Please note that the information we provide in this article is current as of the date of publication. The DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions, or speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.
What are the rules as to the criminal and civil liability of executive officers? Unlawful non-citizens in Australia are individuals who are not Australian citizens and do not hold a valid visa. These individuals can be subject to mandatory detention and removal from the country if they come to the attention of the Department of Home Affairs (DHA).
Employers and unlawful non-citizen workers can commit offences under the Migration Act 1958, sections 245AA to 245AD. Some of the offences include allowing an unlawful non-citizen to work in Australia. And referring an unlawful non-citizen for work in Australia. There are penalties for these offences. A defence is available if the employer takes reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen.
This article will discuss sections 245AG to 245AL which covers the rules as to the criminal and civil liability of executive officers.
Understanding Important Terms
We must understand the meaning of certain terms included under section 245AG that will be used in the subsequent provisions.
- Work: any work, whether for reward or otherwise.
- Allows to work: a person allows a person to work if:
- the first person employs the second person under a contract of service; or
- the first person engages the second person, other than in a domestic context, under a contract for services; or
- the first person participates in an arrangement, or any arrangement included in a series of arrangements, for the performance of work by the second person for the first person or another participant.
- the first person bails or licenses a chattel to the second person or another person with the intention that the second person will use the chattel to perform a transportation service; or
- the first person leases or licenses premises, or a space within premises, to the second person or another person with the intention that the second person will use the premises or space to perform sexual services within the meaning of the Criminal Code.
- Premises: this can mean either:
- an area of land or any other place, whether or not it is enclosed or built on; or
- a building or other structure; or
- a vehicle or vessel.
- Exploited: a person is exploited if the person is subjected to exploitation within the meaning of the Criminal Code. (Section 245AH)
- Executive officer of a body corporate: a person who is:
- a director of the body corporate; or
- the chief executive officer of the body corporate; or
- the chief financial officer of the body corporate; or
- the secretary of the body corporate. (Section 245AJ)
Criminal Liability of Executive Officers of Bodies Corporate
Section 245AJ provides that an executive officer of a body corporate is guilty of an offence if the following circumstances occur:
- the body commits a work-related offence,
- the officer knew that, or was reckless or negligent as to whether, the work-related offence would be committed
- the officer was in a position to influence the conduct of the body in relation to the work-related offence,
- the officer failed to take all reasonable steps to prevent the work-related offence being committed.
What Are the Reasonable Steps to Prevent the Offence?
In determining the liability of executive officers of the body corporate, that is, whether they failed to take all reasonable steps to prevent the work-related offence being committed by the body, a court must have regard to:
- what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with Act, insofar as those requirements affected the employees, agents or contractors concerned; and
- what action (if any) the officer took when he or she became aware that the body was committing the work-related offence.
Civil Liability of Executive Officers of Bodies Corporate
Section 245K sets out the rules as to the civil liability of executive officers. It states that an executive officer of a body corporate contravenes this provision if:
- the body contravenes (the work-related contravention) a civil penalty provision; and
- the officer knew that, or was reckless or negligent as to whether, the work-related contravention would occur; and
- the officer was in a position to influence the conduct of the body in relation to the work-related contravention; and
- the officer failed to take all reasonable steps to prevent the work-related contravention.
The civil penalty imposed by law upon an executive officer who contravenes this provision is 90 penalty units.
What Are the Reasonable Steps to Prevent Such Contravention?
To determine the liability of executive officers of the body corporate whether they failed to take all reasonable steps to prevent the work-related contravention by the body, a court must have regard to:
- what action (if any) the officer took towards ensuring that the body’s employees, agents and contractors had a reasonable knowledge and understanding of the requirements to comply with this provision, insofar as it affects them; and
- what action (if any) the officer took when he or she became aware that the body was engaging in the work-related contravention.
The Act also provides that if a person contravenes a rule under the provisions discussed above, he or she is considered to have contravened a civil penalty provision and will be liable to a civil penalty (Section 245AL).
Contact a Migration Lawyer
Do you need more information and clarifications about the criminal and civil liability of executive officers? If so, please don’t hesitate to contact our migration lawyers at JB Solicitors today.
