Bills Digest No. 71 1997-98
Migration Legislation Amendment (Migration Agents) Bill 1997
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
Migration Legislation Amendment (Migration Agents) Bill 1997
Date Introduced: 1 October 1997
House: House of Representatives
Portfolio: Immigration and Multicultural Affairs
Commencement: Subject to the provisions below, commencement is
immediately before 21 March 1998.
- Items 67 and 68 of Schedule 1 commence upon Royal Assent;
- Part 3 of Schedule 1 commences on 21 March 1998 if the Public Service
Act1997 commences before that day or otherwise when that Act commences;
- Schedule 3 (apart from Parts 3-5) commences on 21 January 1999;
- Part 3 of Schedule 3 commences on 21 February 1999; and
- Parts 4 and 5 of Schedule 3 commence on 21 March 1999.
To create a Migration Agents Registration Authority to administer the
scheme for regulating the immigration assistance industry and related
matters.
Prior to 1992, the immigration advice industry was largely unregulated.There
were some protective provisions in the then Migration Act 1958,
however, these offered little protection to consumers and targeted only
specified examples of unsatisfactory conduct by advisers and even then
offered only a limited range of sanctions.There were allegations of unqualified
migration advisers giving poor or negligent advice and charging vulnerable
clients exorbitant fees for that advice.
The Migration Agents Registration Scheme (MARS) was established in 1992
by the Migration Amendment Act (No. 3) 1992.MARS was a reaction
by the then Labor Government to complaints about unscrupulous conduct
and incompetent advice being given by people holding themselves out to
be experts in migration.The market in migration advice was found to be
deficient in that consumers were exploited and often asked to pay enormous
costs for services that were incompetent or inappropriate.Recipients of
migration advice were seen as a particularly vulnerable group.Many of
them were not skilled in English and were unaware of avenues of redress
when poor or unethical service was rendered to them.In addition, there
was an imbalance of power between the adviser and the client.This meant
that the clients often had difficulties establishing that they had been
given bad advice.For example, given that the average time taken for processing
a visa application is reasonably lengthy it is hard for a client to tell
whether their adviser has done all that is required or whether they have
either failed to lodge an application or lodged an incomplete application.In
addition, much of the work undertaken was in the nature of a one-off advice
or a single case and so consumers were not able to take their business
elsewhere after unsatisfactory service.
TheMAR scheme's main features include:
- registration for would-be providers of immigration advice;
- a code of conduct for registered agents;
- procedures for investigating complaints against agents;
- processes for suspending and deregistering agents; and
- criminal sanctions for unregistered practice.(1)
The scheme was originally established for three years, with a government
commitment to evaluate after two. It has since had temporary extensions
of up to twelve months from both Coalition and Labor governments.
The scheme is administered by the Migration Agents Registration Board
and the Secretary of the Department of Immigration and Multicultural Affairs.
The Secretary, or his/her delegate, is largely responsible for processing
non-controversial applications which comprise approximately 80 per cent
of the total applications. The board deals with applications referred
to it by the Secretary, and monitors, investigates, and takes disciplinary
action against registered agents.
The scheme has been reviewed twice.In 1995, the Joint Standing Committee
on Migration produced a report "Protecting the Vulnerable? The
Migration Agents Registration Scheme". More recently a taskforce within
the Department of Immigration and Multicultural Affairs, guided by an
outside reference group undertook a review. The departmental review reported
in March 1997 and many of its recommendations are picked up by this legislation
and the associated bills.The review did find that MARS had "provided a
measure of consumer protection" and that it had "not adversely affected
competition in the migration advice market".
The major recommendation was to move away from government-backed regulation,
to industry self-regulation. In the Bills before parliament, this is to
be overseen by the Migration Institute of Australia. Other main recommendations
included:
- the need to improve competency standards with structured courses and
continuing education;
- maintaining the requirement for legal practitioners giving immigration
advice to be registered as migration agents;
- adopting appropriate transitional arrangements to enable the industry
to move towards self-regulation.
The key issues are:
- whether self-regulation is appropriate for an industry with vulnerable
clients, many of whom don't speak English, who will have difficulty
judging the standard of service provided, and who are unlikely to be
able to influence the market (towards the more capable service providers)
because their business is largely one-off;
- whether lawyers should be subject to the same disciplinary procedures
as other immigration advisers - or whether allegations against them
should be referred to their own legal disciplinary bodies;
- whether travel agents should be exempt in some circumstances from
regulatory requirements;
- whether community based immigration advisers providing help on a voluntary
basis should be forced to pay a registration fee, and if so, whether
they should pay the same registration fee as those advising for profit;
- whether there should be a two-tiered approach to registration fees,
with agents/advisers handling under a certain number of cases per year,
(currently five or less) being charged one fee (currently $110) and
those handling above that number, a much more substantial fee (currently
$1 080).
