Commonwealth Numbered Regulations - Explanatory Statements

[Index] [Search] [Download] [Related Items] [Help]

MIGRATION AGENTS AMENDMENT REGULATIONS 2004 (NO. 2) 2004 NO. 391

Subsection 504(1) of the Migration Act 1958 (the Act) provides in part that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, regulations may be made pursuant to the provisions listed in Attachment A.

The purpose of the Regulations is to amend the Migration Agents Regulations 1998 (the Principal Regulations) to implement changes relating to the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 and certain recommendations in the 2001-02 Review of Statutory Self-Regulation of the Migration Advice Industry. The changes relate directly to:

•       disclosure of fees;

•       publication of notices;

•       record keeping requirements;

•       professional obligations;

•       disclosure of personal information;

•       professional library requirements; and

•       additional technical amendments.

Details of the Regulations are set out in Attachment B.

The Act specifies no conditions that need to be met before the power to make the Regulations may be exercised.

Regulations 1 to 3 and Schedule 1 commence on 2 April 2005. Schedule 2 to the Regulations commences on 1 July 2005 to allow additional time to implement a means of collecting average fee information from Migration Agents.

0406557A-041116Z

ATTACHMENT A

Subsection 504(1) of the Migration Act 1958 (the Act) provides in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition to subsection 504(1), the following provisions may apply:

•       subsection 5(1) of the Act provides, amongst other things, that "prescribed" means prescribed by the regulations;

•       subsection 288(2) of the Act, which provides that an individual applying to the Migration Agents Registration Authority (the Authority) to be registered as a migration agent must satisfy 1 of 2 publishing options set out in section 288A (unless he or she has been registered at some time in the 12 months immediately before making the application);

•       subsection 288A(2) of the Act, which provides that the regulations may prescribe the way that an individual is to publish a notice about his or her application for registration as a registered migration agent;

•       subsection 288A(3) of the Act, which provides that the regulations may prescribe the way an individual and one or more other individuals, who are all employees of the same employer, are to publish a single notice about their application for registration as registered migration agents;

•       paragraph 306AL(1)(a) of the Act, which provides that the regulations may prescribe the way in which, if a registered migration agent is given notice of a mandatory decision, the Authority must as soon as possible make available a statement that sets out the mandatory decision, the referral decision to which the mandatory decision relates and specifies grounds for the referral decision;

•       paragraph 311P(1)(a) of the Act, which provides that the regulations may prescribe the way in which, if a former registered migration agent is given notice of a mandatory decision, the Authority must as soon as possible make available a statement that sets out the mandatory decision, the referral decision to which the mandatory decision relates and specifies grounds for the referral decision;

•       subsection 314(1) of the Act, which provides that the regulations may prescribe a Code of Conduct for migration agents and a registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct;

•       subsection 321A(3) of the Act, which provides that the regulations may prescribe the circumstances under which personal information about a migration agent or former migration agent disclosed by the Authority to the Secretary or a review body pursuant to subsection 321A(1) may be used or disclosed by the recipient;

•       subsection 332F(3) of the Act, which provides that the regulations may prescribe the circumstances under which a review authority may use or disclose personal information about a migration agent or former migration agent that is disclosed to the review body by the Secretary pursuant to subsection 321A(1); and

•       subsection 332G(3) of the Act, which provides that the regulations may prescribe circumstances in which the Secretary may use or disclose personal information about a migration agent or former migration agent, disclosed to the Secretary by a review authority pursuant to subsection 332G(1).

ATTACHMENT B

Details of the proposed Migration Agents Amendment Regulations 2004 (No. 2)

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Agents Amendment Regulations 2004 (No. 2).

Regulation 2 - Commencement

This regulation provides that regulations 1 to 3 and Schedule 1 commence on 2 April 2005, and that Schedule 2 commences on 1 July 2005.

Regulation 3 - Amendment of the Migration Agents Regulations 1998

This regulation provides that Schedules 1 and 2 amend the Migration Agents Regulations 1998 (the Principal Regulations).

Schedule 1 - Amendments commencing on 1 November 2004

Item [1] - Subregulation 4(2), after paragraph (b)

This item inserts new paragraph (4)(2)(ba) in subregulation 4(2) of the Principal Regulations. New paragraph (4)(2)(ba) provides that when an individual publishes a notice of intention to apply for registration as a migration agent, he or she must include his or her present citizenship as part of the list of information that must be provided about the individual in the notice.

