On 28 November 2019, the Senate referred the provisions of the Migration Amendment (Regulation of Migration Agents) Bill 2019 and Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019 to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 18 March 2020.
The Senate referred the bills to the committee following a recommendation from the Selection of Bills Committee. The bills were referred to allow the Senate to assess the current form of the legislation, and have regard to the views of industry stakeholders.
Conduct of the inquiry
Details of the inquiry were advertised on the committee's webpage. The committee called for submissions to be received by 31 January 2020 and also wrote to a range of organisations inviting them to make a submission. The committee received 13 submissions which are listed at Appendix 1. All submissions are available on the committee's webpage.
The committee thanks all submitters for their participation in the inquiry.
Structure of the report
This report consists of two chapters:
This first chapter provides an overview of the inquiry, the background to the bills, and an overview of the provisions.
Chapter 2 examines the key issues raised in evidence and provides the committee's view and recommendation.
Note on terminology
This report refers regularly to the Migration Agents Registration Authority (the MARA). The MARA is also referred to as the Office of the Migration Agents Registration Authority (OMARA). Some submitters use the second acronym. As such, the two are used interchangeably in this report.
Background and purpose of the bills
The Migration Amendment (Regulation of Migration Agents) Bill 2019 (the migration agents bill) would amend the Migration Act 1958 (the Migration Act) by removing certain legal practitioners from regulation by the Migration Agents Registration Authority (MARA). All submissions to the inquiry were focussed on this bill.
The Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019 would amend the Migration Agents Registration Application Charge Act 1997 to adjust charges for the provision of immigration assistance on a commercial basis. Submissions to the inquiry were supportive of this bill or made no comment in relation to the bill.
According to the Department of Home Affairs (the department), the migration agents bill seeks to 'improve the effectiveness of the scheme that regulates migration agents' by removing an unnecessary burden of double-regulation for legal practitioners who provide migration assistance.
As at June 2019, around 30 per cent of the approximately 7250 registered migration agents were Australian legal practitioners. The bill seeks to make a number of amendments to academic and vocational requirements for migration agents, and amend some timeframes. Most significantly, the bill seeks to remove the requirement for lawyers to also register as migration agents.
The bill would implement Recommendation 1 of the 2014 Independent Review of the Office of the Migration Agents Registration Authority (OMARA Review), which states that 'lawyers [should] be removed from the regulatory scheme that governs migration agents such that they cannot register as migration agents and are entirely regulated by their own professional bodies'.
Under the law as it stands, lawyers may provide 'immigration legal assistance', such as legal advice, without needing to be registered as a migration agent, but they cannot provide 'immigration assistance'. 'Immigration assistance' is taken to include representing applicants. Thus, lawyers without MARA registration are limited in their ability to assist applicants in migration matters under the current provisions.
The government's view, echoed in the independent OMARA review, is that:
Lawyers are already subject to one of the most stringent professional regulatory regimes in Australia and currently practice in a range of complex areas outside the field of immigration law, without the need for dual regulation in these areas.
The Legal and Constitutional Affairs Legislation Committee conducted an inquiry into a substantially similar package of bills in 2017 and recommended they be passed as long as a 'formal transition period of two years' was added by amendment to the Migration Amendment (Regulation of Migration Agents) Bill 2019.
In line with the committee's recommendation, amendments were agreed by the House of Representatives on 27 March 2018 and the 2017 bills were subsequently passed by the House. The bills were introduced into the Senate on 8 March 2018 and a second reading debate took place on 3 December 2018. While the bills had bipartisan support, the Senate did not vote on them before the 45th Parliament was dissolved.
Overview of the migration agents bill
The migration agents bill seeks to amend Part 3 of the Migration Act to:
remove unrestricted legal practitioners from the regulatory scheme that governs migration agents, meaning unrestricted legal practitioners 'cannot register as migration agents and are entirely regulated by their own professional bodies';
allow 'restricted' legal practitioners to remain in the MARA scheme for up to two years;
transfer some timeframes into delegated legislation;
repeal outdated or irrelevant provisions;
empower the MARA to refuse applications on certain grounds;
oblige migration agents to inform the MARA if they change from providing immigration assistance pro-bono to providing it on a commercial basis; and
'ensure that the definitions of immigration assistance and makes immigration representations include assisting a person in relation to a request to the Minister to exercise his or her power under section 501C or 501CA of the Migration Act to revoke a character-related visa refusal or cancellation decision'.
The department submitted that the bill has different impacts on legal practitioners, depending on whether they hold restricted or unrestricted practising certificates. Specifically, lawyers who hold unrestricted practising certificates 'will be allowed to give immigration assistance in connection with legal practice unsupervised'.
The arrangements for legal practitioners are summarised below:
legal practitioners with unrestricted practising certificates will be removed from the regulatory scheme that governs migration agents on commencement of Schedule 1;
legal practitioners with restricted practising certificates at commencement of Schedule 1 can continue to be registered as migration agents for an eligible period of two years, which can be extended to up to four years with the agreement of the MARA;
future legal practitioners with restricted practising certificates will still be eligible to be registered as migration agents if they have completed the qualifications to become a migration agent (Schedule 2 to the Bill). They can register as migration agents for two years, which can be extended to up to four years with the agreement of the MARA;
future legal practitioners with restricted practising certificates who have not completed these qualifications will be regulated entirely by the relevant State or Territory disciplinary legal body.
Consideration by other parliamentary committees
The Senate Scrutiny of Bills Committee considered the Migration Amendment (Regulation of Migration Agents) Bill 2019 and raised two issues with the minister. These were:
the inclusion of a strict liability offence in item 25 of Schedule 1 to the bill, which imposes a penalty of 100 penalty units upon any registered migration agent who fails to notify the MARA if they become a legal practitioner; and
the broad delegation of administrative powers in proposed subsection 320(1), which allows the minister to delegate the functions of the MARA to departmental staff.
The minister responded in a letter dated 10 January 2020 indicating that the strict liability offence was required because:
The application of strict liability to this offence significantly enhances the ability of the MARA to effectively regulate the migration agent industry. Requiring the MARA to prove guilt to a higher standard would undermine deterrence by the MARA.
In relation to the broad delegation of administrative powers, the minister wrote:
The delegation of power at proposed subsection 320(1) is appropriate and consistent with the current framework of the Act… Any attempt to restrict the level of delegation to SES or Executive level employees in the Act would create an unnecessary administrative and legislative burden, as it may require a change to the Act each time there was a restructure to the administrative arrangements of the MARA.
The Scrutiny Committee was not entirely convinced as to the merits of these two arguments. The committee drew its scrutiny concerns to the attention of senators and stated that it 'leaves to the Senate as a whole the appropriateness of imposing strict liability for an offence attracting a penalty of 100 penalty units', and 'the appropriateness of allowing the minister to delegate any of the powers or functions given to the Migration Agents Registration Authority to APS employees at any level'. No submission to the inquiry addressed either of these issues.
The Parliamentary Joint Committee on Human Rights had no comments on the bills.