EXPLANATORY STATEMENT
Issued by the Assistant Minister for Customs, Community Safety and Multicultural Affairs, Parliamentary Secretary to the Minister for Home Affairs
Migration Act 1958
Migration (Migration Agents Code of Conduct) Consequential Amendments Regulations 2021
Migration (Migration Agents Code of Conduct) Regulations 2021
These instruments repeal the previous Migration Agents Code of Conduct from the Migration Agents Regulations 1998 and prescribe a new Code of Conduct. The new Code of Conduct streamlines, clarifies and modernises the Code and addresses concerns expressed by industry and other stakeholders.
The Migration Act 1958 (the Migration Act) is an Act relating to the entry into, and presence in, Australia of aliens, and the departure or deportation from Australia of aliens and certain other persons.
Subsection 504(1) of the Migration Act provides that the Governor-General may make regulations, not inconsistent with the Migration Act, prescribing matters required or permitted to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to the Migration Act.
Subsection 314(1) of the Migration Act provides that the regulations may prescribe a Code of Conduct for migration agents.
Subsection 314(2) of the Migration Act provides that a registered migration agent must conduct himself or herself in accordance with the prescribed Code of Conduct.
Paragraph 303(1)(h) of the Migration Act provides that the Migration Agents Registration Authority may take disciplinary action against a registered migration agent if it becomes satisfied that the agent has not complied with the Code of Conduct prescribed under section 314.
Paragraph 287(2)(i) of the Migration Act provides that the regulations may prescribe matters that are to be shown on the Register of Migration Agents kept by the Migration Agents Registration Authority.
Subsection 292B of the Migration Act provides that an applicant must not be registered as a migration agent unless the Migration Agents Registration Authority is satisfied that the applicant has professional indemnity insurance of a kind prescribed by the regulations.
The Migration (Migration Agents Code of Conduct) Consequential Amendments Regulations 2021 (the Repeal Regulations) amend the Migration Agents Regulations 1998 (the Migration Agents Regulations) to repeal the current Code of Conduct from
1 March 2022, and make amendments consequential to that repeal and the introduction of a new Code.
The Migration (Migration Agents Code of Conduct) Regulations 2021 (the Code of Conduct Regulations) prescribe a new Code of Conduct from 1 March 2022.
The current Code of Conduct has been in place since 1998, with amendments from time to time. The new Code of Conduct implements a recommendation of the Independent Review of the Office of the Migration Agents Registration Authority (the Independent Review) in September 2014, that the Code of Conduct be revised as it was “verbose, unclear and as a result problematic” (Recommendation 18). The Independent Review also recommended that the Department of Home Affairs (the Department) undertake a detailed consultation process with interested parties to determine how best to address concerns in relation to the scope and content of the…
Overview
The Migration (Migration Agents Code of Conduct) Regulations 2021, enacted by the Parliament of Australia, were introduced to address the need for a modernised and more comprehensible Code of Conduct for migration agents in Australia. The original Code of Conduct, which had been in place since 1998, was found to be verbose and unclear, leading to difficulties in understanding and compliance among industry stakeholders. The new regulations streamline and clarify the Code, aiming to improve readability and better protect clients while strengthening the integrity of the immigration advice industry. This update follows recommendations from the Independent Review of the Office of the Migration Agents Registration Authority in 2014 and extensive consultations with stakeholders between 2015 and 2019. The revised Code includes clearer obligations for migration agents, such as advertising, managing client accounts, conflicts of interest, and working with unregistered individuals in their business.
Scope and Application
The Migration (Migration Agents Code of Conduct) Regulations 2021, made under the Migration Act 1958, prescribe a revised Migration Agents Code of Conduct. The new Code of Conduct applies to registered migration agents who provide immigration assistance and work or services as part of their business. The Regulations are intended to ensure that migration agents conduct themselves professionally, ethically, and honestly, and to protect clients of migration agents. The Code of Conduct aims to address concerns raised about the previous Code being verbose, unclear, and problematic, by streamlining, clarifying, and modernising the Code. The new Code also takes into account extensive consultations with key stakeholders, with the aim of improving the clarity and readability of the Code. The Regulations are applicable nationally in Australia and aim to provide better oversight of migration agents without increasing regulation. The Regulations also include provisions to ensure that the new Code of Conduct applies to existing service agreements and client files. The new Code of Conduct is complemented by the Migration (Migration Agents Code of Conduct) Consequential Amendments Regulations 2021, which repeal the previous Code of Conduct from the Migration Agents Regulations 1998 and make consequential amendments. The Regulations commenced on 1 March 2022, providing sufficient time for stakeholders to update their systems, processes, and educational material.
Key Provisions
- The key provisions of the Migration (Migration Agents Code of Conduct) Regulations 2021 and the Migration (Migration Agents Code of Conduct) Consequential Amendments Regulations 2021 pertain to the professional conduct of registered migration agents and their businesses. These provisions are found in the main operative sections of the regulations, which require registered migration agents to adhere to a Code of Conduct that governs their professional behaviour and obligations. The new Code of Conduct aims to streamline and clarify the previous regulations, addressing concerns raised by industry and other stakeholders. The operative sections mandate that registered migration agents must conduct themselves in accordance with the prescribed Code of Conduct, which includes duties such as acting professionally, ethically, and honestly; maintaining skills and knowledge; ensuring that immigration assistance is provided only by registered migration agents; and adhering to specific duties relating to fees, record-keeping, and the agent-client relationship.
- The obligations imposed on the parties or entities governed by these regulations include a comprehensive set of duties designed to uphold the integrity of the immigration advice industry and protect clients. For instance, migration agents are required to treat all persons with appropriate respect, avoid making false or misleading statements, comply with migration law, and not engage in conduct that damages the reputation of migration agents or the immigration advice industry. They must also maintain professional indemnity insurance, notify relevant authorities of changes in their circumstances, and ensure that any immigration assistance provided is not futile. Additionally, the regulations require migration agents to establish and adhere to service agreements, ensure that their businesses are compliant with the new Code, and take steps to prevent conflicts of interest.
- There are several offences, penalties, or civil/criminal consequences for breaches of these regulations. The Migration Agents Registration Authority (MARA) can take disciplinary action against a registered migration agent if it becomes satisfied that the agent has not complied with the Code of Conduct, as per paragraph 303(1)(h) of the Migration Act. The nature and severity of the sanctions depend on the misconduct, but they can include fines, suspension, or cancellation of the agent's registration. Civil or criminal penalties may also apply for specific breaches of the Migration Act or other related laws, depending on the nature of the misconduct.
- Area of Law
- Immigration & Refugee Law
- Instrument
- Regulation
- Concepts
- Regulatory Standards
- Reporting & Disclosure Obligations
- Licensing & Registration
- Offence Provisions
- Enforcement Powers
- Definitions & Interpretation
