Enforceable undertaking may be published on the internet
(4) The authorised person in relation to the provision mentioned in subsection (1) may publish an undertaking given in relation to the provision on the Department’s website.
Extension to external Territories
(5) Part 6 of the Regulatory Powers Act, as it applies in relation to the provision mentioned in subsection (1), extends to a Territory to which this Act extends.
Note: See section 7 of this Act.
140RB Compliance notices
Scope
(1) This section applies if an authorised officer reasonably believes that a person who is or was an approved work sponsor has contravened subsection 140Q(1) or (2) (failing to satisfy sponsorship obligations).
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).
Civil penalty: 48 penalty units.
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 relating to a sponsorship obligation if:
(a) the person has given an undertaking under section 140RA in relation to that sponsorship obligation; 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(b) the undertaking has not been withdrawn.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 subsection 140Q(1) or (2) 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.
Subdivision E—Liability and recovery of amounts
140S Liability to pay amounts
(1) This section applies if a person who is or was an approved sponsor is required to pay an amount of a kind prescribed in the regulations to the Commonwealth, a State or Territory or another person (the payee) in relation to a sponsorship obligation.
(2) The payee may recover the amount as a debt due to the payee in an eligible court.
(3) To avoid doubt, an amount may be recovered under this section if proceedings for a civil penalty order are brought under Part 8D and discontinued or completed without the court making an order of a kind referred to in subsection 486S(4) in relation to the amount.
(4) For the purpose of paragraph (e) of the definition of eligible court, the regulations may prescribe a court of a State or Territory in which an amount may be recovered under this section.
140SA Interest up to judgment
(1) A party to proceedings under section 140S may apply to the eligible court for an order under subsection (2).
(2) If an application is made under subsection (1), the eligible court must, unless good cause is shown to the contrary, either:
(a) order that there be included in the sum for which judgment is given interest at such rate as the eligible court thinks fit on the whole or any part of the money for the whole or any part of the period between:
(i) the date when the cause of action arose; and
(ii) the date as of which judgment is entered; or
(b) without proceeding to calculate interest in accordance with paragraph (a)—order that there be included in the sum for which judgment is given, a lump sum instead of any such interest.
(3) Subsection (2) does not:
(a) authorise the giving of interest upon interest or of a sum instead of such interest; or
(b) apply in relation to any debt upon which interest is payable as of right, whether because of an agreement or otherwise; or
(c) authorise the giving of interest, or a sum instead of interest, otherwise than by consent, upon any sum for which judgment is given by consent.
140SB Interest on judgment
A judgment debt under a judgment of an eligible court under section 140S carries interest:
(a) from the date as of which the judgment is entered; and
(b) at the rate that would apply under section 52 of the Federal Court of Australia Act 1976 as if the debt were a judgment debt to which that section applies.
140SC Certain plaintiffs may choose small claims procedure in magistrates courts
(1) This section applies if:
(a) a person brings proceedings under section 140S in a magistrates court; and
(b) the person indicates, in a manner prescribed by the regulations or by rules of court relating to that court, that the person wants a small claims procedure to apply in relation to the proceeding.
(2) The procedure is governed by the following conditions:
(a) the court may not award an amount exceeding $5,000 or such higher amount as is prescribed;
(b) the court may act in an informal manner, is not bound by any rules of evidence, and may act without regard to legal forms and technicalities;
(c) at any stage of the action, the court may amend the papers initiating the action if sufficient notice is given to any party adversely affected by the amendment;
(d) a person is not entitled to legal representation unless allowed by the court.
(3) If the court allows a person to have legal representation, the court may, if it thinks fit, do so subject to conditions designed to ensure that a party is not unfairly disadvantaged.
(4) Despite paragraph (2)(d) and subsection (3):
(a) in a case heard in a court of a State—if, in a particular proceeding (whatever the nature of the proceeding) the law of the State prohibits or restricts legal representation of the parties, the regulations may prohibit or restrict legal representation of the parties to the same extent as that law; and
(b) in a case heard in a court of a Territory—the regulations may prohibit or restrict legal representation of the parties.
140T Notice regarding amount of debt or other amount
(1) Where a debt, or other amount, that a person is required to pay to the Commonwealth becomes payable, the Minister may issue a notice in writing stating the amount of the debt or other amount.
