Key concerns
2.1
This chapter discusses the main concerns raised by submitters to this
inquiry about the RMA bill, and outlines the committee view and recommendation.
2.2
Please note this chapter focuses on areas of concern discussed in
submissions regarding Schedule 1 of the RMA bill. No concerns were directly
raised in relation to other Schedules in the bill. The committee did not
receive submissions expressing concerns about the MARACA bill.
General support for the RMA bill
2.3
A number of submitters highlighted the benefits that the proposed
amendments would bring for the legal profession. These included reduced costs
for lawyers, who would no longer be required to register as migration agents,
and the stringent disciplinary measures that lawyers would be subject to within
their own field instead of the OMARA's disciplinary measures.[1]
2.4
The Law Council of Australia, for example, submitted that it:
...strongly supports removing dual regulation of lawyers when
practising migration law. The Law Council has consistently advocated against
dual regulation of the legal profession as an unnecessary and costly regulatory
burden for legal practitioners, and a source of confusion and uncertainty for
their clients.[2]
2.5
The Refugee Council of Australia also welcomed the bill, offering the
opinion that the removal of lawyers from the OMARA regulatory scheme, including
its associated costs and the time required to register, would 'allow more legal
practitioners to provide vital legal advice for refugees and asylum [seekers]'
who often rely on pro bono legal advice.[3]
Key concerns raised by submitters
2.6
Most submissions that the committee received were from registered
migration agents (RMAs) who also held legal qualifications and, in many
instances, restricted practising certificates.
2.7
These submitters focused on the amendments in Schedule 1 concerning the removal
of lawyers from the OMARA regulatory scheme. The effect of this removal would
mean that migration agents with practising certificates would have to choose to
practice either as lawyers, regulated by their respective state or territory
legal bodies, or as migration agents, regulated by the OMARA.
2.8
These proposed amendments would impact a significant number of migration
agents: as at 15 August 2017, a third of RMAs with the OMARA were also
Australian legal practitioners.[4]
2.9
The concerns that these submitters raised about Schedule 1 of the RMA
bill included:
-
Limited prior consultation;
-
Dual regulation existing in other fields and countries;
-
Impact on small businesses and potential unemployment;
-
Loss of expertise;
-
Migration agents being 'punished' for upgrading their skills;
-
Confusion for clients; and
-
Lawyers formerly sanctioned by the OMARA potentially being able
to provide migration advice.
Limited prior consultation
2.10
Concerns were raised in evidence regarding the level of consultation
that the Government engaged in prior to introducing the final version of the
RMA bill. For example, one submitter suggested that the consultation was
'limited' and involved 'only a few handpicked people at the LCA [Law Council of
Australia] and the MIA [Migration Institute of Australia] sworn to secrecy
about the process'.[5]
2.11
However, the Department in its submission emphasised that:
Prior to final drafting of this bill, the Government
extensively consulted, including by circulating an Exposure Draft to key
stakeholders in the migration advice industry. The feedback provided in
response to the Exposure Draft was taken on board to ensure an orderly
transition of lawyers from the OMARA regulatory scheme.[6]
2.12
In the second reading speech introducing the RMA bill, the Assistant
Minister for Immigration and Border Protection stated that the Government had
'consulted broadly' on Schedule 1 of the RMA bill by taking 'the relatively
uncommon step of circulating an exposure draft of schedule 1 to key
stakeholders'. These stakeholders included the Law Council of Australia, the
Migration Institute of Australia, and state and territory legal and
professional bodies.
2.13
The Assistant Minister declared that the feedback received from these
organisations would be used to 'assist in ensuring the transition of lawyers
with practising certificates from the OMARA regulatory scheme is as smooth as
possible'.[7]
Dual regulation in other fields and
countries
2.14
A number of submitters objected to the bill on the grounds that dual
regulation is permitted in a number of other fields of employment. For example,
the Migration Institute of Australia stated that:
Dual regulation is not uncommon in other professions in Australia.
