(3) Nothing in this section prevents a person who is entitled to claim legal professional privilege in relation to the document, record or information, from waiving that privilege.
(4) In this section:
legal professional privilege includes privilege (however described) under any provision of Division 1 of Part 3.10 of the Evidence Act 1995.
486I Lawyer’s certification
(1) A lawyer must not file a document commencing migration litigation, unless the lawyer certifies in writing that there are reasonable grounds for believing that the migration litigation has a reasonable prospect of success.
(2) A court must refuse to accept a document commencing migration litigation if it is a document that, under subsection (1), must be certified and it has not been.
486J Part does not limit other powers to order costs against third parties
This Part does not limit any power a court may otherwise have to make costs orders against a person who is not a party to proceedings.
486K Definitions
In this Part:
migration litigation means a court proceeding in relation to a migration decision.
Part 8C—Reports on persons in detention for more than 2 years
486L What is the detention reporting start time for a person?
For the purposes of this Part, the detention reporting start time for a person is whichever of the following times (if any) applies to the person:
(a) if the person is in immigration detention on the commencement of this Part and has been in immigration detention before then for a period of at least 2 years, or for periods that total at least 2 years—the time when this Part commences; or
(b) otherwise—the time after the commencement of this Part when the person has been in immigration detention for a period of 2 years, or for periods that total at least 2 years (some of which detention may have occurred before the commencement of this Part).
486M What is a detention reporting time for a person?
For the purposes of this Part, a detention reporting time for a person is:
(a) the detention reporting start time for the person; or
(b) the end of each successive period of 6 months after that time at the end of which the person is in immigration detention.
486N Secretary’s obligation to report to Commonwealth Ombudsman
(1) The Secretary must give the Commonwealth Ombudsman a report relating to the circumstances of the person’s detention. The report must be given:
(a) if the detention reporting time is the time when this Part commences—as soon as practicable, and in any event within 6 months, after that commencement; or
(b) otherwise—within 21 days after the detention reporting time.
(2) Without limiting subsection (1), the report must include any matters specified in regulations made for the purposes of this subsection.
(3) The Secretary must give the report to the Commonwealth Ombudsman even if the person has, since the detention reporting time, ceased to be in immigration detention.
486O Commonwealth Ombudsman to give Minister assessment of detention arrangements
Commonwealth Ombudsman to give Minister assessment of appropriateness of detention arrangements
(1) As soon as practicable after the Commonwealth Ombudsman receives a report under section 486N, he or she is to give the Minister an assessment of the appropriateness of the arrangements for the person’s detention.
Assessment may include recommendations
(2) The assessment may include any recommendations the Commonwealth Ombudsman considers appropriate.
(3) Without limiting subsection (2), the kinds of recommendations the Ombudsman may make include the following:
(a) a recommendation for the continued detention of a person;
(b) a recommendation that another form of detention would be more appropriate for a person (for example, residing at a place in accordance with a residence determination);
(c) a recommendation that a person be released into the community on a visa;
(d) general recommendations relating to the Department’s handling of its detainee caseload.
(4) The Minister is not bound by any recommendations the Commonwealth Ombudsman makes.
Assessment to include statement for tabling in Parliament
(5) The assessment must also include a statement, for the purpose of tabling in Parliament, that sets out or paraphrases so much of the content of the assessment as the Commonwealth Ombudsman considers can be tabled without adversely affecting the privacy of any person.
Assessment to be given even if person no longer in detention
(6) The Commonwealth Ombudsman must give the assessment to the Minister even if the person has, since the detention reporting time, ceased to be in immigration detention.
486P Minister to table statement from Commonwealth Ombudsman
The Minister must cause the statement included in an assessment as mentioned in subsection 486O(5) to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the assessment.
486Q Application of Ombudsman Act 1976
(1) Subject to this Part, the Ombudsman Act 1976 applies in relation to the Commonwealth Ombudsman’s preparation of an assessment under section 486O (including his or her consideration of the report under section 486N to which the assessment relates), as if the preparation of the assessment were an investigation under that Act.
(2) The Commonwealth Ombudsman’s functions include the functions conferred on the Commonwealth Ombudsman by this Part.
Part 8D—Civil penalties
Division 1—Obtaining a civil penalty order
486R Civil penalty orders
Application for order
(1) The Minister may apply to an eligible court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty.
(2) The Minister must make the application within 6 years of the alleged contravention.
