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1998 - 1999 - 2000
THE PARLIAMENT
OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION LEGISLATION
AMENDMENT (MIGRATION AGENTS) BILL 2000
EXPLANATORY
MEMORANDUM
(Circulated by
authority of the
Minister for Immigration and Multicultural Affairs,
The
Hon. Philip Ruddock MP)
ISBN: 0642 454426
MIGRATION LEGISLATION AMENDMENT (MIGRATION AGENTS)
BILL 2000
OUTLINE
Overview
1 The
Migration Legislation Amendment (Migration Agents) Bill 2000 (“the
Bill”) makes a number of amendments to the Migration Act 1958
(“the Act”).
2 The Act provides a scheme for the regulation
of persons who seek to act as migration agents. In general terms a migration
agent is an individual who uses, or purports to use, their knowledge or
experience in migration procedure to give what is defined in the Act as
"immigration assistance".
3 The amendments change the scheme for the
regulation of migration agents by:
• providing powers to allow the
Migration Agents Registration Authority (MARA) to start or complete
investigation of complaints against an agent even if the agent is no longer
registered, and to subsequently impose a bar on the return to the industry of
the agent if it is satisfied that the complaint is made
out;
• including a carry-over provision for agents applying for repeat
registration so that, as long as agents apply before their existing registration
has expired, they will stay registered until the MARA has made a decision on
their application; and
• introducing a flexible mechanism for further
defining what kinds of activities come within the scope of the regulatory
scheme.
4 The first item is intended to deal with migration agents
avoiding the disciplinary provisions of the regulatory scheme simply by
deregistering or allowing their registration to expire. It will ensure that
the MARA can start and complete investigations even where the agent is no longer
registered (as long as the complaint is not received more than 12 months after
the registration has ceased).
5 It also includes provisions which could
bar the return of former agents to the industry and which require the MARA to
publicise such action. These provisions are analogous to and will operate in a
similar way to existing provisions in the regulatory scheme.
6 The second
item is intended to ensure that agents are not disadvantaged through delays in
processing repeat registration applications.
7 The third item is intended
to, amongst other things, allow regulations to be made that could ensure that
certain types of "in house" assistance (say from an employer in relation to a
prospective employee) do not fall within the scope of the regulatory scheme.
FINANCIAL IMPACT STATEMENT
8 These amendments will
have minimal financial impact.
NOTES ON INDIVIDUAL
CLAUSES
Clause 1 Short Title
1. The short title by
which this Act will be known is the Migration Legislation Amendment
(Migration Agents) Act 2000.
Clause
2 Commencement
2. Subclause 2(1) provides that subject to this
section, this Act commences on the
day on which it receives the Royal
Assent.
3. Subclause 2(2) provides that, subject to subsection (3),
section 5 and items 3, 5, 8, 15, 16, 18, 19, 20, 21 and 22 of Schedule 1
commence on a day to be fixed by Proclamation. These provisions relate to
former registered agents.
4. Subclause 2(3) provides that if section 5
and items 3,5, 8, 15, 16, 18, 19, 20, 21 and 22 of Schedule 1 are not proclaimed
within six months of this Act receiving the Royal assent, then they will
commence on the first day immediately after that period.
5. Subclause
2(4) provides that items 9 to14 of Schedule 1 commence at the later of the
following times:
(a) immediately after the commencement of item 8 of Schedule
1
(b) the commencement of Parts 4 to 10 of the Act that establishes the
Administrative Review Tribunal.
Clause
3 Schedule(s)
6. This clause provides that subject to section 2, the
provisions of each Act set out in the items of the Schedule to this Act is
amended or repealed as set out in the applicable items in the Schedule
concerned, and any other item in a Schedule to this Act has effect according to
its terms.
Clause 4 Application Provision - automatic continuation of
registration
7. The new section 300 of the Act proposed by item 7 of
Schedule 1 introduces "carry-over" provisions to ensure that agents who apply
for repeat registration within the period of their existing registration are
taken to remain registered whilst the MARA is considering the application for
repeat registration.
8. This clause provides that the "carry over"
provisions in proposed section 300 will apply to registration applications made
after commencement, or those made before commencement of proposed section 300,
as long as the applicant was still a registered agent immediately before
commencement.
9. The effect of paragraph (b) in this clause is to ensure
that, of the existing pool of repeat registration applications in existence at
the commencement date, it is only those which have been made by agents whose
registration had not ceased at the time of commencement that benefit from the
"carry over" arrangement.
