Migration Legislation Amendment Bill (No. 5) 1997

Migration Legislation Amendment (Migration Agents) Act 1997

No. 205, 1997

An Act to amend the law about migration agents, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Migration Legislation Amendment (Migration Agents) Act 1997.

2 Commencement

(1) Subject to this section, this Act commences immediately before 21 March 1998.

(2) Items 67 and 68 of Schedule 1 commence on the day on which this Act receives the Royal Assent.

(3) Part 3 of Schedule 1 commences on 21 March 1998 if the Public Service Act 1997 commences before that day. Otherwise the Part commences when that Act commences.

(4) Schedule 3 (apart from Parts 3, 4 and 5) commences on 21 January 1999.

(5) Part 3 of Schedule 3 commences on 21 February 1999.

(6) Parts 4 and 5 of Schedule 3 commence on 21 March 1999.

3 Schedule(s)

Subject to section 2, each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Regulation of the migration advice industry

Part 1—Amendment of the Migration Act 1958

1 Subsection 5(1) (at the end of the definition of offence against this Act)

Add:

; and (d) an offence against a provision of Part 3 of this Act because of section 11.2 or 11.3 of the Criminal Code; and

(e) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code relating to an offence against Part 3 of this Act.

2 Section 275 (definition of Board)

Repeal the definition.

3 Section 275 (definition of entrance applicant)

Repeal the definition.

4 Section 275 (definition of entrance application)

Repeal the definition.

5 Section 275 (definition of immigration case)

Repeal the definition.

6 Section 275

Insert:

Institute means the Migration Institute of Australia Limited (A.C.N. 003 409 390).

7 Section 275

Insert:

Migration Agents Registration Authority means:

(a) if an appointment of the Institute is in force under section 315—the Institute; or

(b) otherwise—the Minister.

8 Section 275 (definition of paid immigration assistance)

Repeal the definition.

9 Section 275 (definition of registration application fee)

Repeal the definition, substitute:

registration application fee means charge imposed by the Migration Agents Registration Application Charge Act 1997 on a registration application.

10 Section 275 (definition of renewal fee)

Repeal the definition, substitute:

renewal fee means charge imposed by the Migration Agents Registration Renewal Charge Act 1997 on a renewal of registration.

11 Section 276

Omit “an entrance”, substitute “a visa”.

12 Paragraphs 276(a), (b), (c) and (d)

Omit “entrance” (wherever occurring), substitute “visa”.

13 At the end of section 276

Add:

(2) For the purposes of this Part, a person also gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist another person by:

(a) preparing, or helping to prepare, a document indicating that the other person nominates or sponsors a visa applicant for the purposes of the regulations; or

(b) advising the other person about nominating or sponsoring a visa applicant for the purposes of the regulations; or

(c) representing the other person in proceedings before a court or review authority that relate to the visa for which the other person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations.

(3) Despite subsections (1) and (2), a person does not give immigration assistance if he or she merely:

(a) does clerical work to prepare (or help prepare) an application or other document; or

(b) provides translation or interpretation services to help prepare an application or other document; or

(d) passes on to another person information produced by a third person, without giving substantial comment on or explanation of the information.

14 Paragraph 277(a)

Omit “an entrance”, substitute “a visa”.

15 Paragraph 277(a)

Omit “the entrance”, substitute “the visa”.

16 Paragraph 277(b)

Omit “an entrance”, substitute “a visa”.

17 Paragraph 277(b)

Omit “the entrance”, substitute “the visa”.

18 Paragraph 277(c)

Omit “an entrance”, substitute “a visa”.

19 Paragraph 277(c)

Omit “the entrance”, substitute “the visa”.

20 Subparagraphs 277(c)(i), (ii) and (iii)

Omit “the entrance”, substitute “the visa”.

21 At the end of section 277

Add:

(2) For the purposes of this Part, a lawyer also gives immigration legal assistance if the lawyer:

(a) represents or otherwise acts for a person in proceedings (or in preparing for proceedings) before a court that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant) for the purposes of the regulations; or

(b) gives advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations (except advice described in subsection (3)).

(3) A lawyer does not give immigration legal assistance in giving advice to a person about nominating or sponsoring a visa applicant for the purposes of the regulations if the advice is for the purpose of:

(a) the preparation or lodging of an approved form putting forward the name of a visa applicant; or

(b) the preparation or lodging of an approved form undertaking sponsorship; or

(c) proceedings before a review authority that relate to the visa for which the person was nominating or sponsoring a visa applicant (or seeking to nominate or sponsor a visa applicant); or

(d) the review by a review authority of a decision relating to the visa for which the person was nominating or sponsoring the visa applicant (or seeking to nominate or sponsor the visa applicant).