These issues are discussed briefly below.
Is self-regulation appropriate?
Self-regulation is a low cost option for addressing regulatory problems.
The Joint Committee report notes that in general:
The application of self-regulatory codes will depend on the suitability
and maturity of a particular industry.It is generally considered that
self-regulation is inappropriate where 'enforcement mechanisms are inadequate'.In
contrast, self-regulation is more effective where there are mature,
concentrated markets or where there is the propensity for consumers
to make repeat purchases.(2)
It has been argued that consumers of immigration advice are seldom in
the position to make "repeat purchases" and that they are particularly
vulnerable given that they often lack the language skills to make a complaint
or realise that the service given to them was incompetent etc.
Recommendations 7-9 of the March 1997 report state that the aim of regulatory
change should be to move towards self-regulation but, noting the consumer
protection concerns, this may not immediately achievable and that transitional
arrangements should be made to assist in the move.
Self-regulation has been attempted in other industries and then tempered
by the introduction of independent bodies overseeing the industry.For
example, the banking and telecommunications ombudsmen.In addition the
legal services industry is frequently the target of criticism because
it is a self-regulated industry.
Should lawyers have to register?
Legal Practitioners are the largest single class of migration agents
and reportedly provide nearly 60% of all immigration assistance.Legal
Practitioners have lobbied in the past to be exempted from the registration
requirements.The Law Council of Australia have argued that "practising
lawyers are already subject to greater obligations in professional and
financial standards than the registration scheme imposes" and therefore
pressed for them to be exempted from the scheme.(3) Mr David Castle, part
of the Law Council of Australia's task force on migration agents also
argued, in 1994, that the scheme would effectively prevent solicitors,
including country and suburban solicitors from giving any advice in the
occasional migration case that might occur in their practises.(4)
The prohibition against legal practitioners, who were not registered
as migration agents, from giving immigration assistance was challenged
in the High Court case of Cunliffe and Another v The Commonwealth
of Australia [1993-94] 182 CLR 272.The legislation was challenged
by two legal practitioners partly on the basis that it infringed their
constitutionally implied freedom of communication about matters relating
to the Commonwealth Government. The majority of the High Court upheld
the legislation.Mason CJ, however, dissented and felt that "because legal
practitioners already satisfy certain standards to gain admission" the
legislation was "disproportionate to the legitimate end sought to be achieved
and...[was] not reasonably appropriate...and ... therefore invalid".(5)However,
by a majority of 4-3 the legislation was upheld on this point.
The Joint Committee on Migration, having considered these issues, recommended
that, subject to certain exceptions:
lawyers continue to be required to register as migration agents in
order to provide immigration assistance.(6)
This recommendation was accepted by the then Labor Government response.
Travel Agents
The May 1995 Review and the March 1997 Review both received submissions
from the Inbound Tourism Organisation of Australia arguing that travel
agents were technically putting themselves in breach of the Migration
Act 1958 by "providing basic information to clients about visas when
selling travel services"(7).An exemption was sought to exclude this sort
of advice when it was provided without charge and incidental to the main
service.
The May 1995 Report noted these concerns but assessed that the requirement
of the registration scheme was aimed "deliberately at ensuring that immigration
advice is accurate and competent, whether or not such advice is given
free of charge or ancillary to a principal business"(8).The Committee
also noted that "the consequences of wrong or inaccurate advice can result
in unnecessary hardship and expense".
Should Voluntary Organisations have to pay the fee?
The Bill proposes to charge a registration fee for community workers
giving immigration advice.This may cause hardship to some volunteer bodies
as they will not be able to afford the registration fee and will have
to stop giving advice. Volunteer bodies already face significant costs
such as the need to have up-to-date legislation and regulations which
can cost about $500 a year.However, as noted above wrong immigration advice
can cause hardship and expense to people and therefore there should be
protections to ensure a high standard of immigration assistance.A solution
to this could be to require volunteer bodies to register (and comply with
the continuing education requirements etc) but exempt them from the fee,
however, this is not in the Bill.
Should there be a two-tiered approach?
The argument is that many lawyers, for example, only give out immigration
advice in the odd case or two that occurs in their practice and so they
should not be asked to pay the full registration fee. In the past, there
was a mechanism for people to register as migration agents for a reduced
fee if they were advising less than 5 clients in the year.However, this
will be abolished by the Migration Agents Registration Application
Charge Bill 1997.One effect is that the full fee will operate as a
significant disincentive for people to provide migration advice on an
ad hoc basis.Although this may result in those people who do register
as migration agents as being "more expert".
