Migration Agents Registration Application Charge Amendment Regulations 2004 (No. 1)

Administered by Department of Home Affairs

Legislation au F2004B00150 Regulations Not in force Legislative Instrument

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Migration Agents Registration Application Charge Amendment Regulations 2004 (No. 1) 2004 No. 130

EXPLANATORY STATEMENT

STATUTORY RULES 2004 NO. 130

Issued by the Minister for Citizenship
and Multicultural Affairs

Migration Agents Registration Application Charge Act 1997

Migration Agents Registration Application Charge Amendment Regulations 2004 (No. 1)

A review of the self-regulation of the migration advice industry was conducted in 2001 and 2002 for the Minister for Citizenship and Multicultural Affairs. The review made numerous recommendations to strengthen and improve the regulation of the migration advice industry. Relevant legislation has been amended to give effect to the review's recommendations. In particular, the Migration Agents Registration Application Charge Act 1997 (the Act) has been amended by the Migration Agents Registration Application Charge Amendment Act 2004 (the Amendment Act).

Schedule 1 to the Amendment Act inserts a new Part 3 ("Imposition of charge in respect of the status of a migration agent's registration") into the Act. Section 13 of new Part 3 provides that the Governor-General may make regulations for the purpose of new Part 3. In addition, subsection 9(3) of new Part 3 provides that regulations may be made to make provision for and in relation to working out the day on which a registered migration agent begins to give immigration assistance on a commercial basis.

The purpose of the Regulations is to specify how to determine when a registered migration agent begins to give immigration assistance on a commercial basis.

Details of the Regulations are set out in the Attachment.

The Regulations commence on the commencement of the Amendment Act. Schedule 1 to the Amendment Act commences at the same time as Schedule 1 to the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 which has been fixed, by Proclamation, as 1 July 2004.

Subsections 4(1) and (2A) of the Acts Interpretation Act 1901, read together, allow regulations to be made between the passing and commencement of legislation upon which those regulations depend for their authority, as long as the regulations do not commence before the legislation.

0401903A-040521Z

ATTACHMENT

Details of the Migration Agents Registration Application Charge Amendment Regulations 2004 (No. 1)

Regulation 1 - Name of Regulations

This regulation provides that these Regulations are the Migration Agents Registration Application Charge Amendment Regulations 2004 (No. 1).

Regulation 2 - Commencement

This regulation provides that these Regulations commence on the commencement of the Migration Agents Registration Application Charge Amendment Act 2004. Schedule 1 to that Act is to commence at the same time as Schedule 1 to the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 which has been fixed, by Proclamation, as 1 July 2004.

Regulation 3 - Amendment of Migration Agents Registration Application Charge Regulations 1998

This regulation provides that Schedule 1 amends the Migration Agents Registration Application Charge Regulations 1998 (the Principal Regulations).

Schedule 1 - Amendments

Item [1] - After regulation 5

This item inserts new regulation 6 in the Principal Regulations.

New regulation 6 provides, for subsection 9(3) of the Migration Agents Registration Application Charge Act 1997 (the Act), that a registered migration agent begins to give immigration assistance on a commercial basis on the day that the earliest of either of the following occurs:

•       the agent gives a client an estimate of fees before starting work on behalf of a client; or

•       the agent charges a client a fee for services provided.

The purpose of this amendment is to provide for working out the day on which a registered migration agent begins to give immigration assistance on a commercial basis.

Registered migration agents who act on a non-commercial or non-profit basis and are associated with an organisation that operates in Australia solely on a non-commercial or non-profit basis (non-commercial agents) pay a significantly reduced application fee compared to registered migration agents who provide immigration assistance on a commercial basis. Part 3 of the Act provides a mechanism by which non-commercial agents who commence providing immigration assistance on a commercial basis are obliged to pay an additional charge calculated in accordance with section 12 of the Act for the proportion of the period of registration remaining.

