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2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL
2019
EXPLANATORY MEMORANDUM
(Circulated by authority of the Assistant Minister for Customs, Community Safety and
Multicultural Affairs, the Hon Jason Wood MP)
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MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS) BILL
2019
OUTLINE
The Migration Amendment (Regulation of Migration Agents) Bill 2019 (the Bill) amends
the Migration Act 1958 (Migration Act) to improve the effectiveness of the scheme that
regulates migration agents.
Specifically, the Bill amends Part 3 of the Migration Act to:
remove unrestricted legal practitioners from the regulatory scheme that governs
migration agents, such that unrestricted legal practitioners cannot register as
migration agents and are entirely regulated by their own professional bodies. This is
beneficial as it will reduce the regulatory and financial burden on lawyers working in
the migration advice industry;
allow eligible restricted legal practitioners to be both registered migration agents and
restricted legal practitioners for a period of up to two years. This period may be
extended by up to two years (to provide a total maximum of four years in which a
person can be registered as both a migration agent and a legal practitioner). This is
beneficial as some restricted legal practitioners may otherwise be disadvantaged by
the supervisory restrictions on their practising certificates;
ensure 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 rather than
on the face of the Migration Act, and remove the 12-month time limit within which a
person must apply for registration following completion of a prescribed course;
repeal various provisions that reference regulatory arrangements that are no longer in
place, which will make it clear that the powers under Part 3 of the Migration Act are
exercisable by the Minister, as the Migration Agents Registration Authority (MARA)
is a part of the Department of Home Affairs, and remove references to the
appointment of the Migration Institute of Australia;
allow the 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 by making a statutory declaration or
appearing before the MARA;
require registered migration agents to notify the MARA if they have paid the
non-commercial application charge in relation to their current period of registration
but give immigration assistance otherwise than on a non-commercial basis; and
ensure that the definitions of immigration assistance and makes immigration
representations include assisting a person in relation to a request to the Minister to
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exercise his or her power under section 501C or 501CA of the Migration Act to
revoke a character-related visa refusal or cancellation decision.
FINANCIAL IMPACT STATEMENT
These amendments will have a low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A statement of compatibility with human rights has been prepared in accordance with
Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 and is at Attachment A.
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MIGRATION AMENDMENT (REGULATION OF MIGRATION AGENTS)
BILL 2019
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the short title of the Bill, once enacted, will be the
Migration Amendment (Regulation of Migration Agents) Act 2019.
Clause 2 Commencement
2. Clause 2 sets out the times at which the various provisions of the Act commence.
3. Subclause 2(1) provides that each provision of the Act specified in column 1 of
the table commences, or is taken to have commenced, in accordance with column 2 of the
table. Any other statement in column 2 has effect according to its terms.
4. Table item 1 provides that sections 1 to 3 and anything in the Act not elsewhere
covered by the table will commence on the day the Act receives the Royal Assent.
5. Table item 2 provides that Schedules 1 and 2 will commence on a single day to be
fixed by Proclamation. However, if the provisions do not commence within the period of
9 months beginning on the day the Act receives the Royal Assent, they commence on the
day after the end of that period. This nine-month period provides time to develop the
consequential regulations required and to negotiate memoranda of understanding with
State and Territory legal regulators.
6. Table item 3 provides that Schedule 3 will commence on a single day to be fixed
by Proclamation. However, if the provisions do not commence within the period of
6 months beginning on the day the Act receives the Royal Assent, they commence on the
day after the end of that period.
7. Table item 4 provides that Schedule 4 will commence on a single day to be fixed
by Proclamation. However, if the provisions do not commence within the period of
6 months beginning on the day the Act receives the Royal Assent, they commence on the
day after the end of that period.
8. Table item 5 provides that Schedule 5 will commence at the same time as
Schedule 1 to the Migration Agents Registration Application Charge Amendment (Rates
of Charge) Act 2019 (the Rates of Charge Act) commences. This is because Schedule 5
to this Bill, and Schedule 1 to the Rates of Charge Act, make related amendments and it
is necessary that they commence simultaneously. If Schedule 1 to the Rates of Charge
Act does not commence at all, neither does Schedule 5 to this Bill.
9. Table item 6 provides that Schedule 6 will commence on a single day to be fixed by
Proclamation. However, if the provisions do not commence within the period of 6 months
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beginning on the day the Act receives the Royal Assent, they commence on the day after
the end of that period.
10. A note explains that the table relates only to the provisions of the Act as originally
enacted. It will not be amended to deal with any later amendments of the Act.
11. Subclause 2(2) provides that any information in column 3 of the table is not part
of the Act. Information may be inserted in this column, or information in it may be
edited, in any published version of the Act.
Clause 3 Schedules
12. This clause provides that legislation specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in the Schedule concerned. In
addition, any other item in a Schedule to this Act has effect according to its terms.
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SCHEDULE 1 - Australian legal practitioners providing immigration assistance
Background
13. Recommendation 1 of the 2014 Independent Review of the Office of the
Migration Agents Registration Authority (OMARA Review) is that lawyers be removed
from the regulatory scheme that governs migration agents such that they cannot register
as migration agents and are entirely regulated by their own professional bodies. The
amendments made by Schedule 1 to the Bill partially give effect to Recommendation 1
by making a number of key changes to Part 3 of the Migration Act.
14. Section 276 of the Migration Act sets out a definition of immigration assistance,
and section 277 sets out a definition of immigration legal assistance. Currently, lawyers
may give immigration legal assistance without needing to be registered as a migration
agent. However, in order to lawfully give immigration assistance, lawyers must be
registered as a migration agent (subsection 280(1)). This has resulted in the dual
regulation of lawyers, whereby many lawyers who desire to work in the immigration law
field have registered as a migration agent in order to be able to provide the full range of
immigration services without running the risk of breaching subsection 280(1).
15. Lawyers are already subject to one of the most stringent professional regulatory
regimes in Australia and currently practice in a range of complex areas outside the field
of immigration law, without the need for dual regulation in these areas.
16. This Schedule makes the following key amendments to partially implement
Recommendation 1:
Unrestricted legal practitioners (as defined in amended section 275) are excluded
from the MARA scheme, such that they cannot register as migration agents. This
is beneficial as it will reduce the regulatory and financial burden on lawyers
working in the migration advice industry;
Eligible restricted legal practitioners may be both registered migration agents and
restricted legal practitioners for a period of up to two years. This period may be
extended by up to two years (to provide a maximum of four years in total). This
is beneficial as some restricted legal practitioners may otherwise be disadvantaged
by the supervisory restrictions on their practising certificates;
Australian legal practitioners (as defined in amended section 275) are permitted to
give immigration assistance in connection with legal practice without being
registered as migration agents; and
Regulation of the conduct of Australian legal practitioners giving immigration
assistance in connection with legal practice is the responsibility of the relevant
legal professional body and not the MARA.
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Migration Act 1958
Item 1 Section 275
17. This item amends section 275, which sets out a range of definitions used in Part 3
of the Migration Act.
18. Firstly, this item inserts several "signpost" definitions. A signpost definition is a
definition that refers the reader to another provision for the complete definition of a
particular term. For example, this item inserts a signpost definition of client, which refers
the reader to section 306C.
19. Secondly, this item inserts the new defined terms of Australian legal practitioner,
and legal practice. This is necessary because several items in this Schedule make
amendments such that those terms will now be used throughout Part 3 of the Migration
Act.
20. The definition of Australian legal practitioner as inserted by this item is intended
to capture only those lawyers who hold an Australian practising certificate. This includes
practising certificates that are subject to restrictions, such as a restriction requiring the
lawyer to be supervised in the provision of legal services. The definition deliberately
excludes those lawyers who are admitted but who do not hold a practising certificate.
The inclusion of this term was requested in response to an exposure draft of the
legislation circulated to key stakeholders within the migration advice industry. The term
aligns with the terminology used in the legislation governing the legal profession across
the State and Territory jurisdictions.
21. This item also inserts a note to the definition of Australian legal practitioner,
which refers readers to subsection 5(1) of the Migration Act for the meaning of lawyer.
The term lawyer is used elsewhere in the Migration Act and is broader than the new
defined term Australian legal practitioner.
22. The definition of legal practice as inserted by this item is intended to broadly
capture the type of legal services that a lawyer would generally provide, as regulated by
the laws of the relevant State or Territory.
23. Currently, lawyers who hold a practising certificate are eligible to be registered as
a migration agent on that basis, that is, without being required to complete a prescribed
course and pass a prescribed exam (if they meet the rest of the eligibility criteria). This is
because a practising certificate is currently a prescribed qualification for registration. In
order to be eligible to hold a practising certificate, a person must complete a law degree,
obtain the necessary qualifications to become admitted to practice as a lawyer of a
Supreme Court of a State or Territory, and meet continuing professional development
requirements. As such, a lawyer who holds a practising certificate has expertise in the
law and possesses the business skills required to give immigration assistance.
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24. For this reason, it is appropriate that only those lawyers who hold a practising
certificate should now be able to give immigration assistance, as defined by section 276,
in connection with legal practice without being required to register as a migration agent.
25. The definition of Australian legal practitioner covers lawyers who hold a
practising certificate that was granted under a law of an Australian State or Territory.
Lawyers who are eligible to practice under the law of a country other than Australia will
need to register as a migration agent if they wish to give immigration assistance in
Australia (with the exception of New Zealand lawyers as detailed in the following
paragraph).
26. Under the Trans-Tasman Mutual Recognition Act 1997, lawyers who are eligible
to practice in New Zealand are entitled to be registered in Australia as an Australian legal
practitioner (section 16). As such, a lawyer from New Zealand need not register as a
migration agent in order to give immigration assistance, as they will simply be able to
register with the relevant Australian legal professional body as an Australian legal
practitioner and will be able to give immigration assistance on this basis.
Item 2 Section 275 (definition of registered migration agent)
27. This item is consequential to item 14 of this Schedule, which repeals section 286
of the Migration Act.
Item 3 Section 275
28. This item inserts a signpost definition for related by employment, the full
definition of which is set out in section 278. The signpost definition has been included in
section 275 to assist readers.
29. This item also inserts the new defined terms of restricted and restricted legal
practitioner.
30. The term restricted in relation to a practising certificate held by an Australian legal
practitioner refers to a practising certificate that is subject to a condition requiring the
practitioner to undertake supervised legal practice for a specified period where such a
condition was not imposed as a disciplinary measure by an authority responsible for
disciplining Australian legal practitioners in a State or Territory. The supervised period is
generally for Australian legal practitioners who are newly admitted to a Court Roll and
require a supervised period of practice prior to receipt of an unrestricted practising
certificate.
31. The period for which an Australian legal practitioner's practising certificate must
be restricted will vary depending on the State or Territory in which the practising
certificate is held, however, all jurisdictions place supervisory restrictions on legal
practitioners that do not hold an unrestricted practising certificate. The term restricted is
intended to capture those practising certificates that require the legal practitioner to be
supervised. It is not intended to capture the restrictions placed on legal practitioners
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through sanctions for professional malpractice, or because the legal practitioner is
employed in a restricted legal environment such as Government or in-house corporate
counsel.
32. The new note added after the new defined term of restricted explains to readers
that those who are made subject to a supervision restriction that was imposed as a
disciplinary measure are taken to be unrestricted for the purposes of Part 3 of the
Migration Act (see item 5 of this Schedule). This is to reflect the policy intention that
those who are made subject to a supervision restriction for disciplinary reasons should be
prevented from being registered as migration agents.
33. A restricted legal practitioner refers to an Australian legal practitioner whose
practising certificate is restricted (within the meaning of Part 3 of the Migration Act).
Item 4 Section 275 (paragraphs (a) and (b) of the definition of review
authority)
34. This item amends the definition of review authority to correct a typographical
error.
Item 5 Section 275
35. This item inserts the new defined terms of unrestricted and unrestricted legal
practitioner.
36. The term unrestricted in relation to a practising certificate held by an Australian
legal practitioner refers to a practising certificate that is not restricted (within the
meaning of Part 3 of the Migration Act). Those who are made subject to a supervision
restriction that was imposed as a disciplinary measure are taken to be unrestricted for
the purposes of Part 3 of the Migration Act (see further discussion on this at item 3 of
Schedule 1 above).
37. The term unrestricted legal practitioner means an Australian legal practitioner
whose practising certificate is unrestricted (within the meaning of Part 3 of the
Migration Act).
38. New subsection 289B(1) prevents an applicant who is an unrestricted legal
practitioner from being registered as a migration agent (see item 15 of this Schedule).
New subsection 302A(1) requires the MARA to cancel the registration of a registered
migration agent if the agent is an unrestricted legal practitioner (see item 17 of this
Schedule).
