Sharman Stone (Murray, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I rise to speak on the Migration Amendment (Notification Review) Bill 2008. I am very pleased to be doing so as the new shadow minister for immigration and citizenship. The coalition welcomes the bill as a sensible measure to address problems that can arise with the notification requirements under the Migration Act 1958. The content of communications between the Department of Immigration and Citizenship, the Migration Review Tribunal, the Refugee Review Tribunal and their clients may be to do with visa applications or the clients’ future legal status, so these communications are of critical importance. Often these notices require a response or particular action within a tightly specified time frame.

Unfortunately, there have been cases in the past where a very small deviation from the prescribed process has given a client recourse to challenge the legality of the notice itself, even though the communication was received and perfectly understood. Some clients have been able to delay the resolution of their cases by mounting court challenges based on a minor technical error in the notification. There have been a series of cases over the last few years when the courts have determined that small technical defects in notifications amounted to the client not, in effect, being officially and appropriately notified. The then Minister for Immigration and Citizenship, the Hon. Kevin Andrews, described these notification issues as the ‘legal process gone mad’.

This bill will ensure that clients continue to be treated with fairness and that standard procedures will be followed, but with less opportunity to use a wrong postcode or some other small hitch as an excuse to rule the communication as not being received or not requiring the specified response—that is, of course, if the communication has in fact been delivered to the client in the proper time frame.

Put simply, this bill amends the Migration Act 1958 by introducing changes that will clarify the way in which the Department of Immigration and Citizenship, the Migration Review Tribunal or the Refugee Review Tribunal can properly notify clients of decisions. This legislation will, at the same time, ensure that the notification system remains a fair and reasonable process for all of the parties involved.

The provisions of the bill relate to the notification of minors and the deemed time of notification. The bill provides that where the minister or tribunal forms a reasonable belief that an individual has care and responsibility for a minor the minister or tribunal may communicate with that person instead of the minor to notify the individual of a decision about the minor. This is a sensible measure that will ensure a more appropriate handling of applications when an underage person is not part of a combined application, especially when he or she is too young to understand what the notification is about.

Secondly, the bill provides that the deemed time of application provisions will operate despite noncompliance with the procedural requirement for giving a document to an individual, where the individual has actually received the document. Where the individual is able to show that they received the document at a later date, that later date will be taken as the date of receipt. As has already been said, the courts currently require a strict and inflexible compliance with the statutory notification procedures and this has led to delays and costly legal proceedings despite the fact that the client may have received the notice in a timely manner.

This legislation should restore more common sense and give a greater degree of certainty to the notification procedures. With ongoing monitoring, there will no doubt be further evolution of these processes and procedures to ensure they are the most efficient, effective and just and cannot be exploited as a stalling opportunity. I am pleased that this government has realised that the bill as originally presented in the Senate needs an amendment in this House to eliminate what could have caused new complications and the potential for more inefficiency and time wasting.

The original bill as introduced contained a rather nebulous provision that ‘substantial compliance’ with the required contents of a notification document was sufficient unless the visa applicant or other applicant was able to show the error or omission in the document had caused them ‘substantial prejudice’. Proving what constituted ‘substantial’ compliance or prejudice would have been complicated and, of course, highly subjective. I am pleased that the government has recognised that, rather than tightening interpretations or closing loopholes, this provision may have caused us more opportunities for unintended consequences. I am therefore pleased to support the further amendment.

While this is a technical bill which does not fundamentally change Australian immigration policy, it does refer to the business of effectively administering appeals and assuring compliance with our immigration policy. It is therefore a significant and important matter. There are some 46,000 visitors who are currently overstayers in our country. There are another 2,000 or so onshore protection visa applicants waiting to be processed. Clearly our systems of application processing must be transparent, efficient, just and humane. The Howard government left a legacy of immigration law, regulation and practice which has delivered one of the best controlled and managed immigration programs in the world, where the government decides who comes to our country, who is most in need and who is best served by our ongoing protection.

The number of people now arriving on our shores illegally has decreased substantially as a result of the strong but fair policies that the Howard government implemented. This has meant that more of the world’s most needy refugees, including those who have been waiting for years in refugee camps, are given the opportunity to settle here under our refugee or humanitarian programs. I am pleased to see the new Labor government choosing to continue the Howard policies, given they have been very successful in reducing the number setting sail in leaky boats, often exploited by unscrupulous operators. We will never know how many boats sank on their voyages as the people smugglers tried to slip through the back door to Australia.

We need to ensure that places on our humanitarian program go to those with the most urgent need, rather than to those who have the best contacts and capacity to pay people smugglers or to pay for air tickets to Australia. Immigration is, and will continue to be, both a social and economic imperative for Australia. To borrow a phrase from the former Prime Minister, ‘I believe we all recognise that the things that unite us as Australians are much greater than the things that divide us,’ and we are a great nation as a result of generations and waves of migrants coming to our shores, working hard and embracing our great Australian values and traditions.

As the member for the northern Victorian seat of Murray, the most ethnically diverse electorate in regional Australia, I know firsthand the contribution that migrants have made to the social and economic fabric of our communities. As the shadow minister I look forward to working with the government to ensure that migrants to Australia have the support they need and that, in due course, different categories can apply to become citizens.

Citizenship is a privilege, not a right, but I am concerned that nearly a million people who are eligible for citizenship have not yet chosen to take this step. Many are older settlers from the United Kingdom, who arrived at a time when Australia’s citizenship laws and associated privileges, like voting, were different. I encourage the 900,000 settlers who contribute to and enjoy the freedoms and opportunities of our great country to take the final step to become Australian citizens. The Howard government wanted to ensure that English language understanding and a knowledge and acceptance of the values, rights and obligations of Australian citizenship were understood by those who stepped up to take an oath of allegiance to our country. I am pleased this new government has embraced the new citizenship testing and record numbers are now stepping forward. This test will, no doubt, evolve over time to become ever more effective in truly testing the new arrivals’ knowledge of our country and our first language. I commend this bill to the House. It has the strong support of the coalition.

