“Non-compliance to new visa laws – penalties and shaming for employers”

The new Migration Amendment (Reform of Employer Sanctions) Bill 2012 (the Bill) has introduced ‘strict liability’ and removed the requirement that there be “fault” on the part of workers in breach of visa requirements.

The Bill was passed in November 2012 and is expected to be enacted in March 2013.

Prosecutors will no longer need to prove that employers were ‘reckless’ or knew that their conduct was in breach. If employers are found to have employees whose visas have expired, they can face fines of up to $49,500 along with ‘naming and shaming’ by the Department of Immigration and Citizenship.

The Bill allows for executive officers – eg: CEOs, CFOs and any Director – to be personally liable for any infringements. Employers will need to prove that they took reasonable steps to check the visas of their employees to establish a defence.

The Bill also allows for inspections to occur without notice. An “authorised officer” can enter an employer’s workplace to inspect and/or seize any evidentiary material in relation to a workplace offence. If the inspector cannot provide a search warrant, the employer is permitted to refuse entry to the inspector and demand that they obtain a search warrant.

The Bill applies the following penalties to non-compliant employers:

• Civil penalty orders – fines up to $9,900 for a person (or executive officer) who allows or refers an unlawful non-citizen to work; and five times this amount for a body corporate – fines up to $49,500.
• Criminal offence – sentences of up to two years imprisonment for allowing or referring an unlawful non-citizen to work; and up to five years imprisonment for allowing or referring an unlawful non-citizen to work under conditions of exploitation.

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