Removal of dual registration requirement
Barriers to lawyers doing immigration work have finally been lifted. From 22 March 2021 amendments to the Migration Act 1958 (Cth) remove the requirement for lawyers to also be registered as migration agents before doing immigration work for their clients.
Amendments to the Migration Act
Australian legal practitioners who hold an unrestricted practising certificate, as defined in the Migration Act, can now conduct immigration matters as part of their usual practice, with no requirement to register as migration agents under the Act.
Amendments to the Act by the Migration Amendment (Regulation of Migration Agents) Act 2020 effectively define an ‘unrestricted’ Australian legal practitioner as one who has completed their compulsory period of supervised practice after first being admitted. Those who hold an ‘unrestricted’ practising certificate are permitted to give immigration assistance in connection with legal practice without being registered as migration agents. They will no longer be able to be registered migration agents: s 276 of the Act.
Newly admitted Australian legal practitioners still within their supervision period may still become registered migration agents. In fact those practitioners may not provide immigration assistance to their clients unless they are registered migration agents. Their dual registration may continue for up to 4 years. This is intended to facilitate such lawyers doing immigration work while completing their supervision period.
The definition of Australian legal practitioner in s 275 of the Act, as amended, excludes lawyers who are admitted but who do not hold a practising certificate. It also excludes lawyers who are eligible to practice under the law of a country other than Australia or New Zealand. Those practitioners will need to register as a migration agent to be able to give immigration assistance in Australia.
‘Unrestricted’ Australian legal practitioners are not subject to regulation by the Office of the Migration Agents Registration Authority (OMARA), whereas registered migration agents – including those who are ‘restricted’ Australian legal practitioners – are.
To be registered as a migration agent, an eligible ‘restricted’ Australian legal practitioner must satisfy the requirements of s 289A of the Act.
A registered migration agent must notify OMARA in writing within 28 days of becoming a legal practitioner, with a penalty of 100 penalty units for failure to do so: see s 312 of the Act. They will then be de-registered by OMARA.
From 22 March 2021 a legal practitioner who wishes to commence providing immigration assistance and has never been issued a Migration Agent Registration Number (MARN), will
need to complete the Australian Legal Practitioner Number (LPN) form from the Department of Home Affairs website. Al link to this form is available on the Immigration matter plan.
Appointment of a Registered Migration Agent, Legal Practitioner or Exempt Person, form 956 allows the holder of an Australian Legal Practising Certificate to advise the Department of Home Affairs that they have been appointed by a client to provide immigration assistance under the Migration Act 1958 and, if applicable, to receive documents on their behalf.
The By Lawyers Immigration Guide has been updated accordingly. This publication is available to assist lawyers doing immigration work for their clients.