Bills Digest No. 21, 2017–18
PDF version [633KB]
Mary Anne Neilsen
Law and Bills Digest Section
Purpose of the Bills
Structure of the Bills
Migration Agents Bill
2014 Independent Review of the Office
of the Migration Agents Registration Authority
Senate Legal and
Constitutional Affairs Legislation Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government parties/independents
Position of major interest groups
Law Council of Australia
Migration Institute of Australia
Statement of Compatibility with Human
Parliamentary Joint Committee on
Key issues and provisions
Migration Agents Bill
Schedule 1—Australian legal
practitioners providing immigration assistance
Outline of Part 3 of the Migration
Act: Migration agents and immigration assistance
Amendments to Part 3
Schedule 2—Registration periods
Schedule 3—Redundant provisions
Schedule 4—Requirement for applicants
to provide further information
Schedule 5—Registration application
Migration Charge Bill
Date introduced: 21
House: House of
and Border Protection
page 3 of the Digest
Links: The links to the
Bills, their Explanatory Memoranda and second reading speeches can be found
on the home pages for the Migration
Amendment (Regulation of Migration Agents) Bill 2017 and the Migration Agents Registration Application Charge Amendment (Rates
of Charge) Bill 2017 or through the Australian
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
All hyperlinks in this Bills Digest are correct as
at August 2017.
Purpose of the Bills
This Bills Digest relates to two Bills: the Migration
Amendment (Regulation of Migration Agents) Bill 2017 (the Migration Agents Bill)
and the Migration Agents Registration Application Charge
Amendment (Rates of Charge) Bill 2017 (the Migration Charge Bill).
The purpose of the Migration Agents Bill is to amend the Migration Act 1958
in order to deregulate the migration advice industry, and in particular, to
remove legal practitioners from regulation by the Migration Agents Registration
Authority (MARA) such that lawyers cannot register as migration agents and are entirely
regulated by their own professional bodies.
The purpose of the Migration Charge Bill is
to amend the Migration
Agents Registration Application Charge Act 1997 (the Charge Act)
to ensure that a migration agent who paid the non-commercial registration
application charge in relation to their current period of registration, but
gives immigration assistance otherwise than on a non-commercial basis, is
liable to pay an adjusted charge.
Structure of the Bills
Migration Agents Bill
The Migration Agents Bill consists of six Schedules which
propose amendments to the Migration Act.
1: removes legal practitioners from regulation by the MARA
2: provides that the time period in which a person can be
considered an applicant for repeat registration as a migration agent is set out
in delegated legislation. It also removes the 12-month time limit within which
a person must apply for registration following completion of a prescribed
3: removes redundant regulatory provisions
4: enables the MARA to refuse an application to become a
registered migration agent where the applicant does not respond to requests for
- Schedule 5: requires migration agents to
notify the MARA that they have ceased acting on a non-commercial basis and
commenced acting on a commercial basis
6: provides that assisting a person in relation to a
request to the Minister to revoke a character-related visa refusal or
cancellation decision is included in the definition of ‘immigration assistance’
and ‘immigration representations’ for the purposes of Part 3 of the Migration
Migration Charge Bill consist of only one Schedule which makes amendments to
the Charge Act to provide that the commercial registration application
charge that applies to migration agents is the default charge payable and that
the non-commercial charge can only be accessed by those applicants who will be
genuinely offering services on a non-profit basis and in association with a
Schedule 1 of the Migration Agents Bill commences on 1
July 2018. Schedules 2, 3, 4 and 6 commence on a single day to be fixed by
Proclamation or six months after Royal Assent, whichever is the earlier.
Schedule 5 commences at the same time as Schedule 1 of the Migration Charge
Bill. That Bill will commence on Proclamation or six months after Royal Assent,
whichever is the earlier.
Migration Agents Registration Authority
The Office of the Migration Agents
Registration Authority (MARA) is part of the Department of Immigration and
Border Protection (the Department). The annual report for the Department states
that MARA regulates the activities of the Australian migration advice
profession to provide consumers of migration advice services with appropriate
protection and assurance.
In accordance with section 316 of the Migration Act
MARA undertakes a range of functions including:
registration and re-registration applications
the industry's entrance exam and continuing professional development program
the conduct of registered migration agents
complaints about registered migration agents
appropriate disciplinary action against registered migration agents who breach
the migration agents Code of Conduct or otherwise behave in an unprofessional
or unethical way.
The regulation of the migration advice sector has a long
history and has been the subject of numerous reviews.
Prior to 1 July 2009, the Migration Institute of Australia
(MIA), the industry stakeholder peak body, acted as the MARA under a Deed of
Agreement between the MIA and the Department. The 2007–08 Review of Statutory
Self-Regulation of the Migration Advice Profession (the Hodges Review),
which was undertaken to assess the effectiveness of the regulatory scheme,
recommended that the Government consider establishing a regulatory body
separate from the MIA.
