Immigration Advisers Licensing Bill Government Bill 2005 No 270-2 As reported from the Transport and Industrial Relations Committee Recommendation Commentary The Transport and Industrial Relations Committee has examined the Immigration Advisers Licensing Bill and recommends that it be passed with the amendments shown. Introduction This bill creates a licensing regime for people who provide immigration advice both in New Zealand and overseas. Any person providing advice regarding immigration to New Zealand will have to be licensed unless explicitly exempt. Immigration advisers will have to meet competency standards and be deemed fit to practise, and will be subject to complaints and disciplinary procedures. A number of new offences are set out, including that of providing immigration advice without a licence. A new statutory body, the Immigration Advisers Authority, will be established to administer the licensing regime. The Authority will maintain a register of licensed immigration advisers, which will include contact information for the listed advisers, and will indicate if they are subject to any sanctions. Commencement We recommend amendments to clause 2 to correct anomalies in the bill's commencement dates, for example bringing clause 7 into force at the bill's enactment. Other proposed changes to clause 2 include references to recommended new clauses, and should ensure the implementation timetable for the bill proceeds as intended. Offshore immigration advice The bill currently provides a three-year grace period, up until 1 June 2011, before overseas immigration advisers will have to be licensed in respect of advice given overseas. Onshore advisers on the other hand are required to be file:///s /BILLS/WIP/PDFs/20052702.txt (1 of 88)8/09/2006 10:39:00 p.m.
licensed before 1 June 2008. We recognise that some time is necessary for the Authority to implement the operational procedures for offshore advisers, and to develop processes compatible with Australia under the Trans-Tasman Mutual Recognition Arrangement. We recommend an amendment to clause 8 to reduce the length of the implementation process for the bill from five to three years. This would require overseas advisers be licensed one year after their New Zealand-based counterparts. Within this shorter timeframe, overseas advisers can opt to become licensed at the same time as onshore advisers. Overseas advisers would then have a further year in which they could become licensed voluntarily, but would have to become licensed one year after licensing becomes compulsory for onshore advisers. The amended timeframe also fits well with the intended implementation dates of the Lawyers and Conveyancers Act 2006, which will regulate lawyers who provide immigration advice. Providing advice at a distance We recommend an amendment to clause 8 to clarify that advice is deemed to be provided where the adviser is located. The bill currently focuses on where the advice is physically generated and distinguishes only between onshore and offshore advisers. This may raise questions when advice is provided at a distance, for example by phone or email, as to whether advice is provided where the recipient of the advice is, or where the adviser is located. The amendment will clarify the intention that advice be treated as being provided where the adviser is located. References in immigration forms and brochures We recommend an amendment to clause 9(2) to remove the reference to the Department of Labour, and replace it with a generic reference to the department responsible for the administration of the Immigration Act 1987. The current wording of the clause is inflexible, referring to the Department of Labour preparing immigration forms and information brochures. file:///s /BILLS/WIP/PDFs/20052702.txt (2 of 88)8/09/2006 10:39:00 p.m.
Who may be licensed as an immigration adviser We recommend an amendment to clause 52 to indicate that a body corporate that employs immigration advisers is not in breach if it represents itself as providing immigration advice via licensed immigration advisers. Currently under clause 10 only natural persons who meet appropriate standards may be licensed. There was concern that corporate entities employing licensed immigration advisers might therefore be seen as committing an offence if they traded as immigration advice businesses and advertised as such. The amendment to clause 52 will clarify that this is not the intention. Legislative exemptions We recommend an amendment to clause 11(1), inserting new paragraphs (ab) and (ac) to ensure that the exemptions for MPs, their staff, foreign diplomats, and consular staff are included in primary legislation. In addition, we recommend the inclusion of new clause 11(1)(ac), to provide an exemption for public servants, but limited to those who provide immigration advice within the scope of their employment agreement. We feel that the exemption for all public servants, as was originally intended, is too broad. It was originally intended that the exemptions would be provided by way of an Order in Council. Including the exemptions in primary legislation is preferable as it provides more certainty. Exemption for practising lawyers We recommend an amendment to clause 11(1), inserting new paragraph (ae) to ensure an exemption for practising lawyers is included in primary legislation. The bill currently provides for an exemption, by Order in Council, for persons in professions or occupations that have disciplinary procedures under their own statutes that apply to the provision of immigration advice. It was intended that lawyers would be exempted by Order in Council from the licensing requirements because of the regulations imposed by the Law Practitioners Act 1982 and the Lawyers and Conveyancers Act 2006, which set standards of conduct for the legal profession, regardless of the area of law in which a person practises. file:///s /BILLS/WIP/PDFs/20052702.txt (3 of 88)8/09/2006 10:39:00 p.m.
