Federation Chamber, 27 March 2018
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Mr KEOGH (Burt) (17:14): The Migration Amendment (Regulation of Migration Agents) Bill and cognate bill aim to amend the Migration Act 1958 to eliminate the requirement, in part, for lawyers to be registered as migration agents in order to provide immigration advice. People seeking help from a migration agent in Australia are by nature usually vulnerable consumers, often seeking assistance with an application to reunite with family, help to process a humanitarian visa or assistance to take up a job offer in Australia, or to visit for extended periods of time, all of which are complicated and difficult. It is a difficult system to navigate, no matter what a person's background. It is, of course, important that Australia's migration program have integrity—(Quorum formed)—and operate in a non-discriminatory way, and that the people who are offering migration advice act in the best interests of their clients and within a proper legal framework.
For a long time, though, legal practitioners of migration law have had to be regulated separately as migration agents under the federal Migration Act if providing immigration assistance, in addition to being regulated as legal practitioners under their relevant state or territory legal profession laws. Under the present scheme it is practically impossible for a legal practitioner advising on migration law issues to provide legal services in this area without also being compelled to be registered as a migration agent. Migration law is the only area of legal practice that is subject to these two separate regulatory regimes. However, the vast majority of migration agents, two-thirds, do not hold a legal practising certificate.
Under the current rules an agent can provide only immigration assistance, which is defined as being different from immigration legal assistance, which can be provided by migration agents who are also qualified as practising lawyers. This of course has raised a number of uncertainties, including whether immigration assistance is being provided as a legal service; whether the service provider is a migration assistant, who is authorised to provide only immigration assistance; whether advice on immigration law attracts legal professional privilege; how complaints are to be made and handled and, in particular, to which body; and the availability and nature of the relevant consumer protections. Consumers are also likely to pay more to cover the costs of practitioners complying with two separate regulatory frameworks and registration as a migration agent.
We note that the bill implements the recommendations of the review of the Office of the Migration Agents Registration Authority, which was conducted by the eminent Dr Christopher Kendall, now Judge Kendall. The review found that lawyers who hold a practising certificate should be removed from the regulatory scheme that regulates migration agents. The bill also extends the time period for registration after having completed a prescribed course in order to be registered as a migration agent and clarifies the definitions of immigration assistance and immigration representation.
This removal of dual regulation is fundamental. In fact, with a government that says that it is hell-bent on removing overregulation and red tape, given that this review occurred in 2014, one really does have to question why it is now 2018 and we are only just getting around to debating this legislation. Indeed, as I said, the barrister who conducted the review that led to this legislation has since been appointed not only to the AAT but also to the Federal Circuit Court, and , of course, I congratulate him for that.
It is important to note here that there has been, for a very long time, an overregulation where legal practitioners, who, along with doctors, probably, face one of the most stringent regulatory regimes and highest levels of professional obligation of any regulated profession, also had to be regulated through the Office of the Migration Agents Registration Authority. It is absolutely a good thing that this law removes that requirement for dual regulation. It's a good thing because it means that those seeking to access the assistance of migration agents will not have to pay for the cost a of dual regulation of this nature. It's a good thing because clarifying the definitions of immigration assistance and immigration representation, along with legal assistance, will provide clarity in relation to the types of work that can be done by a legal practitioner versus someone who is solely a migration agent. And it is also a good thing because it frees up the tens of thousands of lawyers in Australia who have not, until this point, been registered as migration agents to provide immigration assistance and advice on migration matters to a growing number of people in this country who require it. It is not an easy system to navigate, in particular, when it relates to multiple legal issues. It is important that lawyers are able to be engaged in this work and that we avoid the situation, as has frequently arisen, where lawyers providing advice to clients on other matters have had to refer them to an additional adviser, a migration agent, in order to assist with those migration related matters.
The bill also makes changes to repeal some redundant provisions and allow the Migration Agents Registration Authority the power to refuse an application to become a registered migration agent where the applicant has been required, but has failed, to provide information or answers to questions about their application. This is critical for maintaining the integrity of the registration system. The bill also requires migration agents who have been registered on a non-commercial basis to notify the Office of the Migration Agents Registration Authority if there is a change in circumstance where they've gone into providing immigration assistance on a commercial basis. This will complement amendments made to the legislation dealing with the rates of charge that can be made by a migration agent and makes the higher commercial charge the default charge that applies.
The OMARA review, as I said, was undertaken back in 2014. This government has said, and continues to maintain, that it is a government that is about removing superfluous red tape. Between our sides of politics, we may not always agree what is superfluous red tape, and often we see the deregulation of areas by this government in areas where those regulations actually make sense. But here, after a review that was conducted all the way back in 2014, four years later, we are now only just getting around to removing overregulation of the legal profession—already one of the most highly regulated professions in the country—to free them up to be able to get on with the good work of helping the many people in Australia and their families with the migration processes, in which it is always important to maintain, and operate with, a high level of integrity. I commend this legislation to the House.