In response to this review recommendation, the Minister
announced the establishment of the Office of the MARA as a discrete office
attached to the Department and headed by a specifically designated senior
officer solely responsible for Office of the MARA activities. The new body was
located in Sydney and assumed the functions from the MIA from 1 July 2009.
The most recent review of the MARA in 2014 (discussed
below) recommended amongst other things that MARA be consolidated into the
Department. The arguments supporting this view were that the discrete office
arrangement had inhibited the development of more robust consumer protection
measures and that the economies of scale would make this a more viable option.
The Government has acted on this recommendation and, accordingly, MARA has been
progressively consolidated into the Department and is no longer attached as a
Independent Review of the Office of the Migration Agents Registration Authority
On 24 June 2014 the then Assistant Minister for
Immigration and Border Protection, Michaelia Cash, announced that the Office of
the MARA would be subject to an independent review to be conducted by Dr Christopher
Kendall (the 2014 Review). According to the Minister the review would ‘examine
and report on the OMARA’s organisational capability and challenges, as well as
the quality and effectiveness of its internal controls and governance’ and
would also ‘examine the regulatory framework and powers of the OMARA to
determine if they are still appropriate and identify opportunities to reduce
The 2014 Review made 24 recommendations about the office’s
performance, organisational capability, challenges it faces and the
effectiveness of its internal controls and governance.
In releasing the report of the review in 2015, the
Assistant Minister said that key measures to be implemented would include:
- removing lawyers from the migration agents’ regulatory scheme
- reviewing the registration process for migration agents
- improving the management of continuing professional development
- strengthening the training and entry qualifications for new
entrants into the migration agent profession
- consolidating the office of MARA into the Department
- reviewing the scope and content of the code of conduct.
According to the Assistant Minister’s media release these
recommendations were to be implemented ‘following further consultations with
The Bills considered in this Bills Digest address mainly
the first of these recommendations—removing lawyers from the migration agents’
regulatory scheme and, to a lesser extent, the second recommendation—reviewing
the registration process for migration agents.
agents: the legal profession and dual regulation
On 30 June 2016 there were 6,306 persons registered in
Australia as migration agents. The Department’s annual report includes the
following profile of migration agents at that date:
(32.5 per cent) of the total number registered had a legal practising
the 495 agents who were registered as not for profit, 71.5 per cent held a
legal practising certificate
per cent had never had a complaint made against them and
per cent reported operating in a business as a sole trader
per cent had been continuously registered for less than one year; 25 per cent registered
for between one and three years and 24 per cent of agents had been registered
for more than 10 years.
Lawyers have been included in the regulatory scheme for
migration agents since 1992. The purported reason for doing so ‘was to achieve
consistent standards of professional conduct and quality of service within the
migration advice profession’.
However, the regulation of lawyers as migration agents has
been controversial and the subject of much debate and extensive lobbying from
those—primarily within the legal profession—who argue that the regulation of
lawyers under the current scheme amounts to a system of unnecessary dual
regulation. The problems of dual regulation were summarised by the Law Council
of Australia in one of its submissions to the Hodges Review as follows:
Australian lawyers practicing migration law are effectively
required to register as migration agents. Under the current scheme, it is
practically impossible for a lawyer advising on migration issues to provide
legal services in this area without being required by law to register as a
migration agent. This has the practical effect that lawyers are subject to 2
separate schemes of regulation – the comprehensive legal profession regulatory
framework and the migration agents’ registration scheme.
The Hodges Review did not recommend the removal of lawyers
from the current Australian regulatory scheme, noting:
... while many of the arguments for and against the continued
inclusion of lawyer agents could be the subject of ongoing dispute, it was
clear that the inclusion of lawyer agents provided clarity to consumers.
The Hodges Review recommended that lawyer agents continue
to be included in the revised regulatory scheme.
Some two years later, on the issue of dual regulation, the
Productivity Commission, in a report entitled Annual Review of Regulatory
Burdens on Business: Business and Consumer Services recommended that dual
regulation should cease, arguing:
The Australian Government should amend the Migration Act
1958 to exempt lawyers holding a current legal practicing certificate from
the requirement to register as a migration agent in order to provide ‘immigration
assistance’ under section 276. An independent review of the performance of
these immigration lawyers and the legal professional complaints handling and
disciplinary procedures, with respect to their activities, should be conducted
three years after an exemption becomes effective.
