Writing a service agreement that satisfies section 42

A service agreement is one of the first documents a client sees after the consumer guide. If it is vague, out of order or missing required points, it creates problems about fees, scope and complaints later. Section 42 of the Migration Agents Code of Conduct 2021 sets the minimum content for a written agreement, and related sections affect when money can be taken, how fees are described and what happens if the client asks for documents back.

Start with the documents and sequence the Code expects#

Before a registered migration agent gives immigration assistance, the client must be given the consumer guide under s38 of the Code. The written agreement then sits after that step. Money must not be taken before the agreement is in place, under s51.

For a practitioner drafting the paperwork, the safest approach is to use one clear sequence every time. A practical order is: scope, fee basis, disbursements, exclusions, termination, then complaints. That order matches the issues clients usually care about and helps show that the agreement is transparent.

Section 42 is about what the written agreement must cover. Sections 46, 49, 50, 51, 54 and 56 then shape how the agreement works in practice. If the practice also uses a standard intake form, authority form or portal terms, those documents need to match the service agreement so there is no conflict about what work is included and what costs are payable.

If the practice is using staff, outsourced drafting support or a corporate trading name, identify the registered migration agent clearly. Advertising and public-facing materials must show the MARN as required by s25. If another person in the business is not a registered migration agent or Australian legal practitioner, care is needed because giving immigration assistance while unregistered can raise issues under s280 of the Migration Act 1958, and charging for that assistance can raise issues under s281.

Scope comes first, and it needs concrete boundaries#

The first operative section should say exactly what work is included. This is the core promise of the agreement. If the scope is loose, every later dispute becomes harder to resolve.

Describe the service by task, not by aspiration. For example, the agreement can list steps such as initial document review, preparation and lodgement of an application, correspondence with the Department, and one response to a standard request for further information if that is included. It can also identify the matter by application type, stage and decision-maker.

It helps to state the start point and finish point. The agreement can say the service begins when the signed agreement is received and any agreed upfront amount has cleared, and ends on lodgement, on a specified post-lodgement milestone, or on finalisation of that stage. If post-lodgement monitoring is included only for a set period, say so.

A good scope clause also states client responsibilities. The client can be required to provide complete and truthful information, provide documents by stated deadlines, review drafts promptly and tell the practice about changes in address, relationship status or family composition. This is not case advice. It is a process statement that helps the file run properly and reduces later arguments about delay.

Avoid broad statements like "all work necessary for your visa". Those phrases are hard to price and easy to dispute. A narrower description is better, with any additional work handled under a variation clause or a fresh agreement.

Where the client appoints the practitioner to deal with the Department, the agreement can refer to the authority process under s312A of the Migration Act and Form 956. The agreement does not replace the statutory form. It only explains that separate appointment paperwork may be needed.

Set out the fee basis in a way a client can compare#

After scope, explain how professional fees are calculated. Section 46 of the Code requires the fee structure to be set out clearly. A client must be able to see whether the fee is fixed, staged, hourly, capped, or a combination.

If the fee is fixed, state what stage the fixed fee covers and what triggers the next stage. If the fee is hourly, state the hourly rate, who is billed at that rate, the billing unit and whether there is an estimate or cap. If the practice uses stages, list each stage in order, with the amount or the method of calculation for each stage.

For published guidance, professional fees can be described in broad market ranges. In a live agreement, the actual fee and payment terms need to be specific. The agreement can also explain when invoices are issued, when payment is due and whether work pauses if an invoice is overdue.

Keep Department charges separate from professional fees. Do not roll them into a single figure described as "government and professional costs". Department charges change and are better identified as separate third-party charges payable at the time of lodgement or when requested. A comparison tool such as our cost estimator can help clients understand categories of expense, but the agreement itself should distinguish the practice's fees from other charges.

If money is received, sections 49 and 50 matter as well. The agreement should say when an invoice and receipt will be provided, and whether money is to be held in a client account before being billed. Terms about refunds also need to match the fee model. For example, a staged fixed fee usually works better with refund language linked to completed stages than with a broad "non-refundable" label.

Do not include any statement that implies a result is being sold. Section 26 prohibits guarantees or misleading statements about outcomes. Fee clauses should price the work, not the grant.

Deal with disbursements as a separate category#

Disbursements should have their own heading. Clients often confuse disbursements with professional fees, and disputes start when third-party costs appear late in the matter.

List the usual categories relevant to migration work. These may include translation, interpreting, medical examinations, police certificates, expert reports, courier charges, tribunal or court filing fees where relevant, and document procurement charges. Department charges should also be listed as separate third-party charges, without stating indexed amounts in a general guide article.

Then explain how disbursements are approved and paid. A simple model is to say that small routine disbursements may be billed as incurred, while significant external costs require prior written approval. Another common model is that the client pays major third-party providers directly.

