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2016-2017-2018
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL 2017
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the Assistant Minister for Home Affairs,
the Hon. Alex Hawke MP)
MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL 2017
OUTLINE
The Migration Amendment (Regulation of Migration Agents) Bill 2017 (the
Bill) amends the Migration Act 1958 (the Migration Act) to, amongst other
things, remove lawyers from the regulatory scheme that governs migration
agents, such that lawyers cannot register as migration agents with the
Migration Agents Registration Authority (the MARA) and are entirely
regulated by their own professional bodies.
The amendments to the Bill will allow eligible restricted legal
practitioners to continue to be both registered migration agents and
restricted legal practitioners for a period of up to two years. This will
enable restricted legal practitioners the opportunity to complete their
supervised legal practice period, required before the grant of an
unrestricted practising certificate. This period maybe extended by up to
two years (to provide a maximum of four years in total).
The amendments also extend the transitional arrangements for registered
migration agents who were restricted legal practitioners immediately prior
to commencement. These registered migration agents will have a
transitional period of up to two years, during which they may continue to
be both registered migration agents and restricted legal practitioners.
This transitional period may be extended by up to two years (to provide a
maximum of four years in total).
FINANCIAL IMPACT STATEMENT
These amendments will have low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A statement of compatibility with human rights has been prepared in
accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011 and is at Attachment A.
MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL 2017
NOTES ON AMENDMENTS
Amendment 1 Clause 2, page 2 (table item 2)
1. This amendment sets 19 November 2018 as the commencement date for
Schedule 1 of the Migration Amendment (Regulation of Migration Agents)
Act 2018.
Amendment 2 Clause 2, page 2 (table item 6)
2. This amendment updates the reference to the Migration Agents
Registration Application Charge Amendment (Rates of Charge) Act 2018
in table item 6 of subsection 2(1) of the Bill to refer to the
Migration Agents Registration Application Charge Amendment (Rates of
Charge) Act 2018.
Amendment 3 Schedule 1, item 1, page 4 (after line 11)
3. This amendment inserts the new defined terms eligible and eligible
period in section 275 of the Migration Act, as amended by Schedule 1
to the Bill.
4. The terms eligible and eligible period have the meaning given by new
section 278A, as inserted by amendment 6. New subsection 278A(1)
provides that person who is, or has been, a restricted legal
practitioner is eligible (to be registered as a migration agent)
during the eligible period set out in new subsection 278A(2), or a
longer period as extended under new subsection 278A(5).
5. Amended subsection 289B(2) provides that a restricted legal
practitioner must not be registered as a migration agent unless he or
she is eligible under new section 278A (see amendment 7).
Amendment 4 Schedule 1, item 1, page 4 (after line 20)
6. This amendment inserts the new defined terms restricted and restricted
legal practitioner in section 275 of the Migration Act, as amended by
Schedule 1 to the Bill.
7. The term restricted in relation to a practising certificate held by an
Australian legal practitioner refers to a practising certificate that
is subject to a condition requiring the practitioner to undertake
supervised legal practice for a specified period where such a
condition was not imposed as a disciplinary measure by an authority
responsible for disciplining Australian legal practitioners in a State
or Territory. The supervised period is generally for Australian legal
practitioners who are newly admitted to a Court Roll and require a
supervised period of practise prior to receipt of an unrestricted
practising certificate.
8. A restricted legal practitioner refers to an Australian legal
practitioner who holds a restricted practising certificate.
9. The period for which an Australian legal practitioner's practising
certificate must be restricted will vary depending on the State or
Territory in which the practising certificate is held, however all
jurisdictions place supervisory restrictions on legal practitioners
that do not hold an unrestricted practising certificate. The term
restricted is intended to capture those practising certificates that
require the legal practitioner to be supervised. It is not intended
to capture the restrictions placed on legal practitioners through
sanctions for professional malpractice or because the legal
practitioner is employed in a restricted legal environment such as
Government or in-house corporate counsel.
10. Amended subsection 289B(2) provides that a restricted legal
practitioner must not be registered as a migration agent with the MARA
unless he or she is eligible under new section 278A (see amendment 6).
Amendment 5 Schedule 1, page 4 (after line 23)
11. This amendment inserts the new defined terms transitional end day,
unrestricted and unrestricted legal practitioner in section 275 of the
Migration Act, as amended by Schedule 1 to the Bill.
12. The term transitional end day has the meaning given by new section
333BA, as inserted by amendment 21. New subsection 333BA(3) provides
that for a person who, immediately prior to 19 November 2018, was both
a registered migration agent and a legal practitioner, the
transitional end day is 19 November 2020, or a later day (no later
than 19 November 2022) approved by the MARA under new section 333BB.
The transitional end day is the latest date registered migration
agents who were restricted legal practitioners immediately before 19
November 2018 can continue to be both registered migration agents and
restricted legal practitioners (see amendment 21).
13. The term unrestricted in relation to a practising certificate held by
an Australian legal practitioner refers to a practising certificate
that is not restricted (see amendment 4).
14. The term unrestricted legal practitioner means an Australian legal
practitioner whose practising certificate is unrestricted.
15. New subsection 289B(1) prevents an applicant from being registered as
a migration agent if he or she is an unrestricted legal practitioner
(see amendment 7). New subsection 302A(1) requires the MARA to cancel
the registration of a registered migration agent if the agent is, or
has become an unrestricted legal practitioner (see amendment 8).
Amendment 6 Schedule 1, page 4 (after line 25)
16. This amendment inserts new section 278A (Eligibility requirements for
restricted legal practitioners). This section will apply to people
who are not captured by the extended transitional arrangements set out
in new sections 333BA and 333BB (see amendment 21), because they were
not registered migration agents and restricted legal practitioners
immediately before 19 November 2018. This includes registered
migration agents who obtain a restricted practising certificate after
19 November 2018, as well as restricted legal practitioners who are
registered as a migration agent with the MARA after 19 November 2018.
