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Friday, 12 June 2020
Page: 2956


Senator McKIM (TasmaniaDeputy Leader of the Australian Greens in the Senate) (13:07): I had to look a couple of times to make sure we were actually on the Migration Amendment (Regulation of Migration Agents) Bill, but I'm glad the Senate has shown Senator Keneally some latitude, and I'll take advantage of that to make a couple of comments in response to some of the things that she said. But, before I do, I will just directly address the legislation before us, which is, of course, similar to bills of the same name tabled in 2017 and amended in 2018, though with a redrafting of schedule 4 of the regulation of migration agents bill and minor amendments to definitions in the rates of charge bill. It's worth noting that both the 2017 and 2019 bills were referred to and reported on by the Senate Legal and Constitutional Affairs Legislation Committee.

Currently, it's unlawful to provide immigration advice without being registered as a migration agent with the Office of the Migration Agents Registration Authority, or OMARA. These bills, however, seek to change that, driven by an argument that lawyers, regardless of their professional or educational background, do not need to be regulated alongside specialist migration agents because their skills in existing consumer protections are comparable. The Greens do not believe this argument has merit and will not be supporting these bills.

Whereas postgraduate study to become a migration agent includes four migration law subjects, most undergraduate law degrees do not include any study whatsoever of migration law. Yet, with these bills, any and all lawyers will be able to practise migration law solely because they hold a legal practice certificate. The government is therefore suggesting a registered migration agent who has successfully completed a postgraduate migration agent course is no better equipped to advise on migration law than a lawyer, who may not have studied any specific migration law subjects whatsoever.

Under these bills, lawyers practising migration law will no longer be required to subscribe to LEGENDcom, an electronic Home Affairs database of migration and citizenship legislation and policy documents that is continually updated as migration legislation—which is, as all senators would recognise, very fluid—changes. Registration of lawyers by OMARA ensures lawyers comply with a Migration Agents Registration Authority, or MARA, Code of Conduct, which requires practitioners to maintain relevant, specialist and up-to-date knowledge of migration law and processes.

The current system of registration of migration agents includes robust complaints mechanisms and codes of conduct, which, when complaints are lodged, set in motion thorough investigations. These processes are customer focused to ensure the rights and needs of customers are paramount and are protected. This is a particularly valuable safety net for vulnerable customers. The inclusion of lawyers in the migration regulation scheme is similar to the case of an accountant who must undergo further studies if they want to be registered as a tax agent. To practise patents law, a lawyer must undertake further studies in the area before they are allowed to appear in a matter, so it is not an oddity that lawyers should be required to demonstrate some migration law expertise or be required to keep up to date with migration law.

Of particular concern to the Greens and many in the industry is the provision of migration services to vulnerable people. In its submission to the Senate inquiry into the 2019 bills, the Migration Institute of Australia noted:

Those who oppose dual regulation claim that the legal profession has sufficient complaint and disciplinary mechanisms to deal with professional incompetence or malfeasance. However, some law societies do not appear to have the same regard for migrant consumer protection as the OMARA. Lawyers have been allowed to continue practicing by their law societies, even after being banned by the OMARA for providing fraudulent migration advice or breaches of fiduciary duties.

Furthermore, there are legitimate concerns that these bills will lead to a loss of legal expertise or legal aid funded services in large non-legal migration agencies, including refugee services, because lawyers would seek employment elsewhere. In its submission to the Senate inquiry into the 2017 bills, the Migration Institute of Australia warned, in relation to the humanitarian migration sector:

The removal of lawyers from the regulatory system will result in disastrous, unintended consequences for this sector. 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:

will be barred from registering as migration agents and then be unable to provide migration advice and assistance within these non-legal practices, and

will need to leave these organisations to seek employment in legal practices if they wish to practice as lawyers.

This will have dire and wicked knock-on effects for service providers, many of them publicly funded; for early career lawyers wanting to specialise in migration but no longer able to provide advice under the OMARA regulatory system as registered migration agents in non-legal migration practices; and, most importantly, for clients.

The Migration Institute of Australia has further warned that if lawyers are removed from the regulatory system the migration advice profession will be opened up to lawyers who are currently sanctioned or banned by OMARA but who will continue to be allowed to practise by their relevant law societies; lawyers who have no knowledge of Australia's complex migration legislation and policy; lawyers who are not compelled to maintain currency of knowledge and professional resources pertaining to this area of law, as required by OMARA registration; and lawyers who choose to practise immigration assistance to supplement their struggling legal practices.

For these reasons, the Australian Greens agree with the Migration Institute of Australia's conclusion:

Much of the emphasis in support of removing lawyers from the regulatory system relies on concerns harboured by the impacts on lawyers, with apparent disregard for the impact on consumers.

