Strict Liability for Employers
Strict liability applies for business engaging illegal workers.
Under s.486ZF of the Migration Act, the mere fact that there is a worker engaged illegally is sufficient to establish a civil penalty (ie fines). It is not necessary to prove the person’s intention, knowledge, recklessness, negligence or any other state of mind for a business to be penalised for illegal worker.
This strict liability approach puts the burden of proof on the business to show that it has taken reasonable steps to check the visa conditions of its workers.
If a worker is detected working in breach of visa conditions or with no visa, the business must establish a “statutory defence” by showing they have been taking “reasonable steps” at “reasonable times” to comply and ensure workers are engaged legally.
Some offences do not operate on a strict liability basis and require the employer’s state of mind to be established:
- Company Directors and Officers: knowledge or negligence required
- Criminal Offences: knowledge or recklessness must be proven