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Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017

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2016-2017

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

MIGRATION AGENTS REGISTRATION APPLICATION CHARGE AMENDMENT (RATES OF CHARGE) BILL 2017

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Assistant Minister for Immigration and Border Protection,

the Hon. Alex Hawke MP)

 

 

MIGRATION AGENTS REGISTRATION APPLICATION CHARGE AMENDMENT (RATES OF CHARGE) BILL 2017

 

OUTLINE

 

The Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017 (the Bill) amends the Migration Agents Registration Application Charge Act 1997 (the Charge Act).  The amendments in the Bill ensure that a person who paid the non-commercial registration application charge in relation to their current period of registration, but gives immigration assistance otherwise than on a non-commercial basis, is liable to pay an adjusted charge.

 

 

FINANCIAL IMPACT STATEMENT

 

These amendments will have low financial impact.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A statement of compatibility with human rights has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at Attachment A .



Background

 

1.                   The amendments made by this Bill should be read alongside those made to the Migration Act by Schedule 5 to the Migration Amendment (Regulation of Migration Agents) Bill 2017.  These amendments also complement amendments proposed to be made to the Migration Agents Registration Application Charge Regulations 1998 (the Charge Regulations).

 

2.                   Regulation 5 of the Charge Regulations allows a person to pay a lower registration application charge (the non-commercial charge) where that person meets two criteria. These criteria are if the person acts solely on a non-commercial or non-profit basis, and if the person acts as a member of or a person associated with an organisation that operates in Australia solely on a non-commercial or non-profit basis.

 

3.                   Relevantly, section 10 of the Charge Act currently imposes an adjusted charge in relation to registered migration agents who have paid the non-commercial charge but have given immigration assistance on a commercial basis (at any time during their registration period). 

 

4.                   The policy intention is that the higher, commercial application charge should be the default charge payable by any applicant for registration as a migration agent. The exception to this default position is where the applicant can demonstrate that they are eligible to pay the non-commercial charge.  It is intended that an applicant for registration as a migration agent should only be eligible to pay the non-commercial charge if they meet the criteria described at paragraph 2 above, and if they give immigration assistance solely as a member of, or a person associated with, an organisation that operates in Australia solely as a charity or for the benefit of the Australian community.  Amendments to the Charge Regulations are proposed to be made to achieve these outcomes.

 

5.                   To meet this intention, the Charge Bill amends section 10 of the Charge Act so that, instead of referring to when a person gives immigration assistance on a commercial basis, it refers to when a person gives immigration otherwise than on a non-commercial basis. 

 



SCHEDULE 1 - Rates of charge

 

Part 1 - Amendments

 

Migration Agents Registration Application Charge Act 1997

 

Item 1             Part 2 (heading)

 

6.                   This item repeals the heading of Part 2 of the Charge Act.  This is consequential to the insertion of a new heading by item 4.



Item 2             Section 3

 

7.             This item omits the words “In this Part, unless the contrary intention appears:” and substitutes the words “In this Act:”.  This is consequential to the amendments made by item 3, and reflects the fact that defined terms are used consistently throughout the Charge Act and not just for the purpose of specific Parts of the Charge Act.

 

Item 3             Section 3

 

8.                   This item inserts a range of definitions into section 3.  These definition are currently contained in other provisions of the Charge Act.  For example, this item inserts the definition of immigration assistance into section 3.  Currently, the definition of immigration assistance is contained in subsection 9(1), and the defined term is used for the purpose of Part 3 of the Charge Act.

 

9.                   The effect of this item, in conjunction with item 2, is that all of the definitions that are currently contained in different Parts of the Charge Act are now all contained in section 3, and are used for the purpose of the Charge Act in its entirety.

 

10.               This item also inserts the new defined terms non-commercial application charge and non-commercial basis .  

 

11.               The term non-commercial application charge is similar to the definition of non-commercial application fee currently contained in subsection 9(1).  However, while the latter definition refers readers to a charge set out under regulation 5 of the Charge Regulations, the new definition refers readers to an amount of charge imposed by Part 2 of the Charge Act that is set out under regulation 5 of the Charge Regulations.  This makes it clear that the head of power for imposition of the charge is contained in Part 2 of the Charge Act.  The term “charge” is used instead of “fee” to reflect that the amount payable is a Commonwealth-imposed charge.