The Greens believe that consumer protection needs to be the uppermost consideration in this legislation to protect people who are vulnerable to those who would take fees to provide advice and services in areas that they do not have sound knowledge or practice in. For many vulnerable consumers, the difference between good and bad advice and services can be devastating, and life changing, with bad advice and service potentially leading to financial ruin and/or being banned from this country.

Lawyers could have remained within the regulatory system by being exempted from paying the duplicate registration fee and insurance. They could have been required to undertake studies in migration law practice and procedure and been required to maintain continuing professional development in migration law. But the government, for whatever reason, has chosen not to pursue this option and has instead decided to throw the baby out with the bathwater. Currently, lawyers make up just over 30 per cent of all registered migration agents. What these bills will effectively do is carve out nearly one-third of all practising migration agents from the codes of conduct and complaints and disciplinary mechanisms that MARA provides and upholds. But, if this is the path the government and Labor insist on going down, the Greens will try to ensure there is at least some level of accountability in this deregulation of lawyers working as migration agents.

In its report entitled Annual review of regulatory burdens on business: business and consumer services, the Productivity Commission recommended that, if dual regulation of lawyers should cease, an independent review of the performance of these immigration lawyers and the legal profession complaints handling and disciplinary procedures with respect to their activities should be conducted three years after an exemption becomes effective. That is why the Greens will move an amendment to this legislation—to legislate that review into the regulation of migration agents bill.

Senator Keneally has again used an opportunity today to prosecute an argument that she's been prosecuting for a long period of time around so-called airplane people. This is a deeply concerning argument and represents a political attempt by Senator Keneally and the Labor Party to outflank a fascist from the right. They will find it impossible to outflank Minister Dutton on migration issues from the right. They will find it absolutely impossible. But that is, unfortunately, not preventing Senator Keneally from attempting that political manoeuvre and, in doing so, going down a very dangerous path.

I want to put on the record today why the Australian Greens believe it is a dangerous path. Firstly, describing people who come to this country to seek asylum in line with the obligations to which Australia signed up when we signed the protocol to the refugee convention as 'airplane people' uses language perfected by people like Prime Minister Morrison, Minister Dutton and Senator Hanson. It is language deliberately designed to dehumanise and demonise people who seek asylum, and it strongly implies that we in this country have something to fear from migrants and people seeking asylum, when, in fact, we don't.

Secondly, if people have a valid claim for asylum in Australia, they should be allowed to make it. Minister Dutton might not like it and, for all I know, the Australian Labor Party might not like it. But, regardless of whether they like it or not, we are still a signatory to the refugee convention, despite the last 20 years of bipartisan cruelty to people seeking asylum from the major parties in this place.

Finally, and most dangerously, egging on Minister Dutton and Prime Minister Morrison to crack down further on people seeking asylum could have disastrous consequences and could ultimately cost yet more people their lives. Let's face it: the Australian Labor Party were the architects of the most recent iteration of offshore detention when in 2013 Prime Minister Kevin Rudd said, 'If you arrive here by boat without a valid visa, you will never be allowed into the country.' Let's face it: this iteration of offshore detention has already cost multiple people their lives and has destroyed the lives of hundreds and potentially thousands of other people. It shouldn't need saying to Senator Keneally or the Australian Labor Party, but Minister Dutton and Prime Minister Morrison do not need further encouragement to ruin and destroy the lives of people seeking asylum. They don't need further encouragement to do that, but that is what Senator Keneally is doing by trying to outflank them from the right on this issue. I beg Senator Keneally to reconsider this approach that she has taken and to join the Greens in our campaign for an immigration system with compassion, decency and respect for international law.

As I said yesterday, this latest iteration of offshore detention is a dark, foul and bloody stain on our country's history, and it's got to stop. I ask the government: when are you going to accept the offer from New Zealand? There are still people in Papua New Guinea and there are still people on Nauru. It has now been nearly seven years since July 2013. We'll be moving some motions in this Senate in due course to reflect that awful anniversary.

The government have a solution staring them in the face. It's a kind and generous offer from the New Zealand Prime Minister, Ms Ardern, to take 150 of these people each and every year into New Zealand and put them on a pathway to citizenship in this country. Of course, that is what Australia should have done because the overwhelming majority of these people have been found to be genuine refugees—that is, their claims for asylum have merit under the refugee convention and they were accepted as refugees; in other words, they had a well-founded fear of persecution in their home country. And by 'persecution' in some cases I mean death. If you are a gay man in Iran, you're probably going to be stoned to death or thrown off a tall building. Yet, what did we do when gay men from Iran asked us for help? We exiled them to Manus Island and we exiled them to Nauru.

Shame on the Labor Party for being the architects of this calamitous scheme and shame on the Liberal Party for running it in the most punitive and disgusting way. I was on Manus Island when the Liberal government ordered the cutting off of drinking water and food to over 650 desperate people. I will never forget that and I will ensure, to the best of my capacity, that the Australian people never forget it either.