senate - parliament of australia...bill 2003 and the migration agents registration application...

COMMONWEALTH OF AUSTRALIA

Official Committee Hansard

SENATE LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE

Reference: Migration Agents Registration Application Charge Amendment Bill 2003; Migration Legislation Amendment (Migration Agents Integrity Measures)

Bill 2003

MONDAY, 27 OCTOBER 2003

C A N B E R R A

BY AUTHORITY OF THE SENATE

WITNESSES

WITNESSES

CAMPBELL, Ms Julie, Director, Migration Agents Policy and Liaison Section, Department of Immigration and Multicultural and Indigenous Affairs .......................... 34

CHAO, Ms Laurette, Chairman, Migration Agents Registration Authority; and National President, Migration Institute of Australia Ltd................................................... 21

CONYER, Mr Arnold Joel, New South Wales State President, Migration Institute of Australia Ltd .......................................................................................................................... 21

GRIFFITH, Dr Gavan, QC, Counsel, Law Council of Australia; Law Institute of Victoria; and Immigration Lawyers Association of Australasia ......................................... 1

HOLT, Mr Len, National Vice-President, Migration Institute of Australia Ltd ............. 21

ILLINGWORTH, Mr Robert, Assistant Secretary, Onshore Protection Branch, Department of Immigration and Multicultural and Indigenous Affairs .......................... 34

JOCKEL, Ms Maria, State Director, Law Institute of Victoria; and Immigration Lawyers Association of Australasia ....................................................................................... 1

JONES, Mr Brian, Director, Migration Agents Registration Authority .......................... 21

KONARSKI, Mr Richard, Director, Migration Fraud and Investigations Section, Department of Immigration and Multicultural and Indigenous Affairs .......................... 34

LACHOWICZ, Mr Robert, Coordinator/Principal Solicitor, South Brisbane Immigration and Community Legal Service ....................................................................... 15

MAWSON, Mr David, Executive Officer, Migration Agents Registration Authority ....21

McMAHON, Mr Vincent, Executive Coordinator, Border Control and Compliance Division, Department of Immigration and Multicultural and Indigenous Affairs .......... 34

RIZVI, Mr Abul, First Assistant Secretary, Migration and Temporary Entry Division, Department of Immigration and Multicultural and Indigenous Affairs .......................... 34

WALKER, Mr Douglas James, Assistant Secretary, Visa Framework Branch, Department of Immigration and Multicultural and Indigenous Affairs .......................... 34

WATERS, Mr Bernie, Assistant Secretary, Business Branch, Department of Immigration and Multicultural and Indigenous Affairs .................................................... 34

Monday, 27 October 2003 Senate—Legislation L&C 1

LEGAL AND CONSTITUTIONAL

SENATE

LEGAL AND CONSTITUTIONAL LEGISLATION COMMITTEE

Monday, 27 October 2003

Members: Senator Payne (Chair), Senator Bolkus (Deputy Chair), Senators Greig, Ludwig, Mason and Scullion

Participating members: Senators Abetz, Brandis, Brown, Carr, Chapman, Eggleston, Chris Evans, Faulkner, Ferguson, Ferris, Harradine, Harris, Humphries, Kirk, Knowles, Lees, Lightfoot, Mackay, McGauran, McLucas, Murphy, Nettle, Ray, Sherry, Stephens, Stott Despoja, Tchen, Tierney and Watson

Senators in attendance: Senator Payne (Chair), Senator Bolkus (Deputy Chair), Senators Bartlett, Kirk, Ludwig, Mason and Scullion

Terms of reference for the inquiry: Migration Agents Registration Application Charge Amendment Bill 2003;

Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003.

Committee met at 7.03 p.m.

GRIFFITH, Dr Gavan, QC, Counsel, Law Council of Australia; Law Institute of Victoria; and Immigration Lawyers Association of Australasia

JOCKEL, Ms Maria, State Director, Law Institute of Victoria; and Immigration Lawyers Association of Australasia

CHAIR—Good evening, ladies and gentlemen, and welcome to this inquiry into the provisions of the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 and the Migration Agents Registration Application Charge Amendment Bill 2003. This is the first hearing of the Senate Legal and Constitutional Legislation Committee’s inquiry into the provisions of the bills. The inquiry was referred to the committee by the Senate on 8 October 2003 for report by 25 November 2003. The Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003 seeks to ‘strengthen and improve the regulation of migration agents’, according to the explanatory memorandum. The Migration Agents Registration Application Charge Amendment Bill 2003 introduces a new charge to ensure that migration agents who pay the non-commercial registration fee and then practise as a commercial agent effectively pay a pro rata proportion of the commercial fee.

The committee has received 21 submissions to this inquiry, some just in the last few hours. All submissions have now been authorised for publication and will be available on the committee’s web site. Witnesses are reminded of the notes they have received relating to parliamentary privilege and the protection of official witnesses. Further copies are available from the secretariat. Witnesses are also reminded that the giving of false or misleading evidence to the committee may constitute a contempt of the Senate. The committee prefers all evidence to be given in public, but under the Senate’s resolutions witnesses have the right to request to be heard in private session. It is important that witnesses give the committee notice

L&C 2 Senate—Legislation Monday, 27 October 2003


if they intend to ask to give evidence in camera. I welcome our witnesses by videoconference. Do you wish to elaborate on the capacities in which you appear before the committee?

Dr Griffith—I appear on a retainer from the Law Council of Australia and the Law Institute of Victoria. In being asked to express opinions, I have been retained on the basis that I am not arguing the best case for a particular issue but am expressing my own opinion.

CHAIR—Thank you. Ms Jockel, the Law Institute and the Immigration Lawyers Association of Australasia have lodged a joint submission which the committee has numbered 11. Dr Griffith, you have lodged a submission which we have numbered 21. Do either of you wish to make any amendments or alterations to those submissions?

Dr Griffith—There are two typographical errors but I can deal with them by talking to the secretariat.

CHAIR—Thank you. Ms Jockel?

Ms Jockel—No.

CHAIR—I would like to invite both of you to make a short opening statement, at the conclusion of which we will go to questions from the committee. Would you like to begin, Dr Griffith?

Dr Griffith—Yes, thank you. I would like to take you to page 14 of my summary, which is submission No. 21. It seems to me that the advice of the Australian Government Solicitor, that there would be no constitutional difficulty arising from this legislation if the percentage is fixed at an appropriate high rate, is facile advice which, in my opinion, arguably would not be sustained were this legislation attacked in the High Court. It goes beyond that which was permitted by a bare majority of the High Court in the Cunliffe decision and on the face of matters the very intrusive and strict operation of this law in my opinion would risk falling within the prohibited category of being legislation which is not reasonably appropriate and adapted for the end which does affect the capacity of communication particularly by qualified lawyers.

Remember that the Tampa case was based on the issue of the right of a legal practitioner to give legal advice to those persons who may wish to receive it. Cunliffe indicates that there is a boundary beyond which legislation may not constitutionally go. On the face of things, in my opinion the Attorney-General’s Department’s opinion as summarised on page 41 of the explanatory memorandum does not satisfactorily deal with those issues of doubt. Even if the legislation were not subject to constitutional uncertainties of this sort, in my opinion the fact that it trespasses in this area of freedom of communication, particularly as it applies to qualified lawyers, makes it advisable to consider whether a scheme of this sort is to be preferred over a less constitutionally intrusive scheme which does not have the drawbacks of intruding on to the freedom of political communication.

The next substantial point I wish to make is that in paragraph 7 on page 15 of my summary. In my opinion, it is appropriate for a legislative scheme intended to regulate conduct to express with certainty its operation so that those who wish honestly, properly and professionally to comply with the forms of the law know as they carry out actions that they comply with its provisions. I call it the Griffith sunset theory of constitutional validity. It



seems to me that if you have a law which you sit down at sunrise and read until the sun sets and you are unable to advise even a lawyer such as Ms Jockel what conduct by her in carrying out her busy immigration practice may or may not be found some months or years in the future to contravene a mechanical quota to be arbitrarily applied, the law fails the basic test that it should provide, by reference to understandable standards, a basis of conduct so that a person may with confidence carry out their profession knowing that there is no risk that they may not only transgress the requirements of the act but also do so in a way which results in immediate arbitrary termination on notice being given by MARA that they have exceeded a quota which on any view must be regarded as being expressed arbitrarily. To my mind such legislation is completely anathema to any basic principle for the operation of a structure of regulations regarding any activity but more so when it deals directly with the capacity of a professional person, whether they be a lawyer or not, to carry out their profession.