The 2014 Review considered the regulation of lawyers and
found that dual regulation risks confusing those seeking migration assistance and
imposes an unjustified burden on lawyer agents who, as lawyers, are already
subjected to one of the strictest regulatory regimes of any profession in
The Review stated that the extent to which lawyers are
affected by two schemes of regulation is clear on a number of levels. These
include the requirement to pay two sets of registration costs—lawyers must pay
annual registration costs as agents and must also pay the cost of their annual
legal practicing certificates. Disciplinary procedures are also confusing,
caused by the Migration Act’s definition of ‘immigration advice’ and ‘immigration
Where the complaint involves a registered lawyer-agent, the threshold issue is
whether the conduct constitutes immigration assistance or legal advice. If the
conduct is not immigration assistance then the complaint is referred to the relevant
legal services regulator.
The Review further explained that it is possible for
lawyer-agents to give immigration assistance and, with the same client, give
extensive legal advice or representation before the courts. The former conduct
is within the MARA’s jurisdiction and subject to its investigation. The latter
conduct is referred to the relevant state or territory legal services regulator.
Where conduct is within the MARA’s jurisdiction, the process for investigating
and sanctioning lawyer-agents is the same as that for non-lawyer agents.
This duplication and confusion caused the Review to
support the observation of the Productivity Commission in its 2010 Report:
... there appears to be an absence of firm evidence to support
the position that an exemption of lawyer migration agents from the Migration
Agents’ Registration Scheme would be likely to result in reduced protection for
clients of those agents.
Ultimately the 2014 Review recommended that lawyers be
removed from the regulatory scheme that governs migration agents such that
lawyers cannot register as migration agents and are entirely regulated by their
own professional bodies.
Senate Legal and Constitutional Affairs Legislation Committee
On 10 August 2017, the Bills were
referred to the Senate Legal and Constitutional Affairs Legislation Committee
for inquiry and report by 16 October 2017. Details of the inquiry are
available on the inquiry
Senate Standing Committee for
the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
(the Scrutiny of Bills Committee) reported on the Bills in its Scrutiny
Digest of 9 August 2017.
The Committee raised questions in relation to several
provisions in the Migration Agents Bill and sought advice from the Assistant
Minister for Immigration and Border Protection in relation to:
broad delegation of administrative powers by MARA in proposed subsection
320(1) (item 17, Schedule 3)
inclusion in delegated legislation of significant matters regarding the time
limit for providing information to MARA (proposed paragraph 288B(4)(a), item
1, Schedule 4)
rationale for a strict liability offence for failing to fulfil a notification
obligation in relation to migration agent charges (subitem 4(1), Schedule 5).
The Key issues and provisions section below provides
The Scrutiny of Bills Committee made no comment in
relation to the Migration Charge Bill.
Policy position of
At the time of writing the Bills Digest the position of
non-government parties and independents is not known.
Position of major interest
While the views of stakeholders were well publicised
during previous reviews of MARA, there has been little public comment about the
current Bills. At the time of writing this Bills Digest the Senate Committee
inquiring into the Bills had not published any submissions on the inquiry
The views below are those expressed mainly in submissions
at the time of the 2014 Review. The Assistant Minister has stated that an Exposure
Draft of Schedule 1 of the Migration Agents Bill was circulated privately to
stakeholders, including the Law Council, the MIA and the state and territory
legal professional bodies.
Members of the Migration Alliance (MA), a membership organisation made up of
Registered Migration Agents, have questioned the need for the Government’s ‘secrecy’
on this consultation and asked why the wider migration advice profession was
not given an opportunity to also comment at that time.
Law Council of Australia
As already noted, the Law Council’s policy position, set
out in numerous submissions to reviews into migration advice industry
regulatory arrangements, is that because lawyers are extensively regulated by
their own profession in relation to the provision of legal assistance, lawyers
should not also be required to be registered by the migration advice profession
for the provision of immigration assistance. The Law Council’s primary position
is that imposing a second legislative and regulatory regime on top of the system
already imposed on lawyers produces ‘a number of complexities, uncertainties,
duplications, costs and undesirable outcomes for lawyers and consumers’.
Areas of concern raised by the Law Council in relation to dual regulation
practitioners must pay both practicing certificate fees and migration agent
registration fees in respect of the same regulated activity
for consumers as to their entitlements and avenues to obtain compliance with
regulatory requirements and redress in relation to immigration services
provided by legal practitioners. This confusion may extend to whether certain
professional obligations exist, including client legal privilege, trust
accounting, coverage by fidelity funds and professional indemnity insurance, not
to mention the level of competence that might be expected of those with legal
or non-legal qualifications to provide immigration assistance services
prospect of legal practitioners being subject to up to three separate
complaints handling processes in relation to the same alleged conduct (with the
prospect of separate complaints handling processes by the legal services
regulator, the MARA and the state and territory fair trading offices, or
apparent need for memoranda of understanding between the MARA and the legal
profession regulatory bodies as to complaints-handling and referrals
sets of mandatory, annual, continuing professional development obligations and
sets of conduct obligations—legal profession rules of professional conduct as
embodied in the Australian Solicitors’ Conduct Rules and the Code of Conduct
for Registered Migration Agents.
