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

 

 

 

 

SENATE

 

 

 

 

MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL 2018

 

 

 

 

REVISED EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

the Hon. Alex Hawke MP)

 

 

 



 

MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL 2018

 

OUTLINE

 

The Migration Amendment (Regulation of Migration Agents) Bill 2018 (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 unrestricted legal practitioners from the regulatory scheme that governs migration agents, such that unrestricted legal practitioners cannot register as migration agents and are entirely regulated by their own professional bodies.

·          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 period maybe extended by up to two years (to provide a total maximum of four years in which a person can be registered as both a migration agent and a legal practitioner);

·          provide 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 total maximum of four years in which a person can be registered as both a migration agent and a legal practitioner);

·          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) is a part of the Department of Home Affairs, 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 2018

 

 

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 2018 .

 

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 19 November 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 2018 (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          Schedules

 

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 give effect to 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:

 

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

·          Registered migration agents who were restricted legal practitioners immediately prior to commencement and eligible restricted legal practitioners may continue to be both registered migration agents and restricted legal practitioners for a period of up to two years. This period maybe extended by up to two years (to provide a maximum of four years in total);

·          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 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.

 

25.               This item also inserts the new defined terms restricted and restricted legal practitioner .

 

26.               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.

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

28.               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.

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

 

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

 

Item 4A          Section 275

 

30.               This item inserts a signpost definition for transitional end day , the full definition of which is set out in new section 333BA (see item 30).

31.               This item also inserts the new defined terms unrestricted and unrestricted legal practitioner .

32.               The term unrestricted in relation to a practising certificate held by an Australian legal practitioner refers to a practising certificate that is not restricted.

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

34.               New subsection 289B(1) prevents an applicant from being registered as a migration agent if he or she is an unrestricted legal practitioner (see item 13).  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 item 15).

Item 5             Section 277

 

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

 

36.               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 allow Australian legal practitioners to give immigration assistance on the basis of their holding a practising certificate, the concept of immigration legal assistance is no longer required.

 

37.               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)).

 



 

38.               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. 

 

39.               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 5A          Before section 279

 

40.               This item 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 item 30), because they were not registered migration agents and restricted legal practitioners immediately before 19 November 2018.  New section 278A will capture 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.

41.               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).

42.               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 new section 302A (see item 15).  Further, they will be prevented from being registered as a migration agent with the MARA by new subsection 289B(1) (see item 13).

43.               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 this Bill.  In particular, item 5 repeals the definition of immigration legal assistance , but allows immigration assistance to be provided in connection with legal practice under subsection 280(3).  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. 



 

44.               Had there been no distinction between unrestricted legal practitioners and this cohort of restricted legal practitioners, subsection 280(3) of the Migration Act, 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 item 13), or were to have their registration as a registered migration agent cancelled under new subsection 302A(1) (see item 15), they would no longer be able to provide immigration assistance as a registered migration agent.

45.               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 be registered as a registered migration agent for a specified period of time to give them an opportunity 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. [1]

46.               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 provided in their capacity as an unrestricted legal practitioner as they are no longer registered with the MARA.

47.               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.

48.               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 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.

49.               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.



 

50.               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) is 14 days, the written notice will have to be given by no less than 14 days before the end of the eligible period.

51.               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.

52.               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.

53.               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).

54.               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). 

55.               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).

Item 6             Subsection 280(3)

 

56.               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. 

 



 

57.               This item should be read alongside item 13, which inserts new section 289B.  New section 289B 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 .

 

58.               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.

 

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

 

59.               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.

 

60.               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)

 

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

 

Item 9             After subsection 282(2)

 

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



63.               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)

 

64.               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.

 

65.               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)

 

66.               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.

 

67.               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

 

68.               This item repeals section 286. 

 

69.               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

 

70.               This item inserts new section 289B, which deals with applications for registration as a migration agent made by Australian legal practitioners. 

