(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.
(4) Subsection (3) does not limit subsection (1).
Definition
(5) In this section:
executive officer of a body corporate means:
(a) a director of the body corporate; or
(b) the chief executive officer (however described) of the body corporate; or
(c) the chief financial officer (however described) of the body corporate; or
(d) the secretary of the body corporate.
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.
Civil penalty provision
(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.
Civil penalty: 240 penalty units.
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.
(4) Subsection (3) does not limit subsection (1).
Definitions
(5) In this section:
executive officer of a body corporate means:
(a) a director of the body corporate; or
(b) the chief executive officer (however described) of the body corporate; or
(c) the chief financial officer (however described) of the body corporate; or
(d) the secretary of the body corporate.
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:
(i) an Australian citizen; or
(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:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(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:
(i) an Australian citizen; nor
(ii) a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
(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:
(i) an Australian citizen; nor
(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:
(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
(8) For the purposes of this section, if a person sends, or causes to be sent, an electronic communication:
(a) from a point outside Australia to a point in Australia; or
(b) from a point in Australia to a point outside Australia;
that conduct is taken to have occurred partly in Australia.
Definitions
(9) In this section:
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:
(a) did the relevant act; or
(b) aided, abetted, counselled or procured the relevant act; or
(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:
(a) engaged in the conduct; or
(b) aided, abetted, counselled or procured the conduct; or
(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: