The regulator’s regulator, the Ombudsman, criticises Migration Agents’ bureau de spank

The Ombudsman has been looking into the performance of a regulator, MARA, the Migration Agents Registration Authority. He was critical. His press release is here, the full report here. Reproduced below are the bits about impartiality and the avoidance of conflicts of duties ‘in the case where an industry representative body is also the regulatory body and complaint-handling organisation’.  Though the Legal Services Commissioner does not fall into that category, the Uber-regulator’s review of a professional regulator may nevertheless be of interest to those who deal with her.  The Ombudsman suggested that oral complaints be taken, reduced to writing by regulator staff, and confirmed by sending out the writing to the complainant.  I think that would be an efficient way of dealing with complaints against lawyers by unsophisticated clients.  It would be a case of a stitch in time saves nine, and would prevent lawyers from having to respond to allegations which are incomprehensible and legally embarrassing. The Legal Services Commissioner ‘may’ provide assistance to members of the public in making complaints: s. 4.2.12(c) Legal Profession Act, 2004. Under s. 123(5) of the Legal Practice Act, 1996, the Law Institute’s Professional Standards were obliged to assist if asked, but to my knowledge they rarely did so, and I am aware of instances where assistance was formally sought but refused. Now, that extract from the report I mentioned:

Fairness—impartiality
2.27 A complaint process should, to the maximum extent possible, be free of
conflict of interest, actual or perceived. This can raise particular challenges in the
case where an industry representative body is also the regulatory body and
complaint-handling organisation.

2.28 In examining the issue of impartiality we explored two key matters. We looked
at the potential conflict of interest with regard to the decision-making process on
sanctions, because the decision makers are themselves migration agents; and we
examined the relationship between complaints and audit activity.

2.29 The CEO of the MIA and a number of senior staff of MARA are delegates for
making decisions with regard to disciplinary action against migration agents.
Delegates are bound by the written directions of the MIA Board, which is also the
MARA Board. According to the written directions issued by the MIA, final decisions to
discipline agents can only be taken by the board, which is itself made up of
registered migration agents, or by the Professional Standards and Registration
Committee (PSR Committee), which comprises five Directors of the MIA and hence
are also registered migration agents.

2.30 MARA does not believe that there is any conflict of interest in this
arrangement. It advises that should such a conflict be identified, a decision would be
made that the delegate or committee member would not participate in the decision-
making process. We are aware of a number of occasions where this has been
necessary. Information from migration agents received during the course of this
investigation does, however, raise questions about the transparency of the process.
We have been provided with records of meetings that do not reflect that a MARA
Board member has withdrawn from discussion regarding a complaint or sanction
where they were perceived to have a conflict of interest by the agent under
investigation. Both the complainant and the agent under investigation should be
provided with some assurance of no conflict of interest. MARA advises that it has not
been able to identify any such occasion where a board member did not withdraw
from discussion regarding a sanction where they were perceived to have a conflict of
interest, and the CEO has extended an invitation via the Ombudsman’s office for the
agent concerned to meet and discuss their concerns.

2.31 MARA has the power under s 303 of the Migration Act to discipline agents.
This power is delegated to a number of senior staff under Delegation E1. Delegates
are required to have regard to the written directions issued by the MIA. In particular,
Written Direction No 1 says that any decision to discipline an agent (s 303), after they

have been given notice (s 309), must be made by the board of the MIA acting as
MARA or by the PSR Committee. Senior staff, as delegates under Delegation E1, are
given the delegation to discipline agents but are subject to the written directions
which say they cannot make the final decision to discipline. The written directions
mean that a delegate should not exercise a delegated power (s 303) and may be in
conflict with the Acts Interpretation Act 1901. While we do not disagree that decisions
as serious as disciplining an agent be made by the board or PSR Committee, we
suggest that DIAC and MARA obtain considered legal advice on whether the
direction given to delegates impermissibly seeks to limit a power granted by the
delegation to which it is referable. MARA has advised that DIAC obtained legal
advice in March 2006 on the written directions referred to on behalf of MARA and
MARA has acted in accordance with that advice.

