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Migration Amendment (Regulation of Migration Agents) Bill 2018

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2016-2017

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL 2017

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

the Hon. Alex Hawke MP)

 

 

 

MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL 2017

 

OUTLINE

 

The Migration Amendment (Regulation of Migration Agents) Bill 2017 (the Bill) amends the Migration Act 1958 (Migration Act) to improve the effectiveness of the scheme that regulates migration agents.

 

Specifically, the Bill amends Part 3 of the Migration Act to:

 

·          remove lawyers from the regulatory scheme that governs migration agents such that lawyers cannot register as migration agents and are entirely regulated by their own professional bodies;

·          ensure that the time period in which a person can be considered an applicant for repeat registration as a migration agent is set out in delegated legislation rather than on the face of the Migration Act, and remove the 12-month time limit within which a person must apply for registration following completion of a prescribed course;

·          repeal various provisions that reference regulatory arrangements that are no longer in place, which will make it clear that the powers under Part 3 are exercisable by the Minister as the Migration Agents Registration Authority (MARA) and that the Office of the MARA is a part of the Department of Immigration and Border Protection, and that remove references to the appointment of the Migration Institute of Australia;

·          allow the MARA to refuse an application to become a registered migration agent where the applicant has been required to, but has failed to, provide information or answer questions in relation to their application by making a statutory declaration or appear before the MARA;

·          require a registered migration agent to notify the MARA if they have 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; and

·          ensure that the definitions of ‘immigration assistance’ and ‘immigration representations’ include assisting a person in relation to a request to the Minister to exercise his or her power under section 501C or 501CA of the Migration Act to revoke a character-related visa refusal or cancellation decision.

 

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 .



MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL 2017

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short Title

 

1.                   The short title by which this Act may be cited is the Migration Amendment (Regulation of Migration Agents) Act 2017 .

 

Clause 2          Commencement

 

2.                   Subclause 2(1) sets out when the provisions of the Act commence. 

 

3.                   Sections 1 to 3 commence on the day that the Act receives the Royal Assent.

 

4.                   Schedule 1 commences on 1 July 2018.  This provides key stakeholders and clients with certainty as to how Australian legal practitioners who give immigration assistance are to be regulated by setting a clear date from which the amendments take effect.

 

5.                   Schedules 2, 3, 4 and 6 commence on a single day to be fixed by Proclamation, unless the provisions do not commence within 6 months of Royal Assent, in which case they commence on the day after the end of that 6 month period.

 

6.                   Schedule 5 commences at the same time as Schedule 1 to the Migration Agents Registration Application Charge Amendment (Rates of Charge) Act 2017 (the Rates of Charge Act).  This is because Schedule 5 to this Bill, and Schedule 1 to the Rates of Charge Act, make related amendments and it is necessary that they commence simultaneously.  If Schedule 1 to the Rates of Charge Act does not commence at all, neither does Schedule 5 to this Bill.

 

7.                   Subclause 2(2) provides that the information in column 3 of the table in subclause 2(1) is not part of this Act, and that information in that column may be inserted or edited in any published version of the Act. 

 

Clause 3          Schedule(s)

 

8.                   This clause provides that legislation 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 - Australian legal practitioners providing immigration assistance

 

Background

 

9.                   Recommendation 1 of the 2014 Independent Review of the Office of the Migration Agents Registration Authority (OMARA Review) is that lawyers be removed from the regulatory scheme that governs migration agents such that they cannot register as migration agents and are entirely regulated by their own professional bodies.  The amendments made by Schedule 1 to the Bill implement Recommendation 1 by making a number of key changes to Part 3 of the Migration Act.

 

10.               Section 276 of the Migration sets out a definition of immigration assistance , and section 277 sets out a definition of immigration legal assistance .  Currently, lawyers may give immigration legal assistance without needing to be registered as a migration agent.  However, in order to lawfully give immigration assistance, lawyers must be registered as a migration agent (subsection 280(1)).  This has resulted in the dual regulation of lawyers, whereby many lawyers who desire to work in the immigration law field have registered as a migration agent in order to be able to provide the full range of immigration services without running the risk of breaching subsection 280(1). 

 

11.               Lawyers are already subject to one of the most stringent professional regulatory regimes in Australia and currently practice in a range of complex areas outside the field of migration law, without the need for dual regulation in these areas.

 

12.               This Schedule makes the following key amendments to implement Recommendation 1:

 

·          Australian legal practitioners (as defined in amended section 275) are excluded from the MARA scheme, such that they cannot register as migration agents;

·          Australian legal practitioners are permitted to give immigration assistance without being registered as migration agents;

·          Regulation of the conduct of Australian legal practitioners giving immigration assistance is the responsibility of the relevant legal professional body and not the MARA.

 

Migration Act 1958

 

Item 1             Section 275

 

13.               This item amends section 275, which sets out a range of definitions used in Part 3 of the Migration Act. 

 

14.               Firstly, this item inserts several “signpost” definitions. A signpost definition is a definition that refers the reader to another provision for the complete definition of a particular term.  For example, this item inserts a signpost definition of client , which refers the reader to section 306C.  The signpost definitions have been included in section 275 to assist readers by ensuring that all defined terms used in Part 3 are listed at the front of the Part.

 

15.               Secondly, this item inserts the new defined terms Australian legal practitioner ,and legal practice .  This is necessary because several items in this Schedule make amendments such that those terms will now be used throughout Part 3.

 

16.               The definition of Australian legal practitioner as inserted by this item is intended to capture only those lawyers who hold an Australian practising certificate.  This includes practising certificates that are subject to restrictions, such as a restriction requiring the lawyer to be supervised in the provision of legal services.  The definition deliberately excludes those lawyers who are admitted but who do not hold a practising certificate. The inclusion of this term was requested in response to an exposure draft of the legislation circulated to key stakeholders within the migration advice industry. The term aligns with the terminology used in the legislation governing the legal profession across the State and Territory jurisdictions.

 

17.               This item also inserts a note to the definition of Australian legal practitioner , which refers readers to subsection 5(1) for the meaning of lawyer .  The term lawyer is used elsewhere in the Migration Act and is broader than the new defined term Australian legal practitioner .

 

18.               The definition of legal practice as inserted by this item is intended to broadly capture the type of legal services that a lawyer would generally provide, as regulated by the laws of the relevant State or Territory. 

 

19.               Currently, lawyers who hold a practising certificate are eligible to be registered as a migration agent on that basis, that is, without being required to complete a prescribed course and pass a prescribed exam (if they meet the rest of the eligibility criteria).  This is because a practising certificate is currently a prescribed qualification for registration.  In order to be eligible to hold a practising certificate, a person must complete a law degree, obtain the necessary qualifications to become admitted to practise as a lawyer of a Supreme Court of a State or Territory, and meet continuing professional development requirements.  As such, a lawyer who holds a practising certificate has expertise in the law and possesses the business skills required to give immigration assistance.

 

20.               For this reason, it is appropriate that only those lawyers who hold a practising certificate should now be able to give immigration assistance, as defined by section 276, without being required to register as a migration agent. 

 

21.               The definition of Australian legal practitioner covers only those lawyers who hold a practising certificate that was granted under a law of an Australian State or Territory.  Lawyers who are eligible to practice under the law of a country other than Australia will need to register as a migration agent if they wish to give immigration assistance in Australia (with the exception of New Zealand lawyers as detailed in the following paragraph).

 

22.               Under the Trans-Tasman Mutual Recognition Act 1997 , lawyers who are eligible to practice in New Zealand are entitled to be registered in Australia as an Australian legal practitioner (section 16).  As such, a lawyer from New Zealand need not register as a migration agent in order to give immigration assistance, as they will simply be able to register with the relevant Australian legal professional body as an Australian legal practitioner and will be able to give immigration assistance on this basis.

 

Item 2             Section 275 (definition of registered migration agent )

 

23.               This item is consequential to item 12, which repeals section 286 of the Migration Act. 

 

Item 3             Section 275

 

24.               This item inserts a signpost definition for related by employment , the full definition of which is set out in section 278.  The signpost definition has been included in section 275 to assist readers.

 

Item 4             Section 275 (paragraphs (a) and (b) of the definition of review authority )

 

25.               This item amends the definition of review authority to correct a typographical error.

 

Item 5             Section 277

 

26.               This item repeals section 277.  Section 277 sets out the definition of immigration legal assistance

 

27.               The term immigration legal assistance is currently used in the context of identifying the types of immigration advice that a lawyer can provide without needing to be registered as a migration agent.  Because the amendments made by this Schedule exclude Australian legal practitioners from registration with the MARA and allow them to give immigration assistance on the basis of their holding a practising certificate, the concept of immigration legal assistance is no longer required.

 

28.               The definition of immigration legal assistance differs in several ways from the definition of immigration assistance , which is set out in section 276.  For example, one of the differences is that the definition of immigration assistance refers to representing a person before a court or review authority in proceedings that relate to a nomination or sponsorship (paragraph 276(2)(c)), whereas the definition of immigration legal assistance refers only to representing a person before a court, and does not refer to representation before a review authority (paragraph 277(2)(a)).

 

29.               To establish the oversight of the conduct of an Australian legal practitioner under relevant State and Territory legal professional laws, it is necessary that there be a connection with legal practice.  The giving of immigration assistance, as well as any conduct associated with the giving of advice relating to immigration, will therefore be able to be regulated by State and Territory legal professional bodies if the conduct is attributable to activities done by the practitioner in connection with his or her practice as a lawyer. 

 

30.               As such, it is unnecessary to amend the definition of immigration assistance to more specifically set out the work that is done by a lawyer, and equally unnecessary to retain the definition of immigration legal assistance .