Item 6 Section 277
39. This item repeals section 277. Section 277 sets out the definition of immigration
legal assistance.
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40. The term immigration legal assistance is currently used in the context of
identifying the types of immigration advice that a lawyer can provide without needing to
be registered as a migration agent. Because the amendments made by this Schedule
allow Australian legal practitioners to give immigration assistance on the basis of their
holding a practising certificate, the concept of immigration legal assistance is no longer
required.
41. The current definition of immigration legal assistance differs in several ways
from the current definition of immigration assistance, which is set out in section 276.
For example, one of the differences is that the definition of immigration assistance refers
to representing a person before a court or review authority in proceedings that relate to a
nomination or sponsorship (paragraph 276(2)(c)), whereas the definition of immigration
legal assistance refers only to representing a person before a court, and does not refer to
representation before a review authority (paragraph 277(2)(a)).
42. To establish the oversight of the conduct of an Australian legal practitioner under
relevant State and Territory laws, it is necessary that there be a connection with legal
practice. The giving of immigration assistance, as well as any conduct associated with
the giving of advice relating to immigration, will therefore be able to be regulated by
State and Territory legal professional bodies if the conduct is attributable to activities
done by the practitioner in connection with his or her practice as a lawyer.
43. As such, it is unnecessary to amend the definition of immigration assistance to
more specifically set out the work that is done by a lawyer, and equally unnecessary to
retain the definition of immigration legal assistance.
Item 7 Before section 279
44. This item inserts new section 278A (Eligibility for restricted legal practitioners).
New section 278A will capture restricted legal practitioners who may or may not be
registered migration agents at the time of becoming a restricted legal practitioner.
45. New subsection 278A(1) provides that a person who is a restricted legal
practitioner is eligible, subject to section 278A. This allows a restricted legal
practitioner to also be registered as a migration agent during the eligible period set out in
new subsection 278A(2), or a longer period as extended under new subsection 278A(6)
(see paragraph 56 below).
46. New subsection 278A(2) provides that the person remains eligible until either the
end of the eligible period (or of a longer period as extended under this section) or when
the person becomes an unrestricted legal practitioner.
47. This item also inserts a new note 1 to new subsection 278A(2) which explains
that a person may be eligible whether or not the person is a registered migration agent at
the time of becoming a restricted legal practitioner. This note helps to explain that
eligibility is linked to the restricted practising certificate rather than registration as a
migration agent.
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48. This item also inserts a new note 2 to new subsection 278A(2) which explains
that while a restricted legal practitioner is eligible the practitioner may be a registered
migration agent, but only if they satisfy the registration requirements. The note refers
the reader to new sections 289B (Applications by Australian legal practitioners) (see
item 15 of this Schedule) and 302A (Cancellation of registration--Australian legal
practitioners) (see item 17 of this Schedule). For how applications for registration as a
migration agent that are made but not determined before commencement of Schedules 1
and 2 to the Bill are treated, see new section 333D (see item 32 of this Schedule).
49. New note 2 also explains that in order to be registered as a migration agent, an
eligible restricted legal practitioner must satisfy the requirements of new section 289A
(Applicant must not be registered if academic and vocational requirements are not
satisfied) (see item 2 of Schedule 2 to the Bill). The new section 289A requirements
will apply to applications for registration as a migration agent that are made on or after
the commencement of Schedule 2 to the Bill (see item 4 of Schedule 2 to the Bill).
50. If a registered migration agent is subject to a suspension, this would not affect
eligibility.
51. New subsection 278A(3) provides that the eligible period is the period of two
years after the person first held a restricted practising certificate. This will be a
continuous period of two years, regardless of whether the restricted legal practitioner
continues to hold a restricted practising certificate for the entire period.
52. If, at any point during the eligible period the person becomes an unrestricted
legal practitioner, the person will no longer be eligible.
53. If, at any point during the eligible period the person becomes an unrestricted
legal practitioner whilst also being a registered migration agent, the person must notify
the MARA that they have become an unrestricted legal practitioner in accordance with
new subsection 312(4) (see item 25 of this Schedule). In this circumstances, the MARA
must cancel their registration in accordance with new section 302A (see item 17 of this
Schedule). Further, they will be prevented from being registered as a migration agent
with the MARA by new subsection 289B(1) (see item 15 of this Schedule).
54. This item also inserts a note to new subsection 278A(3) which refers the reader
to new section 333C (see item 32 of this Schedule). New section 333C is a transitional
provision which provides that the eligible period for those people who were restricted
legal practitioners immediately before commencement of Schedule 1 to the Bill (i.e. the
commencement of new section 278A and Division 8 of Part 3 of the Migration Act) is
two years after commencement. This is so as not to disadvantage people who obtained
their restricted practising certificate prior to commencement by having their eligible
period start before these amendments commence.
55. New subsections 278A(1), 278A(2) and 278A(3) are intended to capture
restricted legal practitioners who may otherwise have been disadvantaged by certain
amendments made by this Bill. In particular, item 6 of this Schedule repeals the
definition of immigration legal assistance, but item 8 of this Schedule will allow
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immigration assistance to be provided by Australian legal practitioners in connection
with legal practice under amended subsection 280(3).
56. Had there been no distinction made between unrestricted legal practitioners and
restricted legal practitioners, amended subsection 280(3) of the Migration Act (see item
8 of this Schedule), in conjunction with the conditions of a restricted practising
certificate, would have prevented registered migration agents who are also restricted
legal practitioners from providing unsupervised immigration assistance. Prior to the
amendment to subsection 280(3), a restricted legal practitioner who was a registered
migration agent was able to provide immigration assistance unsupervised. If restricted
legal practitioners were prevented from being registered as migration agents, they would
no longer be able to provide unsupervised immigration assistance as a registered
migration agent. If that were the case, it may have negatively impacted individuals
operating a business as a registered migration agent while holding a restricted practising
certificate as an Australian legal practitioner.
57. The eligible period of up to two years (or as extended under new subsection
278A(6)) is intended to allow eligible restricted legal practitioners to be registered as a
migration agent for a specified period of time to give them an opportunity to become
eligible for an unrestricted practising certificate. This time period takes into account
current State and Territory legislation, which, depending on the jurisdiction, allows a
restricted legal practitioner to become eligible for an unrestricted practising certificate
within 18 months to 2 years.1
58. Similar provision has not been made for unrestricted legal practitioners, as
subject to any conditions imposed on their practising certificate through sanctions for
professional malpractice, they will continue to be able to provide unsupervised
immigration assistance. This assistance will be provided in their capacity as an
unrestricted legal practitioner as they will no longer be registered with the MARA.
59. New subsection 278A(4) allows an eligible person to apply for an extension of
the eligible period for a period of up to two years. An application for an extension of the
eligible period must be made by the eligible person no less than three months before the
end of the eligible period, in a form approved in writing by the MARA and containing
information relevant to the application as required by the form. If the person becomes
an unrestricted legal practitioner at any point, the eligible period will end (see
paragraphs 52 and 53 above for more detail).
60. A new note is also added at the end of subsection 278A(4) to inform readers that
an eligible person may apply for an extension whether or not the person is a registered
migration agent at the time of making the extension application. This note further
highlights the fact that eligibility is linked to the restricted practising certificate rather
than registration as a migration agent.
1
Legal Profession Regulation 2007 (ACT); Legal Profession Uniform Law (NSW); Legal Profession Act
2006 (NT); Legal Profession Act 2007 (Qld); Rules of the Legal Practitioners Education and Admission
Council 2018, made under the Legal Practitioners Act 1981 (SA); Legal Profession Act 2007 (Tas); Legal
Profession Uniform Law Application Act 2014 (Vic); Legal Profession Act 2008 (WA).
13
61. New subsection 278A(5) provides that a person can only make one application
for an extension under new subsection 278A(4). This is to prevent eligible restricted
legal practitioners from repeatedly prolonging the eligible period during which they can
be both registered migration agents with the MARA and restricted legal practitioners.
62. In conjunction with new subsection 278A(3), the effect of new subsections
278A(4) and 278A(5) is that an eligible restricted legal practitioner may have a
combined maximum eligible period of four years, if such an extension is granted by
MARA.
63. Upon application under new subsection 278A(4), new subsection 278A(6)
requires the MARA to, by written notice, either extend the eligible period by a stated
period of no more than two years, or refuse to extend the eligible period. The written
notice must be given to the applicant no later than 28 days before the end of the eligible
period.
64. New subsection 278A(7) provides that the MARA may only extend the eligible
period by a particular period if the MARA considers it reasonable to do so in the
circumstances. In considering whether there are reasonable circumstances, the MARA
is to consider any circumstances determined by legislative instrument made under new
subsection 278A(9). However, the MARA is not limited to any circumstances
determined under new subsection 278A(9). Reasonable circumstances may include, for
example, maternity leave or chronic illness of the eligible restricted legal practitioner.
65. New subsection 278A(8) requires the notice of the decision under new
subsection 278A(6) to include any details that may be determined by legislative
instrument made under new subsection 278A(9) in relation to the decision. The details
of the decision may include the reasons for the decision, findings on material questions
of fact and reference to the evidence or other material on which those findings were
based.
66. New subsection 278A(9) allows the Minister to make a determination for the
purposes of new subsections 278A(7) or 278A(8) by legislative instrument. Any
legislative instrument made under new subsection 278A(9) will be subject to
disallowance in accordance with section 42 of the Legislation Act 2003 (the Legislation
Act).
67. New subsection 278A(10) provides that an application may be made to the
Administrative Appeals Tribunal for merits review of a decision to extend the eligible
period by a particular stated period under new paragraph 278A(6)(a) or a decision to
refuse to extend the eligible period under new paragraph 278A(6)(b).
68. The note at the end of new subsection 278A(10) makes it clear that section 27A
of the Administrative Appeals Tribunal Act 1975 (the AAT Act) applies in relation to a
reviewable decision made by the MARA under new subsection 278A(6).
Subsection 27A(1) of the AAT Act requires the MARA to take such steps as are
reasonable in the circumstances to give a person whose interests are affected by a
reviewable decision notice of the making of the decision and the right to have the
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decision reviewed. The intention is that this will be provided in any written notice given
under new subsection 278A(6).
Item 8 Subsection 280(3)
69. The purpose of item 8 is to ensure that an Australian legal practitioner can give
immigration assistance in connection with legal practice without being required to
register as a migration agent.
70. Amended subsection 280(3) refers to an Australian legal practitioner, reflecting
the new defined term as inserted by item 1 of this Schedule. It also refers to immigration
assistance as opposed to immigration legal assistance. This is consequential to the repeal
of section 277 (see item 6 of this Schedule), which defines immigration legal assistance.
This ensures that Australian legal practitioners are authorised to give immigration
assistance without needing to be registered as a migration agent, as long as the giving of
immigration assistance is in connection with legal practice.
71. To be registered as a migration agent involves payment of a charge for each
12 month registration period. This amendment allows Australian legal practitioners to
give legal advice on immigration matters while regulated solely by their own legal
professional bodies.
72. This simplifies the responsibilities and regulation of Australian legal practitioners,
and ensures that such persons do not have to pay additional charges in order to give
advice on immigration matters. Australian legal practitioners who intend to practice in
the migration advice field will be able to access a range of educational offerings to
increase their knowledge, as they already do with other complex aspects of the legal
profession.
Item 9 Paragraphs 281(3)(a) and (b)
73. Section 281 sets out restrictions on charging fees for the giving of immigration
assistance. Subsection 281(3) currently provides that the restrictions in section 281 do
not prohibit lawyers from asking for or receiving a fee for giving immigration legal
assistance, and do not prohibit a person from asking for or receiving a fee for the giving
of immigration legal assistance by a lawyer.
74. This item amends paragraphs 281(3)(a) and (b) so that they now ensure that the
restrictions in section 281 do not apply to Australian legal practitioners in the giving of
immigration assistance in connection with legal practice. Amended paragraph 281(3)(a)
provides that section 281 does not prohibit an Australian legal practitioner from asking
for or receiving a fee or other reward for giving immigration assistance in connection
with legal practice. Amended paragraph 281(3)(b) provides that section 281 does not
prohibit a person from asking for or receiving a fee or other reward for the giving of
immigration assistance by an Australian legal practitioner in connection with legal
practice.
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75. This item is therefore consequential to the amendments made by items 1, 6 and 8
of this Schedule.
Item 10 Subsections 282(1) and (2)
76. This item is consequential to item 11 of this Schedule, which inserts new
subsection 282(2A).
Item 11 After subsection 282(2)
77. Section 282 sets out restrictions on charging fees for making immigration
representations, with subsection 282(4) providing a definition of makes immigration
representations.