Eligible court may order person to pay pecuniary penalty
(3) If the eligible court is satisfied that the person has contravened a civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate.
Note: Subsection (5) sets out the maximum penalty that the eligible court may order the person to pay.
(4) An order under subsection (3) is a civil penalty order.
Determining pecuniary penalty
(5) The pecuniary penalty must not be more than:
(a) if the person is a body corporate—5 times the amount of the pecuniary penalty specified for the civil penalty provision; and
(b) otherwise—the amount of the pecuniary penalty specified for the civil penalty provision.
(6) In determining the pecuniary penalty, the eligible court must take into account all relevant matters, including:
(a) the nature and extent of the contravention; and
(b) the nature and extent of any loss or damage suffered because of the contravention; and
(c) the circumstances in which the contravention took place; and
(d) whether the Department has taken any administrative action against the person in relation to the conduct constituting the contravention or any similar conduct; and
(e) whether the person has been issued with an infringement notice under regulations made for the purposes of section 506A in relation to the conduct constituting the contravention or any similar conduct; and
(f) whether the person has previously been found by a court in proceedings under this Act to have engaged in any similar conduct.
486S Additional rules relating to the sponsorship civil penalty provisions
(1) This section applies if an application for a civil penalty order against a person is made to an eligible court in relation to an alleged contravention of a civil penalty provision in Division 3A of Part 2.
Engaging in similar conduct
(2) For the purposes of subsection 486R(6), the person is taken to have engaged in similar conduct if the person has failed to satisfy a sponsorship obligation that is different from the sponsorship obligation to which the application relates.
(3) Subsection (2) does not limit the circumstances in which a person may be found to have engaged in similar conduct.
Order to pay a required amount
(4) If, when determining the application, it appears to the eligible court that:
(a) an amount of a kind prescribed in the regulations made for purposes of subsection 140S(1) is required to be paid by the person to the Commonwealth, a State or Territory or another person; and
(b) the amount remains unpaid after the time for payment; and
(c) proceedings to recover the amount have not been brought under section 140S;
the court may order that the amount be paid to the Commonwealth, State, Territory or other person (as the case may be).
Note: Section 140S allows a person to bring proceedings to recover an amount owed if the eligible court does not make an order under this subsection.
(5) If the eligible court makes an order under subsection (4):
(a) an application may be made under subsection 140SA(1), and an order made under subsection 140SA(2), as if proceedings for a civil penalty order were proceedings under section 140S; and
(b) section 140SB applies as if the amount ordered to be paid under subsection (4) of this section were a judgement debt under a judgement of an eligible court under section 140S.
486T Civil enforcement of penalty
(1) A pecuniary penalty is a debt payable to the Commonwealth.
(2) The Commonwealth may enforce a civil penalty order as if it were an order made in civil proceedings against the person to recover a debt due by the person. The debt arising from the order is taken to be a judgement debt.
486U Conduct contravening more than one civil penalty provision
(1) If conduct constitutes a contravention of 2 or more civil penalty provisions, proceedings may be instituted under this Part against a person in relation to the contravention of any one or more of those provisions.
(2) However, the person is not liable to more than one pecuniary penalty under this Part in relation to the same conduct.
486V Multiple contraventions
(1) An eligible court may make a single civil penalty order against a person for multiple contraventions of a civil penalty provision if proceedings for the contraventions are founded on the same facts, or if the contraventions form, or are part of, a series of contraventions of the same or a similar character.
(2) However, the penalty must not exceed the sum of the maximum penalties that could be ordered if a separate penalty were ordered for each of the contraventions.
486W Proceedings may be heard together
An eligible court may direct that 2 or more proceedings for civil penalty orders are to be heard together.
486X Civil evidence and procedure rules for civil penalty orders
An eligible court must apply the rules of evidence and procedure for civil matters when hearing proceedings for a civil penalty order.
486Y Requirement for persons to assist in applications for civil penalty orders
(1) A person commits an offence if:
(a) the Secretary requests, in writing, the person to give all reasonable assistance in connection with an application for a civil penalty order; and
(b) the person fails to comply with the request.
Penalty: 10 penalty units.
(2) A request under subsection (1) is not a legislative instrument.
(3) The Secretary can request a person to assist under subsection (1) only if:
(a) it appears to the Secretary that the person is unlikely to have:
(i) contravened the civil penalty provision to which the application relates; or
(ii) committed an offence constituted by the same, or substantially the same, conduct as the conduct to which the application relates; and
(b) the Secretary suspects or believes that the person can give information relevant to the application.