 

Item 6             Subsection 280(3)

 

31.               The purpose of item 6 is to ensure that an Australian legal practitioner can give immigration assistance in connection with legal practice without being required to register as a migration agent. 

 

32.               This item should be read alongside item 12, which inserts new section 289B.  New section 289B provides that an applicant must not be registered with the MARA if he or she is an Australian legal practitioner.

 

33.               New subsection 280(3), as amended by item 6, refers to an Australian legal practitioner, reflecting the new defined term as inserted by item 1.  It also refers to immigration assistance as opposed to immigration legal assistance.  This is consequential to the repeal of section 277, which defines immigration legal assistance, and ensures that Australian legal practitioners are authorised to give immigration assistance without needing to be registered as a migration agent, as long as the giving of immigration assistance is in connection with legal practice.

 

34.               As explained at paragraphs 19-20 above, lawyers who hold a practising certificate are currently eligible for registration as a migration agent, without requiring further qualifications, on the basis that they have expertise in the law and possess the business skills required to give immigration assistance. 

 

Item 7             Paragraphs 281(3)(a) and (b)

 

35.               Section 281 sets out restrictions on charging fees for the giving of immigration assistance.  Subsection 281(3) currently provides that the restrictions in section 281 do not prohibit lawyers from asking for or receiving a fee or other reward for giving immigration legal assistance, and do not prohibit another person from asking or doing so in relation to the giving of immigration legal assistance by a lawyer.

 

36.               This item amends paragraphs 281(3)(a) and (b) so that they now ensure that the restrictions in section 281 do not apply to Australian legal practitioners in the giving of immigration assistance.  This item is therefore consequential to the amendments made by items 1, 5 and 6.

 

Item 8             Subsections 282(1) and (2)

 

37.               This item is consequential to item 9, which inserts new subsection 282(2A).

 

Item 9             After subsection 282(2)

 

38.               Section 282 sets out restrictions on charging fees for making immigration representations, with subsection 282(4) providing a definition of immigration representations



39.               This item inserts new subsection 282(2A), which provides that section 282 does not prohibit an Australian legal practitioner from asking for or receiving a fee or other reward for making immigration representations in connection with legal practice, or another person from asking for or receiving a fee or other reward for the making of immigration representations by an Australian legal practitioner in connection with legal practice.  This item is therefore consequential to the amendments made by items 1 and 6.

 

Item 10           Subsection 284(3)

 

40.               Section 284 sets out restrictions on the self-advertising of the giving of immigration assistance.  Subsection 284(3) currently provides that the restrictions in section 284 do not prohibit a lawyer from advertising that he or she gives immigration legal assistance.

 

41.               This item amends subsection 284(3) so that it now ensures that the restrictions in section 284 do not prohibit an Australian legal practitioner from advertising that he or she gives immigration assistance.  This item is therefore consequential to the amendments made by items 1, 5 and 6.

 

Item 11           Subsection 285(3)

 

42.               Section 285 broadly provides that a person must not directly or indirectly advertise that another person, who is not a registered migration agent, gives immigration assistance.  Subsection 285(3) provides that the restrictions in section 285 do not prohibit a person from advertising that another person, who is a lawyer, gives immigration legal assistance.

 

43.               This item amends subsection 285(3) so that it now ensures that the restrictions in section 285 do not prohibit a person from advertising that another person, who is an Australian legal practitioner, gives immigration assistance.  This item is therefore consequential to the amendments made by items 1, 5 and 6.

 

Item 12           Section 286

 

44.               This item repeals section 286. 

 

45.               Currently, section 286 provides that individuals may be registered as migration agents in accordance with Part 3 of the Migration Act.  However, subsection 288(1) provides that an individual may apply to the MARA to be registered as a migration agent.  It is unnecessary to retain section 286 given the content of subsection 288(1), so section 286 is repealed.

 

Item 13           After section 289A

 

46.               This item inserts new section 289B, which provides that an applicant must not be registered if he or she is a Australian legal practitioner.  This is one of the key amendments that implement Recommendation 1 of the 2014 Review.

 

47.               The effect of this amendment is that any application by an Australian legal practitioner for registration as a migration agent will be refused.  This amendment should be read alongside the amendment made by item 6, which allows Australian legal practitioners to give immigration assistance without needing to be registered as a migration agent, which includes payment of a charge for each 12 month registration period.  These amendments in combination allow Australian legal practitioners to give legal advice on immigration matters while regulated solely by their own legal professional bodies.

 

48.               This simplifies the responsibilities and regulation of Australian legal practitioners, and ensures that such persons do not have to pay additional charges in order to give advice on immigration matters.  Lawyers who intend to practice in the migration advice field will be able to access a range of educational offerings to increase their knowledge, as they already do with other complex aspects of the legal profession.

 

49.               The amendment also provides clarity for clients, who will be able to more easily determine which body is responsible for regulating the conduct of the person who is giving immigration assistance, based on whether the person is an Australian legal practitioner or a registered migration agent. The legal professional bodies also have considerably more power to resolve consumer-related issues and can impose penalties outside the MARA’s jurisdiction, such as the power to impose financial penalties for improper conduct and to recommend compensation to affected clients.

 

50.               There will be some instances where an Australian legal practitioner, who operates a migration agency and also works separately in a law firm, may need to adjust the way in which they provide such services. The most obvious case in point will be where a practitioner has a restricted practising certificate. Such a practitioner can currently provide immigration assistance directly to clients if he or she is also registered as a migration agent. Following the commencement of the legislation, such a practitioner will cease to be a registered migration agent if they continue to hold their practising certificate, or will need to drop their practising certificate and maintain their status as a registered migration agent.

 

Item 14           Section 299

 

51.               This item repeals and substitutes section 299, which is about the period of registration as a migration agent.  The main work done by this item is to ensure that the period of registration as set out by section 299 do not apply if the registration ends earlier due to the operation of any relevant provision in Part 3 of the Migration Act. This takes into account the fact that a new cancellation power under section 302A has been inserted by item 5, and that a person’s registration may end under this power as well as under any of the provisions listed in current subsection 299(1).

 

52.               New subsection 299(1) provides that a registered migration agent’s registration period ends 12 months after the commencement of the registration period.  This reflects the default period of registration set out in current subsection 299(1).

 

53.               New subsection 299(2) provides that if the registration is suspended for a period, the period of the registration is extended by a period equal to the period of suspension.  This reflects the current subsection 299(3), however, new subsection 299(2) is phrased more simply to assist readers.  The purpose of new subsection 299(2), and of current subsection 299(3), is to ensure that if a person’s registration is suspended for a period, they are still able to enjoy a full 12 month registration period.  Where the MARA is satisfied that a person’s conduct should result in the person’s registration period ending before the 12 months is concluded, the MARA can cancel the person’s registration under section 303 provided that one of the grounds mentioned in paragraph 303(1)(d)-(h) is made out.

 

54.               In combination, new subsections 299(1) and (3) have the same effect as current subsection 299(1).  However, current subsection 299(1) refers specifically to other provisions in Part 3 of the Migration Act under which a person’s registration period may end earlier than 12 months after the day it commences.  By contrast, new subsection 299(3) provides that subsections 299(1) and (2) do not apply if the registration ends earlier because of another provision of Part 3, which reflects a simpler drafting approach and makes section 299 easier to read.

 

Item 15           After section 302

 

55.               This item inserts new section 302A, which provides the MARA with a new cancellation power in relation to Australian legal practitioners.  This is a key amendment in the implementation of Recommendation 1 of the OMARA Review.

 

56.               New subsection 302A(1) provides that the MARA must cancel a migration agent’s registration, by removing his or her name from the Register, if satisfied that the agent is an Australian legal practitioner.  It is important to note that the cancellation power under new subsection 302A(1) is a mandatory cancellation power - that is, the MARA has no discretion to cancel a person’s registration, but rather must cancel the person’s registration if satisfied that the person is an Australian legal practitioner.

 

57.               There is no disciplinary reason for cancelling a registration in these circumstances, rather, it reflects the policy intention that Australian legal practitioners should be entirely excluded from the MARA scheme such that they cannot be registered as migration agents. It recognises that Australian legal practitioners, by virtue of that qualification, have the skills and expertise necessary to provide immigration assistance without also needing to be registered as a migration agent.

 

58.               This item also inserts a note to new subsection 302A(1), which states that a registered migration agent must notify the MARA within 14 days of becoming an Australian legal practitioner, under new section 312(1)(i).  This ensures that the MARA is given enough notice that a migration agent has become an Australian legal practitioner such that the MARA can cancel the person’s registration under new subsection 302A(1).

 

59.               New subsection 302A(2) provides that the MARA must give the agent written notice of a decision to cancel the person’s registration under subsection 302A(1).  New subsection 302A(3) provides that this notice must set out the reason for the decision.  These provisions guarantee procedural fairness and ensure that the applicant is informed that his or her application was refused on the basis that he or she is an Australian legal practitioner.

 

60.               New subsection 302A(4) provides that the decision takes effect at the time that the agent is given written notice of it.  This means that the time at which when the agent is given the notice is the time at which their registration is cancelled.   This item also inserts a note to new subsection 302A(4) that refers readers to section 332H, which sets out when a notice is taken to have been given a notice under Part 3 of the Migration Act.

 

61.               New subsections 302A(2), (3) and (4) mirror the content of current section 305, which sets out the notification requirements of the MARA when making a disciplinary decision under section 303.

