EXPLANATORY STATEMENT

 

Select Legislative Instrument 2006 No. 249

 

Issued by the Parliamentary Secretary to the Minister for Immigration

and Multicultural Affairs

 

 

Subject - Migration Act 1958

 

Migration Agents Amendment Regulations 2006 (No. 2)

 

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 make various amendments to the Migration Agents Regulations 1998 (the Principal Regulations) including to:

·        require the Register of Migration Agents to show details of the association which a registered migration agent has with the business with which the agent works;

·        require a registered migration agent, who is supervising the work of another registered migration agent who is subject to a stay of a decision to cancel or suspend his or her registration, to have at least 5 years experience;

·        enable the Minister for Immigration and Multicultural Affairs to specify in an instrument the course and exam that a person intending to register as a migration agent must complete before being registered; and

·        make changes to the registered migration agents’ Code of Conduct to clarify the professional obligations of a registered migration agent.

 

Details of the Regulations are set out in Attachment B.

 

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

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003.

 

The Regulations commence on 1 October 2006.

 

The Office of Regulation Review in the Productivity Commission has been consulted and advises that the Regulations are not likely to have a direct effect, or substantial indirect effect, on business and are not likely to restrict competition.

 

The following external agencies and other bodies were consulted in relation to the Regulations:

·        the Migration Agents Registration Authority; and

·        the Migration Institute of Australia.

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. Subsection 5(1) of the Act provides, amongst other things, that “prescribed” means prescribed by the regulations.

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

·        section 287 of the Act provides that the Migration Agents Registration Authority must keep a register of migration agents, showing the particulars set out in subsection 287(2) of the Act including matters prescribed for the purposes of paragraph 287(2)(i);

·        paragraph 289A(c) of the Act provides that the Migration Agents Registration Authority must not register an applicant seeking to register as a migration agent unless the Authority is satisfied that the applicant has completed a prescribed course within the prescribed period and has passed a prescribed exam within the prescribed period;

·        sections 306AA and 306AK of the Act provide that if the Administrative Appeals Tribunal or a court orders a stay of a decision to cancel or suspend a registered migration agent’s registration, a condition of the stay order is the prescribed supervisory requirements;

·        subsection 314(1) of the Act provides that the regulations may prescribe a Code of Conduct for migration agents; and

·        subsection 504(2) of the Act provides that despite section 14 of the Legislative Instruments Act 2003 the regulations may provide for matters to be specified by the Minister in an instrument in writing made after the commencement of the regulations.

 

ATTACHMENT B

 

Details of the Migration Agents Amendment Regulations 2006 (No. 2)

 

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Migration Agents Amendment Regulations 2006 (No. 2).

 

Regulation 2 – Commencement

 

This regulation provides that the Regulations commence on 1 October 2006.

 

Regulation 3 – Amendment of Migration Agents Regulations 1998

 

This regulation provides that the Migration Agents Regulations 1998 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – Subregulation 3(1), after the definition of Authority

This item inserts a definition for the term “client” after the definition of “Authority” in subregulation 3(1) in Part 1 of the Principal Regulations.

The term “client” is defined to mean any person to whom a registered migration agent agrees (whether or not in writing) to provide immigration assistance. Immigration assistance is defined by section 276 of the Migration Act 1958 (‘the Act’).

The term “client” is already used a number of times in the Principal Regulations. The purpose of this amendment is to clarify the intended meaning of “client” in the provisions where the term is used.

Item [2] – After paragraph 3V(d)

 

This item inserts new paragraph 3V(da) after paragraph 3V(d) in Part 2 of the Principal Regulations.

 

New paragraph 3V(da) prescribes for the purposes of paragraph 287(2)(i) of the Act, the registered migration agent’s association with the business shown on the Register of Migration Agents (‘the Register’).

 

The purpose of new paragraph 3V(da) is to require the Register to show, for each registered migration agent, the association the agent has with the business shown on the Register. The association may be, for example, contractor, employee, director or volunteer.

