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CONTENTS
Migration Legislation Amendment (Migration Agents) Bill
1997
Date Introduced: 1 October 1997
House: House of Representatives
Portfolio: Immigration and Multicultural
Affairs
Commencement: Subject to the provisions below,
commencement is immediately before 21 March 1998.
- Items 67 and 68 of Schedule 1 commence upon Royal Assent;
- Part 3 of Schedule 1 commences on 21 March 1998 if the
Public Service Act1997 commences before that day or
otherwise when that Act commences;
- Schedule 3 (apart from Parts 3-5) commences on 21 January
1999;
- Part 3 of Schedule 3 commences on 21 February 1999; and
- Parts 4 and 5 of Schedule 3 commence on 21 March 1999.
To create a Migration Agents Registration Authority to
administer the scheme for regulating the immigration assistance
industry and related matters.
Prior to 1992, the immigration advice industry was largely
unregulated.There were some protective provisions in the then
Migration Act 1958, however, these offered little
protection to consumers and targeted only specified examples of
unsatisfactory conduct by advisers and even then offered only a
limited range of sanctions.There were allegations of unqualified
migration advisers giving poor or negligent advice and charging
vulnerable clients exorbitant fees for that advice.
The Migration Agents Registration Scheme (MARS) was established
in 1992 by the Migration Amendment Act (No. 3) 1992.MARS
was a reaction by the then Labor Government to complaints about
unscrupulous conduct and incompetent advice being given by people
holding themselves out to be experts in migration.The market in
migration advice was found to be deficient in that consumers were
exploited and often asked to pay enormous costs for services that
were incompetent or inappropriate.Recipients of migration advice
were seen as a particularly vulnerable group.Many of them were not
skilled in English and were unaware of avenues of redress when poor
or unethical service was rendered to them.In addition, there was an
imbalance of power between the adviser and the client.This meant
that the clients often had difficulties establishing that they had
been given bad advice.For example, given that the average time
taken for processing a visa application is reasonably lengthy it is
hard for a client to tell whether their adviser has done all that
is required or whether they have either failed to lodge an
application or lodged an incomplete application.In addition, much
of the work undertaken was in the nature of a one-off advice or a
single case and so consumers were not able to take their business
elsewhere after unsatisfactory service.
TheMAR scheme's main features include:
- registration for would-be providers of immigration advice;
- a code of conduct for registered agents;
- procedures for investigating complaints against agents;
- processes for suspending and deregistering agents; and
- criminal sanctions for unregistered practice.(1)
The scheme was originally established for three years, with a
government commitment to evaluate after two. It has since had
temporary extensions of up to twelve months from both Coalition and
Labor governments.
The scheme is administered by the Migration Agents Registration
Board and the Secretary of the Department of Immigration and
Multicultural Affairs. The Secretary, or his/her delegate, is
largely responsible for processing non-controversial applications
which comprise approximately 80 per cent of the total applications.
The board deals with applications referred to it by the Secretary,
and monitors, investigates, and takes disciplinary action against
registered agents.
The scheme has been reviewed twice.In 1995, the Joint Standing
Committee on Migration produced a report "Protecting the
Vulnerable? The Migration Agents Registration Scheme". More
recently a taskforce within the Department of Immigration and
Multicultural Affairs, guided by an outside reference group
undertook a review. The departmental review reported in March 1997
and many of its recommendations are picked up by this legislation
and the associated bills.The review did find that MARS had
"provided a measure of consumer protection" and that it had "not
adversely affected competition in the migration advice market".
The major recommendation was to move away from government-backed
regulation, to industry self-regulation. In the Bills before
parliament, this is to be overseen by the Migration Institute of
Australia. Other main recommendations included:
- the need to improve competency standards with structured
courses and continuing education;
- maintaining the requirement for legal practitioners giving
immigration advice to be registered as migration agents;
- adopting appropriate transitional arrangements to enable the
industry to move towards self-regulation.
The key issues are:
- whether self-regulation is appropriate for an industry with
vulnerable clients, many of whom don't speak English, who will have
difficulty judging the standard of service provided, and who are
unlikely to be able to influence the market (towards the more
capable service providers) because their business is largely
one-off;
- whether lawyers should be subject to the same disciplinary
procedures as other immigration advisers - or whether allegations
against them should be referred to their own legal disciplinary
bodies;
- whether travel agents should be exempt in some circumstances
from regulatory requirements;
- whether community based immigration advisers providing help on
a voluntary basis should be forced to pay a registration fee, and
if so, whether they should pay the same registration fee as those
advising for profit;
- whether there should be a two-tiered approach to registration
fees, with agents/advisers handling under a certain number of cases
per year, (currently five or less) being charged one fee (currently
$110) and those handling above that number, a much more substantial
fee (currently $1 080).
