Wednesday, 27 November 2019
Migration Amendment (Regulation of Migration Agents) Bill 2019; Second Reading
That this bill be now read a second time.
The Migration Amendment (Regulation of Migration Agents) Bill 2019 is an omnibus package of amendments to the Migration Act 1958, targeted at deregulating the migration advice industry.
The bill contains six measures, which I will discuss in greater detail.
Schedule 1: Australian legal practitioners providing immigration assistance (OMARA review recommendation 1)
Schedule 1 to the bill will partially give effect to recommendation 1 of the 2014 Independent review of the Office of the Migration Agents Registration Authority (the OMARA review).
This recommendation has long been supported by the government and reaffirms our commitment to deregulation and to removing unnecessary red tape across industry sectors.
The amendments made by schedule 1 to the bill will see lawyers who hold unrestricted practising certificates removed from regulation by the Migration Agents Registration Authority (the MARA), so that they are regulated entirely by their relevant state or territory legal professional body.
Lawyers who hold a restricted practising certificate will have a two-year eligible period in which they may be both registered migration agents and restricted legal practitioners.
During this two-year period, affected restricted legal practitioners may take necessary steps to organise and adapt their business affairs or obtain an unrestricted legal practising certificate. This would allow them to continue as an independent legal practitioner who gives immigration assistance in connection with legal practice after the eligible period ends.
This eligible period may be extended once, on application to the MARA, with reasonable cause, and for no longer than a further two years. In summary, the eligible period is up to four years, with no further extensions allowed.
Once this eligible period has ended, or the person becomes an unrestricted legal practitioner, these lawyers will also be removed from regulation by the MARA, so that they are regulated entirely by their relevant state or territory legal professional body.
The government recognises that the dual regulation of lawyers with practising certificates can pose an unnecessary administrative burden on such lawyer agents, who are already subject to a strict professional regulatory regime.
The government further recognises that deregulation of the migration advice industry should not be prioritised over the maintenance of important consumer protections. Mechanisms will be put in place to ensure that vulnerable consumers will continue to be protected from receiving incompetent migration advice, particularly from unscrupulous individuals holding themselves out to be experts.
Lawyers with practising certificates intending to practice in the migration advice field will be able to access educational offerings to increase their knowledge, as they already do with other complex aspects of the legal profession.
The relevant state and territory legal professional bodies and statutory schemes underpinning them have a broader range of powers to resolve consumer related issues than the scheme governing migration agents. This includes penalties outside of the MARA's jurisdiction, including financial penalties for improper conduct, and recommending compensation for affected clients.
Schedule 2: registration periods (OMARA review recommendation 12)
The legislative changes put forward by schedule 2 will ensure that the period that an individual has to apply for repeat registration as a migration agent, following their completion of the required qualifications, is set out in delegated legislation rather than on the face of the act.
These changes complement the introduction of a graduate diploma in migration law and practice in 2018. Once an individual possesses this qualification, it will never lapse, as is the case with most other tertiary qualifications. A capstone assessment was also introduced in 2018 which an individual must sit and pass within a certain period in order to be accepted into the profession.
This group of changes significantly enhanced the educational requirements and improved the level of professionalism within the industry.
Schedule 3: redundant provisions
The third schedule to the bill is aimed at amending or repealing various redundant provisions of the Migration Act.
This will reflect the consolidation of the MARA into the Department of Home Affairs, and that the MARA's powers can only be exercised by the minister or a delegate. To this effect, this schedule will repeal:
Schedule 3 of the bill also removes redundant references to the Migration Institute of Australia, which is no longer appointed as the MARA and will not be appointed in the future.
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, where the applicant does not respond to requests for further information. Presently, this means such incomplete applications remain unfinalised for an indefinite period.
Schedule 5: Fees and charges
Schedule 5 to the bill will amend the Migration Act to require a migration agent who has been registered on a non-commercial basis to notify the MARA if there is a change in circumstances that has led to it providing immigration assistance otherwise than on a non-commercial basis. This complements amendments made by the Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019. Those amendments require a migration agent to pay an adjusted charge if they paid the non-commercial application charge in relation to their current period of registration but then give immigration assistance otherwise than on a non-commercial basis.
Schedule 6: Other amendments
Schedule 6 to the bill amends the definitions of 'immigration assistance' and 'makes immigration representations' so that they include assisting a person to make a representation to the minister in relation to the revocation of a visa refusal or cancellation decision on character grounds. This reflects the intention that a person must be a registered migration agent or be exempt for the requirements under the law to be a registered migration agent in order to give such assistance.
In conclusion, this bill makes a number of important amendments that will streamline the operation of the migration advice industry.
I commend the bill to the chamber.