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Migration Legislation Amendment (Migration Agents) Bill 2002

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2002

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

MIGRATION LEGISLATION AMENDMENT (MIGRATION AGENTS) BILL 2002

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 (Circulated by authority of the

Minister for Immigration and Multicultural and Indigenous Affairs,

The Hon. Philip Ruddock MP)

 

 



MIGRATION LEGISLATION AMENDMENT (MIGRATION AGENTS) BILL 2002

 

OUTLINE

 

Overview

 

1.                   The Migration Legislation Amendment (Migration Agents) Bill 2002 (“the Bill”) makes a number of amendments to the Migration Act 1958 (“the Act”) relating to the regulation of migration agents.

 

2.                   Part 3 of the Act provides a scheme for the regulation of persons who seek to act as migration agents.   In general terms, a migration agent is an individual who uses, or purports to use, his/her knowledge of, or experience in, migration procedure to give what is defined in the Act as “immigration assistance”.

 

3.                   The amendments in the Bill change the scheme for the regulation of migration agents by:

 

·                 providing the Migration Agents Registration Authority (“the MARA”) with the power to investigate complaints made against former registered migration agents and to subsequently bar such agents from returning to the industry, for a certain period of time, if it is satisfied that a complaint is made out;

·                 including a carry-over provision for migration agents applying for repeat registration so that they remain registered until the MARA has made a decision on their application, but only if they apply for re-registration before the expiry of their existing registration; and

·                 introducing a flexible mechanism for further defining what kinds of activities come within the scope of the regulatory scheme.

 

4.                   The purpose of the first amendment is to ensure that migration agents cannot avoid the disciplinary provisions of the existing regulatory scheme simply by deregistering or allowing their registration to expire.   This will be achieved by giving the MARA the power to start and complete investigations of a complaint about a migration agent in relation to his or her provision of immigration assistance even where the agent is no longer registered (as long as the complaint is not received more than 12 months after the registration has ceased).

 

5.                   The MARA will also have the power (subject to certain requirements) to bar the return of former registered migration agents to the industry for five years if it is satisfied that a complaint about the agent’s provision of immigration assistance is made out.  This power is analogous to and will operate in a similar way to existing provisions in the regulatory scheme which apply to the cancellation or suspension of the registration of a migration agent.

 

6.                   The second amendment is intended to ensure that certain migration agents are not disadvantaged by delays in processing repeat registration applications.

 

7.                   The final amendment is intended to, amongst other things, allow regulations to be made to ensure that certain types of “in house” assistance (for example - from an employer in relation to a prospective employee) do not fall within the scope of the regulatory scheme.   

 

FINANCIAL IMPACT STATEMENT

 

8.                   These amendments will have minimal financial impact.

 

 



MIGRATION LEGISLATION AMENDMENT (MIGRATION AGENTS) BILL 2002

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short Title

 

1.                   The short title by which this Act may be cited is the Migration Legislation Amendment (Migration Agents) Act 2002.

 

Clause 2          Commencement

 

2.                   Subclause 2(1) contains a table setting out the commencement information for the Act.  The subclause also provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

 

3.                   The effect of items 1, 2, 4, and 6 of the table is that the following provisions commence on the day on which the Act receives the Royal Assent:

 

·                 Sections 1, 2 and 3 of the Act;

·                 Items 1, 2, 4, 6, 7, and 8 of Schedule 1 to the Act; and

·                 Anything elsewhere in the Act that is not covered by the table in subclause 2(1).

 

4.                   The effect of items 3, 5, and 7 of the table is that items 3, 5, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of Schedule 1 to the Act commence on a single day to be fixed by Proclamation.

 

5.                   The note in subclause 2(1) makes it clear that the table only relates to the provisions of the Act as originally passed by the Parliament and assented to.  The table will not be expanded to deal with provisions inserted into the Act after it receives the Royal Assent.

 

6.                   Subclause 2(2) provides that column 3 of the table in subclause 2(1) is for additional information that may be included in any published version of the Act but which is not part of the Act.

 

7.                   Subclause 2(3) provides that if a provision covered by item 3, 5 or 7 of the table in subclause 2(1) does not commence within 6 months of this Act receiving the Royal Assent, then it will commence on the first day after the end of that period.