78. This item inserts new subsection 282(2A), which provides that section 282 does
not prohibit an Australian legal practitioner from asking for or receiving a fee or other
reward for making immigration representations in connection with legal practice, or a
person from asking for or receiving a fee or other reward for the making of immigration
representations by an Australian legal practitioner in connection with legal practice. This
item is therefore consistent with the amendments made by items 1, 6 and 8 of this
Schedule.
Item 12 Subsection 284(3)
79. Section 284 sets out restrictions on self-advertising of the giving of immigration
assistance. Subsection 284(3) currently provides that the restrictions in section 284 do
not prohibit a lawyer from advertising that he or she gives immigration legal assistance.
80. This item amends subsection 284(3) so that it now ensures that the restrictions in
section 284 do not prohibit an Australian legal practitioner from advertising that the
practitioner gives immigration assistance in connection with legal practice. This item is
therefore consequential to the amendments made by items 1, 6 and 8 of this Schedule.
Item 13 Subsection 285(3)
81. Section 285 broadly provides that a person must not directly or indirectly
advertise that another person, who is not a registered migration agent, gives immigration
assistance. Current subsection 285(3) provides that the restrictions in section 285 do not
prohibit a person from advertising that another person who is a lawyer gives immigration
legal assistance.
82. This item amends subsection 285(3) to ensure that the restrictions in section 285
do not prohibit a person from advertising that another person who is an Australian legal
practitioner gives immigration assistance in connection with legal practice. This item is
therefore consequential to the amendments made by items 1, 6 and 8 of this Schedule.
Item 14 Section 286
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83. This item repeals section 286.
84. Currently, section 286 provides that individuals may be registered as migration
agents in accordance with Part 3 of the Migration Act. However, subsection 288(1)
provides that an individual may apply to the MARA to be registered as a migration agent.
It is unnecessary to retain section 286 given the content of subsection 288(1), so section
286 is repealed.
Item 15 After section 289A
85. This item inserts new section 289B, which deals with applications for registration
as a migration agent made by Australian legal practitioners.
86. New subsection 289B(1) provides that an applicant who is an unrestricted legal
practitioner must not be registered as a migration agent. This is consistent with the
policy intention that unrestricted legal practitioners providing immigration advice should
be regulated by the relevant State or Territory Law Society and not the MARA.
87. New subsection 289B(2) provides that an applicant who is a restricted legal
practitioner must not be registered as a migration agent unless the applicant is eligible.
This allows for eligible restricted legal practitioners to be registered as migration agents
during the eligible period (see item 7 of this Schedule).
88. The new notes at the end of new subsection 289B(2) refer readers to provisions
relating to whether a restricted legal practitioner can be registered as a migration agent
with the MARA.
89. New note 1 refers the reader to new sections 278A and 333C, for when a person
is eligible (see items 7 and 32 of this Schedule). Eligible restricted legal practitioners
will not be prevented from being registered as a migration agent by new subsection
289B(2).
90. New note 2 refers to amended section 312, which requires a registered migration
agent to notify the MARA in writing within 28 days after becoming a restricted legal
practitioner or an unrestricted legal practitioner (see item 25 of this Schedule). This is
necessary for MARA to determine whether a person is an eligible restricted legal
practitioner or an unrestricted legal practitioner.
91. New note 3 refers to new section 302A, which requires the MARA to cancel the
registration of a registered migration agent who is an unrestricted legal practitioner, or
who is a restricted legal practitioner who is not eligible (see item 17 of this Schedule).
The effect of new section 302A is that, although an applicant is not prevented by new
subsection 289B(2) from being registered as a migration agent if they are an eligible
restricted legal practitioner at the time of registration, their registration must be
cancelled if they become an unrestricted legal practitioner, or if they are no longer an
eligible restricted legal practitioner.
17
92. The effect of new section 289B is that any application for registration as a
migration agent made by an unrestricted legal practitioner or a restricted legal practitioner
who is not eligible will be refused.
Item 16 Section 299
93. This item repeals and substitutes section 299, which is about the period of
registration as a migration agent.
94. New subsection 299(1) provides that, subject to any other provision of Part 3 of
the Migration Act (including new subsection 299(2)), a registered migration agent's
registration period ends 12 months after the day of registration. The wording has been
updated to ensure that registration that starts at the start of a day of one of the calendar
months should end immediately before the start of the corresponding day of the calendar
month in 12 months' time. The definition of month in section 2G of the Acts
Interpretation Act 1901 is relied upon here. For example, if a person's registration
commences on 1 July 2020, their registration ends on 30 June 2021.
95. New subsection 299(2) provides that if the registration is suspended for a period,
the period of the registration is extended by a period equal to the period of suspension.
This reflects the current subsection 299(3), however, new subsection 299(2) is phrased
more simply to assist readers. The purpose of new subsection 299(2), and of current
subsection 299(3), is to ensure that if a person's registration is suspended for a period,
they are still able to enjoy a full 12 month registration period. Where the MARA is
satisfied that a person's conduct should result in the person's registration period ending
before the full 12 month registration period is concluded, the MARA can cancel the
person's registration under section 303 provided that one of the grounds mentioned in
paragraphs 303(1)(d)-(h) is made out.
Item 17 After section 302
96. This item inserts new section 302A, which provides the MARA with a new
cancellation power in relation to registered migration agents who are Australian legal
practitioners.
97. New paragraph 302A(1)(a) provides that the MARA must cancel the registration
of a registered migration agent, by removing the agent's name from the Register, if
satisfied that the agent is an unrestricted legal practitioner. This is consistent with the
policy intention that unrestricted legal practitioners providing immigration advice in
connection with legal practice should be regulated by the relevant State or Territory Law
Society and not the MARA.
98. New paragraph 302A(1)(b) provides that the MARA must cancel the registration
of a registered migration agent, by removing the agent's name from the Register, if
satisfied that the agent is a restricted legal practitioner who is not eligible. This is
consistent with the policy intention that Australian legal practitioners providing
immigration advice in connection with legal practice should be regulated by the relevant
18
State or Territory Law Society and not the MARA; whilst also allowing for eligible
restricted legal practitioners to be registered as migration agents during the eligible
period.
99. The new notes at the end of new subsection 302A(1) refer readers to provisions
relating to whether an Australian legal practitioner can also be registered as a migration
agent.
100. New note 1 refers the reader to new sections 278A and 333C for when a person
is eligible (see items 7 and 32 of this Schedule). A restricted legal practitioner will not
have their registration cancelled under new paragraph 302A(1)(b) while they remain
eligible.
101. New note 2 refers to amended section 312, which requires a registered migration
agent to notify the MARA in writing within 28 days after becoming a restricted legal
practitioner or an unrestricted legal practitioner (see item 25 of this Schedule). This is
necessary for MARA to determine whether a person is an eligible restricted legal
practitioner or an unrestricted legal practitioner. If the restricted legal practitioner ceases
to be eligible, their registration as a migration agent with the MARA must be cancelled
under new paragraph 302A(1)(b).
102. New note 3 refers to new section 289B, which prevents an unrestricted legal
practitioner or a restricted legal practitioner other than an eligible restricted legal
practitioner from being registered as a migration agent with the MARA (see item 15 of
this Schedule). Restricted legal practitioners who are eligible at the time of application
for registration as a migration agent, and therefore not prevented from being registered
by new subsection 289B(2), will be subject to cancellation of their MARA registration
under new subsection 302A(1) if they become an unrestricted legal practitioner, or if
they are no longer an eligible restricted legal practitioner.
103. New subsection 302A(2) makes it clear that the MARA may cancel the
registration of a registered migration agent under new subsection 302A(1) because of the
agent's status as an Australian legal practitioner only on the basis of a document
authorised by a body authorised to grant practising certificates to Australian legal
practitioners in the relevant State or Territory. Documents may include, for example, a
copy of the practitioner's practising certificate, or a register (including an online
register) of the relevant State or Territory Law Society. New subsection 302A(2) will
ensure there is sufficient evidence of the agent's status as an Australian legal practitioner
before the MARA at the time of cancellation, noting that there is no discretion not to
cancel a registered migration agent's registration if the requirements under new
subsection 302A(1) are met.
104. New subsection 302A(3) provides that the MARA must give the agent written
notice of a decision to cancel the person's registration under subsection 302A(1). New
subsection 302A(4) provides that this notice must set out the reason for the decision.
105. New subsection 302A(5) provides that the decision takes effect at the time the
agent is given written notice of it. This means that the time at which when the agent is
19
given the notice is the time at which their registration is cancelled. This item also inserts
a note to new subsection 302A(5) that refers readers to section 332H, which sets out
when an agent is taken to have been given a notice under Part 3 of the Migration Act.
106. New subsections 302A(3), 302A(4) and 302A(5) mirror the content of current
section 305, which sets out the notification requirements of the MARA when making a
disciplinary decision under section 303.
107. As there is no disciplinary reason for cancelling a registration under new section
302A, certain provisions in Part 3 of the Migration Act will not be triggered. For
example, current section 292 provides that a person must not be registered within five
years of having their registration cancelled under section 303, 306AG or 306AGAC. By
contrast, a person whose registration is cancelled under new section 302A will not be
subject to the section 292 bar on registration. This is appropriate because cancellation of
registration due to the person being an unrestricted legal practitioner or a restricted legal
practitioner who is not eligible is not a disciplinary action, and as such the requirements
and procedures associated with cancellation for disciplinary reasons should not be
applicable.
Item 18 Subsection 305B(1)
108. This item is consequential to item 19 of this Schedule, which repeals subsection
305B(3).
Item 19 Subsection 305B(3)
109. This item repeals subsection 305B(3), which contains a signpost definition of
client. Item 1 of this Schedule inserts this signpost definition into section 275, along with
other signpost definitions of terms used in Part 3 of the Migration Act. As such,
subsection 305B(3) is no longer required.
Item 20 Subsection 306AM(1)
110. This item is consequential to item 21 of this Schedule, which repeals subsection
306AM(3).
Item 21 Subsection 306AM(3)
111. This item repeals subsection 306AM(3), which contains a signpost definition of
client. Item 1 of this Schedule inserts this signpost definition into section 275, along with
other signpost definitions of terms used in Part 3 of the Migration Act. As such,
subsection 306AM(3) is no longer required.
Item 22 Section 306A (note)
112. This item repeals and substitutes the note at the end of section 306A. This is
consequential to item 23 of this Schedule, which adds an additional circumstance to
20
section 306B in which an agent may become inactive that would not be covered by the
existing note to section 306A. Rather than add to the list of circumstances in the existing
note to section 306A, the note has been simplified to refer the reader to section 306B for
the circumstances in which an agent becomes inactive, since section 306B immediately
follows section 306A.
Item 23 After paragraph 306B(b)
113. This item inserts new paragraph 306B(ba) into Part 3 of the Migration Act.
Section 306B sets out who is an inactive migration agent.
114. New paragraph 306B(ba) is about a person who ceases to be a registered
migration agent because their registration is cancelled under new section 302A (see item
17 of this Schedule) or because their registration ends under new section 333B (see item
32 of this Schedule).
115. New paragraph 306B(ba) applies to such a person and provides that the person
becomes an inactive migration agent at the time that their registration ceases. It also
provides that the person remains an inactive migration agent for two years after their
registration ceases or until the person becomes a registered migration agent again,
whichever happens first.
116. New note 1 refers to new section 302A, which requires the MARA to cancel the
registration of a migration agent if the agent is an unrestricted legal practitioner, or is a
restricted legal practitioner who is not eligible (see item 17 of this Schedule). If a
registered migration agent's registration is cancelled under new section 302A, they will
become an inactive migration agent under new subparagraph 306B(ba)(i).
117. New note 2 refers to new section 333B, which provides that if a registered
migration agent is also an unrestricted legal practitioner immediately before the
commencement of Division 8 of Part 3 of the Migration Act (which is also when the
amendment made by this item commences), their registration will cease on
commencement (see item 32 of this Schedule). Once a migration agent's registration
ends in accordance with new section 333B, they will become an inactive migration
agent under new subparagraph 306B(ba)(i).
118. An inactive migration agent is a person who has ceased to practice as a migration
agent due to, for example, cancellation of their registration (see current paragraph
306B(c)) or the person having become physically or mentally incapable of giving
immigration assistance (see current paragraph 306B(e)). The concept of inactive
migration agents is particularly useful for the operation of sections 306D and 306E,
which broadly allow the MARA to require an inactive migration agent or the legal
representative of a deceased inactive migration agent to produce documents that are
owned by or were produced by the clients of the agent in question.