17. New subsection 278A(1) provides that person who is, or has been, a
restricted legal practitioner is eligible (to be registered as a
migration agent) during the eligible period set out in new subsection
278A(2), or a longer period as extended under new subsection 278A(5).
18. New subsection 278A(2) provides that the eligible period is the period
of two years after the person first held a restricted practising
certificate. This will be a continuous period of two years,
regardless of whether the restricted legal practitioner continues to
hold a restricted practising certificate for the entire period. If,
at any point during the eligible period, the practitioner becomes an
unrestricted legal practitioner, the MARA must cancel their
registration in accordance with amended section 302A (see amendment
8). Further, they will be prevented from being registered as a
migration agent with the MARA by new subsection 289B(1) (see amendment
7).
19. New subsections 278A(1) and 278A(2) are intended to capture a limited
cohort of restricted legal practitioners who may otherwise have been
disadvantaged by certain amendments made by the Bill. In particular,
item 5 of the Bill repeals the definition of immigration legal
assistance, but allows immigration assistance to be provided in
connection with legal practice under subsection 280(3) (as amended by
the Bill). This may have negatively impacted individuals operating a
business as a registered migration agent while holding a restricted
practising certificate as an Australian legal practitioner.
20. Had there been no distinction between unrestricted legal practitioners
and this cohort of restricted legal practitioners, subsection 280(3)
of the Migration Act, as amended by the Bill, in conjunction with the
conditions of a restricted practising certificate, would have
prevented the cohort of restricted legal practitioners from providing
unsupervised immigration assistance in their capacity as a legal
practitioner. If this cohort were prevented from being registered as
migration agents under new subsection 289B(1) (see amendment 7), or
were to have their registration as a registered migration agent
cancelled under new subsection 302A(1) (see amendment 8), they would
no longer be able to provide immigration assistance as a registered
migration agent.
21. The eligible period of up to two years (or as extended under new
subsection 278A(5)) is intended to allow eligible restricted legal
practitioners to continue to be registered as a registered migration
agent for an extended period of time to give them an opportunity to
become eligible for an unrestricted practising certificate. This
takes into account current State and Territory legislation, which,
depending on the jurisdiction, allows a restricted legal practitioner
to become eligible for an unrestricted practising certificate within
18 months to two years.[1]
22. Similar provision has not been made for unrestricted legal
practitioners, as subject to any conditions imposed on their
practising certificate through sanctions for professional malpractice,
they will continue to be able to provide unsupervised immigration
assistance. This assistance will be in their capacity as an
unrestricted legal practitioner as they are no longer registered with
the MARA.
23. New subsection 278A(3) allows an eligible person to apply for an
extension of the eligible period of up to two years. An application
for an extension of the eligible period must be made by the eligible
person no less than three months before the end of the eligible
period, in a form approved in writing by the MARA and containing
information relevant to the application as required by the form.
24. New subsection 278A(4) provides that a person can only make one
application for an extension under subsection 278A(3). This is to
prevent eligible restricted legal practitioners from repeatedly
prolonging the eligible period during which they can be both
registered migration agents with the MARA and restricted legal
practitioners. This is consistent with the policy intention of the
Bill that legal practitioners should not be regulated by multiple
professional bodies. Rather, legal practitioners should be regulated
by, the relevant State or Territory Law Society and not the MARA.
25. In conjunction with new subsection 278A(3), the effect of new
subsection 278A(4) is that an eligible restricted legal practitioner
may have a combined maximum eligible period of four years.
26. Upon application under new subsection 278A(3), new subsection 278A(5)
requires the MARA to, by written notice, either extend the eligible
period by a stated period of no more than two years, or refuse to
extend the eligible period. The written notice must be provided
before the start of the period determined by a legislative instrument
under new subsection 278A(8) prior to the end of the eligible period.
For example, if the period determined under new subsection 278A(8) was
14 days, the written notice would have to be given by no less than 14
days before the end of the eligible period.
27. New subsection 278A(6) provides that the MARA may only extend the
eligible period by a particular period if the MARA considers it
reasonable to do so in the circumstances. In considering whether
there are reasonable circumstances, the MARA is to consider
circumstances determined by a legislative instrument made under new
subsection 278A(8). However, the MARA is not limited to any
circumstances determined under new subsection 278A(8). Reasonable
circumstances may include, for example, pregnancy or chronic illness
of the eligible legal practitioner.
28. New subsection 278A(7) requires notice of the decision under new
subsection 278A(4) to include any details of the decision determined
by a legislative instrument made under new subsection 278A(8). The
details of the decision will include relevant information.
29. New subsection 278A(8) allows the Minister to make a determination for
the purposes of new subsections 278A(5), (6) or (7) by legislative
instrument. Any legislative instrument made under new subsection
278A(8) will be subject to disallowance in accordance with section 42
of the Legislation Act 2003 (the Legislation Act).
30. New subsection 278A(9) provides that an application may be made to the
Administrative Appeals Tribunal for merits review of a decision to
extend the eligible period by a particular stated period under new
paragraph 278A(5)(a) or a decision to refuse to extend the eligible
period under new paragraph 278A(5)(b).
31. The note at the end of new subsection 278A(9) makes it clear that
section 27A of the Administrative Appeals Tribunal Act 1975 (the AAT
Act) applies in relation to a reviewable decision made by the MARA.
Subsection 27A(1) of the AAT Act requires the MARA to take such steps
as are reasonable in the circumstances to give a person whose
interests are affected by a reviewable decision notice of the decision
and the right to have the decision reviewed. The intention is that
this will be provided in any written notice given under new subsection
278A(5).
