The Migration and Other Legislation Amendment (Enhanced Integrity) Act 2018 (Enhanced Integrity Act) came into effect on 13 December 2018 to significantly strengthen sanctions against employer sponsors who breach obligations. Maria Jockel, National Leader and Legal Principal, outlines here what directors and boards need to know about the legislation, which is retrospective to 2015 and carries penalties for breaches.
1. What is the effect of the Enhanced Integrity Act?
The ever-growing world of regulations and data matching means
company directors must understand the legislation, adopt better
governance and risk oversight, and avoid brand damage and director
liabilities while continuing to meet skilled workforce needs.
The Migration and Other Legislation Amendment (Enhanced Integrity)
Act 2018 (Enhanced Integrity Act) came into effect on 13 December
2018 to significantly strengthen the sanctions against approved
employer sponsors who breach applicable obligations under the Subclass
457 and its replacement the Subclass 482 Temporary Skill Shortage
(TSS) visa program.
The Enhanced Integrity Act allows the Minister of Home Affairs to
publish information, including personal information about an approved
sponsor or former sponsor who has failed to meet the applicable
Sponsorship Obligations.
The following information about the sanctions must be published:
- Information identifying the approved sponsor or former approved
sponsor – this may include the business or trading name, the ABN
or individuals within the organisation in the case of sole traders or
partnerships, however, individuals’ personal information released
is limited to business details only;
- The sponsorship obligations that they have failed to satisfy, and other
details of the breach; and
- Action taken against them under the Migration Act 1958, including
details of any sanctions or any subsequent decisions to waive the
sanction.
The Minister of Home Affairs is not required to observe natural justice
rules in publishing this information and no civil liabilities can arise from
the publication, in good faith, of such information.
The Enhanced Integrity Act provisions are retrospective as they allow
for actions that were undertaken under the relevant provisions that
occurred on or after 18 March 2015 to be published.
This means that the Minister of Home Affairs may publish sanctioned
actions that have been undertaken on or after 18 March 2015.
2. Are there implications for director liability under the new Enhanced Integrity Act and if so what are they?
The implications for director liability under the new Enhanced Integrity
Act are significant as the consequences of “naming and shaming” impacts
adversely not only on the business but its directors.
The Department of Home Affairs, together with the Australian Border
Force, has a broad range of powers to monitor and investigate possible
non-compliance with Sponsorship Obligations and a range of measures
to address identified breaches of obligation.
The Department of Home Affairs continues to advance its digital
processing model, including lodgement, assessment and decisionmaking
on visa applications, all of which are lodged online and allow
for great information to be collected, data matched, and analysed.
Data matching is increasingly being used by Commonwealth and State
agencies to effectively detect and deal with compliance risks through
the use of risk detection models and to improve decisions, services
and compliance.
3. Data matching program to enhance compliance and temporary visa program - collecting data for compliance
Directors must be aware of the “Data Matching Program to Enhance
Compliance in the Temporary Skilled Visa Program” which came into
effect in January 2019 and allows the Department of Home Affairs
(through its independent operational enforcement arm, the Australian
Border Force) to exchange data with the ATO to “effectively detect
and deal with compliance risks in the temporary skilled visa program”.
This Data Matching Program will assist to identify:
- Temporary skilled visa holders who are not working in the occupation in which, or for the employer by whom, they were sponsored; and
- Sponsors who are breaching their sponsorship obligations by
incorrectly paying temporary skilled visa holders.
4.What are the main risks of this retrospective legislation?
The Enhanced Integrity Act, together with the Data Matching Program,
allows the Department of Home Affairs, the ATO and other agencies
(including state and territory revenue agencies and law enforcement
agencies) to undertake compliance activity relating to visa holders,
sponsors and migration agents.
With the ATO providing to the Department of Home Affairs the tax
file numbers (TFN) of visa holders or former visa holders across the
temporary and permanent skilled visa programs, the Department of
Home Affairs will have access to records going back to March 2015.
Where there is a match, the ATO will return income and employment
data for the relevant individual/s and business to the Department
of Home Affairs on a periodic basis, so that historic breaches can be
identified and actioned, including by the Australian Border Force which
undertakes Sponsor Monitoring and has extensive powers and reach,
including through interviews, site visits, desk auditing, referral to other
agencies and other sections of the Home Affairs’ Portfolio.
5. In what ways are the levels of regulator scrutiny increasing and what does this mean for directors in the migration area?
It is estimated that around 680,000 records representing some 280,000
individuals will be available in the first data exchange (first quarter)
of the Data Matching Program for the years 2017 to 2020 of Subclass
457/482 primary visa holders.
The ATO provides data to the Department of Home Affairs on:
- Income details from Income Tax Returns and Payment Summaries;
- Employment details from TFN Declarations, Income Tax Returns
and Payment Summaries;
- ABNs for all employers who issued the visa holder a payment
summary, or who the visa holder has declared on their TFN
Declaration or Income Tax Return; and
- Related data from Single Touch Payroll.
Data matching will enable the identification of instances:
- Where ATO data shows that income declared to the ATO is less than
what the approved sponsor was to pay to a visa holder;
- Where ATO data shows that a visa holder has received income from
multiple employers; and
- Where the visa holder may be working in an occupation other than
an approved occupation.
This significant level of regulator scrutiny which will continue to increase
over time, heightens director’s responsibilities in the migration area.
It requires directors to be aware of the extensive data which is provided
to the Department of Home Affairs when a business sponsors overseas
workers including under the new Temporary Skilled Shortage (Subclass
482) Visa Program where all applications are lodged online and allow for
information to be collected, data matched and analysed on a large scale.
The collection and use of TFNs of skilled migrants for compliance
purposes and sharing of data with the ATO and the publication of
personal information about an approved sponsor or former sponsor and
its directors, who have failed to meet applicable Sponsorship Obligations
makes it essential for directors to ensure that they understand, mitigate
and manage risk, and ensure regulatory compliance.
6. Does the legislation mean that better governance and risk oversight is needed? If so please explain why.
Better governance and risk oversight is essential as the Enhanced
Integrity Act and the Data Matching Program enables the identification
of potential breaches, non-compliance and related activities.
The introduction of the Single Touch Payroll Reporting provides the ATO
with real-time payroll data and therefore the opportunity to quickly
identify and act on any anomalies of non-compliance.
The 2019/2020 Budget will provide $82.4 million to support the
expansion of data collected through Single Touch Payroll Reporting by
the ATO and enhance data matching capabilities for Commonwealth
agencies, including the Department of Home Affairs.
From 1 July 2020, all businesses, including those employing less than
20 staff, must comply with the Single Touch Payroll Rules.
Boards, Directors, Senior Managers and Shareholders must create a
corporate culture requiring compliance or suffer the consequences of
“naming and shaming”, reputational and brand damage.
It is no longer a simple process of applying for a visa or becoming an
approved sponsor but rather, a consideration of a whole of enterprise
risk management system and corporate culture which requires an
understanding of the increasingly complex regulatory framework,
and measures which ensure better governance and risk oversight. For further information, please contact Maria Jockel on maria.jockel@bdo.com.au.