119. The effect of inserting new paragraph 306B(ba) is that a person whose registration
as a migration agent ceases or is cancelled under new sections 302A or 333B will become
21
an inactive migration agent. This means that, while the person is an inactive migration
agent, the MARA will have the power to require the person to produce documents that
are owned by or were produced by the person's clients. The policy intention is to provide
consumer protection, particularly in circumstances where the agent operated as a sole
trader, and there is no suitable person appointed to take over the business.
Item 24 Section 306C
120. This item repeals and substitutes section 306C, which provides a definition of
client. Current section 306C provides a definition of client for the purposes of
Division 3A of Part 3 of the Migration Act, whereas new section 306C provides a
definition for the purposes of Part 3 generally, as well as for the purposes of regulations
made under Part 3.
121. Currently, there is a definition of client in subregulation 3(1) of the Migration
Agents Regulations 1998 (the Agents Regulations), which is different to the definition in
current section 306C.
122. The definition of client set out in new subsection 306C(1) is based on, but not
identical to, the definition in subregulation 3(1) of the Agents Regulations. Whereas the
definition in the Agents Regulations refers to whether the agent agrees to provide
immigration assistance, the definition in new subsection 306C(1) refers to whether the
agent has given or has agreed to give immigration assistance. The definition in new
subsection 306C(1) is therefore broader and includes clients of registered migration
agents who have been given immigration assistance in the past but who will not be
receiving immigration assistance from that agent in the future.
123. New subsection 306C(2) replicates the content of current section 306C, but uses
simpler phrasing to reflect modern drafting practices and to assist the reader.
Item 25 At the end of section 312
124. This item inserts new subsections 312(4) and (5).
125. New paragraph 312(4)(a) requires a registered migration agent to notify the
MARA in writing within 28 days after the agent becomes a restricted legal practitioner.
This information is required to determine whether a registered migration agent is an
eligible restricted legal practitioner, or, if they are not eligible, whether their registration
must be cancelled by the MARA in accordance with new section 302A (see item 17 of
this Schedule).
126. New paragraph 312(4)(b) requires a registered migration agent to notify the
MARA in writing within 28 days after the agent becomes an unrestricted legal
practitioner. In accordance with new section 302A, a migration agent's registration
must be cancelled by the MARA if they become an unrestricted legal practitioner.
127. The penalty imposed for failure to comply with new subsection 312(4) is
100 penalty units. This penalty is consistent with the penalty imposed by current
22
subsection 312(1) of the Migration Act, which requires a registered migration agent to
notify the MARA within 14 days after certain events.
128. New subsection 312(5) provides that an offence against new subsection 312(4) is
an offence of strict liability.
129. The note at the end of new subsection 312(5) refers to section 6.1 of the Criminal
Code, which defines strict liability.
Item 26 Subsection 313(4)
130. This item repeals subsection 313(4), which provides that section 313 does not
apply to the giving of immigration legal assistance by a lawyer. This amendment is
consequential to the amendment made by item 6 of this Schedule, which repeals the
definition of immigration legal assistance.
Item 27 Paragraph 316(1)(b)
131. Section 316 sets out the functions of the MARA. Current paragraph 316(1)(b)
relevantly provides that one of these functions is to monitor the conduct of lawyers in
their provision of immigration legal assistance.
132. This item amends paragraph 316(1)(b) to remove this reference to lawyers and
immigration legal assistance. This is partly consequential to the repeal of the definition
of immigration legal assistance by item 6 of this Schedule. It also meets the intention
behind the amendments made by this Schedule, which is that lawyers should be regulated
by their own professional bodies and should not be able to register as migration agents
(with some exceptions for eligible restricted legal practitioners). The amendment made
by item 8 of this Schedule allows Australian legal practitioners to give immigration
assistance without being registered as a migration agent.
133. As a consequence of this amendment, the MARA will not be able to monitor the
conduct of Australian legal practitioners (who are not also registered migration agents) in
their provision of immigration assistance. Rather, this will be the function of the relevant
State and Territory legal professional bodies. This is because these bodies have
responsibility for regulating the conduct of Australian legal practitioners insofar as that
conduct occurs in connection with legal practice.
Item 28 Paragraph 316(1)(e)
134. This item repeals paragraph 316(1)(e), which provides that one of the functions of
the MARA is to investigate complaints about lawyers in relation to their provision of
immigration legal assistance, for the purpose of referring appropriate cases to
professional associations for possible disciplinary action.
135. Like item 27 of this Schedule, this amendment meets the intention behind the
amendments made by this Schedule, which is that lawyers should be regulated by their
own professional bodies and should not be able to register as migration agents (with some
23
exceptions for eligible restricted legal practitioners). Further, this item is consequential
to the repeal of the definition of immigration legal assistance by item 6 of this Schedule.
136. Complaints about Australian legal practitioners will no longer be investigable by
the MARA, and rather will be the responsibility of the relevant State and Territory legal
professional bodies. Item 30 of this Schedule ensures that the MARA has the power to
refer to such bodies the conduct of registered migration agents and former registered
migration agents who are also Australian legal practitioners. As explained above under
item 27 of this Schedule, these bodies have responsibility for monitoring, investigating
and disciplining lawyers for conduct that occurs in connection with legal practice. Any
disciplinary action taken by those bodies would be on the basis of the practitioner having
engaged in unsatisfactory professional conduct or professional misconduct, as defined by
the relevant State or Territory legislation.
137. Any complaints about Australian legal practitioners in relation to their provision
of immigration legal assistance, who are not registered migration agents or former
registered migration agents, that are on hand--that is, not yet finalised--when this
Schedule commences, will no longer be investigable by the MARA under amended
section 316. Rather, the MARA will ask the complainant to re-lodge the complaint with
the relevant legal disciplinary authority.
138. After the commencement day, any new complaint received about a person who
was both a registered migration agent and an Australian legal practitioner at the time of
the conduct in question will also no longer be investigable by the MARA. For example, a
complaint may be made after commencement, about immigration assistance that was
given before commencement, in relation to an Australian legal practitioner who was also
a registered migration agent at the time. Such a complaint would be referrable by the
MARA under amended section 319 to the relevant legal disciplinary authority, on the
basis that the person is currently an Australian legal practitioner.
Item 29 Section 319 (heading)
139. This item repeals and substitutes the heading of section 319.
140. Currently, the heading is "Power to refer lawyers' conduct to other authorities".
The new heading, "Referral of conduct of certain migration agents to legal disciplinary
authorities", reflects the MARA's power under new subsection 319(1) to refer the
conduct of a registered migration agent as well as a former registered migration agent
who is an Australian legal practitioner to an authority responsible for disciplining
Australian legal practitioners in a State or Territory. These referrals of conduct may be
made to, for example, State or Territory Law Societies or Legal Services
Commissioners.
Item 30 Subsection 319(1)
141. This item repeals and substitutes subsection 319(1) of the Migration Act.
24
142. Current subsection 319(1) authorises the MARA to refer to an authority
responsible for disciplining lawyers the conduct of registered migration agents, as well as
former registered migration agents, who also hold practising certificates.
143. New subsection 319(1) allows the MARA to refer the conduct of a registered
migration agent, or a former registered migration agent, who is an Australian legal
practitioner to an authority responsible for disciplining Australian legal practitioners in a
State or Territory if: the legal practitioner was granted a practising certificate under the
law of that State or Territory; and the conduct occurred while the legal practitioner was a
registered migration agent, whether or not the conduct occurred in connection with legal
practice.
144. The effect of new subsection 319(1) is that the MARA will be able to refer the
conduct of eligible restricted legal practitioners whilst they are registered as migration
agents, as well as the conduct of former registered migration agents, including those
whose registration has ended under new section 333B or been cancelled under new
section 302A.
145. New subsection 319(1) allows the MARA to refer conduct if it occurred while the
legal practitioner was a registered migration agent, whether or not it occurred in
connection with legal practice. This is appropriate because the MARA does not have the
relevant expertise or authority to make an assessment as to whether the conduct of a
former registered migration agent occurred in connection with legal practice. Rather, this
is the purview of the relevant legal disciplinary authority. In addition, legal disciplinary
authorities have the power to discipline conduct that constitutes professional misconduct,
which may occur in connection with the practice of law or otherwise. As such, it is
inappropriate to limit the MARA's referral powers to conduct that is connected with legal
practice.
146. Whereas current subsection 319(1) refers to "an authority responsible for
disciplining lawyers", new subsection 319(1) refers to "an authority responsible for
disciplining Australian legal practitioners in a State or Territory" and allows the MARA
to refer conduct to such an authority if the former agent who committed the conduct was
granted his or her practising certificate under the law of that particular State or Territory.
This ensures that the conduct of the person is referred to the appropriate jurisdictional
body, that is, the body that in fact has regulatory responsibility for that person's conduct
as an Australian legal practitioner.
147. This item does not repeal or amend subsections 319(2) or (3), which provide that
if the MARA refers the conduct of a registered migration agent or a former registered
migration agent, it may not take action against the agent under section 303 or
subsection 311A(1) on the basis of that conduct. Section 303 allows the MARA to
caution a registered migration agent or suspend or cancel a registered migration agent's
registration. Section 311A allows the MARA to bar a former registered migration agent
from being registered for up to 5 years. It is the policy intention that the referral of the
conduct of a former registered migration agent who is also an Australian legal
25
practitioner should not result in the MARA being able to bar the person from being
registered if the MARA has referred the agent's conduct to a legal disciplinary authority.
Item 31 Subsections 321A(4) and 332F(4)
148. This item repeals subsections 321A(4) and 332F(4). These provisions set out
signpost definitions of inactive migration agent, and refer readers to section 306B which
provides a complete definition of the term. These provisions are no longer required
because item 1 of this Schedule amends section 275 to include the signpost definition of
inactive migration agent.
Item 32 At the end of Part 3
149. This item inserts new Division 8 at the end of Part 3 of the Migration Act, which
sets out transitional arrangements for Australian legal practitioners following
commencement of the amendments made by this Schedule.
New section 333 - Definitions
150. New section 333 defines amending Act as the Migration Amendment (Regulation
of Migration Agents) Act 2019, for the purposes of new Division 8.
151. Writing out the name of the Act in full each time it is referenced in Division 8
would render the Division difficult to read. Division 8 refers to "the amending Act" at
several points, particularly when setting out how the amendments made by that Act are to
apply after its commencement. For this reason, using the defined term is convenient and
aids readability.
152. New section 333 also defines Division 8 commencement day as the day this
Division commences.
153. Division 8 refers to the "Division 8 commencement day" at several points,
particularly when setting out how the amendments made by this Schedule will apply
before and after the Division 8 commencement day.
154. This item also inserts a new note at the end of section 333, which provides that
Division 8 was added by Schedule 1 to the amending Act.
New section 333A - Restrictions on giving immigration assistance and making
immigration representations
155. Division 2 of Part 3 of the Migration Act sets out restrictions on giving
immigration assistance, making immigration representations, charging fees and
advertising. Currently, Division 2 most relevantly places restrictions in relation to these
types of conduct on persons who are not registered migration agents, and provides that
such restrictions do not apply in relation to lawyers giving immigration legal assistance.
26
156. This Schedule makes amendments to Division 2 such that the restrictions
contained therein do not apply to Australian legal practitioners giving immigration
assistance or making immigration representations in connection with legal practice.
These amendments reflect the fact that Australian legal practitioners will now be able to
give immigration assistance without being registered as a migration agent, and is
consequential to the repeal of the definition of immigration legal assistance by item 6 of
this Schedule.
157. New subsection 333A(1) ensures that the content of Division 2 as in force prior to
the Division 8 commencement day continues to apply in relation to conduct that occurred
before that day. For example, this means that if an Australian legal practitioner provided
immigration assistance prior to the Division 8 commencement day and was not a
registered migration agent at the time, that person will have committed an offence under
section 280 of the Migration Act, whether or not that conduct is investigated before or
after the Division 8 commencement day.
158. New subsection 333A(2) provides that new subsection 333A(1) also applies in
relation to any conduct that occurs on or after the Division 8 commencement day, if that
conduct is a part or continuation of, or is connected to, conduct that occurred before that
day. For example, an Australian legal practitioner may have provided immigration
assistance prior to the Division 8 commencement day despite not being registered as a
migration agent, which is currently an offence under section 280. If the practitioner
receives a fee, after the Division 8 commencement day, for the giving of that immigration
assistance, this would constitute conduct that is a continuation of conduct that occurred
prior to the Division 8 commencement day, and was also itself an offence under section
281 before the Division 8 commencement day. The operation of new subsection 333A(2)
means that the person will have committed an offence as though Division 2 had not been
amended by the amending Act at all.
New section 333B - Registered migration agents who were unrestricted legal
practitioners immediately before the Division 8 commencement day
159. This provision ensures that unrestricted legal practitioners who were also
registered migration agents immediately before the Division 8 commencement day will
cease to be registered migration agents from that date onwards. This ensures that, from
the Division 8 commencement day, unrestricted legal practitioners will no longer be able
to be registered as migration agents, and will be entirely regulated by their own
professional bodies.