Amendment 7 Schedule 1, item 13, page 6 (lines 5 to 13)
32. This amendment omits section 289B as inserted by the Bill, and inserts
new section 289B.
33. New subsection 289B(1) provides that an applicant must not be
registered as a migration agent if he or she is an unrestricted legal
practitioner. This is consistent with the policy intention of the
Bill that unrestricted legal practitioners providing immigration
advice should be regulated by the relevant State or Territory Law
Society and not the MARA.
34. New subsection 289B(2) provides that a restricted legal practitioner
must not be registered as a migration agent unless he or she is
eligible. This is consistent with the policy intention of the Bill
that legal practitioners should not be regulated by both their own
professional bodies, such as a State Law Society and the MARA
simultaneously; whilst also allowing for eligible restricted legal
practitioners to be registered as migration agents during the eligible
period.
35. The new notes at the end of new subsection 289B(2) refer readers to
provisions relating to whether a restricted legal practitioner is
eligible, or no longer eligible for registration as a migration agent
with the MARA.
36. New note 1 refers to new section 278A, which provides that a person
who is, or who has been, a restricted legal practitioner is eligible
if during the period of two, or a longer period as extended under new
subsection 278A(5), after the person first held a restricted
practising certificate (see amendment 6). Eligible restricted legal
practitioners will not be prevented from being registered as a
migration agent by new subsection 289B(2).
37. New note 2 refers to new section 312, which requires a registered
migration agent to notify the MARA in writing within 28 days after
becoming a restricted legal practitioner or an unrestricted legal
practitioner (see amendment 11). This is necessary to determine
whether a person is, or continues to be, an eligible restricted legal
practitioner.
38. New note 3 refers to amended section 302A, which requires the MARA to
cancel the registration of a registered migration agent if he or she
becomes an unrestricted legal practitioner, or is not or no longer an
eligible restricted legal practitioner (see amendment 8). The effect
of amended section 302A is that although an applicant is not prevented
by new subsection 289B(2) from being registered as a migration agent
if they are an eligible legal practitioner at the time of
registration; their registration must be cancelled if they become an
unrestricted legal practitioner, or if they are no longer an eligible
restricted legal practitioner because the eligible period has ended.
39. New note 4 refers to new section 333BA, which sets out the
transitional arrangements for registered migration agents who were
restricted legal practitioners immediately prior to 19 November 2018
(see amendment 21). The effect of new subsections 333BA(2) and (3) is
that these migration agents will have their registration with the MARA
as a migration agent cease by 19 November 2020, or a later day (no
later than 19 November 2022) approved by the MARA under new section
333B. New subsection 333BA(4) defers the application of new section
289B until the person's registration with the MARA as a migration
agent ends.
Amendment 8 Schedule 1, item 15, page 6 (line 28) to page 7 (line 5)
40. This amendment omits subsection 302A(1) as inserted by the Bill, and
inserts new subsections 302A(1) and (1A).
41. New paragraph 302A(1)(a) provides that the MARA must cancel the
registration of a registered migration agent, by removing his or her
name from the Register, if satisfied that the agent is or has become
an unrestricted legal practitioner. This is consistent with the policy
intention of the Bill that unrestricted legal practitioners providing
immigration advice should be regulated by the relevant State or
Territory Law Society and not the MARA.
42. New paragraph 302A(1)(b) provides that the MARA must cancel the
registration of a registered migration agent, by removing his or her
name from the Register, if satisfied that the agent is a restricted
legal practitioner who is not, or is no longer eligible. This is
consistent with the policy intention of the Bill that legal
practitioners providing immigration advice should be regulated by the
relevant State or Territory Law Society and not the MARA; whilst also
allowing for eligible restricted legal practitioners to continue to be
registered as migration agents during the eligible period.
43. The new notes at the end of new subsection 302A(1) refer readers to
provisions relating to whether a restricted legal practitioner is
eligible, or no longer eligible for registration as a migration agent.
44. New note 1 refers to new section 278A, which provides that a person
who is, or who has been, a restricted legal practitioner is eligible
if during the period of two, or a longer period as extended under new
subsection 278A(5), after the person first held a restricted
practising certificate (see amendment 6). A restricted legal
practitioner will not have their registration cancelled under new
paragraph 302A(1)(b) while they remain eligible.
45. New note 2 refers to new section 312, which requires a registered
migration agent to notify the MARA in writing within 28 days after
becoming a restricted legal practitioner or an unrestricted legal
practitioner (see amendment 11). This is necessary to determine
whether a person is, or continues to be, an eligible restricted legal
practitioner. If the person ceases to be eligible, their registration
as a migration agent with the MARA must be cancelled under new
paragraph 302A(1)(b).
46. New note 3 refers to new section 289B, which prevents an unrestricted
legal practitioner or a restricted legal practitioner other than an
eligible restricted legal practitioner from being registered as a
migration agent with the MARA (see amendment 7). Restricted legal
practitioners who are eligible at the time of application for
registration, and therefore not prevented from being registered by new
subsection 289B(2), will be subject to cancellation of their MARA
registration under new paragraph 302A(1)(b) if they become an
unrestricted legal practitioner, or if they are no longer an eligible
restricted legal practitioner because the eligible period has ended.
47. New note 4 refers to new section 333BA, which sets out the
transitional arrangements for registered migration agents who were
restricted legal practitioners immediately prior to 19 November 2018
(see amendment 21). The effect of new subsections 333BA(2) and (3) is
that these migration agents will have their registration as a
migration agent cease by 19 November 2020, or a later day (no later
than 19 November 2022) approved for the person by the MARA under new
section 333B. New subsection 333BA(4) defers the application of
amended section 302A until the person's registration with the MARA as
a migration agent ends.
