Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Migration Amendment (Regulation of Migration Agents) Bill 2018

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2016-2017-2018

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL 2017

 

 

 

 

SUPPLEMENTARY EXPLANATORY MEMORANDUM

 

 

 

 

 

 

Amendments and New Clauses to be Moved on Behalf of the Government

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Assistant Minister for Home Affairs,

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 (the Migration Act) to, amongst other things, remove lawyers from the regulatory scheme that governs migration agents, such that lawyers cannot register as migration agents with the Migration Agents Registration Authority (the MARA) and are entirely regulated by their own professional bodies.

 

The amendments to the Bill will allow eligible restricted legal practitioners to continue to be both registered migration agents and restricted legal practitioners for a period of up to two years. This will enable restricted legal practitioners the opportunity to complete their supervised legal practice period, required before the grant of an unrestricted practising certificate. This period maybe extended by up to two years (to provide a maximum of four years in total).

 

The amendments also extend the transitional arrangements for registered migration agents who were restricted legal practitioners immediately prior to commencement.  These registered migration agents will have a transitional period of up to two years, during which they may continue to be both registered migration agents and restricted legal practitioners.  This transitional period may be extended by up to two years (to provide a maximum of four years in total).

 

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 AMENDMENTS

Amendment 1                        Clause 2, page 2 (table item 2)

1.                   This amendment sets 19 November 2018 as the commencement date for Schedule 1 of the Migration Amendment (Regulation of Migration Agents) Act 2018.

Amendment 2                        Clause 2, page 2 (table item 6)

2.                   This amendment updates the reference to the Migration Agents Registration Application Charge Amendment (Rates of Charge) Act 2018 in table item 6 of subsection 2(1) of the Bill to refer to the Migration Agents Registration Application Charge Amendment (Rates of Charge) Act 2018.

Amendment 3                        Schedule 1, item 1, page 4 (after line 11)

3.                   This amendment inserts the new defined terms eligible and eligible period in section 275 of the Migration Act, as amended by Schedule 1 to the Bill.

4.                   The terms eligible and eligible period have the meaning given by new section 278A, as inserted by amendment 6.   New subsection 278A(1) provides that person who is, or has been, a restricted legal practitioner is eligible (to be registered as a migration agent) during the eligible period set out in new subsection 278A(2), or a longer period as extended under new subsection 278A(5).

5.                   Amended subsection 289B(2) provides that a restricted legal practitioner must not be registered as a migration agent unless he or she is eligible under new section 278A (see amendment 7).

Amendment 4                         Schedule 1 , item 1 , page 4 (after line 20)

6.                   This amendment inserts the new defined terms restricted and restricted legal practitioner in section 275 of the Migration Act, as amended by Schedule 1 to the Bill.

7.                   The term restricted in relation to a practising certificate held by an Australian legal practitioner refers to a practising certificate that is subject to a condition requiring the practitioner to undertake supervised legal practice for a specified period where such a condition was not imposed as a disciplinary measure by an authority responsible for disciplining Australian legal practitioners in a State or Territory.  The supervised period is generally for Australian legal practitioners who are newly admitted to a Court Roll and require a supervised period of practise prior to receipt of an unrestricted practising certificate.

8.                   A restricted legal practitioner refers to an Australian legal practitioner who holds a restricted practising certificate.

9.                   The period for which an Australian legal practitioner’s practising certificate must be restricted will vary depending on the State or Territory in which the practising certificate is held, however all jurisdictions place supervisory restrictions on legal practitioners that do not hold an unrestricted practising certificate.  The term restricted is intended to capture those practising certificates that require the legal practitioner to be supervised.  It is not intended to capture the restrictions placed on legal practitioners through sanctions for professional malpractice or because the legal practitioner is employed in a restricted legal environment such as Government or in-house corporate counsel.

10.               Amended subsection 289B(2) provides that a restricted legal practitioner must not be registered as a migration agent with the MARA unless he or she is eligible under new section 278A (see amendment 6).

Amendment 5                        Schedule 1 , page 4 (after line 23)

11.               This amendment inserts the new defined terms transitional end day , unrestricted and unrestricted legal practitioner in section 275 of the Migration Act, as amended by Schedule 1 to the Bill.

12.               The term transitional end day has the meaning given by new section 333BA, as inserted by amendment 21.  New subsection 333BA(3) provides that for a person who, immediately prior to 19 November 2018, was both a registered migration agent and a legal practitioner, the transitional end day is 19 November 2020, or a later day (no later than 19 November 2022) approved by the MARA under new section 333BB.  The transitional end day is the latest date registered migration agents who were restricted legal practitioners immediately before 19 November 2018 can continue to be both registered migration agents and restricted legal practitioners (see amendment 21).

13.               The term unrestricted in relation to a practising certificate held by an Australian legal practitioner refers to a practising certificate that is not restricted (see amendment 4).

14.               The term unrestricted legal practitioner means an Australian legal practitioner whose practising certificate is unrestricted.

15.               New subsection 289B(1) prevents an applicant from being registered as a migration agent if he or she is an unrestricted legal practitioner (see amendment 7).  New subsection 302A(1) requires the MARA to cancel the registration of a registered migration agent if the agent is, or has become an unrestricted legal practitioner (see amendment 8).