22 At the end of section 279

Add:

(2) Division 3 of Part VIIC of the Crimes Act 1914 applies in relation to the Migration Agents Registration Authority as if it were a Commonwealth authority for the purposes of that Division.

23 After section 279

Insert:

279A Application of the Criminal Code

Chapter 2 (except Part 2.5) of the Criminal Code applies to all offences created by this Part.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

24 Subsection 280(1) (penalty)

Omit “$5,000”, substitute “50 penalty units”.

25 At the end of subsections 280(1), 281(1) and (2) and 282(1) and (2)

Add:

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

26 Subsection 282(4)

Repeal the subsection, substitute:

(4) For the purposes of this section, a person makes immigration representations if he or she makes representations to, or otherwise communicates with, the Minister, a member of the Minister’s staff or the Department:

(a) on behalf of a visa applicant about the application for the visa; or

(b) on behalf of a cancellation review applicant about the cancellation review application; or

(c) on behalf of a person nominating (or seeking to nominate) a visa applicant for the purposes of the regulations, about the nomination; or

(d) on behalf of a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations, about the sponsorship.

27 Subsection 283(2)

Omit “, knowingly or recklessly,”.

28 At the end of section 283 and subsection 284(1)

Add:

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

29 Subsection 285(1)

Omit “, knowingly or recklessly,”.

30 At the end of subsection 285(1)

Add:

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

31 Subsections 287(1), (3) and (4) and 288(1)

Omit “Secretary”, substitute “Migration Agents Registration Authority”.

32 After subsection 288(1)

Insert:

(1A) The individual must publish in the prescribed way a notice:

(a) stating his or her intention to apply for registration; and

(b) stating that anyone may give the Migration Agents Registration Authority a written objection to registration of the individual, within 30 days after publication of the notice (or 30 days after the day on which the notice is last published, if it must be published more than once).

33 Subsection 288(3)

Repeal the subsection, substitute:

(3) The form must require the information shown in the table.

Information to be required by form
Item	Capacity in which applicant proposes to give immigration assistance	Information required
1	Employee of an individual	Particulars of the individual
2	Executive officer or employee of a corporation	Particulars of the corporation and its executive officers
3	Employee or member of a partnership	Particulars of the partnership

34 At the end of section 288

Add:

(4) The Migration Agents Registration Authority must not consider a registration application unless the applicant has:

(a) paid the registration application fee (if any) on the application; and

(b) published notice under subsection (1A) of his or her intention to apply; and

35 Sections 289 to 298 (inclusive)

Repeal the sections, substitute:

289 Registration

(1) The Migration Agents Registration Authority must register an applicant by entering his or her name in the Register, unless section 290, 291, 292, 293 or 294 prohibits registration of the applicant.

Note: If the Migration Agents Registration Authority is considering refusing a registration application because of one or more of those sections, it must give the applicant a chance to make a further submission supporting the application. See sections 309 and 310.

(2) The Migration Agents Registration Authority must do so as soon as possible, but not before the end of the time for objections that was specified in the notice of the applicant’s intention to apply for registration.

(3) The Migration Agents Registration Authority must consider any objection received within that time when deciding whether section 290, 291, 292, 293 or 294 prohibits registration of the applicant.

290 Applicant must not be registered if not a person of integrity or not fit and proper

(1) An applicant must not be registered if the Migration Agents Registration Authority is satisfied that:

(a) the applicant is not a fit and proper person to give immigration assistance; or

(b) the applicant is not a person of integrity; or

(c) the applicant is related by employment to an individual who is not a person of integrity and the applicant should not be registered because of that relationship.

(2) In considering whether it is satisfied that the applicant is not fit and proper or not a person of integrity, the Migration Agents Registration Authority must take into account:

(a) the extent of the applicant’s knowledge of migration procedure; and

(b) whether the applicant has a qualification prescribed by the regulations or a knowledge of migration procedure that the Authority considers to be sound; and

(i) a fit and proper person to give immigration assistance; or

(ii) a person of integrity;

(except a conviction that is spent under Part VIIC of the Crimes Act 1914); and

(d) any criminal proceedings that the applicant is the subject of and that the Authority considers relevant to the application; and

(e) any inquiry or investigation that the applicant is or has been the subject of and that the Authority considers relevant to the application; and

(f) any disciplinary action that a professional association is taking, or has taken, against the applicant that the Authority considers relevant to the application; and

(g) any bankruptcy (present or past) of the applicant; and

(h) any other matter relevant to the applicant’s fitness to give immigration assistance.

