Please note that the information we provide in this article about other provisions relating to non-citizen workers is current as of the date of publication, and 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.
This article will discuss the other provisions relating to non-citizen workers under sections 245AM to 245AP of the Migration Act 1958. The other provisions relating to non-citizen workers are part of subdivision C of Act, entitled “offences and civil penalties in relation to work by non-citizens.”
To know more about the other provisions relating to non-citizen workers under subdivision C, here are the necessary links:
- Unlawful Non-citizen Workers in Australia (245AA-245AD)
- Referring Non-citizens for Work (245AE-245AF)
- Migration Act: Criminal and Civil Liability of Executive Officers (245AG-245AL)
As an overview, the other provisions relating to non-citizen workers of the Act talks about the following topics pertaining to offences and civil penalties in relation to work by non-citizens:
- Geographical scope of offence and civil penalty provisions
- Charge and trial for an aggravated offence
- Treatment of partnerships
- Treatment of unincorporated associations.
What Are the Geographical Scope of Offence and Civil Penalty Provisions?
Section 245AM of the Act deals with the geographical scope of offence and civil penalty provisions related to subdivision C. It essentially clarifies where these offences and penalties apply.
In brief, subdivision C of the Act, creates offences and civil penalties related to sponsored visas, such as when someone asks or receives benefits in exchange for sponsoring someone’s visa. This section specifies that for these offences and penalties, Section 15.2 of the Criminal Code (extended geographical jurisdiction – category B) applies.
This means that Australian courts can prosecute these offences regardless of where they occurred, as long as they have a connection to Australia (e.g., the offender is an Australian citizen, the offence involved an Australian visa program, etc.). However, civil penalty provisions under this Subdivision is not enforceable outside of Australia.
Other Provisions Relating to Non-Citizen Workers: Offences
Section 245AM also states that an order must not be made against a person in civil proceedings relating to a contravention by the person of a civil penalty provision in this Subdivision. But this is not without exception. The person’s conduct that allegedly contravenes the provision occurs:
- wholly or partly in Australia or wholly or partly on board an Australian aircraft or ship OR
- wholly outside Australia and, at the time of the alleged contravention, the person is:
- an Australian citizen; or
- a resident of Australia; or
- a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory;
Furthermore, these conditions must be satisfied:
- the person’s conduct allegedly contravenes the provision because of section 486ZD (the ancillary contravention);
- the conduct occurs wholly outside Australia;
- the conduct constituting the primary contravention to which the ancillary contravention relates occurs, or is intended by the person to occur, wholly or partly in Australia or wholly or partly on board an Australian aircraft or an Australian ship.
Other Provisions Relating to Non-Citizen Workers: Defences
Section 245AM also enumerates the defences relating to contraventions of civil penalty provisions. It provides that in civil proceedings relating to a primary contravention by a person, these defences are available:
- The conduct constituting the alleged primary contravention occurs wholly in a foreign country, but not on board an Australian aircraft or an Australian ship; and
- The person is neither:
- an Australian citizen; nor
- a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory; and
- There is not in force a law of that foreign country, or a law of that part of that foreign country, that provides for a pecuniary or criminal penalty for such conduct. These types of laws are not in effect in:
- the foreign country where the conduct constituting the alleged primary contravention occurs; or
- the part of the foreign country where the conduct constituting the alleged primary contravention occurs;
245AN: Charge and Trial for an Aggravated Offence
This section sets four kinds of rules. These are the following:
| Situation | Rule |
| If the prosecution intends to prove an aggravated offence of:(a) allowing an unlawful non-citizen to work or (b) allowing a lawful non-citizen to work in breach of work-related condition (s245AD) | The charge must allege that the worker referred to in that subsection has been exploited. |
| On a trial for a s245AD offence | The trier of fact may find the defendant not guilty of that offence but guilty of allowing an unlawful non-citizen to work (s245AB) OR allowing a lawful non-citizen to work in breach of work-related condition (s245AC) if: 1) the circumstances does not satisfy the trier of fact that the defendant is guilty of a s245AD offence; 2) the circumstances satisfy the trier of fact that the defendant is guilty of either a s245AB or s245AC offence; 3) the defendant has been accorded procedural fairness in relation to that finding of guilt. |
| If the prosecution intends to prove an aggravated offence of: (a) referring an unlawful non-citizen for work or (b) referring a lawful citizen for work in breach of work-related condition (s245AEB) | The charge must allege that the prospective worker referred to in that subsection has been or will be exploited: – in doing the work in relation to which the prospective worker was referred; or – in doing other work for the person to whom the prospective worker was referred. |
| On a trial for a s245AEB offence | The trier of fact may find the defendant not guilty of that offence but guilty of referring an unlawful non-citizen to work (s245AE) OR referring a lawful non-citizen to work in breach of work-related condition (s245AEA) if: 1) the circumstances does not satisfy the trier of fact that the defendant is guilty of a s245AEB offence; 2) the circumstances satisfy the trier of fact that the defendant is guilty of either a s245AE or s245AEA offence; 3) the defendant has been accorded procedural fairness in relation to that finding of guilt. |
245AO and 245AP: Treatment of unincorporated associations and partnerships
Section 245AP establishes that “Subdivision C–Offences and civil penalties in relation to work by non-citizens” of the Migration Act and other related provisions apply to an unincorporated association. The application will be in a manner that is as if the association were a person, but with the changes set out in this section.
Moreover, it states that when an unincorporated association commits an offence, each member of the association’s committee of management likewise commits an offence under Subdivision C. At the time the association commits the offence, the member:
- does a relevant act
- aids, abets, counsels, or procures the relevant act
- is knowingly concerned in, or party to, the relevant act.
In the same light, if an unincorporated association contravenes a civil penalty provision in Subdivision C is also considered as to have been contravened by each member of the association’s committee of management.
Also, the member, at the time of the conduct constituting such contravention:
- engages in the conduct
- aids, abets, counsels, or procures the conduct,
- is knowingly concerned in, or a party to, the conduct.
Section 245AO applies the same rules if the violator or contravenor is a partnership.
Have a Chat with a Migration Attorney
Do you wish to have a better understanding about the other provisions relating to non-citizen workers? If so, have a chat with one of our migration lawyers at JB Solicitors. We can help you reach your goal and settle any issue relating to migration law. Reach us through this link.