(2) In any proceedings a notice under this section is prima facie evidence that the amount of the debt or other amount is that stated in the notice.
140U Liability is in addition to any other liability
Any liability created under this Division is in addition to any liability created under:
(a) this or any other Act; or
(b) regulations made under this or any other Act.
Subdivision F—Inspector powers
140UA Exercise of inspector powers
(1) An inspector may exercise powers under this Subdivision for a purpose set out in section 140X.
Note: Inspectors include Fair Work Inspectors (see section 140V).
(2) A Fair Work Inspector may, subject to section 706 of the Fair Work Act 2009, exercise compliance powers under Subdivision D of Division 3 of Part 5‑2 of that Act for the purposes of this Subdivision.
Note: Under paragraph 706(1)(d) of the Fair Work Act 2009, a Fair Work Inspector may exercise certain compliance powers for the purposes of a provision of another Act that confers functions or powers on Fair Work Inspectors.
140V Inspectors
Who is an inspector?
(1A) For the purposes of this Act, each of the following is an inspector:
(a) a person, or a member of a class of persons, appointed under subsection (1) (an appointed inspector);
(b) a Fair Work Inspector.
Appointed inspectors
(1) The Minister may, by written instrument:
(a) appoint a person to be an inspector; or
(b) appoint a class of persons to be inspectors.
(2) An appointed inspector is appointed for the period specified in the instrument of appointment, which must not be longer than the period specified in regulations made for the purposes of this subsection.
(3) An appointed inspector has the powers conferred on an inspector by this Division, or the regulations, that are specified in his or her instrument of appointment.
Fair Work Inspectors
(4) An inspector who is a Fair Work Inspector has the powers conferred on an inspector by this Division or the regulations.
(5) A Fair Work Inspector continues to be an inspector for the purposes of this Act while he or she continues to be a Fair Work Inspector (under the Fair Work Act 2009).
Note: The Minister may give written directions specifying the manner in which, and any conditions and qualifications subject to which, powers conferred on inspectors are to be exercised: see section 499.
140W Identity cards
General
(1A) An inspector’s identity card is:
(a) for an appointed inspector—the identity card issued to the inspector under subsection (1); or
(b) for an inspector who is a Fair Work Inspector—the identity card issued to the inspector under the Fair Work Act 2009 (see section 702 of that Act).
Identity cards—appointed inspectors
(1) The Minister must issue an identity card to an appointed inspector.
(2) An identity card for an appointed inspector:
(a) must be in the approved form and may include additional information that is not set out in the form; and
(b) must contain a recent photograph of the inspector.
Identity card to be carried
(3) An inspector must carry the identity card at all times when exercising powers as an inspector.
Offence
(4) A person commits an offence if:
(a) the person has been issued with an identity card under subsection (1); and
(b) the person ceases to be an inspector; and
(c) the person does not return his or her identity card to the Secretary within 14 days after ceasing to be an inspector.
Penalty: 1 penalty unit.
(5) An offence against subsection (4) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(6) However, a person does not commit an offence against subsection (4) if the person’s identity card was lost or destroyed.
Note: A defendant bears an evidential burden in relation to the matter in subsection (6): see subsection 13.3(3) of the Criminal Code.
140X Purpose for which powers of inspectors may be exercised
The powers of an inspector under this Subdivision may be exercised:
(a) for the purpose of investigating whether a sponsorship obligation is being, or has been, complied with by a person who is or was an approved work sponsor; or
(aaa) for the purpose of investigating whether a person who is or was an approved work sponsor has contravened subsection 140RB(5); or
(aa) for the purpose of investigating whether a person who is or was an approved work sponsor has committed an offence, or contravened a civil penalty provision, under Subdivision C, D, E or F of Division 12 of this Part; or
(b) for a purpose prescribed by the regulations.
140XA When powers of inspectors may be exercised
An inspector may exercise powers under this Subdivision:
(a) at any time during working hours; or
(b) at any other time, if the inspector reasonably believes that it is necessary to do so for the purposes referred to in section 140X.