The other substantial objection to the fixed arbitrary percentage is that it is not a penalty which applies after a hearing and review; it is a penalty which can be invoked and must be invoked within seven days notice being given to the MARA by those administering the provisions of the act that the percentage has been exceeded. That has the result of terminating the right to practise, and the client of that person is notified that the person not only has had the right to practise terminated, subject to a right of appeal, but also has been declared a vexatious practitioner. One cannot imagine a more professionally defamatory and terminal result to any professional person. In my submission I have used the example of Ms Jockel. Under this bill, I could not advise her of the basis on which she could carry on her busy practice, with many qualified lawyers operating under it, that could lead to an assurance that she would not at any time risk losing, as a senior partner in Messrs Gadens, her capacity to practise as a migration agent with only a residual, uncertain right of appeal which is fixed, of course, by reference to the arbitrary percentage.

It seems to me that when one adds both characteristics together it is a scheme which is totally without administrative justification and it must be regarded as an exercise in administrative self-levitation through concentration on the detail of the problem without standing back and considering whether there are more appropriate and effective mechanisms to obtain the administrative result.

I also make the obvious point—I do this not as someone who is practising in this area—that it seems to me that the administrative obligations that are applied should make a distinction between those who are legally qualified and already bound, as the legislation accepts, firstly by the fact that they have professional qualifications and, secondly, by the fact that they have professional obligations as an officer of the court and by reference to their own professional legal obligations, which need only to be supplemented in the case of practitioners who may go beyond levels of proper practice to engage in abusive practice. It would seem obvious that legal practitioners of that sort might readily be identified—for example, a South Australian solicitor whom Justice Selway identified and whom I read about in the newspaper last week. If you have someone such as that lodging 700 appeals they can be targeted and dealt with as someone who is acting abusively.

There is no statistical analysis in any of the material in the explanatory memorandum which gives a breakdown between legal practitioners and non-legal practitioners or indicates



in any way what proportion of legal practitioners, or even what proportion of non-legal practitioners, could be identified as the rogue element. There is a reference to the fact that there are complaints against some five per cent of agents in the last 12 months. The fact that there is a complaint means nothing at all. It does not indicate that there is a multiplicity of complaints; it does not indicate that the complaint is justified or that there is any abusive process of the sort that should be dealt with. The point which we seek to make in detail in the two submissions, particularly submission No. 21 that I have lodged, is that the statistical analysis in no way justifies the result. To deal with rogue and unacceptable practitioners, whether they be legally qualified or not, there is an arbitrary system that applies on the basis of uncertain outcomes rather than a regulation by reference to identified persons who do carry on their activities in an unethical and, one might say, vexatious manner.

I understand, anecdotally, that the main target of this legislation is those people who are known to be in effect rogue immigration agents. One does not know how many there are—whether there is a handful, a dozen or a score—but inasmuch as those persons obviously can be plainly identified both by reference to their practices and by reference to complaints, my submission is that there should be a regulatory scheme which enables those persons to be dealt with. If there is a situation of emergency with obvious abusive conduct, then there could be an exceptional power to apply to a court or some other body to provide for immediate suspension of practice. But it is completely unacceptable in principle to provide that all persons who go beyond what we seek to demonstrate as an arbitrary and unjustified procedure statistically lose their livelihood and only have the recourse to possible relief through administrative review fixed by reference to the same false criteria of statistical lack of probity in circumstances where they either lose entirely their right to practice, which is likely if their clients have been told they have been declared vexatious, or where the damage cannot be undone by any successful appeal.

For the reasons I state specifically in the last three pages of the summary, and as supported by the early parts of the submission, were I still a law officer of the Commonwealth I would seek to induce the responsible ministers to recommit for further consideration to record a standard that achieves the intended purpose. Chair, in your opening remarks, you said that the target of the legislation is to strengthen. It certainly does that. But if its target is also to improve, to assert that this scheme improves things is a misleading statement of the sort that should be regarded as actionable under the Trade Practices Act. On analysis, in my opinion the entire support for this legislation is something which fails at the threshold any test of requirements for integrity, justification or consistency with proper administrative law and practice—a field where the Commonwealth has practised at the highest levels, particularly through the assistance of the Administrative Review Council with the administrative decisions of the administrative review act. It is one thing to deal with the problem; it is another thing to put at risk, with a scheme such as this, all those persons who carry out their business with integrity. Thank you.

CHAIR—Thank you. We will go straight to you, Ms Jockel, then we will go to questions.

Ms Jockel—Thank you. I want to refer to the submission that I have prepared on behalf of the ILAA and the LIV at points (iv) and (v). Under ‘Criticisms and proposals’, I have basically summarised what I think Dr Griffith has said even better and in far greater detail—



that is, that it is our view that the bill is fundamentally flawed as it fails to recognise the fundamental differences between qualified lawyers practising as migration agents and those who are not qualified. Our concern as legal practitioners is that we have a duty to the court and, as such, we are also subject to a whole range of notions, including client confidentiality, legal professional privilege and suchlike. In stating that, we are not seeking to hide from any scheme which is going to regulate and do away with those people who should not be practising.

As Dr Griffith has said, there is really no data available to suggest who these people are. In my briefing with the senior officer in Canberra on Tuesday I was led to believe that those people are known to the department. As Dr Griffith has said, surely there must be another mechanism which is less subject to all of these concerns that Dr Griffith has raised and which could address the issue of weeding out those people who should not be migration agents, be they lawyers or not, rather than having this very heavy-handed and blanket approach which in effect means that, by virtue of an arbitrary statistical formula, a mathematical exercise, a certain number of applications will be considered within a six-month period. If you fall within that period, having had four visas of that category refused, you will be deemed to be vexatious. This approach will be undertaken by the department of immigration as a primary decision maker and also as the instigator of a consideration as to whether you are vexatious, as the determiner that you are vexatious, and then as the mandator that you are vexatious. The department will then require the Migration Agents Registration Authority to give effect to that mandated sanction. The Migration Agents Registration Authority will have no discretion in this regard. They are simply a rubber stamp of the department of immigration.

I have great concerns with regard to the primary decision maker wearing this multiplicity of hats, particularly if you are to understand how complex the Migration Act and the regulatory scheme are. In many instances a visa failure is nothing else than a failure. It does not mean any form of vexatiousness on the part of the practitioner. There is a multiplicity of factors as to why an application may be refused. Those of us who practise in this area understand that it is a strictly codified legislative scheme which is highly detailed in the way it regulates decision making and the criteria to be met in any given visa category. There are 135 visa categories. In addition to that, the department has its own internal policy advice guidelines which determine how a particular part of the criteria is to be interpreted, and those policy guidelines may not necessarily be the way that black-letter law reads. If there is a change of departmental policy as, for example, there was in the case of the Afghan refugees, or if there is any other change which could affect the outcome of a particular application, that may not be known to a legal practitioner acting in good faith and providing proper advice to a would-be applicant at a given point in time.

Even the Migration Institute of Australia, which predominantly represents non-lawyers who are practising as migration agents, has expressed real concern with regard to this particular legislation and its heavy-handedness. Similarly, the Law Society of New South Wales has picked up on the same points and expressed concerns that a fairly mechanistic arbitrary system, which is based on a fairly arbitrary statistical ratio, would be the basis upon which you would determine that someone is vexatious. It is arbitrary. In my view it is nonsensical and potentially draconian. It could be applied and misapplied so that it works



very punitively and, as Dr Griffith has mentioned, it could actually result in somebody being suspended, going to the Administrative Appeals Tribunal, being vindicated on appeal, and in the meantime they are suspended from being able to practice, they can only practice under the supervision of another migration agent whose integrity has not been impugned, and the MARA, under the proposed amendments to the bill, will have the right to notify that practitioner’s clients with respect to the fact that they have been suspended, even though the outcome of the review of the AAT is still unknown.

