Australia: Risk, governance and compliance – the new immigration law regulatory environment

Last Updated: 12 April 2016
Article by Maria Jockel

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 compliance.

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 penalties.

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 relevant to your circumstances please contact one of the named individuals listed.

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Maria Jockel
 
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