 

62.               Because this cancellation power is under new section 302A, certain provisions in Part 3 of the Act will not be triggered.  For example, section 292 provides that a person must not be registered within 5 years of having their registration cancelled under section 303, 303AG or 306AGAC.  By contrast, a person whose registration is cancelled under new section 302A will not be subject to the section 292 bar on registration.  This is appropriate because cancellation of registration due to the person being an Australian legal practitioner is not a disciplinary action, and as such the requirements and procedures associated with cancellation for disciplinary reasons should not be applicable.

 

Item 16           Subsection 305B(1)

 

63.               This item is consequential to item 17, which repeals subsection 305B(3).

 

Item 17           Subsection 305B(3)

 

64.               This item repeals subsection 305B(3), which contains a signpost definition of client .  Item 1 inserts this signpost definition into section 275, along with other signpost definitions of terms used in Part 3 of the Migration Act.  As such, subsection 305B(3) is no longer required.

 

Item 18           Subsection 306AM(1)

 

65.               This item is consequential to item 19, which repeals subsection 306AM(3).

 

Item 19           Subsection 306AM(3)

 

66.               This item repeals subsection 306AM(3), which contains a signpost definition of client .  Item 1 inserts this signpost definition into section 275, along with other signpost definitions of terms used in Part 3 of the Migration Act.  As such, subsection 306AM(3) is no longer required.

 

Item 20           After paragraph 306B(b)

 

67.               This item inserts new paragraph 306B(ba) into Part 3 of the Migration Act.  Section 306B sets out who is an inactive migration agent.

 

68.               New paragraph 306B(ba) is about a person who ceases to be a registered migration agent because their registration is cancelled under new section 302A or because their registration ends under new section 333B.  New section 302A, inserted by item 15, requires the MARA to cancel a migration agent’s registration if the MARA is satisfied that he or she is an Australian legal practitioner.  New section 333B, inserted by item 31, provides that if a registered migration agent who is also an Australian legal practitioner immediately before 1 July 2018, their registration will cease on 1 July 2018.

 

69.               New paragraph 306B(ba) applies to such a person and provides that the person becomes an inactive migration agent at the time that their registration ceases.  It also provides that the person remains an inactive migration agent for 2 years after their registration ceases or until the person becomes a registered migration agent again, whichever happens earlier.

 

70.               This item also inserts a note to new paragraph 306B(ba), which briefly explains the operation of new sections 302A and 333B.

 

71.               An inactive migration agent is a person who has ceased to practise a migration agent due to, for example, cancellation of their registration (see paragraph 306B(c)) or the person having become physically or mentally incapable of giving immigration assistance (see paragraph 306B(e)).  The concept of ‘inactive migration agents’ is particularly useful for the operation of sections 306D and 306E, which broadly allow the MARA to require an inactive migration or the legal representative of a deceased inactive migration agent to produce documents that are owned by or were produced by the clients of the agent in question.

 

72.               The effect of inserting new paragraph 306B(b) is that a person whose registration as a migration agent ceases or is cancelled because they are also an Australian legal practitioner will become an inactive migration agent.  This means that, while the person is an inactive migration agent, the MARA will have the power to require the person to produce documents that are owned by or were produced by the person’s clients.  The policy intention is to provide consumer protection, particularly in circumstances where the agent operated as a sole trader, and there is no suitable person appointed to take over the business.

 

Item 21           Section 306C

 

73.               This item repeals and substitutes section 306C, which provides a definition of client .  Current section 306C provides a definition of client for the purposes of Division 3A of Part 3 of the Migration Act, whereas new section 306C provides a definition for the purposes of Part 3 generally, as well as the purposes of regulations made under Part 3.

 

74.               Currently, there is a definition of client in subregulation 3(1) of the Migration Agents Regulations 1998 (the Agents Regulations), which is different to the definition in current section 306C.  The definition in subregulation 3(1) of the Agents Regulations is broader than that in current section 306C, which only describes who a client is in relation to deceased migration agents. 

 

75.               The definition of client set out in new subsection 306C(1) is based on, but not identical to, the definition in subregulation 3(1) of the Agents Regulations.  Whereas the definition in the Agents Regulations refers to whether the agent agrees to provide immigration assistance, the definition in new subsection 306C(1) refers to whether the agent has given or has agreed to give immigration assistance.  The definition in new subsection 306C(1) is therefore broader and includes clients of registered migration agents who have been given immigration assistance in the past but who will not be receiving immigration assistance from that agent in the future.

 

76.               New subsection 306C(2) replicates the content of current section 306C, but uses simpler phrasing to reflect modern drafting practises and to assist the reader.

 

Item 22           After paragraph 312(1)(h)

 

77.               This item inserts new paragraph 312(1)(i), which requires a registered migration agent to notify the MARA in writing within 14 days after he or she becomes an Australian legal practitioner.

 

78.               New section 302A requires the MARA to cancel the registration of a migration agent if satisfied that he or she has become an Australian legal practitioner.  It is appropriate to insert new paragraph 312(1)(i) so that a registered migration agent is obligated to notify the MARA if they become an Australian legal practitioner, and so that the MARA can then proceed to cancel the person’s registration.  This reflects the policy intention behind the amendments made by this Schedule, which is that Australian legal practitioners should not be able to register as migration agents and should instead be regulated entirely by their own professional bodies.

 

79.               If a registered migration agent becomes an Australian legal practitioner and does not notify the MARA as required under new paragraph 312(1)(i), the person will be liable for a penalty of 100 penalty units.  Failure to notify the MARA of having become an Australian legal practitioner is an offence of strict liability.

 

Item 23           Subsection 313(4)

 

80.               This item repeals subsection 313(4), which provides that section 313 does not apply to the giving of immigration assistance by a lawyer.  This amendment is consequential to the amendment made by item 5, which repeals the definition of immigration legal assistance .

 

Item 24           Paragraph 316(1)(b)

 

81.               Section 316 sets out the functions of the MARA.  Current paragraph 316(1)(b) relevantly provides that one of these functions is to monitor the conduct of lawyers in their provision of immigration legal assistance.

 

82.               Item 25 amends paragraph 316(1)(b) to remove this reference to lawyers and immigration assistance.  This is partly consequential to the repeal of the definition of immigration legal assistance by item 5.  It also meets the intention behind the amendments made by this Schedule, which is that lawyers should be regulated entirely by their own professional bodies and should not be able to register as migration agents.  The amendment made by item 6 of this Schedule allows Australian legal practitioners to give immigration assistance without being registered as a migration agent.

 

83.               As a consequence of this amendment, the MARA will not be able to monitor the conduct of Australian legal practitioners in their provision of immigration assistance.  Rather, this will be the function of the relevant State and Territory jurisdictional bodies.  This is because these bodies have responsibility for regulating the conduct of Australian legal practitioners insofar as that conduct occurs in connection with legal practice.

 

Item 25           Paragraph 316(1)(e)

 

84.               This item repeals paragraph 316(1)(e), which provides that one of the functions of the MARA is to investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring appropriate cases to professional associations for possible disciplinary action.

 

85.               Like item 25, this amendment meets the intention behind Schedule 1 which is that lawyers should be regulated entirely by their own professional bodies and should not be able to register as migration agents.  Further, this item is consequential to the repeal of immigration legal assistance by item 5.

 

86.               Complaints about Australian legal practitioners will no longer be investigable by the MARA, and rather will be the responsibility of the relevant State and Territory legal professional bodies.  Items 27 and 28 of this Schedule ensure that the MARA has the power to refer to such bodies the conduct of former registered migration agents who are also Australian legal practitioners.  As explained above under item 25, these bodies have responsibility for monitoring, investigating and disciplining lawyers for conduct that occurs in connection with legal practice.  Any disciplinary action taken by those bodies would be on the basis of the practitioner having engaged in unsatisfactory professional conduct or professional misconduct, as defined by the relevant State or Territory legislation.

 

87.               Any complaints about Australian legal practitioners that are on hand - that is, not yet finalised - on 1 July 2018 when this Schedule commences, will no longer be investigable by the MARA under amended section 316.  Rather, the MARA will be able to refer such complaints to the relevant legal disciplinary authority under section 319 as amended by item 28 of this Schedule.

 

88.               After the commencement day, any new complaint received about a person who was both a registered migration agent and an Australian legal practitioner at the time of the conduct in question will also no longer be investigable by the MARA.  For example, a complaint may be made after 1 July 2018 about immigration assistance that was given before 1 July 2018, in relation to an Australian legal practitioner who was also a registered migration agent at the time.  Such a complaint would be referrable by the MARA under section 319 to the relevant legal disciplinary authority, on the basis that the person is currently an Australian legal practitioner.

 

Item 26           Section 319 (heading)

 

89.               This item repeals and substitutes the heading of section 319. 

 

90.               Currently, the heading is “Power to refer lawyers’ conduct to other authorities”.  The new heading, “Referral of conduct of former registered migration agents to legal disciplinary authorities”, more accurately reflects the operation of section 319.  Section 319, as amended by items 28 and 29, broadly allows the MARA to refer to an authority responsible for disciplining lawyers in a State or Territory the conduct of a former registered migration agent who is also an Australian legal practitioner, where the conduct occurred while the person was a registered migration agent.

 

Item 27           Subsections 319(1) and (2)

 

91.               This item repeals subsections 319(1) and (2) of the Migration Act and inserts new subsection 319(1).

 

92.               Current subsection 319(1) authorises the MARA to refer to an authority responsible for disciplining lawyers the conduct of registered migration agents, as well as former registered migration agents, who also hold practising certificates.  Current subsection 319(2) provides that if the MARA makes a referral under subsection 319(1), it may not take action against the agent under section 303 on the basis of that conduct.

