Louise Markus (Greenway, Liberal Party, Shadow Parliamentary Secretary for Immigration and Citizenship) Share this | Hansard source

I rise to speak on the Migration Legislation Amendment Bill (No. 1) 2008. The coalition is supporting this legislation. The bill is an omnibus bill that makes a range of amendments to several acts, including the Migration Act 1958, the Australian Citizenship Act 2007, the Australian Citizenship (Transitionals and Consequentials) Act 2007 and the Customs Act 1901. Schedule 1 of the bill will streamline and simplify the procedures of notifying parties with regard to a decision of the Migration Review Tribunal and the Refugee Review Tribunal. The current notification procedures have been the source of litigation and lengthy time before courts for families and individuals affected by this for many years, and, in many cases, decades. As has already been mentioned, this has been a concern for both sides of the House for several years, particularly when families and individuals have had to put their lives on hold. Children of parents who are applicants have had to wait decades to actually plan for their future. One would hope that these amendments will actually improve that situation.

The coalition notes that schedule 1 of the bill was also intended to reinstate effective time limits for applying to courts for judicial review of migration decisions. The current time limits in the act have been made largely ineffective, particularly following the April 2007 High Court decision of Bodruddaza v the Minister for Immigration and Multicultural Affairs and the July 2007 full Federal Court decision of the Minister for Immigration and Citizenship. The government’s new amendments will effectively remove a schedule 1 of the bill as it has come to light that the bill as drafted would not have worked appropriately with regard to decisions to which no merits review rights attach. The coalition understands that further consideration is required to determine how best to reinstate effective time limits for all judicially reviewable cases.

Items 7 and 20 provide that tribunals will be required to notify an applicant of a decision other than an oral decision by giving the applicant and the secretary a copy of the decision within 14 days after the day on which the decision is taken to have been made. Items 6 and 19 provide that a decision other than an oral decision is taken to have been made on the date of the decision. This new formulation largely reflects the notification procedure that currently applies to persons in immigration detention.

According to the second reading speech, the proposed new method for notifying parties of the tribunal’s decision will be a lot simpler, thereby reducing the risk of error, particularly administrative errors. This suggests that handing down procedure that was introduced in 1999 to create certainty of dispatch has not, in retrospect, achieved its purpose.

Schedule 2 of the bill clarifies the requirement for operators of aircraft and ships to report on passengers and crew prior to entering Australia—the Advance Passenger Processing system—and also establishes an infringement notice regime. The government’s amendments make it clear that aircraft and ship operators are liable to separate prosecution under these offence provisions in relation to each individual passenger and crew rather than with regard to each journey not reported on prior to arrival in Australia.

Schedule 3 of the bill makes a number of minor amendments to the act to again make it clearer with regard to immigration clearance of non-citizen children born in Australia, compliance with visa conditions and the operation of certain provisions relating to bridging visas. Immigration clearance is vitally important for a number of reasons. It affects a noncitizen’s access to visas, especially bridging visas, under the Migration Regulations. It affects immigration detention. An unlawful noncitizen—that is, a noncitizen in the migration zone without a visa—must be detained and a lawful noncitizen may be detained if they hold a visa that may be cancelled. An immigration cleared noncitizen may only be detained if they are likely to attempt to evade or otherwise not cooperate with Immigration officers. It also affects access to visas in relation to safe third-country rules. If a noncitizen is covered by an agreement between Australia and a safe third country, their access to visas will be essentially diminished. It also affects the cancellation of visas and the review rights. Generally, the MRT may not review a decision to refuse to grant or to cancel an offshore visa if that decision was made before the person was immigration cleared.

The purpose of the measures in schedule 4 is to increase protections, particularly for clients who engage offshore migration agents. This gives DIAC the capacity to refuse to communicate with offshore migration agents, particularly when there are concerns about their professionalism, competence, conduct or character. Many of us on both sides of the chamber have seen many of our constituents come to us regarding this. As a result of poor advice or excess charging by migration agents—the list goes on—their future capacity to actually migrate or obtain a visa is limited. Often these individual applicants are unable to obtain a visa for decades because of the impact of this advice and the way that migration agents overseas have, in some cases, handled their case.

Schedule 4 of the bill was not initially considered to be urgent, particularly when the bill was introduced. However, the legislation must be passed quite quickly due to the decision on 17 July of the full Federal Court in Sales v Minister for Immigration and Citizenship. This decision gave effect to the obiter comments in Moore v Minister for Immigration and Citizenship. The amendments contained in schedule 4 of the bill already anticipated such problems and difficulties, but these amendments will help to ensure that the character cancellation provisions will apply to all temporary and permanent transitional visas and provide validation of all past character cancellation decisions in relation to such visas.

Throughout the history of immigration in this nation, Australians have felt strongly about Australia deciding who is to come to this country. One of the foundation principles has been the importance of character and how that impacts on the decision to grant someone’s application for a visa. As a result of the Federal Court’s decision in Sales v Minister for Immigration and Citizenship, some 23 people, including Mr Sales, were released from immigration detention. The coalition, while careful and cautious in supporting such legislation, agrees with the government that this must be passed quickly to address the situation caused by the decision of the full Federal Court.

Schedule 5 seeks to clarify the meaning of certain provisions of the Australian Citizenship Act 2007 and the Australian Citizenship (Transitionals and Consequentials) Act 2007. The purpose of the amendments is to ensure that Australian citizenship law is consistent with our international obligations under the United Nations Convention on the Reduction of Statelessness of 1961. This bill aims to address and rectify challenges in the areas of judicial and merits review, border protection, visa integrity, Australian citizenship and other miscellaneous matters. I commend the bill to the House.

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