The Migration Act 1958 (the Act) contains a number of provisions prohibiting employers from allowing ‘unlawful non-citizens’ (foreign citizens who do not hold a valid visa to be in Australia) and, ‘lawful non-citizens’ (foreign citizens who hold a valid visa to be in Australia) to work in Australia either without permission, or in breach of work related conditions on their visa.[1]

Employers are liable for fines of up to $102,000 for ordinary breaches, and $255,000 for aggravated[2] breaches of the relevant provisions of the Act.

Under the existing provisions an employer can only be found guilty if the prosecution can prove that an employer knows (or was reckless to the fact) that a person did not have the appropriate right to work in Australia, and allowed them to work despite that knowledge. This element has proven difficult to establish and is considered by the Australian Government to be ineffective as a deterrent against preventing persons without valid work rights from working in Australia.

Amendments to the current framework

On 14 March 2013, the Migration Amendment (Reform of Employer Sanctions) Act 2013 (Amending Act) received royal assent. The Amending Act proposes to amend the Act by:

  • introducing non-fault civil penalty provisions to the existing ‘criminal offence’ regime (as described above);
  • creating a defence to criminal offences and civil penalty provisions; and
  • extending liability to executive offices of business in certain circumstances.

The changes being introduced by the Amending Act will commence on the earlier of proclamation or 15 September 2013.

Non-fault civil penalties

The ‘physical’ elements of the existing offences (i.e. the act of allowing an unlawful/lawful non-citizen to work) will not be materially altered by the amendment. Rather, civil penalty provisions will be introduced into the regime so as to allow prosecutors to enforce breaches of the Act even if the ‘fault’ element (i.e. knowledge and/or recklessness) cannot be established.

Ultimately, this means that an employer could face penalties where they employ a person, who, unknown to them, does not have a valid right to engage in work (or that type of work) in Australia.

Employers are liable for fines up to $76,500 for breaching the civil penalty provisions.

Defence

The amendment creates a specific defence to the criminal offences and the civil penalty provisions where that employer can evidence that they have taken reasonable steps at reasonable times to verify that a worker is not an unlawful non-citizen, or, a lawful non-citizen in breach of their visa conditions.

Reasonable steps is a broad concept which specifically includes undertaking a search of the Department of Immigration and Citizenship’s (DIAC) Visa Entitlement Verification Online (VEVO) system. VEVO is designed to allow businesses to check whether a non-citizen holds a visa and the conditions (if any) that attach to that visa. Once a business has registered to use VEVO they are able to check the work rights of proposed employees online, 24 hours a day, seven days a week.

Another step which could be considered reasonable would be scrutinising original documents signifying valid work rights (i.e. Australian passports, birth certificates, citizenship certificates and visa labels/grant letters).

The requirement that the steps also be taken at reasonable times would seemingly mean prior to commencing employment and, where an employer knows that an employee’s visa is due to expire at a later date, on or immediately after that date.

Extension of Liability to Executive Officers

Under the amendments, an employer’s executive officers[3] will be personally liable for contraventions of the criminal offence and civil penalty provisions by the employer where the executive officer:

  • knew that, or was negligent to whether, the contraventions would occur;
  • was in a position to influence the conduct of the employer in relation to the contravention; and
  • failed to take reasonable steps to prevent work-related contraventions.

What should employers do?

In light of the new non-fault civil remedy provisions, and the extension of liability to executive officers, employers should take steps to ensure compliance with the new penalty regime by:

  1. preparing or refining employee screening procedures, so as to implement mandatory reviews of all new (and arguably existing) employees’ work rights;
  2. reviewing contractual obligations with third party labour referrers and/or hire companies to clarify the responsibility of checking work rights of proposed employees; and
  3. registering for access to DIAC’s VEVO service.