Ross Hart (Bass, Australian Labor Party) Share this | Hansard source

What we have before us today is an omnibus package of reforms aimed at deregulating, to some degree, the migration advice industry. The Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017 amends the Migration Act 1958 in several ways.

A key change is that it removes the requirement for lawyers who hold practising certificates to register as a migration agent when providing immigration advice to their client, with the stated aim of lessening the regulatory burden placed upon these practitioners. The bill also removes the 12-month time limit in which a person must apply for registration following completion of a prescribed course, complementing changes that replace a graduate certificate with a graduate diploma in Australian migration law and practice, together with the development of a capstone exam. It also ensures that the definitions of 'immigration assistance' and 'immigration representation' include assisting a person in relation to a request to the minister to exercise the minister's power under section 501C or 501CA of the Migration Act to revoke a character related visa refusal or cancellation decision.

The reforms also amend the Migration Agents Registration Application Charge Act 1997 to make changes to reflect the policy intent that the higher commercial rate of charge should be the default charge payable for any application for registration as a migration agent, unless, of course, the applicant can demonstrate that they are eligible to pay the lesser non-commercial charge. The non-commercial charge will be available when the migration agent gives assistance solely as a member of or a person associated with an organisation that operates in Australia solely as a charity or for the benefit of the Australian community. Of course we are familiar with many organisations that operate within our communities that fulfil this very important function. This will also ensure that only those agents who are providing genuinely non-commercial immigration assistance to the most vulnerable members of our community can access the non-commercial registration charge.

The bill also implements several recommendations from the final report of the Independent Review of the Office of the Migration Agents Registration Authority, handed down in 2014 by Dr Christopher Kendall. The review was implemented in order to examine the performance of OMARA as the regulatory authority, its organisational capability and challenges, and the quality and effectiveness of its internal controls and governance. There were 24 recommendations made out of the review process, with a view to improving the integrity of the migration agents regulatory scheme and consumer outcomes.

I note with particular interest that, in speaking, I again follow the member for Burt, and both of us have served on the Law Council of Australia. I make particular note that the Law Council of Australia welcomed the recommendation to remove dual regulation for practising lawyers, stating:

… dual regulation of migration lawyers is an avoidable burden to governments, the community and the profession. The removal of dual regulation not only means a significant reduction in red tape, it will also contribute to better consumer protection and a stronger, united legal profession.

As a former practising lawyer I can understand the impracticality that has arisen for a practitioner who is advising on migration issues being subject to two separate schemes of regulation—in this instance, the legal profession regulatory framework and the migration agents registration scheme. I recall from many, many years ago, when this scheme was set up, the significant discussion around the tables of the state law societies and the Law Council of Australia about the necessity for this duplication of the scheme. There was some community opposition to this particular deregulation recommendation, however, with the Migration Institute of Australia arguing that everybody who provides migration advice should be subject to the same standards to ensure consumer protection for the public when they are receiving advice on immigration matters, whether it be from a lawyer or a non-lawyer registered migration agent.

Given that it's been some three years since the final report of the OMARA review was handed down, it was appropriate for the Senate to review this bill to allow stakeholders to provide further feedback. Labor referred the bills to the Legal and Constitutional Affairs Legislation Committee for a Senate inquiry, and the chair's report was received on 16 October 2017. A number of submissions to the committee highlighted the benefits that the proposed amendments could 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 separate OMARA disciplinary measures.

Both the Law Council of Australia and the Refugee Council of Australia welcomed the bill. The Refugee Council of Australia noted 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.

There were, I note, concerns raised through the committee process, mostly from registered migration agents, and these focused on the amendments in schedule 1 concerning the removal of lawyers from the OMARA regulatory scheme. I note that these key concerns were as follows: limited prior consultation, dual regulation existing in other fields and countries, the impact on small businesses and potential unemployment, the loss of expertise in a particularly complex area, migration agents being punished for upgrading their skills, confusion for clients, and lawyers formally sanctioned by OMARA potentially being able to provide migration advice, notwithstanding that sanction.

Ultimately, the Senate committee reported:

On balance … the bills … satisfy the relevant recommendations of the OMARA Review, contribute considerably to the deregulation of the migration advice industry and—

as a consequence—

reduce the administrative burden of dual regulation on lawyers practising in the field of immigration assistance.

They recommended:

… 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.

I'm very pleased to note that the Assistant Minister for Home Affairs has confirmed that the department is drafting options to amend the bill to reflect concerns raised in the Senate inquiry about the transition period for migration agents with restricted practising certificates. The shadow minister will continue to work with the assistant minister to agree on an appropriate transitional arrangement period and support a government amendment to this effect.

I note that those on the other side have indicated that this bill will streamline the operation of the migration advice industry as part of their strategy of deregulation, aiming to remove unnecessary red tape across industry sectors. Of course, as the member for Burt noted in his address, this is something that we should all hope proves to be the case. However, it's important for me to note that, in my conversations with constituents, I'm constantly hearing about processing delays and regulatory restrictions experienced by individuals trying to deal with the Department of Immigration and Border Protection on a variety of issues. Red tape and overreaching bureaucracy more often than not seem to be the order of the day, albeit sometimes the question of red tape appears to be in the eye of the beholder.

Recently, I made representations to the minister on behalf of a family who are waiting for a decision to be made on a permanent partner visa application. The applicant had been in Australia for three years on a temporary visa and applied for her permanent visa on the understanding that the application would be processed in around six months. The family were recently advised that, due to departmental delays, it would now be closer to 24 months before the application was even considered for processing. Now, I accept that it's appropriate for there to be inquiries into the background and security profile of applicants for visas and the like, but it's important that we consider the purpose of any particular process and adequately resource the department if there are significant delays.

In the context of the processing of visas within Tasmania, I note that the proposal is that this is to be outsourced. I know that my colleagues in the Labor caucus are certainly opposed to the outsourcing of important functions like visa processing—

Mr Hawke interjecting—

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