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MIGRATION AGENTS AMENDMENT REGULATIONS 2004 (NO. 1) 2004 NO. 129
Migration Agents Amendment Regulations 2004 (No. 1)
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, regulations may be made pursuant to the provisions listed in Attachment A.
The purpose of the Regulations is to amend the Migration Agents Regulations 1998 (the Principal Regulations) to make regulations necessary for the implementation of the changes made to the Act by the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (the Amendment Act). The Regulations amend the Principal Regulations to:
• define the term "close family member";
• allow the joint publication of notices of intention to apply for registration as registered migration agents by more than one applicant in certain circumstances;
• amend the qualifications for approval as a registered migration agent to be only persons holding a current legal practising certificate;
• amend the notice publishing requirements where the Migration Agents Registration Authority (the Authority) cautions, suspends, cancels or bars a registered migration agent;
• expand the circumstances where a registered migration agent is taken to be related by employment to another agent;
• allow for infringement notices to be issued to a person who unlawfully provides immigration assistance and a lesser penalty payable as an alternative to prosecution;
• expand the kinds of information about a registered migration agent held on the Register of Migration Agents (the Register);
• require the publication of the names of former registered migration agents for a period of 12 months after they cease to be registered;
• provide for the removal of disciplinary information from the Register;
• determine the day a registration application is made;
• specify pre-registration application requirements that must be undertaken;
• prescribe the kinds of information and documents which registered migration agents and former agents must provide when so requested by the Authority;
• introduce supervisory requirements where a registered migration agent is subject to the stay of a decision to cancel or suspend their registration by a court or tribunal;
• specify the matters which must be considered by the Minister when deciding whether to refer a registered migration agent to the Authority for disciplinary action where it has been determined that that agent has a high visa refusal rate;
• specify how and when a registered migration agent must give notification of the giving of immigration assistance to the Department of Immigration and Multicultural and Indigenous Affairs (the Department) or a merits review tribunal;
• prescribe the period during which a registered migration agent must give a statement of services to a client;
• prescribe circumstances when personal information may be disclosed:
- by the Authority to the Department, Migration Review Tribunal or Refugee Review Tribunal; or
- by the Secretary of the Department to the Migration Review Tribunal or Refugee Review Tribunal;
• amend the Continuing Professional Development requirements, including the number of approved activities a registered migration agent must complete, the types of approved activities, and core activities;
• make various amendments to the Code of Conduct including inserting a reference to disciplinary action where a registered migration agent has a high visa refusal rate and has been referred by the Minister to the Authority; and
• make various technical amendments.
Details of the Regulations are set out in Attachment B.
The Regulations commence on the commencement of Schedule 1 to the Amendment Act, which has been fixed, by Proclamation, as 1 July 2004.
0401902A-040521Z
ATTACHMENT A
Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.
In addition, the following provision of the Act may apply:
• subsection 314(1), which provides that the regulations may prescribe a Code of Conduct for registered migration agents.
In addition, the following provisions of the Act, inserted or amended by the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (the Amendment Act) on commencement, may apply:
• subsection 278(2), which provides that for the purposes of Part 3 of the Act, an individual is related by employment to another individual in any other prescribed circumstance;
• paragraph 287(2)(i), which provides that the Register of Migration Agents is to show in respect of each registered migration agent particulars of any other prescribed matter;
• subsection 287(3A), which provides that:
- the Migration Agents Registration Authority (the Authority) may publish in the prescribed way a list of the names of former registered migration agents, their former migration agent registration numbers and the date they ceased to be registered; and
- the Authority must remove a person's details from the list at the end of the prescribed period;
• subsection 287(6), which provides that the Authority must remove disciplinary details from the Register of Migration Agents within the period worked out in accordance with the regulations;
• subsection 288(4), which provides that the day on which a registration application is taken to have been made is the day worked out in accordance with the regulations;
• subsection 288A(2), which provides that an individual is to publish a notice about his or her application for registration as a registered migration agent in the prescribed way;
• subsection 288A(3), which provides that an individual and one or more other individuals, who are all employees of the same employer, are to publish a single notice about their application for registration as registered migration agents in the prescribed way;
• paragraphs 289A(c) and (d), which provide that an applicant must not be registered unless the Authority is satisfied that the applicant has completed a prescribed course and passed a prescribed exam within the prescribed period, or holds the prescribed qualifications;
• section 290A, which provides that the Authority must not register an applicant for further registration as a registered migration agent if the Authority is satisfied that the applicant has not me within the prescribed period the requirements prescribed by the regulations for continuing professional development;
• paragraph 305A(1)(a), which provides that the Authority must as soon as possible make available in the prescribed way a statement that sets out the decision to discipline a registered migration agent and the grounds for the decision;
• subsection 305C(2), which provides that the Authority may require a registered migration agent to provide the Authority with prescribed information or prescribed documents within the specified period and in the specified manner if the Authority is considering refusing a registration application by the registered migration agent or to discipline the registered migration agent;