48. New subsection 302A(1A) makes it clear that the MARA may only cancel
the registration of a registered migration agent under new subsection
302A(1) because of the agent's status as an Australian legal
practitioner on the basis of a document authorised by a body
authorised to grant practising certificates in the relevant State or
Territory. This may include, for example, a copy of the
practitioner's practising certificate, or a register (including an
online register) of the relevant State or Territory Law Society. New
subsection 302A(1) will ensure there is sufficient evidence of the
agent's status as an Australian legal practitioner before the MARA at
the time of cancellation, noting that there is no discretion not to
cancel a registered migration agent's registration under new
subsection 302A(1).
Amendment 9 Schedule 1, item 20, page 7 (line 27)
49. This amendment inserts a reference to new section 333BA at the end of
paragraph 306B(ba). This is consequential to amendment 21, which
inserts new section 333BA to extend the transitional period for
registered migration agents who were restricted legal practitioners
immediately before 19 November 2018.
50. Paragraph 306B(ba), as inserted by the Bill, provides that if a person
ceases to be registered migration agent because the MARA cancels the
persons registration under new section 302A, or because the person's
registration ends under new section 333B, the person becomes an
inactive migration agent at the time of the cessation of the
registration. The addition of a reference to new section 333BA
reflects that a person's registration may end under new section 333B
or 333BA.
Amendment 10 Schedule 1, item 20, page 8 (lines 3 to 7)
51. This amendment omits the note at the end of subparagraph 306B(ba)(ii),
as inserted by the Bill, and substitutes it with new notes 1 and 2.
The new notes refer readers to provisions relating to the cancellation
and cessation of a registered migration agent's registration.
52. New note 1 refers to amended section 302A, which requires the MARA to
cancel the registration of a registered migration agent if he or she
becomes an unrestricted legal practitioner, or is not or no longer an
eligible restricted legal practitioner (see amendment 8). If a
registered migration agent's registration is cancelled under amended
section 302A, they will become an inactive migration agent under
subparagraph 306B(ba)(ii) (as inserted by the Bill).
53. New note 2 refers to new section 333B, which provides that the
registration of an unrestricted legal practitioner as a migration
agent will end on 19 November 2018. For registered migration agents
who were restricted legal practitioners on that day, their
registration will end in accordance with new section 333BA. Once a
migration agent's registration ends in accordance with new section
333B or new section 333BA, they will become an inactive migration
agent under subparagraph 306B(ba)(ii) (as inserted by the Bill).
Amendment 11 Schedule 1, item 22, page 8 (lines 21 to 23)
54. This amendment omits new paragraph 312(1)(i) inserted by item 22 of
the Bill, and inserts new subsections 312(4) and (5).
55. New paragraph 312(4)(a) requires a registered migration agent to
notify the Authority in writing within 28 days after he or she becomes
a restricted legal practitioner. This information is required to
determine whether a registered migration agent is an eligible
restricted legal practitioner, or, if they are not eligible, whether
their registration must be cancelled by the MARA in accordance with
amended section 302A.
56. New paragraph 312(4)(b) requires a registered migration agent to
notify the MARA in writing within 28 days after he or she becomes an
unrestricted legal practitioner. In accordance with amended section
302A, a migration agent's registration must be cancelled by the MARA
if they become an unrestricted legal practitioner.
57. The penalty imposed for failure to comply with new subsection 312(4)
is 100 penalty units. This penalty is consistent with the penalty
imposed by current section 312(1) of the Migration Act, which requires
a registered migration agents to notify the MARA within 14 days after
certain events.
58. New subsection 312(5) provides that an offence against new
subsection 312A(4) is an offence of strict liability.
59. The note at the end new subsection 312(5) refers to section 6.1 of the
Criminal Code Act 1995 (Cth), which defines strict liability.
Amendment 12 Schedule 1, items 26 and 27, page 9 (lines 1 to 16)
60. This amendment omits the heading to section 319 and subsections 319(1)
and (2) inserted by items 26 and 27 of the Bill, and inserts a new
heading and new subsection 319(1).
61. The replacement of the heading "Referral of conduct of former
registered migration agents to legal disciplinary authorities" with
the heading "Referral of conduct of certain migration agents, or
former registered migration agents to legal disciplinary authorities"
reflects the MARA's power under new subsection 319(1) to refer the
conduct of a registered migration agent as well as a former registered
migration agent to an authority responsible for disciplining
Australian legal practitioners in a State or Territory. These
referrals of conduct may include, for example, State or Territory Law
Societies or Legal Services Commissioners.
62. New subsection 319(1) allows the MARA to refer the conduct of a
registered migration agent or a former registered migration agent to
an authority responsible for disciplining Australian legal
practitioners in a State or Territory if the legal practitioner was
granted his or her practising certificate under the law of that State
or Territory; and the conduct occurred while the legal practitioner
was a registered migration agent, whether or not the conduct occurred
in connection with legal practice.
63. The effect of new subsection 319(1) is that the MARA will be able to
refer the conduct of eligible restricted legal practitioners whilst
they are registered as migration agents, as well as the conduct of
former registered migration agents, including those whose registration
has ended under new sections 333BA (see amendment 21) or been
cancelled under amended section 302A (see amendment 8).
Amendment 13 Schedule 1, item 30, page 10 (line 1)
64. This amendment replaces "1 July 2018" with "19 November 2018" in the
note at the end of section 333, as inserted by the Bill. This
reflects the new commencement date for Schedule 1 of this Act of 19
November 2018 (see amendment 1).
Amendment 14 Schedule 1, item 30, page 10 (lines 6 and 7)
65. This amendment replaces "1 July 2018" with "19 November 2018" in
subsection 333A(1), as inserted by the Bill. This reflects the new
commencement date for Schedule 1 of this Act of 19 November 2018 (see
amendment 1).