 

12.               The term non-commercial basis reflects the proposed wording of amended regulation 5 of the Charge Regulations.  In particular, it provides that in addition to giving assistance solely on a non-commercial or non-profit basis and as a member of or a person associated with an organisation that operates in Australia solely on a non-commercial or non-profit basis, the organisation must also operate in Australia solely as a charity or for the benefit of the Australian community.  This reflects the policy intention that a person must work for or with a charity or an organisation that works for the benefit of the Australian community in order to be eligible to pay the lower, non-commercial application charge.

 

13.               The term is necessary to determine when a person becomes liable to pay an adjusted charge under section 10.  Specifically, a person will become liable to pay the adjusted charge if they have paid the non-commercial application charge, described at paragraph 11 above, but then give immigration assistance otherwise than on a non-commercial basis.  

 

Item 4             After section 3

 

14.               This item inserts a heading to Part 2 of the Charge Act, which is “Part 2—Imposition of charge on registration applications”. 

 

15.               The new heading of Part 2 is the same as the current heading. However, the new heading is inserted after, rather than before, section 3 of the Charge Act, which is appropriate because section 3 now contains definitions to be used throughout the Charge Act and not just for the purpose of Part 2.

 

Item 5             Part 3 (heading)

 

16.               This item repeals and substitutes the heading of Part 3 of the Charge Act.  The new heading is “Part 3—Imposition of charge on basis of status of migration agent”.  This heading more accurately reflects the work done by Part 3, which is the imposition of a charge based on whether a migration agent gives immigration assistance on a non-commercial basis or otherwise than on a non-commercial basis.  By contrast, the current heading refers to “the status of a migration agent’s registration”, though Part 3 imposes a charge based on the type of work that a migration agent does, rather than the status of the agent’s registration.

 

Item 6             Sections 9 and 10

 

17.               This item repeals sections 9 and 10 and substitutes new section 10.

 

18.               Subsection 9(1) is no longer required because the defined terms contained therein are now contained in section 3 (see item 3 for more detail).  Subsection 9(2) is no longer required because it contains a definition of commercial basis , which has instead been replaced by a definition of non-commercial basis in amended section 3, to more accurately fulfil the policy intention of these amendments.  The work done by subsection 9(3) is now done by the definition of remaining period in new subsection 12(1), inserted by item 7.

 

19.               New section 10 is similar to current section 10.  However, while current section 10 refers to the giving of immigration assistance on a commercial basis, new section 10 refers to the giving of immigration assistance otherwise than on a non-commercial basis.  This reflects the policy intention that the higher charge set out under regulation 4 of the Charge Regulations is the default charge, unless the person gives immigration assistance on a non-commercial basis.

 

20.               New section 10 also refers to the new defined term ‘non-commercial application charge’, consequential to item 3.  In addition, new section 10 is structured slightly differently to current section 10, to reflect modern drafting practices.

 

Item 7             Subsection 12(1)

 

21.               This item repeals and substitutes subsection 12(1), which is about how to determine the amount of charge payable under section 10 of the Charge Act.

 

22.               The formula contained in current subsection 12(1) has been replicated with two key changes in terminology.  The first is that the term “commercial application fee” has been replaced with “general charge”, and the second is that “paid fee” has been replaced with “paid non-commercial application charge”.  The terms general charge and paid non-commercial application charge are set out in new subsection 12(1). 

 

23.               The definition of general charge refers to a charge imposed under Part 2 of the Charge Act that would have been payable by the agent in question under regulation 4 of the Charge Regulations if that regulation had applied in relation to his or her current registration period.  This means that the general charge is the higher charge set out under regulation 4 of the Charge Regulations, which the agent would have been required to pay if they had not been eligible to pay the lower charge set out under regulation 5.