 

Clause 3          Schedule(s)

 

8.                   This clause provides that each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.



 

SCHEDULE 1 - Amendments

 

 

Migration Act 1958

 

Item 1                         At the end of section 276

 

9.                   This item inserts new subsection 276(4) at the end of section 276 of the Act.

 

10.               Briefly, under subsections 276(1) and 276(2), a person gives “immigration assistance” if he or she uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant, a cancellation review applicant or certain other persons.

 

11.               New subsection 276(4) provides an exception to subsections 276(1) and 276(2).  It makes it clear that a person does not give immigration assistance in the circumstances prescribed by the Migration Regulations 1994 (“the Regulations”).

 

12.               New subsection 276(4) provides a flexible mechanism to deal with specific kinds of activities that are not intended to be captured by the regulatory scheme.  

 

13.               For example, under new subsection 276(4) it would be possible to prescribe that specific kinds of help given to applicants seeking visas of specified classes does not constitute “immigration assistance” where it is given by employers to actual or intending employees.

 

Item 2              At the end of section 282

 

14.               This item inserts new subsection 282(5) at the end of section 282 of the Act.

 

15.               In broad terms, subsection 282(4) provides that a person “makes immigration representations” if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister’s staff or the Department on behalf of a visa applicant, a cancellation review applicant or certain other persons about specified migration matters.

 

16.               New subsection 282(5) provides an exception to subsection 282(4).  It makes it clear that a person does not make immigration representations in the circumstances prescribed by the Regulations.

 

17.               New subsection 282(5) provides a flexible mechanism to deal with specific kinds of activities that are not intended to be captured by the regulatory scheme. 

 

18.               For example, under new subsection 282(5) it would be possible to prescribe that specific kinds of representations made on behalf of applicants for specified visa classes do not amount to “making immigration representations”.   This will be useful to clarify, for instance, the status of a person in a major corporation whose paid duties include making representations to visa decision-makers on behalf of actual or intending employees of the corporation.

 

Item 3             Subsection 289(1)

 

19.               This item makes a technical amendment to subsection 289(1) of the Act which is consequential to the insertion of new section 292A into the Act by item 5 of this Schedule.

 

Item 4             Subsection 289(4)

 

20.               This item amends subsection 289(4) of the Act as a consequence of the insertion of new section 300 into the Act by item 7 of this Schedule.

 

21.               Subsection 289(4) of the Act provides a mechanism for determining the time at which a further application for registration by an already registered migration agent takes effect.  If not amended, subsection 289(4) could operate in conflict with new subsection 300(3), which sets out when certain types of registration as a migration agent take effect.

 

22.               The amendment to subsection 289(4) made by this item is intended to resolve any possible conflict between the two provisions.

 

Item 5             After section 292

 

23.               This item inserts new section 292A after section 292 of the Act.

 

Section 292A              Applicant must not be registered if any barring period has not ended

 

24.               New section 292A makes it clear that an applicant must not be registered if the MARA has made a decision to bar him or her from being a registered agent for a particular period under new subsection 311A(1) (as inserted into the Act by item 9 of this Schedule) and that period has not ended.

 

Item 6             Subsection 299(1)

 

25.               This item makes a technical amendment to subsection 299(1), which is consequential to the insertion of new section 300 into the Act by item 7 of this Schedule.



 

Item 7             After section 299

 

26.               This item inserts new section 300 after section 299 of the Act.

 

Section 300                 Automatic continuation of registration

 

27.               New section 300 provides for the automatic continuation of registration for migration agents in certain circumstances.

 

28.               Under new subsection 300(1), the registration of a migration agent continues if:

 

·          he or she has made a registration application before the expiry of his or her existing registration; and

·          he or she has paid the registration application fee (if any) in respect of that application; and

·          the MARA has not decided the application before his or her existing registration expires.

 

29.               In these circumstances, the agent’s registration is taken, by operation of law, to automatically continue until the MARA decides the application for repeat registration. 

 

Application granted if no decision within a certain period

 

30.               New subsection 300(2) provides that, if the MARA has not decided the registration application within 10 months of the expiry of the agent’s registration, the application is taken to have been granted at the end of that period. 

 

31.               This situation might occur where an agent seeks merits or judicial review of a cancellation or suspension decision and the decision is stayed by a review body or a court pending final determination.   In these circumstances, the MARA may consider it inappropriate to make a decision on the repeat registration application until the outcome of the review of the previous decision is known.

