Migration Amendment (Regulation of Migration Agents) Bill 2017 - Commentary on Ministerial Responses [2017] AUSStaCSBSD 296 (6 September 2017)

• Migration Amendment (Regulation of Migration Agents) Bill 2017
• Broad delegation of administrative powers28
• Significant matters in delegated legislation33
• Strict liability offence35

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Migration Amendment (Regulation of Migration Agents) Bill 2017

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
Bill status	Before House of Representatives
Scrutiny principles	Standing Order 24(1)(a)(i), (ii) and (iv)

2.35 The committee dealt with this bill in Scrutiny Digest No. 8 of 2017. The Assistant Minister responded to the committee's comments in a letter dated 28 August 2017. Set out below are extracts from the committee's initial scrutiny of the bill and the Assistant Minister's response followed by the committee's comments on the response. A copy of the letter is available on the committee's website.^[27]

Broad delegation of administrative powers^[28]

Initial scrutiny – extract

2.36 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,^[29] require registered migration agents or former registered migration agents to give information,^[30] and bar former registered migration agents from being registered for up to 5 years.^[31]

2.37 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.

2.38 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.^[32]

2.39 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.

2.40 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 [2.362.36] above) may only be delegated to SES officers.

Assistant Minister's response

2.41 The Assistant Minister advised:

The delegation of power at proposed subsection 320(1) is appropriate and consistent with the current framework of the Migration Act 1958 (the Act).
It is currently the case that powers and functions of the MARA under Part 3 of the Act are delegated to a person in the Department who is appointed or engaged under the Public Service Act 1999. The committee may note that the proposed amendment to subsection 320(1) does not extend the delegation of administrative powers; rather it provides that the Minister may delegate the MARA's powers and functions under Part 3 of the Act more specifically to an APS employee in the Department. The use of the term "APS employee" is consistent with the Acts Interpretation Act 1901.
Any attempt to specify details of the level of delegation in the Act would create an unnecessary administrative and legislative burden, as it would require a change to the Act each time there was a restructure to the administrative arrangements of the MARA. Further, the Committee may not be aware that, while the MARA reports to a SES Band 1, there are currently no SES level positions within the MARA itself. Delegation to the SES level would therefore be impractical in this instance.
Further, the existing powers and functions under Part 3 of the Act have been delegated by the Minister under a legislative Instrument and have been working effectively, with no findings of inappropriate use or abuse of powers have been made against the MARA under these arrangements.

Committee comment

2.42 The committee thanks the Assistant Minister for this response. The committee notes the Assistant Minister's advice that any attempt to specify details of the level of delegation in the Act would create an unnecessary administrative and legislative burden, that there are currently no SES level positions within the Migration Agents Registration Authority (MARA) itself, and that the existing delegation of powers and functions under Part 3 of the Act have been working effectively, with no findings of inappropriate use or abuse of powers being made against the MARA under these arrangements.

2.43 The committee takes this opportunity to reiterate that it has generally not accepted a desire for administrative flexibility as a sufficient justification for allowing a broad delegation of powers and functions to officials at any level. While the committee understands that there are currently no SES level positions within the MARA, the committee notes that it may at least be possible to restrict the delegation of significant cancellation, suspension and information gathering powers (such as those referred to in paragraph [2.36] above) to Executive level employees.

2.44 The committee requests that the key information provided by the Assistant Minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.45 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of allowing the delegation of significant cancellation, suspension and information gathering powers to any APS employee in the Department of Immigration and Border Protection.

Significant matters in delegated legislation^[33]

Initial scrutiny – extract

2.46 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.^[34] 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).

2.47 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.

2.48 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.

Assistant Minister's response

2.49 The Assistant Minister advised:

The Act is structured to contain broad concepts, with the specific details, such as time periods for responding to notices, contained in delegated legislation.
The proposed legislation, requiring an applicant for registration as a migration agent to answer questions or provide information, is specifically for an applicant who has not previously applied for registration as a migration agent.
Under current subsection 288B(1) of the Act, the MARA may require such an applicant to provide further information by statutory declaration or in person. However, if the applicant does not comply, the MARA is prevented from acting further. The matter remains an open application, which cannot be further resolved or closed, which is neither satisfactory to the MARA nor the applicant.
While the proposed paragraph 288B(4)(a) provides that the MARA may consider refusing an application if the applicant fails to comply with the time period for responding to the notice, as specified in delegated legislation, the proposed notice must comply with subsection 309(1) which provides that:
If the Migration Agents Registration Authority is considering refusing a registration application, it must inform the applicant of that fact and the reasons for it and invite the applicant to make a further submission in support of his or her application.
The proposed notice would clearly advise the applicant of the significance of not replying to the request to answer questions or provide information within the specified time period.
An example of the Act providing the broad parameters, with regulations dealing with details, is subsection 280(1) of the Act, which provides that a person who is not a registered migration agent, must not give immigration assistance. The Migration Agent Regulations 1998 set out the contents of the infringement notice relating to giving of immigration assistance. Under regulation 3K(1)(e), the infringement notice must:
state that, if the person on whom it is served does not wish the matter to be dealt with by a court, he or she may pay that penalty within 28 days after the date of service of the notice unless the notice is withdrawn before the end of that period.

Committee comment

2.50 The committee thanks the Assistant Minister for this response. The committee notes the Assistant Minister's advice that the Act is structured to contain broad concepts, with the specific details, such as time periods for responding to notices, contained in delegated legislation. The committee also notes the Assistant Minister's advice that if the Migration Agents Registration Authority is considering refusing a registration application, it must inform the applicant of that fact and the reasons for it and invite the applicant to make a further submission in support of his or her application, and that as a result an applicant would be aware of the significance of not replying to the request to answer questions or provide information within the specified time period.

