Migration Amendment Act (No. 3) 1992

Part VIIC of the Crimes Act 1914 to apply to this Part

“114E. Despite paragraph 85ZZH(d) of the Crimes Act 1914, Part VIIC of that Act applies to this Part.

“Division 2—Restrictions on giving of immigration assistance and making of immigration representations

Restrictions on giving of immigration assistance

“114F.(1) Subject to this section, a person who is not a registered agent must not give immigration assistance.

“(2) This section does not prohibit a parliamentarian from giving immigration assistance.

“(3) This section does not prohibit a lawyer from giving immigration legal assistance.

“(4) This section does not prohibit an official from giving immigration assistance in the course of his or her duties as an official.

“(5) This section does not prohibit an individual from giving immigration assistance if the assistance is:

“(6) This section does not prohibit an individual from giving immigration assistance in his or her capacity as:

“(7) In this section:

‘member of a consular post’ means a person who is a member of a consular post for the purposes of the Consular Privileges and Immunities Act 1972;

‘member of a diplomatic mission’ means a person who is a member of a mission for the purposes of the Diplomatic Privileges and Immunities Act 1967;

‘member of an office of an international organization’ means the holder of an office in, an employee of, or a voluntary worker for, a body that, under section 3 of the International Organizations (Privileges and Immunities) Act 1963, is an international organization within the meaning of that Act.

Restriction on charging fees for immigration assistance

“114G.(1) Subject to subsection (3), a person who is not a registered agent must not ask for or receive any fee or other reward for giving immigration assistance.

“(2) Subject to subsection (3), a person must not ask for or receive any fee or other reward for the giving of immigration assistance by another person who is not a registered agent.

“(3) This section does not prohibit:

“(4) A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).

Restriction on charging fees for immigration representations

“114H.(1) A person who is not a registered agent must not ask for or receive any fee or other reward for making immigration representations.

“(2) A person must not ask for or receive any fee or other reward for the making of immigration representations by another person who is not a registered agent.

“(3) A person is not entitled to sue for, recover or set off any fee or other reward that the person must not ask for or receive because of subsection (1).

“(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 (whether directly or indirectly and whether orally or in

writing) on behalf of an entrance applicant in relation to the entrance application.

False representation that a person is registered agent

“114J.(1) A person who is not a registered agent must not directly or indirectly represent that he or she is such an agent.

“(2) A person must not, knowingly or recklessly, directly or indirectly represent that another person who is not a registered agent is such an agent.

Restriction on self-advertising of the giving of immigration assistance

“114K.(1) Subject to this section, a person who is not a registered agent must not advertise that he or she gives immigration assistance.

“(2) This section does not prohibit a parliamentarian from advertising that he or she gives immigration assistance.

“(3) This section does not prohibit a lawyer from advertising that he or she gives immigration legal assistance.

“(4) This section does not prohibit an official from advertising that he or she gives immigration assistance in the course of acting as an official.

Restriction on other advertising of immigration assistance

“114L.(1) Subject to this section, a person must not, knowingly or recklessly, directly or indirectly advertise that another person who is not a registered agent gives immigration assistance.

“(2) This section does not prohibit a person from advertising that another person who is a parliamentarian gives immigration assistance.

“(3) This section does not prohibit a person from advertising that another person who is a lawyer gives immigration legal assistance.

“(4) This section does not prohibit a person from advertising that another person who is an official gives immigration assistance in the course of the official acting as an official.

“Division 3—Registration of migration agents

Individuals may be registered as migration agents

“114M. Individuals may be registered as migration agents in accordance with this Part.

Register of Migration Agents

“114N.(1) The Secretary must keep a register, to be known as the Register of Migration Agents, listing individuals who are registered as migration agents.

“(2) The Register is to show in respect of each registered agent:

(g) particulars of any suspension of the agent’s registration; and

(h) particulars of any caution given to the agent under paragraph 114ZE(c).

“(3) The Secretary must keep records to show:

“(4) The Secretary must make the Register available, in a suitable form and at reasonable times, for inspection by any person.

Application for registration

“114P.(1) An individual may apply to the Secretary to be registered as a registered agent.

“(2) A registration application is to be in the approved form and contain such information relevant to the application as is required by the form.

“(3) The information required by the form must include the following:

(i) an employee of an individual; or

(ii) an executive officer or employee of a corporation; or

(iii) a member or employee of a partnership—

particulars of the individual, the corporation and its executive officers, or the partnership;

(c) if the applicant proposes to give paid immigration assistance in no more than 5 immigration cases during the period of

registration—an estimate of the extent of the applicant’s proposed immigration assistance.