Item [2] - Subregulation 4(3)

This item substitutes subregulation 4(3) of the Principal Regulations with new subregulation 4(3). New subregulation 4(3) provides that when an individual publishes a notice of intention to apply for registration as a migration agent, the notice must also state the address of the Migration Agents Registration Authority (the Authority) for correspondence and that information about other applicants can be found on the Authority's web site.

New subregulation 4(3) is followed by a Note which states that the URL for the Authority's web site is http://www.themara.com.au.

Item [3] - Subregulation 4(5)

This item substitutes subregulation 4(5) of the Principal Regulations with new subregulation 4(5) and inserts new subregulation 4(6).

New subregulation 4(5) provides that when an individual publishes a notice of intention to apply for registration as a migration agent, the notice must be published in writing either:

•       the public notices section of the Saturday edition of a newspaper published in the English language, which is ordinarily published every day from Monday to Saturday, circulating in each State, the Australian Capital Territory and the Northern Territory, and is specified by the Minister by a notice published in the Gazette for the purposes of this paragraph; or

•       with the agreement of the Authority, in the public notices or equivalent section of a newspaper that is published in Australia, in a language other than English, in the Saturday edition of a daily newspaper, or on the day of publication if the newspaper is a weekly publication.

The purpose of this amendment is to enable notices of intending agents to be advertised in newspapers that are published in languages other than English, in order to better direct the advertisements to the potential clients of migration agents.

New subregulation 4(6) provides that an individual intending to apply for registration as a migration agent must also publish a notice of intention on the Registration Applicants page of the Authority's web site, for a continuous period of at least 30 days.

New subregulation 4(6) is followed by a Note which provides that the URL for the Authority's web site is http://www.themara.com.au.

For the purposes of subsection 288A(2) of the Act, the 30 day period in which individuals are permitted to lodge an objection against an intending agent's registration will run from the first day the applicant's notice appears on the Authority's web site.

Item [4] - Subsection 7(1)

This item amends subregulation 7(1) of the Principal Regulations to insert a reference to paragraph 306AL(1)(a) of the Act.

The purpose of this amendment is to clarify that where a registered migration agent is given notice of a mandatory decision in relation to the suspension or cancellation of their registration, then the Authority must publish a statement that sets out the mandatory decision, the referral decision to which the mandatory decision relates and the specified grounds for the referral decision, in writing on the Authority's web site.

Item [5] - Subregulation 7E(1)

This item amends subregulation 7E(1) of the Principal Regulations to insert a reference to paragraph 311P(1)(a) of the Act.

The purpose of this amendment is to clarify that where a former registered migration agent is given notice of a mandatory decision that bars him or her from registering as a migration agent, then the Authority must publish a statement that sets out the mandatory decision, the referral decision to which the mandatory decision relates and specifies the grounds for the referral decision, in writing on the Authority's web site.

Item [6] - Paragraphs 9A(a) and (b)

This item amends paragraphs 9A(a) and (b) of the Principal Regulations to omit the words "industry; and" and replace with the words "profession; and". This is a minor technical amendment to ensure that consistent language is used throughout the Principal Regulations.

Item [7] - Regulation 9B

This item amends regulation 9B of the Principal Regulations to omit the words "For subsection 321A of the Act," and insert "(1) For subsection 321A(2) of the Act,". This amendment is consequential to the amendments made by item [8] below.

Item [8] - Regulation 9B

This item amends the Principal Regulations to insert new subregulations 9B(2) and 9B(3).

New subregulation 9B(2) provides that for subsection 321A(3) of the Act, the recipient of personal information relating to the conduct of a registered, or formerly registered migration agent may disclose such personal information to a relevant professional body if the recipient believes that the conduct may be of concern to the relevant professional body.

New subregulation 9B(3) provides that for the purposes of subregulation (2), the relevant professional body means a professional body of which the agent is or was a member.

The purpose of this amendment is to enable external agencies to be notified in circumstances where it is evident a registered or formerly registered migration agent has exhibited unscrupulous conduct which is beyond the jurisdiction in which the Authority has the power to act.

