Bills Digest No. 67 1999-2000 Migration Legislation Amendment (Migration Agents) Bill 1999


Numerical Index | Alphabetical Index

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
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details

Passage History

Migration Legislation Amendment (Migration Agents) Bill 1999

Date Introduced: 23 September 1999

House: Senate

Portfolio: Immigration and Multicultural Affairs

Commencement: Upon Royal Assent, except for Schedule 2, which commences on Proclamation, or 6 months following Royal Assent, whichever is the earlier.

Purpose

The Migration Legislation Amendment (Migration Agents) Bill 1999 extends the current arrangements for the regulation of the migration advice industry. The Bill also amends the Migration Act 1958 (the Migration Act) to provide more efficient methods for warning the public of the suspension or cancellation of an agent's registration. Finally, the Bill enables the Migration Agents Registration Authority to protect the rights and interests of people whose migration agent has died or has been deregistered.

Background

Regulation of the Migration Advice Industry

Regulation of the migration advice industry is not new. A regulatory scheme for migration agents was first introduced by the Immigration Act 1948, which amended the predecessor to the Migration Act. Since then scheme has undergone a number of changes and revisions, some of which have been substantial: Acts passed in 1958, 1988, 1989, 1992 and 1997 have all touched upon the regulation of the migration advice industry.

In May 1995, the Joint Standing Committee on Migration produced a report on the then existing scheme for regulation of the migration advice industry (MARS(1)), entitled 'Protecting the Vulnerable?'. In 1996-97, as part of the Commonwealth Legislative Review Program and in response to the Committee's report, the Government conducted a further review of MARS. As a result of both of these review processes, the Government decided that the migration advice industry should move to voluntary self-regulation through a period of statutory self-regulation.(2)

Voluntary self-regulation is generally understood to mean that there is no legislative framework for the industry, apart from consumer protection mechanisms such as small claims tribunals and the potential for clients to take legal action against agents under the Trade Practices Act 1974 and/or civil action for damages.(3)

Complete self-regulation remains opposed by the Government and by interested parties, including consumers, the Migration Institute of Australia (the MIA) and various community organisations, on the following grounds:

  • There is considerable potential for abuse by agents and a history in the industry of exploitative conduct, affecting both:
    • consumers, who are often in a vulnerable position because they do not speak English and because the nature of the market is such that it is not easy to discern good service providers from unscrupulous ones; and
    • the national interest, since unethical conduct on the part of agents affects the integrity of the migration and humanitarian programs.

  • At present, only 24% of registered agents are members of the industry association (the MIA), so complete self-regulation could potentially threaten the existence of the MIA, as well as lead to a decline in compliance with industry standards.
  • The migration industry is not homogeneous, in that it comprises lawyers, non-lawyers and community sector workers. Some form of structured regulation is necessary to ensure uniformity in industry standards and practices.

In view of these considerations, the Government has determined that it is necessary to retain some control of the regulatory scheme, which it does through a statutory framework.(4)

The Existing Regulatory Scheme

The existing statutory self-regulatory scheme was introduced by the Migration Legislation Amendment (Migration Agents) Act 1997. The amendments effected by that Act (contained in Part 3 of the Migration Act) allow the Minister for Immigration and Multicultural Affairs to appoint the MIA as the Migration Agents Registration Authority (MARA).

The functions of the MARA are listed in section 316 of the Migration Act, and include: maintaining a register of migration agents, investigating complaints against agents and disciplining them, as well as overseeing agents' professional development. The MIA is the main industry body, hence a scheme in which the MIA (as the MARA) carries out regulatory functions under Part 3 of the Migration Act is a statutory self-regulatory one.

The scheme became operational on 23 March 1998 when the Minister formally appointed the MIA as the MARA.(5)

Existing Regulatory Scheme to Continue

On 27 August 1999, the Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs announced that the existing arrangements for the migration advice industry will be extended until March 2003.(6) This Bill implements the decision to extend the existing arrangements.