Other Matters
The Bill provides very little detail about how the Migration Institute
of Australia (the MIA) will exercise the power to self-regulate the industry.
There appears to be no requirement for the MIA to report on the two-year
scheme.
The Bill does not provide expressly for any rules about the duties of,
protections of, or accountability of the MIA in its capacity as the administering
body.In addition, MARS was previously administered by the Department of
Immigration and Multicultural Affairs and therefore, given the size and
resources of its predecessor, it is debatable whether the MIA has the
infrastructure to be able to effectively administer a self-regulatory
regime.
There do not seem to be comprehensive transitional provisions in the
Bill.
The move to have migration agents update their skills is generally seen
as a positive step.
The fact that the Migration Agents Registration Board ran at a loss
raises concerns about the practicability of the scheme to now run on a
self-funded and self-regulated basis.Mr Matthew Beckmann, a solicitor
practising in the migration field and a registered migration agent, stated
that:
There is a real financial problem in that the previous Migration Agents
Registration Board (MARB) consistently ran at a loss.In order for the
scheme to be viable for the MIA, it has foreshadowed that it is likely
to charge registration fees of all migration agents, even those who
presently hold an exemption because they do not charge for their services
(these are largely community and voluntary workers).The practical consequence
is ...that people will withdraw from giving immigration assistance leaving
the non-business migration sector either underresourced or particularly
prone to exploitation. ...no doubt there will be reservations as to
the degree to which [MIA] are capable of properly screening applicants
for registration or adequately pursue complaints brought against migration
agents.(9)
Item 13 amends section 276 so as to clarify what is meant by
"immigration assistance" for the purposes of the Act.The proposed amendment
will ensure that clerical work, translation services or simply advising
someone that they should apply for a visa will not be immigration assistance
for the purposes of the Act.This should go part of the way to alleviating
the confusion currently concerning the advice by travel agents.The Bill
makes it clear that merely informing someone that they will need to apply
for a visa is not immigration assistance.Travel agents are not, however,
exempted from the registration requirement and therefore will be in breach
of the provisions if they give more substantial advice without being registered
as migration agents.
Item 21 amends section 277 so as to clarify what constitutes
immigration legal assistance by a lawyer.Administrative items such as
preparing or lodging sponsorship forms does not qualify as immigration
legal assistance.
Item 32 The existing provisions provided for publication of a
notice of intention to register in the Government Gazette and allowed
6 weeks after publication for objections to be raised.This is being reduced
by the Bill to 10 days and there is no requirement to publish in the Government
Gazette.Mr Matthew Beckmann(10), a solicitor practising in the migration
field and a registered migration agent, argues that publication in an
obscure journal could be satisfactory under the Bill.Mr Beckmann further
argued that 10 days seems to be a very short objection period given that
someone must see the publication and then respond.Allowing for postage
times and possibly the fact that a complainant may not have English as
their first language, that makes the lodging of an objection significantly
more difficult than the current period of 6 weeks.
Item 35 replaces the sections of the Act dealing with the registration
of applicants by the Migration Agents Registration Board.The new provisions
will require the Migration Agents Registration Authority (MARA) to be
satisfied that the applicant is a person of integrity and a fit and proper
person to hold registration, with the requisite qualifications as set
out in the regulations.The restrictions on who can apply prevent:
- persons with relevant criminal convictions (other than spent convictions);
- minors;
- person's who have had their registration cancelled in the past five
years or their application for registration refused in the past year;
and
- persons who are not Australian citizens, permanent residents or New
Zealand citizens;
from being registered.
The existing legislation does not define "integrity" or what is meant
by the term "fit and proper person" and it has been criticised on this
basis. The Joint Committee found that the lack of these definitions together
with the absence of any legislative definition of the concept of "sound
knowledge of migration procedure" was "unsatisfactory".Recommendation
17 of their report argued that these terms should be "defined specifically,
with legislative guidance to be given on the criteria for determining
whether an applicant for registration is a person of integrity, is a fit
andproper person to provide immigration assistance and has sound knowledge
of migration procedure."(11) However, this recommendation was not accepted
by the then Labor Government as it was felt that:
The criteria can be explained in information pamphlets and application
forms but should not be defined in legislation in such a way as to limit
the scope for the Migration Agents Registration Board to make a considered
assessment of the character and suitability of the applicant taking
into account all relevant considerations.(12)
The Bill does not provide that the material lodged by a person objecting
to a person's intention to register as a migration agent be grounds upon
which the Authority may refuse to register a person.The Authority is required
to have regard to the objections but it is not expressly provided in the
Bill that the Authority can then use that as a ground for refusing registration.
