Office of the Minister of Immigration
Chair
Cabinet Economic Development Committee
LICENSING IMMIGRATION ADVISORS - REGULATORY MODEL
Purpose
1
This paper sets out a regulatory model and framework for legislation for the regulation of
immigration advice, as directed by Cabinet in May 2004 [CAB Min (04) 16/4 refers].
Executive summary
2
Cabinet first considered the issue of enforceable standards for the provision of New Zealand
immigration advice in December 2000 [CAB (00) M 41/2D refers] and noted that the harm
caused to many immigration applicants justified government intervention. After consideration
of various regulatory models, Cabinet agreed in principle to statutory regulation in May 2004
[CAB Min (04) 16/4 refers] and directed officials to report back on a framework for legislation
by 1 December 2004.
3
The purpose of regulation will be to promote and protect the interests of consumers in
relation to the provision of immigration advice, and to enhance the reputation of New Zealand
as a migration destination. The paper suggests tightening the working definition of
‘immigration advice’ and using the term ‘immigration advisor’ (rather than agent). Licensing
will be on an individual basis.
4
A number of exemptions from the requirement to hold a licence are proposed. The
exemptions mean that the Department of Labour (DoL) will only accept immigration
applications from applicants themselves, or licensed immigration advisors, family members,
practising lawyers, current Members of Parliament and their staff, employees of the public
service, foreign diplomats and other exempt persons prescribed in regulations. The not-forprofit sector will not be exempt from regulation, but will not have to bear the full costs of
licensing.
5
Officials considered voluntary and compulsory options for offshore licensing. The paper
proposes that people who are ordinarily resident in New Zealand will be subject to sanctions
if providing advice offshore. Advisors based offshore may opt in to the licensing regime for
three years from the time of enactment. A ‘sunset clause’ is proposed that will require all
offshore advisors to become licensed after three years (with the exception of persons
advising on student visa and permit applications). Reciprocal information sharing between
the regulator and its overseas counterparts is also proposed.
6
An immigration advisor’s licence will be of one broad type, but the new regulator will be able
to set differentiated licences, if appropriate. There will be provisional licences for new
entrants to the industry. To obtain and hold a licence, advisors must meet competency
standards set by the new regulator and be ‘fit’ to practise. Fitness standards will be
prescribed in legislation, and include consideration of previous convictions, unlawful status
under the Immigration Act 1987 and bankruptcy and other charges. No age or citizenship
restrictions are proposed. The new regulator will make a code of conduct that sets out
standards of professional and ethical conduct. Licence holders will be required to renew
their licence annually, and details of licensed immigration advisors will be recorded and
updated on a public register to be maintained by the new regulator.
7
The preferred organisational form of the regulator is a statutory body within a government
department. The paper recommends that the DoL is the host government department, but
2
that legislation provide for transfer the function to an alternative government department, if
appropriate in the future. The responsible Minister will be the Minister of Immigration, as the
objectives of regulation relate strongly to government’s overall immigration policies and
maintaining New Zealand’s international reputation. The new regulator would be known as
the ‘Immigration Advisors Authority’. The functions of the Authority would be developing and
maintaining rules and the code of conduct, administration, education and professional
development, communications and public awareness, and enforcement.
8
Enforcement provisions fall into the following categories – administrative actions, complaint
and disciplinary procedures, and offences and penalties. Complaints will be heard by a
complaints and disciplinary body that is a part of the Authority. Detailed complaints
procedures will be determined by the regulator. Screening mechanisms, timeframes for
hearing and completing complaints, rights and duties of immigration advisors and powers of
inspection will all be set out in legislation.
9
The grounds for complaint will be negligence, incompetence, incapacity or any breach of the
code of conduct or rules. Disciplinary sanctions will be primarily administrative in nature, and
will range from caution and censure, to payment of a fine, to suspension or cancellation of a
licence. Consumer redress measures will also be provided for, in terms of refund of fees
paid or compensation payment. The right of appeal and review will be to the District Court.
10
Both licensed and unlicensed advisors will continue to be subject to immigration offences
under the Immigration Act, the Crimes Act 1961 and other legislation. The paper proposes
repealing section 142(1)(j) of the Immigration Act, which has proved problematic since its
enactment in 1999. New offence provisions are proposed, the main offence being providing
immigration advice without a licence. New offences are also proposed against persons who
profit from the provision of immigration advice without a licence. The majority of new
offences will be split into two classes – offences involving knowledge and those of strict
liability.
11
A range of penalties for offences consistent with existing penalties under the Immigration Act
and Australia’s migration agent registration legislation is proposed. Imprisonment will be
provided as a penalty for knowledge offences, and strict liability offences will carry
correspondingly lower penalties. In addition, the courts will be able to order additional fines
reflecting any commercial gain or material benefit resulting from the provision of immigration
advice by an unlicensed person.
12
Legislation will provide that the DoL must refuse to accept immigration applications from
unlicensed immigration advisors. Administrative responses to minimise adverse impacts on,
and reactions from, immigration applicants will be put in place.
13
The paper proposes a 12 month set-up phase, followed by a further 12 months for advisors
to meet entry standards, apply for a licence and be approved by the regulator. An education
and communications strategy will also be put in place for consumers and other stakeholders.
This would mean that legislation will come fully into force two years after enactment of the
legislation. (Offshore advisors may voluntarily opt in to the regime for three years).
Background
The immigration advice industry
14
A range of professional and not-for-profit organisations and individuals provide immigration
advice both onshore and offshore. They include government officials, people who describe
themselves as immigration consultants or practitioners, lawyers, citizens’ advice bureaux and
education agents, among others. The immigration advice industry offers a wide range of
services - the most common being representing applicants in their dealings with the DoL.
Immigration assistance may also extend to education, settlement and citizenship matters.
3
15
The number of active immigration advisors at any one time varies in response to immigration
policy changes and other external factors. In May 2004, officials estimated that there were
around 600 active immigration advisors operating in 2002/03. An immigration advisor was
used in around 9,000 (37 percent) of residence applications, and around 66,000 (17 percent)
of temporary entry applications in 2003/04. Around 40 percent of immigration ‘transactions’
with the DoL where an immigration advisor was involved were from immigration advisors
based offshore.
16
Cabinet noted that, in order to inform further work, the DoL would develop a list of all active
immigration advisors, including offshore advisors [CAB Min (04) 16/4 refers]. In October
2004, the DoL commissioned BRC Marketing and Research Ltd to undertake a survey of
immigration advisors who had interacted with the DoL in the year May 2003 to May 2004. Of
the 450 survey respondents, 409 immigration advisors said that were currently actively
providing immigration advice. Most respondents had been providing advice for more than
five years (57 percent). Ninety percent of respondents had a formal qualification, most in
Law or Business. Eighty-four percent of respondents said they provided immigration advice
for profit and 16 percent were not-for-profit.
17
Based on the results of the BRC survey, the DoL estimates that there are likely to be around
1,000 fee-paying licence holders (both on and offshore) and 180 not-for-profit licence
holders. This includes individuals who do not currently transact with the DoL but who may
become licensed.
Previous consideration
18
Consideration of enforceable standards for the provision of New Zealand immigration advice
has been ongoing for over four years. In June 2000 the Minister of Immigration sought
responses to a public discussion document. Cabinet considered the issue in December
2000 [CAB (00) M 41/2D refers] and noted that the harm caused to many immigration
applicants justified government intervention.
19
In July 2001 Cabinet considered advice on enhanced self-regulation and a statutory model
involving aspects of registration, certification and licensing. Cabinet noted that a statutory
model was more likely to contribute to the objectives of regulation. The Minister of
Immigration was directed to report back with detailed policy options on self-regulation under
a statutory umbrella, and enhanced self-regulation [CAB Min (01) 22/26 refers]. This work
was deferred while government considered a range of other changes to immigration policy.
20
Cabinet agreed in principle to statutory regulation of people providing immigration advice in
May 2004 [CAB Min (04) 16/4 refers]. The DoL was directed to develop the detail of the
regulatory model and a framework for legislation and report back to Cabinet Economic
Development Committee by 1 December 2004. In order to inform consideration of the detail
of regulation, the DoL held dialogues with stakeholders in Auckland, Christchurch, Hamilton
and Wellington in July 2004.
Problem definition
21
Complaints to the Minister of Immigration about immigration advisors have included:
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1
lodging unfounded/abusive refugee status claims without the client’s knowledge
inaccurate advice about immigration policy leading to poor and costly decisions
theft of money and documents
failing to lodge applications and appeals
failing to pass on information from the DoL to the client, and
knowingly submitting false information or fraudulent documents to the DoL.1
Department of Labour, The Immigration Consulting Industry in New Zealand (July 2001).
4
22
In some cases of incompetent or unethical practices by an advisor, applicants have suffered
serious financial loss due to high fees and unsuccessful settlement in New Zealand. Some
have also suffered damage to careers, family dislocation, significant personal hardship, and
are unable to gain approval to re-enter New Zealand. The cumulative harm caused is, in
many cases, significant and irreversible in others.
23
Onshore immigration applicants can make use of existing consumer protection measures,
such as the Fair Trading Act 1986, the Consumer Guarantees Act 1993 and the Disputes
Tribunal. Immigration advisors operating in New Zealand are subject to normal New Zealand
business legal requirements and, more particularly, offence provisions under section 142 of
the Immigration Act.
24
In 2003/04, the DoL took seven prosecutions against persons who gave immigration advice.
The charges related primarily to unlawful taking of a document, forgery, and providing false
information. The DoL notes that a large percentage of immigration advice fraud is committed
without an immigration application ever being lodged. This limits the DoL’s ability to
prosecute, as the DoL can only investigate offences committed against the department, not
on behalf of an immigration applicant.
25
There is currently limited self-regulation of the immigration advice industry. Many New
Zealand immigration advisors do not belong to any industry or professional body. There are
two main voluntary industry organisations - the New Zealand Association for Migration and
Investment (NZAMI) and the New Zealand Immigration Institute (NZII). Members of these
organisations are subject to their standards. Other professions who provide immigration
advice, such as lawyers, are subject to their own regulated disciplinary processes. The
NZAMI reports that around half of the complaints it has received in regards to its members
