25 May 2018
Practitioners in migration are alerted to an update on the Bill, which is before the Senate.
Under the proposed Bill, Australian legal practitioners in migration law will be removed from the MARA regulatory scheme. For individuals holding practising certificates without a supervised legal practice condition, the proposed implementation date of the Bill is 19 November 2018. There will be some transitional arrangements for holders of practising certificates subject to the requirement to only engage in supervised legal practice.
The proposed Migration Amendment (Regulation of Migration Agents) Bill 2017 (Cth) (the Bill) was first introduced to the Commonwealth parliament on 27 June 2017. It is currently before the Senate. The Bill is relevant to all Australian legal practitioners practising in migration law.
The proposed effect of the Bill
Currently, Australian legal practitioners practising in migration law are subject to dual regulation. They are required to be registered as a migration agent and therefore regulated by MARA in addition to their local legal professional regulatory authority or authorities.
On implementation of the proposed Bill, with some transitional arrangements, Australian legal practitioners will become ineligible to be registered as migration agents and will be removed from the MARA regulatory scheme. Legal practitioners in migration law will be solely regulated by their local legal professional regulatory authority or authorities.
The status of the passage of the Bill
Amendments have been made to the Bill since it was initially introduced to parliament in June 2017. The amendments were passed by the House of Representatives on 28 March 2018 and the Bill was introduced to the Senate on 8 May 2018, where it remains to be debated.
The Law Society will continue to update practitioners if the Bill passes and on the effect of the Bill in its final form, including if any amendments are made including to the Bill’s current proposed implementation date of 19 November 2018.
Currently, Australian legal practitioners practising in migration law continue to need to register with MARA.
Implications for supervised legal practising certificate holders
If passed, the proposed Bill will apply differently to Australian legal practitioners depending upon whether they hold a practising certificate subject to a condition that they may only engage in supervised legal practice or not.
At present, the Bill before the Senate provides:
1. For practitioners not subject to supervised legal practice
The proposed implementation date for the Bill is 19 November 2018. From that proposed date, those practising certificate holders will no longer be eligible to be registered with MARA as migration agents, whether they run a migration business separate to their legal practice or not. They will be able to provide immigration assistance in connection with legal practice in their capacity as an Australian legal practitioner.
2. Practitioners subject to supervised legal practice
Practitioners subject to a condition on their practising certificate, other than for disciplinary reasons, that they may only engage in supervised legal practice may be subject to transitional arrangements. Those transitional arrangements will enable them to maintain dual registration as a migration agent and legal practitioner for up to two years after the proposed implementation date of the Bill of 19 November 2018, or as extended, if approved by MARA although not beyond 19 November 2022.
Those transitional arrangements are intended to enable them to apply to have the supervised legal practice condition removed, including to complete the required period of supervised legal practice to be eligible to have that condition removed.
Practitioners are directed to sections 278A and s333BA of the current Bill for further details including eligibility for application of the transitional arrangements. The Law Society will provide more detailed guidance to practitioners on the Bill passing.
Supervised practising certificate holders are reminded that ‘immigration assistance services’ do not constitute ‘legal practice’. Immigration assistance cannot be counted towards any period of supervised legal practice which you are required to undertake to apply to have the supervised legal practice condition removed.
You can follow the passage of the Bill and find the text of the Bill and its Explanatory Memoranda here.
Information about the Bill, including proposed consumer education on the changes, is available on the MARA website here.
25 May 2018
Practitioners are alerted to proposed changes to the Legal Profession Uniform Law expected to commence from 1 July 2018 concerning Managed Investment Schemes (MIS). The proposed amendment of s 258 of the Uniform Law will restrict the involvement of law practices in the promotion and operation of mortgage practices and other MIS, as well as the provision of legal services in connection with mortgage practices. Draft Uniform General Rules will provide details on the operation of s258. The Legal Services Council now invites public comment on the draft Uniform Rules until 20 June 2018, along with a draft Information Sheet and FAQs to guide the profession’s compliance with the regime. Further information on the changes and how to make a submission is available here.