LSB September 2018_Web

two years of supervised practice as legal
practitioners. The effect of the Bill in
its current form is that such persons
would be faced with the choice of either
giving up their practising certificate, and
working as a migration agent solely, or
submit to a supervised practice. Many
submissions focused on the potential loss
of livelihood for such persons who had
started a business as a migration agent, had
never practised law, but did not want to
relinquish the practising certificate. Many
also referred to the difficulties experienced
in attempting to obtain employment as a
restricted solicitor.
To counter these difficulties, a two-year
transition period was recommended, to
allow persons with restricted practising
certificates sufficient time to be supervised
and apply for their restriction to be lifted,
before they would be prohibited from
being a migration agent.
Initially, the Department of Home
Affairs proposed the Bill to commence 1
July, 2018. This timeframe has now been
amended in the 2018 iteration of the Bill,
and 19 November, 2018 is the current
proposed commencement date. The Bill
has passed the House of Representatives,
and was read in the Senate on 8 May, 2018. 6
WHY DEREGULATE?
Practitioners currently operating under
the dual-regulation system must pay a
yearly registration fee to the MARA. They
must also ensure compliance with both
the Australian Solicitor Conduct Rules and
the Migration Agents Code of Conduct. A
client complaint could be issued to either
MARA or the Legal Profession Conduct
Commissioner.
Dual-regulation is, in the writer’s opinion,
unnecessarily confusing and costly.
Suggestions put forward by some that
lawyers commencing the practice of
migration law without any particular
training posed a risk to unsuspecting
clients were dismissed by the Law Council
and the Senate Committee.
There are some very good reasons why
clients should be aware of the difference
between choosing a lawyer and a migration
agent. For example, migration agents
can be compelled to provide to the
Department of Home Affairs information
or documents which the Minister
has reason to believe are relevant to
ascertaining the identity or whereabouts of
an unlawful non-citizen. 7 This provision
was found not to attach when the
information attracted legal professional
privilege by the Federal Court in the case
of Hamdan v Minister for Immigration &
Multicultural & Indigenous Affairs [2004]
FCA 1267. 8
For complex matters where litigation in
the Courts is a likely outcome in the future
(for example in character cancellation
matters), it may be prudent for a client
to engage a lawyer early, to ensure a
consistent strategy and approach. It is
important that clients be aware of what
their chosen representative can and cannot
do, depending on the path their matter
progresses upon, in order to make an
informed choice.
FUTURE OF THE MIGRATION INDUSTRY
At a time when our political leaders are
talking about conducting a review into
Australia’s entire migration program, and
the numbers of permanent migrants to
Australia have dropped significantly, it
seems change will continue to plague the
migration industry into the future. B
Endnotes
1 https://www.aph.gov.au/Parliamentary_
Business/Committees/Joint/Migration/
Migrationagentregulatio/Terms_of_Reference.
2 https://www.lawcouncil.asn.au/resources/
submissions/efficacy-of-current-regulation-ofaustralian-migration-agents.
3 https://www.lawcouncil.asn.au/resources/
submissions/supplementary-submission-efficacyof-regulation-of-australian-migration-agents.
4 https://www.aph.gov.au/Parliamentary_
Business/Bills_Legislation/bd/
bd1718a/18bd021.
5 https://www.lawcouncil.asn.au/media/mediareleases/recommendation-to-end-dual-regulationof-migration-lawyers-marks-a-win-for-access-tojustice.
6 https://www.aph.gov.au/Parliamentary_
Business/Bills_Legislation/Bills_Search_Results/
Result?bId=r5925.
7 Section 18, Migration Act 1958.
8 Decision affirmed in Minister for Immigration &
Multicultural & Indigenous Affairs v Hamdan [2005]
FCAFC 113.
September 2018 THE BULLETIN 19