Migration Agents (IMMI 17/047: CPD Activities, Approval of CPD Providers and CPD Provider Standards) Instrument 2017 [F2017L01236]-Concluded matters [2017] AUSStaCSDLM 430 (29 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[1]
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 14 of 2017

The committee previously commented on two matters as follows:

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 explanatory statement (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 (FRL) 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 reclassified 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 requested the minister's advice in regard to the misclassification of the instrument as exempt from disallowance, and requested that the ES be amended to correct the reference to the instrument's authorising regulations.

Minister's response

The Assistant Minister for Immigration and Border Protection advised that:

In accordance with the Committee's request, a replacement Explanatory Statement, correcting the reference to the Instrument's authorising regulations, has been prepared and is attached. This replacement Explanatory Statement has been uploaded on the FRL.
...
The misclassification of the Instrument as exempt from disallowance was an administrative error made at the time of registering the Instrument on the FRL. I agree with the Committee that an administrative error of this nature has the potential to hinder the effective oversight of the Instrument by Parliament. The area of my department that is responsible for registering instruments on the FRL has impressed on staff the importance of ensuring information is entered accurately and implications if it is not and processes have been revised to ensure a senior officer reviews all registrations on the FRL to prevent administrative errors like this recurring.

Committee's response

The committee thanks the Assistant Minister for his response. At the time of this report the replacement ES provided to the committee had not yet been registered and published on the Federal Register of Legislation, but the committee notes the minister's undertaking to do so.

The committee notes the Assistant Minister's advice that the misclassification of the instrument as exempt from disallowance was an administrative error, and that steps have been taken to prevent this from occurring in the future.

The committee remains concerned about the classification process for instruments more generally, and the potential for administrative errors to hinder the effective oversight of instruments by Parliament. This is because section 42 of the Legislation Act 2003 allows senators and members 15 sitting days, following the tabling of a disallowable instrument in the relevant House of Parliament, to lodge a notice of motion to disallow that instrument. Where an instrument is initially and incorrectly tabled as exempt from disallowance, members and senators have no opportunity

to lodge a notice of motion to disallow the instrument during the period that it is incorrectly classified.

The committee has concluded its examination of this matter. As set out above, however, the committee is concerned that the initial incorrect classification of the instrument as exempt from disallowance may have hindered the effective oversight of the instrument by Parliament.

In these circumstances, the committee has resolved to place a protective notice of motion on the instrument to extend the disallowance period by 15 sitting days.

The committee will continue to monitor the classification of instruments.

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

Minister's response

The Assistant Minister for Immigration and Border Protection advised:

Prior to the commencement of the Instrument, the Migration Agents Registration Authority (MARA) assessed applications for approval as a CPD provider free of charge. The process for assessment meant that each CPD provider submitted an application for approval of every CPD activity they intended to deliver. This, in turn, became an 'approved activity' as defined in the Migration Agent[s] Regulations. The MARA charged $99 per activity assessed and each CPD Provider lodged approximately 20 activities for approval over a two-year period.
The process is simplified considerably under the Instrument. Rather than charging multiple small fees on a per-activity basis, the MARA now charges a single, up-front fee for a person who makes an application for approval as a CPD Provider. Once approved, the CPD Provider can then offer as many CPD activities as they want, provided they accord with the standards and conditions set out in the Migration Agent[s] Regulations.
The application fee of $1240 (including GST) represents the cost to the MARA in receiving and assessing an application, requesting further information, and approving or refusing the application. The fee aligns with the Australian Government Charging Framework and Cost Recovery Guidelines, administered by the Department of Finance. Although the application fee of $1240 is a change to the existing charging structure,
it continues to apply to the same cohort and merely adjusts the mechanism by which CPD activities are charged, from the individual activity to the provider.

Committee's response

The committee thanks the assistant minister for his response and notes his advice that the application fee of $1240 is calculated to cover the costs to the MARA of dealing with CPD provider applications, and aligns with the government's charging framework and cost recovery guidelines. The committee considers that this information would have been useful in the ES.

The committee has concluded its examination of the instrument.

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[1] In the event of any change to the Senate's sitting days, the last day for the notice would change accordingly.