(3) In considering whether it is satisfied that an individual to whom the applicant is related by employment is not a person of integrity, the Migration Agents Registration Authority must take into account each of the following matters, so far as the Authority considers it relevant to the question whether the individual is not a person of integrity:

(a) any conviction of the individual of a criminal offence (except a conviction that is spent under Part VIIC of the Crimes Act 1914);

(b) any criminal proceedings that the individual is the subject of;

(d) any disciplinary action that a professional association is taking, or has taken, against the individual;

(e) any bankruptcy (present or past) of the individual.

291 Applicant must not be registered if registration refused in past year

An applicant must not be registered if he or she has been refused registration as a migration agent within 12 months before his or her application.

292 Applicant must not be registered if registration cancelled in past 5 years

An applicant must not be registered if his or her registration as a migration agent has been cancelled under section 303 within 5 years before the application.

293 Applicant under 18 must not be registered

An applicant must not be registered if he or she is under 18.

294 Applicant must not be registered if not an Australian citizen, permanent resident or New Zealander with special visa

An applicant must not be registered unless he or she is:

(a) an Australian citizen; or

(b) an Australian permanent resident (within the meaning of the regulations); or

295 Notice of refusal of application

If the Migration Agents Registration Authority decides not to register an applicant, the Authority must give the applicant written notice of the decision and of the reasons for it.

Note: The applicant may apply to the Administrative Appeals Tribunal for review of the decision. See section 306 of this Act. (Section 27A of the Administrative Appeals Tribunal Act 1975 requires that people whose interests are affected by the Authority’s decision be given notice of their rights to seek review of the decision.)

36 Section 300 and subsection 301(1)

Omit “Board”, substitute “Migration Agents Registration Authority”.

37 Subsection 301(2)

Repeal the subsection.

38 Subsection 302(1)

Omit “Secretary”, substitute “Migration Agents Registration Authority”.

39 Paragraph 302(1)(a)

Omit “Board”, substitute “Authority”.

40 Paragraph 302(1)(b)

Omit “months”, substitute “weeks”.

41 Subsection 302(2)

Repeal the subsection.

42 Section 303

Omit “Board”, substitute “Migration Agents Registration Authority”.

43 At the end of section 303

Add:

Note: If the Migration Agents Registration Authority is considering cautioning a registered agent, or suspending or cancelling a registered agent’s registration, it must invite the registered agent to make a submission. See sections 309 and 310.

44 Subsection 304(1)

Omit “Board” (twice occurring), substitute “Migration Agents Registration Authority”.

45 Section 305

Repeal the section, substitute:

305 Notice of cancellation or suspension of registration

(1) If the Migration Agents Registration Authority cancels or suspends the registration of a registered agent, the Authority must:

(a) give the agent written notice of the cancellation or suspension and of the reasons for it; and

(b) publish in the prescribed way a statement that:

(i) sets out the decision to cancel or suspend registration; and

(ii) sets out the reasons for the decision; and

(iii) sets out the Authority’s findings on any material questions of fact; and

(iv) refers to the evidence or any other material on which the findings of fact were based.

Note: Section 27A of the Administrative Appeals Tribunal Act 1975 requires that people whose interests are affected by the Authority’s decision be given notice of their rights to seek review of the decision.

(2) The statement must be published as soon as possible after the end of 28 days after the agent is given written notice of the decision.

(3) However, if:

(a) the agent applies within those 28 days for review of the decision under the Administrative Appeals Tribunal Act 1975 or for judicial review of the decision; and

(b) the decision stands at the end of all the proceedings (including any appeals) resulting from the application;

the statement must be published as soon as possible after the end of those proceedings.

46 Section 306

Omit “Board”, substitute “Migration Agents Registration Authority”.

47 Division 4 of Part 3 (heading)

Repeal the heading, substitute

Division 4—Investigations and decision‑making by the Migration Agents Registration Authority

48 Sections 307 and 308

Repeal the sections, substitute:

308 Requiring registered agents to give information

(1) The Migration Agents Registration Authority may require a registered agent:

(a) to make a statutory declaration in answer to questions in writing by the Authority; or

(b) to appear before an individual specified by the Authority and to answer questions; or

(2) An individual before whom a registered agent appears to answer questions must record the questions and answers and give the record to the Migration Agents Registration Authority.

