This chapter presents arguments raised by submitters for and against removing lawyers from the regulatory scheme for migration agents administered by the Migration Agents Registration Authority (MARA). It then outlines the committee’s view and recommendation.
This chapter only addresses Schedule 1 of the Migration Amendment (Regulation of Migration Agents) Bill 2019 (the migration agents bill), as no concerns were raised in relation to other schedules in the bill, and no concerns were raised about the Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019.
Arguments against removing lawyers from the scheme
Under the current legislative arrangements, lawyers who provide immigration assistance are required to register as migration agents and pay registration fees to the MARA. The majority of submitters to the inquiry argued that this imposes additional and unnecessary financial and regulatory burdens on lawyers, and expressed their strong support for the bill.
However, the Migration Institute of Australia (MIA), which is the professional association for Registered Migration Agents, submitted that it has long opposed the removal of lawyers from the MARA regulatory scheme, and opposes the current bill in its entirety.
MIA argued that immigration law is complex, and those providing immigration assistance should be required to undertake ongoing professional development to remain up to date on changes to the law. MIA said the bill might 'satisfy professional pride' but would also 'reduce the level of protection and quality assurance for consumers of immigration advice'.
In response to this argument, the department submitted:
The [2014 Independent Review of the Office of the Migration Agents Registration Authority] OMARA Review found that despite concerns expressed that lawyers should continue to be registered as migration agents due to the complexity of migration law, it was noted that lawyers operate in many highly complex areas, such as intellectual property, taxation law and finance law, with the knowledge that if they are negligent or unprofessional, they will be subject to some of the strictest and harshest disciplinary procedures and professional sanctions in the country.
While most submitters suggested that lawyers are already well-regulated by their professional bodies, MIA proposed that 'some law societies do not appear to have the same regard for migrant consumer protection as the OMARA'. MIA referred to lawyers being allowed to continue practicing 'even after being barred by the OMARA for gross misconduct and breaches of fiduciary duties', saying:
Notable cases are those of a lawyer who was barred from practicing as a migration agent for flagrant attempts to rort the asylum seeker migration program and another whose registration was cancelled for knowingly lodging large numbers of fraudulent applications.
The OMARA Code of Conduct currently requires registered migration agents to 'maintain a professional library to inform their practice'. The MIA suggested that, if no longer required to do so, lawyers providing migration assistance are likely to cease this practice, leading to the provision of 'sub-standard legal advice'.
A further argument advanced by MIA was that the current system of regulation means 'competent, approved (registered) practitioners can be easily identified in one place, the OMARA Register of Agents'. The Law Council of Australia (Law Council) acknowledged that this function will no longer be available to those seeking migration advice, and suggested alternative arrangements may need to be made by the legal sector.
The MIA recommended the government consider the following alternative to completely removing lawyers from the MARA regulatory scheme:
…that those practitioners who hold Australian legal practicing certificates and who wish to provide immigration assistance should:
be registered with the OMARA for a nominal fee
not be subject to the OMARA disciplinary system, but to their relevant state or territory legal services commission, and
be required to undertake at least six Continuing Professional Development (CPD) points in the area of Australian migration law and policy each year.
The arguments made by MIA were also supported by Ms Angela Chan, who was an inaugural member of the Migration Agents Registration Board, a forerunner to the MARA. Ms Chan submitted that lawyers should remain in the MARA scheme, saying:
It never ceases to amaze me how some lawyers who hang out their shingle to provide migration advice understand little or nothing about Section 48, Schedule 3 or Schedules 1 and 2 of the Migration Act. Without this knowledge, advice provided to clients can be highly detrimental as clients may lose their opportunity to lodge a valid application which may have consequences for themselves and other family members. It may also result in a significant financial loss to the client and/or sponsor.
Ms Chan referred to reports that some members of ethnic communities in Australia have had 'negative experiences' with migration advice provided by lawyers. Ms Chan also acknowledged, however, that this evidence is 'anecdotal'.
The Law Council stated that it is 'not aware of any evidence of demonstrated deficiencies in legal knowledge or practice competencies among legal practitioners practising migration law'.
Arguments in favour of removing lawyers from the scheme
The first scheme regulating immigration assistance was introduced in 1992. Since then, legal practitioners 'have argued for their removal from such schemes'. In response, the government has undertaken a number of reviews of regulation in the migration sector. Relevant reviews include:
A 2010 Australian Productivity Commission review, which recommended 'that legal practitioners be exempted from registration as migration agents and that a review of the performance of legal practitioners be conducted three years after the exemption becomes effective'.
