Bills Digest No. 65 2002-03
Migration Legislation Amendment (Migration Advice
Industry) Bill 2002
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
Endnotes
Contact Officer & Copyright Details
Passage History
Migration Legislation Amendment
(Migration Advice Industry) Bill 2002
Date Introduced:
16 October 2002
House: House of Representatives
Portfolio: Immigration and Multicultural and
Indigenous Affairs
Commencement:
Royal
Assent
Purpose
To provide for
the indefinite extension of the current statutory self-regulation
of the migration advice industry. This is done by removing the
sunset clause which would have seen the current arrangements end on
21 March 2003.
In 1989 the Migration Act 1958 (the
Migration Act) was amended to establish a regime for regulating the
conduct of third parties giving migration advice. Various controls
were introduced such as a ministerial veto on eligibility, maximum
fee schedules, activity reporting, and offences for false and
misleading representations with respect to migration decision
making.
In September 1990 the Joint Standing Committee
on Migration Regulations reported that despite the new regulatory
measures, negligent and unscrupulous activities and practices were
still taking place among migration agents.(1) When
introducing the Migration Amendment Bill (No. 3) 1992, the former
Labor Government agreed that [w]hile these were worthwhile
initiatives, experience has shown that they have not gone far
enough in addressing the problems , and amended the Migration Act
to require that migration agents be registered to protect entrance
applicants from unscrupulous advisers and agents
.(2)
Accordingly, the Act prohibits a person who is
not registered as a migration agent from giving immigration
assistance for a fee.(3) Once registered, migration
agents and lawyers must comply with the Code of Conduct prescribed
in the Migration Regulations 1994. The Migration Agents
Registration Authority (MARA) monitors the conduct of registered
agents in their provision of immigration assistance and of lawyers
in their provision of immigration legal assistance.(4)
To apply for registration, or to renew registration as a migration
agent, a person must pay the relevant application charge set out in
the Migration Agents Registration Application Charge Regulations
1998. The funds raised are paid into Consolidated Revenue and are
used to support the MARA in carrying out its statutory
responsibilities.
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
Migration Institute of Australia Ltd (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,
and
-
- overseeing agents professional development.
The MIA is the main industry body, so a scheme
by 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. The
Government proposed that the migration advice industry should move
to voluntary self-regulation through a period of statutory
self-regulation. This decision was based on recommendations of the
1996 Review of the Migration Agents Registration
Scheme.(5) 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. Statutory self-regulation was originally
subject to a two year sunset clause and was to cease on 21 March
2000.
The current statutory self-regulation scheme for
the migration advice industry has now been in operation for more
than three years. The Government has reviewed the effectiveness of
the operation of the scheme on several occasions. In 1999 a review
was carried out by the then Department of Immigration and
Multicultural Affairs under direction from an independent reference
group led by Mr Ian Spicer, former President of the Confederation
of Australian Industry. The Minister, Hon Phillip Ruddock, reported
at the time that:
The government has found that the industry is
not yet ready to move to voluntary self-regulation in view of
continuing significant consumer protection concerns, national
interest issues and the special nature of the migration advice
industry.
In particular, the government has significant
concerns about the vulnerability of the client group to
exploitation and the ethics and conduct of a small group in the
industry.
Given the vulnerability of clients and the
potential for malpractice in the industry, it is clear that
voluntary regulation of the industry would not be desirable or
viable at this stage and that statutory self-regulation should
continue.(6)
The Government therefore decided to extend the
sunset clause for statutory self-regulation until 21 March 2003 and
to conduct a further review of the effectiveness of its operation
before that date.
The most recent review of statutory
self-regulation of the migration advice industry began in September
2001. The review found that, despite progress made by the industry
since 1999 and the professionalism shown by most migration agents
in Australia, more can still be done to protect consumers and to
continue to improve the operations of the industry and its
regulator .(7) The review received 17 submissions from
individuals and organisations representing government agencies,
lawyers organisations, migrant resource centres, registered
migration agents and consumers. Not one submission suggested that
the migration advice industry was ready yet for full
self-regulation.(8) The review recommended that the
period of statutory self-regulation should continue. It said that
the activities of the unscrupulous few, as well as the need to
continue to raise professional standards were at the heart of this
recommendation.(9)
The review also found some short-comings in the
processes of the MARA and reported that:
Constant vigilance to streamline decision-making
and to promote an open, efficient approach to clients and
demonstrated ongoing improvement in these areas will be necessary
if full voluntary self-regulation is ultimately to be achieved.