(3) A registered agent is not excused from giving information or providing a document on the ground that the information or provision of the document may tend to incriminate the person.

(4) However:

(a) any information or document provided in response to a requirement under subsection (1); and

(b) any information or thing (including any document) obtained as a direct or indirect result of information or a document provided in response to a requirement under subsection (1);

is not admissible in evidence against the registered agent in any criminal proceedings (except proceedings for an offence against section 487).

49 Subsections 309(1) and (2) and 310(1), (2) and (3), section 311 and subsection 312(1)

Omit “Board”, substitute “Migration Agents Registration Authority”.

Note: The headings to sections 310 and 311 are altered by omitting “Board” and substituting “Migration Agents Registration Authority”.

50 Subsection 312(1) (penalty)

Omit “$10,000”, substitute “100 penalty units”.

51 At the end of subsection 312(1)

Add:

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

52 Subsection 312(2)

Repeal the subsection, substitute:

(2) Within 2 weeks of the renewal of a registered agent’s registration, he or she must give the Migration Agents Registration Authority the relevant information shown in the table.

Information a registered agent must give after registration renewal
Item	Capacity in which the agent gave immigration assistance at the time of the renewal	Information required
1	Employee of an individual	Particulars of the individual
2	Executive officer or employee of a corporation	Particulars of the corporation and its executive officers
3	Employee or member of a partnership	Particulars of the partnership

53 Before subsection 313(1)

Insert:

(1A) This section deals with fees and rewards for giving immigration assistance to a person (the assisted person) who is:

(a) a visa applicant; or

(b) a cancellation review applicant; or

(d) a person sponsoring (or seeking to sponsor) a visa applicant for the purposes of the regulations.

54 Subsection 313(1)

Omit “entrance applicant or cancellation review applicant” (twice occurring), substitute “assisted person”.

55 Subsection 313(3)

Repeal the subsection, substitute:

(3) An assisted person may recover the amount of a payment as a debt due to him or her if he or she:

(a) made the payment to a registered agent for giving immigration assistance; and

(b) did not receive a statement of services before making the payment; and

(c) does not receive a statement of services within 28 days after a final decision is made about the visa application, cancellation review application, nomination or sponsorship that the immigration assistance related to.

56 Division 6 of Part 3 (heading)

Repeal the heading, substitute:

Division 6—Migration Agents Registration Authority

57 Section 315

Repeal the section, substitute:

315 Appointing the Migration Institute of Australia Limited as the Migration Agents Registration Authority

(1) The Minister may make a written instrument appointing the Institute for the purposes of the definition of Migration Agents Registration Authority in section 275.

Note: The Minister may also revoke the appointment. See subsection 33(3) of the Acts Interpretation Act 1901.

(2) An appointment or revocation of an appointment does not affect an earlier exercise of a power, or performance of a function, of the Migration Agents Registration Authority. Anything done by, or in relation to, the person who was the Authority before the appointment or revocation, is taken to have been done by, or in relation to, the person who is the Authority afterwards.

58 Section 316

Omit “Board”, substitute “Migration Agents Registration Authority”.

Note: The heading to section 316 is altered by omitting “Board” and substituting “Migration Agents Registration Authority”.

59 Paragraph 316(g)

Omit “and advise the Minister on”.

60 At the end of section 316

Add:

(2) So long as the Institute is appointed under section 315, the Migration Agents Registration Authority also has the function of advising the Minister on the adequacy of any Code of Conduct.

61 Sections 317 to 332 (inclusive)

Repeal the sections, substitute:

317 General powers of the Migration Agents Registration Authority

The Migration Agents Registration Authority has power to do all things necessarily or conveniently done for, or in connection with, the performance of its functions.

318 Power to refer people to mediation

If the Migration Agents Registration Authority is investigating a complaint about a registered agent, the Authority may refer the complainant and the agent to a mediator to resolve the matter complained of.

319 Power to refer lawyers’ conduct to other authorities

(1) The Migration Agents Registration Authority may refer to an authority responsible for disciplining lawyers the conduct of a registered agent who holds a practising certificate (however described) entitling him or her to practise as a lawyer.

(2) If the Migration Agents Registration Authority does so, it may not take action against the agent under section 303 on the basis of that conduct.

Note: Section 303 allows the Migration Agents Registration Authority to caution a registered agent or suspend or cancel a registered agent’s registration.

320 Delegation of powers and functions

(1) The Minister may delegate any of the Migration Agents Registration Authority’s powers or functions under this Part to an officer of the Department for any period when the Institute is not appointed under section 315.