Amendment 15 Schedule 1, item 30, page 10 (line 10)
66. This amendment replaces "1 July 2018" with "19 November 2018" in
subsection 333A(2), as inserted by the Bill. This reflects the new
commencement date for Schedule 1 of this Act of 19 November 2018 (see
amendment 1).
Amendment 16 Schedule 1, item 30, page 10 (lines 13 and 14)
67. This amendment omits the heading to section 333B (as inserted by the
Bill), and substitutes a new heading "Registered migration agents who
were unrestricted legal practitioners immediately before 19 November
2018". This is consequential to amendment 21, which inserts new
section 333BA in relation to restricted legal practitioners.
Amendment 17 Schedule 1, item 30, page 10 (line 17)
68. This amendment replaces "1 July 2018" with "19 November 2018" in
subsection 333B(1), as inserted by the Bill. This reflects the new
commencement date for Schedule 1 of this Act of 19 November 2018 (see
amendment 1).
Amendment 18 Schedule 1, item 30, page 10 (line 21)
69. This amendment replaces the word "Australian" with "unrestricted" in
paragraph 333B(1)(b) (as inserted by the Bill) to clarify that section
333B only applies to unrestricted legal practitioners. This is
consequential to amendment 21, which inserts new section 333BA in
relation to registered migration agents who were restricted legal
practitioners immediately before 19 November 2018.
Amendment 19 Schedule 1, item 30, page 10 (line 24)
70. This amendment replaces "1 July 2018" with "19 November 2018" in
subsection 333B(2), as inserted by the Bill. This reflects the new
commencement date for Schedule 1 of this Act of 19 November 2018 (see
amendment 1).
Amendment 20 Schedule 1, item 30, page 10 (line 20)
71. This amendment omits subsection 333B(3), as inserted by the Bill.
72. Amended section 333B will apply in relation to a person who,
immediately prior to 19 November 2018, was both a registered migration
agent and an unrestricted legal practitioner (see amendment 18).
Subsection 333B(3) was inserted to clarify that the 14 day
notification requirement under current section 312 of the Migration
Act does not apply to a person captured by section 333B in relation to
an event mentioned in current subsection 312(1) that occurs less than
14 days prior to commencement. Subsection 333B(3) is unnecessary, as
a person will not be in breach of current section 312 of the Migration
Act if they are not a registered migration agent at the end of the 14
day notification period.
Amendment 21 Schedule 1, item 30, page 10 (after line 28)
73. This amendment inserts new sections 333BA and 333BB, which set out the
transitional arrangements for registered migration agents who were
restricted legal practitioners immediately before the commencement of
Schedule 1 of this Act on 19 November 2018.
New section 333BA
74. New section 333BA sets out the transitional arrangements for
registered migration agents who were restricted legal practitioners
immediately before 19 November 2018.
75. New subsection 333BA(1) provides that new section 333BA applies in
relation to a person who, immediately before 19 November 2018, was
both a registered migration agent and a restricted legal practitioner.
This includes registered migration agents who have had their MARA
registration suspended and registered migration agents whose MARA
registration would otherwise be taken to continue under current
subsection 300(4) of the Act.
76. New subsection 333BA(2) sets out when the registration of a registered
migration agent to whom new section 333BA applies will end.
77. New paragraph 333BA(2)(a) provides that if a person continues to be
both a registered migration agent and a restricted legal practitioner
until immediately before the transitional end day set out in new
subsection 333BA(3), their registration will end immediately before
the transitional end day.
78. New paragraph 333BA(2)(b) provides that if, before the transitional
end day set out in new subsection 333BA(3), the person's practising
certificate becomes unrestricted, their registration will end at the
end of the day on which the practising certificate becomes
unrestricted. This is consistent with new subsection 289B(1), which
prevents an unrestricted legal practitioner from being registered as a
migration agent with the MARA (see amendment 7); and new paragraph
302A(1)(b), which requires the MARA to cancel the registration of a
registered migration agent if the agent is, or has become, an
unrestricted legal practitioner (see amendment 8). This reflects the
policy intention of the Bill that legal practitioners providing
immigration advice should be regulated by the relevant State or
Territory Law Society and not the MARA.
79. New paragraph 333BA(2)(c) provides that if, before the transitional
end day set out in new subsection 333BA(3), the person stops being an
Australian legal practitioner, their registration will end in
accordance with current Part 3 of the Migration Act. New paragraph
333BA(2)(c) ensures that the current provisions relating to the
cessation of registration for registered migration agents who are not
an Australian legal practitioner will continue to operate as intended.
For example, current section 299 of the Migration Act provides that,
subject to a number of exceptions, the registration of a migration
agent continues for 12 months after registration. If a registered
migration agent who was both a registered migration agent and an
Australian legal practitioner immediately before 19 November 2018
ceased to be an Australian legal practitioner before the transitional
end day set out in new subsection 333BA(3), their registration would
expire 12 months after registration under current subsection 300(4),
unless an exception applied.
80. New paragraph 333BA(2)(d) provides that in any other case, the
person's registration as a migration agent will end as it would
otherwise under Part 3 of the Migration Act. New paragraph
333BA(2)(d) ensures that Part 3 of the Migration Act continues to
operate as intended in relation to registered migration agents who
were restricted legal practitioners immediately before 19 November
2018, who are not captured by new paragraphs 333BA(2)(a), (b) and (c).
81. New subsection 333BA(3) provides that the transitional end day for
registered migration agents who were restricted legal practitioners
immediately before 19 November 2018 is 19 November 2020, or a later
day no later than 19 November 2022 approved for the person by the MARA
under new section 333BB.
82. The effect of new subsection 333BA(3) is that, subject to new section
333BB, 19 November 2020 is the latest date that a registered migration
agent who was a restricted legal practitioner immediately before 19
November 2018 can continue to be both a registered migration agent and
an Australian legal practitioner. This is consistent with new
subsection 278A(1), which, subject to new subsection 278A(2), provides
that a restricted legal practitioner is eligible if he or she has held
a restricted practising certificate for a period of no longer than 2
years (see amendment 6).
