Proctor : October 2018
13 PROCTOR | October 2018 Whilst there remains a shortage of lawyers holding practising certificates who are registered as registered migration agents, it is not expected that there will be a raft of lawyers entering this practice space after 21 November 2018 due to its highly specialised and complex nature. While opening the area of practice to the whole profession is ultimately a welcome development, it is important to note that any practitioner considering entering the immigration practice space should consider specialisation and needs to be suitably armed with a knowledge base to allow effective, meaningful and prudential practice in this often difficult and highly politicised area of administrative law. To that end, immigration law is an expansive but ever-changing system of law governed on a primary basis by the Act as well as the Migration Regulations 1994 (Cth) which, in terms of its sheer volume and complexity, can arguably be compared with that of federal taxation laws. Beneath the primary pieces of legislation also sit a significant body of legislative instruments and secondary pieces of legislation, as well as policy and judicial authorities, all of which govern administrative decision-making. Despite this complexity, the jurisdiction offers practitioners an ability to work in an area of practice which, although at times emotional, still creates huge value to clients’ lives and separately interfaces quite heavily with other areas of practice including family and commercial law and, most significantly due to the current political climate, that of criminal law. The opportunity to practise migration law will be open to all legal practitioners under proposed changes to the Migration Act 1958. Report by Glenn Ferguson AM and Richard Timpson. general prohibition on a person who is not a registered migration agent from providing “immigration assistance” as defined.1 Whilst Section 280(3) expressly did not prohibit a lawyer from giving “immigration legal assistance”, 2 the extent of that definition only carved out a limited exemption for lawyers from obtaining registration – where the extent of their assistance effectively involved judicial review proceedings relating to an immigration law decision.3 The exemption in question did not allow such lawyers to undertake or engage in a primary immigration law application, such as a visa application or visa cancellation action.4 By extension, Section 281 of the Act has continued to operate in tandem with Section 280 and, contains a restriction on charging fees for the provision of “immigration assistance” if the person is not a registered migration agent.5 The effect of the Bill The Bill if/when passed, will amend the Act to, amongst other things, remove lawyers from the current regulatory scheme, such that they will not be able to register with the Migration Agents Registration Authority. The amendments will also allow eligible restricted legal practitioners to continue to be both registered migration agents and registered legal practitioners for a period of up to two years after commencement. This will effectively afford the opportunity to complete a supervised legal practice period, required for the grant of an unrestricted practising certificate. Commentary Since 1992, and for the next quarter of a century or so, the dual-regulation model imposed by Part 3 of the Act was viewed by many as being unnecessary and an effective barrier to entry, requiring lawyers to pay registration fees and also hold themselves out as registered migration agents. This has been particularly so where the legal profession has become, on any view, highly regulated with in-depth and comprehensive complaints-handling measures as well as client protections, which are arguably far more extensive than those available under the Act. In that respect, following significant lobbying over the period since 1992 and an emerging bi-partisan political view that the current scheme needed to exempt lawyers from its operation, the Federal Government in 2017 introduced the Bill – after several years of indicating it would do so. This Bill, as outlined, will operate to cease the requirement of dual regulation such that, moving forward, a lawyer practising in the space of immigration law will not be required to be registered as a registered migration agent. Immigration law Glenn Ferguson AM is the Managing Director of FC Lawyers and Richard Timpson is the Director and Principal Lawyer of Timpson Immigration Lawyers. Both are QLS Accredited Specialists in Immigration Law. Notes 1 Migration Act 1958 (Cth) ss276, 280. 2 Ibid s280(3). 3 Ibid s277. 4 Ibid. 5 Ibid s281.