Immigration Advisers Licensing Bill

Immigration Advisers Licensing Bill Government Bill Explanatory note General policy statement This Bill creates a licensing regime for individuals who provide immigration advice. The purpose of the Bill is to promote and protect the interests of consumers receiving immigration advice, and to enhance the reputation of New Zealand as a migrant destination. People who provide immigration advice play a significant role in assisting and representing migrants, temporary entrants, and refugee status claimants. 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 concern is supported by reports of serious harm caused to individuals by some advisers. This Bill- enhances the ability of immigration applicants to make a wellinformed choice of immigration adviser: reduces the risk of serious harm to immigration applicants by ensuring that there are consistent and enforceable standards for immigration advisers: provides clear and accessible complaint and redress procedures for those who use an immigration adviser. Under the Bill, any individual providing immigration advice (including advisers who work in the voluntary sector) must be licensed, unless exempt. Immigration applications may not be accepted from unlicensed immigration advisers, unless they are exempt. 270-1

Immigration Advisers Licensing Explanatory note The Bill exempts those who provide immigration advice in an informal or family context as long as the advice is not given systematically or for profit. It also exempts persons providing advice offshore in relation to student visa and permit applications only. Two further types of exemptions may be made by Order in Council where- there is little consumer benefit in requiring a licence, and there are sufficient processes in place to ensure competent and ethical conduct; or persons are in professions that have their own disciplinary procedures that could apply to the provision of immigration advice. As offshore immigration advisers provide the first point of contact for many migrants, the regime would be critically undermined if offshore advisers were not included. There is a 3-year period during which offshore advisers need not be licensed (to allow the regime to become established), but they may become licensed if they wish to do so. At the end of the 3 years, all offshore immigration advisers providing advice relating to New Zealand immigration matters must be licensed. The Bill establishes a new statutory body, the Immigration Advisers Authority, headed by a Registrar, to administer the licensing regime. The Authority maintains a register of licensed immigration advisers, which allows consumers to find out who is licensed, how to contact a licensed immigration adviser, and whether an adviser is subject to any sanctions. To obtain a licence, advisers must be fit to practice and meet competency standards. The Bill sets out fitness standards that prohibit individuals from obtaining a licence where specified offences have been committed. Competency standards relate to qualifications, experience, knowledge, and communication in English. The Registrar may grant different types of licences depending on the competence of the applicant. Limited licences may be granted to those with expertise in specified areas only. Provisional licences may be granted where supervision of the holder is necessary. To maintain ongoing standards, licensed immigration advisers must comply with a code of conduct. The code will deal with matters such as obligations to clients, conflicts of interest, and the reasonableness of fees charged by advisers. Both the competency standards and the code of conduct are to be developed by the Registrar in consultation

Explanatory note Immigration Advisers Licensing 3 with stakeholders, and to be approved by the Minister of Immigration, before being published. To allow the Authority to enforce the licensing regime, the Bill establishes complaints and disciplinary procedures. The Registrar is responsible for setting up a complaints body to investigate complaints about licensed immigration advisers, such as complaints of negligence, incompetence, dishonest behaviour, or breaches of the code of conduct. Following investigation of the complaint by the complaints body, 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. The Authority is also responsible for investigating and enforcing offences under the Bill. The Bill establishes a number of new offences, including unlawfully providing immigration advice and falsely holding out as being a licensed immigration adviser. Specific knowledge offences have higher penalties in cases where it is proven that a person deliberately fiouts the law. Strict liability offences permit individuals who have breached the law to show that the breach was not intentional and that they have otherwise exercised all reasonable care. Imprisonment and/or fines of up to $100,000 are the maximum penalties for knowledge offences, and strict liability offences carry lower penalties. In addition, the courts are able to order payment of reparation, and fines reflecting any commercial gain or material benefit resulting from the provision of immigration advice by an unlicensed person. In addition to administering and enforcing the licensing regime, the Authority has roles in facilitating- public awareness of the regime, so that consumers are aware of the requirement for immigration advisers to be licensed and the standards consumers may expect from immigration advisers; and the education and professional development of immigration advisers, particularly in relation to not-for-profit advisers. Clause 1 is the Title clause. Clause by clause analysis Clause 2 is the commencement provision. The key provisions that require immigration advisers to be licensed come into force on 1 June 2008. This allows time for the administrative backdrop for the Bill to be in place (with the provisions allowing

