Migration Agents Amendment Regulations 2005 (No. 1) (Cth)

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Migration Agents Amendment Regulations 2005 (No. 1)1

Select Legislative Instrument 2005 No. 131

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Migration Act 1958.

Dated 15 June 2005

P. M. JEFFERY

Governor-General

By His Excellency’s Command

AMANDA VANSTONE

Minister for Immigration and Multicultural and Indigenous Affairs

1Name of Regulations

These Regulations are the Migration Agents Amendment Regulations 2005 (No. 1).

2Commencement

These Regulations commence as follows:

  1. (a)

    on 1 July 2005 — regulations 1 to 4 and Schedule 1;

  2. (b)

    on 1 July 2006 — Schedule 2.

3Amendment of Migration Agents Regulations 1998

  1. (1)

    Schedule 1 amends the Migration Agents Regulations 1998, as amended by the Migration Agents Amendment Regulations 2004 (No.2).

  2. (2)

    Schedule 2 amends the Migration Agents Regulations 1998.

4Transitional

Regulation 6C of the Migration Agents Regulations 1998, inserted by item [8] of Schedule 1, applies to an application for registration:

  1. (a)

    made, but not decided by the Migration Agents Registration Authority, before 1 July 2005; or

  2. (b)

    made on or after 1 July 2005.

Schedule 1Amendments commencing on 1 July 2005

(regulation 3)

[1]Regulation 3J

omit

If

insert

  1. (1)

    If

[2]Regulation 3J

insert

  1. (2)

    To avoid doubt, if an authorised officer has reason to believe that a person has committed 2 or more offences of the same kind, he or she may serve a separate infringement notice on the person in accordance with this Division in respect of each alleged offence.

[3]After subregulation 3M (5)

insert

  1. (6)

    If 2 or more infringement notices are served on a person in respect of separate alleged offences, this regulation applies only in respect of the alleged offence or offences in respect of which the penalty is paid in accordance with subregulation (1).

[4]Regulation 3N, at the foot

insert

Example

An infringement notice may be withdrawn by an authorised officer for the purposes of further investigation of the alleged offence.

[5]Regulation 3O, at the foot

insert

Note In accordance with subregulation 3M (5), if an amount is refunded to a person under regulation 3O in respect of a penalty paid in accordance with an infringement notice that has been withdrawn, regulation 3M does not apply in relation to the alleged offence for which the infringement notice was issued. Accordingly, the person’s liability in relation to the alleged offence is not discharged, further proceedings may be taken in relation to the alleged offence and the person may be convicted of the alleged offence.

[6]Regulation 3Q

substitute

3QCan there be more than one infringement notice for the same offence?

If:

  1. (a)

    an infringement notice is served on a person in relation to an alleged offence; and

  2. (b)

    that infringement notice is withdrawn;

nothing in this Division prevents a further infringement notice being served on the person in relation to that alleged offence.

[7]Regulation 3XA, including the note

substitute

3XAApplication for repeat registration

An individual who applies for repeat registration must submit with the registration application an approved form identifying the average fees charged by the individual, as a registered migration agent, during the 12 months immediately before the individual applies for repeat registration.

Note See regulation 3 for the meaning of repeat registration.

[8]After regulation 6A

insert

6BPrescribed professional indemnity insurance

  1. (1)

    Subject to subregulation (2), for subsection 292B (1) of the Act, professional indemnity insurance for at least $250 000:

    1. (a)

      held by an individual; or

    2. (b)

      held by an organisation of which the individual is a director, employee or member;

is prescribed.

  1. (2)

    Subregulation (1) does not apply, before 1 July 2006, to an individual who acts as disclosed in the individual’s registration application:

    1. (a)

      solely on a non-commercial or non-profit basis; and

    2. (b)

      as a member of, or a person associated with, an organisation that operates in Australia solely on a non-commercial or non-profit basis.

Note From 1 July 2006, a registered migration agent who acts solely on the non-commercial basis described in subregulation (2) will be required to have professional indemnity insurance of the kind prescribed in subregulation (1).