Concerns were raised about the intended exemption for lawyers. It was suggested that lawyers can and do provide poor immigration advice; that law societies may not be as accessible to complainants as the Authority will be; and that having lawyers regulated by a different body may cause a perception that there is one standard for lawyers and one for everyone else. We have looked closely into the intended exemption of lawyers. The decision to accept the exemption of lawyers has been based on the following assumptions: that the complaints and disciplinary process under the Lawyers and Conveyancers Act will be an improvement on the system that operated under the Law Practitioners Act; that the Law Society, as it has indicated, will work closely with the Authority when developing practice rules for standards of professional conduct and client care; that practice rules for lawyers providing immigration advice will require such lawyers to undergo ongoing legal education; and that the Minister of Justice will consult the Minister of Immigration when considering the practice rules submitted by the Law Society for approval. We also note that requiring lawyers to be licensed in order to provide immigration advice would be duplicative and might create unnecessary compliance costs. However, should these assumptions prove wrong, or should the arrangements fail to work satisfactorily, we would expect future Parliaments to reconsider the exemption for practising lawyers. Not-for-profit sector We recommend that clause 11(1) of the bill be amended, inserting new paragraphs (ag) and (af) so that individuals employed by or working as volunteers for Citizens Advice Bureaux or certain Community Law Centres can be exempted from the need for licensing, and that this exemption is included in primary legislation. Currently not-for-profit and voluntary organisations are not exempt. The not-for-profit sector is concerned that requiring the licensing of such organisations would increase their administrative and cost burdens, thus reducing benefits to their clients. It argues that those not-for-profit organisations that provide immigration advice, such as the New Zealand Citizens Advice Bureaux and Community Law Centres, warrant an exemption. We feel that, in general, the not-for-profit sector should be subject to regulation, as poor advice can harm an applicant whether or not a fee is paid. However, it would not be in the consumer's interest for these organisations to cease to provide information to migrants because of cost constraints. Requiring all not-for-profit organisations to be licensed might also increase the file:///s /BILLS/WIP/PDFs/20052702.txt (4 of 88)8/09/2006 10:39:00 p.m.
likelihood of migrants receiving incorrect information from other sources, and increase workloads at other first points of contact. We believe that properly trained employees and volunteers working in Citizens Advice Bureaux and certain Community Law Centres warrant exemption from the licensing requirements. These organisations both have sufficient safeguards to ensure the competent and ethical conduct of individuals working for them. However, the exemption for Community Law Centres will apply only where a lawyer is either a member of the employing body of the Community Law Centre, or is employed by or working for the law centre in a supervisory capacity. The amendment will exempt employees and volunteers working in Citizens Advice Bureaux and qualifying Community Law Centres from the licensing requirement. Exemption for offshore education advisers providing advice on student visas and permits Clause 11(1)(b) currently provides a licensing exemption for persons who provide immigration advice offshore only in relation to applications or potential applications for student visas or permits. Several concerns were raised regarding this provision: it was suggested that students are as vulnerable and deserving of protection under the legislation as other applicants; that advisers may provide information on other immigration matters; that unethical advisers may style themselves "education advisers" in an attempt to avoid licensing and that licensing offshore student advisers would enhance New Zealand's appeal as an international student destination. We have looked at this issue closely. We note that there are provisions in the bill for the granting of limited licences. Under these provisions offshore immigration advisers advising on student visas and permits could be granted limited licences, and would then be authorised to provide immigration-related information only regarding applications for student visas or permits. However, these concerns must be weighed against the risk that in an increasingly competitive global environment, requiring the licensing of offshore immigration advisers on student visas and permits might discourage them from marketing New Zealand as an attractive international student destination. We note that none of New Zealand's major competitors in the international education market currently operates a registration system for offshore immigration advisers of this type. On balance, we consider that in such a competitive market it would not be in file:///s /BILLS/WIP/PDFs/20052702.txt (5 of 88)8/09/2006 10:39:00 p.m.
New Zealand's best interest to be the only country to regulate offshore immigration advisers who provide advice only on student visas and permits. We recommend that the exemption, at this stage, remain, but that this issue be kept under review, recognising that the exemption may eventually need to be removed. We recommend therefore that the bill be amended to allow the exemption to be removed by an Order in Council. The Minister would be required to follow the process in new section 11B before recommending that such an Order be made. Changes to Order in Council exemption process The bill does not currently specify in any detail the process for recommending exemptions by Order in Council. For clarity we believe the process and the criteria for granting an exemption should be expanded by inserting the following new sections: o new section 11A, providing that the existing Order in Council exemption process be expanded, requiring that an exemption be made only on the basis of a recommendation from the Minister o new section 11B, providing that the Minister make his or her recommendation on the basis of the Registrar's assessment as to whether the exemption criteria have been met, and following consultation with interested persons and organisations o new section 11B(2), providing that the matters to be considered by the Minister when assessing professional and ethical conduct regarding an exemption include obligations to clients, conflicts of interest, disclosure requirements, membership standards, and provision for consumer complaints, supervision, and ongoing training o new section 11C, providing that an exemption be subject to a regular review at intervals not greater than three years to ensure that exemptions remain only where justified. These expanded processes would ensure that an exemption for an individual could be granted only if they could demonstrate that they met the requirements. It also provides transparency for advisers and consumers. Persons prohibited from licensing Clause 12 lists classes of people who are prohibited from being licensed. Among file:///s /BILLS/WIP/PDFs/20052702.txt (6 of 88)8/09/2006 10:39:00 p.m.
