Kim Carr (Victoria, Australian Labor Party, Shadow Minister for Innovation, Industry, Science and Research) Share this | Link to this | Hansard source

Labor supports these bills, which will remove unnecessary restrictions on the migrant advisory industry and set the default charge for the services of agencies to give advice. It is important to stress, in Labor's view, the quality of service to migrants will not be diminished by these changes. People seeking the help of a migration agent are by nature vulnerable consumers and they are often seeking help with application to reunite with family or in the process of seeking a humanitarian visa or they want to take up a job in Australia or visit for an extended period of time. We are supporting these bills because, after a Senate inquiry and amendments were introduced into the House, the protection for vulnerable migrants will be retained. However, I note that this has taken a very long time to reach this point.

The bill arises from the recommendations of the independent review of the Office of the Migration Agents Registration Authority by Dr Christopher Kendall. The review, known as the OMARA review, was commissioned by the Abbott government in June 2014. Dr Kendall submitted his report in September 2014 yet the legislation was not introduced to the House of Representatives until July 2017, and here we are debating this matter in December 2018. Because of the government's poor record of drafting migration legislation, Labor referred the migration bill to the Senate inquiry as standard practice, and an inquiry was especially necessary in this case because the legislation did not appear until three years after the review that had given rise to it and it was important to consider whether changed circumstances would affect the OMARA recommendations. Unfortunately, the Turnbull government accepted the inquiry's recommendations to include the bill's transitional arrangement for migration agents who became legal practitioners. But we note—and not for the first time with regard to migration bills—that if the government had consulted stakeholders appropriately, in the first place, it could have got the legislation right the first time.

The bill is to implement the OMARA recommendations that lawyers who hold practising certificates shall be removed from the regulatory regime that governs migration agents. As the Law Council stated in its submission to the Senate inquiry:

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.

And this was supported by submissions by the Refugee Council, which urged that these bills be passed. The council stated:

Lawyers are already required to maintain registration and uphold their ethical duties under their own state based legal professional regulatory framework.

The Refugee Council of Australia believes:

… this system is sufficient to ensure lawyers provide sound advice to adhere to their ethical obligations.

Ending a dual registration requirement for lawyers brings Australia into line with other comparable countries—that is, the United Kingdom, Canada, New Zealand—which all have registration requirements for migration agents but do not require lawyers to be registered in order to provide migration advice. Under this bill, the existing 12-month limit for someone to apply for registration after completing a prescribed course is removed. This complements changes to replace the current graduate certificate with a Graduate Diploma in Australian Migration Law and Practice and the development of a Capstone exam.

The bill also gives the migration agents regulatory authority the power to refuse an application to become a registered migration agent where the applicant has been required to, but has failed to, provide information or answer questions about their application. The bill requires migration agents who have been registered on a non-commercial basis to notify the authority if they have undergone a change in circumstances and seek to provide migration assistance on a commercial basis. These changes complement amendments made by the complementary bill—the Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2017—and makes the higher commercial charge the default charge. Together, these changes make the migration advice industry less complex and more client friendly. Labor therefore is pleased to support the bill in the form now before the Senate.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Currently, it's illegal to provide immigration advice without being registered as a migration agent. The Migration Amendment (Regulation of Migration Agents) Bill 2018, however, seeks to change that. It is driven by an argument that lawyers, regardless of their professional or educational background, do not need to be regulated alongside specialist migration agents because their existing skills—and, therefore, the consumer protections—are comparable. The Greens do not believe this argument has any robust merit.

We've just had a situation in this Senate chamber where Labor has made migration policy by voting with people like Senator Hanson and her One Nation party, Senator Anning and the coalition, which, as we all know, has an agenda that is driven by its far Right. Of course, Labor chose to vote with all of those people to ensure that some migrants—recent arrivals in this country—would be denied access to parts of the social security safety net for four years. It was a piece of legislation that was incredibly punitive on migrants, who are one of the most vulnerable cohorts in our community. Why Labor would want to make migration policy with people like Senator Hanson and Senator Anning is actually for them to explain. It's worth reminding the chamber that, in fact, last week Senator Hanson rose to her feet and said she was very proud of the Labor Party for voting with her and Senator Anning and the coalition to do over migrants and make life more difficult for migrants in this country.