 

Item [3] – Subregulation 5(1)

 

This item substitutes subregulation 5(1) in Part 3 of the Principal Regulations with new subregulation 5(1).

New subregulation 5(1) provides that, for the purposes of paragraph 289A(c) of the Act, a prescribed course and a prescribed exam are the course and exam specified by the Minister in an instrument in writing. The prescribed period is the 12 month period immediately before the day on which the applicant is taken to have made the application for registration.

 

The purpose of this amendment is to prescribe the course and exam that an applicant, who has never been registered as a migration agent or who is applying to be registered more than 12 months after the end of his or her previous registration and who does not have a prescribed qualification, must complete and pass to be registered. The amendment retains the prescribed period of 12 months within which the applicant must have completed a prescribed course or prescribed exam, which was prescribed by subregulation 5(1) of the Principal Regulations before being amended by this item.

 

By prescribing the courses and exams by way of specification by the Minister in an instrument, which will be registered on the Federal Register of Legislative Instruments, the relevant courses and exams are directly and readily accessible. When changes to the relevant courses and exams become necessary this can be done quickly and simply by the Minister changing the instrument.

 

Item [4] – Subregulation 7B(1)

 

This item inserts a reference to new subregulation (2A) after the words “subregulation (2),” in subregulation 7B(1) of Part 3 of the Principal Regulations.

 

The purpose of this amendment is to provide that for sections 306AA and 306AK of the Act, the supervisory requirements mentioned in subregulations (2), (2A), (3) and (4) are prescribed. New subregulation 7B(2A) is inserted by item [5] of this schedule below.

 

Item [5] – After subregulation 7B(2)

 

This item inserts new subregulation 7B(2A) in Part 3 of the Principal Regulations.

 

New subregulation 7B(2A) requires a registered migration agent, who is supervising an agent who is subject to a stay of a decision to cancel or suspend his or her registration, to have at least 5 years experience as a registered migration agent. This period of time must not include periods when the supervising migration agent’s registration was suspended or when the supervising migration agent was subject to a caution.

 

The purpose of new subregulation 7B(2A) is to ensure that a registered migration agent working while subject to a stay order is adequately supervised.

 

Item [6] - Schedule 2, Part 1, paragraph 1.10(a)

 

This item omits the words “business as” from paragraph 1.10(a) in Part 1 of Schedule 2 to the Principal Regulations, which currently states that one of the aims of the migration agents’ Code of Conduct (‘the Code’) is “to establish a proper standard for the conduct of business as a registered migration agent”.

 

The removal of the words “business as” ensures that the Code applies more generally to the conduct of registered migration agents individually and not just to the conduct of a business. The purpose of this amendment is to clarify the aim of the Code.

 

Item [7] - Schedule 2, Part 2, clause 2.1

 

This item substitutes clause 2.1 in Part 2 of Schedule 2 to the Principal Regulations with new clause 2.1.

 

New clause 2.1 provides that a registered migration agent must always act in accordance with the law (including, for an agent operating as an agent in a country other than Australia, the law of that country) and the legitimate interests of his or her client, and must always deal with his or her client competently, diligently and fairly.

 

New clause 2.1 also provides that a registered migration agent operating as an agent in a country other than Australia will not be taken to have failed to comply with the Code if the law of that country prevents the agent from operating in compliance with the Code.

 

The purpose of this amendment is to require a registered migration agent operating as an agent in a country other than Australia to act in accordance with the laws of Australia and that country. Where the law of that country prevents the agent from operating in compliance with the Code the agent is considered not to have failed to comply with the Code.

 

Item [8] – Schedule 2, Part 2, paragraph 2.1A(b)

 

This item omits paragraph 2.1A(b) in Part 2 of Schedule 2 to the Principal Regulations.

 

The omission of paragraph 2.1A(b) removes a restriction on registered migration agents acting for a client whom they intend to employ, sponsor or nominate. A conflict of interest will no longer arise in respect of the migration agent’s relationship with such clients.

