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The Greens have it wrong on the Regulation of the Migration Advice Profession

I believe that the Greens have got it wrong in opposing the Migration Amendment (Regulation of Migration Agents Bill) 2018 which would remove unnecessary restrictions on the migrant advisory profession. 

The Migration Amendment (Regulation of Migration Agents) Bill 2018, which was debated in the Senate earlier this week, would implement changes recommended by the 2014 independent review, the 'Kendall Review', of the Office of the Migration Agents Registration Authority (OMARA).

The bill would bring into law recommendations of the OMARA review that lawyers who hold practising certificates are removed from the regulatory system that governs migration agents.

Instead those lawyers would be subject to the existing stringent State and Territory legal profession regulatory laws and arrangements, which include comprehensive complaint handling and disciplinary measures, and consumer protections that go further than those available under the Migration Act.

These protections provide for penalties outside OMARA’s current jurisdiction, including financial penalties for improper conduct, and compensation for affected clients.

The current system of dual registration means lawyers who might be struck off by their governing legal professional bodies for disciplinary reasons can keep practising under their OMARA registration.

These lawyers should be immediately subject to the rigorous and timely regulation required under legal professional rules.

I support the Law Council of Australia’s view that dual regulation of the legal profession is an unnecessary and costly burden for legal practitioners, and a source of confusion and uncertainty for their clients.

My view is that the regulation of lawyers by OMARA should be on an ‘opt in’ basis only.

In contrast to the position argued this week by Greens Senator Nick McKim, I agree with the position of the Law Council and Refugee and Immigration Legal Centre Inc (RILC), which have argued that the removal of lawyers from the OMARA regulatory scheme would allow more legal practitioners to provide vital legal advice for refugees and asylum seekers who often rely on pro bono services.

I believe that Law Societies should mandate higher professional training standards for lawyers who are not already Registered Migration Agents, but wish to provide immigration assistance. In my view these lawyers should be required to undertake at least 6 points of CPD in Category A subjects, provided by CPD providers approved by the OMARA. An alternative to CPD offered by OMARA approved providers is that lawyers undertake 6 Continuing Legal Education (CLE) points in subjects relating to Immigration Law and Practice.

Immigration law is an unusually complex and dynamic field, which requires practitioners to keep up to date via relevant CPD or CLE in order to protect the professionals providing the advice, their insurers, and most importantly their clients.

In my opinion, there is no danger of migration agents being 'wiped out' by lawyers flooding into the space.

Migration Agent membership associations who traditionally rely on membership fees from lawyers, may be morbidly afraid of of losing annual membership fees and CPD revenue, but this is not a reason to advocate for the mandatory regulation of lawyers by the OMARA.  Forcing lawyers to comply with rules which are not as strict as those operating within State and Territory Law Societies or Legal Services Commissions makes no sense to me.

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  • Michael Arch
    Michael Arch Wednesday, 05 December 2018

    Perfectly said Liana! It's a matter of perplexity/puzzlement why the Greens would oppose this very reasonable reform that was recommended in the Kendall Report. It's worth noting that the Kendall Report found that Australia has been alone among Commonwealth countries in requiring "dual regulation". I also think your suggestion/proposal that lawyers who are entering migration work do some CLE specifically in migration law is an excellent idea (and I can speak to that from my own personal experience!). Unfortunately I believe lawyers can practice in any area they choose without having to do any targeted CLE. I do think it would help though; I did the MIA's 3 day course in Immigration for Lawyers at the time I decided to start doing migration work in 2013 and while it was ok as an "introduction" the course as best I can remember did not address in detail such core issues as PIC 4020 (!), the structure of the Migration Regulations into various schedules, the leading cases on principles of judicial review, etc). (Maybe there's an idea for a course there!). I agree too that having lawyers permitted to do migration work may very well mean more lawyers available for pro bono work on protection visas etc. And there's no question that having lawyers regulated by their own professional bodies would be more stringent and provide a higher level of consumer protection and remedies than OMARA provides. And no, the migration profession will not be flooded by lawyers looking for a new area of practice, not if they have an appreciation of what is involved. So yep, while I am very sympathetic to the Greens on some issues - first and foremost that climate change is an urgent priority - they definitely have it "wrong" on this one!

  • Guest
    Paul O Thursday, 06 December 2018

    The most important thing is to ensure anyone practicing in migration law is skilled to do so. Immigration law requires ability to read the law, understand policy application, case officers attitudes and differing practices from one country to another, seek and find relevant instruments (assuming you know they exist), learning what evidence is needed for the applications and any extreme requests you are likely to get from a case officer, evidence to prove applicants meet exemptions when applicable and solving problems whem clients cannot provide the evidence you want.
    Keep up with all the amendments and changes to regulations affecting time of decision criteria amd of course find time to sleep

  • Guest
    Toni Wednesday, 05 December 2018

    Doesn't suprise me that the Greens would come up with these type of ideas, they live in their own world sorry but that is how I feel.

  • Guest
    Disgruntled but Caring Wednesday, 05 December 2018

    It’s possible to get a law degree without ever taking any subjects in immigration at some universities due to the opt in nature of some courses.

    It’s also possible to do CLE (?) without taking any units in immigration/migration.

    I don’t care about CPD providers or OMARA earning less. I care about the vulnerable migrants you just mentioned.

    Being a lawyer, doesn’t mean they know every law of every level of government - federal and all states. It means they have learnt how to research relevant laws and try to apply them to relevant situations.

    This skill is valuable and law complex.

    While not all Migration Agents can say they read all the Acts and Regs, they will have read a greater portion than someone who does not specialise in the field. Lawyers whose majority of clients are not in the migration industry will undoubtedly know less. It’s just realistic to admit.

