Bills Digest No. 81 2001-02
Migration Legislation Amendment (Migration Agents) Bill 2002
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
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Migration Legislation Amendment
(Migration Agents) Bill 2002
Date Introduced: 14 February 2002
House: House of Representatives
Portfolio: Immigration and Multicultural and Indigenous
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 the 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,
- provide the 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.
This Bill is substantially the same as the
Migration Legislation Amendment (Migration Agents) Bill 2000 which
was introduced into the House of Representatives by the then
Minister for Immigration and Multicultural Affairs on 29 November
2000. The second reading debate was adjourned on 29 November 2000.
The Senate Scrutiny of Bills Committee considered the Bill in its
Report No. 2/01 that was tabled and adopted on 28 February 2001. It
did not recommend that the Bill be referred to a Committee for
closer scrutiny. Apart from some redrafting, the principal
differences between this Bill and the previous one relate to the
proposed Administrative Review Tribunal. The Bill to establish the
Administrative Review Tribunal lapsed when Parliament was prorogued
on 8 October 2001.
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 (Migration 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, 1997 and 1999 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
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. In 1999 complete self-regulation was
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
- 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
- only 25 percent of registered agents were members of the
industry association (the MIA) in 1999,(3) so complete
self-regulation could potentially threaten the existence of the
MIA, as well as lead to a decline in compliance with industry
- 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
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) allowed the then
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,
- overseeing agents' professional development.
The MIA is the main industry body, so 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
The scheme became operational on 23 March 1998
when the Minister formally appointed the MIA as the MARA.
On 27 August 1999, the then Parliamentary
Secretary to the Minister for Immigration and Multicultural Affairs
announced that the existing arrangements for the migration advice
industry would be extended until March 2003.(5)
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.
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
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
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,
- 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.
Any person who makes immigration representations
for a fee or who provides immigration assistance as defined in
section 276 of the Migration Act must be registered as a migration
agent with the MARA unless exempted by section 280 of the Act.
At 30 June 2001 there were 2 429 registered
migration agents.(7) Thirty five per cent of registered
agents are female and sixty five per cent are male. The average age
is 42. There are 827 (34 per cent of all registered agents) who
possess legal qualifications. Only 411 or 17 per cent of agents
have Practicing Certificates as lawyers.
In 2000-2001 the MARA received 600 new
applications for registration and 1865 repeat registration
applications.(8) According to statistics collected by
the MARA, fewer than 150 agents have more than eight years'
experience as registered agents. The average number of years'
experience is only 3.3 years.(9)
During 2000-2001, 369 agents were deregistered.
According to the MARA's annual report, the reasons behind
deregistration vary but they relate primarily to lapsed
registrations, or a decision not to continue as a registered
In its Annual Report for 2000-2001, the MARA
indicates that it refused initial registration to two applicants.
One was refused on the basis that the applicant was not fit and
proper having given advice whilst unregistered, and the other
applicant was refused because the applicant had a previous criminal
conviction. Twelve applicants were refused repeat registration. By
far the greatest reason for refusal of repeat registration was
non-compliance with the continuing professional development
requirement. Three applicants were refused because they did not
respond to the MARA's request for further information, one was
refused because of insufficiently sound knowledge of migration
procedure, and one for failure to notify the MARA of being a
During the 2000-2001 reporting year, the MARA
received 164 complaints, down from 177 in 1999-2000. Complaints
were made against 4.9 per cent of registered agents (119 agents),
with 11 agents attracting multiple complaints. Sixty three per cent
of complaints were made against registered agents with no legal
qualifications and 37 percent against registered agents with legal
qualifications.(12) The MARA finalised 149 complaints in
2000-2001, cautioned five agents, suspended five agents who were
involved in six complaints, and cancelled the registration of four
agents who were involved in nine complaints.(13) 95.1
per cent of all registered agents did not attract a
The major amendment proposed by this Bill will
allow the 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
The consequence of this is that migration agents who have acted
improperly can leave the industry with an apparently untarnished
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 (Migration Act) to
- 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;
- 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
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
- passes on to another person information produced by a third
person, without giving substantial comment on or explanation of the
A new subsection 276(4) is
inserted in the Migration 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 Migration 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
- 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
- on behalf of a person sponsoring (or seeking to sponsor) a visa
applicant for the purposes of the regulations, about the
A new subsection 282(5) is
inserted in the Migration 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 Migration Act by item 5 of Schedule
1 of the Bill which prevents an applicant for registration
as a registered migration agent from being registered if the MARA
has made a decision to bar him or her for a particular period and
that period has not ended.
Item 7 of Schedule
1 of the Bill inserts a new section 300
in the Migration 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 the
MARA decides on the new application and will date from the expiry
Where the 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
New sections 311A-311F, dealing
with disciplining former registered agents, are inserted in the
Migration Act by item 9 of Schedule
1 of the Bill. Proposed section 311A
provides the 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 the 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.
The 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
the 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
- the contents of a statement under proposed subsection
- 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
Under proposed section 311D the
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,
the MARA must consider it. Additionally, where a submission is
made, the MARA may decide the matter or give the former registered
migration agent the opportunity to appear before it and then decide
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.
Section 316 of the Migration Act sets out the
functions of the 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 12 of
Schedule 1 of the Bill inserts a
new subsection 316(1A) in the Migration Act which
- that the MARA may start, or complete an investigation of a
complaint about a person at a time when they are no longer a
A new subsection 316(1B) is
also inserted in the Migration Act by item 12 of
Schedule 1 which provides that the 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 Scheme.
- Sen the Hon Ian Campbell, Parliamentary Secretary to the
Minister for Communication, Information, Technology and the Arts,
'Second Reading Speech', Migration Legislation Amendment (Migration
Agents) Bill 1999,Senate, Hansard, 23 September 1999, p.
- This figure is now 37 per cent or 899 registered agents are
members of the MIA (Migration Agents Registration Authority,
2001 Annual Report, p. 5).
- ibid., p. 8752.
- ibid., p. 8752.
- Section 319 of the Migration Act 1958.
- Migration Agents Registration Authority, 2001 Annual
Report, p. 15.
- ibid., p. 15.
- ibid., p. 16.
- ibid., p. 21.
- ibid., p. 21.
- ibid., p. 24.
- ibid., p. 23.
- ibid., p. 23.
- Hon Gary Hardgrave MP, Minister for Citizenship and
Multicultural Affairs, 'Second Reading Speech', Migration
Legislation Amendment (Migration Agents) Bill 2002, House of
Representatives, Hansard, 14 February 2002, p. 132.
Rosemary Bell and Ian Ireland
21 February 2002
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