(5) Despite regulations made for the purposes of paragraph 44(2)(b) of the Legislation Act 2003, section 42 (disallowance) of that Act applies to an instrument made under subsection (4).
Definitions
(6) In this section:
AQF means the Australian Qualifications Framework within the meaning of the Higher Education Support Act 2003.
protected experience means experience in the field of engineering (including shipping engineering) or nursing.
protected qualification means a qualification (however described) in engineering (including shipping engineering) or nursing.
140GC Work agreements
For the purposes of the definition of work agreement, the regulations may prescribe requirements that an agreement must satisfy.
Note: A person (other than a Minister) who is a party to a work agreement is an approved work sponsor and must satisfy sponsorship obligations.
Subdivision C—Sponsorship obligations
140H Sponsorship obligations—general
Requirement to satisfy sponsorship obligations
(1) A person who is or was an approved sponsor must satisfy the sponsorship obligations prescribed by the regulations.
Work agreements and sponsorship obligations
(2) However, if:
(a) a person (other than a Minister) is or was a party to a work agreement; and
(b) a sponsorship obligation, that would otherwise be imposed on the person by the regulations, is varied by a term of the agreement;
then, the person must satisfy the sponsorship obligation as so varied.
(3) If:
(a) a person (other than a Minister) is or was a party to a work agreement; and
(b) an obligation, identified in the agreement as a sponsorship obligation, is imposed on the person by a term of the agreement;
then, the person must also satisfy the sponsorship obligation imposed by the term of the agreement.
Sponsorship obligation regulations
(4) The regulations may require a person to satisfy sponsorship obligations in respect of each visa holder sponsored by the person or generally.
(5) Sponsorship obligations must be satisfied in the manner (if any) and within the period (if any) prescribed by the regulations.
(6) Different kinds of sponsorship obligations may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
(7) The regulations cannot prescribe, as a sponsorship obligation, an obligation to pay the Commonwealth an amount relating to the cost of a person’s immigration detention.
(1) Subject to subsection (2), the Minister must take all reasonable steps to ensure that regulations made under section 504 for the purposes of subsection 140H(1) include obligations in relation to the following matters to the extent they relate to a person who is or was an approved work sponsor:
(a) paying a market salary rate (however described) to a visa holder;
(b) paying prescribed costs to the Commonwealth in relation to locating a former visa holder, and removing a former visa holder from Australia;
(c) paying prescribed costs of the departure of a visa holder (or a former visa holder) from Australia;
(d) complying with prescribed requirements to keep information, and provide information to the Minister;
(e) notifying the Department of prescribed changes in the circumstances of the person, a visa holder or a former visa holder;
(f) cooperating with the exercise of powers under or for the purposes of Subdivision F (which deals with inspector powers);
(g) ensuring that a visa holder participates in an occupation, program or activity nominated by the person (including by preventing the on‑hire of a visa holder);
(h) requiring the person not to transfer, charge or recover prescribed costs;
(i) requiring the person to meet prescribed training requirements.
(2) For any particular matter mentioned in subsection (1), the Minister must take all reasonable steps to ensure that the obligations in the relevant regulations apply in relation to:
(a) all approved work sponsors or former approved work sponsors; or
(b) a specified class (or classes) of approved work sponsors or former approved work sponsors, and not to all approved work sponsors or former approved work sponsors.
(2A) Subject to subsection (2B), the Minister must take all reasonable steps to ensure that regulations made under section 504 for the purposes of subsection 140H(1) include obligations in relation to the following matters to the extent they relate to a person who is or was an approved family sponsor:
(aa) paying prescribed medical, hospital, aged care or other health‑related expenses incurred by a visa holder or a former visa holder;
(a) complying with prescribed requirements to keep information and provide information to the Minister;
(b) notifying the Minister of prescribed changes in the circumstances of the person, a visa holder or a former visa holder.
(2B) For any particular matter mentioned in subsection (2A), the Minister must take all reasonable steps to ensure that the obligations in the relevant regulations apply in relation to:
(a) all approved family sponsors or former approved family sponsors; or
(b) a specified class (or classes) of approved family sponsors or former approved family sponsors.
(3) Subsections (1) and (2A) do not limit the sponsorship obligations that may be prescribed for the purposes of subsection 140H(1).