(2) A delegation must be in writing signed by the Minister.

(3) If the Minister delegates a power or function of the Migration Agents Registration Authority, the Minister may disclose to the delegate personal information (as defined in the Privacy Act 1988) to help the delegate exercise the power or perform the function.

321 Disclosure of personal information to the Migration Agents Registration Authority

Overview

(1) This section authorises certain disclosures of personal information (as defined by the Privacy Act 1988) for the purpose of facilitating or expediting the exercise of the powers, or performance of the functions, of the Migration Agents Registration Authority.

Disclosure by the Department to the Authority

(2) The Department may make a disclosure to the Migration Agents Registration Authority.

Disclosure by the Minister

(3) If the Minister appoints the Institute under section 315, the Minister may make a disclosure to the Institute or an officer or employee of the Institute.

Note: Section 315 lets the Minister appoint the Institute for the purposes of the definition of Migration Agents Registration Authority in section 275.

Preliminary disclosure to the Institute

(4) The Department or the Minister may make a disclosure to the Institute or an officer or employee of the Institute at a time when the Minister has made an instrument appointing the Institute under section 315 but the instrument has not taken effect.

Section not limited to information obtained after commencement

(5) The Department or the Minister may disclose information whether it was obtained before or after the commencement of this section.

322 Annual report

(1) If an appointment of the Institute under section 315 is in force at the end of a financial year, the Institute must give a report on the administration of this Part during the financial year to the Minister for presentation to the Parliament.

Note: Section 34C of the Acts Interpretation Act 1901 explains when the Institute must give the report to the Minister, and when the Minister must cause the report to be tabled in each House of the Parliament.

(2) If an appointment of the Institute under section 315 is not in force at the end of the financial year, the Minister must cause to be tabled in each House of the Parliament a report on the administration of this Part during the financial year, before the end of the 15th sitting day of that House after the 31 December immediately following the financial year.

62 After Division 6 of Part 3

Insert:

Division 6A—Collecting and applying registration application fees and renewal fees

332A Regulations about collection of fees

The regulations may make provision for and in relation to:

(a) the time for payment of registration application fees and renewal fees; and

(b) the recovery of registration application fees and renewal fees.

332B Payments to Migration Institute of Australia Limited

(1) There is payable to the Institute out of the Consolidated Revenue Fund an amount equal to the sum of registration application fees and renewal fees collected while an instrument under section 315 appointing the Institute is in force.

(2) The Consolidated Revenue Fund is appropriated for the purposes of this section.

63 Division 7 of Part 3 (heading)

Repeal the heading, substitute:

Division 7—Part ceases to be in force on 21 March 2000

64 Subsection 333(1)

Omit “1998”, substitute “2000”.

Note: The heading to section 333 is altered by omitting “1998” and substituting “2000”.

65 Subsection 333(2)

Repeal the subsection, substitute:

(2) The powers under this Part for investigation and disciplinary action cease to be available when this Part ceases to be in force, even if the investigation or action:

(a) has already begun when this Part ceases to be in force; or

(b) relates to a period when this Part was in force.

(This subsection does not limit subsection (1), but has effect despite Part III of the Acts Interpretation Act 1901.)

66 Subsection 333(4)

Omit “and renewal fees paid later than 21 March 1997”, substitute “paid after 21 March 1999”.

Part 2—Application and transitional provisions

67 Migration Agents Registration Board may disclose personal information

The Migration Agents Registration Board may disclose to the Department personal information (as defined by the Privacy Act 1988) that:

(a) is relevant to the exercise of the Board’s powers or the performance of the Board’s functions; or

(b) may help the Migration Agents Registration Authority exercise its powers or perform its functions under the Migration Act 1958 as amended by this Act.

68 Department may disclose personal information

(1) This item authorises certain disclosures of personal information (as defined by the Privacy Act 1988) for the purpose of facilitating or expediting the exercise of the powers, or performance of the functions, of the Migration Agents Registration Authority under the Migration Act 1958 as amended by this Act.

(2) The Department may make a disclosure to the Migration Institute of Australia Limited (A.C.N. 003 409 390) (the Institute) or an officer or employee of the Institute at a time before 21 March 1998 if the Minister has made an instrument before that time appointing the Institute under section 315 of that Act.

Note: Section 4 of the Acts Interpretation Act 1901 lets the Minister make such an instrument before 21 March 1998.

(3) For the purposes of subitem (2), it does not matter when the Department obtained the personal information disclosed.