 

93.               These provisions are no longer required in their current form because the amendments made by this Schedule exclude lawyers from registering as migration agents.  In particular, it is unnecessary for subsection 319(1) to allow the MARA to refer the conduct of currently registered migration agents who hold practising certificates, because Australian legal practitioners are no longer able to be registered as migration agents.  Further, subsection 319(2) is not required because the MARA cannot take action under section 303 in relation to a person who holds a practising certificate as such a person cannot be a registered migration agent (section 303 is about disciplining registered migration agents).

 

94.               New subsection 319(1), as inserted by this item, refers only to the conduct of former registered migration agents who are currently Australian legal practitioners.  Current subsection 319(2) has not been replicated.

 

95.               New subsection 319(1) allows the MARA to refer conduct whether or not it occurred in connection with legal practice.  This is appropriate because the MARA does not have the relevant expertise or authority to make an assessment as to whether the conduct of a former registered migration agent occurred in connection with legal practice.  Rather, this is the purview of the relevant legal disciplinary authority.  In addition, legal disciplinary authorities have the power to discipline conduct that constitutes professional misconduct, which may occur in connection with the practice of law or otherwise. As such, it is inappropriate to limit the MARA’s referral powers to conduct that is connected with legal practice.

 

96.               New subsection 319(1) also allows for the referral of conduct whether or not the person was, at the time of the conduct, an Australian legal practitioner.  This is appropriate because a person’s admission as a lawyer is generally predicated on their being of good character.  It is therefore appropriate for the MARA to be able to refer the conduct of a person who is now an Australian legal practitioner to the relevant legal disciplinary authority, whether or not the conduct occurred before the person became admitted as a lawyer or held a practising certificate.

 

97.               Whereas current subsection 319(1) refers to “an authority responsible for disciplining lawyers”, new subsection 319(1) refers to “an authority responsible for disciplining lawyers in a State or Territory” and allows the MARA to refer conduct to such an authority if the former agent who committed the conduct was granted his or her practising certificate under the law of that particular State or Territory.  This ensures that the conduct of the person is referred to the appropriate jurisdictional body, that is, the body that in fact has regulatory responsibility for that person’s conduct as an Australian legal practitioner.

 

98.               This item does not repeal or amend subsection 319(3), which provides that if the MARA refers the conduct of a former registered migration agent, it may not take action against the agent under subsection 311A(1) on the basis of that conduct.  Subsection 311A(1) allows the MARA to bar a former registered migration agent from being registered for up to 5 years.  It is the policy intention that the referral of the conduct of a former registered migration agent who is also an Australian legal practitioner should not result in the MARA being able to bar the person from being registered if the MARA has referred the agent’s conduct to a legal disciplinary authority.  This is consistent with the purpose of this Schedule, which is to remove dual regulation of Australian legal practitioners.

 

Item 28           Subsection 319(3) (heading)

 

99.               This item repeals the heading of subsection 319(3). The current heading is “Conduct of former registered migration agents”.  Given that the amendments made by item 28, section 319 as a whole is about the conduct of former registered migrations only, and does not cover currently registered migration agents.  As such, the heading is no longer required.

 

Item 29           Subsections 321A(4) and 332F(4)

 

100.           This item repeals subsections 321A(4) and 332F(4).  These provisions set out signpost definitions of inactive migration agent , and refer readers to section 306B which provides a complete definition of the term.  These provisions are no longer required because item 1 of this Schedule amends section 275 to include the signpost definition of inactive migration agent .

 

Item 30           At the end of Part 3

 

101.           This item inserts new Division 8 at the end of Part 3 of the Migration Act, which sets out the transitional arrangements for Australian legal practitioners following commencement of the amendments made by this Schedule. 

 

102.           Division 8 broadly ensures that, from 1 July 2018, all Australian legal practitioners will be completely removed from the regulatory scheme that governs migration agents, thus implementing Recommendation 1.  The transitional arrangements provide that there will be a clear cut-off point at which all Australian legal practitioners who are also registered migration agents will cease to be migration agents.  This ensures clarity and certainty for the clients of registered migration agents and Australian legal practitioners, both in terms of the legal requirements in giving immigration assistance and the process of making complaints.

 

103.           The intention is that Division 8 will be repealed when the provisions therein are no longer required, that is, when all Australian legal practitioners have not only ceased to be registered migration agents but have also seen out their periods of being inactive migration agents under amended section 306B.

 

New section 333 - Definitions

 

104.           New section 333 defines amending Act as the Migration Amendment (Regulation of Migration Agents) Act 2017 , for the purposes of new Division 8,

 

105.           Writing out the name of the Act in full each time it is referenced in Division 8 would render the Division difficult to read.  Division 8 refers to “the amending Act” at several points, particularly when setting out how the amendments made by that Act are to apply after its commencement.  For this reason, using the defined term is convenient and aids readability.

 

New section 333A - Restrictions on giving immigration assistance and making immigration representations

 

106.           Division 2 of Part 3 of the Migration Act sets out restrictions on giving immigration assistance, making immigration representations, charging fees and advertising.  Currently, Division 2 most relevantly places restrictions in relation to these types of conduct on persons who are not registered migration agents, and provides that such restrictions do not apply in relation to lawyers giving immigration legal assistance.

 

107.           This Schedule makes amendments to Division 2 such that the restrictions contained therein do not apply to Australian legal practitioners giving immigration assistance or making immigration representations in connection with legal practice.  These amendments reflect the fact that Australian legal practitioners are now able to give immigration assistance without being registered as a migration agent, and is consequential to the repeal of the concept of immigration legal assistance by item 5.

 

108.           New subsection 333A(1) ensures that the content of Division 2 as was in force prior to 1 July 2018 continues to apply in relation to conduct that occurred before that day.  For example, this means that if an Australian legal practitioner provided immigration assistance prior to 1 July 2018 and was not a registered migration agent at the time, he or she will have committed an offence under the Migration Act whether or not that conduct is investigated before or after 1 July 2018. 

 

109.           New subsection 333A(2) provides that new subsection 333A(1) also applies in relation to any conduct that occurs after 1 July 2018 if that conduct is a continuation of or connected to conduct that occurred before that day.  For example, an Australian legal practitioner may have provided immigration assistance prior to 1 July 2018 despite not being registered as a migration agent, which is currently an offence under section 280.  If the practitioner receives a fee, after 1 July 2018, for the giving of that immigration assistance, this would constitute conduct that is a continuation of conduct that occurred prior to 1 July 2018, and was also itself an offence under 281 before 1 July 2018.  The operation of new subsection 333A(2) means that the person will have committed an offence as though Division 2 had not been amended by the amending Act at all.

 

New section 333B - Registered migration agents who were Australian legal practitioners immediately before 1 July 2018

 

110.           This provision ensures that Australian legal practitioners who were also registered migration agents immediately before 1 July 2018 will cease to be registered migration agents from that date onwards.  This ensures that, from 1 July 2018, Australian legal practitioners will no longer be able to be registered as migration agents, and will be entirely regulated by their own professional bodies.  This both ensures that Recommendation 1 of the 2014 Review is implemented effectively and efficiently, and provides clients of Australian legal practitioners and of registered migration agents with clarity and certainty.

 

111.           New subsection 333B(1) provides that section 333B applies in relation to a person who was both a registered migration agent and an Australian legal practitioner immediately before 1 July 2018.  New paragraph 333B(1)(a) specifies that this is so even if the person was subject to a suspension or their registration had been taken to continue under subsection 300(4).  This is because the policy intention is that the registration of all Australian legal practitioners should cease on the same date, regardless of whether the person’s registration would have continued beyond that date if not for the amendments made by this Schedule.

 

112.           New subsection 333B(2) provides that the registration of a person mentioned in subsection 333B(1) ends at the start of 1 July 2018.

 

113.           New subsection 333B(3) provides that section 312 does not apply to the person in relation to an event mentioned in subsection 312(1) that occurs on or after 17 June 2018.  Section 312 sets out notification requirements of registered migration agents, and provides that such persons must notify the MARA within 14 days of the occurrence of one of the events listed in subsection 312(1).  These events include, among other things, matters of which the MARA needs to be aware in order to determine whether the person should remain a registered migration agent, such as the person becoming bankrupt (paragraph 312(1)(a)) and the person being convicted of an offence (paragraph 312(1)(e)).  Item 23 of this Schedule amends section 312 to include a person becoming an Australian legal practitioner in the list of events under subsection 312(1).

 

114.           If a registered migration agent becomes an Australian legal practitioner on or after 17 June 2018, they will have less than 14 days remaining on their registration as their registration will cease on 1 July 2018.  New subsection 333B(3) clarifies that the 14 day notification requirement under section 312 does not apply to the person, because the person will not be a registered migration agent at the end of the 14 day period and the section 312 notification requirements only apply to registered migration agents.

 

New section 333C - Registration applications made before 1 July 2018

 

115.           This provision ensures that an application for registration made before 1 July 2018 by an Australian legal practitioner, that is not yet decided on that date, will be refused in accordance with the amendments made by this Schedule.

116.           New subsection 333C(1) provides that section 333C applies in relation to a person who made a registration application that was not yet decided immediately before 1 July 2018.  New paragraph 333C(1)(a) specifies that this is so whether or not the person had previously been registered as a migration agent.  This ensures that section 333C includes both applications for first-time registration as a migration, as well as applicants for repeat registration. 

