Bills Digest No. 71   1997-98 Migration Legislation Amendment (Migration Agents) Bill 1997


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WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History

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.

Purpose

To create a Migration Agents Registration Authority to administer the scheme for regulating the immigration assistance industry and related matters.

Background

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)

Main Provisions

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.

Endnotes

  1. Joint Standing Committee Report, Protecting the Vulnerable? The Migration Agents Registration Scheme, May 1995.
  2. Protecting the Vulnerable? The Migration Agents Registration Scheme Report of the Joint Standing Committee on Migration (May 1995), p 16.
  3. Media Release, Law Council of Australia, 12 October 1994.
  4. Reported by Mark Lawson, Australian Financial Review, 18 November 1994.
  5. 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.
  6. 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.
  7. Review of the Migration Agents Registration Scheme (March 1997) Report of the Department of Immigration and Multicultural Affairs, p 16.
  8. Protecting the Vulnerable? The Migration Agents Registration Scheme Report of the Joint Standing Committee on Migration (May 1995), p 92.
  9. Personal conversation with Mr Matthew Beckmann, Solicitor and Migration Agent, 14 October 1997.
  10. Personal conversation with Mr Matthew Beckmann, Solicitor and Migration Agent, 14 October 1997.
  11. Joint Standing Committee Report, Protecting the Vulnerable? The Migration Agents Registration Scheme, May 1995 p xxx.
  12. Schedule of Response to the Report of the Joint Standing Committee on Migration.

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29 October 1997
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