The decision to extend the existing arrangements was made after a review of their operation, carried out by DIMA under direction from an independent Reference group.(7) At the time of preparing this digest, the report of the review process was not available.

Since this Bill concerns the powers of the MARA over migration agents, it is instructive to look at the current extent of those powers.

Powers of the MARA over Migration Agents

The powers of the MARA over migration agents are contained in Divisions 3 and 4 of Part 3 of the Migration Act. At the outset, it is important to recognise that currently the MARA only has jurisdiction over registered migration agents.

The main - indeed in the majority of cases, the only - disciplinary sanction that the MARA has against a registered migration agent is to cancel or suspend their registration. Once an agent is deregistered, he or she is no longer within the jurisdiction of the MARA.

The MARA does have power to refer the conduct of a registered agent who is also a lawyer to a body responsible for disciplining lawyers.(8) Currently, approximately 40% of registered migration agents are also lawyers.(9) In 1998, 38% of complaints received by the MARA concerned lawyers, although it does not appear that the MARA referred any of those complaints to a disciplinary body for lawyers.(10)

Procedures Following Suspension or Cancellation of Registration

Section 305 of the Migration Act requires the MARA, when cancelling or suspending the registration of an agent, to publish a statement that advises of the cancellation or suspension, explains the reasons for it, and sets out the MARA's findings on material questions of fact and other evidence. Under regulation 7 of the Migration Agents Regulations 1998, the notice is to be published in:

  • the Saturday edition of a gazetted national weekly newspaper; and
  • a weekday edition of a gazetted paper, or a gazetted ethnic press publication for an ethnic group that was a substantial part of the agent's practice, that circulates in the state or territory where the agent practised.

The Collapse of Australia's Largest Migration Practice

There is one other matter that is relevant to the background of this Bill, namely, the collapse in mid August this year of Barlow & Co, Australia's largest migration practice. The collapse left more than 3 000 people unrepresented in their dealings with the DIMA and with review tribunals and courts. The collapse also left people who had paid money for professional services in advance, out of pocket.(11)

Following the collapse, DIMA advised that it was concerned to keep the inconvenience to the company's clients to a minimum.(12) As part of 'minimising the inconvenience', this Bill contains measures designed to ensure that people whose migration agent has been deregistered, will be able to continue with their migration or review applications, without disadvantage. The measures are described in more detail below.

Main Provisions

Schedule 1

Continuation of existing regulatory scheme

Schedule 1 contains the necessary mechanical amendments to extend the operation of the existing regulatory scheme for the migration advice industry (contained in Part 3 of the Migration Act) until 21 March 2003. In short, the amendments change the expiry date for the scheme set in Division 7 of Part 3 from 21 March 2000 to 21 March 2003.

Schedule 2

More flexible and effective mechanisms to warn about the suspension and cancellation of agents' registration

Item 1 amends the section 305, which specifies the contents of the statement which the MARA must publish when suspending or cancelling an agent's registration. The item removes the requirement to publish findings on material questions of fact and other evidence on which the findings were based. It also replaces the requirement to publish the reasons for the decision to suspend or cancel, with a requirement to publish the grounds for the suspension or cancellation. (The requirement to publish reasons and findings on material questions of fact and other evidence is now a discretion: see new section 305A, discussed below).

The Explanatory Memorandum explains that this is an efficiency enhancing measure.(13) No doubt the practice of publishing all the findings in two newspapers as required, proved to be expensive, and it is arguably of little value, since the findings and evidence on which the suspension or cancellation is based might be obtained from the MARA.

Item 2 inserts new subsection 305(4) that excludes the operation of section 25D of the Acts Interpretation Act 1901. That section requires tribunals and bodies making decisions, when giving reasons for a decision in accordance with an Act, to set out the findings on material questions of fact and other evidence on which the findings were based. Item 2 is necessary in order not to undo the amendment effected by item 1.

