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Wednesday, 28 March 2018
Page: 3078

Report from Federation Chamber

Bill returned from Federation Chamber with amendments; certified copy of the bill and schedule of amendments presented.

Federation Chamber' s amendments—

(1) Clause 2, page 2 (table item 2), omit the table item, substitute:

2. Schedule 1

19 November 2018.

19 November 2018

(2) Clause 2, page 2 (table item 6), omit the table item, substitute:

6. Schedule 5

At the same time as Schedule 1 to the Migration Agents Registration Application Charge Amendment (Rates of Charge) Act 2018 commences.

However, the provisions do not commence at all if that Schedule does not commence.

 

(3) Schedule 1, item 1, page 4 (after line 11), after the definition of client in section 275, insert:

eligible, in relation to a person who is, or has been, a restricted legal practitioner, has the meaning given by section 278A.

eligible period has the meaning given by section 278A.

(4) Schedule 1, item 1, page 4 (after line 20), after the definition of related by employment in section 275, insert:

restricted: a practising certificate held by an Australian legal practitioner is restricted if:

(a) it is subject to a condition requiring the practitioner to undertake supervised legal practice for a specified period; and

(b) such a condition was not imposed as a disciplinary measure by an authority responsible for disciplining Australian legal practitioners in a State or Territory.

restricted legal practitioner means an Australian legal practitioner whose practising certificate is restricted.

(5) Schedule 1, page 4 (after line 23), after item 4, insert:

4A Section 275

Insert:

transitional end day has the meaning given by section 333BA.

unrestricted: a practising certificate held by an Australian legal practitioner is unrestricted if it is not restricted.

unrestricted legal practitioner means an Australian legal practitioner whose practising certificate is unrestricted.

(6) Schedule 1, page 4 (after line 25), after item 5, insert:

5A Before section 279

Insert:

278A Eligibility requirements for restricted legal practitioners

Who is eligible?

(1) A person who is, or has been, a restricted legal practitioner is eligible during the eligible period, or a longer period as extended under this section.

(2) The eligible period is the period of 2 years after the person first held a restricted practising certificate.

Extension of eligible period

(3) An eligible person who is a registered migration agent may apply to the Migration Agents Registration Authority for an extension of the eligible period for a period of up to 2 years:

(a) in a form approved in writing by the Authority, containing such information relevant to the application as is required by the form; and

(b) if the application is made 3 months or more before the end of the eligible period.

(4) A person may make no more than one application for extension under subsection (3).

(5) On an application under subsection (3), the Authority must, by written notice given to the applicant before the start of the period, determined under subsection (8), that precedes the end of the eligible period:

(a) extend the eligible period by a stated period of no more than 2 years; or

(b) refuse to extend the eligible period.

(6) The Authority may extend the eligible period by a particular period only if the Authority considers it reasonable to do so in the circumstances, including (but not limited to) any circumstances determined under subsection (8).

(7) The notice of the decision must include any details of the decision determined under subsection (8).

(8) The Minister may, by legislative instrument, make a determination for the purposes of subsection (5), (6) or (7).

Review by Administrative Appeals Tribunal

(9) Applications may be made to the Administrative Appeals Tribunal for review of a decision by the Authority:

(a) under paragraph (5) (a), to extend the eligible period by a particular stated period; or

(b) under paragraph (5) (b), to refuse to extend the eligible period.

Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires that people whose interests are affected by reviewable decisions of the Authority be given notice of their rights to seek review of the decisions.

(7) Schedule 1, item 13, page 6 (lines 5 to 13), omit section 289B, substitute:

289B Applications by Australian legal practitioners

(1) An applicant must not be registered if he or she is an unrestricted legal practitioner.

(2) If an applicant is a restricted legal practitioner, he or she must not be registered unless he or she is eligible.

Note 1: A person who is, or has been, a restricted legal practitioner is eligible during the period of 2 years (or an extended period) after the person first held a restricted practising certificate (see section 278A).

Note 2: A registered migration agent must notify the Migration Agents Registration Authority within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see section 312).

Note 3: The Authority must cancel the registration of an agent who is, or has become, an unrestricted legal practitioner, or who is a restricted legal practitioner who is not eligible, or is no longer eligible (see section 302A).

Note 4: The application of this section is deferred for registered migration agents who were restricted legal practitioners on 19 November 2018, when this section commenced (see section 333BA).

