Regulatory

updates

Align
Right

Amendments to the Migration Act 1958 commencing Monday 22 March 2021

22 March 2021

From 22 March 2021, amendments to the Migration Act 1958 will commence, allowing an Australian legal practitioner (lawyer) to provide immigration assistance in connection with legal practice. This means that a lawyer may provide immigration assistance without being a registered migration agent (RMA).

 On the Home Affairs website page has been updated with new tabs to support clients’ understanding of who can provide immigration assistance including a new tab for lawyers. The new tab is titled ‘Using a legal practitioner’. From this page lawyers can download and complete the new form 1548 ‘Application for an Australian Legal Practitioner Number’ (LPN).

 Lawyers who are RMAs on 22 March 2021 will be automatically transferred from the OMARA Register to a lawyer database – they will not need to complete form 1548. As of the 22 March 2021, they will need to use the updated Form 956 Appointment of a registered migration agent, legal practitioner or exempt person, for any new clients that that they provide immigration assistance to. Client applications already lodged in ImmiAccount prior to the 22 March 2021 do not require a new Form 956.

 Lawyers not on the OMARA Register on 22 March 2021 will need to complete form 1548.

  • Until November 21, the form 1548 will ask for a Migration Agents Registration Number (MARN) – lawyers who were previously registered migration agents should provide their former MARNs. They will then need to email the completed form 1548 with a copy of their practising certificates to legalpractitioners@homeaffairs.gov.au.
  • Lawyers who intend to commence providing immigration assistance and who have never been registered with the OMARA will also need to complete Form 1548 but leave the question asking for a MARN blank. These lawyers will then email the completed form 1548 with a copy of their practising certificates to legalpractitioners@homeaffairs.gov.au. They will receive a 7 digit unique identifier number starting with the digits 55 – this identifier number will be used for their ImmiAccount and lodging visa applications until November 2021.

All lawyers after November 2021 will receive their own unique identifier number called the Legal Practitioner Number (LPN).   

The unique identifier number is so that Departmental decision makers can identifier who can provide lawful immigration assistance.  

Further information and forms

Transitional arrangements for Australian legal practising certificate holders (ALPCs), who have never been issued with a Migration Agent Registration Number (MARN)

9 March 2021

From 22 March 2021 a holder of an ALPC who has never been issued a MARN (not previously registered with the OMARA), and wishes to commence providing immigration assistance should go to the Home Affairs website page ‘who-can-help-with-your-application’ and select the new tab ‘Using a legal practitioner’. From this page the holder of an ALPC who has not been issued with a MARN will need to download and complete the new Australian Legal Practitioner Number (LPN) form. The LPN form will ask for a MARN. Holders of an ALPC who have not been issued a MARN should leave this question (number 13) blank. This completed form should be emailed with a copy of the ALPC holder’s practising certificate to legalpractitioners@homeaffairs.gov.au. 

The legalpractitioners@homeaffairs.gov.au mailbox will respond with a 7 digit identification number starting with a prefix of 55. This number will allow the ALPC holder who has not previously been issued a MARN to open an ImmiAccount. This 7 digit number will be used as a temporary lawyer ID number until such time as a new unique identifier number is provided by the Department of Home Affairs. This is expected to be in place in the latter half of 2021. The changes to the Home Affairs website and the new LPN form will be available from 22 March 2021.

On 22 March 2021, form 956 Appointment of a registered migration agent, legal practitioner or exempt person will be available on the Home Affairs and the Australian Border Force (ABF) website to allow the holder of an ALPC to advise the Department of Home Affairs or ABF that they have been appointed by a client (e.g. a visa applicant) to provide immigration assistance under the Migration Act 1958 and, if applicable, to receive documents on their behalf.

