(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 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:
(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 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.
(2) In this section:
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
In this Subdivision:
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.
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
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
(1) A person (the first person) contravenes this subsection if:
(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).
Offence
(4) 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.
Civil penalty provision
(5) A person is liable to a civil penalty if a person contravenes subsection (1).
Civil penalty: 240 penalty units.
(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
(1) A person (the first person) contravenes this subsection if:
(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.
Civil penalty: 240 penalty units.
(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.
Civil penalty provision
(2) An executive officer of a body corporate is liable to a civil penalty if the officer contravenes subsection (1).
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 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.
(4) Subsection (3) does not limit subsection (1).
Definitions
(5) In this section:
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:
(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.
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:
(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).