Bills Digest No. 48 2003-04
Migration Legislation Amendment (Migration Agents
Integrity Measures) Bill 2003
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 & Copyright Details
Passage History
Migration Legislation Amendment
(Migration Agents Integrity Measures) Bill
2003
Date Introduced:
17 September 2003
House: House of Representatives
Portfolio: Citizenship and Multicultural
Affairs
Commencement:
On Royal Assent for the
preliminary provisions and by Proclamation for the amendments made
by Schedule 1.
The purpose of the Bill is to implement two
key recommendations contained in the report to Government, 2001
2002 Review of Statutory Self Regulation of the Migration Advice
Industry. The two key recommendations concern, (a) sound
knowledge requirements for registration as a migration agent, and
(b) sanctions for large numbers of vexatious visa applications
(i.e. applications of little merit).
Background
The migration advice industry has been the
subject of three reviews since 1996. The 1996 97 review led to the
move away from government regulation and the commencement of
statutory self regulation. On 21 March 1998, the regulation of
migration agents passed from the Department of Immigration and
Multicultural and Indigenous Affairs (DIMIA) to the Migration
Agents Registration Authority (MARA).(1) MARA's key
powers are:
-
the registration and monitoring of migration agents in
Australia
-
investigation of complaints and disciplinary action
-
mediation and
other ADR procedures for resolving complaints, and
-
monitoring the
adequacy of the Code of Conduct.
A review in 1999 further examined statutory
self regulation in the industry.
The third review, the 2001 2002
Review of Statutory Self Regulation of the Migration Advice
Industry (Spicer Report), was presented to Government in July
2002.(2) The Spicer Report made 27 recommendations to
strengthen the professionalism of the migration advice industry and
to improve consumer protection. The Spicer Report expressed the
view that there remains a level of concern that the industry is not
yet ready to move to full voluntary self-regulation and that it
should achieve a number of key milestones before that occurs. One
of the milestones is a significant decrease in the number of
complaints and an increase in consumer
satisfaction.(3)
Broadly speaking, statutory self-regulation is
a step in the progressive move towards voluntary self-regulation.
Under statutory self-regulation, an industry has some statutory
obligations to observe but, in the main, the industry is moving
towards a stage where there is an absence of specific government
involvement in how the industry conducts its affairs.
On 25 September 2002, the Minister for
Citizenship and Multicultural Affairs, the Hon Gary Hardgrave MP,
issued a media release which stated that the Government would be
acting on all recommendations in the Spicer
Report.(4)
On 24 February 2003, the Migration Act
1958 was amended by the Migration Legislation Amendment
(Migration Advice Industry) Act 2003, to remove a sunset
clause which would otherwise have seen the current statutory
self-regulation of the migration advice industry lapse on 21 March
2003. This legislative amendment means that consumers of migration
advice will continue to be protected by the retention of some
statutory measures rather than the industry move to full voluntary
self-regulation. This legislative response by the Government
implemented Recommendation 1 of the Spicer Report.
This Bill addresses other recommendations of the
Spicer Report. Specifically, the Bill addresses Recommendation 3
and Recommendation 16 of the Spicer report. Recommendation 3 is
concerned with improving the competence of migration agents by
making the educational course and examination for entry level
knowledge for registration more comprehensive. The MARA is to be
empowered to refuse registration to a person unless they have sound
knowledge of migration procedure or other relevant qualifications
(e.g. legal practitioner). In short, sound knowledge or relevant
qualifications will be mandatory for registration. Recommendation
16 deals with proposed sanctions for vexatious, unfounded or
incomplete applications. 'Vexatious activity' will be assessed by
applying a prescribed threshold that identifies a high refusal rate
for applications lodged by a migration agent.
The Senate Estimates Committee (Legal and
Constitutional) of Thursday, 29 May 2003 heard evidence from the
MARA that there is a growth of between 13% and 20% each year in the
number of migration agents. Last year, the number of new agents was
700 but this was offset by some others leaving the
industry.(5)
The current number of registered agents is
estimated at 3, 800 with about 10% of service providers from the
not for profit (i.e. non commercial) category of agents and
advocates.
As noted above, on 25 September 2002, the
Minister for Citizenship and Multicultural Affairs, the Hon Gary
Hardgrave MP said that the Government would be acting on all
recommendations in the Spicer Report. The Second Reading speech to
the Bill sets out the key recommendations of the Spicer Report that
have been addressed.(6) Viewed overall, the policy is
aimed at strengthening the powers of the MARA to deal with
complaints about rogue migration agents and to implement a sanction
scheme to counter the lodgement of large numbers of dubious
applications, including the organised entry of women into Australia
to be employed as sex workers.