160. New subsection 333B(1) provides that section 333B applies in relation to a person
who was both a registered migration agent and an unrestricted legal practitioner
immediately before the Division 8 commencement day. New paragraph 333B(1)(a)
specifies that this is so even if the person was subject to a suspension or their registration
had been taken to continue under subsection 300(4). This is because the policy intention
is that the registration of all unrestricted legal practitioners should cease on the same date,
regardless of whether the person's registration would have continued beyond that date if
not for the amendments made by this Schedule.
27
161. New subsection 333B(2) provides that the registration of a person mentioned in
subsection 333B(1) ends at the start of the Division 8 commencement day.
New section 333C - Persons who were restricted legal practitioners immediately before
the Division 8 commencement day
162. New section 333C sets out the transitional arrangements for people who were
restricted legal practitioners immediately before the Division 8 commencement day. New
provision 333C should be read in conjunction with new section 278A (see item 7 of this
Schedule).
163. New subsection 333C(1) provides that new section 333C applies in relation to a
person who, immediately before the Division 8 commencement day, was a restricted
legal practitioner (whether or not the person was a registered migration agent at that
time).
164. New subsection 333C(2) sets out the application of eligibility under new
section 278A. It provides that the person's eligible period for the purposes of section
278A is the period of two years after the Division 8 commencement day, despite
subsection 278A(3).
165. The note to new subsection 333C(2) states that subsection 278A(3) provides that
generally the eligible period is the period of two years after the person first held a
restricted practising certificate.
166. This application provision ensures that those who are restricted legal practitioners
immediately before the Division 8 commencement day are not disadvantaged as
compared to those who become restricted legal practitioners after the Division 8
commencement day. This way, all restricted legal practitioners are afforded a two year
eligible period within which registration as a migration agent is also possible.
167. The policy intention behind new provisions 333C and 278A is to allow restricted
legal practitioners to be registered as a registered migration agent for a specified period
of time, to provide them with time to complete their supervised legal practice period to
become eligible for an unrestricted practising certificate. This time period takes into
account current State and Territory legislation, which, depending on the jurisdiction,
allows a restricted legal practitioner to become eligible for an unrestricted practising
certificate within 18 months to 2 years.2
New section 333D - Registration applications made before the Division 8
commencement day
2
Legal Profession Regulation 2007 (ACT); Legal Profession Uniform Law (NSW); Legal Profession Act
2006 (NT); Legal Profession Act 2007 (Qld); Rules of the Legal Practitioners Education and Admission
Council 2018, made under the Legal Practitioners Act 1981 (SA); Legal Professions Act 2007 (Tas); Legal
Profession Uniform Law Application Act 2014 (Vic); Legal Profession Act 2008 (WA).
28
168. This provision ensures that an application for registration made before the
Division 8 commencement day by an Australian legal practitioner, which is not yet
decided on that date, will be decided in accordance with the amendments made by this
Schedule.
169. New subsection 333D(1) provides that section 333D applies in relation to a
person if, immediately before the Division 8 commencement day, the person had made a
registration application and the MARA had not made a decision in relation to the
application. New paragraph 333D(1)(a) specifies that this is so whether or not the person
had previously been registered as a migration agent. This ensures that section 333D
includes both applicants for first-time registration as a migration agent, as well as
applicants for repeat registration.
170. New subsection 333D(2) provides that the amendments to Division 3 of Part 3 of
the Migration Act made by this Schedule apply in relation to the person's registration
application as though the application had been made on or after the Division 8
commencement day. Division 3 is about the registration process and requirements for
registration. The effect of new subsection 333D(2) is that an application that has been
made but not had a decision in relation to the application made by the MARA before the
Division 8 commencement day, must be considered as if the application were made on or
after the Division 8 commencement day. For example, if the application was made
before the Division 8 commencement day by an unrestricted legal practitioner but a
decision is not made on the application until after the Division 8 commencement day, the
application must be refused under new section 289B. If the application was made before
the Division 8 commencement day by a restricted legal practitioner but a decision is not
made on the application until after the Division 8 commencement day, if the restricted
legal practitioner is eligible--under new section 278A as applied by new section 333C--
at the time of the decision, then the applicant can be registered under new section 289B.
See discussion below at paragraphs 192 to 195 for how new section 289A (Applicant
must not be registered if academic and vocational requirements are not satisfied) will be
applied to registration applications.
171. This item also inserts a note to new subsection 333D(2) which refers to new
section 289B. New section 289B prevents an unrestricted legal practitioner or a
restricted legal practitioner who is not eligible from being registered as a migration agent
with the MARA (see item 15 of this Schedule). On and after the Division 8
commencement day, such legal practitioners cannot be registered as migration agents.
172. New subsection 333D(3) provides that if the person was an unrestricted legal
practitioner immediately before the Division 8 commencement day, current section 300
(automatic continuation of registration) does not apply on and after that day in relation to
the registration application. Section 300 broadly provides that a registered migration
agent's registration will continue beyond the end of their current registration period if
they have applied for repeat registration but the MARA has not yet decided their
application. There is also a note to new subsection 333D(3), which explains that if the
person's registration had been taken to continue under subsection 300(4) before the
29
Division 8 commencement day, the registration ends at the start of that day. The note
also refers readers to new section 333B.
173. New subsection 333D(4) ensures that where a person's application was refused
because of new section 289B, that refusal does not prevent the person from being
registered as a migration agent in accordance with a later application made on or after the
Division 8 commencement day. This is so despite current section 291, which provides
that an applicant must not be registered if he or she has been refused registration in the
12 months before his or her application. The effect of subsection 333D(4) is that, if a
person, whose application was refused under new section 289B because they are an
unrestricted legal practitioner or a restricted legal practitioner who is not eligible, ceases
to hold a practising certificate, they can then apply for registration as a migration agent
without being required to wait 12 months after ceasing to hold the certificate.
New section 333E - Events required to be notified under s 312(4)
174. This provision provides that new subsection 312(4) (added by item 25 of this
Schedule) applies to require a registered migration agent to notify the MARA that the
agent has become a restricted or unrestricted legal practitioner if the agent becomes such
a practitioner on or after the Division 8 commencement day. This transitional provision
clarifies that subsection 312(4) is to be interpreted as requiring notification to MARA
only if the change occurs on or after the Division 8 commencement day, not before.
30
SCHEDULE 2 - Registration periods
Background
175. The purpose of the amendments made by Schedule 2 is to ensure that the period
within which an application will be considered an application for repeat registration is a
prescribed period, as opposed to the 12 month period. The intention is to prescribe a
period longer than 12 months.
176. This means that there will be a longer window within which applicants may be
considered applicants for repeat registration, and will therefore be exempt from certain
entry qualification requirements. This contrasts with the current provisions of the
Migration Act, which only exempt from those requirements applicants who apply within
12 months after the end of their last registration period. As such, it is intended that this
Schedule makes amendments that are beneficial to applicants.
177. To meet the policy intention, this Schedule makes amendments to Part 3 of the
Migration Act by removing references to a 12 month period within which applications
must be made following the meeting of entry qualification requirements.
178. The prescribed period will be prescribed in a legislative instrument made under
the Agents Regulations. This sub-delegation is consistent with the sub-delegation under
regulation 5 of the Agents Regulations, which deals with prescribed qualifications. This
is authorised by subsection 504(2) of the Migration Act, which provides that section 14 of
the Legislation Act does not prevent regulations whose operation depends on a matter
being specified or certified by the Minister in an instrument in writing made under the
regulations after the commencement of those regulations.
Part 1 - Amendments
Migration Act 1958
Item 1 Subsection 288(2)
179. Current subsection 288(2) requires an applicant for registration to satisfy
publishing requirements unless the applicant has been registered at some time in the 12
months immediately before making the application. This item amends subsection 288(2)
to remove the reference to a 12 month period, and instead insert a reference to a period
prescribed for the purposes of the subsection.
180. This ensures that an applicant who is applying for registration within the
prescribed period following the end of their last registration period is not required to
satisfy the publishing requirements.
31
Item 2 Section 289A
181. This item repeals and substitutes section 289A. New section 289A is similar to
current section 289A but for the differences outlined below. New section 289A is also
structured differently to current section 289A, in line with modern drafting practices.
182. New section 289A has a different heading to current section 289A. The new
heading specifically references "academic and vocational requirements", which more
accurately reflects the operation of the section.
183. This item removes the reference to an application made more than 12 months after
the end of the applicant's previous registration (see current paragraph 289A(b)). It
instead inserts a reference to an application made after the end of a period, prescribed for
the purposes of new paragraph 289A(1)(b), immediately after the end of the applicant's
most recent period of registration (see new paragraph 289A(1)(b)).
184. This meets the policy intention of this Schedule, which is to ensure that an
applicant for repeat registration is one whose application is made within a prescribed
period following the end of their previous registration period, rather than within 12
months after the end of their previous registration period. The intention is to prescribe a
longer period.
185. This item also removes the reference to a prescribed period within which an
applicant must complete a prescribed course.
186. This amendment complements broader changes made in respect of entry
qualifications into the migration advice industry. These changes include the introduction
on 1 January 2018 of a Graduate Diploma in Australian Migration Law and Practice,
replacing the Graduate Certificate in Australian Migration Law and Practice as the
prescribed course for the purpose of current paragraph 289A(c). Once an individual
completes the Graduate Diploma, the qualification will never lapse. Similarly, the
Graduate Certificate will never lapse. The prescribed exam, known as the Capstone
assessment, will lapse after three years.
187. Given the introduction of the Graduate Diploma, it is appropriate to remove the
requirement that a prescribed course be completed within a prescribed period prior to the
applicant being able to apply for registration as a migration agent. As the Graduate
Diploma is a qualification that is held forever, a person who completes this qualification
should be able to apply for registration at any point in time afterwards, if they meet the
other entry requirements. Most importantly, applicants must still pass a prescribed exam
within a prescribed period, to demonstrate that their knowledge and skills are current.
188. Current paragraph 289A(d) provides that an applicant must not be registered
unless the MARA is satisfied that the applicant holds the prescribed qualifications. This
allows applicants to be registered as migration agents based on their legal practising
certificates which are currently prescribed. New section 289A no longer provides the
option of allowing an applicant to be registered based on their legal practising certificate
32
alone. Any regulations made prescribing qualifications for the purposes of current
paragraph 289A(d) will cease upon commencement of this Schedule.
189. See subitem 4(1) of this Schedule in relation to how the amendments made by
Part 1 of Schedule 2 will apply to registration applications.
Item 3 Section 290A
190. This item restructures section 290A such that it is easier to read. New subsection
290A(1) explains to whom the section applies, and new subsection 290A(2) explains the
registration requirement relating to continuing professional development.
191. This item also removes the reference to a 12 month period. This is consistent
with the intention that a person is an applicant for repeat registration if they apply within
a prescribed period following the end of their last registration period, as opposed to
within 12 months of their last registration period. The intention is to prescribe a longer
period. The effect of this amendment is that an applicant who applies within the
prescribed period will not be able to be registered as a migration agent unless they have
met the continuing professional development requirements as prescribed. Currently,
applicants must meet these requirements if they apply within 12 months of the end of
their last registration period.
33
Part 2 - Application of amendments
Item 4 Application of amendments made by Part 1
192. Subitem 4(1) ensures that the amendments made by Part 1 of Schedule 2 apply to
registration applications made on or after the commencement of Schedule 2. This
ensures a prospective application of the amendments.
193. The effect of this application provision on those restricted legal practitioners who
have applied for registration as a migration agent but the applications have not been
decided prior to commencement of this Schedule is to require the MARA to decide those
applications in accordance with the provisions (including section 289A) as they were
prior to commencement of this Schedule. Effectively, those restricted legal practitioners
who applied for registration before commencement based on their Australian legal
practising certificates will be allowed to be registered on the basis of those qualifications
alone.
194. The reason for applying the changes in this way is because, at the time of
application before commencement of the amendments made by Part 1 of Schedule 2 to
the Bill, the applicant would have met the requirements in current paragraph 289A(d) on
the basis of their legal practising certificate alone. Those who applied before
commencement who relied on their legal practising certificate as a prescribed
qualification may not have completed a prescribed course and passed a prescribed
examination, which is required by new section 289A.
195. The effect of this application provision on those restricted legal practitioners who
apply for registration on or after commencement is that they must not be registered unless
the MARA is satisfied that the applicant has completed the prescribed course and passed
the prescribed examination within a prescribed period.