 

The effect of this amendment is to remove the restriction, on the basis of a conflict of interest, on a registered migration agent acting for a client whom they intend to employ, sponsor or nominate. In these circumstances, the migration agent would not be giving immigration assistance if the person is to be an employee, and they would not be required to be registered if giving immigration assistance as a sponsor or nominator. It is therefore inappropriate for the Code to restrict giving immigration assistance in this situation.

 

Item [9] – Schedule 2, Part 2, paragraph 2.8(c)

This item omits the words “and regularly” from paragraph 2.8(c) in Part 2 of Schedule 2 to the Principal Regulations, which currently states that an agent “must keep the client fully and regularly informed in writing of the progress of each case or application that the agent undertakes for the client”.

The effect of this amendment is that a registered migration agent will need to keep his or her client fully informed in writing of the progress of each case or application that the agent undertakes for the client. Registered migration agents will not be required to provide “regular” reports in the event that there has been no progress on the matter. The amendment conforms with the practice of the Department of Immigration and Multicultural Affairs to only inform an applicant or applicant’s migration agent about the application when progress is made or further information is required.

 

Item [10] – Schedule 2, Part 2, after clause 2.9

This item inserts new clause 2.9A after clause 2.9 in Part 2 of Schedule 2 to the Principal Regulations.

New clause 2.9A provides that when a registered migration agent communicates with or provides information to the Migration Agents Registration Authority (‘the Authority’), the agent must not seek to mislead or deceive the Authority, whether directly or by withholding relevant information.

The purpose of new clause 2.9A is to clarify registered migration agents’ obligations when communicating with or providing information to the Authority.

Item [11] - Schedule 2, Part 2, clause 2.11, note 2

This item substitutes note 2 in clause 2.11 in Part 2 of Schedule 2 to the Principal Regulations with new note 2.

New note 2 explains that clause 2.12, which relates to an agent implying a relationship with the Department of Immigration and Multicultural Affairs or the Authority, also applies to the registered migration agent’s advertising mentioned in clause 2.11.

This amendment is required because of a change to the department’s name. New note 2 retains the information that existed in note 2 before it was amended by this item but substitutes the acronym “DIMIA” in the note with the term “the Department”.

Item [12] – Schedule 2, Part 2, clause 2.12

This item omits from clause 2.12 in Part 2 of Schedule 2 to the Principal Regulations the words “the Department of Immigration and Multicultural and Indigenous Affairs (the Department)” and inserts the words “the Department”.

This amendment is required because of a change to the department’s name.

­Item [13] – Schedule 2, Part 2, paragraph 2.12(c), except the note

This item substitutes paragraph 2.12(c) in Part 2 of Schedule 2 to the Principal Regulations with new paragraph 2.12(c).

New paragraph 2.12(c) substitutes “DIMIA registered” with the words “Department registered”.

This amendment is required because of a change to the department’s name.

Item [14] – Schedule 2, Part 2, clause 2.13

This item omits clause 2.13 in Part 2 of Schedule 2 to the Principal Regulations.

The purpose of the amendment is to remove the discretionary provision that a migration agent may indicate that he or she is registered and may describe what the registration process involves. As the provision is discretionary, not mandatory, there is no need for the provision to be included in the Principal Regulations.

Item [15] – Schedule 2, Part 2, clause 2.14

This item omits from clause 2.14 in Part 2 of Schedule 2 to the Principal Regulations the words “However, a registered” and inserts the words “A registered”.

This amendment is consequential to the omission of clause 2.13 by item [14] of this Schedule, above.

Item [16] – Schedule 2, Part 2, after clause 2.21

This item inserts two new clauses in Part 2 of Schedule 2 to the Principal Regulations.

The purpose of the new clauses is to impose new obligations on registered migration agents regarding the provision of translating or interpreting services, and updating their information on the Register.

New clause 2.22A provides that when registered migration agents provide translating or interpreting services, they must include on a prominent part of the translated document their name and the words “Migration Agent’s Registration Number” followed by their registration number.

