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Migration Amendment (Regulation of Migration Agents) Bill 2019

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2019

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL 2019

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Assistant Minister for Customs, Community Safety and Multicultural Affairs, the Hon Jason Wood MP)

 

 

MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL 2019

 

OUTLINE

 

The Migration Amendment (Regulation of Migration Agents) Bill 2019 (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.  This is beneficial as it will reduce the regulatory and financial burden on lawyers working in the migration advice industry;

 

·          allow eligible restricted legal practitioners to be both registered migration agents and restricted legal practitioners for a period of up to two years.  This 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).  This is beneficial as some restricted legal practitioners may otherwise be disadvantaged by the supervisory restrictions on their practising certificates;

 

·          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 of the Migration Act are exercisable by the Minister, as the Migration Agents Registration Authority (MARA) is a part of the Department of Home Affairs, and 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 appearing before the MARA;

 

·          require registered migration agents to notify the MARA if they have paid the non-commercial application charge in relation to their current period of registration but give immigration assistance otherwise than on a non-commercial basis; and

 

·          ensure that the definitions of immigration assistance and makes 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 a 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 2019

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short title

 

1.                   Clause 1 provides that the short title of the Bill, once enacted, will be the Migration Amendment (Regulation of Migration Agents) Act 2019 .

 

Clause 2          Commencement

 

2.                   Clause 2 sets out the times at which the various provisions of the Act commence.

 

3.                   Subclause 2(1) provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

4.                   Table item 1 provides that sections 1 to 3 and anything in the Act not elsewhere covered by the table will commence on the day the Act receives the Royal Assent.

 

5.                   Table item 2 provides that Schedules 1 and 2 will commence on a single day to be fixed by Proclamation.  However, if the provisions do not commence within the period of 9 months beginning on the day the Act receives the Royal Assent, they commence on the day after the end of that period.  This nine-month period provides time to develop the consequential regulations required and to negotiate memoranda of understanding with State and Territory legal regulators.

 

6.                   Table item 3 provides that Schedule 3 will commence on a single day to be fixed by Proclamation.  However, if the provisions do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, they commence on the day after the end of that period.

 

7.                   Table item 4 provides that Schedule 4 will commence on a single day to be fixed by Proclamation.  However, if the provisions do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, they commence on the day after the end of that period.

 

8.                   Table item 5 provides that Schedule 5 will commence at the same time as Schedule 1 to the Migration Agents Registration Application Charge Amendment (Rates of Charge) Act 2019 (the Rates of Charge Act) commences.  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.

 

9.       Table item 6 provides that Schedule 6 will commence on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 6 months beginning on the day the Act receives the Royal Assent, they commence on the day after the end of that period.

 

10.               A note explains that the table relates only to the provisions of the Act as originally enacted.  It will not be amended to deal with any later amendments of the Act.

 

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

 

Clause 3          Schedules

 

12.               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

 

13.               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 partially give effect to Recommendation 1 by making a number of key changes to Part 3 of the Migration Act.

 

14.               Section 276 of the Migration Act 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). 

 

15.               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 immigration law, without the need for dual regulation in these areas.

 

16.               This Schedule makes the following key amendments to partially 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.  This is beneficial as it will reduce the regulatory and financial burden on lawyers working in the migration advice industry;

·          Eligible restricted legal practitioners may be both registered migration agents and restricted legal practitioners for a period of up to two years.  This period may be extended by up to two years (to provide a maximum of four years in total).  This is beneficial as some restricted legal practitioners may otherwise be disadvantaged by the supervisory restrictions on their practising certificates;

·          Australian legal practitioners (as defined in amended section 275) are permitted to give immigration assistance in connection with legal practice without being registered as migration agents; and

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

 



 

Migration Act 1958

 

Item 1             Section 275

 

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

 

18.               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.

 

19.               Secondly, this item inserts the new defined terms of 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 of the Migration Act.

 

20.               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.

 

21.               This item also inserts a note to the definition of Australian legal practitioner , which refers readers to subsection 5(1) of the Migration Act 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 .

 

22.               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. 

 

23.               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 practice 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.

 

24.               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, in connection with legal practice without being required to register as a migration agent. 

 

25.               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).

 

26.               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 )

 

27.               This item is consequential to item 14 of this Schedule, which repeals section 286 of the Migration Act. 

 

Item 3             Section 275

 

28.               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.

 

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

 

30.               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 practice prior to receipt of an unrestricted practising certificate.

31.               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.

32.               The new note added after the new defined term of restricted explains to readers that those who are made subject to a supervision restriction that was imposed as a disciplinary measure are taken to be unrestricted for the purposes of Part 3 of the Migration Act (see item 5 of this Schedule).  This is to reflect the policy intention that those who are made subject to a supervision restriction for disciplinary reasons should be prevented from being registered as migration agents.

33.               A restricted legal practitioner refers to an Australian legal practitioner whose practising certificate is restricted (within the meaning of Part 3 of the Migration Act).

 

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

 

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

 

Item 5             Section 275

 

35.               This item inserts the new defined terms of unrestricted and unrestricted legal practitioner .

36.               The term unrestricted in relation to a practising certificate held by an Australian legal practitioner refers to a practising certificate that is not restricted (within the meaning of Part 3 of the Migration Act).  Those who are made subject to a supervision restriction that was imposed as a disciplinary measure are taken to be unrestricted for the purposes of Part 3 of the Migration Act (see further discussion on this at item 3 of Schedule 1 above).

37.               The term unrestricted legal practitioner means an Australian legal practitioner whose practising certificate is unrestricted (within the meaning of Part 3 of the Migration Act).

38.               New subsection 289B(1) prevents an applicant who is an unrestricted legal practitioner from being registered as a migration agent (see item 15 of this Schedule).  New subsection 302A(1) requires the MARA to cancel the registration of a registered migration agent if the agent is an unrestricted legal practitioner (see item 17 of this Schedule).

Item 6             Section 277

 

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

 

40.               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.

 

41.               The current definition of immigration legal assistance differs in several ways from the current 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)).

 

42.               To establish the oversight of the conduct of an Australian legal practitioner under relevant State and Territory 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. 

 

43.               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 7             Before section 279

 

44.               This item inserts new section 278A (Eligibility for restricted legal practitioners).  New section 278A will capture restricted legal practitioners who may or may not be registered migration agents at the time of becoming a restricted legal practitioner.

45.               New subsection 278A(1) provides that a person who is a restricted legal practitioner is eligible , subject to section 278A.  This allows a restricted legal practitioner to also 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(6) (see paragraph 56 below).

46.               New subsection 278A(2) provides that the person remains eligible until either the end of the eligible period (or of a longer period as extended under this section) or when the person becomes an unrestricted legal practitioner.

47.               This item also inserts a new note 1 to new subsection 278A(2) which explains that a person may be eligible whether or not the person is a registered migration agent at the time of becoming a restricted legal practitioner.  This note helps to explain that eligibility is linked to the restricted practising certificate rather than registration as a migration agent.