Migration Institute of Australia
The Migration Institute of Australia (MIA) was the most
vocal supporter of the continued dual regulation of lawyers.
In a detailed submission to
the 2014 Review, the MIA wrote:
The MIA believes there is a need for lawyer migration agents
to continue to be registered as migration agents together with non-lawyer
migration agents. The complexity of Australia’s migration law and policy
demands that all those who practice in the area should be registered to provide
advice. There is also a need to ensure consistency in terms of consumer
protection for the public when they are receiving advice on immigration
matters, whether it be from lawyer or non-lawyer registered migration agents.
MIA also argued that a survey of its members indicated
that 83.97 per cent of respondents said that lawyer migration agents should be
registered and 70.51 per cent said that registration should be by the same body
that registers non-lawyer migration agents.
... if lawyers were removed from the current system of
registration through the OMARA, the Department of Immigration, consumers and
other stakeholders could not rely upon receiving a consistent quality of
service from those lawyers who have not been required to either demonstrate
that they have sound knowledge of migration practice and procedure or undertake
specialist studies in migration law.
The Migration Alliance did not mention the issue of dual
regulation in its submission on the 2014 Review. However, in a recent blog
published in the Migration Alliance’s online Australian Immigration Daily
News, it is suggested that the most significant impact of the Migration
Agent Bill’s removal of dual regulation will be on lawyers who
hold restricted practising certificates.
Currently, the holder of a restricted
practising certificate can provide immigration assistance directly to clients
if they are also registered migration agents. The change will force lawyers to
cease being registered migration agents if they continue to hold their
practising certificates, or alternatively, they will need to drop their
practising certificates if they wish to maintain their status as registered
What this means as a practical matter is
that lawyers who only have restricted practising certificates and who have been
running their own migration practices as registered migration agents will be
faced with the very difficult choice of either stopping being lawyers through
the surrender of their practising certificates, closing their migration
practices altogether, or looking for an association or affiliation with
existing migration law practices that are operated by lawyers who do hold
unrestricted practising certificates. So these changes do have the potential to
cause significant dislocation to those members of the migration advice
profession who are lawyers running their own practices but who do not yet hold
unrestricted practising certificates.
Several responders to this article
suggested that dual regulation offers marketing advantages and more flexibility
in terms of accounts and costs. As both lawyers and migration agents they would
therefore prefer to retain the option of dual regulation.
According to the Explanatory Memoranda for the Bills, they
will have low financial impact.
Statement of Compatibility
with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bills’ compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bills are compatible.
Parliamentary Joint Committee
on Human Rights
The Parliamentary Joint Committee on Human Rights
considers that the Bills do not raise any human rights issues.
Key issues and provisions
Migration Agents Bill
Schedule 1—Australian legal
practitioners providing immigration assistance
Part 3 of the Migration Act: Migration agents and immigration assistance
The provision of immigration assistance is regulated under
Part 3 of the Migration Act.
In general terms, Division 1 of Part 3 deals with
preliminary matters and includes definitions relevant to Part 3. Of specific
relevance to the Bill are the definitions of ‘immigration assistance’ and
‘immigration legal assistance’. Section 276 of the Act broadly defines immigration
assistance as advice or assistance in relation to a visa application,
or preparation of a visa application.
Section 277 essentially defines immigration legal assistance as a
lawyer providing assistance in relation to litigious immigration matters before
a court. The two definitions have long been considered confusing and
Division 2 (sections 280 to 285) of Part 3 sets out
restrictions on giving ‘immigration assistance’, making immigration
representations, charging fees and advertising. Division 2 places restrictions
in relation to these types of conduct on persons who are not registered
migration agents. It also provides that such restrictions do not apply in
relation to lawyers giving ‘immigration legal assistance’.
Division 3 of Part 3 (sections 286 to 306AE) deals with
registration of migration agents and amongst other things provides that MARA
must keep a Register of Migrations Agents, sets out the requirements for
application for registration, publishing requirements and the responsibilities
of MARA in registering applicants.
to Part 3
Item 13 along with item 6 are the key
amendments in Schedule 1.