• section 306AA, which provides that if the Administrative Appeals Tribunal or a court orders a stay of a decision to discipline a registered migration agent under section 303 of the Act, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order;
• subsection 306AC(4), which provides that a visa application is not to be counted for the purpose of determining whether a registered migration agent has a high visa refusal rate under section 306AC if the agent gave the immigration assistance in a prescribed capacity;
• subsection 306AC(5), which provides that when deciding whether to refer a registered migration agent to the Authority under section 306AC, the Minister must have regard to any matter prescribed by the regulations;
• section 306AK, which provides that if the Administrative Appeals Tribunal or a court orders a stay of a decision to discipline a registered migration agent under sections 306AG or 306AGAC, it is taken to be a condition of the order that the prescribed supervisory requirements apply in relation to the agent during the period of the order;
• paragraph 311C(1)(a), which provides that if a former registered migration agent is given a notice of a decision to bar him or her from being registered under section 311A of the Act, the Authority must as soon as possible make available in the prescribed way a statement that sets out the decision and the grounds for the decision;
• subsection 311EA(2), which provides that the Authority may require a former registered migration agent to provide the Authority with prescribed information or prescribed documents within the specified period and in the specified manner if the Authority is considering making a decision to bar the former registered migration agent from being a registered migration agent for a period;
• subsection 312A(1), which provides that a registered migration agent who gives immigration assistance to a person in relation to a visa application, he or she must notify the Department in accordance with the regulations and within the period worked out in accordance with the regulations;
• subsection 312B(1), which provides that a registered migration agent who gives immigration assistance to a person in relation to a review application, he or she must notify the review authority concerned in accordance with the regulations and within the period worked out in accordance with the regulations;
• paragraph 313(3)(c), which provides that the period after which an assisted person may recover the amount of any payment made to a registered migration agent as debt, where the agent has not provided the person a statement of services, is the period worked out in accordance with the regulations;
• subsection 321A(2), which provides that the Authority may only disclose personal information under subsection 321A(1) about a registered migration agent or an inactive migration agent to the Secretary or an authorised officer, or a review authority in the prescribed circumstances;
• subsection 332F(2), which provides that the Secretary may only disclose personal information under subsection 332F(1) about a registered migration agent or an inactive migration agent to a review authority in the prescribed circumstances;
• subsection 332G(2), which provides that a review authority may only disclose personal information under subsection 332G(1) about a registered migration agent or an inactive migration agent to the Secretary or an authorised officer in the prescribed circumstances; and
• paragraph 504(1)(ja), which provides that the regulations may make provision to enable a person who is alleged to have committed an offence against subsection 280(1) of the Act to pay the Commonwealth, as an alternative to prosecution, a penalty of 12 penalty units.
ATTACHMENT B
Details of the Migration Agents Amendment Regulations 2004 (No. 1)
Regulation 1 - Name of Regulations
This regulation provides that these Regulations are the Migration Agents Amendment Regulations 2004 (No. 1).
Regulation 2 - Commencement
This regulation provides that these Regulations commence on the commencement of Schedule 1 to the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 (the Amendment Act), which has been fixed, by Proclamation, as 1 July 2004.
Regulation 3 - Amendment of Migration Agents Regulations 1998
This regulation provides that Schedule 1 amends the Migration Agents Regulations 1998 (the Principal Regulations).
Schedule 1 - Amendments
Item [1] - After Division 2.2
This item inserts new Divisions 2.3 and 2.4 in Part 2 of the Principal Regulations.
New Division 2.3 - Assistance given by other persons
New Division 2.3 relates to immigration assistance given by persons other than registered migration agents or immigration assistance given by employers or professional development sponsors which are provided for in Divisions 2.1 and 2.2 of Part 2 of the Principal Regulations respectively.
Regulation 3H - Assistance given by close family members
New regulation 3H in new Division 2.3 provides that, for the definition of close family member in subsection 280(7) of the Migration Act 1958 (the Act), inserted by the Amendment Act, the phrase close family member, in relation to a person, means:
• the person's spouse; or
• a child, adopted child, parent, brother or sister of the person.
The purpose of this amendment is to specify the types of relationships which must exist between a person and a close family member for that family member to be able to provide the person with immigration assistance without being required to be a registered migration agent.
New Division 2.4 - Infringement notices relating to giving of immigration assistance
New Division 2.4 relate to the issuing of infringement notices for giving immigration assistance not authorised under the Act or the Principal Regulations. This new Division inserts a number of new regulations which creates a scheme for the issuing of infringement notices as an alternative to prosecution under section 280 of the Act. Under section 280, persons who are not registered migration agents and who give immigration assistance contrary to the Act and the Principal Regulations commit an offence of strict liability. Paragraph 504(1)(ja), inserted in the Act by the Amendment Act, allows regulations to be made which enable a person who is alleged to have committed an offence under subsection 280(1) to pay a fine of 12 penalty units as an alternative to prosecution. Subsection 4AA(1) of the Crimes Act 1914 provides that one penalty unit is $110.
Regulation 3I - Definitions for Division 2.4
New regulation 3I defines the following terms for new Division 2.4:
• authorised officer includes the Secretary of the Department of Immigration and Multicultural and Indigenous Affairs (the Department). A note explains that the term authorised officer is defined in subsection 5(1) of the Act;
• infringement notice means a notice given under new regulation 3J;
• offence means a contravention of subsection 280(1) of the Act; and
• penalty means a penalty under new paragraph 504(1)(ja) of the Act.
