Immigration News

Dual Regulation of Lawyers

Thursday, February 03, 2011
The following is the content of a letter by IARC to the Editor of the NSW Law Society Journal in repsonse to an article published in the December 2010 issue entitled “Lawyers and the law undermined by Dual Regulation”

We read with interest your article on dual regulation for immigration lawyers, (“Lawyers and the law undermined by dual regulation”, LSJ December 2010). The Immigration Advice and Rights Centre (IARC) endorses several of the concerns raised in the article. We’d like to specifically comment on two issues: vulnerable clients with complex cases getting assistance from registered migration agents (RMA) who have no previous qualifications and experience in the practise of black-letter law; and  the failure as yet of the Department of Immigration and Citizenship (DIAC) to indicate any intention to implement the recommendation of the Productivity Commission to abolish dual regulation. 

As an organisation that helps many financially disadvantaged and otherwise vulnerable people with their immigration problems, we can attest to the fact that a number of our clients who have previously sought advice from non-lawyer RMAs have had their cases disadvantaged because the RMA did not appear to have properly considered all the legal issues and, in some cases, did not know what the relevant legal issues were, because they fell outside the usual parameters of the migration law and extended to areas such as administrative law, equitable and common law principles, etc.

Like views have also been noted by the judiciary, such as in the recent SZOOW case, in which Federal Magistrate Driver put the view that applications for a valid protection visa should be made through a registered migration agent who is a legal practitioner. Problems often resulted, he said, from “ineffective assistance being provided by registered migration agents who are not legal practitioners and who appear not to have an adequate understanding of their professional obligations”.

This is not intended as a general criticism of non-lawyer migration agents per se; indeed many are extremely professional, altruistic and hard working people. The point is simply that the way in which “immigration assistance” is defined in the Act does include matters that require the expertise of a legal practitioner.

In relation to the second point, a submission to the Productivity Commission from the Law Council of Australia (LCA) argued that dual regulation is an “unnecessary and costly burden” that creates “a major disincentive for lawyers to practise migration law and has perverse effects for consumers”. Some of the perverse effects were touched upon in your article.

It is important to note that the overwhelming majority of submissions received by the Commission’s draft report on this issue were supportive of the LCA’s argument and the Commissions’ recommendation to abolish dual regulation. 

The DIAC has not yet indicated an intention to implement that recommendation, mainly due to its perceived need for consumer protection. The DIAC argued that consumers who receive immigration assistance from lawyers who are not registered migration agents have no regulatory complaints mechanism to protect them, claiming that “... the Office of the Legal Services Commissioner (NSW) (NSW OLSC) does not consider immigration assistance to be within its remit”.

In its submission to the Productivity Commission, the OLSC was quick to clarify this misconception, saying it was not in favour of dual regulation and was “strongly of the belief that all legal practitioners in NSW, including legal practitioners performing migration agent work, should be regulated by the OLSC and the professional associations”.

In the result, the Productivity Commission concluded that there “appears to be an absence of firm evidence to support the position that an exemption of lawyer migration agents from the Migration Agents’ Registration Scheme would be likely to result in reduced protection for clients of those agents”.

We hold high hopes that the DIAC will take the necessary step to abolish dual regulation of lawyers, such that the taxpayer funded report by the Productivity Commission and all the time invested by the various stakeholders is not in vain.

Yours sincerely

Mark Papallo                                                                Chris Yuen
Chief Executive Officer                                                Principal Solicitor






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