those prohibited are undischarged bankrupts, and persons who have been prohibited or disqualified under sections 382, 383, or 385 of the Companies Act 1993, or its predecessor Act, from managing a company. We recommend an amendment to clause 12 to clarify that a prohibition on licensing is linked to the term of whatever undischarged bankruptcy or prohibition or disqualification under the Companies Act, affects the individual in question. After the expiry of a prohibition or disqualification, or after being discharged from bankruptcy, a person should be eligible for licensing if the Registrar is satisfied that the previous bankruptcy or disqualification is unlikely to affect the person's fitness to provide immigration advice. The current wording of the bill suggests that the people in question face a lifetime ban from becoming a licensed immigration adviser. The amendment would clarify that this is not the case. Prohibiting those who have exercised decision-making powers on immigration matters It has been questioned whether it is appropriate for people who have exercised power of discretion on immigration matters to be licensed as immigration advisers, since their "inside" knowledge and contacts might confer a competitive advantage. We have closely examined this issue, and the majority recommend inserting a new clause 12(2) to add that people who have exercised powers of discretion on immigration matters, such as former Immigration, Visa, or Refugee Status Officers and former Ministers or Associate Ministers of Immigration should be prohibited from being licensed as immigration advisers for a period of 12 months after leaving the roles in question. In essence, this would act as a restraint of trade and would to some extent mitigate the concerns raised. National minority view National opposes the "restraint of trade" clause being introduced without well-documented evidence for the need of this clause. The nature and scope of the problem has not been quantified, especially as this legislation is for the regulation of advisers and imposes qualification standards and disciplinary action. Neither have the financial consequences of imposing this clause within employment situations been explored. Other matters relevant to fitness for licensing file:///s /BILLS/WIP/PDFs/20052702.txt (7 of 88)8/09/2006 10:39:00 p.m.
Clause 14 allows the Registrar, when determining an applicant's fitness, to take into account lesser convictions and disciplinary matters. We recommend that clause 14 be amended to clarify that the Registrar may also take into account a person's disciplinary record in other occupations or professions. The bill as written allows no discretion under this clause for the Registrar to consider a person's competence, ethical practices, or past history in an unrelated profession. For example, that a lawyer had been disbarred under the Law Practitioners Act 1982 or the Lawyers and Conveyancers Act 2006 could not be taken into consideration. The amendment will allow the Registrar to take such matters into account. Cancellation of licence We recommend an amendment to clause 24(b)(iv) to remove the reference to the case where a person "has ceased to be engaged in providing immigration advice". There is no need to explicitly include this possibility, as it is unclear how the Registrar would determine whether an adviser has ceased providing immigration advice; and an adviser who has ceased providing advice no longer represents a risk. There is, therefore, no need for this reference. Process for cancellation We recommend an amendment to clause 26(1)(b),which sets out the process the Registrar must follow to cancel a licence, to require that the Registrar advise the licence holder of the intended course of action. The licence holder has 10 working days to respond, and the Registrar then makes a decision regarding the cancellation date, taking account of any submissions received. As the clause is drafted, it is unclear how the effective date for cancellation given by the Registrar relates to the 10-day submission period and subsequent consideration of submissions. The amendment should clarify this process. Suspension of licence We recommend an amendment, inserting new clause 26A, to allow the decision to suspend a licence during an investigation to be made by the Immigration Advisers Complaints and Disciplinary Tribunal, rather than the Registrar. As drafted, clause 26 allows the Registrar to suspend a licence when a complaint is being investigated and the Registrar is satisfied that the matter file:///s /BILLS/WIP/PDFs/20052702.txt (8 of 88)8/09/2006 10:39:00 p.m.
is of such seriousness that it may result in the cancellation of the licensee's licence. We have been unable to find any parallel occupational regulation where there is an "independent body" and the Registrar retains decision-making powers to suspend a licence during a complaint investigation. In addition, the suspension of a licence during an investigation of a complaint is a serious sanction and could impact on the livelihoods of the adviser and their clients. The amendment proposed would ensure any decision to suspend a licence during an investigation was made independently. Cancellation, suspension, or surrender of licence We recommend an amendment to clause 29 to include references to all powers to cancel or suspend a licence. Currently, clause 29 sets out the requirements for recording the cancellation or suspension of a licence under sections 25 and 43, but there is no reference to the power to cancel a licence. New governance model for complaints and disciplinary proceedings We recommend inserting new clauses 36A, 36B, 36C, and 36D and a new Schedule to establish the Immigration Advisers Complaints and Disciplinary Tribunal. This would split the functions of the Authority between the Department of Labour and the Tribunal, which would be administered in the Ministry of Justice. We feel this would make the Authority more independent, and thus ensure its integrity. Under the amendments, the Ministry of Justice, would administer the Tribunal independently through its Special Jurisdictions Unit. The Tribunal would be responsible for adjudicating complaints and exercising disciplinary powers relating to immigration advisers. All other functions relating to the occupational regulation of immigration advisers, including prosecutions, would remain with the Department of Labour. The bill currently establishes the Immigration Advisers Authority as a body within the Department of Labour. Despite measures intended to ensure its independence, there is doubt whether the Authority can maintain independence from Immigration New Zealand, the department's immigration arm. Concerns have been raised over the ability of the Registrar of the Authority to initiate a file:///s /BILLS/WIP/PDFs/20052702.txt (9 of 88)8/09/2006 10:39:00 p.m.