Regulation 3J - When can an infringement notice be served?
New regulation 3J provides that if an authorised officer has reason to believe that a person has committed an offence, he or she may cause an infringement notice to be served on the person in accordance with new Division 2.4.
Regulation 3K - What must an infringement notice contain?
New subregulation 3K(1) provides that an infringement notice must contain the following information:
• the name of the authorised officer who served the notice;
• the day or days on which the offence is alleged to have been committed, or the period of time during which the offence is alleged to have been committed;
• brief particulars of the alleged offence;
• the penalty;
• that if the person subject to the infringement notice does not want the matter to be dealt with by a court, he or she may pay the penalty within 28 days after the date of service of the notice unless the notice is withdrawn before the end of that period;
• where and how the penalty is to be paid;
• the procedures relating to the withdrawal of notices and the consequences of the withdrawal of a notice.
New subregulation 3K(2) provides that an infringement notice may contain any other particulars the authorised officer considers necessary.
Regulation 3L - Can the time for payment be extended?
New regulation 3L provides that an authorised officer, if he or she is satisfied that it is proper to do so, may allow a further period for the payment of a penalty whether or not the 28 day payment period has expired.
Regulation 3M - What happens if the penalty is paid?
New regulation 3M provides that if a person subject to an infringement notice pays the penalty before either the period of 28 days after the date of service or within any further period allowed then:
• any liability of the person for the offence is discharged; and
• no further proceedings may be taken in relation to the alleged offence; and
• the person is not to be taken to have been convicted of the alleged offence.
This amendment ensures that in certain circumstances, the payment of an infringement notice is sufficient for all liability for an alleged offence to be discharged. However, this amendment does not apply where an infringement notice has been withdrawn in accordance with new regulation 3N whether or not the person has paid the penalty prior to withdrawal. New paragraph 3S(d) provides that where an infringement notice is withdrawn, a person's liability to be prosecuted for the alleged offence is not affected.
Regulation 3N - Can an infringement notice be withdrawn?
New regulation 3N provides that an infringement notice served on a person may be withdrawn by an authorised officer in writing served on the person at any time before either the end of 28 days after the date of service of the infringement notice or at the end of any further period.
Regulation 3O - Refund of penalty if notice withdrawn
New regulation 3O provides that if an infringement notice has been served on a person and the person has paid the penalty in accordance with the notice, and the notice is subsequently withdrawn, an authorised officer must arrange for the refund to the person of an amount equal to the amount paid.
Regulation 3P - Evidence
New regulation 3P provides that at the hearing of a prosecution for an offence specified in an infringement notice, a certificate signed by an authorised officer and stating that:
• the authorised officer did not allow further time under new regulation 3L for payment of the penalty and that the penalty was not paid in accordance with the notice is evidence of those matters;
• the authorised officer allowed further time under new regulation 3L for payment of the penalty and that the penalty was not paid in accordance with the notice is evidence of those matters; and
• the notice was withdrawn on a day specified in the certificate is evidence of that fact.
New subregulation 3P(4) provides that a certificate that purports to have been signed by an authorised officer is taken to have been signed by that person unless the contrary is proved correct.
Regulation 3Q - Can there be more than one infringement notice for the same offence?
New regulation 3Q provides that nothing in new Division 2.4 prevents more than one infringement notice being served on a person for the same offence, however the person is only required to pay the penalty in accordance with one of the infringement notices.
Regulation 3R - What if the payment is made by cheque?
New regulation 3R provides that if a cheque is offered as payment of all or part of the amount of a penalty set out in an infringement notice, payment is taken not to have been made unless the cheque is honoured upon presentation.
Regulation 3S - Infringement notice not compulsory
New regulation 3S provides that nothing in new Division 2.4:
• requires an infringement notice to be served on a person in relation to an alleged offence; or
• affects the liability of a person to be prosecuted for an alleged offence if:
- the person does not comply with an infringement notice; or
- an infringement notice is not served on the person in relation to the offence; or
- an infringement notice is served and withdrawn; or
• limits the amount of the fine that may be imposed by a court on a person convicted of an offence.
Regulation 3T - How must a notice be served?
New regulation 3K provides the methods by which a notice, whether an infringement notice or other notice, under new Division 2.4 must be served on a person.
Item [2] - Before regulation 4
The amendments made by this item insert various new regulations in Part 3 of the Principal Regulations which prescribe certain matters for new provisions which are inserted in the Act by the Amendment Act.
Regulation 3U - Relation by employment
New regulation 3U provides, for the purposes of new subsection 278(2) of the Act, additional types of relationships between two individuals for which they are considered to be related by employment.
Section 278 of the Act lists a number of employment or commercial relationships between individuals which render those individuals to be considered to be related by employment. Section 290 of the Act prohibits the registration of an applicant where he or she is related by employment to an individual where the individual is considered not to be a person of integrity and the applicant should not be registered because of that relationship. Section 303 of the Act also allows the Migration Agents Registration Authority (the Authority) to caution, suspend or cancel the registration of a registered migration agent where the agent is related by employment to an individual considered not to be a person of integrity.