 

32.               Taking the application to have been granted after a period of 10 months will ensure that the normal cycles of registration and repeat registration are maintained.   It will ensure that the repeat registration application is finalised at least 1 month before the next cycle of repeat registration begins.  Under section 301 of the Act, the MARA is obliged to give at least 1 month’s written notice of the expiry of registration - this is the beginning of the repeat registration cycle.  

 

33.               This will give registered agents some certainty in relation to the period of time that their “carry-over” registration will be in existence.  It will also ensure that registered agents have the opportunity to plan compliance with the continuing professional development requirements for their next repeat registration application (as prescribed by section 290A of the Act).

 

When registration takes effect

 

34.               New subsection 300(3) sets out when a repeat registration application granted by the MARA or a registration application taken to have been granted under new subsection 300(2) takes effect.  These registrations take effect at the expiry of the previous registration and last for 12 months (as prescribed by section 299 of the Act). 

 

35.               An example of how new subsection 300(3) operates is provided at the end of new subsection 300(3). 

 

Item 8             Application provision - automatic continuation of registration

 

36.               This item deals with the application of the amendment to the Act made by item 7 of this Schedule.

 

37.               Item 7 inserts new section 300 into the Act, which provides for the automatic continuation of registration for migration agents in certain circumstances.

 

38.               The effect of this item is that new section 300 applies to:

 

·                 any registration application made after commencement of this item; and

·                 any registration application made before the commencement of this item if the registered agent who made the application was still a registered agent immediately before the commencement of this item.

 

Item 9             After Division 4 of Part 3

 

39.               This item inserts new Division 4A after Division 4 of Part 3 of the Act. 

 

40.               New Division 4A introduces provisions for the disciplining of former registered migration agents.  Currently, a registered migration agent can frustrate the MARA’s investigation of complaints about his or her provision of immigration assistance by deregistering.  In this way, an agent can also avoid the disciplinary provisions of the Act which apply only to registered migration agents.

 

41.               This new Division ensures that migration agents cannot avoid the investigation of complaints about them, or any subsequent disciplinary action, simply by leaving the industry.  The scheme of the Division is analogous to existing provisions in the Act dealing with the cancellation or suspension of registered agents.



 

Division 4A                Disciplining former registered agents

 

Section 311A              Barring former registered agents from being registered for up to 5 years

 

42.               New section 311A allows the MARA to bar a former registered agent from being a registered agent for a maximum period of 5 years in certain circumstances.  A former registered agent may be barred if, after investigating a complaint about him or her in relation to his or her provision of immigration assistance, the MARA is satisfied that the subject matter of the complaint is made out. 

 

43.               The note to new subsection 311A(1) highlights that, before the MARA makes a decision to bar a former registered agent, the MARA must ensure that the code of procedure found in new section 311D (as inserted into the Act by this item) is followed. 

 

Section 311B              Notification of decision

 

44.               New section 311B deals with the notification of a decision by the MARA to bar a former registered migration agent from being registered for a period.  It is based on, and will operate in a similar way to section 305 of the Act, which deals with notice of the cancellation or suspension of the registration of a registered agent.

 

Notice to former registered agent

 

45.               New subsection 311B(1) is similar to paragraph 305(1)(a) of the Act.  It requires the MARA to give written notice to a former registered migration agent of its decision under new subsection 311A(1) to bar that agent from being a registered agent for a certain period of time.   The notice must give the reasons for the decision and specify the period in respect of which the former registered agent is barred from being a registered migration agent.

 

Publication of a statement about decision

 

46.               New subsection 311B(2) is similar to paragraph 305(1)(b) of the Act.  It requires the MARA to publish, in the prescribed way, a statement about its decision to bar a former registered agent under new subsection 311A(1), including the reasons for the decision.   However, this statement need not set out the findings on the material questions of fact nor refer to the evidence or other material on which those findings were based.

 

47.               The publication of a statement about a decision to bar a former registered agent is intended to warn potential clients, members of the community and the migration advice industry (and related professions) of the agent’s barring from the industry.

 

Time of publication

 

48.               New subsections 311B(3) and (4) are similar to subsections 305(2) and 305(3) of the Act. 

 

49.               New subsection 311B(3) requires the MARA to publish the statement about its decision to bar a former registered agent under subsection 311A(1) as soon as possible after the end of 28 days after the former agent is given written notice of the decision. 