The 2014 OMARA review, which recommended 'that lawyers be removed from the regulatory scheme that governs migration agents such that lawyers:
cannot register as migration agents; and
are entirely regulated by their own professional bodies.
The Migration Alliance described the dual regulation of Australian lawyers by both law societies and the OMARA as a 'running sore', and commended the government on its efforts to remove this dual regulation.
The Law Council argued that migration law is 'the only area of legal practice which is subject to two separate regulatory regimes', and the Victorian Immigration Solicitors' Alliance said dual regulation is 'a source of confusion and uncertainty for…clients'.
According to the Law Council, negative impacts of the current regime on consumers include:
uncertainty about whether immigration assistance is being provided as a legal service;
uncertainty about whether the provider is a legal practitioner properly
authorised to engage in legal practice, or a RMA solely authorised to provide immigration assistance;
uncertainty about whether the issues being dealt with require the services of a legal practitioner, particularly when the distinction between 'immigration assistance' and 'immigration legal assistance' is unclear, and where a given matter may potentially give rise to administrative or judicial review;
uncertainty about whether communications for advice in connection with immigration law matters attracts client legal privilege;
uncertainty about where complaints are to be made and how they will be resolved when immigration assistance is provided by a legal practitioner.
The department submitted that the practical effect of the amendments made by Schedule 1 would be 'to reduce the regulatory and financial burden on lawyers' who provide immigration assistance, and also remove supervisory restrictions that currently disadvantage restricted legal practitioners.
The OMARA review found that 'comparable countries', including Canada, the United Kingdom and New Zealand, do not require lawyers to be registered migration agents. However, MIA said that the Canadian and the British regulatory systems 'allow lawyers to 'opt in' to their registration systems', whereas the proposed bill specifically 'prohibits' lawyers from registering. MIA submitted:
Many MIA registered migration agent lawyer members are opposed to being 'prohibited' from being registered by the OMARA and would prefer an 'opt in' system.'
The argument for an 'opt-in' system was also supported by registered migration agent, Ms Genevieve Hamilton.
The issue of consumer protection was addressed by submitters in favour of the bill, who argued that lawyers are well-supervised and come under professional integrity regimes that are, if anything, more rigorous that the MARA scheme.
The department submitted that:
The relevant legal professional and disciplinary bodies and the statutory schemes underpinning them have a broader range of powers to resolve consumer-related issues arising from the provision of advice by legal practitioners, which they are experts in implementing. This includes penalties outside of the MARA's existing jurisdiction, including financial penalties for improper conduct, and recommending compensation for affected clients.
In addition to requiring a four-year degree for legal practice, legal practitioners must meet personal suitability requirements for admission, as well as for the granting and renewal of legal practising certificates. Legal practitioners must also complete a period of supervised practice before they can practice on an unsupervised basis. Their relevant legal professional association requires them to complete continuing professional development courses as a condition of their practising certificate.
In support of this view, the Migration Alliance said '[v]ulnerable consumers will be now able to initiate complaints in respect of Australian Lawyers practising in Australian immigration law'. In addition, the Victorian Immigration Solicitors' Alliance contended that:
…the legal profession regulatory framework in some ways provides more comprehensive requirements for lawyers than the Migration Agent's Code of Conduct. Further, the complaints mechanism within each state-based legal profession is also sufficient to provide a satisfactory process in which to make complaints against lawyers.
Estrin Saul Lawyers and Migration Specialists suggested that complaints may even be resolved faster under legal regulatory regimes:
For instance, the Legal Practice Board of Western Australia (LPBWA) has a 'Rapid Resolutions Team' whose goal is to 'resolve complaints by conciliation and to identify possible conduct issues'. In the context of visas, 'rapid resolution' is more preferable than the OMARA complaints process, which, while effective, often yields an outcome which does not assist the aggrieved consumer in the short term. The Rapid Resolutions team, which addresses matters within two working days of receipt, can often conciliate the concern raised and mitigate any conduct before taking it further to the Legal Professional Complaints Committee.
The Law Council submitted that regulation of the legal profession is 'primarily a matter for the states and territories', which have:
...developed and implemented robust and effective legal profession regulatory frameworks, and that the concerns that drove the Commonwealth in 1992 to include legal practitioners in the migration agents' regulatory scheme no longer exist.