Amendment 6                        Schedule 1 , page 4 (after line 25)

16.               This amendment inserts new section 278A (Eligibility requirements for restricted legal practitioners).  This section will apply to people who are not captured by the extended transitional arrangements set out in new sections 333BA and 333BB (see amendment 21), because they were not registered migration agents and restricted legal practitioners immediately before 19 November 2018.  This includes registered migration agents who obtain a restricted practising certificate after 19 November 2018, as well as restricted legal practitioners who are registered as a migration agent with the MARA after 19 November 2018.

17.               New subsection 278A(1) provides that person who is, or has been, a restricted legal practitioner is eligible (to be registered as a migration agent) during the eligible period set out in new subsection 278A(2), or a longer period as extended under new subsection 278A(5).

18.               New subsection 278A(2) provides that the eligible period is the period of two years after the person first held a restricted practising certificate.  This will be a continuous period of two years, regardless of whether the restricted legal practitioner continues to hold a restricted practising certificate for the entire period.  If, at any point during the eligible period, the practitioner becomes an unrestricted legal practitioner, the MARA must cancel their registration in accordance with amended section 302A (see amendment 8).  Further, they will be prevented from being registered as a migration agent with the MARA by new subsection 289B(1) (see amendment 7).

19.               New subsections 278A(1) and 278A(2) are intended to capture a limited cohort of restricted legal practitioners who may otherwise have been disadvantaged by certain amendments made by the Bill.  In particular, item 5 of the Bill repeals the definition of immigration legal assistance , but allows immigration assistance to be provided in connection with legal practice under subsection 280(3) (as amended by the Bill).  This may have negatively impacted individuals operating a business as a registered migration agent while holding a restricted practising certificate as an Australian legal practitioner. 

20.               Had there been no distinction between unrestricted legal practitioners and this cohort of restricted legal practitioners, subsection 280(3) of the Migration Act, as amended by the Bill, in conjunction with the conditions of a restricted practising certificate, would have prevented the cohort of restricted legal practitioners from providing unsupervised immigration assistance in their capacity as a legal practitioner.  If this cohort were prevented from being registered as migration agents under new subsection 289B(1) (see amendment 7), or were to have their registration as a registered migration agent cancelled under new subsection 302A(1) (see amendment 8), they would no longer be able to provide immigration assistance as a registered migration agent.

21.               The eligible period of up to two years (or as extended under new subsection 278A(5)) is intended to allow eligible restricted legal practitioners to continue to be registered as a registered migration agent for an extended period of time to give them an opportunity to become eligible for an unrestricted practising certificate.  This takes into account current State and Territory legislation, which, depending on the jurisdiction, allows a restricted legal practitioner to become eligible for an unrestricted practising certificate within 18 months to two years. [1]

22.               Similar provision has not been made for unrestricted legal practitioners, as subject to any conditions imposed on their practising certificate through sanctions for professional malpractice, they will continue to be able to provide unsupervised immigration assistance. This assistance will be in their capacity as an unrestricted legal practitioner as they are no longer registered with the MARA.

23.               New subsection 278A(3) allows an eligible person to apply for an extension of the eligible period of up to two years.  An application for an extension of the eligible period must be made by the eligible person no less than three months before the end of the eligible period, in a form approved in writing by the MARA and containing information relevant to the application as required by the form.

24.               New subsection 278A(4) provides that a person can only make one application for an extension under subsection 278A(3).  This is to prevent eligible restricted legal practitioners from repeatedly prolonging the eligible period during which they can be both registered migration agents with the MARA and restricted legal practitioners.  This is consistent with the policy intention of the Bill that legal practitioners should not be regulated by multiple professional bodies.  Rather, legal practitioners should be regulated by, the relevant State or Territory Law Society and not the MARA.

25.               In conjunction with new subsection 278A(3), the effect of new subsection 278A(4) is that an eligible restricted legal practitioner may have a combined maximum eligible period of four years.

26.               Upon application under new subsection 278A(3), new subsection 278A(5) requires the MARA to, by written notice, either extend the eligible period by a stated period of no more than two years, or refuse to extend the eligible period.  The written notice must be provided before the start of the period determined by a legislative instrument under new subsection 278A(8) prior to the end of the eligible period.  For example, if the period determined under new subsection 278A(8) was 14 days, the written notice would have to be given by no less than 14 days before the end of the eligible period.

27.               New subsection 278A(6) provides that t he MARA may only extend the eligible period by a particular period if the MARA considers it reasonable to do so in the circumstances.  In considering whether there are reasonable circumstances, the MARA is to consider circumstances determined by a legislative instrument made under new subsection 278A(8).  However, the MARA is not limited to any circumstances determined under new subsection 278A(8).  Reasonable circumstances may include, for example, pregnancy or chronic illness of the eligible legal practitioner.

28.               New subsection 278A(7) requires notice of the decision under new subsection 278A(4) to include any details of the decision determined by a legislative instrument made under new subsection 278A(8).  The details of the decision will include relevant information.

29.               New subsection 278A(8) allows the Minister to make a determination for the purposes of new subsections 278A(5), (6) or (7) by legislative instrument.  Any legislative instrument made under new subsection 278A(8) will be subject to disallowance in accordance with section 42 of the Legislation Act 2003 (the Legislation Act).

30.               New subsection 278A(9) provides that an application may be made to the Administrative Appeals Tribunal for merits review of a decision to extend the eligible period by a particular stated period under new paragraph 278A(5)(a) or a decision to refuse to extend the eligible period under new paragraph 278A(5)(b). 