relate to failure to provide services for which the member has been paid, or providing
misleading advice.
26
In May 2004, Cabinet noted that ‘due to insufficient market or regulatory incentives for
immigration agents to provide adequate standards of services, and considerable reports of
serious harm, regulation of immigration agents is required’ [CAB Min (04) 16/4 refers].
Objectives of regulation
27
In May 2004, Cabinet agreed the objectives of regulating immigration advice should be:
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28
The underlying principles behind these three objectives are:
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29
to enhance the ability of immigration applicants to make a well-informed choice of
immigration advisor
to reduce the risk of serious harm to those who use an immigration advisor by creating
effective incentives for advisors to provide competent and ethical services, and
to provide clear and accessible complaint and redress procedures for those who use
an immigration advisor [CAB Min (04) 16/4 refers].
consumer protection, and
enhancing the reputation of New Zealand as a migration destination.
New Zealand is not the only country wishing to attract quality migrants, and has an
international reputation to maintain and enhance. As the front face of New Zealand to people
who wish to come here, immigration advisors providing high quality immigration advice
support government’s desired immigration outcomes of attracting quality migrants who
benefit New Zealand and fulfilling our international obligations. The purpose of regulation
should therefore be ‘to promote and protect the interests of consumers in relation to the
provision of immigration advice, and to enhance the reputation of New Zealand as a
migration destination’. The objectives of regulation remain the same as above.
5
30
It is important that the regulation does not result in negative impacts on government’s
immigration goals, through creating disincentives to immigration advisors to promote New
Zealand as a migration destination, or because licensing acts as a barrier to entry into the
industry. Based on overseas experience, officials do not consider that this will be the case.
In the United Kingdom, regulation has seen the number of immigration advisors increase
from an estimated 700-1,000 in 1999, to 1,334 approved advisors in 2003/04. There is no
evidence to suggest that there has been a reduction in immigration applicants to the United
Kingdom. In Australia, overall numbers of registered migration agents have increased from
2,180 in 1999/2000, to 2,773 in 2001/02 and 3,274 in 2003/04. Australia does not hold direct
information on the impact of the regulation on immigration inflows but the Department of
Immigration and Multicultural and Indigenous Affairs (DIMIA) advises that, anecdotally,
registered migration agents have smoothed the progress of the lodgement of more complex
immigration applications.
Coverage
What should be regulated?
31
In May 2004 Cabinet agreed to the following working definitions of what is and what is not
immigration advice:
Immigration advice is: advice, assistance or representations, including oral and written
submissions and advice given in regard to an immigration application or potential immigration
application. These include applications for temporary entry, residence, appeals, exemptions,
refugee status claims and appeals, and advice given to third parties such as sponsors, employers
and education providers.
Immigration advice is not: the provision of information prepared by the New Zealand Immigration
Service; directing a person to the New Zealand Immigration Service or a list of licensed
immigration agents; clerical work; translation or interpreting services; and settlement services.
32
Stakeholders who took part in the July 2004 dialogues generally accepted the definitions,
although there was some concern that there remained ‘grey areas’ between the provision of
‘advice’ and more general ‘information’, and that the terms ‘immigration application’, ‘clerical
work’ and ‘settlement services need to be defined. The Australian model of regulation of
‘migration agents’ has also been carefully considered because of New Zealand’s obligations
under the Trans-Tasman Mutual Recognition Arrangement (TTMRA). The TTMRA provides
that a person registered to practise an occupation in New Zealand be entitled to register to
practise in Australia, and vice versa. Because the TTMRA will apply to New Zealand
immigration advisors once the regulation is in force, it is important to ensure that the two
licensing models are compatible.
33
I propose that the definition of immigration advice be amended to:
Immigration advice is: using, or purporting to use, knowledge of or experience in immigration 2 to
advise, direct, assist or represent whether directly or indirectly another person in regard to an
immigration matter relating to New Zealand.
Immigration advice is not: providing information that is publicly available and/or prepared by the
Department of Labour; directing a person to the Department of Labour or an immigration or visa
officer, or a list of licensed immigration advisors; clerical work; translation or interpreting services;
and settlement services.
Section 276 of the Australian Migration Act 1958 uses the phrase ‘using of, or purporting to use knowledge of, or
experience in, immigration…’ which helps to distinguish basic practical assistance from advice, by clarifying that it is
(claimed) knowledge or experience in immigration matters that constitutes immigration advice.
2
6
Immigration matters include: applications and potential applications for temporary entry,
residence, appeals, and exemptions; refugee status claims and appeals; immigration sponsorship;
and, immigration obligations.
Clerical work is: providing a service in which the main tasks involve the recording, organising,
storing or retrieving of information; computing; data entry; and, undertaking client-oriented clerical
duties in relation to an immigration matter, or to a third parties such as sponsors, employers and
education providers.
Settlement services are: a range of targeted support services provided for migrants, refugees
and their families when New Zealand residence has been obtained, such as settling into the
community, learning the language and finding out how to access essential community services. 3
Immigration advisors
34
Cabinet agreed to a working definition of an ‘immigration agent’. Some stakeholders
submitted that the terms ‘agent’ or ‘consultant’ imply that a person has formally established
themselves in business, similar to a real estate agent or a stock agent. In fact, anyone
providing immigration advice will be subject to regulation, regardless of their occupation or
profession, for-profit or not-for-profit. I propose that the term ‘immigration advisor’ be
adopted, as it more accurately reflects the range of people that may provide immigration
advice.
Who should hold a licence?
35
Implicit in the decisions taken by Cabinet [CAB Min (04) 16/4 refers] is that each individual
providing immigration advice will be required to be licensed, rather than companies or
organisations. Individual licensing is favoured on the basis that:
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
36
it is the competence and behaviour of the individual that is important, rather than the
standing and practices of the employing company or organisation
it establishes clear incentives for the individual to take responsibility for the quality of
their advice and ensures that they can be directly sanctioned in response to any
complaint that is upheld.
Not-for-profit sector: In May 2004, it was also noted that the not-for-profit sector would be
subject to regulation [EDC (04) 51 refers]. This was considered desirable on the basis that
the potential harm to the applicant is the same, whether or not a fee is paid. Cabinet agreed
in principle that the annual costs of regulating not-for-profit advisors should be met largely
through Crown funding [CAB Min (04) 16/4 refers], which means that it will be possible to
waive or reduce licensing fees and training costs for not-for-profit advisors.
Exemptions from licensing requirements
37
In May 2004, Cabinet agreed in principle to exempt personal contacts and practising
lawyers4 from licensing requirements. Since May, a number of groups have been identified
for whom further exemptions might be sought. There are essentially two ‘levels’ of possible
exemptions – those where it is considered that there are sufficient processes in place already
to ensure competent and ethical conduct (Level 1), and those where there are not, but where
an exemption may be desirable for other reasons (Level 2). I propose that Level 1
The proposed definition of ‘clerical work’ is taken in part from the New Zealand Standard Classification of Occupations
1999 (Major Group 4: Clerks). The proposed definition of ‘settlement services’ is adapted from the government’s
National Immigration Settlement Strategy [CAB (00)/M 40/2D refers].
4 The Law Practitioners Act 1982 defines a ‘law practitioner’ as a person enrolled as a barrister and solicitor of the Court.
The Lawyers and Conveyancers Bill, which repeals the Law Practitioners Act, will regulate ‘lawyers’ who are defined as
holders of a current practising certificate as a barrister, or as a barrister and solicitor.
3
7
exemptions be set out in legislation. Level 2 exemptions for other classes of people will be
enabled by legislation, but implemented through regulations by the new regulator, and on a
case-by-case basis.
38
Personal contacts: A number of stakeholders were concerned that the exemption of
‘personal contacts’ may be too wide, and that further definition was required. I propose that
this exemption apply only to family members of immigration advice consumers, where no fee
is paid and the person is not acting in their capacity as a professional or representative of an
organisation. This would be compatible with Australian regulation which limits its exemption
to ‘close family members’.
39
Lawyers: Cabinet agreed in principle in May 2004 to exempt practising lawyers from the
licensing requirement [CAB Min (04) 16/4 refers]. The exemption was agreed on the basis
that the Lawyers and Conveyancers Bill will provide for better consumer protection for people
who use the services of lawyers, and imposing a further regulatory regime on lawyers would
be duplicative and create unnecessary compliance costs. Further analysis has raised the
issue of whether lawyers should be excluded from the regime, rather than simply exempt.
An exemption would mean lawyers would not be required to hold a licence to give
immigration advice. An exclusion would mean that lawyers would be prevented from holding
an immigration advisor’s licence.5
40
Some immigration lawyers at stakeholder dialogues in July 2004 were concerned to ensure
that their business was not negatively impacted by the proposed regulation. They argued
that, while exempt from having to be licensed, some lawyers (particularly immigration
specialists) may wish to opt in to the regime. The positives of an opting-in approach are that
lawyers would not face the perceived competitive disadvantage compared with other people
providing immigration advice. Enabling lawyers to opt in may provide additional assurance
about their competence in immigration advice to prospective clients, and give lawyers equal
access to the educational and other knowledge benefits of the licensing regime.6
41
The negatives of an opting-in approach are that it may cause potential confusion and
dissatisfaction for immigration applicants arising from having two avenues of complaint (the
regulator and the New Zealand Law Society). The New Zealand Law Society is firmly of the
view that practising lawyers should not be able to opt in, meaning that lawyers with current
practising certificates will not be able ‘to purport to wear a separate hat in providing
immigration advice or services’. An opting-in approach is also inconsistent with the policy
underpinning the Lawyers and Conveyancers Bill, that lawyers providing regulated legal
services (of which immigration advice is one aspect) should be regulated as lawyers. This
approach is contained in the Bill which, although permitting lawyers to sell real estate,
provides that lawyers are to be regulated as lawyers, and not as real estate agents under the
Real Estate Act 1986. An opting-in approach would also result in additional costs for the
legal profession and for government, in terms of developing regulatory protocols and
harmonisation of the two regimes.
42
An exclusion approach would not prevent immigration lawyers to continue to provide
immigration advice - they will still be able to practise immigration law without an immigration
advisor's licence. The Ministry of Justice considers that the claims of competitive
