Australian Greens Senators' dissenting report

The Australian Greens thank everyone who made a public submission to this inquiry.
The Migration Amendment (Regulation of Migration Agents) Bill 2019 (the regulation bill) seeks to deregulate the migration advice industry in Australia by removing lawyers who hold unrestricted practicing certificates from regulation by the Migration Agents Registration Authority (MARA).
The Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019 (the rates of charge bill) will implement the changes to registration application charges that will result from enactment of the regulation bill.
These bills, read together, are underpinned by the argument that lawyers, regardless of their professional or educational background, do not need to be regulated alongside specialist migration agents, because their skills and client protections are comparable.
The Australian Greens believe this argument is a fundamentally flawed one.
Whereas postgraduate studies to become a migration agent include four migration law subjects, most undergraduate law degrees do not include any study of migration law. Therefore a registered migration agent who has successfully completed a postgraduate migration agent course is demonstrably better equipped to advise on migration law than any lawyer is, no matter how skilled they are, if they have not studied any specific migration law subjects.
Registration of lawyers by the Office of the Migration Agents Registration Authority (OMARA) ensures lawyers comply with the Migration Agents Registration Authority Code of Conduct, which requires migration practitioners maintain relevant, specialist, and up to date knowledge of migration law and processes.
This current system includes robust complaints mechanisms and codes of conduct, which, when complaints are lodged, set off thorough investigations. These processes are customer focused, to ensure the rights and needs of customers are paramount and protected. This is a particularly valuable safety net for vulnerable customers.
How these bills will affect customers who are vulnerable people is the primary concern of the Australian Greens.
This concern is shared by the Migration Institute of Australia, who submitted:
Those who oppose dual regulation claim that the legal profession has sufficient complaint and disciplinary mechanisms to deal with professional incompetence or malfeasance. However, some law societies do not appear to have the same regard for migrant consumer protection as the OMARA. Lawyers have been allowed to continue practicing by their law societies without conditions attached to their practice, even after being barred by the OMARA for gross misconduct and breaches of fiduciary duties.1
As argued by Ms Angela Chan, a Fellow and former President of the Migration Institute of Australia, under these bills vulnerable customers who have been provided poor migration advice by lawyers also won’t necessarily be provided suitable remedy by relevant legal services regulators. Ms Chan submitted:
A client who has been ill advised and incurred substantial losses, whether it be financial or psychological, will receive no satisfaction or benefit that relevant law societies can audit a lawyer’s trust account as in many cases, monetary compensation is not the issue.2
These bills will also impact on the availability and accessibility of migration advice to vulnerable people. In a previous submission to an earlier inquiry into the 2017 versions of these bills, which lapsed at the end of the previous Parliament, the Migration Institute of Australia also submitted:
The removal of lawyers from the regulatory system will result in disastrous, unintended consequences for [the humanitarian migration] sector. It is crucially important that it be protected for both consumers and the large numbers of altruistic lawyers working in this sector. If removed from the OMARA regulatory system these lawyers: will be barred from registering as migration agents and then be unable to provide migration advice and assistance within these non-legal practices, and will need to leave these organisations to seek employment in legal practices if they wish to practice as lawyers.3
This will have dire and wicked knock-on effects for service providers – many of them publicly funded – for early career lawyers wanting to specialise in migration, but no longer able to provide advice under the OMARA regulatory system as registered migration agents in non-legal migration practices, and, most importantly, for consumers.
Lawyers currently make up 33.3 per cent of all registered migration agents. What these bills will effectively do is carve out one-third of all practicing migration agents from the codes of conduct and complaint and disciplinary mechanisms that MARA provide and uphold. This will leave customers, particularly vulnerable customers, poorly protected.
The Australian Greens therefore do not believe these reforms are in the best interests of consumers.

Recommendation 

The Australian Greens recommend that the Senate does not pass these bills.
If these bills are to be passed by the Senate, the Australian Greens believe there needs to be at least some level of accountability in this deregulation of lawyers working as migration agents. In its report entitled Annual Review of Regulatory Burdens on Business: Business and Consumer Services, the Productivity Commission recommended that if dual regulation of lawyers who provide professional migration advice should cease:
An independent review of the performance of these immigration lawyers and the legal professional complaints handling and disciplinary procedures, with respect to their activities, should be conducted three years after an exemption becomes effective.4

Recommendation 

That if the Migration Amendment (Regulation of Migration Agents) Bill 2019 is to be passed, the Senate amends it to include an independent review of the performance of these immigration lawyers and the legal professional complaints handling and disciplinary procedures, with respect to their activities, should be conducted three years after an exemption becomes effective.
Senator Nick McKim
Member

  • 1
    Migration Institute of Australia, Submission 6, p. 11.
  • 2
    Ms Angela Chan, Submission 12, [p. 1].
  • 3
    Migration Institute of Australia, Submission 10, Inquiry into the Migration Amendment (Regulation of Migration Agents) Bill 2017 and Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017, p. 5.
  • 4
    Productivity Commission, Annual Review of Regulatory Burdens on Business: Business and Consumer Services, June 2010, p. 135.

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