David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I might, first of all, just put on the record the Greens position on these amendments. The Greens will be supporting these amendments. We're supporting the amendments to increase the period that people who are in immigration detention have to challenge adverse migration determinations in the tribunal from seven to 14 days. This has been a longstanding demand now from organisations like the Law Council, pretty much every legal body in the country, NGOs and refugee advocacy organisations for well over a decade.

As you would know, Acting Deputy President Hughes, people in immigration detention have very limited access to legal assistance. Indeed, it was the coalition that initially removed legal assistance for people in immigration detention. Measures such as mobile phone bans and other bans were put in place by this parliament last year to make it even harder for people in immigration detention to potentially communicate with the outside. Indeed, the very process of being in immigration detention, not because you've committed an offence but because there's an issue with your migration status, puts people at extreme disadvantage when they're seeking to make an application to challenge a decision.

Even with these amendments moving the period in which to do the application from seven to 14 days, people in migration detention will still face an arbitrary timeframe which is half that for standard applications in the ART and, even with these changes, which are positive, there is still no broad discretion for the tribunal to extend the timeframe, so people in immigration detention will still be treated more harshly than people outside of immigration detention. However, the move from seven to 14 days recognises the longstanding demands from the Law Council and others. It recognises the need for a measure of justice in this space, and we're advised from organisations like ASRC and others that it will have meaningful and positive change, and we support it. Indeed, we appreciate the active engagement of the government with my party and those organisations to have this change.

The amendments will remove those original provisions in the bill that were in response to a High Court decision that actually interpreted longstanding legislation that was originally put into parliament by the coalition about when and how an application is made. It's coalition legislation that the High Court reviewed. The High Court found that, notwithstanding there was language that, on the face of it, looked mandatory about the provisions that needed to be contained in an application, once an application had been brought to a tribunal, even if it didn't contain each and every one of those elements, there was a discretion in the tribunal to still consider the application—to do justice, basically.

As I said, that was an interpretation of legislation initially drafted by the coalition. The bill as originally presented sought to address that High Court decision, make it expressly mandatory and remove a discretion in the tribunal to even consider an application if it had some procedural or documentary defect. Again, I want to commend the government for listening to the unanimous position from NGOs, legal organisations and groups like the Law Council, who said that that was unfair and inappropriate and that it wasn't the right response to the High Court decision. These amendments will strip those provisions out of the bill, and the Greens will be supporting those amendments because they provide a small measure of justice in the space.

It is not clear what the government means by saying, 'They're under review,' so I would be interested in, if there were a review process of those parts of the act, whether the government could indicate what the nature of the review is, who they're speaking with, whether there is a timeframe and whether there will be a formal discussion paper. You can see from what happened in the Legal and Constitutional Affairs Legislation Committee's review of this that it's really important to engage with stakeholders and that it's important to be transparent about this, because, otherwise, you can make an unintentional error, like the original draft bill did.