5 Internationally, there are differing approaches to the regulation of lawyers who provide immigration advice:
6
a Australia requires all lawyers practising as migration agents to be registered
b The United Kingdom excludes lawyers from registration, but they must still meet industry standards. The
Immigration Services Commissioner monitors the performance of the law societies’ regulation of their members in
their provision of immigration advice, and
c Canada exempts lawyers from registration on the basis that adequate public protection already exists for members
of the public who retain lawyers.
Lawyers could still obtain the educational benefits of the licensing regime, if excluded, on a user-pays basis.
8
disadvantage are not clear, noting that some consumers may in fact have a preference for a
‘lawyer brand’ over an ‘immigration advisor brand’.
43
On balance, while acknowledging a perceived competitive disadvantage from some
specialist immigration lawyers, I propose that practising lawyers be excluded from the
immigration advisors’ licensing regime. Whether lawyers are exempted or excluded, there is
potential for the two regulators to develop administrative procedures for redirection of
complaints, where necessary, and comparable immigration education programmes. These
could promote consistency of advice, and support the objectives of better consumer
protection and enhancing the reputation of New Zealand as a migration destination.
44
In addition to personal contacts and lawyers, I propose that current Members of Parliament
(MPs) and their staff, employees of the public service and foreign diplomats be exempt
from the requirement to be licensed, at Level 1.
a Current MPs and their staff should be exempt because representing constituents in
their dealings with government agencies is part of an MP’s role and the limited nature of
their representations means there is a low risk of harm to consumers. Australian
legislation also exempts both parliamentarians and their staff.
b Employees of the public service7 should be exempt because there are already
mechanisms in place to ensure quality and professionalism in the public service, and
requiring officials to meet licensing requirements would not serve a useful purpose and
would impose unnecessary costs. This exemption would apply to employees of the DoL
who provide immigration advice, for example. It would not apply to local government
employees. Both Australia and the United Kingdom include similar exemptions.
c
Foreign diplomats should be exempt because they have immunity from the jurisdiction
of the New Zealand courts (except in a civil action relating to activity outside their official
functions) and generally have personal inviolability and inviolability as to their papers,
correspondence and property except in the above situation, provided for in the Diplomatic
Privileges and Immunities Act 1968. Australia also exempts foreign diplomats.
Process for enabling further exemptions
45
The legislation should provide for Level 2 exemptions to be made by way of regulations on
the advice of the regulator and recommendation of the responsible Minister. Level 2
exemptions would be considered on ‘classes of person’ rather than on an individual basis.
Some possible exemptions might include employers, education providers and regional
development agencies, for example. The process is intended to be transparent and costeffective, and to protect the regulator from pressure from individuals.
46
If agreed, therefore, under the new regime only the following classes of people would be able
to provide immigration advice:
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7
licensed immigration advisors
personal contacts (redefined as ‘family members’)
practising lawyers
current MPs and their staff
employees of the public service
foreign diplomats, and
any other class of person recommended by the Minister and prescribed in regulations.
Departments of the ‘public service’ are set out in Schedule 1 of the State Sector Act 1988.
9
47
In May 2004, Cabinet also specifically exempted individuals advising on student visa and
permit applications from offshore [CAB Min (04) 16/4 refers]. These persons will also be able
to provide immigration advice, as discussed in the following section.
Options for offshore licensing
48
In May 2004 Cabinet directed the DoL to examine ‘both voluntary and compulsory options for
including offshore immigration agents in a licensing framework […], except when advising on
student visa and permit applications’ [CAB Min (04) 16/4 refers]. The Legislation Advisory
Committee (LAC) recommends that New Zealand law should apply to matters or persons
abroad that affect the security of New Zealand, including immigration offences. Given the
international nature of immigration, it is not possible to successfully regulate the provision of
immigration advice without at least some level of offshore application of the licensing regime
- the issue is to what extent. It is also necessary to consider what is practical and possible.
Officials have considered a number of possible options. The status quo –doing nothing– has
not been considered.
49
International practice in this area is mixed. Australia and the United Kingdom do not
currently require offshore advisors to be licensed or otherwise regulated. However, Australia
is exploring options for including offshore advisors in its regime. DIMIA released a discussion
document in May 2004 on options for regulating offshore immigration advisors and
immigration-related activities of education agents and anticipates that decisions will be made
by 2006/07. Canada has required all offshore advisors to be licensed since April 2004.
Feedback from stakeholders in New Zealand strongly supported the inclusion of offshore
advisors in the licensing regime, despite acknowledged implementation and enforcement
difficulties.
50
The ultimate objective is to have all immigration advisors meet acceptable quality standards.
It should not matter where those advisors provide the advice from, nor where the consumer
is located. New Zealand wants good quality immigration advisors offshore to continue to
assist in meeting our immigration goals. That said, it is accepted that there are limits to the
scope of enforcement of New Zealand law overseas.
Individuals who are ordinarily resident in New Zealand
51
I propose that individuals who are ordinarily resident in New Zealand providing immigration
advice offshore must be licensed, and liable to criminal and administrative sanctions for their
actions, no matter where they occur. The term ‘ordinarily resident’ will be defined to mean
persons in New Zealand for more than 183 days in any 12 month period and not unlawfully in
New Zealand. This is generally consistent with other New Zealand legislation.
Advisors based offshore – voluntary opting-in approach for three years
52
I propose that offshore advisors initially be allowed to opt in to New Zealand’s licensing
regime. This would be achieved legislatively through a temporary exemption, expiring after a
specified period. A voluntary licensing period would increase consumer protection from the
status quo, while allowing time for bedding in of the regulation domestically and the
establishment of systems to include offshore licence-holders by the regulator. It would also
enable the regulator to develop processes compatible with the Australian regime for offshore
advisors. It will enable offshore advisors to be part of the regime and gain consequential
marketing advantage and access to information. The DoL would not be able to refuse to
accept applications from unlicensed advisors offshore during the voluntary period.
53
However, voluntary licensing provides less certain consumer protection for immigration
applicants. It is also unlikely to reduce the costs of the regime, as the regulator would be
10
required to establish systems and mechanisms for performing its functions offshore for those
advisors who opted in anyway. It also increases risk that individuals who are ordinarily
resident in New Zealand may seek to move outside of New Zealand to avoid regulation.
Advisors based offshore – compulsory licensing after three years
54
Due to the risks of ongoing voluntary licensing for offshore advisors, I propose that the
voluntary period for opting in be lifted automatically three years after the Act comes fully into
force. All immigration advisors (with the exception of those providing advice on student visa
and permit applications) would need to be licensed from this point. This should improve
consumer protection and the enforceability of the regime offshore, thus enhancing the
integrity of licensing overall and New Zealand’s reputation as a migration destination. Extraterritorial application of offences is discussed later in the paper under Offences and
Penalties. Practically, offshore advisors are likely to be subject only to administrative
sanctions, including the ability of the DoL to refuse to accept applications. 8
55
The regulator should be enabled to enter into reciprocal information sharing arrangements
with corresponding regulatory agencies in other jurisdictions. Where an offshore advisor is
found to be involved in an immigration case involving fraud, for example, the regulator would
be able to advise the agency in the home country of that advisor, for appropriate action.
Student visa and permit applications offshore specifically exempted
56
In directing officials to look at voluntary and compulsory options for applying the licensing
regime offshore in May 2004 [CAB Min (04) 16/4 refers], Cabinet specifically exempted
advice on student visa and permit applications. This was to address concerns about risk to
New Zealand’s international education reputation. Individuals providing advice on student
visas and permits would still be able to voluntarily opt in to the regime, if they chose to.
57
Cabinet directed the DoL and Ministry of Education, in consultation with stakeholders, to
examine requiring applicants to state which person or organisation assisted them in
completing the application form for student visa and permit applications [CAB Min (04) 16/4
refers]. The immigration application form NZIS 1012 Application to Study in New Zealand
already requires any person who has assisted an applicant to certify that they have assisted
by signing a declaration. As the declaration is an existing requirement on all student
applicants, consultation with stakeholders is not required.
Licensing framework
One size fits all, or differentiated licensing?
58
Licences may be of one broad type (as in Australia and Canada), or a range of licences may
be prescribed for different types or levels of immigration advice (as in the United Kingdom).
Differentiation recognises that some advisors specialise in relation to one application type
(eg. skilled migrant policies, refugees). However, immigration advice does not always fall
into neatly distinguished categories or levels (eg. work-to-residence policies have blurred the
distinction between temporary entry and residence). Some stakeholders suggested the
small size of the industry in New Zealand may not sustain differentiation.
59
I propose that legislation require all immigration advisors to meet a common set of core
requirements (one broad type of licence). Ultimately, the need for voluntary differentiation in
Criminal sanctions would be difficult (if not impossible) and expensive to enforce outside New Zealand’s jurisdiction and
may subject individuals operating legitimately in another country to multiple or contradictory legal requirements.
Conceptually, however, the law requires that these matters be covered.
8
11
addition to one broad standard and on the basis of knowledge or specialisation will be up to
the new regulator. Legislation should enable this.
Provisional licensing
60
Assessing competence may include a requirement for a certain level of practical experience.
Provision therefore needs to be made for differentiated licensing on the basis of competence
for new entrants to gain practical experience without flouting regulatory requirements and
placing themselves at risk of prosecution. I propose that the legislation provide for
provisional licences for new entrants, with a requirement that provisional licence holders
work under direct supervision of a fully-licensed advisor for 12 months (or other specified
period time considered suitable by the regulator).
Competency and fitness standards
61
The regulator’s key purpose will be to ensure that licensed immigration advisors are
competent and fit to provide immigration advice, and of integrity and good character.
What will ‘competency’ mean?
62
I propose that the legislation include both:
a
a general requirement that licence applicants meet the minimum standards of
competence determined by the regulator, and
b
an explicit requirement that the regulator develop competency standards relating to:




