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senate vote 2020-06-15#2
Edited by
mackay staff
on
2020-07-10 11:29:16
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Title
Bills — Migration Amendment (Regulation of Migration Agents) Bill 2019, Migration Agents Registration Application Charge Amendment (Rates of Charge) Bill 2019; in Committee- Migration Amendment (Regulation of Migration Agents) Bill 2019 and another - in Committee - Independent review
Description
<p class="speaker">Nick McKim</p><p>by leave—I move to the Migration Amendment (Regulation of Migration Agents) Bill 2019 Greens amendments (1) and (2) on sheet 8957:</p><p class="italic">(1) Clause 2, page 2 (table item 1), omit "Sections 1 to 3", substitute "Sections 1 to 4".</p>- The majority voted against [amendments](https://www.openaustralia.org.au/senate/?id=2020-06-15.17.1) introduced by Tasmanian Senator [Nick McKim](https://theyvoteforyou.org.au/people/senate/tasmania/nick_mckim) (Greens), which means they were unsuccessful.
- The amendments would have introduced an independent review process. Senator McKim [explained his amendment](https://www.openaustralia.org.au/senate/?id=2020-06-15.17.1) in the following way:
- > *I'll make the point that the Productivity Commission in an annual review of regulatory burdens on business and consumer services recommended that dual regulation should cease, and I acknowledge that's effectively what this bill does. However, the Productivity Commission went on further to recommend:*
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- >> An independent review of the performance of these immigration lawyers and the legal professional complaints handling and disciplinary procedures, with respect to their activities, should be conducted three years after an exemption becomes effective.
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- > *What this amendment does is seek to give effect to that Productivity Commission recommendation.*
- ### Amendment text
- > *(1) Clause 2, page 2 (table item 1), omit "Sections 1 to 3", substitute "Sections 1 to 4".*
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- > *(2) Page 3 (after line 11), after clause 3, insert:*
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- > *4 Independent review of operation of Schedule 1*
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- >> *(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by Schedule 1 to this Act.*
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- >> *(2) Without limiting the matters to be covered by the review, the review must consider the performance of:*
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- >>> *(a) immigration lawyers; and*
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- >>> *(b) legal profession complaints handling systems and disciplinary procedures with respect to the activities of immigration lawyers.*
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- >> *(3) The review must:*
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- >>> *(a) start as soon as practicable after the end of 3 years after Schedule 1 commences; and*
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- >>> *(b) be completed within 6 months.*
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- >> *(4) The persons who conduct the review must give the Minister a written report of the review.*
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- >> *(5) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.*
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- >> *(6) In this section:*
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- >>> *immigration lawyer means an Australian legal practitioner who provides immigration assistance, as defined in section 276 of the Migration Act 1958.*
<p class="italic">(2) Page 3 (after line 11), after clause 3, insert:</p><p class="italic">4 Independent review of operation of Schedule 1</p><p class="italic">(1) The Minister must cause an independent review to be conducted of the operation of the amendments made by Schedule 1 to this Act.</p><p class="italic">(2) Without limiting the matters to be covered by the review, the review must consider the performance of:</p><p class="italic">(a) immigration lawyers; and</p><p class="italic">(b) legal profession complaints handling systems and disciplinary procedures with respect to the activities of immigration lawyers.</p><p class="italic">(3) The review must:</p><p class="italic">(a) start as soon as practicable after the end of 3 years after Schedule 1 commences; and</p><p class="italic">(b) be completed within 6 months.</p><p class="italic">(4) The persons who conduct the review must give the Minister a written report of the review.</p><p class="italic">(5) The Minister must cause a copy of the report to be tabled in each House of the Parliament within 15 sitting days of that House after the report is given to the Minister.</p><p class="italic">(6) In this section:</p><p class="italic"><i>immigration lawyer</i> means an Australian legal practitioner who provides immigration assistance, as defined in section 276 of the Migration Act 1958.</p><p>I'll only speak very briefly to these amendments. I'll make the point that the Productivity Commission in an annual review of regulatory burdens on business and consumer services recommended that dual regulation should cease, and I acknowledge that's effectively what this bill does. However, the Productivity Commission went on further to recommend:</p><p class="italic">An independent review of the performance of these immigration lawyers and the legal professional complaints handling and disciplinary procedures, with respect to their activities, should be conducted three years after an exemption becomes effective.</p><p>What this amendment does is seek to give effect to that Productivity Commission recommendation. I don't understand why the government has not included a statutory three-year review in this legislation. It's simply good practice when you make a change of this nature which has the potential to impact significantly on the way that people practising as migration agents are regulated and, more importantly, has the potential to impact significantly on clients of people who act as migration agents. In those circumstances, we think this is a very practical and sensible amendment.