4 Immigration Advisers Licensing Explanatory note for the setting up of the Authority, the development of competency standards and a code of conduct, and related matters coming into force on the day after the Bill receives the Royal assent), and the licensing process to occur (with licensing processes starting on 1 June 2007), before the prohibition on providing immigration advice unless licensed or exempt takes effect. Part 1 Regulation of immigration advisers Preliminary provisions Clause 3 sets out the purpose and scheme of the Bill, which is to promote and protect the interests of consumers receiving immigration advice, and enhance the reputation of New Zealand as a migration destination, by providing for the regulation of persons who give immigration advice. Clause 4 provides that the Bill binds the Crown. Clause 5 defines various terms used in the Bill. Immigration advisers to be licensed, unless exempt Clause 6 is a key clause in the Bill. It imposes a prohibition on the provision of immigration advice, unless the person concerned is licensed as an immigration adviser or is exempt from the requirement to be so licensed. Clause 7 sets out just what constitutes immigration advice for the purposes of the Bill. This is a key definition, and is cast in wide terms. The width of the definition will in practice be limited by the statutory exemptions set out in clause 11 and the category 1 and category 2 exemptions that will be contained in regulations made under clause 11. Clause 8( 1 ) makes it clear that the Bill applies in respect of immigration advice provided outside New Zealand, as well as advice provided in New Zealand. Subclause however provides a 3-year grace period, up until 1 June 2011, before overseas advisers will have to be licensed in respect of advice given overseas (although they may choose to apply for a licence within that 3-year period). Clause 9 contains the main practical sanction that will apply to immigration advisers who fail to obtain a licence. Any immigration application or request put forward on behalf of another person by an unlicensed immigration adviser will not be accepted (unless the

Explanatory note Immigration Advisers Licensing 5 adviser is exempt under clause 113. Subclause requires the chief executive of the Department of Labour to widely publicise the effect of subclause, and subclause (3) provides for the advising of persons affected by a refusal under subclause as to how their application or request may be relodged in an acceptable manner. Clause 10 sets out who may be licensed as an immigration adviser. Only natural persons who meet the appropriate competency standards may be licensed. Certain persons are prohibited from holding a licence for reasons such as disqualifying convictions, bankruptcy, illegal presence in New Zealand, or being subject to certain kind of exemptions. Persons convicted of other specified offences will not be licensed unless the Registrar of Immigration Advisers (the Registrar) is satisfied that the nature of the offence is unlikely to adversely affect the person' s fitness to provide immigration advice. Clause 11 provides for exemptions from the requirement to be licensed. Clause 11(a) sets out a statutory exemption for persons who provide immigration advice only in an informal or family context. Clause 11( 1 )(b) provides an exemption for persons providing advice offshore on student visas and permits. Other exemptions, of 2 basic kinds, will be provided for in regulations. It is envisaged that "category 1" exemptions will be granted to persons such as Members of Parliament, public service employees, and foreign diplomats. The exemptions will be granted on the basis that there is little consumer benefit to be gained by requiring such persons to be licensed, and that sufficient processes are in place to ensure the competent and ethical conduct of such persons. Persons with a category 1 exemption, and persons exempt under clause 11(b), may nevertheless apply to be licensed as immigration advisers, if they wish. Category 2 exemptions will be created for persons in professions or occupations that have their own statutory disciplinary procedures, such as practising lawyers. A category 2 exemptee cannot apply to be licensed as an immigration adviser. Any regulation of their immigration activities would occur under their own statute, to avoid duplication and overlapping of regulatory regimes. Clause 12 lists classes of persons prohibited from being licensed: undischarged bankrupts: persons prohibited or disqualified under New Zealand companies legislation from managing a company:

6 Immigration Advisers Licensing Explanatory note persons convicted of offences against New Zealand's immigration laws: persons removed or deported from New Zealand: persons unlawfully in New Zealand. Clause 13 provides that the following persons must not be licensed unless the Registrar is satisfied that the nature of the offence is unlikely to adversely affect the person' s fitness to provide immigration advice: a person convicted in New Zealand or elsewhere of a crime involving dishonesty, an offence resulting in a term of imprisonment, or an offence against the Fair Trading Act 1986 (or equivalent overseas offence): a person who, under the law of another country, is a person to who the equivalents of the matters set out in clause 12 apply. Clause 14 allows the Registrar, when determining an applicant' s fitness, to take into account lesser convictions, disciplinary matters, and whether or not a person is associated with another person who would be prohibited or restricted from obtaining a licence to act as an immigration adviser. Licensing process Clause 15 provides for licence applications. Clauses 16, 17, and 18 provide for the granting and refusal of licences. The Registrar may determine to grant a full licence, a limited licence, or a provisional licence. Clause 17 sets out the methods by which the Registrar may determine an applicant's competence. A refusal to grant a licence, or to grant a licence other than a full licence, is subject to appeal to a District Court. Clause 19 provides that licences will generally be granted for a 12- month period. Clause 20 provides for the upgrading of limited and provisional licences. Clause 21 provides for the renewal of licences. Clause 22 prohibits licences from being transferred from the person to whom they were granted. Clause 23 requires licence holders and applicants to notify the Registrar of any relevant change in circumstances. Clauses 24 to 27 deal with the cancellation and suspension of licences.