 

50.               However, if the former registered agent applies within that 28 day period for merits or judicial review of the decision and the decision stands at the end of those proceedings (including any appeals), new subsection 311B(4) provides that the statement must be published as soon as possible after the end of those proceedings.

 

Section 311C              Publication of additional statement about decision

 

51.               New section 311C deals with the publication of additional statements about  barring a former registered migration agent from being registered for a period of up to 5 years.  It is based on, and will operate in a similar way to section 305A of the Act, which deals with the publication of additional statements about the cancellation or suspension of the registration of a registered migration agent.

 

52.               New subsection 311C(1) is similar to subsection 305A(1) of the Act.  It provides a discretionary power for the MARA to prepare a statement about a decision under new subsection 311A(1) to bar a former registered agent from being a registered agent and to make that statement publicly available.

 

Content of statement

 

53.               New subsection 311C(2) is similar to subsection 305A(2) of the Act.  It provides that the following may be included, set out or referred to in a statement prepared and made public by the MARA under new subsection 311C(1):

 

·          the contents of a statement under new subsection 311B(2);

·          an extract from such a statement;

·          the MARA’s reasons for the decision;

·          the MARA’s findings on any material questions of fact;

·          the evidence or any other material on which the findings of fact were based.

 

54.               However, new subsection 311C(3) clarifies that new subsection 311C(2) does not limit new subsection 311C(1).



 

How statement to be made available

 

55.               New subsection 311C(4) is similar to subsection 305A(4) of the Act.   It provides that the MARA may make a statement prepared under new subsection 311C(1) publicly available in the following ways:

 

·          by being published in a newsletter, newspaper or periodical;

·          on the Internet; or

·          in any other way.

 

Immunity for publishing statement

 

56.               New subsection 311C(5) is similar to subsection 305A(5) of the Act.  It provides immunity from an action or proceeding (whether civil or criminal) for a person who publishes in good faith:

 

·          a copy of;

·          a fair extract from; or

·          a fair summary of;

 

a statement prepared and made public under new subsection 311C(1).

 

Section 311D              Former registered agent may make a submission etc.

 

57.               New section 311D is similar to sections 309 and 310 of the Act, which apply if the MARA is considering refusing a registration application or cancelling or suspending a registered agent’s registration.   It ensures that procedural fairness is accorded to a former registered agent who may be subject to a decision under new section 311A barring him or her from being a registered agent for a certain period of time.

 

Invitation to make submission

 

58.               New subsection 311D(1) is similar to subsection 309(2) of the Act.   It provides that, before making a decision under new subsection 311A(1), the MARA must give the former registered agent a written notice:

 

·          stating that it proposes to bar the former registered agent from being a registered agent for a period of time and the reasons for this decision; and

·          inviting the former registered agent to make a written submission to the MARA on the matter within 28 days after the notice is given.

 



Authority to consider any submission

 

59.               New subsection 311D(2) provides that the MARA must consider any written submission received within the 28 day period mentioned in new paragraph 311D(1)(b).

 

No submission received

 

60.               New subsection 311D(3) is similar to subsection 310(2) of the Act.   It provides that, if the MARA does not receive a written submission, it may decide the matter on the information before it.

 

Submission received

 

61.               New subsection 311D(4) is similar to subsection 310(3) of the Act.   It provides that, where a written submission is received by the MARA, it may decide the matter or give the former registered agent the opportunity to appear before it and then decide the matter.

 

Section 311E              Authority not bound by legal forms etc

 

62.               New section 311E is similar to section 311 of the Act, which applies when the MARA is considering a registration application or a possible disciplinary action under section 303 of the Act.

 

63.               New section 311E applies when the MARA is considering making a decision under new subsection 311A(1) to bar a former registered agent from being a registered agent.  In these cicrumstances, the MARA is not bound by technicalities, legal forms or rules of evidence but must act according to substantial justice and the merits of the case.

 

Section 311F              Review by the Administrative Appeals Tribunal

 

64.               New section 311F is similar to section 306 of the Act, which allows applications to be made to the Administrative Appeals Tribunal for the review of MARA decisions made under Division 3 of Part 3 of the Act. 

 

65.               New section 311F provides that, subject to the Administrative Appeals Tribunal Act 1975 , a former registered agent may apply to the Administrative Appeals Tribunal for review of a decision made by the MARA under new subsection 311A(1).