196. Subitem 4(2) provides that, despite the repeal of section 289A, regulations made
for the purposes of paragraph 289A(c) that are in force immediately before the
commencement of Schedule 2 to this Bill will continue in force after that commencement
as if they had been made for the purposes of new paragraph 289A(2)(a) or (b) (as the case
requires). This will ensure that the regulations prescribing the prescribed course and
exam will continue in force after commencement of this Schedule.
197. The regulations made under repealed paragraph 289A(d), prescribing legal
practising certificates as prescribed qualifications, will not continue in force because the
provision has been repealed.
34
SCHEDULE 3 - Redundant provisions
Background
198. The purpose of the amendments made by Schedule 3 is to ensure that redundant
provisions in Part 3 of the Migration Act are amended or repealed.
199. Several of the amendments reflect the consolidation of the Office of the MARA
into the Department of Immigration and Border Protection (now the Department of Home
Affairs) on 1 July 2015, and repeal:
powers of the Minister to refer registered migration agents to the MARA for
disciplinary action;
powers authorising the sharing of personal information between the
Department and the MARA; and
the requirement for the Minister to produce an independent annual report on
the administration of Part 3 of the Migration Act.
200. The other amendments in this Schedule repeal redundant provisions that were
inserted at a time when the Migration Institute of Australia (the MIA) was appointed as a
statutory body to undertake the functions set out under Part 3 of the Migration Act,
specifically from March 1998 to June 2009. A finding of the Review of Statutory
Self-Regulation of the Migration Advice Profession 2007-2008 (the Hodges Review) was
that this arrangement created potential conflicts of interest. One of the recommendations
subsequently made by that review was to establish an independent statutory body with
greater powers to protect consumers and to regulate the profession. On 1 July 2009, the
Office of the MARA was established as the independent regulator of the migration advice
industry, and took over the administration of Part 3 of the Migration Act. This Schedule
therefore repeals provisions that mention the MIA as the body that carries out the
functions of the MARA.
Migration Act 1958
Item 1 Section 275 (definitions of high visa refusal rate and Institute)
201. This item repeals the superfluous definitions of high visa refusal rate and
Institute.
202. The term high visa refusal rate is currently defined at section 306AC. However,
this definition is now redundant given that the term is only referenced in Division 3AA
and Subdivision B of Division 4A of Part 3 of the Migration Act, both of which are to be
repealed by items 9 and 12 of this Schedule.
35
203. Once the amendments made by Schedule 3 to the Bill commence, the Institute
will only be referenced in amended subsection 332E(3), rendering the definition of
Institute at section 275 superfluous (see item 20 of this Schedule).
Item 2 Section 275 (definition of Migration Agents Registration Authority)
204. This item repeals and substitutes the definition of Migration Agents Registration
Authority (MARA) to clarify that the MARA is a distinct body established within the
Department of Home Affairs. This amendment will assist readers to understand that
references to the MARA are references to a dedicated Departmental body which
administers Part 3 of the Migration Act.
205. The current definition of the Migration Agents Registration Authority has two
alternative meanings, being the Institute if appointed under section 315 or, otherwise, the
Minister. The reference to the Institute is redundant as the Institute is no longer, and will
not be, appointed under section 315 as the MARA. The reference to the Minister is
replaced by a reference to the body mentioned in new section 315 (see item 13 of this
Schedule).
206. This item also adds a note to clarify that the powers or functions of the MARA
can only be exercised by the Minister or a delegate under amended section 320 (as
provided by new subsection 315(2)).
Item 3 Subsection 279(1)
207. This amendment is consequential to the repeal of subsection 279(2) by item 4
of this Schedule.
Item 4 Subsection 279(2)
208. This item repeals subsection 279(2) as it provides that Division 3 of Part VIIC
of the Crimes Act 1914 applies in relation to the MARA as if it were a Commonwealth
authority for the purposes of that Division. This subsection is redundant given that the
powers and functions of the MARA are exercised or performed by the Minister, who is a
Commonwealth authority within the meaning of Part VIIC of the Crimes Act 1914.
Item 5 Section 292
209. This item omits ", 306AG or 306AGAC" because these sections are to be
repealed as part of the amendments made at item 9 of this Schedule.
Item 6 Paragraph 292A(a)
210. This item omits "or 311L(1)" because this section is to be repealed as part of
the amendment made at item 12 of this Schedule.
36
Item 7 Subsection 303(1) (note 1)
211. This item repeals the first note following subsection 303(1), which refers
readers to Division 3AA of Part 3. This is consequential to the repeal of Division 3AA of
Part 3 by item 9 of this Schedule.
Item 8 Subsection 303(1) (note 2)
212. This item renumbers the second note to subsection 303(1). This is
consequential to the repeal of the current note 1 to subsection 303(1) by item 7 of this
Schedule.
Item 9 Division 3AA of Part 3
213. This item repeals Division 3AA of Part 3, which relates to disciplining
registered migration agents for engaging in vexatious activity. Division 3AA provides a
mechanism for the Minister to refer the conduct of currently registered migration agents
to the MARA for disciplinary action if the agent has engaged in vexatious activity, i.e. if
the agent has a high visa refusal rate in relation to a visa of a particular class. Among
other things, Division 3AA provides that the MARA must make one of a range of
decisions listed under current subsection 306AG(1) in relation to a registered migration
agent who is referred under this mechanism.
214. Following the Office of the MARA's consolidation within the Department, a
legislative power for the Minister to refer matters to the MARA is no longer required.
Further, the Office of the MARA has access to Departmental systems which allows it to
identify registered migration agents with high visa refusal rates and pursue appropriate
disciplinary action using its existing powers, for example its powers under amended
section 303.
Item 10 Paragraphs 306B(c) and (d)
215. This item omits ", 306AG or 306AGAC" because these sections are to be
repealed as part of the amendments made at item 9 of this Schedule.
Item 11 Subdivision A of Division 4A of Part 3 (heading)
216. This item repeals the heading of Subdivision A of Division 4A of Part 3. This
is consequential to the repeal of Subdivision B of Division 4A of Part 3 by item 12 of this
Schedule.
Item 12 Subdivision B of Division 4A of Part 3
217. This item repeals Subdivision B of Division 4A of Part 3, which provides a
mechanism for the Minister to refer the conduct of a former registered migration agent to
the MARA for disciplinary action if the agent had a high visa refusal rate in relation to a
visa of a particular class.
37
218. This mechanism is no longer required because, following the Office of the
MARA's consolidation within the Department, there is no longer a legislative power
required for the Minister to refer matters to the MARA.
Item 13 Section 315
219. This item repeals section 315 and substitutes it with a new section 315. This
item repeals one of numerous references to the MIA which are redundant following the
establishment of the Office of the MARA within the Department.
220. New subsection 315(1) clarifies that the MARA is a distinct body established
within the Department to administer Part 3 of the Migration Act.
221. Further, new subsection 315(2) is inserted to provide that the MARA's powers
and functions under Part 3 may only be exercised or performed by the Minister, or a
delegate of the Minister under amended section 320. This amendment makes clear that
the MARA's powers or functions cannot be exercised by a person in the Department
directly, unless the powers or functions have been delegated by the Minister.
Item 14 Subsection 316(2)
222. This item repeals subsection 316(2), as it will become redundant by the repeal
of current section 315 by item 13 of this Schedule. Current subsection 316(2) gives the
MIA the function of advising the Minister on the adequacy of any Code of Conduct, only
if the MIA is appointed as the MARA under current section 315.
Item 15 Section 319A
223. This item repeals section 319A. Current section 319A authorises the MIA to
delegate the powers and functions it holds under Part 3 of the Migration Act to a
committee, officer, or employee of the MIA. The MIA only has the authority to do this if
it is appointed as the MARA under current section 315.
224. There is no longer a need for section 319A because the MIA will no longer be
appointed under section 315.
Item 16 Subsection 320(1)
225. This item repeals and substitutes subsection 320(1).
226. Current subsection 320(1) provides that the Minister may delegate the
MARA's powers and functions under Part 3 of the Migration Act to a person in the
Department who is appointed or engaged under the Public Service Act 1999 for any
period when the MIA is not appointed under current section 315.
38
227. New 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 Migration Act more specifically to an APS employee in the
Department. The use of the term "APS employee" is consistent with the term as used in
the Acts Interpretation Act 1901. Further, new subsection 320(1) does not reference the
MIA given that the MIA is not, and will no longer be, appointed under section 315.
228. The delegation of power at new subsection 320(1) is appropriate and
consistent with the current framework of the Migration Act.
229. The level of delegation has not been specified in the Migration Act. Doing so
would create an unnecessary administrative and legislative burden, by requiring a change
to the Migration Act each time there was a restructure to the administrative arrangements
of the MARA.
230. The existing powers and functions under Part 3 of the Migration Act have
been delegated by the Minister under a legislative instrument and have been working
effectively, with the MARA exercising its powers appropriately.
231. The note to new subsection 320(1) refers readers to new section 315, which
contains information relating to the nature, powers and functions of the MARA.
Item 17 Section 321
232. This item repeals section 321, which authorises disclosure of personal
information by the Department to the MARA. Current section 321 also allows the
Minister to disclose personal information to the MIA if the MIA has been appointed as
the MARA under current section 315.
233. This provision is being repealed for two reasons. The first is that the Office of
the MARA is now part of the Department, and so the Department may disclose personal
information to the Office of the MARA without needing a legislative power to do so.
The second is that the MIA is no longer appointed under section 315, and will not be in
future.
Item 18 Sections 322 and 332B
234. This item repeals sections 322 and 332B.
235. Subsection 322(1) provides that the MIA, if appointed under current
section 315, must prepare an annual report on its administration of Part 3 of the Migration
Act. This subsection is no longer necessary because the MIA will no longer be appointed
under section 315.
236. Subsection 322(2) provides that if the MIA is not appointed under current
section 315, the Minister must cause such a report to be tabled in each House of
Parliament. This subsection is no longer necessary because the administration of Part 3
39
of the Migration Act is already reported on annually in the Department's annual report,
following the consolidation of the Office of the MARA within the Department.
237. Section 332B sets out the instances where payments should be made to the MIA
for exercising their functions as the MARA. The MIA will not be appointed as the
MARA in the future, so this section is no longer necessary.
Item 19 Subsection 332D(1)
238. This item omits the text "or 311P" from subsection 332D(1). This amendment
is made because section 311P is part of Subdivision B of Division 4A of Part 3 of the
Migration Act, which is to be repealed by item 12 of this Schedule.
Item 20 Subsection 332E(3)
239. This item omits from subsection 332E(3) the text "The Institute, or an officer
or employee of the Institute," and substitutes it with "The Migration Institute of Australia
Limited (ACN 003 409 390), or an officer or employee of that Institute,".
240. This amendment is made to include the full name of the Institute, because the
current definition of the Institute will be repealed from section 275 by item 1 of this
Schedule.
Item 21 At the end of subsection 332E(3)
241. This item inserts a note at the end of subsection 332E(3).
242. The note explains that the Institute was appointed as the MARA by instrument
dated 21 March 1998, under section 315 as then in force, and that instrument was revoked
on 30 June 2009.
243. This note is inserted consequentially to the repeal of current section 315 by
item 13 of this Schedule. The intention behind the note is to explain how the Institute
may have come to be exposed to a legal action of the kind mentioned in section 332E.
40
SCHEDULE 4 - Requirement for applicants to provide further information
Background
244. The purpose of the amendments made by Schedule 4 is to allow the MARA to
refuse an application to become a registered migration agent where the applicant has been
required to, but has failed to, provide information in relation to their application by
making a statutory declaration or appearing before the MARA.
245. Currently, if an applicant is required to make a statutory declaration or answer
questions in relation to their application, the MARA is required not to further consider the
application until the applicant does so. The effect of this is that there are a number of
outstanding applications that the MARA has no power to refuse because the applicant has
failed to make the requisite statutory declaration or answer the requisite questions. The
amendments made by this Schedule address this anomaly.
Migration Act 1958
Part 1 - Amendments
Item 1 Section 288B
246. This item repeals current section 288B and substitutes it with a new section 288B,
which gives the MARA the power to require an applicant for registration as a migration
agent to provide information.
Current section 288B
247. Current subsection 288B(1) of the Migration Act provides that the MARA may
require an applicant, who is not already a registered migration agent, to make a statutory
declaration in relation to information or documents provided by the applicant, or appear
before one or more individuals specified by the MARA to answer questions in relation to
the application. Current subsection 288B(2) prevents the MARA from giving any further
consideration to an application where the applicant has been required to make a statutory
declaration, or required to answer questions relating to their application, but has failed to
do so. The matter remains an open application, which cannot be further resolved or
closed until the applicant takes such action.