69 Transitional provision for Register of Migration Agents

The Register of Migration Agents continues in force, despite the amendment of section 287 of the Migration Act 1958 by item 31.

Note: This means that a migration agent who was registered immediately before that amendment continues to be a registered agent after that amendment until his or her registration expires or is cancelled or suspended, or he or she is deregistered.

70 Applications for registration made before 21 March 1998

(1) This item makes special provision for an individual’s application to be registered as a registered agent if:

(a) the application was made under section 288 of the Migration Act 1958 before 21 March 1998; and

(b) the applicant had not been registered as a result of the application before that day; and

(c) neither the Secretary nor the Migration Agents Registration Board had made a decision before that day not to register the applicant.

(2) Part 3 of the Migration Act 1958 as amended by this Schedule applies to the application as if the applicant had made the application to the Migration Agents Registration Authority.

(3) That Part applies as if the application were made on the form approved for the purposes of subsection 288(2) of the Migration Act 1958 as in force on and after 21 March 1998.

(4) That Part applies as if any registration application fee on the application had been paid, if:

(a) the applicant had paid levy on the application under the Migration Agents Registration (Application) Levy Act 1992; or

(b) the application was exempt from levy under that Act.

(5) If the Secretary had published notice of the application in the Gazette and a statement under subsection 289(1) of the Migration Act 1958 as in force before 21 March 1998, Part 3 of that Act as in force on and after that day applies as if:

(a) the applicant had given notice of his or her intention to apply for registration under subsection 288(1A) of that Act (as in force on and after 21 March 1998); and

(b) the notice given by the applicant had stated that the time for objections ended 6 weeks after the day the Secretary published notice of the application.

(6) In deciding whether the applicant should be registered, the Migration Agents Registration Authority must consider an objection to registering the applicant, even if it was made to the Secretary before 21 March 1998.

Note: The Migration Agents Registration Authority may also consider any further submission requested by the Migration Agents Registration Board under section 309 of the Migration Act 1958. See item 78.

71 Application of section 291 of the Migration Act 1958

Section 291 of the Migration Act 1958 (as in force after the commencement of item 35) applies to a refusal of an application for registration, whether the refusal occurred before or after the commencement of that item.

72 Application of section 292 of the Migration Act 1958

Section 292 of the Migration Act 1958 (as in force after the commencement of item 35) applies to a cancellation of a migration agent’s registration, whether the cancellation occurred before or after the commencement of that item.

73 Special arrangements for renewal of registration of some migration agents in the voluntary sector

(1) This item makes special provision for a registered agent if:

(a) the agent’s registration is due for renewal under section 300 of the Migration Act 1958 on or after 21 March 1998 but no later than 20 September 1998; and

(b) the agent gives immigration assistance only as an employee of, or a voluntary worker for, a person or organisation that does not charge people receiving the assistance a fee, or require any other reward from them, for the assistance.

(2) Paragraph 302(1)(b) of the Migration Act 1958 has effect in relation to the renewal occurring in 1998 as if that paragraph referred to 6 months instead of 2 weeks.

Note: This gives the agent 6 months (rather than 2 weeks) to pay the renewal fee.

(3) The Migration Agents Registration Authority must deregister the agent by removing his or her name from the Register of Migration Agents if, 6 months after the renewal in 1998 of the agent’s registration, the Authority is satisfied that the agent is not a fit and proper person to give immigration assistance because the agent does not have either:

(a) a qualification prescribed by the regulations for the purposes of paragraph 290(2)(b) of the Migration Act 1958; or

(b) a knowledge of migration procedure that the Authority considers to be sound.

(4) Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision of the Migration Agents Registration Authority made under this item.

74 Cancellations, suspensions and cautions continue to have effect

If an agent’s registration was cancelled or suspended, or an agent was cautioned, under section 303 of the Migration Act 1958 before 21 March 1998, the cancellation, suspension or caution is not affected by the amendment of that section by this Schedule.

75 AAT proceedings relating to the Migration Agents Registration Board

(1) This item extends subsection 43(1) of the Administrative Appeals Tribunal Act 1975 for the purposes of an application made at any time to the Administrative Appeals Tribunal (in accordance with that Act) for review of a decision the Migration Agents Registration Board made under Division 3 of Part 3 of the Migration Act 1958 before 21 March 1998.

Note: Subsections 3(2) and 25(7) of the Administrative Appeals Tribunal Act 1975 allow the President of the Administrative Appeals Tribunal to specify a person to take the place of the Migration Agents Registration Board in proceedings before the Tribunal on or after 21 March 1998.