relevant qualifications
practical experience and knowledge
continuing professional development, and
an ability to communicate effectively in English.
63
The competency standards should be established as formal Rules (with the status of
secondary legislation), making it simpler for the regulator to maintain and update them, and
ensuring that stakeholders are involved in their development.
64
The regulator will determine how competence standards will be tested. While Australia
requires licence holders to pass an initial examination, I do not consider that this system
should be replicated in New Zealand legislation. Rather, I propose that licence holders be
required to meet minimum entry standards and on-going continuing professional
development requirements, which may or may not include an examination in the longer term.
65
It is envisaged that a large part of the licensing process will be paper-based. However, the
LAC notes that regulated persons must expect to have their activity monitored by periodic
inspections. The legislation should empower the regulator to inspect as part of the licensing
process to ensure compliance with competency standards.
What will ‘fitness’ mean?
66
Some factors may influence a person’s ‘fitness’ to provide immigration advice. I propose that
legislation prohibit the following persons from holding a licence:


anyone convicted of an offence against the Immigration Act
anyone unlawfully in New Zealand
12



anyone who has been removed or deported under Part 2, 3 or 4 of the Immigration Act,
and does not hold a current visa or permit
an undischarged bankrupt, and
anyone prohibited from running a company under the Companies Act.
67
I propose that there be no discretion in regards to these legislative prohibitions. Allowing
persons who have undertaken these activities to become licensed immigration advisors
would undermine the objectives of the regulation.
68
I propose that legislation restrict the following persons from holding a licence:



anyone convicted of a crime involving dishonesty
anyone convicted of an offence resulting in a term of imprisonment, and
anyone convicted of an offence against the Fair Trading Act 1986.
69
However, despite these legislative restrictions, the regulator should be given discretion to
determine whether these convictions are likely to adversely affect an applicant’s fitness to
give immigration advice. If not, the regulator may therefore decide to grant a licence.
70
The regulator should also be required to take into account any other convictions, and any
other disciplinary proceedings taken or being taken against the applicant. The regulator
must also consider whether the applicant is related by employment to another person
prohibited by legislation from holding a licence to provide immigration advice (this parallels
section 290 of Australia’s Migration Act 1958).
71
A person’s licence is continuous as long as the person continues to meet the competence
and fitness standards outlined above. In circumstances where a licensed individual is
convicted of the above offences, is unlawfully in New Zealand, is removed or deported or
declared bankrupt or prohibited from running a company, I propose that the person’s licence
is deemed to be suspended. The licensed person would be notified and provided the
opportunity to satisfy the regulator that they do meet the fitness criteria. If they do not satisfy
the regulator, their licence would be cancelled automatically.
Other criteria
72
Australia requires registered migration agents to be aged 18 years or above and to be
Australian citizens, Australian permanent residents or New Zealand citizens holding a special
category visa. The DoL has considered whether there is a case for similar criteria here, but
does not consider this can be justified as it is the competence and integrity of the advisor that
will be important, rather than their age or citizenship. Any such restrictions may potentially
be discriminatory and contrary to the New Zealand Bill of Rights Act 1990. Moreover, it is
also proposed that licensing be extended in the longer term to individuals overseas who
provide New Zealand immigration advice. A New Zealand or local knowledge requirement
can be addressed in developing the competence standards, if appropriate.
Code of Conduct
73
Immigration advisors will be required to comply with a code of conduct as a condition of their
licence. I propose that a code of conduct be developed by the regulator as secondary
legislation (as with the Rules), in consultation with industry and subject to ministerial approval
and parliamentary scrutiny. This will provide the regulator with the flexibility to develop and
amend a code of conduct that is responsive to new and emerging issues, while at the same
time ensuring transparency and accountability. Such an enabling approach is consistent with
other examples of New Zealand occupational regulation. Stakeholders at the July 2004
dialogues were supportive of this approach.
13
74
I expect that the code will generally address standards of professional and ethical conduct for
licensed advisors. Legislation should not prescribe in detail what the code of conduct should
cover, with two exceptions.
a Disclosure requirements: Cabinet has already agreed in principle that the licensing
regime may include disclosure requirements, which would require advisors, as a
condition of their licence, to disclose specified information to prospective clients. In terms
of consumer protection, there is benefit in requiring licensed immigration advisors to
disclose particular information to potential applicants including, for example: their
immigration ‘experience and competence’, any personal interest or advantage they may
receive in acting for the client, potential conflicts of interest, the amount of fees charged
(if any) and the extent of the advisor’s work. I propose that the legislation require that
disclosure requirements form a part of the code of conduct.
b Reasonableness of fees: I propose that legislation prescribe that fees charged by forprofit immigration advisors must be ‘reasonable’. This approach mirrors that of Australia
and, in New Zealand, the regulation of lawyers and the Credit Contracts and Consumer
Finance Act 2003, among others. The policy intention is that the fees charged should
reflect a reasonable return for the actual level of service provided by the advisor. It is not
intended to prescribe the amount of fees that may be charged.
Duration and renewal of licences
75
The main aim in limiting the duration of licences is to ensure that competence standards are
maintained and an advisor’s knowledge is up to date, and therefore I propose that
immigration advisors be required to renew their licence annually. However, I do not consider
it is necessary for advisors to go through a full application process every time that their
licence expires. Rather, the regulator should be enabled to require advisors to submit
specified information to allow consideration of whether a licence should be renewed. While
concerns about costs were high in the minds of stakeholders at the July 2004 dialogues,
most supported annual renewal.
Governance arrangements
76
In May 2004 Cabinet agreed in principle to the establishment of a governing body,
independent of the immigration advice industry, to administer the licensing regime [CAB Min
(04) 16/4 refers]. The Cabinet paper proposed that the regulator be established either as a
Crown entity or as a statutory body within a government department [EDC (04) 51 refers].
Crown agent or statutory body within a government department?
77
The option of a new statutory body within a government department:





78
minimises establishment and operational costs
provides a well understood set of governance arrangements and accountabilities
provides clear accountability to Parliament, both through the Estimates and Statement
of Intent, and through the relevant department’s annual report
makes better use of existing critical mass through the support of a larger organisation
in terms of corporate overheads, career structure for staff, and access to other
resources, and
avoids any need to establish a new organisation.
Stakeholders at the July 2004 dialogues generally did not take a view on the organisational
form of the regulator, but were concerned that costs were minimised. I propose that the
regulator be established as a statutory body within a government department, with a
14
Registrar and staff appointed under the State Sector Act 1988 by the chief executive. The
Registrar and his or her staff would be employees of the department, and accountable to the
chief executive. Management functions would remain the responsibility of the chief
executive. The Registrar would have powers of delegation to staff. Some aspects of the
operation of the governance structure will be subject to a degree of Ministerial direction,
particularly those that relate to establishing the broad policy direction and ensuring the
adequacy of minimum standards. However, it will be equally important to ensure that the
Registrar can perform some of his or her decision-making functions independently. For
example, decisions related to individual licensing applications should be free from Ministerial
influence. The Registrar’s statutorily independent functions will be set out in legislation. The
proposed governance structure for the regulator is set out in Appendix A.
Which government department?
79
Some stakeholders at the July 2004 dialogues argued that the regulator should be
independent from the DoL (Immigration Service). They saw the role of the DoL in approving
or declining individual immigration applications as potentially conflicting with regulation of
advisors who are often integral in the lodgement of those applications. However, there is a
strong argument that the new body not be too far removed from the development of New
Zealand immigration policy – currently developed within the DoL – to preserve the integrity of
the immigration system as a whole. At an operational level, it is also desirable to integrate
immigration application and monitoring systems within one part of government.
80
Independence may be maintained from immigration operations and decisions in a similar
way as is currently achieved for the Residence Review Board and Refugee Status Appeals
Authority (RSAA). While employees of the DoL (Immigration Service) provide secretariat
support to the RSAA, the RSAA chair reports directly to the Secretary of Labour and Minister
of Immigration. The Senior Registrar also reports to the Secretary of Labour on authority
business. Issues such as recruitment and remuneration are the responsibility of the
Secretary of Labour. Appointments are made in accordance with Cabinet Office guidelines.
81
I propose that the regulator be established as a statutory body within the DoL. While this is
considered to be a long-term arrangement, the legislation should leave open the possibility
that government could transfer the function to another department if appropriate in the future.
The most appropriate alternative department would be the Ministry of Economic
Development (MED), in terms of connections to regulatory and business policy. Other
suggestions have included the Ministry of Justice (in terms of the complaints, disciplinary and
appeals role) and the Department of Internal Affairs.
82
I propose that the regulator be called the ‘Immigration Advisors Authority’ (the Authority).
The use of the term ‘authority’ aligns with other immigration-related bodies such as the
Removals Review Authority (an independent judicial body established under the Immigration
Act) and the RSAA.
Which Minister?
83
The government has a strong interest in ensuring that the objectives of the regulation of
immigration advice are met, not only to protect the interests of individual applicants, but also
to enhance the reputation of New Zealand as a whole. Similar arguments as to the location
of the regulator apply to the allocation of a responsible Minister (or Ministers). While the
regulation relates to government’s desired consumer protection, business and regulatory
policy outcomes, the objectives of regulating immigration advisors relate more strongly to the
objectives of government’s overall immigration policies and New Zealand’s international
reputation. It is therefore appropriate for the Minister of Immigration to be responsible for the
overall regime.
15
What role for stakeholders?
84
The proposed governance model presented to Cabinet in May 2004 included an advisory
panel that would provide advice to the regulator [EDC (04) 51 refers]. Given the diverse
nature of the immigration advice industry and stakeholders, and potential costs to the Crown
and fee-paying licence holders, I do not recommend that an advisory board be established in
legislation. Rather, the Registrar will be required to consult with appropriate industry and
stakeholder groups - the NZAMI and the NZII, the Federation of Ethnic Councils, Education
New Zealand or Citizens Advice Bureaux, for example, and consumers. At the outset, I
expect the Registrar would consult with industry and stakeholder groups in developing the
Rules and a code of conduct.
Functions of the new Immigration Advisors Authority
85
EDC (04) 51 identified a number of functions that could be undertaken by the Authority:
maintaining a register of licensed immigration advisors; establishing a code of conduct;
receiving and handling complaints about both registered and unregistered advisors; taking
disciplinary actions against registered advisors; and prosecuting unregistered advisors.
86
Following further consideration of the objectives of the licensing regime, and the interests of
stakeholders, I propose that the legislative framework for the licensing of immigration
advisors include the following functions:9
Table 1. Proposed functions of the Immigration Advisors Authority
Rules and code of conduct
 development and maintenance of rules relating to licensed immigration advisors, including a
set of minimum standards of competence and ‘fitness’ for licensing