Notification of registration applications

“114Q.(1) On receiving a registration application, the Secretary must publish notice of it in the Gazette together with a statement that, within the next 6 weeks, any person may lodge with the Secretary an objection to the registration of the applicant.

“(2) A registration application is taken not to have been made unless any registration application fee payable by the applicant has been paid to the Commonwealth.

“(3) For the purposes of subsection (2), subsection 6(2) of the Migration Agents Registration (Application) Levy Act 1992 is taken to apply to an applicant who, at the time of making the application, proposes to give paid immigration assistance in no more than 5 immigration cases during the period of registration.

Secretary to consider certain registration applications

“114R. Unless the Secretary must deal with the application.section 114T or 114U applies to a registration application,

Board to consider certain registration applications

“114S. If section 114T or 114U applies to a registration application:

Certain registration applications to be referred to Board

“114T.(1) This section applies to a registration application if the applicant:

(i) is the holder of a prescribed qualification;

(ii) has, in the opinion of the Secretary, a sound knowledge of migration procedure.

“(2) This section also applies to a registration application if an objection to the registration of the applicant was received within 6 weeks after the publication of the notice of it.

“(3) This section also applies to a registration application if the Secretary is satisfied that there is evidence that:

“(4) In this section:

‘spent’, in relation to a conviction, has the same meaning as in Part YHC of the Crimes Act 1914.

Board may intervene in registration application

“114U. Within 8 weeks after the publication of notice of a registration application, the Board may give the Secretary notice in writing that he or she is not to deal with the application.

Qualifications of registered agent

“114V.(1) An applicant for registration as a migration agent must not be registered if:

“(2) An applicant for registration as a migration agent must not be registered if the application is dealt with by the Board and the Board is satisfied that:

(i) is related by employment to an individual who is not a person of integrity; and

(ii) should not be registered because of the fact described in subparagraph (i).

Matters taken into account in considering registration applications

“114W. The Board, when it is considering a registration application, must take into account:

Registration by Secretary

“114X. Subject to subsection 114V(1), the Secretary must register an applicant whose registration application is dealt with by him or her under section 114R as soon as practicable after the end of the period of 8 weeks from the publication of the notice of the application, by entering the applicant’s name in the Register.

Registration by Board

“114Y. Subject to section 114V, if the Board is satisfied that an individual whose registration application is dealt with by it under section 114S is a suitable person to be a registered agent, it must register the applicant by entering the name of the applicant in the Register.

Notification of refusals

“114Z. If the Secretary or the Board decides not to register an applicant for registration as a migration agent, the Secretary or Board, as the case may be, must give the applicant written notice of the decision and of the reasons for it.

Period of registration

“114ZA.(1) Subject to sections 114ZD and 114ZE and subsection (3), the registration of a registered agent lasts for 12 months after the registration.

“(2) Subject to sections 114ZD and 114ZE and subsection (3), when the registration of a registered agent is renewed, the registration continues for 12 months from the renewal.

“(3) If the registration of a registered agent is suspended for a period, the current period of the agent’s registration is extended by a period equal to that period of suspension.

Renewal of registration

“114ZB. If, at the end of a period for which a registered agent is registered, he or she is not about to be deregistered, the Board must renew his or her registration.

Notification of renewal of registration

“114ZC.(1) If, one month before the end of a period for which a registered agent is registered, he or she is not about to be deregistered, the Board must notify him or her that:

“(2) For the purposes of paragraph (1)(b), subsection 6(2) of the Migration Agents Registration (Renewal) Levy Act 1992 is taken to apply to an applicant who, at the time of the renewal, proposes to give paid immigration assistance in no more than 5 immigration cases during the period for which registration continues.

Automatic deregistration

“114ZD.(1) The Secretary must deregister a registered agent by removing his or her name from the Register if:

“(2) The Secretary must deregister a registered agent by removing his or her name from the Register if:

Discretionary cancellation or suspension of registration etc.

“114ZE. The Board may:

(c) caution him or her;

if it becomes satisfied that:

(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or

(g) an individual related by employment to the agent is not a person of integrity; or

(h) the agent has not complied with the Code of Conduct prescribed under section 114ZR.

Period of suspension

“114ZF.(1) If the Board suspends the registration of a registered agent under section 114ZE, the Board may:

“(2) If 2 or more conditions are set under paragraph (1)(b), one of them may be that at least a set period of suspension has ended.

Publication of cancellation or suspension of registration

“114ZG. If the Board cancels or suspends the registration of a registered agent, and it is no longer possible for the cancellation or suspension to be set aside on appeal, the Board must publish a statement that:

Review by the Administrative Appeals Tribunal

“114ZH. Subject to the Administrative Appeals Tribunal Act 1975, application may be made to the Administrative Appeals Tribunal for review of a decision by the Board made under this Division.