This piece of legislation deals with the regulation and registration of migration agents. Migration agents, of course, are at the front line of assisting many migrants to this country. We've got a situation in which post grad studies to become a migration agent currently include four specific migration law subjects, whereas most undergraduate law degrees in this country do not include any study of migration law. Yet lawyers are able to become registered as migration agents with the Office of the Migration Agents Registration Authority purely because they hold a legal practising certificate. As a consequence, you would think there is a strong argument that a registered migration agent who has successfully completed a post grad migration agent course is better equipped to advise on migration law than any lawyer, no matter how skilled they are, if those lawyers have not studied any specific migration law subjects. Migration agents are specialists in the field and also pay the $800 per annum to subscribe to LEGENDcom, which is an electronic database, administered by the Department of Home Affairs, of migration and citizenship legislation and policy documents. That database is continually being upgraded as migration law changes.

Migration agents are required to pay that fee per annum to subscribe to LEGENDcom, to support their education and to make sure they are up to date and are adequately trained and informed to prepare applications and submissions with the most up-to-date information. It has been put to me anecdotally that the database isn't well subscribed to by generalist lawyers doing migration work.

Registration of lawyers by the Office of the Migration Agents Registration Authority, OMARA, ensures that lawyers comply with the Migration Agents Registration Authority Code of Conduct, which requires migration practitioners to maintain the relevant specialist and up-to-date knowledge of migration law and processes. So the current system and regulation of agents includes robust complaint mechanisms and codes of conduct, which, when complaints are lodged, set off thorough investigations. These processes are customer focused to ensure the rights and needs of customers are paramount and protected. This is a particularly valuable safety net for vulnerable consumers of these kinds of advice.

The inclusion of lawyers in the migration regulation scheme is similar to an accountant who must undergo further studies if they want to be registered as a tax agent. To practice patents law, a lawyer must undertake further studies in the area before they are allowed to appear in a matter, and so it isn't an oddity that lawyers be required to demonstrate some migration law, or be required to keep up to date with migration law.

Of particular concern to me and to many in the industry is the provision of migration services to vulnerable people. On this matter, and in response to concerns from the legal fraternity regarding dual registration, the Migration Institute of Australia has noted:

Those who oppose dual regulation claim that the legal profession has sufficient complaint and disciplinary mechanisms to deal with professional incompetence or malfeasance. However, some law societies do not appear to have the same regard for migrant consumer protection as the OMARA.

OMARA, of course, is the Office of the Migration Agents Registration Authority. The Migration Institute of Australia continues:

Lawyers have been allowed to continue practicing by their law societies, even after being banned by the OMARA for providing fraudulent migration advice or breaches of fiduciary duties.

Let's be really clear about this: we have situations where lawyers have been allowed to continue practising by their law societies—the bodies that govern the behaviour of lawyers—even after those lawyers have been banned by the Office of the Migration Agents Registration Authority for providing fraudulent migration advice.

Fraudulent migration advice is not simply incompetent migration advice, it is a significant step past incompetent migration advice. It is actually fraudulent. The Office of the Migration Agents Registration Authority, on this advice from the Migration Institute of Australia, have at times banned lawyers. And yet, in those very same circumstances, lawyers have been allowed to continue practising by their law societies.

In addition to that there are legitimate concerns that this bill will lead to a loss of legal expertise or legal-aid-funded services in large non-legal migration agencies, including refugee services, because lawyers would seek employment elsewhere. The Migration Institute of Australia has warned, and I quote again from the Migrant Institute of Australia:

The removal of lawyers from the regulatory system will result in disastrous, unintended consequences for the [humanitarian migration] sector.