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”?