Clause 5 Application Provision -
disciplining former registered agents
10. This clause provides that
the amendments made by items 8, 15, 16, 18, 19, 20 21, and 22 of Schedule 1 to
this Act apply to:
• any complaint about a person made after
the commencement of this section in relation to his or her provision of
immigration assistance before or after commencement of this section;
and
• any complaint about a person made before commencement of
this section, but only if the person was a registered agent immediately before
commencement.
11. The latter part of this application arrangement
provides scope for the MARA to apply the "Disciplining former registered agents"
provisions in new Division 4A of the Act to complaints which are in existence at
the time of commencement ("existing complaints"), but only where the
agent is also registered at the time of commencement.
12. As a result,
the bar of up to 5 years provided for in new section 311A can only come into
play in relation to existing complaints where the agent is registered
immediately before commencement but has, for whatever reason, become
deregistered after commencement.
Schedule
1 Amendments
Migration Act 1958
Item 1 At the end
of section 276
13. This item adds a new subsection 4 to section 276
of the Act to provide that regulations may prescribe circumstances in which a
person does not give immigration assistance.
14. The term "immigration
assistance" is described at section 276 of the Act and, in very broad terms,
covers the use of knowledge and experience in giving assistance to visa
applicants. Section 280 of the Act imposes restrictions on the giving of
immigration assistance and makes it an offence to do so in certain
circumstances.
15. The new provision will provide a flexible mechanism to
deal with specific kinds of activities that are not intended to be captured by
the regulatory scheme. For example the regulations might provide that specific
kinds of help given to applicants seeking visas of specified classes may not
constitute "immigration assistance". An illustration of where this might be
useful would be to clarify the status of immigration assistance if it is given
by employers to actual or intending employees.
Item 2 At the end of
section 282
16. This item adds a new subsection 5 to section 282 of
the Act to provide that regulations may prescribe circumstances in which a
person does not make immigration representations.
17. The term "makes
immigration representations" is described in section 282 of the Act and, in
broad terms, deals with the making of representations to the Minister, the
Minister's staff or the Department about visa applications and related matters.
Section 282 imposes restrictions on the making of immigration representations
and makes it an offence to ask for or receive a fee for doing so in certain
circumstances.
18. The new provision will provide a flexible mechanism to
deal with specific kinds of activities that are not intended to be captured by
the regulatory scheme. For example the regulations might provide that specific
kinds of representation made on behalf of applicants for specified visa classes
may not constitute "immigration representations". An illustration of where
this might be useful would be to clarify the status of a person in a major
corporation whose paid duties include making representations to visa
decision-makers on behalf of actual or intending employees of the
corporation.
Item 3 Subsection 289(1)
19. This is a
technical amendment consequent to the insertion of section 292A of the Act by
item 5.
Item 4 Subsection 289(4)
20. Subsection 289(4) of
the Act deals with the taking of effect of registration of an already registered
migration agent. It provides a mechanism for determining the time a further
registration takes effect and, if not amended, could operate in conflict with
new subsection 300(3).
21. This item resolves any possible conflict
between the two provisions and is consequential to the insertion of new
subsection 300(3) of the Act by item 7.
Item 5 After section
292
22. This item inserts new section 292A into the
Act.
New section 292A Applicant must not be registered if any barring
period
has not ended
23. New section 292A provides that an
applicant must not be registered if MARA has made a decision to bar him or her
from being a registered agent under subsection 311A(1) and the period has not
ended.
Item 6 Subsection 299(1)
24. This is a technical
amendment consequent to the insertion of new section 300 into the Act by Item
7.
Item 7 After section 299
25. This item inserts new
section 300 into the Act.
New section 300 Automatic continuation of
registration
26. New subsection 300(1) of the Act will allow an
agent's existing registration to continue after its expected expiry date if
there is a pending repeat registration application (with the application fee
paid) at the expiry of the current registration. The registration will continue
until the MARA makes a decision.
Application granted if no decision
within a certain period
27. New subsection 300(2) of the Act provides
that, if the MARA has not decided the application within 10 months of the expiry
of the agent's registration, the application is taken to have been granted at
the end of that period.
28. This situation might occur where an agent
seeks merits or judicial review of a cancellation or suspension decision and the
decision is stayed by a review body or the court pending final determination.
In these circumstances, the MARA may consider it inappropriate to make a
decision on the repeat registration application until the outcome of the review
of the previous decision is known.
29. Taking the application to have
been granted after a period of 10 months will ensure that the normal cycles of
registration and repeat registration are maintained. It will ensure that the
repeat registration application is finalised at least 1 month before the next
cycle of repeat registration begins (pursuant to section 301 of the Act, the
MARA is obliged to give at least 1 month's written notice of the expiry of
registration - this is the beginning of the repeat registration cycle).
