EXPLANATORY STATEMENT
Migration Act 1958
Migration Agents Regulations 1998
PRESCRIBED CONTINUING PROFESSIONAL DEVELOPMENT FOR APPLICANTS FOR REGISTRATION AS A MIGRATION AGENT
(REGULATION 6)
- This Instrument is made under Regulation 6 of the Migration Agents Regulations 1998 (‘the Regulations’).
2. On 1 July 2012, Regulation 6 was amended to prescribe continuing professional development and specify an English language requirement that a registered migration agent must satisfy to maintain registration.
3. Regulation 6 of the Regulations provides that, after 1 January 2014, for the purposes of section 290A of the Migration Act 1958 (‘the Act’), in addition to the continuing professional development requirements set out in Schedule 1 of the Regulations, applicants for repeat registration must meet one of the following criteria:
- have achieved at least the minimum score in an exam in English language proficiency specified by the Minister in an instrument in writing (subregulation 6(2)(a)); or
- hold a current legal practising certificate issued by an Australian body authorised by law to issue it (subregulation 6(2)(b)); or
- be in a class of person specified by the Minister in an instrument in writing for this paragraph (subregulation 6(2)(c)).
4. The purpose of the amendment to this Instrument is to specify that, for the purposes of subregulation 6(2)(c), a person who has already provided evidence to the Migration Agents Registration Authority that they held a practicing certificate issued by an Australian body authorised by law to issue it as part of a previous application is not required to comply with English Language proficiency requirements specified in the Instrument for the purposes of subregulation 6(2)(a).
5. This Instrument does not commence until 1 January 2014 to provide for a period of time for migration agents who do not currently meet the English language requirements to develop the necessary skills to satisfy Regulation 6 which was amended on 1 July 2012.
6. Consultation was undertaken with the Migration Agent Registration Authority who regulates the migration advice profession and is responsible for registering migration agents.
7. Under section 42 of the Legislative Instruments Act 2003 the Instrument is subject to disallowance and therefore a Human Rights Statement of Compatibility has been provided.
8. The Office of Best Practice Regulation has advised that a Regulatory Impact Statement is not required (OBPR Ref 15117).
9. The Human Rights Compatibility Statement is at Attachment A.
10. This Instrument, IMMI 13/089, commences on 1 January 2014.
Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
IMMI 13/089 - PRESCRIBED CONTINUING PROFESSIONAL DEVELOPMENT FOR APPLICANTS FOR REGISTRATION AS A MIGRATION AGENT
(Regulation 6 of the Migration Agents Regulations 1998)
This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Legislative Instrument
This instrument operates in accordance with regulation 6 of the Migration Agents Regulations 1998 (the ‘Regulations’) to give effect to the English language requirement for applicants for repeat registration as a migration agent. Subregulation 6.2(a) states that a person satisfies this requirement if they achieve a prescribed score in an English language proficiency exam. Subregulation 6.2(b) provides an exemption for certain persons from this testing, including those who hold a current Australian Legal Practising Certificate (ALPC). The exemption is justified on the basis that if an agent’s level of English is sufficient to practise as a lawyer in Australia, then it should be sufficient to practise as a migration agent. This is because of the similarity in certain activities undertaken by lawyers and migration agents, such as research and interpretation of legislation relating to immigration law, giving immigration advice and drafting submissions.
The current wording of the instrument, together with the operation of Regulation 6 of the Regulations, has the effect of requiring an agent to present an ALPC every year when they apply for repeat registration in order to avoid having to demonstrate English proficiency by undertaking an English language test. This was not the intended outcome, as there is no clear link between the maintenance of an ALPC and English proficiency. The instrument has therefore been amended so that an applicant is also exempt from demonstrating English proficiency if the Authority has determined that the applicant was the holder of an ALPC, as part of a previous registration application.
This instrument revokes all previous instruments made under Regulation 6 of the Regulations.
Human rights implications
The Legislative Instrument has been assessed against the seven core international human rights treaties. As the instrument merely seeks to prescribe an exemption in relation to the English language requirement in Regulation 6 of the Regulations, it does not engage any of the applicable rights or freedoms articulated therein.
Conclusion
This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.
Senator the Hon. Michaelia Cash
Assistant Minister for Immigration and Border Protection