248. It is necessary to repeal current section 288B because the MARA has accrued
numerous open applications to register as migration agents, where applicants have failed
to make a statutory declaration or appear before the MARA as requested. The MARA
currently does not have the power to refuse an application in this circumstance.
New section 288B
249. The new section 288B allows the MARA to be able to further consider the
application if an applicant fails to respond to a section 288B requirement to provide
41
information in relation to an application. In particular, the MARA may consider refusing
the application if the applicant has failed to comply with the requirement, such that the
applicant must not be registered in certain circumstances.
250. New section 288B is structured differently to current section 288B, in line with
modern drafting practices.
251. New subsection 288B(1) confirms that the section applies in relation to an
applicant who is not already a registered migration agent.
252. New subsection 288B(2) sets out the requirements that the MARA may impose in
relation to an applicant for registration. These requirements are the same as those in
current subsection 288B(1), but for three key differences. The first is that new subsection
288B(2) allows the MARA to issue the requirements by written notice given to the
applicant. This ensures that section 332H, regarding the giving of notices, will apply in
relation to a requirement made under section 288B. The second is that the MARA may
require the provision of information or the production of any specified documents. The
third is that new paragraph 288B(2)(b) only refers to a requirement to appear before the
MARA, rather than to a requirement to appear before one or more individuals specified
by the MARA. This is consistent with what occurs in practice, which is that applicants
will generally be required to appear before the MARA itself or a delegate of the MARA
under section 320.
253. New paragraph 288B(2)(a) refers to an applicant providing to the MARA, within
a prescribed period or an extended period under new subsection 288B(5), a statutory
declaration and any other specified documents, as stated in the notice. See new
subsection 288B(5) in relation to the ability of the MARA to extend the period within
which an applicant must respond.
254. It is appropriate to allow a period to be prescribed under new paragraph
288B(2)(a), by delegated legislation, for when a statutory declaration and any other
specified documents are to be provided to the MARA. This is because the Migration Act
is structured to contain broad concepts, with the specific details, such as prescribed
periods in relation to notices, contained in delegated legislation.
255. An example of the Migration Act providing the broad parameters, with
regulations dealing with details, is subsection 280(1), which provides that a person who is
not a registered migration agent must not give immigration assistance. The Migration
Agents 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, the person 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.
256. New paragraph 288B(2)(b) refers to an applicant appearing before the MARA, at
a time and place stated in the notice--or at another time or place fixed under new
subsection 288B(5)--and providing information, with any specified documents, at such
42
an appearance. In order to allow flexibility for the applicant and the MARA, it is not
necessary to prescribe a period after which a time to appear can be fixed. For example,
this would allow an applicant to request that they appear before the MARA at a time
earlier than that specified in the subsection 288(2) notice, if it would be more convenient
for the applicant. See new subsection 288B(5) in relation to the ability of the MARA to
fix a new time for the applicant to appear before it.
257. New subsection 288B(3) allows the MARA to consider refusing the application if
the applicant fails to comply with a requirement in the subsection 288B(2) notice. New
note to subsection 288B(3) states that if the MARA is considering refusing a registration
application, it must invite the applicant to make a further submission in support of the
application, referring to current subsection 309(1). This will trigger the operation of
section 309, which requires the MARA to inform the applicant and invite the applicant to
make a further submission if the MARA is considering refusing the person's application
for registration. It also triggers the operation of section 310, which relevantly allows the
MARA to decide a matter after the MARA has invited a submission under section 309.
258. New subsection 288B(4) provides for the circumstances in which an applicant
must not be registered in relation to a requirement to provide further information, by
referring to three criteria. An applicant must not be registered if:
Firstly, the applicant fails to comply with a requirement made under a subsection
288B(2) notice, within the period to which paragraph 288B(2)(a) applies, or at
the time to which paragraph 288B(2)(b) applies;
Secondly, the MARA has invited the applicant to make a further submission
under subsection 309(1) in relation to the information required by the subsection
288B(2) notice; and
Thirdly, any of the following applies: the applicant fails to make such a further
submission within a reasonable time after the invitation is given; the applicant
fails to appear before the MARA if given an opportunity to appear before the
MARA under paragraph 310(3)(b); or, the MARA is not satisfied that the
applicant has provided the information required by the subsection 288B(2) notice
after consideration of such a further submission, and (if applicable) any
information given by the applicant at an appearance under paragraph 310(3)(b).
259. This is consistent with the policy intention, which is that an applicant for
registration must provide further information when required, to be registered as a
migration agent.
260. New subsection 288B(5) provides a process by which the MARA can extend a
period or fix a new time or place in relation to a subsection 288B(2) notice. New
paragraph 288B(5)(a) states that the MARA may, by written notice given to the applicant
and upon a request of the applicant made within the period to which
paragraph 288B(2)(a) applies, extend the period. New paragraph 288B(5)(b) also
provides that the MARA may, by written notice given to the applicant and upon a request
of the applicant made before the time to which paragraph 288B(2)(b) applies, fix a new
time or place for the applicant to appear before the MARA.
43
261. There is no limit to how many times an applicant may request to extend the period
or fix a new time or place to appear before the MARA under subsection 288B(5). The
MARA has a discretion whether to approve such requests. If the MARA extends the
period or fixes a new time or place to appear before the MARA, subsection 288B(2)
would be read as if that new extended period or new time or place to appear applied.
262. New subsection 288B(6) requires a notice given under subsection 288B(2) to
include a statement explaining the consequences under this section of failing to comply
with the requirements of the notice. The intention is that the notice will advise the
applicant of the significance of not complying with a requirement, such as to provide
information within the specified time period. This ensures that the applicant is afforded
procedural fairness in respect of the potential for the application to be refused for failure
to meet a requirement issued under subsection 288B(2).
44
Part 2 - Application of amendments
Item 2 Application of amendments made by Part 1
263. This item outlines that, despite the amendments of the Migration Act made by
Part 1 of Schedule 4, section 288B as in force immediately before commencement of this
Schedule continues to apply in relation to a requirement made under subsection 288B(1)
before that commencement. This saves the application of section 288B in relation to
requirements made under that section before commencement.
45
SCHEDULE 5 - Fees and charges
Background
264. The purpose of the amendments made by Schedule 5 is to require a registered
migration agent to notify the MARA if the agent has paid the non-commercial
application charge in relation to the agent's current registration period, but begins to give
immigration assistance otherwise than on a non-commercial basis during that period.
These amendments complement those made to the Migration Agents Registration
Application Charge Act 1997 (the Charge Act) by the Migration Agents Registration
Application Charge Amendment (Rates of Charge) Bill 2019 (the Rates of Charge Bill).
265. The policy intention is that an applicant for registration as a migration agent must
pay the general application charge. The exception to this default position is where the
applicant can demonstrate that they are eligible to pay the non-commercial application
charge. It is intended that an applicant for registration as a migration agent should only
be eligible to pay the non-commercial application charge if they meet two criteria. These
criteria are: if the person intends to provide immigration assistance solely on a
non-commercial or non-profit basis; and as a member of, or a person associated with, an
organisation that operates in Australia solely on a non-commercial or non-profit basis,
and as a charity, or for the benefit of the Australian community.
266. Relevantly, current section 10 of the Charge Act imposes an adjusted charge in
relation to a registered migration agent who paid the non-commercial application fee in
relation to the agent's current period of registration--the Rates of Charge Bill will amend
this defined term to call it the non-commercial application charge--but gives
immigration assistance on a commercial basis at any time during that period.
267. The Rates of Charge Bill will amend section 10 of the Charge Act so that, instead
of referring to when a person gives immigration assistance on a commercial basis, it will
refer to when a person gives immigration assistance otherwise than on a non-commercial
basis.
Part 1 - Amendments
Migration Act 1958
Item 1 Paragraph 312(1)(ea)
268. Section 312 of the Migration Act sets out notification obligations of registered
migration agents. In particular, it requires a registered migration agent to notify the
MARA in writing within 14 days after the occurrence of any of the events listed in
paragraphs 312(1)(a) to (h).
269. Current paragraph 312(1)(ea) states that one such event is if the agent paid, in
relation to the agent's current period of registration, the charge set out under regulation 5
of the Migration Agents Registration Application Charge Regulations 1998 (the Charge
46
Regulations), and the agent begins to give immigration assistance either on a commercial
or for-profit basis, or as a member of or a person associated with an organisation that
operates on a commercial or for-profit basis.
270. This reflects the wording in the current section 10 of the related Charge Act.
Section 10 of the Charge Act will be amended by the Rates of Charge Bill to align with
the amendments made by this Schedule.
271. This item repeals and substitutes paragraph 312(1)(ea) of the Migration Act to
reflect those amendments. The effect of this amendment is that, if a person ceases to give
immigration assistance:
solely on a non-commercial or non-profit basis; or
as a member of or a person associated with an organisation that operates in
Australia solely on a non-commercial or non-profit basis, and as a charity or for
the benefit of the Australian community,
the person will be required to notify the MARA. This will cause the MARA to be aware
that the person has become liable to pay an adjusted charge under section 10 of the
Charge Act.
272. The agent's notification obligation must be made within 14 days of when the
agent begins to give immigration assistance otherwise than on a non-commercial basis,
rather than, for example, once they have completed the giving of that assistance. See
item 2 of this Schedule in relation to the meaning of the word begins.
Item 2 Subsection 312(3)
273. This item repeals and substitutes subsection 312(3).
274. Current subsection 312(3) provides that the day on which the event mentioned in
paragraph 312(1)(ea) occurs is to be worked out in accordance with the Charge
Regulations.
275. New subsection 312(3) states that the terms begins, non-commercial application
charge and non-commercial basis that are used in paragraph 312(1)(ea) have the same
meaning as in the Charge Act (as amended by the Rates of Charge Bill).
276. New subsection 312(3) ensures that the terms are defined consistently with the
terms in the Charge Act (as amended by the Rates of Charge Bill), directing the reader to
determine when a registered migration agent must notify the MARA in respect of events
occurring in new paragraph 312(1)(ea) by reference to the Charge Act.
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Part 2 - Application of amendments
Item 3 Application of amendments made by Part 1
277. This item confirms that the amendments made by Part 1 of this Schedule apply in
relation to a current period of registration that started on or after the commencement of
this Schedule and to an event mentioned in paragraph 312(1)(ea) of the Migration Act (as
amended by Part 1 of this Schedule) occurring on or after the commencement of this
Schedule. This ensures that the changes are applied prospectively.
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SCHEDULE 6 - Other amendments
Background
278. The purpose of the amendments made by Schedule 6 is to ensure that assisting a
person to make a request to the Minister in relation to a revocation under sections 501C
or 501CA is included in the definitions of immigration assistance and makes
immigration representations for the purposes of Part 3 of the Migration Act.
Part 1 - Amendments
Migration Act 1958
Item 1 After subsection 276(2A)
279. This item inserts after subsection 276(2A) a new subsection 276(2B) to extend the
definition of immigration assistance.
280. The new paragraph 276(2B)(a) provides that a person is taken to give
immigration assistance if the person uses, or purports to use, knowledge of, or
experience in, migration procedure to assist another person by preparing, or helping to
prepare, a representation to the Minister to exercise the Minister's power under
subsections 501C(4) or 501CA(4). A person is also taken to give immigration assistance
under new paragraph 276(2B)(b) if the person advises the other person in relation to
making such a representation.
281. This item also inserts a note to new subsection 276(2B) which explains that
sections 501C and 501CA provide for the revocation of decisions to refuse or cancel
visas on character grounds.
282. The effect of the amendments made by this item is that a person must be a
registered migration agent in order to give the kind of assistance described in new
subsection 276(2B), otherwise they commit an offence under section 280 (unless they are
subject to one of the exemptions under that section).
Item 2 Subsection 276(3)
283. This item omits the text "and (2A)", from subsection 276(3) and substitutes
", (2A) and (2B)". This is a consequential amendment to item 1 of this Schedule.
Item 3 At the end of subsection 282(4)
284. This item adds in new paragraphs 282(4)(g) and (h) to broaden the circumstances
where a person makes immigration representations.
285. Paragraph 282(4)(g) provides that a person makes immigration representations
on behalf of a person who has made (or is proposing to make) a representation to the
49
Minister to exercise a power under subsection 501C(4) to revoke a decision to refuse to
grant, or to cancel, a visa (whether or not the decision relates to that person).
286. Similarly, paragraph 282(4)(h) provides that a person makes immigration
representations on behalf of a person who has made (or is proposing to make) a
representation to the Minister to exercise a power under subsection 501CA(4) to revoke a
decision to cancel a visa (whether or not the decision relates to that person).