The consequence of all this is that it is very heavy-handed. I do not believe it is a proper regulatory scheme. I believe that it will result in an enormous amount of uncertainty. It will probably result in some challenges to the High Court. But, most particularly, I do not think it will achieve the end aim. It will result, I believe, in another administrative overlay, where the department of immigration will be doing an enormous amount of statistical analysis and a review of all the advice that is provided by the legal practitioner or otherwise. Gavan, did you want to say anything to add to this?

Dr Griffith—No.

Ms Jockel—I believe that it raises far more concerns than the remedies that it seeks to provide.

CHAIR—Thank you both for that and for your written submissions. We will now turn to questions from members of the committee. I indicate to you that we are meeting at the same time as the Senate is in session. We are subject to the demands of the chamber, so if divisions are called then we will have to pause momentarily to attend those, and when we return we will take up proceedings.

Senator BOLKUS—I have to confess I do not know where to start because there are two levels of concerns: one is the broader constitutional type issues, and the other is the actual detail of the legislation. Dr Griffith, with respect to some of the points in your submission, I think you make the point at some stage that it is up to the department to determine which 18-month period is relevant. Is it at their total discretion to determine that?

Dr Griffith—It is a six-month period, 180 days.

Senator BOLKUS—Sorry; yes.

Dr Griffith—It seems quite open-ended. It can start and end at any time, as far as I can see. You would not be able to know in advance unless the regulations provided it. The major point is that six months is not enough time. Outcomes in immigration can take years rather than months. So, if one wants a statistical result, particularly for each category—I understand there are over 100 different categories—you may well have as few as four results thrown up.

Senator BOLKUS—You are saying that the period is too short, that the minister may choose the specific period—

Dr Griffith—And the category.

Senator BOLKUS—and category, and there is a concern about the flow of decisions being in the department’s hands, is there?



Dr Griffith—And the department also accepts, as one sees in the explanatory memorandum, that there may be areas such as change of circumstances in Iraq or Afghanistan with these huge results anyway. But the explanatory memorandum would say that we cannot make discriminatory provisions, so it all falls back to the broad across-the-board statistics, except for the distinction between temporary protection visas and others.

Senator BOLKUS—Have you focused on what in fact constitutes advice for the purposes of this legislation—what would be covered?

Dr Griffith—It would seem to be any activity where there is a form lodged with respect to an application for a visa or a review with respect to that application.

Senator BOLKUS—Does there have to be an application lodged or can it be advice before an application is lodged?

Dr Griffith—It can be.

Ms Jockel—The definition of what constitutes immigration advice is not clear, and there is some concern as to whether it relates only to applications which proceed or whether it is in respect of all advices, be they preliminary or otherwise. There is also no clear understanding as to whether it constitutes any immigration assistance of whatsoever nature and kind. That is not clear from the legislation, and the submission from the Law Society of New South Wales addresses the concern that the bill really muddies the waters about what constitutes immigration assistance.

Senator BOLKUS—Is it clear what a visa applicant is? Does it have to be someone who has lodged an application or can it be someone who has been assisted in the preparation of an application which may not go ahead?

Ms Jockel—That is an another issue. Within the Migration Act there is a definition as to what constitutes a visa applicant, but within the terms of the bill there is an enormous amount of uncertainty, in my view, over these very issues that you are raising.

Senator SCULLION—I do not think I need to question Dr Griffith’s submission in great length, but there are a couple of points on which I would like clarification. There seems to be a theme in your submission that migration agents who are not legal practitioners should be dealt with in a different way to those people who are migration agents and legal practitioners—I think that is the common theme. You have also made the point that people who are legal practitioners, even though they are migration agents, should be dealt with by legal professional bodies like the law society rather than by MARA. In view of the fact that you put the position that legal practitioners are in fact officers of the court and are bound by professional disciplinary laws, do you think it is okay for migration agents who are not legal practitioners to continue to advocate for clients in what is essentially a legal process?

Dr Griffith—As I understand it, that battle—as to whether or not it should be a matter for legal practitioners—has been lost. I am not contenting that you should have reliance upon professional obligations and professional disciplinary procedures. The point I wish to make is that, because they exist and because lawyers are in a special class that has been recognised by the High Court in the Cunliffe case itself, the aspect of right to communication that applies to lawyers who wish to communicate and give legal advice to clients is a constitutional mandate,



but that should be permitted. I was trying to make the point that one would look at a regulatory scheme and say, ‘What is appropriate?’ and adapt it for appropriate regulation.

My suggestion is that this scheme should be condemned inasmuch as it applies to all migration agents. If it is, however, to be adapted for its purposes, it should also, logically, as a categorisation which is appropriate for lawyers, have these additional obligations, as well as this additional qualification. One would hope, and expect, that additional ethical standards would be complied with so that, if there is a problem of a rogue legal practitioner—which has not been identified statistically at all in the explanatory memoranda or other reports—there would be a particular provision invoked to deal with that. For example, a South Australian solicitor has apparently lodged 700 applications which appear irregular. There may be a system to deal with that as a particular case.

My objection is to the fact that, across the board, there is an automatic application of the arbitrary scheme. As a subset of that, my objection is that to have an appropriate scheme it is almost essential to have discrimination between lawyers and non-lawyers. That is recognised already in principle, even by this report in saying that it will be assumed from the qualification that lawyers have the necessary understanding of the law and do not have to go through a course. My point is that one should go further and say, ‘What is appropriate to lawyers?’ This scheme after all is apparently being driven by statistical material, and yet nowhere in the statistics is a division made between lawyers and non-lawyers. Occasionally there is a difference made between some aspects of practice, but it is not identified that lawyers and non-lawyers, as migration agents, operate in a way where one can say that lawyers are a problem area. There may be individual lawyers who are a problem, but why have a scheme that regulates all lawyers?

Senator SCULLION—Dr Griffith, you clearly have in principle opposition to that.

Dr Griffith—Yes.

Senator SCULLION—Notwithstanding your opposition, what if you had to make some sort of recommendation about how we would regulate this? You have suggested that it would not be appropriate that MARA, as under the current proposal, would deal with the issues of all migration agents, whether they are legal practitioners or otherwise—

Dr Griffith—I did not say that.

Senator SCULLION—I am sorry; that is what I took you to say. Perhaps I will rephrase that.

Dr Griffith—I will seek to unsay that by saying that I accept that MARA may have a role, but there should be a different entry point. The entry point for migration agents who are not lawyers may be more strict because of the necessity to have some mechanism applying to those who would not otherwise be regulated. In the case of lawyers, I suggest that it should be less strict in being invoked, but when it is invoked I have no objection in principle to MARA being able to, for example, pursue this issue of the South Australian identified by Justice Selway. I am not asking you for exclusion from the scheme but for appropriate application of it.



Senator SCULLION—Just further to your comments on the appropriateness of the Law Society governing the activities and regulation of legal practitioners—and I take that as a given—do you think it would be appropriate for perhaps the Law Society to take over, in a regulatory sense, the entire process, rather than MARA being involved at all?

Dr Griffith—That would be a more sensible operation if legislation were required, because of the fact that law associations work under state laws when dealing with legal practitioners. I must say—and I said it specifically in my statement—that to my mind it is Orwellian doublespeak to talk of MARA regulating this as self-regulation, because the precipitating factor is the direction from those administering the statistical scheme that a person within seven days should be removed, subject only to rights of appeal. MARA really does not act independently here at all. It is the scheme itself, which is to ensure a statistical, mechanical operation, which makes it objectionable. I do not ask for exclusion of lawyers from regulation; I ask for appropriate regulation. I will refer to what Sir Anthony Mason said in the Cunliffe case. He was in dissent in the result, but what he said reflects true constitutional principle. He said:

In the context of an implication of freedom of communication, in order to justify the imposition of some burden or restriction on that right, it is generally not enough simply to assert the existence of facts said to justify the imposition of that burden or restriction. The relevant facts must either be agreed or proved or be such that the Court is prepared to take account of them by judicial notice or otherwise.