James Bidgood (Dawson, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak to the Migration Amendment (Notification Review) Bill 2008. It amends the Migration Act to effect three broad policy initiatives of this government. The first is to provide that actual notification will apply if the deemed notification provisions cannot operate. The second is to provide that where the minister, or the relevant appeal tribunal, reasonably suspects that a person has care and responsibility for a minor, who is defined as someone under 18 years of age, then notification of that person equates to notification of the minor, except where an authorised recipient has been validly appointed. The third is to provide that substantial compliance with the required contents of a notification document is sufficient.

Notification as proposed in the bill represents a set of natural justice obligations under the Migration Act 1958 to notify applicants of, amongst other things, visa refusal and cancellation decisions and to provide information on any review rights available as a result of these decisions. The purpose of these amendments is to achieve a notification regime that is simpler, provides greater clarity and consistency and is sufficiently flexible to respond to individual circumstances. These amendments will reduce complexity and deliver more consistent, fair and reasonable outcomes to clients.

At the tribunal level, the obligations under the act relate to notifying merits review applicants of, amongst other things, the tribunal decisions. The Commonwealth Ombudsman, in his report Department of Immigration and Citizenship: notification of decisions and review rights for unsuccessful visa applications of December 2007, drew attention to the difficulties with the notification provisions and their potential to result in the unlawful detention of clients. This bill seeks to clarify some of these interpretations and recommendations by the Ombudsman.

The courts have generally adopted an extremely strict interpretation of the notification provisions and require absolute compliance with these provisions. The courts’ strict interpretation of the notification provisions diverts enormous departmental resources. Highly technical decisions by the courts on notification have undermined the administration of the migration system, thus creating situations where action taken in good faith by departmental officers in respect of a client is actually unlawful as the client was not properly notified of a departmental decision. This bill is the first step in seeking to rectify these issues. A broader series of measures are being considered by the government. The changes that are proposed in the bill will provide a very fair and reasonable outcome to clients in that if they receive a letter from the department or tribunals they can rely on it and act on it. The amendments do not seek to disadvantage clients in any way; rather, they provide clarity and certainty. These changes should result in fewer cases going to court, which should also result in reduced costs to the taxpayer. One thing that this government is concerned about is reducing costs to the taxpayer. Having an efficient administration and tribunal system and having this clarity help reduce costs to the taxpayer. That can only be a good thing.

The act and the migration regulations of 1994—the regulations—contain numerous provisions dealing with the requirements for notification in specific circumstances. These cover the content of the notice, who must be notified, where and by what method. These provisions have created confusion for departmental officers and fertile ground for the courts to find defects in notification. Technical errors can also be relied upon by those clients seeking to delay resolution of their case. Overall, this is a technical cleaning up of various parts of the Migration Act, and it is good to hear that it is something that is welcomed by the other side. This bill will help people have a pleasant experience as they go through their citizenship applications and their migration experience. As we all know, Australia is a multicultural society and has a rich tapestry of cultures. We are all the better for it. The least that this government can do is make the experience of migration as pleasant, efficient and clear as possible. Therefore, I recommend this bill to the House.

Shayne Neumann (Blair, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in favour of the Migration Amendment (Notification Review) Bill 2008. This bill is an amending piece of legislation designed to overcome technical obstacles in respect of notification. What does that mean? I will not bore the House with the names of all the various judicial decisions but I will refer to a number of judgements and what was said, and I will give a precis of some of the outcomes in that regard, just to show what the problem is that currently needs to be overcome. These judicial decisions concern the way in which the Department of Immigration and Citizenship and certain tribunals deal with what they call their ‘clients’ in respect of visa applications and visa cancellations.

The Migration Act 1958 and the Migration Regulations (Amendment) 1984 set out the provisions for how the department, the Migration Review Tribunal and the Refugee Review Tribunal deal with clients in the circumstances. I have had a look at the regulations, the act and the various case law. They specify what must happen with respect to notification and the contents of notification, the methods by which notification is affected and the deemed time of notification and its application. This information can be found in detail in the regulations and in the act. It is quite a complex piece of legislation when you have a look at it—it is a wonder that any individual can actually understand it. The actual notification and the service provisions can be found in the legislation in sections 379A, 379B and 379AA, so we are talking about legislation that is starting to look like the Income Tax Assessment Act—it is quite complex and quite long.

The service requirements are prescriptive and they are technical. Any lawyer who practices in civil litigation understands that service provides a great possibility for disputation; it is pregnant with possibilities. As a lawyer who practised in the area of civil litigation and personal injuries, crime—in my early days—and family law, I always looked closely when service was being affected. How was the method of service being affected? Did it need to be ordinary service, service by post, special service or service to the person personally—actually delivered to their hand? What about a corporate entity? Do you serve the registered office? Where is the registered office? Is service upon the lawyer for the party effective service? All these things challenge litigants, they challenge lawyers who practise in these areas and they are ripe with the possibility for dispute.

In the Federal Magistrates Court and the Family Court, when service has been effected upon someone and they actually front up to the court itself, they can hardly dispute that they have not been served, because how or why are they there otherwise? If they require an adjournment, it is quite common for courts and tribunals in the federal area to grant adjournments in the circumstances if the person feels that they have not been given enough notice. But, really, the technical difficulties in this piece of legislation and in the regulations are quite extraordinary and they frustrate the whole integrity of the process. They are really an attack on the kind of litigation process that Australians expect will happen—that is, one which will deal with them consistently, deal with them fairly and deal with them in a manner which allows the process to be conducted expeditiously.

