(3) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) an inspector has given the person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and
(b) a court has confirmed the compliance notice after reviewing it under subsection 717(1) of that Act; and
(c) the person has failed to comply with the compliance notice and the person does not have a reasonable excuse for so failing.
(4) A person is subject to a migrant worker sanction if the Minister is satisfied that:
(a) an inspector has given the person a compliance notice under subsection 716(2) of the Fair Work Act 2009 in relation to a contravention of subsection 536AA(1) or (2) of that Act (employer obligations in relation to advertising rates of pay); and
(b) all of the following apply:
(i) the compliance notice has not been withdrawn;
(ii) the person has not made an application under subsection 717(1) of that Act in relation to the compliance notice;
(iii) a court has not cancelled the compliance notice after reviewing it under that subsection; and
(c) the person has failed to comply with the compliance notice and the person does not have a reasonable excuse for so failing.
245AYK Declaration of person as prohibited employer
(1) The Minister may, in writing, declare a person to be a prohibited employer for a period if:
(a) the person is subject to a migrant worker sanction under a particular provision of this Subdivision; and
(b) the period of 5 years starting on the day the person became subject to a migrant worker sanction under that provision has not ended.
Note: A person may be subject to a migrant worker sanction under more than one provision of this Subdivision or subject to a migrant worker sanction multiple times under a single such provision. There is a separate 5 year period each time the person becomes subject to a migrant worker sanction.
(2) A declaration made under subsection (1) is not a legislative instrument.
Note: A declaration made under subsection (1) can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901.
Process before making declaration
(3) Before the Minister declares a person to be a prohibited employer for a period, the Minister must give the person a written notice:
(a) stating that the Minister proposes to make such a declaration and the reasons for it; and
(b) inviting the person to make a written submission to the Minister, within the period covered by subsection (4), setting out reasons why the Minister should not make the declaration.
(4) The period covered by this subsection is whichever of the following periods ends later:
(a) the period ending 28 days after the day the person is given notice by the Minister under subsection (3);
(b) if a period is stated in that notice for the making of a written submission—the period stated.
(5) In making a decision about whether to declare a person (the first person) to be a prohibited employer for a period, the Minister must consider:
(a) any written submission made by the first person under subsection (3) that is received by the Minister within the period covered by subsection (4); and
(b) the nature and severity of the non‑compliance (the relevant non‑compliance) to which the migrant worker sanction relates; and
(c) the impact the relevant non‑compliance has had on:
(i) the non‑citizen to whom the migrant worker sanction relates; and
(ii) any other individuals affected by the non‑compliance; and
(iii) the relevant industry, including impact on the reputation of the industry, economic repercussions and any other relevant issues that may have an impact on the operations of the industry; and
(d) whether the relevant non‑compliance was intentional, reckless or inadvertent; and
(e) the likely impact making the declaration would have on:
(i) other persons employed by the first person; and
(ii) services in the community provided by the first person; and
(f) the first person’s history of compliance or non‑compliance with the laws to which migrant worker sanctions relate; and
(g) the first person’s response to the relevant non‑compliance; and
(h) how much time has passed since the relevant non‑compliance occurred and any sanctions that have already been imposed on the first person in relation to the relevant non‑compliance; and
(i) any action the first person has taken to report the relevant non‑compliance or to ensure future compliance with the laws to which migrant worker sanctions relate.
Notification and duration of declaration
(6) If the Minister declares a person to be a prohibited employer, the Minister must, as soon as reasonably practicable, give the person a copy of the declaration.
(7) The declaration comes into effect at the start of whichever of the following days is later:
(a) the day after the day the declaration is given to the person;
(b) the day stated in the declaration as the day the declaration comes into effect.
(8) The declaration has effect during the period specified in the declaration (unless sooner revoked).
(8A) For the purposes of subsection (8), the maximum period that can be specified in the declaration is set out in the following table.