complaint against an adviser, and to impose sanctions, effectively making the Registrar both judge and jury. The amendments will address these concerns. Immigration Advisers Complaints and Disciplinary Tribunal The new Tribunal will be established and supported administratively by the Ministry of Justice. The Tribunal would consist of a Chair and as many members as required, depending on workloads. They would be Judicial Officers appointed by the Governor-General on the recommendation of the Minister of Justice, in consultation with the Minister of Immigration. The Tribunal would consider all complaints about immigration advisers filed with it by the Registrar. The Tribunal would take over from the Authority the existing power of imposing disciplinary sanctions on immigration advisers. Interface between the Registrar and the Tribunal We believe it is important that the complaints process be accessible and transparent. For this reason, the Authority, within the Department of Labour, should act as the "front door" and receive complaints about licensed immigration advisers. The process we are recommending would work as follows: 1. On receipt of a complaint by the Registrar, staff would process the complaint, checking that it met the grounds for a complaint. The Registrar would retain inspection powers to obtain information on a complaint. 2. Having filtered out any complaints that did not meet the requirements or disclose valid grounds, the Registrar would then file the complaints with the Tribunal. 3. The Tribunal would then decide whether the complaint should be upheld, and impose any disciplinary sanction it considered appropriate. The parties and the Registrar would be advised of the Tribunal's decision. Complaints and disciplinary procedures Our recommendation to establish a new Tribunal has required significant redrafting of clauses 37 to 43. The redrafting is to delineate the functions of the Tribunal and the Authority regarding complaints and disciplinary procedures. To reflect this we recommend substantial amendment to the cluster of clauses between 37 and 44. file:///s /BILLS/WIP/PDFs/20052702.txt (10 of 88)8/09/2006 10:39:00 p.m.
Complaint procedures We recommend that to provide more transparency, amendments should be made to the complaint provisions in clause 39. They should require that complainants specify the grounds of the complaint, and whether they have tried to resolve the complaint using the immigration adviser's own complaints procedures, and if so, the outcome. Currently the grounds for complaint are negligence, incompetence, incapacity, dishonest or misleading behaviour, and any breach of the code of conduct by a licensed immigration adviser. There is no requirement to specify the grounds of the complaint, or whether the complainant has tried to resolve the matter him or herself. As drafted, clause 39(2) applies only to licensed immigration advisers. We also recommend an amendment to clarify that the grounds for complaint also apply to former licensed immigration advisers. The bill defines a former immigration adviser in 39(1)(b) as a person who, not more than 2 years before the date of the complaint, was a licensed immigration adviser. Decision-making powers of the Registrar We recommend an amendment to clause 40 to provide that a decision by the Registrar to dismiss a complaint, because of its trivial or inconsequential nature or because none of the grounds of complaint are disclosed, can be appealed to the Tribunal for determination. Currently there is no appeal provision in the bill against the Registrar's decisions to dismiss complaints on these grounds. The amendment would provide consistency with other legislation, and allow complainants the opportunity to challenge the Registrar's decision. It would also increase the independence of the Tribunal. Disciplinary sanctions Clause 43(7) states that in relation to sanctions in 43(1)(e) to (h), an unpaid debt may be recovered as debt due to the Crown. We recommend amendments to clarify which payments must be made to the Crown and which must be made to the complainant or another person. We also recommend an amendment to clarify that the disciplinary sanctions are applicable to both current and former licensed immigration advisers. file:///s /BILLS/WIP/PDFs/20052702.txt (11 of 88)8/09/2006 10:39:00 p.m.
Purpose of inspection Clauses 44 to 46 set out inspection powers for the administration of the licensing regime and the investigation of offences. We recommend an amendment to the wording of clause 44 to clarify that inspection powers may be used to obtain information relating to the investigation of complaints. Clause 44 currently says that the powers of inspection in clause 45 may be used "for the purpose of administering the licensing regime". The amendment would clarify the intent that the word "administering" should cover dealing with complaints. We also recommend an amendment to clarify that inspection powers may be exercised in respect of former licensed immigration advisers. The committee notes that other legislation sometimes requires business records to be retained for a period of time. However, the Lawyers and Conveyancers Act 2006 and the Immigration Act 1987 are silent on this. We consider that the issue of retention of records by an immigration adviser should be addressed under the code of conduct. Should this arrangement fail to work satisfactorily, we would expect future Parliaments to reconsider this issue. Entry warrant Clause 49 provides for a judge to issue an entry warrant to a dwelling house where appropriate. As drafted, the clause does not meet Legislation Advisory Committee guidelines for the issue of entry warrants. We recommend amending clause 49 accordingly, to require that the application for a warrant should be in writing, and that the applicant for the warrant must disclose previous applications in respect of the same matter. Knowledge of offences The bill specifies a number of offences where knowledge is required. As it is currently drafted, the knowledge element of some offences is not expressed consistently. Clauses 51 to 64 deal with offences. We recommend amendments to clarify which aspect of the offence the knowledge element refers to. This will require file:///s /BILLS/WIP/PDFs/20052702.txt (12 of 88)8/09/2006 10:39:00 p.m.