The primary purpose of this bill is to clarify and provide greater certainty in terms of the notification procedures. That was said by the Parliamentary Secretary for Multicultural Affairs and Settlement Services, Laurie Ferguson, in his second reading speech, and I agree with what he has to say. He said in that speech that the service provisions provide ‘fertile ground for the courts to find notification defects’. To rectify these issues, this bill seeks to clarify and improve the way that the department, the various tribunals and other bodies communicate on visa applications. Specifically, it will amend the Migration Act in three broad policy areas. The first is to provide that actual notification will apply if the deemed notification provisions cannot operate. That is fair in the circumstances. The second is to provide that where the minister or the relevant appeal tribunal reasonably suspects that a person has care and responsibility for a minor—in Queensland, where I come from, that is someone who is under the age of 18—then notification of that person equates to notification of the minor, except where an authorised recipient has been validly appointed. The third area is to provide that substantial compliance with the required contents of a notification document is sufficient.

I will not deal with the third area, because it has been flagged with me that the government may be sponsoring amendments to this area and there is some issue in relation to it, so I will deal with the first two areas. Can I say at the outset that this bill is not about to disadvantage or prejudice anyone in any way at all. It is all about certainty, clarity and specificity. It is fair and reasonable to ensure that clients are there and that, if they are present and they receive a letter from the department or the tribunal, they can act upon it and rely upon it.

The bill is necessary to fix technical errors. For instance, if a minister or the tribunal can communicate with a minor’s carer instead of the minor, then, under the changes, it will be lawful for the carer to respond on behalf of the minor. That seems sensible in the circumstances. The bill also makes it very clear that, where a person has actually received a document, they are served. It overcomes the procedural difficulties in those circumstances.

The difficulties with respect to the notification provisions had the potential to, and did, result in significant cost to the Commonwealth government. All litigation can be expensive: expensive to the litigant, expensive to the Commonwealth and, in the circumstances, it is necessary to overcome these problems. This was commented upon by the Commonwealth Ombudsman in his report Notification of decisions and review rights for unsuccessful visa applicants in December 2007.

As a former lawyer, I believe that due process is crucial. The right to be heard and to face whatever allegations may be confronting you is crucial. It is what we call ‘natural justice’. It is integral to the integrity of any immigration process system. Correct notification is required to trigger legal rights and obligations and to ensure that consequences for action can be lawfully followed.

The current provisions in the legislation stipulate that notification must occur in a certain way, it must contain certain information and it must be given to a specific person at a specific address in order for legal consequences to flow. Unfortunately, our courts, specifically the Federal Court, have adopted an overly strict interpretation of the notification provisions, irrespective of whether the applicant was actually notified, and I think, sadly and regrettably, it has frustrated the intention of the parliament. Justice Lander, in a 2008 decision, made this very clear. He said:

In my opinion, the provisions of section 422B, which make the content of Division 4A and Division 7A, together with sections 416, 437 and 438, a complete code for the discharge of the Tribunal’s obligations in relation to the natural justice hearing rule, suggests that Parliament intended that there be strict adherence to each of the procedural steps leading up to the hearing. Each of the procedural steps is imperative and must be complied with in the manner described in the Act.

It is interesting, because the decision was a unanimous decision and it held that the actual notification of a hearing invitation, evidenced in that case by the applicant’s attendance at the hearing, was not sufficient to override a failure to strictly comply with every part of the notification requirements in the act. In other words, if the actual applicant turned up to the court, service had not been effected. It is a legal nonsense. It is simply stupid for that provision to remain. In that case, all the applicants appeared at the hearing and a number of them had the chance to present their evidence. So none of the applicants were prejudiced by the failure to strictly comply with the relevant notification requirements.

This literalistic interpretation has led to numerous judgements from the courts which have found that the department and the tribunals have not correctly provided notification of the circumstances. The amendments in this bill relate to how the department and the tribunals communicate with their clients. I hope the onus will shift onto the applicant, to overcome excessive litigation. I do not think anyone in this House wants to see multitudinous cases in this area. It can be very difficult when people talk about migration, and there would be many of us who have had people in our offices talking about the challenges of the migration system. Just last Saturday afternoon I had someone in my office talking about these issues.

The amendments provide that the tribunals are deemed to have validly given notification, in a document, to an authorised recipient even if the document, the envelope containing the document or any accompanying material contains an error or omission that is minor or insignificant, unless the applicant can show that the error or omission substantially prejudices them. That amendment is necessary because of a 2002 decision which found that an envelope containing a notification letter had to be addressed to the noncitizen’s authorised recipient, not the noncitizen care of the authorised recipient. What a nonsense. What a silly thing to decide. It is hardly believable that a court would make a decision like this. That decision affected potentially hundreds, if not thousands, of cases.

Another decision in 2008 arose from the inclusion of an incorrect postcode on two letters sent to a visa applicant by the tribunal, which were received and acted on him. Fortunately, in that case the tribunal affirmed the decision and refused the visa protection. The outcome may, however, be less certain and more precarious in other cases.

The purpose of these amendments is to overcome this silliness in the circumstances. The amendments are about ensuring that individuals do not experience prejudice, that individuals are not disadvantaged in any way and that the court process can continue and go forward. It is not about denials of natural justice. It is about making the whole system simpler. It is about greater consistency, it is about greater integrity, it is about greater clarity, it is about greater flexibility and it is about the streamlining of notification procedures. It is about consistency and it is about reducing complexity. As someone who has practised for nearly a quarter of a century in the legal system, I think anything that achieves that outcome is not only good for the nation but good for the clients I used to have, good for the people in my electorate, good for the taxpayers of Australia, good for our country and good for the future integrity of our migration system. I commend the bill to the House.

