What must an Australian migration agent include in a service agreement?

The service agreement is the document that authorises a migration agent to act and defines what the client is buying. The Code of Conduct does not leave its contents to the agent's discretion: Division 2 prescribes when an agreement must be in force, what it must say, how it must be signed, how it may be changed, and what happens when the work is finished. Sections 42 to 45 are the operative provisions, quoted below.

1. Immigration assistance cannot be given without an agreement in force

“Subject to section 43, a migration agent must not give immigration assistance to a client unless: (a) a service agreement that: (i) covers the immigration assistance; and (ii) authorises the agent to act on the client’s behalf; and (iii) complies with the requirements of this Division; is in force; and (b) if the service agreement has been varied—that variation met the requirements of section 44.”

Three conditions attach to the agreement itself: it covers the assistance actually being given, it authorises the agent to act on the client's behalf, and it complies with the Division. Paragraph (b) adds a continuing condition — where the agreement has been varied, the variation must itself have met the requirements of section 44, which is dealt with below.

2. The agreement must be in writing and signed by both sides

“The service agreement must be: (a) in writing; and (b) signed by the client; and (c) signed by the migration agent or by another migration agent in the agent’s business.”

Two signatures are required: the client's and an agent's. Paragraph (c) allows the agent signature to be given by another migration agent in the same business rather than the individual who will do the work, and paragraph (a) requires the agreement itself to be in writing.

3. The required contents

“The service agreement must include the following: (a) the following details of each client to whom immigration assistance is to be given under the agreement: (i) name; (ii) date of birth; (iii) email address (if any); (iv) residential address; (b) the name, MARN and contact details of: (i) the migration agent who signs the agreement, as mentioned in paragraph (2)(c); and (ii) each migration agent who, at the time the agreement is signed, is expected to give immigration assistance under the agreement; (c) details of the work or services to be performed under the agreement; (d) a statement that a copy of the consumer guide has been given to the client (see section 38); (e) an explanation of what will happen to the client’s file: (i) if the service agreement is terminated by any party to the agreement; or (ii) on completion of the work or services covered by the agreement; (f) the matters required by Division 3 (about fees and disbursements).”

Two of those items are cross-references rather than independent content rules. Paragraph (d) depends on the separate duty in section 38 to give the consumer guide — the statement records that it has been given. Paragraph (f) imports the fee and disbursement requirements of Division 3, which sit outside section 42.

Item (b) is wider than the signatory. The agreement must name the agent who signs and every migration agent who, at the time of signing, is expected to give immigration assistance under the agreement, together with each agent's MARN and contact details.

4. More than one client, and who may be authorised

“A service agreement may be expressed to cover more than one client.”

“The authority mentioned in subparagraph (1)(a)(ii) may be expressed to cover: (a) a particular migration agent; or (b) a class of migration agents in the agent’s business; or (c) all migration agents in the agent’s business.”

The authority to act on the client's behalf — the requirement in subparagraph (1)(a)(ii) — may therefore be drafted around a named agent, a class of agents, or the whole business.

5. The initial-consultation exception (s 43)

Section 43 is an exception to the agreement requirement. It is not a statement of what an agreement must contain, and it does not relax any of the contents requirements in section 42.

“Despite section 42, a migration agent may give immigration assistance of a kind mentioned in paragraph 276(1)(b), (2)(b) or (2A)(b) of the Act (advice) at an initial consultation with a client or potential client without a service agreement that covers the immigration assistance being in force.”

The exception is confined to advice of the kind the provision describes, given at an initial consultation. A fee may still be charged for that consultation, but it must be reasonable:

“A migration agent must ensure that any fee charged for an initial consultation the migration agent conducts other than under a service agreement is reasonable.”

Where the exception is relied on, two duties nevertheless attach. The first is a MARN notification to the client or potential client:

“the migration agent must notify the client or potential client of the agent’s MARN; and”

The second is that section 49 (invoices and receipts) continues to apply to the consultation work as though it had been performed under a service agreement:

“section 49 (invoices and receipts) applies in relation to: (i) immigration assistance given as part of that initial consultation; or (ii) other work or services performed as part of that initial consultation; as if the immigration assistance were given, or the other work or services were performed, under a service agreement; and”

Amounts received for an initial consultation are also treated as if they were client money, and any refunds that become payable must be paid promptly:

“the migration agent must ensure that any such refunds are paid promptly and, in any case, no later than 14 days after they become payable.”

The exception is narrow in time as well as in scope. Only the first consultation on a particular immigration matter qualifies:

“only the first consultation between a migration agent and a client or a potential client in relation to a particular immigration matter is an initial consultation; and”

6. Variations require written notice and written agreement (s 44)

Because section 42(1)(b) makes a compliant variation a condition of giving assistance, the variation process in section 44 is part of the agreement's operating requirements:

“before a service agreement is varied, each client covered by the agreement must be given written notice of: (i) the proposed variation; and (ii) the reasons for the proposed variation; and (iii) the matters required by subsection 46(5), if relevant; and”

“a variation of a service agreement must not take effect unless: (i) each client covered by the agreement agrees in writing to the variation; or (ii) if the agreement provides that the agreement of each client is not required for the variation—at least one client covered by the agreement agrees in writing to the variation, and any other conditions specified in the agreement are satisfied.”

The notice comes first, and the variation takes effect only on written agreement. Where an agreement provides that not every client's agreement is needed, the provision still requires at least one client to agree in writing and any other conditions in the agreement to be satisfied.

7. The specified work must be completed (s 45)

“A responsible migration agent in relation to a service agreement must take all reasonable steps to ensure that the work or services specified in the agreement are completed.”

“This section ceases to apply if the agreement is terminated.”

The duty runs to the work or services specified in the agreement, and it ends on termination rather than on completion.

What this requires in practice

• A signed written agreement in force before immigration assistance begins, covering the assistance actually being given and authorising the agent to act.
• Client identity details — name, date of birth, email address if any, and residential address — captured for every client covered by the agreement.
• The name, MARN and contact details of both the signing agent and each agent expected to give assistance under the agreement.
• A statement about the consumer guide that reflects the position under section 38: the guide must have been given.
• An explanation of the client file's fate on both paths — termination by any party, and completion of the work.
• The Division 3 fee and disbursement terms, since section 42(3)(f) makes them agreement content.
• A variation procedure that gives written notice of the proposed change and its reasons, and records written client agreement before the change takes effect.
• A completion check at the end of the matter, given the duty in section 45(1) and the fact that only termination switches it off.
• For initial consultations conducted without an agreement, a MARN notification to the client and compliance with section 49 for any fee charged.

Practice takeaway. The agreement is a prescribed document, not a commercial preference. Section 42 fixes its form, its signatures and its contents; section 44 fixes how it can change; section 45 fixes what must happen to the work it describes. Section 43 removes the agreement requirement for one situation only — advice at a first consultation — and even then keeps the MARN notification and the invoice and receipt rules in place.