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Schedule 1—Australian legal practitioners providing immigration assistance

Schedule 1 Australian legal practitioners providing immigration assistance

   

Migration Act 1958

1  Section 275

Insert:

Australian legal practitioner means a lawyer who holds a practising certificate (whether restricted or unrestricted) granted under a law of a State or Territory.

Note:          For the meaning of lawyer , see subsection 5(1).

client : see section 306C.

eligible : see section 278A.

eligible period : see section 278A.

immigration assistance : see section 276.

inactive migration agent : see section 306B.

legal practice means the provision of legal services regulated by a law of a State or Territory.

2  Section 275 (definition of registered migration agent )

Omit “section 286”, substitute “Division 3”.

3  Section 275

Insert:

related by employment : see section 278.

restricted : a practising certificate held by an Australian legal practitioner is restricted if:

                     (a)  it is subject to a condition requiring the practitioner to undertake supervised legal practice for a specified period; and

                     (b)  such a condition was not imposed as a disciplinary measure by an authority responsible for disciplining Australian legal practitioners in a State or Territory.

Note:          A practising certificate subject to a supervision condition of the kind mentioned in paragraph (a) is, however, taken to be unrestricted if the condition was imposed as a disciplinary measure as mentioned in paragraph (b) (see the definition of unrestricted in this section).

restricted legal practitioner means an Australian legal practitioner whose practising certificate is restricted (within the meaning of this Part).

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

Omit “the the”, substitute “the”.

5  Section 275

Insert:

unrestricted : a practising certificate held by an Australian legal practitioner is unrestricted if it is not restricted (within the meaning of this Part).

unrestricted legal practitioner means an Australian legal practitioner whose practising certificate is unrestricted (within the meaning of this Part).

6  Section  2 77

Repeal the section.

7  Before section 279

Insert:

278A   Eligibility for restricted legal practitioners

Eligibility—general

             (1)  A person who is a restricted legal practitioner is eligible , subject to this section.

             (2)  The person remains eligible until the earliest of the following times:

                     (a)  the end of the eligible period, or of a longer period as extended under this section;

                     (b)  when the person becomes an unrestricted legal practitioner.

Note 1:       A person may be eligible whether or not the person is a registered migration agent at the time of becoming a restricted legal practitioner.

Note 2:       While a restricted legal practitioner is eligible , the practitioner may become, or continue to be, a registered migration agent (see sections 289B and 302A). However, to be registered as a migration agent, an eligible restricted legal practitioner must also satisfy the requirements of section 289A, including completing a prescribed course and passing a prescribed exam.

             (3)  The eligible period is the period of 2 years after the person first held a restricted practising certificate.

Note:          However, the eligible period for a person who was a restricted legal practitioner immediately before Division 8 commences (which is also when this section commences) is 2 years after that commencement: see section 333C.

Extension of eligible period

             (4)  An eligible person may apply to the Migration Agents Registration Authority for an extension of the eligible period for a period of up to 2 years:

                     (a)  in a form approved in writing by the Authority, containing such information relevant to the application as is required by the form; and

                     (b)  if the application is made 3 months or more before the end of the eligible period.

Note:          An eligible person may apply for an extension under this subsection whether or not the person is a registered migration agent at the time of the extension application.

             (5)  A person may make no more than one application for extension under subsection (4).

             (6)  On an application under subsection (4), the Authority must, by written notice given to the applicant no later than 28 days before the end of the eligible period:

                     (a)  extend the eligible period by a stated period of no more than 2 years; or

                     (b)  refuse to extend the eligible period.

             (7)  The Authority may extend the eligible period by a particular period only if the Authority considers it reasonable to do so in the circumstances, including (but not limited to) any circumstances determined under subsection (9).

             (8)  The notice of the decision must include any details determined under subsection (9) in relation to the decision.

             (9)  The Minister may, by legislative instrument, make a determination for the purposes of subsection (7) or (8).

Review by Administrative Appeals Tribunal

           (10)  Applications may be made to the Administrative Appeals Tribunal for review of a decision by the Authority:

                     (a)  under paragraph (6)(a), to extend the eligible period by a particular stated period; or

                     (b)  under paragraph (6)(b), to refuse to extend the eligible period.

Note:          Section 27A of the Administrative Appeals Tribunal Act 1975 requires that people whose interests are affected by reviewable decisions of the Authority be given notice of their rights to seek review of the decisions.

8  Subsection 280(3)

Omit “a lawyer from giving immigration legal assistance”, substitute “an Australian legal practitioner from giving immigration assistance in connection with legal practice”.

9  Paragraphs 281(3)(a) and (b)

Repeal the paragraphs, substitute:

                     (a)  an Australian legal practitioner from asking for or receiving a fee or other reward for giving immigration assistance in connection with legal practice; or

                     (b)  a person from asking for or receiving a fee or other reward for the giving of immigration assistance by an Australian legal practitioner in connection with legal practice.

