Matt Keogh (Burt, Australian Labor Party) Share this | Link to this | Hansard source

The Migration Amendment (Regulation of Migration Agents) Bill and cognate bill aim to amend the Migration Act 1958 to eliminate the requirement, in part, for lawyers to be registered as migration agents in order to provide immigration advice. People seeking help from a migration agent in Australia are by nature usually vulnerable consumers, often seeking assistance with an application to reunite with family, help to process a humanitarian visa or assistance to take up a job offer in Australia, or to visit for extended periods of time, all of which are complicated and difficult. It is a difficult system to navigate, no matter what a person's background. It is, of course, important that Australia's migration program have integrity—(Quorum formed)and operate in a non-discriminatory way, and that the people who are offering migration advice act in the best interests of their clients and within a proper legal framework.

For a long time, though, legal practitioners of migration law have had to be regulated separately as migration agents under the federal Migration Act if providing immigration assistance, in addition to being regulated as legal practitioners under their relevant state or territory legal profession laws. Under the present scheme it is practically impossible for a legal practitioner advising on migration law issues to provide legal services in this area without also being compelled to be registered as a migration agent. Migration law is the only area of legal practice that is subject to these two separate regulatory regimes. However, the vast majority of migration agents, two-thirds, do not hold a legal practising certificate.

Under the current rules an agent can provide only immigration assistance, which is defined as being different from immigration legal assistance, which can be provided by migration agents who are also qualified as practising lawyers. This of course has raised a number of uncertainties, including whether immigration assistance is being provided as a legal service; whether the service provider is a migration assistant, who is authorised to provide only immigration assistance; whether advice on immigration law attracts legal professional privilege; how complaints are to be made and handled and, in particular, to which body; and the availability and nature of the relevant consumer protections. Consumers are also likely to pay more to cover the costs of practitioners complying with two separate regulatory frameworks and registration as a migration agent.

We note that the bill implements the recommendations of the review of the Office of the Migration Agents Registration Authority, which was conducted by the eminent Dr Christopher Kendall, now Judge Kendall. The review found that lawyers who hold a practising certificate should be removed from the regulatory scheme that regulates migration agents. The bill also extends the time period for registration after having completed a prescribed course in order to be registered as a migration agent and clarifies the definitions of immigration assistance and immigration representation.

This removal of dual regulation is fundamental. In fact, with a government that says that it is hell-bent on removing overregulation and red tape, given that this review occurred in 2014, one really does have to question why it is now 2018 and we are only just getting around to debating this legislation. Indeed, as I said, the barrister who conducted the review that led to this legislation has since been appointed not only to the AAT but also to the Federal Circuit Court, and , of course, I congratulate him for that.

It is important to note here that there has been, for a very long time, an overregulation where legal practitioners, who, along with doctors, probably, face one of the most stringent regulatory regimes and highest levels of professional obligation of any regulated profession, also had to be regulated through the Office of the Migration Agents Registration Authority. It is absolutely a good thing that this law removes that requirement for dual regulation. It's a good thing because it means that those seeking to access the assistance of migration agents will not have to pay for the cost a of dual regulation of this nature. It's a good thing because clarifying the definitions of immigration assistance and immigration representation, along with legal assistance, will provide clarity in relation to the types of work that can be done by a legal practitioner versus someone who is solely a migration agent. And it is also a good thing because it frees up the tens of thousands of lawyers in Australia who have not, until this point, been registered as migration agents to provide immigration assistance and advice on migration matters to a growing number of people in this country who require it. It is not an easy system to navigate, in particular, when it relates to multiple legal issues. It is important that lawyers are able to be engaged in this work and that we avoid the situation, as has frequently arisen, where lawyers providing advice to clients on other matters have had to refer them to an additional adviser, a migration agent, in order to assist with those migration related matters.

The bill also makes changes to repeal some redundant provisions and allow the Migration Agents Registration Authority the power to refuse an application to become a registered migration agent where the applicant has been required, but has failed, to provide information or answers to questions about their application. This is critical for maintaining the integrity of the registration system. The bill also requires migration agents who have been registered on a non-commercial basis to notify the Office of the Migration Agents Registration Authority if there is a change in circumstance where they've gone into providing immigration assistance on a commercial basis. This will complement amendments made to the legislation dealing with the rates of charge that can be made by a migration agent and makes the higher commercial charge the default charge that applies.

The OMARA review, as I said, was undertaken back in 2014. This government has said, and continues to maintain, that it is a government that is about removing superfluous red tape. Between our sides of politics, we may not always agree what is superfluous red tape, and often we see the deregulation of areas by this government in areas where those regulations actually make sense. But here, after a review that was conducted all the way back in 2014, four years later, we are now only just getting around to removing overregulation of the legal profession—already one of the most highly regulated professions in the country—to free them up to be able to get on with the good work of helping the many people in Australia and their families with the migration processes, in which it is always important to maintain, and operate with, a high level of integrity. I commend this legislation to the House.

Ross Hart (Bass, Australian Labor Party) Share this | Link to 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—

Kevin Andrews (Menzies, Liberal Party) Share this | Link to this | Hansard source

Yes, the member for Bass might resume his seat.

Alex Hawke (Mitchell, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Deputy Speaker, I just draw your attention to the standing orders about relevance in relation to the matters before the House.

Kevin Andrews (Menzies, Liberal Party) Share this | Link to this | Hansard source

I invite the honourable member for Bass to come back to the question before the chair.