amendments to clause 51(1)(a), 52(1)(a) and 55(1)(a). Further, in relation to offences where knowledge is required, we recommend amendments to provide that, where the Registrar or a person appointed to the Authority has informed a person of a relevant fact (such as the fact that that the person is required to be licensed, or is not licensed) within the preceding 12 months, the person will be deemed to know that fact. This will require the insertion of new sections 51(1A), 52(1A), 53(1A), 55(1A) and 56(1A). Offence of providing false or misleading information We recommend an amendment to clause 54 to make it an offence to provide false or misleading information to the Authority when applying for a renewal of a licence. Offence of obstructing inspection We recommend an amendment to clause 57 to remove references to "knowledge" and "reckless" from the offence of providing false or misleading information to a person exercising powers of inspection. This would consequently require the deletion of clause 62(3). Clause 57 creates an offence of obstructing inspection. As currently worded, however, clause 57(1) includes the term "without reasonable excuse," which indicates a strict liability offence. Clause 57(1)(c) subsequently refers to a person knowing, or being reckless as to whether, information is false or misleading. This is inconsistent with a strict liability offence, so we recommend these words be deleted. Presumption as to non-exemption Clause 62 provides for certain presumptions as to whether or not a person is licensed or exempt from the licensing requirements. To ensure that the presumptions refer to all the relevant offences, we recommend amendments to this clause to include a reference to section 56(1)(a) in clause 62(1), and a reference to clause 56(1)(b) in clause 62(2). Defence of reasonable excuse We recommend the insertion of clauses 51(1B), 52(1B), 54(1A), 55(1B), and 56(1B) to clarify the defence of "reasonable excuse". Consequential amendments to clauses 51(1)(b), 52(1)(b), 54(1)(b), 55(1)(b), and 56(1)(b) are also recommended. Clause 63 would be consequentially deleted. file:///s /BILLS/WIP/PDFs/20052702.txt (13 of 88)8/09/2006 10:39:00 p.m.
These amendments clarify that, generally speaking, a person has a reasonable excuse (and does not commit an offence) if the person does not know that he or she was performing the act that constitutes the offence, and has taken all reasonable care and due diligence to ensure he or she did not perform such an act. Independence of persons carrying out functions under the Act We recommend an amendment to clause 65(a) to add the words "or for the renewal of licences". Clause 65 prohibits the Authority from employing current Immigration New Zealand officers, or former Immigration New Zealand officers for two years after their departure. This is to ensure the independence of persons carrying out certain functions under the Act. One of these functions is to "consider or decide applications for licences", but there is no similar prohibition on considering applications for renewals of licenses. The amendment would provide consistency between these provisions. Right of appeal We recommend an amendment to the heading above clause 70 to refer to decisions of the Registrar or the Tribunal, not the Authority. Strictly speaking, the rights of appeal provided for in clauses 70 to 74 are against decisions of the Registrar or Tribunal, which the amendment to the heading would clarify. Limiting right of appeal to decisions on sanctions We recommend an amendment to clause 70(1)(d) to confine the right to appeal decisions under clause 43 (enabled by clause 70(1)(d)) to decisions to impose sanctions, excluding decisions to dismiss complaints. As drafted, clause 70(1)(d) provides for the right of appeal against, in addition to the decisions set out in clauses 70(1)(a) to (c), "any other decision of a kind referred to in section 43". Under clause 43 the Tribunal has the power to either dismiss the complaint or impose sanctions. In addition new clause 71(1)(e) refers to the right of appeal against any decision of the Tribunal to reject an appeal against cancellation of the licence by the Registrar. It is not intended that a person may appeal to the District Court against a file:///s /BILLS/WIP/PDFs/20052702.txt (14 of 88)8/09/2006 10:39:00 p.m.
decision of the Tribunal to dismiss a complaint, which could lead to vexatious or frivolous complaints. We note that Judicial Review is a remedy that can be used by any person to challenge administrative decisions. Limiting right of appeal to persons subject to sanctions We recommend an amendment to clause 70(1)(d) to clarify that the appeal rights under clause 43 can be exercised only by the person who is the subject of the sanction, not by "any person". Persons who may receive notice of decisions and their rights of appeal We recommend an amendment to clause 70(2)(a) to refer to any person subject to a decision, not just to applicants for licences. Clause 70(2)(a) provides that an appeal must be made by giving notice, in writing, within 20 working days after the date on which the decision was communicated to "the applicant". The reference to "the applicant" may not be accurate where the decision relates to a decision to cancel or suspend an existing licence, or to any of the decisions to sanction in section 43. Eligibility for legal aid The committee understands that eligibility for legal aid will be determined by the appropriate authority. Licence fees We recommend an amendment to clause 77 to clarify that, in some cases, no fee may be payable. Clause 77(1) provides for the determining of fees, and clause 77(2) allows fees to differ according to the class of applicant or licensee, and to take account of whether or not the applicant charges, or proposes to charge, for providing immigration advice. We believe that individuals working only as volunteers for not-for-profit organisations should not be charged a licensing fee when the regulations for setting fees are developed, and that this should be clearly enabled in legislation. file:///s /BILLS/WIP/PDFs/20052702.txt (15 of 88)8/09/2006 10:39:00 p.m.