The effect of new regulation 3U is to expand the types of relationships to prevent registered migration agents who have been barred, suspended or had their registration cancelled from using these additional employment or commercial relationships to continue being involved in the business of providing immigration assistance. This amendment arose from recommendation 13 of the 2001-02 Review of Statutory Self-Regulation of the Migration Advice Industry in Australia, chaired by Mr Ian Spicer, which reported to the Minister of Citizenship and Multicultural Affairs on 26 July 2002.
Regulation 3V - Information on the Register of Migration Agents
New regulation 3V prescribes, for the purposes of new paragraph 287(2)(i) of the Act, certain matters about which particulars must be shown on the Register of Migration Agents (the Register).
Section 287 of the Act provides that the Authority must keep a register listing individuals who are registered as migration agents. Subsection 287(2) lists numerous particulars relating to registered migration agents which must be included in the Register.
The matters prescribed in new regulation 3V generally include additional contact information for a registered migration agent, and information relating to the administrative or judicial review of disciplinary action by the Authority.
This new regulation expands the range of information about registered migration agents which is available to the Authority, the Department and the general public through the Register. Further, including additional information about any disciplinary action against a registered migration agent allows any prospective or current clients of the agent to be able to be better informed to make decisions about using the services of the agent.
Regulation 3W - Publication of names of former registered migration agents
New regulation 3W prescribes, for new subsection 287(3A), that the method of publishing a list of former registered migration agents, their former migration agent registration numbers and date of ceasing to be registered is on the Authority's web site. New regulation 3W further prescribes that a former agent's details must be removed from the list no later than 12 months after the date of publication.
The purpose of this amendment is to ensure that information about former registered migration agents who have recently ceased to be registered is publicly available. By being publicly available, the risk that consumers will unintentionally retain the services of an unregistered agent, and therefore be exposed to unprofessional conduct, are reduced.
Regulation 3X - Removal of disciplinary details from the Register of Migration Agents
New regulation 3X prescribes, for new subsection 287(6), that particulars of any suspension of a registered migration agent's registration or any caution given to an agent must be removed from the Register within 14 days after the suspension or caution is no longer in effect.
The period prescribed is a reasonable period of time within which the Authority is required to remove this information from the Register.
Regulation 3Y - Time of registration application
New regulation 3Y prescribe, for new subsection 288(4), the manner in which the day on which an application for registration as a registered migration agent is worked out. Two methods of giving a registration application to the Authority are provided: delivery by hand to the Authority; and sending the application by pre-paid post.
The purpose of this amendment, in conjunction with new subsection 288(4), is to provide both the Authority and registered migration agents with greater certainty. It also aims to clarify whether a registered migration agent's application has been received prior to the expiry of their current registration year. Section 300 of the Act enables an agent who submits their application for re-registration prior to the expiry of their previous registration, to remain registered while the Authority processes their application.
Item [3] - Subregulation 4(1)
This item substitutes subregulation 4(1) in Part 3 of the Principal Regulations with new subregulation 4(1).
New subregulation 4(1) extends the operation of regulation 4 to allow two or more individuals who are employees of the same employer and all intend to apply for registration as a registered migration agent to jointly publish a notice stating this intention.
This amendment arose from recommendation 4 of the 2001-02 Review of Statutory Self-Regulation of the Migration Advice Industry in Australia to allow employees of non-profit organisations to be allowed to "bulk publish" notices of intention to apply for registration where more than one employee seeks to become registered at the same time. New section 288A(3) expands the scope of the recommendation to apply to employees of any organisation.
Item [4] - Subregulation 4(2)
Item [5] - Subregulation 4(4)
These items make technical amendments to subregulations 4(2) and (4) of Part 3 of the Principal Regulations which takes into consideration the amendment to subregulation 4(1) by these Regulations to allow two or more individuals who are employees of the same employer to jointly publish notices of intention to apply for registration.
These amendments require all individuals jointly publishing such notices to include all of the information specified in subregulation 4(2). However, under subregulation 4(2) there is no requirement to include the same address twice.
The amendment to subregulation 4(4) also corrects the mistaken use of the word "agent".
Item [6] - Subregulations 5(1), (2) and (3)
This item substitutes subregulations 5(1), (2) and (3) of Part 3 of the Principal Regulations with new subregulations 5(1) and (2).
The purpose of this amendment is to prescribe, for paragraph 289A(c) of the Act:
• the course that must be undertaken by a person who has never been registered, or has not been registered for over 12 months, the period during which the course is to have been undertaken, and the exam which is required to be passed; or
• the qualifications a person is required to possess;
for the Authority to be satisfied that the person is able to be registered.
New subregulation 5(2) changes the prescribed qualification to a current legal practising certificate which has been issued by a law society of a State or Territory or any other such organisations which are authorised by law to issue legal practising certificates. This amendment ensures that applicants for registration as a registered migration agent who are exempted from having to undertake a course and pass an exam approved by the Authority are more likely to have better knowledge of relevant laws, and possess necessary business skills to practise as a registered migration agent.
