Bills Digest No. 124 2000-01
Migration Legislation Amendment (Migration Agents) Bill 2000
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.
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Migration Legislation Amendment (Migration Agents) Bill 2000
Date Introduced: 29 November 2000
House: House of Representatives
Portfolio: Immigration and Multicultural Affairs
Commencement: The amendments outlined in this Digest commence on a day to be fixed by Proclamation. However, where those amendments are not proclaimed within six months of the Bill receiving the Royal Assent, they will be taken to have commenced on the first day immediately after that period.
The major amendments proposed by the Bill:
- prevent an applicant for registration as a registered migration agent from being registered where the Migration Agents Registration Authority (MARA) has made a decision to bar him or her for a particular period and that period has not ended
- provide MARA with the power to bar a former registered agent from being a registered migration agent for a maximum period of 5 years if, after investigating a complaint in relation to his or her provision of immigration assistance as a registered agent, it is satisfied the subject matter of the complaint is made out, and
- provide MARA with the power to investigate, or complete an investigation of a complaint about a person at a time when he or she is no longer a registered agent.
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 1958 (the Principal Act) Since then the 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), 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.
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. 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, and
- 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.
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 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 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 MARA.
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. 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.
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 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 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.
Procedures Following Suspension or Cancellation of Registration
Section 305 of the Migration Act requires 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 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.
At 30 June 2000 there were 2 180 registered migration agents.(1) In 1999-2000 MARA received 556 new applications for registration. During 1999-2000, 600 agents allowed their registration to lapse and eight agents asked MARA to remove them from the Register.
In its Annual Report for 2000, MARA indicates that it refused repeat registration to six applicants, five of which failed to meet the continuing professional development requirements and one who failed on the basis that he was not a person of integrity.(2)
MARA also reported that there were seven refusals of initial registration, two applicants failing because they were considered not be persons of integrity, and five failing because they were considered to lack sound knowledge (ie. a prescribed qualification or sound knowledge of migration procedure).(3)
During 1999-2000 MARA received 177 complaints concerning 120 registered migration agents (5.4% of registered agents).(4)
The rationale for the proposed amendments
The major amendment proposed by this Bill will allow MARA to start or complete investigations of complaints against migration agents even where they are no longer registered and to subsequently prevent them being a registered agent for a maximum of five years where a complaint is made out.
In the Second Reading Speech to the Bill the rationale given for the proposed amendments is:
Under the Act as it stands the MARA is forced to abandon this kind of disciplinary action when a person who is the subject of a complaint deregisters.
The consequence of this is that migration agents who have acted improperly can leave the industry with an apparently untarnished reputation.
It is a condition of registration as a registered migration agent that a person gives immigration assistance. The term 'immigration assistance' is defined in section 276 of the Migration Act 1958 (the Principal Act) to include:
- preparing, or helping to prepare, the visa application or cancellation review application; or
- advising the visa applicant or cancellation review applicant about the visa application or cancellation review application; or
- representing the visa applicant or cancellation review applicant in proceedings before a court or review authority in relation to the visa application or cancellation review application.
Subsection 276(3) sets out certain specific circumstances when a person will not be taken to give immigration assistance, including if he or she merely:
- does clerical work to prepare (or help prepare) an application or other document
- advises another person that the other person must apply for a visa, or
- passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.
A new subsection 276(4) is inserted in the Principal Act by item 1 of Schedule 1 of the Bill that provides that a person will not be taken to give immigration assistance in circumstances prescribed by regulation.
Section 282 of the Principal Act makes it an offence punishable by a maximum term of imprisonment of 10 years for a person who is not a registered agent to ask for or receive a fee or other reward for making immigration representations.
The term 'makes immigration representations' is defined by subsection 282(4) to mean where a person 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 about the application for the visa
- on behalf of a cancellation review applicant about the cancellation review application
- on behalf of a person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations, about the nomination, or
- on behalf of a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations, about the sponsorship.
A new subsection 282(5) is inserted in the Principal Act by item 2 of Schedule 1 of the Bill that provides that a person will not be taken to make immigration representations in circumstances prescribed by regulation.
A new section 292A is inserted in the Principal Act by item 5 of Schedule 1 of the Bill which prevents an applicant for registration as a registered migration from being registered if MARA has made a decision to bar him or her for a particular period and that period has not ended.
Automatic continuation of registration
Item 7 of Schedule 1 of the Bill inserts a new section 300 in the Principal Act providing for a registered migration agent's registration to continue after its expiry date where there is a pending and paid for registration application at the time of the expiry of the existing registration. Under the proposed section, the existing registration will be taken to have continued until MARA decides on the new application and will date from the expiry day.
Where MARA has not decided a registration application within 10 months of the expiry date of a registration, the application will be taken to have been granted at the end of that period.
Disciplining former registered migration agents
New sections 311A-311F, dealing with disciplining former registered agents, are inserted in the Principal Act by item 8 of Schedule 1 of the Bill. Proposed section 311A provides MARA with the power to bar a former registered agent from being a registered migration agent for a maximum period of 5 years if, after investigating a complaint in relation to their provision of immigration assistance as a registered agent, it is satisfied the subject matter of the complaint is made out.
Proposed subsection 311B(1) deals with notice of a decision to bar a former registered migration agent. Basically, where MARA decides to bar a former registered migration agent, it must give that person written notice of the decision specifying the reasons for the decision and the period in respect of which the bar operates.
MARA will also be required under proposed subsection 311B(2) to publish, in a prescribed way, a statement about the decision (including the reasons for the decision). The statement must be published as soon as possible after the end of 28 days after the former registered migration agent is given notice of the barring or, if the decision is subject to review, after the end of the process (proposed subsection 311B(3) and (4)).
Proposed section 311C allows MARA, where it bars a former registered migration agent from being a registered agent for a period under proposed section 311A, to prepare a statement about the decision and make that statement available to any or all of the following:
- the public
- one or more sections of the public
- one or more groups of persons, or
- one or more persons.
The statement may include any of the following:
- the contents of a statement under proposed subsection 311B(2)
- an extract from such a statement
- MARA's reasons for the decision
- MARA's findings on any material questions of fact, or
- the evidence or any other material on which the findings of fact are based.
The statement may be made available by being published in a newsletter, newspaper, periodical, on the internet, or in any other way (proposed subsection 311C(4)).
Under proposed section 311D MARA must give a former registered migration agent written notice that it proposed to make a decision to bar them from registration for a period and invite them to make a submission on the matter within 28 of the notice being given. Where a submission is made, MARA must consider it. Additionally, where a submission is made, MARA may decide the matter or give the former registered migration agent the opportunity to appear before it and then decide the matter.
Proposed section 311F provides former registered migration agents who are bared from registration under proposed section 311A with a right of review of the decision to the Administrative Appeals Tribunal.
Functions of MARA
Section 316 of the Principal Act sets out the functions of MARA, which include to deal with registration applications, to investigate complaints about registered migration agents and to take appropriate disciplinary action against registered agents. Item 18 of Schedule 1 of the Bill inserts a new subsection 316(1A) in the Principal Act which provides:
- that MARA may start, or complete an investigation of a complaint about a person at a time when they are no longer a registered agent.
A new subsection 316(1B) is also inserted in the Principle Act by item 18 of Schedule 1 which provides that MARA can investigate a complaint about a former registered migration agent only if the complaint is received within 12 months of them ceasing to be a registered migration agent.
- Migration Agents Registration Authority, 2000 Annual Report, p. 14.
- ibid., pp. 14-15.
- ibid., p. 6.
8 May 2001
Bills Digest Service
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