establishment and maintenance of a code of conduct for licensed immigration advisors
Administration
 consideration of applications for licences and the issue of licences

establishment and maintenance of a current register of licensed advisors

assessment of applications for continued licensing
Education and professional development
 provision of continuing education/professional development programmes
Communications / public awareness
 raising the profile of the licensed immigration advisors and general communications
Enforcement (complaints, discipline, offences and penalties)
 establishment and administration of complaints and disciplinary procedures
87
9

establishment of an appeals process

prosecution of unlicensed people providing immigration advice
Register of licensed immigration advisors: A key function of the regulator will be the
maintenance of a register of licensed immigration advisors. The register will be a public
register pursuant to Schedule 2 of the Privacy Act 1993.10 A public register promotes one of
the agreed objectives of regulation, which is to enhance the ability of immigration applicants
These functions are broadly consistent with other models of occupational regulation in New Zealand and with parallel
models in Australia and the United Kingdom.
10 The Ministry of Justice is currently undertaking a review of the Privacy Act which may propose some changes in the
public register privacy principles.
16
to make a well-informed choice of advisor [CAB Min (04) 16/4 refers]. The duty of the
regulator to maintain the register will be established in the legislation, along with supporting
provisions on: the manner in which the register must be kept, what information must be
recorded (including contact details and any disciplinary action against the advisor), revision
of the register, and public access to the register.
88
Stakeholders at the July 2004 dialogues argued that the register should include information
on the scope of practice undertaken by each licensed advisor, to ensure that consumers can
better assess specialist knowledge.
The legislation will include provision for the
establishment of an electronic register, enabling links from the register to individual licence
holders’ websites, which would achieve this objective. The legislation will also provide for the
public to have reasonable access to the register, and enable fees to be charged for copies of
information on the register.
Most information will also be available free-of-charge
electronically by way of the internet.
89
Education, professional development and communications: One of the key messages
from stakeholders during the July 2004 dialogues was that existing immigration advisors
need to see the benefits of statutory regulation. One of these benefits is education and
professional development for the occupation. Another is raising the profile of the occupation,
and general communications. Not only will these functions benefit licensed advisors, but
they should also flow on to better informed consumers and better immigration outcomes for
New Zealand.
90
The communications function should also extend to the Authority establishing a good
working relationship with its Australian counterpart, the Migration Agents Registration
Authority (MARA). The relationship should build a level of confidence between the two
regulators, ensure compatibility between the two models, deal with any differences between
the models (local knowledge requirements, for example), and facilitate ongoing smooth
operation of registration under the TTMRA.
Enforcement
91
The success of the licensing regime will be dependent on successful enforcement of the
licensing provisions. Enforcement provisions fall into the following categories:

Administrative actions – which relate to the DoL refusing to accept immigration
applications from unlicensed advisors.

Complaint and disciplinary procedures – which relate primarily to breaches by
licensed advisors of a code of conduct or other ‘rules’ covering professional standards
and behaviours.

Offences and penalties – which relate to criminal offending, resulting in prosecution
procedures and court imposed penalties.
Administrative sanctions
92
The DoL cannot currently refuse to accept an application based on the case (or criminal)
history of an advisor, or any other criteria. However, if the DoL were to accept applications
from unlicensed advisors, essentially government would be undermining its own regulations
and the DoL could be seen as party to unlicensed behaviour. Cabinet noted the desirability
of the DoL being able to refuse to accept immigration applications lodged by unlicensed
immigration advisors [CAB Min (04) 16/4 refers]. The refusal to accept applications from
unlicensed advisors could be purely an administrative response. However, for the avoidance
of doubt, I propose that legislative amendment effect this change.
17
93
Administrative responses to minimise adverse impacts on and reactions from immigration
applicants whose applications are refused because they have unknowingly used the services
of an unlicensed advisor will also need to be put in place. These will include proactive
measures, such as communications and amendment of immigration application forms and
information brochures. Responses may also include contacting or writing directly to an
applicant who has used an unlicensed advisor, enabling withdrawal and re-lodging of the
application or a fees refund, for example. These responses would apply equally to onshore
and offshore immigration applicants. I propose that these administrative responses also
have appropriate legislative support.
Complaint and disciplinary procedures
Responsibility for hearing complaints and making disciplinary decisions
94
Complaints and disciplinary procedures must be cost-effective to government and to all
participants and easily accessible for consumers. I propose that anyone may lay a complaint
against a licensed immigration advisor.
95
Some New Zealand models of occupational regulation establish an independent tribunal with
responsibility for receiving complaints and making disciplinary decisions. A tribunal may
establish a further separate body to hear the initial complaint which, if appropriate, refers the
matter back to the tribunal for disciplinary action. However, it is unlikely that the size of the
immigration advice industry in New Zealand would justify a separate tribunal, particularly as
this would require a separation between tribunal membership and membership of the
complaints body.
96
In the interests of cost-effectiveness and simplicity, I propose that the complaints body simply
be a subset of the Authority, brought together at regular intervals, or when a complaint is
received. In this case, the sub-committee would both assess the complaint and decide
disciplinary sanctions.
Complaints procedures
97
The Authority will have responsibility for the development of detailed complaints procedures
in consultation with key stakeholders. However, the legislation should provide for:
a
A tiered complaints system – licensed immigration advisors should be required to
maintain clear procedures for handling complaints in the first instance, and that
complaints be resolved at the lowest level possible.
b
Screening mechanisms – the Authority should develop screening mechanisms for
assessing complaints efficiently. In addition, legislation set out the following minimum
requirements:



11
complaints must not be made anonymously
the immigration advisor about whom a complaint is being laid must be informed of
the details of the complaint (and the complainant must not remain anonymous,
except in exceptional circumstances)11, and
complaints must be made in writing, and copies of supporting documentation
provided at the time a complaint is lodged.
Exceptional circumstances may include where a complainant is, or feels threatened by, the advisor (for example,
where the advisor holds their passport).
18
c
Rights and duties of immigration advisors in the complaints process - licensed advisors
who are the subject of complaints should be notified in writing of the complaint, and
have the right to respond. Licensed advisors must also cooperate fully with the
complaints body (including providing information, or appearing before the complaints
body). As with other forms of occupational regulation in New Zealand, I propose that it
would be an offence to refuse or fail without reasonable excuse to comply with such a
request from the complaints body, punishable by a maximum fine of $10,000.12
d
Timeframes within which complaints must be made - the complaints body should also
have the authority to hear complaints about the actions of former licensed immigration
advisors, with a limitation of two years. This is consistent with provisions in other New
Zealand legislation.
98
Inspection powers should be provided for under the complaints process. This would be
consistent with overseas jurisdictions and other examples of occupational regulation in New
Zealand. (The regulator would not be able to exercise this power in overseas jurisdictions).
99
Complaints about immigration advisors should be heard and resolved as quickly as possible.
This is particularly important in situations where consumers are at risk of serious harm. It is
expected that the complaints procedures will include an administrative target maximum
timeframe of 12 months for the resolution of complaints.13
Disciplinary sanctions
100 Disciplinary sanctions may be imposed by the regulator as a result of a complaint. The
grounds for complaint will be negligence, incompetence, incapacity or any breach of the code
of conduct or Rules. Disciplinary sanctions will also tie back to the competence and fitness
requirements for issuing a licence, with the primary impact being on the ability of an
immigration advisor to maintain their licence. Stakeholders at the July 2004 dialogues
suggested that disciplinary actions reflect the frequency of offending as well as its nature.
Stakeholders also argued that sanctions should include the award of costs or compensation
for immigration consumers. I propose that disciplinary sanctions include:
Table 2. Proposed disciplinary sanctions
 caution or censure
Punitive
Consumer redress

requirement to remedy or undertake specified training

suspension of licence for no more than two years, or until the person meets
specified conditions (and an order that the Immigration Advisors Authority
record the suspension in the register)

cancellation of licence (and an order that the person may not re-apply for a
licence before the expiry of a specified period, if any)

payment of penalties or fines, not exceeding $10,000

payment of costs or expenses of investigation, inquiry, hearing and/or
prosecution.

