apply in relation to the offence. 245AYG  When a person is subject to a migrant worker sanction—contravention of certain civil penalty provisions etc. Contravention of certain civil penalty provisions of this Act  (1) A person is subject to a migrant worker sanction if:  (a) a civil penalty order has been made against the person in relation to the contravention of a work‑related provision; or  (i) a civil penalty order has been made against the person in relation to a contravention of another civil penalty provision prescribed by the regulations;  (ii) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa). Contravention of certain provisions of relevant workplace law  (a) a court has made an order under a relevant workplace law that the person pay a pecuniary penalty for a contravention of a provision of that law; and  (b) the provision is prescribed by the regulations; and  (c) the order was not made in criminal proceedings; and  (d) the contravention related, wholly or partly, to a prescribed person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa); and  (e) any circumstances prescribed by the regulations apply in relation to the contravention of the provision. 245AYH  When a person is subject to a migrant worker sanction—contravention of certain civil remedy provisions of the Fair Work Act 2009 Contravention of civil remedy provisions (within the meaning of the Fair Work Act 2009)  (1) A person is subject to a migrant worker sanction if the Minister is satisfied that:  (a) a FW order has been made against the person in relation to a contravention of a civil remedy provision (within the meaning of the Fair Work Act 2009); and  (b) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa). Contravention relating to the advertisement of rates of pay  (a) a FW order has been made against the person in relation to a contravention of subsection 536AA(1) or (2) of the Fair Work Act 2009 (employer obligations in relation to advertising rates of pay); or  (i) a FW order has been made against the person in relation to a contravention of subsection 716(5) of that Act (failure to comply with compliance notice);  (ii) the relevant compliance notice given under section 716 of that Act related to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay). Contravention relating to compliance notices  (a) a FW order has been made against the person in relation to a contravention of subsection 716(5) of the Fair Work Act 2009 (failure to comply with compliance notice); and  (b) the relevant compliance notice given under section 716 of that Act related to a contravention (the original contravention) of:  (c) the original contravention related, wholly or partly, to another person who, at the time of the original contravention, was a non‑citizen (other than the holder of a permanent visa). 245AYI  When a person is subject to a migrant worker sanction—contravention of term of enforceable undertaking etc. Undertaking in relation to contravention of civil remedy provision (within the meaning of the Fair Work Act 2009)  (1) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:  (a) the Fair Work Ombudsman has accepted an undertaking given by the first person under section 715 of the Fair Work Act 2009 in relation to a contravention of a civil remedy provision (within the meaning of that Act); and  (b) a court has made one or more orders under subsection 715(7) of that Act in relation to the undertaking; and  (c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa).  (2) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:  (a) the Fair Work Ombudsman has accepted an undertaking given by the first person under section 715 of the Fair Work Act 2009 in relation to a contravention of a civil remedy provision (within the meaning of that Act); and  (i) the undertaking has not been withdrawn;  (ii) an application for an order under subsection 715(7) of that Act in relation to the undertaking has not been made;  (iii) a court has not made one or more orders under that subsection in relation to the undertaking; and  (c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa); and  (d) the first person has contravened a term of the undertaking. Undertaking in relation to contravention relating to advertisement of rates of pay  (a) the Fair Work Ombudsman has accepted an undertaking given by the person under section 715 of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and  (b) a court has made one or more orders under subsection 715(7) of that Act in relation to the undertaking.  (4) A person is subject to a migrant worker sanction if the Minister is satisfied that:  (a) the Fair Work Ombudsman has accepted an undertaking given by the person under section 715 of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and  (i) the undertaking has not been withdrawn;  (ii) an application for an order under subsection 715(7) of that Act in relation to the undertaking has not been made;  (iii) a court has not made one or more orders under that subsection in relation to the undertaking; and  (c) the person has contravened a term of the undertaking. 245AYJ  When a person is subject to a migrant worker sanction—failure to comply with certain compliance notices Compliance notice in relation to contravention of relevant fair work provision  (1) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:  (a) an inspector has given the first person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of:  (b) a court has confirmed the compliance notice after reviewing it under subsection 717(1) of that Act; and  (c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa); and  (d) the first person has failed to comply with the compliance notice and the first person does not have a reasonable excuse for so failing.  (2) A person (the first person) is subject to a migrant worker sanction if the Minister is satisfied that:  (a) an inspector has given the first person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of:  (i) the compliance notice has not been withdrawn;  (ii) the first person has not made an application under subsection 717(1) of that Act in relation to the compliance notice;  (iii) a court has not cancelled the compliance notice after reviewing it under that subsection; and  (c) the contravention related, wholly or partly, to another person who, at the time of the contravention, was a non‑citizen (other than the holder of a permanent visa); and  (d) the first person has failed to comply with the compliance notice and the first person does not have a reasonable excuse for so failing. Compliance notice in relation to contravention relating to advertisement of rates of pay  (a) an inspector has given the person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and  (b) a court has confirmed the compliance notice after reviewing it under subsection 717(1) of that Act; and  (c) the person has failed to comply with the compliance notice and the person does not have a reasonable excuse for so failing.  (4) A person is subject to a migrant worker sanction if the Minister is satisfied that:  (a) an inspector has given the person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and  (i) the compliance notice has not been withdrawn;  (ii) the person has not made an application under subsection 717(1) of that Act in relation to the compliance notice;  (iii) a court has not cancelled the compliance notice after reviewing it under that subsection; and  (c) the person has failed to comply with the compliance notice and the person does not have a reasonable excuse for so failing. 245AYK  Declaration of person as prohibited employer  (1) The Minister may, in writing, declare a person to be a prohibited employer for a period if:  (a) the person is subject to a migrant worker sanction under a particular provision of this Subdivision; and  (b) the period of 5 years starting on the day the person became subject to a migrant worker sanction under that provision has not ended. Note: A person may be subject to a migrant worker sanction under more than one provision of this Subdivision or subject to a migrant worker sanction multiple times under a single such provision. There is a separate 5 year period each time the person becomes subject to a migrant worker sanction.  (2) A declaration made under subsection (1) is not a legislative instrument. Note: A declaration made under subsection (1) can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901. Process before making declaration  (3) Before the Minister declares a person to be a prohibited employer for a period, the Minister must give the person a written notice:  (a) stating that the Minister proposes to make such a declaration and the reasons for it; and  (b) inviting the person to make a written submission to the Minister, within the period covered by subsection (4), setting out reasons why the Minister should not make the declaration.  (4) The period covered by this subsection is whichever of the following periods ends later:  (a) the period ending 28 days after the day the person is given notice by the Minister under subsection (3);  (b) if a period is stated in that notice for the making of a written submission—the period stated.  (5) In making a decision about whether to declare a person (the first person) to be a prohibited employer for a period, the Minister must consider:  (a) any written submission made by the first person under subsection (3) that is received by the Minister within the period covered by subsection (4); and  (b) the nature and severity of the non‑compliance (the relevant non‑compliance) to which the migrant worker sanction relates; and  (c) the impact the relevant non‑compliance has had on:  (i) the non‑citizen to whom the migrant worker sanction relates; and  (ii) any other individuals affected by the non‑compliance; and  (iii) the relevant industry, including impact on the reputation of the industry, economic repercussions and any other relevant issues that may have an impact on the operations of the industry; and  (d) whether the relevant non‑compliance was intentional, reckless or inadvertent; and  (e) the likely impact making the declaration would have on:  (i) other persons employed by the first person; and  (ii) services in the community provided by the first person; and  (f) the first person’s history of compliance or non‑compliance with the laws to which migrant worker sanctions relate; and  (g) the first person’s response to the relevant non‑compliance; and  (h) how much time has passed since the relevant non‑compliance occurred and any sanctions that have already been imposed on the first person in relation to the relevant non‑compliance; and  (i) any action the first person has taken to report the relevant non‑compliance or to ensure future compliance with the laws to which migrant worker sanctions relate. Notification and duration of declaration  (6) If the Minister declares a person to be a prohibited employer, the Minister must, as soon as reasonably practicable, give the person a copy of the declaration.  (7) The declaration comes into effect at the start of whichever of the following days is later:  (a) the day after the day the declaration is given to the person;  (b) the day stated in the declaration as the day the declaration comes into effect.  (8) The declaration has effect during the period specified in the declaration (unless sooner revoked).  (8A) For the purposes of subsection (8), the maximum period that can be specified in the declaration is set out in the following table.   | Item | If the non‑compliance in relation to which the person is subject to a migrant worker sanction is … | the maximum period for the declaration is … | | --- | --- | --- | | 1 | an offence against one or more of the following provisions of the Criminal Code:<br>(a) Division 270 (other than section 270.7B or section 270.8 to the extent an offence against that section relates to an offence against section 270.7B);<br>(b) Division 271 (other than Subdivision BA) | No maximum period | | 2 | another offence (other than an offence mentioned in item 1) | 10 years | | 3 | any other non‑compliance not mentioned in item 1 or 2 | 5 years | Review by the Administrative Review Tribunal  (9) Applications may be made to the ART for review of a decision under subsection (1) to declare a person to be a prohibited employer. Note: Section 266 of the ART Act requires that people whose interests are affected by the Minister’s decision be given notice of their rights to seek review of the decision. 