Mark Dreyfus (Isaacs, Australian Labor Party) Share this | Link to this | Hansard source

I rise to speak in support of the Migration Amendment (Notification Review) Bill 2008. This is a bill which amends the Migration Act 1958 to provide that the Department of Immigration and Citizenship and the Migration Review Tribunal and Refugee Review Tribunal will no longer have to completely strictly comply with the legislation’s notification requirements. The notification requirements of this act deal with how the department and the tribunals communicate with people who are affected by the immigration regime. The act contains a number of detailed provisions specifying how the department and the tribunals can, and in some circumstances must, communicate with visa applicants and people whose visas have been cancelled.

An example can be seen in section 66 of the Migration Act, which provides that the department must notify an applicant of a decision to refuse a visa in a prescribed way. The notification not only is required to contain specific information, such as the criterion or the provision of the act or the regulations that was not satisfied, but also must tell the applicant if the applicant has a right to have the decision reviewed by the Migration Review Tribunal, the Refugee Review Tribunal or the Administrative Review Tribunal and also must tell the applicant when and where the application for review needs to be lodged and similar formal information of that nature. If one goes to other provisions of the act—section 494B, section 379A, section 441A—one can read other prescriptions of methods that are to be used in communicating with applicants, such as directions as to whether it can be by post or fax or other similar formal requirements.

The formal requirements for the way in which the department and the tribunals are to communicate with those affected by the immigration regime in turn lead to other provisions of the act, because effective notification under section 66 will trigger section 494C of the Migration Act, and that provides for a deemed receipt of a document by an applicant within a specified time. That has further consequences under the immigration regime. For example, if a document was sent within three working days of the date of the document to an address in Australia, the present provisions of the Migration Act provide that the applicant is deemed to have received it within seven working days after the date of the document. That in turn will have the consequence that an applicant wishing to have an adverse primary decision independently reviewed must initiate the review process within the time stipulated in the notification, and that is normally 21 days. Failure to initiate the review process within the prescribed time will result in forfeiting the right of review.

All systems for applications to government departments and processing of those applications by government departments and tribunals necessarily need to have formal processes and necessarily require time limits to be specified. The requirements for forms and the requirements for notification in all cases will need to be set out in legislation. What we have in the Migration Act is a particularly complex set of notification procedures, and those notification procedures have been found wanting, I think it is fair to say, in that a series of court decisions over the last several years has demonstrated a degree of unworkability of these notification procedures. Certainly, as has been examined at some length by the Commonwealth Ombudsman, the Department of Immigration and Citizenship has been found wanting in the way in which it has been administering these notification procedures.

The Commonwealth Ombudsman, Professor John McMillan, produced two very thorough and thoughtful reports over the course of last year that look at the notification procedures used by the Department of Immigration and Citizenship under the Migration Act. The first of those reports, released in June 2007, is entitled Report into referred immigration cases: notification issues, and the second report, released in December 2007, is entitled Notification of decisions and review rights for unsuccessful visa applications. What Professor McMillan found and reported on in these two reports was a range of deficiencies in the way in which the department had responded to difficulties identified by the Federal Court of Australia, the Federal Magistrates Court of Australia and the full Federal Court of Australia in a whole range of decisions, but notably the decision in Srey. It is worth reading some of the comments that were made by Professor John McMillan in those reports. In the June 2007 report, he said:

The legislative and policy framework controlling the notification of decisions is comprehensive and provides clear guidance to DIAC staff. However, the investigation of the individual cases in this report highlighted some recurring problems in the way that DIAC officers implemented the legislative and policy requirements. These problems appear to stem from poor internal administrative processes, a lack of understanding by some DIAC officers of the notification requirements imposed by the legislation and a failure by officers to identify notification deficiencies, and their implications, in a timely manner.

The Commonwealth Ombudsman made similar comments in his later report of December 2007, at the conclusion of his investigation into notification requirements. He said:

The investigation found that DIAC’s overall management of notification of adverse decisions is not coordinated or consistent. There was significant variation in the quality of information presented in notification letters, many of which fell considerably short of best practice standards. In some instances, this limited a visa applicant’s ability to seek review or successfully reapply. In other instances, the information was overly complex, confusing and poorly presented.

The Commonwealth Ombudsman was, naturally enough, focusing on administrative processes used within the department, but he also commented on possible deficiencies in the legislation itself. It is worth quoting from his June 2007 report in that regard. He said:

As a general observation, the prescriptive nature of the notification regime is a double-edged sword. Strict compliance by DIAC with the legislation will be enough to ensure legally effective notification, even if the letter remains unread or is lost in the post. Conversely, a small deviation from the requirements of the legislation can render the notice legally ineffective, even though the notice was received and read.

The deficiencies that the Commonwealth Ombudsman identified in those two reports were at an administrative level and are matters that the department is now, I think I am able to say, attending to. It is certainly something that the new Minister for Immigration and Citizenship in the Rudd Labor government, Senator Evans, has given priority to. It is reflective of the priority being given to this kind of administrative matter that the minister has initiated the amendments that are contained in the bill before the House today.

These amendments will assist in ensuring that, rather than the application of the completely strict letter of the law having dire consequences for applicants for visas or meaning that people whose applications have been refused lose their appeal rights, attention is given to the actual notification of those persons—that is, attention is being paid to the substance or the intention of these types of provisions, which are, after all, only facilitative provisions. These provisions are designed to ensure that people have drawn to their attention, through the processes of the department and the tribunals, matters which need to be drawn to their attention.