31.               The note at the end of new subsection 278A(9) makes it clear that section 27A of the Administrative Appeals Tribunal Act 1975 (the AAT Act) applies in relation to a reviewable decision made by the MARA.  Subsection 27A(1) of the AAT Act requires the MARA to take such steps as are reasonable in the circumstances to give a person whose interests are affected by a reviewable decision notice of the decision and the right to have the decision reviewed.  The intention is that this will be provided in any written notice given under new subsection 278A(5).

Amendment 7                        Schedule 1, item 13, page 6 (lines 5 to 13)

32.               This amendment omits section 289B as inserted by the Bill, and inserts new section 289B.

33.               New subsection 289B(1) provides that an applicant must not be registered as a migration agent if he or she is an unrestricted legal practitioner.  This is consistent with the policy intention of the Bill that unrestricted legal practitioners providing immigration advice should be regulated by the relevant State or Territory Law Society and not the MARA.

34.               New subsection 289B(2) provides that a restricted legal practitioner must not be registered as a migration agent unless he or she is eligible.  This is consistent with the policy intention of the Bill that legal practitioners should not be regulated by both their own professional bodies, such as a State Law Society and the MARA simultaneously; whilst also allowing for eligible restricted legal practitioners to be registered as migration agents during the eligible period.

35.               The new notes at the end of new subsection 289B(2) refer readers to provisions relating to whether a restricted legal practitioner is eligible, or no longer eligible for registration as a migration agent with the MARA.

36.               New note 1 refers to new section 278A, which provides that a person who is, or who has been, a restricted legal practitioner is eligible if during the period of two, or a longer period as extended under new subsection 278A(5), after the person first held a restricted practising certificate (see amendment 6).  Eligible restricted legal practitioners will not be prevented from being registered as a migration agent by new subsection 289B(2).

37.               New note 2 refers to new section 312, which requires a registered migration agent to notify the MARA in writing within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see amendment 11).  This is necessary to determine whether a person is, or continues to be, an eligible restricted legal practitioner.

38.               New note 3 refers to amended section 302A, which requires the MARA to cancel the registration of a registered migration agent if he or she becomes an unrestricted legal practitioner, or is not or no longer an eligible restricted legal practitioner (see amendment 8).  The effect of amended section 302A is that although an applicant is not prevented by new subsection 289B(2) from being registered as a migration agent if they are an eligible legal practitioner at the time of registration; their registration must be cancelled if they become an unrestricted legal practitioner, or if they are no longer an eligible restricted legal practitioner because the eligible period has ended.

39.               New note 4 refers to new section 333BA, which sets out the transitional arrangements for registered migration agents who were restricted legal practitioners immediately prior to 19 November 2018 (see amendment 21).  The effect of new subsections 333BA(2) and (3) is that these migration agents will have their registration with the MARA as a migration agent cease by 19 November 2020, or a later day (no later than 19 November 2022) approved by the MARA under new section 333B.  New subsection 333BA(4) defers the application of new section 289B until the person’s registration with the MARA as a migration agent ends.

Amendment 8                        Schedule  1 , item  15 , page 6 (line 28) to page 7 (line 5)

40.               This amendment omits subsection 302A(1) as inserted by the Bill, and inserts new subsections 302A(1) and (1A).

41.               New paragraph 302A(1)(a) provides that the MARA must cancel the registration of a registered migration agent, by removing his or her name from the Register, if satisfied that the agent is or has become an unrestricted legal practitioner. This is consistent with the policy intention of the Bill that unrestricted legal practitioners providing immigration advice should be regulated by the relevant State or Territory Law Society and not the MARA. 

42.               New paragraph 302A(1)(b) provides that the MARA must cancel the registration of a registered migration agent, by removing his or her name from the Register, if satisfied that the agent is a restricted legal practitioner who is not, or is no longer eligible.  This is consistent with the policy intention of the Bill that legal practitioners providing immigration advice should be regulated by the relevant State or Territory Law Society and not the MARA; whilst also allowing for eligible restricted legal practitioners to continue to be registered as migration agents during the eligible period.

43.               The new notes at the end of new subsection 302A(1) refer readers to provisions relating to whether a restricted legal practitioner is eligible, or no longer eligible for registration as a migration agent.

44.               New note 1 refers to new section 278A, which provides that a person who is, or who has been, a restricted legal practitioner is eligible if during the period of two, or a longer period as extended under new subsection 278A(5), after the person first held a restricted practising certificate (see amendment 6).    A restricted legal practitioner will not have their registration cancelled under new paragraph 302A(1)(b) while they remain eligible.

45.               New note 2 refers to new section 312, which requires a registered migration agent to notify the MARA in writing within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see amendment 11).  This is necessary to determine whether a person is, or continues to be, an eligible restricted legal practitioner.  If the person ceases to be eligible, their registration as a migration agent with the MARA must be cancelled under new paragraph 302A(1)(b).

46.               New note 3 refers to new section 289B, which prevents an unrestricted legal practitioner or a restricted legal practitioner other than an eligible restricted legal practitioner from being registered as a migration agent with the MARA (see amendment 7).  Restricted legal practitioners who are eligible at the time of application for registration, and therefore not prevented from being registered by new subsection 289B(2), will be subject to cancellation of their MARA registration under new paragraph 302A(1)(b) if they become an unrestricted legal practitioner, or if they are no longer an eligible restricted legal practitioner because the eligible period has ended.