Item 13 inserts proposed section 289B, which
provides that an applicant must not be registered as a migration agent if he or
she is an Australian legal practitioner. An Australian legal practitioner
is to be defined as a lawyer who holds a practising certificate (whether
or unrestricted) granted under a law of a state or territory (item 1, amending
Existing section 280 sets out the restrictions on giving
of immigration assistance. Amongst other things it provides that a lawyer is
not prohibited from giving ‘immigration legal assistance’. Item 6 amends
subsection 280(3) to provide that an Australian legal practitioner is not
prohibited from giving ‘immigration assistance’ in connection with legal
practice. The use of the term ‘immigration assistance’ rather than ‘immigration
legal assistance’ is significant. The latter term, currently defined in section 277,
is to be repealed (item 5).
The effect of these amendments in combination is to
exclude Australian legal practitioners (that is, lawyers who hold a practising
certificate) from registration as a migration agent but allow them to give
legal advice on immigration matters while regulated solely by their own legal
Schedule 1 makes various other consequential amendments
resulting from the removal of Australian legal practitioners from the migration
agent regulatory scheme. The more significant are described below.
Existing section 282 sets out restrictions on charging
fees for making immigration representations and in particular provides that a
person who is not a registered migration agent must not ask for or receive any
fee or other reward for making immigration representations. Item 9 inserts
proposed subsection 282(2A) and provides that section 282 does not
prohibit an Australian legal practitioner from asking for or receiving a fee or
other reward for making immigration representations in connection with legal
Section 284 sets out restrictions on self-advertising of
the giving of immigration assistance. Currently, subsection 284(3)
provides that the section does not prohibit a lawyer from advertising that he
or she gives immigration legal assistance. Item 10 amends this
subsection and provides that the restrictions in section 284 do not prohibit an
Australian legal practitioner from advertising that he or she gives immigration
assistance in connection with legal practice.
Other significant consequential amendments include:
15 which inserts proposed section 302A providing that the MARA must
cancel a migration agent’s registration if satisfied the agent is an Australian
legal practitioner. Before their registration can be cancelled the MARA will be
required to provide the affected individual with a notice advising them of the
cancellation and setting out the reasons for the decision
22 which inserts proposed paragraph 312(1)(i) requiring a registered
migration agent to notify the MARA in writing within 14 days after becoming an
Australian legal practitioner
24 which amends the wording of paragraph 316(1)(b), the effect being to
remove from the MARA the function of monitoring the conduct of lawyers in their
provision of immigration legal assistance
25 which repeals paragraph 316(1)(e), the effect being to remove from MARA
the function of investigating complaints about lawyers in relation to their
provision of immigration legal assistance.
Item 30 inserts proposed Division 8 at the
end of Part 3 of the Migration Act and sets out the transitional
arrangements for Australian legal practitioners following commencement of the
amendments in Schedule 1. The Division broadly ensures that from 1 July 2018
all Australian legal practitioners will be completely removed from the
migrations agents’ regulatory scheme.
Existing section 288 of the Migration Act sets out
the requirements for applying to register as a migration agent. In relation to
re-registration, applicants have a 12-month period after registration has
lapsed in which to re-register and therefore be exempt from certain entry
Section 289A provides that an applicant who has never been
registered as an agent or who is applying to be registered more than 12 months
after the end of his or her previous registration must not be registered unless
the MARA is satisfied that he or she:
completed and passed a prescribed course and exam within the prescribed period
the prescribed qualifications.
Item 1 amends section 288 with the effect of providing that the time period in which a person can be considered
an applicant for repeat registration as a migration agent is the period
prescribed in delegated legislation. The Explanatory Memorandum states that the
intention is to prescribe a period of three years in a legislative instrument
made under the Migration
Agents Regulations 1998.
repeals and substitutes section 289A, the main effect being to remove reference
to the 12-month time frame for re-registration and remove the reference to the
prescribed period within which an applicant must complete a prescribed course. According
to the Explanatory Memorandum this amendment complements broader changes being
made in respect of entry qualifications into the migration advice industry. It
These changes include the introduction of a Graduate Diploma
in Migration Law and Practice, to replace the current Graduate Certificate as
the prescribed course for the purpose of paragraph 289A(c). Once an individual
completes the Graduate Diploma, the qualification will never lapse. Similarly,
the Graduate Certificate will never lapse. The prescribed exam, which will be
known as the Capstone Exam, will lapse after three years.
Section 290A deals with continuous professional
development in relation to re-registration. Item 3 repeals and
substitutes section 290A which amongst other things removes the references to a
12-month period for re-registration. The effect of the new provision is that an
applicant who applies within the prescribed period will not be able to be
re-registered as a migration agent unless they have met the prescribed
requirements for continuing professional development within the prescribed
As noted above, the Office of the MARA has undergone a
number of restructures in recent years. Prior to 1 July 2009, the MIA
acted as the MARA under a Deed of Agreement between the MIA and the Department.
On 1 July 2009 the Office of the MARA was established as the
independent regulator of the migration advice industry. More recently, MARA has
been progressively integrated into the Department and is no longer attached as
a discrete office.