 

117.           New subsection 333C(2) provides that the amendments of Division 3 of Part 3 of the Migration Act, as made by this Act apply in relation to the person’s registration application as though the application had been made on or after 1 July 2018.  Division 3 is about the registration process and requirements for registration.  The effect of new subsection 333C(2) is that an application made before 1 July 2018 by an Australian legal practitioner must be refused, as though the application were made on or after 1 July 2018 when the amendments made by this Schedule are in effect.  There is also a note to new subsection 333C(2) explaining that on and after 1 July 2018, an Australian legal practitioner cannot be registered as a migration agent, and refers readers to new section 289B.

 

118.           New subsection 333C(3) provides that section 300 does not apply if the person was an Australian legal practitioner immediately before 1 July 2018.  Section 300 broadly provides that a registered migration agent’s registration will continue beyond the end of their current registration period if they have applied for repeat registration but the MARA has not yet decided their application.  There is also a note to new subsection 333C(3), which explains that if the person’s registration had been taken to continue under subsection 300(4) before 1 July 2018, the registration ends on that day.  The note also refers readers to new section 333B.

 

119.           New subsection 333C(4) ensures that where a person’s application was refused because they are an Australian legal practitioner, that refusal does not prevent the person from being registered as a migration agent in accordance with an application made on or after 1 July 2018.  This is so despite section 291, which provides that an applicant must not be registered if he or she has been refused registration in the 12 months before his or her application.  The effect of subsection 333C(4) is that, if a person, whose application was refused because they are an Australian legal practitioner, ceases to hold a practising certificate, they can then apply for registration as migration agent without being required to wait 12 months after ceasing to hold the certificate.

 

 

 

 

 

 

 

 



SCHEDULE 2 - Registration periods

 

Background

 

120.           The purpose of the amendments made by Schedule 2 is to ensure that the period within which an application will be considered an application for repeat registration is a prescribed period, as opposed to the 12 month period.  The intention is to prescribe a period of three years. 

 

121.           This means that there will be a longer window within which applicants may be considered applicants for repeat registration, and will therefore be exempt from certain entry qualification requirements. This contrasts with the current provisions of the Migration Act, which only exempt from those requirements applicants who apply within 12 months of the end of their last registration period.  As such, this Schedule makes amendments that are beneficial to applicants.

 

122.           To meet the policy intention, this Schedule makes amendments to Part 3 of the Migration Act that remove references to a 12 month period within which applications must be made following the meeting of entry qualification requirements.

 

123.           The prescribed period will be prescribed in a legislative instrument made under the Migration Agents Regulations 1998 (the Agents Regulations).  This sub-delegation is consistent with sub-delegation under Regulation 5 of the Agents Regulations, which deals with prescribed qualifications.  This is authorised by subsection 504(2), which provides that section 14 of the Legislation Act 2003 does not prevent regulations whose operation depends on a matter being specified or certified by the Minister in an instrument made in writing under the regulations after the commencement of those regulations.

 

Part 1 - Amendments

 

Migration Act 1958

 

Item 1             Subsection 288(2)

 

124.           Current subsection 288(2) requires an applicant for registration to satisfy publishing requirements unless he or she has been registered at some time in the 12 months immediately before making the application.  This item amends the subsection to remove the reference to a 12 month period, and instead insert a reference to a period prescribed for the purposes of the subsection.

 

125.           This ensures that an applicant who is applying for registration within the prescribed period following the end of their last registration period is not required to satisfy the publishing requirements. 

 

 

 

Item 2             Section 289A

 

126.           This item repeals and substitutes section 289A.  New section 289A is very similar to current section 289A but for the differences outlined below.  New section 289A is also structured differently to current section 289A, in line with modern drafting practices.

 

127.           New section 289A has a different heading to current section 289A.  The new heading specifically references “academic and vocational requirements”, which more accurately reflects the operation of the section.

 

128.           This item removes the reference to an application made more than 12 months after the end of the applicant’s previous registration.  It instead inserts a reference to an application made after the end of a period prescribed for the purposes of the paragraph.

 

129.           This meets the policy intention of this Schedule, which is to ensure that an applicant for repeat registration is one whose application is made within a prescribed period following the end of their previous registration period, rather than within 12 months of the end of their previous registration period. 

 

130.           This item also removes the reference to a prescribed period within which an applicant must complete a prescribed course. 

 

131.           This amendment complements broader changes being made in respect of entry qualifications into the migration advice industry.  These changes include the introduction of a Graduate Diploma in Migration Law and Practice, to replace the current Graduate Certificate as the prescribed course for the purpose of paragraph 289A(c).  Once an individual completes the Graduate Diploma, the qualification will never lapse. Similarly, the Graduate Certificate will never lapse. The prescribed exam, which will be known as the Capstone Exam, will lapse after three years.

 

132.           Given the introduction of the Graduate Diploma, it is appropriate to remove the requirement that a prescribed course be completed within a prescribed period prior to the applicant being able to apply for registration as a migration agent.  As the Graduate Diploma is a qualification that is held forever, a person who completes this qualification should be able to apply for registration at any point in time afterwards, if they meet the other entry requirements.  Most importantly, applicants must still pass a prescribed exam within a prescribed period, to demonstrate that their knowledge and skills are current.

 

 



Item 3             Section 290A

 

133.           This item restructures section 290A such that it is easier to read.  New subsection 290A(1) explains to whom the section applies, and new subsection 290A(2) explains the registration requirement relating to continuing professional development.

 

134.           This item also removes the reference to a 12 month period.  This is consistent with the intention that a person is an applicant for repeat registration if they apply within a prescribed period following the end of their last registration period, as opposed to within 12 months of their last registration period.  The effect of this amendment is that an applicant who applies within the prescribed period will not be able to be registered as a migration agent unless they have met the continuing professional development requirements set out in the Agents Regulations.  Currently, applicants must meet these requirements if they apply within 12 months of the end of their last registration period.

 

 



Part 2 - Application of amendments

 

Item 4             Application of amendments made by Part 1

 

135.           This item ensures that the amendments made by Part 1 of Schedule 2 apply prospectively.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

SCHEDULE 3 - Redundant provisions

 

Background

 

136.           The purpose of the amendments made by Schedule 3 is to ensure that redundant provisions are amended or repealed from the Migration Act 1958 .

 

137.           Several of the amendments reflect the consolidation of the Office of the MARA into the Department of Immigration and Border Protection, and repeal:

 

·          powers of the Minister to refer registered migration agents to the MARA for disciplinary action;

·          powers authorising the sharing of personal information between the Department and the MARA; and

·          the requirement for the Minister to produce an independent annual report on the administration of Part 3 of the Migration Act.

 

138.                      The other amendments in this Schedule repeal redundant provisions that were inserted at a time when the MIA was appointed as a statutory body to undertake the functions set out under Part 3 of the Migration Act, specifically from March 1998 to June 2009.  A finding of the Review of Statutory Self-Regulation of the Migration Advice Profession 2007-2008 (Hodges Review)was that this arrangement created potential conflicts of interest. One of the recommendations subsequently made by that review was to establish an independent statutory body with greater powers to protect consumers and to regulate the profession. On 1 July 2009, the Office of the MARA was established as the independent regulator of the migration advice industry, and took over the administration of Part 3 of the Migration Act.  This Schedule therefore repeals provisions that mention the MIA as the body that carries out the functions of the MARA.

 

Part 1 - Amendments

 

Migration Act 1958

 

Item 1             Section 275 (definitions of high visa refusal rate and Institute )

 

139.           This item repeals the superfluous definitions of high visa refusal rate and Institute .

 

140.           The term high visa refusal rate is currently defined at section 306AC. However, this definition is now redundant given that the term is only referenced in Division 3AA, Subdivision A of Division 4A, and Subdivision B of Division 4A which are to be repealed by items 10, 12 13.

 

141.           The Institute is currently only referenced in subsection 322E(3), and accordingly item 23 makes an amendment to write the reference out in full, rendering the definition at section 275 also superfluous.

 

Item 2             Section 275 (definition of Migration Agents Registration Authority )

 

142.           This item repeals and substitutes the definition of Migration Agents Registration Authority (MARA) to clarify that the MARA is a distinct body established within the Department of Immigration and Border Protection. The Department sought to clarify this to assist users of the Act in understanding that references to the MARA are references to a dedicated Departmental body which administers Part 3 of the Migration Act.

 

143.           This clarification is made by amending the definition to remove the alternative meanings of the Migration Agents Registration Authority , being the Institute if appointed under section 315 or, otherwise, the Minister. The reference to the Institute is redundant as the Institute is no longer, and will not be, appointed under section 315 as the MARA.  The reference to the Minister is potentially confusing and is replaced by a reference to the body mentioned in section 315.

 

144.           This item also adds a note to clarify that the powers or functions of the MARA can only be exercised by the Minister or a delegate, as provided by subsection 315(2).

 

Item 3             Subsection 279(1)

 

145.                      This item omits the numbering of subsection 279(1) as a subsection of this section. This amendment is consequential to the repeal of subsection 279(2) at item 4.

 

Item 4             Subsection 279(2)

 

146.                      This item repeals subsection 279(2) as it provides that Part VIIC of the Crimes Act 1914 applies in relation to the MARA. This subsection is redundant given that the powers and functions of the MARA are exercised or performed by the Minister, who is a Commonwealth authority within the meaning of the Crimes Act 1914 , Part VIIC.

 

Item 5             Section 292

 

147.                      This item omits the words “, 306AG or 306AGAC” because these sections are to be repealed as part of the amendments made at item 10.

 

Item 6             Paragraph 292A(a)

 

148.                      This item omits the words “or 311L(1)” because this section is to be repealed as part of the amendment made at item 13.

