Chris Ellison (WA, Liberal Party, Manager of Opposition Business in the Senate) Share this | Hansard source

Thank you for that clarification. At the outset can I just say that I understand what the minister says about the frustration in relation to the moving of the goalposts, it would seem, as a result of judicial interpretation. The area of migration is and has been a litigious area where people have—with great issues to address, I might add—taken action against the department and the minister and have taken issue with various aspects of the legislation and regulations. By its very nature this is a litigious area and as a result of that we have had decisions of the courts which have caused the previous government and this government to bring about amendments to the legislation. I think that describes how we have had these amendments occurring over time and how the legislation has been amended from time to time, largely driven, I would suggest, by judicial interpretation.

Of course, when you write legislation and you pass it, it is always subject to judicial review, and so it should be. There is no question about that, and that is how our system works, but, as I stated earlier and as the minister has said, there is a rectification here to ensure that the original policy intent is met. When you have a change in interpretation of the legislation it is quite proper for the government of the day to address that and say, ‘This now changes the policy intent and that is not what we intended when we passed it in the parliament.’ So an amendment is made. It is important for those listening to realise this. It is not with some sleight of hand that we are doing this; it is to make the legislation work, to improve its efficacy and also to achieve that policy intent which has been stated from the outset.

The time limits for judicial review have been squarely addressed. As the minister has said, this gives more clarity and definition to the time limits within which people can take action. Certainly, it is in no-one’s interests for someone who is about to be removed from Australia to then seek to take action to avoid that when they have had adequate time to do that previously—they have been on notice; they have had that. Throughout the common law, throughout the states and territories of this country, we have time limits on making an application for review, and quite properly so, because the court system would be in a mess if people could make an application for review at any stage. That is an essential basis of our judicial system and one which we are addressing with these amendments here today.

In relation to the other amendments dealing with schedule 2, these tighten the wing nuts, as it were, on that aspect of the advanced passenger clearance system. I mentioned earlier that this is an aspect of border control. I just want to take this opportunity to commend the liaison officers at the airports overseas who work for the department of immigration and work with our air carriers and overseas air carriers in relation to ensuring that the right person, with correct identity, is getting on a plane to fly to Australia. That identity check and other checks are carried out. The department of immigration carries out a very good and important job in border control in that regard, but we cannot take away the responsibility of those carriers as well to ensure that those requirements are met in relation to the legislation. It is important that the carriers themselves have some integrity in their system in relation to the passengers who embark on their aircraft—this also applies to vessels, in shipping. That is straightforward.

In relation to the other amendments, the minister has outlined how these merely state the obvious in relation to our compliance with the stateless persons convention. Again I would suggest to the Senate that these are very straightforward and highly appropriate. With these amendments there is, I think, an improvement of the legislation to ensure it does what it sets out to do.

In relation to a review of the legislation as a whole, perhaps one is needed. It is important that people remember that this is a highly litigious area, much like taxation, and that is why you have amendment upon amendment—to meet court cases which have been handed down and which then change the interpretation. Where you see areas of litigation, you will see pieces of legislation which have been amended over time and added to, and that in itself causes issues. Again, the coalition supports these amendments.