Item 40 amends subsection 302(1)(b) of the Act which deals with
the automatic deregistration of migration agents in designated circumstances.The
amendment will substantially reduce the period of time by which annual
renewal fees must be paid before the person is automatically deregistered.Currently
the Board must allow 2 months but as a result of the proposed amendments
the Authority will only allow 2 weeks for the renewal fee to be paid.
Item 45 replaces existing section 305 with a similar provision
that refers to the Authority rather than the Board. The regulations will
prescribe how statements by the Authority (relating to decisions to cancel
or suspend registration and the reasons for the decision) are to be published,
after all appeals to the Administrative Appeals Tribunal are concluded
or the time limit for making such appeal has expired.
Item 48 replaces sections 307 and 308 (which deal with the investigatory
powers of the Board) with new section 308.The new provision refers to
the Authority rather than the Board and is substantially the same.The
proposed provision expressly provides that a person will not be excused
from giving information or providing a document to the Authority if to
do so would tend to incriminate the person.Nevertheless, proposed subsection
308(4) prevents that information or document from being admissible in
evidence against the person for all criminal proceedings except those
for obstructing or hindering a person exercising powers under the Act.
Items 24 & 50 replace monetary penalties with the equivalent
reference to penalty units.Under the section 4AA of the Crimes Act
1914 one penalty unit is currently $110.
Item 52 is consistent with item 40 above in that information
that used to be required within 2 months of renewal of registration must
now be provided within 2 weeks. In addition, there is currently a two-tiered
approach to registration fees (under the Migration Agents Registration
(Renewal) Levy Act 1992 which will be repealed by the Migration
Agents Registration Renewal Charge Bill 1997) with agents advising
less than 5 clients annually paying a substantially reduced fee.This will
be abolished and accordingly the existing requirement to advise at the
time of registration details of the estimated extent of proposed immigration
assistance will also be abolished.
Item 55 allows a person who received and paid for immigration
advice without first receiving a statement of services to recover the
amount paid as if it were a debt due to the person.
Item 57 will replace existing section 315 with a provision that
allows the Minister to appoint (or revoke) in writing the Migration Institute
of Australia Limited as the Migration Agents Registration Authority.This
means that MIA will be able to exercise all powers and functions of the
Authority.
Item 61 replaces sections 317 to 332 which deal with the Board
with proposed sections 317 to 321 which deal with the Authority.The Authority
will be able to exercise general powers, refer people to mediation (in
the case of complaints) and refer complaints about lawyers who are migration
agents to the appropriate Law Society for discipline.Proposed section
321 creates an exemption to the Privacy Act 1988 to allow
the Authority (or the MIA if the Minister has appointed it to act) to
disclose personal information in certain cases.
Item 62 inserts Division 6A which provides that regulations may
be made for the payment and recovery of application and renewal fees.
Items 67 to 79 include the transitional provisions for the phase
out of the current scheme and the introduction of the new registration
scheme.There is relatively little detail in the transitional provisions.
Schedule 3 provides for the continuing education of registered
migration agents.Whilst there is no detail in the Bill about what sort
of continuing education commitment will be required, the general move
towards ensuring that migration agents keep up-to-date with changes in
the migration law is a positive step.
- Joint Standing Committee Report, Protecting the Vulnerable? The
Migration Agents Registration Scheme, May 1995.
- Protecting the Vulnerable? The Migration Agents Registration Scheme
Report of the Joint Standing Committee on Migration (May 1995), p 16.
- Media Release, Law Council of Australia, 12 October 1994.
- Reported by Mark Lawson, Australian Financial Review, 18 November
1994.
- Per Mason CJ Cunliffe and Another v The Commonwealth of
Australia [1993-94] 182 CLR 272 at 304. Their Honours Deane & Gaudron
held that the provisions restricting a lawyer from giving immigration
advice etc during certain court proceedings were invalid.
- Recommendations 3, 5, 6 and 13 of the Protecting the Vulnerable?
The Migration Agents Registration Scheme Report of the Joint Standing
Committee on Migration (May 1995), p xxi.
- Review of the Migration Agents Registration Scheme (March 1997)
Report of the Department of Immigration and Multicultural Affairs, p
16.
- Protecting the Vulnerable? The Migration Agents Registration Scheme
Report of the Joint Standing Committee on Migration (May 1995), p 92.
- Personal conversation with Mr Matthew Beckmann, Solicitor and Migration
Agent, 14 October 1997.
- Personal conversation with Mr Matthew Beckmann, Solicitor and Migration
Agent, 14 October 1997.
- Joint Standing Committee Report, Protecting the Vulnerable? The
Migration Agents Registration Scheme, May 1995 p xxx.
- Schedule of Response to the Report of the Joint Standing Committee
on Migration.
Susan Downing
29 October 1997
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ISSN 1328-8091
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