83. Similar to new section 278A, which will apply to registered migration
agents who are eligible restricted legal practitioners after 19
November 2018, the transitional end day of 19 November 2020 is
intended to allow registered migration agents who are currently
restricted legal practitioners to continue to be registered as a
registered migration agent for specified period of time to provide
them with time to complete their supervised legal practice period to
become eligible for an unrestricted practising certificate. This time
period takes into account current State and Territory legislation,
which, depending on the jurisdiction, allows a restricted legal
practitioner to become eligible for an unrestricted practising
certificate within 18 months to two years.[2]
84. New subsection 333BA(4) defers the operation of new section 289B and
amended section 302A in relation to a registered migration agent who
was a restricted legal practitioner immediately before 19 November
2018.
85. New section 289B prevents an unrestricted legal practitioner, or a
restricted legal practitioner who is not eligible under new section
278A from being registered as a migration agent with the MARA (new
note 1 at the end of new subsection 333BA(4) refers; see amendment 7).
86. Amended section 302A requires the MARA to cancel the registration of a
registered migration agent if he or she becomes an unrestricted legal
practitioner, or is not or no longer an eligible restricted legal
practitioner (new note 2 at the end of new subsection 333BA(4) refers;
see amendment 8).
87. New paragraph 333BA(4)(a) provides that, for registered migration
agents who continue to be both a registered migration agent and a
restricted legal practitioner until immediately before the
transitional end day (see new paragraph 333BA(2)(a)), new section 289B
and amended section 302A will not apply until the start of the
transitional end day.
88. New paragraph 333BA(4)(b) provides that in any other case, new section
289B and amended section 302A will not apply until the earlier of
immediately after the person's registration ends in accordance with
new paragraph 333BA(2)(b), (c) or (d); and the start of the
transitional end day.
89. The effect of new subsection 333BA(4) is that registered migration
agents who were restricted legal practitioners immediately before 19
November 2018 will not be prevented from being registered as a
migration agent by new section 289B, or have their registration
cancelled under amended section 302A, until the start of the
transitional end day, or, if their registration ends before the
transitional end day, immediately after their registration ends. This
is consistent with the operation of new section 289B and amended
section 302A in relation to eligible restricted legal practitioners.
New section 333BB
90. New section 333BB allows the MARA to approve a later transitional end
day for a registered migration agent who was a restricted legal
practitioner immediately before 19 November 2018.
91. New subsection 333BB(1) allows a registered migration agent covered by
new section 333BA to apply to the MARA for approval of a later
transitional end day of no later than 19 November 2022. Such an
application must be made before 19 August 2020, in a form approved in
writing by the MARA and containing information relevant to the
application as required by the form.
92. New subsection 333BB(2) provides that a person can only make one
application for approval of a later transitional end day under new
subsection 333BB(1). This is to prevent registered migration agents
from repeatedly prolonging the transitional period during which they
can be both registered migration agents and legal practitioners. This
is consistent with the policy intention of the Bill that legal
practitioners providing immigration advice should be regulated by the
relevant State or Territory Law Society and not the MARA.
93. Upon application under new subsection 333BB(1), new subsection
333BB(3) requires the MARA to, by written notice, either approve a
stated day of no later than 19 November 2022 as a later transitional
end day for the applicant, or refuse to approve a later transitional
end day. The written notice must be provided before the start of the
period determined by a legislative instrument under new subsection
333BB(6) prior to 19 November 2020.
94. New subsection 333BB(4) provides that the MARA may only approve a
particular later transitional end day for the applicant if the MARA
considers it reasonable to do so in the circumstances. In considering
whether there are reasonable circumstances, the MARA is to consider
circumstances determined by a legislative instrument made by the
Minister under new subsection 333BB(6). However, the MARA is not
limited to any circumstances determined under new subsection 333BB(6).
Reasonable circumstances may include, for example, pregnancy or
chronic illness of the applicant.
95. New subsection 333BB(5) requires notice of the decision under new
subsection 333BB(3) to include any details of the decision determined
by a legislative instrument made under new subsection 333BB(6).
96. New subsection 333BB(6) allows the Minister to make a determination
for the purposes of new subsections 333BB(3), (4) or (5) by
legislative instrument. Any legislative instrument made under new
subsection 333BB(6) will be subject to disallowance in accordance with
section 42 of the Legislation Act.
97. New subsection 333BB(7) provides that an application may be made to
the Administrative Appeals Tribunal for merits review of a decision to
approve a particular later transitional end day under new paragraph
333BB(3)(a) or a decision to refuse to approve a later transitional
end day under new paragraph 333BB(3)(b).
98. The note at the end of new subsection 333BB(7) makes it clear that
section 27A of the AAT Act applies in relation to a reviewable
decision made by the MARA. Subsection 27A(1) of the AAT Act requires
the MARA to take such steps as are reasonable in the circumstances to
give a person whose interests are affected by a reviewable decision
notice of the decision and the right to have the decision reviewed.
The intention is that this will be provided in any written notice
given under new subsection 333BB(3).
Amendment 22 Schedule 1, item 30, page 11 (line 1)
99. This amendment replaces "1 July 2018" with "19 November 2018" in the
heading of section 333C, as inserted by the Bill. This reflects the
new commencement date for Schedule 1 of this Act of 19 November 2018
(see amendment 1).
Amendment 23 Schedule 1, item 30, page 11 (line 4)
100. This amendment replaces "1 July 2018" with "19 November 2018" in
subsection 333C(1), as inserted by the Bill. This reflects the new
commencement date for Schedule 1 of this Act of 19 November 2018 (see
amendment 1).