In other words, one must not merely trot out facts, as we have here; one must have established a case which in effect indicates that the most, or only, appropriate way of regulation is the chosen restrictive course. What I have sought to put in my submission is the assertion that, self-evidently, this scheme, while repudiating basic principles for administrative regulation, to the extent of being mechanical and to the extent of not being predictive but turning on uncertain outcomes, repudiates basic principles so that, if a constitutional prohibition attaches, particularly with respect to conduct by admitted lawyers, it is almost untenable to suggest that this scheme would pass muster.

On the face of things, Cunliffe establishes that this scheme falls within a constitutional prohibition. There is then a reverse onus on those who seek to justify the scheme that it is appropriate and proportional. My contention is that it so self-evidently repudiates basic principles that it is almost impossible reasonably to contend that it does pass that requirement. My opinion may result in this entire scheme being held unconstitutional. Even if it does not, for the same principles that support that opinion, I oppose it root and branch.

Senator BOLKUS—On page 11, at paragraph 22, you express concern about the transfer of personal information. Under this scheme there would obviously be a capacity for the department or agencies to accumulate personal information. From your reading of the proposed legislation, is there anything to stop that information being used against an applicant down the track—for instance, if someone on a tourist visa goes to a migration agent and seeks advice on whether to extend their visa or convert it, will information about their previous contacts for advice be made available to the decision maker down the track? Ms Jockel is nodding her head.

Dr Griffith—Self-evidently, one would expect that to happen. The idea of the scheme is to enable complete and perfect information to be available to those administering it as to each



and every activity by any migration agent, relevantly, with respect to any person who is an applicant. Whatever the provisions in the act, one must expect in the long run that that knowledge will be put as part of the background of information available to a regulatory authority.

Senator BOLKUS—Ms Jockel, do you agree with that?

Ms Jockel—Yes, I think it raises very real concerns and undermines very fundamental principles that are currently enshrined in the Privacy Act. I do not see any justification for that particular proposal, other than that it would be a mechanism to collect data. We would then have to question how that data would be used subsequently. It is capable of being used well beyond the intended provisions of this bill, in terms of statistical analysis as to what constitutes allegedly vexatious conduct.

Senator BOLKUS—I must admit that I am having trouble trying to read the stats provided by the department. Dr Griffith, at paragraph 18.4 you talk about, as you describe it, a whopping 58.24 per cent of migration agents coming within the unacceptable level.

Dr Griffith—There is one paragraph of statistics which make it seem as if, on the face of things, as much as 48 per cent of agents might be within the ambit of crossing the threshold. The statistics are so confusing in their absence of a basic analysis between lawyers and non-lawyers and the issue of what are the real complaints—five per cent are indicated as having been the subject matter of complaints, without any further analysis. As Disraeli said, there are lies, damn lies and statistics, but here the statistics seem to wallow in uncertainty and certainly do not produce a black box result which justifies this law.

Senator Bolkus, I notice you refer to some of the particular points in my memorandum. I would like to emphasise that the three pages in summary at the end really go to the basic issues of principle, which to my mind condemn this law. The issue as to expression by reference to statistics seems to be a secondary aspect, which goes to demonstrate, in as much as a target is identified, that even if one went down this route it would completely miss the target.

Senator BOLKUS—Sure. I can understand your points of principle, Dr Griffith, but in this place if you bowl something over on an impracticality it is probably more potent.

Dr Griffith—It gets a mark of 100 per cent on that.

Senator BOLKUS—The point I was about to make—and I think you might have led into it—was that for something like five per cent of agents who are of concern we are going to imperil the income and status of at least 58 per cent. Is that your assessment?

Dr Griffith—It is not five per cent who are of concern; it is five per cent who are subject to a complaint. There is no analysis of whether there was more than one complaint or whether any proportion of the complaints was justified or not. Usually with solicitors’ complaints it is one out of 10 or one out of 20 that even get to first base with justification. We are talking here about legislation which describes persons as ‘vexatious’—people who should be hounded out of their profession. There is no statistical basis to say that it is one per cent. The point I wish to make is that there is nothing in the material to indicate that it is anything more than that—or 20. As far as one can gather anecdotally, those persons are already known. Why not have a



complaints based procedure where they can be targeted? Mr Clisby in South Australia, whether he stood for parliament or not, could be told it is unacceptable to have 700 applications. He can lose his licence. I hesitate to name him, but I read it in the newspaper. One can target that quite easily, not with a scheme of this sort.

The basic vice here is the fact that all practitioners will not be able to conduct their daily affairs in an ethical manner, knowing that they comply with the requirements of this law. They are entitled to know when they get up each morning what they need to do to comply and what they cannot do. This law will never tell them. It will tell them at some uncertain time in the future that within seven days they are going to be struck off, their clients will be informed that they are vexatious and they can exercise potluck on their remedy. It is unacceptable.

Senator MASON—I have questions relating to two issues. Dr Griffith, I will leave the constitutional issues aside and simply look first of all at the assumption that you have already spoken to: that the failure of an application does not mean that the application is vexatious. Secondly, Ms Jockel spoke particularly about DIMIA—that is, whether it is appropriate that the department is the primary decision maker in these cases. I think those two issues are perhaps among the principal concerns you both have with the legislation.

Dr Griffith, in your submission you have referred to section 306AC(1) and have said that the minister may refer a registered migration agent to the Migration Agents Registration Authority for disciplinary action if the agent has a high refusal rate in relation to a visa of a particular class. Is it always true—and this is perhaps coming to the nub of it—that the failure of an application means that the application is vexatious?

Dr Griffith—Of course not. One might have a more than 90 per cent failure rate in the case of Iraq or Afghanistan—

Senator MASON—Sorry to interrupt. Can you give some examples of why that would not be the case?

Dr Griffith—I think Maria can do that.

Ms Jockel—If you look at the way the legislative scheme works, it could be that the applicant meets the criteria at the time of application but not at the time of decision because there has been a change in governmental policy. It could be that the applicant is not able to provide a vital document, such as a birth certificate, because they cannot get it from their country of origin—be it because it is war torn or whatever. This is a mandatory requirement in respect of which the legislation provides no discretion. It could be any number of issues. As I said earlier, why an application may be refused may have nothing to do with its intrinsic merit. Indeed, on the face of it, I as a specialist lawyer may say to you, ‘I believe you have a meritorious application,’ but subsequently, by virtue of a whole range of factors which cannot always be predicted, your application could be refused.

It may be successful on review, but you have got an extremely complex legislative scheme. It is one of the most complex legislative regimes to regulate migration flows that I understand operates in the world. It is as complex, in my submission, as the tax act. How can you use an arbitrary notion of success which is based on an arbitrary formula to equate that to vexatious? Nowhere in the legislation is there any definition of what constitutes ‘vexatious’, other than



this four-step arbitrary formula. So I think it could result in enormous injustice, in addition to the issues of constitutionality.

Senator MASON—Ms Jockel, can you tell me what you think about this example. Let us say you are applying for 100 temporary protection visas for Afghani refugees, and then the government decides that it is no longer unsafe for people to return to Afghanistan. Is it possible that you could make 100 bona fide applications, the situation changes—and whether you believe it does or does not perhaps does not matter—and thus government policy changes and all 100 are refused?

Ms Jockel—Indeed, and that is a very great concern. In fact I am wondering whether this legislative scheme is intended to prevent legal practitioners advising people in respect of protection visa applications because they have, by virtue of reality, a very high failure rate, particularly from certain countries. It is not an area that I practise in. I work in mainly the corporate commercial area, but it seems to me that, if you have got four strikes in one visa category in a period of six months, you are mandatorily vexatious. The department gives itself a residual discretion in a given instance to decide whether it is going to damn you as such or whether it is not. It is far too arbitrary.

Senator MASON—So there could be a fundamental change in circumstances and an agent could be exposed to disciplinary action.

Ms Jockel—Indeed.

