James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Hansard source

I rise to speak on the Migration Amendment (Giving Documents and Other Measures) Bill 2023, which amends the Migration Act 1958 and is designed to improve and clarify the intended operation of the legislative framework for the giving of notices and other documents, and to remove restrictions on certain noncitizens from lodging a valid application for a protection visa.

There are three elements to this bill. The first seeks to provide certainty and consistency in the way in which persons affected by cancellation decisions are notified, including by requiring all cancellation-related documents to be given in writing and confirming that the regulations can prescribe methods for giving such documents. The second ensures that where the minister gives a document to a person under the Migration Act or the Migration Regulations 1994 and makes an error in doing so, the giving of the document is valid where the person actually received the document and the document is taken to have complied with the requirements as to the content of the document, where the minister has substantially complied with the content requirements, and the error does not cause substantial prejudice to the relevant person's right.

This essentially brings a common sense approach to the administration of the complex migration framework by providing certainty to the minister and to the recipients in relation to the giving of documents. This change is intended to reduce the administrative burden on the Administrative Appeals Tribunal and on the courts arising from litigation founded on technical or inconsequential disputes over the giving of the document.

Collectively, these first two elements will streamline and strengthen the notification process, reduce procedural ambiguities that can lead to appeals and generally improve the operation of the legislative framework for the giving of notices and other documents. Ultimately, these changes facilitate the fair and efficient administration of the visa cancellation framework with a greater degree of transparency, certainty and consistency. For these reasons the coalition supports the first two changes proposed under the bill.

The third element of the bill will repeal subdivision AK of division 3 of part 2 of the Migration Act to remove the prohibition on noncitizens who are nationals of two or more countries and certain other cohorts making a valid application for a protection visa. The coalition is concerned about this element of the bill because it removes the requirement for prospective protection visa applicants who are nationals of two or more countries to seek a bar lift which then needs to be assessed and considered by the department and the minister. We are concerned that by allowing the department to be the initial decision-maker rather than the minister, individuals could potentially avail themselves of additional legal avenues and thereby impede the fast and efficient processing of protection visa applications. Ultimately, we want the decision to remain with the minister. While this may necessitate additional workload for the minister, it would potentially prevent decisions being subject to additional judicial processes—processes which can create further administrative burden and run counter to the intent of the bill to create administrative efficiencies in protection visa processing.

I note that the Bills Digest on the bill, prepared by the Parliamentary Library, explains that a statutory bar that prevents a person from making a valid protection visa application, which the government is now trying to remove, was introduced in 1999 via the enactment of the Border Protection Legislation Amendment Act 1999. The specific provisions were not included in the original bill but were passed by the Senate with the support of the then Howard government and the opposition. As noted in Labor senator Chris Schacht's speech in the second reading debate, the amendments were intended to prevent forum shopping by persons seeking to enter Australia. Senator Schacht said:

Clearly there is evidence emerging that forum shopping is about how people, with the assistance of people smugglers, try to make arrangements to end up in the country of their first desire, where they think would be the nicest place for them to go, and the place that would provide the best facilities and the best future. We cannot blame people for having that view; that is a natural human reaction. But when it gets to the stage where, in one form or another, the international and national procedures for dealing with refugees are being, if not abused, at least bent, so that countries like Australia are unnecessarily targeted, we have every right as a nation to make laws in respect of those arrangements.

This is reflected in section 91M of the Migration Act, which states:

This Subdivision is enacted because the Parliament considers that a non-citizen who can avail himself or herself of protection from a third country, because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying in Australia for a protection visa …

The minister said in his second reading speech:

The government's position remains unchanged: those who can avail themselves of protection from a third country because of nationality or some other right to re-enter and reside in the third country, should seek protection from the third country instead of applying for a protection visa in Australia.

Why, then, is the government seeking to remove the prohibition on nationals of two or more countries from lodging a valid application for a protection visa? Labor should explain this change of heart. Reducing the minister's workload is not a good enough reason to remove a statutory bar that was enacted with bipartisan support and is in line with the government's unchanged position. For the reasons that I have mentioned, the coalition supports the first two elements of the bill but will not support the third change, as we believe that the minister should still retain that discretion to allow noncitizens who are nationals of two or more countries to apply for a protection visa. That's why, when we move to the committee stage, I will move an amendment which seeks to remove schedule 2 of the bill in its entirety.