This article will talk about additional provisions about inspector powers. Let’s first define what is an inspector under the Migration Act 1958. Section 140V of the Migration Act states the following facts about inspectors:
- An “inspector” is either a person or a member of a class of persons appointed by the Minister under 140V(1) (an “appointed inspector”) or a Fair Work Inspector.
- The Minister may appoint a person or a class of persons to be inspectors by written instrument.
- An inspector is appointed for a period specified in the instrument of appointment, which must not be longer than the period specified in regulations made for the purposes of this subsection.
- An appointed inspector has the powers conferred on an inspector by this Division, or the regulations, that are specified in his or her instrument of appointment.
- A Fair Work Inspector has the powers conferred on an inspector by this Division or the regulations.
- A Fair Work Inspector continues to be an inspector for the purposes of this Act while he or she continues to be a Fair Work Inspector (under the Fair Work Act 2009)
Let’s read this article to know more about additional provisions about inspector powers.
Section 140XD: Persons Assisting Inspectors
Section 140XD of additional provisions about inspector powers state the following provisions:
Persons Assisting Inspectors
An individual, referred to as an assistant, may accompany an inspector to premises or a location specified in subsection 140XC(1) to aid the inspector under the following conditions:
For any inspector:
The Secretary or Australian Border Force Commissioner must think that the assistance is both necessary and reasonable.
The assistant must possess the requisite qualifications and experience to effectively assist the inspector.
For an inspector who is also a Fair Work Inspector:
The assistant must have authority to accompany the inspector to the premises or location under section 710 of the Fair Work Act 2009 for any compliance purpose under section 706 of that Act.
Responsibilities of the Assistant:
The assistant may perform tasks on the premises or at the location as instructed by the inspector to assist the inspector in exercising the powers granted under this Subdivision.
The assistant cannot perform any actions that the inspector lacks the authority to perform.
Attribution of Actions:
Any actions that the assistant performs are considered, for all purposes, to have been carried out by the inspector.
Section 140XE: Power to Ask For a Person’s Name and Address
Section 140XE of additional provisions about inspector powers state the following provisions:
Power to Request Name and Address
An inspector has the authority to demand a person’s name and address if the inspector has reasonable grounds to believe that the person has violated a civil penalty provision.
Verification of Name and Address
If the inspector has reasonable grounds to suspect that the provided name or address is false, the inspector may request evidence of its accuracy.
Non-Compliance Penalty
A person contravenes this subsection of additional provisions about inspector powers in case they meet the following conditions:
- The inspector instructs the person to perform an action as outlined in subsection (1) or (2).
- The inspector informs the person that failure to comply with the requirement may result in a civil penalty violation.
- The inspector presents their identity card to the person.
- The person fails to comply with the requirement.
Civil Penalty
The civil penalty for violating this subsection is 60 penalty units.
Exceptions
Subsection (3) does not apply if the person has a legitimate excuse for non-compliance.
Section 140XF: Power to Require Persons to Produce Records or Documents
Section 140XF of additional provisions about inspector powers state the following provisions:
Authority to Demand Records or Documents
An inspector has the power to issue a notice requiring a person to produce a record or document to the inspector.
Notice Requirements
The notice must meet the following criteria:
- Be in writing
- Be served on the individual
- Specify a location and a minimum seven-day timeframe for producing the record or document
Notice Delivery
The notice may be delivered by sending it to the person’s fax number.
Non-Compliance Penalty
An individual contravenes this subsection if:
- They receive a notice to produce under subsection (1)
- They fail to comply with the notice
Civil Penalty
The civil penalty for violating this subsection is 60 penalty units.
Exception
Subsection (3) does not apply if the person has a valid reason for non-compliance.
Section 140XG: Self-incrimination
Section 140XG of additional provisions about inspector powers outline the following:
Protection against Self-Incrimination
An individual cannot be excused from producing a record or document under paragraph 140XC(1)(d) or subsection 140XF(1) solely on the grounds that the production of such material could incriminate them or expose them to a penalty.
Exceptions to Admissibility
In the case of an individual, the following cannot be admitted as evidence against them in criminal proceedings:
- The produced record or document
- The act of producing the record or document
- Any information, document, or object obtained directly or indirectly as a result of producing the record or document
Exemption for False or Misleading Information
This exception does not apply to proceedings for an offence against section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) related to the information or document.
Section 140XH: Certain Records and Documents Are Inadmissible
S140XH of additional provisions about inspector powers states that in criminal proceedings against an individual, the following items are not admissible as evidence:
- Any record or document that was inspected or copied under paragraph 140XC(1)(e) if the individual had custody or access to it at the time of inspection or copying.
- Any information, document, or object that was obtained as a direct or indirect result of inspecting or copying a record or document under paragraph 140XC(1)(e) if the individual had custody or access to it at the time of inspection or copying.
Section 140XI: Power to Keep Records or Documents
Section 140XI of additional provisions about inspector powers outlines the inspector’s powers to keep records or documents. Upon receiving a record or document produced in accordance with this Subdivision, an inspector may:
- Examine and make copies of the record or document.
- Temporarily retain the record or document for as long as necessary.
While an inspector retains a record or document, the inspector must allow the following individuals to inspect or make copies of the record or document at all reasonable times:
- The individual who produced the record or document.
- Any individual with a rightful claim to possession of the record or document.
- An individual authorised by the person referred to in paragraph (b).
Section 140XJ: Disclosure of Information by the Secretary or Australian Border Force Commissioner
Section 140XJ of additional provisions about inspector powers outlines the following provisions:
Scope of Disclosable Information
Section 140XJ governs the disclosure of information acquired by:
- An inspector while carrying out their duties or exercising their powers under this Subdivision.
- An individual assisting an inspector under section 140XD.
Authorised Disclosure
The Secretary or Australian Border Force Commissioner may disclose or authorise the disclosure of the aforementioned information if they reasonably believe that:
- Disclosure is necessary or appropriate for the performance of functions or the exercise of powers under Division 3A of Part 2 of this Act.
- Disclosure is likely to aid in the administration or enforcement of a law of the Commonwealth, a State, or a Territory.
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