Title Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019
Database Explanatory Memoranda
Date 24-08-2020 12:46 PM
Source House of Reps
System Id legislation/ems/r6446_ems_253afc4f-5dab-4468-bc1f-1c471db7a2f5


Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019

 

 

2019

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

MIGRATION AGENTS REGISTRATION APPLICATION CHARGE AMENDMENT (RATES OF CHARGE) BILL 2019

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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

 

 

MIGRATION AGENTS REGISTRATION APPLICATION CHARGE AMENDMENT (RATES OF CHARGE) BILL 2019

 

OUTLINE

 

The Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019 (the Bill) amends the Migration Agents Registration Application Charge Act 1997 (the Charge Act).  The amendments in the Bill ensure that a person who paid the non-commercial application charge in relation to their current period of registration, but gives immigration assistance otherwise than on a non-commercial basis, is liable to pay an adjusted charge.

 

FINANCIAL IMPACT STATEMENT

 

These amendments will have low financial impact.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A statement of compatibility with human rights has been prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at Attachment A.

 

 

MIGRATION AGENTS REGISTRATION APPLICATION CHARGE AMENDMENT (RATES OF CHARGE) BILL 2019

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1          Short title

 

1.                  Clause 1 provides that the short title by which this Act may be cited is the Migration Agents Registration Application Charge Amendment (Rates of Charge) Act 2019.

 

Clause 2          Commencement

 

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

 

3.                  Subclause 2(1) provides that each provision of this 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 this Act not elsewhere covered by this table will commence on the day after this Act receives the Royal Assent.

 

5.                  Table item 2 provides that Schedule 1 of this Act 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 this Act receives the Royal Assent, they commence on the day after the end of that period.

 

6.                  The note in subclause 2(1) makes it clear that the table relates only to the provisions of the Act as originally enacted.  The table will not be amended to deal with any later amendments to the Act.

 

7.                  Subclause 2(2) provides that any information in column 3 of the table is not part of this Act.  Information may be inserted in this column, or information in it may be edited, in any published version of this Act.  There is currently no information in column 3 of the table.

 

Clause 3          Schedules

 

8.                  Clause 3 provides that legislation that is 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 – Rates of charge

 

Background

 

9.                  The amendments made by this Bill should be read alongside those made to the Migration Act by Schedule 5 to the Migration Amendment (Regulation of Migration Agents) Bill 2019.  These amendments should also be considered together with the Migration Agents Registration Application Charge Regulations 1998 (the Charge Regulations).

 

10.              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.

 

11.              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 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 their registration period.

 

12.              The Bill amends section 10 and other related provisions 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 Agents Registration Application Charge Act 1997

 

Item 1             Part 2 (heading)

 

13.              This item repeals the heading of Part 2 of the Charge Act.  This is consequential to the insertion of a new heading by item 4 of this Schedule.

 

Item 2             Section 3

 

14.              This item omits the words “In this Part, unless the contrary intention appears:” and substitutes the words “In this Act:”.  This is consequential to the amendments made by item 3 of this Schedule, and reflects the fact that defined terms are used consistently throughout the Charge Act and not just for the purpose of specific Parts of the Charge Act.

 

Item 3             Section 3

 

15.              This item inserts a range of definitions into section 3.  Some of these definitions are currently contained in other provisions of the Charge Act.  This item inserts the definitions of immigration assistance and registered migration agent into section 3.  Currently, the definitions of immigration assistance and registered migration agent are contained in subsection 9(1), and the defined terms are used for the purpose of Part 3 of the Charge Act.

 

16.              This item also inserts the new defined terms begins, general charge, non‑commercial application charge and non-commercial basis.

 

17.              The term begins defines how to determine when a migration agent is considered to have started to give immigration assistance otherwise than on a non-commercial basis. The definition refers readers to regulations, which will set out the process of determining when a migration agent begins to provide immigration assistance otherwise than on a non-commercial basis.  This term is necessary to determine when a person becomes liable to pay an adjusted charged under new section 10 of the Charge Act (see item 6 of this Schedule).

 

18.              The term general charge is defined as an amount of charge imposed by Part 2 of the Charge Act that is prescribed by regulation, for the purposes of section 6, as the general charge.  By referring readers to Part 2 of the Charge Act, the definition makes it clear where the head of power for imposition of the charge is contained.