Part 3 of the Act and new regulation 6 are related to new paragraph 312(1)(ea), inserted by the Migration Legislation Amendment (Migration Agents Integrity Measures) Act 2004 in the Migration Act 1958. This new paragraph requires a non-commercial agent to notify the Migration Agents Registration Authority as soon as possible after he or she gives immigration assistance on a commercial basis.

 

Overview

The Migration Agents Registration Application Charge Amendment Regulations 2004 (No. 1) were introduced to address the need for clearer regulation of the migration advice industry in Australia, following a comprehensive review conducted in 2001 and 2002. The problem identified was the lack of precise criteria to determine when a registered migration agent starts providing immigration assistance on a commercial basis, which could potentially lead to discrepancies in fee payments and compliance. These Regulations, issued by the Minister for Citizenship and Multicultural Affairs, aim to align with the recommendations of the review by specifying the criteria for when such commercial activities commence, thereby ensuring appropriate fee structures and compliance with the Act. The policy objective is to maintain integrity and transparency within the migration advice industry, safeguarding both consumers and the regulatory framework.

Scope and Application

The Migration Agents Registration Application Charge Amendment Regulations 2004 (No. 1) applies to registered migration agents who provide immigration assistance on a commercial basis and who are subject to the provisions of the Migration Agents Registration Application Charge Act 1997. The Act applies across Australia, providing a national scope to its regulation of migration agents. These Regulations, which amend the Migration Agents Registration Application Charge Regulations 1998, specify the criteria for determining when a registered migration agent begins to give immigration assistance on a commercial basis, thereby impacting the charge obligations of those agents. The Regulations provide that a registered migration agent begins to give immigration assistance on a commercial basis on the day they either give a client an estimate of fees before starting work or charge a client a fee for services provided. Notably, non-commercial agents who commence providing immigration assistance on a commercial basis must notify the Migration Agents Registration Authority and may be subject to additional charges as per the Act. The Regulations are made under the authority of the Migration Agents Registration Application Charge Act 1997 and commence on the commencement of the Amendment Act, which is set for 1 July 2004.

Key Provisions

The Migration Agents Registration Application Charge Amendment Regulations 2004 (No. 1) are amendments to the Migration Agents Registration Application Charge Regulations 1998, aimed at clarifying when a registered migration agent begins to provide immigration assistance on a commercial basis (Regulation 3). Under new regulation 6 inserted into the Principal Regulations (Regulation 6), a registered migration agent is deemed to start providing immigration assistance on a commercial basis on the earliest of two specific events: when the agent provides a client with an estimate of fees before starting work on their behalf, or when the agent charges a fee for services rendered. This regulation seeks to ensure that the timeline for when a non-commercial agent transitions to commercial activities is clearly defined, which is crucial for compliance with the Act's requirements and fee structures. The regulations impose several obligations on registered migration agents. Firstly, agents must adhere to the definition set out in new regulation 6, ensuring they are aware of the precise moment they commence providing immigration assistance on a commercial basis. This awareness is essential for accurate fee calculations and compliance with the Act. Additionally, non-commercial agents must notify the Migration Agents Registration Authority as soon as they begin providing immigration assistance on a commercial basis, in accordance with the new paragraph 312(1)(ea) in the Migration Act 1958. This notification requirement is integral to maintaining transparency and ensuring that agents are appropriately categorised and charged according to their activities. Failure to comply with the provisions of these regulations may result in various consequences. For instance, non-commercial agents who do not notify the Authority of their transition to commercial activities could face penalties or sanctions under the Migration Act 1958. Additionally, if an agent incorrectly calculates their fees due to a misunderstanding of when they began providing commercial services, they could face financial penalties or be required to repay any overpaid fees. While specific penalties are not detailed in the explanatory statement, breaches of the Migration Act 1958 can lead to significant fines and other civil or criminal consequences, depending on the severity and intent of the breach.

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Immigration & Refugee Law
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Regulation
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Commencement Provisions
Regulatory Standards
Licensing & Registration

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