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Attention Lawyers: End of Dual Regulation Closer to Reality!

It has finally happened!

On 21 June 2017, the Turnbull Government introduced legislation (the Migration Amendment (Regulation of Migration Agents Bill) 2017”) into the House of Representatives that, if enacted, would end the dual regulation of lawyers by the Office of the Migration Agents Registration Authority.

The Kendall Report, which was issued on 24 September 2014, and which detailed the results of a study of the functions of the MARA that was commissioned by then-Assistant Minister Michaelia Cash, had made a recommendation that the system of dual regulation by  the MARA be ended.  However, legislation to implement this change had not been widely circulated until the introduction of the bill last week.

According to the newsletter issued by the president of the Migration Institute of Australia on 23 June 2017, Queensland barrister Angela Julian-Armitage, a copy of the bill was provided to her by the Assistant Minister (now Alex Hawke MP) “some time ago”, “with instructions that it was kept strictly confidential and only discussed with Senior Board Members.”

One has to wonder why it was considered that the proposed legislation be “cloaked in secrecy”, and not widely distributed across the migration advice profession for comment before it was introduced into Parliament.  Perhaps the government can explain “why”.  For the moment, all one can say is “whatever!”.

Here are the principal features of the Bill:

  • As of 1 July 2018, “Australian legal practitioners” will no longer be able to be Registered Migration Agents.  This prohibition will be implemented through the introduction of a new section 289B to the Migration Act 1958.  The consequence of this amendment is that any application for registration as a migration agent that is made by an “Australian legal practitioner after  1 July 2018 will be refused;
  • As of 1 July 2018, “Australian legal practitioners” will be able to give “immigration assistance” within the meaning of section 276 of the Migration Act without the need to be a Registered Migration Agent;
  • A new section 302A will be added to the Migration Act which will require the MARA to cancel an agent’s registration if the MARA is satisfied that the agent is an “Australian legal practitioner”;
  • The term “Australian legal practitioner” will be defined under section 275 of the Migration Act to mean “a lawyer who holds a practicing certificate (whether restricted or unrestricted) under a law of a State or Territory” – it is critical to note that the definition of Australian legal practitioner specifically excludes lawyers who are admitted to practice but who do not hold a practicing certificate;
  • The most significant impact of these changes will be on lawyers who hold restricted practising certificates.  Currently, the holder of a restricted practising certificate can provide immigration assistance directly to clients if they are also registered migration agents. The change will force lawyers to cease being registered migration agents if they continue to hold their practising certificates, or alternatively, they will need to  drop their practising certificates if they wish to maintain their status as registered migration agents.
  • What this means as a practical matter is that lawyers who only have restricted practising certificates and who have been running their own migration practices as registered migration agents will be faced with the very difficult choice of either stopping being lawyers through the surrender of their practising certificates, closing their migration practices altogether, or looking for an association or affiliation with existing migration law practices that are operated by lawyers who do hold unrestricted practising certificates. So these changes do have the potential to cause significant dislocation to those members of the migration advice profession who are lawyers running their own practices but who do not yet hold unrestricted practising certificates.

What do you think of these changes?

Will they impact you?

And do you think that the government should have been more open with the process of preparing this legislation, and allowed more opportunity for comment and participation by “stakeholders”?

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Comments

  • Guest
    Jeffrey Stone Tuesday, 27 June 2017

    As an Australian practising lawyer, I would like to continue being on the MARA register, so that potential clients can look up my details there, whether I am required to be registered or not.
    Otherwise RMA's are being favoured from a marketing point of view.

  • Guest
    Chris Chang Tuesday, 27 June 2017

    I have been a lawyer since 1984 and RMA since 1992. I would like to keep my MARN registration given that my MARN number has the 92 prefix. As a lawyer I lose any marketing advantage from losing my seniority apparent from my MARN 92....

  • Guest
    Crawford Yorke Wednesday, 28 June 2017

    I too would like the option of maintaining RMA registration both from a marketing viewpoint and also the flexibility of operating a client account instead of a trust account (much greater compliance costs) and lower RMA insurance costs.

    I know quite a few lawyers affected by this change so we are looking to lobby our members of parliament to at least give the option of maintaining registration.

  • Guest
    Confused Wednesday, 28 June 2017

    Who asked for single registration when there are people who prefer dual registration? :p

  • Guest
    ZS Sunday, 23 July 2017

    Hi , So is there anything we are doing as a profession to get together and lobby against this change. There should definitely be an option for maintaining registration for lawyers.

  • Guest
    Hannah M Friday, 28 July 2017

    Hi, Mark Northam is preparing a submission on this topic, his contact: mark@mnvisa.com

    There were few emails in the last few days going around from Mark and others in the group who may be affected by the unfair proposed changes

    I too would like to keep my RMA registration.
    I worked hard to be both Migration Agent and a lawyer and did extra studies and exams to become a Migration Agent before I became a lawyer.

    Why cant Australia have dual registration like they have it in Canada and UK ?

  • Guest
    Guest Thursday, 07 September 2017

    Does this mean lawyers cant lodge applications without a MARN number?

  • Guest
    Kriss Monday, 22 January 2018

    Canada does not have dual registration.

    Some way of enabling lawyers to be included in the MARA database and maintain their MARN should be introduced (without that prohibitive (re-)registration fee, that is.

    Lawyers with restricted PCs should be allowed to continue their OMARA registration.

  • Guest
    NJ Sunday, 11 February 2018

    I am slightly unsure of the entirety of the practical implications that will arise from this.

    However I am very worried that:
    a) This will give rise to lawyers who give advice on migration matters where they do not have the knowledge
    b) This will give unfair advantage to RMAs over lawyers who will not be able to renew their registration and be listed as an RMA where they have a depth of knowledge. The currently dual-registered agents will lose out, as will visa applicants looking for an agent.

    I do not know the logic behind this amendment, and cannot see any advantage to this.

  • Guest
    Lawrence Myers Tuesday, 05 February 2019

    Are you able say what is the position with respect to this legislation...is it close to being finalised?

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Guest Sunday, 08 December 2019
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