This article will tackle inspector powers under the Migration Act 1958. Such powers are laid out under sections 140UA to 140XC of the Act.
As Australia's borders are constantly threatened by illegal immigration and other security risks, immigration inspectors play a vital role in keeping our country safe. These highly trained and experienced professionals enforce Australia's immigration laws and regulations and have a wide range of powers to do so.
From conducting routine inspections of businesses and individuals to investigating suspected breaches of the law, immigration inspectors are always on the lookout for potential threats to Australia's borders.
The work of immigration inspectors is often challenging and demanding, but it is also essential to the security of our nation. These dedicated professionals play a vital role in keeping Australia safe, and they deserve our thanks and appreciation.
Section 140V: Inspectors
Who is an inspector? Under the Migration Act 1958, section 140V defines an inspector as a person, or a member of a class of persons:
- appointed by the Minister (an appointed inspector) or
- a Fair Work Inspector.
An appointed inspector is a person appointed by the Minister through a written instrument for the period specified in the instrument of appointment. The appointment period must not be longer than the period specified in regulations.
Moreover, the inspector can exercise powers that the Minister specifies on the instrument of their appointment. Read on to learn more about these powers.
On the other hand, a Fair Work Inspector is an appointed person under section 700 of the Fair Work Act 2009. The Commonwealth, State, or Territory appoints such a person to be an inspector.
The period of appointment of an inspector is included in the instrument of appointment. However, such a period should not exceed four (4) years. Also, if the period expires, the Fair Work Ombudsman may reappoint a Fair Work Act Inspector in such a position.
Section 140UA and 140X: Exercise of Inspector Powers, its Purpose, and When it May Be Exercised
Under section 140UA, an inspector may exercise powers under this Act for the purposes provided under section 140X. Such purposes are the following:
- To investigate whether a sponsorship obligation is being, or has been, complied with by a person who is or was an approved work sponsor; or
- To investigate whether a person who is or was an approved work sponsor has committed an offence, or contravened a civil penalty provision under Subdivision C or D of Division 12 of this Part; or
- For any purpose prescribed by the regulations.
Moreover, a Fair Work Inspector may exercise compliance powers under section 706 of the Fair Work Act 2002 (FWA). These powers are the following:
- To determine whether the FWA or a fair work instrument is being, or has been, complied with;
- To determine whether a safety net contractual entitlement is being, or has been, contravened by a person;
Additionally, an inspector may exercise compliance powers to determine if there is a contravention of a safety contractual entitlement only if the inspector reasonably believes that the person has contravened one or more of the following:
- a provision of the National Employment Standards;
- a term of a modern award;
- a term of an enterprise agreement;
- a term of workplace determination;
- a term of a national minimum wage order;
- a term of an equal remuneration order.
Section 140XA stipulates that an inspector may exercise powers:
- at any time during working hours; or
- at any other time if the inspector reasonably believes that it is necessary to do so for the purposes referred to in section 140X.
Section 140W: Identity Cards of Inspectors
This section defines and elaborates on details about the identity cards used by inspectors. The Minister issues an identity card to an appointed inspector or a Fair Work Inspector. The card must:
- contain a recent photograph of the inspector
- comply with the prescribed form.
Moreover, this section requires the inspector to always carry an identity card when exercising inspector powers.
If an appointed person ceases to be an inspector and fails to return one's identity card to the Secretary within 14 days after ceasing to be an inspector, such person commits an offence. This offence is an offence of strict liability (a defendant is liable for committing an action, regardless of what his/her intent was).
The penalty for such an offence is one (1) penalty unit. Under the Crimes Act 1914, the value of a penalty unit is currently $313 for offences committed on or after 1 July 2023.
However, if the identity card was lost or destroyed, an inspector is not liable for the offence. Here, the defendant bears the evidential burden (the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist) to prove that the identity card was lost or destroyed.
Section 140XB: Power of Inspectors to Enter Premises or Places
The Section 140XB explains how an inspector may enter premises or places in line with their powers.
- An inspector may, without force, enter business premises or
another place, if the inspector reasonably believes that there are
records or documents relevant to the purposes referred to in
section 140X:
- on the premises or at the place, or
- accessible from a computer on the premises or at the place.
- The inspector must, either before or as soon as practicable
after entering those premises or that place, show his or her
identity card to:
- the occupier, or
- another person who apparently represents the occupier if the occupier or other person is present at the premises or place.
Section 140XC: Powers of Inspectors While on Premises or Places
In connection with section 140XB, section 140XC clarifies the powers that inspectors can exercise while they are on the premises or at a place they intend to inspect. Here are the rules:
An inspector or a Fair Work Inspector who enters premises or a place may exercise one or more of the following powers while on the premises or at the place:
- inspect any work, process, or object;
- interview any person;
- require a person to tell the inspector who has custody of, or access to, a record or document;
- require a person who has the custody of, or access to, a record or document to produce the record or document to the inspector either while the inspector is on the premises or at the place, or within a specified period;
- inspect, and make copies of, any record or document that:
- is kept on the premises or at the place; or
- is accessible from a computer kept on the premises or at the place.
Contact an Immigration Lawyer to Know More About Inspector Powers
Inspectors have the power to investigate and enforce Migration Act 1958 compliance. These powers include the right to enter and search premises and require people to produce documents.
However, inspectors must have reasonable grounds for exercising their powers. If you believe an inspector has abused their powers, you can challenge their actions in court. It is essential to be aware of your rights and to know what to do if you are subject to the exercise of inspector powers.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