The Government's introduction of this Bill
follows on from an announcement by the Minister on 24 July 2003
that DIMIA had setup a Migration Agents Taskforce to specifically
deal with unscrupulous operators and to target unethical
behaviour.(7)
There are a number of organisations involved
in providing advocacy, assistance and support for immigration and
refugee matters. These include the Immigration Advice and Rights
Centre and the Refugee Council of Australia. The Refugee Council of
Australia provides the following comments on its web site about
giving migration advice:
Giving
Immigration Advice:
A very
important thing for anyone working with asylum seekers or TPV
holders to know is that it is illegal to give immigration advice if
you are not a registered migration agent.
Lawyers and
solicitors must also be registered as migration agents to give
immigration assistance. The Migration Act details various fines and
penalties for those offering migration advice without being
registered.(8)
The Immigration Advice and Rights Centre web
site contains comments that inform users that complaints can be
made to the MARA about former registered migration agents if the
complaint is made within 12 months of the person ceasing to be
registered.(9)
The Law Society of New South Wales in
commenting on immigration matters has queried the voluntary nature
of professional indemnity insurance for migration agents. The
Society has made a submission to Government commenting that it
would be best practice for the MARA to make professional indemnity
compulsory for all (nb: solicitors who are also migration
agents are required to have professional indemnity
insurance).(10)
Sophie Morris in the Australian on 18
September 2003 in an article 'Rogue migrant agents targeted',
commented on both the introduction of the legislation and on the
recent political debate concerning the granting of visas.
Rebecca DiGirolamo in the Australian
on 30 September 2003 in an article 'Judges question visa case
"abuse" ' commented on the growing concern of members of the
judiciary about the merit of a flood of migration cases that have
been submitted to the courts for judicial review.
The TV news program PM ran a segment
on Thursday, 11 September 2003, on the doubling of complaints
against migration agents in the past 12 months and foreshadowed the
introduction of this Bill by the Government.
Australian Labor Party's Position
Even before the introduction of the Bill, the
Australian Labor party maintained a position that voluntary self
regulation of the migration advice industry is not appropriate and
that there was a need to target unscrupulous migration agents. On
16 May 2003, the Shadow Minister for Citizenship and Multicultural
Affairs, Mr Laurie Ferguson MP, issued a Media Statement that
included:
Labor has long recognised that unscrupulous
migration agents pose both a threat to the integrity of our
migration system and to vulnerable clients who are open to
exploitation. That is why we first introduced registration of
suitable agents and why we have consistently opposed the industry
being totally self-regulating, as advocated in the past by Minister
Ruddock.(11)
In a debate on previous MARA-related
legislation on 20 June 2002, Senator Bartlett, Leader of the
Australian Democrats, said in the Senate:
It is worth emphasising the very large number of
people who rely on migration agents and the enormous consequences
for them if those agents do not act appropriately when they are
meant to be helping them.
Often people do not have much money and may have
spent some of what little they have seeking advice. It is crucial
that there be as strong a confidence as possible in the ability and
integrity of registered migration agents, and the Migration Agents
Registration Authority has been tasked by the parliament with that
job. It is positive, as I said, that its powers will be expanded
under this legislation and that there will be greater chances of
catching some of the small number of crooks who are out
there.(12)
There is currently a Senate Select Committee
inquiring into ministerial discretion in migration matters. The
Committee had its first meeting on 26 June 2003. The Committee's
terms of reference direct the Committee to examine the use of
Ministerial discretion under the Migration Act 1958.
The Migration Act 1958 (MA) regulates
the coming into, and presence in, Australia of non citizens. The
Act provides for visas permitting non citizens to enter or remain
in Australia and for the removal or deportation of non citizens
whose presence is Australia is not permitted by the MA.
Part 3 of the MA contains the provisions that
deal with migration agents and immigration assistance.
Item 1 inserts a reference to
a definition of 'high visa refusal rate' into Part 3 of the MA. The
actual procedure of how to work out if a migration agent has a high
visa refusal rate is found in proposed new section
306AC which is inserted by Item 75,
below. A high visa refusal rate renders the migration agent liable
for classification as being engaged in 'vexatious activity'. The
Minister is empowered under proposed new section
306A to refer a migration agent for disciplinary action by
the MARA if the agent has a high visa refusal rate.
Items 2 and
3 revises the definition of 'registered agent' to
'registered migration agent'. In addition, the Bill makes multiple
revisions to change the references to 'migration agent' to
'registered migration agent' throughout the MA (see the summary of
Items listed at pages 50 51 of the Explanatory
Memorandum).
Item 6 expands the definition
of 'immigration assistance' to expressly cover situations where a
person provides assistance in making applications to the Minister
to intervene under the MA.
Item 8 addresses the issue of
distinguishing between 'immigration assistance' and 'immigration
legal assistance'. Section 280 of the MA restricts who may give
'immigration assistance' but it provides exemptions for persons
such as parliamentarians and lawyers. The general rule under
section 280 is that a person who is not a registered migration
agent must not give immigration assistance. The amendment in
Item 8 amends an earlier definitional section that
defines 'immigration legal assistance' (section 277 of the MA) to
now limit the range of matters covered by the term 'immigration
legal assistance' (i.e. applications to the Minister to intervene
are no longer to be classified as 'immigration legal assistance'
and thus not free of restriction under section 280).
Item 17 amends the general
rule under section 280 (see above) to allow a further limited class
of exemptions from the restrictions concerning giving immigration
assistance. These include assistance from a close family member or
a person who nominates or sponsors a visa applicant. An exempt
person bears an eventual burden in establishing that they are
within the limited exempt category otherwise they breach the MA.
Item 19 provides for the making of Regulations
under the MA to define the meaning of 'close family member'.
Under section 282 of the MA, a person who is
not a registered migration agent must not charge a fee or seek
reward for immigration representations. The penalty for a breach of
section 282 is imprisonment for 10 years. Item 25
expands the matters covered by section 282 to cover seeking
Ministerial intervention in a visa matter.
Item 39 requires the MARA to
remove details from the register of migration agents concerning a
suspension or caution when the period specified in Regulations made
under the MA have expired.
Item 40 is a significant
revision of the existing section 288 of the MA. Currently, section
288 covers application for registration as a migration agent and
the obligation for new applicants to publish a notice so that
anyone may have the option of lodging an objection with the MARA
about registering the applicant. The replacement provisions are
new sections 288, 288A and 288B. The overall aim
of the revisions is to enhance the replaced section 288 with more
detail and to place the power for approving the form of
applications with the MARA instead of the Minister (see
proposed new subsection 288(3)). The
proposed new section 288B mirrors an existing
section 308 in the MA which empowers the MARA to require the
lodgement of sworn statements when investigating a matter. The
purpose of the new section 288B is to allow the MARA to also obtain
sworn statements to support information lodged in the initial
registration process.
Item 47 inserts a
proposed new section 289A in the MA. This
provision stipulates that an applicant must not be registered as a
migration agent unless they have completed a prescribed course of
study and passed a prescribed examination, or hold prescribed
qualifications. New applicants and those re applying more than 12
months after the end of a previous registration must satisfy these
mandatory sound knowledge requirements.
Section 304 of the MA allows conditions to be
applied to the lifting of a suspension of a migration agent's
registration. Item 71 inserts a proposed
new section 304A which will allow conditions to also be
applied to the lifting of a caution.
Items 72 to
73 revise and enhance existing sections 305 and
305A concerning the notice that must be given by the MARA to a
migration agent (including a statement of reasons) when
disciplinary action is taken, and the publishing of details about
the disciplinary action to the public and to clients of the
migration agent. Sections 305 and 305A are replaced with
proposed new sections 305, 305A, 305B and
305C.
Item 75 is a key provision in
the Bill. It inserts a proposed new Division 3AA
Disciplining registered migration agents for engaging in vexatious
activity. Under this new Division of the MA, the Minister
has the power to refer a migration agent who has a high visa
refusal rate to the MARA for disciplinary action. The Minister's
decision to refer the migration agent is reviewable by the
Administrative Appeals Tribunal (AAT). The Minister also has a role
in determining the threshold numbers for calculating a high visa
refusal rate for the various categories of visas. The Minister's
determination on thresholds is a disallowable instrument
(proposed new subsection 306AD(4)). Before
referral, the Minister must invite the migration agent to make a
submission on the matter.
