In this article, we will explore the offences that may be committed by employers and unlawful non-citizen workers in Australia. The Migration Act 1958, sections 245AA to 245AD contains of provisions for such offences and penalties.
Australia is a country that attracts many people from all over the world. Some come to visit, others to study, and many to work. However, not all workers in Australia have a valid visa. This can create a lot of confusion and uncertainty for both the workers and their employers.
Section 245AA: Overview of Offences and Civil Penalties in Relation to Work by Non-citizens
This section establishes the offences and provides for civil penalties for the following situations of unlawful non-citizen workers:
- When a person allows an unlawful non-citizen to work in Australia
- When a person refers an unlawful non-citizen for work in Australia
Moreover, this section also mentions the definitions of the terms that will be frequently used in the subsequent sections.
Who is an unlawful non-citizen? An unlawful non-citizen is a non-citizen in the migration zone who is not a lawful citizen. A lawful citizen is defined by law as someone who:
- Holds a valid and effective visa.
- Is an allowed inhabitant of the Protected Zone who is in a protected area in connection with the performance of traditional activities.
Section 245AB: Allowing an Unlawful Non-citizen to Work
This section discusses the penalties if a person allows unlawful non-citizen workers to work in Australia. It specifies that if a person allows or continues to allow another person (the worker) to work and the worker is an unlawful non-citizen, one will commit an offence under this section.
However, there is a defence available for this offence. One defence is when such a person takes reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen.
This includes the verification of the lawfulness of the non-citizen to work in Australia, such person is not considered to have violated this section. This is when the person uses a computer system prescribed by the regulations to verify that the worker is a lawful non-citizen.
The penalty for the commission of this offence by unlawful non-citizen workers is two (2) years imprisonment. Moreover, the defendant has the burden to provide the evidence against the allegations of unlawfulness against him or her.
A civil penalty is also imposed on the offender. The law provides that the person is liable for 90 penalty units or AUD 9,900. However, it is not necessary to prove the person’s mental state in the proceedings for a civil penalty order.
Section 245AB is an important provision in the Migration Act 1958 because it helps to prevent the exploitation of unlawful non-citizens in the Australian workplace. Employers who breach this provision can face serious consequences, including fines and imprisonment.
Section 245AC: Allowing a Lawful Non-citizen to Work in Breach of a Work-Related Condition
In addition to the penalties imposed on unlawful non-citizen workers, section 245AC provides for the specifics if a person allows a lawful non-citizen to work in breach of a work-related condition. There is a violation in this section if:
- the person allows, or continues to allow, another person (the worker ) to work; and
- the worker is a lawful non-citizen; and
- the worker holds a visa that is subject to a work-related condition; and
- the worker is in breach of the work-related condition solely because of allowing another person who breached a work-related condition.
Another important point to remember in this section is that there is no violation if the person takes the reasonable steps to verify if a work-related condition is breached or not, such as verifying through a computer system prescribed by the regulations.
The penalty for violation of this offence is the same as section 245AB, two (2) years imprisonment and a civil penalty of 90 penalty units or AUD 9,900. Moreover, it is also not required to prove the person’s state of mind in the proceedings.
Thus, employers must be aware of their obligations under Section 245AC of the Act. Employees must also ensure that they comply with the working conditions specified in their visas. Failure to do so can result in serious legal consequences.
Section 245AD: Aggravated Offences if a Person Allows, or Continues to Allow, Another Person to Work
How is this offence committed by unlawful non-citizen workers aggravated? Section 245AD states that the following situations aggravate the offence:
- If unlawful non-citizen workers are exploited.
- If the person has knowledge or is reckless as to the circumstances of unlawful non-citizen workers.
- If the lawful non-citizen holds a visa that is subject to a work-related condition and is in breach thereof of such condition.
- If the lawful non-citizen is being exploited.
- If the person has knowledge or is reckless as to the circumstances of the lawful non-citizen.
The penalty for the aggravated offence is five (5) years imprisonment.
The purpose of this section is to deter employers from exploiting non-citizens by allowing them to work in breach of their visa conditions.
Employers who are found guilty of an aggravated offence under Section 245AD can face serious legal consequences, including imprisonment. Thus, they need to be aware of their obligations under the Migration Act 1958 and to ensure that they comply with the visa conditions of their employees.
Moreover, employers who are unsure about their obligations or their employees’ visa conditions should seek advice from a migration lawyer or agent.
Legal Advice from Migration Experts
Migration lawyers can provide legal assistance and advice to unlawful non-citizen workers without a valid visa in Australia. Here are some of the things that migration lawyers can do for these workers:
- Assess the worker’s situation and determine their legal options.
- Help the worker apply for a valid visa or appeal a visa refusal.
- Provide guidance on the worker’s rights and obligations under Australian law.
- Represent the worker in legal proceedings, such as visa cancellations or deportation appeals.
- Advise the worker on how to deal with their employer and negotiate their employment conditions.
- Help the worker access support services, such as healthcare and accommodation.
JB Solicitors’ competent lawyers specialise in helping people with visa and immigration issues. We have the knowledge and expertise to navigate the complex Australian migration laws and regulations. Contact us today to know more.