State whether the practice adds any administrative loading to disbursements. If there is no loading, say so. If there is a handling charge for certain items, it should be stated clearly and not hidden inside office overheads.

This section is also the right place to explain that false or altered documents cannot be used. If a client provides false documents or information, that can raise serious issues under ss234 and 245AR of the Migration Act and may engage Public Interest Criterion 4020. The agreement does not need to give advice about those consequences, but it can make the practice's position clear: documents believed to be false will not be lodged or relied on.

Write the exclusions so scope creep is controlled early#

A strong exclusions clause protects both sides. It tells the client what the quoted service does not include, and it gives the practice a clean way to price extra work later.

Common exclusions include merits review applications, judicial review, ministerial intervention requests, character issues, responses to allegations of bogus documents or false information, Schedule 3 arguments, complex health waivers, sponsorship monitoring issues, and extensive requests for further information beyond an agreed number. Another common exclusion is work arising from facts not disclosed at intake.

Exclusions should be tailored to the matter type and the pricing model. If a service is advertised as "application preparation and lodgement only", the agreement should say that interviews, site visits, post-lodgement strategy work and appeal work are not included unless later agreed in writing.

It also helps to explain how excluded work can be added. The agreement can say that extra work will only be done after a written variation or a new agreement sets out the additional scope and fee basis. That keeps the service aligned with s42 and the fee structure aligned with s46.

For firms receiving work through marketplaces or comparison platforms, consistency matters. The quote, the acceptance message and the service agreement should describe the same included work. If a client wants to verify who is authorised to provide migration assistance, a reference to our operator checker is useful outside the agreement and in onboarding material.

Termination terms should say who can end the agreement and what happens next#

Termination clauses are often left until the end of drafting, but they do a lot of practical work. They set out when the practitioner may cease acting, when the client may terminate, what fees are payable for work already done and how documents are returned.

State the grounds for practitioner termination in neutral, process-based language. Examples include non-payment, failure to provide instructions, loss of confidence based on incomplete or inaccurate information, abusive conduct, conflict issues, or an ethical inability to continue. The clause can also reserve the right to terminate if continuing would risk a breach of law or the Code.

Then cover the financial consequences. If the fee is hourly, unpaid time to the date of termination can be invoiced. If the fee is staged, the agreement can state which completed stages are payable and how partly completed work is assessed. This needs to be consistent with any upfront amount held in client account and the practice's invoicing process under ss49 and 50.

Document return is important. Section 54 requires documents to be returned within 14 days if the client asks for them, subject to lawful exceptions. A termination clause should reflect that obligation and explain the practical method, such as secure electronic return, collection from the office or courier at the client's cost.

Retention and file closure can also be mentioned briefly. Section 56 requires records to be retained for seven years. The agreement can say that the practice may keep a copy of the file for compliance purposes after termination or completion.

End with a clear complaints section, not a defensive one#

The final section should tell the client how to complain, first to the practice and then externally. This is required content under s42, and it is often the part clients look for if the relationship breaks down.

Set out the internal process first. Name the person or role that receives complaints, the email or postal address, the information the client should provide and the target timeframe for acknowledgment and response. Keep the language calm and practical.

Then give the external pathway. A complaint about a registered migration agent can be made to the Office of the Migration Agents Registration Authority. If the practice is an incorporated legal practice or an Australian legal practitioner, there may also be a state or territory legal services complaints body. The agreement should identify the relevant channel accurately for the practice type.

It also helps to keep the complaints wording aligned with onboarding materials such as the consumer guide and any practice policy page. If a public explanation of complaint pathways is available, a general reference to our complaints information can support consistency outside the contract itself.

Common questions#

What has to be in a migration agent service agreement under section 42?#

At minimum, the agreement needs to set out the services to be provided, the fees and other charges, and the client's right to make a complaint. In practice, it works best when it also states exclusions, termination rights and the process for document return, because those points connect with ss46, 49, 50, 54 and 56 of the Code.

Can a migration agent take payment before the agreement is signed?#

Section 51 says money must not be taken before the written agreement is in place. The consumer guide must also be given first under s38, so the onboarding sequence matters.

Do disbursements need to be listed separately from professional fees?#

Yes, that is the clearest way to meet the Code's transparency requirements. Third-party costs such as translations, medicals and police certificates should be separated from the practitioner's own fees, with the approval and payment method explained.

What should a termination clause say in a migration matter?#

It should say who can end the agreement, on what grounds, and what happens to unpaid fees, documents and file records after termination. It should also reflect the 14-day document return rule in s54 and the seven-year retention rule in s56.

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About this guide. This is general information about how a process works in Australia. It is not immigration assistance and it is not advice about your situation. Under section 280 of the Migration Act 1958 only a registered migration agent or an Australian legal practitioner can give you that. Government charges are indexed and most change on 1 July, so check any figure at immi.homeaffairs.gov.au, and check any agent on the OMARA register.