10  Subsections 282(1) and (2)

Omit “A person”, substitute “Subject to subsection (2A), a person”.

11  After subsection 282(2)

Insert:

          (2A)  This section does not prohibit:

                     (a)  an Australian legal practitioner from asking for or receiving a fee or other reward for making immigration representations in connection with legal practice; or

                     (b)  a 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.

12  Subsection 284(3)

Omit “a lawyer from advertising that he or she gives immigration legal assistance”, substitute “an Australian legal practitioner from advertising that the practitioner gives immigration assistance in connection with legal practice”.

13  Subsection 285(3)

Omit “a lawyer gives immigration legal assistance”, substitute “an Australian legal practitioner gives immigration assistance in connection with legal practice”.

14  Section 286

Repeal the section.

15  After section 289A

Insert:

289B   Applications by Australian legal practitioners

             (1)  An applicant who is an unrestricted legal practitioner must not be registered.

             (2)  An applicant who is a restricted legal practitioner must not be registered unless the applicant is eligible.

Note 1:       For when a person is eligible , see sections 278A and 333C.

Note 2:       A registered migration agent must notify the Migration Agents Registration Authority within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see section 312).

Note 3:       The Authority must cancel the registration of an agent who is an unrestricted legal practitioner, or who is a restricted legal practitioner who is not eligible (see section 302A).

16  Section 299

Repeal the section, substitute:

299   Period of registration

             (1)  Subject to any other provision of this Part (including subsection (2) of this section), the registration of a registered migration agent ends 12 months after the day of registration.

             (2)  If the registration is suspended for a period, the period of the registration is extended by a period equal to the period of suspension.

17  After section 302

Insert:

302A   Cancellation of registration—Australian legal practitioners

             (1)  The Migration Agents Registration Authority must cancel the registration of a registered migration agent, by removing the agent’s name from the Register, if the Authority is satisfied:

                     (a)  that the agent is an unrestricted legal practitioner; or

                     (b)  that the agent is a restricted legal practitioner who is not eligible.

Note 1:       For when a person is eligible, see sections 278A and 333C.

Note 2:       A registered migration agent must notify the Authority within 28 days after becoming a restricted legal practitioner or an unrestricted legal practitioner (see section 312).

Note 3:       An unrestricted legal practitioner, or a restricted legal practitioner other than an eligible restricted legal practitioner, cannot be registered as a migration agent (see section 289B).

             (2)  The Authority may cancel the registration of a registered migration agent under subsection (1) because of the status of the agent as an Australian legal practitioner only on the basis of a document authorised by a body authorised to grant practising certificates to Australian legal practitioners in the relevant State or Territory.

             (3)  The Authority must give a registered migration agent written notice of a decision to cancel the agent’s registration under subsection (1).

             (4)  The notice must set out the reason for the decision.

             (5)  The decision takes effect at the time the agent is given written notice of it.

Note:          Section 332H sets out when the agent is taken to have been given the notice.

18  Subsection 305B(1)

Omit “(1)”.

19  Subsection 305B(3)

Repeal the subsection.

20  Subsection 306AM(1)

Omit “(1)”.

21  Subsection 306AM(3)

Repeal the subsection.

22  Section 306A (note)

Repeal the note, substitute:

Note:          For when an agent becomes inactive , see section 306B.

23  After paragraph 306B(b)

Insert:

                   (ba)  if a person ceases to be a registered migration agent because the Migration Agents Registration Authority cancels the person’s registration under section 302A, or because the person’s registration ends under section 333B:

                              (i)  the person becomes an inactive migration agent at the time of the cessation of the registration; and

                             (ii)  the person remains an inactive migration agent until the end of the period of 2 years after the cessation, or until the person again becomes a registered migration agent, whichever happens first; and

Note 1:       The Authority must cancel the registration of an agent who is an unrestricted legal practitioner, or that of an agent who is a restricted legal practitioner, but is not eligible (see section 302A).

Note 2:       Section 333B provides that the registration of an unrestricted legal practitioner as a migration agent ends when Division 8 commences (which is also when this paragraph commences).

24  Section 306C

Repeal the section, substitute:

306C   Definition of client

             (1)  A client of a registered migration agent is a person to whom the agent has given, or has agreed to give (whether or not in writing), immigration assistance.

             (2)  In addition:

                     (a)  if a registered migration agent becomes an inactive migration agent, a client of the registered migration agent (while the agent was registered) remains a client of the inactive migration agent; and

                     (b)  a person remains a client of a registered migration agent, or an inactive migration agent, even if the agent is deceased.

