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CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer and Copyright Details
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
-
- Migration Agents Registration Scheme.
- 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.
- Explanatory Memorandum, p 16.
- 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.
- Migration Agents Registration Authority, Annual Report
1998, p 4.
- 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.
- 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.
- Section 319 of the Migration Act 1958.
- Explanatory Memorandum, p 20.
- Migration Agents Registration Authority, Annual Report
1998, Ch 3.
- J. Marsh, 'Migrant fear as law firm crashes', Sydney
Morning Herald, 28 August 1999, p 13.
- Ibid.
- Explanatory Memorandum, p 4.
- 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.
- Section 4AA(1) of the Crimes Act 1914.
- Explanatory Memorandum, p 5.
Andrew Grimm
28 September 1999
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