Item [7] - Regulations 7 and 7A
This item substitutes regulations 7 and 7A of Part 3 of the Principal Regulations with new regulations 7 to 7I, and inserts various new regulations in Part 3 of the Principal Regulations which prescribe certain matters for new provisions which are inserted in the Act by the Amendment Act.
Regulation 7 - Publication of statement about a caution, or the cancellation or suspension of registration
New regulation 7 prescribes the requirements that the Authority must satisfy when publishing written statements about cautioning a registered migration agent, or cancelling or suspending the registration of a registered migration agent for new paragraph 305A(1)(a) of the Act. New section 305A makes it a requirement that the Authority makes details of disciplinary actions against registered migration agents publicly available, and paragraph 305A(1)(a) makes it a requirement that the Authority must, as soon as possible, make statements setting out disciplinary decisions and the reason for those decisions publicly available in the prescribed way.
New subregulation 7(2) further provides the period within which the Authority must remove any statement about any caution, suspension or cancellation that is published in accordance with new subregulation 7(1). The duration of publication reflects the seriousness of the disciplinary action taken by the Authority.
Regulation 7A - Requiring registered migration agents to give information or documents
New regulation 7A prescribes, for new subsection 305C(2) of the Act, the types of information and documents the Authority may require a registered migration agent to provide where the Authority is considering either refusing a registration application by the agent or making a decision under section 303 of the Act to cancel or suspend the agent's registration or caution the agent.
New paragraph 7A(a) prescribes certain information relating to a registered migration agent's clients, or the clients of the business or corporation which employs the agent.
New paragraph 7A(b) prescribes certain documents contained in client files and client financial documents relating to a registered migration agent's clients, or the clients of the business or corporation which employs the agent.
The purpose of new regulation 7A is to allow the Authority to obtain information and documents to ensure that clients of a registered migration agent are not be disadvantaged if the Authority decides to discipline the agent.
Regulation 7B - Stay orders - prescribed supervisory requirements
New regulation 7B prescribes, for new sections 306AA and 306AK of the Act, the supervisory requirements to which a registered migration agent must be subject where the agent benefits from the stay of a decision to either cancel or suspend his or her registration by either the Administrative Appeals Tribunal or a court. New sections 306AA and 306AK provide that it is taken to be a condition of such a stay of a decision that prescribed supervisory requirements apply in relation to the agent during the period of the order.
New subregulation 7B(2) provides that a registered migration agent who benefits from the stay of a disciplinary decision must be supervised by another registered migration agent.
New subregulation 7B(3) limits who may become a supervising agent.
New subregulation 7B(4) provides the actions a supervising agent must carry out when supervising another registered migration agent who has benefited from the stay of a disciplinary decision. Generally, new subregulation 7B(4) requires a supervising agent to actively monitor immigration assistance services provided by the supervised agent.
The purpose of new regulation 7B is protect clients of a registered migration agent who has been disciplined by the Authority under section 303, 306AG or 306AGAC of the Act, has sought review of that decision, and has been granted a stay of the disciplinary decision pending final orders, by ensuring that immigration assistance provided to each client is appropriately monitored by a supervising agent.
Regulation 7C - Immigration assistance in a prescribed capacity
New regulation 7C prescribes, for new subsection 306AC(4) of the Act, a registered migration agent who is engaged by the Department under the Immigration Advice and Application Assistance Scheme (IAAAS).
New section 306AC provides for the referral by the Minister to the Authority of registered migration agents where an agent has a high visa refusal rate for a particular class of visa. New subsection 306AC(4) provides that an application made by a registered migration agent in a prescribed capacity is not to be counted when calculating the agent's visa refusal rate under new subsection 306AC(2).
The effect of new regulation 7C is that applications made by a registered migration agent in their capacity as a IAAAS provider are not to be counted when calculating the agent's visa refusal rate under new Division 3AA of Part 3 of the Act.
Regulation 7D - Matters to be considered when referring to the Authority
New regulation 7D prescribes, for new subsection 306AC(5) of the Act, the matters which the Minister must have regard to when deciding whether or not to refer a registered migration agent to the Authority under new section 306AC.
The matters prescribed in new regulation 7D generally are circumstances where the refusal of an application is the result of circumstances beyond the control of a registered migration agent or the action of a court or the Minister exercising his or her discretion to substitute a more favourable decision. An example of another relevant matter which the Minister may be required to take into consideration, for new paragraph 7D(e), includes changes in the interpretation of pertinent provisions of the Act or the Migration Regulations 1994 (the Migration Regulations) or any other relevant legislation by a Federal Court.
Regulation 7E - Publication of statement about barring former agents from registration
New regulation 7E prescribes, for new paragraph 311C(1)(a) of the Act, that the Authority must publish on the Authority's web site a statement setting out the decision, and grounds of the decision, to bar a former registered migration agent from being a registered migration agent. New regulation 7E also provides the period within which the Authority must remove any published statement setting out a decision to bar a former registered migration agent.
New section 311C provides for making disciplinary details relating to the barring of former registered migration agents publicly available. Prescribing that such statements are to be published on the Internet ensures that these details are easily accessible to as many people as possible, both in Australia and outside Australia.