(10)
The review recommended that, in order to provide
the MIA with the level of long-term security it needs as the
regulator, the current statutory self-regulation arrangements
should no longer be subject to a sunset clause. Instead, the
current arrangements should be extended and reviewed again after
the industry has achieved key milestones , including a significant
fall in the number of complaints against migration agents, and a
manifest increase in the level of consumer
satisfaction.(11) The review also recommended the
inclusion of various review processes in the MARA s work plan in
order to promote a climate of continuous improvement in the
industry regulator.
On 25 September 2002 the Minister for
Citizenship and Multicultural Affairs, Hon Gary Hardgrave,
announced that the Government will be acting on all the
recommendations made by the latest review.(12) He said
that a further review of the effectiveness of the operation of
statutory self-regulation in the migration advice industry would be
held before 2008 in order to chart the industry s further progress
in achieving key milestones towards self-regulation . At the same
time he foreshadowed future legislation to require overseas
migration agents to be registered in order to deal with Australian
embassies and consulates.
The Shadow Minister for Citizenship and
Multicultural Affairs, Mr Laurie Ferguson, welcomed the
Government's decision to continue the arrangements for statutory
self-regulation beyond March 2003.(13) He asked the
Government to commit to a timetable for the implementation of the
other recommendations of the 2001-02 review, including
strengthening the current Code of Conduct, improving the knowledge
requirements for migration agents entering the industry, and
extending the registration requirements to overseas agents.
Item 1 of Schedule 1 amends the
Migration Act 1958 to remove section 333. This section
provides a sunset clause for the statutory self-regulation of the
migration advice industry which would have the effect of
terminating the statutory scheme on 21 March 2003. The effect of
removing the sunset provisions is to ensure that the current
statutory self-regulation scheme will continue indefinitely past 21
March 2003.
-
- Joint Standing Committee on Migration Regulations, Illegal
entrants in Australia: balancing control and compassion,
Canberra, September 1990.
- Hon. Gerry Hand, MP (Minister for Immigration, Local Government
and Ethnic Affairs), Second Reading Speech , Migration Amendment
Bill (No. 3) 1992, House of Representatives, Debates, 27
May 1992, p. 2937.
- Immigration assistance is defined in section 276.
- Section 316.
- Report on Review of the Migration Agents Registration
Scheme, Canberra, Dept. of Immigration and Multicultural
Affairs, March 1997, Recommendations 7, 8 and 9.
- Hon. Phillip Ruddock, MP, (Minister for Immigration and
Multicultural Affairs and Minister Assisting the Prime Minister for
Reconciliation), Second Reading Speech , Migration Legislation
amendment (Migration Agents) Bill 1999, House of Representatives,
Debates, 9 December 1999, p. 13375.
- 2001-02 Review of Statutory Self-Regulation of the
Migration Advice Industry, Canberra, Department of Immigration
and Multicultural and Indigenous Affairs, September 2002, p. iii.
This report can be accessed at
http://www.dimia.gov.au/general/agents_review2002.htm
- ibid., p. 2 and p. 63.
- ibid., p. 2.
- ibid., p. 3.
- ibid., p. 2.
- Hon. Gary Hardgrave, MP, (Minister for Citizenship and
Multicultural Affairs), Regulation of Migration Advice Industry ,
Media Release, H93/2002, 25 September 2002.
- Laurie Ferguson, MP, (Shadow Minister for Citizenship and
Multicultural Affairs), Regulation of migration agents to continue
, Media Release, 25 September 2002.
Rosemary Bell
15 November 2002
Bills Digest Service
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ISSN 1328-8091
© Commonwealth of Australia 2002
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