BILLS DIGEST NO. 21, 2017–18              29 August 2017

Migration Amendment (Regulation of Migration Agents) Bill 2017 [and] Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017

Mary Anne Neilsen
Law and Bills Digest Section 

Date introduced:  21 June 2017

House: House of Representatives

Portfolio:  Immigration and Border Protection

Commencement: See 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 Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

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.

•       Schedule 1: removes legal practitioners from regulation by the MARA

•       Schedule 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 course

•       Schedule 3: removes redundant regulatory provisions

•       Schedule 4: enables the MARA to refuse an application to become a registered migration agent where the applicant does not respond to requests for further information

•       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

•       Schedule 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 Act.

Migration Charge Bill

The 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 charitable organisation.

Commencement

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.

Background

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.[1]

In accordance with section 316 of the Migration Act MARA undertakes a range of functions including:

•       processing registration and re-registration applications

•       administering the industry's entrance exam and continuing professional development program

•       monitoring the conduct of registered migration agents

•       investigating complaints about registered migration agents

•       taking 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.[2]

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.[3]

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.[4]

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.[5] The Government has acted on this recommendation and, accordingly, MARA has been progressively consolidated into the Department and is no longer attached as a discrete office.

2014 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 regulatory burden’.[6]

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 courses

•          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.[7]

According to the Assistant Minister’s media release these recommendations were to be implemented ‘following further consultations with stakeholders’.[8]

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.

Migration 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:

•       2,052 (32.5 per cent) of the total number registered had a legal practising certificate

•       of the 495 agents who were registered as not for profit, 71.5 per cent held a legal practising certificate

•       74.4 per cent had never had a complaint made against them and

•       41.4 per cent reported operating in a business as a sole trader

•       21 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.[9]

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’.[10]

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.[11]

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.[12]

The Hodges Review recommended that lawyer agents continue to be included in the revised regulatory scheme.[13]

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.[14]

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 Australia.[15]

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 legal advice’.[16] 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.[17]

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.[18]

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.[19]

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.[20]

Committee consideration

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 homepage.

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.[21]

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:

•       the broad delegation of administrative powers by MARA in proposed subsection 320(1) (item 17, Schedule 3)

•       the 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)

•       the rationale for a strict liability offence for failing to fulfil a notification obligation in relation to migration agent charges (subitem 4(1), Schedule 5).[22]

The Key issues and provisions section below provides further explanation.

The Scrutiny of Bills Committee made no comment in relation to the Migration Charge Bill.[23]

Policy position of non-government parties/independents

At the time of writing the Bills Digest the position of non-government parties and independents is not known.

Position of major interest groups

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 homepage.

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.[24] 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.[25]

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’.[26] Areas of concern raised by the Law Council in relation to dual regulation include:

•       legal practitioners must pay both practicing certificate fees and migration agent registration fees in respect of the same regulated activity

•       confusion 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

•       the 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 equivalents)

•       an apparent need for memoranda of understanding between the MARA and the legal profession regulatory bodies as to complaints-handling and referrals

•       two sets of mandatory, annual, continuing professional development obligations and

•       two 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.[27]

Migration Institute of Australia

The Migration Institute of Australia (MIA) was the most vocal supporter of the continued dual regulation of lawyers.[28] 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.[29]

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.

MIA submitted:

… 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.[30]

Migration Alliance

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 migration agents.

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.[31]

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.[32]

Financial implications

According to the Explanatory Memoranda for the Bills, they will have low financial impact.[33]

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.[34]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights considers that the Bills do not raise any human rights issues.[35]

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

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.[36] 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 problematic.[37]

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.

Amendments 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 restricted[38] or unrestricted) granted under a law of a state or territory (item 1, amending section 275).

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 professional bodies.[39]

Consequential amendments

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 practice.

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:

•       item 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

•       item 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

•       item 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

•       item 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.[40]

Schedule 2—Registration periods

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 qualifications.[41]

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:

•       has completed and passed a prescribed course and exam within the prescribed period or

•       holds 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.[42]

Item 2 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 states:

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.[43]

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 period.

Schedule 3—Redundant provisions

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 section 320.

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 repeal:

•       powers of the Minister to refer agents and former agents to MARA for disciplinary action[44]

•       powers authorising the sharing of personal information between the Department and the MARA[45] and

•       the requirement for MARA to produce an annual report independent to the Department.[46]

Comment

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.[47]

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 Explanatory Memorandum.

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.[48]

Schedule 4—Requirement for applicants to provide further information

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.[49]

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 application.

Comment

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 is provided.[50] 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.[51]

Schedule 5—Registration application charges

The amendments in Schedule 5 are closely related to the amendments proposed in the Migration Charge Bill and are discussed under that heading below.