Regulation 7F - Requiring former registered migration agents to give information or documents
New regulation 7F prescribes, for new subsection 311EA(2) of the Act, the types of information and documents the Authority may require former registered migration agents to provide where the Authority is considering barring the former agent from being a registered migration agent for a period under new section 311A of the Act.
New paragraph 7F(a) prescribes certain information relating to a former registered migration agent's clients, or the clients of the business or corporation which employs the former agent.
New paragraph 7F(b) prescribes certain documents contained in client files and client financial documents relating to a former registered migration agent's clients, or the clients of the business or corporation which employs the former agent.
The purpose of new regulation 7F is to allow the Authority to obtain information and documents which may assist in deciding whether to bar a former registered migration agent from being a registered migration agent, and also to ensure that clients of a former registered migration agent are not be disadvantaged if the Authority decides to bar the former agent.
Regulation 7G - Method of notification of giving of immigration assistance to visa applicants
New regulation 7G prescribes, for new section 312A of the Act, the way a registered migration agent must notify the Department that the agent is giving immigration assistance to a visa applicant after agreeing to represent the applicant.
Three methods of notification are prescribed in new subregulation 7G(1): sending a completed Form 956 to the Department; sending a letter containing specified information to the Department; or completing the "Migration Agent's Details" section of a visa application form.
New subregulation 7G(2) prescribes when a registered migration agent must inform the Department that the agent is giving immigration assistance.
The purpose of new section 312A is to ensure that registered migration agents cannot avoid the operation of the vexatious activity scheme in new Division 3AA of Part 3 of the Act by not notifying that they have provided immigration assistance to a visa applicant.
Regulation 7H - Method of notification of giving immigration assistance to review applicants
New regulation 7H prescribes, for new section 312B of the Act, the way a registered migration agent must notify the Refugee Review Tribunal or the Migration Review Tribunal that the agent is giving immigration assistance to a review applicant after agreeing to represent the applicant.
Two methods of notification are prescribed in new subregulation 7H(1): sending a completed approved form to the Refugee Review Tribunal or the Migration Review Tribunal; or sending a letter containing specified information to the Refugee Review Tribunal or the Migration Review Tribunal.
New subregulation 7H(2) prescribes when a registered migration agent must inform the Refugee Review Tribunal or the Migration Review Tribunal that the agent is giving immigration assistance.
The purpose of new section 312B is to ensure that registered migration agent's cannot avoid the operation of the vexatious activity scheme in new Division 3AA of Part 3 of the Act by not notifying that they have provided immigration assistance to a review applicant.
Regulation 7I - Statement of services
New regulation 7I prescribes, for new paragraph 313(3)(c) of the Act, the period during which a client of a registered migration agent must be provided with a statement of services by the agent before the client may recover as a debt any payments made by him or her to the agent for the provision of immigration assistance.
Item [8] - After regulation 9A
The amendments made by this item insert new regulations in Part 3 of the Principal Regulations which prescribe certain matters for new provisions which are inserted in the Act by the Amendment Act.
Regulation 9B - Disclosure of personal information by the Authority
New regulation 9B prescribes, for new subsection 321A(2) of the Act, the circumstances when the Authority may disclose personal information about a registered migration agent, or an inactive migration agent (as defined in section 306B of the Act), to the Secretary or an authorised officer, or a review authority.
The information provided in accordance with new section 321A in the circumstances prescribed in new regulation 9B allow the Department, the Refugee Review Tribunal and the Migration Review Tribunal to access personal information about registered migration agents from the Authority to more effectively monitor the migration advice industry and facilitate investigations against registered migration agents.
Regulation 9C - Disclosure of personal information by the Secretary
New regulation 9C prescribes, for new subsection 332F(2) of the Act, the circumstances when the Secretary may disclose personal information about a registered migration agent, or an inactive migration agent (as defined in section 306B of the Act), to a review authority.
The information provided in accordance with new section 332F in the circumstances prescribed in new regulation 9C allow the Refugee Review Tribunal or the Migration Review Tribunal to access personal information about registered migration agents from the Department to more effectively monitor the migration advice industry and facilitate investigations against registered migration agents.
Regulation 9D - Disclosure of personal information by a review authority
New regulation 9D prescribes, for new subsection 332G(2) of the Act, the circumstances when a review authority may disclose personal information about a registered migration agent, or an inactive migration agent (as defined in section 306B of the Act) to the Secretary or an authorised officer.
The information provided in accordance with new section 332G in the circumstances prescribed in new regulation 9D allow the Department to access personal information about registered migration agents from the Refugee Review Tribunal or the Migration Review Tribunal to more effectively monitor the migration advice industry and facilitate investigations against registered migration agents.
Item [9] - Schedule 1, clause 1
This item substitutes clause 1 of Schedule 1 to the Principal Regulations and inserts new clause 1A in Schedule 1.
New clause 1 clarifies the continuing professional development requirement that a registered migration agent is required to complete approved activities to the value of at least 10 points in the 12 month period immediately before he or she applies for repeat registration.
The Federal Court in Goldsmith v MARA [2001] FCA 407 held that clause 1 of Schedule 1 was inconsistent with section 290A of the Act. This decision was upheld by the Full Court of the Federal Court in MARA v Goldsmith [2001] FCA 778. Section 290A is amended by the Amendment Act to overcome these decisions and make it a requirement that an applicant for repeat registration must meet the continuing professional development requirements within the prescribed period.