Item [9] Regulation 9C

This item amends regulation 9C of the Principal Regulations to omit the words "For subsection 332F(2) of the Act," and insert "(1) For subsection 332F(2) of the Act,". This amendment is consequential to the amendments made by item [10] below.

Item [10] Regulation 9C

This item amends the Principal Regulations to insert new subregulations 9C(2) and 9C(3). New subregulation 9C(2) provides that for subsection 332F(3) of the Act, a review authority may disclose personal information relating to the conduct of a registered, or formerly registered migration agent to a relevant professional body if the review authority believes that the conduct may be of concern to the relevant professional body.

New subregulation 9C(3) provides that for the purposes of subregulation (2), the relevant professional body means a professional body of which the agent is or was a member.

The purpose of this amendment is to enable external agencies to be notified in circumstances where it is evident a registered or formerly registered migration agent has exhibited unscrupulous conduct which is beyond the jurisdiction in which the Authority has the power to act.

Item [11] Regulation 9D

This item amends regulation 9D of the Principal Regulations to omit the words "For subsection 332G(2) of the Act," and insert "(1) For subsection 332G(2) of the Act,". This amendment is consequential to the amendments made by item [12] below.

Item [12] Regulation 9D

This item amends the Principal Regulations to insert new subregulations 9D(2) and 9D(3).

New subregulation 9D(2) provides that for subsection 332G(3) of the Act, the Secretary or an authorised officer may disclose personal information relating to the conduct of a registered, or formerly registered migration agent to a relevant professional body if the Secretary or authorised officer believes that the conduct may be of concern to the relevant professional body.

New subregulation 9D(3) provides that for the purposes of subregulation (2), the relevant professional body means a professional body of which the agent is or was a member.

The purpose of this amendment is to enable external agencies to be notified in circumstances where it is evident a registered or formerly registered migration agent has exhibited unscrupulous conduct which is beyond the jurisdiction in which the Authority has the power to act.

Item [13] Schedule 1, subclause 3(1)

This item amends subclause 3(1) of Schedule 1 to the Principal Regulations to omit the word "website" and insert the words "web site". This is a minor technical amendment to ensure that consistent language is used throughout the Principal Regulations.

Item [14] Schedule 2, clause 1.8

This item amends clause 1.8 of Schedule 2 to the Principal Regulations to omit the words "Crimes Act 1914 and the Trade Practices Act 1975" and insert the words "Crimes Act 1914, the Criminal Code Act 1995 and the Trade Practices Act 1974".

The purpose of this amendment is to insert a reference to the Criminal Code Act 1995 to ensure that migration agents are aware that engaging in activities such as misleading statements and advertising, practising while unregistered and misrepresenting a matter may attract penalties under the Criminal Code Act 1995.

Item [15] Schedule 2, clause 2.5, note

This item amends the Note at the foot of clause 2.5 of Schedule 2 to the Principal Regulations by inserting a new Note 1. The new Note 1 provides that a comprehensive list of materials mentioned in subparagraphs 2.5(a)(iii) and (iv) is available on the Professional Library page of the Authority's web site. The Authority's web site is available on the Internet at: http://www.themara.com.au.

The purpose of this Note is to clarify the list of documents that migration agents are required to maintain a current knowledge of and that should be included in their professional library.

Item [16] Schedule 2, clause 2.10, at the foot

This item inserts a new Note at the foot of clause 2.10 of Schedule 2 to the Principal Regulations. The new Note provides that advertising, for the purposes of clause 2.10 is taken to include advertising on the Internet.

The purpose of this amendment is to clarify that the requirement for migration agents to refrain from engaging in false or misleading advertising, applies to all forms of advertising, including advertisements that are published on the Internet.

Item [17] Schedule 2, clause 2.11

This item amends clause 2.11 of Schedule 2 to the Principal Regulations to also provide that a registered migration agent must, when advertising their services, include their family name in the advertisement.

The purpose of this amendment is to assist the Migration Agents Registration Authority to identify who is advertising migration agent services.

This item also inserts a Note at the foot of clause 2.11 of Schedule 2 to the Principal Regulations. The Note provides that advertising, for the purposes of this provision is taken to include advertisements that are published on the Internet.