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

I thank the member for his point of order. I was returning to the matter of substance. Without a permanent visa, this particular person cannot get full-time work in a specialised field or apply for a housing loan with her partner—

Kevin Andrews (Menzies, Liberal Party) Share this | Link to this | Hansard source

The honourable member for Bass is now ignoring the gentle invitation I gave him to come back to the question.

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

Thank you. Deputy Speaker, people seeking the help of a migration agent in Australia are by nature vulnerable consumers. The examples that I gave were examples of precisely that point. They are often seeking assistance from registered migration agents, and now they'll be able to seek the assistance of legal practitioners to deal with important life events, such as reuniting with their families, processing a humanitarian visa, taking up a job offer in Australia or visiting for an extended period of time. For this reason—and it is an important issue of public policy—it's vitally important that Australia's migration program has integrity. There's nothing to suggest that these amendments, which affect vital deregulation, affect the integrity of the process. The process continues to be non-discriminatory, and the persons that are offering migration advice are acting in the best interests of their client and within a proper and appropriate legal framework.

Alex Hawke (Mitchell, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

The government welcomes the opposition's support for the Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017, and I want to thank the shadow minister for his contribution to this important deregulation measure that the government is bringing forward in relation to the regulation of migration agents. The government has long supported the key outcome of this bill, which removes legal practitioners providing immigration advice from the dual regulation by the Migration Agents Registration Authority, known as the MARA, and their relevant law society. The bill is the final legislative step to implement the recommendations of the 2014 independent review, and the effect of this bill will be that relevant state and territory law societies will be the sole regulators for legal practitioners, reducing red tape and regulation for the profession, as members have noted.

The government have consulted extensively with the key stakeholders, and we've gone to the extraordinary step of providing an exposure draft to this sector, given that it does regulate lawyers. I would just note for members who raised concerns about delays that there is a purpose for the delay sometimes. An exposure draft is a proper process that does delay a final bill, but it has led us, of course, to the point where the government will bring forward amendments to this bill to recognise that a small cohort of registered migration agents who hold restricted legal practising certificates can experience difficulty with their practice if they're automatically removed by this bill and the changes when the legislation commences. I want to speak to that for a moment—on the amendment that the government will bring forward. The government's amendments implement the recommendations of the Senate Legal and Constitutional Affairs Legislation Committee, but the exposure draft process allowed us to really workshop a viable solution with the transitional arrangements that will address the disparity in the length of time between various state jurisdictions for legal practitioners. We're pleased to have been able to work closely with the sector and listen to the concerns of people that are caught up by what is a deregulation measure but that has an unintended consequence on particular businesses and people who've been in business for some time and are respected members of the migration profession.

The government amendments and the removal of restricted legal practitioners from registration with the MARA may have meant that these practitioners may have had to secure supervision as an unrestricted legal practitioner. The amended bill will address the possibly difficulties with this small cohort. While it is small, it's important to get these things right and not unfairly impact individuals with our legislative changes. The situation differs from that of lawyers with unrestricted practising certificates, and the government amendments will propose a two-year transitional period up to a maximum of four years to cover the disparity in state jurisdictions for restricted legal practitioners to remain registered migration agents with the MARA during this period. This will provide all individuals with the necessary time, and more time than necessary in some cases, to complete steps to become unrestricted legal practitioners.

Once the individuals have an unrestricted legal practising certificate, they will no longer remain registered with the MARA. The MARA will notify restricted legal practitioners of the two-year period. Restricted legal practitioners who wish to seek the benefit of a further two years, extending to four years, as registered migration agents with the MARA must apply in writing. If there is a reasonable basis to extend the transitional period, the MARA will do so for an additional two years. Should these restricted legal practitioners fail to notify the MARA of their intention to remained registered migration agents for an additional two years, the MARA will automatically remove them from the register of migration agents when the legislation commences. We've had many years of consultation, and the government is announcing that we will do that up-front, and we will work with the sector, but the intention of this legislation is clear. The intention of the amendments the government is bringing forward is to allow for a transitional arrangement, not to undermine or get around this important change the parliament is making.

For restricted legal practitioners who choose to remain registered with the MARA, the additional two-year period will provide them with the time necessary to make a considered decision about their future business arrangements. It will fulfil the requirements to satisfy the grant of an unrestricted practising certificate by the relevant Law Society. And it's just good practice when we're making law that affects existing business to allow transitional arrangements so that people can restructure their business models and make a decision that is in their best interests and their clients' and customers' best interests and that is a reasonable outcome.

There will be a new category of eligible restricted legal practitioners. There may be registered migration agents in the future who are currently studying their law degrees or who are planning to do so in the future. There may also be people currently training to become lawyers or planning to do so in the future with the intention of becoming a registered migration agent. To assist aspirational individuals in this regard, the government amendments facilitate eligible restricted legal practitioners, namely those who have held a restricted practising certificate for less than two years. Such eligible restricted legal practitioners will be able to apply for registration as a migration agent during their eligibility period, which is up to two years after receipt of their restricted legal practising certificate. When their eligibility period to be a registered migration agent ends, those restricted legal practitioners will be able to apply for a further extension of up to two years. As I have mentioned, this transitional arrangement will, we think, cover all of the contingencies out there and be fair to people who are seeking to practise in either field. I recommend the bill to the House.

Question agreed to.

Bill read a second time.