140J Amounts payable in relation to sponsorship obligations
(1) If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person is not liable to pay to the Commonwealth more than the lesser of:
(a) if a limit is prescribed by the regulations—that limit; and
(b) the actual costs incurred by the Commonwealth.
Example: If the Commonwealth incurs costs in locating a person, the person who is or was an approved sponsor is not liable to pay to the Commonwealth more than the total amount of those costs or a lesser amount (if a limit is prescribed in the regulations and that limit is less than the actual costs incurred by the Commonwealth).
(2) The Minister may, by legislative instrument, specify one or more methods for working out the actual costs incurred by the Commonwealth in relation to a sponsorship obligation.
(3) If an amount is payable under the regulations by a person who is or was an approved sponsor in relation to a sponsorship obligation, the person (the sponsor) is taken not to have satisfied the sponsorship obligation if a visa holder or former visa holder, or a person on behalf of a visa holder or former visa holder, reimburses the sponsor or another person for all or part of the amount.
Subdivision D—Enforcement
140K Sanctions for failing to satisfy sponsorship obligations
Actions that may be taken in relation to approved sponsors
(1) If a person is an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:
(a) the Minister may do one or more of the following:
(i) if regulations are prescribed under section 140L, bar the sponsor under subsection 140M(1) from doing certain things;
(ii) if regulations are prescribed under section 140L, cancel the person’s approval as a work sponsor or family sponsor under subsection 140M(1);
(iii) apply for a civil penalty order;
(iv) accept an undertaking under section 114 of the Regulatory Powers Act, for the purposes of this Subdivision from the person;
(v) if the Minister considers that the person has breached such an undertaking—apply for an order under section 115 of the Regulatory Powers Act, for the purposes of this Subdivision;
(b) the person may be issued with an infringement notice under regulations made for the purposes of section 506A as an alternative to proceedings for a civil penalty order;
(c) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section;
(d) an authorised officer may give the person a compliance notice under section 140RB.
Actions that may be taken in relation to former approved sponsors
(2) If a person was an approved sponsor and fails to satisfy an applicable sponsorship obligation, one or more of the following actions may be taken:
(a) the Minister may do one or more of the following:
(i) if regulations are prescribed under section 140L, bar the person under subsection 140M(2) from making future applications for approval as a work sponsor or family sponsor;
(ii) apply for a civil penalty order;
(iii) accept an undertaking under section 114 of the Regulatory Powers Act, for the purposes of this Subdivision from the person;
(iv) if the Minister considers that the person has breached such an undertaking—apply for an order under section 115 of the Regulatory Powers Act, for the purposes of this Subdivision;
(b) the person may be issued with an infringement notice under regulations made for the purposes of section 506A as an alternative to proceedings for a civil penalty order;
(c) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section;
(d) an authorised officer may give the person a compliance notice under section 140RB.
(3) To avoid doubt, subsections (1) and (2) do not limit the circumstances in which:
(a) the Minister may:
(i) bar an approved sponsor under section 140M from doing certain things; or
(ii) cancel a person’s approval as a work sponsor or family sponsor under section 140M; or
(b) an authorized officer may require and take a security under section 269 or enforce a security already taken under that section.
Publishing information about sanctions
(4) The Minister must, subject to subsection (7), publish the information (including personal information) prescribed by the regulations if an action is taken under this section in relation to an approved sponsor or former approved sponsor who fails to satisfy an applicable sponsorship obligation.
(5) The Minister is not required to observe any requirements of the natural justice hearing rule in publishing information under subsection (4).
(6) No civil liability arises from action taken by the Minister in good faith in publishing information under subsection (4).
(7) The regulations may prescribe circumstances in which the Minister is not required to publish information under subsection (4).
140L Regulations may prescribe circumstances in which sponsor may be barred or sponsor’s approval cancelled
Circumstances in which the Minister may take action
(1) The regulations may prescribe:
(a) either or both of the following:
(i) circumstances in which the Minister may take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
(ii) other circumstances in which the Minister may take one or more of the actions mentioned in section 140M; and
(b) the criteria to be taken into account by the Minister in determining what action to take under section 140M.