Just before going to the particular provisions contained in this bill, I want to comment on the speech on the second reading of this bill that was given by the member for Murray a short time ago. I was sorry to hear her wrongly claiming that the Rudd Labor government had continued the policies of the Howard government in relation to immigration. Indeed, I am sorry to hear any continuing defence of what I regard as the brutal immigration regime of the former government. The member for Murray has clearly not been paying attention to the recent announcements by the minister for immigration, because they make it entirely clear that the Rudd Labor government have put the immigration regime of the former government behind us.

The Rudd Labor government are not going to continue with the imprisoning of children of those who are seeking refuge. We are no longer going to remove people who are seeking refuge to the middle of the Pacific at huge cost to this nation—and that is before one even considers the emotional and physical cost to the people concerned. We are going to use a just and humane approach to immigration matters and to matters concerning refugees henceforth. The Rudd Labor government have already shown this. Australia is going to have an immigration policy and a refugee policy that the nation can be proud of, rather than the immigration policy that we were all ashamed of under the regime of the former government. The approach of the former government to immigration questions has been put behind us, whatever the member for Murray might choose to imagine.

The particular provisions of this bill are directed at a series of court decisions, as I said earlier. They are: Srey v Minister for Immigration and Multicultural and Indigenous Affairs, a 2003 decision of the Federal Court of Australia; Chand v Minister for Immigration and Multicultural and Indigenous Affairs, a 2000 decision of the Federal Court of Australia; Vean of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs, a 2003 decision of the full Federal Court; Khan v Minister for Immigration & Anor, a 2007 decision of the Federal Magistrates Court; Han v Minister for Immigration & Anor, another 2007 decision of the Federal Magistrates Court; and Pomare v Minister for Immigration and Citizenship, a 2008 decision of the Federal Court.

What you see in these decisions of the full Federal Court and the Federal Magistrates Court are decisions which are directed to the very tight and technical nature of the notification provisions as they presently stand in the Migration Act and are directed at a couple of aspects of those rather tightly worded provisions that this bill is directed to. First of all, the bill before the House will provide that actual notification will apply if the deemed notification provisions cannot operate. That of course is an entirely sensible provision in the circumstances. Provisions of this nature should be concerned with actually notifying the people who need to be notified.

The second provision in the bill before the House deals with the need to notify minors. It provides for the minister and the relevant appeal tribunals, where any of them reasonably suspect that a particular person has care and responsibility for a minor, to notify that person. A minor is defined as someone under the age of 18 years. Notification of that person having care and responsibility for the minor will equate to notification of the minor, except where an authorised recipient of notification has been validly appointed.

These are sensible provisions. They demonstrate that the government is attending to making the immigration regime of this country more workable. Lest anyone be in any doubt about the need to pay attention to the provisions of the act, one should only consider the volume of applications that these provisions potentially can apply to. We can read in the 2006-07 annual report of the Department of Immigration and Citizenship that the department processed some 12,000 visa applications every day, and in that year 3,678 applications and appeals to the courts were lodged against departmental or tribunal decisions compared to 3,893 in 2005-06.

This bill introduces provisions that are going to assist in the processing of that very large number of visa applications and will ensure that the processing of applications and appeals to the courts are dealt with in a way that is practical and in a way that pays attention to what is really occurring in terms of notification rather than getting lost in some forest of technicality—to use the words of a well-known playwright: to become lost in the ‘thickets of the law’. Instead, we need to pay attention to practical steps. The amendments in this bill are initial steps, the minister has said, in a broader series of measures that are being contemplated by this government in order to ensure the workability of the immigration regime. They are commendable measures and I commend the bill to the House.

Tony Zappia (Makin, Australian Labor Party) Share this | Link to this | Hansard source

I too rise to speak in support of the Migration Amendment (Notification Review) Bill 2008, which I believe is an important step in the necessary and overdue reform of both Australia’s migration policies and the administration of those policies. I will just comment briefly on comments made by the member for Isaacs, who I believe spoke very well in support of the need for these changes, but, more importantly, spoke as someone with a great deal of experience as a legal practitioner and a Queen’s Counsel. It was reassuring to hear his comments in support of the legal changes that are required, as he put it, in order to bring about a sensible outcome in the application of our laws. I guess few people would know the court system better than the member for Isaacs. To get his endorsement and support for this bill, I think, says a lot for it.

As a country that was settled by Europeans just 220 years ago and that subsequently has become home for people from across the world, Australia’s migration policies have over the years been the subject of many public debates and policy changes. I have no doubt that we will see more of those changes in the future, as each generation adapts or responds to the circumstances of the era. I want to focus my comments on the present migration policies and practices, much of which are largely a product of the Howard government era. Again, can I endorse the comments of the member for Isaacs in his reflection on those policies, because it is my view, and a view that I believe is shared very widely across the community, that the policies adopted by the Howard government were inhumane, unjust and in urgent need of review.

In speaking on this bill, I particularly want to draw on my observations and my experience as a member of the Joint Standing Committee on Migration—a committee I have been a member of since being elected to this place. Mr Deputy Speaker, as you may well know, the committee has been inquiring into issues relating to detention centres and to the detention of people. On that matter, I acknowledge and commend the Minister for Immigration and Citizenship, Senator Chris Evans, for the welcome policies relating to detention which he outlined on 29 July. Under the new policies, detention in immigration detention centres is only to be used as a last resort and for the shortest period practicable. Mandatory detention will remain in the following situations: for all unauthorised arrivals, for the management of health, identity and security risks to the community; for unlawful noncitizens who present unacceptable risks to the community; and for unlawful noncitizens who have repeatedly refused to comply with their visa conditions. I believe that most people in our community would agree that they are reasonable circumstances under which a person ought to be detained and that, bearing in mind that national security is of paramount importance to the government, those are reasonable conditions that ought to be applied in order to ensure national security.