refund of any or part fees paid by the consumer

payment in compensation to the consumer
101 The Authority should also put in place processes to address situations where a licensed
advisor is prevented from practising due to disciplinary (or other) actions, and has other
immigration clients who could be disadvantaged.
12
This is the same penalty as set out in the Health Practitioners Competence Assurance Act 2003, for example.
In Australia, the ‘complaints finalisation targets’ for the MARA are to resolve 90 percent of complaints within six
months, 99 percent of complaints within 12 months and 100 percent of complaints within 24 months.
13
19
Review Rights
102 The legislation must provide for decisions of the complaints and disciplinary body to be
subject to appeal and/or judicial review. This includes a decision not to issue or renew a
licence, as well as the disciplinary sanctions. I propose that the right of appeal and review
would be to the District Court by way of re-hearing, with the right to provide further evidence
if the court grants leave. The District Court Rules Committee will be able to prescribe rules
as it sees fit. Any party to an appeal to the District Court may then appeal to the High Court
on questions of law.
Offences and penalties
Existing offences and penalties for both licensed and unlicensed advisors
103 Both licensed and unlicensed immigration advisors will continue to be subject to immigration
offences under the Immigration Act, the Crimes Act 1961 and other legislation. For example,
under section 142(1)(ea) of the Immigration Act, it is already an offence to, for material
benefit, aid, abet, incite, counsel or procure any other person to be or to remain in New
Zealand unlawfully or to breach any condition of a permit (punishable by a maximum fine of
$100,000, imprisonment of up to 7 years, or both).
104 Section 142(1)(j) of the Immigration Act makes it an offence to wilfully mislead any person or
act negligently or unprofessionally while assisting a person, for financial reward, in any
immigration application (punishable by a maximum fine of $5,000, or imprisonment of up to 3
months, or both). This section’s current wording has made proof of an offence problematic,
and it has not been tested since its introduction in 1999. The new licensing regime is
designed to protect consumers against negligent or unprofessional conduct by their
immigration advisor. I therefore propose that section 142(1)(j) is repealed.
New offence provisions
105 New offence provisions are required to uphold the integrity of the licensing requirements and
prevent potential harm to consumers arising from individuals operating outside of the
regulatory framework. Based on offence provisions in comparable legislation in New
Zealand and overseas, I consider that the main offences to be incorporated in new legislation
should include:




the provision of immigration advice by an unlicensed person (unless exempt)
holding out or advertising that any person, including the person him or herself, provides
immigration advice, when that person does not hold a licence (unless exempt)
holding out or advertising that any person, including the person him or herself, holds a
licence, when that person does not hold a licence (unless exempt)
providing false or misleading information in support of an application for a licence to
provide immigration advice.
106 Legislation should also include offences that more directly relate to employers and principals,
given that they may profit from the activity of unlicensed employee and contractor advisors
and could encourage or condone such activity, at potential risk to consumers. The proposed
employer and principal related offences would be:


asking for or receiving a fee or reward for the provision of immigration advice by an
unlicensed person (unless exempt), and
employing or contracting an unlicensed person as an immigration advisor.
20
107 I propose that these offences apply extra-territorially. While it is acknowledged that
enforcement would not be straightforward, conceptually the law requires that these matters
be covered. As a parallel, the Immigration Act itself provides for extra-territorial application of
offences, meaning that there is the possibility of enforcement should circumstances allow.
For example, if a person offshore commits an offence against the Immigration Act, they may
be prosecuted if they ever sought to enter New Zealand.
Classes of offences
108 I consider that certain of the proposed offences should be split into two classes – offences
involving knowledge, and those where liability is strict (strict liability). This is set out in
Table 3 below. Specific knowledge offences involve greater proven culpability and justify
higher penalties to be imposed in cases where it is proved that a person deliberately flouts
the law. Strict liability offences permit individuals who have breached the law to show that
the breach was not intentional and that they otherwise exercised all reasonable care. Such
offences may also be justified where it is difficult for the prosecution to prove a certain
‘negative’ element of the offending (eg. that a person does not qualify as exempt) but
relatively easy for a defendant to disprove it. Strict liability offences carry lower penalties.
109 I propose that, in respect of knowledge offences, a person would be presumed not to be
exempt unless they present evidence to raise a reasonable doubt that they are exempt. This
limited ‘reverse onus’ reflects the inherent difficulty of the prosecution having to attempt
initially to exclude all possible exemption scenarios as part of proving a prosecution. It
allows the prosecution to concentrate on disproving one particular aspect of exemption that
may be raised by a defendant. In the case of strict liability offences, the onus of proof
regarding exempt status and/or that a person has exercised all reasonable care in either:


not providing immigration advice without a licence, or
not employing or offering the services of an unlicensed person to provide immigration
advice
would fall on the individual as a matter of their defence.
Range of penalties
110 Penalties for offences are generally expressed as a maximum and should reflect the
seriousness of the offence. While penalties should be broadly consistent with other New
Zealand legislation, there is wide variation amongst other Acts regulating occupations.
111 Some stakeholders at the July 2004 dialogues considered that imprisonment should be an
option for more serious offences. Imprisonment may be an appropriate option in cases
where the knowledge element can be proven and a fine may simply be seen as a cost of
doing business by the offender. LAC Guidelines note that imprisonment is not appropriate
for strict liability offences. Australia provides for up to two years’ imprisonment for holding an
unlicensed person out as a provide of immigration advice, and up to ten years for asking
for/receiving a fee or reward for immigration advice provided by an unlicensed person. New
Zealand’s Immigration Act provides for terms of imprisonment of up to seven years.
112 I propose that imprisonment be provided as a penalty for knowledge offences, consistent
with the Immigration Act. Strict liability offences should carry correspondingly lower
penalties. In addition, it would be desirable for the court to have an ability to order an
additional fine reflecting any commercial gain or material benefit resulting from the provision
of immigration advice by an unlicensed person. This would recognise the potential for, and
provide a disincentive against, earning a significant income by providing immigration advice
without a licence. It would also give the courts greater ability to vary penalties.
21
113 Stakeholders at the July 2004 dialogues considered that penalties should also provide for the
award of costs or provision for reparation in some cases. The Sentencing Act 2002 already
provides for a court to take into account any offer, agreement, response or measure to make
amends (section 10). The Act also provides for a sentence of reparation to be imposed, on
its own or in addition to any other sentence (section 12). Reparation may be imposed if the
offender has caused a person to suffer loss of or damage to property, emotional harm, or any
consequential loss or damage (section 32). These provisions of the Sentencing Act should
be replicated in the new legislation.
114 I propose that the following penalties apply for each new offence:
Table 3. Proposed new offences and penalties
Offence
Knowledge offence
Providing immigration advice
without
a
licence
(unless
exempt)
Holding out or advertising that
any person, including the person
him
or
herself,
provides
immigration advice, when that
person does not hold a licence
(unless exempt)
Strict liability
Maximum imprisonment
Maximum fine
7 years
$100,000
or both
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
Maximum imprisonment 2 years
Maximum fine
$10,000
or both
Holding out or advertising that
any person, including the person
him or herself, holds a licence,
when that person does not hold
a licence (unless exempt)
Maximum imprisonment
Maximum fine
2 years
$10,000
or both
Providing false or misleading
information in support of an
application for a licence to
provide immigration advice
Maximum imprisonment
Maximum fine
2 months
$10,000
or both
Asking for or
reward for
immigration
unlicensed
exempt)
Maximum imprisonment
Maximum fine
receiving a fee or
the provision of
advice by an
person
(unless
Employing or contracting
unlicensed
person
as
immigration advisor.
an
an
7 years
$100,000
or both
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
Maximum imprisonment 2 years
Maximum fine
$10,000
or both
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
Maximum fine
$100,000
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
N/A
N/A
Maximum fine
$10,000
Maximum fine
$100,000
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
Maximum fine
$10,000
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
115 Summary or indictable offences: Offences punishable solely by fine should be summary
offences, and offences punishable by over three months imprisonment should be indictable
offences which may be tried summarily and included in Schedule 1 of the Summary
Proceedings Act 1957.14
116 Limitation period for summary offences: The Summary Proceedings Act requires that an
information for a summary offence be laid ‘within 6 months from the time when the matter of
the information arose’ unless a different period is provided. The Immigration Act provides for
an information about an offence against that Act to be laid within two years. For the
purposes of consistency in immigration-related offences, a two-year limitation period is
proposed for summary offences.
14
Defendants would still retain their right under section 66 of the Summary Proceedings Act to elect trial by jury.
22
Implementation and transitional arrangements
117 Following Cabinet approval, it will take some time for the licensing regime to be fully
implemented. A staged approach will be required to allow for establishment of the Authority,
and the development of standards and processes. Time will also need to be provided for
immigration advisors to meet the new entry standards and apply for a licence.
118 I propose that legislation provide 12 months for initial set-up (including appointments) of the
Authority and development of standards (through formal rules and a code of conduct), any
additional Level 2 exemptions, licensing and renewal processes, the public register,
complaint and disciplinary procedures, and any other supporting processes and
documentation. A further 12 months should be provided for immigration advisors to meet
entry standards and apply for a licence, and for the Authority to issue licences. This would
mean that legislation would come fully into force two years after enactment of the legislation.
(If agreed, advisors based offshore would be temporarily exempted from licensing for three
years from the time the legislation comes fully into force, but allowed to opt in).
119 During implementation, the education and communications functions of the Authority will be
important in letting immigration consumers, the not-for-profit sector and existing immigration
advisors know about the forthcoming regulation and what it means for them. This will rely on
developing good working relationships with the NZAMI, NZII and the voluntary sector, for
example, and may also involve advertising in ethnic community newspapers.
120 In the interests of consumer protection and compliance costs, provision should be made to
enable immigration applicants to continue with their application if they have used an
unlicensed advisor before the legislation comes fully into force.
Financial implications
121 In May 2004 Cabinet noted estimated costs of the proposed model for regulation of onshore
advisors as:

establishment costs of $1.4 to $2 million in operating costs and $0.5 to $0.9 million in
capital costs, and

annual ongoing costs of $1.3 to $2.4 million (GST incl) [CAB Min (04) 16/4 refers].
122 Cabinet noted that, if offshore advisors were to be included, there would be additional
operating costs to be identified in this report back. Cabinet also agreed in principle that:

establishment costs would be met through a variety of sources such as the DoL (NZIS)
Memorandum Account and Crown funding

for-profit advisors should pay an annual licensing fee proportionate to the cost of
regulating for-profit advisors, and