 

19.              The term non-commercial application charge is similar to the definition of non‑commercial application fee currently contained in subsection 9(1).  However, while the latter definition refers readers to a charge set out under regulation 5 of the Charge Regulations, the new definition refers readers to an amount of charge imposed by Part 2 of the Charge Act that is prescribed by regulation, for the purposes of section 6 of the Charge Act.  This makes it clear that the head of power for imposition of the charge is contained in Part 2 of the Charge Act.  The term “charge” is used instead of “fee” to reflect that the amount payable is a Commonwealth-imposed charge.

 

20.              The term non-commercial basis provides that in addition to giving 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, the organisation must also operate in Australia solely as a charity or for the benefit of the Australian community.  This reflects the policy intention that a person must work for or with a charity or an organisation that works for the benefit of the Australian community in order to be eligible to pay the lower, non-commercial application charge.  A note after this definition sets out that the term charity has the meaning given by Part 2 of the Charities Act 2013, with reference to section 2B of the Acts Interpretation Act 1901

 

21.              These terms are necessary to determine when a person becomes liable to pay an adjusted charge under new section 10 of the Charge Act.  Specifically, a person will become liable to pay the adjusted charge if they have paid the non-commercial application charge, described at paragraph 19 above, but then gives immigration assistance otherwise than on a non-commercial basis.  

 

Item 4             After section 3

 

22.              This item inserts a heading to Part 2 of the Charge Act, which is “Part 2—Imposition of charge on registration applications”.

 

23.              The new heading of Part 2 is the same as the current heading.  However, the new heading is inserted after, rather than before, section 3 of the Charge Act, which is appropriate because section 3 now contains definitions to be used throughout the Charge Act and not just for the purpose of Part 2.

 

Item 5             Part 3 (heading)

 

24.              This item repeals and substitutes the heading of Part 3 of the Charge Act.  The new heading is “Part 3—Imposition of charge on basis of status of migration agent”.  This heading more accurately reflects the work done by Part 3, which is the imposition of a charge based on whether a migration agent gives immigration assistance on a non‑commercial basis or otherwise than on a non-commercial basis.  By contrast, the current heading refers to “the status of a migration agent’s registration”, though Part 3 imposes a charge based on the type of work that a migration agent does, rather than the status of the agent’s registration.

 

Item 6             Sections 9 and 10

 

25.              This item repeals sections 9 and 10 and substitutes new section 10.

 

26.              Subsection 9(1) is no longer required because the defined terms contained therein are now contained in amended section 3 (see item 3 of this Schedule).  Subsection 9(2) is no longer required because it contains a definition of commercial basis, which has instead been replaced by a definition of non-commercial basis in amended section 3, to more accurately fulfil the policy intention of these amendments.  The definition of Charge Regulations has been removed as the term is no longer used in the amended Charge Act.  The work done by subsection 9(3) is now done by the definition of remaining period in new subsection 12(1), inserted by item 7 of this Schedule, in conjunction with the definition of begins in amended section 3.

 

27.              New section 10 is similar to current section 10.  However, while current section 10 refers to the giving of immigration assistance on a commercial basis, new section 10 refers to the giving of immigration assistance otherwise than on a non‑commercial basis.  This reflects the policy intention that the higher charge set out under the regulations which are prescribed under the Charge Act is the default charge, unless the person intends to provide immigration assistance on a non-commercial basis.

 

28.              New section 10 also refers to the new defined terms begins, non-commercial application charge and non-commercial basis, consequential to item 3 of this Schedule.  In addition, new section 10 is structured slightly differently to current section 10, to reflect modern drafting practices.

 

Item 7             Subsection 12(1)

 

29.              This item repeals and substitutes subsection 12(1), which is about how to determine the amount of charge payable under section 10 of the Charge Act.

 

30.              The formula contained in current subsection 12(1) has been replicated with two key changes in terminology.  The first is that the term “commercial application fee” has been replaced with “notional general charge”, and the second is that “paid fee” has been replaced with “paid non-commercial application charge”.  The terms notional general charge and paid non-commercial application charge are defined in new subsection 12(1).

 

31.              The definition of notional general charge refers to the amount of general charge (as defined in amended section 3) that would have been payable by the agent in question in relation to the agent’s current period of registration if the non-commercial application charge had not been payable by the agent in relation to that period.  This means that the notional general charge is the higher charge set out under the regulations which are prescribed under the Charge Act, which the agent would have been required to pay if they had not been eligible to pay the lower non-commercial application charge.

