Under the Migration Act 1958, lawyers specialising in this area must hold a practising certificate but also register as migration agents, effectively bringing them under two separate regulatory regimes.
In an independent report into the operation of the Office of Migration Agents Registration Authority (OMARA), its author, Christopher Kendall, recommended changing the legislation so lawyers cannot register as migration agents and are regulated only their own professional bodies.
In introducing the report last Friday (8 May), Assistant Minister for Immigration and Border Protection Michaelia Cash announced the federal government will implement this recommendation, with 23 others contained in the report.
“Lawyers are already subject to one of the strictest regulatory regimes of any profession,” Senator Cash said.
The Law Council of Australia (LCA), a major critic of the dual regulation system, welcomed the government's endorsement.
“The Law Council has always maintained that dual regulation of migration lawyers is an avoidable burden to governments, the community and the profession,” Law Council president Duncan McConnel said. “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.”
The proposal was previously considered by the 2007-08 Hodges Report, a review of the “statutory self-regulation of the migration advice profession”, where reviewer John Hodges ultimately recommended maintaining the status quo.
Two years later the Productivity Commission examined the issue and concluded an exemption should be granted to lawyers holding practising certificates.
In the latest review, the LCA argued strenuously in favour of the proposal, alongside Ernst & Young, the Law Institute of Victoria, Hall & Wilcox Lawyers and the Queensland Legal Services Commission.
However, the recommendation was opposed in a submission by the Migration Institute of Australia, which argued all migration advice providers should be subject to the same standards.
“There is also a need to ensure consistency in terms of consumer protection for the public when they are receiving advice on immigration matters, whether it be from lawyer or non-lawyer registered migration agents,” the institute wrote.
The Kendall Report notes lawyers make up 33.8 per cent of all registered migration agents.