Schedule 3 contains amendments to the Migration
Act to remove redundant provisions and make amendments so that provisions
more accurately reflect the current structure of MARA. This includes the
removal of redundant references to the Migration Institute of Australia. These
references date back to the period when the MIA was appointed as the MARA.
For example item 14 repeals and substitutes section
315, which currently provides for the appointment of the MIA as the MARA. Proposed
subsection 315(1) clarifies that the MARA is a distinct body established
within the Department to administer Part 3 of the Migration Act. Proposed
subsection 315(2) provides that the MARA’s powers and functions under Part
3 may only be exercised or performed by the Minister or a delegate under
Item 17 repeals and substitutes subsection 320(1)
which provides that the Minister may delegate any of the powers or functions
given to the MARA under Part 3 to any APS employee in the Department.
Schedule 3 also repeals certain provisions to reflect the
consolidation of MARA into the Department. To this effect, this Schedule will
of the Minister to refer agents and former agents to MARA for disciplinary
authorising the sharing of personal information between the Department and the
requirement for MARA to produce an annual report independent to the Department.
The Scrutiny of Bills Committee
raised questions regarding proposed subsection 320(1) (item 17) and, in
particular, the ability of the Minister to delegate power to 'any APS employee
in the Department'. The Committee questioned why the provision allows the
delegation of powers to a relatively large class of people, noting also that some
of these powers and functions are significant including, for example, the power
to cancel or suspend the registration of a migration agent, require registered
migration agents or former migration agents to give information, and barring
former migration agents from being registered for up to five years.
The Scrutiny of Bills Committee's preference is that
delegates be confined to the holders of nominated officers or to senior executive
service (SES) officers and, where broad delegations are provided for, an
explanation of why these are considered necessary should be included in the
While acknowledging that this provision largely replicates
existing subsection 320(1), the Committee stated that it expects that the
Explanatory Memorandum will explain why it is considered necessary to allow the
broad delegation of MARA's powers and functions. Accordingly, the Committee requested
the Assistant Minister's advice as to:
... why it is considered necessary to allow all of
MARA's powers and functions to be delegated to any APS employee in the
Department and requests the Minister's advice as to the appropriateness of
amending the Bill to provide some legislative guidance as to the scope of
powers that might be delegated, or the categories of people to whom those
powers might be delegated.
Schedule 4—Requirement for applicants to provide further
Schedule 4 makes only one amendment, the purpose being to address
an anomaly in relation to the requirements by applicants for registration as
migration agents to provide information to MARA.
Existing section 288B provides that MARA may require an
applicant to make a statutory declaration in relation to information or documents
provided by the applicant, or appear before one or more individuals specified
by MARA in relation to the application. Should the applicant not oblige, then
MARA is unable to give any further consideration to the application. According
to the Explanatory Memorandum the wording of this provision has caused problems
and as a consequence there are a number of outstanding applications that the
MARA has no power to refuse.
Item 1 repeals and replaces section 288B, the
purpose of the amendment being to allow MARA to refuse an application to become
a registered migration agent where the applicant has been required to, but has
failed to, provide information or answer questions in relation to their
The Scrutiny of Bills Committee drew attention to one
aspect of this provision. Specifically, proposed paragraph 288B(4)(a)
provides that MARA may consider refusing an application for registration if the
applicant fails to provide the information or answer the questions ‘within the period
prescribed for the purposes of this section’ (unless MARA has approved an
extension). In the Committee’s view, significant matters such as time limits
for providing information, where failure to provide the requested information
could have significant adverse consequences, should be included in primary
legislation unless a sound justification for the use of delegated legislation
In this instance, no information is provided in the Explanatory Memorandum and
the Committee has requested the Assistant Minister's advice as to why it is
proposed to leave the determination of the time limit for complying with a
request for information to delegated legislation.
The amendments in Schedule 5 are closely related to the
amendments proposed in the Migration Charge Bill and are discussed under that
Registration fees for migration agents are set out in the Charge
Act and the Migration
Agents Registration Application Charge Regulations 1998 (Charge
Regulations). Registration application costs vary depending on
whether a person registers as a commercial agent (for-profit) or a
non-commercial agent (not-for-profit). Currently the charges are as
or for profit: $1,760
or not for profit: $160
- repeat registration application costs:
or for profit: $1,595
or not for profit: $105.