As I said at the outset, Australia’s migration policies are in need of many overdue reforms, and this bill is an important step in that process. Certainly there is more to be done, but this is clearly a beginning and a very important step. As other speakers have said, the bill amends the Migration Act 1958 so as to clarify the way in which the Department of Immigration and Citizenship communicates with its clients. As the member for Reid, the Parliamentary Secretary for Multicultural and Settlement Services, said in introducing this bill to the House:

There have been a series of cases over the past several years where the courts have identified technical defects in notification that have created large legacy case loads which have proved difficult, if not impossible, to address through litigation or administrative reforms.

This bill amends the act to increase the certainty in the notification regime while still balancing that with the rights of noncitizens. The new notification regime is simpler, provides greater clarity and consistency and is sufficiently flexible to respond to individual circumstances. It also clarifies issues relating to notification for persons under the age of 18 years—and, again, the member for Isaacs made reference to that in his address.

The member for Isaacs also referred to the Ombudsman’s report, which I too want to refer to. The Ombudsman, in his report Notification of decisions and review rights for unsuccessful visa applicants of December 2007, drew attention to the difficulties with the notification provisions and the potential to result in the unlawful detention of clients. Clarification of the notification process will ultimately result in a reduction in public costs associated with detention, less time in detention and less trauma for those noncitizens and their families. From the public cost perspective, it will reduce the legal costs associated with technical appeals based on the notification process. Again, other speakers have given examples of where this has occurred.

Furthermore, it will reduce the time non-Australians are held in detention, which costs the Australian people in excess of $100 per day for each detainee. In 2006-07, the Department of Immigration and Citizenship raised debts of $28.9 million for the detention of unlawful noncitizens. The highest debt raised during that period was over $340,000 for one family. In one case reported to the Joint Standing Committee on Migration in the course of the inquiry, the cost was estimated at $512,000 for one person over a nine-year period. Even if these costs are not recovered, for those people who are ultimately granted permanent residency in this country, they have a debt hanging over their heads forever more, which in turn continues to cause stress and trauma to them. The total cost of operating Australia’s immigration detention system in 2006-07 was about $220 million. It is not a cheap exercise. And that amount certainly does not include the cost of the construction of these centres; it is simply the ongoing operational cost.

I would just make some additional comments in relation to costs. On estimates, we have in Australia at the moment about 50,000 people who are in this country unlawfully. For many of those people, at some point in time a notice of some kind will be issued to them. The issuing of those notices, if it is not clarified and if it is not simplified, will cause many, many more occasions where cases are taken to the court simply on the basis of the service of those notices. Right now there are about 1,000 cases before the courts—before the Administrative Appeals Tribunal, before the Federal Magistrates Court and before the High Court. My understanding is that it costs Australian taxpayers about $10 million a year just to attend the court proceedings and pay for the costs associated with those court proceedings.

If we can simplify all of these processes, there will be a benefit to the Australian people and there will be a benefit to the detainees, who are obviously looking for an outcome as soon as possible. In addition to the costs, there is also the issue of wasting valuable court time. Wasting valuable court time may be the objective of some of the detainees and perhaps their legal representatives. But, for the others who are waiting in line to have their court case heard, it is simply adding to their trauma and the time that they are in detention—which in turn adds to the cost to the Australian people. So, for all of these reasons, this bill makes a lot of sense.

With respect to the people who are in detention and to their families, there are substantial additional benefits in having matters resolved as quickly as possible. There has been universal agreement amongst community interest groups and detainee support agencies who have had extensive experience of dealing with detainees that detention frequently leads to psychological problems for the detainee and that, the longer the person is detained, the more serious are those mental health problems. Mental health problems often leave a person with lifelong effects, with the person continuing to suffer even after being released.

Importantly, this bill will also have the positive effect of expediting the removal of persons who should be removed from Australia. Prompt removal of such people is one of the most effective deterrents to others who have no right to remain here. Again, this is not simply about assisting those who ultimately do stay in Australia; it is also about expediting the process in relation to those people who have no right to stay here and should be removed. It is a bill that some might describe as having a win-win objective.

Wrongful detention also raises a question relating to human rights obligations. The Minister for Immigration and Citizenship, speaking on 29 July in respect of the new policies he had announced, said:

On 14 occasions over the last decade, the United Nations Human Rights Committee made adverse findings against Australia in immigration detention cases, finding that the detention in those cases violated the prohibition on arbitrary detention in article 9(1) of the International Covenant on Civil and Political Rights.

In addition, wrongful detention gives cause to compensation cases, as we saw with the Cornelia Rau case. On this matter, the Commonwealth Ombudsman’s report identified that, between the years 2000 and 2006, 247 persons were found to have been wrongfully placed in detention centres. Clearly, the longer a person is held in detention, the higher will be the costs associated with any compensation if that person is ultimately found to have been wrongfully detained. Improving the determination process, which is exactly what this bill does, lessens any liability associated with wrongful detention, because the matters will be dealt with much more expeditiously.

It is my belief that, because of the Rudd government’s new detention policy recently announced by the Minister for Immigration and Citizenship, Senator Chris Evans, we are unlikely to see the types of wrongful detentions that were identified during the Howard government years and which the Ombudsman reported on.

In closing, I want to quote a couple of comments made by the minister when he announced the policy, because I think they sum up the direction in which immigration policies under this government are heading, a direction which the member for Isaacs quite rightly pointed out is much more humane and much fairer. The minister said:

In future the department will have to justify why a person should be detained. Once in detention a detainee’s case will be reviewed by a senior departmental official every three months to certify that the further detention of the individual is justified.