Amendment 24 Schedule 1, item 30, page 11 (line 11)
101. This amendment replaces the words "The amendments" in subsection
333C(2) with "Subject to section 333BA, the amendments".
102. Amended section 333C sets out the application of the amendments made
to Division 3 of the Migration Act (registration of migration agents)
in relation to registration applications made before 19 November 2018.
This amendment makes it clear that the application provisions in
amended subsection 333C are subject to new section 333BA, which sets
out the transitional arrangements for registered migration agents who
were restricted legal practitioners immediately prior to 19 November
2018 (see amendment 21).
103. The effect of amended section 333C is that undecided applications for
registration as a migration agent made by unrestricted legal
practitioners prior to 19 November 2018 will be considered as if they
had been made after 19 November 2018.
Amendment 25 Schedule 1, item 30, page 11 (lines 13 and 14)
104. This amendment replaces "1 July 2018" with "19 November 2018" in
subsection 333C(2), as inserted by the Bill. This reflects the new
commencement date for Schedule 1 of this Act of 19 November 2018 (see
amendment 1).
Amendment 26 Schedule 1, item 30, page 11 (lines 15 to 17)
105. This amendment omits the note at the end of subsection 333C(2), as
inserted by the Bill, and substitutes it with new notes 1 and 2. The
new notes refer readers to provisions relating to registration of
Australian legal practitioners as migration agents.
106. New note 1 refers to new section 289B, which prevents an unrestricted
legal practitioner or a restricted legal practitioner other than an
eligible restricted legal practitioner from being registered as a
migration agent with the MARA (see amendment 7). New section 289B
will apply to unrestricted legal practitioners regardless of whether
the application for registration was made before, on, or after
19 November 2018.
107. New note 2 refers to new section 333BA, which sets out the
transitional arrangements for registered migration agents who were
restricted legal practitioners immediately prior to 19 November 2018
(see amendment 21). New subsection 333BA(4) sets out when new section
289B (Applications by Australian legal practitioners - see amendment
7) and amended section 302A (Cancellation if registered migration
agent becomes an Australian legal practitioner - see amendment 8)
apply in relation to registered migration agents who were restricted
legal practitioners immediately before 19 November 2018.
Amendment 27 Schedule 1, item 30, page 11 (line 18)
108. This amendment replaces the word "Australian" with "unrestricted" in
subsection 333C(3) (as inserted by the Bill) to clarify that
subsection 333C(3) only applies to unrestricted legal practitioners.
This is consequential to amendment 21, which inserts new section 333BA
in relation to registered migration agents who were restricted legal
practitioners immediately before 19 November 2018.
Amendment 28 Schedule 1, item 30, page 11 (line 19)
109. This amendment replaces the first reference to "1 July 2018" in
subsection 333C(3), as inserted by the Bill, with "19 November 2018".
This reflects the new commencement date for Schedule 1 of this Act of
19 November 2018 (see amendment 1).
Amendment 29 Schedule 1, item 30, page 11 (line 20)
110. This amendment replaces the second reference to "1 July 2018" in
subsection 333C(3), as inserted by the Bill, with "19 November 2018".
This reflects the new commencement date for Schedule 1 of this Act of
19 November 2018 (see amendment 1).
Amendment 30 Schedule 1, item 30, page 11 (line 23)
111. This amendment replaces "1 July 2018" with "19 November 2018" in the
note at the end of subsection 333C(3), as inserted by the Bill. This
reflects the new commencement date for Schedule 1 of this Act of 19
November 2018 (see amendment 1).
Amendment 31 Schedule 1, item 30, page 11 (line 31)
112. This amendment replaces "1 July 2018" with "19 November 2018" in
subsection 333C(4), as inserted by the Bill. This reflects the new
commencement date for Schedule 1 of this Act of 19 November 2018 (see
amendment 1).
Amendment 32 Schedule 2, item 4, page 13 (line 5)
113. This amendment replaces "1 January 2018" with "19 November 2018" in
the application provision for the amendments made by Part 1 of
Schedule 2 to the Bill. This reflects the new commencement date for
Schedule 1 of this Act of 19 November 2018 (see amendment 1), and
ensures that the amendments made by Part 1 of Schedule 2 to the Bill
operate prospectively.
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011
Migration Amendment (Regulation of Migration Agents) Bill 2017
This Bill is compatible with the human rights and freedoms recognised or
declared in the international instruments listed in section 3 of the Human
Rights (Parliamentary Scrutiny) Act 2011.
Overview of the changes
The Migration Amendment (Regulation of Migration Agents) Bill 2017 (the
Bill) is an omnibus package of reforms aimed at deregulating the migration
advice industry.
The key measure of this Bill, in Schedule 1, will give effect to
Recommendation 1 of the 2014 Independent Review of the Office of the
Migration Agents Registration Authority (MARA). The Bill is due to come
into effect on 19 November 2018. This Bill was introduced into Parliament
on 21 June 2017 and this Bill provides further amendments relating to
Schedule 1.
The Senate Legal and Constitutional Affairs Legislation Committee
recommended in October 2017 that amendments be made to the Bill to
implement a formal transition period of two years from the commencement of
the Bill for registered migration agents currently holding restricted
practising certificates.
The amendments to this Bill will implement the Committee's recommendation.
Additionally the Bill will allow a further two year transitional period if
there is a reasonable basis for a registered migration agent continuing to
hold a restricted practicing certificate beyond the initial transitional
period.
Transitional provisions for existing registered migration agents (Schedule
1 of Bill)
Transitional end day
The Government amendment to this Bill (new section 333BA) extends a two-
year transitional period for registered migration agents who are restricted
legal practitioners immediately before 19 November 2018, during which they
may remain registered with the MARA. This extension, until 19 November
2020, the transitional end day, will allow them a two-year period to adapt
their business model to the new provisions that will exclude them from
registering as migration agents with the MARA, but also prevent them from
providing immigration advice as they do not hold unrestricted practising
certificates.
