Commonwealth Consolidated Acts Commonwealth Consolidated Acts(1) The Minister may, in writing, declare a person to be a prohibited employer for a period if:
(a) the person is subject to a migrant worker sanction under a particular provision of this Subdivision; and
(b) the period of 5 years starting on the day the person became subject to a migrant worker sanction under that provision has not ended.
Note: A person may be subject to a migrant worker sanction under more than one provision of this Subdivision or subject to a migrant worker sanction multiple times under a single such provision. There is a separate 5 year period each time the person becomes subject to a migrant worker sanction.
(2) A declaration made under subsection (1) is not a legislative instrument.
Note: A declaration made under subsection (1) can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901 .
Process before making declaration
(3) Before the Minister declares a person to be a prohibited employer for a period, the Minister must give the person a written notice:
(a) stating that the Minister proposes to make such a declaration and the reasons for it; and
(b) inviting the person to make a written submission to the Minister, within the period covered by subsection (4), setting out reasons why the Minister should not make the declaration.
(4) The period covered by this subsection is whichever of the following periods ends later:
(a) the period ending 28 days after the day the person is given notice by the Minister under subsection (3);
(b) if a period is stated in that notice for the making of a written submission--the period stated.
(5) In making a decision about whether to declare a person (the first person ) to be a prohibited employer for a period, the Minister must consider:
(a) any written submission made by the first person under subsection (3) that is received by the Minister within the period covered by subsection (4); and
(b) the nature and severity of the non - compliance (the relevant non - compliance ) to which the migrant worker sanction relates; and
(c) the impact the relevant non - compliance has had on:
(i) the non - citizen to whom the migrant worker sanction relates; and
(ii) any other individuals affected by the non - compliance; and
(iii) the relevant industry, including impact on the reputation of the industry, economic repercussions and any other relevant issues that may have an impact on the operations of the industry; and
(d) whether the relevant non - compliance was intentional, reckless or inadvertent; and
(e) the likely impact making the declaration would have on:
(i) other persons employed by the first person; and
(ii) services in the community provided by the first person; and
(f) the first person's history of compliance or non - compliance with the laws to which migrant worker sanctions relate; and
(g) the first person's response to the relevant non - compliance; and
(h) how much time has passed since the relevant non - compliance occurred and any sanctions that have already been imposed on the first person in relation to the relevant non - compliance; and
(i) any action the first person has taken to report the relevant non - compliance or to ensure future compliance with the laws to which migrant worker sanctions relate.
Notification and duration of declaration
(6) If the Minister declares a person to be a prohibited employer, the Minister must, as soon as reasonably practicable, give the person a copy of the declaration.
(7) The declaration comes into effect at the start of whichever of the following days is later:
(a) the day after the day the declaration is given to the person;
(b) the day stated in the declaration as the day the declaration comes into effect.
(8) The declaration has effect during the period specified in the declaration (unless sooner revoked).
(8A) For the purposes of subsection (8), the maximum period that can be specified in the declaration is set out in the following table.
Item | If the non - compliance in relation to which the person is subject to a migrant worker sanction is ... | the maximum period for the declaration is ... |
1 | an offence against one or more of the following provisions of the Criminal Code : (a) Division 270 (other than section 270.7B or section 270.8 to the extent an offence against that section relates to an offence against section 270.7B); (b) Division 271 (other than Subdivision BA) | No maximum period |
2 | another offence (other than an offence mentioned in item 2) | 10 years |
3 | any other non - compliance not mentioned in item 1 or 2 | 5 years |
Review by the Administrative Appeals Tribunal
(9) Applications may be made to the Tribunal for review of a decision under subsection (1) to declare a person to be a prohibited employer.
Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires that people whose interests are affected by the Minister's decision be given notice of their rights to seek review of the decision.