These issues are discussed briefly below.
Is self-regulation appropriate?
Self-regulation is a low cost option for addressing regulatory
problems. The Joint Committee report notes that in general:
The application of self-regulatory codes will depend on the
suitability and maturity of a particular industry.It is generally
considered that self-regulation is inappropriate where 'enforcement
mechanisms are inadequate'.In contrast, self-regulation is more
effective where there are mature, concentrated markets or where
there is the propensity for consumers to make repeat
purchases.(2)
It has been argued that consumers of immigration advice are
seldom in the position to make "repeat purchases" and that they are
particularly vulnerable given that they often lack the language
skills to make a complaint or realise that the service given to
them was incompetent etc.
Recommendations 7-9 of the March 1997 report state that the aim
of regulatory change should be to move towards self-regulation but,
noting the consumer protection concerns, this may not immediately
achievable and that transitional arrangements should be made to
assist in the move.
Self-regulation has been attempted in other industries and then
tempered by the introduction of independent bodies overseeing the
industry.For example, the banking and telecommunications
ombudsmen.In addition the legal services industry is frequently the
target of criticism because it is a self-regulated industry.
Should lawyers have to register?
Legal Practitioners are the largest single class of migration
agents and reportedly provide nearly 60% of all immigration
assistance.Legal Practitioners have lobbied in the past to be
exempted from the registration requirements.The Law Council of
Australia have argued that "practising lawyers are already subject
to greater obligations in professional and financial standards than
the registration scheme imposes" and therefore pressed for them to
be exempted from the scheme.(3) Mr David Castle, part of the Law
Council of Australia's task force on migration agents also argued,
in 1994, that the scheme would effectively prevent solicitors,
including country and suburban solicitors from giving any advice in
the occasional migration case that might occur in their
practises.(4)
The prohibition against legal practitioners, who were not
registered as migration agents, from giving immigration assistance
was challenged in the High Court case of Cunliffe and
Another v The Commonwealth of Australia [1993-94] 182
CLR 272.The legislation was challenged by two legal practitioners
partly on the basis that it infringed their constitutionally
implied freedom of communication about matters relating to the
Commonwealth Government. The majority of the High Court upheld the
legislation.Mason CJ, however, dissented and felt that "because
legal practitioners already satisfy certain standards to gain
admission" the legislation was "disproportionate to the legitimate
end sought to be achieved and...[was] not reasonably
appropriate...and ... therefore invalid".(5)However, by a majority
of 4-3 the legislation was upheld on this point.
The Joint Committee on Migration, having considered these
issues, recommended that, subject to certain exceptions:
lawyers continue to be required to register as migration agents
in order to provide immigration assistance.(6)
This recommendation was accepted by the then Labor Government
response.
Travel Agents
The May 1995 Review and the March 1997 Review both received
submissions from the Inbound Tourism Organisation of Australia
arguing that travel agents were technically putting themselves in
breach of the Migration Act 1958 by "providing basic
information to clients about visas when selling travel
services"(7).An exemption was sought to exclude this sort of advice
when it was provided without charge and incidental to the main
service.
The May 1995 Report noted these concerns but assessed that the
requirement of the registration scheme was aimed "deliberately at
ensuring that immigration advice is accurate and competent, whether
or not such advice is given free of charge or ancillary to a
principal business"(8).The Committee also noted that "the
consequences of wrong or inaccurate advice can result in
unnecessary hardship and expense".
Should Voluntary Organisations have to pay the fee?
The Bill proposes to charge a registration fee for community
workers giving immigration advice.This may cause hardship to some
volunteer bodies as they will not be able to afford the
registration fee and will have to stop giving advice. Volunteer
bodies already face significant costs such as the need to have
up-to-date legislation and regulations which can cost about $500 a
year.However, as noted above wrong immigration advice can cause
hardship and expense to people and therefore there should be
protections to ensure a high standard of immigration assistance.A
solution to this could be to require volunteer bodies to register
(and comply with the continuing education requirements etc) but
exempt them from the fee, however, this is not in the Bill.
Should there be a two-tiered approach?
The argument is that many lawyers, for example, only give out
immigration advice in the odd case or two that occurs in their
practice and so they should not be asked to pay the full
registration fee. In the past, there was a mechanism for people to
register as migration agents for a reduced fee if they were
advising less than 5 clients in the year.However, this will be
abolished by the Migration Agents Registration Application
Charge Bill 1997.One effect is that the full fee will operate
as a significant disincentive for people to provide migration
advice on an ad hoc basis.Although this may result in those people
who do register as migration agents as being "more expert".