25  At the end of section 312

Add:

             (4)  A registered migration agent must notify the Migration Agents Registration Authority in writing within 28 days after the agent becomes:

                     (a)  a restricted legal practitioner; or

                     (b)  an unrestricted legal practitioner.

Penalty:  100 penalty units.

             (5)  An offence against subsection (4) is an offence of strict liability.

Note:          For strict liability, see section 6.1 of the Criminal Code .

26  Subsection 313(4)

Repeal the subsection.

27  Paragraph 316(1)(b)

Omit “and of lawyers in their provision of immigration legal assistance”.

28  Paragraph 316(1)(e)

Repeal the paragraph.

29  Section 319 (heading)

Repeal the heading, substitute:

319   Referral of conduct of certain migration agents to legal disciplinary authorities

30  Subsection 319(1)

Repeal the subsection, substitute:

Referral generally

             (1)  The Migration Agents Registration Authority may refer the conduct of a registered migration agent, or a former registered migration agent, who is an Australian legal practitioner to an authority responsible for disciplining Australian legal practitioners in a State or Territory if:

                     (a)  the legal practitioner was granted a practising certificate under the law of that State or Territory; and

                     (b)  the conduct occurred while the legal practitioner was a registered migration agent, whether or not the conduct occurred in connection with legal practice.

31  Subsections 321A(4) and 332F(4)

Repeal the subsections.

32  At the end of Part 3

Add:

Division 8 Transitional arrangements for Australian legal practitioners

333   Definitions

                   In this Division:

amending Act means the Migration Amendment (Regulation of Migration Agents) Act 2019 .

Division 8 commencement day means the day this Division commences.

Note:          This Division was added by Schedule 1 to the Migration Amendment (Regulation of Migration Agents) Act 2019 .

333A   Restrictions on giving immigration assistance and making immigration representations

             (1)  Despite the amendments of Division 2 made by Schedule 1 to the amending Act, that Division, as in force immediately before the Division 8 commencement day, continues to apply in relation to any conduct of a person occurring before that day.

             (2)  Subsection (1) also applies in relation to any conduct of a person occurring on or after the Division 8 commencement day if the conduct is a part or continuation of, or is connected to, conduct of the person occurring before that day.

333B   Registered migration agents who were unrestricted legal practitioners immediately before the Division 8 commencement day

Scope

             (1)  This section applies in relation to a person who, immediately before the Division 8 commencement day, was both:

                     (a)  a registered migration agent (even if, at that time, the person’s registration was under suspension, or had been taken to continue under subsection 300(4)); and

                     (b)  an unrestricted legal practitioner.

End of registration

             (2)  The person’s registration as a migration agent ends at the start of the Division 8 commencement day, by force of this section.

333C   Persons who were restricted legal practitioners immediately before the Division 8 commencement day

Scope

             (1)  This section applies in relation to a person who was a restricted legal practitioner immediately before the Division 8 commencement day (whether or not the person was a registered migration agent at that time).

Eligibility under section 278A

             (2)  The person’s eligible period for the purposes of section 278A is the period of 2 years after the Division 8 commencement day, despite subsection 278A(3).

Note:          Subsection 278A(3) provides that generally the eligible period is the period of 2 years after the person first held a restricted practising certificate.

333D   Registration applications made before the Division 8 commencement day

Scope

             (1)  This section applies in relation to a person if, immediately before the Division 8 commencement day:

                     (a)  the person had made a registration application (whether or not the person had previously been registered as a migration agent); and

                     (b)  the Migration Agents Registration Authority had not made a decision in relation to the application.

Application of amendments to registration applications

             (2)  The amendments of Division 3 made by Schedule 1 to the amending Act apply in relation to the registration application as if it had been made on or after the Division 8 commencement day.

Note:          On and after the Division 8 commencement day, some Australian legal practitioners cannot be registered as migration agents (see section 289B).

             (3)  If the person was an unrestricted legal practitioner immediately before the Division 8 commencement day, section 300 (automatic continuation of registration) does not apply on and after that day in relation to the registration application.

Note:          If the registration had been taken to continue under subsection 300(4) before the Division 8 commencement day, the registration would end at the start of that day (see section 333B).

             (4)  Despite section 291 (applicant must not be registered if registration refused in past year), if the person’s registration application is refused because of section 289B (inserted by Schedule 1 to the amending Act), the refusal of the application does not prevent the person from being registered as a migration agent in accordance with a later registration application made at any time on or after the Division 8 commencement day.

333E   Events required to be notified under s 312(4)

                   Subsection 312(4) (added by Schedule 1 to the amending Act) applies to require a registered migration agent to notify the Migration Agents Registration Authority that the agent has become a restricted or unrestricted legal practitioner if the agent becomes such a practitioner on or after the Division 8 commencement day.