New clause 1 ensures that registered migration agents who apply for repeat registration have sufficient knowledge of current migration law and procedures.
New clause 1A further clarifies that if a registered migration agent has previously relied upon continuing professional development points for repeat registration, those points are not to be relied upon for any subsequent repeat registration.
Item [10] - Schedule 1, paragraph 6(e)
This item makes a technical amendment to paragraph 6(e) of Schedule 1 to the Principal Regulations. This amendment is consequential to the insertion of new paragraph 6(f) in Schedule 1 to the Principal Regulations and the amendment to clause 8 of Schedule 1 to the Principal Regulations (see item [15] below).
Item [11] - Schedule 1, after paragraph 6(e)
This item inserts new paragraph 6(f) in Schedule 1 to the Principal Regulations. This amendment expands the range of approved activities for continuing professional development to include the authorship, shared authorship or editorship of a book.
Item [12] - Schedule 1, paragraph 7(d)
This item makes a technical amendment to paragraph 7(d) of Schedule 1 to the Principal Regulations. This amendment is consequential to the insertion of new paragraph 7(e) in Schedule 1 to the Principal Regulations.
Item [13] - Schedule 1, after paragraph 7(d)
This item inserts new paragraph 7(e) in Schedule 1 to the Principal Regulations. This amendment expands the matters to which a core activity specifically relates to include the application of the Act, the Migration Regulations or any other legislation relating to migration procedure to the registered migration agent's practice.
The purpose of this amendment is to assist with ensuring that registered migration agents have appropriate knowledge of important issues such as ethical standards and the Code of Conduct (Schedule 2 to the Principal Regulations), as well as knowledge of migration law and procedure.
Item [14] - Schedule 1, after clause 7
This item inserts new clauses 7A and 7B in Schedule 1 to the Principal Regulations.
New clause 7A allows the Authority to declare that up to four points of specified continuing professional development activities are mandatory for either certain classes of registered migration agents or all registered migration agents. It is proposed that such activities relate to matters including ethics, business management and changes to migration law and procedure.
New clause 7B allows the Authority to declare that up to seven points of continuing professional development activities must be assessable. This amendment ensures that completion of continuing professional development activities involve an appropriate degree of conceptual rigour and genuine learning and improvement. The insertion of new clause 7B was recommended by the 2001-02 Review of Statutory Self-Regulation of the Migration Advice Industry in Australia as a way of improving the standard of service provided by the migration advice industry.
Item [15] - Schedule 1, clause 8
This item substitutes clause 8 of Schedule 1 to the Principal Regulations with new clause 8.
New clause 8 limits what a core continuing professional development activity may include to passing an examination that demonstrates competency as a registered migration agent. This amendment removes, as a core continuing professional development activity, the maintenance of a professional library.
This amendment to clause 8 results from it being considered inappropriate that registered migration agents can obtain continuing professional development activity points for maintaining a professional library when it is an existing requirement in paragraph 2.5(b) of Schedule 2 to the Principal Regulations (the Code of Conduct) that registered migration agents must maintain a professional library, or have access to their employer's professional library.
Item [16] - Schedule 1, clause 12
This item amends clause 12 of Schedule 1 to the Principal Regulations to expand its application to include individuals who have been registered at some time in the 12 months immediately before making an application for repeat registration.
New section 289A of the Act provides that individuals who have been registered in the 12 months prior to making an application for repeat registration are not required to show that they have either completed a prescribed course or have the prescribed qualifications. As a consequence, it is necessary for clause 12 to be amended to require such agents to give to the Authority a written statement to the effect that they have met the continuing professional development requirements in Schedule 1 to the Principal Regulations and have kept written records of each activity for which they claim continuing professional development points.
Item [17] - Schedule 2, before Part 1
Item [18] - Schedule 2, before Part 1
These items make a technical amendment to the text before Part 1 of Schedule 2 to the Principal Regulations to make clear that Schedule 2, the Code of Conduct, applies to registered migration agents, and standardises the manner in which registered migration agents are referred to in the Principal Regulations.
Item [19] - Schedule 2, clause 1.1
This item makes a technical amendment to clause 1.1 of Schedule 2 to the Principal Regulations to clarify that references in Schedule 2 to "the Code" are references to the Code of Conduct in Schedule 2 to the Principal Regulations.
Item [20] - Schedule 2, clause 1.6
This item makes a technical amendment to clause 1.6 of Schedule 2 to the Principal Regulations to replace the incorrect term "warning" with the correct term "caution" to correspond with the Authority's power under the Act to caution registered migration agents.
Item [21] - Schedule 2, clause 2.3
Item [22] - Schedule 2, clause 2.3A
These items amend clauses 2.3 and 2.3A of Schedule 2 to the Principal Regulations to standardise the manner in which registered migration agents are referred in the Principal Regulations, and to make the requirements in clauses 2.3 and 2.3A mandatory.
Clauses 2.3 and 2.3A relate to the professional standards a registered migration agent must maintain.