 

32.              The definition of paid non-commercial application charge simply means the amount of non-commercial application charge as actually paid by the agent in question in relation to the agent’s current registration period.

 

33.              This item also amends the definition of remaining period such that it now refers to the period that starts on the first day in the agent’s current period of the registration on which the agent begins to give immigration assistance otherwise than on a non‑commercial basis, and ends on the last day of the agent’s current period of registration.

 

34.              These changes reflect the policy intention that the higher charge set out under the regulations which are prescribed under the Charge Act is the default charge, unless the person intends to provide immigration assistance on a non-commercial basis.

 

 

Part 2 – Application of amendments

 

Item 8             Application of amendments

 

35.              Item 8 provides that the amendments made by Part 1 of this Schedule apply in relation to the imposition of charge under Part 3 of the Charge Act, as amended, in respect of a registered migration agent’s current period of registration resulting from a registration application made on or after the commencement of this Schedule.  The effect of this is that only migration agents who lodge a registration application on or after the commencement of these amendments may be required to pay an adjusted charge under amended section 10 of the Charge Act.

 

36.              This is consistent with the policy intention, which is that those agents who make a registration application on or after the time that the amendments commence and are registered on a non-commercial basis should only be able to provide services on a non‑commercial basis.  If the status of the agent changes whereby the agent begins to give immigration assistance otherwise than on a non-commercial basis at some time during their current registration period, the agent should be liable to pay an adjusted charge under amended section 10 of the Charge Act.  In addition, the status of the organisation as one that operates in Australia solely on a non-commercial or non-profit basis, and that operates solely as a charity, or for the benefit of the Australian community will be important.  If the agent’s membership or association with such an organisation ceases, or the status of such an organisation changes, the policy intention is that the agent should also be liable to pay the adjusted charge under amended section 10 of the Charge Act.

 

 

ATTACHMENT A

 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the

Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Agents Registration Application Charge Amendment (Rates of Charge) 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 Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019 (the Bill) amends the Migration Agents Registration Application Charge Act 1997 (the Charge Act).  The amendments in the Bill ensure that a person who paid the non-commercial application charge in relation to their current period of registration, but gives immigration assistance otherwise than on a non-commercial basis, is liable to pay an adjusted charge.

 

Section 3 will be amended to include a number of definitions which are currently contained in other provisions of the Charge Act. It will also be amended to include the new defined terms of begins, general charge, non-commercial application charge and non-commercial basis.  These terms, and their use throughout the Charge Act as amended by this Bill, will have the effect that a person must meet certain criteria in order to be eligible to pay the lower, non-commercial application charge.  That is, in addition to giving 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, the organisation must also operate in Australia solely as a charity or for the benefit of the Australian community.  This reflects the policy intention that a person must work for or with a charity or an organisation that works for the benefit of the Australian community in order to be eligible to pay the lower, non‑commercial application charge.

 

Subsection 12(1) will be repealed and substituted by a new subsection 12(1), which replicates the current formula with two key changes in terminology. The term “commercial application fee” has been replaced with “notional general charge”, and the second is that “paid fee” has been replaced with “paid non‑commercial application charge”.  The term notional general charge refers to the amount of general charge that would have been payable by the agent in question in relation to the agent’s current period of registration if they had not been eligible to pay the non‑commercial application charge in relation to that period.  The term paid non-commercial application charge simply means the amount of non‑commercial application charge as actually paid by the agent in question in relation to the agent’s current registration period.

 

The definition of remaining period in subsection 12(1) is also amended such that it now refers to the period that starts on the first day in the agent’s current period of the registration on which the agent begins to give immigration assistance otherwise than on a non-commercial basis, and ends on the last day of the agent’s current period of registration.

 

This Bill also makes consequential amendments to sections 9 and 10.  These changes reflect the policy intention that the general application charge is the default charge payable by any applicant, unless the person intends to provide immigration assistance on a non-commercial basis and is considered eligible to pay the non-commercial application charge. 

 

 

Human rights implications

 

The amendments in this Bill do not engage or limit any of the applicable rights, individual freedoms or discriminate against any person or groups of persons.

 

 

Conclusion

 

This Bill is compatible with human rights as it does not raise any human rights issues.

 

 

 

 

The Hon Jason Wood MP, Assistant Minister for Customs, Community Safety and Multicultural Affairs