Migration Amendment (Regulation of Migration Agents) Act 2020

22 February 2021

The Migration Amendment (Regulation of Migration Agents) Act 2020 was passed by both Houses of Parliament on 15 June 2020 and will come into effect of 22 March 2021 (the new legislation). The new legislation will amend the Migration Act 1958, so that Australian legal practitioners holding practising certificates that are not subject to supervision will no longer be required or entitled, to register with the OMARA as migration agents.

Importantly, after the commencement of the new legislation and subject to the conditions on their practising certificate, Australian legal practitioners will be able to provide immigration assistance in connection with legal practice without holding registration as a migration agent with the OMARA. The Law Society has prepared the following FAQ’s to provide further information to solicitors who may be impacted by the change.
 

FAQs

 

If your NSW PC is NOT subject to Condition 2 – (the statutory supervised legal practice (SLP) condition) - then you are:

  • an unrestricted legal practitioner for the purpose of Schedule 1 of the Migration Amendment (Regulation of Migration Agents) Act 2020 (Amending Act); and
  • registration as a migration agent ends by operation of law and the OMARA must remove the name of an unrestricted legal practitioner from the Register.

Further Information

  • The term ‘unrestricted legal practitioner’ is neither defined nor referred to in the Legal Profession Uniform Law (NSW) (the Uniform Law). Its meaning lies in the juxtaposition between the definition of this term in s275 of the Migration Act 1958 as amended by the  Amending Act, and the conditions which may be imposed on a PC issued by the Law Society of NSW under the Uniform Law.
  • Section 275 of the Amending Act assists by providing that:
    • ‘Unrestricted legal practitioner’ means an Australian legal practitioner who holds a PC that is unrestricted.
    • ‘Unrestricted’ means that the PC is not restricted; and
    • ‘restricted’ means a PC which is subject to a condition requiring the practitioner to undertake SLP for a specified period (and where such a condition was not imposed as a disciplinary measure).
  • Section 49 of the Uniform Law imposes a statutory condition on all PCs issued in NSW, that the holder must engage in SLP only, for a specified period (usually 24 months full time practice). This is imposed regardless of whether the person holds a corporate, government or employee of a law practice PC and is noted as Condition 2 on the holder’s PC.

Currently the Migration Act 1958 does not permit an Australian legal practitioner to give ‘immigration assistance’.  However it does not prohibit an Australian legal practitioner from providing ‘immigration legal assistance’. From 22 March 2021;

  1. the current definition of ‘immigration legal assistance’ (in 277) will be repealed; and
  2. the holder of a PC that is not subject to condition 2 (the statutory SLP condition) will:

       - not be required to be registered with the OMARA to provide immigration assistance in connection with legal practice; and

       - may only provide ‘immigration assistance in connection with legal practice’ in compliance with the conditions on their Australian PC and provided they hold or are covered by an approved professional indemnity insurance (PII)policy

From 22 March 2021 you can only provide immigration assistance to private clients if:

  1. you are a principal or employed solicitor of a law practice (as defined in s6 of the Uniform Law)and you provide the immigration assistance in that capacity; and
  2. you comply with the conditions on your PC; and
  3. you hold PII as required under s211 of the Uniform Law.

Further Information

  • This means that immigration assistance in connection with legal practice will be regulated under the Uniform Law through the Council of The Law Society of NSW and the Office of the Legal Services Commissioner, as the designated local regulatory authorities under the Uniform Law.

     

  • If you wish to provide legal services to private clients, you will need to:
  1. vary your PC to an employee of a law practice practising certificate and be engaged in that capacity by a law practice; or
  2. if you are eligible, apply for a principal’s PC and then either join an existing law practice as a principal or establish your own law practice.

Yes - but you must ensure that:

  • you comply with the conditions on your PC; and
  • the legal services are covered by an approved PII policy (s211 of the Uniform Law).

Further Information

PII policies held with Lawcover (the approved PII provider for NSW) provide cover for claims arising from the provision of legal services by the law practice.  Noting that from 22 March 2021, a legal practitioner will be able to provide immigration assistance in connection with legal practice without being registered as a migration agent, it is anticipated that immigration assistance so provided would fall within the meaning of ‘legal services’ for the purpose of the Lawcover PII policy.