the annual costs of regulating not-for-profit advisors, investigating and prosecuting
unlicensed advisors, and departmental costs should be met largely through Crown
funding, with consideration given to using some third party revenue.
Possible sources of establishment funding
123 If Cabinet agrees to the proposed implementation period, there will be no revenue from
licensing fees in the first 12 months (establishment). Cabinet agreed in principle that
establishment costs should be met through a variety of sources such as the DoL (NZIS)
Memorandum Account and Crown funding [CAB Min (04) 16/4 refers].
…[information withheld under section 9(2)(f)(iv) of the Official Information Act 1982]…
23
…[information withheld under section 9(2)(f)(iv) of the Official Information Act 1982]…
Recoverable establishment grant
128 As noted in May 2004 [EDC (04) 51 refers], a recoverable grant is not viable as the industry
would be unlikely to generate sufficient funds through fees to repay it.
Possible sources of ongoing funding
129 Cabinet agreed in principle that the annual costs of regulating not-for-profit advisors,
investigating and prosecuting unlicensed advisors, and departmental costs should be met
largely through Crown funding, with consideration given to using some third party revenue
[CAB Min (04) 16/4 refers]. Cabinet also agreed in principle that for-profit advisors should
pay an annual licensing fee proportionate to the costs of regulating them. A figure of
between $1,000 and $2,000 was indicated in the May Cabinet paper [EDC (04) 51 refers].
130 To the extent possible, there should be cost recovery from individuals who generate costs or
who benefit from services. The DoL estimates that 85 percent of licence-holders will be forprofit advisors, and 15 percent will be not-for-profit. The DoL estimates that approximately a
third of advisors would lodge up to 10 immigration applications with the DoL per year, and up
to half would lodge between 10 and 50 applications per year. …[information withheld
under section 9(2)(f)iv) and 18(d) of the Official Information Act 1982]…
131
Members of NZAMI currently pay a $281 application fee and $562 annual fee. Barristers
and employed solicitors in New Zealand pay $568 annual fees. Solicitors practising in their
own account pay the above $568, plus $905 to meet inspectorate and fidelity fund costs – a
total of $1,473. Australian for-profit migration agents pay an application fee of AUD$1,760.
Australian agents are also liable for entry level course fees of AUD$2,000, an entry
examination fee of AUD$1,250, an annual library fee of AUD$1,450, a Police check of
24
AUD$36, and the costs of requirement to notify and register a business name. Not-for-profit
agents in Australia pay a lesser application fee of AUD$160 and reduced additional costs.
Annual renewal costs AUD$1,050 for for-profit agents (plus the library fee and AUD$750 for
continuing professional development), and AUD$105 (GST inclusive) for not-for-profit
agents. All figures are GST inclusive.
…[information withheld under section 9(2)(f)(iv) and 18(d) of the Official Information Act
1982]…
135 …[information withheld under section 9(2)(f)(iv) and 18(d) of the Official Information
Act 1982]… The final licensing fee will be set by the governing body and prescribed in
regulations.
…[information withheld under section 9(2)(f)(iv) and 18(d) of the Official Information Act
1982]…
25
…[information withheld under section 9(2)(f)(iv) of the Official Information Act 1982]…
Legislative and regulatory implications
141 Legislation is required to implement the proposals. Should Cabinet agree to the proposals in
this paper, I would issue drafting instructions to Parliamentary Counsel in accordance with
Cabinet’s decisions. I propose that decisions on technical issues that might arise in the
course of drafting be delegated to me, as Minister of Immigration. If issues of substance
arise in the course of drafting, these will be referred back to Cabinet Economic Development
Committee, following consultation with other relevant Ministers. I intend to seek an
appropriate priority in the legislation programme by way of a paper to Cabinet Legislation
Committee in January 2005, with a view to introducing legislation in the first half of 2005.
142 The Bill should be binding on the Crown in keeping with the general principle that the Crown
should be bound by Acts unless the application of a particular Act to the Crown would impair
the efficient functioning of Government.
26
143 A Regulatory Impact Statement (RIS) and Business Compliance Cost Statement (BCCS) are
attached. Based on the information provided, the Ministry of Economic Development’s
Regulatory Impact Analysis Unit considers that the disclosure of information is adequate, and
the level of analysis is appropriate given the likely impacts of the proposal.
Human rights and Treaty of Waitangi implications
144 Overall the proposals in this paper appear to be consistent with the New Zealand Bill of
Rights Act 1990 and the Human Rights Act 1993. However, the proposal to create new
offences whereby the defendant is required to disprove or raise doubt as to one of the
elements of the offence gives rise to issues with section 25(c) of the Bill of Rights Act (the
right to be presumed innocent until proven guilty). Where a proposal gives rise to an issue
under the Bill of Rights Act, it may, in certain circumstances, be considered a justified
limitation under section 5 of the Act. The Ministry of Justice considers that it currently has
insufficient information to assess whether such an infringement on the right can be justified.
A final view as to whether the proposed provisions are consistent with the Bill of Rights Act
will be dependent on the manner in which the legislation is drafted and any further
justifications provided.
145 No Treaty of Waitangi implications are noted.
Publicity
146 There has been on-going public interest in these proposals. Should Cabinet agree to the
recommendations in this paper, I propose to release a media statement. At the same time,
this paper and accompanying RIS and BCCS will be released on the DoL website. Some
sections may be withheld under the Official Information Act 1982.
Consultation
147 The Ministries of Consumer Affairs, Economic Development, Education, Foreign Affairs and
Trade, Justice, Pacific Island Affairs, Social Development, and Tourism and the Department
of Internal Affairs, the State Services Commission, the Treasury, New Zealand Trade and
Enterprise, and the Offices of the Community and Voluntary Sector, Ethnic Affairs, and the
Police Commissioner were consulted and their views are reflected in the paper. The
Department of the Prime Minister and Cabinet was informed.
148 In order to further inform consideration of the design of a regulatory model and since
Cabinet’s decisions in May 2004, the DoL held dialogues with stakeholders in Auckland,
Christchurch, Hamilton, and Wellington in July 2004.
International obligations
149 Proposals for regulation in New Zealand have also been discussed with the United
Kingdom’s Office of the Immigration Services Commissioner, and Australia’s DIMIA, and
Departments of Education, Science and Training, and Prime Minister and Cabinet in light of
New Zealand’s obligations under the TTMRA. Australia already registers ‘migration agents’,
through the MARA. The TTMRA provides that a person registered to practise an occupation
in New Zealand be entitled to register to practise in Australia, and vice versa.
Recommendations
150 It is recommended that the Committee:
1. note that in May 2004, Cabinet directed the Department of Labour develop detail of a licensing
model for immigration advisors and framework for legislation and to report back to the Cabinet
Economic Development Committee by 1 December 2004 [CAB Min (04 16/4 refers]
27
Purpose
2. agree that the purpose of new legislation should be ‘to promote and protect the interests of
consumers in relation to the provision of immigration advice, and to enhance the reputation of
New Zealand as a migration destination’
What and who are to be regulated?
3. agree the amended definitions of what is and what is not immigration advice, as follows:
Immigration advice is: using, or purporting to use, knowledge of or experience in immigration to advise, direct,
assist or represent whether directly or indirectly another person in regard to an immigration matter relating to
New Zealand.
Immigration advice is not: providing information that is publicly available and/or prepared by the Department of
Labour; directing a person to the Department of Labour or an immigration or visa officer, or a list of licensed
immigration advisors; clerical work; translation or interpreting services; and settlement services.
4. agree that ‘immigration matter’, ‘clerical work’ and ‘settlement services’ be defined separately
and that the term ‘immigration advisor’ describes a person who provides immigration advice
5. confirm that each individual providing immigration advice will be required to apply for and hold
their own licence, rather than companies or organisations
6. note that the not-for-profit sector will be subject to regulation, but will not have to bear the full
costs of licensing
7. note that in May 2004 Cabinet agreed in principle to exempt ‘personal contacts’ and ‘practising
lawyers’ from the licensing regime [CAB Min (04) 16/4 refers]
8. agree that ‘personal contacts’ will be exempt from the licensing regime, and defined as family
members, where no fee is paid and the person is not acting in their capacity as a professional
or representative of an organisation
9. note that the New Zealand Law Society is firmly of the view that practising lawyers should be
excluded from the proposed regulation, rather than simply exempted
10. agree that practising lawyers will be excluded from the licensing regime
11. note that excluding practising lawyers from the licensing regime would be opposed by some
specialist immigration lawyers who see themselves at a competitive disadvantage from not
being able to hold an immigration advisor’s licence
12. note that the proposed licensing regime creates potential for the regulator and New Zealand
Law Society to develop cooperative administrative procedures
13. agree that current Members of Parliament and their staff, employees of the public service and
foreign diplomats will also be exempt from the licensing regime
14. agree that the legislation provide power for regulations to be made by Order-in-Council on
advice of the regulator and recommendation of the responsible Minister exempting further
classes of person from the application of the Act
Offshore licensing
15. note that in May 2004, Cabinet directed the Department of Labour to examine both voluntary
and compulsory options for including offshore immigration agents in a licensing framework
providing advice to prospective and actual immigration applicants, except when advising on
student visa and permit applications [CAB Min (04) 16/4 refers]
16. agree that individuals who are ordinarily resident in New Zealand providing immigration advice
offshore must be licensed, and subject to criminal and administrative sanctions for their
actions, no matter where they occur
17. agree that advisors based offshore be temporarily exempt from the licensing regime for three
years, but allowed to opt in
28
18. agree that legislation will provide for automatic expiry of the exemption for offshore advisors
within a specified period of three years after the Act comes fully into force, and that all
immigration advisors (with the exception of those providing advice on student visa and permit
applications) would need to be licensed from this point
19. agree that the legislation will enable the regulator to enter into reciprocal information sharing
arrangements with corresponding regulatory agencies in other jurisdictions
20. note that Cabinet directed the Department of Labour and Ministry of Education to examine
requiring applicants to state which person or organisation assisted them in completing the
application form for student visa and permit applications [CAB Min (04) 16/4 refers]
21. note that the immigration application form NZIS 1012 Application to Study in New Zealand
already requires any person who has assisted an applicant to certify that they have assisted by
signing a declaration
Licensing framework
22. agree that the legislation:
22.1.
establish one broad type of licence covering the provision of all types of immigration
advice, with a common set of core requirements
22.2.
give the regulator discretion to establish voluntary differentiated licensing on the basis
of established areas of knowledge, if appropriate
22.3.
provide for differentiated licensing on the basis of competence (provisional licences) for
new entrants to the industry, with a requirement that provisional licence holders work
under direct supervision of a fully-licensed advisor for 12 months (or other specified
period time considered suitable by the regulator)
23. agree that the legislation include both:
23.1.
a general requirement that licence applicants meet the minimum standards of
competence determined by the regulator, and
23.2.
an explicit requirement that the regulator develop competency standards relating to
relevant qualifications, practical experience and knowledge, continuing professional
development, and an ability to communicate effectively in English
24. agree that the competency standards be established as formal Rules (as secondary
legislation), developed in consultation with stakeholders
25. agree that the regulator be empowered by legislation to carry out inspections as part of the
licensing process, if necessary
26. agree that the legislation restrict a person from providing immigration advice who:
26.1.
has been convicted of a crime involving dishonesty, an offence resulting in a term of
imprisonment, or an offence against the Fair Trading Act 1986,
26.2.
has been convicted of an offence against the Immigration Act 1987, has been removed
or deported under the Immigration Act or is unlawfully in New Zealand, or
26.3.
is an undischarged bankrupt or has been prohibited from running a company under the
Companies Act
27. agree that the regulator be given some discretion to determine whether the wider restrictions
set out in recommendation 26.1 above are likely to adversely affect an applicant’s fitness to
give immigration advice, and may therefore decide to grant a licence
28. agree that the regulator have no discretion in regards to Immigration Act offences, removal or
deportation, being unlawfully in New Zealand, or bankruptcy or prohibitions under the
Companies Act set out in recommendations 26.2 and 26.3 above
29
29. agree that the regulator may also take into account any convictions for other offences, any
disciplinary proceedings taken or being taken against the applicant, and whether the applicant
is related by employment or association to another restricted person
30. agree that a person’s immigration advisors licence will be deemed automatically suspended if
the person fails to meet the fitness standards while licensed, and cancelled if the person is
unable to satisfy the regulator that they do meet the fitness criteria
31. agree that the legislation provide for a code of conduct to:
31.1.
address standards of professional and ethical conduct for licensed immigration
advisors, including disclosure requirements and reasonableness of fees, and
31.2.
be developed by the regulator in consultation with stakeholders, and subject to
ministerial approval
32. agree that licences will be renewed on an annual basis
Governance arrangements
33. agree that a regulator, to be called the Immigration Advisors Authority, be established as a
statutory body within a government department
34. agree that a Registrar and staff will be appointed under the State Sector Act 1988 by the chief
executive of the department
35. agree that the Department of Labour is the appropriate government department to house the
Immigration Advisors Authority, but that legislation leave open the possibility that the function
may be transferred to another government department, if appropriate
36. agree that the Minister of Immigration be the responsible Minister
37. agree that the functions of the Immigration Advisors Authority be:
37.1.
to develop and maintain rules (competency standards) and a code of conduct
37.2.
to administer the licensing regime
37.3.
education and professional development
37.4.
communications and public awareness, and
37.5.
enforcement (complaints, disciplinary procedures, offences and penalties)
38. agree that the regulator is required to maintain a public register of licensed immigration
advisors, pursuant to Schedule 2 of the Privacy Act 1993, which may be kept as an electronic
register or in any other manner that the regulator sees fit
39. agree that the public may have reasonable access to the register and that a fee may be
charged for a copy of any information on the register that is not available free-of-charge
electronically
Administrative sanctions
40. agree that legislation provide that the Department of Labour must refuse to accept immigration
applications from unlicensed immigration advisors (unless exempt)
41. agree that the Department of Labour put in place administrative responses to minimise
adverse impacts on applicants whose immigration applications are refused because they have
unknowingly used the services of an unlicensed advisor, set out in legislation
Complaint and disciplinary procedures
42. agree that a complaints body be a subset of the Immigration Advisors Authority, brought
together at regular intervals or when a complaint is received
43. agree that any person may lay a complaint with the complaints body
30
44. agree that the Immigration Advisors Authority develop minimum requirements for lodging a
complaint, including:
44.1.
a tiered complaints system, so that complaints are resolved at the lowest level possible
44.2.
screening mechanisms, for assessing complaints efficiently
44.3.
the rights and duties of licensed immigration advisors in the complaints process,
including an offence to refuse or fail without reasonable excuse to comply with a
request to cooperate from the complaints body in the course of its investigation of a
complaint, punishable by a maximum fine of $10,000
45. agree that the complaints body have the authority to hear complaints about the actions of
former licensed immigration advisors, with a limitation of two years
46. agree that the complaints body have the power to undertake inspections as part of the
complaints process
47. agree that the grounds for complaint will be negligence, incompetence, incapacity or any
breach of the code of conduct or Rules
48. agree that disciplinary sanctions against licensed advisors be:
Punitive