Item [18] Schedule 2, clause 2.12, at the foot

This item inserts a Note at the foot of clause 2.12 of Schedule 2 to the Principal Regulations. The new Note provides that, for the purposes of clause 2.12, advertising is taken to include advertisements that are published on the Internet.

Item [19] Schedule 2, clause 2.23

This item amends clause 2.23 of Schedule 2 to the Principal Regulations to omit the word "industry" and insert the words "advice profession". This is a minor technical amendment to ensure that consistent language is used throughout the Principal Regulations.

Item [20] Schedule 2, clause 3.2A, note

This item amends the Note at the foot of clause 3.2A of Schedule 2 to the Principal Regulations to omit each mention of the word "industry" and insert the word "profession". This is a minor technical amendment to ensure that consistent language is used throughout the Principal Regulations.

Item [21] Schedule 2, after clause 6.1

This item inserts new clause 6.1A into Schedule 2 to the Principal Regulations. New clause 6.1A provides that a registered migration agent must keep the records mentioned in clause 6.1 for a period of 7 years after the date of the last action on the file for the client.

Item [22] Schedule 2, paragraph 6.2(a)

This item amends paragraph 6.2(a) of Schedule 2 to the Principal Regulations to omit the words "2 years" and substitute with the words "7 years". The purpose of this amendment is to provide that a registered migration agent must keep all documents to which a client is entitled securely and in a way that will ensure confidentiality while the agent is giving services to the client, until the earlier of 7 years from the date of the last action on the file for the client or when the documents are given to the client or dealt with in accordance with the client's written instructions.

Item [23] Schedule 2, clause 6.2, at the foot

This item inserts a Note at the foot of clause 6.2 of Schedule 2 to the Principal Regulations. The new Note provides that on the completion or termination of services, all documents to which a client is entitled are to be dealt with in accordance with Part 10 of Schedule 2 to the Principal Regulations.

Item [24] Schedule 2, clause 7.7

This item amends clause 7.7 of Schedule 2 to the Principal Regulations to insert a reference to 7.1A after the words "clause 7.1". The purpose of this amendment is to provide that nothing in clause 7.1A affects the duty of a registered migration agent, who is a legal practitioner and who acts in that capacity, to deal with clients' funds in accordance with the relevant law relating to legal practitioners.

Item [25] Schedule 2, after clause 10.1

This item inserts new clauses 10.1A and 10.1B into Schedule 2 to the Principal Regulations. New clause 10.1A provides that for the purposes of paragraph 10.1(c), a migration agent must provide a written notice stating that they are ceasing to act for the client, the date from which they are ceasing to act, and the terms of any arrangements made in respect of appointing another registered migration agent.

New clause 10.1B provides that within 7 days of giving the written notice described in 10.1A, the migration agent must update the client's file to reflect the current status of each matter dealt with on behalf of the client, deliver all documents to which the client is entitled to the client or their appointed registered migration agent, and ensure that all financial matters have been dealt with in accordance with the contract between the exiting migration agent and the client.

Item [26] Schedule 2, clause 11.4

This item amends clause 11.4 of Schedule 2 to the Principal Regulations to omit each mention of the word "website" and insert the words "web site". This is a minor technical amendment to ensure that consistent language is used throughout the Principal Regulations.

Schedule 2 - Amendments commencing on 1 July 2005

Item [1] - Regulation 3

This item amends regulation 3 to the Principal Regulations to omit the words "In these Regulations" and insert "(1) In these Regulations". This amendment is consequential to the amendment made by item [2] below.

Item [2] - Regulation 3

This item inserts new subregulation 3(2) to the Principal Regulations. New subregulation 3(2) clarifies the meaning of the term repeat registration for the purposes of the Principal Regulations. An individual is considered to be making a repeat registration if they have applied for registration and have been registered at some point in the period of 12 months before making the application.

Item [3] - After regulation 3X

This item inserts new regulation 3XA into the Principal Regulations. New regulation 3XA provides that an individual who applies for repeat registration must, when submitting his or her registration application, provide a statement setting out the kinds of services offered by the agent during the previous registration period and the average fees charged for each of those services.

New regulation 3XA is followed by a note stating that the meaning of the term repeat registration is provided in regulation 3 of the Principal Regulations.