Introduction

1.1        On 10 August 2017, the Senate referred the Migration Amendment (Regulation of Migration Agents) Bill 2017 (RMA bill) and the Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017 (MARACA bill) to the Legal and Constitutional Affairs Legislation Committee (committee) for inquiry and report by 16 October 2017.[1]

1.2        The Selection of Bills Committee referred the bills to the committee because the amendments would see:

Lawyers who hold practising certificates removed from regulation by the Migration Agents Registration Authority....

There are concerns that if lawyers were removed from the current system of registration through OMARA [the Office of Migration Agents Registration Authority], 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.

Under the proposed amendments it would be possible for someone with a legal practicing certificate to be registered as a migration agent without demonstrating any knowledge of Australia's complex migration law and policy.[2]

1.3        The committee has decided to consider these bills together in a single report, because they both amend aspects of the Migration Act 1958 (Migration Act) or other relevant legislation.

Background and overview of the bills

Migration Amendment (Regulation of Migration Agents) Bill

1.4        The RMA bill consists of a package of amendments to the Migration Act that aims to deregulate the migration service industry.[3]

1.5        A number of these proposed amendments are a response to recommendations from the 2014 Independent Review of the Office of the Migration Agents Registration Authority (the OMARA Review), undertaken by Dr Christopher N. Kendall for the Department of Immigration and Border Protection (the Department).[4] The OMARA Review examined and reported 'on the most appropriate organisational structure for regulating the immigration advice sector in order to protect consumers'.[5]

1.6        The set of legislative changes proposed in Schedule 1 of the RMA bill address Recommendation 1 of the OMARA Review, which proposes 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'.[6]

1.7        In the second reading speech introducing the bill, the Hon Alex Hawke MP, Assistant Minister for Immigration and Border Protection, stated that:

The relevant legal professional bodies and statutory schemes underpinning them have a broader range of powers [than the Migration Agents Registration Authority] to resolve consumer-related issues than the scheme governing migration agents. This includes penalties outside of the OMARA's existing jurisdiction, including financial penalties for improper conduct, and recommending compensation for affected clients.[7]

1.8        The legislative changes that would be made by Schedule 2 address the concerns raised in the OMARA Review regarding the current level of training and registration requirements for RMAs.

1.9        The OMARA Review suggested the requirement that applicants apply for registration within a year of completing the Prescribed Course was 'unnecessarily restrictive', and recommended that 'the time period for registration after completing the Prescribed Course be extended from one year to five years'.[8]

1.10      In response, the amendments put forward in Schedule 2, according to the RMA bill's Explanatory Memorandum, propose removing 'the 12-month time limit within which a person must apply for registration following the completion of a prescribed course'.[9] The amendments further mean:

...that there will be a longer window within which applicants may be considered applicants for repeat registration, and will therefore be exempt from certain entry qualification requirements. This contrasts with the current provisions of the Migration Act, which only exempt from those requirements applicants who apply within 12 months of the end of their last registration period.[10]

1.11      The RMA bill's Explanatory Memorandum stated that the new 'prescribed period will be prescribed in a legislative instrument made under the Migration Agents Regulations 1998'.[11]

1.12      In the second reading speech, the Assistant Minister outlined that these changes were intended to strengthen the registration requirements of the migration industry and would 'complement the introduction of a Graduate Diploma in Migration Law and Practice to replace the current Graduate Certificate'.[12]

1.13      Schedule 3 proposes amendments to, or the repeal of, redundant provisions of the Migration Act.[13]

1.14      The legislative changes contained in Schedule 4 aim to close an existing loophole, in which incomplete applications remain in limbo if the applicant does not respond to requests for further information.[14]

1.15      The amendments proposed by Schedule 5 would mean that a migration agent who has been registered on a non-commercial basis must inform the OMARA if they have begun to provide immigration assistance on a commercial basis.[15]

1.16      Schedule 6 proposes amending the definitions of 'immigration assistance' and 'immigration representations', with the aim of ensuring that a person must be an RMA (or exempt from the legal requirements to be an RMA) to provide this assistance.[16]

Migration Agents Registration Application Charge Amendment Bill

1.17      The MARACA bill sets out amendments to the Migration Agents Registration Application Charge Act 1997. These amendments would complement the changes outlined in the RMA bill to the Migration Act, and further proposed changes to be made to the Migration Agents Registration Application Charge Regulations 1998.[17]

1.18      The MARACA bill would make the commercial registration charge the default charge, unless applicants can prove they meet criteria allowing them to pay the non-commercial charge.[18]

1.19      The Explanatory Memorandum for the bill explains the proposed amendments as follows:

Regulation 5 of the Charge Regulations allows a person to pay a lower registration application charge (the non-commercial charge) where that person meets two criteria. These criteria are if the person acts solely on a non-commercial or non-profit basis, and 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.[19]

Financial implications

1.20        The Explanatory Memoranda included financial impact statements noting the bills would have low financial impact on Commonwealth Government departments and agencies.[20]

Compatibility with human rights

1.21      The Explanatory Memoranda state that both bills are compatible with Australia's human rights obligations.[21]

Conduct of the inquiry

1.22      Details of the inquiry were advertised on the committee's website, including a call for submissions by 1 September 2017.[22]

1.23      The committee received 24 submissions, which are listed at appendix 1 of this report. These submissions are available in full on the committee's website.

Structure of this report

1.24      This report consists of two chapters:

• This chapter provides a brief background and overview of the bills, as well as the administrative details of the inquiry.
• Chapter 2 sets out the issues raised by submitters to the inquiry. It also outlines the committee's views and recommendations

Acknowledgements

1.25      The committee thanks all organisations and individuals who made submissions to this inquiry.

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