Most coverage of the prohibited employer regime answers the wrong question. It explains what a prohibited employer is. The question employers actually ask, usually in a hurry, is narrower and more practical: if we are declared, what happens to the people already working here?
The answer is in section 245AYL of the Migration Act 1958, and it is more contained than the name suggests.
What a declaration actually stops
A prohibited employer is a person the Minister has declared to be one under section 245AYK(1), while that declaration is in effect. That is the whole definition, at section 245AYD.
While a declaration is in effect, a prohibited employer must not allow certain additional non-citizens to begin work, or have a material role in a decision by a company or other body to do so.
Read that again, because the operative word is additional. The prohibition is directed at new starters. It does not, on its own terms, require you to dismiss the sponsored employees you already have. What stops is bringing more migrant workers in.
That distinction matters commercially. A declaration is not an instruction to dismantle your existing workforce, and treating it as one can create employment law problems on top of the migration ones.
The penalty for getting it wrong
Contravening section 245AYL carries imprisonment for 2 years or 360 penalty units, or both, with a civil penalty alternative of 240 penalty units.
If you have read that a prohibition carries five years imprisonment, that figure does not match section 245AYL. Penalty amounts here are set in penalty units, and the value of a unit is indexed under section 4AA of the Crimes Act 1914, so convert from units rather than trusting a dollar figure of unknown vintage. We set out the current position in our guide to what a sponsorship breach costs.
You get a right of reply, and it is a real one
The Minister cannot simply declare you. Section 245AYK(3) requires a written notice first, stating that the Minister proposes to make the declaration and the reasons for it, and inviting you to make a written submission setting out why the declaration should not be made.
You have at least 28 days from the day you are given that notice, or longer if the notice states a longer period.
This is the single most important paragraph on this page. A proposal notice is not a decision, and the window is short. It is the point at which evidence about what happened, what you have fixed, and who would be affected can still change the outcome.
What the Minister must weigh
Section 245AYK(5) sets out mandatory considerations, and reading them tells you what a submission should actually address:
- your written submission, if it arrives in time
- the nature and severity of the non-compliance
- the impact on the non-citizen concerned, on any other individuals affected, and on the relevant industry, including reputation and economic repercussions
- whether the non-compliance was intentional, reckless or inadvertent
- the likely impact of the declaration on your other employees and on services you provide to the community
- your history of compliance or non-compliance
- your response to the non-compliance
- how much time has passed since it occurred
The Subdivision’s stated objects at section 245AYAA reinforce the point. They include ensuring that non-compliance is dealt with in a way that considers the impact of sanctions on the non-citizens, the employer, and the community as a whole, and requiring that a prohibition and its duration be proportionate to the misconduct.
An employer who has already remediated, and can evidence it, is engaging with criteria the Minister is obliged to consider.
When you become exposed in the first place
A declaration can only be made where you are subject to a migrant worker sanction and the five year period starting when you became subject to it has not ended. Each time you become subject to a sanction, a fresh five year period starts.
The triggers sit at sections 245AYE to 245AYJ. One of them catches employers by surprise: under section 245AYE, having a bar placed on you as an approved work sponsor under section 140M(1)(c) or (d) makes you subject to a migrant worker sanction. In other words, an ordinary sponsorship bar can become the gateway to a prohibition.
That is why the sponsorship obligations that look administrative are worth taking seriously. The path from a missed notification to a public prohibition is shorter than most businesses assume.
Publication, and why it outlasts the prohibition
If a declaration is made, section 245AYM requires the Minister to publish on the Department’s website your name, your ABN, any other information reasonably necessary to identify you, the reasons for the declaration, and the period it runs for.
The register of declarations is maintained on the Australian Border Force employer prohibition pages. Then subsection (5), which is the part employers should read twice. To avoid doubt, the Minister is not required to remove that information from the website when you stop being a prohibited employer.
The prohibition ends. The published record does not have to. For a business that recruits internationally, that is usually the most durable consequence in the whole regime.
The 12 month tail after it ends
Ceasing to be a prohibited employer does not return you to normal immediately. Under section 245AYN, a former prohibited employer must give the Department specified information about certain lawful non-citizens they allow to begin work in the 12 month period after the prohibition ends.
Failing that reporting duty carries a civil penalty of 48 penalty units. It is an easy obligation to overlook precisely because the main event is over.
Frequently asked questions
Do we have to sack our sponsored employees if we are declared a prohibited employer?
Section 245AYL prohibits allowing additional non-citizens to begin work. It does not by its terms require existing sponsored employees to be dismissed. Your other sponsorship obligations continue to apply to them, so this is a point to get specific advice on rather than act on quickly.
How long does a prohibition last?
The Minister declares a person to be a prohibited employer for a period, and the Subdivision requires that the prohibition and its duration be proportionate to the misconduct. The period is stated in the declaration and is published with it.
Can we respond before a declaration is made?
Yes. The Minister must give written notice of the proposal and the reasons, and invite a written submission. You have at least 28 days from the day you are given the notice, or longer if the notice specifies.
Can a Fair Work matter lead to a migration prohibition?
The triggers for being subject to a migrant worker sanction sit across sections 245AYE to 245AYJ and are not limited to migration decisions alone. Employers with a workplace relations issue on foot should consider the migration consequences at the same time rather than afterwards.
Is the declaration reviewable?
A declaration under section 245AYK(1) is not a legislative instrument, and it can be varied or revoked under subsection 33(3) of the Acts Interpretation Act 1901. If you have received a proposal notice or a declaration, get advice promptly, because the timeframes are short.
Will the publication ever come down?
Section 245AYM(5) states that the Minister is not required to remove published information when the person stops being a prohibited employer. Plan on it remaining.
A realistic next step
If a proposal notice has landed, the 28 day window is the whole ball game, and it is being spent from the day it arrives. If one has not, the useful work is upstream, making sure an ordinary sponsorship bar never becomes the trigger. Our team advises Australian businesses on employer sponsorship and compliance, and you can book a consultation with our migration lawyers.
About the author: Tina Nematian is the Principal Lawyer at One Planet Migration Law. She is an Australian Legal Practitioner and a Registered Migration Agent (MARN), and has guided clients through partner, skilled, employer-sponsored, student, and humanitarian visa applications across Australia.
This article is general information only and does not constitute legal or migration advice. Visa rules change frequently and outcomes depend on individual circumstances. Speak with a registered migration lawyer or agent before making any application. Figures were current as of August 2026; always check immi.homeaffairs.gov.au before lodging.