Item 3 inserts new section 305A, which enables the MARA to publish a more general statement about the suspension or cancellation of an agent's registration. The statement may refer, amongst other things, to the grounds for cancellation or suspension as stated in the section 305 statement, as well as the Authority's findings on material questions of fact and other evidence: new section 305A(2). A section 305A statement could, therefore, comment on a particular unethical practice that is common throughout the industry.

A section 305A statement may be made available to one or more people or members of the public, and may be published in a newspaper, newsletter or periodical, or on the Internet, or in any other way: new section 305A(1)(b) and (4). Reproduction of a copy of, or a fair extract or summary of, a section 305A statement does not give rise to criminal or civil liability: new section 305A(5).

Measures to ensure that clients of inactive and deceased agents are not disadvantaged

Item 4 inserts new Division 3A into Part 3 of the Migration Act. Part 3 of the Act deals with migration agents and the giving of immigration advice. As new section 306A (the objects section) indicates, the new division will ensure that clients of inactive or deceased migration agents have access to their documents, so as not to be disadvantaged in their migration and review applications.

New section 306B defines an 'inactive agent' as an agent whose registration:

  • has expired and has not been renewed: subsection 306B(a);
  • has been cancelled at the request of the agent: subsection 306B(b);
  • has been cancelled by the MARA as a disciplinary action: subsection 306B(c).

In all these cases, the agent remains an inactive agent for 2 years unless they become registered again. An agent is also inactive if:

  • their registration has been suspended by the MARA as a disciplinary action: subsection 306B(d). In this case, the agent remains an inactive agent for the duration of the suspension.
  • the agent becomes physically or mentally incapable of giving immigration assistance of a period of 14 days or more: subsection 306B(e). In this case, the agent remains an inactive agent for the duration of their physical or mental incapacity.

New section 306C defines the 'client' of a registered migration agent as: a visa applicant or potential applicant, a cancellation review applicant, a nominator or sponsor, or potential nominator or sponsor. The definition is wide enough to encompass all classes of people who could conceivably seek migration advice from an agent. A person remains a client of an agent even although the agent may become inactive, or die, or both: new sections 306C(e) and (f).

New section 306D enables the MARA to obtain from an inactive agent copies of documents, when the MARA has reason to believe that the agent gave, or anticipated giving, migration advice while they were registered, and the documents relate to that advice, or to the affairs of the client.

New section 306E enables the MARA to obtain copies of clients' documents from the legal personal representative of a deceased inactive agent, in the same circumstances as above. Similarly, new section 306F enables the MARA to obtain copies of clients' documents from the legal personal representative of a deceased registered agent, in the same circumstances as above.

New sections 306D, E and F will allow the MARA to obtain clients' documents in spite of any lien (solicitor's lien or a lien arising from the terms of the agreement between the agent and client)(14) that an agent may assert over them.

The procedure to be followed in each case is the same. In order to obtain the documents, the MARA must give the agent or legal personal representative a written notice. That person must then produce copies of the documents within the specified period (which must be at least 14 days after the date of the notice): new subsections (2) and (5). The notice need not request the documents of any particular client, although it must advise of the effect of new sections 306G and H: new subsection (3).

New section 306G provides that an agent is to be paid reasonable compensation for complying with a notice issued under new sections 306D, E or F. New section 306H makes failure to comply with a notice issued under new sections 306D, E or F an offence. The penalty is 30 penalty units (currently $3 300)(15). However, an agent is excused from complying with the notice if in doing so they would tend to incriminate themselves: new section 306J.

It is noted that there is no new section 306I in this Bill.

New section 306K requires the MARA to give to the client concerned, as soon as practicable, documents provided to it under new sections 306D, E or F, as well as information about how to contact other registered agents.

Item 8 gives new Division 3A retrospective effect.

Concluding Comments

This Bill implements the Government's decision to continue the existing regulatory scheme for the migration advice industry until March 2003, subject to the amendments made by the Bill itself. Any discussion of the merits of the decision to continue the existing arrangements must be postponed until DIMA's report is released. Presumably a further review of the existing regulatory scheme will be carried out as the new expiry date of 21 March 2003 approaches.