               …            …            …

Our new model will not solve all of the complex and protracted issues that delay resolution of immigration status. There will still be people in detention, but we should see fewer people in detention for less time. The section 501 character cancellation caseload represents a particularly difficult ongoing cohort. However, our new processes should ensure much better outcomes overall.

The cost of long-term detention and the case against the current system are compelling.

I believe the minister quite appropriately summed it up with those comments, and that is why he has introduced this bill as one of the steps that I am sure we will see in the months ahead for improving the immigration policies by this government—in this case improving the issues surrounding notification for people that are in detention centres. I commend the bill to the House.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I also rise to speak in support of the Migration Amendment (Notification Review) Bill 2008. I commend the member for Makin and the speaker who preceded him, the member for Isaacs, for their contributions to the debate. As the member for Moreton, I know that the name ‘Moreton’ comes from Lord Moreton, who was a British peer. I know the history of the name ‘Isaacs’—he was the first Australian-born Governor-General and the first Jewish Governor-General. But I am not sure of the history of the name ‘Makin’. I certainly know that Tony Zappia has a strong connection with multicultural Australia himself and has a strong history of supporting the fact that Australia is based on migrants coming from all over the world. That is one of our greatest strengths.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

The honourable member for Moreton ought to refer to other honourable members by the name of their electorate and not by their actual name.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

I thank you for your guidance there, Mr Deputy Speaker, in terms of my detailing the name of the member for Makin. I take your guidance strongly. Many migrants who come to Australia choose to live in my electorate. In fact, more than one-third of my electorate were born overseas. When I get out and about in my electorate, I see the United Nations, depending on which suburb I go to. There are people from all over the place. In the 10 months that I have been the member for Moreton, I have offered support to hundreds of visa applicants across a range of visa classes, including humanitarian and refugee entry, skilled visas and family visas. When those people come into my office—and I am sure the member for Makin has had similar experience—I hear them telling their personal stories of trying to track down children or siblings or trying to bring a husband or a wife or a fiancee to Australia. It is always incredibly compelling to hear those stories and to see the actual tears, and I realise how important it is that the government in Australia gets our immigration laws correct.

Certainly one of the tougher parts of being an MP is understanding how slow and frustrating the migrant story can be. I have heard compelling stories from each of these visa applicants and their families and now fully appreciate how the decisions made by the Department of Immigration and Citizenship can have a major impact on a person’s life. It can be the difference between a life lived in fear and a life of freedom—a life close to family and loved ones or a life of loneliness on the other side of the world. So I understand how important communication is between the department and an applicant or the appropriate authorised person.

The department is required to adhere to strict notification requirements to advise visa applicants of decisions and provide information about their rights for review and appeal. Particularly in the case of negative decisions—and, unfortunately, I have been involved with some of those negative decisions in meeting with people after they have received them—and in all cases, it is vital that applicants receive correspondence from the Department of Immigration and Citizenship within an appropriate time frame so that they do not miss out on the opportunity to seek review, which is normally allowed within 21 days of receipt of the information about the decision.

The Migration Act 1958 and Migration Regulations 1994 detail how the department is to communicate with clients. The act and regs cover the content of the notice, who must be notified and by what method. The current regulations, unfortunately, have been a little bit confusing for the department and, due to strict adherence by the courts, have meant that minor errors—almost to the extent of typographical errors—can be used as grounds to appeal immigration decisions.

This bill amends the Migration Act 1958 to clarify the notification procedure and to provide certainty for the department and subsequently for their clients, and should result in fewer cases going to court. Firstly, the bill changes the way the department will communicate with minors—that is, people under the age of 18. The act currently requires that correspondence be sent to the relevant person for the notification to be effective, even when that person is too young to understand the nature of the correspondence. This bill will enable the notification to legally be sent to a recipient who the minister, or the minister’s delegate, believes has the care of and responsibility for that minor. It will still be possible for the notification to be sent directly to the minor where no carer for that minor can be identified. These amendments will help to ensure that the person who has the power and capability to act on a notification is the one who receives it.

The bill also clarifies the notification procedures to overcome the conflicting interpretations that have been delivered by the courts. There have been occasions when a client has received correspondence from the department or tribunal and acted on it but a court has determined that, due to a minor technical error, the client has not actually legally received the correspondence, while other courts have accepted that the client has been legally notified. The deliberations by the courts on these matters have wasted departmental resources and undermined the administration of the migration system. As I said earlier, because it is often a life-and-death situation when you are talking about decisions about people’s loved ones overseas, it is important that we get it right. The bill before the House ensures that clients cannot use a technical error to argue that they never received a notification when they have, to all intents and purposes, been notified. The bill before us will deem a person to be notified where there is evidence that the person received the notice and acted upon it and appears not to have suffered any detriment despite any small technical error.

It is common for visa applicants to have an authorised person to manage their visa application and correspond with the department. It is usually a family member—someone that has gone before them who understands some of the processes—but, if they do not have someone like that that they can turn to, often they will go to a migration agent. In my electorate of Moreton, because I have such a range of people from around the world—some that have come as refugees, some that have come as business migrants and obviously lots who have come on family visas—I am often asked, ‘Who should I turn to?’ That is why in my office we have started compiling a list of the migration agents based in or around Moreton—so that we can provide that information to people. Obviously some agents do it on a pro bono basis, some do it totally for free, some take on the occasional pro bono case and others do it strictly on a fee-for-service basis. There are migration agents and lawyers that do migration work. That is one of the services that we are providing to the people who come to my electorate office. Obviously the department will continue to correspond with the person notified until the department are advised otherwise. Migration agents do great work in helping sort out many complications. This bill goes some way to avoiding the practice of using minor technical and typographical errors to delay decisions through the courts.

