OMARA: Lawyer Deregulation Changes Can’t Be Implemented Until November 2018 Earliest

The Office of the Migration Agents Registration Authority (OMARA) has provided an update regarding the Bill currently before the Parliament to remove lawyers from the OMARA regulatory system and has stated that the earliest that required technology changes could be completed to enable implementation of the Bill is November 2018 if the bill is passed this year.

The OMARA release summarised the Migration Amendment (Regulation of Migration Agents) Bill 2017 and the impact on registered migration agents (RMAs) who become lawyers (emphasis added):

“Passage of the Bill is subject to the competing priorities of the Parliamentary timetable and as such, the proposed implementation date of 1 July 2018, for removal of Australian Legal Practitioners from the OMARA regulatory scheme, is no longer feasible. The amended Bill requires debate in both houses of Parliament, and if passed will require significant Departmental IT system changes.  For these reasons, if the Bill is passed, the proposed changes could not be implemented before November [2018] at the earliest.

In the meantime, Australian Legal Practitioners will need to continue to register with the OMARA in order to provide immigration assistance.

Once the legislative change has taken place, Australian legal practitioners with unrestricted legal practising certificates will no longer be eligible to be listed on the OMARA register of migration agents and will no longer have a Migration Agents Registration Number (MARN).  This is regardless of whether a legal practitioner runs their migration business separate to their legal practice – holders of unrestricted legal practising certificates will not be able to register with the OMARA.

Legal practitioners with unrestricted Australian legal practising certificates will have no restriction on providing immigration advice and will be regulated solely by their applicable legal professional body.”

The Bill was the subject of heated debate during mid-late 2017 due to the original language of the bill that required RMAs who upskill and become lawyers to immediately give up their OMARA registration once they were granted a restricted legal practicing certificate (RPC) to begin their 2-year supervision period. Lawyers generally hold an RPC for the first 2 years of full-time employment which is done under supervision, then can apply to have the restriction removed so they can operate as sole traders or head their own firms.

Under the original language of the Bill, without OMARA registration, former RMAs who become lawyers would have been left with few options other than closing or disconnecting from their RMA businesses and transferring their existing clients to their supervising law firm or another RMA, as the former agents would have only been able to continue to provide migration advice through their supervising law firm.

After a coalition of independent RMAs mounted strong arguments against the original language of the bill regarding no transition period, in late November the Assistant Minister for Home Affairs, the Hon Alex Hawke MP, announced that the government was amending the bill to include a 2-year transition period for RMAs who become lawyers and are issued RPCs.

The transition period will allow RMAs who obtain RPCs after the commencement of the Act to retain their OMARA registration for 2 years after they obtain an RPC, allowing agents who become lawyers to continue to operate their RMA business as agents while receiving supervision.

The 2-year transition period may be able to be extended by agents if there is a “reasonable basis” for doing so, and a 2-year transition period dating from the commencement of the Act was included in the new language for those agent/lawyers who already hold RPCs as of the commencement date of the Act but have not finished their supervision period.

Another major impact of the Bill is expected to be the benefit to existing lawyers who are now required to also hold OMARA registration in order to provide migration advice to clients. If the Bill is passed, any Australian lawyer with a practising certificate will be able to provide migration advice to clients just as they advise in other areas of the law. With over 70,000 lawyers in Australia and just over 7,000 registered migration agents, many of whom are also lawyers, the migration advice industry is set for what may be major shifts in the competitive environment the industry operates in.

The Migration Amendment (Regulation of Migration Agents) Bill 2017 is currently awaiting Parliamentary approval.

For the complete OMARA release including links to the Assistant Minister’s releases, visit https://www.mara.gov.au/news-and-publications/news/omara-independent-review/