 

24.               The definition of paid non-commercial application charge simply means the non-commercial application charge as actually paid by the agent in question in relation to his or her current registration period.

 

25.               This item also amends the definition of remaining period such that it now refers to the first day on which the agent in question gives immigration assistance otherwise than on a non-commercial basis.  It also refers readers to the regulations prescribed for the purposes of paragraph (a) of the definition of remaining period .

 

26.               These changes reflect the policy intention that the higher charge set out under regulation 4 of the Charge Regulations is the default charge, unless the person gives immigration assistance on a non-commercial basis. 



Part 2 - Application of amendments

 

Item 8             Application of amendments

 

27.               Subitem 8(1) provides that the amendments made by this Schedule apply in relation to the imposition of a charge under Part 3 on or after commencement of this Schedule, and to a remaining period whether that period starts before, on or after commencement.  The effect of this is that a currently registered migration agent will be required to pay an adjusted charge under section 10 if he or she paid the general charge and began giving immigration assistance otherwise than on a non-commercial basis prior to commencement.

 

28.               This is consistent with the policy intention, which is that those agents who are registered on a non-commercial basis at the time that the amendments commence should only be able to continue to provide services on a non-commercial basis.  Should they commence.  If the status of the agent changes whereby the agent begins to give immigration assistance for fee or reward at some time during their current registration period, the policy intention is that the agent should be liable to pay the adjusted charge under section 10 of the Charge Act, whether or not that immigration assistance was given before or after commencement.

 

29.               Subitem 8(2) provides that the amendments made by this Schedule do not apply in relation to an agent if he or she was already liable to pay a charge under Part 3 of the Charge Act in relation to his or her current registration period prior to commencement.  This means that, where a person has already become liable to pay an adjusted charge, they will not become liable again under this item.

 



ATTACHMENT A

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Agents Registration Application Charge Amendment

(Rates of Charge) Bill 2017

 

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the changes

The Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017 (the Bill) amends the Migration Agents Registration Application Charge Act 1997 (the Charge Act).  The amendments in the Bill ensure that a person who paid the non-commercial registration application charge in relation to their current period of registration, but gives immigration assistance otherwise than on a non-commercial basis, is liable to pay an adjusted charge.

 

Section 3 will be amended to include a number of definitions which are currently contained in other provisions of the Charge Act. It will also be amended to include the new defined terms non-commercial application charge and non-commercial basis .  These terms, and their use throughout the Charge Act as amended by this Bill, will have the effect that a person must meet certain criteria in order to be eligible to pay a lower, non-commercial charge. That is, in addition to giving assistance solely on a non-commercial or non-profit basis and as a member of or a person associated with an organisation that operates in Australia solely on a non-commercial or non-profit basis, the organisation must also operate in Australia solely as a charity or for the benefit of the Australian community.  This reflects the policy intention that a person must work for or with a charity or an organisation that works for the benefit of the Australian community in order to be eligible to pay the lower, non-commercial application charge.

 

Subsection 12(1) will be repealed and substituted by a new subsection 12(1), which replicates the current formula contained therein. In addition, the term “commercial application fee” has been replaced with “general charge”, and the second is that “paid fee” has been replaced with “paid non-commercial application charge”.  The term general charge is the higher charge set out under regulation 4 of the Charge Regulations, which the agent would have been required to pay if they had not been eligible to pay the lower charge set out under regulation 5.  The term paid non-commercial application charge simply means the non-commercial application charge as actually paid by the agent in question in relation to his or her current registration period.

This definition of remaining period in subsection 12(1) is also amended such that it now refers to the first day on which the agent in question gives immigration assistance otherwise than on a non-commercial basis. 

 

This Bill also makes consequential amendments to sections 9 and 10.  These changes reflect the policy intention that the higher charge set out under regulation 4 of the Charge Regulations is the default charge, unless the person gives immigration assistance on a non-commercial basis. 



Human rights implications

The amendments in this Bill do not engage or limit any of the applicable rights, individual freedoms or discriminate against any person or groups of persons.

 

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

The Hon Alex Hawke MP, Assistant Minister for Immigration and Border Protection