48.               This item also inserts a new note 2 to new subsection 278A(2) which explains that while a restricted legal practitioner is eligible the practitioner may be a registered migration agent, but only if they satisfy the registration requirements.  The note refers the reader to new sections 289B (Applications by Australian legal practitioners) (see item 15 of this Schedule) and 302A (Cancellation of registration—Australian legal practitioners) (see item 17 of this Schedule).  For how applications for registration as a migration agent that are made but not determined before commencement of Schedules 1 and 2 to the Bill are treated, see new section 333D (see item 32 of this Schedule).

49.               New note 2 also explains that in order to be registered as a migration agent, an eligible restricted legal practitioner must satisfy the requirements of new section 289A (Applicant must not be registered if academic and vocational requirements are not satisfied) (see item 2 of Schedule 2 to the Bill).  The new section 289A requirements will apply to applications for registration as a migration agent that are made on or after the commencement of Schedule 2 to the Bill (see item 4 of Schedule 2 to the Bill).

50.               If a registered migration agent is subject to a suspension, this would not affect eligibility.

51.               New subsection 278A(3) 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. 

52.               If, at any point during the eligible period the person becomes an unrestricted legal practitioner, the person will no longer be eligible. 

53.               If, at any point during the eligible period the person becomes an unrestricted legal practitioner whilst also being a registered migration agent, the person must notify the MARA that they have become an unrestricted legal practitioner in accordance with new subsection 312(4) (see item 25 of this Schedule).  In this circumstances, the MARA must cancel their registration in accordance with new section 302A (see item 17 of this Schedule).  Further, they will be prevented from being registered as a migration agent with the MARA by new subsection 289B(1) (see item 15 of this Schedule).

54.               This item also inserts a note to new subsection 278A(3) which refers the reader to new section 333C (see item 32 of this Schedule).  New section 333C is a transitional provision which provides that the eligible period for those people who were restricted legal practitioners immediately before commencement of Schedule 1 to the Bill (i.e. the commencement of new section 278A and Division 8 of Part 3 of the Migration Act) is two years after commencement.  This is so as not to disadvantage people who obtained their restricted practising certificate prior to commencement by having their eligible period start before these amendments commence.

55.               New subsections 278A(1), 278A(2) and 278A(3) are intended to capture restricted legal practitioners who may otherwise have been disadvantaged by certain amendments made by this Bill.  In particular, item 6 of this Schedule repeals the definition of immigration legal assistance , but item 8 of this Schedule will allow immigration assistance to be provided by Australian legal practitioners in connection with legal practice under amended subsection 280(3).

56.               Had there been no distinction made between unrestricted legal practitioners and restricted legal practitioners, amended subsection 280(3) of the Migration Act (see item 8 of this Schedule), in conjunction with the conditions of a restricted practising certificate, would have prevented registered migration agents who are also restricted legal practitioners from providing unsupervised immigration assistance.  Prior to the amendment to subsection 280(3), a restricted legal practitioner who was a registered migration agent was able to provide immigration assistance unsupervised. If restricted legal practitioners were prevented from being registered as migration agents , they would no longer be able to provide unsupervised immigration assistance as a registered migration agent.  If that were the case, it may have negatively impacted individuals operating a business as a registered migration agent while holding a restricted practising certificate as an Australian legal practitioner.

57.               The eligible period of up to two years (or as extended under new subsection 278A(6)) is intended to allow eligible restricted legal practitioners to be registered as a 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 2 years. [1]

58.               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 will no longer be registered with the MARA.

59.               New subsection 278A(4) allows an eligible person to apply for an extension of the eligible period for a 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.  If the person becomes an unrestricted legal practitioner at any point, the eligible period will end (see paragraphs 52 and 53 above for more detail).

60.               A new note is also added at the end of subsection 278A(4) to inform readers that an eligible person may apply for an extension whether or not the person is a registered migration agent at the time of making the extension application.  This note further highlights the fact that eligibility is linked to the restricted practising certificate rather than registration as a migration agent.

61.               New subsection 278A(5) provides that a person can only make one application for an extension under new subsection 278A(4).  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.

62.               In conjunction with new subsection 278A(3), the effect of new subsections 278A(4) and 278A(5) is that an eligible restricted legal practitioner may have a combined maximum eligible period of four years, if such an extension is granted by MARA.

63.               Upon application under new subsection 278A(4), new subsection 278A(6) 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 given to the applicant no later than 28 days before the end of the eligible period.

64.               New subsection 278A(7) 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 any circumstances determined by legislative instrument made under new subsection 278A(9).  However, the MARA is not limited to any circumstances determined under new subsection 278A(9).  Reasonable circumstances may include, for example, maternity leave or chronic illness of the eligible restricted legal practitioner.

65.               New subsection 278A(8) requires the notice of the decision under new subsection 278A(6) to include any details that may be determined by legislative instrument made under new subsection 278A(9) in relation to the decision.  The details of the decision may include the reasons for the decision, findings on material questions of fact and reference to the evidence or other material on which those findings were based.

66.               New subsection 278A(9) allows the Minister to make a determination for the purposes of new subsections 278A(7) or 278A(8) by legislative instrument.  Any legislative instrument made under new subsection 278A(9) will be subject to disallowance in accordance with section 42 of the Legislation Act 2003 (the Legislation Act).

67.               New subsection 278A(10) 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(6)(a) or a decision to refuse to extend the eligible period under new paragraph 278A(6)(b). 

68.               The note at the end of new subsection 278A(10) 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 under new subsection 278A(6).  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 making 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(6).

Item 8             Subsection 280(3)

 

69.               The purpose of item 8 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. 

 

70.               Amended subsection 280(3) refers to an Australian legal practitioner, reflecting the new defined term as inserted by item 1 of this Schedule.  It also refers to immigration assistance as opposed to immigration legal assistance.  This is consequential to the repeal of section 277 (see item 6 of this Schedule), which defines immigration legal assistance . This 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.

 

71.               To be registered as a migration agent involves payment of a charge for each 12 month registration period.  This amendment allows Australian legal practitioners to give legal advice on immigration matters while regulated solely by their own legal professional bodies.

 

72.               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.  Australian legal practitioners 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 9             Paragraphs 281(3)(a) and (b)

 

73.               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 for giving immigration legal assistance, and do not prohibit a person from asking for or receiving a fee for the giving of immigration legal assistance by a lawyer.

 

74.               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 in connection with legal practice.  Amended paragraph 281(3)(a) provides that section 281 does not prohibit an Australian legal practitioner from asking for or receiving a fee or other reward for giving immigration assistance in connection with legal practice.  Amended paragraph 281(3)(b) provides that section 281 does not prohibit 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.

 

75.               This item is therefore consequential to the amendments made by items 1, 6 and 8 of this Schedule.

 

Item 10           Subsections 282(1) and (2)

 

76.               This item is consequential to item 11 of this Schedule, which inserts new subsection 282(2A).

 

Item 11           After subsection 282(2)

 

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

 

78.               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 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.  This item is therefore consistent with the amendments made by items 1, 6 and 8 of this Schedule.