Accountants are required to have separate registration to work in auditing,
financial planning and taxation. Tax practitioners and BAS [Business Activity
Statement] agents are registered by the ATO [Australian Taxation Office].
Financial planners are regulated by ASIC [Australian Securities and Investments
Commission] and must hold an Australian Financial Services License or be
covered by an exemption...Similarly, auditors are also regulated by ASIC.[8]
2.15
Other submitters argued that other countries do not disallow lawyers
from registering as migration agents. These submitters noted that the proposed
amendments are based on the recommendation from the OMARA Review that 'lawyers be
removed from the regulatory scheme that governs migration agents such that
lawyers cannot register as migration agents'.[9]
The OMARA Review argued that unlike Australia, Canada, the United Kingdom and
New Zealand do not 'require lawyers to be registered in order to provide
immigration advice or assistance'.[10]
2.16
One submitter contended that:
...while it is true that Canada and the United Kingdom do not require
'lawyers to be registered in order to provide immigration advice or
assistance', those countries do not prohibit them from so registering.
It is one thing not to require dual registration. But to prohibit it is very
different and [will] bring disastrous consequences...[11]
2.17
In its submission, the Law Council of Australia stated that migration
law was the only area of legal practice subject to two different regulatory
regimes. The consequences of dual regulation included 'the uncertainties and
compliance burdens of two separate legislative regimes' that amounted to
'differences in law, regulatory policies, practices and procedures...applying to
the same area of legal practice'.[12]
The Law Council also highlighted uncertainty caused by dual regulation for
consumers about the type of immigration assistance provided by lawyers, where
to lodge complaints and what consumer protections and remedies were available.[13]
Impact on small businesses and potential
unemployment
2.18
Many submitters highlighted that the proposed amendments will most
affect migration agents who will soon graduate or have recently graduated from
a law degree and currently hold a restricted practising certificate requiring them
to be supervised until they have completed a specified level of supervised
legal practice. For example, one RMA with a restricted practising certificate
informed the committee:
If the Bill is passed in its current form...existing registered
migration agents who hold a practising certificate will need to choose: give up
the practising certificate to remain as an RMA, or de-register as a migration
agent to continue holding a practising certificate. This choice is not problematic
for the majority of lawyers...[but] is not so problem-free for lawyers who:
- are
RMAs and have been RMAs for a long time, building up their RMA business from
ground up; and
- hold
a restricted practising certificate, and [are] otherwise practising law (not
necessarily migration law) elsewhere; and
- would
have to give up their main source of income (RMA activities) should they
de-register as an RMA...[14]
2.19
Some submissions included personal accounts indicating that the proposed
bill would affect submitters' businesses and livelihood. The submitter above
wrote:
Personally, I am looking at the choice between giving up my
entire business just to retain my practising certificate, or to give up my
practising certificate (something that took years of hard work and personal
sacrifice to obtain) just so that I can continue to rely on my migration advice
business which is the main source of income for my family unit.[15]
2.20
Other submitters noted that the proposed bill could have devastating
effects on small migration businesses as well as the industry more generally.
One argued that:
...unless I'm willing to give up my practising certificate and
with it any chance of becoming an unrestricted lawyer, I will have to close my
business...the successful business I've worked night and day to build for the
last 5 years will be forced to close its doors. [The proposed bill] amounts to
a forced business closure for the RMA simply in order to be able to continue
doing [what] they are already legally able to do now.[16]
2.21
The flow-on effects, one submitter suggested, would lead to unemployment
for many employees in small migration agencies run by RMAs with restricted
practising certificates.[17]
2.22
Submissions indicated that the effect of the amendments would mean that
RMAs wishing to retain their restricted practising certificates would be forced
to close their established businesses until they held unrestricted practising
certificates. The reason for this is the requirement that lawyers not provide
legal advice as sole practitioners until they have completed a required period
of supervision under a lawyer with a full certificate.