(2) Without limiting subsection 43(1) of the Administrative Appeals Tribunal Act 1975, the Tribunal may:

(a) exercise the powers and discretions of the Migration Agents Registration Authority for the purpose of varying the Board’s decision or substituting another decision for the Board’s decision; or

(b) remit the matter to the Migration Agents Registration Authority for consideration in accordance with any directions or recommendations of the Tribunal.

76 Continuation of investigations requested by Migration Agents Registration Board

(1) An investigation arranged by the Secretary at the request of the Migration Agents Registration Board may be completed, despite the repeal of section 307 of the Migration Act 1958 by this Act.

(2) The report of the investigation may be given to the Migration Agents Registration Authority, together with any material relevant to the consideration by the Authority of:

(a) a registration application; or

(b) a possible disciplinary action under section 303 of the Migration Act 1958.

(3) A report or material arising out of an investigation requested by the Migration Agents Registration Board of a complaint about a registered agent relating to his or her provision of immigration assistance may be given to the Migration Agents Registration Authority only if the complainant agrees to its being given to the Authority.

77 Information required by Board

If, before 21 March 1998:

(a) the Migration Agents Registration Board requires a registered agent to make a statutory declaration or provide specified documents or records under section 308 of the Migration Act 1958; and

(b) the declaration, documents or records have not been given to the Board;

the declaration, documents or records must be given to the Migration Agents Registration Authority as soon as possible after that day.

78 Submissions to the Board under section 309

The Migration Agents Registration Authority may take into account any submission that the Migration Agents Registration Board invited a person to make under section 309 of the Migration Act 1958, when the Authority is making a decision about exercising its powers or performing its functions.

79 Obligations after renewal of registration

(1) The amendments made by items 40 and 52 do not apply to renewals of registration occurring before 21 March 1998.

(2) A person whose registration was renewed after 20 January 1998 but before 21 March 1998 may satisfy the requirements of subsection 312(2) of the Migration Act 1958 by giving the information described in paragraph 312(1)(b) of that Act to the Migration Agents Registration Authority on or after 21 March 1998 but before the end of 2 months after the renewal.

80 First report under section 322

The report under section 322 relating to the financial year ending at the end of 30 June 1998 is to cover the administration of Part 3 of the Migration Act 1958 only for the period from 21 March 1998 to 30 June 1998 (inclusive).

81 Final report

(1) If an appointment of the Institute under section 315 of the Migration Act 1958 is in force immediately before the day (the sunset day) that Part 3 of that Act ceases to be in force because of section 333 of that Act, the Institute must give to the Minister for presentation to the Parliament a report on the administration of that Part during the period:

(a) starting on the last 1 July before the sunset day; and

(b) ending immediately before the sunset day.

(2) The Institute must give the Minister the report within 42 days after the sunset day.

(3) The Minister must cause the report to be tabled in each House of the Parliament within 15 sitting days of that House after the day he or she receives the report.

(4) If an appointment of the Institute under section 315 of the Migration Act 1958 is not in force immediately before the sunset day, the Minister must cause to be tabled in each House of the Parliament a report on the administration of Part 3 of that Act during the period:

(a) starting on the last 1 July before the sunset day; and

(b) ending immediately before the sunset day.

(5) The Minister must cause the report to be tabled in each House of the Parliament under subitem (4) before the end of the 15th sitting day of that House after the end of the 42nd day after the sunset day.

Part 3—Amendment of the Migration Act 1958 consequential on new Public Service Act

82 Subsection 320(1)

Omit “an officer of the Department”, substitute “a person in the Department who is appointed or engaged under the Public Service Act 1997,”.

Schedule 2—Repeal of Levy Acts

Migration Agents Registration (Application) Levy Act 1992

1 The whole of the Act

Repeal the Act.

Migration Agents Registration (Renewal) Levy Act 1992

2 The whole of the Act

Repeal the Act.

Schedule 3—Continuing professional development of registered agents

Part 1—Object of this Schedule

1 Object

This Schedule makes amendments to provide for continuing professional development of registered agents by:

(a) requiring migration agents to apply for registration each year; and

(b) requiring applicants for repeat registration to meet prescribed standards of continuing professional development (as well as standards of good character).

Part 2—Amendment of the Migration Act 1958 commencing on 21 January 1999

2 At the end of subsection 288(1A)

Add:

This requirement does not apply to an individual who has been registered at some time in the 12 months immediately before making the application.

