D10.10 Section 39(1) and 40(1) offences

1. For a prosecution to succeed under sections 39(1) or 40(1) of the Act it is necessary to prove that:
   1. in the case of section 39(1), the employer, despite knowing a person is not entitled to undertake employment in New Zealand, allows or continues to allow that person to undertake employment; or
   2. in the case of section 40(1), the 'educator', despite knowing a person is not entitled to undertake a course of study or training, allows or continues to allow that person to undertake the course of study or training.
2. In either case the employer or 'educator' is considered to know a person does not have authority respectively to undertake employment or a course of study or training, if the employer or the 'educator' has been informed of that fact in writing by an immigration officer within the preceding 12 months, or if other evidence of knowledge is available.
3. If a person is found to be undertaking employment or a course of study or training without authority then an immigration officer may require the employer or 'educator' to stop employing, teaching, or training that person. The immigration officer should confirm that requirement in writing and include a warning that failure to comply may result in prosecution. Revocation of the person's permit should also be considered.
4. No employer is liable for an offence under section 39(1) if they continue to employ a person while complying with the minimum requirements of an employment contract relating to termination of employment.

Effective 01/10/1999