 

71.               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 that Australian legal practitioners providing immigration advice should be regulated by the relevant State or Territory Law Society and not the MARA.



 

72.               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 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.

73.               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.

74.               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 years, or a longer period as extended under new subsection 278A(5), after the person first held a restricted practising certificate (see item 5A).  Eligible restricted legal practitioners will not be prevented from being registered as a migration agent by new subsection 289B(2).

75.               New note 2 refers to amended 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 item 22).  This is necessary to determine whether a person is, or continues to be, an eligible restricted legal practitioner.

76.               New note 3 refers to new 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 item 15).  The effect of new 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.

77.               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 item 30).  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 333BB.  New subsection 333BA(4) defers the application of new section 289B until the person’s registration with the MARA as a migration agent ends.

78.               The effect of this amendment is that any application for registration as a migration agent made by an unrestricted legal practitioner or a restricted legal practitioner who is not eligible 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.

 

79.               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.

 

Item 14           Section 299

 

80.               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 does 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 15, 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).

 

81.               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).

 

82.               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.

 

83.               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

 

84.               This item inserts new section 302A, which provides the MARA with a new cancellation power in relation to Australian legal practitioners. 

 



 

85.               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 that Australian legal practitioners providing immigration advice should be regulated by the relevant State or Territory Law Society and not the MARA. 

86.               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 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.

87.               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.

88.               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 years, or a longer period as extended under new subsection 278A(5), after the person first held a restricted practising certificate (see item 5A).    A restricted legal practitioner will not have their registration cancelled under new paragraph 302A(1)(b) while they remain eligible.

89.               New note 2 refers to amended 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 item 22).  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).

90.               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 item 13).  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.



 

91.               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 item 30).  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 new section 302A until the person’s registration with the MARA as a migration agent ends.

92.               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.  Documents 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).

93.               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. 

 

94.               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.

 

95.               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.

 

96.               As there is no disciplinary reason for cancelling a registration 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)

 

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

Item 17           Subsection 305B(3)

 

98.               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)

 

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

 

Item 19           Subsection 306AM(3)

 

100.           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)

 

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

 

102.           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 or 333BA.  New section 302A requires the MARA to cancel a migration agent’s registration if he or she becomes an unrestricted legal practitioner, or is not or no longer an eligible restricted legal practitioner (see item 15) .  New section 333B provides that if a registered migration agent who is also a restricted legal practitioner immediately before 19 November 2018, their registration will cease on 19 November 2018 (see item 30).

 

103.           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.

 

104.           New note 1 refers to new 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 (item 15).  If a registered migration agent’s registration is cancelled under new section 302A, they will become an inactive migration agent under new subparagraph 306B(ba)(ii).



 

105.           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 new subparagraph 306B(ba)(ii).

106.           An inactive migration agent is a person who has ceased to practise as 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 agent 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.

 

107.           The effect of inserting new paragraph 306B(ba) is that a person whose registration as a migration agent ceases or is cancelled under new section 302A 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

 

108.           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.

 

109.           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. 

 

110.           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.

 

111.           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           At the end of section 312

 

112.           This item inserts new subsections 312(4) and (5).

113.           New paragraph 312(4)(a) requires a registered migration agent to notify the MARA 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 new section 302A.

114.           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 new section 302A, a migration agent’s registration must be cancelled by the MARA if they become an unrestricted legal practitioner.

115.           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.

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

117.           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.

Item 23           Subsection 313(4)

 

118.           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)

 

119.           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.

 



 

120.           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 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.

 

121.           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)

 

122.           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.

 

123.           Like item 25, this amendment meets the intention behind Schedule 1 which is that lawyers should be regulated 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.

 

124.           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 registered migration agents and 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.

 

125.           Any complaints about Australian legal practitioners that are on hand - that is, not yet finalised - on 19 November 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.

 



 

126.           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 19 November 2018 about immigration assistance that was given before 19 November 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)

 

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

 

128.           Currently, the heading is “Power to refer lawyers’ conduct to other authorities”.  The new heading, “Referral of conduct of certain 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.