 

Item 12           Subsection 284(3)

 

79.               Section 284 sets out restrictions on 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.

 

80.               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 the practitioner gives immigration assistance in connection with legal practice.  This item is therefore consequential to the amendments made by items 1, 6 and 8 of this Schedule.

 

Item 13           Subsection 285(3)

 

81.               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.  Current 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.

 

82.               This item amends subsection 285(3) to ensure 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 in connection with legal practice.  This item is therefore consequential to the amendments made by items 1, 6 and 8 of this Schedule.

 

Item 14           Section 286

 

83.               This item repeals section 286. 

 

84.               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 15           After section 289A

 

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

 

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

87.               New subsection 289B(2) provides that an applicant who is a restricted legal practitioner must not be registered as a migration agent unless the applicant is eligible.  This allows for eligible restricted legal practitioners to be registered as migration agents during the eligible period (see item 7 of this Schedule).

88.               The new notes at the end of new subsection 289B(2) refer readers to provisions relating to whether a restricted legal practitioner can be registered as a migration agent with the MARA.

89.               New note 1 refers the reader to new sections 278A and 333C, for when a person is eligible (see items 7 and 32 of this Schedule).  Eligible restricted legal practitioners will not be prevented from being registered as a migration agent by new subsection 289B(2).

90.               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 25 of this Schedule).  This is necessary for MARA to determine whether a person is an eligible restricted legal practitioner or an unrestricted legal practitioner.

91.               New note 3 refers to new section 302A, which requires the MARA to cancel the registration of a registered migration agent who is an unrestricted legal practitioner, or who is a restricted legal practitioner who is not eligible (see item 17 of this Schedule).  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 restricted 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.

92.               The effect of new section 289B 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. 

 

Item 16           Section 299

 

93.               This item repeals and substitutes section 299, which is about the period of registration as a migration agent.

 

94.               New subsection 299(1) provides that, subject to any other provision of Part 3 of the Migration Act (including new subsection 299(2)), a registered migration agent’s registration period ends 12 months after the day of registration.  The wording has been updated to ensure that registration that starts at the start of a day of one of the calendar months should end immediately before the start of the corresponding day of the calendar month in 12 months’ time.  The definition of month in section 2G of the Acts Interpretation Act 1901 is relied upon here.  For example, if a person’s registration commences on 1 July 2020, their registration ends on 30 June 2021.

 

95.               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 full 12 month registration period is concluded, the MARA can cancel the person’s registration under section 303 provided that one of the grounds mentioned in paragraphs 303(1)(d)-(h) is made out.

 

Item 17           After section 302

 

96.               This item inserts new section 302A, which provides the MARA with a new cancellation power in relation to registered migration agents who are Australian legal practitioners. 

 

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

98.               New paragraph 302A(1)(b) provides that the MARA must cancel the registration of a registered migration agent, by removing the agent’s name from the Register, if satisfied that the agent is a restricted legal practitioner who is not eligible.  This is consistent with the policy intention that Australian legal practitioners providing immigration advice in connection with legal practice should be regulated by the relevant State or Territory Law Society and not the MARA; whilst also allowing for eligible restricted legal practitioners to be registered as migration agents during the eligible period.

99.               The new notes at the end of new subsection 302A(1) refer readers to provisions relating to whether an Australian legal practitioner can also be registered as a migration agent.

100.           New note 1 refers the reader to new sections 278A and 333C for when a person is eligible (see items 7 and 32 of this Schedule).  A restricted legal practitioner will not have their registration cancelled under new paragraph 302A(1)(b) while they remain eligible.

101.           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 25 of this Schedule).  This is necessary for MARA to determine whether a person is an eligible restricted legal practitioner or an unrestricted legal practitioner.  If the restricted legal practitioner ceases to be eligible, their registration as a migration agent with the MARA must be cancelled under new paragraph 302A(1)(b).

102.           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 15 of this Schedule).  Restricted legal practitioners who are eligible at the time of application for registration as a migration agent, and therefore not prevented from being registered by new subsection 289B(2), will be subject to cancellation of their MARA registration under new subsection 302A(1) if they become an unrestricted legal practitioner, or if they are no longer an eligible restricted legal practitioner.

103.           New subsection 302A(2) makes it clear that the MARA may cancel the registration of a registered migration agent under new subsection 302A(1) because of the agent’s status 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.  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(2) 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 if the requirements under new subsection 302A(1) are met.

104.           New subsection 302A(3) 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(4) provides that this notice must set out the reason for the decision. 

 

105.           New subsection 302A(5) provides that the decision takes effect at the time 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(5) that refers readers to section 332H, which sets out when an agent is taken to have been given a notice under Part 3 of the Migration Act.

 

106.           New subsections 302A(3), 302A(4) and 302A(5) mirror the content of current section 305, which sets out the notification requirements of the MARA when making a disciplinary decision under section 303.

 

107.           As there is no disciplinary reason for cancelling a registration under new section 302A, certain provisions in Part 3 of the Migration Act will not be triggered.  For example, current section 292 provides that a person must not be registered within five years of having their registration cancelled under section 303, 306AG 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 unrestricted legal practitioner or a restricted legal practitioner who is not eligible is not a disciplinary action, and as such the requirements and procedures associated with cancellation for disciplinary reasons should not be applicable.

 

Item 18           Subsection 305B(1)

 

108.           This item is consequential to item 19 of this Schedule, which repeals subsection 305B(3).

 

Item 19           Subsection 305B(3)

 

109.           This item repeals subsection 305B(3), which contains a signpost definition of client .  Item 1 of this Schedule 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 20           Subsection 306AM(1)

 

110.           This item is consequential to item 21 of this Schedule, which repeals subsection 306AM(3).

 

Item 21           Subsection 306AM(3)

 

111.           This item repeals subsection 306AM(3), which contains a signpost definition of client .  Item 1 of this Schedule 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 22           Section 306A (note)

 

112.           This item repeals and substitutes the note at the end of section 306A.  This is consequential to item 23 of this Schedule, which adds an additional circumstance to section 306B in which an agent may become inactive that would not be covered by the existing note to section 306A.  Rather than add to the list of circumstances in the existing note to section 306A, the note has been simplified to refer the reader to section 306B for the circumstances in which an agent becomes inactive , since section 306B immediately follows section 306A.

 

Item 23           After paragraph 306B(b)

 

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

 

114.           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 (see item 17 of this Schedule) or because their registration ends under new section 333B (see item 32 of this Schedule). 

 

115.           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 two years after their registration ceases or until the person becomes a registered migration agent again, whichever happens first.

 

116.           New note 1 refers to new section 302A, which requires the MARA to cancel the registration of a migration agent if the agent is an unrestricted legal practitioner, or is a restricted legal practitioner who is not eligible (see item 17 of this Schedule).  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)(i).

117.           New note 2 refers to new section 333B, which provides that if a registered migration agent is also an unrestricted legal practitioner immediately before the commencement of Division 8 of Part 3 of the Migration Act (which is also when the amendment made by this item commences), their registration will cease on commencement (see item 32 of this Schedule) .  Once a migration agent’s registration ends in accordance with new section 333B, they will become an inactive migration agent under new subparagraph 306B(ba)(i).

