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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?