Dr Griffith—I would like to add a point. This has a chilling effect on the capacity for those who need advice—in which the Constitution recognises a right at least for lawyers to impart it to them, but they could refuse to give that advice to needy persons. It may be those who are less likely to get a visa who particularly require that advice. But, because of the matters that Ms Jockel points out, for example, if she specialises in business visas and that is her career, she will turn away anyone who comes into the category of needing visa advice with respect to this uncertain area because, in one category, four bad results will mean that not only will she not practise in that area but she will lose her livelihood. It is an absurd regulation.

Senator MASON—We are running out of time, so I want to leave the issue of the failure of applications because they are vexatious and move to the issue of the department as the primary decision maker in these cases. Ms Jockel, you mentioned this issue in your opening testimony. What is the professional relationship between migration agents and the department? Can you give an analogy of the professional relationship? Is it, for example, like lawyers and the police, or lawyers and the courts? What is an appropriate analogy so that the committee can work out whether it is an appropriate regulation?

Ms Jockel—I do not know whether I can give you an analogy, but I can tell you how I consider my role. My role is to take instructions, to advise on the merits of the application, to act as instructed if I believe that the application has some merit, to lodge that application, to present it in accordance with the requirements of the legislation and the department’s policy advice guidelines, including all the relevant supporting documents if they are available, and then to liaise with the department in regard to the outcome.



Therefore, I am acting first and foremost as a legal practitioner providing advice and, in this instance, perhaps it is a visa application or something of that nature. In respect of an individual visa applicant or review applicant, the decision maker is independent of me and quite separate and has to assess the application based on its understanding of its own guidelines. If you look at the internal guidelines of the department, they run for thousands and thousands of pages. They do not necessarily marry with the black-letter law, and this is one of the factors that has been dealt with consistently in the courts—that is, what weight you give to the department’s policy advice guidelines.

On the point you made earlier, I could lodge an application based on the department’s current policy advice guidelines and, because they change regularly, by the time my client’s application was determined, those guidelines may have changed. I could then be caught up in a change of perspective, and I could be penalised. When I spoke to a senior officer of the department in Canberra on Tuesday and raised this issue, he said, ‘If you knew that you’d lodged four such applications in the last six months and you were concerned as to whether you were going to be knocked out, when the next client comes in through the door you can refuse to give them advice on that issue.’

CHAIR—Senator Mason, we are running short of time.

Senator MASON—I have just a couple more questions. I think this is central.

CHAIR—I do not doubt that.

Senator MASON—I understand what you are saying, Ms Jockel, but do you think it is appropriate that the department has the right to determine whether migration agents are appropriate to be dealing with that department? For example, using the analogy of lawyers and police, you could never say that the police should regulate the conduct of lawyers. No-one would say that.

Ms Jockel—Yes, indeed. That is absolutely right.

Senator MASON—Would you say that the department is the appropriate body to regulate the conduct of migration agents?

Ms Jockel—In no circumstances whatsoever. The current legislation already enables the department, in effect, to make a complaint to MARA in regard to any agent they are not satisfied with. Under the current scheme, MARA has the power to act on that and determine it appropriately. If I could think of any analogy—which you asked me to do earlier—this scheme is analogous to, for example, the health commission directing the AMA to deregister or suspend a doctor based on a statistical analysis of the success rate of his operations or the medication he provides to his patients, and the AMA being required to mandatorily suspend that doctor simply because of a direction from the health commission, with a right of review only after the mandatory sanction has already taken place. It is a nonsense. It is a concentration of power in a central decision-making body, and I feel there are inherent inconsistencies and tensions. The decisions are being made by mere clerks—they are employers of the department of immigration. They are grappling with very complex legislation. Just because you have been refused, it does not mean that the decision maker got it right. In fact, they could have it wrong and yet you suffer the consequence of this highly punitive scheme when you are acting in good faith.



CHAIR—Are there any further questions in this area?

Senator BARTLETT—In the interests of time, I shall defer my questions.

CHAIR—Thank you. Dr Griffith and Ms Jockel, thank you for your assistance to the committee this evening. Thank you for appearing via technology rather than in person. We are grateful to have had your assistance. I know it is not the easiest way to work, but thank you for bearing with us.

Ms Jockel—Thank you. Would it help the committee to address any other issues subsequent to this meeting, perhaps in writing?

CHAIR—Ms Jockel, if there are issues which you wish to pursue with the committee, or if you wish to provide further information to the committee, that would be helpful.

Ms Jockel—May I suggest that if there are issues that the committee would like addressed we would be very happy to augment our submission.

CHAIR—Thank you both very much. I know that both Senator Ludwig and Senator Bartlett will have matters that they wish to raise. The committee will be in touch.



[7.55 p.m.]

LACHOWICZ, Mr Robert, Coordinator/Principal Solicitor, South Brisbane Immigration and Community Legal Service

CHAIR—I welcome, by teleconference from Brisbane, Mr Robert Lachowicz. The South Brisbane Immigration and Community Legal Service has lodged a submission with the committee, which we have numbered 4. Do you wish to make any amendments or alterations to the submission?

Mr Lachowicz—Yes. We want to add our concerns regarding sections 312A and 312B.You might want a written supplementary submission about that, but I can talk through it with you. I want to make some slight changes with regard to my point 3, on the prescribed registration course.

CHAIR—Do you wish to correct typographical matters or to make changes of substance?

Mr Lachowicz—Changes of substance.

CHAIR—I suggest you do that, in relation to both matters you have raised, by providing a supplementary submission to the committee, which can be emailed or faxed to us tomorrow.

Mr Lachowicz—I can do that.

CHAIR—Thank you. I invite you to make a brief opening statement and, at the conclusion of that, we will go to questions from members of the committee. I apologise for being slightly delayed in coming to you this evening; we appreciate your patience and also advise you that the committee is meeting while the Senate is in session. If a division is called, we will have to adjourn briefly to attend that division and resume the committee hearing at its conclusion.

Mr Lachowicz—Thank you for that. I advise that I am doing this by candlelight, as I have no electricity at the moment.

CHAIR—Have you had a blackout?

Mr Lachowicz—Yes. I am at my home, rather than at work. We had a huge storm yesterday.

CHAIR—Thank you for your patience and forbearance.

Mr Lachowicz—Our legal service is an independent, not-for-profit organisation that provides refugee and immigration law services to disadvantaged people. We are funded through Commonwealth and state legal aid and the IAAAS. We are not motivated in any way by profit. I think that puts us in a specific category. We support workable and reasonable reforms to provide maximum protection to clients, build expertise within the migration profession and stop dishonest migration agents.

Our main concern is with regard to division 3AA, the formula for working out vexatious activity. That is outlined in the submission. We believe that it is based on flawed reasoning; that it will penalise lawyers and migration agents who are legitimately conducting their business; that it strikes at the very heart of the right to representation; that it will affect the most vulnerable clients; that it places an unfair burden on a large number of migration agents and legal services such as ours; and, most importantly, that it will not work and may further clog the system when clients take on cases themselves, rather than going through migration



agents. It could also serve as a screen for unscrupulous agents who monitor their vexatious decisions and keep just below the radar, or the threshold percentage, to avoid detection.

We believe the flaw in the reasoning is that the focus in the proposal is on the failure rate, not vexatious activity itself—which, I understand, is not defined anywhere. The proposed law assumes that failure is prima facie vexatious. That is a very wrong and potentially quite dangerous assumption, because it assumes that the failure rate indicates that agents are bogus. Certainly there is a high refusal rate throughout much of the system, but that may indicate the desperate nature of claimants and the increasingly restrictive nature of the system, rather than a bogus migration agent. This also assumes that, if people do not have agents, they will not lodge applications. But our experience is that people are desperate and they want to lodge wherever they are legitimately able to, because they have a remote chance of success or because of family or other perceived duties.

We believe that the regulatory impact statement makes wrong assumptions. It suggests that only two per cent of complaints to MARA in 2002 concerned lodgment of grossly unfounded applications and four per cent concerned agents misleading clients about prospects of success. The statement then makes the assumption that clearly few complaints are being made by the clients of such agents as the applicant has gained valuable extra time in Australia. That may be the case in some situations, but it ignores the fact that many people want to have their case determined as quickly as possible and that they are making claims because they have genuine desperation and fear. The regulatory impact statement also bases its comments on the departmental-level protection visa decision-making and failure rate, which is a lot higher. The decision making of the department at that level is cause for concern in some areas.