(4) The Secretary cannot request a person to assist under subsection (1) if the person is or has been a lawyer for the person suspected of contravening the civil penalty provision to which the application relates.
(5) An eligible court may order a person to comply with a request under subsection (1) in a specified way. Only the Secretary may apply to the eligible court for an order under this subsection.
(6) For the purposes of this section, it does not matter whether the application for the civil penalty order has actually been made.
Division 2—Civil proceedings and criminal proceedings
486Z Civil proceedings after criminal proceedings
An eligible court may not make a civil penalty order against a person for a contravention of a civil penalty provision if the person has been convicted of an offence constituted by conduct that is the same, or substantially the same, as the conduct constituting the contravention.
486ZA Criminal proceedings during civil proceedings
(1) Proceedings for a civil penalty order against a person for a contravention of a civil penalty provision are stayed if:
(a) criminal proceedings are commenced or have already been commenced against the person for an offence; and
(b) the offence is constituted by conduct that is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) The proceedings for the civil penalty order may be resumed if the person is not convicted of the offence. Otherwise, the proceedings are dismissed.
486ZB Criminal proceedings after civil proceedings
Criminal proceedings may be commenced against a person for conduct that is the same, or substantially the same, as conduct that would constitute a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person in relation to the contravention.
486ZC Evidence given in civil proceedings not admissible in criminal proceedings
(1) Evidence of information given, or evidence of production of documents, by an individual is not admissible in criminal proceedings against the individual if:
(a) the individual previously gave the evidence or produced the documents in proceedings for a civil penalty order against the individual for an alleged contravention of a civil penalty provision (whether or not the order was made); and
(b) the conduct alleged to constitute the offence is the same, or substantially the same, as the conduct alleged to constitute the contravention.
(2) However, subsection (1) does not apply to criminal proceedings in relation to the falsity of the evidence given by the individual in the proceedings for the civil penalty order.
Division 3—Miscellaneous
486ZD Ancillary contravention of civil penalty provisions
(1) A person must not:
(a) attempt to contravene a civil penalty provision; or
(b) aid, abet, counsel or procure a contravention of a civil penalty provision; or
(c) induce (by threats, promises or otherwise) a contravention of a civil penalty provision; or
(d) be in any way, directly or indirectly, knowingly concerned in, or party to, a contravention of a civil penalty provision; or
(e) conspire with others to effect a contravention of a civil penalty provision.
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 section.
Civil penalty
(2) A person who contravenes subsection (1) in relation to a civil penalty provision is taken to have contravened the provision.
486ZE Mistake of fact
(1) A person is not liable to have a civil penalty order made against the person for a contravention of a civil penalty provision if:
(a) at or before the time of the conduct constituting the contravention, the person:
(i) considered whether or not facts existed; and
(ii) was under a mistaken but reasonable belief about those facts; and
(b) had those facts existed, the conduct would not have constituted a contravention of the civil penalty provision.
(2) For the purposes of subsection (1), a person may be regarded as having considered whether or not facts existed if:
(a) the person had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b) the person honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
(3) A person who wishes to rely on subsection (1) or (2) in proceedings for a civil penalty order bears an evidential burden in relation to that matter.
486ZF State of mind
(1) In proceedings for a civil penalty order against a person for a contravention of a civil penalty provision (other than subsection 245AK(2) or 245AU(2)), it is not necessary to prove:
(a) the person’s intention; or
(b) the person’s knowledge; or
(c) the person’s recklessness; or
(d) the person’s negligence; or
(e) any other state of mind of the person.
(2) Subsection (1) does not apply to the extent that the proceedings relate to a contravention of subsection 486ZD(1) (which is about ancillary contraventions of civil penalty provisions).
(3) Subsection (1) of this section does not affect the operation of section 486ZE (which is about mistake of fact).
486ZG Civil double jeopardy
If a person is ordered to pay a pecuniary penalty for contravening a civil penalty provision in respect of particular conduct, the person is not liable to a pecuniary penalty under some other provision of a law of the Commonwealth in respect of that conduct.
Part 8E—Investigation powers relating to certain offences and provisions
Division 1—Preliminary
487A Definitions
In this Part:
evidential material means:
(a) in relation to a sponsorship‑related offence or a work‑related offence:
(i) a thing with respect to which the offence has been committed or is reasonably suspected of having been committed; or
(ii) a thing that it is reasonably suspected will afford evidence as to the commission of the offence; or