Item [23] - Schedule 2, clause 2.6
Item [24] - Schedule 2, clause 2.7
These items amend clauses 2.6 and 2.7 of Schedule 2 to the Principal Regulations to make the requirements in clauses 2.6 and 2.7 mandatory.
Clauses 2.6 and 2.7 relate to the manner in which a registered migration agent addresses client concerns about prospects of success when addressing a request for immigration assistance.
Item [25] - Schedule 2, clause 2.11
This item makes a technical amendment to clause 2.11 of Schedule 2 to the Principal Regulations to replace the incorrect phrase "Registered Migration Agent Number" with the correct phrase "Migration Agents Registration Number" and allow the acronym "MARN" to be used as an alternative.
Item [26] - Schedule 2, clause 2.12
Item [27] - Schedule 2, paragraph 2.12(c)
These item makes a technical amendments to clause 2.12 of Schedule 2 to the Principal Regulations to update the references to the Department to refer to the full title "the Department of Immigration and Multicultural and Indigenous Affairs" in regulation 2.12 and the acronym "DIMIA" in paragraph 2.12(c).
Item [28] - Schedule 2, clause 2.16
This item amends clause 2.16 of Schedule 2 to the Principal Regulations to make the requirement in this clause mandatory.
Clause 2.16 relates to registered migration agents with operations overseas falsely indicating that registration involves accreditation with the Department or the Australian Government.
Item [29] - Schedule 2, clause 2.17, at the foot
This item inserts a new note at the end of clause 2.17 of Schedule 2 to the Principal Regulations. The new note explains the operation of new section 306AC of the Act.
The purpose of this amendment is to ensure that registered migration agents and their clients are aware of the operation of new Division 3AA of Part 3 of the Act relating to the disciplining of registered migration agents for engaging in vexatious activity.
Item [30] - Schedule 2, clause 2.22
This item omits clause 2.22 from Schedule 2 to the Principal Regulations.
This amendment is consequential to the amendment of section 312 of the Act by the Amendment Act requiring a registered migration agent to notify the Authority when he or she commences giving immigration assistance on a commercial or for-profit basis.
Item [31] - Schedule 2, clause 4.1
This item amends clause 4.1 of Schedule 2 to the Principal Regulations to make the requirement in this clause mandatory.
Clause 4.1 relates to what actions a registered migration agent must undertake when deciding whether to provide the immigration assistance to a new client.
Item [32] - Schedule 2, clause 5.1
This item amends clause 5.1 of Schedule 2 to the Principal Regulations to standardise the manner in which registered migration agents are referred in the Principal Regulations, and to make the requirements in clause 5.1 mandatory.
Clause 5.1 relates to the setting and charging of reasonable fees by registered migration agents.
Item [33] - Schedule 2, paragraph 5.3(a)
Item [34] - Schedule 2, paragraphs 5.3(b) and (c)
These items amends paragraphs 5.3(a), (b) and (c) of Schedule 2 to the Principal Regulations to make the requirements in these paragraphs mandatory.
Paragraph 5.3(a) relates to the cost effectiveness of the manner in which a registered migration agent carries out work for a client. Paragraph 5.3(b) relates to obtaining from a new client written acceptance of the terms of the work to be done by the registered migration agent, and paragraph 5.3(c) relates to the giving of written confirmation of the terms of service to be rendered by a registered migration agent to a new client.
Item [35] - Schedule 2, after clause 7.1
This item inserts new clause 7.1A in Schedule 2 to the Principal Regulations.
New clause 7.1A makes it a requirement that the account for money paid by clients to the agent for fees and disbursements is named "clients' account" to make it easier to distinguish which account relates to this purpose.
Item [36] - Schedule 2, clause 8.3
This item amends clause 8.3 of Schedule 2 to the Principal Regulations to include the qualification that immigration assistance may be given by certain classes of persons who are not registered migration agents under section 280 of the Act.
Item [37] - Schedule 2, clause 10.4
This item substitutes clause 10.4 of Schedule 2 to the Principal Regulations with new clause 10.4.
New clause 10.4 clarifies that only registered migration agents who are also holders of current legal practising certificates are able to claim a lien on any client documents. This amendment also removes any inconsistency with clause 10.6 of Schedule 2.
Item [38] - Schedule 2, clause 10.6, note 1
This item substitutes note 1 at the end of clause 10.6 of Schedule 2 to the Principal Regulations.
New note 1 clarifies that only registered migration agents who are also holders of current legal practising certificates are able to claim a lien on any client documents.
Item [39] - Further amendments
This item makes various technical amendments to Parts 1 and 3 of the Principal Regulations and Schedules 1 and 2 to the Principal Regulations to standardise the manner in which registered migration agents are referred to in the Principal Regulations.
This item also amends clauses 2.19, 2.21, 5.4 and 8.5 of Schedule 2 to the Principal Regulations to make the requirements in these clauses mandatory.
Clause 2.19 relates to a registered migration agent's duty to provide sufficient relevant information to the Department to allow a full assessment of an application.
Clause 2.21 relates to submitting applications with the specified accompanying documentation.
Clause 5.4 relates to advising clients about the method of payment of fees and charges.
Clause 8.5 relates to the character and behaviour of employees of a registered migration agent.