The merger of the Department of Immigration and Border
Protection with the Australian Customs and Border Protection
Service (the Department) and the establishment of
the Australian Border Force as the operational enforcement arm,
reflects a new regulatory environment.
The Department is now an enforcement agency, and in some
contexts, a criminal law enforcement agency. It employs
sophisticated risk assessments through visa programs, and works
with other government agencies and international partners to ensure
compliance and to deliver enforcement outcomes.
The Australian Border Force Commissioner has significant powers
held concurrently with the Secretary of the Department and the same
standing as other heads of key national security related agencies,
such as the Commissioner of the Australian Federal Police.
The Department has extensive powers to conduct its work in
enforcing Australia's sovereignty at the border through the
application of Australia's immigration and criminal laws.
Apart from the raft of regulatory initiatives and reviews which
the Department continues to undertake, and which individuals and
business must navigate, the level of regulatory scrutiny and
enforcement activity has increased substantially.
This is evident from the number of actions brought by regulatory
and enforcement bodies including the Department and Fair Work
Ombudsman and the scale of penalties and fines imposed in respect
of breaches of the law.
In this new environment, the current operational risk management
models are inadequate. Most are not embedded in strong
business practices that reflect operational risk exposure and
ensure regulatory compliance.
There is a requirement for better standards of governance and
risk oversight and management of operational risks.
There is a need to adopt a broader enterprise risk management
approach where risk is embedded into the strategic and business
planning decision-making processes within the organisation and are
part of overall enterprise risk management.
The complexity of Australia's immigration laws and policies,
and the dynamic regulatory environment mean senior management has a
clear responsibility to develop and drive a culture of
New era of regulatory compliance
With the Department's and the Australian Border Force's
focus on protecting the integrity of the migration system, the era
of robust regulatory compliance has significantly expanded the
authority and reach of the Department and its operations.
With the shift of responsibility for foreign workers from
government to the employer and clear obligations on employers in
respect of foreign workers, there is a greater need to manage
immigration risk and understand that the range of penalties in the
event of a breach may include administrative, civil and criminal
With an increasing reliance on personal liability of directors
and executive officers, strict interpretation and enforcement of
current rules and Regulations, and an increase in the use of audits
and work site visits/inspections, companies need to review how they
operate in regard to all aspects of their business operations so as
to ensure regulatory compliance across the whole of business.
The sharing of data across government agencies and the systems
to support this data sharing is reflected in the Department's
protocols with the Australian Taxation Office
(ATO) to share information of more than one
million temporary visa holders' records held by the Department
so that these are matched with the ATO's taxation and
registration systems annually.
The ATO has established a number of protocols which aim to
enable the enforcement and recovery of taxation revenue by the ATO
and to assist in the maintenance of the integrity of the temporary
visa programmes by the Department.
The ATO has established Data Matching Programme Protocols with
banking and financial institutions, a range of corporations, the
Foreign Investment Review Board, insurers and other private and
public sector organisations which information is used by taxation
administration for compliance purposes.
This publication does not deal with every important topic or
change in law and is not intended to be relied upon as a substitute
for legal or other advice that may be relevant to the reader's
specific circumstances. If you have found this publication of
interest and would like to know more or wish to obtain legal advice
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Recent amendments to the Migration Act and regulations, along with the imminent commencement of the new federal safety net under the Fair Work Act, highlight a number of issues for consideration by employers in documenting terms and conditions of employment for foreign nationals engaged to work in Australia under Subclass 457- Business (Long Stay) visas.
A quick refresher of the rights and obligations for employers (sponsors) when ending a 457 visa holder's employment.
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