Regulations We recommend an amendment to clause 81(c) to correct a typographical error. The amended clause should read "Providing for matters..." Summary Proceedings Act 1957 amended We recommend an amendment to add the term "licensed" to clause 84 to better reflect the offence created by clause 53(1) which refers to holding out as a licensed immigration adviser. Appendix Committee process The Immigration Advisors Licensing Bill was referred to the committee on 13 December 2005. The closing date for submissions was 24 February 2006. We received and considered 35 submissions from interested groups and individuals. We heard 11 submissions, which included holding hearings in Wellington and Auckland. Hearing of evidence took 4 hours 51 minutes and consideration took 4 hours and 55 minutes. We received advice from the Department of Labour. Committee membership Hon Mark Gosche, Chairperson Hon Maurice Williamson, Deputy Chairperson David Bennett Peter Brown Bob Clarkson Darien Fenton Taito Phillip Field Dr Wayne Mapp Sue Moroney Hon Judith Tizard Pansy Wong replaced Hon Maurice Williamson for this item of business. Hon David Cunliffe Immigration Advisers Licensing Bill file:///s /BILLS/WIP/PDFs/20052702.txt (16 of 88)8/09/2006 10:39:00 p.m.
1 Title 2 Commencement Government Bill Contents Part 1 Regulation of immigration advisers Preliminary provisions 3 Purpose and scheme of Act 4 Act binds the Crown 5 Interpretation Immigration advisers to be licensed, unless exempt 6 Prohibition on providing immigration advice unless licensed or exempt 7 What constitutes immigration advice 8 Offshore immigration advice 9 No acceptance of immigration applications or requests from unlicensed immigration advisers 10 Who may be licensed as immigration adviser 11 Persons exempt from licensing 11A Exemption, or removal of exemption, by Order in Council 11B Process for Minister to make recommendation 11C Review of exemptions 12 Persons prohibited from licensing 13 Persons subject to restriction on being licensed file:///s /BILLS/WIP/PDFs/20052702.txt (17 of 88)8/09/2006 10:39:00 p.m.
14 Other matters relevant to fitness for licensing Licensing process 15 Application for licence 16 Granting of licence 17 Method of determining competence 18 Refusal to grant licence 19 Duration of licence 20 Upgrade of licence 21 Renewal of licence 22 Licence may not be transferred 23 Obligation to notify Registrar of change in circumstances Cancellation and suspension of licence, etc 24 Cancellation of licence 26 Process for cancellation 26A Suspension of licence 27 Effective date of cancellation or suspension 28 Voluntary surrender of licence 29 Registrar must record cancellation, suspension, or surrender of licence 30 Expiry of licence Immigration Advisers Authority and Registrar of Immigration Advisers 31 Immigration Advisers Authority established file:///s /BILLS/WIP/PDFs/20052702.txt (18 of 88)8/09/2006 10:39:00 p.m.
32 Functions of Authority 33 Registrar to develop competency standards 34 Registrar to develop code of conduct 35 Publication of code of conduct and competency standards 36 Code and standards deemed to be regulations for purposes of disallowance Immigration Advisers Complaints and Disciplinary Tribunal 36A Immigration Advisers Complaints and Disciplinary Tribunal established 36B Functions of Tribunal 36C Services for Tribunal 36D Further provisions in relation to Tribunal and its proceedings Complaints and disciplinary procedures 39 Complaints against immigration advisers 40 Procedure on receipt of complaint by Registrar 41 Registrar may refer complaint to Tribunal of own motion 41A Preparation of complaint for referral to Tribunal 41B Filing complaint with Tribunal 42 Proceedings before Tribunal 42A Determination of complaint by Tribunal 43 Disciplinary sanctions 43A Enforcement of disciplinary sanctions 43B Suspension of licence pending outcome of complaint file:///s /BILLS/WIP/PDFs/20052702.txt (19 of 88)8/09/2006 10:39:00 p.m.
43C Appeal to Tribunal against determination by Registrar to reject complaint 43D Appeal to Tribunal against determination by Registrar to cancel licence Inspection 44 Purpose of inspection 45 Inspection powers for administration of licensing regime and obtaining information in relation to complaints 46 Inspection powers for investigating offences 47 Privilege against self-incrimination 48 Entry of dwellinghouses 49 Entry warrant 50 Conditions of authorisation Offences 51 Offence to provide immigration advice unless licensed or exempt 52 Offence of holding out as immigration adviser unless licensed or exempt 53 Offence of holding out as licensed immigration adviser 54 Offence to provide false or misleading information 55 Offence of asking for or receiving fee or reward for immigration advice when neither licensed nor exempt 56 Offence of employing or contracting unlicensed or non-exempt person as immigration adviser 57 Offence to obstruct inspection 58 Offence to fail to notify change in circumstances 59 Reparation file:///s /BILLS/WIP/PDFs/20052702.txt (20 of 88)8/09/2006 10:39:00 p.m.
60 Additional penalty for offence involving commercial gain 61 Offences also apply outside New Zealand 62 Presumption as to non-exemption 64 Proceedings for offences generally Part 2 Miscellaneous provisions Independence of persons carrying out functions under Act 65 Independence of persons carrying out functions under Act Register of licensed immigration advisers 66 Register of licensed immigration advisers 67 Contents of register 68 Alterations to register 69 Search of register Appeals against decisions of Registrar and Tribunal 70 Right of appeal 71 District Court may make interim order 72 Duties of Registrar if interim order made 73 Determination of appeal 74 Appeal to High Court on question of law Miscellaneous matters 74A Annual report on performance of Tribunal's functions 75 Power of Registrar to delegate file:///s /BILLS/WIP/PDFs/20052702.txt (21 of 88)8/09/2006 10:39:00 p.m.