Item 27           Subsection 319(1)

 

129.           This item repeals current subsection 319(1) of the Migration Act and inserts new subsection 319(1).

130.           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. 

 

131.           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.

132.           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 section 333B or 333BA or been cancelled under new section 302A.



 

133.           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.

 

134.           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.

 

135.           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.

 

136.           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. 

 

Item 28           Subsection 319(3) (heading)

 

137.           This item repeals the heading of subsection 319(3). The current heading is “Conduct of former registered migration agents”.  New subsection 319(1) allows the MARA to refer the conduct of current and former registered migration agents who are Australian legal practitioners to the relevant authority.  This is adequately captured by the new heading of section 319 inserted by item 26.  As such, the heading for subsection 319(3) is no longer required.

 



 

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

 

138.           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

 

139.           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. 

 

New section 333 - Definitions

 

140.           New section 333 defines amending Act as the Migration Amendment (Regulation of Migration Agents) Act 2018 , for the purposes of new Division 8.

 

141.           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

 

142.           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.

 

143.           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.

 

144.           New subsection 333A(1) ensures that the content of Division 2 as was in force prior to 19 November 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 19 November 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 19 November 2018. 

 

145.           New subsection 333A(2) provides that new subsection 333A(1) also applies in relation to any conduct that occurs after 19 November 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 19 November 2018 despite not being registered as a migration agent, which is currently an offence under section 280.  If the practitioner receives a fee, after 19 November 2018, for the giving of that immigration assistance, this would constitute conduct that is a continuation of conduct that occurred prior to 19 November 2018, and was also itself an offence under section 281 before 19 November 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 unrestricted legal practitioners immediately before 19 November 2018

 

146.           This provision ensures that unrestricted legal practitioners who were also registered migration agents immediately before 19 November 2018 will cease to be registered migration agents from that date onwards.  This ensures that, from 19 November 2018, unrestricted legal practitioners will no longer be able to be registered as migration agents, and will be entirely regulated by their own professional bodies. 

 

147.           New subsection 333B(1) provides that section 333B applies in relation to a person who was both a registered migration agent and an unrestricted legal practitioner immediately before 19 November 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 unrestricted 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.

 

148.           New subsection 333B(2) provides that the registration of a person mentioned in subsection 333B(1) ends at the start of 19 November 2018.

 

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

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

150.           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.

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

152.           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. 

153.           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 item 13); 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 item 15).  This reflects the policy intention that legal practitioners providing immigration advice should be regulated by the relevant State or Territory Law Society and not the MARA. 

154.           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 a registered migration agent who is 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 a restricted 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.

155.           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).

156.           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.



 

157.           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 two years (see item 5A).

158.           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]

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

160.           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). 

161.           New 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 ).

162.           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 sections 289B and 302A will not apply until the start of the transitional end day.

163.           New paragraph 333BA(4)(b) provides that in any other case, new sections 289B and 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.



 

164.           The effect of new subsection 333BA(4) is that a registered migration agent who was a restricted legal practitioner 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 new 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 sections 289B and 302A in relation to eligible restricted legal practitioners.

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

165.           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.

166.           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.

167.           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.

168.           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.

169.           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.

170.           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).

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

172.           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). 

173.           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 information will be provided in any written notice given under new subsection 333BB(3).

New section 333C - Registration applications made before 19 November 2018

 

174.           This provision ensures that an application for registration made before 19 November 2018 by an Australian legal practitioner, which is not yet decided on that date, will be decided in accordance with the amendments made by this Schedule.

 

175.           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 19 November 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. 

 

176.           New subsection 333C(2) provides that, subject to new section 333BA, the amendments to Division 3 of Part 3 of the Migration Act apply in relation to the person’s registration application as though the application had been made on or after 19 November 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 19 November 2018 by an unrestricted legal practitioner or a restricted legal practitioner who is not eligible must be refused, as though the application were made on or after 19 November 2018 when the amendments made by this Schedule are in effect. 