Explanatory note Immigration Advisers Licensing 7 Clause 28 provides for the voluntary surrender of licences. Clauses 29 and 30 require the Registrar to record cancellations, suspensions, surrenders, and expiries of licences on the register. Immigration Advisers Authority and Registrar of Immigration Advisers Clause 31 establishes the Immigration Advisers Authority as a body within the Department of Labour. The Authority consists of a Registrar of Immigration Advisers, who is employed within the Department of Labour, and such number of other employees as the chief executive appoints for the purpose. Clause 32 sets out the functions of the Authority, which are mainly: to establish and maintain a register of licensed immigration advisers: to administer the licensing regime: to develop and maintain competency standards and a code of conduct for immigration advisers: to facilitate the education and professional development of immigration advisers: to facilitate public awareness of matters relating to the provision of immigration advice: to investigate and take enforcement action in relation to offences under the Bill: to administer a complaints and disciplinary process. Clause 33 requires the Registrar, with appropriate consultation, to develop and maintain competency standards to be met by licensed immigration advisers. Standards may differ for persons holding or applying full licences, limited licences, or provisional licences. The standards must be approved by the Minister before they take effect. Clause 34 similarly requires the Registrar, with appropriate consultation, to develop and maintain a code of conduct to be observed by licensed immigration advisers. Clause 35 provides for the publication and availability of the code of conduct and competency standards. Clause 36 provides that the code of conduct and competency standards are deemed to be regulations for the purposes of the Regulations (Disallowance) Act 1989, but not the Acts and Regulations (Publication) Act 1989. This allows for oversight by the Regulations Review Committee and for disallowance. As the code of conduct

8 Immigration Advisers Licensing Explanatory note and competency standards are relevant primarily to licensed immigration advisers and license applicants only, publication in the statutory Regulations series is not seen as necessary. Complaints and disciplinary procedures Clauses 37 to 43 make provision for complaints against- licensed immigration advisers; and persons who, within 2 years before the date of the complaint, were licensed immigration advisers. Where satisfied that it is appropriate, the Registrar may refer a complaint to a complaints body set up by the Registrar under clause 37. Where a complaints body has completed its consideration of a complaint, it supplies a summary of the case and its conclusions to the Registrar, and a recommendation that the Registrar either dismiss the complaint or impose any 1 or more of the sanctions set out in clause 43. These sanctions include- caution or censure: a requirement to undertake specified training or otherwise remedy any deficiency within a specified period: suspension or cancellation of licence: payment of a penalty not exceeding $10,000: payment of relevant costs: a refund of fees or expenses paid by the complainant or another person to the immigration adviser: the payment of reasonable compensation to the complainant. The Registrar's decision in any case may be appealed to a District Court. Inspection Clauses 44 to 46 set out inspection powers in respect of the administration of the licensing regime and the investigation of offences. Clause 47 explicitly preserves the privilege against selfincrimination. Clause 48 prohibits entry to dwellinghouses, in the absence of the occupier' s consent or an entry warrant. Clause 49 provides for a Judge to issue an entry warrant in appropriate cases. Clause 50 places limitations on the persons who may be authorised by the Registrar to carry out inspections.

Explanatory note Immigration Advisers Licensing 9 Offences Clauses 51 to 64 deal with offences. The main offences are: providing immigration advice without being licensed or exempt: holding out to be an immigration adviser, unless licensed or exempt: holding out as licensed immigration adviser, when not licensed: provision of false or misleading information: asking for or receiving fee or reward for provision of immigration advice when neither licensed nor exempt: employing or contracting unlicensed or non-exempt person as immigration adviser: obstruction of inspection: failure to notify change in circumstances. Different penalties can be imposed depending on whether the offence was committed knowingly or not. Penalties range from maximum fines between $10,000 and $100,000 and maximum terms of imprisonment between 2 years and 7 years. For certain offences the Court may require payment of reparation to a victim (clause 59) or impose an additional penalty up to the amount of any commercial gain associated with the offence (clause 60). Clause 61 provides a person may be charged with an offence whether or not the offence or any part of it occurred within New Zealand. Clause 62 provides for certain presumptions as to whether or not a person is licensed or exempt from the requirement to be licensed. Clause 63 provides that for certain offences a person' s ignorance as to the existence of a licence or exemption does not constitute a defence of reasonable excuse. Clause 64 allows informations for a summary offence to be laid at any time up to 2 years after the matter of the offence became known or ought to have been known, rather than within the 6-month limit set out in section 14 of the Summary Proceedings Act 1957.

