The Law Society of Western Australia is pushing back against the federal government’s attack on lawyers working in migration law, joining with law societies around the country to defend the independence of the legal profession.
Migration lawyers targeted
The government recently announced it will implement regulatory changes to target migration lawyers and agents who it says are helping clients pursue visa applications and protection claims with little or no prospect of success.
Assistant Minister for Citizenship, Customs and Multicultural Affairs Julian Hill has criticised what he described as some of the “worst, sharpest practice” he has seen among lawyers and said the government has “no confidence” in the current system. The government has directed the Department of Home Affairs to develop options to address what it considers a regulatory gap.
The announcement forms part of the government’s broader migration overhaul, aimed at reducing net overseas migration and tightening a range of visa settings.
You can read more about the government’s proposals on the ABC’s news site.
Response from the legal profession
The announcement prompted a swift response from the Australian legal profession. The profession’s representative bodies agree that it is the government’s role to reform and improve the migration system. However, it is not the government’s role to fetter the legal profession’s ability to independently advise and represent clients, including clients with a potential cause of action against the state.
The Law Society of WA is responding alongside its fellow law societies nationally through their umbrella body, the Law Council of Australia, which has written directly to Assistant Minister Hill.
The Law Council’s letter makes clear that lawyers are already subject to stringent professional and ethical obligations. Those obligations include the paramount duty to the court and the administration of justice, the duty not to mislead courts, tribunals or government decision-makers, and obligations around pursuing cases with reasonable prospects of success.
Where a lawyer breaches those obligations, there are established disciplinary processes and serious consequences available, including penalties, conditions on practising certificates, suspension and ultimately strike off.
“If the Department holds evidence of misconduct, it should be referred to the relevant regulator without delay,” Law Council President Tania Wolff said.
Threat to independence
The Law Council has also warned against suggesting there is a systemic failure across the legal profession in migration matters, noting that migration law is complex and that the stakes for clients can be profound.
At its heart, this is about the independence of lawyers.
Lawyers are not an arm of government. Their job is not to make the government’s work easier or to decide which clients are deserving of legal representation. Their job is to give independent advice, represent their clients and uphold their professional duties, including when that means challenging government decisions.
The Law Council’s letter to Assistant Minister Hill puts the broader principle plainly: the independent legal profession plays a vital role in supporting the judiciary and in ensuring that people can establish and defend their rights under the law.
The Law Society of WA will continue to work closely with law societies across Australia to defend that principle and to ensure that legitimate concerns about individual conduct do not become an attack on the profession itself.
For a WA practitioner’s perspective on the issue, read When governments decide which cases lawyers can run.
