Migration Agents Amendment Regulations 1999 (No. 1) 1999 No. 69
EXPLANATORY STATEMENT
STATUTORY RULES 1999 No. 69
Issued by the Authority of the Minister for Immigration and Multicultural Affairs
Migration Act 1958
Migration Agents Amendment Regulations 1999 (No. 1)
Section 504 of the Migration Act 1958 ("the Act) provides that the Governor-General may make regulations, not inconsistent with the Act to prescribe all matters which are required or permitted to be prescribed by the Act 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 following powers:
- section 314 of the Act provides that the regulations may prescribe a Code of Conduct for migration agents.
The purpose of the Regulations is to amend the Migration Agents Regulations 1998 to:
- provide a new requirement that a migration agent must not make representations that he or she can procure a particular decision for a client; and
- strengthen the Migration Agents Code of Conduct by imposing an obligation on a migration agent that they must inform their client if the client's application is vexatious or grossly unfounded. The amendment also requires that if the client still wishes to lodge the application, the client acknowledges receipt in writing of the agent's advice.
Details of the Regulations are set out in the Attachment.
The Regulations commence on 1 July 199
ATTACHMENT
Regulation 1 - Name of regulations
This regulation provides that these regulations are the Migration Agents Amendment Regulations 1999 (No. 1).
Regulation 2 - Commencement
This regulation. provides that these regulations commence on 1 July 1999.
Regulation 3 Amendment of Migration Agents Regulations 1998
This regulation provides that the Migration Agents Regulations 1998 are amended as set out in Schedule 1 to these regulations.
Schedule 1 - Amendment
Item 1 - Schedule 2. clause 1.8
This item makes a technical amendment.
Item 2 - Schedule 2. after clause 2.14
This item inserts new clause 2.14A to provide a new requirement that a migration agent must not represent that he or she can procure a particular decision for a client.
Item 3 - Schedule 2, clause 2.17
This item amends clause 2.17 to strengthen the Migration Agents Code of Conduct by imposing a positive obligation on a migration agent to inform their client, if the client's application is vexatious or grossly unfounded. The amendment also requires the migration agent to ensure that the client acknowledges receipt in writing of the agent's advice, if the client still wishes to lodge the application.
Overview
The Migration Agents Amendment Regulations 1999 (No. 1) were enacted under the authority of the Minister for Immigration and Multicultural Affairs to amend the Migration Agents Regulations 1998. These regulations seek to address the identified gaps in the conduct of migration agents by introducing stricter guidelines to uphold integrity and transparency in their professional dealings. The primary policy objective behind these amendments is to ensure that migration agents maintain high ethical standards, particularly in their communications with clients regarding the potential outcomes of their applications and the advisability of proceeding with vexatious or unfounded claims. These regulations, which came into effect on 1 July 1999, aim to fortify the regulatory framework governing migration agents, thereby protecting clients and maintaining the credibility of the migration process.
Scope and Application
The Migration Agents Amendment Regulations 1999 (No. 1) applies to migration agents, who are defined as persons engaged in activities related to the provision of services in relation to the migration process, under the Migration Act 1958. The regulations are made under the authority granted by the Act and aim to amend the Migration Agents Regulations 1998 by introducing new requirements and strengthening the existing Code of Conduct for migration agents. These amendments are intended to ensure that migration agents conduct themselves with integrity and do not make false representations to their clients regarding their ability to influence migration decisions. The regulations have a national reach as they are made under Commonwealth legislation. There are no stated exclusions, exemptions, or thresholds in these regulations. The application of the Act can be further extended or restricted through subordinate instruments, such as further regulations or guidelines issued by the Minister for Immigration and Multicultural Affairs.
Key Provisions
The key provisions of the Migration Agents Amendment Regulations 1999 (No. 1) concern the conduct of migration agents under the Migration Act 1958. Section 504 of the Act allows for the creation of regulations necessary to implement its provisions, and these regulations specifically amend the Migration Agents Regulations 1998. Regulation 3 details the amendments made to the 1998 Regulations, which are outlined in Schedule 1. The primary amendments involve prohibiting migration agents from making certain representations to clients and enhancing the obligations within the Migration Agents Code of Conduct.
The regulations impose several obligations on migration agents. Firstly, as per the new clause 2.14A, migration agents are strictly prohibited from claiming they can guarantee a specific outcome for their clients. This means that agents must avoid any statements or implications that suggest they have control over the decision-making process of migration applications. Additionally, clause 2.17, as amended, mandates that if a migration agent believes a client's application is vexatious or grossly unfounded, they must inform the client of this assessment. Furthermore, if the client chooses to proceed with the application despite this advice, the agent must obtain written acknowledgment from the client that they have been warned about the application's prospects.
Failure to comply with the provisions of these regulations can result in significant consequences for migration agents. Although the specific penalties are not detailed in the explanatory statement, breaches of the Migration Act and its regulations can generally lead to civil and criminal penalties. For civil penalties, the Act provides for fines that can be substantial, depending on the severity and nature of the breach. Criminal penalties may also apply, where the breach is considered serious enough, leading to imprisonment or additional fines. These consequences underscore the importance of adherence to the regulatory requirements set forth in the Migration Agents Amendment Regulations 1999 (No. 1).