As someone of Anglo-Saxon background—I think my background is French, Italian and Irish—it has been an honour to represent Moreton, where we have significant groups of people from all over the world, particularly the Chinese diaspora. We have a lot of Taiwanese along with Hong Kong Chinese, Malaysian Chinese, mainland Chinese and even Fijian Chinese people. We also have a significant African population, especially Sudanese—even to the extent that in Moorooka, the suburb where I live, there is a little African community, with lots of African restaurants. There is also a very significant Muslim population who have come from all over the world but particularly from Zimbabwe and South Africa. I could not forget the New Zealand population, who also make up a significant proportion of my electorate, and obviously the English, Irish and Scottish, the Greeks and many others.

So, obviously, the history of Australia is one of settlement. Certainly for the last 200 or so years, leaving aside the 50,000 or 60,000 years beforehand, we have been a country based on settlement. In a changing world it is important to make sure that we have good connections with these communities—that when the communities from around the world come to Australia they are well settled and have strong roots in the communities of Moreton, Brisbane et cetera. As we have seen around the world all too often, if we do not get the balance right, the mix right, we can end up with violence and devastation and people picking up weapons to attack their neighbours. Thankfully, in Australia we do not have that history—certainly not in the last 50 years. Although, if we look at the settlement of Australia, one of the first things the parliament of Australia turned its mind to was the White Australia policy, they were different times; we have moved on a lot since then. We now have much healthier multicultural communities.

The bill before the House goes some way to preserving some of those basic tenets: that we get on with our neighbours and we accept people from around the world. I do not know the words to the second verse of Advance Australia Fair off by heart—the member for Port Adelaide might be able to help me out—but from memory it talks about embracing those who have come from across the sea because we have boundless plains to share. That is what we are about as a nation: giving people an opportunity in life. We can do so in such a way that we do not have to put children in detention. We do not have to create these artificial bits of Australia in other countries. If people do come to Australia in circumstances that do not involve standing in line and getting a visa in their part of the world, we can still help them as much as possible—check their history, make sure that their health is fine, help them integrate into the Australian community and get them paying taxes as soon as possible. Obviously, we need to cross the t’s and dot the i’s as much as possible, to make sure that this system runs smoothly.

The bill before the House will make significant improvements to the notification regime. It will ensure that the hard work of our immigration department is not undermined by rigid court decisions and it will provide greater clarity and consistency for visa applicants. I commend the bill to the House.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

I thought for a moment that the honourable member for Moreton was going to break into song.

Christopher Pyne (Sturt, Liberal Party, Shadow Minister for Education, Apprenticeships and Training) Share this | Link to this | Hansard source

Not again! That was a close call.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

As I said, I don’t know the second verse off by heart!

Ms Anna Burke (Chisholm, Deputy-Speaker) Share this | Link to this | Hansard source

I am sure that we will not hear it in the House—not being sung, anyway.

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

Can I say what a pleasure it is to follow the member for Moreton in this debate, particularly his demographic tour de force of the electorate of Moreton!

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

You’re always welcome!

Mark Butler (Port Adelaide, Australian Labor Party) Share this | Link to 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.

Laurie Ferguson (Reid, Australian Labor Party, Parliamentary Secretary for Multicultural Affairs and Settlement Services) Share this | Link to this | Hansard source

in reply—At the outset, I would congratulate the new shadow minister for immigration and citizenship, the member for Murray, in regard to her role. However, I think it is a bit rich for her to basically argue that what we are seeing here today is part of a continuing Howard government approach to detention policy and immigration. Certainly, the government reiterate that we need to ensure we have a process in this country which maximises the possibility that those who have genuine claims are those who are actually protected by the country. And, of course, as a matter of last resort, there will be detention.

However, when we look at issues such as the onus with regard to whether or not people will be detained, the closure of offshore sites and the definite commitment that children will not be detained, as well as the broad swathe of immigration changes—quite frankly, overwhelming changes in the last few months in that policy area—I do not think that argument really stands up to rational analysis. We are supporting strong border control but a fair and more humane treatment of asylum seekers and those who do need to be detained.

I will not detain the House at length; I understand there are some other pressing matters. The Migration Amendment (Notification Review) Bill 2008 will make amendments to provisions of the Migration Act 1958 which set out the requirements for the Department of Immigration and Citizenship and the tribunals to notify a person about important matters such as decisions on visa applications and visa cancellations. The amendments will clarify the way the department, the Migration Review Tribunal and the Refugee Review Tribunal communicate with their clients.

Many speakers have repeated ad nauseam the three particular thrusts of change, so I will not reiterate those. I would, however, remind the House that the ‘substantial compliance’ amendment sought to ensure that substantial compliance with the required content of a notice will be sufficient to effect notification. Under this amendment, minor technical errors in the content of the notice will not render the notification ineffective unless the applicant can show that the error or omission substantially prejudices him or her.

Following introduction of the bill into parliament, it became apparent that the provisions relating to substantial compliance produced unintended consequences both in terms of errors in the notification document and also in relation to the compliance operations of the department. Consequently, the government-sponsored amendments withdraw the substantial compliance amendments from the bill. I note in this respect that the amendments regarding actual notification will cover most of the circumstances that have caused difficulties in the past and ensure that a person who is actually notified cannot seek to rely on a technical error in the notification process. It is not expected that withdrawing the substantial compliance amendments from the bill will affect a large number of cases.

The remaining amendments assist in ensuring that notification will be legally effective and provide certainty regarding future action based on notification, while still maintaining fair and reasonable dealings with the department’s and the tribunals’ clients. I commend the bill to the chamber.

Question agreed to.

Bill read a second time.