3 Subsection 288(4)

Repeal the subsection, substitute:

(4) The Migration Agents Registration Authority must not consider a registration application unless the applicant has paid the application fee (if any) on the application.

(5) If the applicant is required under subsection (1A) to publish notice, the Migration Agents Registration Authority must not consider a registration application unless the applicant has:

(a) published the notice as required; and

(b) given the Authority evidence of the publication.

4 Subsection 289(1)

After “290,”, insert “290A,”.

5 Subsections 289(2) and (3)

Repeal the subsections, substitute:

(2) The Migration Agents Registration Authority do so as soon as possible.

(3) If the applicant was required to publish notice of his or her intention to apply for registration:

(a) the Authority must not register the applicant before the end of the time for objections that was specified in the notice, despite subsection (2); and

(b) the Authority must consider any objection received within that time when deciding whether section 290, 291, 292, 293 or 294 prohibits registration of the applicant.

(4) If the Migration Agents Registration Authority enters in the Register the name of an applicant who is already registered, the later registration takes effect at the end of the existing registration (unless the existing registration is cancelled before it would end under section 299).

6 After section 290

Insert:

290A Applicant for repeat registration must not be registered if he or she has not done continuing professional development

If the applicant has been registered at some time in the 12 months before making the application, he or she must not be registered if the Migration Agents Registration Authority is satisfied that the applicant has not met the requirements prescribed by the regulations for continuing professional development of registered agents.

Part 3—Amendment of the Migration Act 1958 commencing on 21 February 1999

7 Section 301

Repeal the section, substitute:

301 Migration Agents Registration Authority must warn of expiry

One month before the period for which a registered agent is registered will end under section 299, the Migration Agents Registration Authority must give the agent a written notice stating when the period will end.

Part 4—Amendment of the Migration Act 1958 commencing on 21 March 1999

8 Section 275 (definition of renewal fee)

Repeal the definition.

9 Paragraph 287(2)(e)

After “registered”, insert “most recently”.

10 Paragraph 287(2)(f)

Repeal the paragraph.

11 Subsection 299(2)

Repeal the subsection.

12 Section 300

Repeal the section.

13 Paragraphs 302(1)(b) and (c)

Repeal the paragraphs.

14 Subsection 312(2)

Repeal the subsection.

15 Division 6A (heading)

Repeal the heading, substitute:

Division 6A—Collection and application of registration application fees

16 Paragraphs 332A(a) and (b)

Omit “and renewal fees”.

17 Subsection 332B(1)

Omit “and renewal fees”.

18 Collection and application of renewal fees on and after 21 March 1999

(1) Amounts of charge imposed by the Migration Agents Registration Renewal Charge Act 1997 before 21 March 1999 must be paid and can be recovered as if the amendments made by items 8, 15 and 16 had not been made.

(2) The Migration Agents Registration Authority must deregister a registered agent who fails to pay within 2 weeks of the renewal of his or her registration any charge imposed by the Migration Agents Registration Renewal Charge Act 1997 on that renewal, despite the repeal of paragraph 302(1)(b) of the Migration Act 1958 by item 13.

(3) The amendment of section 332A of the Migration Act 1958 by item 16 does not affect any regulations made in reliance on that section before 21 March 1999, so far as they relate to charge imposed by the Migration Agents Registration Renewal Charge Act 1997.

(4) The amendment of section 332B of the Migration Act 1958 by item 17 does not affect the operation of that section so far as it relates to charge imposed by the Migration Agents Registration Renewal Charge Act 1997.

19 Continuation of registration renewed after 21 March 1998 and before 21 March 1999

The repeal of subsection 299(2) of the Migration Act 1958 by item 11 does not affect the continuation of a registration renewed after 21 March 1998 and before 21 March 1999.

20 Continued obligation to provide information after renewal of registration

(1) A registered agent whose registration was renewed after 6 March 1999 must give the Migration Agents Registration Authority the information described in subsection 312(2) of the Migration Act 1958 (as in force at the time of the renewal) within 2 weeks of the renewal, despite the repeal of that subsection by item 14.

(2) The Migration Agents Registration Authority must deregister a registered agent who fails to provide that information within that time, despite the repeal of paragraph 302(1)(c) of the Migration Act 1958 by item 13.

Part 5—Repeal of the Migration Agents Registration Renewal Charge Act 1997

21 The whole of the Act

Repeal the Act.

[Minister's second reading speech made in the

House of Representatives on 1 October 1997

Senate on 11 November 1997]

(166/97)