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2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AGENTS REGISTRATION APPLICATION CHARGE
AMENDMENT (RATES OF CHARGE) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the Assistant Minister for Immigration and Border Protection,
the Hon. Alex Hawke MP)
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MIGRATION AGENTS REGISTRATION APPLICATION CHARGE
AMENDMENT (RATES OF CHARGE) BILL 2017
OUTLINE
The Migration Agents Registration Application Charge Amendment (Rates of Charge)
Bill 2017 (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 registration 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.
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Background
1. 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 2017. These amendments also complement amendments proposed to be
made to the Migration Agents Registration Application Charge Regulations 1998 (the
Charge Regulations).
2. Regulation 5 of the Charge Regulations allows a person to pay a lower
registration application charge (the non-commercial charge) where that person meets two
criteria. These criteria are if the person acts solely on a non-commercial or non-profit
basis, and if the person acts as a member of or a person associated with an organisation
that operates in Australia solely on a non-commercial or non-profit basis.
3. Relevantly, section 10 of the Charge Act currently imposes an adjusted charge in
relation to registered migration agents who have paid the non-commercial charge but
have given immigration assistance on a commercial basis (at any time during their
registration period).
4. The policy intention is that the higher, commercial application charge should be
the default charge payable by any applicant for registration as a migration agent. The
exception to this default position is where the applicant can demonstrate that they are
eligible to pay the non-commercial charge. It is intended that an applicant for registration
as a migration agent should only be eligible to pay the non-commercial charge if they
meet the criteria described at paragraph 2 above, and if they give immigration assistance
solely as a member of, or a person associated with, an organisation that operates in
Australia solely as a charity or for the benefit of the Australian community. Amendments
to the Charge Regulations are proposed to be made to achieve these outcomes.
5. To meet this intention, the Charge Bill amends section 10 of the Charge Act so
that, instead of referring to when a person gives immigration assistance on a commercial
basis, it refers to when a person gives immigration otherwise than on a non-commercial
basis.
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SCHEDULE 1 - Rates of charge
Part 1 - Amendments
Migration Agents Registration Application Charge Act 1997
Item 1 Part 2 (heading)
6. 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.
Item 2 Section 3
7. 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, 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
8. This item inserts a range of definitions into section 3. These definition are
currently contained in other provisions of the Charge Act. For example, this item inserts
the definition of immigration assistance into section 3. Currently, the definition of
immigration assistance is contained in subsection 9(1), and the defined term is used for
the purpose of Part 3 of the Charge Act.
9. The effect of this item, in conjunction with item 2, is that all of the definitions that
are currently contained in different Parts of the Charge Act are now all contained in
section 3, and are used for the purpose of the Charge Act in its entirety.
10. This item also inserts the new defined terms non-commercial application charge
and non-commercial basis.
11. 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 set out under regulation 5 of the Charge Regulations. 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.
12. The term non-commercial basis reflects the proposed wording of amended
regulation 5 of the Charge Regulations. In particular, it provides that in addition to
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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.
13. The term is necessary to determine when a person becomes liable to pay an
adjusted charge under section 10. Specifically, a person will become liable to pay the
adjusted charge if they have paid the non-commercial application charge, described at
paragraph 11 above, but then give immigration assistance otherwise than on a non-
commercial basis.
Item 4 After section 3
14. This item inserts a heading to Part 2 of the Charge Act, which is "Part 2--
Imposition of charge on registration applications".
15. 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)
16. 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
17. This item repeals sections 9 and 10 and substitutes new section 10.
18. Subsection 9(1) is no longer required because the defined terms contained therein
are now contained in section 3 (see item 3 for more detail). 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 work done by subsection
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9(3) is now done by the definition of remaining period in new subsection 12(1), inserted
by item 7.
19. 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 regulation 4 of the
Charge Regulations is the default charge, unless the person gives immigration assistance
on a non-commercial basis.
20. New section 10 also refers to the new defined term 'non-commercial application
charge', consequential to item 3. In addition, new section 10 is structured slightly
differently to current section 10, to reflect modern drafting practices.
Item 7 Subsection 12(1)
21. 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.
22. 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 "general charge", and the second is that "paid fee" has been replaced
with "paid non-commercial application charge". The terms general charge and paid
non-commercial application charge are set out in new subsection 12(1).
23. The definition of general charge refers to a charge imposed under Part 2 of the
Charge Act that would have been payable by the agent in question under regulation 4 of
the Charge Regulations if that regulation had applied in relation to his or her current
registration period. This means that the general charge is the higher charge set out under
regulation 4 of the Charge Regulations, which the agent would have been required to pay
if they had not been eligible to pay the lower charge set out under regulation 5.
24. The definition of paid non-commercial application charge simply means the
non-commercial application charge as actually paid by the agent in question in relation to
his or her current registration period.
25. This item also amends the definition of remaining period such that it now refers
to the first day on which the agent in question gives immigration assistance otherwise
than on a non-commercial basis. It also refers readers to the regulations prescribed for
the purposes of paragraph (a) of the definition of remaining period.
26. These changes reflect the policy intention that the higher charge set out under
regulation 4 of the Charge Regulations is the default charge, unless the person gives
immigration assistance on a non-commercial basis.
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Part 2 - Application of amendments
Item 8 Application of amendments
27. Subitem 8(1) provides that the amendments made by this Schedule apply in
relation to the imposition of a charge under Part 3 on or after commencement of this
Schedule, and to a remaining period whether that period starts before, on or after
commencement. The effect of this is that a currently registered migration agent will be
required to pay an adjusted charge under section 10 if he or she paid the general charge
and began giving immigration assistance otherwise than on a non-commercial basis prior
to commencement.
28. This is consistent with the policy intention, which is that those agents who are
registered on a non-commercial basis at the time that the amendments commence should
only be able to continue to provide services on a non-commercial basis. Should they
commence. If the status of the agent changes whereby the agent begins to give
immigration assistance for fee or reward at some time during their current registration
period, the policy intention is that the agent should be liable to pay the adjusted charge
under section 10 of the Charge Act, whether or not that immigration assistance was given
before or after commencement.
29. Subitem 8(2) provides that the amendments made by this Schedule do not apply in
relation to an agent if he or she was already liable to pay a charge under Part 3 of the
Charge Act in relation to his or her current registration period prior to commencement.
This means that, where a person has already become liable to pay an adjusted charge,
they will not become liable again under this item.
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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 2017
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the changes
The Migration Agents Registration Application Charge Amendment (Rates of Charge)
Bill 2017 (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 registration 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 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 a lower,
non-commercial 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 contained therein. In addition, the term "commercial
application fee" has been replaced with "general charge", and the second is that "paid
fee" has been replaced with "paid non-commercial application charge". The term
general charge is the higher charge set out under regulation 4 of the Charge Regulations,
which the agent would have been required to pay if they had not been eligible to pay the
lower charge set out under regulation 5. The term paid non-commercial application
charge simply means the non-commercial application charge as actually paid by the
agent in question in relation to his or her current registration period.
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This definition of remaining period in subsection 12(1) is also amended such that it now
refers to the first day on which the agent in question gives immigration assistance
otherwise than on a non-commercial basis.
This Bill also makes consequential amendments to sections 9 and 10. These changes
reflect the policy intention that the higher charge set out under regulation 4 of the Charge
Regulations is the default charge, unless the person gives immigration assistance on a
non-commercial basis.
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 Alex Hawke MP, Assistant Minister for Immigration and Border
Protection