Currently, under section 5 of the Charge Regulations, a
person may pay a lower registration application charge (a non-commercial
charge) where that person meets two criteria which are:
if a person acts solely on a non-commercial or non-profit basis
if the person acts as a member of, or a person associated with an
organisation that operates in Australia solely on a non-commercial or
non-profit basis, and as a charity or for the benefit of the Australian
Section 10 of the Charge Act currently imposes an
adjusted charge in relation to registered migration agents who have paid the
non-commercial charge but have given immigration assistance on a commercial
basis. Immigration assistance is given on a commercial basis
where it is given on a commercial or for-profit basis, or if the migration
agent is a member of, or person associated with, an organisation that operates
on a commercial, or for-profit basis.
Item 6 repeals section 10 and substitutes a proposed
section 10 so that a charge is imposed in respect of a registered migration
- who paid the non-commercial application charge in relation to his
or her current period of registration and
- who, at any time during that period, gives immigration assistance
otherwise than on a non-commercial basis.
The term non-commercial basis is defined (item
3). It provides that a registered migration agent gives immigration
assistance on a non-commercial basis if the assistance is given solely:
- on a non-commercial or non-profit basis and
- as a member of, or a person associated with, an organisation that
operates in Australia solely:
- on a non-commercial or non-profit basis and
- as a charity, or for the benefit of the Australian community.
This mirrors the circumstances in which a non-commercial
charge is payable under section 5 of the Charge Regulations. It is not simply
the inverse of the existing definition of commercial basis,
repealed by item 6. Rather, to fall within the scope of the definition
of non-commercial basis, the migration agent must be a member of,
or associated with, an organisation that operates as a charity or for the
benefit of the Australian community. In his second reading speech for the Bill,
the Assistant Minister stated that the change is aimed at ensuring:
... that the non-commercial charge can only be accessed by
those applicants who will genuinely be offering services on a non-profit basis
and in association with a charitable organisation.
Related to these amendments, item 1 in Schedule
5 to the Migration Agents Bill will amend section 312 of the Migration
Act to require a migration agent, who has been registered on a non-commercial
basis, to notify the MARA if there is a change in circumstances that has led to
their providing immigration assistance on a commercial basis. Item 4
provides for transitional notification arrangements that will apply to individuals
who prior to commencement of the Schedule had paid the charge applicable to
migration agents who act solely on a non-commercial or non-profit basis but who
then gave immigration assistance otherwise than on a non-commercial basis. Such
agents will be required to notify MARA in writing within 14 days of
commencement of the Schedule. Failing to comply with the notification
obligations is an offence of strict liability and subject to a maximum penalty
of 100 penalty units ($2,100).
The Scrutiny of Bills Committee drew attention to item
4 of Schedule 5 of the Migration Agents Bill, noting that the Explanatory
Memorandum ‘provides no justification as to why this offence is subject to
strict liability, other than to note that the proposed notification obligation
is consistent with current notification obligation on migration agents set out
in section 312 of the Migration Act 1958’.
The Committee also saw other problems with this provision,
noting particularly that the proposed penalty of 100 penalty units for an
individual is above the recommended maximum of 60 penalty units outlined in the
Guide to Framing Commonwealth Offences, Infringement and Notices and
Enforcement Powers. In addition, the fact that ‘individuals will only have
14 days from commencement to comply with the notification obligation raises
questions as to whether all affected individuals will be placed on notice to
guard against the possibility of inadvertently contravening this proposed
strict liability provision’.
Accordingly, the Committee requested from the Assistant
Minister a detailed justification ‘for the proposed imposition of strict
liability in this instance, with particular reference to the principles set out
in the Guide to Framing Commonwealth Offences’.
A further comment regarding registration fees more
generally, relates to the recommendation in the 2014 Review that the current
registration and re-registration fees for migration agents be reviewed to
determine if they can be set at a rate comparable to other professional bodies.
That review had also accepted the concerns raised in relation to the costs
imposed on community migration advisors and recommended that a further fee
reduction be investigated to cater for the specific financial needs of
community migration advisors.
The Bills do not appear to address these recommendations.
. Department of Immigration and Border Protection (DIBP), Annual report, 2015–16, DIBP,
Canberra, 2016, p. 292.
detail of this history can be found in CN Kendall, 2014
independent review of the Office of the Migration Agents Registration
Authority: final report, September 2014, pp. 4–9.
of Immigration External Reference Group, 2007–08
review of statutory self-regulation of the migration advice profession: final
Hodges Review), Department of Immigration and Citizenship, Canberra, May 2008,
Evans (Minister for Immigration and Citizenship), New body to regulate migration agents, media release, 9 February 2009.
. Kendall, 2014 Independent Review of the Office
of the Migration Agents Registration Authority, op. cit., pp. 155–157.
Cash (Assistant Minister for Immigration and Border Protection), Migration agents’ regulator to be reviewed, media release, 24 June 2014.