“Division 4—Investigations and decision-making by the Board

Investigations

“114ZJ. The Secretary may, at the request of the Board, arrange for the making of any investigation that the Board thinks necessary in order to fulfil its functions, and to give the Board a report of that

investigation together with any material relevant to the consideration by the Board of:

Board may require agent to give information

“114ZK.(1) The Board may at any time require a registered agent:

“(2) A single member of the Board before whom a registered agent appears to answer questions must record the questions and answers and provide them to the Board.

Persons may make submissions

“114ZL.(1) If the Board is considering refusing a registration application, the Board must inform the applicant of that fact and the reasons for it and invite the applicant to make a further submission in support of his or her application.

“(2) If the Board is considering the cancellation or suspension of a registered agent’s registration, or the cautioning of the agent, it must inform the agent of that fact and the reasons for it and invite the agent to make a submission on the matter.

“(3) In this section:

‘submission’ means:

Persons may appear before Board

“114ZM.(1) This section applies where the Board has invited a submission on a matter under section 114ZL.

“(2) If the Board does not receive a submission, it may decide the matter on the information before it.

“(3) If the Board receives a submission, it may:

Board not bound by legal forms etc.

“114ZN. The Board, in considering a registration application or a possible disciplinary action under section 114ZE:

“Division 5—Obligations of registered agents

Notification obligations

“114ZP.(1) A registered agent must notify the Board as soon as is reasonably possible after any of the following events occurs:

(i) a receiver of its property or part of its property is appointed;

(ii) it is placed under official management;

(iii) it begins to be wound up.

“(2) A registered agent whose registration is renewed must, within 2 months of the renewal, provide the Board with:

(i) an employee of an individual; or

(ii) an executive officer or employee of a corporation; or

(iii) a member or employee of a partnership—

particulars of the individual, the corporation and its executive officers, or the partnership; and

(c) if the applicant proposes to give paid immigration assistance in no more than 5 immigration cases in the period of registration— an estimate of the extent of the applicant’s proposed immigration assistance.

Persons charged for services to be given detailed statement of services

“114ZQ.(1) A registered agent is not entitled to be paid a fee or other reward for giving immigration assistance to an entrance applicant unless the agent gives the entrance applicant a statement of services.

“(2) A statement of services must set out:

“(3) Where:

that entrance applicant may recover the amount of the payment as a debt due to the entrance applicant.

“(4) This section does not apply to the giving of immigration legal assistance by a lawyer.

Code of Conduct for migration agents

“114ZR.(1) The regulations may prescribe a Code of Conduct for migration agents.

“(2) A registered agent must conduct himself or herself in accordance with the prescribed Code of Conduct.

“Division 6—Migration Agents Registration Board

Migration Agents Registration Board

“114ZS. A Migration Agents Registration Board is established.

Functions of Board

“114ZT. The functions of the Board are:

Directions by Minister

“114ZU. The Minister may direct the Board to conduct an investigation of a particular registered agent or applicant for registration as a migration agent.

Constitution of Board

“114ZV.(1) The Board consists of:

(i) a member who is a lawyer; and

(ii) a member with associations with ethnic community organisations; and

(iii) a member who is a registered agent.

“(2) The performance of the functions and the exercise of the powers of the Board are not affected merely because of vacancies in the membership of the Board.

“(3) A member of the Board holds office on a part-time basis.

The Chairperson

“114ZW.(1) Subject to subsection (2), the Chairperson is the Secretary.

“(2) The Secretary may appoint, in writing, an officer of the Department as the Chairperson.

“(3) A Chairperson appointed, under subsection (2) holds office under the conditions specified in the appointment.

The Board member of the Immigration Review Tribunal

“114ZX.(1) Subject to subsection (2), the member referred to in paragraph 114ZV(1)(b) is whichever of the Principal Member or Senior Members of the Immigration Review Tribunal as the Minister appoints in writing.

“(2) A member appointed under subsection (1) holds office under the conditions specified in the appointment.

Appointment of ordinary members

“114ZY. The ordinary members of the Board are to be appointed in writing by the Minister.

Term of Office

“114ZZ.(1) Subject to this Part, an ordinary member holds office for a term of 3 years, but is eligible for re-appointment.

“(2) If an ordinary member ceases to hold office before the end of his or her term of appointment, another person may be appointed in his or her place in accordance with this Act for a full term.

Remuneration and allowances

“114ZZA. The members of the Board are to be paid such remuneration and allowances as are determined by the Minister in writing.

Leave of absence

“114ZZB. The Minister may grant an ordinary member of the Board permission to be absent from a meeting of the Board.

