Mark Butler (Port Adelaide, Australian Labor Party) Share this | Hansard source

Thank you. It is a pleasure to rise to speak in favour of the Migration Amendment (Notification Review) Bill 2008. Immigration is an emotive and complex area, fraught with competing interests and the need for a strong system of checks and balances. Whether it involves the reunification of families, the offer of safe asylum to the persecuted or ensuring that Australia has the skilled population needed to sustain our economy, immigration policy has a profound effect on people’s lives, and it is vital that both citizens and noncitizens have confidence in our program. Eleven years of immigration policy under the previous government seriously undermined that confidence and left a legacy of deep distrust in the quality of decision making, ethics of policy and culture of the department. We as a government are committed to overturning that legacy and providing a system that has integrity, transparency and fairness and which balances the needs of clients with the protection of our borders. Already the Rudd government has made great strides in reforming the system. One of our first acts was to dismantle the so-called ‘Pacific solution’—a scheme that was never going to be a solution but was instead a base, populist stunt that cost Australia’s reputation and finances whilst it played politics with the lives of some of the world’s most vulnerable people.

Under the Howard government Australia’s detention policy was a source of international condemnation. We have reformed the system to take a risk based rather than punitive approach to detention policy. No longer will Australia bear the shame of children languishing in our immigration detention centres. No longer will being unlawful mean facing years of detention despite posing no danger to the community. No longer will taxpayers have to pay for an expensive, unnecessary and destructive detention scheme. We are still maintaining mandatory detention for those unlawful noncitizens who present an unacceptable risk to the community or who repeatedly refuse to comply with their visa conditions. Unauthorised boat arrivals will still be subject to mandatory detention for health, identity and security checks. This government is committed to protecting our nation from the potential dangers posed by some unauthorised arrivals or unlawful noncitizens, but we are also committed to treating people with dignity. We will only use detention centres as a last resort and for the shortest practicable time.

We have also abolished the temporary protection visa regime—another shameful chapter in the immigration policies of the Howard government. This regime actively prevented refugees from rebuilding their lives by denying them the entitlements and security of permanent residency despite our international obligations. Not only was this a further stain on Australia’s reputation but also it entirely failed to serve its claimed purpose. Evidence shows that the temporary protection visas did nothing to prevent unauthorised boat arrivals, with numbers actually increasing not long after the introduction of the regime.

Unlike our predecessors, the Rudd government is shaping policy that maintains the integrity of Australia’s immigration system whilst ensuring that our humanitarian program is humanitarian in substance as well as in name. This means not using asylum seekers as political toys, not locking up traumatised children and not compounding the suffering of those whom Australia has long recognised a moral and international obligation to help.

We have also tackled the skills shortage. Employers have had the pressure eased by the Rudd government adding an extra 31,000 skilled migrants to the 2008-09 migration program. We have recognised that this record 30 per cent intake increase could put strain on a department already struggling with demand, and so we are working to tighten up processing procedures and improve servicing standards. The Rudd government know that business needs all hands on deck, not stuck waiting at the dock bound up in red tape, and we are actively working to streamline the process for both employers and employees.

We have also taken action to reform the 457 visa program. The Howard government allowed this program to run without sufficient safeguards to prevent the exploitation of temporary skilled foreign workers or the undercutting of wages and conditions of Australian workers. Unlike the Howard government, we believe in responsible government. The Rudd government are committed to ensuring that the 457 visa scheme operates as effectively as possible whilst protecting the rights of overseas workers along with the employment opportunities of our own citizens.

We know that, without strong compliance initiatives, the integrity of our entire immigration program can be jeopardised. We have a zero-tolerance approach to illegal workers and the employers who engage workers without valid visas. We have also increased the use of biometric technology to strengthen further the protection of our borders.

The Rudd government recognise that, to restore public confidence in our immigration program after the damage caused during the Howard era, we need to improve the transparency of the entire system, including at a ministerial level. This is why we have commissioned an independent report into the ministerial intervention powers. Non-compellable, non-reviewable and non-delegable powers have a dangerous potential for abuse.

We have also taken steps to improve confidence in our review tribunals by undertaking a merit based selection of members rather than the minister exercising his or her option simply to re-appoint current members. Unlike our predecessors, this government recognises that a fair and transparent review system needs a fair and transparent selection system of appointments to ensure credibility.

The Rudd government have listened to the concerns raised about the structure and the content of the citizenship test set up by the Howard administration, and we are ensuring transparency and integrity in reform by the establishment of an independent review committee to look into that test. We believe in the benefits of a citizenship test. We also believe it can only be effective and meaningful when it is accessible.

The bill before us today, the Migration Amendment (Notification Review) Bill, continues this government’s work in reforming our immigration system. The Commonwealth Ombudsman, in his December 2007 report Notification of decisions and review rights for unsuccessful visa applicants, highlighted difficulties with the notification provisions of the Migration Act and their potential to result in unlawful detention of clients. This bill is just the first step in tackling those difficulties and is part of a broader set of measures the government is considering.

Notification is an integral part of the immigration processing system and a basic tenet of natural justice. The obligation to explain the reasons for a decision and the rights or obligations triggered by that decision is basic to the transparency and accountability of government. The Rudd government recognises the need for strong procedural safeguards in this important area, but it also recognises the need for clarity, simplicity and some flexibility for individual circumstances. This bill, as the initial stage of a broader package, will amend two aspects of the notification procedures.

Firstly, the bill will provide that actual notification will apply if the deemed notification provisions cannot operate. Timing is crucial here, as review rights must be exercised within strict time limits from the deemed date of notification. This amendment focuses on errors in the method of notification. Currently, if a client has actually received correspondence from the department or a tribunal and has acted upon that correspondence without any apparent detriment resulting from a technical error, the courts can still rule that they have not legally received it due to that technical error. This is not just absurd; it also prevents consistency and certainty of outcomes, wastes valuable resources, and leaves the department open to claims of unlawful detention and unlawful removal. What this amendment will do is clarify the system by ensuring that a legal technicality does not negate what has occurred in fact. This amendment will not corrode the rights of clients. If an error actively prejudices a client exercising their right of review, then it will not fall within the scope of the amendment. This amendment simplifies the system and provides for certainty of outcomes whilst retaining a flexibility that protects fairness.

The second amendment relates to the communication with minors through a person or organisation exercising care and responsibility for the minor. The act defines a minor as someone under 18 years of age. Outside certain circumstances, the current provisions in the act now require that the relevant correspondence be sent to the minor even when the minor may be too young to understand the contents. This amendment will enable effective notification with a minor where the minister, his delegate or a tribunal has a reasonable belief that the recipient of the notification has the care of and responsibility for the minor. This amendment will produce the result that the person most likely to act on the notification is also the person who receives it. This is clearly in the best interests of the child and the effectiveness of our system. Where no-one with responsibility for and care of the minor can be identified, then notification can still be sent directly to the minor.

In broad and in summary, these amendments to the Migration Act will increase simplicity, clarity and flexibility in our notification regime whilst protecting the rights of clients. They will reduce unnecessary depletion of departmental resources and provide certainty and consistency of outcomes. I commend the bill to the House.

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