Other Matters
The Bill provides very little detail about how the Migration
Institute of Australia (the MIA) will exercise the power to
self-regulate the industry. There appears to be no requirement for
the MIA to report on the two-year scheme.
The Bill does not provide expressly for any rules about the
duties of, protections of, or accountability of the MIA in its
capacity as the administering body.In addition, MARS was previously
administered by the Department of Immigration and Multicultural
Affairs and therefore, given the size and resources of its
predecessor, it is debatable whether the MIA has the infrastructure
to be able to effectively administer a self-regulatory regime.
There do not seem to be comprehensive transitional provisions in
the Bill.
The move to have migration agents update their skills is
generally seen as a positive step.
The fact that the Migration Agents Registration Board ran at a
loss raises concerns about the practicability of the scheme to now
run on a self-funded and self-regulated basis.Mr Matthew Beckmann,
a solicitor practising in the migration field and a registered
migration agent, stated that:
There is a real financial problem in that the previous Migration
Agents Registration Board (MARB) consistently ran at a loss.In
order for the scheme to be viable for the MIA, it has foreshadowed
that it is likely to charge registration fees of all migration
agents, even those who presently hold an exemption because they do
not charge for their services (these are largely community and
voluntary workers).The practical consequence is ...that people will
withdraw from giving immigration assistance leaving the
non-business migration sector either underresourced or particularly
prone to exploitation. ...no doubt there will be reservations as to
the degree to which [MIA] are capable of properly screening
applicants for registration or adequately pursue complaints brought
against migration agents.(9)
Item 13 amends section 276 so as to clarify
what is meant by "immigration assistance" for the purposes of the
Act.The proposed amendment will ensure that clerical work,
translation services or simply advising someone that they should
apply for a visa will not be immigration assistance for the
purposes of the Act.This should go part of the way to alleviating
the confusion currently concerning the advice by travel agents.The
Bill makes it clear that merely informing someone that they will
need to apply for a visa is not immigration assistance.Travel
agents are not, however, exempted from the registration requirement
and therefore will be in breach of the provisions if they give more
substantial advice without being registered as migration
agents.
Item 21 amends section 277 so as to clarify
what constitutes immigration legal assistance by a
lawyer.Administrative items such as preparing or lodging
sponsorship forms does not qualify as immigration legal
assistance.
Item 32 The existing provisions provided for
publication of a notice of intention to register in the Government
Gazette and allowed 6 weeks after publication for objections to be
raised.This is being reduced by the Bill to 10 days and there is no
requirement to publish in the Government Gazette.Mr Matthew
Beckmann(10), a solicitor practising in the migration field and a
registered migration agent, argues that publication in an obscure
journal could be satisfactory under the Bill.Mr Beckmann further
argued that 10 days seems to be a very short objection period given
that someone must see the publication and then respond.Allowing for
postage times and possibly the fact that a complainant may not have
English as their first language, that makes the lodging of an
objection significantly more difficult than the current period of 6
weeks.
Item 35 replaces the sections of the Act
dealing with the registration of applicants by the Migration Agents
Registration Board.The new provisions will require the Migration
Agents Registration Authority (MARA) to be satisfied that the
applicant is a person of integrity and a fit and proper person to
hold registration, with the requisite qualifications as set out in
the regulations.The restrictions on who can apply prevent:
- persons with relevant criminal convictions (other than spent
convictions);
- minors;
- person's who have had their registration cancelled in the past
five years or their application for registration refused in the
past year; and
- persons who are not Australian citizens, permanent residents or
New Zealand citizens;
from being registered.
The existing legislation does not define "integrity" or what is
meant by the term "fit and proper person" and it has been
criticised on this basis. The Joint Committee found that the lack
of these definitions together with the absence of any legislative
definition of the concept of "sound knowledge of migration
procedure" was "unsatisfactory".Recommendation 17 of their report
argued that these terms should be "defined specifically, with
legislative guidance to be given on the criteria for determining
whether an applicant for registration is a person of integrity, is
a fit andproper person to provide immigration assistance and has
sound knowledge of migration procedure."(11) However, this
recommendation was not accepted by the then Labor Government as it
was felt that:
The criteria can be explained in information pamphlets and
application forms but should not be defined in legislation in such
a way as to limit the scope for the Migration Agents Registration
Board to make a considered assessment of the character and
suitability of the applicant taking into account all relevant
considerations.(12)
The Bill does not provide that the material lodged by a person
objecting to a person's intention to register as a migration agent
be grounds upon which the Authority may refuse to register a
person.The Authority is required to have regard to the objections
but it is not expressly provided in the Bill that the Authority can
then use that as a ground for refusing registration.