 

Item 7             Subsection 299(1)

 

149.                      This item omits the words “300, 302, 303, 306AG and 306AGAC and subsection (3)”, and substitutes them with “subsection (3) of this section and sections 300, 302 and 303”. This amendment is consequential to the repeal of sections 306AG and 306AGAC by item 10.

 

Item 8             Subsection 303(1) (note 1)

 

150.                      This item repeals the first note following subsection 303(1), which refers readers to Division 3AA.  This is consequential to the repeal of Division 3AA by item 10.

 

Item 9             Subsection 303(1) (note 2)

 

151.                      This item renames the second note to subsection 303(1). This is consequential to the repeal of the current Note 1 to subsection 303(1) which is repealed by item 8.

 

Item 10           Division 3AA of Part 3

 

152.                      This item repeals Division 3AA of Part 3, which relates to disciplining registered migration agents for engaging in vexatious activity. Division 3AA provides a mechanism for the Minister to refer the conduct of currently registered migration agents to the MARA for disciplinary action if the agent has engaged in vexatious activity, i.e. if the agent has a high refusal rate in relation to a visa of a particular class. Among other things, Division 3AA provides that the MARA must make one of a range of decisions listed under subsection 306AG(1) in relation to a registered migration agent who is referred under this mechanism.

 

153.                      Following the Office of the MARA’s consolidation within the Department, a legislative power for the Minister to refer matters to the MARA is no longer required. Further, the Office of the MARA has access to Departmental systems which allows it to identify registered migration agents with high visa refusal rates and pursue appropriate disciplinary action using its existing powers, for example its powers under section 303.

 

Item 11           Paragraphs 306B(c) and (d)

 

154.                      This item omits the words “, 306AG or 306AGAC” because these sections are to be repealed as part of the amendments made at item 10.

 

Item 12           Subdivision A of Division 4A of Part 3 (heading)

 

155.                      This item repeals the heading of Subdivision A of Division 4A of Part 3.  This is consequential to the repeal of Subdivision B by item 13.

 

Item 13           Subdivision B of Division 4A of Part 3

 

156.                      This item repeals Subdivision B of Division 4A of Part 3, which provides a mechanism for the Minister to refer the conduct of a former registered migration agent to the MARA for disciplinary action if the agent had a high visa refusal rate in relation to a visa of a particular class.

 

157.                         This mechanism is no longer required because following the Office of the MARA’s consolidation within the Department, there is no longer a legislative power required for the Minister to refer matters to the MARA. 



Item 14           Section 315

 

158.                      This item repeals section 315, and substitutes it with a new section 315. This item repeals one of numerous references to the MIA, which are redundant following the establishment of the Office of the MARA within the Department.

 

159.                      The new subsection 315(1) clarifies that the MARA is a distinct body established within the Department to administer Part 3 of the Migration Act.

 

160.                      Further, the new subsection 315(2) is inserted to provide that the MARA’s powers and functions under Part 3 may only be exercised or performed by the Minister or a delegate. Without such a provision, there could be some uncertainty about whether the powers or functions can be exercised (directly, without delegation) by anyone within the Office of the MARA.

 

Item 15           Subsection 316(2)

 

161.                      This item repeals subsection 316(2), as it will become redundant by item 14’s repeal of section 315. Subsection 316(2) gives the MIA the function of advising the Minister on the adequacy of any Code of Conduct.

 

Item 16           Section 319A

 

162.                      This item repeals section 319A. Section 319A authorises the MIA to delegate the powers and functions it holds under Part 3 of the Migration Act to a committee, officer, or employee of the MIA. The MIA only has the authority to do this if it is appointed as the MARA under subsection 315(1) of the Migration Act, as per the current definition of Migration Agents Registration Authority at section 275.

 

163.           There is no longer a need for section 319A, because the MIA will no longer be appointed under section 315.

 



Item 17           Subsection 320(1)

 

164.                      This item repeals the current subsection 320(1), and substitutes it with a new subsection 320(1).

 

165.                      The current subsection 320(1) provides that the Minister may delegate the MARA’s powers and functions under Part 3 of the Migration Act to a person in the Department who is appointed or engaged under the Public Service Act 1999 for a period when the Institute is not appointed under section 315.

 

166.                      The new subsection 320(1) provides that the Minister may delegate the MARA’s powers and functions under Part 3 of the Migration Act more specifically to an APS employee in the Department.  The use of the term “APS employee” is consistent with the Acts Interpretation Act 1901 .  Further, new subsection 320(1) does not reference the MIA given that the MIA is not, and will no longer be, appointed under 315.

 

167.                      The note to new subsection 320(1) refers readers to section 315, which contains information relating to the nature, powers and functions of the Migration Agents Registration Authority.

 

Item 18           Section 321

 

168.                      This item repeals section 321, which authorises disclosure of personal information by the Department to the MARA. It also allows the Minister to disclose personal information to the MIA if the MIA has been appointed under section 315, whether or not the instrument appointing the MIA has taken effect.

56. This provision is being repealed for two reasons. The first is that the Office of the MARA is now part of the Department, and so the Department may disclose personal information to the Office of the MARA without needing a legislative power to do so. The second is that the MIA is no longer appointed under section 315, and will not be in future.

 

Item 19           Sections 322 and 332B

 

169.                      This item repeals sections 322 and 332B.

 

170.                      Subsection 322(1) provides that the MIA, if appointed, must prepare an annual report on its administration of Part 3 of the Migration Act. This subsection is no longer necessary because the MIA will no longer be appointed under section 315.

 

171.                      Subsection 322(2) provides that if the MIA is not appointed, the Minister must cause such a report to be tabled in each House of Parliament. This subsection is no longer necessary because the administration of Part 3 of the Migration Act is already reported on annually in the Department’s annual report, following the consolidation of the Office of the MARA within the Department.

 

172.           Section 332B sets out the instances where payments should be made to the MIA for exercising their functions as the MARA. The MIA will not be appointed as the MARA in the future, so this section is no longer necessary.

 

Item 20           Subsection 332D(1)

 

173.                      This item omits the text “or 311P” from subsection 332D(1). This amendment is made because section 311P is part of Division 4A, Subdivision B, which is to be repealed by tem 13.

 

Item 21           Subsection 322E(3)

 

174.                      This item omits from subsection 322E(3) the text “The Institute, or an officer or employee of the Institute,” and substitutes it with “The Migration Institute of Australia Limited (ACN 003  409  390), or an officer or employee of that Institute,”.

 

175.                      This amendment is made to include the full name of the Institute, because the current definition to the Institute will be repealed from section 275 by item 1.

 

Item 22           At the end of subsection 322E(3)

 

176.                      This item inserts a note at the end of subsection 322E(3).

 

177.                      The note explains that the Institute was appointed as the Migration Agents Registration Authority by instrument dated 21 March 1998, under section 315 as then in force, and that that instrument was revoked on 30 June 2009.

 

178.               This note is inserted consequentially to the repeal of section 315 by item 14. The intention behind the note is to explain how the Institute may have come to be exposed to a legal action of the kind mentioned in section 322E.

 

 

 

 

 

 

 

 

 

 



SCHEDULE 4 - Requirement for applicants to provide further information

 

Background

 

179.           The purpose of the amendments made by Schedule 4 is to allow the MARA to refuse an application to become a registered migration agent where the applicant has been required to, but has failed to, provide information or answer questions in relation to their application by making a statutory declaration or appearing before the MARA.

 

180.           Currently, if an applicant is required to make a statutory declaration or answer questions in relation to their application, the MARA is required not to further consider the application until the applicant does so.  The effect of this is that there are a number of outstanding applications that the MARA has no power to refuse because the applicant has failed to make the requisite statutory declaration or answer the requisite questions.  The amendments made by this Schedule address this anomaly. 

 
Migration Act 1958

 

Part 1 - Amendments

 

Item 1             Section 288B

 

181.           This item repeals current section 288B and substitutes it with a new section 288B, which gives the MARA the power to require an applicant for registration as a migration agent to answer questions or provide information.

 

Current section 288B

 

182.           Current subsection 288B(1) of the Migration Act provides that the MARA may require an applicant, who is not already a registered migration agent, to make a statutory declaration in relation to information or documents provided by the applicant, or appear before one or more individuals specified by the MARA to answer questions in relation to the application. Current subsection 288B(2) prevents the MARA from giving any further consideration to an application where the applicant has been required to make a statutory declaration, or required to answer questions relating to their application, but has failed to do so in the required time frame.

 

183.           It is necessary to repeal section 288B because the MARA has accrued several open applications to register as migration agents, where applicants have failed to make a statutory declaration or appear before the MARA as requested. The MARA currently does not have the power to refuse an application in this circumstance.

 

 

 

 

 

 

 

New section 288B

 

184.           The new section 288B allows the MARA be able to further consider the application if an applicant fails to respond to a section 288B requirement. In particular, applicant must not be registered if they have failed to comply with the requirement.

 

185.           New section 288B is structured differently to current section 288B, in line with modern drafting practices. 

 

186.           New subsection 288B(1) confirms that the section applies in relation to an applicant who is not already a registered migration agent.  This means that section 288B does not apply in relation to applicants for repeat registration.

 

187.           New subsection 288B(2) sets out the requirements that the MARA may impose in relation to an applicant for registration.  These requirements are the same as those in current subsection 288B(1), but for two key differences.  The first is that new subsection 288B(2) requires the MARA to issue the requirements by written notice.  This ensures that section 332H, regarding the giving of notices, will apply in relation to a requirement made under section 288B.  The second is that new subsection 288B(2) only refers to a requirement to appear before the MARA, rather than to a requirement to appear before one or more individuals specified by the MARA.  This is consistent with what occurs in practice, which is that applicants will generally be required to appear before the MARA itself or a delegate of the MARA under section 320.

