Reforms to migration law & the impact of removing dual regulation to immigration lawyers

What?

Last year, the Australian Federal Government introduced the Migration Amendment (Regulation of Migration Agents) Bill 2018 into Parliament. The Bill, which was initially expected to come into effect on 30 June 2019[1] but will now more likely be in 2020, amends existing legislation under the Migration Amendment Act (No. 3) 1992 (Cth) and the Migration Act 1958 (Cth) (‘the Act’), where sections 280 and 281 together create a general prohibition on a person who is not a registered migration agent from providing or charging fees for “immigration assistance”.[2]

The new legislation exempts lawyers from registration with the Office of Migration Agents Registration Authority (OMARA). This means that lawyers currently or looking to practice Australian immigration law will be regulated entirely by their relevant State or Territory legal professional bodies.

Why?

This proposed amendment follows recommendations from the 2014 Independent Review of the OMARA (‘the Kendall Review’),[3] and has long been supported by the Australian government. Senator Concetta Fierravanti-Wells highlights the importance of the Bill in removing unnecessary red tape, and states that the current system of dual regulation ‘poses an unnecessary burden on such lawyer agents, who are already subject to a strict professional regulatory scheme’.[4]

The impact on lawyers wanting to specialise in immigration law

Some concerns have been expressed about the changes – specifically, whether such deregulation could cause an influx of new lawyers entering this practice space,[5] and also whether the new legislation puts clients at risk of receiving incompetent legal advice from practitioners who do not have the knowledge or skills in this complex area of law practice.[6]

However, the legal profession regulatory bodies and schemes – such as the Legal Profession Uniform Law (NSW) and Legal Profession Uniform Law Application Act 2014 for practitioners in NSW – already hold high and strict professional standards for legal practitioners and there are harsh penalties for improper conduct by legal practitioners. Moreover, compensation is available for affected clients.

Migration law is a highly specialised and complex area, so it is unlikely that lawyers will enter this space without first undertaking proper training to develop a strong knowledge base and skillset required for migration law practice.

Once changes are due to come into effect, Integrate Legal will host a full-day workshop for legal practitioners looking to specialise in immigration law. The workshop will deliver the practical knowledge and skills required so that they are ready when the changes come into effect. The workshop, held in the lush surrounds of George Heights in Mosman, and overlooking Sydney’s harbour, will offer insight into this challenging, diverse and rewarding area of law. For those interested in the workshop, please email hello@integratelegal.com to be kept up to date.

[1] Most recent updated explanatory memorandum (with amendments to schedules)

[2] http://proctor.qls.com.au/?iid=161439&utm_source=Proctor+Online&utm_campaign=d9a5bc527b-proctor-online-october-email-27Sep2018&utm_medium=email&utm_term=0_597816ca6a-d9a5bc527b-228390665#folio=14

[3] Lawyers Weekly article, 6 October 2017 https://www.lawyersweekly.com.au/sme-law/22025-migration-agents-air-concerns-over-harsh-bill

[4] Senator Concetta Fioretta-Wells, Second Reading Speech, 8 May 2018: http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansards/b29b19e4-89dc-4213-a2d2-a6a79205af0e/0130/hansard_frag.pdf;fileType=application%2Fpdf

[5] http://proctor.qls.com.au/?iid=161439&utm_source=Proctor+Online&utm_campaign=d9a5bc527b-proctor-online-october-email-27Sep2018&utm_medium=email&utm_term=0_597816ca6a-d9a5bc527b-228390665#folio=14

[6] Senator Concetta Fioretta-Wells, Second Reading Speech, 8 May 2018: http://parlinfo.aph.gov.au/parlInfo/genpdf/chamber/hansards/b29b19e4-89dc-4213-a2d2-a6a79205af0e/0130/hansard_frag.pdf;fileType=application%2Fpdf