The Migration Alliance has received an enquiry concerning the “Migration Amendment (Regulation of Migration Agents) Bill 2017”asking:
“Can you help understand if the bill is coming into effect and what the implications are? “
So here are the answers!
The Bill was introduced in the House of Representatives on 21 June 2017.
It was referred to Committee in the House on 10 August 2017 and to the Senate Legal and Constitutional Affairs and a Committee Report (not clear f from the House or Senate) was issued on 16 October 2017.
The commencement information that is provided with the Bill indicates that Schedule 1, which relates to the provision of immigration assistance by Australian legal practitioners will come into force (if the Bill is enacted) on 1 July 2018. Also, Schedule 5, which relates to registration application charges, will come into force at the same time as Schedule 1 to the Migration Agents Registration Application Charge Amendment (Rates of Charge) Act 2017 commences. The remainder of the Migration Amendment (Regulation of Migration Agents) Bill 2017 will come into force on a day to be fixed “by proclamation” (in other words, on a date “to be determined”.
For the time being, I will review the provisions of Schedule 1 of the proposed bill relating to Australian legal practitioners; at a later date (likely later this week) I will review the other changes proposed to be introduced by the legislation.
Here are the key provisions relating to the regulation of lawyers:
A new “signpost” definition of the term “Australian legal practitioner” will be added under section 275 of the Migration Act. The term “Australian legal practitioner” will be defined to mean “a lawyer who holds a practising certificate (whether restricted or unrestricted) granted under a law of a State or Territory”.
The legislation will also bring about the repeal of section 277 of the current Migration Act, which defines the term “immigration legal assistance”.
This term was previously included in the Act to define the types of immigration advice that a lawyer could provide without needing to be registered as a migration agent. The Bill will have the effect of excluding Australian legal practitioners from being able to be registered as migration agents, and will allow lawyers to give immigration assistance on the basis of holding a practising certificate. Consequently, the concept of “immigration legal assistance” that was included in the Act under section 277 will become outmoded and will no longer be necessary.
Another change to be introduced by the Bill will amend section 280(3) of the Act.
This section currently provides that the restriction against a person providing “immigration assistance” does not apply to prohibit a lawyer from giving “immigration legal assistance” (which again is currently defined under section 277, which will be removed from the Act).
The amended section 280(3) will provide that the prohibition against a person who is not a registered migration agent from providing immigration assistance will not apply to an Australian legal practitioner who gives such assistance in connection with a “legal practice”.
The Explanatory Memorandum states that the changes to section 280(3) are being introduced to ensure that an Australian legal practitioner can give immigration assistance in connection with legal practice without being required to register as a migration agent.
The Explanatory Memorandum also states that the new section 280(3) should be read alongside the new section 289B (which is being introduced by item 112 of Schedule 1 to the Bill).
Very consequentially, new section 289B provides, in very unequivocal terms, that a person must not be registered as a migration agent if the person is also an Australian legal practitioner. As indicated in the Explanatory Memorandum, the effect of this provision is that any application by an Australian legal practitioner for registration as a migration agent will be refused. A further implication of the change, as also described in the Explanatory Memorandum, is that Australian legal practitioners who give advice on immigration matters will be resulted only by their own legal professional bodies. In other words, OMARA will no longer have any role in governing the conduct of lawyers who provide immigration assistance/give legal advice in relation to migration issues.
It is noted in the Explanatory Memorandum that the amendments will require lawyers who have restricted practising certificates to “adjust” the way that they provide services, namely: that a lawyer who has a restricted practising certificate will have to cease to be registered migration agents if they want to continue to hold their practising certificates, or they will have to cease being RMAs if they wish to continue to hold their practising certificates.
Lastly: the amendments will introduce a new section 302A to the Act. This section will require that the MARA cancel an agent’s registration, by removing her or his name from the register, if the MARA is satisfied that the agent is an Australian legal practitioner. This provision is mandatory: the MARA will have no discretion as to whether to cancel the registration of an Australian legal practitioner.
So, to summarise: the principal effect of these changes will be to allow any Australian lawyer to advise on any immigration issue, including issues relating to visa applications, without the need to become an RMA.
And: lawyers will no longer be subject to dual registration they will be regulated only by their own professional bodies, and will no longer be subject to oversight by the OMARA.
All of this is happening a little more than 6 months from now.