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Dual regulation of the Australian migration profession

Regulatory reforms are supposed to make life easier, not harder.  Cutting red tape is part of this government's agenda. 

That’s right, isn’t it? 

Will that be the case if “dual regulation” of lawyers is ended, as recommended by the “Kendall Report” concerning the “Independent Review of the Office of the Migration Agents Registration Authority”? 

It might seem at face value that a change in the regulatory regime that would eliminate the requirement that lawyers who hold practicing certificates be registered as migration agents in order to be able to provide “migration advice” as opposed to “migration legal assistance”. 

After all, aren’t lawyers equipped by their training to be able to wade through the dense thicket of law, regulation and policy that characterizes the field of migration? And aren’t lawyers already very strictly regulated, by being required to meet “character” requirements in order to hold practicing certificates, to hold professional indemnity insurance, and to meet stringent requirements in relation to the holding of client money in their trust accounts? 

Wouldn’t it be better if lawyers didn’t have to pay fees both to maintain their practicing certificates and to remain registered as migration agents with OMARA? 

And isn’t it possible that more highly skilled lawyers would be available to advise clients on complex questions of migration law if lawyers didn’t have to register with OMARA? 

All of this sounds pretty good, at least in theory, doesn’t it? 

Well, like everything else in life, there does seem to be a possible “catch” associated with this otherwise seemingly very positive reform initiative.  The proposed end of dual regulation might have a feature which could very negatively impact on members of the migration advice profession.  So for that reason, we wish to comment on that aspect of the proposed reform, and state our response to it. 

The aspect of the reform that is a source of concern is that lawyers might be prohibited from becoming registered migration agents. 

The difficulty with this possible prohibition is that existing legislation governing the legal profession limits lawyers from giving advice to clients (other than “in-house” clients”) only when working for a “legal practice".  

The problem is that there are apparently many lawyers who are currently employed not by “legal practices” but by “migration agencies” or by professional consultancies such as PriceWaterhouseCoopers or Ernst & Young. 

Therefore, lawyers who are employed in organisations that are not “law practices” might be faced with a “Hobson’s choice; They would either have to “surrender” their hard earned practicing certificates, or they would have to make the decision to part ways with migration agencies and other employers for whom they may have worked for many years. 

Is this the only way, or the best way? We at Migration Alliance don’t think that it is. 

Why should it be necessary for lawyers to be prevented from being Registered Migration Agents as well?

Shouldn’t it be up to the individual lawyer to decide whether she/he wants to continue being subject to the scheme of regulation that applies to RMAs?  Shouldn’t a lawyer be able to decide freely whether they want to “opt in” to a second “layer” of regulation from OMARA, if doing so would enable them to remain with their present employers? 

Or shouldn’t there be some alternative “transitional scheme”, which would enable lawyers who are already RMAs to continue in that capacity, either for some extended period of time, or until they decide to leave the migration advice profession? 

Surely there doesn’t seem to be any disadvantage to the public, or to the interests of consumer protection, under the present scheme of dual regulation. 

So what is the harm in allowing lawyers who are now RMAs continue to be RMAs, if that’s what they choose for themselves? 

We don’t think there would be any! 

The comments section is available for your opinions. 

What do you think about this?

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  • Guest
    ZS Wednesday, 16 March 2016

    Just wondering how this would impact the Department of Immigration and Border Protection, are they classed as a Legal Practice or will they be exempt from this regulation. Will the lawyers that work there have a similar scenario to face.

  • Guest
    Junior Wednesday, 16 March 2016

    I have asked this and was answered by the Law Council of Australia:

    In Australia, if you are a registered migration agent without an unrestricted practising certificate (PC) you may not legally offer legal advice without supervision from a lawyer holding an unrestricted PC.

    The proposed new legislation will give you a choice.

    · You may retain your MARN and relinquish your PC, and not practise as a lawyer.

    · Or you may retain your PC and not be supervised by the Department, but then you will need to find a principal solicitor to work under who has an unrestricted PC until you have completed 2 years of supervised practice.

    Lawyers who currently have PC, upon the passing of the legislation to implement the Kendall reforms, will be forbidden from registering as an RMA unless they have relinquished their PC.