Cash (Assistant Minister for Immigration and Border Protection), Government releases OMARA review, media release, 8
. DIBP, Annual report, op. cit., pp.
in the Hodges Review and quoted in Kendall, 2014 Independent Review of the
Office of the Migration Agents Registration Authority, op. cit., p. 42.
. Kendall, 2014 Independent Review of the Office of
the Migration Agents Registration Authority, op. cit., p. 40.
. Department of Immigration External Reference Group, 2007–08
review of statutory self-regulation of the migration advice profession: final report,
op. cit., p. 76.
Commission (PC), Annual
review of regulatory burdens on business: business and consumer services,
Research report, Recommendation 4.2, PC, Canberra, August 2010, quoted in
Kendall, 2014 independent review of the Office of the Migration Agents
Registration Authority, op. cit., p. 42.
pp. 40–41. The two definitions are described below at p. 9.
. Ibid., p. 28.
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 8, 2017, The Senate, 9 August 2017, pp. 11–14.
reading speech: Migration Amendment (Regulation of Migration Agents) Bill 2017’,
House of Representatives, Debates, 21 June 2017, p. 7202.
Arch ‘Attention lawyers: end of dual regulation closer to reality!’, Australian Immigration Daily News, Migration Alliance, blog, 27 June 2017.
in Kendall, 2014 independent review of the Office of the Migration Agents
Registration Authority, op. cit., p. 44.
‘Attention lawyers: end of dual regulation closer to reality!’, op. cit.
. Explanatory Memorandum, Migration Amendment (Regulation
of Migration Agents) Bill 2017, p. 2; Explanatory
Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017, p. 2.
Statements of Compatibility with Human Rights can be found at pages 44–49 of
the Explanatory Memorandum to the Migration Agents Bill and pages 8–9 of the
Explanatory Memorandum to the Migration Charge Bill.
Joint Committee on Human Rights, Scrutiny
report, 7, 2017, The Senate, Canberra, 8 August 2017, p. 36.
includes assistance with nomination or sponsorship of a visa applicant,
preparation and/or representation for proceedings before a court or review
authority, and preparation of a request to the Minister. Note that Schedule
6 (item 1) to the Migration Agents Bill makes an amendment to extend the
definition of ‘immigration assistance’ to include assisting a
person in relation to a request to the Minister to revoke a character-related
visa refusal or cancellation decision. A similar amendment (item 3) broadens the circumstances where
a person makes ‘immigration representations’.
Hodges Review noted that, in practice, it is often difficult to determine
whether the assistance being provided by lawyers is immigration assistance or
immigration legal assistance. The net effect of this confusion is that any
lawyer practicing in the area of migration law is required to be registered
with the office of MARA if she or he purports to use knowledge of, or
experience in, migration procedure to provide advice to applicants regarding
visa or review applications. Quoted in Kendall, 2014 independent review of
the Office of the Migration Agents Registration Authority, op. cit., p. 39.
could include requiring the lawyer to be supervised in the provision of legal
Memorandum, Migration Agents Bill, op. cit., p. 10.
Act, subsection 288(2).
Memorandum, Migration Agents Bill, op. cit., p. 23.
10 repeals Division 3AA and item 13 repeals Subdivision B of Division
4A of Part 3. As MARA is consolidated within the Department, the
Minister no longer requires legislative power to refer matters to the
18 repeals section 321.
19 repeals section 322.
powers are set out in sections 303, 308, 311EA and 311A of the Migration Act.
Senate Standing Committee for the Scrutiny of Bills, op. cit., p. 12.
Memorandum, op. cit., p. 33.
Standing Committee for the Scrutiny of Bills, op. cit., p. 13.
. Office of the Migration Agents Registration Authority (OMARA), ‘Registration costs’, OMARA website; Migration
Agents Registration Application Charge Regulations 1998, subsections 4(2)
that this additional requirement for the organisation to operate as a charity
or for the benefit the Australian community was inserted into the Regulations
by the Migration
Legislation Amendment (2017 Measures No. 3) Regulations 2017, presumably in
anticipation of the corresponding changes to be made to the Charge Act.
Act, subsection 9(2).
reading speech: Migration Agents Registration Application Charge Amendment
(Rates of Charge) Bill 2017’, House of Representatives, Debates,
21 June 2017, p. 7204.
4AA of the Crimes
Act 1914 provides that a penalty unit is currently
equivalent to $210.
Standing Committee for the Scrutiny of Bills, op. cit., p. 13.
Department (AGD), A
guide to framing commonwealth offences, infringement notices and enforcement
powers, AGD, Canberra, September 2011, p. 23 quoted in Senate Standing
Committee for the Scrutiny of Bills, op. cit., p. 14.
. Kendall, 2014 independent review of the Office of
the Migration Agents Registration Authority, op. cit., p.
81, Recommendation 2.
. Ibid., Recommendation 3.
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