47.               New note 4 refers to new section 333BA, which sets out the transitional arrangements for registered migration agents who were restricted legal practitioners immediately prior to 19 November 2018 (see amendment 21).  The effect of new subsections 333BA(2) and (3) is that these migration agents will have their registration as a migration agent cease by 19 November 2020, or a later day (no later than 19 November 2022) approved for the person by the MARA under new section 333B.  New subsection 333BA(4) defers the application of amended section 302A until the person’s registration with the MARA as a migration agent ends.

48.               New subsection 302A(1A) makes it clear that the MARA may only cancel the registration of a registered migration agent under new subsection 302A(1) because of the agent’s status as an Australian legal practitioner on the basis of a document authorised by a body authorised to grant practising certificates in the relevant State or Territory.  This may include, for example, a copy of the practitioner’s practising certificate, or a register (including an online register) of the relevant State or Territory Law Society.  New subsection 302A(1) will ensure there is sufficient evidence of the agent’s status as an Australian legal practitioner before the MARA at the time of cancellation, noting that there is no discretion not to cancel a registered migration agent’s registration under new subsection 302A(1).

Amendment 9                        Schedule  1 , item  20 , page 7 (line 27)

49.               This amendment inserts a reference to new section 333BA at the end of paragraph 306B(ba).  This is consequential to amendment 21, which inserts new section 333BA to extend the transitional period for registered migration agents who were restricted legal practitioners immediately before 19 November 2018.

50.               Paragraph 306B(ba), as inserted by the Bill, provides that if a person ceases to be registered migration agent because the MARA cancels the persons registration under new section 302A, or because the person’s registration ends under new section 333B, the person becomes an inactive migration agent at the time of the cessation of the registration.  The addition of a reference to new section 333BA reflects that a person’s registration may end under new section 333B or 333BA.

Amendment 10                      Schedule  1 , item  20 , page 8 (lines 3 to 7)

51.               This amendment omits the note at the end of subparagraph 306B(ba)(ii), as inserted by the Bill, and substitutes it with new notes 1 and 2.  The new notes refer readers to provisions relating to the cancellation and cessation of a registered migration agent’s registration.

52.               New note 1 refers to amended section 302A, which requires the MARA to cancel the registration of a registered migration agent if he or she becomes an unrestricted legal practitioner, or is not or no longer an eligible restricted legal practitioner (see amendment 8).  If a registered migration agent’s registration is cancelled under amended section 302A, they will become an inactive migration agent under subparagraph 306B(ba)(ii) (as inserted by the Bill).

53.               New note 2 refers to new section 333B, which provides that the registration of an unrestricted legal practitioner as a migration agent will end on 19 November 2018.  For registered migration agents who were restricted legal practitioners on that day, their registration will end in accordance with new section 333BA.  Once a migration agent’s registration ends in accordance with new section 333B or new section 333BA, they will become an inactive migration agent under subparagraph 306B(ba)(ii) (as inserted by the Bill).

  Amendment 11                     Schedule 1 , item 22 , page 8 (lines 21 to 23)

54.               This amendment omits new paragraph 312(1)(i) inserted by item 22 of the Bill, and inserts new subsections 312(4) and (5).

55.               New paragraph 312(4)(a) requires a registered migration agent to notify the Authority in writing within 28 days after he or she becomes a restricted legal practitioner.  This information is required to determine whether a registered migration agent is an eligible restricted legal practitioner, or, if they are not eligible, whether their registration must be cancelled by the MARA in accordance with amended section 302A.

56.               New paragraph 312(4)(b) requires a registered migration agent to notify the MARA in writing within 28 days after he or she becomes an unrestricted legal practitioner.  In accordance with amended section 302A, a migration agent’s registration must be cancelled by the MARA if they become an unrestricted legal practitioner.

57.               The penalty imposed for failure to comply with new subsection 312(4) is 100 penalty units.  This penalty is consistent with the penalty imposed by current section 312(1) of the Migration Act, which requires a registered migration agents to notify the MARA within 14 days after certain events.

58.               New subsection 312(5) provides that an offence against new subsection 312A(4) is an offence of strict liability.

59.               The note at the end new subsection 312(5) refers to section 6.1 of the Criminal Code Act 1995 (Cth), which defines strict liability.

Amendment 12                      Schedule 1 , items 26 and 27 , page 9 (lines 1 to 16)

60.               This amendment omits the heading to section 319 and subsections 319(1) and (2) inserted by items 26 and 27 of the Bill, and inserts a new heading and new subsection 319(1).

61.               The replacement of the heading “Referral of conduct of former registered migration agents to legal disciplinary authorities” with the heading “Referral of conduct of certain migration agents, or former registered migration agents to legal disciplinary authorities” reflects the MARA’s power under new subsection 319(1) to refer the conduct of a registered migration agent as well as a former registered migration agent to an authority responsible for disciplining Australian legal practitioners in  a State or Territory. These referrals of conduct may include, for example, State or Territory Law Societies or Legal Services Commissioners.

62.               New subsection 319(1) allows the MARA to refer the conduct of a registered migration agent or a former registered migration agent to an authority responsible for disciplining Australian legal practitioners in  a State or Territory if the legal practitioner was granted his or her practising certificate under the law of that State or Territory; and the conduct occurred while the legal practitioner was a registered migration agent, whether or not the conduct occurred in connection with legal practice.

