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2002
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION AMENDMENT (MIGRATION
AGENTS) BILL 2002
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Minister for Immigration and Multicultural
and Indigenous Affairs,
The Hon. Philip Ruddock MP)
MIGRATION LEGISLATION AMENDMENT (MIGRATION AGENTS) BILL
2002
OUTLINE
Overview
1. The Migration
Legislation Amendment (Migration Agents) Bill 2002 (“the Bill”)
makes a number of amendments to the Migration Act 1958 (“the
Act”) relating to the regulation of migration agents.
2. Part 3 of
the Act provides a scheme for the regulation of persons who seek to act as
migration agents. In general terms, a migration agent is an individual who
uses, or purports to use, his/her knowledge of, or experience in, migration
procedure to give what is defined in the Act as “immigration
assistance”.
3. The amendments in the Bill change the scheme for
the regulation of migration agents by:
• providing the Migration
Agents Registration Authority (“the MARA”) with the power to
investigate complaints made against former registered migration agents and to
subsequently bar such agents from returning to the industry, for a certain
period of time, if it is satisfied that a complaint is made
out;
• including a carry-over provision for migration agents applying
for repeat registration so that they remain registered until the MARA has made a
decision on their application, but only if they apply for re-registration before
the expiry of their existing registration; and
• introducing a flexible
mechanism for further defining what kinds of activities come within the scope of
the regulatory scheme.
4. The purpose of the first amendment is to ensure
that migration agents cannot avoid the disciplinary provisions of the existing
regulatory scheme simply by deregistering or allowing their registration to
expire. This will be achieved by giving the MARA the power to start and
complete investigations of a complaint about a migration agent in relation to
his or her provision of immigration assistance even where the agent is no longer
registered (as long as the complaint is not received more than 12 months after
the registration has ceased).
5. The MARA will also have the power
(subject to certain requirements) to bar the return of former registered
migration agents to the industry for five years if it is satisfied that a
complaint about the agent’s provision of immigration assistance is made
out. This power is analogous to and will operate in a similar way to existing
provisions in the regulatory scheme which apply to the cancellation or
suspension of the registration of a migration agent.
6. The second
amendment is intended to ensure that certain migration agents are not
disadvantaged by delays in processing repeat registration
applications.
7. The final amendment is intended to, amongst other
things, allow regulations to be made to ensure that certain types of “in
house” assistance (for example – from an employer in relation to a
prospective employee) do not fall within the scope of the regulatory scheme.
FINANCIAL IMPACT STATEMENT
8. These amendments will have
minimal financial impact.
MIGRATION LEGISLATION AMENDMENT
(MIGRATION AGENTS) BILL 2002
NOTES ON INDIVIDUAL
CLAUSES
Clause 1 Short Title
1. The short title by
which this Act may be cited is the Migration Legislation Amendment (Migration
Agents) Act 2002.
Clause 2 Commencement
2. Subclause
2(1) contains a table setting out the commencement information for the Act. The
subclause also provides that each provision of the Act specified in column 1 of
the table commences, or is taken to have commenced, on the day or at the time
specified in column 2 of the table.
3. The effect of items 1, 2, 4, and 6
of the table is that the following provisions commence on the day on which the
Act receives the Royal Assent:
• Sections 1, 2 and 3 of the Act;
• Items 1, 2, 4, 6, 7, and 8 of Schedule 1 to the Act;
and
• Anything elsewhere in the Act that is not covered by the table in
subclause 2(1).
4. The effect of items 3, 5, and 7 of the table is that
items 3, 5, 9, 10, 11, 12, 13, 14, 15, 16 and 17 of Schedule 1 to the Act
commence on a single day to be fixed by Proclamation.
5. The note in
subclause 2(1) makes it clear that the table only relates to the provisions of
the Act as originally passed by the Parliament and assented to. The table will
not be expanded to deal with provisions inserted into the Act after it receives
the Royal Assent.
6. Subclause 2(2) provides that column 3 of the table
in subclause 2(1) is for additional information that may be included in any
published version of the Act but which is not part of the Act.
7. Subclause 2(3) provides that if a provision covered by item 3, 5 or 7
of the table in subclause 2(1) does not commence within 6 months of this Act
receiving the Royal Assent, then it will commence on the first day after the end
of that period.
Clause 3 Schedule(s)
8. This clause
provides that each Act 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 – Amendments
Migration Act
1958
Item 1 At the end of section 276
9. This item
inserts new subsection 276(4) at the end of section 276 of the
Act.
10. Briefly, under subsections 276(1) and 276(2), a person gives
“immigration assistance” if he or she uses, or purports to use,
knowledge of, or experience in, migration procedure to assist a visa applicant,
a cancellation review applicant or certain other persons.
11. New
subsection 276(4) provides an exception to subsections 276(1) and 276(2). It
makes it clear that a person does not give immigration assistance in the
circumstances prescribed by the Migration Regulations 1994 (“the
Regulations”).
12. New subsection 276(4) provides a flexible
mechanism to deal with specific kinds of activities that are not intended to be
captured by the regulatory scheme.
13. For example, under new
subsection 276(4) it would be possible to prescribe that specific kinds of help
given to applicants seeking visas of specified classes does not constitute
“immigration assistance” where it is given by employers to actual or
intending employees.
Item 2 At the end of section
282
14. This item inserts new subsection 282(5) at the end of section
282 of the Act.
15. In broad terms, subsection 282(4) provides that a
person “makes immigration representations” if he or she makes
representations to, or otherwise communicates with, the Minister, a member of
the Minister’s staff or the Department on behalf of a visa applicant, a
cancellation review applicant or certain other persons about specified migration
matters.
16. New subsection 282(5) provides an exception to subsection
282(4). It makes it clear that a person does not make immigration
representations in the circumstances prescribed by the Regulations.
17. New subsection 282(5) provides a flexible mechanism to deal with
specific kinds of activities that are not intended to be captured by the
regulatory scheme.
18. For example, under new subsection 282(5) it
would be possible to prescribe that specific kinds of representations made on
behalf of applicants for specified visa classes do not amount to “making
immigration representations”. This will be useful to clarify, for
instance, the status of a person in a major corporation whose paid duties
include making representations to visa decision-makers on behalf of actual or
intending employees of the corporation.
Item 3 Subsection 289(1)
19. This item makes a technical amendment to subsection 289(1) of
the Act which is consequential to the insertion of new section 292A into the Act
by item 5 of this Schedule.
Item 4 Subsection 289(4)
20. This item amends subsection 289(4) of the Act as a consequence
of the insertion of new section 300 into the Act by item 7 of this
Schedule.
21. Subsection 289(4) of the Act provides a mechanism for
determining the time at which a further application for registration by an
already registered migration agent takes effect. If not amended, subsection
289(4) could operate in conflict with new subsection 300(3), which sets out when
certain types of registration as a migration agent take effect.
22. The
amendment to subsection 289(4) made by this item is intended to resolve any
possible conflict between the two provisions.
Item 5 After section
292
23. This item inserts new section 292A after section 292 of the
Act.
Section 292A Applicant must not be registered if any barring
period has not ended
24. New section 292A makes it clear that an
applicant must not be registered if the MARA has made a decision to bar him or
her from being a registered agent for a particular period under new subsection
311A(1) (as inserted into the Act by item 9 of this Schedule) and that period
has not ended.
Item 6 Subsection 299(1)
25. This item
makes a technical amendment to subsection 299(1), which is consequential to the
insertion of new section 300 into the Act by item 7 of this
Schedule.
Item 7 After section
299
26. This
item inserts new section 300 after section 299 of the Act.
Section
300 Automatic continuation of registration
27. New section 300
provides for the automatic continuation of registration for migration agents in
certain circumstances.
28. Under new subsection 300(1), the registration
of a migration agent continues if:
• he or she has made a
registration application before the expiry of his or her existing registration;
and
• he or she has paid the registration application fee (if any) in
respect of that application; and
• the MARA has not decided the
application before his or her existing registration expires.
29. In these
circumstances, the agent’s registration is taken, by operation of law, to
automatically continue until the MARA decides the application for repeat
registration.
Application granted if no decision within a certain
period
30. New subsection 300(2) provides that, if the MARA has not
decided the registration application within 10 months of the expiry of the
agent’s registration, the application is taken to have been granted at the
end of that period.
31. This situation might occur where an agent seeks
merits or judicial review of a cancellation or suspension decision and the
decision is stayed by a review body or a court pending final determination. In
these circumstances, the MARA may consider it inappropriate to make a decision
on the repeat registration application until the outcome of the review of the
previous decision is known.