The two-year transitional period will only be available to lawyers who were
registered migration agents and holders of a practicing certificate with
restrictions or conditions imposed upon that practising certificate at the
time the legislation commences, on 19 November 2018.
Later transitional end day
New section 333BB provides that the MARA may approve a later transitional
end day, no later than 19 November 2022, with no possibility for a further
extension, for registered migration agents, covered by section 333BA, who
apply for this later transitional end day. The application for a later
transitional end day must occur within the period specified in section
333BB. After 19 November 2022, those formerly covered by section 333BB, who
wish to continue to provide immigration assistance, can either practice
under their newly acquired unrestricted practising certificate or elect to
give up their practising certificate and maintain their registration with
the MARA.
Establishment of eligibility period for registered migration agents with
restricted practising certificates
In addition to transitional provisions for existing registered migration
agents, the Government amendment (new section 278A) introduces the concept
of eligible restricted legal practitioners, that is those who have held a
restricted practising certificate for a period of no longer than 2 years.
New section 289A provides that eligible restricted legal practitioners may
apply for registration as a migration agent.
The eligibility period is two years from the date of obtaining their
restricted legal practising certificate, after which applicants may apply
to the MARA for an extension of the eligible period, which may granted for
no more than two years.
Defining the two groups of practising certificates
Section 275 will introduce the terms of 'restricted practising
certificates' and 'unrestricted practising certificates.
'Restricted practising certificates' are practising certificates held by
Australian legal practitioners which are: subject to conditions requiring
the practitioner to undertake supervised legal practice for a specified
period; and such conditions are not imposed as a disciplinary measure by a
State or Territory legal professional disciplinary authority.
'Unrestricted practising certificates' are practising certificates held by
Australian legal practitioners that are not restricted.
Human rights implications
Schedule 1
This Government amendment identifies a specific cohort of lawyers, namely
those with restricted legal practising certificates and allows them to
maintain access to a dual registration scheme for an extended period of
time, to enable them to fulfil their requirements for an unrestricted
practising certificate, if desired.
This amendment may engage the right not to be subjected to discrimination
under Article 2 and Article 26 of the International Covenant on Civil and
Political Rights (ICCPR) as the same opportunity is not provided to those
lawyers who have unrestricted practicing certificates. Article 2 of the
ICCPR states:
"Each State Party to the present Covenant undertakes to respect and to
ensure to all individuals within its territory and subject to its
jurisdiction the rights recognized in the present Covenant, without
distinction of any kind, such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status."
Article 26 of the ICCPR states:
"All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect,
the law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status."
This amendment positively engages Article 2 and 26 of the ICCPR as the
provision of the extension of time will ensure lawyers who hold restricted
practising certificates are not disadvantaged by the Bill. The amendment
permits the affected lawyers the time to adapt to the new provisions that
exclude them from registering as migration agents with the MARA, by either
allowing them time to take steps to obtain an unrestricted practising
certificate or elect to give up their practising certificate so they can
remain registered with the MARA.
Further, although lawyers who hold unrestricted practising certificates
will be unable to register with the MARA as migration agents after passage
of the Bill, their unrestricted practising certificate will allow them to
provide immigration assistance in connection with legal practice (that is,
legal advice on immigration matters). As such, there will be no practical
discriminatory effect.
This amendment is therefore compatible with human rights.
Right to work
The amendment may also engage the right to work under Article 6(1) of the
International Covenant on Economic, Social and Cultural Rights (ICESCR)
which states:
"The States Parties to the present Covenant recognize the right to
work, which includes the right of everyone to the opportunity to gain
his living by work which he freely chooses or accepts, and will take
appropriate steps to safeguard this right."
The UN Committee on Economic, Social and Cultural Rights has stated that
the right to work affirms the obligation of States parties to assure
individuals their right to freely chosen or accepted work, including the
right not to be deprived of work unfairly.
The amendments will positively engage the right to work under Article 6(1)
of the ICESCR because they allow for a transition period for lawyers on
restricted practicing certificates.
As noted above, the amendment permits the affected lawyers the time to
adapt to the new provisions that exclude them from registering as migration
agents with the MARA, by either allowing them time to take steps to obtain
an unrestricted practising certificate or elect to give up their practising
certificate so they can remain registered with the MARA.
Further, although lawyers who hold unrestricted practising certificates
will be unable to register with the MARA as migration agents after passage
of the Bill, their unrestricted practising certificate will allow them to
continue to provide legal advice on immigration matters. As such, there
will be no practical discriminatory effect.
Conclusion
This Bill is compatible with human rights as it positively engages Article
2 and 26 of the ICCPR and has no practical discriminatory effect on lawyers
affected by the Bill who hold unrestricted practising certificates. It also
positively engages the right to work under Article 6(1) of the ICESCR.
The Hon Alex Hawke MP, Assistant Minister for Immigration and Border
Protection
-----------------------
[1] Legal Profession Regulation 2007 (ACT); Legal Profession Uniform Law
(NSW); Legal Profession Act 2006 (NT); Legal Profession Act 2007 (Qld);
Rules of the Legal Practitioners Education and Admission Council 2004 (SA);
Legal Professions Act 2007 (Tas); Legal Profession Uniform Law Application
Act 2014 (Vic); Legal Profession Act 2008 (WA).
[2] Legal Profession Regulation 2007 (ACT); Legal Profession Uniform Law
(NSW); Legal Profession Act 2006 (NT); Legal Profession Act 2007 (Qld);
Rules of the Legal Practitioners Education and Admission Council 2004 (SA);
Legal Professions Act 2007 (Tas); Legal Profession Uniform Law Application
Act 2014 (Vic); Legal Profession Act 2008 (WA).
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