Item
If the non‑compliance in relation to which the person is subject to a migrant worker sanction is …
the maximum period for the declaration is …
1
an offence against one or more of the following provisions of the Criminal Code:<br>(a) Division 270 (other than section 270.7B or section 270.8 to the extent an offence against that section relates to an offence against section 270.7B);<br>(b) Division 271 (other than Subdivision BA)
No maximum period
2
another offence (other than an offence mentioned in item 1)
10 years
3
any other non‑compliance not mentioned in item 1 or 2
5 years
Review by the Administrative Review Tribunal
(9) Applications may be made to the ART for review of a decision under subsection (1) to declare a person to be a prohibited employer.
Note: Section 266 of the ART Act requires that people whose interests are affected by the Minister’s decision be given notice of their rights to seek review of the decision.
245AYL Prohibition on allowing additional non‑citizens to begin work
(1) A person (the first person) contravenes this subsection if:
(a) the first person is a prohibited employer at a particular time; and
(b) either:
(i) the first person allows a non‑citizen to begin work at that time; or
(ii) the first person has a material role in a decision made by a body corporate or other body to allow a non‑citizen to begin work at that time; and
(c) at that time, the non‑citizen is either:
(i) an unlawful non‑citizen; or
(ii) a lawful non‑citizen (other than a holder of a permanent visa).
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 subparagraph (1)(b)(ii) is intention by the first person.
Civil penalty provision
(4) A person who contravenes subsection (1) is liable to a civil penalty.
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.
245AYM Publishing information about prohibited employers
(1) If the Minister makes a declaration under subsection 245AYK(1) in relation to a person, the Minister must cause to be published on the Department’s website the following information:
(a) the name of the person;
(b) the person’s ABN (if any);
(c) any other information that the Minister considers is reasonably necessary to identify the person;
(d) the reasons for making the declaration;
(e) the period for which the declaration has effect.
(2) Subsection (1) does not apply in the prescribed circumstances.
(3) Information published under subsection (1) must not include personal information about any individual other than the prohibited employer.
(4) No civil liability arises from action taken by a person in good faith in publishing information under subsection (1).
(5) To avoid doubt, the Minister is not required to arrange for the removal, from the Department’s website, of information published under subsection (1) when the person stops being a prohibited employer.
245AYN Former prohibited employers to give certain information
(1) This section applies if:
(a) a person was a prohibited employer for a particular period (the prohibition period); and
(b) the person allows a non‑citizen to begin work on a particular day (the start day) during the 12‑month period starting on the day after the prohibition period ends; and
(c) the non‑citizen is a lawful non‑citizen (other than the holder of a permanent visa).
(2) The person must, before the end of the 28‑day period starting on the start day, give the Department a written notice that:
(a) sets out the name of the non‑citizen; and
(b) specifies the kind of visa held by the non‑citizen; and
(c) specifies the work to be done by the non‑citizen; and
(d) if the non‑citizen holds a visa that is subject to one or more work‑related conditions:
(i) sets out each of those conditions; and
(ii) states that the non‑citizen will not be in breach of those conditions solely because of doing that work; and
(e) sets out any other prescribed information.
(3) A person is liable to a civil penalty if the person contravenes subsection (2).
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.
(4) Before the Governor‑General makes a regulation for the purposes of paragraph (2)(e) prescribing information that is personal information about an individual, the Minister must be satisfied that the information is reasonably necessary for monitoring compliance with Subdivisions C, E or F of this Division.
245AYO 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.
Subdivision F—Compliance notices for work‑related breaches
245AYP Compliance notices
Scope
(1) This section applies if an authorised officer reasonably believes that a person has contravened a conduct rule provision (within the meaning of subsection 245AL(1) or 245AYO(1)).
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 if:
(a) the person has given an undertaking under section 245ALA in relation to the contravention; 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 a provision mentioned in subsection (1) of this section 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.