Circumstances in which the Minister must take action
(2) The regulations may prescribe either or both of the following:
(a) circumstances in which the Minister must take one or more of the actions mentioned in section 140M in relation to a person who is or was an approved sponsor if the Minister is reasonably satisfied that the person has failed to satisfy a sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations;
(b) other circumstances in which the Minister must take one or more of the actions mentioned in section 140M.
(3) Different circumstances and different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
140M Cancelling approval as a sponsor or barring a sponsor
Actions that may be taken in relation to approved sponsors
(1) If regulations are prescribed under section 140L, the Minister may (or must) take one or more of the following actions in relation to an approved sponsor:
(a) cancelling the approval of a person as a work sponsor or family sponsor in relation to a class to which the sponsor belongs;
(b) cancelling the approval of a person as a work sponsor or family sponsor for all classes to which the sponsor belongs;
(c) barring the sponsor, for a specified period, from sponsoring more people under the terms of one or more existing specified approvals as a work sponsor or family sponsor for different kinds of visa (however described);
(d) barring the sponsor, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
Action that may be taken in relation to former approved sponsors
(2) If regulations are prescribed under section 140L and a person was an approved sponsor, the Minister may (or must) bar the person, for a specified period, from making future applications for approval as a work sponsor or family sponsor in relation to one or more classes prescribed by the regulations for the purpose of subsection 140E(2).
140N Process for cancelling approval or barring approved sponsor
(1) The regulations may establish a process for the Minister to cancel the approval of a person as a work sponsor or family sponsor under section 140M.
(2) The regulations may establish a process for the Minister to place a bar on a person under section 140M.
(3) Different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
(4) If the regulations provide for notification by the Minister of the decision to take action under section 140M, then the following provisions of the ART Act do not apply to the decision:
(a) section 267 (decision‑maker must have regard to rules when giving notice of decision);
(b) section 268 (requesting reasons for a reviewable decision from decision‑maker).
140O Waiving a bar
(2) The Minister may, in prescribed circumstances, waive a bar placed on a person under section 140M.
(3) The regulations may prescribe the criteria to be taken into account by the Minister in determining whether to waive the bar.
(4) Different circumstances and different criteria may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
140P Process for waiving a bar
(1) The regulations may establish a process for the Minister to waive a bar placed on a person under section 140M.
(2) Different processes may be prescribed for:
(a) different kinds of visa (however described); and
(b) different classes in relation to which a person may be, or may have been, approved as a work sponsor or family sponsor.
140Q Civil penalty—failing to satisfy sponsorship obligations
(1) A person contravenes this subsection if:
(a) the regulations impose a sponsorship obligation on the person; and
(b) the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) prescribed by the regulations.
Civil penalty:
(a) if the person is an approved work sponsor—240 penalty units; or
(b) in any other case—60 penalty units.
(2) A person contravenes this subsection if:
(a) the person (other than a Minister) is a party to a work agreement; and
(b) the terms of the work agreement:
(i) vary a sponsorship obligation that would otherwise be imposed on the person by the regulations; or
(ii) impose an obligation, identified in the agreement as a sponsorship obligation, on the person; and
(c) the person fails to satisfy the sponsorship obligation in the manner (if any) or within the period (if any) specified in the work agreement.
Civil penalty: 240 penalty units.
140RA Enforceable undertakings
Enforceable provision
(1) Section 140H is enforceable, in relation to a sponsorship obligation, under Part 6 of the Regulatory Powers Act.
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 provision mentioned in subsection (1).
(2A) 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 provision mentioned in subsection (1).
(2B) The Minister may delegate a power or function under subsection (2A) only if the Minister is satisfied that the authorised officer has appropriate qualifications, training or experience to exercise the power or perform the function.
(2C) An authorised officer exercising powers or performing functions under a delegation under subsection (2A) must comply with any directions of the Minister.
Relevant court
(3) For the purposes of Part 6 of the Regulatory Powers Act, an eligible court is a relevant court in relation to the provision mentioned in subsection (1).
Relationship with compliance notices
(3A) The authorised person in relation to the provision mentioned in subsection (1) must not accept an undertaking from a person in relation to a sponsorship obligation if that person has been given a notice under section 140RB in relation to a contravention relating to the sponsorship obligation.