2.23
Several submitters noted that if RMAs did choose to retain their unrestricted
practising certificates while maintaining their registration as migration
agents, large law firms could benefit to the detriment of smaller businesses.[18]
These submitters were concerned that they would have to find a law firm willing
to take them and their clients so that they could fulfil the supervision
requirements of their restricted practising certificates while continuing to
practice in the field of migration advice. This, they argued, would mean not
only the end of their livelihoods, but also cause some inconvenience to their
clients. One submitter said that this would mean handing over clients to law
firms and '[hoping] that that law firm would employ me and not dismiss me
shortly after'.[19]
2.24
The Law Council of Australia noted the concerns raised about the impact
the bill could have on migration agents who hold a restricted practising
certificate, and suggested that 'provision be made for a transitional period,
of 2 years, to enable these affected migration agents to complete the steps
required by their legal profession regulatory bodies'.[20]
2.25
Other submitters argued that if a transition period is implemented, it
should be greater than two years to take into account current law students who
do not yet have a restricted practising certificate, as well as the individual
circumstances of RMAs that may prevent them from completing the required
supervision within two years.[21]
2.26
The Department's submission stated that the proposed amendments would
commence on 1 July 2018. In this, it emphasised that '[t]he Department will
work closely with the legal profession regulators to ensure that the transition
is well managed'.[22]
It also underlined the fact that 'a high level of regulation imposes
unnecessary costs, damages productivity, deters investment and undermines job
growth' more broadly.[23]
Loss of expertise
2.27
A significant number of submissions argued that the proposed amendments
could lead to a loss of expertise in migration agencies, the broader migration
agent community and the legal profession.
2.28
The committee received several submissions arguing that the bill could
lead to a loss of legal expertise or legal aid funded services in large,
non-legal migration agencies because lawyers would seek employment elsewhere.
For example, the Migration Institute of Australia stated that:
It is common for large migration practices to not be legal
practices within the definition of a 'qualified entity'. Many of these
non-legal migration practices and the lawyers they employ provide pro bono or
legal aid funded services to migrants...Many of these non-legal migration
practices provide services on a subsidised basis under government fee for
service contracts... If these service provider non-legal migration practices
are unable to continue to employ lawyers to undertake this work, there will be
significant cost implications for the funding of these services... [T]he cost to
the government of briefing new advisers will be substantial. These contracts
will potentially need to be renegotiated by the service providers...[24]
2.29
A further argument put forward in opposition to the ban on dual
registration was that the migration agent community as a whole would suffer from
the loss of legal expertise in its forums and activities.[25]
2.30
Other submitters suggested that a law degree would not be sufficient
training for lawyers providing immigration assistance, unlike the existing postgraduate
training in migration law required for migration agents. For example, one
submitter put forward the opinion that:
this amendment seems to be in direct contradiction to
increasing the entry requirements to be a Registered Migration Agent. On the
one hand the qualification is being increased from a six (6) month Graduate
Certificate to a twelve (12) month Graduate Diploma with a proposed compulsory
placement component and restricted practicing period of two (2) years. Then on
the other hand this amendment would allow any lawyer with a practicing
certificate, who could have no formal training or experience in immigration law
and practice, to be able to provide immigration assistance...[A]llowing the
holder of a practicing certificate to provide both immigration legal assistance
and immigration assistance without any further training or registration will
undermine these changes, and the professions as a whole.[26]
2.31
The Migration Institute of Australia agreed with this observation,
arguing that 'an RMA who has successfully completed the postgraduate Certificate
is better equipped to advise on migration law than many lawyers'.[27]
2.32
On the other hand, the Law Council of Australia submitted that:
The Law Council is not aware of any evidence of demonstrated
deficiencies in legal knowledge or practice competencies among legal
practitioners practising in migration assistance, to suggest that the current
requirements for admission to the legal profession and legal practice, and the
options for ongoing professional development, should no longer be regarded as
sufficient to provide immigration assistance. We note also that under the
present [Migration Agents] Regulations the holder of a legal practising
certificate is not required to undertake further migration-related continuing
professional development prior to applying for repeat registration as a
migration agent...Further, it would, in the Law Council's view, be an odd outcome
if holding a legal practising certificate were to be regarded as inadequate for
providing immigration assistance, but would be adequate for other forms of
legal assistance and representation in migration law matters.[28]
2.33
In addition, the Department was of the opinion that:
...while immigration law is complex, lawyers operate in many
highly complex areas with the knowledge that if they are negligent or unprofessional,
they will be subject to some of the strictest and harshest disciplinary
procedures and professional sanctions in the country...Lawyers with practising
certificates intending to practice in the migration advice field will be able
to access educational offerings to increase their knowledge.[29]
2.34
The Department also highlighted the suitability requirements for lawyers
for admission, granting and renewal of legal practising certificates, and the
period of supervised practice and continuing professional development programs
that lawyers must complete.[30]
Migration agents 'punished' for
upgrading their skills
2.35
Several submitters expressed the opinion that the proposed amendments
would have the effect of 'punishing' migration agents who chose to pursue a law
degree to increase the knowledge and skills that they offered their clients.
