Migration Agents (IMMI 17/047: CPD Activities, Approval of CPD Providers and CPD Provider Standards) Instrument 2017 [F2017L01236]-Response required [2017] AUSStaCSDLM 394 (15 November 2017)

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Instrument	Migration Agents (IMMI 17/047: CPD Activities, Approval of CPD Providers and CPD Provider Standards) Instrument 2017 [F2017L01236]
Purpose	Specifies matters relating to the provision of Continuing Professional Development for registered migration agents
Authorising legislation	Migration Agents Regulations 1998
Portfolio	Immigration and Border Protection
Disallowance	15 sitting days after tabling (tabled Senate 16 October 2017) Notice of motion to disallow currently must be given by 7 December 2017
Scrutiny principle	Standing Order 23(3)(a)

Incorrect classification of legislative instrument as exempt from disallowance

The instrument is made under specified empowering provisions in the Migration Agents Regulations 1998, as set out in its sections 3 and 4. However, the ES to the instrument states that it is made under the Migration Regulations 1994. At the time of the instrument's tabling, the Federal Register of Legislation also listed the enabling regulations for the instrument as the Migration Regulations 1994.

The instrument was classified as exempt from disallowance when received by both Parliament and the committee, and was tabled in the House of Representatives and the Senate on 16 October 2017 on that basis.

While the committee understands that the instrument has since been re-classified correctly, after being drawn to the attention of the Office of Parliamentary Counsel by the committee's secretariat, the incorrect classification of instruments has the potential to hinder the effective oversight of the instrument by Parliament.

The committee requests the minister's advice in regard to the misclassification of the instrument as exempt from disallowance, and requests that the ES be amended to correct the reference to the instrument's authorising regulations.

Section 8 of the instrument imposes an application fee of $1240 for persons seeking approval as Continuing Professional Development (CPD) providers under the Migration Agents Regulations 1998.

The committee's longstanding view is that fees imposed by legislative instruments should be limited to cost recovery, so that they could not properly be regarded

as taxes and the setting of their amount by instrument would not be regarded as

an inappropriate delegation of legislative power.

Where an instrument carries financial implications via the imposition of or change to a charge, fee, levy, scale or rate of costs or payment, the committee expects that the relevant ES will make clear the specific basis on which an individual imposition or change has been calculated.

The committee requests the minister's advice as to the basis on which the application fee for CPD providers has been calculated.