32. Taking the application to have been
granted after a period of 10 months will ensure that the normal cycles of
registration and repeat registration are maintained. It will ensure that the
repeat registration application is finalised at least 1 month before the next
cycle of repeat registration begins. Under section 301 of the Act, the MARA is
obliged to give at least 1 month’s written notice of the expiry of
registration – this is the beginning of the repeat registration cycle.
33. This will give registered agents some certainty in relation to the
period of time that their “carry-over” registration will be in
existence. It will also ensure that registered agents have the opportunity to
plan compliance with the continuing professional development requirements for
their next repeat registration application (as prescribed by section 290A of the
Act).
When registration takes effect
34. New subsection
300(3) sets out when a repeat registration application granted by the MARA or a
registration application taken to have been granted under new subsection 300(2)
takes effect. These registrations take effect at the expiry of the previous
registration and last for 12 months (as prescribed by section 299 of the Act).
35. An example of how new subsection 300(3) operates is provided at the
end of new subsection 300(3).
Item 8 Application provision –
automatic continuation of registration
36. This item deals with the
application of the amendment to the Act made by item 7 of this
Schedule.
37. Item 7 inserts new section 300 into the Act, which provides
for the automatic continuation of registration for migration agents in certain
circumstances.
38. The effect of this item is that new section 300
applies to:
• any registration application made after commencement
of this item; and
• any registration application made before the
commencement of this item if the registered agent who made the application was
still a registered agent immediately before the commencement of this
item.
Item 9 After Division 4 of Part 3
39. This item
inserts new Division 4A after Division 4 of Part 3 of the Act.
40. New
Division 4A introduces provisions for the disciplining of former registered
migration agents. Currently, a registered migration agent can frustrate the
MARA’s investigation of complaints about his or her provision of
immigration assistance by deregistering. In this way, an agent can also avoid
the disciplinary provisions of the Act which apply only to registered migration
agents.
41. This new Division ensures that migration agents cannot avoid
the investigation of complaints about them, or any subsequent disciplinary
action, simply by leaving the industry. The scheme of the Division is analogous
to existing provisions in the Act dealing with the cancellation or suspension of
registered agents.
Division 4A Disciplining former registered
agents
Section 311A Barring former registered agents from being
registered for up to 5 years
42. New section 311A allows the MARA to
bar a former registered agent from being a registered agent for a maximum period
of 5 years in certain circumstances. A former registered agent may be barred
if, after investigating a complaint about him or her in relation to his or her
provision of immigration assistance, the MARA is satisfied that the subject
matter of the complaint is made out.
43. The note to new subsection
311A(1) highlights that, before the MARA makes a decision to bar a former
registered agent, the MARA must ensure that the code of procedure found in new
section 311D (as inserted into the Act by this item) is followed.
Section 311B Notification of decision
44. New section
311B deals with the notification of a decision by the MARA to bar a former
registered migration agent from being registered for a period. It is based on,
and will operate in a similar way to section 305 of the Act, which deals with
notice of the cancellation or suspension of the registration of a registered
agent.
Notice to former registered agent
45. New subsection
311B(1) is similar to paragraph 305(1)(a) of the Act. It requires the MARA to
give written notice to a former registered migration agent of its decision under
new subsection 311A(1) to bar that agent from being a registered agent for a
certain period of time. The notice must give the reasons for the decision and
specify the period in respect of which the former registered agent is barred
from being a registered migration agent.
Publication of a statement
about decision
46. New subsection 311B(2) is similar to paragraph
305(1)(b) of the Act. It requires the MARA to publish, in the prescribed way, a
statement about its decision to bar a former registered agent under new
subsection 311A(1), including the reasons for the decision. However, this
statement need not set out the findings on the material questions of fact nor
refer to the evidence or other material on which those findings were
based.
47. The publication of a statement about a decision to bar a
former registered agent is intended to warn potential clients, members of the
community and the migration advice industry (and related professions) of the
agent’s barring from the industry.
Time of
publication
48. New subsections 311B(3) and (4) are similar to
subsections 305(2) and 305(3) of the Act.