63.               The effect of new subsection 319(1) is that the MARA will be able to refer the conduct of eligible restricted legal practitioners whilst they are registered as migration agents, as well as the conduct of former registered migration agents, including those whose registration has ended under new sections 333BA (see amendment 21) or been cancelled under amended section 302A (see amendment 8). 

Amendment 13                      Schedule 1, item 30, page 10 (line 1)

64.               This amendment replaces “1 July 2018” with “19 November 2018” in the note at the end of section 333, as inserted by the Bill.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 14                      Schedule 1, item 30, page 10 (lines 6 and 7)

65.               This amendment replaces “1 July 2018” with “19 November 2018” in subsection 333A(1), as inserted by the Bill.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 15                      Schedule 1, item 30, page 10 (line 10)

66.               This amendment replaces “1 July 2018” with “19 November 2018” in subsection 333A(2), as inserted by the Bill.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 16                      Schedule 1, item 30, page 10 (lines 13 and 14)

67.               This amendment omits the heading to section 333B (as inserted by the Bill), and substitutes a new heading “Registered migration agents who were unrestricted legal practitioners immediately before 19 November 2018”. This is consequential to amendment 21, which inserts new section 333BA in relation to restricted legal practitioners.

Amendment 17                      Schedule  1 , item  30 , page 10 (line 17)

68.               This amendment replaces “1 July 2018” with “19 November 2018” in subsection 333B(1), as inserted by the Bill.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 18                      Schedule 1, item 30, page 10 (line 21)

69.               This amendment replaces the word “Australian” with “unrestricted” in paragraph 333B(1)(b) (as inserted by the Bill) to clarify that section 333B only applies to unrestricted legal practitioners.  This is consequential to amendment 21, which inserts new section 333BA in relation to registered migration agents who were restricted legal practitioners immediately before 19 November 2018.

Amendment 19                      Schedule  1 , item  30 , page 10 (line 24)

70.               This amendment replaces “1 July 2018” with “19 November 2018” in subsection 333B(2), as inserted by the Bill.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 20                      Schedule  1 , item  30 , page 10 (line 20)

71.               This amendment omits subsection 333B(3), as inserted by the Bill. 

 

72.               Amended section 333B will apply in relation to a person who, immediately prior to 19 November 2018, was both a registered migration agent and an unrestricted legal practitioner (see amendment 18).  Subsection 333B(3) was inserted to clarify that the 14 day notification requirement under current section 312 of the Migration Act does not apply to a person captured by section 333B in relation to an event mentioned in current subsection 312(1) that occurs less than 14 days prior to commencement.  Subsection 333B(3) is unnecessary, as a person will not be in breach of current section 312 of the Migration Act if they are not a registered migration agent at the end of the 14 day notification period.

 

Amendment 21                      Schedule  1 , item  30 , page 10 (after line 28)

73.               This amendment inserts new sections 333BA and 333BB, which set out the transitional arrangements for registered migration agents who were restricted legal practitioners immediately before the commencement of Schedule 1 of this Act on 19 November 2018.

New section 333BA

74.               New section 333BA sets out the transitional arrangements for registered migration agents who were restricted legal practitioners immediately before 19 November 2018.

75.               New subsection 333BA(1) provides that new section 333BA applies in relation to a person who, immediately before 19 November 2018, was both a registered migration agent and a restricted legal practitioner.  This includes registered migration agents who have had their MARA registration suspended and registered migration agents whose MARA registration would otherwise be taken to continue under current subsection 300(4) of the Act.

76.               New subsection 333BA(2) sets out when the registration of a registered migration agent to whom new section 333BA applies will end.

77.               New paragraph 333BA(2)(a) provides that if a person continues to be both a registered migration agent and a restricted legal practitioner until immediately before the transitional end day set out in new subsection 333BA(3), their registration will end immediately before the transitional end day. 

78.               New paragraph 333BA(2)(b) provides that if, before the transitional end day set out in new subsection 333BA(3), the person’s practising certificate becomes unrestricted, their registration will end at the end of the day on which the practising certificate becomes unrestricted.  This is consistent with new subsection 289B(1), which prevents an unrestricted legal practitioner from being registered as a migration agent with the MARA (see amendment 7); and new paragraph 302A(1)(b), which requires the MARA to cancel the registration of a registered migration agent if the agent is, or has become, an unrestricted legal practitioner (see amendment 8).  This reflects the policy intention of the Bill that legal practitioners providing immigration advice should be regulated by the relevant State or Territory Law Society and not the MARA. 

79.               New paragraph 333BA(2)(c) provides that if, before the transitional end day set out in new subsection 333BA(3), the person stops being an Australian legal practitioner, their registration will end in accordance with current Part 3 of the Migration Act.  New paragraph 333BA(2)(c) ensures that the current provisions relating to the cessation of registration for registered migration agents who are not an Australian legal practitioner will continue to operate as intended.  For example, current section 299 of the Migration Act provides that, subject to a number of exceptions, the registration of a migration agent continues for 12 months after registration.  If a registered migration agent who was both a registered migration agent and an Australian legal practitioner immediately before 19 November 2018 ceased to be an Australian legal practitioner before the transitional end day set out in new subsection 333BA(3), their registration would expire 12 months after registration under current subsection 300(4), unless an exception applied.

