Other articles on the changes made to s 338(2) of the Migration Act 1958 (Cth) published by the writer only discussed Parts 2 and 3 of Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018. The present article discusses Part 1. The commencement day of the Act is to be fixed by proclamation.
Part 1 adds 4 subsections at the end of s 140K of the Migration Act 1958 (Cth). In essence, those new provisions not only allow, but oblige the Minister to publish the information ‘prescribed by the regulations if an action is taken under this section in relation to an approved sponsor or former approved sponsor who fails to satisfy an applicable sponsorship obligation’.
In what circumstances can sponsors’ information be published?
In any circumstance where action is taken under s 140K. Those are, for sponsors who fail to satisfy an applicable sponsorship obligation, any of the following:
Approved sponsors:
pathdoc/Shutterstock.com
– s 140K(1)(a)(i): if regulations are prescribed under s 140L, barring the sponsor under s 140M(1) from doing certain things
– s 140K(1)(a)(ii): if regulations are prescribed under s 140L, cancelling the person’s approval as a sponsor under s 140M(1).
Former approved sponsors:
– s 140K(2)(a)(i): if regulations are prescribed under s 140L, barring the person under subsection 140M(2) from making future applications for approval;
– s 140K(1)(a)(iv) and s 140K(2)(a)(iii): accepting an undertaking under s 119 of the Regulatory Powers (Standard Provisions) Act 2014 (Cth) – see explanation below;
– s 140K(1)(a)(v) and s 140K(2)(a)(iv): if the Minister considers that the person has breached such an undertaking — applying for an order under s 120 of the Regulatory Powers Act, for the purposes of this Subdivision;
– s 140K(1)(b) and s 140K(2)(b): issuing of an infringement notice under regulations made for the purposes of s 506A as an alternative to proceedings for a civil penalty order.;
– s 140K(1)(c) and s 140K(2)(c): requiring and taking a security under s 269 or enforce a security already taken under that section.
s 116 of the Regulatory Powers Act provides a helpful outline about the Part in which s 119 is included:
Sinart Creative/Shutterstock.com
This Part creates a framework for using injunctions to enforce provisions.
For this Part to operate, a provision must be made enforceable under this Part. This is to be done by another Act.
Injunctions may be used to restrain a person from contravening a provision enforceable under this Part, or to compel compliance with such a provision.
An interim injunction is available
It should also be noted that this new power will exist in addition to the current power to disclose personal information under s 140ZH.
What will be published and where?
Neither the amending Act nor the Migration Act defines the word ‘publish’. Thus, it is not clear where information will be published nor what specific pieces of information will be published. What constitutes information is to be prescribed by the regulations and might include personal information.
What we do know at this stage is that this is a mandatory power, which means that, should any of the above-listed s 140K actions be taken, the minister is obliged to publish the information to be prescribed, subject to the exception in the next paragraph of this article. However, the obligation to publish the information only arises when an action is taken under s 140K. In other words, a mere failure to satisfy an applicable sponsorship obligation in and of itself does not enliven the obligation to publish information. It is only when that failure leads to an action being taken under s 140K that the obligation (and arguably the ‘right’) to publish information arises.
Bohbeh/Shutterstock.com
The exception mentioned before is that the regulations may (not necessarily will) ‘prescribe circumstances in which the Minister is not required to publish information’: s 140K(7). That is not to say that the prescribed exceptions, if any, would prohibit the Minister from publishing information. It would merely convert the power from mandatory into discretionary, in circumstances to be prescribed.
No natural justice and a warning for practitioners
According to the new s 140K(5), the Minister ‘Minister is not required to observe any requirements of the natural justice hearing rule in publishing information’ and, as per s 140K(6), no civil liability arises from action taken by the Minister in good faith in publishing the information. However, as the explanatory memorandum points out, there will be no natural justice at the publishing stage, given that natural justice will be available at the anterior stage of taking an action under s 140K.
Tolikoff Photography/Shutterstock.com
With this legislative change, if sponsors fail/ed to satisfy their sponsorship obligations, their information could be published, potentially leading to significant reputational damage. Practitioners should frequently (and accurately) remind their corporate clients of those obligations, bearing in mind that the changes will operate retrospectively from 18 March 2015.
Disclaimer: the above is a mere tentative analysis of Part 1 of the Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 and might not reflect how the Department, the AAT or the courts interpret those changes. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.