30. This will give registered agents some certainty in relation to the
period of time that their "carry over" registration will be in existence. It
will also ensure that they have the opportunity to plan compliance with the
continuing professional development requirements for their next repeat
registration application (as prescribed by section 290A of the
Act).
When registration takes effect
31. New subsection
300(3) of the Act effectively provides that, if an application is granted,
registration lasts for 12 months beginning at the expiry of the previous
registration. An example is provided illustrating how this may
apply.
Item 8 After Division 4 of Part 3
32. This item
inserts a new Division 4A which relates to disciplining of former registered
agents. Currently an agent about whom the MARA has received complaints can
frustrate the MARA's investigation by deregistering. This action also allows
them to avoid the disciplinary provisions of the Act as they apply to migration
agents.
33. The new Division will ensure that agents cannot avoid having
complaints against them investigated and action taken against them simply by
leaving the industry. The scheme of the Division is analogous to existing
provisions in the Act dealing with the cancellation or suspension of registered
agents.
Division 4A Disciplining former registered
agents
New section 311A Barring former registered agents from
being registered
for up to 5 years
34. New section 311A
will allow the MARA to bar a former registered agent from being a registered
agent for a period if, after investigating a complaint about him or her in
relation to the provision of immigration assistance, it is satisfied that the
subject matter of the complaint is made out.
35. The bar may be based
on investigation of a complaint about immigration assistance which was given at
any time when the former registered agent was a registered
agent.
36. However the complaint that the investigation was based on is
itself subject to new subsection 316(1B) of the Act, which is inserted by item
18 That subsection provides that complaints about former registered agents can
only be investigated if received within 12 months after the person ceased to be
a registered agent.
37. The note points to the code of procedure found in
new section 311D of the Act. That code ensures that procedural fairness is
accorded to former agents who may be subject to a decision under new section
311A barring their re-entry to the industry.
38. New subsection 311A(2)
of the Act provides that the period of such a bar must not be more than 5 years.
New section 311B Notification of Decision
39. New section
311B relates to notification of a decision to bar a former registered agent. It
is based on, and will operated in a similar way to existing section 305 of the
Act which deals with notice of cancellation or suspension of registered
agents.
Notice to former registered agent
40. New
subsection 311B(1) is similar to paragraph 305(1)(a) of the Act. It requires
the MARA to give written notice to a former registered agent of its decision
under new section 311A to bar that person from registering as an agent again.
The notice must give the reasons for the decision and specify the period of time
that the bar will operate for.
Publication of a statement about
decision
41. New subsection 311B(2) is similar to paragraph 305(1)(b)
of the Act. It requires the MARA to publish in the prescribed way a statement
about the decision which includes the reasons for the decision. Publication of
the statement will warn potential clients, members of the community and the
migration advice industry (and related professions) of the barring of the former
registered agent.
Time of publication
42. New subsections
311B(3) and (4) are similar to existing subsection 305(2) of the Act. They
require the MARA to publish the statement as soon as possible after the end of
28 days after the former agent is given written notice of the decision, unless
the former agent seeks merits or judicial review of the decision within that
period.
43. Where the agent does seek merits or judicial review within
the 28 days and the decision stands, the statement must be published as soon as
possible at the end of those proceedings.
New section
311C Publication of additional statement about decision
44. New
section 311C is similar to existing section 305A of the Act, which deals with
the publication of additional statements about cancellation or suspension of
registrations. It provides the MARA with the ability to make a statement about
the decision to bar a former registered agent available to the public in a
variety of ways.
45. The new Section will provide a discretionary
cost-effective means of publishing the details of the decision including the
MARA's reasons, findings on material questions of fact and evidence on which the
findings were based. It also provides an immunity for publishing in good
faith, a copy of, extract from or a fair summary of the statement.
46. New subsection 311C(1) is similar to existing subsection 305A(1) of
the Act. It provides a discretionary power for the MARA to prepare a statement
about a decision to bar a former registered agent, and to make the statement
publicly available.
Content of statement
47. New subsection
311C(2) is similar to existing subsection 305A(2) of the Act. It provides
details of what the MARA may include in any additional statement made public
under new subsection 311C(1).
How statement to be made
available
48. New subsection 311C(4) is similar to existing
subsection 305A(4) of the Act. It describes the means by which the MARA may
make a statement publicly available.
49. The MARA may, for example,
decide in a particular case to publish a statement in its own newsletter, in a
national newspaper and post a notice on its website to ensure that the widest
possible notification is given of its decision to ban a former
agent.
Immunity for publishing statement
50. New subsection
311C(5) is similar to existing subsection 305A(5) of the Act. That provision
was, in turn, based on similar provisions at subsection 134A(5) of the
National Health Act 1953.