</p><p>The Migration Institute of Australia has argued that the current system and registration of migration agents that currently captures lawyers includes robust complaints mechanisms and codes of conduct which, when complaints are lodged, set off thorough investigations. This, they further argue, ensures a better quality and better qualification of migration agent services. The review that we're seeking to insert into this legislation will be able to assess, after three years, whether that was or was not the case. It will be in everyone's best interests to know whether or not that is in fact the case. We are moving this for many reasons and on behalf of many people, but most particularly we are moving it on behalf of people who are clients of people acting as migration agents, because it is in all of our interests that people receive the very best advice, and a statutory three-year review would assist in that aim.</p> <p class="speaker">Carol Brown</p><p>Labor has made it clear from the beginning that this legislation should pass through the parliament quickly. That was the commitment given at the Law Council of Australia Immigration Law Conference earlier this year. I appreciate Senator McKim's amendment calling for a review. However, Labor will not be supporting this amendment. This bill contains measures stemming from the recommendations of the <i>2014 i</i><i>ndependent review of the </i><i>Office of the Migration Agents Registration A</i><i>uthority</i>. In fact, Mr Tony Abbott was the Prime Minister when these recommendations were made. The current Prime Minister, Mr Scott Morrison, was the immigration minister who received the review.</p><p>The Senate has held not one but two inquiries into this bill. The bill was even debated for a short time in December 2018 and then, despite bipartisan report, that's where the legislation stopped. The bill has sat on the Senate <i>Notice Paper</i> for over 200 days—a simple, straightforward bill, which Labor has supported, and recommendations that the Abbott-Turnbull-Morrison government have failed to make law for six long years. Even government senators recommended 'the Senate pass the bills without delay'. After six years, multiple reviews, many sitting weeks and three prime ministers, this bill is finally before the Senate, so let's pass it now.</p> <p class="speaker">Zed Seselja</p><p>The government won't be supporting the amendment. We do not consider it necessary to review the performance of immigration lawyers and the legal professional complaints handling and disciplinary procedures after the removal of dual regulation. The 2014 independent review of the OMARA, the Kendall review, recommended that lawyers be removed from the regulatory scheme that governs migration agents, such that they are entirely regulated by their own professional bodies. The Senate Legal and Constitutional Affairs Legislation Committee report released in February 2020 states:</p><p class="italic">The committee is confident that the legal profession in Australia is well-regulated and offers effective consumer protection mechanisms …</p><p>The relevant legal professional and disciplinary bodies and the statutory schemes underpinning them have a broader range of powers to resolve consumer related issues. These include penalties outside of OMARA's existing jurisdiction, including financial penalties for improper conduct and recommending compensation for affected clients. Lawyers with practising certificates intending to practise in the migration advice field will be able to access educational offerings to increase their knowledge, as they already do with other complex aspects of the legal profession.</p><p>After the commencement of the bill, the policy intention is for the regulation of immigration lawyers to be a matter for the states and territories, and it will be for them to evaluate the performance of immigration lawyers and related matters. The authorities responsible for disciplining Australian legal practitioners in states and territories would be better positioned to conduct any such review, as they will have access to information on legal practitioners through their regulation of them which is not readily available to the Commonwealth.</p> <p class="speaker">Nick McKim</p><p>How very disappointing it is that the major parties are on a unity ticket here and will not support a completely uncontentious amendment by the Australian Greens to insert a requirement for a statutory review into this legislation. I won't speak at length. I will just make the point that the people who seek migration advice are often extremely vulnerable people, and the quality of migration advice can often impact on a person's or a family's entire future, including whether or not they can remain in Australia. So, given that circumstance, the Greens believe it is incumbent on this parliament to ensure that the new regulatory framework which is created by this legislation is reviewed.</p><p>I'll make the point here by quoting from a submission by the Migration Institute of Australia to the committee inquiry into this legislation, which reminds us all that:</p><p class="italic">Lawyers have been allowed to continue practicing by their law societies without conditions attached to their practice, even after being barred by the OMARA for gross misconduct and breaches of fiduciary duties.</p><p>There it is in black and white, colleagues. OMARA, in some circumstances, has barred lawyers but they've been allowed to continue practising by their law societies without conditions attached to their practise.</p><p>I will also quote from a previous submission to an earlier inquiry into the 2017 versions of these bills by the Migration Institute of Australia which contained this observation:</p><p class="italic">The removal of lawyers from the regulatory system will result in disastrous, unintended consequences for this sector—</p><p>the humanitarian migration sector.</p><p class="italic">It is crucially important that it be protected for both consumers and the large numbers of altruistic lawyers working in this sector. If removed from the OMARA regulatory system these lawyers:</p><ul></ul><ul></ul><p>Again, this is a completely uncontroversial amendment that is being proposed by the Australian Greens. It is simply good governance and good practice that, when changes like these are made, the impacts of those changes be reviewed after a period of time that allows for the changes to be bedded in and enough evidence to exist that would inform a review.</p><p class="italic">The CHAIR: The question is that the amendments on sheet 8957, as moved by Senator McKim, be agreed to.</p>
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