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NEW LICENCE FOR ADVISERS By Lawrence JohnstonMEASURES aimed at curbing rogue advisers have come a step nearer with the second reading of the Immigration Advisers Licensing Bill. During the debate, Immigration Minister David Cunliffe said most immigration advisers provided quality services that helped skilled people to emigrate to New Zealand. But like many MPs, he had heard of migrants being "ripped off, misled and taken for a ride, by liars, crooks and thieves calling themselves immigration advisers". These "dishonest, so-called advisers" threatened and undermined the integrity of New Zealand's immigration programme. They needed to be weeded out. The passing of the Bill meant that anyone providing immigration advice, both onshore and offshore, would have to hold a licence. Those who did not, with some exceptions, would be prosecuted, he said. Independence One of the main amendments to the Bill was the establishment of an Immigration Advisers Complaints and Disciplinary Tribunal, independent of the Authority and administratively supported by the Ministry of Justice. The tribunal would consider all complaints about immigration advisers filed with it by the registrar, and have disciplinary powers to impose sanctions on immigration advisers. Implementation The Bill's implementation timeframe had been reduced from five years to three years. All offshore advisers must now be licensed after three years, one year after their onshore counterparts. Offshore education advisers Some submitters to the Bill were against exemption for offshore education advisers. They thought students deserved the same protection offered by this Bill as other migrants. The competitiveness of the international education sector, meant that the exemption would remain in place for the time being. The Bill provided a process to remove the exemption for offshore education advisers should the need arise. Public sector exemptions Exemptions for MPs and their staff, public sector staff and foreign diplomats were now included in the Bill. But the Select Committee, which proposed changes to the Bill, limited the exemption of public sector staff to only those who provided immigration advice as part of their job. Practising lawyers Practising lawyers remained exempt under the Bill. Mr Cunliffe noted that the Lawyers and Conveyancers Act 2006 had an enhanced complaints and disciplinary process for lawyers. Also, the New Zealand Law Society had indicated it would cooperate when developing practice rules for standards of professional conduct and client care, and ongoing legal education for practising lawyers who provided immigration advice. The Bill also required the Justice Minister to consult with the Immigration Minister when considering the practice rules submitted by the New Zealand Law Society for approval. Should these particular arrangements fail to work well, the Select Committee was in favour of the exemption for practising lawyers being reconsidered. Not-for-profit sector It would not be in the consumer's interest for not-for-profit organisations to stop providing information to migrants because of licence costs. Therefore, an exemption was proposed for individuals employed by or working as volunteers for the Citizens Advice Bureaux or Community Law Centres. These bodies had safeguards to ensure the ethical conduct of individuals working for them. Individuals employed by or working as volunteers for any not-for-profit organisation would not be charged a licence fee. Enhanced process Further exemptions might be made by Order in Council and the process for recommending an exemption that way had been clarified. Mr Cunliffe believed that any further exemptions would follow a robust decision-making process. Prohibition The list of classes of people prohibited from being licensed had been clarified so that a prohibition on licensing would be linked to the term of disqualification under the companies' legislation. The select committee recommended that individuals who had 'exercised power of decision' on immigration matters, such as former immigration officers, and former Ministers or Associate Ministers of Immigration, would be prohibited from giving immigration advice for 12 months after they left that role. This would prevent former office holders trading on reputation and the perception of "insider knowledge". The Bill had also been clarified to allow the Registrar to take into account a person's disciplinary record in other occupations or professions, for example a lawyer who had been disciplined under the Law Practitioners Act 1982. Cancellation of licence The Bill now clarified the process for cancellation and suspension of licences. The decision to suspend a licence during an investigation was now made independently by the Tribunal rather than the Registrar. This was a serious sanction, so it was vital that an independent body made that decision. Complaints Changes had been made to the complaints and disciplinary processes. The complainant must now specify one or more grounds that formed the basis of the complaint. The Registrar's decision to dismiss a complaint because of its trivial nature or because none of the grounds of complaint were disclosed, could be appealed against. On sanctions, the Bill clarified which payments had to be made to the Crown and which had to be made to the complainant or to someone else. Inspection powers The Bill clarified that inspection powers could be used when investigating complaints and could be used on former immigration advisers. Also, when an entry warrant was required as part of an inspection, the application for a warrant would have to be in writing. A knowledge offence There were changes to the way offences were presented under the Bill to ensure proper enforcement. Offences had been redrafted so that where the Registrar had given someone a relevant fact, such as that they needed to have been licensed, within the preceding 12 months, the alleged offender would be deemed to know that fact. Changes had also been made to clarify the nature of the offences and on the right of appeal. An example was the defence of 'reasonable excuse'. A person had a reasonable excuse - and did not commit an offence - if they did not know they were performing the act that had constituted the offence, and had taken all reasonable care to ensure they did not perform such an act. The right of appeal should be exercisable only by the person who was subject to a sanction. Following an alleged offender being told of the decision, an appeal would have to be in writing within 20 working days, Mr Cunliffe said. |
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