Cunliffe: The Immigration Advisors Licensing Bill
15 December 2005
Cunliffe: The Immigration
Advisors Licensing Bill
The Immigration Advisors Licensing Bill, which would require the mandatory licensing of all immigration advisers, had its first reading in Parliament today.
In his first reading speech, Immigration Minister, David Cunliffe said the Bill would raise the standard of immigration advice and protect the interests of migrants.
"While many immigration advisors provide good services, there are insufficient regulatory constraints or market incentives to prevent some advisers providing unethical or incompetent services," said Mr Cunliffe.
Under the proposed legislation, it would be an offence to provide immigration advice without a licence, unless exempt. Offenders could face a fine of up to $100,000 and or seven years imprisonment.
People exempt from having to hold a licence would include; lawyers, MPs and people providing informal advice, in, for example, a family context.
The legislation would also include offshore advisers who would be able to opt-in to the licensing regime for the first three years, after which it would be mandatory.
The Bill provides for the establishment of the Immigration Advisers Authority, headed by an independent Registrar.
To obtain and hold a licence, advisers must meet competency standards and be "fit" to practise. This includes consideration of any previous convictions.
Licences would need to be renewed annually and details of licensed immigration advisers would be recorded and updated on a public register.
The legislation would bring New Zealand into line with countries such as Australia, Britain and Canada.
Mr Cunliffe said that as a local MP, he had seen the destructive effect of unqualified immigration advice on the lives of constituents.
"This Bill will enhance New Zealand's reputation as a migrant destination," said Mr Cunliffe.
"Migrants, their communities and reputable parties in the immigration sector will welcome it."
The legislation has now been referred to the Transport and Industrial Relations Select Committee.
Speech Notes - First Reading
Madam Speaker, I move that the Immigration Advisers Licensing Bill be now read a first time.
This Bill creates a new regulatory framework for the regulation of individuals providing immigration advice both onshore and offshore.
While many immigration advisers provide good services, there are insufficient regulatory constraints or market incentives to prevent some advisers providing unethical or incompetent services. This legislation will bring New Zealand into line with countries such as Australia and Britain.
By raising the standard of immigration advice, this Bill will promote and protect the interests of migrants and potential migrants who receive immigration advice, and enhance the reputation of New Zealand as a migration destination.
Migrants, their communities and reputable parties in the immigration advisory sector will welcome it.
As a local MP, I have all too often seen the destructive effect of unqualified or ill-intentioned immigration advice on the lives of my constituents. As a Minister I am pleased to have the opportunity to commend to the House the speedy passage of this much needed Bill.
All immigration advisers to be licensed unless exempt
All immigration advisers who assist migrants wanting to live in New Zealand will be required to be licensed unless exempt. This includes not-for profit and offshore advisers.
It will be an offence to provide immigration advice without a licence unless exempt. Offenders could face a fine of up to $100,000, seven years imprisonment or both. It will also be an offence for a person to say they are an immigration adviser unless licensed or exempt, or to say they are licensed to give advice when they aren't.
Exemptions from licensing
It is intended that people exempt from having to hold a licence should include:
·those who provide immigration advice in an informal or family context where the advice is not provided systemically or for a fee
·offshore immigration advisers where the advice relates to applications for student visas or student permits
· groups exempted because there is little consumer benefit to be gained from licensing, and there are sufficient processes in place to ensure competent and ethical conduct (for example MPs), and
· groups exempted because they are members of an occupational group that already has appropriate disciplinary procedures (for example lawyers).
The Select Committee will no doubt consider a range of submissions on these matters.
Offshore advisers provide the first point of contact for many migrants and it is crucial that they are included within the scope of this Bill. Offshore advisers will be temporarily exempt from the licensing regime for three years, but will be allowed to opt in. This opt in phase will last for three years after the Act comes fully into force, at which time they will be required to be licensed.
However, people who are 'ordinarily resident' in New Zealand will be immediately subject to the regulation, including when they provide advice while overseas.
The regulator will be called the Immigration Advisers Authority. It will be a statutory body within the Department of Labour and be headed by a Registrar. The Registrar will be appointed by the Chief Executive of the Department of Labour under the State Sector Act 1988. The Minister of Immigration will be the responsible Minister.
The Department of Labour is the appropriate host department, as the Bill's objectives relate strongly to government's immigration policies (currently managed within the Department of Labour). The Bill provides for the transfer of the function to an alternative department, if appropriate in the future.
To ensure the independence of the Authority from immigration decision makers, the Authority will sit separately from the immigration arm of the Department of Labour. In addition, no person who makes decisions on an immigration matter, or who has been employed to do so in the previous two years, may be employed by the Authority to decide licence applications, inspect premises or investigate complaints.
The Registrar may grant different types of licences depending on the competency of the applicant, such as provisional licences for new entrants to the industry. All licences must be renewed on an annual basis. Details of licensed immigration advisers will be recorded and updated on a public register. This information will include who is licensed, how to contact an adviser and whether the adviser is subject to any sanctions.
To obtain and hold a licence, advisers must:
· meet competency standards set by the Registrar, which cover qualifications, experience, knowledge and communication ability in English, and
· be 'fit' to practise. This includes consideration of any previous convictions, bankruptcy, and unlawful status under the Immigration Act 1987.
The Registrar will also develop a code of conduct that sets out standards of professional and ethical conduct for licensed immigration advisers.
One issue that has been raised with me by my colleague Lianne Dalziel is whether people who have recently exercised any power of decision in relation to immigration matters should be prohibited from holding a licence. This has not been included in the bill but I think it should be considered.
Some people use previous positions involving immigration matters or immigration decision making to generate business. It is important that there is no suggestion of improper advantage. A delay or stand down period in the licensing of these people may help to achieve this goal. I invite the select committee to consider this and report back.
Enforcement provisions cover administrative actions, complaints and disciplinary procedures and offences and penalties.
Administratively, the Department of Labour must refuse to accept immigration applications from unlicensed immigration advisers (unless exempt).
Complaints and disciplinary procedures against licensed advisers are both punitive and provide for consumer redress. The Registrar will set up a complaints body to investigate complaints of negligence, incompetence, dishonest behaviour or breaches of the code of conduct.
Following investigation of a complaint, the Registrar may impose sanctions including caution or censure, suspension or cancellation of a licence, payment of a penalty up to $10,000, and compensation to the complainant.
There are two classes of offences – offences involving knowledge where a person has deliberately flouted the law, and those of strict liability that enable a person to show that their breach of the law was not intentional and that they have otherwise exercised all reasonable care.
Imprisonment and / or fines of up to $100,000 are provided as penalties for knowledge offences, and strict liability offences carry correspondingly lower penalties. These penalties are compatible with existing penalties under both the Immigration Act 1987 and the Australian migration agent registration legislation.
There is a right of appeal and review to the District Court. The courts are able to order payment of reparation and to order additional fines reflecting any commercial gain or material benefit.
There will be a staged implementation of this Act. A 12 month set-up phase will be followed by a further 12 months to allow immigration advisers to meet entry standards, apply for a licence and to be approved by the Registrar. At this point, all immigration advisers must be licensed unless exempt or based offshore. Offshore advisers will be able to voluntarily opt in to the regime for a further three years, at which time they will be required to be licensed.
Select Committee report back
Madam Speaker, I move that the Immigration Advisers Licensing Bill be referred to the Transport and Industrial Relations Select Committee.