287. The effect of these amendments (together with those made by item 1 of this
Schedule) is that a person must be a registered migration agent in order to make
representations on behalf of a person who is making a representation to the Minister in
relation to revocation under sections 501C or 501CA. If a person makes such
representations without being registered as a migration agent, they commit an offence
under section 280 (unless they are subject to one of the exemptions under that section).
Item 4 Subsection 289(4)
288. This item repeals subsection 289(4). Subsection 289(4) does the same work as
current subsection 300(6), and is therefore redundant.
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Part 2 - Application of amendments
Item 5 Application of amendments made by Part 1
289. This item provides that the amendments of section 276 of the Migration Act made
by Part 1 of this Schedule apply in relation to immigration assistance (within the meaning
of Part 3 of the Migration Act as amended) if that assistance is given on or after the
commencement of this Schedule.
290. Further, this item provides that the amendment of section 282 of the Migration
Act made by Part 1 of this Schedule applies in relation to making immigration
representations (within the meaning of that section of the Migration Act as amended) if
those representations are made on or after the commencement of this Schedule.
291. This item ensures that the amendments made by Part 1 of this Schedule apply
prospectively.
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ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Regulation of Migration Agents) Bill 2019
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary
Scrutiny) Act 2011.
Overview of the changes
The Migration Amendment (Regulation of Migration Agents) Bill 2019 (the Bill) is an
omnibus package of reforms aimed at deregulating the migration advice industry.
There are six schedules within the Bill, which propose amendments to the
Migration Act 1958 (the Migration Act):
Schedule 1 will partially give effect to Recommendation 1 of the 2014
Independent Review of the Office of the Migration Agents Registration Authority
(the OMARA Review), which is that lawyers be removed from the regulatory
scheme that governs migration agents.
Schedule 1 will remove unrestricted legal practitioners from the regulatory
scheme that governs migration agents and allow eligible restricted legal
practitioners to be both registered migration agents and restricted legal
practitioners for a period of up to two years, with a possibility of extension.
Schedule 2 will ensure that the time period in which a person can be considered
an applicant for repeat registration is set out in delegated legislation, and will
remove the 12-month time limit within which a person must apply for registration
following completion of a prescribed course.
Schedule 3 will repeal various provisions that reference regulatory arrangements
that are no longer in place. These amendments will make it clear that the powers
under Part 3 are exercisable by the Minister, as the MARA is a part of the
Department of Home Affairs, and will remove references to the appointment of
the Migration Institute of Australia.
Schedule 4 will amend the Migration Act to allow the 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 by making a statutory declaration or appearing before the
MARA.
Schedule 5 will amend the Migration Act to require registered migration agents to
notify the MARA, within a specified period, if they have paid the non-commercial
application charge in relation to their current period of registration but give
immigration assistance otherwise than on a non-commercial basis.
Schedule 6 will amend the Migration Act to ensure that assisting a person to make
a request to the Minister in relation to a revocation under section 501C or 501CA
52
is included in the definitions of 'immigration assistance' and 'makes immigration
representations' for the purposes of Part 3 of the Migration Act.
Schedule 1: Australian legal practitioners providing immigration assistance (OMARA
Review Recommendation 1)
Schedule 1 proposes partially to give effect to Recommendation 1 of the OMARA
Review, which states:
"The Inquiry recommends that lawyers be removed from the regulatory scheme that
governs migration agents, such that lawyers:
cannot register as migration agents; and
are entirely regulated by their own professional bodies."
The partial implementation of this recommendation is deregulatory in nature and is aimed
at removing unnecessary red tape from the migration advice industry, while ensuring that
important consumer protections are maintained. Considerable amendment to Part 3 of the
Migration Act is required to partially give effect to the recommendation.
A new definition of 'Australian legal practitioner' will be inserted into section 275 of the
Migration Act. The term is consistent with legislation governing the legal profession
across various jurisdictions. The definition will cover all lawyers who hold a practising
certificate granted under a law of an Australian State or Territory. This includes a
restricted practising certificate (however defined across the jurisdictions).
Individuals who have a law degree and/or are admitted as an Australian legal practitioner,
but do not hold a restricted or unrestricted legal practising certificate, will still need to
register as a migration agent to provide immigration assistance.
The definition of 'immigration legal assistance' will be repealed from and consequential
amendments to other sections in Part 3 will be made to reflect this change.
New section 289B will prevent unrestricted legal practitioners and restricted legal
practitioners who are not eligible from registering as migration agents. Under new
section 302A, the MARA will be required to cancel the registration of a registered
migration agent if they become an unrestricted legal practitioner, or are not an eligible
restricted legal practitioner.
New sections 333, 333A, 333B, 333C, 333D and 333E set out transitional arrangements
in relation to Australian legal practitioners moving out of the MARA regulatory scheme,
effective from the commencement of new Division 8 of Part 3 of the Migration Act. This
includes the cessation of the registration period of a migration agent who is also an
unrestricted legal practitioner immediately before commencement, transitional
arrangements for persons who were restricted legal practitioners immediately before
commencement, and arrangements for registration applications that were made
immediately before commencement.
53
Schedule 2: Registration periods (OMARA Review Recommendation 12)
Recommendation 12 of the OMARA Review states:
"The Inquiry recommends that the time period for registration after completing
the Prescribed Course be extended from one year to five years."
The intention of this recommendation is to ensure that the prescribed qualification lapses
after five years, rather than one year as is the case under existing arrangements.
Rather than extending the prescribed period for registration following completion of the
prescribed courses from one year to five years, as suggested in Recommendation 12 of
the OMARA Review, the prescribed period will be removed altogether.
In addition, Schedule 2 to the Bill proposes to make several amendments to Part 3 of the
Migration Act, so that the period in which an individual may make an application for
registration as a migration agent is prescribed in delegated legislation, rather than
specified on the face of the Act.
Schedule 3: Redundant provisions
In 1998, the Migration Institute of Australia (MIA) was appointed to assume the role of
the Migration Agents Registration Authority (the MARA) as a statutory, self-regulating
body. Part 3 of the Migration Act was amended to provide that the MIA could exercise
the powers and functions of the MARA. In 2008, a review of the MARA was conducted
and one of the recommendations therein was to remove the regulator role of the MARA
from the MIA.
In 2009, a hybrid model was established with the Office of the MARA operating as a
discrete office attached to the Department. In 2014, one of the recommendations of the
OMARA Review was to consolidate the position of the Office of the MARA within the
Department. This recommendation was implemented with effect from 1 July 2015.
Many provisions relating to the arrangements that were in place in 2009 require
amendment, to reflect the changed regulatory environment, most recently with the
consolidation of the Office of the MARA into the Department. Schedule 3 will amend or
repeal such redundant references within Part 3 of the Migration Act.
New section 315 will be inserted to provide that the MARA is a distinct body within the
Department, whose powers and functions can only be exercised by the Minister or a
delegate.
This replaces the existing wording of the Migration Act that provides that the MIA can
exercise the powers and functions of the MARA. This is in line with the decision to
54
remove the regulator role of the MIA. Consequential amendments are also made to other
provisions in Part 3 to remove reference to the MIA.
Division 3AA of Part 3 of the Migration Act, and Subdivision B of Division 4A of Part 3
of the Migration Act will be repealed, as they set out mechanisms for the Minister to refer
registered migration agents and former registered migration agents to the MARA for
disciplinary action. This is redundant given that the Minister exercises the powers and
functions of the MARA.
Schedule 4: Requirement for applicants to provide further information
Schedule 4 seeks to close an existing loophole that prevents the MARA from refusing an
application for registration as a migration agent in circumstances where the applicant
does not respond to requests for further information. At present, this means such
applications remain unfinalised for an indefinite period.
Schedule 4 inserts a new section 288B, which will loosely replicate the current wording
of section 288B and state that an applicant must not be registered unless the MARA is
satisfied the applicant has met all requirements of that section, such as providing further
information on request.
As the MARA is prohibited from approving an application for registration that has not
met all statutory requirements under section 288B, it must provide the applicant with a
notice under section 309 advising the applicant of the matter and inviting further
submissions to be made in support of the application. This means the applicant will be
afforded procedural fairness before a final decision is made in respect of their application.
Schedule 5: Fees and charges
Schedule 5 amends paragraph 312(1)(ea) of the Migration Act to require a migration
agent, who has paid the non-commercial application charge in relation to the agent's
current period of registration, to notify the MARA if they begin to give immigration
assistance otherwise than on a non-commercial basis during that period.
Subsection 312(3) will also be amended to provide that certain terms used in
paragraph 312(1)(ea) have the same meaning as in the Migration Agents Registration
Application Charge Act 1997.
The amendments made by Schedule 5 will enable the MARA to calculate, based on the
formula in the Migration Agents Registration Application Charge Act 1997, a pro-rata
adjusted charge for the remainder of the agent's registration period, starting from the first
day on which the agent begins to give immigration assistance otherwise than on a
non-commercial basis.
55
Schedule 6: Other amendments
The purpose of the amendments made by Schedule 6 is to ensure that assisting a person
to make a request to the Minister in relation to a revocation under section 501C or 501CA
is included in the definitions of 'immigration assistance' and 'makes immigration
representations' for the purposes of Part 3 of the Migration Act.
Human rights implications
The Bill engages the following rights:
Article 2 of the International Covenant on Civil and Political Rights (ICCPR), the
right to be free of discrimination and responsibility of State Parties to give effect
to the rights in the Covenant;
Article 26 of the ICCPR, right to equal protection before the law;
Article 6 of the International Covenant on Economic, Social and Cultural Rights
(ICESCR), the right to work.
Schedule 1
Freedom from discrimination and right to equal protection before the law
As this amendment prevents some lawyers from being able to register as migration
agents, the right not to be subjected to discrimination under Article 2 and Article 26 of
the International Covenant on Civil and Political Rights (ICCPR) may be engaged.
Article 2 of the ICCPR states:
"Each State Party to the present Covenant undertakes to respect and to ensure to
all individuals within its territory and subject to its jurisdiction the rights
recognized in the present Covenant, without distinction of any kind, such as race,
colour, sex, language, religion, political or other opinion, national or social
origin, property, birth or other status."
Article 26 of the ICCPR states:
"All persons are equal before the law and are entitled without any discrimination
to the equal protection of the law. In this respect, the law shall prohibit any
discrimination and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status."
This amendment positively engages Articles 2 and 26 of the ICCPR as the provision of
the eligible period (which may be extended) will ensure lawyers who hold restricted
practising certificates are not disadvantaged by the Bill. The amendment permits the
affected lawyers the time to adapt to the new provisions that exclude them from
56
registering as migration agents with the MARA, by allowing them time to either take
steps to obtain an unrestricted practising certificate or elect to give up their practising
certificate so they can remain registered with the MARA.
Further, although lawyers who hold unrestricted practising certificates will be unable to
register with the MARA as migration agents after commencement of the relevant
provisions of the Bill, their unrestricted practising certificates will allow them to provide
immigration assistance in connection with legal practice. As such, there will be no
practical discriminatory effect.
This amendment is therefore compatible with human rights.
Right to work
The amendment may also engage the right to work under Article 6(1) of the International
Covenant on Economic, Social and Cultural Rights (ICESCR) which states:
"The States Parties to the present Covenant recognize the right to work, which
includes the right of everyone to the opportunity to gain his living by work which
he freely chooses or accepts, and will take appropriate steps to safeguard this
right."
General Comment No.18 of the UN Committee on Economic, Social and Cultural Rights
states:
"The right to work affirms the obligation of States parties to assure individuals
their right to freely chosen or accepted work, including the right not to be
deprived of work unfairly."
The amendment will positively engage the right to work under Article 6(1) of the
ICESCR because they allow for an eligible period for lawyers who hold restricted
practising certificates.
As noted above, the amendment permits the affected lawyers the time to adapt to the new
provisions that exclude them from registering as migration agents with the MARA, by
allowing them time to either take steps to obtain an unrestricted practising certificate or
elect to give up their practising certificate so they can remain registered with the MARA.
Further, although lawyers who hold unrestricted practising certificates will be unable to
register with the MARA as migration agents after the commencement of the relevant
provisions of the Bill, their unrestricted practising certificates will allow them to continue
to provide immigration assistance in connection with legal practice. As such, there will be
no practical discriminatory effect.
Schedules 2-6
The other amendments in this Bill do not engage or limit any of the applicable rights,
individual freedoms or discriminate against any person or groups of persons.
57
Conclusion
The Bill is compatible with human rights because it promotes the right to equal protection
before the law, the right to practise civil and political rights free from discrimination as
well as the right to work by ensuring legal practitioners have the opportunity to respond
to the amendments and continue to provide immigration assistance in connection with
legal practice.
The Hon Jason Wood MP, Assistant Minister for Customs, Community Safety and
Multicultural Affairs