Migration Charge Bill

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 follows:

•       initial charges:

–      commercial or for profit: $1,760

–      non-commercial or not for profit: $160

•       repeat registration application costs:

–      commercial or for profit: $1,595

–      non-commercial or not for profit: $105.[52]

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 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, and as a charity or for the benefit of the Australian community.[53]

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.[54]

Item 6 repeals section 10 and substitutes a proposed section 10 so that a charge is imposed in respect of a registered migration agent:

•          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.[55]

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).[56]

Comment

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’.[57]

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’.[58]

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’.[59]

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.[60] 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.[61] The Bills do not appear to address these recommendations.

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[1].              Department of Immigration and Border Protection (DIBP), Annual report, 2015–16, DIBP, Canberra, 2016, p. 292.

[2].              Further 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.

[3].              Department of Immigration External Reference Group, 2007–08 review of statutory self-regulation of the migration advice profession: final report, (the Hodges Review), Department of Immigration and Citizenship, Canberra, May 2008, p. 25.

[4].              C Evans (Minister for Immigration and Citizenship), New body to regulate migration agents, media release, 9 February 2009.

[5].              Kendall, 2014 Independent Review of the Office of the Migration Agents Registration Authority, op. cit., pp. 155–157.

[6].              M Cash (Assistant Minister for Immigration and Border Protection), Migration agents’ regulator to be reviewed, media release, 24 June 2014.

[7].              M Cash (Assistant Minister for Immigration and Border Protection), Government releases OMARA review, media release, 8 May 2015.

[8].              Ibid.

[9].              DIBP, Annual report, op. cit., pp. 292–293.

[10].              Explained in the Hodges Review and quoted in Kendall, 2014 Independent Review of the Office of the Migration Agents Registration Authority, op. cit., p. 42.

[11].              Kendall, 2014 Independent Review of the Office of the Migration Agents Registration Authority, op. cit., p. 40.

[12].              Department of Immigration External Reference Group, 2007–08 review of statutory self-regulation of the migration advice profession: final report, op. cit., p. 76.

[13].              Ibid.

[14].              Productivity 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.

[15].              Ibid., p. 67.

[16].              Ibid., pp. 40–41. The two definitions are described below at p. 9.

[17].              Ibid.

[18].              Ibid.

[19].              Ibid., p. 71.

[20].              Ibid., p. 28.

[21].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 8, 2017, The Senate, 9 August 2017, pp. 11–14.

[22].              Ibid.

[23].              Ibid., p. 10.

[24].              A Hawke, ‘Second reading speech: Migration Amendment (Regulation of Migration Agents) Bill 2017’, House of Representatives, Debates, 21 June 2017, p. 7202.

[25].              M Arch ‘Attention lawyers: end of dual regulation closer to reality!’, Australian Immigration Daily News, Migration Alliance, blog, 27 June 2017.

[26].              Quoted in Kendall, 2014 independent review of the Office of the Migration Agents Registration Authority, op. cit., p. 44.

[27].              Ibid., pp. 45–46.

[28].              Ibid., p. 60.

[29].              Ibid.

[30].              Ibid., p. 61.

[31].              Arch, ‘Attention lawyers: end of dual regulation closer to reality!’, op. cit.

[32].              Ibid.

[33].              Explanatory Memorandum, Migration Amendment (Regulation of Migration Agents) Bill 2017, p. 2; Explanatory Memorandum, Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017, p. 2.

[34].              The 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.

[35].              Parliamentary Joint Committee on Human Rights, Scrutiny report, 7, 2017, The Senate, Canberra, 8 August 2017, p. 36.

[36].              This 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’.

[37].              The 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.

[38].              Restrictions could include requiring the lawyer to be supervised in the provision of legal services.

[39].              Explanatory Memorandum, Migration Agents Bill, op. cit., p. 10.

[40].              Ibid., p. 19.

[41].              Migration Act, subsection 288(2).

[42].              Explanatory Memorandum, Migration Agents Bill, op. cit., p. 23.

[43].              Ibid., p. 24.

[44].              Item 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 Authority.

[45].              Item 18 repeals section 321.

[46].              Item 19 repeals section 322.

[47].              These 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.

[48].              Ibid.

[49].              Explanatory Memorandum, op. cit., p. 33.

[50].              Senate Standing Committee for the Scrutiny of Bills, op. cit., p. 13.

[51].              Ibid.

[52].              Office of the Migration Agents Registration Authority (OMARA), ‘Registration costs’, OMARA website; Migration Agents Registration Application Charge Regulations 1998, subsections 4(2) and 5(2).

[53].              Note 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.

[54].              Charge Act, subsection 9(2).

[55].              A Hawke, ‘Second reading speech: Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017’, House of Representatives, Debates, 21 June 2017, p. 7204.

[56].              Section 4AA of the Crimes Act 1914 provides that a penalty unit is currently equivalent to $210.

[57].              Senate Standing Committee for the Scrutiny of Bills, op. cit., p. 13.

[58].              Attorney-General's 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.

[59].              Ibid.

[60].              Kendall, 2014 independent review of the Office of the Migration Agents Registration Authority, op. cit., p. 81, Recommendation 2.

[61].              Ibid., Recommendation 3.