Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Hansard source

The opposition will be supporting this legislation, the Migration Amendment Bill 2013. I must put on the record at the very start that one of the key reasons that we are supporting this legislation is in the explanatory memorandum to the bill, which has been publicly made available, which goes into great detail about the reasons that this bill actually does confirm our international obligations. Consistently in the argument over many years the important element has been where Australia's decisions fit within the international area of decision making. So, whilst we have concerns about elements of the bill—and I have to put on record that I have had those concerns and have raised them—on the basis of the explanation in the explanatory memorandum, the ALP has determined that it does meet the obligations.

It is a technical bill. The intent of the bill is to give certainty—and that is very important. Whether or not people are happy with the policy, it is absolutely critical that everybody has certainty about the decision-making process, where they stand and what options they have.

The bill before us has three schedules. Just for the record, I will go through the schedules—because that is what we do in this place; we read out what is in the schedules even though everybody has the information. Schedule 1 of the bill allows that a decision on review of a refusal, cancellation or revocation decision by the minister or his delegate is deemed to be made on that day and at the time when a record of it is made, not when the decision is notified to the applicant. It removes any doubt as to when the ministerial or delegate decision is made and when an application is finally determined and no longer able to be reviewed. The amendment clarifies that an oral decision by the RRT or MRT is taken to be made and becomes final when it is given and it removes the necessity to notify the applicant and the secretary of the department, as was previously the case for RRT reviewed decisions.

As with many of the clarification aspects in this legislation, this particular schedule has been a reaction to a court decision. When the courts bring down a decision which indicates any lack of clarity or uncertainty, it is important that the government of the day takes action to ensure that certainty is entrenched. So we are saying that, in terms of this process, we are responding to the concerns of the Federal Court and acknowledging that the government has put a process in place. We also want to put on record that it is absolutely essential that the person about whom a decision had been made is made fully aware of the decision and the basis of the decision and is given full consideration so that they understand what is happening to them. That is actually a position of natural justice. We believe that, no matter what legislation we are dealing with, in any form, the principles of natural justice must be maintained.

Schedule 2 of the bill would prevent a non-citizen who has been refused a protection visa or had a protection visa cancelled from making a further protection visa application whilst in the migration zone. Again, it is very important that we ensure that people are certain of their situation and their responsibilities, but the process cannot go on endlessly in terms of the action. Once a decision has been made with the full understanding and engagement of the person who is involved, it cannot then go on as has seemed to have occurred in some cases through concerns that have been raised through various reviews, inquiries and the court system.

Schedule 3 deals with the sensitive issue of persons who have a negative ASIO assessment. This has been a longstanding issue of concern. The schedule that we now have makes it completely clear that persons who have a negative assessment from ASIO will be unable to gain a protection visa, and that fact will not be reviewable by any tribunal or, indeed, ultimately, the minister. It is a significant step to take, and the decision we come to must be very cautiously and carefully determined.

As you well know, Mr Acting Deputy President Furner, in the whole area of ministerial discretion—of the minister being called upon to make, individually, these decisions—this issue has been of genuine concern, to many people in this place and in the wider community. We understand the history of that. Certainly, when you are not the minister, it seems to be a particularly attractive process—that there is always, for the minister, the ability to step in, reconsider and make a decision. But I have talked to a number of people who have had the onus of responsibility on them—who have been the minister in this field—and this has been a very difficult area.

So the intent of the legislation put forward by the government is for the process to be clear, to ensure that there is no grey area which leads to more concern and stress, and for the ASIO determination—as was the original intent when the legislation came in—to be based on a range of things: health, identity and security. From the very start, the issue of security was most important.

We do acknowledge that any ASIO decision must be done in a timely way. And I know that sounds very easy to say. But when there is any decision which determines someone's future the expectation, quite rightly, is that the decision is made in a timely and respectful way. So if someone is under scrutiny—if there is concern about issues to do with security—there must be an understanding within the system of the need to make decisions carefully and also in a timely way. But the intent of this schedule is to determine that, whilst the ASIO determination is unresolved, there is no ability to change the decision or to have ministerial discretion in the process.

The shadow minister in his contribution in the other place made it very clear that our support was on the basis of clarity, so that people understand their position. We have raised and will continue to raise concerns about delays or uncertainties, or behaviour to or treatment of individuals which seems to be unfair or unreasonable. However, on the basis of the information, the recommendation is that the ALP will be supporting the legislation.