10 Immigration Advisers Licensing Explanatory note Part 2 Miscellaneous provisions Clause 65 provides that persons who are currently exercising powers of decision in relation to immigration matters, or who have exercised any such power in the previous 2 years, may not be employed or engaged to consider licence applications, or to act as a complaints body, or to carry out inspections under the Bill. Clauses 66 to 69 provide for the maintenance and inspection of the register of licensed immigration advisers. Clauses 70 to 74 provide a right of appeal to the District Court against various licensing decisions of the Registrar, with a further appeal on a point of law to the High Court. Clause 75 sets out the power of the Registrar to delegate his or her functions to employees of the Department. Clause 76 provides an evidential presumption as to matters certified by the Registrar. Clause 77 provides for the charging of fees for matters associated with licensing. Clause 78 allows for the waiver of fees payable on immigration applications or requests made by persons whose earlier applications or requests have not been accepted by reason of being put forward by an unlicensed immigration adviser. Clause 79 provides for information swapping between the Registrar and overseas or international agencies, bodies, or persons whose functions include the regulation of immigration advisers. Clause 80 provides for the service of notices under the Bill. Clause 8 1 is the regulation-making power. Amendments to other Acts Clause 82 repeals the offence contained in section 142( 1)(j) of the Immigration Act 1987, which is now overtaken by the offences and disciplinary procedures set out in the Bill. Clause 83 amends the Privacy Act 1993 to classify as a public register the register of licensed immigration advisers. Clause 84 amends the Summary Proceedings Act 1957 to include references to the offences under clauses 51(a), 52, 53, 55(a), and 56(a) of the Bill as being indictable offences that are triable summarily.

Explanatory note Immigration Advisers Licensing 11 Background Regulatory impact statement In the development of the Immigration Advisers Licensing Bill, 2 Regulatory Impact Statement-Business Cost Compliance statements (RIS-BCCS) were developed. The first RIS-BCCS was developed and submitted to Cabinet in May 2004 and considered the regulatory and non-regulatory options to enhance the ability of immigration applicants to make a well-informed choice of immigration adviser. Cabinet agreed to the licensing of immigration advisers. The second RIS-BCCS was developed and submitted to Cabinet in December 2004 and considered the licensing options for immigration advisers and a more detailed BCCS. This document provides a final overview RIS-BCCS and reflects all Cabinet decisions on regulating immigration advisers. The original 2 RIS-BCCSs are available on the Department of Labour website (www.dol.govt.nz). Statement of the nature and magnitude of the problem and the need for government action The provision of immigration advice is currently unregulated and there are few market incentives for advisers to provide good services. Immigration advisers advise, assist, or represent applicants or potential applicants regarding all types of immigration applications including residence, temporary entry, appeals, exemptions, and refugee status claims and appeals. They also advise third parties such as sponsors, employers, and education providers. An immigration adviser was used in around 9 000 (37 percent) residence applications and around 66 000 ( 17 percent) temporary entry applications in 2003/04. Around 40% of immigration "transactions" where an immigration adviser was involved were from immigration advisers based offshore. The level of advice provided to potential applicants who did not go on to make an immigration application or to third parties is unknown. The immigration advice industry is diverse, with advice being provided by a range of occupational groupings, including immigration consultants, lawyers, education recruitment advisers, and not-forprofit organisations, as well as personal contacts. The provision of immigration advice is currently unregulated and there are few market incentives for advisers to provide good services. There is limited self-regulation, with 2 main voluntary industry associations: the

12 Immigration Advisers Licensing Explanatory note New Zealand Association of Migration and Investment (NZAMI) and the New Zealand Immigration Institute (NZII). The number of active immigration advisers at any one time varies in response to immigration policy changes and other external factors. It is estimated that the number of people providing New Zealand immigration advice both on and offshore is around 1 000, based on the Department of Labour (DoL) statistics and an October 2004 survey of immigration advisers who had interacted with the DoL from May 2003 to May 2004. The October 2004 survey indicated that of the 409 active immigration advisers who responded, 20% belonged to NZAMI and 1 % belonged to NZII. No formal statistics are available on the number of complaints about immigration advisers, however, every year complaints are made to the Minister of Immigration, the DoL, and the industry associations about both onshore and offshore immigration advisers. The reasons for complaints have included: lodging unfounded or abusive refugees status claims without the knowledge of the client, 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, knowingly submitting false or fraudulent documents to the DoL, and failure to provide services for which the adviser has been paid. The cumulative harm caused is significant in many cases and irreversible in others. Some applicants have faced serious financial loss due to high fees, relocating to New Zealand (on the basis of poor advice), and lengthy periods of time without employment. Others have suffered irreparable damage to careers, family dislocation, and significant personal hardship. Where immigration applications (or refugee status claims) have been declined due to poor or incompetent advice, some people have had to leave New Zealand, be removed, or remain here illegally (and face removal in the future where possible). Immigration applicants often use an adviser' s services only once and often have insufficient information to make a well-informed choice of adviser. Immigration applicants are unlikely (and sometimes unable) to make use of New Zealand's consumer protection measures once harm has occurred as they may be offshore, in New Zealand unlawfully, and/or unaware of existing legal remedies. Although section 142(j) of the Immigration Act 1987 makes it an offence to wilfully mislead or act negligently or unprofessionally