    At least before deregulation they had to take cpd to have knowledge and meet industry professionals to network at least once a year. They had to keep in touch with the industry not battle cases alone with no prior knowledge.

    I have a better solution, make cpd compulsory and MARA registration free for lawyers. Then we at least segregate migration advice to those people who know more about the process. A lawyer with no CLE (?) and no subjects in immigration law before graduating has the same knowledge as an unregistered agent and less experience than education agents who make a lot of mistakes but also make a lot of grants based on no knowledge of the law.

    I just don’t want the market flooded with clueless people. Let them be responsible and caring individuals who would at least take the time to do CPD to know something before taking cases.

    Reply Cancel
  • Guest
    Graham Paddington Thursday, 06 December 2018

    Great idea!!
    Also make the entry requirements/standards for new agents much higher than it currently is. Have CPDs exam based, to avoid the "seat warmers", who attend purely for the points, and contribute nothing. It "may", also be worth considering, limiting new agents to a specific subclass of visa/s, for the first 12-24 months, and then if they wish to represent clients in other sub-classes, have them attend the relevant course, and pass the appropriate exams. I have seen so many disasters caused, by agents taking on cases for which they do not have the required level of knowledge or competency. All you need to do is look at some of the questions which are asked on various forums, and it is most concerning. Particularly when the question starts with "I have a client"!!

  • Liana - Allan
    Liana - Allan Thursday, 06 December 2018

    Your solution re CPD is better than the solution I came up with. Excellent idea. This is about consumer protection.

  • Guest
    Paul O Thursday, 06 December 2018

    CPD's are essential for all including lawyers if they practice migration law.
    I recall when i took my Grad Cert in Migration Law there were 100 in the class of which more than 60 were lawyers. 38 passed meaning many lawyers failed rhe course. Further when my step daughter took the course and passed again 100 in the class and more than 60 lawyers. 14 passed meaning almost all the lawyers failed the course.

    Thia in itself is enough to tell anyone CPD's are essential if or if not MARA licensed.
    Many lawyers consult eith migration agents and migration agents consult with lawyers. This is a good thing considering the complexity and wide range of migration visas and complicated law that applies to these visas.

  • Guest
    Graham Paddington Wednesday, 05 December 2018

    I thought I was the only one not caught up in, and consumed by, the Hysteria surrounding this? Great to see that I am not the only one :)

    Reply Cancel
  • Liana - Allan
    Liana - Allan Thursday, 06 December 2018

    Graham, could I please encourage you to become hysterical about my comments?

  • Guest
    Graham Paddington Thursday, 06 December 2018

    Hi Liana
    Sorry I disappointed you :(
    It's just so hared to get hysterical about anything the Greens espouse (*_*) I was however, (as I usually am) most inspired by, and supportive of, your comments (*_*). I hope I have redeemed myself?

  • Guest
    sharon harris Wednesday, 05 December 2018

    Yes very well said Liana; and Michael.
    I was also surprised to read Senator McKim on behalf of the Greens recommendations which appear to question the efficiency of the legal profession complains handling systems and disciplinary procedures as I, like Liana, believe Law Societies mandate higher professional standards whereby dual regulation appears ineffective.

    Reply Cancel
  • Guest
    phil Wednesday, 05 December 2018

    I am a lawyer. In 1994 i was required to become an RMA. I had no choice..
    Now i'm compelled to NOT be an RMA. I have NO CHOICE. Why?
    Could it be that when inflated professional egos collide its a matter of win at all costs?
    Lawyers:- We don't want to be regulated by OMARA
    RMAs:- Well then you can't be an RMA
    ps Lawyers who are struck off by their disciplinary bodies could not continue to practice migration law

    Reply Cancel
  • Guest
    Silvia Levame Thursday, 06 December 2018

    I agree with the comment made by Disgruntled but Caring. It’s possible to get a law degree without ever taking any subjects in immigration law or property law at some universities due to the opt in nature of some courses. This has been a source of frustration for me for more than two decades.

    Our concern should be the clients. The people who trust our skills and knowledge and put their freedom and/or future permanent and/or temporary residence in our hands and brains. Trust is priceless and should never be broken.

    I know lawyers who 'also do immigration' and do not have a clue about the law, let alone the Regs and the PAMs. How can they represent skillfully any client? I can make the same comment about lawyers and conveyancing. Some do not have any idea and would not know when and why to sign a transfer, let alone get to a settlement or do a PEXA settlement.

    People have to do a course to become RMAs. Lawyers should undertake the same course. CLE should be the same for both as our concern should be the protection of vulnerable clients or as Liana put it, consumer protection.

    So, in a nutshell:
    1) specialised education for lawyers so they can work in immigration law and
    2) compulsory specialised immigration CPDs annually, so they can keep abreast of the ever-changing field that is immigration law. I do not want the profession filled with unskilled (in immigration law) lawyers who can do more damage than good.

    Registration with the MARA? I am not sure about this yet.

  • Guest
    Paul O Friday, 07 December 2018

    There is room to consider MARA as the assessing body to determine any breaches of Immigration law. This makes sense since that is MARA's area of responsibility. This could be achieved by accrediting lawyers who have proved competency in migration law, then without licensing allow them to practice migration law, since the Practicing certificate of a lawyer would cover oversight and penalties.
    Then where issues with migration processing occur, MARA could refer matters to the Law Council for dealing.

    Removing responsibility for being competent based on reliance on a degree is flawed.
    Competence for Migration Agents now requires a practice ready program after studying migration law. Similar requirements could be imposed on Lawyers wanting to practice Migration Law

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