 

188.           New subsection 288B(3) provides that the applicant must not be registered if he or she fails to comply with a requirement made under a subsection 288B(1) notice.  This is consistent with the policy intention, which is that an applicant for registration must provide further information when required, to be registered as a migration agent.

 

189.           New subsection 288B(4) allows the MARA to consider refusing the application if the applicant fails to comply with the requirements under the subsection 288B(1) notice within a prescribed period or within an extended period if requested by the applicant and approved by the MARA.  This will trigger the operation of section 309, which requires the MARA to inform the applicant and invite him or her to make further submissions if the MARA is considering refusing the person’s registration application.  It also triggers the operation of subsection 310, which relevantly allows the MARA to decide a matter after the MARA has invited a submission under section 309.

 

190.           New subsection 288B(5) requires a notice given under subsection 288B(1) to include a statement explaining the effect of subsections 288B(3) and (4) and of sections 309 and 310.  This ensures that the applicant is given procedural fairness in respect of the potential for his or her application to be refused for failure to meet a requirement issued under subsection 288B(1).

 

191.           This item also inserts a note to new section 288B, which briefly explains the operation of sections 309 and 310.

 

 



Part 2 - Application of amendments

 

Item 2             Application of amendments made by Part 1

 

192.           This item outlines that the amendments of the Migration Act 1958 made by Part 1 of Schedule 4 apply in relation to a notice given to an applicant under subsection 288B(2) of the Act on or after the commencement of the amendments.  This ensures that the amendments apply prospectively.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



SCHEDULE 5 - Registration application charges

 

 

Background

 

193.           The purpose of the amendments made by Schedule 5 are to require a registered migration agent to notify the MARA if he or she has paid the non-commercial registration application charge in relation to his or her current registration period, but gives immigration assistance otherwise than on a non-commercial basis.  These amendments complement those made to the Migration Agents Registration Application Charge Act 1997 (the Charge Act) by the Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017 (the Charge Bill).

 

194.           Regulation 5 of the Charge Regulations currently 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.

 

195.           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). 

 

196.           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 194 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.

 

197.           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. 













Part 1 - Amendments

 

Migration Act 1958

 

Item 1             Paragraph 312(1)(ea)

 

198.           Section 312 of the Migration Act sets out notification obligations of registered migration agents.  In particular, it requires a registered migration agent to notify the MARA in writing within 14 days after the occurrence of any of the events listed in paragraphs 312(1)(a) to (h).

 

199.           Current paragraph 312(1)(ea) states that one such event is if the agent paid, in relation to his or her current period of registration, the charge set out under regulation 5 of the Migration Agents Registration Application Charge Regulations 1998 (the Charge Regulations), and the agent begins to give immigration assistance either on a commercial or for-profit basis, or as a member of or a person associated with an organisation that operates on a commercial or for-profit basis.

 

200.           This reflects the current wording of regulation 5 of the Charge Regulations.  However, as described above, regulation 5 is being amended, as is section 10 of the Charge Act.

 

201.           This item repeals and substitutes paragraph 312(1)(ea) of the Migration Act to reflect those amendments.  The effect of this amendment is that, if a person ceases to give immigration assistance:

 

·          solely on a non-commercial or non-profit basis; or

·          as a member of or a person associated with an organisation that operates in Australia solely on a non-commercial or non-profit basis, and as a charity or for the benefit of the Australian community,

 

the person will be required to notify the MARA.  This will cause the MARA to be aware that the person has become liable to pay an adjusted charge under section 10 of the Charge Act.

 

202.           While current paragraph 312(1)(ea) does not make reference to when the person gives immigration assistance otherwise than on a non-commercial basis, new paragraph 312(1)(ea) refers to the “first day” on which the person does so.  This makes it clear that the person’s notification obligation must be made within 14 days of the first day on which they give immigration assistance otherwise than on a commercial basis, rather than, for example, once they have completed the giving of that assistance. 







Item 2             Subsection 312(3)

 

203.           This item repeals and substitutes subsection 312(3). 

 

204.           Current subsection 312(3) provides that the day on which the event mentioned in paragraph 312(1)(ea) occurs is to be worked out in accordance with the Charge Regulations. 

 

205.           New subsection 312(3) has a similar legal effect, but instead provides that the first day in the period mentioned in paragraph 312(1)(ea) is the first day of the remaining period of the agent’s current period of registration, within the meaning of subsection 12(1) of the Charge Act.

 

206.           New subsection 312(3) has two main advantages over current subsection 312(3). Firstly, it makes a clear link between the day on which an agent first gives immigration assistance otherwise than on a non-commercial basis, and the remainder of their registration period.  This is appropriate because the agent will be required to pay an adjusted charge, worked out under subsection 12(1) of the Charge Act, starting from the day on which they give immigration assistance otherwise than on a non-commercial basis, to cover the entire remainder of their registration period.

 

207.           Secondly, it does not reference the Charge Regulations, which is made under the Charge Act rather than under the Migration Act.  This means that readers need only consult one other Act in order to determine the relevant ‘day’ for the purpose of paragraph 312(1)(ea), rather than consult another Act and the regulations made under it. 

 

 

 



Part 2 - Application and transitional provisions

 

Item 3             Application of amendments made by Part 1

 

208.           This item confirms that the amendments made by Part 1 of this Schedule apply in relation to events occurring on or after commencement of the Schedule. That is, the amendments apply where a person gives immigration assistance other than on a non-commercial basis on, or after commencement.

 

Item 4             Transitional notification obligation

 

209.           Subitem 4(1) sets out a notification obligation in relation to registered migration agents who, prior to commencement of this Schedule, both paid the charge set out under regulation 5 of the Charge Regulations and gave immigration assistance otherwise than on a non-commercial basis.  Such a person is required to notify the MARA in writing within 14 days of commencement of this Schedule.  Subitem 4(2) provides that an offence against subitem 4(1) is an offence of strict liability. Subitem 4(1) provides that the offence carries a penalty of 100 penalty units.  This is consistent with current subsection 312(1), which sets out the notification obligations of registered migration agents. 

 

210.           The effect of this item is that the notification obligation will apply retrospectively, that is, it will change the law with respect to events that occurred prior to commencement and will apply to agents who are currently registered. This is to reflect the fact that those agents who are registered on a non-commercial basis at the time the amendments commence should only be able to continue to provide services on a non-commercial basis. If the circumstances of the agent change, it would be contrary to the policy intention to allow them to provide immigration advice for fee or reward without notifying the MARA and becoming liable to pay an adjusted charge.

 

211.           Subitem 4(3) clarifies that the that the first day in the period mentioned in paragraph 4(1)(b) is the first day of the remaining period of the agent’s current period of registration, within the meaning of subsection 12(1) of the Charge Act.  This subitem has been inserted for the same reason as new subsection 312(3), described at item 2 above.

 

212.           Subitem 4(4) provides that item 4 does not apply to a registered migration agent if they became liable to pay a charge under the Charge Act before commencement of this Schedule.  This means that, where a person has already become liable to pay an adjusted charge, they will not become liable again under this item.



SCHEDULE 6 - Other amendments

 

Background

 

213.           The purpose of the amendments made by Schedule 6 is to ensure that assisting a person to make a request to the Minister in relation to a revocation under section 501C or 501CA is considered to be ‘immigration assistance’ for the purpose of Part 3 of the Migration Act.

 

Part 1 - Amendments

 

Migration Act 1958

 

Item 1             After subsection 276(2A)

 

214.           This item inserts after subsection 276(2A) a new subsection 276(2B) to extend the definition of immigration assistance .

 

215.           The new paragraph 276(2B)(a) provides that a person is taken to give immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by preparing, or helping to prepare, a representation to the Minister to exercise his or her power under subsection 501C(4), or 501CA(4).  A person is also taken to give immigration assistance under new paragraph 276(2B)(b) if the person advises the other person in relation to making such a representation.

 

216.           This item also inserts a note to new subsection 276(2B) which explains that sections 501C and 501CA relate to decisions to refuse or cancel visas on character grounds.

 

217.           The effect of the amendments made by item 1 is that a person must be a registered migration agent in order to give the kind of assistance described in new subsection 276(2B), otherwise they commit an offence under section 280 (unless they are subject to one of the exemptions under subsections 280(2) to (7)).

 

Item 2             Subsection 276(3)

 

218.           This item omits the text “and (2A)”, from subsection 276(3) and substitutes the old text with “, (2A) and (2B)”. This is a consequential amendment to item 1 of this schedule.

 



Item 3             At the end of subsection 282(4)

 

219.           This item adds in new paragraphs 282(4)(g) and (h) to broaden the circumstances where a person makes immigration representations .

 

220.           Paragraph 282(4)(g) provides that a person makes immigration representations on behalf of a person who has made (or is proposing to make) a representation to the Minister to exercise a power under subsection 501C(4) to refuse to grant, or to cancel, a visa (whether or not the decision relates to that person).

 

221.           Similarly, paragraph 282(4)(h) provides that a person makes immigration representations on behalf of a person who has made (or is proposing to make) a representation to the Minister to exercise a power under subsection 501CA(4) to cancel a visa (whether or not the decision relates to that person).

 

222.           The effect of these amendments is that a person must be a registered migration agent in order to make representations on behalf of a person who is making a representation to the Minister in relation to revocation under section 501C or 501CA.  If a person makes such representations without being registered as a migration agent, they commit an offence under section 282.

 

Item 4             Subsection 289(4)

 

223.           This item repeals subsection 289(4).  Subsection 289(4) does the same work as current subsection 300(6), and is therefore redundant.