    Lawyers with PCs will be able to practise immigration law et and have Professional Indemnity Insurance , legal professional privilege etc.

    If you do not have a PC you will not be able to give legal advice, you will not be able to have legal professional privilege etc.

    Being the holder of the PC means also that you will be governed by the various states’ and territories’ Legal Services Commission and not the OMARA.

    If you do not have a PC then you are effectively not practising as a lawyer and cannot give legal advice.

    The purpose of the Kendall recommendation is to ensure that lawyers are not dually regulated by OMARA and by the statutory bodies regulating the legal profession.

    It is also fundament to the rule of law and the nature of the legal profession that lawyers are independent of the regulatory body that makes decisions that lawyers’ clients seek advice and representation in relation to; in this case the Department of Immigration and Border Protection.

    The Kendall Recommendation gives the Legal Profession its independence back in this field of law.

    Lawyers will not be subject to Departmental supervision (the OMARA is 100% part of the Dept. since 1/7/2015).

    The Law Council is working with the Department and the OMARA towards ensuring that potential clients are aware of migration lawyers, in a similar manner as RMAs. We are working with the Department and through the legal profession to obtain and retain as much marketing value as we can for our members going forward.

    The Migration Law Committee wants as many lawyers to remain practising lawyers and members as possible, to help give the Law Council the leverage with the Department that we need to get to this position.

  • Guest
    TMS Wednesday, 16 March 2016

    Another concern re the proposed legislative changes is for lawyers who are on restricted practicing certificates and currently operating as RMAs, such as myself and my business partner.

    After admission as lawyers we were unable to find employment as solicitors, which requires an initial two years of supervised legal practice on a restricted practicing certificate. There are far too few positions for the excess of law graduates in recent times and so, like us, many graduate lawyers carve out a career as RMAs instead of practicing as solicitors. We love working as RMAs and find so much relevancy to our legal education within the profession so it's been a very fortunate pathway.

    Without a legal practicing certificate, a Graduate Diploma in Migration Law would be our expected educational requirement for registering as migration agents. We already have Graduate Diplomas in Legal Practice so it seems ridiculous to incur the expense of another similar Graduate Diploma to meet the OMARA benchmark for registration.

    If we were no longer regulated by OMARA but, alternatively, by the NSW Law Society, we would not be permitted to work without legal supervision - an expense our business cannot afford and, frankly, mentoring tht is not required. Are there other RMAs out there on restricted practicing certificates in similar positions and any suggestions about addressing this issue in a transitional scheme??

    Without considered transition regs that address our situation of being lawyers on restricted practicing certifictes, our business could become redundant overnight!

    Reply Cancel
  • Thusitha J K Maddumage Don
    Thusitha J K Maddumage Don Thursday, 26 January 2017

    There are many thousands of Australian lawyers who doesn’t have unrestricted practising certificate, are practising as Migration Agents. I am in the same boat. If this is the case, Law society must exempt restricted practising certificate holders at least from Migration Law practice.

  • Guest
    PD Thursday, 17 March 2016

    It is a difficult area to deal with of course, but when I completed the Graduate Certificate in Migration Law the majority of students were either lawyers or Accountants and the failure rate was above 60%. Obviously some lawyers failed to pass the course which in itself raises concerns about the quality or advice given by untrained solicitors.

    Unfortunately Migration law most complicated law and anyone practicing without understanding will be putting the client at risk. Since DIBP fees are very expensive and the consequences of errors are extreme it makes sense that practitioners have some instruction in how to analyse the law and deal with the complications of Policy as part of the process of applying for visa as well as the case officers who are not holders of any legal qualification.

    If a Degree in Law is to be the accepted basis for allowing a Lawyer to practice as a Migration Agent then it would make sense that the degree included the relevant legal subjects for Migration Law.

    Immigration decisions are basically made by clerks, not judges or qualified legal people and the process of dealing with them is rather complicated on many occasions.

    At the end of the day the quality of the Migration Services provided is based on the skills of the Migration Agent. No Skills, No Experience, No Relevant Qualifications poses an issue of what quality of advice will the client receive.

    Reply Cancel
  • Guest
    Kristy Wednesday, 16 March 2016

    TMS I have just finished my law degree and will be in the same boat once I complete PLT. I was thinking of advertising for a business partner to start a new law firm. Or hiring a lawyer to supervise me. I was even thinking of sponsoring someone from overseas on a visa to supervise me for two years. Apart from that, I am looking into all available options.