 

177.           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 item 13).  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.



 

178.           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 item 30).  New subsection 333BA(4) sets out when new section 289B (Applications by Australian legal practitioners) and new section 302A (Cancellation if registered migration agent becomes an Australian legal practitioner) apply in relation to registered migration agents who were restricted legal practitioners immediately before 19 November 2018.

179.           New subsection 333C(3) provides that section 300 does not apply if the person was an Australian legal practitioner immediately before 19 November 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 19 November 2018, the registration ends on that day.  The note also refers readers to new section 333B.

 

180.           New subsection 333C(4) ensures that where a person’s application was refused because of new section 289B, that refusal does not prevent the person from being registered as a migration agent in accordance with a later application made on or after 19 November 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

 

181.           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. 

 

182.           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.

 

183.           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.

 

184.           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)

 

185.           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.

 

186.           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

 

187.           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.

 

188.           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.

 

189.           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.

 

190.           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. 

 

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

 

192.           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.

 

193.           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

 

194.           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.

 



 

195.           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

 

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

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

SCHEDULE 3 - Redundant provisions

 

Background

 

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

 

198.           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.

 

199.                      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 )

 

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

 

201.           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.

 

202.           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 )

 

203.           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.

 

204.           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.

 

205.           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)

 

206.                      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)

 

207.                      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

 

208.                      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)

 

209.                      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)

 

210.                      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)

 

211.                      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)

 

212.                      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

 

213.                      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.

 

214.                      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)

 

215.                      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)

 

216.                      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

 

217.                      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.

 

 



 

218.                      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

 

219.                      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.

 

220.                      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.

 

221.                      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)

 

222.                      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

 

223.                      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.

 

224.           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)

 

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

 

226.                      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.

 

227.                      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.

 

228.                      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

 

229.                      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

 

230.                      This item repeals sections 322 and 332B.

 

231.                      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.

 

232.                      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.

 

233.           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)

 

234.                      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)

 

235.                      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,”.

 

236.                      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)

 

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

 

238.                      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.

 

239.                      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

 

240.           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.

 

241.           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

 

242.           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

 

243.           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.

 

244.           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

 

245.           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.

 

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

 

247.           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.

 

248.           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.

 

249.           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.

 

250.           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.

 

251.           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).

 

252.           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

 

253.           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

 

254.           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).

 

255.           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.

 

256.           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). 

 

257.           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.

 

258.           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)

 

259.           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).

 

260.           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.

 

261.           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.

 

262.           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.

 

263.           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)

 

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

 

265.           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. 

 

266.           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.

 



 

267.           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.

 

268.           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

 

269.           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

 

270.           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. 

 

271.           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.

 

272.           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.

 

273.           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

 

274.           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)

 

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

 

276.           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.

 

277.           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.

 

278.           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)

 

279.           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)

 

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

 

281.           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).

282.           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).

 

283.           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)

 

284.           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

 

285.           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. 

 

286.           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.

 

287.           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 2018

 

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 2018 (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 give effect to 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 unrestricted legal practitioners and restricted legal practitioners who are not eligible 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 unrestricted legal practitioner, or are not or no longer an eligible restricted legal practitioner .  Before an affected individual’s 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, 333BA, 333BB and 333C set out transitional arrangements in relation to Australian legal practitioners moving out of the MARA regulatory scheme, effective from 19 November 2018 subject to the passage of the amendments. This includes the cessation of the registration period of a migration agent who is also an unrestricted legal practitioner immediately before 19 November 2018, a two-year transitional period for registered migration agents who are restricted legal practitioners immediately before 19 November 2018, and ongoing eligibility arrangements for legal practitioners who have held a restricted practising certificate for no longer than two years .

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.”



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.

 

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 Home Affairs

 




[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).