8.2 Code of Conduct: Core Duties, Client Identity, and Confidentiality

8.2 Code of Conduct: Core Duties, Client Identity, and Confidentiality

The Migration (Migration Agents Code of Conduct) Regulations 2021, as currently compiled, protect clients and the integrity of the immigration system. The Code is cumulative: an act can breach several duties at once, and compliance with a client’s instruction does not excuse misleading conduct or a breach of law.

General and system-facing duties

Sections 13 to 16 require professional, ethical, honest, and respectful conduct and prohibit false or misleading statements and threats to breach the Code. Sections 17 to 21 require compliance with migration law, prohibit conduct that undermines the system, forbid futile assistance, and regulate false or misleading material provided to government officials. If an agent learns that material supplied through the agent is false or misleading, section 21 requires the agent to deal with correction in the manner the Code prescribes rather than ignore it.

Section 19 does not justify pessimism or automatic refusal of every difficult case. Assistance is futile when it has no reasonable prospect of achieving its purpose under the applicable law and facts. A weak but legally available argument may be provided if prospects, costs, and risks are honestly explained.

Duties to the client

Section 33 requires the agent to act in the client’s legitimate interests, follow lawful instructions, comply with the service agreement, respond on time, and understand legal deadlines and their consequences. “Client interests” do not authorise concealment, fabrication, or misleading advocacy.

Before assistance begins, build an identity and authority record:

• section 36: take reasonable steps to verify and be reasonably satisfied of the client’s identity; verify representatives or intermediaries and their written authority; and verify a relevant sponsor, nominator, or endorser and any intermediary acting for them;
• section 37: arrange access to an appropriately qualified interpreter if the client requests one;
• section 38: give the client the current OMARA consumer guide before giving immigration assistance.

The limited initial-consultation rules must be read carefully. They do not authorise ongoing advice without the required service framework.

Confidentiality

Section 35 applies to clients and former clients. The agent must not disclose their personal information or affairs to a third person without written consent, except where Commonwealth, State, or Territory law requires disclosure. Convenience, family involvement, sponsor pressure, or the fact that someone paid the bill is not itself consent.

Good practice records the purpose, recipient, scope, and duration of consent. Where joint clients’ interests diverge, an agent should stop and assess conflict and confidentiality duties before sharing one person’s information with another. A subpoena, statutory production obligation, or other legal requirement should be verified and answered only to its lawful scope.

Keeping the client informed

Section 39 requires written advice when an application, submission, or representation is lodged, a copy for the client, and prompt notice of material developments. Section 40 prohibits unnecessary expense or delay. Section 41 deals with false or misleading documents given to clients. Together, these provisions support a file containing advice, instructions, lodgement evidence, correspondence, and contemporaneous notes.

Scenario

Priya’s employer paid the agent and asks for her health report and partner’s police record. Payment does not make the employer the owner of Priya’s confidential information. The agent should identify the clients under the service agreement, review written disclosure authorities, explain any sponsor-facing information that must be provided, and obtain appropriately specific consent unless law requires disclosure. If the employer and Priya have conflicting interests, section 34 must also be assessed.

Communication and disclosure protocol

At file opening, record the approved communication channels, authorised recipients, interpreter arrangements, accessibility adjustments, and the client’s specific disclosure consents. Consent should state what information may be shared, with whom, for what purpose, and whether it can be withdrawn; a general privacy clause should not be treated as permission for every future disclosure. Before sending sensitive information, verify the address, use secure delivery, and apply the minimum-necessary principle. If a family member, employer, or referrer asks for an update, first confirm whether that person is a client or authorised recipient and whether a conflict has emerged. Keep a disclosure log for unusual releases, legal demands, and corrections. During file review, sample correspondence for timely replies, clear deadline advice, respectful language, and proof that material developments reached the client. This protocol demonstrates the interaction of sections 33, 35, 36, 37, 38, and 39 rather than treating confidentiality as an isolated rule.