140XB Power of inspectors to enter premises or places
(1) An inspector may, without force, enter business premises or another place, if the inspector reasonably believes that there are records or documents relevant to the purposes referred to in section 140X on the premises or at the place, or accessible from a computer on the premises or at the place.
(2) The inspector must, either before or as soon as practicable after entering those premises or that place, show his or her identity card to the occupier, or another person who apparently represents the occupier, if the occupier or other person is present at the premises or place.
140XC Powers of inspectors while on premises or at a place
(1) An inspector who enters premises or a place under section 140XB may exercise one or more of the following powers while on the premises or at the place:
(a) inspect any work, process or object;
(b) interview any person;
(c) require a person to tell the inspector who has custody of, or access to, a record or document;
(d) require a person who has the custody of, or access to, a record or document to produce the record or document to the inspector either while the inspector is on the premises or at the place, or within a specified period;
(e) inspect, and make copies of, any record or document that:
(i) is kept on the premises or at the place; or
(ii) is accessible from a computer that is kept on the premises or at the place.
(2) A Fair Work Inspector who enters premises or a place under the Fair Work Act 2009 for any compliance purpose under section 706 of that Act may, for a purpose mentioned in section 140X of this Act, exercise any of the powers mentioned in subsection (1) of this section while on the premises or at the place.
Note: See also sections 140XG, 140XH and 140XI (which deal with self‑incrimination and produced documents etc.).
140XD Persons assisting inspectors
(1) A person (the assistant) may accompany an inspector onto premises or to a place mentioned in subsection 140XC(1) to assist the inspector if:
(a) for any inspector—the Secretary or Australian Border Force Commissioner is satisfied that:
(i) the assistance is necessary and reasonable; and
(ii) the assistant has suitable qualifications and experience to properly assist the inspector; or
(b) for an inspector who is a Fair Work Inspector—the assistant is authorised to accompany the inspector onto the premises or to the place under section 710 of the Fair Work Act 2009 for any compliance purpose under section 706 of that Act.
(2) The assistant:
(a) may do such things on the premises or at the place as the inspector requires to assist the inspector to exercise powers under this Subdivision; but
(b) must not do anything that the inspector does not have power to do.
(3) Anything done by the assistant is taken for all purposes to have been done by the inspector.
140XE Power to ask for person’s name and address
(1) An inspector may require a person to tell the inspector the person’s name and address if the inspector reasonably believes that the person has contravened a civil penalty provision.
(2) If the inspector reasonably believes that the name or address is false, the inspector may require the person to give evidence of its correctness.
(3) A person contravenes this subsection if:
(a) the inspector requires the person to do a thing referred to in subsection (1) or (2); and
(b) the inspector advises the person that he or she may contravene a civil penalty provision if he or she fails to comply with the requirement; and
(c) the inspector shows his or her identity card to the person; and
(d) the person does not comply with the requirement.
Civil penalty: 60 penalty units.
(4) Subsection (3) does not apply if the person has a reasonable excuse.
140XF Power to require persons to produce records or documents
(1) An inspector may require a person, by notice, to produce a record or document to the inspector.
(2) The notice must:
(a) be in writing; and
(b) be served on the person; and
(c) require the person to produce the record or document at a specified place within a specified period of at least 7 days.
The notice may be served by sending the notice to the person’s fax number.
(3) A person contravenes this subsection if:
(a) the person is served with a notice to produce under subsection (1); and
(b) the person fails to comply with the notice.
Civil penalty: 60 penalty units.
(4) Subsection (3) does not apply if the person has a reasonable excuse.
140XG Self‑incrimination
(1) A person is not excused from producing a record or document under paragraph 140XC(1)(d), or subsection 140XF(1), on the ground that the production of the record or document might tend to incriminate the person or expose the person to a penalty.
(2) However, in the case of an individual, none of the following are admissible in evidence against the individual in criminal proceedings:
(a) the record or document produced;
(b) producing the record or document;
(c) any information, document or thing obtained as a direct or indirect consequence of producing the record or document;
except in proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to the information or document.
140XH Certain records and documents are inadmissible
The following are not admissible in evidence in criminal proceedings against an individual:
(a) any record or document inspected or copied under paragraph 140XC(1)(e) of which the individual had custody, or to which the individual had access, when it was inspected or copied;