Migration Amendment (Regulation of Migration Agents) Bill 2017 [2017] AUSStaCSBSD 240 (9 August 2017)

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Purpose	This bill seeks to amend the Migration Act 1958 to: • remove legal practitioners from regulation by the Migration Agents Registration Authority (MARA); • provide that the time period in which a person can be considered an applicant for repeat registration as a migration agent is set out in delegated legislation; • remove the 12-month time limit within which a person must apply for registration following completion of a prescribed course; • enable MARA to refuse an application to become a registered migration agent where the applicant does not respond to requests for further information; • require migration agents to notify MARA that they have ceased acting on a non-commercial basis and commenced acting on a commercial basis; • ensure that the definitions of 'immigration assistance' and 'immigration representations' include assisting a person in relation to a request to the minister to revoke a character-related visa refusal or cancellation decision; and • remove redundant regulatory provisions
Portfolio	Immigration and Border Protection
Introduced	House of Representatives on 21 June 2017
Scrutiny principles	Standing Order 24(1)(a)(i), (ii) and (iv)

Broad delegation of administrative powers^[4]

1.9 Proposed subsection 320(1) would allow any of the powers or functions given to the Migration Agents Registration Authority (MARA) under Part 3 of the Migration Act 1958 to be delegated to 'any APS employee in the Department'. Some of these powers and functions are significant including, for example, the power to cancel or suspend the registration of a registered migration agent,^[5] require registered migration agents or former registered migration agents to give information,^[6] and bar former registered migration agents from being registered for up to 5 years.^[7]

1.10 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated officers or to senior executive service (SES) officers. Where broad delegations are provided for, the committee considers that an explanation of why these are considered necessary should be included in the explanatory memorandum.

1.11 In this case, the explanatory memorandum notes that proposed new subsection 320(1) is similar to existing subsection 320(1) which already provides that the Minister may delegate MARA's powers or functions to 'a person in the Department who is appointed or engaged under the Public Service Act 1999'. The most significant change is to remove the reference in current subsection 320(1) to the Migration Institute of Australia.^[8]

1.12 While the committee notes that, in effect, this provision largely replicates existing subsection 320(1), the committee still expects that the explanatory memorandum will explain why it is considered necessary to allow the broad delegation of MARA's powers and functions as provided for in proposed new subsection 320(1). The committee notes that there is no guidance on the face of the bill as to the relevant skills or experience that would be required to undertake delegated functions. Nor is there any limitation on the level to which significant powers or functions could be delegated. The committee has generally not accepted a desire for administrative flexibility as a sufficient justification for allowing a broad delegation of administrative powers to officials at any level.

1.13 The committee requests the Assistant Minister's advice as to why it is considered necessary to allow all of MARA's powers and functions to be delegated to any APS employee in the Department and requests the Minister's advice as to the appropriateness of amending the bill to provide some legislative guidance as to the scope of powers that might be delegated, or the categories of people to whom those powers might be delegated. For example, the committee notes that it may be possible to provide that MARA's significant cancellation, suspension and information gathering powers (such as those referred to in paragraph [1.9] above) may only be delegated to SES officers.

Significant matters in delegated legislation^[9]

1.14 The purpose of the proposed amendments in Schedule 4 is to allow MARA to refuse an application to become a registered migration agent where the applicant has been required to, but has failed to, provide information or answer questions in relation to their application.^[10] Proposed paragraph 288B(4)(a) provides that MARA may consider refusing an application for registration if the applicant fails to provide the information or answer the questions 'within the period prescribed for the purposes of this section' (unless MARA has approved an extension).

1.15 The committee's view is that significant matters, such as time limits for providing information, where failure to provide the requested information could have significant adverse consequences, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, no information is provided in the explanatory memorandum.

1.16 The committee requests the Assistant Minister's advice as to why it is proposed to leave the determination of the time limit for complying with a request for information to delegated legislation.

Strict liability offence^[11]

1.17 Subitem 4(1) of Schedule 5 sets out a notification obligation in relation to registered migration agents who, prior to commencement, had paid the charge applicable to migration agents who act solely on a non-commercial or non-profit basis, but who then gave immigration assistance otherwise than on a non-commercial basis. Individuals subject to the notification obligations will be required to notify MARA in writing within 14 days of commencement of the Schedule. Subitem 4(2) provides that failing to comply with the notification obligation is an offence of strict liability. The offence is subject to a maximum penalty of 100 penalty units. The explanatory memorandum provides no justification as to why this offence is subject to strict liability, other than to note that the proposed notification obligation is consistent with current notification obligation on migration agents set out in section 312 of the Migration Act 1958.^[12]

1.18 Under general principles of the criminal law, fault is required to be proved before a person can be found guilty of a criminal offence (ensuring that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have). When a bill states that an offence is one of strict liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant intended this, or was reckless or negligent. As the imposition of strict liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.^[13]

1.19 In the this case, it is noted that the proposed penalty of 100 penalty units for an individual is above the recommended maximum of 60 penalty units outlined in the Guide. In addition, the fact that individuals will only have 14 days from commencement to comply with the notification obligation raises questions as to whether all affected individuals will be placed on notice to guard against the possibility of inadvertently contravening this proposed strict liability provision.^[14]

1.20 The committee requests a detailed justification from the Assistant Minister for the proposed imposition of strict liability in this instance, with particular reference to the principles set out in the Guide to Framing Commonwealth Offences.^[15]

[4] Schedule 3, item 17, proposed subsection 320(1). The committee draws Senators' attention to this provision pursuant to principle 1(a)(ii) of the committee's terms of reference.

[9] Schedule 4, item 1, proposed paragraph 288B(4)(a). The committee draws Senators' attention to this provision pursuant to principle 1(a)(iv) of the committee's terms of reference.

[11] Schedule 5, item 4. The committee draws Senators' attention to this provision pursuant to principle 1(a)(i) of the committee's terms of reference.

[13] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.

[14] See Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 23.

[15] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests