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.