Senate Considering Migration Amendment (Regulation of Migration Agents) Bill 2019

The Migration Amendment (Regulation of Migration Agents) Bill 2019 (Cth) (‘the Bill’) was initially introduced to the House of Representatives on 27 November 2019 by the Hon Jason Wood, the Assistant Minister for Customs, Community Safety and Multicultural Affairs. After the Bill was referred to the Senate Legal and Constitutional Affairs Legislation Committee, the House of Representatives passed the Bill. The Bill was introduced to the Senate on 13 February 2020.

Purpose of the Bill and the Current Regulatory Scheme

The Bill proposes to remove dual regulation of migration lawyers under the Migration Act 1958 (Cth) (‘the Migration Act’) and according to the Minister’s Second Reading Speech, “streamline the operation of the migration advice industry”.  The purpose of the Bill is to remove expense, inefficiency, redundancy and confusion for consumers as well as improve access to justice and generally enable more lawyers to provide immigration assistance.

Under the current scheme, a practicing Australian immigration lawyer must register with the Migration Agents Registration Authority (MARA) in order to become a ‘registered migration agent’. Without this qualification, immigration lawyers are effectively restricted from providing ‘immigration assistance’ which principally involves preparing, advising and representing clients on visa applications and cancellation review applications. However, the Migration Act does not preclude unregistered immigration lawyers from providing ‘immigration legal assistance’ which is distinct from ‘immigration assistance’ and is described by the Bill’s Digest as “essentially (…) providing assistance in relation to litigious immigration matters before a court”. It is important to note that migration agents are not required to be immigration lawyers and the qualifications for the two roles are entirely separate.

The 2014 Kendall Review reported that immigration lawyers who intend to provide ‘immigration advice’ must maintain their dual status as a migrant agent and as a legal practitioner and are therefore subject to two sets of annual registration fees and two sets of practice and conduct requirements. The Review also identified the general confusion in the current scheme in the difficulty of establishing a threshold test demarcating ‘immigration assistance’ and ‘immigration legal assistance’ and in the overlapping and competing jurisdictions of the MARA and the relevant state of territory legal services regulator regarding immigration lawyers acting as migration agents.

Proposed Amendments

The Bill’s proposed amendments mainly concern Part 3 of the Migration Act which pertains to the regulatory scheme involving migration agents; however certain amendments more generally pertain to clarifying and improving efficiency and coherence. The Bill’s amendments are contained in the six schedules of the Bill:

• Schedule 1 proposes to introduce a distinction between a ‘restricted legal practitioner’ and an ‘unrestricted legal practitioner’. A restricted legal practitioner is to be defined as a lawyer with a practicing certificate who is subject to a condition requiring the practitioner to undertake supervised legal practice for a specified period. If a lawyer is not subject such a condition, they will be considered an unrestricted legal practitioner and will not be required to register as migration agents through MARA. For restricted legal practitioners, the Bill proposes a 2 year eligibility period where they may be registered as a migration agent which will provide the sufficient time to satisfy required period of supervised legal practice and qualify for an unrestricted practicing certificate. Subsequent to certification, restricted legal practitioners will also be removed from the regulatory scheme and will be regulated entirely by their relevant state or territory legal professional body.
• Schedule 2 concerns amendments to the re-registration process. Under the current regulatory scheme, in order to re-register as a migration agent and be exempt from certain entry qualifications, an applicant must re-register within 12 months of their previous registration expiring. In Schedule 2, the re-registration period is proposed to be set out in delegated legislation instead.
•  Schedule 3 removes redundant regulatory provisions related to the MARA now being a part of the Department of Home Affairs. Notably, the Scrutiny of Bills Committee requested the Minister’s advice to clarify the scope and purpose of item 16 which allows for the minister to “delegate any of the powers or functions given to the Migration Agents Registration Authority to APS (Australian Public Service) employees at any level”.
• Schedule 4 contains a single provision which resolves what the Bill’s Digest refers to as “an anomaly” in the regulatory scheme. Currently, if an applicant refuses to oblige in providing further information to the MARA by making a statutory declaration or appearing before designated individuals, the Migration Act precludes the MARA from considering an application but not from refusing the application altogether. The result has been an increase in outstanding applications which Schedule 4 proposes to resolve by conferring the power to refuse such applications to the MARA.
• Schedule 5 requires migration agents to notify the MARA if they have paid the non-commercial application charge but have commenced giving immigration advice otherwise than on a non-commercial basis. Schedule 5 largely pertains to the Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019 which was introduced at the same time as the Bill.
• Schedule 6 includes under the definitions of ‘immigration assistance’ and ‘immigration representations’ conduct assisting a person in relation to a request to the Minister to revoke a character-related visa refusal or cancellation. This amendment is intended to establish that this kind of assistance is exclusively designated to registered migration agents and immigration lawyers exempt from registration as migration agents.

Response

As outlined by the Bill Digest, the response to proposed amendments to the regulatory scheme has been mixed from major interest groups. The Law Council of Australia has strongly supported the Bill with Law Council President Arthur Moses SC stating that the Bill will resolve dual regulation as “source of confusion for consumers, who may be uncertain about the differences between immigration lawyers and migration agents”.  Alternately, a 2017 Bill with a similar objective to remove dual regulation was criticised by the Migration Institute of Australia which stated that the additional qualifications, training and continuing professional development required for registered migration agents were necessary in providing consumer protection and quality migration services.

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Migration Amendment (Regulation of Migration Agents) Bill 2019, second reading speech, bill's digest and explanatory memorandum available from TimeBase's LawOne Service.

Removal of dual regulation to reduce costs for consumers (Law Council of Australia, 27 November 2019)