Item 40 amends subsection 302(1)(b) of the Act
which deals with the automatic deregistration of migration agents
in designated circumstances.The amendment will substantially reduce
the period of time by which annual renewal fees must be paid before
the person is automatically deregistered.Currently the Board must
allow 2 months but as a result of the proposed amendments the
Authority will only allow 2 weeks for the renewal fee to be
paid.
Item 45 replaces existing section 305 with a
similar provision that refers to the Authority rather than the
Board. The regulations will prescribe how statements by the
Authority (relating to decisions to cancel or suspend registration
and the reasons for the decision) are to be published, after all
appeals to the Administrative Appeals Tribunal are concluded or the
time limit for making such appeal has expired.
Item 48 replaces sections 307 and 308 (which
deal with the investigatory powers of the Board) with new section
308.The new provision refers to the Authority rather than the Board
and is substantially the same.The proposed provision expressly
provides that a person will not be excused from giving information
or providing a document to the Authority if to do so would tend to
incriminate the person.Nevertheless, proposed subsection 308(4)
prevents that information or document from being admissible in
evidence against the person for all criminal proceedings except
those for obstructing or hindering a person exercising powers under
the Act.
Items 24 & 50 replace monetary penalties
with the equivalent reference to penalty units.Under the section
4AA of the Crimes Act 1914 one penalty unit is currently
$110.
Item 52 is consistent with item 40 above in
that information that used to be required within 2 months of
renewal of registration must now be provided within 2 weeks. In
addition, there is currently a two-tiered approach to registration
fees (under the Migration Agents Registration (Renewal) Levy
Act 1992 which will be repealed by the Migration Agents
Registration Renewal Charge Bill 1997) with agents advising
less than 5 clients annually paying a substantially reduced
fee.This will be abolished and accordingly the existing requirement
to advise at the time of registration details of the estimated
extent of proposed immigration assistance will also be
abolished.
Item 55 allows a person who received and paid
for immigration advice without first receiving a statement of
services to recover the amount paid as if it were a debt due to the
person.
Item 57 will replace existing section 315 with
a provision that allows the Minister to appoint (or revoke) in
writing the Migration Institute of Australia Limited as the
Migration Agents Registration Authority.This means that MIA will be
able to exercise all powers and functions of the Authority.
Item 61 replaces sections 317 to 332 which deal
with the Board with proposed sections 317 to 321 which deal with
the Authority.The Authority will be able to exercise general
powers, refer people to mediation (in the case of complaints) and
refer complaints about lawyers who are migration agents to the
appropriate Law Society for discipline.Proposed section 321 creates
an exemption to the Privacy Act 1988 to allow the
Authority (or the MIA if the Minister has appointed it to act) to
disclose personal information in certain cases.
Item 62 inserts Division 6A which provides that
regulations may be made for the payment and recovery of application
and renewal fees.
Items 67 to 79 include the transitional
provisions for the phase out of the current scheme and the
introduction of the new registration scheme.There is relatively
little detail in the transitional provisions.
Schedule 3 provides for the continuing
education of registered migration agents.Whilst there is no detail
in the Bill about what sort of continuing education commitment will
be required, the general move towards ensuring that migration
agents keep up-to-date with changes in the migration law is a
positive step.
- Joint Standing Committee Report, Protecting the
Vulnerable? The Migration Agents Registration Scheme, May
1995.
- Protecting the Vulnerable? The Migration Agents
Registration Scheme Report of the Joint Standing Committee on
Migration (May 1995), p 16.
- Media Release, Law Council of Australia, 12 October 1994.
- Reported by Mark Lawson, Australian Financial Review, 18
November 1994.
- Per Mason CJ Cunliffe and Another v The
Commonwealth of Australia [1993-94] 182 CLR 272 at 304. Their
Honours Deane & Gaudron held that the provisions restricting a
lawyer from giving immigration advice etc during certain court
proceedings were invalid.
- Recommendations 3, 5, 6 and 13 of the Protecting the
Vulnerable? The Migration Agents Registration Scheme Report of
the Joint Standing Committee on Migration (May 1995), p xxi.
- Review of the Migration Agents Registration Scheme
(March 1997) Report of the Department of Immigration and
Multicultural Affairs, p 16.
- Protecting the Vulnerable? The Migration Agents
Registration Scheme Report of the Joint Standing Committee on
Migration (May 1995), p 92.
- Personal conversation with Mr Matthew Beckmann, Solicitor and
Migration Agent, 14 October 1997.
- Personal conversation with Mr Matthew Beckmann, Solicitor and
Migration Agent, 14 October 1997.
- Joint Standing Committee Report, Protecting the
Vulnerable? The Migration Agents Registration Scheme, May 1995
p xxx.
- Schedule of Response to the Report of the Joint Standing
Committee on Migration.
Susan Downing
29 October 1997
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