A proposed new section 306AG
specifies that if the Minister refers a registered migration agent
to the MARA for disciplinary action, the MARA must
(emphasis added) suspend the migration agent's
registration for 12 months (for a first offence) or cancel the
registration where there is a later referral. Under a
proposed new section 306AH, the Minister may
direct the MARA to revoke a mandatory decision taken in relation to
a migration agent if the Minister thinks it is appropriate (e.g. if
a mistake in calculating the high visa refusal rate has been
made). Proposed new sections 306AL and
306AM authorise the MARA to make public (and to
the migration agent's clients) details of mandatory discipline
action taken in relation to the migration agent that has been
referred by the Minister.
The proposed new Division 3AA
is aimed at applying sanctions to counter vexatious activity by
unscrupulous migration agents. The objective appears clear but the
methods proposed in the Bill appear a little harsh and may have
unintended consequences. The method chosen is to add to a list of
matters for Ministerial discretion. The Minister's decision to
refer a matter to the MARA for disciplinary action is reviewable by
the AAT but once referred the MARA's disciplinary role is merely
procedural and mandatory (i.e. to suspend and possibly deregister
but not 'consider'). Furthermore, it is not clear whether the
application of a formula based approach to determining a high visa
refusal rate will take into account a situation where a particular
migration agent is acting for a number of applicants whose claims
are borderline and the migration agent considers that the right
course of action, after careful consideration, is to at least lodge
the applications. In other words, it places the migration agent in
the position of deciding the overall merits of the application a
function more directly the responsibility of the relevant
authority. They may be a tendency for some cautious migration
agents to turn away borderline but deserving applicants for fear
that the agent may end up with a high visa refusal rate.
Items 76 to
98 are minor reference amendments.
Item 99 revises section 306C
of the MA to expand the meaning of 'client' to include
circumstances when a migration agent seeks Ministerial intervention
and to extend the meaning of 'client' as remaining a 'client' even
when a migration agent has been deregistered, is inactive or is
deceased. The aim of this provision is to allow the MARA to have
access to originals or copies of the migration agent's
documentation (including a client's passport held by the migration
agent) which may have a bearing on the outcome of a visa
application.
Items 100 to
126 include minor consequential amendments but
note should be taken of the significant amendment made by
Item 116 which reverses the legislative effect of
existing section 306J (an individual is excused from producing a
document that would tend to incriminate). Item 116
is aimed at unscrupulous agents who may rely on the existing right
to withhold a document or information. That right is now removed
and the document or information must be produced even it tends to
incriminate the migration agent. The document or information is not
available for use as evidence in a subsequent prosecution unless it
is shown to comprise false or misleading information (i.e. sections
137.1 and 137.2 of the Criminal Code apply).
Items 117 to
134 are minor consequential amendments.
Items 134 to
142 revise the existing Division 4A (which deals
with disciplining by the MARA of former registered migrations
agents) to expand the Division to be consistent with the overall
changes made by the Bill, such as having engaged in vexatious
activity. Again, the Minister is given power to refer a former
agent to the MARA for disciplinary action (see proposed new
section 311L) and the MARA must impose a bar to
re-registration for a period of up to 5 years (depending on the
circumstances that occurred when the migration agent was previously
operating as a registered agent). The Minister's decision to refer
a former agent for disciplinary action is reviewable by the
AAT.
Division 5 of the MA deals with the
obligations on registered migration agents to notify the MARA of
changes to business circumstances (e.g. bankruptcy), procedures for
charging fees and the obligation to comply with the prescribed Code
of Conduct. Proposed new sections 312A and 312B
impose new obligations on migrations agents to notify DIMIA or the
relevant review authority (i.e. the Migration Review Tribunal or
the Refugee Review Tribunal) when they give migration assistance.
The data is then used to calculate the migration agent's visa
refusal rate.
The
Migration Institute of Australia Limited (MIA) was appointed by the
then Minister for Immigration and Multicultural Affairs, the Hon
Philip Ruddock MP, on 20 March 1998 to undertake the role of the
Migration Agents Registration Authority (the MARA). The Authority
replaced the Migration Agents Registration Board. Item
165 inserts the power of delegation into the MA to enable
the MARA to delegate to individual officers or committees of MARA
who may then make routine decisions and also make recommendation to
the board concerning more complex matters. The existing power of
delegation is confined to the Minister (see section 320 of the
MA).