80.               New paragraph 333BA(2)(d) provides that in any other case, the person’s registration as a migration agent will end as it would otherwise under Part 3 of the Migration Act.  New paragraph 333BA(2)(d) ensures that Part 3 of the Migration Act continues to operate as intended in relation to registered migration agents who were restricted legal practitioners immediately before 19 November 2018, who are not captured by new paragraphs 333BA(2)(a), (b) and (c).

81.               New subsection 333BA(3) provides that the transitional end day for registered migration agents who were restricted legal practitioners immediately before 19 November 2018 is 19 November 2020, or a later day no later than 19 November 2022 approved for the person by the MARA under new section 333BB.

82.               The effect of new subsection 333BA(3) is that, subject to new section 333BB, 19 November 2020 is the latest date that a registered migration agent who was a restricted legal practitioner immediately before 19 November 2018 can continue to be both a registered migration agent and an Australian legal practitioner.  This is consistent with new subsection 278A(1), which, subject to new subsection 278A(2), provides that a restricted legal practitioner is eligible if he or she has held a restricted practising certificate for a period of no longer than 2 years (see amendment 6).

83.               Similar to new section 278A, which will apply to registered migration agents who are eligible restricted legal practitioners after 19 November 2018, the transitional end day of 19 November 2020 is intended to allow registered migration agents who are currently restricted legal practitioners to continue to be registered as a registered migration agent for specified period of time to provide them with time to complete their supervised legal practice period to become eligible for an unrestricted practising certificate.  This time period takes into account current State and Territory legislation, which, depending on the jurisdiction, allows a restricted legal practitioner to become eligible for an unrestricted practising certificate within 18 months to two years. [2]

84.               New subsection 333BA(4) defers the operation of new section 289B and amended section 302A in relation to a registered migration agent who was a restricted legal practitioner immediately before 19 November 2018.  

85.               New section 289B prevents an unrestricted legal practitioner, or a restricted legal practitioner who is not eligible under new section 278A from being registered as a migration agent with the MARA (new note 1 at the end of new subsection 333BA(4) refers; see amendment 7). 

86.               Amended section 302A requires the MARA to cancel the registration of a registered migration agent if he or she becomes an unrestricted legal practitioner, or is not or no longer an eligible restricted legal practitioner ( new note 2 at the end of new subsection 333BA(4) refers; see amendment 8).

87.               New paragraph 333BA(4)(a) provides that, for registered migration agents who continue to be both a registered migration agent and a restricted legal practitioner until immediately before the transitional end day (see new paragraph 333BA(2)(a)), new section 289B and amended section 302A will not apply until the start of the transitional end day.

88.               New paragraph 333BA(4)(b) provides that in any other case, new section 289B and amended section 302A will not apply until the earlier of immediately after the person’s registration ends in accordance with new paragraph 333BA(2)(b), (c) or (d); and the start of the transitional end day.

89.               The effect of new subsection 333BA(4) is that registered migration agents who were restricted legal practitioners immediately before 19 November 2018 will not be prevented from being registered as a migration agent by new section 289B, or have their registration cancelled under amended section 302A, until the start of the transitional end day, or, if their registration ends before the transitional end day, immediately after their registration ends.  This is consistent with the operation of new section 289B and amended section 302A in relation to eligible restricted legal practitioners.

New section 333BB

90.               New section 333BB allows the MARA to approve a later transitional end day for a registered migration agent who was a restricted legal practitioner immediately before 19 November 2018.

91.               New subsection 333BB(1) allows a registered migration agent covered by new section 333BA to apply to the MARA for approval of a later transitional end day of no later than 19 November 2022.  Such an application must be made before 19 August 2020, in a form approved in writing by the MARA and containing information relevant to the application as required by the form.

92.               New subsection 333BB(2) provides that a person can only make one application for approval of a later transitional end day under new subsection 333BB(1).  This is to prevent registered migration agents from repeatedly prolonging the transitional period during which they can be both registered migration agents and legal practitioners.  This is consistent with the policy intention of the Bill that legal practitioners providing immigration advice should be regulated by the relevant State or Territory Law Society and not the MARA.

93.               Upon application under new subsection 333BB(1), new subsection 333BB(3) requires the MARA to, by written notice, either approve a stated day of no later than 19 November 2022 as a later transitional end day for the applicant, or refuse to approve a later transitional end day.  The written notice must be provided before the start of the period determined by a legislative instrument under new subsection 333BB(6) prior to 19 November 2020.

94.               New subsection 333BB(4) provides that t he MARA may only approve a particular later transitional end day for the applicant if the MARA considers it reasonable to do so in the circumstances.  In considering whether there are reasonable circumstances, the MARA is to consider circumstances determined by a legislative instrument made by the Minister under new subsection 333BB(6).  However, the MARA is not limited to any circumstances determined under new subsection 333BB(6).  Reasonable circumstances may include, for example, pregnancy or chronic illness of the applicant.

95.               New subsection 333BB(5) requires notice of the decision under new subsection 333BB(3) to include any details of the decision determined by a legislative instrument made under new subsection 333BB(6).

96.               New subsection 333BB(6) allows the Minister to make a determination for the purposes of new subsections 333BB(3), (4) or (5) by legislative instrument. Any legislative instrument made under new subsection 333BB(6) will be subject to disallowance in accordance with section 42 of the Legislation Act.

