The matter has grown. There is a request for further information nobody anticipated, a second applicant, a police check from a country that charges more than you estimated. You send the client an email explaining the extra cost, they reply "no problem", and you invoice.
Depending on which of those things happened, that email was either compliant, insufficient, or irrelevant — because the Code of Conduct does not have one process for extra cost. It has three, they sit in different sections, and they are not interchangeable.
Three different changes
Before drafting anything, identify which one you are in:
- The work changed. You are doing something the agreement does not describe. That is a variation, and section 44 governs it.
- The work is the same but will take longer than estimated. The agreement stands; section 46(4) governs whether you may charge past the estimate.
- A cost payable to someone else has appeared or grown. That is a disbursement, and section 47 governs it.
Practices get into trouble by running the third process for the first situation — a note about extra costs, when what was needed was a varied agreement.
Varying the agreement
Section 42(1)(b) makes this consequential in a way that is easy to miss. An agent must not give immigration assistance unless a compliant service agreement is in force and, if it has been varied, that variation met the requirements of section 44. A defective variation does not just make the extra fee unrecoverable. It puts the assistance itself outside a compliant agreement.
Section 44 sets two requirements, and the order matters.
Before the agreement is varied, each client covered by it must be given written notice of the proposed variation and the reasons for it — plus, where relevant, the matters required by section 46(5).
Then the variation does not take effect unless each client covered agrees in writing. There is one relaxation: where the agreement itself provides that every client's agreement is not required, at least one client covered must agree in writing and any other conditions in the agreement must be met. That relaxation only exists if you put it in the original agreement.
Two habits fall foul of this. Notifying a change and proceeding unless the client objects is not agreement. And notifying the primary applicant on a family matter, where the agreement covers four clients and says nothing about who may agree, does not vary anything.
Note also that a variation is the correct instrument for a change of personnel. OMARA's guidance says that where an RMA not listed in the agreement needs to give immigration assistance, the agreement should be amended under section 44 — and, separately, that where the individual who signed on behalf of a corporate client leaves, a variation may be needed but a fresh agreement is not.
Going past the estimate
If your agreement specifies an hourly rate, section 46(2)(b) requires it to include a reasonable estimate of the time the work will take. Section 46(4) then requires the agreement to provide that clients will not be charged for time beyond that estimate — unless four conditions are all met:
- exceptional circumstances arise after the agreement is signed; and
- those circumstances make it impracticable to perform the work at the hourly rate within the estimated time; and
- each client is given, in writing, an updated reasonable estimate; and
- each client agrees in writing for the work to continue (or the single-client relaxation applies, if the agreement provides for it).
Section 46(5) applies the same exceptional-circumstances gate to changing the rate itself, or a fixed fee.
"Exceptional circumstances" is doing real work in both provisions. Circumstances that existed when you signed are excluded by the wording — they arise after. And a matter turning out to be more involved than you priced is ordinary commercial misjudgement, not an exceptional circumstance. The Code's answer to under-estimating is that you wear it.
There is a related trap in the shape of the fee. Section 46(2)(a) allows exactly two forms: an hourly rate, or a fixed total amount. A fee expressed as neither — a per-stage schedule that is not a fixed total, or a range — is not one of the permitted shapes. Our guides to fee disclosure and client agreements and what migration agents charge cover how to express fees compliantly at the outset.
Disbursements you did not foresee
Section 47 has its own machinery, and one requirement in it is breached by most practices as a matter of routine.
The agreement must include details of the likely disbursements the client will be required to pay, and for each one either the amount or a reasonable estimate, including GST or other tax, and whether it is to be paid directly by the client or on their behalf.
Costs the client pays directly still have to be itemised
OMARA's guidance addresses this head on. Practices asked whether disbursements the client pays directly — medicals, police checks — needed to be itemised alongside the visa application charge, noting they would ordinarily just mention there would be extra costs the applicant must pay without identifying or estimating them.
The guidance is unambiguous: where an RMA is aware the client will be required to pay for medical or police checks and fails to include the disbursement and its amount or a reasonable estimate in the service agreement, the RMA will be in breach of section 47.
"There will be additional third-party costs" is a breach in a sentence.
Adding one, or exceeding one
Where a disbursement was not reasonably likely when the agreement was signed, section 47(3)(b) permits charging it only if each client is given written details including the amount or a reasonable estimate, and each client agrees in writing.
Where a disbursement was in the agreement but comes in higher, section 47(4) requires written notice of the actual amount and the reason it exceeds the estimate, and written agreement to the increase. The reason is a required element, not a courtesy.
You may never charge more than it cost
Section 47(6) applies despite anything in the agreement: a client must not be charged more than the actual amount of the disbursement where it is known, or a reasonable estimate where it is not. Section 47(7) then requires you to refund any excess — including where the excess arises because of a refund you received — in accordance with section 52, which means promptly and no later than 14 days after it becomes payable.
A margin on a disbursement is not a pricing choice. It is a prohibited charge.
Sequence, and why the order is the point
Every mechanism above puts the client's written agreement before the work or the charge. Then section 49 adds the final constraint: you must not charge a client for work or a disbursement unless they are given an itemised invoice containing details of what it relates to, and you must give a receipt once they pay.
So the compliant sequence is: identify the change, notify in writing with reasons, obtain written agreement, do the work, invoice itemised, receipt on payment. The common sequence — do the work, explain, invoice — inverts the two steps the Code cares most about.
The variation test
Take your last three matters that grew:
- Was the client's written agreement obtained before the extra work began?
- Did the notice state the reasons, not just the amount?
- If you charged past a time estimate, can you name the exceptional circumstance that arose after signing?
- Did every client covered by the agreement agree, or only the one you deal with?
- Were directly paid disbursements itemised with amounts in the original agreement?
- Did any disbursement get charged at more than it cost?
- Was there an itemised invoice before each charge?
Where a system helps
Scope creep is not usually a decision. It is a series of small accommodations, each reasonable, none of which generated a document.
What helps is making the variation a real object rather than an email: a versioned agreement, a written notice generated from the change itself, a client signature captured against it, and an invoice that cannot be raised for work no agreement covers.
LodgeHQ keeps agreements, variations, estimates and invoices on the same matter so the chain is visible. Start a free trial and see whether your last variation would survive being read back to you.
Verify before you rely on it
The fee and disbursement provisions were substantially rewritten in the current Code, and precedent agreements drafted before 1 March 2022 will not satisfy them. Read the current text: the prescribed Code and the Regulations on the Federal Register.
This is general information for migration practices, not legal advice. Have your standard agreement reviewed against the current sections rather than adapted from an older precedent.