(8) Schedule 1, item 15, page 6 (line 28) to page 7 (line 5), omit subsection (1), substitute:

(1) The Migration Agents Registration Authority must cancel the registration of a registered migration agent, by removing his or her name from the Register, if the Authority is satisfied:

(a) that the agent is, or has become, an unrestricted legal practitioner under the law of a State or Territory; or

(b) that the agent is a restricted legal practitioner under the law of a State or Territory who is not eligible, or has stopped being eligible.

Note 1: A person who is, or has been, a restricted legal practitioner is eligible during the period of 2 years (or an extended period) after the person first held a restricted practising certificate (see section 278A).

Note 2: A registered migration agent must notify the Authority within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see section 312).

Note 3: An unrestricted legal practitioner, or a restricted legal practitioner other than an eligible restricted legal practitioner (see section 278A), cannot be registered as a migration agent (see section 289B).

Note 4: The application of this section is deferred for registered migration agents who were restricted legal practitioners on 19 November 2018, when this section commenced (see section 333BA).

(1A) The Authority may cancel the registration of a registered migration agent under subsection (1) because of the status of the agent as an Australian legal practitioner only on the basis of a document authorised by a body authorised to grant practising certificates to Australian legal practitioners in the relevant State or Territory.

(9) Schedule 1, item 20, page 7 (line 27), after "section 333B", insert "or 333BA".

(10) Schedule 1, item 20, page 8 (lines 3 to 7), omit the note, substitute:

Note 1: The Authority must cancel the registration of an agent who is, or has become, an unrestricted legal practitioner, or that of an agent who is a restricted legal practitioner, but is not eligible, or is no longer eligible (see section 302A).

Note 2: Section 333B provides that the registration of an unrestricted legal practitioner as a migration agent ends on 19 November 2018. However, for registered migration agents who were restricted legal practitioners on that day (when this section commenced), see section 333BA.

(11) Schedule 1, item 22, page 8 (lines 21 to 23), omit the item, substitute:

22 At the end of section 312

Add:

(4) A registered migration agent must notify the Migration Agents Registration Authority in writing within 28 days after he or she becomes:

(a) a restricted legal practitioner; or

(b) an unrestricted legal practitioner.

Penalty: 100 penalty units.

(5) An offence against subsection (4) is an offence of strict liability.

Note: For strict liability, see section 6.1 of the Criminal Code.

(12) Schedule 1, items 26 and 27, page 9 (lines 1 to 16), omit the items, substitute:

26 Section 319 (heading)

Repeal the heading, substitute:

319 Referral of conduct of certain migration agents to legal disciplinary authorities

27 Subsection 319(1)

Repeal the subsection, substitute:

Referral generally

(1) The Migration Agents Registration Authority may refer the conduct of a registered migration agent, or a former registered migration agent, who is an Australian legal practitioner to an authority responsible for disciplining Australian legal practitioners in a State or Territory if:

(a) the legal practitioner was granted his or her practising certificate under the law of that State or Territory; and

(b) the conduct occurred while the legal practitioner was a registered migration agent, whether or not the conduct occurred in connection with legal practice.

(13) Schedule 1, item 30, page 10 (line 1), omit "1 July 2018", substitute "19 November 2018".

(14) Schedule 1, item 30, page 10 (lines 6 and 7), omit "1 July 2018", substitute "19 November 2018".

(15) Schedule 1, item 30, page 10 (line 10), omit "1 July 2018", substitute "19 November 2018".

(16) Schedule 1, item 30, page 10 (lines 13 and 14), omit the heading to section 333B, substitute:

333B Registered migration agents who were unrestricted legal practitioners immediately before 19 November 2018

(17) Schedule 1, item 30, page 10 (line 17), omit "1 July 2018", substitute "19 November 2018".

(18) Schedule 1, item 30, page 10 (line 21), paragraph 333B(1) (b), omit "Australian", substitute "unrestricted".

(19) Schedule 1, item 30, page 10 (line 24), omit "1 July 2018", substitute "19 November 2018".

(20) Schedule 1, item 30, page 10 (lines 25 to 28), omit subsection 333B(3).

(21) Schedule 1, item 30, page 10 (after line 28), after section 333B, insert:

333BA Registered migration agents who were restricted legal practitioners immediately before 19 November 2018

Scope

(1) This section applies in relation to a person who, immediately before 19 November 2018, was both:

(a) a registered migration agent (even if, at any time before that day, the registration was under suspension, or had been taken to continue under subsection 300(4)); and

(b) a restricted legal practitioner.