Consumer redress


caution or censure
requirement to remedy or undertake specified training
suspension of licence for no more than two years, or until the person meets
specified conditions (and an order that the Immigration Advisors Authority
record the suspension in the register)
cancellation of licence (and an order that the person may not re-apply for a
licence before the expiry of a specified period, if any)
payment of penalties or fines, not exceeding $10,000, and
payment of costs or expenses of investigation, inquiry, hearing and/or
prosecution.
refund of any or part fees paid by the consumer, and
payment in compensation to the consumer
49. agree that the right of appeal and review be to the District Court by way of rehearing (with the
right to provide further evidence if the court grants leave), and that any party to an appeal to
the District Court be entitled to appeal to the High Court on questions of law
Offences and penalties
50. note that both licensed and unlicensed immigration advisors will continue to be subject to
offences under the Immigration Act 1987, the Crimes Act 1961 and other legislation
51. agree that section 142(1)(j) of the Immigration Act be repealed
52. agree that offences under the new legislation be:
52.1.
the provision of immigration advice by an unlicensed person (unless exempt)
52.2.
holding out or advertising that any person, including the person him or herself, provides
immigration advice, when that person does not hold a licence (unless exempt)
52.3.
holding out or advertising that any person, including the person him or herself, holds a
licence, when that person does not hold a licence (unless exempt)
52.4.
providing false or misleading information in support of an application for a licence to
provide immigration advice
52.5.
asking for or receiving a fee or reward for the provision of immigration advice by an
unlicensed person (unless exempt), and
52.6.
employing or contracting an unlicensed person as an immigration advisor
53. agree that the offences apply extra-territorially
31
54. agree that all the proposed offences be split into two classes – offences involving knowledge,
and those where liability is strict (strict liability)
55. agree that penalties be provided in legislation as follows:
Proposed new offences and penalties
Offence
Knowledge offence
Providing immigration advice
without
a
licence
(unless
exempt)
Holding out or advertising that
any person, including the person
him
or
herself,
provides
immigration advice, when that
person does not hold a licence
(unless exempt)
Strict liability
Maximum imprisonment
Maximum fine
7 years
$100,000
or both
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
Maximum imprisonment 2 years
Maximum fine
$10,000
or both
Holding out or advertising that
any person, including the person
him or herself, holds a licence,
when that person does not hold
a licence (unless exempt)
Maximum imprisonment
Maximum fine
2 years
$10,000
or both
Providing false or misleading
information in support of an
application for a licence to
provide immigration advice
Maximum imprisonment
Maximum fine
2 months
$10,000
or both
Asking for or
reward for
immigration
unlicensed
exempt)
Maximum imprisonment
Maximum fine
receiving a fee or
the provision of
advice by an
person
(unless
Employing or contracting
unlicensed
person
as
immigration advisor.
an
an
7 years
$100,000
or both
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
Maximum imprisonment 2 years
Maximum fine
$10,000
or both
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
Maximum fine
$100,000
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
N/A
N/A
Maximum fine
$10,000
Maximum fine
$100,000
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
Maximum fine
$10,000
Court may order that any commercial
gain be forfeited to the Crown
Court may order reparation
56. agree that offences punishable solely by fine should be summary offences, and that offences
punishable by over three months’ imprisonment be indictable offences that may be tried
summarily and included in Schedule 1 of the Summary Proceedings Act 1957
57. agree that an information may be laid within two years of a summary offence being committed
Implementation
58. agree that the legislation allow 12 months for initial set-up of the Immigration Advisors
Authority and development of:
58.1.
standards (through formal rules and a code of conduct)
58.2.
any additional exemptions
58.3.
the licence application and renewal processes
58.4.
a register of licences (which may be an electronic register)
58.5.
a complaints and disciplinary process, and
58.6.
any other supporting processes and documentation
32
59. agree that the legislation comes into force 12 months from the finalisation of the activities set
out in recommendation 58, to allow for onshore immigration advisors to apply for and be issued
with an immigration advisors licence
…[information withheld under section 9(2)(f)(iv) and 18(d) of the Official Information Act
1982]…
Next steps and legislation
67. agree that the Bill be binding on the Crown
68. invite the Minister of Immigration to issue drafting instructions to Parliamentary Counsel in
accordance with decisions made following consideration of this paper
69. agree that decisions on technical issues that might arise in the course of drafting be delegated
to the Minister of Immigration
70. note that if issues of substance arise in the course of drafting, these will be referred back to the
Cabinet Economic Development Committee by the Minister of Immigration, following
consultation with other relevant Ministers
71. note that the Minister of Immigration intends to seek an appropriate priority in the legislation
programme by way of a paper to Cabinet Legislation Committee in January 2005, with a view
to introducing legislation in the first half of 2005, and
Publicity
72. agree that, should Cabinet agree to the recommendations in this paper, the Minister of
Immigration will release a media statement, this paper and accompanying Regulatory Impact
Statement and Business Compliance Cost Statement.
Hon Paul Swain
Minister of Immigration
33
Appendix A
Proposed Governance Structure: Immigration Advisors Authority
(High Court)
DistrictCourt
Minister of Immigration
Accountable
Department of Labour
Secretary of Labour
Accountable
(State Sector Act)
Registrar
Departmental
Transition
Policy advice
Monitor
Evaluate
Review
Reporting
Immigration operations
Case management
Advice
Advisor relationship
Appeal
& review
Appoints &
employs
Information
exchange
Relationship
management
Administration
Register
Record keeping
Systems
Reporting
Licensing & renewal
Rules and conduct
Education
Communication
Enforcement
Complaints
Discipline
Investigation (prosecution)
Legal advice
Prosecution
Connections
Proposed staff allocation
Registrar
Licensing /
renewal
Education /
training
Business
support
Comms
Complaints
Audit /
Investigation
1 FTE
1 FTE
1 FTE
1 FTE
3 FTE
2 FTE
34
…[information withheld under section 9(2)(f)(iv) and 18(d) of the Official Information Act
1982]…