118.           An inactive migration agent is a person who has ceased to practice as a migration agent due to, for example, cancellation of their registration (see current paragraph 306B(c)) or the person having become physically or mentally incapable of giving immigration assistance (see current 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.

 

119.           The effect of inserting new paragraph 306B(ba) is that a person whose registration as a migration agent ceases or is cancelled under new sections 302A or 333B 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 24           Section 306C

 

120.           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 for the purposes of regulations made under Part 3.

 

121.           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.

 

122.           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.

 

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

 

Item 25           At the end of section 312

 

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

125.           New paragraph 312(4)(a) requires a registered migration agent to notify the MARA in writing within 28 days after the agent 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 (see item 17 of this Schedule).

126.           New paragraph 312(4)(b) requires a registered migration agent to notify the MARA in writing within 28 days after the agent 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.

127.           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 subsection 312(1) of the Migration Act, which requires a registered migration agent to notify the MARA within 14 days after certain events.

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

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

Item 26           Subsection 313(4)

 

130.           This item repeals subsection 313(4), which provides that section 313 does not apply to the giving of immigration legal assistance by a lawyer.  This amendment is consequential to the amendment made by item 6 of this Schedule, which repeals the definition of immigration legal assistance .

 

Item 27           Paragraph 316(1)(b)

 

131.           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.

 

132.           This item amends paragraph 316(1)(b) to remove this reference to lawyers and immigration legal assistance.  This is partly consequential to the repeal of the definition of immigration legal assistance by item 6 of this Schedule.  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 (with some exceptions for eligible restricted legal practitioners).  The amendment made by item 8 of this Schedule allows Australian legal practitioners to give immigration assistance without being registered as a migration agent.

 

133.           As a consequence of this amendment, the MARA will not be able to monitor the conduct of Australian legal practitioners (who are not also registered migration agents) in their provision of immigration assistance.  Rather, this will be the function of the relevant State and Territory legal professional 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 28           Paragraph 316(1)(e)

 

134.           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.

 

135.           Like item 27 of this Schedule, this amendment 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 (with some exceptions for eligible restricted legal practitioners).  Further, this item is consequential to the repeal of the definition of immigration legal assistance by item 6 of this Schedule.

 

136.           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.  Item 30 of this Schedule ensures 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 27 of this Schedule, 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.

 

137.           Any complaints about Australian legal practitioners in relation to their provision of immigration legal assistance, who are not registered migration agents or former registered migration agents, that are on hand—that is, not yet finalised—when this Schedule commences, will no longer be investigable by the MARA under amended section 316.  Rather, the MARA will ask the complainant to re-lodge the complaint with the relevant legal disciplinary authority.

 

138.           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 commencement, about immigration assistance that was given before commencement, 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 amended section 319 to the relevant legal disciplinary authority, on the basis that the person is currently an Australian legal practitioner.

 

Item 29           Section 319 (heading)

 

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

 

140.           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 who is an Australian legal practitioner to an authority responsible for disciplining Australian legal practitioners in a State or Territory.  These referrals of conduct may be made to, for example, State or Territory Law Societies or Legal Services Commissioners.

Item 30           Subsection 319(1)

 

141.           This item repeals and substitutes subsection 319(1) of the Migration Act.

142.           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. 

 

143.           New subsection 319(1) allows the MARA to 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: the legal practitioner was granted a 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.

144.           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 been cancelled under new section 302A.

145.           New subsection 319(1) allows the MARA to refer conduct if it occurred while the legal practitioner was a registered migration agent, 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.

 

146.           Whereas current subsection 319(1) refers to “an authority responsible for disciplining lawyers”, new subsection 319(1) refers to “an authority responsible for disciplining Australian legal practitioners 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.

 

147.           This item does not repeal or amend subsections 319(2) or (3), which provide that if the MARA refers the conduct of a registered migration agent or a former registered migration agent, it may not take action against the agent under section 303 or subsection 311A(1) on the basis of that conduct.  Section 303 allows the MARA to caution a registered migration agent or suspend or cancel a registered migration agent’s registration.  Section 311A 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 31           Subsections 321A(4) and 332F(4)

 

148.           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 32           At the end of Part 3

 

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

 

New section 333 - Definitions

 

150.           New section 333 defines amending Act as the Migration Amendment (Regulation of Migration Agents) Act 2019 , for the purposes of new Division 8.

 

151.           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.

 

152.           New section 333 also defines Division 8 commencement day as the day this Division commences.

 

153.           Division 8 refers to the “Division 8 commencement day” at several points, particularly when setting out how the amendments made by this Schedule will apply before and after the Division 8 commencement day.

 

154.           This item also inserts a new note at the end of section 333, which provides that Division 8 was added by Schedule 1 to the amending Act.

 

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

 

155.           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.

 

156.           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 will now be able to give immigration assistance without being registered as a migration agent, and is consequential to the repeal of the definition of immigration legal assistance by item 6 of this Schedule.

 

157.           New subsection 333A(1) ensures that the content of Division 2 as in force prior to the Division 8 commencement day 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 the Division 8 commencement day and was not a registered migration agent at the time, that person will have committed an offence under section 280 of the Migration Act, whether or not that conduct is investigated before or after the Division 8 commencement day. 

 

158.           New subsection 333A(2) provides that new subsection 333A(1) also applies in relation to any conduct that occurs on or after the Division 8 commencement day, if that conduct is a part or continuation of, or is connected to, conduct that occurred before that day.  For example, an Australian legal practitioner may have provided immigration assistance prior to the Division 8 commencement day despite not being registered as a migration agent, which is currently an offence under section 280.  If the practitioner receives a fee, after the Division 8 commencement day, for the giving of that immigration assistance, this would constitute conduct that is a continuation of conduct that occurred prior to the Division 8 commencement day, and was also itself an offence under section 281 before the Division 8 commencement day.  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 the Division 8 commencement day

 

159.           This provision ensures that unrestricted legal practitioners who were also registered migration agents immediately before the Division 8 commencement day will cease to be registered migration agents from that date onwards.  This ensures that, from the Division 8 commencement day, unrestricted legal practitioners will no longer be able to be registered as migration agents, and will be entirely regulated by their own professional bodies. 

 

160.           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 the Division 8 commencement day.  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.

 

161.           New subsection 333B(2) provides that the registration of a person mentioned in subsection 333B(1) ends at the start of the Division 8 commencement day.

 

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

162.           New section 333C sets out the transitional arrangements for people who were restricted legal practitioners immediately before the Division 8 commencement day. New provision 333C should be read in conjunction with new section 278A (see item 7 of this Schedule).

163.           New subsection 333C(1) provides that new section 333C applies in relation to a person who, immediately before the Division 8 commencement day, was a restricted legal practitioner (whether or not the person was a registered migration agent at that time).

164.           New subsection 333C(2) sets out the application of eligibility under new section 278A.  It provides that the person’s eligible period for the purposes of section 278A is the period of two years after the Division 8 commencement day, despite subsection 278A(3).