49. New subsection 311B(3)
requires the MARA to publish the statement about its decision to bar a former
registered agent under subsection 311A(1) as soon as possible after the end of
28 days after the former agent is given written notice of the decision.
50. However, if the former registered agent applies within that 28 day
period for merits or judicial review of the decision and the decision stands at
the end of those proceedings (including any appeals), new subsection 311B(4)
provides that the statement must be published as soon as possible after the end
of those proceedings.
Section 311C Publication of additional
statement about decision
51. New section 311C deals with the
publication of additional statements about barring a former registered
migration agent from being registered for a period of up to 5 years. It is
based on, and will operate in a similar way to section 305A of the Act, which
deals with the publication of additional statements about the cancellation or
suspension of the registration of a registered migration agent.
52. New
subsection 311C(1) is similar to subsection 305A(1) of the Act. It provides a
discretionary power for the MARA to prepare a statement about a decision under
new subsection 311A(1) to bar a former registered agent from being a registered
agent and to make that statement publicly available.
Content of
statement
53. New subsection 311C(2) is similar to subsection 305A(2)
of the Act. It provides that the following may be included, set out or referred
to in a statement prepared and made public by the MARA under new subsection
311C(1):
• the contents of a statement under new subsection
311B(2);
• an extract from such a statement;
• the
MARA’s reasons for the decision;
• the MARA’s findings on
any material questions of fact;
• the evidence or any other material on
which the findings of fact were based.
54. However, new subsection
311C(3) clarifies that new subsection 311C(2) does not limit new subsection
311C(1).
How statement to be made available
55. New
subsection 311C(4) is similar to subsection 305A(4) of the Act. It provides
that the MARA may make a statement prepared under new subsection 311C(1)
publicly available in the following ways:
• by being published in
a newsletter, newspaper or periodical;
• on the Internet;
or
• in any other way.
Immunity for publishing
statement
56. New subsection 311C(5) is similar to subsection 305A(5)
of the Act. It provides immunity from an action or proceeding (whether civil or
criminal) for a person who publishes in good faith:
• a copy
of;
• a fair extract from; or
• a fair summary of;
a
statement prepared and made public under new subsection
311C(1).
Section 311D Former registered agent may make a submission
etc.
57. New section 311D is similar to sections 309 and 310 of the
Act, which apply if the MARA is considering refusing a registration application
or cancelling or suspending a registered agent’s registration. It
ensures that procedural fairness is accorded to a former registered agent who
may be subject to a decision under new section 311A barring him or her from
being a registered agent for a certain period of time.
Invitation to
make submission
58. New subsection 311D(1) is similar to subsection
309(2) of the Act. It provides that, before making a decision under new
subsection 311A(1), the MARA must give the former registered agent a written
notice:
• stating that it proposes to bar the former registered
agent from being a registered agent for a period of time and the reasons for
this decision; and
• inviting the former registered agent to make a
written submission to the MARA on the matter within 28 days after the notice is
given.
Authority to consider any submission
59. New
subsection 311D(2) provides that the MARA must consider any written submission
received within the 28 day period mentioned in new paragraph
311D(1)(b).
No submission received
60. New subsection
311D(3) is similar to subsection 310(2) of the Act. It provides that, if the
MARA does not receive a written submission, it may decide the matter on the
information before it.
Submission received
61. New
subsection 311D(4) is similar to subsection 310(3) of the Act. It provides
that, where a written submission is received by the MARA, it may decide the
matter or give the former registered agent the opportunity to appear before it
and then decide the matter.
Section 311E Authority not bound by legal
forms etc
62. New section 311E is similar to section 311 of the Act,
which applies when the MARA is considering a registration application or a
possible disciplinary action under section 303 of the Act.
63. New
section 311E applies when the MARA is considering making a decision under new
subsection 311A(1) to bar a former registered agent from being a registered
agent. In these cicrumstances, the MARA is not bound by technicalities, legal
forms or rules of evidence but must act according to substantial justice and the
merits of the case.
Section 311F Review by the Administrative Appeals
Tribunal
64. New section 311F is similar to section 306 of the Act,
which allows applications to be made to the Administrative Appeals Tribunal for
the review of MARA decisions made under Division 3 of Part 3 of the Act.
65. New section 311F provides that, subject to the Administrative
Appeals Tribunal Act 1975, a former registered agent may apply to the
Administrative Appeals Tribunal for review of a decision made by the MARA under
new subsection 311A(1).