End of registration

(2) The person's registration as a migration agent ends:

(a) if the person continues to be both a registered migration agent and a restricted legal practitioner until immediately before the transitional end day—immediately before the transitional end day; or

(b) if, before the transitional end day, the person's practising certificate becomes unrestricted—at the end of the day on which the practising certificate becomes unrestricted; or

(c) if, before the transitional end day, the person stops being an Australian legal practitioner—when the registration would otherwise end under this Part; or

(d) in any other case—when the registration would otherwise end under this Part.

(3) The transitional end day is:

(a) 19 November 2020; or

(b) a later day (no later than 19 November 2022) approved for the person by the Migration Agents Registration Authority under section 333BB.

Deferral of prohibitions affecting restricted legal practitioners

(4) Sections 289B and 302A do not apply in relation to the person until:

(a) if the person's registration ends as mentioned in paragraph (2) (a)—the start of the transitional end day; or

(b) in any other case—the earlier of:

(i) immediately after the day the person's registration ends as mentioned in paragraph (2) (b), (c) or (d); and

(ii) the start of the transitional end day.

Note 1: Section 289B prevents an unrestricted legal practitioner, or a restricted legal practitioner who is not eligible (see section 278A), from being registered as a migration agent.

Note 2: Section 302A requires the Authority to cancel the registration of an agent who is, or has become, an unrestricted legal practitioner, or who is a restricted legal practitioner who is not eligible, or is no longer eligible.

333BB Registered migration agents who were restricted legal practitioners immediately before 19 November 2018—later transitional end day

Approval of a later transitional end day

(1) A registered migration agent covered by section 333BA may apply to the Migration Agents Registration Authority for approval of a later transitional end day, no later than 19 November 2022:

(a) in a form approved in writing by the Authority, containing such information relevant to the application as is required by the form; and

(b) if the application is made before 19 August 2020.

(2) A person may make no more than one application for approval under subsection (1).

(3) On an application under subsection (1), the Authority must, by written notice given to the applicant before the start of the period, determined under subsection (6), that precedes 19 November 2020:

(a) approve a stated day, no later than 19 November 2022, as a later transitional end day for the applicant; or

(b) refuse to approve a later transitional end day for the applicant.

(4) The Authority may approve a particular later transitional end day for the applicant only if the Authority considers it reasonable to do so in the circumstances, including (but not limited to) circumstances determined under subsection (6).

(5) The notice of the decision must include any details of the decision determined under subsection (6).

(6) The Minister may, by legislative instrument, make a determination for the purposes of subsection (3), (4) or (5).

Review by Administrative Appeals Tribunal

(7) Applications may be made to the Administrative Appeals Tribunal for review of a decision by the Authority:

(a) under paragraph (3) (a), to approve a particular later transitional end day; or

(b) under paragraph (3) (b), to refuse to approve a later transitional end day.

Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires that people whose interests are affected by reviewable decisions of the Authority be given notice of their rights to seek review of the decisions.

(22) Schedule 1, item 30, page 11 (line 1), omit "1July 2018", substitute "19November 2018".

(23) Schedule 1, item 30, page 11 (line 4), omit "1 July 2018", substitute "19 November 2018".

(24) Schedule 1, item 30, page 11 (line 11), omit "The amendments", substitute "Subject to section 333BA, the amendments".

(25) Schedule 1, item 30, page 11 (lines 13 and 14), omit "1 July 2018", substitute "19 November 2018".

(26) Schedule 1, item 30, page 11 (lines 15 to 17), omit the note, substitute:

Note 1: On and after 19 November 2018, some Australian legal practitioners cannot be registered as migration agents (see section 289B).

Note 2: Section 333BA covers registered migration agents who were restricted legal practitioners immediately before 19 November 2018.

(27) Schedule 1, item 30, page 11 (line 18), omit "Australian", substitute "unrestricted".

(28) Schedule 1, item 30, page 11 (line 19), omit "1 July 2018", substitute "19 November 2018".

(29) Schedule 1, item 30, page 11 (line 20), omit "1 July 2018", substitute "19 November 2018".

(30) Schedule 1, item 30, page 11 (line 23), omit "1 July 2018", substitute "19 November 2018".

(31) Schedule 1, item 30, page 11 (line 31), omit "1 July 2018", substitute "19 November 2018".

(32) Schedule 2, item 4, page 14 (line 5), omit "1 January 2018", substitute "19 November 2018".