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Employer work-entitlement checks: tax-declaration excuse replaced by due diligence

Validated finding · five-country-2010-20260922-v118-evidence-presentation-fix

CountryNew Zealand
Operative dateNovember 29, 2010
CategoryBorder and land control
Policy toolEmployer liabilities
Affected groupEmployers checking employees’ entitlement to work

Policy effect

From November 29, 2010, section 350 of the Immigration Act 2009 continued offences concerning employment of people not entitled to work, but replaced the former specific tax-code-declaration excuse with a defence requiring both lack of knowledge and reasonable precautions and due diligence to establish work entitlement. Under section 39 of the preceding Act, lack of knowledge combined with a declaration stating entitlement, signed before or when employment began, had provided the specified reasonable excuse. Written notice from an immigration officer within the preceding 12 months continued to establish deemed knowledge. The exception for continued employment during the minimum contractual termination-notice period also continued.

Conditions and exceptions

Validated condition or limit: Under section 39 of the preceding Act, lack of knowledge combined with a declaration stating entitlement, signed before or when employment began, had provided the specified reasonable excuse.; Written notice from an immigration officer within the preceding 12 months continued to establish deemed knowledge.; The exception for continued employment during the minimum contractual termination-notice period also continued.

Official source excerpt

Quoted verbatim from the official source below. Ellipses indicate omitted text.

350 Offences by employers (1) Every employer commits an offence against this Act who— (a) allows or continues to allow any person to work in that employer’s service, knowing that the person is not entitled under this Act to do that work; or (b) allows a person who is not entitled under this Act to work in the employer’s service to do that work. (2) Subsection (1)(a) applies whether the person commenced work in the employer’s service before or after the commencement of this section. (3) It is a defence to a charge under subsection (1)(b) that the employer— (a) did not know that the person was n … 000) relating to the giving of notice on termination of employment. Compare: 1987 No 74 s 39 … ot entitled to do the work; and (b) took reasonable precautions and exercised due diligence to ascertain whether the person was entitled to do the work. (4) Except as provided in subsection (3), it is not a defence to a charge under subsection (1)(b) that the employer did not know that the person was not entitled under this Act to do that work. (5) An information alleging an offence against this section may specify any day on which it is alleged the person was working for the employer, and need not state the day on which that work is alleged to have commenced. (6) For the purposes of this sect … 39 Responsibility of employers (1) Every employer commits an offence against this Act who allows or continues to allow any person to undertake employment in that employer's service knowing that the person is not entitled under this Act to undertake that employment. (1A) Every employer commits an offence against this Act who, without reasonable excuse, allows a person who is not entitled under this Act to undertake employment in the employer's service to undertake that employment. (1B) For the purposes of subsection (1A), it is a reasonable excuse for allowing a person who is not entitled under … this Act to undertake employment in an employer's service to undertake that employment that the employer concerned did not know that the person was not entitled to undertake that employment, and holds a tax code declaration— (a) that states that the person is entitled under the Immigration Act 1987 to undertake employment in the employer's service; and (b) that was signed by the person before or when that employment began. (1C) Except as provided in subsection (1B), for the purposes of subsection (1A), it is not a reasonable excuse for allowing a person who is not entitled under this Act to u … ion, an employer is treated as knowing that an employee is not entitled under this Act to do any particular work if, at any time in the preceding 12 months (whether before or after the commencement of this section), the employer has been informed of that fact in writing by an immigration officer. (7) No employer is liable for an offence against this section in respect of any period during which the employer continues to allow any person to work in the employer's service in compliance with the minimum requirements of any employment agreement (within the meaning of the Employment Relations Act 2 … and with the consent of the Executive Council, makes the following order. Show contents Contents Order 1 Title This order is the Immigration Act 2009 Commencement Order 2010. 2 Commencement of certain provisions of Immigration Act 2009 (1) Section 477 of the Immigration Act 2009 comes into force on 2 August 2010. (2) The remaining sections of the Immigration Act 2009 that are not in force immediately before 2 am on 29 November 2010, except the following sections, come into force at 2 am on 29 November 2010: (a) section 30: (b) section 31: (c) section 60: (d) section 100: (e) section 104: (f) s …
New Zealand Legislation / Parliamentary Counsel OfficeImmigration Act 1987 (historical); Immigration Act 2009 (historical); Immigration Act 2009 Commencement Order 2010Open official source
Retrieved from https://www.legislation.govt.nz/act/public/2009/51/en/2010-11-29

Review method

Source-based draft with independent Gemini 3.8 Flash verification

Automated source validation is not independent human legal review. The finding should not be treated as legal advice. Record fcp-dc3dcc92748ef8dc33ab. Something wrong? Flag this record.

Other New Zealand changes operative in 2010