For example, one suggested that RMAs who had chosen to 'upgrade' their legal
knowledge and then obtained a restricted practising certificate could end up
being 'downgraded' because they could no longer practice law if they wanted to
remain RMAs.[31]
Confusion for clients
2.36
The committee received submissions that the proposed amendments would
result in confusion for many clients of migration agents.[32]
In particular, submitters drew attention to the fact that the OMARA Register of
Agents 'provides information about an agent's years of experience and if they
hold a legal practicing certificate'.[33]
2.37
A number of submitters considered that the fact that lawyers
would no longer hold a Migration Agents Registration Number (MARN) could cause
some confusion, as the first two digits of this number allow clients to:
...easily infer how much experience RMAs have based on their
MARN...Clients would no longer be able to easily ascertain how many years of
practise in migration law a lawyer has. That is not in the best interests of
clients.[34]
2.38
Some submitters highlighted that because legal practitioners will no
longer have their services listed on the OMARA website, it will be difficult
for potential clients to find them, particularly because the agency in the past
had emphasised that only the services of migration agents registered with the
OMARA should be used.[35]
One RMA and solicitor practising as migration agent in Sri Lanka noted that:
...outside Australia, the significant amount of problems
associated with lawyers and professionals who are not registered as migration
agents and yet practice migration law has resulted in distrust and suspicion in
relation to migration services provided by anyone who is not a registered
migration agent.[36]
2.39
However, the Law Council of Australia was of the opinion that the
current system of 'dual regulation of the legal profession...[is] a source of
confusion and uncertainty' for lawyers' clients.[37]
2.40
The Department provided reassurances in its submission that 'the
OMARA...will offer a comprehensive communication strategy so that consumers
understand that migration advice can also be obtained from practising lawyers'.[38]
Sanctioned and barred migration agents
2.41
The committee received evidence arguing that the bill would potentially
allow some lawyers who have been banned from practising as migration agents by
the OMARA to resume offering migration advice.[39]
2.42
The Migration Institute of Australia asserted that 'Lawyers have been
allowed to continue practising by their law societies even after being banned
by the OMARA for providing fraudulent migration advice or breaches of fiduciary
duties'.[40]
2.43
However, the Law Council provided evidence that there have been
significant reforms to legal profession legislation that 'have substantially
strengthened protections and remedies for consumers of legal services'.[41]
2.44
Additionally, the Department declared that:
...the Government recognises that deregulation should not be
prioritised over the maintenance of important consumer protections. In the
implementation of this change, the Government will ensure that appropriate
consumer protections are in place, including mechanisms to ensure that
vulnerable consumers will continue to be protected from receiving incompetent
migration advice.[42]
2.45
The Department also highlighted the 'broader range of powers' of legal
professional and disciplinary bodies and the statutory schemes underpinning
them that lawyers would be subject to, including 'penalties outside of the
OMARA's existing jurisdiction'.[43]
Potential constitutional challenges
2.46
The committee received a supplementary submission containing legal advice,
including from a QC, arguing that the proposed amendments affecting RMAs with
restricted practising certificates could present constitutional issues:
While not completely free from doubt, we are of the view that
the Bill effectively burdens communication on governmental or political
matters...