2.32 MARA promotes the benefits of an agent’s peers being the ones to make
decisions on sanctions. While there are some advantages for the decision maker
having an understanding of the matters from the agent’s perspective, we believe that
this should be achieved by more independent means. In our view, having practising
migration agents as the decision makers will invariably lead to questions of conflict or
bias and result in reduced confidence in the process.

2.33 A perception of conflict may arise if decisions are being made by
committee/board members who may be regarded as being in competition with the
agent under investigation, simply because they operate in the same state or territory
or in the same area of specialisation or market. These conflicts need to be able to be
identified and, as an interim measure, may be overcome by establishing
subcommittees made up of ‘non-competitive’ agents. A more permanent and
effective way of managing this issue would be to include one or more independent
persons, with experience in other areas of law, including administrative law, and from
consumer or community organisations, on the PSR Committee, when complaints and
proposed decisions to discipline agents are being considered. This would assist in
providing added assurance that potential conflicts of interest are managed properly,
and that there is an adequate client focus. Similar arrangements should be put in
place when the board is considering complaints and proposed decisions to discipline
agents.

2.34 It was also put to us that because the MIA is responsible for MARA, MIA
members have access to information about MARA processes and practices that
other agents do not. Only about 44% of registered migration agents are members of
the MIA. Our investigations indicate that MIA members have the same level of
difficulty in extracting information from MARA as agents generally. (Transparency
issues are discussed in more detail later in this report.) This is highlighted by the fact
that the MIA Professional Practice Panel, which, according to the MIA Annual Report
2005–06 was established to provide support to member agents subject to MARA
investigations, has had difficulty in gaining access to MARA documentation on the
complaint-handling practices and procedures. Furthermore, it appears that MIA
members may indeed be hampered in receiving support from their board because of
its relationship with MARA. MARA’s view is that the reference to the Professional
Practice Panel is not correct, as the MIA has not yet established this Panel. MARA
believes that it treats all agents equally and has set out a good description of its
complaint process on its website.

2.35 It was also suggested by the legal bodies consulted that the MIA has a level
of access to DIAC information not readily available to them, including consultation on
policy, updates on changes to migration legislation or DIAC practices and procedures
and DIAC contact arrangements. On this point, DIAC suggested that it does not intentionally treat the MIA or the Law Council of Australia differently when it comes to
consultation and that both had been involved on policy development and information
exchanges, although this may have been through state based forums rather than at
the national level. DIAC recognises the need to increase stakeholder involvement in
some matters and will be looking to ensure the peak bodies are involved in
considerations for the review of the migration advice industry due by June 2008.

2.36 Under s 316(1)(b) of the Migration Act, MARA is responsible for monitoring
the conduct of registered migration agents and lawyers. The Deed identifies industry
audits as the key performance indicator and the aim is to audit 4% of the profession
annually. MARA achieves this by auditing all agents who have a complaint raised
against them, and who have not been audited in the previous 12 months (excluding
frivolous or vexatious complaints or in general those complaints which are not
advised to the agent, for example, because of lack of permission to publish by the
complainant). The audit is undertaken irrespective of the outcome of the complaint
investigation.

2.37 This is a blanket approach to audit activities. It is not based on any risk
assessment of the individual concerned, nor is it strategic in nature. For example,
candidates for audit are not selected on the basis of their level of experience, the
structure of their business, or the profile of their clients.

2.38 To subject an agent to an audit at the same time he or she is required to
cooperate with a complaint investigation puts unnecessary pressure on the agent
who has to respond to both the complaint allegations and the audit requests in a
similar time frame. This adds to the stress of an already stressful process,
irrespective of the agent’s level of compliance. It is also possible that persons aware
of this blanket policy may raise spurious or vexatious complaints about an agent in
order to inconvenience them.

2.39 Further, we believe that the linking of audits directly to the complaint process
is inconsistent with the concept of complaints being an opportunity for improvement.
Late in the investigation we were advised that MARA has reviewed its approach to
auditing, and changes will be implemented.’

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