Explanatory note Immigration Advisers Licensing 13 while assisting a person in a visa or permit application or appeal, this section has not been tested since its introduction in 1999 as its wording makes proof of an offence problematic. Statement of the public policy objective The policy objective is to ensure that regulating immigration advice Will- enhance the ability of immigration applicants to make a wellinformed choice of immigration adviser; and reduce the risk of serious harm to those who use an immigration adviser by creating effective incentives for advisers to provide competent and ethical services; and provide clear and accessible complaint and redress procedures for those who use an immigration adviser. The underlying principles behind these 3 objectives are consumer protection, and enhancing the reputation of New Zealand as a migration destination. Statement of feasible options (regulatory and/or non-regulatory) that may constitute viable means for achieving the desired objective Non-regulatory options Status quo (voluntary self-regulation) People providing advice relating to New Zealand immigration policy are subject to normal business legal requirements and the offence provisions under the Immigration Act 1987, the Crimes Act 1961, and other legislation, and are also subject to consumer protection measures, such as the Fair Trading Act 1986, the Consumer Guarantees Act 1993, and the Disputes Tribunal. Some immigration advisers are members of the NZAMI, the NZII, or voluntary associations of education advisers, and are subject to their organisation' s standards. Lawyers providing immigration advice are subject to their professional body' s disciplinary processes. The status quo was rejected in favour of the preferred option because its retention would not achieve the public policy objectives.

14 Immigration Advisers Licensing Explanatory note Enhanced voluntary regulation Key stakeholders (existing industry and professional bodies, unaffiliated advisers, not-for-profit organisations, and consumer representatives) would develop a governing body and a registration scheme for members. The governing body would be responsible for setting and administering entry standards, a code of conduct, and complaint and disciplinary procedures. The scheme would be voluntary and would not require legislation. This option was discarded for 2 reasons. Firstly, an effective governing body could not be established as the industry is diverse and lacks cohesion. Secondly, there was no support for this option from stakeholders as they considered it would make no improvement on the status quo. Regulatory options Certiflcation A new Act would be developed to provide for a certification scheme for immigration advisers. The Act would: reserve a title for the sole use of certified immigration advisers; empower an agency to certify that individuals had satisfied certain requirements before they could use the reserved title; and empower the agency to remove the reserved title if an immigration adviser fell below the acceptable standards. Certification would not be compulsory. Those who were not certified would be able to offer their services in competition with certified immigration advisers, but under a different title. Certification was discarded because it would not prevent the practices of those advisers of most concern. Stakeholders did not support this option, as they considered it would allow some advisers to continue to provide incompetent and unethical services, and would not address the problem. P referred option: licensing Under this option a new Act would be developed to provide for the licensing of immigration advisers. The legislative framework would have the following key features: a title reserved for the sole use of licensed immigration advisers: definitions of what immigration advice is, and what it is not, and therefore who is an immigration adviser:

Explanatory note Immigration Advisers Licensing 15 a requirement for all individual immigration advisers, including not-for-profit and offshore advisers, to be licensed, with some exemptions from the licensing regime for certain individuals who may choose to opt in (for example, MPs), and who may not opt in (for example, lawyers): offshore advisers based offshore are temporarily exempt from the licensing scheme (but may opt in), however, the exemption expires 3 years after enactment and, at that time, offshore advisers will need to be licensed: statutory fitness standards that prohibit certain individuals from obtaining a licence: a complaints body within the regulating body, and the right of appeal and review made to the District Court: a regulating body to maintain a register of immigration advisers; develop and maintain competency standards and a code of conduct; facilitate the education and development of immigration advisers; enhance public awareness of the regulating body and its functions; and enforce the legislation: sanctions and penalties for unlicensed immigration advisers, including allowing the Department of Labou' s Immigration Service to refuse to accept applications lodged by unlicensed immigration advisers; and both knowledge and strict liability offences: Government contributes to the costs of establishment, regulating not-for-profit advisers, investigating and prosecuting unlicensed advisers, and the departmental costs:. a period of 12 months from enactment to allow all immigration advisers to become licensed. Options for the regulating body Industry regulating body The regulating body would comprise representatives of the immigration advice industry. As outlined above, it would have responsibility for investigating complaints and disciplining licensed advisers regarding breaches of the code of conduct. Investigation and prosecution of unlicensed advisers would sit with Government. This option was not recommended on the basis that the immigration advice industry is too diverse and lacks the homogenous objectives required for an industry body to function as an effective regulatory body that could administer the statutory framework.