 

Item 10           Paragraph 316(1)(c)

 

66.               This item amends subsection 316(1) of the Act, which sets out the functions of the MARA.  It ensures that the MARA can investigate complaints in relation to the provision of immigration assistance by both a registered migration agent and a former registered agent.

 

Item 11           Paragraph 316(1)(d)

 

67.               This item amends subsection 316(1) of the Act, which sets out the functions of the MARA.  It ensures that the MARA can take appropriate disciplinary action against both a registered migration agent and a former registered migration agent.

 

Item 12           After subsection 316(1)

 

68.               This item inserts new subsections 316(1A) and 316(1B) after subsection 316(1) of the Act.

 

69.               New subsection 316(1A) clarifies that the MARA may start or complete an investigation of a complaint about a person in relation to his or her provision of immigration assistance at a time when he or she is no longer a registered agent.  This will ensure that migration agents cannot avoid disciplinary action simply by de-registering or allowing their registration to expire.

 

70.               However, under new subsection 316(1B) the MARA can only investigate a complaint about a former registered migration agent if the complaint is received within 12 months after the agent ceased to be a registered agent.  This is intended to provide certainty for agents and former agents and ensures that attention is given to those cases which can be most effectively investigated.

 

Item 13           Section 318

 

71.               This items amends section 318 of the Act to ensure that if the MARA is investigating a complaint about a person who is or was a registered migration agent, it may refer the complainant and the person to a mediator to resolve the matter complained of.

 

Item 14           Subsection 319 (1)

 

72.               This items amends subsection 319(1) of the Act to ensure that the MARA may refer the conduct of a registered migration agent or a former registered migration agent , who holds a certificate allowing him or her to practise as a lawyer, to an authority responsible for disciplining lawyers.

 

Item 15           Subsection 319(2)

 

73.               This item makes a minor amendment to subsection 319(2) of the Act as a consequence of the amendment made to subsection 319(1) by item 14 of this Schedule.

 

74.               Under subsection 319(1) of the Act, the MARA may refer the conduct of a registered migration agent , who holds a certificate allowing him or her to practise as a lawyer, to an authority responsible for disciplining lawyers.

 

75.               The amendment to subsection 319(2) makes it clear that if the MARA exercises the power in subsection 319(1), it may not take action against the registered agent under section 303 of the Act (discretionary cancellation or suspension of registration) in relation to the same conduct referred under subsection 319(1).

 

76.               The effect of the note at the end of this item is that “Conduct of registered agents” is inserted as the heading to subsection 319(2) of the Act.

 

Item 16           At the end of section 319

 

77.               This item inserts new subsection 319(3) at the end of section 319 of the Act. 

 

78.               New subsection 319(3) operates in a similar way to subsection 319(2) of the Act (as amended by item 15 of this Schedule) which applies to registered migration agents.

 

79.               Under subsection 319(1) of the Act (as amended by item 14 of this Schedule), the MARA may refer the conduct of a former registered migration agent , who holds a certificate allowing him or her to practise as a lawyer, to an authority responsible for disciplining lawyers.

 

80.               New subsection 319(3) provides that if the MARA exercises the power in subsection 319(1), it may not take action against the former registered agent under new subsection 311A(1) (as inserted into the Act by item 9 of this Schedule) in relation to the same conduct referred under subsection 319(1).

 

81.               The note to new subsection 319(3) highlights that new subsection 311A(1) allows the MARA to bar a former registered agent from being a registered agent for a period of up to 5 years.

 

Item 17           Application provision - disciplining former registered agents

 

82.               This item deals with the application of the amendments to the Act made by items  9 to 16 of this Schedule, which deal with the disciplining of former registered migration agents and the powers MARA can exercise in regard to these agents.



 

83.               The effect of this item is that these amendments apply to:

 

·                 any complaint about a person made after the commencement of this item in relation to his or her provision of immigration assistance before or after commencement of this item; and

·                 any complaint about a person made before commencement of this item if the person was a registered agent immediately before the commencement of this item.

 

84.               This provides scope for the MARA to take disciplinary action against a former registered agent in relation to a complaint made about his or her provision (before or after commencement) of immigration assistance where:

 

·                 the complaint is made after the time of commencement; and

·                 the complaint is in existence at the time of commencement and the agent was registered at the time of commencement.