So the basic point is that a failure rate does not necessarily indicate that an application is bogus. I am sure you have heard that many times before. The fact that it attacks the right to representation will put pressure on agents to refuse to take on some cases for fear of failure. Because the department makes the decision, it is like the police striking off lawyers because they have unsuccessfully defended a number of clients charged with criminal offences. In our legal system every person has a right to a lawyer and will get one if they can obtain legal aid or pro bono services or they can afford it. If a person’s case fails, the system does not penalise lawyers by making them have to prove that the lawyers themselves are innocent of misconduct. If the lawyers acted unethically, there must be some complaint or other prima facie evidence that misconduct may have occurred. Lawyers then have an opportunity to defend themselves. However, this puts the burden unfairly on migration agents to basically prove their innocence at a time when there is no prima facie case that there has been any bogus claim or misconduct.

There is also a possible constitutional problem. On page 41 of the regulatory impact statement we note that the Australian Government Solicitor advised about constitutional validity and restriction on freedom to communicate. It is stated that that would be appropriate and adapted to achieving legitimate ends as long as the percentage refusal rate is set relatively high as this would thereby capture ‘only those agents seeking to exploit the visa application system’. Clearly it will not capture only those agents seeking to exploit the system. As stated in our submission, a high refusal rate does not necessarily mean that an agent has been engaging in vexatious conduct. There are many genuine humanitarian and compassionate



cases which may be refused, but these are legitimate candidates for ministerial discretion. But even then they may fail—they may not get through on ministerial discretion. We believe that, rather than trying to protect the most vulnerable, this will stop many people who are desperate because of their situation.

Our experience is that those people are compelled by desperation or family duty to take legal steps to give themselves or their families a chance. It will not, in effect, prevent people taking their own cases on to tribunals and courts, which can lead to further inefficiencies and injustices and clog the system. It will affect very many agents and it will have a huge effect on pro bono services. We take on many cases which are the most marginal, the most extreme. We believe they have merit but, because they are very complex, they may often lead to failure, but that is by no means an indication that what we are engaging in is vexatious conduct.

There are problems also with the actual formula that is used. What if there is a failure on character or health grounds? That may then lead to a failure, but it actually may not be any reflection on what the person’s chances were at the start when the agent took the case on. Also, what happens if agents change during the course of the case? Is the law aiming to get both agents? Which agent will be penalised? I think I have mentioned before that the department will be the accuser and the judge. Agents have to prove to the department—and the department has previously failed the application—why the cases are not unfounded. There will be a perception that this process will not be unbiased.

Our recommendations are that at the very least these provisions do not apply to pro bono legal services, as the motivation to lodge vexatious claims for monetary profit does not exist in those services. There is some intention, I understand, that the applications will not apply to those under the IAAAS, but there are also other sources of funding that we and other legal services have which, if it is limited only to IAAAS, will not exclude us from these very onerous provisions. Further, because we believe they will strike at the vast majority of registered agents who are carrying on business legitimately, our recommendation is that the scheme not apply.

The only other issue we wanted to raise was a possibly minor amendment to proposed section 280. That section ensures that people in the community are not prevented from offering free assistance to others to lodge applications. The words ‘or other reward’ may be ambiguous. That is outlined in that paragraph. We were also going to amend slightly the section on the prescribed registration course and the joint publishing one—point 4. We support that, but in fact MARA did allow some previous publishing, and I am not sure whether there should be some clause legitimating these previous registrations.

CHAIR—Thank you. We will now go to questions.

Senator LUDWIG—Just before we deal with some of the substantive issues in your submission, some agents and other groups have advocated, in dealing with this area, that at least registered agents have compulsory professional indemnity insurance. Do you have a view about that?

Mr Lachowicz—We have compulsory professional indemnity insurance. I believe that it would be a wise move to cover the situations. I do not see any problem with that, apart from



costing. As I said, our legal service is under a national indemnity policy, and I am quite sure other community legal centres are as well.

Senator LUDWIG—Would there be a consumer benefit in having the accounts of registered migration agents audited annually, in a similar fashion to what happens to lawyers?

Mr Lachowicz—Having their accounts audited?

Senator LUDWIG—Yes, their trust accounts.

Mr Lachowicz—We do not have trust accounts. In the sense that lawyers do have that requirement, I cannot think of any problem in relation to that apart from the administrative problems which may be an issue. I have not given it that much thought, but in principle an immediate response would be that it is a very important professional area of law that they are undertaking and therefore in principle there would be no objection.

Senator LUDWIG—In respect of intervention requests, does your organisation undertake many of those?

Mr Lachowicz—Do you mean ministerial interventions?

Senator LUDWIG—Yes.

Mr Lachowicz—Yes.

Senator LUDWIG—Approximately how many per year would you make?

Mr Lachowicz—I am sorry but I cannot give you that figure. I have recently come back into the legal service. I could in my supplementary—

Senator LUDWIG—It is relevant to the extent that in the process where you are asked to seek an intervention by the minister you are required to go through the RRT.

Mr Lachowicz—Yes.

Senator LUDWIG—In which case a negative outcome would normally be the result.

Mr Lachowicz—Yes.

Senator LUDWIG—Because if you got a positive result clearly you would not be required to make a ministerial intervention. Having received a negative response, what would happen to the clients? You would have to have some sort of assessment process in the beginning to avoid having too many negatives in the overall scheme of things before they even went to the ministerial intervention unit in respect of which there is a certain refusal rate. How would that affect your overall complaints based system under the new regime proposed in this bill?

Mr Lachowicz—I am not sure I understand the question.

Senator LUDWIG—I was trying to get there in a shorthand way. Perhaps I should take a little longer to explain. You understand that the system that is being proposed is complaint based in terms of refusals or negative outcomes.

Mr Lachowicz—Yes.

Senator LUDWIG—By its very nature, ministerial intervention does not have a very high success rate.



Mr Lachowicz—My understanding is that it is not complaints based; it is based just on a refusal rate. It is not that the person is actually going to make a complaint.

Senator LUDWIG—No, but a complaint will then result.

Mr Lachowicz—From the department?

Senator LUDWIG—You will then be investigated, I assume.

Mr Lachowicz—Yes.

Senator LUDWIG—Do you know what your refusal rate or percentage of unsuccessful ministerial interventions is?

Mr Lachowicz—No, we don’t, but if this went on I guess we would certainly have to keep an eye on that.

Senator LUDWIG—Would the success rate be in the order of more than 50 per cent or 60 per cent or would it be a lot less than that?

Mr Lachowicz—I am sorry, I could not tell you that. That is a statistic that we really need to have at the legal service which was referred to recently, but I cannot provide you with that now.

Senator LUDWIG—You said you would have to have a look at that. Does that mean that you would have to turn away people who would need or require your services?

Mr Lachowicz—That possibly might be the case. We have a duty to assist people and there are disadvantaged people who we believe have good claims. But if one of our workers, or me as principal, has a high refusal rate that would certainly put a lot of pressure on us not to take cases on. It would make it very difficult for us to provide our legal aid services.

Senator LUDWIG—Would it be fair to say that many of the cases that you currently get come from people who are disadvantaged and who clearly would be unable to put their own cases?

Mr Lachowicz—Absolutely, yes.

Senator LUDWIG—If you introduced a screening process, there would be very few other places for these people to go?

Mr Lachowicz—Yes. That is absolutely right.

Senator LUDWIG—Does that concern you?

Mr Lachowicz—Absolutely, yes. We are greatly concerned.

Senator BARTLETT—I have a couple of questions, given the time. You mentioned in your submission the prescribed training course fee and the concerns that it gives you.

Mr Lachowicz—Yes.

Senator BARTLETT—Do you believe that a prescribed training course is desirable?