16 Immigration Advisers Licensing Explanatory note Preferred option: independent regulating body The regulating body will be independent from industry, and be established within the Department of Labour. It will maintain functional independence from the Immigration Service. It will have responsibility for investigating complaints about and disciplining licensed advisers, as well as investigating and prosecuting unlicensed advisers. Statement of the net benefit of the proposal, including the total regulatory costs (administrative, compliance, and economic costs) and benefits (including non-quantifiable benefits) of the proposal, and other feasible options Government There are likely to be costs associated with the establishment of the licensing regime and annual ongoing costs relating to the administration and enforcement of the licensing regime by the regulatory body and the department. Under the proposal, the Crown has agreed in principle to bear- establishment costs (such as setting up operating systems, employing staff): annual costs of regulating not-for-profit advisers, investigating and prosecuting unlicensed advisers, and departmental costs. The costs of licensing for-profit advisers will be met through fees charged to advisers. The Crown may consider an additional supplement to reduce the annual licence fee charged to advisers when the fiscal implications of this initiative are considered by Cabinet. However, improved consumer protection for those using the services of an immigration adviser will enhance New Zealand' s reputation as an attractive destination for both temporary and permanent migrants. By progressively extending the regime offshore, New Zealand' s international relations and reputation as a safe, reliable destination could also improve. The attraction of skilled migrants, skilled temporary workers, international students, and visitors to New Zealand is likely to contribute to growing an inclusive, innovative economy and improving New Zealand' s skills base. Government is also likely to make efficiency gains in its immigration operations due to fewer poor quality immigration applications and appeals being lodged by immigration advisers. Introducing clear

Explanatory note Immigration Advisers Licensing 17 new incentives for immigration advisers to provide acceptable standards of immigration advice, and disincentives to drop below these standards, may also result in reduced immigration fraud over time. Reduced immigration fraud (regarding health status, job offers, and criminal records among other things) may lead to savings in the health, welfare, and justice systems. Immigration applicants/consumers The cost to migrants and potential migrants of using the services of a for-profit immigration adviser could increase, as it is likely that advisers will pass on the increased costs associated with obtaining a licence and complying with the code of conduct. The cost of using a not-for-profit immigration adviser should not increase as their costs are to be met through Crown funding. However, minimum competency standards and a code of conduct will increase the likelihood that services are conducted in a competent and ethical manner, and thus reduce the risk of harm to consumers. Some consumers may remain vulnerable in the short term, as licensing will be initially optional for offshore advisers for the first 3 years following enactment. A public register of licensed immigration advisers will improve an immigration applicant' s ability to make a well-informed choice of immigration adviser. Consumers will also have a clear and accessible avenue for complaint and redress if necessary. The independence of the regulator from industry and its inclusion in the DoL will provide immigration applicants with confidence in the standards set and maintained for the industry, and in the administration of the complaints procedure. Immigration advisers The proposal is expected to result in increased costs to immigration advisers through licence application fees, and compliance costs associated with applying for and renewing licences, meeting minimum competency standards, and complying with a code of conduct (details yet to be decided). Application fees will be prescribed in regulations after the enactment of new legislation. An annual licence fee is expected to be in the order of $1,000-$2,000. Not-for-profit immigration advisers will not have to bear the full costs of licensing, but may incur some compliance costs, which are likely to be similar in time to those set out in the BCCS below, but not in dollar value.

18 Immigration Advisers Licensing Explanatory note In Australia and the United Kingdom, the costs of licensing have not adversely affected the immigration advice industry; rather the introduction of licensing regimes has been followed by an increase in the number of advisers. Given the similarity of New Zealand' s proposed licensing regime, it is expected that the effect will be the same in New Zealand. Some exemptions from the licensing regime are proposed. Certain exempt people may obtain a licence voluntarily, but others will be excluded from the licensing regime. Offshore advisers will bear the costs of the proposals after 3 years when offshore licensing will become compulsory. The proposals will also affect those who may not consider themselves to be immigration advisers but who nonetheless provide immigration advice in the course of their work (for example, recruitment advisers). It is likely that some will choose to discontinue providing immigration advice or some organisations may choose to nominate particular individuals to be licensed. The costs are considered to be offset for immigration advisers by the benefits of licensing. Requiring immigration advisers to meet minimum competency standards and comply with a code of conduct is likely to enhance the overall quality of advice provided by immigration advisers, both for-profit and not-for-profit. Together with removing unethical and incompetent advisers from the industry, this will enhance the credibility and reputation of the industry as a whole. The proposals will particularly benefit those advisers who already provide competent and ethical services and will obtain a practical and marketing advantage over those who do not. In the longer term, minimum competency standards will give rise to education and training opportunities for all licensed immigration advisers, which are likely to provide them with marketing advantages and to improve their relationships with the DoL. The requirement for the regulator to develop the competency standards and code of conduct in consultation with stakeholders will help the licensing regime to be developed in a way that supports the industry. New Zealand society New Zealand society as a whole could benefit from savings to the immigration, health, welfare, and justice systems due to reduced immigration fraud. Reduced fraud relating to health and character requirements (such as declarations of diseases and criminal offences) could increase the general safety and security of New