 

 



Part 2 - Application of amendments

 

Item 5             Application

 

224.           This item provides that the amendments of sections 276 of the Migration Act 1958 made by Schedule 6 apply in relation to immigration assistance (within the meaning of Part 3 of that Act as amended by this Bill) if that assistance is given on or after the day on which this Schedule commences. 

 

225.           Further, this item provides that the amendment of section 282 of the Migration Act 1958 made by Schedule 6 applies in relation to making immigration representations (within the meaning of that section of that Act as amended) if those representations are made on or after the day on which this Schedule commences.

 

226.           This item ensures that the amendments made by this Schedule apply prospectively.

 

 



ATTACHMENT A

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment (Regulation of Migration Agents) 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 Amendment (Regulation of Migration Agents) Bill 2017 (the Bill) is an omnibus package of reforms aimed at deregulating the migration advice industry.

There are six schedules within the Bill, which propose amendments to the Migration Act 1958 (the Migration Act):

  • Schedule 1 will implement Recommendation 1 of the 2014 Independent Review of the Office of the Migration Agents Registration Authority (the OMARA Review), which is that lawyers be removed from the regulatory scheme that governs migration agents.
  • Schedule 2 will ensure that the time period in which a person can be considered an applicant for repeat registration is set out in delegated legislation, and will remove the 12-month time limit within which a person must apply for registration following completion of a prescribed course.
  • Schedule 3 will repeal various provisions that reference regulatory arrangements that are no longer in place. These amendments will make it clear that the powers under Part 3 are exercisable by the Minister as the MARA and that the Office of the MARA is a part of the Department of Immigration and Border Protection, and that remove references to the appointment of the Migration Institute of Australia.
  • Schedule 4 will amend the Migration Act to require the MARA to refuse an application to become a registered migration agent where the applicant has been required to, but has failed to, provide information or answer questions in relation to their application by making a statutory declaration or appear before the MARA.
  • Schedule 5 will amend the Migration Act to require migration agents to notify the MARA, within a specified period, that they have ceased acting on a non-commercial basis and commenced acting on a commercial basis.
  • Schedule 6 will amend the Migration Act 1958 to ensure that assisting a person to make a request to the Minister in relation to a revocation under section 501C or 501CA is included in the definitions of ‘immigration assistance’ and ‘immigration representations’ for the purposes of Part 3 of the Migration Act.







Schedule 1: Australian legal practitioners providing immigration assistance (OMARA Review Recommendation 1)

 

Schedule 1 proposes to give effect to Recommendation 1 of the OMARA Review, which states:

 

“The Inquiry recommends that lawyers be removed from the regulatory scheme that governs migration agents, such that lawyers:

·          cannot register as migration agents; and

·          are entirely regulated by their own professional bodies.”

 

The implementation of this recommendation is deregulatory in nature and is aimed at removing unnecessary red tape from the migration advice industry, while ensuring that important consumer protections are maintained. Considerable amendment to Part 3 of the Migration Act is required to give effect to the recommendation. 

 

A new definition of ‘Australian legal practitioner’ will be inserted into section 275 of the Migration Act. The term is consistent with legislation governing the legal profession across various jurisdictions. The definition will cover all lawyers who hold a practising certificate granted under a law of an Australian State or Territory. This includes a restricted practising certificate (however defined across the jurisdictions).

 

Individuals who have a law degree and/or are admitted as an Australian legal practitioner, but do not hold a restricted or unrestricted legal practising certificate, will still need to register as a migration agent to provide immigration assistance.

 

The definition of ‘immigration legal assistance’ will be repealed from and consequential amendments to other sections in Part 3 will be made to reflect this change.

 

A new section 289B will prevent Australian legal practitioners from registering as migration agents. Under a new section 302A, the MARA will be required to cancel the registration of a registered migration agent if they become an Australian legal practitioner. Before their registration can be cancelled, the MARA will need to provide the affected individual with a notice under section 309 advising them of that fact and inviting them to make a submission in respect of their registration status.

 

New sections 333, 333A, 333B and 333C set out transitional arrangements in relation to Australian legal practitioners moving out of the MARA regulatory scheme, effective from 1 July 2018 subject to the passage of the amendments. This includes the cessation of the registration period of a migration agent who is also an Australian legal practitioner immediately before 1 July 2018.



Schedule 2: Registration periods (OMARA Review Recommendation 12)

 

Recommendation 12 of the OMARA Review states:

 

“The Inquiry recommends that the time period for registration after completing the Prescribed Course be extended from one year to five years.”

 

The intention of this recommendation is to ensure that the prescribed qualification lapses after five years, rather than one year as is the case under existing arrangements.

Rather than extending the prescribed period for registration following completion of the prescribed courses from one year to five years, as suggested in Recommendation 12 of the OMARA Review, the prescribed period will be removed altogether.

 

In addition, Schedule 2 to the Bill proposes to make several amendments to Part 3 of the Migration Act, so that the period in which an individual must make an application for registration as a migration agent is prescribed in delegated legislation, rather than specified on the face of the Act.

 

The relevant delegated legislation is proposed to be amended to stipulate that there will be no additional prescribed qualification requirements for an applicant who is currently registered or who has previously been registered within three years immediately before the date of their most recent application for registration.  Such applicants would have already fulfilled the then (former) prescribed course requirements at the time of registration.

 

For all other registration applicants, a prescribed course, including passage of a prescribed exam within a prescribed period, will be specified. This will assist individuals who may be applying for the first time, or who have let their registration as a migration agent lapse for a period of more than three years, to accurately identify whether or not they have met the qualification requirements prior to making such an application.

 

 

Schedule 3: Redundant provisions

 

In 1998, the Migration Institute of Australia (MIA) was appointed to assume the role of the Migration Agents Registration Authority (the MARA) as a statutory, self-regulating body. Part 3 of the Migration Act was amended to provide that the MIA could exercise the powers and functions of the MARA. In 2008, a review of the MARA was conducted and one of the recommendations therein was to remove the regulator role of the MARA from the MIA. 



In 2009, a hybrid model was established with the Office of the MARA operating as a discrete office attached to the Department. In 2014, one of the recommendations of the OMARA Review was to consolidate the position of the Office of the MARA within the Department. This recommendation was implemented with effect from 1 July 2015.

 

Many provisions relating to the arrangements that were in place in 2009 require amendment, to reflect the changed regulatory environment, most recently with the consolidation of the OMARA into the Department. Schedule 3 purports to amend or repeal such redundant references within Part 3 of the Migration Act.

 

A new section 315 will be inserted to provide that the OMARA is a distinct body within the Department, whose powers and functions can only be exercised by the Minister or a delegate.

 

This replaces the existing wording of the Migration Act that provides that the MIA can exercise the powers and functions of the MARA. This is in line with the decision to remove the regulator role of the MIA.  Consequential amendments are also made to other provisions in Part 3 to remove reference to the MIA.

 

Division 3AA of Part 3 of the Migration Act, and Subdivision B of Division 4A of the Migration Act will be repealed, as they set out mechanisms for the Minister to refer registered migration agents and former registered migration agents to the MARA for disciplinary action.  This is redundant given that the Minister exercises the powers and functions of the MARA.

 

 

Schedule 4: Requirement for applicants to provide further information

 

Schedule 4 seeks to close an existing loophole that prevents the MARA from refusing an application for registration as a migration agent in circumstances where the applicant does not respond to requests for further information. At present, this means such applications remain unfinalised for an indefinite period.

 

Schedule 4 inserts a new section 288B, which will loosely replicate the current wording of section 292B and state that an application must not be registered unless the MARA is satisfied the applicant has met all requirements of that section, such as providing further information on request.

 

As the MARA is prohibited from approving an application for registration that has not met all statutory requirements under section 288B, it must provide the applicant with a notice under section 309 advising the applicant of the matter and inviting further submissions to be made in support of the application. This means the applicant will be afforded procedural fairness before a final decision is made in respect of their application.

 



Schedule 5: Registration application charges 

 

Schedule 5 amends paragraph 312(1)(ea) of the Migration Act to require a migration agent, who has been registered on a non-commercial basis, to notify the MARA if they have given immigration assistance otherwise than on a non-commercial basis.

 

Subsection 312(3) will also be amended to provide for the first day on which the agent began to provide immigration assistance otherwise than on a non-commercial basis.

 

The effect of these changes will enable the MARA to calculate, based on the formula existing in the Migration Agents Registration Application Charge Act 1997 , a pro-rata charge for the remainder of the agent’s registration period, beginning from the day on which the agent first gave immigration assistance otherwise than on a non-commercial basis.

 

 

Schedule 6: Other amendments

 

The purpose of the amendments made by Schedule 6 is to ensure that assisting a person to make a request to the Minister in relation to a revocation under section 501C or 501CA is included in the definitions of ‘immigration assistance’ and ‘immigration representations’ for the purpose of Part 3 of the Migration Act.

 

 

Human rights implications

 

Schedule 1

 

As this amendment prevents lawyers from being able to register as migration agents, the right not to be subjected to discrimination under Article 2 and Article 26 of the International Covenant on Civil and Political Rights (ICCPR) may be engaged. Article 2 of the ICCPR states:

 

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”

 

Article 26 of the ICCPR states:

 

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”



As lawyers can still provide immigration assistance on the basis that they hold a practising certificate and are subject to regulation by their own professional bodies, being prevented from registering as a migration agent with the OARA has no practical discriminatory effect on lawyers. This amendment is therefore compatible with human rights.

 

 

Schedules 2-6

 

The other 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