    Reply Cancel
  • Guest
    LAWYER NEEDING SUPERVISION Wednesday, 16 March 2016

    Can Christopher Levingston supervise us all?

  • Guest
    lb Thursday, 17 March 2016

    Having worked on all sides of this debate ie ex DIAC (now DIBP), lecturing to Grad Cert ML&P, marker for Grad Cert ML&P, lecturing to law students, and having my own practice, I feel I must put forth this one observation, that I have never met a lawyer working in general law practice or specialist in other areas of law, to be proficient and up-to-date with migration law. We take many referrals from law firms who simply cannot keep currency with migration law. RMAs have a huge obligation with mandatory CPD and, as migration law specialists working only in ML&P, have continual maintenance of their knowledge and skills.
    My reservation about the changes is that lawyers with little knowledge of this specialist area of law will not be required to keep currency of migration law and this will be detrimental to their clients. The consequences will be negative for clients and reflect badly on the migration profession as a whole.

  • Guest
    Lawyer and migration agent Thursday, 17 March 2016

    There are many legally trained migration agents in this position. Even lawyers with unrestricted practicing certificates may have a problem if their certificate is corporate. And even if they have a full unrestricted principal of practice certificate, it is not easy to change from employee to business owner and just start-up a law practice on the spot.

    This situation has only developed because of the regulatory regime over past 20 years. It is very unfair to change this with little notice. There should be allowance for lawyers to opt-in to the OMARA, or at least have a five year transitional provision for lawyers.

    The lack of support from the LCA for lawyers caught in this legislation change is disappointing. Their indecent haste to dismantle dual regulation has caused them to forget a large number of their own members will suffer in the short to medium term. And consequently so will their member’s clients (the very people we are trying to protect).

    What can we do to make this fairer?

  • rajesh - kumar
    rajesh - kumar Saturday, 02 April 2016

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  • rajesh - kumar
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  • Guest
    Conundrum Wednesday, 18 May 2016

    Does anybody know what will happen if a lawyer with a restricted corporate PC is hired to do only internal immigration work for a company? Would someone with an unrestricted PC still have to supervise?

  • Guest
    Paul Sadler Friday, 17 June 2016

    You would need to be supervised.



  • Guest
    David Stephens Thursday, 19 May 2016

    Under the proposed law, if you are giving immigration advice to clients then you must have either OMARA registration, or work for a Law Practice.

    In your example, what does 'internal immigration work for a company' involve? If there are no clients, what need is there for immigration work?

  • Guest
    Terry Wednesday, 14 December 2016

    When will lawyers no longer be Mara strangled?
    taking so long

  • Guest
    Claire Friday, 10 February 2017

    you know no one here knows when this will happen?

  • Guest
    Maggie Wallace Friday, 16 June 2017

    Good question,

    And, your have to get your local member of parliament, to find out too.

    But does the Administrator here know - Any news yet?

    Thank you

  • Guest
    Sydneylawyer Sunday, 12 November 2017

    Can someone OFFICIAL from MA contact OMARA to find the exact date of switch over and more info for lawyers and give us an update ?
    When an ordinary agent /solicitor calls them there is no response and they ignore you . They just say wait and look on our website etc etc

  • Guest
    Johanna Barnard Monday, 20 November 2017

    I seems your opinion in the original message is one-sided: only from the impact on lawyers. What will this do to non-LPC RMAs?

  • Guest
    Carol Thursday, 01 February 2018

    So let me get this right, I’m a lawyer with an unrestricted principal practising certificate, I used to on my own lawfirm and was also a registered migration agent for many years until an injury in 2001 caused me to cease practice altogether. Then in 2015 I decided to return to law and sat the requisite exams to obtain my principal practising certificate and I now run my own small legal practice but not in the area of migration law. For some time I have been thinking of returning to migration law but have been concerned about how long it would take me on my own to “catch up” If what you are saying is correct, I would be in a good position to employ/sub contract or go into partnership with a registered migration agent, and I could avoid all the problems of dual regulation and could hit the ground running so to speak whilst I do some research to get up to speed?

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