165.           The note to new subsection 333C(2) states that subsection 278A(3) provides that generally the eligible period is the period of two years after the person first held a restricted practising certificate.

166.           This application provision ensures that those who are restricted legal practitioners immediately before the Division 8 commencement day are not disadvantaged as compared to those who become restricted legal practitioners after the Division 8 commencement day.  This way, all restricted legal practitioners are afforded a two year eligible period within which registration as a migration agent is also possible.

167.           The policy intention behind new provisions 333C and 278A is to allow restricted legal practitioners to be registered as a registered migration agent for a 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 2 years. [2]

New section 333D - Registration applications made before the Division 8 commencement day

 

168.           This provision ensures that an application for registration made before the Division 8 commencement day 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.

 

169.           New subsection 333D(1) provides that section 333D applies in relation to a person if, immediately before the Division 8 commencement day, the person had made a registration application and the MARA had not made a decision in relation to the application.  New paragraph 333D(1)(a) specifies that this is so whether or not the person had previously been registered as a migration agent.  This ensures that section 333D includes both applicants for first-time registration as a migration agent, as well as applicants for repeat registration.

 

170.           New subsection 333D(2) provides that the amendments to Division 3 of Part 3 of the Migration Act made by this Schedule apply in relation to the person’s registration application as though the application had been made on or after the Division 8 commencement day.  Division 3 is about the registration process and requirements for registration.  The effect of new subsection 333D(2) is that an application that has been made but not had a decision in relation to the application made by the MARA before the Division 8 commencement day, must be considered as if the application were made on or after the Division 8 commencement day.  For example, if the application was made before the Division 8 commencement day by an unrestricted legal practitioner but a decision is not made on the application until after the Division 8 commencement day, the application must be refused under new section 289B.  If the application was made before the Division 8 commencement day by a restricted legal practitioner but a decision is not made on the application until after the Division 8 commencement day, if the restricted legal practitioner is eligible—under new section 278A as applied by new section 333C—at the time of the decision, then the applicant can be registered under new section 289B.  See discussion below at paragraphs 192 to 195 for how new section 289A (Applicant must not be registered if academic and vocational requirements are not satisfied) will be applied to registration applications. 

 

171.           This item also inserts a note to new subsection 333D(2) which refers to new section 289B.  New section 289B prevents an unrestricted legal practitioner or a restricted legal practitioner who is not eligible from being registered as a migration agent with the MARA (see item 15 of this Schedule).  On and after the Division 8 commencement day, such legal practitioners cannot be registered as migration agents.

172.           New subsection 333D(3) provides that if the person was an unrestricted legal practitioner immediately before the Division 8 commencement day, current section 300 (automatic continuation of registration) does not apply on and after that day in relation to the registration application.  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 333D(3), which explains that if the person’s registration had been taken to continue under subsection 300(4) before the Division 8 commencement day, the registration ends at the start of that day.  The note also refers readers to new section 333B.

 

173.           New subsection 333D(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 the Division 8 commencement day.  This is so despite current 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 333D(4) is that, if a person, whose application was refused under new section 289B because they are an unrestricted legal practitioner or a restricted legal practitioner who is not eligible, ceases to hold a practising certificate, they can then apply for registration as a migration agent without being required to wait 12 months after ceasing to hold the certificate.

 

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

 

174.           This provision provides that new subsection 312(4) (added by item 25 of this Schedule) applies to require a registered migration agent to notify the MARA 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.  This transitional provision clarifies that subsection 312(4) is to be interpreted as requiring notification to MARA only if the change occurs on or after the Division 8 commencement day, not before.

 

 

SCHEDULE 2 - Registration periods

 

Background

 

175.           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 longer than 12 months. 

 

176.           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 after the end of their last registration period.  As such, it is intended that this Schedule makes amendments that are beneficial to applicants.

 

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

 

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

 

Part 1 - Amendments

 

Migration Act 1958

 

Item 1             Subsection 288(2)

 

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

 

180.           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

 

181.           This item repeals and substitutes section 289A.  New section 289A is 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.

 

182.           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.

 

183.           This item removes the reference to an application made more than 12 months after the end of the applicant’s previous registration (see current paragraph 289A(b)).  It instead inserts a reference to an application made after the end of a period, prescribed for the purposes of new paragraph 289A(1)(b), immediately after the end of the applicant’s most recent period of registration (see new paragraph 289A(1)(b)).

 

184.           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 after the end of their previous registration period.  The intention is to prescribe a longer period.

 

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

 

186.           This amendment complements broader changes made in respect of entry qualifications into the migration advice industry.  These changes include the introduction on 1 January 2018 of a Graduate Diploma in Australian Migration Law and Practice, replacing the Graduate Certificate in Australian Migration Law and Practice as the prescribed course for the purpose of current 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, known as the Capstone assessment, will lapse after three years.

 

187.           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.

 

188.           Current paragraph 289A(d) provides that an applicant must not be registered unless the MARA is satisfied that the applicant holds the prescribed qualifications.  This allows applicants to be registered as migration agents based on their legal practising certificates which are currently prescribed.  New section 289A no longer provides the option of allowing an applicant to be registered based on their legal practising certificate alone.  Any regulations made prescribing qualifications for the purposes of current paragraph 289A(d) will cease upon commencement of this Schedule.

 

189.           See subitem 4(1) of this Schedule in relation to how the amendments made by Part 1 of Schedule 2 will apply to registration applications.

 

Item 3             Section 290A

 

190.           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.

 

191.           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 intention is to prescribe a longer 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 as prescribed.  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

 

192.           Subitem 4(1) ensures that the amendments made by Part 1 of Schedule 2 apply to registration applications made on or after the commencement of Schedule 2.  This ensures a prospective application of the amendments.

 

193.           The effect of this application provision on those restricted legal practitioners who have applied for registration as a migration agent but the applications have not been decided prior to commencement of this Schedule is to require the MARA to decide those applications in accordance with the provisions (including section 289A) as they were prior to commencement of this Schedule.  Effectively, those restricted legal practitioners who applied for registration before commencement based on their Australian legal practising certificates will be allowed to be registered on the basis of those qualifications alone.

 

194.           The reason for applying the changes in this way is because, at the time of application before commencement of the amendments made by Part 1 of Schedule 2 to the Bill, the applicant would have met the requirements in current paragraph 289A(d) on the basis of their legal practising certificate alone.  Those who applied before commencement who relied on their legal practising certificate as a prescribed qualification may not have completed a prescribed course and passed a prescribed examination, which is required by new section 289A.

 

195.           The effect of this application provision on those restricted legal practitioners who apply for registration on or after commencement is that they must not be registered unless the MARA is satisfied that the applicant has completed the prescribed course and passed the prescribed examination within a prescribed period.

 

196.           Subitem 4(2) provides that, despite the repeal of section 289A, regulations made for the purposes of paragraph 289A(c) that are in force immediately before the commencement of Schedule 2 to this Bill will continue in force after that commencement as if they had been made for the purposes of new paragraph 289A(2)(a) or (b) (as the case requires).  This will ensure that the regulations prescribing the prescribed course and exam will continue in force after commencement of this Schedule.

