Mr Tony Burke (Watson, Australian Labor Party, Shadow Minister for Immigration, Integration and Citizenship) Share this | Hansard source

The Migration Amendment (Review Provisions) Bill 2006 will not attract a whole lot of attention. That is probably partly why we are up here in the Main Committee. Notwithstanding that, it is actually a very important piece of legislation because it shows a policy direction which is of great importance, a commitment to which is shared by both the government and the opposition. It will ensure that decisions are streamlined and that a final answer can be given at the earliest possible opportunity.

One of the saddest things that I think we find in the portfolio of immigration is when somebody is being returned to their home away from Australia after seven years when the answer actually could have been given much earlier. It is an ongoing legislative battle to be able to come up with the correct processes to streamline it and to make sure that, if the answer is going to be no, that answer be given at the earliest possible opportunity. During the long delays, people are often encouraged by migration agents who know that a case has very little hope and also know that once the people leave Australia they lose a client. I see this in my own electorate from time to time—migration agents give people false hope and get them into endless litigation.

While it is easy to jump up and defend the fact that we want everybody to be able to assert their legal rights at every opportunity, we also cannot get past the human cost of litigation that runs on forever. In that situation, after lengthy periods of time, people lose all contact with the country from which they originally came. That would not be the case if their return had occurred earlier. Their children have grown up knowing only the language of this country and having made friends in the schools that they attended in this country. If the answer is going to be no, the earlier that answer can be given the better.

This piece of legislation is an attempt to streamline and allow that answer to be given at an earlier opportunity than is currently given.

About four years ago, with respect to refugee claims, the Labor Party adopted a policy of being able to process 90 per cent of claims within 90 days. At the time, we were ridiculed by the government for adopting that proposal. The minister in his second reading speech has just referred to the fact that, a couple of years ago now, the government actually adopted a statutory principle that claims should be processed within 90 days. It is good that they did so and it is a shame they did not acknowledge the earlier ridicule of this earlier policy—but that is just life in this sort of business, I guess. It is good that they did so and that they acknowledged the public policy importance of the same decision—the exact same decision which would have so much more justice attached to it in terms of dignity in the lives of individuals if it had arrived at an earlier time.

This bill deals specifically with two areas where the streamlining can be done a whole lot better. In each it would not be fair to blame the drafting of the legislation by the government of the act prior to this bill being introduced because, in all fairness, no-one expected the courts to interpret the provisions as narrowly as they have.

It is ludicrous to have the current situation where a court has to put back to somebody the material in writing that person has just provided in writing. It is also an extraordinary situation where information like passport details, family composition and statutory declarations, which have been provided and which the tribunal is seeking to rely on, have to be put back in writing to that applicant, in the same way as information which is being covered exhaustively during the tribunal hearings and which the applicant is clearly 100 per cent aware of has to be put back to them again in writing. It creates further opportunities for endless litigation and that is something which we do not want.

I do acknowledge the presence of the member for Kooyong in the Main Committee right now and acknowledge the work that he did in bringing the government to provide the statutory limit of 90 days for the processing of claims. I acknowledge his role in that.

The bill, in bringing about those changes, has to make sure people’s rights are not trampled. We want a decision to be made quickly. We want it to be finalised at the earliest possible opportunity. We also want the procedures to be handled in a manner which can only be described as fair. The Senate committee report made the quite reasonable recommendation:

It is almost certain that the provisions will invite litigation challenging whether the Tribunals:

• considered that the applicant understood the information;
• reasonably formed the view that the applicant did not require more time to respond to the information; and
• met the overarching requirement to apply the provisions in a fair and just manner.

This raises a legitimate fear. While there is no doubt about the good intention of the legislation, we do not want to see our attempt to close off one end of endless litigation actually open up a new path of endless litigation. For that reason, the Senate committee in its report unanimously recommended that there be an amendment to the effect that, when the tribunal determines that the information will not be provided in writing and that it will actually be provided orally, the applicant consent to the process. Getting the applicant to consent would obviously close out the likelihood that the applicant will seek litigation and complain about an outcome that they themselves had actually agreed to during the tribunal hearing.

That amendment, which was supported by the government members in the committee report, was opposed by those members when it came to the vote in the Senate. Labor supported that amendment and supported it for the same reason that the government put forward this bill—because the policy objective is a good one. Some people will say it is a bad thing whenever you try to put any extra limitations in the way of people’s appeals. I do not believe that is the case for a minute. We want decisions to be made fairly and in a streamlined manner—as fast as is possible—so that people know if their future lies in Australia or in another country and can get on with that decision and its implications for them before they lose touch with that other country. That is a good policy objective. There is a genuine fear that, by not seeking the consent of the applicant, this legislation could well have the opposite impact to what is intended by the government, I believe, in good faith.

We had a go with that amendment in the Senate. Given that we did not win it in the Senate, I reckon odds-on we are not going to win it in the House of Representatives so we will not be moving that amendment again. But I do put on the table the concerns from the opposition. We want to make sure that we do not unintentionally end up with this bill, which was aimed at reducing litigation, actually closing off one path and opening up a whole new path. That is in nobody’s interests. Whether it will turn out that way remains to be seen, but it is a concern that came out of the Senate inquiry and it is a concern that the opposition view as being quite genuine.

While we believe that amendment could have made the bill better, we certainly hold the view that this legislation nonetheless is an improvement on the current act. No-one could have foreseen that we would end up in the situation where it would be insisted upon that something that was covered exhaustively would be given to an applicant again in writing. Certainly we never expected we would be in the situation where information which the applicant had provided to the tribunal would have to be provided by the tribunal back to the applicant in writing. I do not think anyone foresaw that that would be an outcome. To have a more streamlined process involves correcting anomalies such as those.

For those reasons the opposition support this bill. We believe that there is a risk that could have been closed out. The government sought to go down this path. I certainly hope history shows that we ended up with a positive outcome and that this did play a small role—it will not play an earth-shattering role—in making sure that the determination of someone’s claim to stay in Australia is made fairly and at the earliest opportunity.

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