New section 311D Former registered
agent may make a submission etc.
51. New section 311D is similar to
existing sections 309 and 310 of the Act. It ensures that procedural fairness
is accorded to former agents who may be subject to a decision under new section
311A barring their re-entry to the industry.
Invitation to make
submission
52. New subsection 311D(1) is similar to existing
subsection 309(2) of the Act. It provides that the MARA must give written
notice to a former agent of a proposal to make a decision under new subsection
311A(1) and invite the former agent to make a written submission within 28
days.
Authority to consider any submission
53. New
subsection 311D(2) provides that the MARA must consider any written submission
received within the 28 day period mentioned in new paragraph
311D(1)(b).
No submission received
54. New subsection
311D(3) is similar to existing subsection 310(2) of the Act. It provides that,
if the MARA does not receive a written submission it may decide the matter on
the information before it.
Submission received
55. New
subsection 311D(4) is similar to existing subsection 310(3) of the Act. It
provides that, where a written submission is received, the MARA may decide the
matter, or at its discretion, give the former registered agent the opportunity
to appear before it and then decide the matter.
New section
311E Authority not bound by legal forms
56. New section 311E is
similar to existing section 311 of the Act. It provides that the MARA is not
bound by technicalities, legal forms or rules of evidence but must act according
to substantial justice and the merits of the case when making a decision under
new subsection 311A(1).
New section 311F Review by the Administrative
Appeals Tribunal
57. New section 311F is similar to existing section
306 of the Act. It provides that, subject to the Administrative Appeals
Tribunal Act 1975, former registered agents may seek review of a decision
under new subsection 311A(1).
Item 9 Paragraph
311B(4)(a)
58. This item makes a technical amendment substituting
Administrative Review Tribunal for Administrative Appeals Tribunal.
Commencement of this item is consequential to, and dependent on, commencement of
the Administrative Review Tribunal Act 2000.
Item 10 Paragraph
311B(4)(b)
Item 11 Subsection 311B(4)
Item 12 Section
311F
Item 13 Section 311F
59. These items make technical
amendments to remove any ambiguity in the interpretation of the relevant
sections of the Act following establishment of the Administrative Review
Tribunal. Commencement of these items are consequential to, and dependent on,
commencement of the Administrative Review Tribunal Act
2000.
Item 14 At the end of section 311F
60. New
subsection 311F(2) provides that review of a decision by the MARA taken under
new subsection 311A(1), is to take place in the Commercial and General Division
of the Administrative Review Tribunal. Commencement of this item is
consequential to, and dependent on, commencement of the Administrative Review
Tribunal Act 2000.
61. Review is to take place in the Commercial and
General Division rather than the Immigration and Refugee Division of the
Tribunal as MARA decisions are effectively agent licensing decisions, and can be
easily distinguished from visa decisions.
Item 15 Paragraph
316(1)(c)
Item 16 Paragraph 316(1)(d)
62. These items will
ensure that the MARA can investigate complaints in relation to the provision of
immigration assistance by registered agents and will avoid any doubt over
whether the MARA's functions extend to dealing with agents who are no longer
registered.
Item 17 At the end of subsection
316(1)
63. This item corrects a technical error in Schedule 1, Item 5
of the Migration Legislation Amendment (Migration Agents) Act
1999.
Item 18 After subsection 316(1)
64. This item
inserts two new subsections 316(1A) and 316(1B).
65. New subsection
316(1A) clarifies that the MARA may start or complete an investigation of a
complaint about a person at a time when the person is no longer a registered
agent.
66. New subsection 316(1B) provides that the MARA can only
investigate a complaint about a former registered agent if the complaint is
received within 12 months after the former registered agent ceased to be a
registered agent. This is intended to provide certainty for agents and former
agents, and as a by-product ensures that the MARA's attention is given to those
cases which can be most effectively investigated.
Item 19 Section
318
Item 20 Subsection 319 (1)
67. These items will ensure
that the MARA's power to refer people to mediation (under existing section 318
of the Act) or to refer a lawyer's conduct to a disciplinary authority (under
existing subsection 319(1) of the Act) will extend to former registered
agents.
Item 21 Subsection 319(2)
68. This item is a
technical amendment to the limitation on the action that the MARA may take
against an agent who is referred, pursuant to existing subsection 319(1) of the
Act, to a disciplinary authority for lawyers.
69. The amendment is
required as existing subsection 319(1) of the Act only logically extends to
registered agents, and not to former registered agents, because the
powers in existing section 303 of the Act only extend to registered
agents.
Item 22 At the end of section 319
70. This item
inserts new subsection 319(3) and provides protection to former agents similar
to that which existing subsection 319(2) of the Act provides to
registered agents.