 

197.           The regulations made under repealed paragraph 289A(d), prescribing legal practising certificates as prescribed qualifications, will not continue in force because the provision has been repealed.

 

 

SCHEDULE 3 - Redundant provisions

 

Background

 

198.           The purpose of the amendments made by Schedule 3 is to ensure that redundant provisions in Part 3 of the Migration Act are amended or repealed.

 

199.           Several of the amendments reflect the consolidation of the Office of the MARA into the Department of Immigration and Border Protection (now the Department of Home Affairs) on 1 July 2015, 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.

 

200.                      The other amendments in this Schedule repeal redundant provisions that were inserted at a time when the Migration Institute of Australia (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 (the 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.

 

Migration Act 1958

 

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

 

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

 

202.           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 and Subdivision B of Division 4A of Part 3 of the Migration Act, both of which are to be repealed by items 9 and 12 of this Schedule.

 

203.           Once the amendments made by Schedule 3 to the Bill commence, the Institute will only be referenced in amended subsection 332E(3), rendering the definition of Institute at section 275 superfluous (see item 20 of this Schedule).

 

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

 

204.           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 Home Affairs.  This amendment will assist readers to understand that references to the MARA are references to a dedicated Departmental body which administers Part 3 of the Migration Act.

 

205.           The current definition of the Migration Agents Registration Authority has two alternative meanings, 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 replaced by a reference to the body mentioned in new section 315 (see item 13 of this Schedule).

 

206.           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 under amended section 320 (as provided by new subsection 315(2)).

 

Item 3             Subsection 279(1)

 

207.                      This amendment is consequential to the repeal of subsection 279(2) by item 4 of this Schedule.

 

Item 4             Subsection 279(2)

 

208.                      This item repeals subsection 279(2) as it provides that Division 3 of Part VIIC of the Crimes Act 1914 applies in relation to the MARA as if it were a Commonwealth authority for the purposes of that Division.  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 Part VIIC of the Crimes Act 1914 .

 

Item 5             Section 292

 

209.                      This item omits “, 306AG or 306AGAC” because these sections are to be repealed as part of the amendments made at item 9 of this Schedule.

 

Item 6             Paragraph 292A(a)

 

210.                      This item omits “or 311L(1)” because this section is to be repealed as part of the amendment made at item 12 of this Schedule.

 

Item 7             Subsection 303(1) (note 1)

 

211.                      This item repeals the first note following subsection 303(1), which refers readers to Division 3AA of Part 3.  This is consequential to the repeal of Division 3AA of Part 3 by item 9 of this Schedule.

 

Item 8             Subsection 303(1) (note 2)

 

212.                      This item renumbers the second note to subsection 303(1).  This is consequential to the repeal of the current note 1 to subsection 303(1) by item 7 of this Schedule.

 

Item 9             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 visa 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 current 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 amended section 303.

 

Item 10           Paragraphs 306B(c) and (d)

 

215.                      This item omits “, 306AG or 306AGAC” because these sections are to be repealed as part of the amendments made at item 9 of this Schedule.

 

Item 11           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 of Division 4A of Part 3 by item 12 of this Schedule.

 

Item 12           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 13           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.                      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, 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 of the Minister under amended section 320.  This amendment makes clear that the MARA’s powers or functions cannot be exercised by a person in the Department directly, unless the powers or functions have been delegated by the Minister.

 

Item 14           Subsection 316(2)

 

222.                      This item repeals subsection 316(2), as it will become redundant by the repeal of current section 315 by item 13 of this Schedule.  Current subsection 316(2) gives the MIA the function of advising the Minister on the adequacy of any Code of Conduct, only if the MIA is appointed as the MARA under current section 315 .

 

Item 15           Section 319A

 

223.                      This item repeals section 319A.  Current 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 current section 315.

 

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

 

Item 16           Subsection 320(1)

 

225.                      This item repeals and substitutes subsection 320(1).

 

226.                      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 any period when the MIA is not appointed under current section 315.

 

227.                      New subsection 320(1) does not extend the delegation of administrative powers; rather, it 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 term as used in 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 section 315.

 

228.                      The delegation of power at new subsection 320(1) is appropriate and consistent with the current framework of the Migration Act.

 

229.                      The level of delegation has not been specified in the Migration Act.  Doing so would create an unnecessary administrative and legislative burden, by requiring a change to the Migration Act each time there was a restructure to the administrative arrangements of the MARA.

 

230.                      The existing powers and functions under Part 3 of the Migration Act have been delegated by the Minister under a legislative instrument and have been working effectively, with the MARA exercising its powers appropriately.

 

231.                      The note to new subsection 320(1) refers readers to new section 315, which contains information relating to the nature, powers and functions of the MARA.

 

Item 17           Section 321

 

232.                      This item repeals section 321, which authorises disclosure of personal information by the Department to the MARA.  Current section 321 also allows the Minister to disclose personal information to the MIA if the MIA has been appointed as the MARA under current section 315.

233.                      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 18           Sections 322 and 332B

 

234.                      This item repeals sections 322 and 332B.

 

235.                      Subsection 322(1) provides that the MIA, if appointed under current section 315, 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.

 

236.                      Subsection 322(2) provides that if the MIA is not appointed under current section 315, 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.

 

237.           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 19           Subsection 332D(1)

 

238.                      This item omits the text “or 311P” from subsection 332D(1).  This amendment is made because section 311P is part of Subdivision B of Division 4A of Part 3 of the Migration Act, which is to be repealed by item 12 of this Schedule.

 

Item 20           Subsection 332E(3)

 

239.                      This item omits from subsection 332E(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,”.

 

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

 

Item 21           At the end of subsection 332E(3)

 

241.                      This item inserts a note at the end of subsection 332E(3).

 

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

 

243.                      This note is inserted consequentially to the repeal of current section 315 by item 13 of this Schedule.  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 332E.

 

 

SCHEDULE 4 - Requirement for applicants to provide further information

 

Background

 

244.           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 in relation to their application by making a statutory declaration or appearing before the MARA.

 

245.           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

 

246.           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 provide information.

 

Current section 288B

 

247.           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.   The matter remains an open application, which cannot be further resolved or closed until the applicant takes such action.

 

248.           It is necessary to repeal current section 288B because the MARA has accrued numerous 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

 

249.           The new section 288B allows the MARA to be able to further consider the application if an applicant fails to respond to a section 288B requirement to provide information in relation to an application.  In particular, the MARA may consider refusing the application if the applicant has failed to comply with the requirement, such that the applicant must not be registered in certain circumstances.

 

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

 

251.           New subsection 288B(1) confirms that the section applies in relation to an applicant who is not already a registered migration agent.

 

252.           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 three key differences.  The first is that new subsection 288B(2) allows the MARA to issue the requirements by written notice given to the applicant.  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 the MARA may require the provision of information or the production of any specified documents.  The third is that new paragraph 288B(2)(b) 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. 

