8.4 Service Agreements, Variations, Fees, and Ending Representation

8.4 Service Agreements, Variations, Fees, and Ending Representation

A service agreement turns preliminary advice into an accountable professional engagement. It defines the clients, authorised agents, work, price, and file outcome. It is also a key Capstone document because defects can affect multiple Code duties at once.

Formation and required content

Section 42 generally prohibits immigration assistance unless a compliant service agreement is in force. It must be in writing and signed by the client and an RMA in the business. It must state:

• each client’s name, date of birth, email if any, and residential address;
• the name, MARN, and contact details of the signing RMA and each RMA then expected to assist;
• the work or services covered and authority to act;
• that the consumer guide was given;
• what happens to the file on termination or completion; and
• the fee, disbursement, payment, interest, and refund matters required by Division 3.

Scope should be concrete. “All migration work” does not tell the client whether merits review, judicial review, sponsorship monitoring, translations, or responses to later notices are included.

Initial consultation exception

Section 43 permits advice at the first consultation about a particular immigration matter without a service agreement. Any fee must be reasonable, the agent must give the MARN, and invoicing, receipt, money, and refund protections continue to apply. A series of sessions on later days is not all one initial consultation. Continuing work requires the proper agreement.

Fees, disbursements, and variation

Section 46 requires fees to be fair and reasonable and expressed as an hourly rate or fixed fee, with GST or other tax. Hourly work needs a reasonable time estimate. Exceptional circumstances and written updated estimates govern charging beyond an estimate or changing a fee. Section 47 requires disclosure and client agreement for likely disbursements and regulates later or increased disbursements. The client cannot be charged more than the actual amount when known.

Under section 44, proposed variations and reasons must be notified in writing before the variation, and the required client agreement must be in writing before it takes effect. A unilateral website update or invoice cannot rewrite the signed agreement.

Performance and termination

Section 45 requires the responsible agent to take all reasonable steps to complete agreed work until the agreement ends. Termination is governed by section 57, not by the Code provisions concerning misleading documents or variations.

Ordinarily, the client receives written notice before termination takes effect. If the client terminates unilaterally or exceptional circumstances justify immediate termination, the prescribed notice must follow no later than 14 days afterward. It must give the termination date, explain document-return rights, account for client money, and—if a matter is pending—state its status and how further assistance can be obtained. The Department or review authority must be notified in writing within 14 days when a matter remains pending before it.

Termination does not erase urgent duties. The agent should protect imminent deadlines, make an accurate final account, refund money when payable, return documents on written request, and maintain the client file.

Scenario

A client misses an instalment two days before an ART deadline. The agreement may permit termination for non-payment, but the agent should review its terms, communicate the default, give the section 57 notice, explain the live deadline and file status, deal with client money, and notify the ART within the required period. Simply disabling portal access and sending an invoice would expose the client to harm and fail the Code’s termination framework.

Agreement quality test

Audit an agreement by asking whether a new client and a replacement RMA could determine the exact work, responsible practitioner, price, disbursements, payment dates, refund method, file destination, and excluded services without oral explanation. Check every client and expected RMA is identified and that consumer-guide delivery is recorded. Compare the signed agreement with the current fee schedule and actual invoices; hidden changes often reveal an invalid variation. For a proposed change, preserve the original, issue the section 44 notice with reasons, obtain the required written agreement, and date the effective version. Maintain a termination template that prompts for the effective date, pending-matter status, live deadlines, client-money account, document-return rights, successor details or sources of further assistance, and the Department or review-authority notice. A closure checklist should prevent billing or relationship disputes from obscuring a filing deadline. This quality test makes the contract usable as an operational control rather than a signature form stored and forgotten.