76 Certificate of Registrar 77 Licensing fees 78 Waiver of further immigration fees in certain cases 79 Disclosure of personal information overseas 80 Service of notices 81 Regulations Amendments to other Acts 82 Immigration Act 1987 amended 83 Privacy Act 1993 amended 84 Summary Proceedings Act 1957 amended Schedule Provisions applying in relation to Tribunal The Parliament of New Zealand enacts as follows: 1 Title This Act is the Immigration Advisers Licensing Act 2005. 2 Commencement (1) Sections 1 to 5, {11(2)} [7, 11A, 11B], 31 to {38} [36D], 75, [77,] 79, and 81 [and the Schedule] (which relate to the Authority, the Registrar, [the Tribunal,] the development of competency standards and the code of conduct, and related matters) come into force on the day after the date on which this Act receives the Royal assent. (2) Sections 6, 9, 51, 55, and 56 (which impose the requirement to be file:///s /BILLS/WIP/PDFs/20052702.txt (22 of 88)8/09/2006 10:39:00 p.m.
licensed as an immigration adviser, and provide for related offences) come into force {on 1 June 2008} [2 years after the date on which this Act receives the Royal assent]. (3) The rest of this Act comes into force {on 1 June 2007} [1 year after the date on which this Act receives the Royal assent]. Part 1 Regulation of immigration advisers Preliminary provisions 3 Purpose and scheme of Act The purpose of this Act is to promote and protect the interests of consumers receiving immigration advice, and to enhance the reputation of New Zealand as a migration destination, by providing for the regulation of persons who give immigration advice. 4 Act binds the Crown This Act binds the Crown. 5 Interpretation In this Act, unless the context otherwise requires,--- Authority means the Immigration Advisers Authority established by section 31 category 1 exemptee means a person exempt from the requirement to be licensed as an immigration adviser under section {11(3)(a)} [11A(3)(a)] category 2 exemptee means a person exempt from the requirement to be licensed as an immigration adviser under section {11(3)(b)} [11A(3)(b)] chief executive means the chief executive of the Department clerical work means the provision of services in relation to an immigration matter, or to matters concerning sponsors, employers, and education providers, in which the main tasks involve all or any combination of the following: file:///s /BILLS/WIP/PDFs/20052702.txt (23 of 88)8/09/2006 10:39:00 p.m.
(a) the recording, organising, storing, or retrieving of information: (b) computing or data entry: (c) recording information on any form, application, request, or claim on behalf and under the direction of another person code of conduct means a code of conduct approved by the Minister under section 34 and published or notified in accordance with section 35(1)(a) company has the meaning given to it by section 2(1) of the Companies Act 1993; and includes companies or bodies corporate registered or formed outside New Zealand competency standards means the competency standards approved by the Minister under section 33 and published or notified in accordance with section 35(1)(a) Struck out (unanimous) ======================================================================= complaints body means a complaints body set up under section 37 ======================================================================= Department means the Department of Labour, or such other department of {state} [State] that has, with the authority of the Prime Minister {from time to time}, assumed responsibility for the administration of this Act former licensed immigration adviser has the meaning given it by section 39(1)(b) immigration advice has the meaning given to it by section 7 immigration adviser means a person who provides immigration advice immigration application or request means the putting forward of any application, request, claim, appeal, or other approach seeking to have the Minister, the Department, an appeals body, or a visa, immigration, or refugee status officer deal with an immigration matter immigration matter means any matter arising under or concerning the application of the Immigration Act 1987 (including any regulations or policy or instructions made under that Act); and includes--- file:///s /BILLS/WIP/PDFs/20052702.txt (24 of 88)8/09/2006 10:39:00 p.m.
(a) applications and potential applications for temporary entry or limited purpose entry to, or transit through or residence in, New Zealand: (b) requests and potential requests for special directions: (c) refugee status claims and appeals: (d) immigration sponsorship: (e) immigration obligations: (f) appeals in relation to immigration matters New (unanimous) lawyer has the meaning given it by section 6 of the Lawyers and Conveyancers Act 2006 licence means a licence granted under this Act to operate as an immigration adviser Minister means the Minister of Immigration, or such other Minister of the Crown who, under the authority of any warrant or with the authority of the Prime Minister, is for the time being responsible for the administration of this Act ordinarily resident, at any particular time, refers to a person who--- (a) has been lawfully present in New Zealand for more than 183 days in the immediately preceding 12-month period; and (b) is not unlawfully in New Zealand permit means a permit granted under the Immigration Act 1987 register means the register of immigration advisers established and maintained under section 66 Registrar means the officer appointed under section 31(2)(a) settlement services means all or any of a range of targeted support services provided for migrants, refugees, and their families, including services for the file:///s /BILLS/WIP/PDFs/20052702.txt (25 of 88)8/09/2006 10:39:00 p.m.