Mr Lachowicz—Yes. We have no problem with that. The main issue—that is why I need to amend it—is that there is a $1,250 fee, an exam fee, now required. With the prescribed course for non-commercial agents, legal centres can offer courses for non-commercial agents at lower cost. Thinking of it now, if it is a prescribed course and if it covers the areas that the



agent is going to work in, that should be sufficient for sound professional knowledge. Our main concern was the $1,250 fee, which I think has probably gone through and which would put some limitations on pro bono and non-commercial agents taking up their agents registration. That would put pressure on legal aid services because there would be reliance on non-commercial agents. We have our legal service and we use lots of volunteers. We also have private agents who do volunteer work for us, which will be an issue with providing advice under sections 312A and 312B, as we will write about later.

Senator BARTLETT—In the specific context of a community legal centre—obviously there is not a stack of resources and people have a pretty heavy workload—and the requirements regarding the obligation of agents to report to the department, is your concern just the extra workload or are there other concerns?

Mr Lachowicz—There would be an enormous workload with the requirements. It is possible that every advice that our volunteers provide will need to be given to the department. What level of notification we would have to give is not spelt out. There would be a huge resource problem with the department. If we give advice at, say, our volunteer advice sessions, we will not know whether a person is going to make an application. If the person makes an application, even if we advise him not to, under the law the person giving the advice—that is, our volunteer—would be strictly liable. Because our volunteer advisers are supervised and ultimately the principal solicitor checks their advices, is the principal solicitor, or the day staff also, strictly liable if no notification is given? We are very concerned about that. I am not sure whether that is what you—

Senator BARTLETT—No, that is a helpful, wide-ranging answer, thank you.

Senator MASON—I think you conceded that there is potentially a problem with vexatious or unprofessional migration agents. You have raised problems with the bill’s proposal to determine whether a migration agent is vexatious. I understand those concerns you have raised. Do you have anything else in mind? What would you propose as a better solution to the problem?

Mr Lachowicz—I would love to have the time to actually think about that. We would certainly be happy to provide some thoughts on that, but I really have not thought beyond the shock of the proposal of just a mere percentage failure rate. So I have not given it much thought. I am sorry.

CHAIR—Thank you very much for your time this evening, particularly in light of the circumstances in which you have given us evidence. We are very grateful for your assistance and for your written submission. If you could provide those amendments and any supplementary material to the secretariat, we would be grateful.

Mr Lachowicz—You are most welcome.

CHAIR—Thank you.



[8.21 p.m.]

CHAO, Ms Laurette, Chairman, Migration Agents Registration Authority; and National President, Migration Institute of Australia Ltd

CONYER, Mr Arnold Joel, New South Wales State President, Migration Institute of Australia Ltd

HOLT, Mr Len, National Vice-President, Migration Institute of Australia Ltd

JONES, Mr Brian, Director, Migration Agents Registration Authority

MAWSON, Mr David, Executive Officer, Migration Agents Registration Authority

CHAIR—Good evening, ladies and gentlemen. The committee has received submissions which we have numbered 13 and 17. Are there any amendments or alterations you wish to make to either of those submissions?

Ms Chao—No.

CHAIR—I would like to invite you to make a brief opening statement and, at the conclusion of that, there will be questions from members of the committee. I am not sure how many of you wish to speak this evening, but I would certainly ask you to begin, Ms Chao.

Ms Chao—Thank you. I would like to add that, in addition to my roles as National President of the MIA and Chairman of the MARA, I am also a registered migration agent and an immigration law accredited specialist and practising solicitor of some 14 years. You will notice that we have a full house here at the moment. That is because of the functions that we serve. We are here as the MARA, in our capacity of exercising administrative functions under part 3 of the Migration Act. For that purpose, Brian Jones, director of the organisation, and David Mawson, executive officer, will be answering questions. In terms of our professional association, representing the interests of our members, we will be addressing the committee with the assistance of Arnold Conyer and Len Holt. That will make it very clear in which capacity we answer a question. We know that, on occasion, there can be confusion.

We have lodged two separate submissions. They have many similarities, as you will have noticed, but they are from different angles. Overall, both submissions support the thrust of the bill, much of which allows clarity and greater flexibility in the powers of the MARA to make more efficient decisions. For example, there are technical changes that ensure consistency, initial applicants have the ability to have joint publication and the MARA has the ability to lift cautions, have suspension notices removed from the record and provide conditions on sanctions which have an educational thrust apart from the deterrent sanction.

We are, however, in both capacities, concerned with the mechanism contained in division 3AA as well as the ambiguity and wide-reaching nature of sections 312A and 312B, which we believe may contain an unintended consequence—which no doubt the committee has heard about from other people this evening.

I would like to make clear that, apart from our role as the MARA and in part 3 of the act, we represent the interests of our members, who are registered migration agents, lawyers and non-lawyers, and can include accountants and other professions. We would like to make it clear that we make no distinction between our members. In fact the national executive and



board represent a good cross-representation of all of the above. We reflect the mix of the population of the migration advice profession. For instance, more than 25 per cent of our board members are solicitors with practising certificates, such as me and Mr Conyer, and we both are in fact accredited specialists. The balance have other formal qualifications but are not lawyers. Thank you.

CHAIR—Do you have anything further?

Ms Chao—Yes. We would ask that questions be initially directed to me.

CHAIR—Sure.

Senator BOLKUS—The MARA submission—and this may help you work out who should answer the question—indicates that MARA should not be compelled to sanction agents referred to by the minister but you should have the power to make your own decision. Have you thought of how such a system should operate in the future? Have you considered, for instance, that there may need to be criteria on which you would make your decisions and, if so, what those criteria should be?

Mr Jones—The issue of criteria is probably what started this whole problem. The issue has been how to identify people who are behaving against the best interests of their clients, the country et cetera. We do have the power under the code of conduct to consider whether agents are acting vexatiously. If in fact it was intended to impose particular criteria on that, then I suppose you begin to argue from where we are now in terms of what is possible.

Senator BOLKUS—That is what we are doing. We are trying to work out where to go from here.

Mr Jones—I am sorry. I have not made myself clear. I am talking about if the intention is that the decisions be made outside the MARA and the directions come into the MARA. I am sorry. I thought you were talking about that as an alternative.

Senator BOLKUS—I am saying: putting aside what is in the bill, your argument is that you should not be compelled to sanction when the minister decides.

Mr Jones—Yes.

Senator BOLKUS—In those circumstances, would you, for instance, look at different criteria to apply? Issue 1, given that there is going to be legislation, is: should those criteria be legislatively based? Should we, for instance, be looking at concepts of serious misconduct, or at regulations to determine what vexatious conduct or vexatious applications should be? Should there be more certainty, for instance, in governing the way that you could operate in the future?

Mr Jones—The MARA has dealt with agents over the issues of vexatious and unfounded applications. I think some cancellations and other penalties were referred to in the submission. The issue of criteria is what I think you are driving at, and it would be of assistance if there were clear-cut criteria. If you are asking me at the moment to recommend alternative criteria to those currently under discussion, then I would not be in a position to do so, whether in fact the organisation would take the opportunity to make a further submission on that.



Senator BOLKUS—There are definitions of unfounded or vexatious applications in the code. What about putting that in legislation? That would give you a bit more bite.

Mr Jones—The code is in the regulations. You are suggesting that we shift it to the act. In many sectors, it is thought not to be a tight definition, a definition which makes it clear what is and what is not a vexatious activity. You will see many discussions in many places about what exactly a vexatious activity is. Is an agent vexatious by how many issues et cetera? It is a very unclear area. I am not willing at this stage to speculate on alternative criteria, if you will forgive me.

Senator BOLKUS—Sure. The Migration Institute think these measures will force out ethical agents and drive the devious further underground. Can you explain to us what you mean by that?

Mr Conyer—Once a body of regulation or legislation exists which causes a sword of Damocles, as I suppose one could call it, to hang over an adviser should that adviser act in a certain way and have those actions brought to the attention of, in this case, the minister, the adviser will simply hide in the shadows or go underground, as has been referred to in advices we have received which I agree with. A simple way of avoiding that sword of Damocles is to do just that. One simply does not become named, labelled or attached to any particular application which an applicant may make.

