Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

As I said before the break, people who are offered migration advice, such as migration agents, must act in the best interests of their clients and within a legal framework. In June 2014 the then Abbott government commissioned an independent review of the Office of the Migration Agents Registration Authority, commonly known as OMARA, by Dr Christopher Kendall. The Office of the Migration Agents Registration Authority registers and regulates migration agents, who must be registered in order to provide immigration assistance services. In September 2014 Dr Kendall handed out his final report, a very comprehensive and well-considered report. It was titled Independent review of the Office of the Migration Agents Registration Authorityas I said, better known as OMARA, and it became known as the OMARA review. The review made 24 recommendations, and recommendation No. 1 stated:

The Inquiry recommends that lawyers be removed from the regulatory scheme that governs migration agents such that lawyers:

• cannot register as migration agents; and

• are entirely regulated by their own professional bodies.

The Migration Amendment (Regulation of Migration Agents) Bill 2017 gives effect to recommendation 1 of the OMARA review. This means that legal practitioners, commonly known as lawyers, will no longer be required to hold registration as a migration agent in order to provide immigration assistance to their clients.

The legal profession in Australia is already comprehensively regulated under state and territory regulatory laws and arrangements. As at 30 June 2017 a total of 7,006 people in Australia were registered as migration agents; 33 per cent, or 2,292 people, of the total number registered as migration agents have a legal practising certificate. This legislation will mean that these lawyers will no longer be subject to this dual registration, which the Law Council of Australia has described as 'unnecessary and costly' and 'a source of confusion and uncertainty for their clients'. Labor welcomes this provision and the fact that it gives effect to a recommendation of Dr Kendall.

In the typical fashion of the Abbott and, now, Turnbull governments, the OMARA review was handed down in 2014 and we're only seeing this legislation debated here in 2018. I don't know why it took the government so long to respond to Dr Kendall's review. These bills were first introduced on 21 June 2017 and we're debating them today. Given that it took the government such a long time to bring this legislation before the parliament, it was necessary, we thought, to refer the bills to a Senate inquiry to make sure the measures were still appropriate to the migration sector. This government has a very poor track record when it comes to clear, well-drafted legislation, particularly in the area of migration. Its reputation is even worse when it comes to consulting community groups, industry peak bodies and businesses that may be impacted by decisions of government and by legislation that's passed by this place. Because of this, Labor believes that usually it is appropriate to refer all amendments to the Migration Act to Senate inquiries, to ensure there are no unintended consequences and to allow stakeholders to have their say. That's our usual practice. 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. It made two recommendations. Recommendation 1 was:

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 was:

The committee recommends that the bills be passed.

Recommendation 1 came in response to concerns, I might add, raised during the Senate inquiry about the impacts on certain individuals who held restricted practising certificates and are registered as migration agents, and I understand the government will make some consequential amendments.

The now Assistant Minister for Home Affairs previously said the government would be amending the bill before the House 'to include a standing two-year transitionary period for migration agents upskilling to become legal practitioners'. This period, it's refreshing to see, is something that the government has considered and consulted with the community and listened to the Senate inquiry in relation to. It is not always common for the government to listen to Senate inquiries, I might add, and to act on their recommendations, but it's a sensible recommendation of the Senate inquiry and the government, to give it credit, has actually agreed to it. I raise the point that if the government had simply consulted in the first place, in relation to this issue, then the problem identified by the Senate inquiry may have been rectified and may never have required amending legislation.

As mentioned, the Migration Amendment (Regulation of Migration Agents) Bill implements the recommendations of the OMARA review. These recommendations fall under schedule 1 of the bill. I note the bill makes some changes to repeal redundant provisions which reference regulatory requirements and arrangements that are no longer in place and the bill allows the MARA, the Migration Agents Registration Authority, to refuse a person's application to become a registered migration agent where the applicant has failed to provide information or answer application questions, either by making a statutory declaration or appearing before the MARA. The bill extends the period of time for the registration of a migration agent after completing a prescribed course, removing the current 12-month time limit. This will complement changes to replace the current required graduate certificate with a Graduate Diploma in Australian Migration Law and Practice and the development of a capstone exam. Finally, there are some clarifications to the definitions of 'immigration assistance' and 'immigration representations'.

The Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill consists of simply one schedule, and the amendments in this bill will ensure that the higher commercial application charge should be the default charge payable for an application for registration as a migration agent. The charges are set out in one of the sections. These apply unless the applicant can demonstrate they're eligible to pay the lesser non-commercial charge.

The non-commercial charge will be available where 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 for the benefit of the Australian community, and we agree with that. That's a good thing. I note that schedule 5 requires migration agents who have been registered on a non-commercial basis to notify MARA if there is a change in circumstance and they have gone on to provide immigration assistance on a commercial basis. Again, that's a good thing.

Given the lapse of time between the OMARA review being handed down—as I said, we referred it to the Senate inquiry—the stakeholder feedback about the legislative change is worth noting. The Law Council provided support for the government's initiative, removing the significant dual registration of the legal profession. It's worth noting what the Law Council said for the purpose of the public examination of this issue.

The Law Council outlined in its submission:

The Australian legal profession is comprehensively regulated under robust State and Territory legal profession regulatory laws and arrangements, which include comprehensive complaint handling and disciplinary measures, and consumer protections more extensive than those available under the Migration Act 1958.

In its submission, the Law Council addressed concerns that if lawyers were removed from the migration agent's registration it would impact on the quality of service provided by those lawyers in relation to migration matters.

In highlighting the extensive tertiary and professional training lawyers must undertake, the Law Council stated:

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 …

The Refugee Council of Australia recommended the bills be passed also, welcoming the changes to dual registration. They stated in their submission to the Senate inquiry:

Lawyers are already required to maintain registration and uphold their ethical duties under their own state-based legal profession regulatory framework. RCOA believes this system is sufficient to ensure lawyers provide sound advice and adhere to their ethical obligations.

The Refugee Council highlighted the importance of lawyers being able to provide pro bono legal advice, stating:

The provision of legal support is essential for the rule of law and to ensure Australia makes the correct decision in matters such as refugee status determination.

As a former lawyer, I'm pleased to see this legislation being passed and the removal of registration barriers for lawyers wanting to offer pro bono migration assistance to visa applicants. Often those are very vulnerable people. I note that I had a meeting today with Community Legal Centres Queensland, and they also advocated the Law Council's position. I was pleased to advise them today that we would be supporting this legislation in the House. I think that's a good thing for pro bono advice in my home state of Queensland as well.

I understand and appreciate the concerns raised by the Migration Institute of Australia in their submission to the Senate inquiry. I've met with the Migration Institute of Australia on multiple occasions in my role as shadow minister for immigration and border protection. I was invited to speak at their annual conference in November last year. I thank the MIA for their ongoing advocacy for their members, both in their submission to the Senate inquiry and in the meetings I've held with them. I look forward to further consultation to ensure the ongoing integrity of Australia's migration system.

The former Department of Immigration and Border Protection—now the Department of Home Affairs—raised in its submission that the Australian Productivity Commission recommended that lawyers be exempt from registration as migration agents in 2010. Ceasing this dual registration will bring Australia in line with similar countries, which the department noted in their submission. International comparisons revealed that Canada, the United Kingdom and New Zealand, which have comparable schemes for migration agents, do not require lawyers to be registered in order to provide immigration advice. The department also provided assurances that these legislative changes will not undermine the protection of vulnerable people, saying:

… 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.

The Labor opposition will keep the government accountable in that regard. We encourage the Turnbull government to do everything it can to protect vulnerable consumers, especially would-be migrants, from being exploited.

In conclusion, it's fundamental that Australia's migration program has integrity and is nondiscriminatory, and that the people who offer migration advice are acting in the best interests of their clients and within the legal framework. For many prospective migrants, their experience with Australian migration agents is their first impression of Australia and its legal system and for that reason we need to ensure that we're getting it right. I do note that the Joint Standing Committee on Migration has launched an inquiry into the efficacy of current registration of Australian migration agents. I'm a member of that committee and I look forward to speaking with migration businesses and migration agents about their experiences. I encourage people to make submissions to that inquiry. We want to make sure we improve the current framework, and Labor is always available and prepared to look at improvements. The case for removing lawyers from the registration process made by Dr Kendall was, in my view, persuasive—an MR review. As such, Labor supports these bills and we look forward to the government's anticipated amendments to introducing transitional arrangements as recommended by the Labor-initiated Senate inquiry. I commend the bill to the House.

Debate adjourned