Explanatory note Immigration Advisers Licensing 19 Zealanders. Moreover, New Zealand as a whole benefits both economically and culturally when migrants, temporary workers, international students, and visitors are attracted to and settle well in New Zealand. Consultation undertaken 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, the New Zealand Police, and the Offices of the Community and Voluntary Sector and Ethnic Affairs, and the Police Commissioner were consulted in the development of these proposals. The Department of the Prime Minister and Cabinet was informed. The Ministry of Justice' s strong view that practising lawyers should be excluded from the licensing regime, rather than simply exempted, is reflected in the preferred option. The Office of Ethnic Affairs' concern about compliance costs on the not-for-profit sector has also been reflected in the preferred option. The not-for-profit sector' s inclusion in the proposed regulation will be supported by the proposed education and public awareness functions as the regulation is implemented. Stakeholders (including immigration advisers, community groups, lawyers, education agents, recruitment agents, and regional development agencies) were sent the discussion document Regulation of the Immigration Advice Industry in September 2003, and feedback was gathered via focus group meetings held throughout the country in October 2003 with 12 written submissions received. Participants supported the regulation of immigration advice via licensing by an independent regulator, but expressed concern that the costs should not be prohibitive. These concerns have been taken into account in the development of the detailed proposals. Further dialogues were held with stakeholders in Auckland, Christchurch, Hamilton, and Wellington in July 2004 to discuss the detail of the licensing framework. Cabinet decisions and proposals were made publicly available on the immigration website. Participants were also provided with the opportunity to provide written feedback and 11 submissions were received. (The low number of submissions is likely due to stakeholder perception that their views were already

20 Immigration Advisers Licensing Explanatory note adequately recorded, and anticipation of select committee consultation). There was general support for the proposals. The proposals have been discussed with the Office of the Immigration Services Commissioner in the United Kingdom. The Australian Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) has also been consulted in light of New Zealand's obligations under the Trans-Tasman Mutual Recognition Arrangement (TTMRA). DIMIA indicated support for the proposals and is confident that they will fit well with TTMRA requirements. The new regulator will need to consult further with Australia's Migration Agents Registration Authority when developing competency standards and the code of conduct to ensure TTMRA obligations are met. Business cost compliance statement Sources of compliance costs and estimates of those costs are as set out below. Costs are estimated on an hourly rate of $112. Compliance costs that will apply to immigration advisers directly as a result of the proposed primary legislation Learning new requirements stemming from primary legislation These costs (which include registration requirements such as form filling, and training of staff in the new system and its requirements) will affect all immigration advisers and are estimated at $56 (one-off cost based on 30 minutes taken). Spending time with an inspector as part of the licensing application process This is a potential cost to licensed individuals, but most licence applicants would not incur this cost because it is anticipated that application processing will be primarily paper-based and inspections discretionary. The cost is estimated at $205 (one-off cost based on 110 minutes taken). Establishing internal complaints procedures to comply with the "tiered complaints system and processing any complaints received This is a potential cost to licensed individuals. However, many are likely to have existing internal complaints procedures. Establishment costs are estimated at $784 (one-off cost based on 7 hours