 

253.           New paragraph 288B(2)(a) refers to an applicant providing to the MARA, within a prescribed period or an extended period under new subsection 288B(5), a statutory declaration and any other specified documents, as stated in the notice.  See new subsection 288B(5) in relation to the ability of the MARA to extend the period within which an applicant must respond.

 

254.           It is appropriate to allow a period to be prescribed under new paragraph 288B(2)(a), by delegated legislation, for when a statutory declaration and any other specified documents are to be provided to the MARA.  This is because the Migration Act is structured to contain broad concepts, with the specific details, such as prescribed periods in relation to notices, contained in delegated legislation.

 

255.           An example of the Migration Act providing the broad parameters, with regulations dealing with details, is subsection 280(1), which provides that a person who is not a registered migration agent must not give immigration assistance.  The Migration Agents Regulations 1998 set out the contents of the infringement notice relating to giving of immigration assistance.  Under regulation 3K(1)(e), the infringement notice must state that, if the person on whom it is served does not wish the matter to be dealt with by a court, the person may pay that penalty within 28 days after the date of service of the notice unless the notice is withdrawn before the end of that period.

 

256.           New paragraph 288B(2)(b) refers to an applicant appearing before the MARA, at a time and place stated in the notice—or at another time or place fixed under new subsection 288B(5)—and providing information, with any specified documents, at such an appearance.  In order to allow flexibility for the applicant and the MARA, it is not necessary to prescribe a period after which a time to appear can be fixed.  For example, this would allow an applicant to request that they appear before the MARA at a time earlier than that specified in the subsection 288(2) notice, if it would be more convenient for the applicant.  See new subsection 288B(5) in relation to the ability of the MARA to fix a new time for the applicant to appear before it.

 

257.           New subsection 288B(3) allows the MARA to consider refusing the application if the applicant fails to comply with a requirement in the subsection 288B(2) notice.  New note to subsection 288B(3) states that if the MARA is considering refusing a registration application, it must invite the applicant to make a further submission in support of the application, referring to current subsection 309(1).  This will trigger the operation of section 309, which requires the MARA to inform the applicant and invite the applicant to make a further submission if the MARA is considering refusing the person’s application for registration.  It also triggers the operation of section 310, which relevantly allows the MARA to decide a matter after the MARA has invited a submission under section 309.

 

258.           New subsection 288B(4) provides for the circumstances in which an applicant must not be registered in relation to a requirement to provide further information, by referring to three criteria.  An applicant must not be registered if:

 

·          Firstly, the applicant fails to comply with a requirement made under a subsection 288B(2) notice, within the period to which paragraph 288B(2)(a) applies, or at the time to which paragraph 288B(2)(b) applies;

·          Secondly, the MARA has invited the applicant to make a further submission under subsection 309(1) in relation to the information required by the subsection 288B(2) notice; and

·          Thirdly, any of the following applies: the applicant fails to make such a further submission within a reasonable time after the invitation is given; the applicant fails to appear before the MARA if given an opportunity to appear before the MARA under paragraph 310(3)(b); or, the MARA is not satisfied that the applicant has provided the information required by the subsection 288B(2) notice after consideration of such a further submission, and (if applicable) any information given by the applicant at an appearance under paragraph 310(3)(b).

 

259.           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.

 

260.           New subsection 288B(5) provides a process by which the MARA can extend a period or fix a new time or place in relation to a subsection 288B(2) notice.  New paragraph 288B(5)(a) states that the MARA may, by written notice given to the applicant and upon a request of the applicant made within the period to which paragraph 288B(2)(a) applies, extend the period.  New paragraph 288B(5)(b) also provides that the MARA may, by written notice given to the applicant and upon a request of the applicant made before the time to which paragraph 288B(2)(b) applies, fix a new time or place for the applicant to appear before the MARA.

 

261.           There is no limit to how many times an applicant may request to extend the period or fix a new time or place to appear before the MARA under subsection 288B(5).  The MARA has a discretion whether to approve such requests.  If the MARA extends the period or fixes a new time or place to appear before the MARA, subsection 288B(2) would be read as if that new extended period or new time or place to appear applied.

 

262.           New subsection 288B(6) requires a notice given under subsection 288B(2) to include a statement explaining the consequences under this section of failing to comply with the requirements of the notice.  The intention is that the notice will advise the applicant of the significance of not complying with a requirement, such as to provide information within the specified time period.  This ensures that the applicant is afforded procedural fairness in respect of the potential for the application to be refused for failure to meet a requirement issued under subsection 288B(2).

 

 

Part 2 - Application of amendments

 

Item 2             Application of amendments made by Part 1

 

263.           This item outlines that, despite the amendments of the Migration Act made by Part 1 of Schedule 4, section 288B as in force immediately before commencement of this Schedule continues to apply in relation to a requirement made under subsection 288B(1) before that commencement.  This saves the application of section 288B in relation to requirements made under that section before commencement.

 

 

SCHEDULE 5 - Fees and charges

 

Background

 

264.           The purpose of the amendments made by Schedule 5 is to require a registered migration agent to notify the MARA if the agent has paid the non-commercial application charge in relation to the agent’s current registration period, but begins to give immigration assistance otherwise than on a non-commercial basis during that period.  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 2019 (the Rates of Charge Bill).

 

265.           The policy intention is that an applicant for registration as a migration agent must pay the general application charge.  The exception to this default position is where the applicant can demonstrate that they are eligible to pay the non-commercial application charge.  It is intended that an applicant for registration as a migration agent should only be eligible to pay the non-commercial application charge if they meet two criteria.  These criteria are: if the person intends to provide immigration assistance solely on a non-commercial or non-profit basis; and as a member of, or a person associated with, an organisation that operates in Australia solely on a non-commercial or non-profit basis, and as a charity, or for the benefit of the Australian community.

 

266.           Relevantly, current section 10 of the Charge Act imposes an adjusted charge in relation to a registered migration agent who paid the non-commercial application fee in relation to the agent’s current period of registration—the Rates of Charge Bill will amend this defined term to call it the non-commercial application charge —but gives immigration assistance on a commercial basis at any time during that period.

 

267.           The Rates of Charge Bill will amend section 10 of the Charge Act so that, instead of referring to when a person gives immigration assistance on a commercial basis, it will refer to when a person gives immigration assistance otherwise than on a non-commercial basis .

 

Part 1 - Amendments

 

Migration Act 1958

 

Item 1             Paragraph 312(1)(ea)

 

268.           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).

 

269.           Current paragraph 312(1)(ea) states that one such event is if the agent paid, in relation to the agent’s 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.

 

270.           This reflects the wording in the current section 10 of the related Charge Act.  Section 10 of the Charge Act will be amended by the Rates of Charge Bill to align with the amendments made by this Schedule.

 

271.           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.

 

272.           The agent’s notification obligation must be made within 14 days of when the agent begins to give immigration assistance otherwise than on a non-commercial basis, rather than, for example, once they have completed the giving of that assistance.  See item 2 of this Schedule in relation to the meaning of the word begins .

