The group says existing regulators can sanction misconduct while protecting lawyers' independence
The Law Council of Australia has urged caution against suggesting systemic misconduct among migration lawyers, emphasising that existing regulatory frameworks provide mechanisms to investigate and sanction practitioners who breach their professional obligations.
Law Council president Tania Wolff said lawyers handling migration matters must meet the same ethical and professional standards as other legal practitioners, including their duty not to mislead courts, tribunals, or government decision-makers.
"Where those obligations are breached, there should be consequences, and the regulatory framework in every state and territory provides for them," Wolff said in a statement.
She said the Department of Home Affairs should promptly refer any evidence of misconduct to the relevant regulator. Regulators can investigate allegations and impose sanctions, including fines, conditions on practising certificates, suspension, or removal from practice. Courts can also refer practitioners to regulators.
However, Wolff cautioned against portraying misconduct as a profession-wide problem, noting the complexity of migration law and the significant consequences for clients.
"Great care is needed, though, not to suggest a systemic failure across the profession," she said.
Wolff emphasised that lawyers owe their paramount duty to the court and the administration of justice. Lawyers must exercise independent judgement rather than act as a mouthpiece for their clients and must avoid conduct likely to diminish public confidence in the administration of justice.
Under the Migration Act 1958 (Cth), lawyers conducting migration litigation must certify that proceedings have reasonable prospects of success. Practitioners who encourage hopeless proceedings can face personal costs orders.
Wolff also addressed s. 351 of the act, explaining that the Minister's personal power to make a more favourable decision in the public interest is generally available only after a visa refusal has been affirmed by the Administrative Review Tribunal. She said this process may provide the only available pathway for applicants with genuinely compelling circumstances.
She said that where lawyers openly explain their reasons for making applications to the department and tribunal, following the statutory process does not constitute improper conduct.
The Law Council said it was willing to discuss genuine concerns with the government and called for consultation with the legal profession while preserving its independence. The Law Council also emphasised that an independent legal profession plays a vital role in helping everyone in Australia, including migrants, understand and assert their legal rights.
