(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
(1) A person (the first person) contravenes this subsection if:
(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; and
(c) the work is done, or is to be done, by the worker in Australia, whether for the first person or someone else; 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.
Note: For the meaning of arrangement in relation to work, see section 245AGA.
Offence
(2) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
(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.
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
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: 240 penalty units.
245AAB Coercing etc. an unlawful non‑citizen to work—adverse effect on presence in Australia
(1) A person (the first person) contravenes this subsection if:
(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
(c) the work is done, or is to be done, by the worker in Australia, whether for the first person or someone else; 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.
Note: For the meaning of arrangement in relation to work, see section 245AGA.
Offence
(2) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
(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.
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
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: 240 penalty units.
245AAC Coercing etc. a lawful non‑citizen to work—adverse effect on status etc.
(1) A person (the first person) contravenes this subsection if:
(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
(c) the work is done, or is to be done, by the worker in Australia, whether for the first person or someone else; 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.
Note: For the meaning of arrangement in relation to work, see section 245AGA.
Offence
(2) A person commits an offence if the person contravenes subsection (1). The physical elements of the offence are set out in that subsection.
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
(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.
Civil penalty provision
(4) A person is liable to a civil penalty if the person contravenes subsection (1).
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: 240 penalty units.
245AB Allowing an unlawful non‑citizen to work
(1) A person (the first person) contravenes this subsection if:
(a) the first person allows, or continues to allow, another person (the worker) to work; and
(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:
(a) using a computer system prescribed by the regulations to verify that matter;
(b) doing any one or more things prescribed by the regulations.
Offence
(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).
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
(4) For the purposes of subsection (3), the fault element for paragraph (1)(b) is knowledge or recklessness by the first person.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
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: 240 penalty units.
(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
(1) A person (the first person) contravenes this subsection if:
(a) the first person allows, or continues to allow, another person (the worker) to work; and
(b) the worker is a lawful non‑citizen; and
(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:
(a) using a computer system prescribed by the regulations to verify that matter;
(b) doing any one or more things prescribed by the regulations.
Offence
(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).
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
(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.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
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: 240 penalty units.
(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
(1) A person (the first person) commits an offence if:
(a) the first person allows, or continues to allow, another person (the worker) to work; and
(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.
Penalty: Imprisonment for 5 years or 900 penalty units, or both.
Allowing a lawful non‑citizen to work in breach of a work‑related condition
(2) A person (the first person) commits an offence if:
(a) the first person allows, or continues to allow, another person (the worker) to work; and
(b) the worker is a lawful non‑citizen; and
(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.
Penalty: Imprisonment for 5 years or 900 penalty units, or both.
245AE Referring an unlawful non‑citizen for work
(1) A person (the first person) contravenes this subsection if:
(a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and
(b) the first person refers another person (the prospective worker) to a third person 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:
(a) using a computer system prescribed by the regulations to verify that matter;
(b) doing any one or more things prescribed by the regulations.
Offence
(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).
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
(4) For the purposes of subsection (3), the fault element for paragraph (1)(c) is knowledge or recklessness by the first person.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
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: 240 penalty units.
(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
(1) A person (the first person) contravenes this subsection if:
(a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and
(b) the first person refers another person (the prospective worker) to a third person 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:
(a) using a computer system prescribed by the regulations to verify that matter;
(b) doing any one or more things prescribed by the regulations.
Offence
(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).
Penalty: Imprisonment for 2 years or 360 penalty units, or both.
(4) For the purposes of subsection (3), the fault element for paragraph (1)(c) is knowledge or recklessness by the first person.
Civil penalty provision
(5) A person is liable to a civil penalty if the person contravenes subsection (1).
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: 240 penalty units.
(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
(1) A person (the first person) commits an offence if:
(a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and
(b) the first person refers another person (the prospective worker) to a third person 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.
Penalty: Imprisonment for 5 years or 900 penalty units, or both.
Referring a lawful non‑citizen for work in breach of a work‑related condition
(2) A person (the first person) commits an offence if:
(a) the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and
(b) the first person refers another person (the prospective worker) to a third person 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.
Penalty: Imprisonment for 5 years or 900 penalty units, or both.
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
(1) In this Subdivision:
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