Senator BOLKUS—That is a very broad suggestion. On that basis, you would not have any legislation for anything. Is the problem that it is too easy to get into the industry?

Mr Conyer—That is certainly not the problem. There are so many rules, regulations and aspects of the code of conduct that exist today—along with the ever vigilant MARA, which deals with numerous complaints et cetera—that one simply cannot ascribe ease of entry to the profession as being the cause of all ills. I would like to raise an issue which I do not believe is referred to in our paper, and that is the speed of conclusion of an application. It is my experience that there are applications made by unscrupulous persons simply on the basis of wishing to obtain further time in the country for their applicant. If more attention could be paid to speeding up an initial application and to methods to speed up the review process, that would remove—quite substantially, in my personal view—the necessity to use devious means to enable an applicant to remain in the country for extended periods.

Senator BOLKUS—You mention that complaints are running at about five per cent. Of those complaints that are brought to you, is there anything to stop the government complaining against a particular agent?

Mr Mawson—No, there is not.

Senator BOLKUS—Do they complain?

Mr Mawson—Certainly the department do complain about a number of agents. Approximately half of our complaint load comes from the department, across many aspects of an agent’s behaviour.

Senator BOLKUS—Do you have any statistics as to what percentage of those complaints you uphold?

Mr Mawson—I do not have that information here, but we could give you that.



Senator BARTLETT—I have questions on a couple of aspects. MARA expressed opposition to being compelled to apply sanctions, and you gave a suggested alternative of perhaps the minister recommending and you making a decision and providing reasons back. Is there any further detail you would like to outline in relation to how that would apply? I am assuming that the alternative you are suggesting is not seen as a way of saying that you will live with the problems you have with division 3AA.

Ms Chao—That is correct.

Mr Mawson—We do not have anything to add to that at this point in time.

Senator BARTLETT—But that suggestion of an alternative does not mean that you could live with division 3AA if that alternative approach was put forward, does it?

Mr Jones—The suggestion, I think, is to bring the issue back within MARA’s ambit as a decision maker. DIMIA or the minister would identify a person they believe to be vexatious or lodging applications outside of the best order of things and refer that to MARA. MARA would then call the person to account for that and make the decision as to whether their explanation of the circumstances was appropriate or inappropriate and then MARA would move to make the decision on penalty and whether there should be a sanction, rather than having a situation of being directed that there will be a sanction and what the penalty will be. It would simply put the issue back in the hands of the regulator.

Senator BARTLETT—But your concerns about the mathematical formula for determining vexatiousness still remain?

Mr Jones—A separate concern. If DIMIA were in a position, though, of referring a person based upon that mathematical formula, a separate organisation—MARA—would then be looking at whether that particular set of statistics warranted action.

Senator BARTLETT—The MIA submission and I think the MARA one—and pretty much every other submission we have got, actually—express concerns about this formula. Do you have any alternative ways of determining or identifying potential vexatious agents? I recognise there is actually a system in place.

Ms Chao—We do not actually have any alternatives today, but we are considering alternatives to address the concerns that resulted in recommendation 16 as well as the bill that is before you today. At the moment we are actually consulting senior counsel to assist us with some alternative proposals. Proposals—which, at this point, we do not have—can range from the simplistic issue of saying that the problem of too many cases and applicants buying time can be reduced by reducing processing times, which Mr Conyer referred to earlier, to a more complex issue of drafting changes to the act in terms of the rights of individual applicants, which may determine their decision making and the advice that comes from a registered migration agent.

Senator BARTLETT—Is there a general acknowledgment amongst you people who are here tonight that there is a problem in relation to migration agents doing the wrong thing or people who are not even registered as migration agents doing the wrong thing?

Ms Chao—Yes. We think there is, but we are of the view that we have the powers to deal with such issues, and we want more powers in terms of the balance of the bill, outside of



division 3AA, which we have already expressed in our submission and in our opening statement.

Senator BARTLETT—So both organisations have acknowledged—as you have said and as MARA have said in their submission—that the broader thrust of the bill, giving MARA more powers to address this problem, is a welcome move forward.

Ms Chao—Yes, Senator.

Senator BARTLETT—I do not know whether you have read the submission or whether you heard the comment earlier from SBICLS about the prescribed training course fee.

Ms Chao—Yes.

Senator BARTLETT—Do you have any response to that?

Ms Chao—We do. Perhaps this is a question suitable for the MARA function.

Mr Mawson—From the MARA function, the question related to the cost of the common examination. The way MARA have moved forward, we are working to have market forces apply so that any number of providers who can deliver the outcomes necessary for an applicant to be able to demonstrate their proficiency in the knowledge of migration law and procedure would be able to sit for the examination. In terms of the courses, that would be a market forces area. Certainly organisations like SBICLS, IARC, who run their own courses and run them very well, can continue to train their people. The issue that was being raised, I believe, is in relation to the fee for the common examination. The fee for the common examination was determined through looking at our costs that are involved in running the examination, in getting to this particular point, and where we have got to move to in the future. Those costs are then amortised over an expected number of applicants who come into the scheme.

There have been a number of suggestions that the non-commercial area should be looked at for special leniency or special costing. One of the difficulties is that when a person puts their name down to do the examination, we have no idea as to whether they are going to be a commercial or non-commercial agent. They just apply as an individual. We have also considered the issues of MARA going into some contractual arrangement with the individuals who apply on a non-commercial basis, and we have found that quite difficult. However, the authority has raised that issue with the MIA function.

Ms Chao—I would ask Mr Holt to address the committee from the MIA perspective.

Mr Holt—There is a strong relationship between the MIA and a number of the affected organisations. The MIA are currently looking at arrangements that we might be able to put in place to assist in these sorts of circumstances, within the limited resources that we have available to us as an association. We certainly do have a strong belief that we ought to be doing what we can to assist not-for-profit organisations such as the ones you mentioned. We are currently looking at ways that we might be able, as an association, to look at assisting. We acknowledge that, over a period of time, the government has been reducing the assistance available to some of these organisations, and we are looking to try to make some small contribution in that respect.



It ought to be noted that significant numbers of these individuals are members of the Migration Institute of Australia as well. We do participate with them in other forums, predominantly in and around MIA conducted or sponsored continuing professional development activities around the country where we work very closely with a number of these organisations. There is a great deal of backwards and forwards between us and, as I said, we are currently looking at ways that we might be able to assist, as an association, in terms of some funding.

Senator BARTLETT—I understand that that would be outside the scope of the legislation in any case.

Mr Holt—Yes.

Senator BARTLETT—I encourage you in your pursuits. You may have heard the earlier evidence from the Law Institute of Victoria. In their submission they were concerned about the failure to distinguish between agents with legal qualifications and practising certificates and other agents without legal qualifications. I think this is probably a MARA issue in terms of registration. I know this is going a little beyond the scope of the bill, so I do not want to push it too far, but they have raised it in the context of this hearing. They have raised the broader issue of the highest quality advice, and there seems to be a dislike of the fact that people without legal qualifications can get into the industry so easily. The non-lawyers amongst you—if there are any—might like to comment on whether that presents a problem and whether there should be a higher minimum entrance requirement. Whilst it is not in the bill, I think the general issue of higher standards could be addressed. They have presented some alternatives. Does MARA have a view on that?

Ms Chao—I will ask our executive officer, David Mawson, to answer that question.

Mr Mawson—The fact that MARA has gone to the trouble of introducing a common entrance examination for all individuals who do not have prescribed qualifications is an indicator that the authority has had some concerns about the entry level in the past and has taken positive steps to put a benchmark in place which, at first instance, is a test of an individual’s knowledge of migration procedure and the legislation. We are aware that there are many issues here. We have had a committee of individuals working on this issue, and it has been reported in our annual report each year since 2001.

The entry level knowledge assessment committee have been very involved in assisting the authority and they have given some valuable insights into the problem. They have assisted us to move to the point where we are today—that is, having the entry level exam—and are assisting us further with the next stage of this process which we have already enunciated in some form in relation to skills. We will continue to increase the standard necessary for an individual to come into the profession. Certain

senate - parliament of australia...bill 2003 and the migration agents registration application...

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