  1. (3)

    An individual is taken to have complied with subregulation (1) if he or she:

    1. (a)

      is:

      1. (i)

        a member or employee of a partnership; or

      2. (ii)

        a director or employee of an incorporated legal practice; or

      3. (iii)

        a sole legal practitioner or an employee of a sole legal practitioner; and

    2. (b)

      has satisfied the Authority that he or she has a current legal practising certificate.

Note An individual described in subregulation (3) would already hold professional indemnity insurance for at least $250 000 as part of the requirements for their current legal practising certificate. The individual would not need to provide evidence of professional indemnity insurance to the Authority once the Authority is satisfied that the individual has the certificate.

An individual who is not mentioned in subregulation (3) will need to provide evidence to satisfy the Authority that the individual has professional indemnity insurance for at least $250 000.

6CRegistration application — Australian permanent resident

For paragraph 294 (1) (b) of the Act, Australian permanent resident means a non-citizen who is the holder of a permanent visa.

[9]Regulation 7D

omit

subsection 306AC (5)

insert

subsections 306AC (5) and 311H (2)

[10]Subparagraph 7D (a) (i)

omit

agent’s

insert

agent’s, or former registered migration agent’s,

[11]Paragraph 7D (b)

omit

agent’s

insert

agent’s, or former registered migration agent’s,

[12]Paragraph 7D (c)

omit

agent’s

insert

agent’s, or former registered migration agent’s,

[13]Paragraph 7D (d)

omit

agent’s

insert

agent’s, or former registered migration agent’s,

[14]Regulation 9, note 2

omit

s 273

insert

s 275

[15]Before regulation 10

insert

Part 4Miscellaneous

[16]After regulation 10

insert

11Approved forms

  1. (1)

    The Authority may, in writing, approve forms for:

    1. (a)

      use in making an application for registration; or

    2. (b)

      any other purpose authorised or required by these Regulations.

  2. (2)

    Each of the following is an approved form:

    1. (a)

      a paper form;

    2. (b)

      an interactive computer program that is made available at an Internet site operated under the authority of the Authority.

[17]Schedule 2, clause 2.3A

omit

The Authority recommends the holding of adequate professional indemnity insurance as a suitable arrangement.

[18]Schedule 2, paragraph 2.8 (a)

omit

writing; and

insert

writing to the client; and

[19]Schedule 2, clause 2.11, including the note

substitute

2.11 A registered migration agent must, when advertising:

  1. (a)

    include in the advertisement the words “Migration Agents Registration Number” or “MARN”, followed by the agent’s individual registration number; and

  2. (b)

    if the agent is advertising in a language other than English — include in the advertisement words in that other language equivalent to “Migration Agents Registration Number” or “MARN”, followed by the agent’s individual registration number.

Note 1 Advertising includes advertising on the Internet.

Note 2 Clause 2.12, which relates to implying a relationship with DIMIA or the Authority, also applies to the registered migration agent’s advertising mentioned in clause 2.11.

[20]Schedule 2, paragraph 2.17 (b)

after

client

insert

in writing

[21]Schedule 2, after clause 6.2

insert

6.2A For clause 6.2, the documents to which a client is entitled include (but are not limited to) documents that are:

  1. (a)

    provided by, or on behalf of, the client; and

  2. (b)

    paid for by, or on behalf of, the client;

such as passports, birth certificates, qualifications, photographs and other personal documents.

Schedule 2Amendment commencing on 1 July 2006

(regulation 3)

[1]Subregulations 6B (2) and (3), including the notes

substitute

  1. (2)

    An individual is taken to have complied with subregulation (1) if he or she:

    1. (a)

      is:

      1. (i)

        a member or employee of a partnership; or

      2. (ii)

        a director or employee of an incorporated legal practice; or

      3. (iii)

        a sole legal practitioner or an employee of a sole legal practitioner; and

    2. (b)

      has satisfied the Authority that he or she has a current legal practising certificate.

Note An individual described in subregulation (2) would already hold professional indemnity insurance for at least $250 000 as part of the requirements for their current legal practising certificate. The individual would not need to provide evidence of professional indemnity insurance to the Authority once the Authority is satisfied that the individual has the certificate.

An individual who is not mentioned in subregulation (2) will need to provide evidence to satisfy the Authority that the individual has professional indemnity insurance for at least $250 000.

Note

1. All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See

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