Other terms and conditions

“114ZZC. An ordinary member holds office on such terms and conditions (if any) in respect of matters not provided for by this Act as are determined by the Minister in writing.

Board members not to be sued

“114ZZD. A member of the Board is not liable to an action, suit or proceeding for or in relation to any act done, or omitted to be done, in good faith in the performance or exercise, or the purported performance or exercise, of a function, power or authority given by this Part.

Resignation

“114ZZE. An ordinary member may resign by writing signed by him or her and sent to the Minister.

Disclosure of interests

“114ZZF.(1) A member who has a conflict of interest in relation to a matter before the Board:

(a) must disclose the matters giving rise to that conflict to the person making a registration application or other person concerned in the matter (‘applicant’) and to:

(i) if the member is the Chairperson—the Minister; and

(ii) in any other case—the Chairperson; and

(b) must not take part in any discussion of or action on the matter unless:

(i) where the member is the Chairperson—the applicant and the Minister consent; or

(ii) in any other case—the applicant and the Chairperson consent.

“(2) For the purposes of this section, a member has a conflict of interest in relation to a matter before the Board if the member has any interest, pecuniary or otherwise, that could conflict with the proper performance of the member’s functions in relation to that matter.

Removal from office

“114ZZG.(1) The Minister may remove an ordinary member from office on the ground of proved misbehaviour or physical or mental incapacity.

“(2) The Minister may remove an ordinary member from office if:

Meetings of Board

“114ZZH.(1) The Chairperson of the Board may call a meeting of the Board at any time.

“(2) The Chairperson of the Board is to preside at all meetings of the Board.

“(3) At a meeting of the Board:

(a) the Chairperson, the member appointed under subparagraph 114ZV(1)(c)(i) and one other member constitute a quorum; and

“(4) The Board must keep minutes of its meetings.

“(5) Subject to this Part, the Board may adopt its own procedure.

Powers of Board

“114ZZJ. The Board has power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions.

Secretarial assistance

“114ZZK. The Department must provide the Board with such accommodation and secretarial and other services as are required for the Board to perform its functions.

“Division 7—Part to last 3 years

Part ceases to be in force 3 years after commencement

“114ZZL.(1) This Part ceases to be in force at the end of 3 years after the commencement of the Migration Amendment Act (No. 3) 1992 (‘commencement day’).

“(2) Without limiting subsection (1), any investigation, or disciplinary action, being taken by, or at the request of, the Board when this Part ceases to be in force ends when this Part so ceases.

“(3) The fact that this Part ceases to be in force does not affect any penalty or other punishment imposed, or any other liability incurred, because of an offence under this Part.

“(4) The regulations may provide for the refund of all or part of registration application fees and renewal fees paid later than 2 years after commencement day.

“PART 2B—OFFENCES RELATING TO DECISIONS UNDER ACT

Offences in relation to false or misleading statements regarding the making of decisions

“114ZZM.(1) A person must not knowingly or recklessly make a false or misleading statement about:

to induce or influence the making of decisions, or of a particular decision, under this Act.

“(2) A person must not knowingly or recklessly make a false or misleading statement about the effect of:

on the making of a decision under this Act.

Offence of undertaking, for reward, to cause decisions to be made etc.

“114ZZN. A person must not enter an arrangement under which he or she undertakes, in return for a payment or other reward, that a decision under this Act to a particular effect will be made.

Court may order reparation for loss suffered

“114ZZP.(1) Where:

the court may, in addition to any penalty imposed on the offender, order the offender to make to the other person such reparation (whether by payment of money or otherwise) as the court thinks fit.

“(2) Where:

(i) the amount ordered to be paid; and

(ii) the person by whom the amount is to be paid; and

(iii) the person to whom the amount is to be paid; and

(c) the certificate is filed in a court having civil jurisdiction to the extent of the amount to be paid;

the certificate is enforceable in all respects as a final judgment of the court in which the certificate is filed.

“(3) The court may not, under subsection (1), order reparation in respect of an amount paid by a person if that amount has been recovered by the person under section 114ZQ.

“(4) If an amount paid by a person could be recovered by the person under section 114ZQ, the following provisions apply:

(a) if, under subsection (1), a court orders the person to whom the amount was paid to make reparation to the first person, the court must state in the order whether the reparation ordered includes reparation for the amount paid;

(b) if a court states in an order under subsection (1) that the reparation ordered is or includes reparation for the amount paid, the amount is not recoverable under section 114ZQ.”.

Transitional provision on practice as a migration agent

5.(1) In this section, expressions have the same meanings as in Part 2A of the Principal Act as amended by this Act (“Agents Part”).

(a) the Board directs him or her to cease to hold himself or herself out as available to give immigration assistance; or

(b) he or she becomes a registered agent;

whichever is earlier.