Deregulation: floating transitional period

Only some of the aspects of the Migration Amendment (Regulation of Migration Agents) Bill 2018 (also known as the ‘deregulation Bill’) have been broadly discussed in the RMA community, namely the deregulation itself and the transitional period for RMAs who are or become restricted legal practitioner certificate (RPC) holders. Other aspects have been eclipsed, such as the fact that the Bill actually provides a floating transitional period, as discussed below.

The Bill will introduce s 289B into the Migration Act:

(1) An applicant must not be registered [with OMARA] if he or she is an unrestricted legal practitioner.

(2) If an applicant is a restricted legal practitioner, he or she must not be registered [with OMARA]unless he or she is eligible.

‘Eligible’ will be defined under new s 278A (underlining added):

(1) A person who is, or has been, a restricted legal practitioner is eligible during the eligible period, or a longer period as extended under this section.

(2) The eligible period is the period of 2 years after the person first helda restricted practising certificate 

The obvious conclusion is that RMAs who are RPC holders either at the commencement of the Bill (‘the commencement’) or afterwards will have a transitional period of 2 years from the date they first held an RPC, extendable by OMARA by up to another 2 on a case-by-case basis. For instance, an RMA who is granted an RPC on 1 July 2019 will have until 1 July 2021 to transition or, if approved by OMARA, until up to 1 July 2023. Let us call the above ‘transitional period A’.

What is not so obvious is that the above is not the only provisional period contained in the Bill. After all, given that the Bill, as per the amendments proposed last week, would commence on 30 June 2019, the above transition would be of nouse to those who first obtained an RPC before 30 June 2017 and only of somefor those who obtained it between 30 June 2017 and 30 June 2019. In order to avoid that injustice, the Bill adds more into the Act:

333BA Registered migration agents who were restricted legal practitioners immediately before [30 June 2019]  

Scope

(1) This section applies in relation to a person who, immediately before [30 June 2019], was both:

(a) a registered migration agent (even if, at any time before that day, the registration was under suspension, or had been taken to continue under subsection 300(4)); and

(b) a restricted legal practitioner.

End of registration

(2) The person’s registration as a migration agent ends:

(a) if the person continues to be both a registered migration agent and a restricted legal practitioner until immediately before the transitional end day—immediately before the transitional end day; or

(b) if, before the transitional end day, the person’s practising certificate becomes unrestricted—at the end of the day on which the practising certificate becomes unrestricted; or  

(c) if, before the transitional end day, the person stops being an Australian legal practitioner—when the registration would otherwise end under this Part; or

(d) in any other case—when the registration would otherwise end under this Part.

(3) The transitional end day is:

(a) [30 June 2021]; or  

(b) a later day (no later than [19 November 2023]) approved for the person by the Migration Agents Registration Authority under section 333BB.

Let us call the above ‘transitional period B’.

As a result, individuals who have:

  • never been RPC holders by the time of commencement (scenario 1) or
  • been RPC holders at any point in time before the commencement (scenario 2)

will have a floating transitional period of 2 years (with the possibility of extension upon approval) starting from the later of the date when the RPC is/was first granted and the commencement. In other words, it is the aggregation of transitional periods A and B that the writer describes as the floating transitional period.

The amendments to the Bill that introduced the floating transitional period echo the writer’s submission to the Senate inquiry into the effects of the Bill as originally drafted, which included (underlining and emphasis added):

151. Nevertheless, if Parliament decides to give only 2 years of transition, which would be not only unrealistic but also most likely unconstitutional for the reasons discussed in Division 3, the beginning of the transition period should be either the day of the commencement of the Bill or the day the person has obtained his/her first [RPC], at his/her choice, for the following reasons….

154. Therefore, the least problematic solution would be to allow each RMA Law Graduate to chose whether the transition starts on the commencement of the Bill or on the date of grant of their [RPC].

The writer’s intent was that:

  • if someone falls under scenario 1, they would not be disadvantaged by only obtaining an RPC after the commencement;
  • if someone falls under scenario 2, they would not be disadvantaged by having first been granted an RPC a long time before the commencement.

It seems that Parliament has listened to the writer’s concerns and has enshrined the choice referred to by him at paragraph 154 above into the Bill, which is a more elegant way of drafting that choice. In summary, the transitional period for each individual (whether or not an RMA) will be as follows + 2 years if granted by OMARA:

  • scenario 1: time between now and obtaining the RPC + 2 years;
  • scenario 2: time between now and the commencement + 2 years.

The floating transitional period is far from ideal due to factors such as having to take time off work for medical reasons, pregnancy and so many others. Yet, it is much more generous than some of the other ones recommended to the Senate by various organisations and individuals.


Disclaimer: the above is a mere tentative analysis of a Bill. The law or policies might have changed between the writing and reading of this article. The author of this article and Migration Law Updates disclaim any liability for any action (or omission) on their part based on any information provided (or not provided) in this article and are under no obligation to keep the general public nor practitioners informed about the matters discussed in this article or any other matters, or any future changes to any of those matters. It is the responsibility of each practitioner to obtain access to primary sources of law and policy by themselves and to carry out their own research and come to their own conclusions on legislation, case law, policies and more. This article is not intended for the general public.


Sergio Zanotti Stagliorio is a Registered Migration Agent (MARN 1461003). He is the owner of Target Migration in Sydney. He can be reached at sergio@targetmigration.com.au