2.51 The committee takes this opportunity to reiterate its view 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. Broad explanations relating to the structure of the Act will generally not address the committee's scrutiny concerns in this regard. However, in this instance, the committee notes there is a statutory requirement which will ensure that applicants are aware of the significance of not replying to a request for further information, and that any amendments to the regulations specifying a time limit will be subject to parliamentary disallowance.

2.52 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.53 The committee draws this matter to the attention of the Senate Standing Committee on Regulations and Ordinances for information.

2.54 In light of the information provided, the committee makes no further comment on this matter.

Strict liability offence^[35]

Initial scrutiny – extract

2.55 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.^[36]

2.56 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.^[37]

2.57 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.^[38]

2.58 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.^[39]

Assistant Minister's response

2.59 The Assistant Minister advised:

Under sub item (4)(1) of Schedule 5, a migration agent who has paid the registration charge to act on a non-commercial basis, then proceeds to give immigration assistance on a commercial basis, is required to notify MARA within 14 days of the commencement of the Schedule. It is further provided under sub item 4(2) that failure to comply is a strict liability offence with a maximum penalty of 100 penalty points.
The definition of strict liability is subject to the definition contained in the Criminal Code, which allows the defence of honest and reasonable mistake of fact. The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers provides that 'a defendant must turn his or her mind to the existence of the facts, and be under a mistaken but reasonable belief about those facts.' Therefore, although the offence is one of strict liability, a migration agent has a defence if he or she can demonstrate making a reasonable mistake of fact, regarding the difference between operating on a non-commercial versus a commercial basis.
The application of strict liability to this offence significantly enhances the ability of the MARA to effectively regulate the migration agent industry and deter the conduct of registering on a non-commercial basis, then proceeding to give advice on a commercial basis without informing the MARA. It is significantly cheaper to register on a non-commercial basis; therefore, it would be tempting for an agent to continue to be registered on this basis, regardless of work undertaken, if the penalty were not significant. Requiring the MARA to prove guilt to a higher standard would undermine deterrence by the MARA.
The proposed amendment seeks to repeal and substitute the provisions of paragraph 312(1)(ea) of the Act to provide these new requirements for migration agents.
Other parts of subsection 312(1), which have not been repealed and replaced, provide that a registered migration agent must notify the MARA in writing within 14 days of the following events, failure of which to do so are offences of strict liability, incurring the penalty of 100 penalty units:

(a) he or she becomes bankrupt;

(b) he or she applies to take the benefit of any law for the relief of bankrupt or insolvent debtors;

(c) he or she compounds with his or her creditors;

(d) he or she makes an assignment of remuneration for the benefit of his or her creditors;

(e) he or she is convicted of an offence under a law of the Commonwealth or of a State or Territory;

(f) he or she becomes an employee, or becomes the employee of a new employer, and will give immigration assistance in that capacity;

(fa) he or she becomes a member of a partnership and will give immigration assistance in that capacity;

(g) if he or she is a member or an employee of a partnership and gives immigration assistance in that capacity – a member of the partnership becomes bankrupt;

(h) if he or she is an executive officer or an employee of a corporation and gives immigration assistance in that capacity:

(i) a receiver of its property or part of its property is appointed; or

(ii) it begins to be wound up.

Further, under the proposed Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017, it is clear that a registered migration agent must work for or with a charity or an organisation that works for the benefit of the Australian community to be eligible to pay the lower, non-commercial fee. This provides clarity as to the difference between providing advice on a commercial versus non-commercial basis.

Committee comment

2.60 The committee thanks the Assistant Minister for this response. The committee notes the Assistant Minister's advice that the proposed transitional notification offence is one of strict liability (rather than absolute liability) and therefore it allows the defence of honest and reasonable mistake of fact. The committee also notes the Assistant Minister's advice that the proposed offence will significantly enhance the ability of the Migration Agents Registration Authority to effectively regulate the migration agent industry, and that a significant penalty is required in order to ensure compliance with the notification obligation.

2.61 While the committee welcomes this additional explanation, the committee remains concerned that individuals will only have 14 days from the commencement of the Schedule to comply with the notification obligation. This 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 as it is possible that individuals may not be aware that the Schedule has actually commenced (and the 14 day notice period has therefore also commenced).

2.62 The committee also reiterates that the Guide to Framing Commonwealth Offences states that the application of strict liability is only considered appropriate where the offence is not punishable by imprisonment and only punishable by a fine of up to 60 penalty units for an individual.^[40] In this instance, the bill proposes applying strict liability to an offence that is subject to a penalty of up to 100 penalty units.

2.63 The committee requests that the key information provided by the Minister be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.64 The committee draws its scrutiny concerns to the attention of Senators and leaves to the Senate as a whole the appropriateness of imposing strict liability in circumstances where individuals concerned may not be placed on notice to guard against the possibility of inadvertently contravening the new notification obligation.

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[27] See correspondence relating to Scrutiny Digest No. 10 of 2017 available at: www.aph.gov.au/senate_scrutiny_digest.

[28] 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.

[29] Migration Act 1958, s 303.

[30] Migration Act 1958, ss 308, 311EA.

[31] Migration Act 1958, s 311A.

[32] Explanatory memorandum, p. 31.

[33] 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.

[34] Explanatory memorandum, p. 33.

[35] 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.

[36] Explanatory memorandum, p. 40.

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

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

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

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