The Bill alters the publication requirements incumbent upon the MARA when it suspends or cancels a migration agent's registration. The amendments allow for greater flexibility in the ways that the public may be warned of the suspension or cancellation of an agent's registration. To the extent that they have the potential to increase the effectiveness of warnings given to the public, the amendments seem desirable. Section 305A statements issued by the MARA may also have a role to play in assisting clients in bringing actions against agents for negligent advice. In addition, the Explanatory Memorandum(16) expresses the hope that a section 305A statement will:

demonstrate to the public and potential migration agents the ethical standards and conduct that are required to practice as a migration agent.

Finally, the Bill provides a mechanism for clients of inactive and deceased agents to obtain access to their documents. This is a crucial step in ensuring that the clients are not disadvantaged in their dealings with DIMA and review tribunals and courts. It is likely that the mechanism will be effective and so is another desirable change to the regulatory scheme.

Endnotes

  1. Migration Agents Registration Scheme.

  2. Migration Legislation Amendment (Migration Agents) Bill 1999, Second Reading Speech, Sen the Hon I Campbell, Parliamentary Secretary to the Minister for Communication, Information, Technology and the Arts, Senate, Parliamentary Debates, 23 September 1999, p 8624.

  3. Explanatory Memorandum, p 16.

  4. Migration Legislation Amendment (Migration Agents) Bill 1999, Second Reading Speech, Sen the Hon I Campbell, Parliamentary Secretary to the Minister for Communication, Information, Technology and the Arts, Senate, Parliamentary Debates, 23 September 1999, p 8624.

  5. Migration Agents Registration Authority, Annual Report 1998, p 4.

  6. Sen the Hon Kay Patterson, Parliamentary Secretary to the Minister for Immigration and Multicultural Affairs, 'Extended Arrangements for the Migration Advice Industry', Media Release, 27 August 1999.

  7. Migration Legislation Amendment (Migration Agents) Bill 1999, Second Reading Speech, Sen the Hon I Campbell, Parliamentary Secretary to the Minister for Communication, Information, Technology and the Arts, Senate, Parliamentary Debates, 23 September 1999, p 8624.

  8. Section 319 of the Migration Act 1958.

  9. Explanatory Memorandum, p 20.

  10. Migration Agents Registration Authority, Annual Report 1998, Ch 3.

  11. J. Marsh, 'Migrant fear as law firm crashes', Sydney Morning Herald, 28 August 1999, p 13.

  12. Ibid.

  13. Explanatory Memorandum, p 4.

  14. A lien is a right to hold the property of another as security for payment of a debt. The law implies a right for a solicitor to withhold possession of a client's documents (other than a client's will) until costs due to the solicitor by the client are paid: Barratt v Gough-Thomas [1951] Ch 242; see also P.E. Nygh and P. Butt (ed.), Butterworths Concise Australian Legal Dictionary, Butterworths 1997.

  15. Section 4AA(1) of the Crimes Act 1914.

  16. Explanatory Memorandum, p 5.

Contact Officer and Copyright Details

Andrew Grimm
28 September 1999
Bills Digest Service
Information and Research Services

This paper has been prepared for general distribution to Senators and Members of the Australian Parliament. While great care is taken to ensure that the paper is accurate and balanced, the paper is written using information publicly available at the time of production. The views expressed are those of the author and should not be attributed to the Information and Research Services (IRS). Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. Readers are reminded that the paper is not an official parliamentary or Australian government document.

IRS staff are available to discuss the paper's contents with Senators and Members
and their staff but not with members of the public.

ISSN 1328-8091
© Commonwealth of Australia 1999

Except to the extent of the uses permitted under the Copyright Act 1968, no part of this publication may be reproduced or transmitted in any form or by any means, including information storage and retrieval systems, without the prior written consent of the Parliamentary Library, other than by Members of the Australian Parliament in the course of their official duties.

Published by the Department of the Parliamentary Library, 1999.

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