The department also confirmed that, should the legislation be enacted, it 'will work closely with the legal profession regulators to manage the transition', and will put in place 'information sharing' arrangements to ensure existing complaints can be finalised.
Possible unintended consequences
KPMG supported the intent of the bill, but was concerned that as drafted the bill would have an unintended consequence impacting KPMG's immigration services business.
KPMG employs 25 staff in an immigration services business which provides 'immigration advice and assistance to businesses looking to access the various employer sponsored visa categories'. These staff are mainly 'dual registered legal practitioners' who hold unrestricted practising certificates and practice as registered migration agents under the MARA scheme.
Under the provisions of the bill, lawyers working for KPMG as registered migration agents may no longer be able to legally provide immigration assistance, as they would not satisfy the requirement of being attached to 'a legal practice'. KPMG further explained:
KPMG is not a legal practice/incorporated legal practice but rather a professional services firm that provides an array of services to our clients, including immigration advisory services…The passing of the Bill will limit KPMGs ability to retain key staff members who hold unrestricted practicing certificates, as these practitioners will no longer be able to provide immigration advice independent of a connection to a legal practice. They will not be able to perform the full suite of their current duties for our firm and external clients.
MIA echoed the concern that legal practitioners not associated with a legal practice would be excluded from providing migration assistance under the new provisions. MIA submitted:
…a significant number of lawyer registered migration agents may lose their jobs and/or businesses. It is common for large migration practices not to be legal practices within the definition of a “qualified entity”. These companies cannot easily convert to become legal practices as legal practices must have a lawyer as a director. Non-legal migration practices providing services to disadvantaged clients and employing lawyers with immense knowledge and experience in this area, will be forced to merge with a legal practice or be forced out of business.
KPMG recommended 'an opt-in framework for unrestricted legal practitioners'. Another option may be amending the definition of 'legal practice' so that it was wide enough to cover the kind of business structure under which KPMG employs its migration agents.
The issue of dual regulation of lawyers who provide migration assistance has been long-debated. It has been the subject of a number of reviews and inquiries over time, and it is time that the issue is resolved.
The committee appreciates the concerns raised by some submitters, but recognises the overwhelming support for this legislation expressed in most of the submissions.
Unnecessary over-regulation costs the taxpayer, damages productivity, may deter investment, and can undermine job growth. The government is seeking to reduce inefficient regulation wherever this can be achieved without imposing unacceptable risks.
The committee is confident that the legal profession in Australia is well-regulated and offers effective consumer protection mechanisms, including for vulnerable consumers, such as those who seek migration assistance.
The committee acknowledges concerns expressed in relation to lawyers providing migration assistance who are registered migration agents and are not working for a legal practice. A legal practitioner may not operate without a practicing certificate from the relevant state. A lawyer is not a legal practitioner without a practicing certificate. The words 'in connection with legal practice' are intended to refer to conduct that is attributable to activities done by an Australian legal practitioner in connection with his or her practice as a lawyer.
'Legal practice' in this context is defined as 'the provision of legal services regulated by a law of a State of Territory' (see item 1 of Schedule 1 to the bill). In this context, it is not about identifying a specific organisational structure, and instead it relates to referring legal practitioners to the legal regulatory rules of the relevant state and territory legal professional bodies.
Therefore when the words 'in connection with legal practice' are placed in their proper context the migration agents bill will ensure that Australian legal practitioners will be able to give immigration assistance if they work in connection with activities that lawyers engage in as part of their legal practice in the specific area of law. This also ensures that it is consistent with the manner in which 'legal practice' is used in the key findings of the 2014 OMARA review.
This also ensures that it is consistent with the broader intention of the migration agents bill, which is to remove certain legal practitioners from the regulatory scheme governing migration agents, and ensure that activities done by Australian legal practitioners in connection with their practice as a lawyer are regulated entirely by the relevant state and territory legal professional bodies.
The 'opt-in approach' suggested would perpetuate rather than cease dual regulation as drafted in the migration agents bill. The intent of the bill is to reflect the government's deregulation agenda and remove the administrative burden of dual regulation of these lawyers.
In summary, the committee believes this issue has been debated long enough, and encourages the Senate to pass these bills as a matter of priority.
The committee recommends that the Senate pass the bills without delay.
Senator Amanda Stoker