Practitioners who hold PII policies with providers other than Lawcover should make the relevant enquiry from their PII provider.

Yes.

Further Information

Relevant considerations are:

  1. You will be unable to maintain your registration as a migration agent with the OMARA whilst holding an unrestricted (unsupervised) PC.
  2. If you wish to remain registered as a migration agent, you will need to surrender your practising certificate by emailing the Law Society Registry – registry@lawsociety.com.au.;
  3. If you do not hold an Australian PC for more than 5 years, your next application for a PC is required to be considered by the Licensing Committee as a non-standard application.

The Uniform Law does not prohibit an ILP nor an ULP from providing immigration assistance as a non-legal service, however the principals of the law practice must be mindful of:

  • rule 8 of the Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 (the Solicitors Rules);and
  • ensuring compliance with s107 and s211 of the Uniform Law

Further Information

Part 3.7 of the Uniform Law permits an ILP or ULP to provide ‘other services.  The Uniform Law does not prohibit a RMA from providing immigration assistance as part of the ‘other services’ delivered by the ILP or ULP.

Disclosure Obligations

Section 107 of the Uniform Law imposes disclosure obligations when

a person engages an ILP or ULP to provide services that the person might reasonably assume to be legal services and the law practice provides both legal and ‘other services. 

In these circumstances the law practice must make a disclosure by giving the person notice in writing informing the person:

  1. whether the services are legal services; and setting out the legal services to be provided; and
  2. whether or not all the services are to be provided by an Australian legal practitioner; and
  3. if some or all the services are not to be provided by an Australian legal practitioner, identifying those services and indicating the status or qualifications of the person or persons who are to provide the services; and
  4. that the Uniform Law and the Uniform General Rules apply to the provision of legal services but do not apply to the provision of non-legal services.

If a proper disclosure has not been made under this section, the standard of care owed by the law practice in respect of the service is the standard that would be applicable if the service were a legal service that had been provided by an Australian legal practitioner.

PII

All legal practitioners must hold PII (s211 of the Uniform Law) with an approved provider. It is important to speak with your PII provider to clarify the services which are/are not covered under your current professional indemnity insurance policy and obtain any other requisite insurances.

 

Rule 8 of the Solicitors Rules

This rule focusses on the importance for legal practitioners to:

  • quarantine the non-legal services (in this instance immigration assistance delivered by RMA’s) from the legal services being delivered by legal practitioners; and
  • ensure that the operation of the other business does not create a situation of conflict for solicitors who have an interest in the other business;
  • disclose the solicitor's financial or other interest in that business to any client of the solicitor who, in the course of dealing with the solicitor, deals with the other business.

Step one		  

Choose a law practice structure to engage in legal practice as a sole principal

  

This can be either:

or

Step two		  

You must hold a principal of a law practice PC

  

Apply for a principal of a law practice PC

Step three		  

Meet your Trust Account Requirements

  

Establish a law practice trust account

Step four		  

Seek instructions from your MAB clients to act for them as a principal of a law practice

  

a. Draft a retainer agreement between each client and your new law practice; and

b. Explain to each client the proposed course of conduct of their matter in terms each client can understand.

Step five		  

Where applicable, provide costs disclosure and where applicable, a costs agreement to each new client of your law practice

  

Refer costs guidebook

Step six		  

Take action to terminate your MAB clients in accordance with Part 10 of the Code of Conduct for Migration Agents.

  

These include-

a. Provide up to date invoices to each client for work completed by your MAB.

b. Account separately to each client for monies held on their behalf in your MAB’s client account (‘client account’).

c. Seek each client’s directions to pay money held in your client account to your new law practice trust account.

Step seven		  

Deposit client money into your new law practice trust account in accordance with each MAB client’s instructions.

  

 

UPDATE ARCHIVE

2018

 

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. 

Further information

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.