Item 10 Paragraph
316(1)(c)
66. This item amends subsection 316(1) of the Act, which
sets out the functions of the MARA. It ensures that the MARA can investigate
complaints in relation to the provision of immigration assistance by both a
registered migration agent and a former registered agent.
Item
11 Paragraph 316(1)(d)
67. This item amends subsection 316(1) of the
Act, which sets out the functions of the MARA. It ensures that the MARA can
take appropriate disciplinary action against both a registered migration agent
and a former registered migration agent.
Item 12 After subsection
316(1)
68. This item inserts new subsections 316(1A) and 316(1B)
after subsection 316(1) of the Act.
69. New subsection 316(1A) clarifies
that the MARA may start or complete an investigation of a complaint about a
person in relation to his or her provision of immigration assistance at a time
when he or she is no longer a registered agent. This will ensure that migration
agents cannot avoid disciplinary action simply by de-registering or allowing
their registration to expire.
70. However, under new subsection 316(1B)
the MARA can only investigate a complaint about a former registered migration
agent if the complaint is received within 12 months after the agent ceased to be
a registered agent. This is intended to provide certainty for agents and former
agents and ensures that attention is given to those cases which can be most
effectively investigated.
Item 13 Section 318
71. This
items amends section 318 of the Act to ensure that if the MARA is investigating
a complaint about a person who is or was a registered migration
agent, it may refer the complainant and the person to a mediator to resolve the
matter complained of.
Item 14 Subsection 319 (1)
72. This
items amends subsection 319(1) of the Act to ensure that the MARA may refer the
conduct of a registered migration agent or a former registered migration
agent, who holds a certificate allowing him or her to practise as a lawyer,
to an authority responsible for disciplining lawyers.
Item
15 Subsection 319(2)
73. This item makes a minor amendment to
subsection 319(2) of the Act as a consequence of the amendment made to
subsection 319(1) by item 14 of this Schedule.
74. Under subsection
319(1) of the Act, the MARA may refer the conduct of a registered migration
agent, who holds a certificate allowing him or her to practise as a lawyer,
to an authority responsible for disciplining lawyers.
75. The amendment
to subsection 319(2) makes it clear that if the MARA exercises the power in
subsection 319(1), it may not take action against the registered agent under
section 303 of the Act (discretionary cancellation or suspension of
registration) in relation to the same conduct referred under subsection
319(1).
76. The effect of the note at the end of this item is that
“Conduct of registered agents” is inserted as the heading to
subsection 319(2) of the Act.
Item 16 At the end of section
319
77. This item inserts new subsection 319(3) at the end of section
319 of the Act.
78. New subsection 319(3) operates in a similar way to
subsection 319(2) of the Act (as amended by item 15 of this Schedule) which
applies to registered migration agents.
79. Under subsection 319(1) of
the Act (as amended by item 14 of this Schedule), the MARA may refer the conduct
of a former registered migration agent, who holds a certificate allowing
him or her to practise as a lawyer, to an authority responsible for disciplining
lawyers.
80. New subsection 319(3) provides that if the MARA exercises
the power in subsection 319(1), it may not take action against the former
registered agent under new subsection 311A(1) (as inserted into the Act by item
9 of this Schedule) in relation to the same conduct referred under subsection
319(1).
81. The note to new subsection 319(3) highlights that new
subsection 311A(1) allows the MARA to bar a former registered agent from being a
registered agent for a period of up to 5 years.
Item 17 Application
provision – disciplining former registered agents
82. This item
deals with the application of the amendments to the Act made by items 9 to 16
of this Schedule, which deal with the disciplining of former registered
migration agents and the powers MARA can exercise in regard to these
agents.
83. The effect of this item is that these amendments apply
to:
• any complaint about a person made after the
commencement of this item in relation to his or her provision of immigration
assistance before or after commencement of this item; and
• any
complaint about a person made before commencement of this item if the
person was a registered agent immediately before the commencement of this
item.
84. This provides scope for the MARA to take disciplinary action
against a former registered agent in relation to a complaint made about his or
her provision (before or after commencement) of immigration assistance where:
• the complaint is made after the time of commencement;
and
• the complaint is in existence at the time of commencement and the
agent was registered at the time of commencement.