 

Item 2             Subsection 312(3)

 

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

 

274.           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.

 

275.           New subsection 312(3) states that the terms begins , non-commercial application charge and non-commercial basis that are used in paragraph 312(1)(ea) have the same meaning as in the Charge Act (as amended by the Rates of Charge Bill).

 

276.           New subsection 312(3) ensures that the terms are defined consistently with the terms in the Charge Act (as amended by the Rates of Charge Bill), directing the reader to determine when a registered migration agent must notify the MARA in respect of events occurring in new paragraph 312(1)(ea) by reference to the Charge Act.

 

 

Part 2 - Application of amendments

 

Item 3             Application of amendments made by Part 1

 

277.           This item confirms that the amendments made by Part 1 of this Schedule apply in relation to a current period of registration that started on or after the commencement of this Schedule and to an event mentioned in paragraph 312(1)(ea) of the Migration Act (as amended by Part 1 of this Schedule) occurring on or after the commencement of this Schedule.  This ensures that the changes are applied prospectively.

 

 

SCHEDULE 6 - Other amendments

 

Background

 

278.           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 sections 501C or 501CA is included in the definitions of immigration assistance and makes immigration representations for the purposes of Part 3 of the Migration Act.

 

Part 1 - Amendments

 

Migration Act 1958

 

Item 1             After subsection 276(2A)

 

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

 

280.           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 the Minister’s power under subsections 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.

 

281.           This item also inserts a note to new subsection 276(2B) which explains that sections 501C and 501CA provide for the revocation of decisions to refuse or cancel visas on character grounds.

 

282.           The effect of the amendments made by this item 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 that section).

 

Item 2             Subsection 276(3)

 

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

 

Item 3             At the end of subsection 282(4)

 

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

 

285.           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 revoke a decision to refuse to grant, or to cancel, a visa (whether or not the decision relates to that person).

 

286.           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 revoke a decision to cancel a visa (whether or not the decision relates to that person).

 

287.           The effect of these amendments (together with those made by item 1 of this Schedule) 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 sections 501C or 501CA.  If a person makes such representations without being registered as a migration agent, they commit an offence under section 280 (unless they are subject to one of the exemptions under that section) .

 

Item 4             Subsection 289(4)

 

288.           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 of amendments made by Part 1

 

289.           This item provides that the amendments of section 276 of the Migration Act made by Part 1 of this Schedule apply in relation to immigration assistance (within the meaning of Part 3 of the Migration Act as amended) if that assistance is given on or after the commencement of this Schedule. 

 

290.           Further, this item provides that the amendment of section 282 of the Migration Act made by Part 1 of this Schedule applies in relation to making immigration representations (within the meaning of that section of the Migration Act as amended) if those representations are made on or after the commencement of this Schedule.

 

291.           This item ensures that the amendments made by Part 1 of 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 2019

 

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 2019 (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 partially 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 1 will remove unrestricted legal practitioners from the regulatory scheme that governs migration agents and allow eligible restricted legal practitioners to be both registered migration agents and restricted legal practitioners for a period of up to two years, with a possibility of extension.
  • 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 is a part of the Department of Home Affairs, and will remove references to the appointment of the Migration Institute of Australia.
  • Schedule 4 will amend the Migration Act 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.
  • Schedule 5 will amend the Migration Act to require registered migration agents to notify the MARA, within a specified period, if they have paid the non-commercial application charge in relation to their current period of registration but give immigration assistance otherwise than on a non-commercial basis.
  • Schedule 6 will amend the Migration Act 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 ‘makes 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 partially 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 partial 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 partially 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.

 

New section 289B will prevent unrestricted legal practitioners and restricted legal practitioners who are not eligible from registering as migration agents. Under 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 an eligible restricted legal practitioner .

 

New sections 333, 333A, 333B, 333C, 333D and 333E set out transitional arrangements in relation to Australian legal practitioners moving out of the MARA regulatory scheme, effective from the commencement of new Division 8 of Part 3 of the Migration Act. This includes the cessation of the registration period of a migration agent who is also an unrestricted legal practitioner immediately before commencement, transitional arrangements for persons who were restricted legal practitioners immediately before commencement, and arrangements for registration applications that were made immediately before commencement .

 

 

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 may make an application for registration as a migration agent is prescribed in delegated legislation, rather than specified on the face of the Act.

 

 

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 Office of the MARA into the Department. Schedule 3 will amend or repeal such redundant references within Part 3 of the Migration Act.

 

New section 315 will be inserted to provide that the MARA 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 Part 3 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 288B and state that an applicant 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: Fees and charges 

 

Schedule 5 amends paragraph 312(1)(ea) of the Migration Act to require a migration agent, who has paid the non-commercial application charge in relation to the agent’s current period of registration, to notify the MARA if they begin to give immigration assistance otherwise than on a non-commercial basis during that period.

 

Subsection 312(3) will also be amended to provide that certain terms used in paragraph 312(1)(ea) have the same meaning as in the Migration Agents Registration Application Charge Act 1997 .

 

The amendments made by Schedule 5 will enable the MARA to calculate, based on the formula in the Migration Agents Registration Application Charge Act 1997 , a pro-rata adjusted charge for the remainder of the agent’s registration period, starting from the first day on which the agent begins to give 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 ‘makes immigration representations’ for the purposes of Part 3 of the Migration Act.

 

 

Human rights implications

 

The Bill engages the following rights:

 

·          Article 2 of the International Covenant on Civil and Political Rights (ICCPR), the right to be free of discrimination and responsibility of State Parties to give effect to the rights in the Covenant;

·          Article 26 of the ICCPR, right to equal protection before the law;

·          Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the right to work.

 

Schedule 1

 

Freedom from discrimination and right to equal protection before the law

 

As this amendment prevents some 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 Articles 2 and 26 of the ICCPR as the provision of the eligible period (which may be extended) 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 allowing them time to either 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 commencement of the relevant provisions of the Bill, their unrestricted practising certificates will allow them to provide immigration assistance in connection with legal practice. 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.”

General Comment No.18 of the UN Committee on Economic, Social and Cultural Rights states:

“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 amendment will positively engage the right to work under Article 6(1) of the ICESCR because they allow for an eligible period for lawyers who hold restricted practising 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 allowing them time to either 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 the commencement of the relevant provisions of the Bill, their unrestricted practising certificates will allow them to continue to provide immigration assistance in connection with legal practice. 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

 

The Bill is compatible with human rights because it promotes the right to equal protection before the law, the right to practise civil and political rights free from discrimination as well as the right to work by ensuring legal practitioners have the opportunity to respond to the amendments and continue to provide immigration assistance in connection with legal practice.

 

 

 

 

The Hon Jason Wood MP, Assistant Minister for Customs, Community Safety and Multicultural 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 2018, made under the Legal Practitioners Act 1981 (SA); Legal Profession 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 2018 , made under the Legal Practitioners Act 1981 (SA); Legal Professions Act 2007 (Tas); Legal Profession Uniform Law Application Act 2014 (Vic); Legal Profession Act 2008 (WA).