New clause 2.22B provides that a registered migration agent must notify the Authority in writing within 14 days of any changes to their registration details in relation to their full name, any business names of the agent or the agent’s employer, their business address, their telephone number, and any of the matters mentioned in paragraphs 3V(a) to (da). Paragraphs 3V(a) to (da) prescribe information such as the registered agent’s facsimile number, web site address and email address.

Item [17] – Schedule 2, Part 3, clause 3.2A, except the note

This item substitutes clause 3.2A in Part 3 of Schedule 2 to the Principal Regulations with new clause 3.2A.

New clause 3.2A provides that when a registered migration agent has agreed to work for a client, but before commencing that work, the agent must provide the client with a copy of the publication Information on the Regulation of the Migration Advice Profession. The registered migration agent must also make a record that the copy has been provided.

Current clause 3.2A specifies that the agent must perform these two tasks “before starting work for a client”, which creates some ambiguity as to when and to who this publication should be provided. Agents will now only have to provide this publication and record they have provided it after they have agreed to work for a client.

Item [18] – Schedule 2, Part 6, after subparagraph 6.1(b)(ii)

This item inserts new subparagraph 6.1(b)(iii) in Part 6 of Schedule 2 to the Principal Regulations.

New subparagraph 6.1(b)(iii) requires a registered migration agent to maintain proper records that can be made available for inspection on request by the Authority, including files containing copies of each written communication between the agent and the Department regarding the client.

The purpose of new subparagraph 6.1(b)(iii) is to ensure that a registered migration agent retains copies of written communications between the agent and the Department of Immigration and Multicultural Affairs regarding his or her client.

Item [19] – Schedule 2, Part 6, subparagraph 6.1(c)(ii)

This item substitutes subparagraph 6.1(c)(ii) in Part 6 of Schedule 2 to the Principal Regulations with new subparagraphs 6.1(c)(ii) and (iii).

New subparagraph 6.1(c)(ii) retains the requirements in current subparagraph 6.1(c)(ii), with technical changes only to allow subparagraph 6.1(c)(iii) to be added.

New subparagraph 6.1(c)(iii) provides that a registered migration agent must maintain proper records that can be made available for inspection on request by the Authority, including files containing file notes of every substantive or material oral communication between the agent and the Department regarding the client.

The purpose of this amendment is to ensure that a registered migration agent makes and retains file notes of every substantial or material oral communication between the agent and the Department of Immigration and Multicultural Affairs regarding his or her client, as well as records of communication with officials of any other relevant statutory authority.

Item [20] – Schedule 2, Part 7, clause 7.1

This item omits the words “A registered” in clause 7.1 of Part 7 of Schedule 2 to the Principal Regulations and inserts the words “Subject to clause 7.1B, a registered”.

This amendment provides a reference to new clause 7.1B, inserted by item [21] of this Schedule below. Clause 7.1 is subject to new clause 7.1B.

Item [21] – Schedule 2, Part 7, after clause 7.1A

This item inserts a new clause 7.1B in Part 7 of Schedule 2 to the Principal Regulations.

New clause 7.1B provides that if a registered migration agent is operating as an agent in a country other than Australia that does not allow, under its law, the use of a clients’ account as described in paragraph 7.1(b), the agent is not required to keep a separate account of that name. The agent must however keep an account for money paid by clients to the agent for fees and disbursements in a way that is as similar as practicable to the requirements in Part 7. The agent must also comply with Part 7 of the Code as far as practicable in relation to keeping records of the account and making the records available for inspection.

The purpose of this amendment is to prevent a registered migration agent operating in a country other than Australia from breaching the Code of Conduct where the agent is not able to comply with certain financial responsibilities set out in Part 7 of the Code solely because of differing legal requirements under the law of the relevant country.

Item [22] –Schedule 2, Part 10, paragraph 10.1(c)

This item omits from paragraph 10.1(c) in Part 10 of Schedule 2 to the Principal Regulations the words “for just cause”.

The effect of this amendment is that a registered migration agent will be able to terminate their services to a client solely by giving the client reasonable written notice. Whether or not the registered migration agent is required to show “just cause” will depend upon the terms and conditions of the contract of service that the agent has entered into with their client.