Division 12A—Chasing, boarding etc. aircraft
245A Definitions
In this Division, unless the contrary intention appears:
aircraft includes aeroplanes, seaplanes, airships, balloons or any other means of aerial locomotion.
Australian aircraft means an aircraft that:
(a) is an Australian aircraft as defined in the Civil Aviation Act 1988; or
(b) is not registered under the law of a foreign country and is either wholly owned by, or solely operated by:
(i) one or more residents of Australia; or
(ii) one or more Australian nationals; or
(iii) one or more residents of Australia and one or more Australian nationals.
For the purposes of this definition, Australian national and resident of Australia have the same meanings as in the Shipping Registration Act 1981.
Commonwealth aircraft means an aircraft that is in the service of the Commonwealth and displaying the ensign or insignia prescribed for the purposes of the definition of Commonwealth aircraft in subsection 4(1) of the Customs Act 1901.
goods includes a document.
this Act includes regulations made under this Act.
245E Identifying an aircraft and requesting it to land for boarding
Application of section
(1) This section allows the commander of a Commonwealth aircraft to make requests of the pilot of another aircraft that:
(a) if the other aircraft is an Australian aircraft—is over anywhere except a foreign country; and
(b) if the other aircraft is not an Australian aircraft—is over Australia.
Requesting information to identify an aircraft
(2) If the commander cannot identify the other aircraft, the commander may:
(a) use his or her aircraft to intercept the other aircraft in accordance with the practices recommended in Annex 2 (headed “Rules of the Air”) to the Convention on International Civil Aviation done at Chicago on 7 December 1944 (that was adopted in accordance with that Convention); and
(b) request the pilot of the other aircraft to disclose to the commander:
(i) the identity of the other aircraft; and
(ii) the identity of all persons on the other aircraft; and
(iii) the flight path of the other aircraft; and
(iv) the flight plan of the other aircraft.
Requesting aircraft to land for boarding
(3) The commander may request the pilot of the other aircraft to land it at the nearest proclaimed airport, or at the nearest suitable landing field, in Australia for boarding for the purposes of this Act if:
(a) the pilot does not comply with a request under subsection (2); or
(b) the commander reasonably suspects that the other aircraft is or has been involved in a contravention, or attempted contravention, of this Act.
Note: Section 245F gives power to board the aircraft and search it once it has landed.
Means of making request
(4) Any reasonable means may be used to make a request under this section.
Request still made even if pilot did not receive etc. request
(5) To avoid doubt, a request is still made under this section even if the pilot did not receive or understand the request.
Pilot must comply with request
(6) The pilot of the other aircraft must comply with a request made under this section.
Penalty: Imprisonment for 2 years.
(7) Subsection (6) does not apply if the pilot has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7) (see subsection 13.3(3) of the Criminal Code).
245F Power to board and search etc. aircraft
Application of section to aircraft
(2) This section applies to an aircraft that has landed in Australia for boarding as a result of a request made under section 245E.
Officer’s powers
(3) An officer may:
(a) board and search the aircraft; and
(b) search and examine any goods found on the aircraft; and
(c) secure any goods found on the aircraft; and
(d) require all persons found on the aircraft to answer questions, and produce any documents in their possession, in relation to the following:
(i) the aircraft and its flight, cargo, stores, crew and passengers;
(ii) the identity and presence of those persons on the aircraft;
(iii) a contravention, an attempted contravention or an involvement in a contravention or attempted contravention, either in or outside Australia, of this Act; and
(e) copy, or take extracts from, any document:
(i) found on the aircraft; or
(ii) produced by a person found on the aircraft as required under paragraph (d); and
(f) arrest without warrant any person found on the aircraft if the officer reasonably suspects that the person has committed, is committing or attempting to commit, or is involved in the commission of, an offence, either in or outside Australia, against this Act.
Help to search
(5) Without limiting the generality of paragraph (3)(a), an officer may use a dog to assist in searching the aircraft.