245AYL  Prohibition on allowing additional non‑citizens to begin work  (a) the first person is a prohibited employer at a particular time; and  (i) the first person allows a non‑citizen to begin work at that time; or  (ii) the first person has a material role in a decision made by a body corporate or other body to allow a non‑citizen to begin work at that time; and  (c) at that time, the non‑citizen is either:  (i) an unlawful non‑citizen; or  (ii) a lawful non‑citizen (other than a holder of a permanent visa).  (2) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.  (3) For the purposes of subsection (2), the fault element for subparagraph (1)(b)(ii) is intention by the first person.  (4) A person who contravenes subsection (1) is liable to a civil penalty. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF). 245AYM  Publishing information about prohibited employers  (1) If the Minister makes a declaration under subsection 245AYK(1) in relation to a person, the Minister must cause to be published on the Department’s website the following information:  (a) the name of the person;  (b) the person’s ABN (if any);  (c) any other information that the Minister considers is reasonably necessary to identify the person;  (d) the reasons for making the declaration;  (e) the period for which the declaration has effect.  (2) Subsection (1) does not apply in the prescribed circumstances.  (3) Information published under subsection (1) must not include personal information about any individual other than the prohibited employer.  (4) No civil liability arises from action taken by a person in good faith in publishing information under subsection (1).  (5) To avoid doubt, the Minister is not required to arrange for the removal, from the Department’s website, of information published under subsection (1) when the person stops being a prohibited employer. 245AYN  Former prohibited employers to give certain information  (a) a person was a prohibited employer for a particular period (the prohibition period); and  (b) the person allows a non‑citizen to begin work on a particular day (the start day) during the 12‑month period starting on the day after the prohibition period ends; and  (c) the non‑citizen is a lawful non‑citizen (other than the holder of a permanent visa).  (2) The person must, before the end of the 28‑day period starting on the start day, give the Department a written notice that:  (a) sets out the name of the non‑citizen; and  (b) specifies the kind of visa held by the non‑citizen; and  (c) specifies the work to be done by the non‑citizen; and  (d) if the non‑citizen holds a visa that is subject to one or more work‑related conditions:  (i) sets out each of those conditions; and  (ii) states that the non‑citizen will not be in breach of those conditions solely because of doing that work; and  (e) sets out any other prescribed information.  (3) A person is liable to a civil penalty if the person contravenes subsection (2). Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF).  (4) Before the Governor‑General makes a regulation for the purposes of paragraph (2)(e) prescribing information that is personal information about an individual, the Minister must be satisfied that the information is reasonably necessary for monitoring compliance with Subdivisions C, E or F of this Division. 245AYO  Contravening civil penalty provisions  (1) This section applies if a civil penalty provision in this Subdivision provides that a person contravening another provision of this Subdivision (the conduct rule provision) is liable to a civil penalty.  (2) For the purposes of this Act, the person is taken to contravene the civil penalty provision if the person contravenes the conduct rule provision. Subdivision F—Compliance notices for work‑related breaches 245AYP  Compliance notices  (1) This section applies if an authorised officer reasonably believes that a person has contravened a conduct rule provision (within the meaning of subsection 245AL(1) or 245AYO(1)). Giving a compliance notice  (2) The authorised officer may give the person a notice (a compliance notice) specifying action that the person must, within such reasonable time as is specified in the notice, take or refrain from taking to address the contravention. Note: The compliance notice may be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.  (3) The compliance notice may require the person to produce reasonable evidence of compliance with the notice.  (4) The compliance notice must also:  (a) set out the name of the person; and  (b) set out the name of the authorised officer; and  (c) set out a summary of the contravention; and  (d) explain that a failure to comply with the notice may contravene a civil penalty provision; and  (e) set out any other prescribed matters. Person must comply with compliance notice  (5) A person who is given a compliance notice must comply with the notice. Note: It is not necessary to prove a person’s state of mind in proceedings for a civil penalty order (see section 486ZF). Effect of compliance with compliance notice  (6) A person who complies with a compliance notice is not taken by that compliance to have admitted to the contravention in relation to which the notice is given. Relationship with enforceable undertakings  (7) An authorised officer must not give a person a compliance notice in relation to a contravention if:  (a) the person has given an undertaking under section 245ALA in relation to the contravention; and  (b) the undertaking has not been withdrawn. Relationship with civil penalty provisions  (8) The Minister must not apply for an order under subsection 486R(1) (civil penalty orders) in relation to a contravention of a provision mentioned in subsection (1) of this section by a person if:  (a) an authorised officer has given the person a compliance notice in relation to the contravention; and  (b) either of the following subparagraphs applies:  (i) the notice has not been withdrawn, and the person has complied with the notice;  (ii) the person has made an application to a court for judicial review of the decision to give the notice and the application has not been completely dealt with.