[A] question arises as to the means being used to achieve the
identified objects and whether those means adversely impinge on the functioning
of the system of representative government and are therefore incompatible in
the relevant sense...
The means being used is deregistration of migration agents
who become Australian legal practitioners. The effect of the chosen means is to
restrict a class of communications (including communications made to the
Minister) by those previously registered migration agents, who can no longer
provide unsupervised immigration assistance outside the legal practice in which
they are employed. Previous clients may also be left without advice and
assistance from their former agent in this regard...
[T]he means adopted to achieve [the ends of the RMA bill] may
give rise to a risk of incompatibility with the system of representative
government that is protected by the implied freedom...
In our view, the Bill may face difficulties in passing the
proportionality stage of the analysis.[44]
2.47
The advice concluded that the Bill could be constitutionally invalid:
We consider that there is at least an appreciable risk that
the Bill, if enacted, may be constitutionally invalid as infringing the implied
freedom. We consider that the Bill would be less susceptible of challenge if it
permitted Australian legal practitioners (or at least those who hold a
restricted practising certificate) the option of continuing to be registered as
migration agents.[45]
2.48
The committee includes this evidence in its report for the information
of the Department.
Committee view
2.49
The committee has limited its comments to the proposed amendments to Schedule
1 of the RMA bill. This approach was taken because submissions did not directly
address the other schedules of the RMA bill or the proposed amendments outlined
in the MARACA bill.
2.50
The committee notes that the RMA bill in its current form could impact migration
agents with restricted practising certificates, and recognises that many
submitters put forward suggestions to alleviate this impact. These included
that lawyers be allowed to voluntarily register with OMARA as in other
countries and fields of employment; lawyers holding restricted practising
certificates be allowed to simultaneously register as migration agents until
such time as they are granted a full practising certificate; or that a
transitional period of two or more years be provided for those RMAs who currently
hold restricted practising certificates.
2.51
The committee understands that the Government took the relatively
unusual step of circulating an exposure draft of Schedule 1 to key stakeholders
for feedback, including the Law Council of Australia, the Migration Institute
of Australia, and state and territory legal professional bodies. The Department
stated that feedback from this extensive consultation process was used to draft
the final version of the bill. The Assistant Minister has also provided
assurances that the feedback from these organisations will be used to facilitate
a smooth transition of lawyers from the OMARA regulatory scheme.
2.52
The committee also notes the Department's assurances that the Government
will implement consumer protection measures to protect clients affected by the
proposed amendments, and that the Department will employ a communication
strategy to inform clients of the changes.
2.53
Nonetheless, the committee is mindful of the difficulties that the RMA
bill would impose on RMAs with restricted practicing certificates who want to
work towards obtaining their full unrestricted legal practicing certificates,
by effectively forcing them to close their businesses and lose their
livelihoods in the short-term.
2.54
Given this, the committee suggests that the Government should consider
implementing a formal transition period of two years for this group, so that
RMAs who hold a restricted practising certificate are able to meet the
requirements to obtain unrestricted practicing certificates while running their
current businesses.
2.55
On balance, the committee considers that the bills will satisfy the
relevant recommendations of the OMARA Review, contribute considerably to the
deregulation of the migration advice industry and reduce the administrative
burden of dual regulation on lawyers practising in the field of immigration
assistance.
Recommendation 1
2.56
The committee recommends that the Government consider implementing a
formal transition period of two years from the commencement of the bill for
registered migration agents currently holding restricted practising
certificates, who wish to complete their supervised training and obtain an
unrestricted practising certificate.
Recommendation 2
2.57
The committee recommends that the bills be passed.
Senator David Fawcett
Chair
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