Explanatory note Immigration Advisers Licensing 21 taken). The cost of processing a complaint is estimated at $448 (based on 4 hours taken). Spending time with an inspector as part of the complaints process This is a potential cost to individuals that are unlicensed but may provide immigration advice. This cost is estimated at $280 (one-off cost based on 180 minutes taken). Cooperating with the regulator in any investigation to establish whether, as an unlicensed adviser, they should be required to hold a licence This is a potential cost to individuals that are unlicensed but may provide immigration advice. This cost is estimated at $280 (one-off cost based on 150 minutes taken). Compliance costs resulting from secondary legislation to be developed by the regulator Compliance costs for businesses will also arise from the licensing application process, competency standards, and code of conduct that are to be developed by the regulator. These costs are unable to be quantified at this time because the operational processes, competency standards, and code of conduct will only be developed once the legislation is enacted and the regulator is established. Compliance costs will reduce over time as businesses become more familiar with the regulatory requirements and the application, complaints, and appeals processes. It is estimated that around 1 000 advisers are likely to be affected by the proposals, based on DoL statistics and an October 2004 DoL survey of immigration advisers (this number excludes lawyers who act as immigration advisers). Based on the October 2004 DoL survey of immigration advisers, the number of active for-profit immigration advisers can be determined by primary occupation and organisation size. This for-profit grouping includes offshore advisers as the proposed legislation will require them to hold a licence 3 years after coming into force, but does not include groups that are exempt. The analysis of the for-profit immigration advisers is as follows: of 53 sole traders, 46 were based in New Zealand and 7 offshore. The primary occupation was immigration consultant for 31 individuals (27 onshore, 4 offshore), education agent

22 Immigration Advisers Licensing Explanatory note for 7 individuals (5 onshore, 2 offshore), administration for 4 onshore individuals, and recruitment agent for 2 onshore individuals. The other occupational groups with 1 onshore individual were travel agent, accountant, and education provider. The "other" non-specified occupation included 5 onshore and 1 offshore individuals. of 164 organisations with 2-19 employees, 115 were based in New Zealand and 49 offshore. The primary occupation was immigration consultant for 92 (62 onshore, 30 offshore), education agent for 34 (26 onshore, 8 offshore), administration for 6 (4 onshore, 2 offshore), recruitment agent for 3 (2 onshore, 1 offshore), accountant for 10 (9 onshore, 1 offshore), education provider for 4 individuals (2 onshore, 2 offshore), travel agent for 3 individuals (1 onshore, 2 offshore). The "other" non-specified occupation included 9 onshore and 3 offshore. of 11 organisations with 20-49 employees, 2 were based in New Zealand and 9 offshore. The primary occupation was immigration consultant for 6 (1 onshore, 5 offshore), accountant for 2 offshore, 1 onshore for administration and 1 each offshore for travel agent and education provider. of 6 organisations with 50+ employees, 3 each were based onshore and offshore. The primary occupation was 1 onshore for immigration consultant and 1 offshore for administration, and 2 onshore and 2 offshore were in the "other" non specified occupation. Compliance costs will be minimised by widely publicising the regulatory requirements (and supporting processes) within the immigration advice industry, allowing a 12-month period for advisers to meet the requirements, and providing for consultation with stakeholders in the development of the competency standards and code of conduct. It is anticipated that the regulator will have a website and will develop resources for advisers over time, including standard forms and contracts. It is also anticipated that the regulator will reduce compliance costs for small businesses by describing procedures that would be deemed to meet the regulatory requirements. In particular, acceptable procedures for establishing internal complaints procedures and processing any complaints could be set out by the regulator.

Hon Paul Swain Immigration Advisers Licensing Bill Government Bill Contents 1 Title 2 Commencement 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 12 Persons prohibited from licensing 13 Persons subject to restriction on being licensed 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 a 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 25 Suspension of licence 26 Process for cancellation or suspension 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 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 Complaints and disciplinary procedures 37 Registrar to set up complaints body 38 Independence of complaints body 39 Complaints against immigration advisers 40 Procedure on receipt of complaint by Registrar 41 Registrar may refer matter to complaints body 42 Determination of complaint by complaints body 43 Disciplinary sanctions 270-1

el l Immigration Advisers Licensing 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 Inspection Purpose of inspection Inspection powers for administration of licensing regime Inspection powers for investigating offences Privilege against self-incrimination Entry of dwellinghouses Entry warrant Conditions of authorisation Offences Offence to provide immigration advice unless licensed or exempt Offence of holding out as immigration adviser unless licensed or exennpt Offence of holding out as licensed immigration adviser Offence to provide false or misleading information Offence of asking for or receiving fee or reward for immigration advice when neither licensed nor exempt Offence of employing or contracting unlicensed or non-exempt person as immigration adviser Offence to obstruct inspection Offence to fail to notify change in circumstances Reparation Additional penalty for offence involving commercial gain Offences also apply outside New Zealand Presumption as to non-exemption Defence of reasonable excuse 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 Authority 70 Right of appeal 71 District Court may make interim onjer 72 Duties of Registrar if interim order nnade 73 Determination of appeal 74 Appeal to High Court on question of law Miscellaneous matters 75 Power of Registrar to delegate 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 The Parliament of New Zealand enacts as follows: 1 Title This Act is the Immigration Advisers Licensing Act 2005. 2 Commencement Sections 1 to 5, 11(26 31 to 38, 75, 79, and 81 (which relate to the Authority, the Registrar, the development of competency 5 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