Item 170 inserts new provisions to empower the MARA to remove
disciplinary action details from the register after a prescribed
period of time (see proposed new sections 332C and
332D). As assumption is made that, with the enhance
sanctions, a balance must be given to ensure that the register
contains details that are current and that constitute a fair
description of individual's status within the industry.
Proposed new section 332E provides protection from
civil proceedings for a person, official or the Minister who lodges
a complaint about a registered migration agent or former agent, in
good faith.
Item 171 inserts a proposed new paragraph
504(1)(ja) into the MA to enable the Regulations to
provide for an administrative penalty of 12 penalty units (a unit
is currently set at $110) for a minor breach of subsection 280(1).
Subsection 280(1) of the MA proscribes the giving of migration
assistance unless the person is a registered migration agent or in
an exempt category. The usually penalty for a serious breach of
subsection 280(1) is 60 penalty units (as amended by this
Bill from the current 50 penalty units see Item
12).
Part 2 of Schedule 1 of the Bill mainly sets
out transitional amendments. Item 173 allows an
administrative penalty (inserted by Item 171,
above) to be imposed on an alleged minor offence against subsection
280(1) before new paragraph 504(1)(ja) actually commences under
this legislation but where no penalty has already been imposed
before commencement. Although technically retrospective in effect,
it would allow minor matters to be immediately dealt with by
administrative means. Several other items in Part 2 of Schedule 1
(e.g. (a) removal of 'old' disciplinary details from the register
and, (b) whether any previous disciplinary action has been
taken against an applicant for registration as a migration agent
(i.e. Item 179)) have a retrospective
effect.
There appears to be a general
recognition of serious problems caused by some unscrupulous
migration agents in the migration advice industry. This
legislation, however, indicates a heavy approach to imposing new
sanctions on the industry. The role of the Minister in the
sanctions process is enhanced along with that of the MARA. This
approach, on one view, exhibits a tightening of Ministerial control
over activities in the industry rather than that role being largely
performed by a regulatory agency. Active Ministerial involvement in
disciplining the industry is commendable but it appears to be a
long way from the original policy intention of an industry that
would move to voluntary self regulation.
-
The Mara website is at:
http://www.themara.com.au/Online/default.asp.
-
Review of Statutory Self-Regulation of the Migration Advice
Industry, Department of Immigration and Multicultural and
Indigenous Affairs, July 2002 at:
http://www.dima.gov.au/general/agents_review2002.htm
-
ibid., p. 25.
-
The Hon Gary Hardgrave MP, Minister for Citizenship and
Multicultural Affairs, 'Regulation of Migration Advice Industry',
Media Release H93/2002, 25 September 2002.
-
Senate Estimates, Legal and Constitutional Legislation
Committee, Senate, Hansard, 29 May 2003: p.
596.
-
The Hon Dr S. N. Stone MP, Parliamentary Secretary to the
Minister for the Environment and Heritage, Second Reading speech,
Migration Legislation Amendment (Migration Agents Integrity
Measures) Bill 2003, House of Representatives, Debates, 17
September 2003: pp. 19508 19509. See also the summary contained in
the Minister Hardgrave's Media Release No. H131/2003,
'Unscrupulous Migration Agents to be Removed', at:
http://www.minister.immi.gov.au/cam/media/media03/h03131.htm.
-
The Hon Gary Hardgrave MP, Minister for Citizenship and
Multicultural Affairs, 'Migration Agents Deregistered', Media
Release H93/2003, 24 July 2003.
-
Refugee Council of Australia at:
http://www.refugeecouncil.org.au/html/resources/advocateskit.html.
-
Immigration Advice and Rights Centre at:
http://www.iarc.asn.au/new/story01/story.html.
-
Submission by The Law Society of New South Wales, 'The Migration
Advice Industry', September 2003: para 4 at:
http://www.lawsociety.com.au/uploads/files/1062986066500_0.5900159991361913.pdf.
-
Mr Laurie Ferguson MP, Shadow Minister for Citizenship and
Multicultural Affairs, 'Unscrupulous Migration Agents Must be
Weeded Out', Media Statement, 16 May 2003 at:
http://www.alp.org.au/media/0503/20004520. html.
-
Senator Andrew Bartlett, Leader of the Australian Democrats,
Second Reading speech, Migration Agents Registration Application
Charge Amendment Bill 2002 and the Migration Legislation Amendment
(Migration Agents) Bill 2002, Senate, Debates, 20 June
2002: p. 2294.
Brendan Bailey
8 October 2003
Bills Digest Service
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ISSN 1328-8091
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