The new report slates heavy regulation on lawyers, and states that while a major process of regulatory reform of the legal profession is currently underway, the reform process means the profession has chose not to raise concerns about the existing regulatory framework.

In it major new report, Annual Review of Regulatory Burdens on Business: Business and Consumer Services Sector, the Productivity Commission raises the problem of “dual regulation” for lawyers that practice in migration law.

Lawyers wishing to practise as migration agents must comply with both the Australian Government regulatory scheme for migration agents and legal profession regulation under state and territory laws, the report states.

“This creates a disincentive for lawyers to practice to practice migration law and has perverse effects for consumers.”

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“Existing regulation of the legal profession affords adequate consumer protection and lawyers holding a current legal practising certificate should be exempt from the Migration Agents Registration Scheme,” the report states.

The Law Council of Australia has raised the issue of “dual regulation” for lawyers working in this area.

“It is argued that this is an unnecessary and costly burden, [creating] a major disincentive for lawyers to practice migration law,” the Law Council claimed in a draft report.

In support of the Law Council’s views, legal practitioners, law firms, the Office of the NSW Legal Services Commission, the Law Society of New South Wales, the Law Institute of Victoria and Julian Burnside QC all make brief submissions to the Productivity Commission on the subject.

A submission came from Dr. Gavan Griffith Q.C., for example, who wrote: “I have always regarded the dual regulation scheme regime as inherently self- contradictory and completely inapt for best-practice regulation.

“It effectively requires legal practitioners who are already within a comprehensive professional regulatory framework, to comply with and adhere to a redundant second-complaints handling scheme and code of conduct, administered at various times by agencies of the Commonwealth Government or the Migration Institute of Australia.

“I do not perceive any benefit to consumers arising from dual regulation. Indeed, the confusion caused by the scheme undermines the complete and effective consumer protection that would otherwise be enjoyed if legal practitioners were excluded from the scheme. A relevant analogy would be to assimilate the regulation of air pilots to the regulatory regime for flight attendants. The regulation is not only otiose; it is inherently inconsistent.”

The Productivity Commission recommended that immigration lawyers holding a current legal practising certificate should be exempt from the regulatory scheme. It argued, however, that lawyers not holding a current practising certificate should be required to be registered migration agents in order to provide immigration assistance.

“Legal practitioners are bound by strict codes of ethics and conduct and existing regulation of the legal profession should be able to offer consumers a level of protection at least as high as that afforded under the migration agents scheme,” it said.

The Commission argued that the current arrangements “create a costly additional regulatory burden for immigration lawyers and lead to some uncertainty and confusion for clients and regulators”.

It said there is a strong argument for legal regulators to have sole responsibility for the discipline of immigration lawyers.

If and when issues arise with the current legal profession complaints handling or disciplinary procedures, it said, there is the potential for these to be addressed through refinements to practices or through more rigorous and consistent implementation of current procedures.

The Commission suggested that immigration lawyers should be exempted from the Migration Agents’ Regulatory Scheme as soon as practicable.

“The legal profession regulators and DIAC could monitor outcomes over a reasonable period of time, say three years, and then the case for maintaining the exemption could be reassessed. Any assessment would need to objectively analyse the performance of immigration lawyers under the new regime compared to the outcomes under the current rules,” it said in the report.

“This would include an evaluation of evidence regarding their knowledge of migration law and policy, and standards of conduct. It would also need to consider the effectiveness and efficiency of complaints handling and disciplinary procedures under the legal profession regulatory framework.”