97.               New subsection 333BB(7) provides that an application may be made to the Administrative Appeals Tribunal for merits review of a decision to approve a particular later transitional end day under new paragraph 333BB(3)(a) or a decision to refuse to approve a later transitional end day under new paragraph 333BB(3)(b). 

98.               The note at the end of new subsection 333BB(7) makes it clear that section 27A of the AAT Act applies in relation to a reviewable decision made by the MARA.  Subsection 27A(1) of the AAT Act requires the MARA to take such steps as are reasonable in the circumstances to give a person whose interests are affected by a reviewable decision notice of the decision and the right to have the decision reviewed.  The intention is that this will be provided in any written notice given under new subsection 333BB(3).

Amendment 22                      Schedule 1, item 30, page 11 (line 1)

99.               This amendment replaces “1 July 2018” with “19 November 2018” in the heading of section 333C, as inserted by the Bill.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 23                      Schedule 1, item 30, page 11 (line 4)

100.           This amendment replaces “1 July 2018” with “19 November 2018” in subsection 333C(1), as inserted by the Bill.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 24                      Schedule 1, item 30, page 11 (line 11)

101.           This amendment replaces the words “The amendments” in subsection 333C(2) with “Subject to section 333BA, the amendments”.

102.           Amended section 333C sets out the application of the amendments made to Division 3 of the Migration Act (registration of migration agents) in relation to registration applications made before 19 November 2018.  This amendment makes it clear that the application provisions in amended subsection 333C are subject to new section 333BA, which sets out the transitional arrangements for registered migration agents who were restricted legal practitioners immediately prior to 19 November 2018 (see amendment 21).

103.           The effect of amended section 333C is that undecided applications for registration as a migration agent made by unrestricted legal practitioners prior to 19 November 2018 will be considered as if they had been made after 19 November 2018.

Amendment 25                      Schedule 1, item 30, page 11 (lines 13 and 14)

104.           This amendment replaces “1 July 2018” with “19 November 2018” in subsection 333C(2), as inserted by the Bill.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 26                      Schedule 1 , item 30 , page 11 (lines 15 to 17)

105.           This amendment omits the note at the end of subsection 333C(2), as inserted by the Bill, and substitutes it with new notes 1 and 2.  The new notes refer readers to provisions relating to registration of Australian legal practitioners as migration agents.

106.           New note 1 refers to new section 289B, which prevents an unrestricted legal practitioner or a restricted legal practitioner other than an eligible restricted legal practitioner from being registered as a migration agent with the MARA (see amendment 7).  New section 289B will apply to unrestricted legal practitioners regardless of whether the application for registration was made before, on, or after 19 November 2018.

107.           New note 2 refers to new section 333BA, which sets out the transitional arrangements for registered migration agents who were restricted legal practitioners immediately prior to 19 November 2018 (see amendment 21).  New subsection 333BA(4) sets out when new section 289B (Applications by Australian legal practitioners - see amendment 7) and amended section 302A (Cancellation if registered migration agent becomes an Australian legal practitioner - see amendment 8) apply in relation to registered migration agents who were restricted legal practitioners immediately before 19 November 2018.

Amendment 27                      Schedule 1, item 30, page 11 (line 18)

108.           This amendment replaces the word “Australian” with “unrestricted” in subsection 333C(3) (as inserted by the Bill) to clarify that subsection 333C(3) only applies to unrestricted legal practitioners.  This is consequential to amendment 21, which inserts new section 333BA in relation to registered migration agents who were restricted legal practitioners immediately before 19 November 2018.

Amendment 28                      Schedule 1, item 30, page 11 (line 19)

109.           This amendment replaces the first reference to “1 July 2018” in subsection 333C(3), as inserted by the Bill, with “19 November 2018”.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 29                      Schedule 1, item 30, page 11 (line 20)

110.           This amendment replaces the second reference to “1 July 2018” in subsection 333C(3), as inserted by the Bill, with “19 November 2018”.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 30                      Schedule 1, item 30, page 11 (line 23)

111.           This amendment replaces “1 July 2018” with “19 November 2018” in the note at the end of subsection 333C(3), as inserted by the Bill.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 31                      Schedule 1, item 30, page 11 (line 31)

112.           This amendment replaces “1 July 2018” with “19 November 2018” in subsection 333C(4), as inserted by the Bill.  This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1).

Amendment 32                      Schedule 2 , item 4 , page 13 (line 5)

113.           This amendment replaces “1 January 2018” with “19 November 2018” in the application provision for the amendments made by Part 1 of Schedule 2 to the Bill. This reflects the new commencement date for Schedule 1 of this Act of 19 November 2018 (see amendment 1), and ensures that the amendments made by Part 1 of Schedule 2 to the Bill operate 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.

The key measure of this Bill, in Schedule 1, will give effect to Recommendation 1 of the 2014 Independent Review of the Office of the Migration Agents Registration Authority (MARA). The Bill is due to come into effect on 19 November 2018. This Bill was introduced into Parliament on 21 June 2017 and this Bill provides further amendments relating to Schedule 1.

The Senate Legal and Constitutional Affairs Legislation Committee recommended in October 2017 that amendments be made to the Bill to implement a formal transition period of two years from the commencement of the Bill for registered migration agents currently holding restricted practising certificates.

The amendments to this Bill will implement the Committee’s recommendation. Additionally the Bill will allow a further two year transitional period if there is a reasonable basis for a registered migration agent continuing to hold a restricted practicing certificate beyond the initial transitional period.