purposes of enabling migrants, refugees, and their families to settle into the community, learn the language, and find out how to access essential community services New (unanimous) Tribunal means the Immigration Advisers Complaints and Disciplinary Tribunal established by section 36A visa means a visa issued under the Immigration Act 1987 working day means any day other than--- (a) a Saturday, a Sunday, Waitangi Day, Good Friday, Easter Monday, Anzac Day, the Sovereign's Birthday, and Labour Day; and (b) the day observed in the appropriate area as the anniversary of the province of which the area forms a part; and (c) a day in the period commencing with 25 December in any year and ending with the close of 15 January in the following year. Immigration advisers to be licensed, unless exempt 6 Prohibition on providing immigration advice unless licensed or exempt No person may provide immigration advice unless that person--- (a) is licensed under this Act to provide that advice; or (b) is exempt under section 11 from the requirement to be licensed. 7 What constitutes immigration advice In this Act, immigration advice--- (a) means using, or purporting to use, knowledge of or experience in immigration to advise, direct, assist, or represent another person in regard to an immigration matter relating to New Zealand, whether directly or indirectly and whether or not for gain or reward; but file:///s /BILLS/WIP/PDFs/20052702.txt (26 of 88)8/09/2006 10:39:00 p.m.
(b) does not include--- (i) providing information that is publicly available, or that is prepared or made available by the Department; or (ii) directing a person to the Minister or the Department, or to an immigration officer, a visa officer, or a refugee status officer (within the meaning of the Immigration Act 1987), or to a list of licensed immigration advisers; or (iii) carrying out clerical work, translation or interpreting services, or settlement services. 8 Offshore immigration advice (1) This Act applies in respect of immigration advice provided [by a person] outside New Zealand, as well as advice provided [by a person] within New Zealand, except as provided in this section. (2) Despite subsection (1), a person who is not ordinarily resident in New Zealand need not be licensed in respect of immigration advice provided [by that person] outside New Zealand before {1 June 2011} [the date that is 3 years after the day on which this Act receives the Royal assent], and--- (a) section 9 does not require the Department to refuse to accept an immigration application or request from such a person before that date; and (b) such a person will not be treated as committing an offence under this Act by reason only of providing immigration advice outside New Zealand before that date without being licensed. (3) A person to whom subsection (2) applies may however apply for and be granted a licence at any time after {1 June 2007} [the date that is 1 year after the day on which this Act receives the Royal assent], if the person chooses to apply. 9 No acceptance of immigration applications or requests from unlicensed immigration advisers (1) No immigration application or request put forward on behalf of another person by an unlicensed immigration adviser may be accepted, unless the adviser file:///s /BILLS/WIP/PDFs/20052702.txt (27 of 88)8/09/2006 10:39:00 p.m.
is exempt from the requirement to be licensed under section 11. (2) The chief executive of the Department of {Labour} [State that has, with the authority of the Prime Minister, assumed responsibility for the administration of the Immigration Act 1987] must so far as practicable ensure that immigration forms and information brochures prepared or provided by {the Department} [that department] advise that, in accordance with subsection (1), immigration applications or requests provided or prepared on behalf of another person by persons who are neither licensed immigration advisers nor exempt from the requirement to be licensed will not be accepted. (3) Where an immigration application or request on behalf of another person is not accepted by reason of contravening subsection (1), the relevant person or body must notify that person in writing of that fact, and advise the person as to how the application or request may be relodged or advanced in an acceptable manner. 10 Who may be licensed as immigration adviser A person may be licensed as an immigration adviser only if--- (a) the person is a natural person who applies for a licence under section 15; and (b) the Registrar is satisfied that the person meets the competency standards set under section 33; and (c) the person is not prohibited from holding a licence under section 12, and, in the case of a person to whom section 13 or section 14 applies, is determined by the Registrar to be a fit and appropriate person to hold a licence; and (d) the person is not a category 2 exemptee [or a lawyer]. 11 Persons exempt from licensing (1) The following persons are exempt from the requirement to be licensed: (a) persons who provide immigration advice in an informal or family context only, so long as the advice is not provided systematically or for a fee: file:///s /BILLS/WIP/PDFs/20052702.txt (28 of 88)8/09/2006 10:39:00 p.m.
New (unanimous) (ab) members of Parliament, and members of their staff who provide immigration advice within the scope of their employment agreement: (ac) foreign diplomats and consular staff accorded protection as such under the Diplomatic Privileges and Immunities Act 1968 or the Consular Privileges and Immunities Act 1971: (ad) employees of the public service who provide immigration advice within the scope of their employment agreement: (ae) lawyers: (af) persons employed by or working as volunteers for community law centres (as defined in section 6 of the Lawyers and Conveyancers Act 2006), where at least 1 lawyer--- (i) is on the employing body of the community law centre; or (ii) is employed by or working as a volunteer for the community law centre in a supervisory capacity: (ag) persons employed by or working as volunteers for citizens advice bureaux: (b) persons who provide immigration advice offshore in relation to applications or potential applications for student visas or student permits only[, but subject to any regulations made under section 11A(1)(b):] (c) persons exempted by regulations made under {subsection (2)} [section 11A]. Struck out (unanimous) ======================================================================= (2) The Governor-General may, by Order in Council, make regulations exempting any person or class of persons from the requirement to be licensed as immigration advisers. (3) Exemptions under subsection (2) must be classed as one of 2 categories--- file:///s /BILLS/WIP/PDFs/20052702.txt (29 of 88)8/09/2006 10:39:00 p.m.