Transitional provisions for existing registered migration agents (Schedule 1 of Bill)

Transitional end day

The Government amendment to this Bill (new section 333BA) extends a two-year transitional period for registered migration agents who are restricted legal practitioners immediately before 19 November 2018, during which they may remain registered with the MARA. This extension, until 19 November 2020, the transitional end day, will allow them a two-year period to adapt their business model to the new provisions that will exclude them from registering as migration agents with the MARA, but also prevent them from providing immigration advice as they do not hold unrestricted practising certificates.

The two-year transitional period will only be available to lawyers who were registered migration agents and holders of a practicing certificate with restrictions or conditions imposed upon that practising certificate at the time the legislation commences, on 19 November 2018.

Later transitional end day

New section 333BB provides that the MARA may approve a later transitional end day, no later than 19 November 2022, with no possibility for a further extension, for registered migration agents, covered by section 333BA, who apply for this later transitional end day. The application for a later transitional end day must occur within the period specified in section 333BB. After 19 November 2022, those formerly covered by section 333BB, who wish to continue to provide immigration assistance, can either practice under their newly acquired unrestricted practising certificate or elect to give up their practising certificate and maintain their registration with the MARA.

Establishment of eligibility period for registered migration agents with restricted practising certificates

In addition to transitional provisions for existing registered migration agents, the Government amendment (new section 278A) introduces the concept of eligible restricted legal practitioners, that is those who have held a restricted practising certificate for a period of no longer than 2 years.

New section 289A provides that eligible restricted legal practitioners may apply for registration as a migration agent. 

The eligibility period is two years from the date of obtaining their restricted legal practising certificate, after which applicants may apply to the MARA for an extension of the eligible period, which may granted for no more than two years.

Defining the two groups of practising certificates

Section 275 will introduce the terms of ‘restricted practising certificates’ and ‘unrestricted practising certificates.

‘Restricted practising certificates’ are practising certificates held by Australian legal practitioners which are: subject to conditions requiring the practitioner to undertake supervised legal practice for a specified period; and such conditions are not imposed as a disciplinary measure by a State or Territory legal professional disciplinary authority.

‘Unrestricted practising certificates’ are practising certificates held by Australian legal practitioners that are not restricted.

Human rights implications

Schedule 1

This Government amendment identifies a specific cohort of lawyers, namely those with restricted legal practising certificates and allows them to maintain access to a dual registration scheme for an extended period of time, to enable them to fulfil their requirements for an unrestricted practising certificate, if desired.

This amendment may engage the right not to be subjected to discrimination under Article 2 and Article 26 of the International Covenant on Civil and Political Rights (ICCPR) as the same opportunity is not provided to those lawyers who have unrestricted practicing certificates. 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.”

This amendment positively engages Article 2 and 26 of the ICCPR as the provision of the extension of time will ensure lawyers who hold restricted practising certificates are not disadvantaged by the Bill. The amendment permits the affected lawyers the time to adapt to the new provisions that exclude them from registering as migration agents with the MARA, by either allowing them time to take steps to obtain an unrestricted practising certificate or elect to give up their practising certificate so they can remain registered with the MARA.

Further, although lawyers who hold unrestricted practising certificates will be unable to register with the MARA as migration agents after passage of the Bill, their unrestricted practising certificate will allow them to provide immigration assistance in connection with legal practice (that is, legal advice on immigration matters). As such, there will be no practical discriminatory effect.

This amendment is therefore compatible with human rights.

Right to work

The amendment may also engage the right to work under Article 6(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) which states:

“The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.”

The UN Committee on Economic, Social and Cultural Rights has stated that the right to work affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly.

The amendments will positively engage the right to work under Article 6(1) of the ICESCR because they allow for a transition period for lawyers on restricted practicing certificates.

As noted above, the amendment permits the affected lawyers the time to adapt to the new provisions that exclude them from registering as migration agents with the MARA, by either allowing them time to take steps to obtain an unrestricted practising certificate or elect to give up their practising certificate so they can remain registered with the MARA.

Further, although lawyers who hold unrestricted practising certificates will be unable to register with the MARA as migration agents after passage of the Bill, their unrestricted practising certificate will allow them to continue to provide legal advice on immigration matters. As such, there will be no practical discriminatory effect.

Conclusion

This Bill is compatible with human rights as it positively engages Article 2 and 26 of the ICCPR and has no practical discriminatory effect on lawyers affected by the Bill who hold unrestricted practising certificates. It also positively engages the right to work under Article 6(1) of the ICESCR.

 

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

 




[1] Legal Profession Regulation 2007 (ACT); Legal Profession Uniform Law (NSW); Legal Profession Act 2006 (NT); Legal Profession Act 2007 (Qld); Rules of the Legal Practitioners Education and Admission Council 2004 (SA); Legal Professions Act 2007 (Tas); Legal Profession Uniform Law Application Act 2014 (Vic); Legal Profession Act 2008 (WA).

[2] Legal Profession Regulation 2007 (ACT); Legal Profession Uniform Law (NSW); Legal Profession Act 2006 (NT); Legal Profession Act 2007 (Qld); Rules of the Legal Practitioners Education and Admission Council 2004 (SA); Legal Professions Act 2007 (Tas); Legal Profession Uniform Law Application Act 2014 (Vic); Legal Profession Act 2008 (WA).