Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

This Private Senator’s Bill is one of a number of Migration Act Amendment Bills which I am tabling in the course of this year. This bill seeks to remove the unfair provisions which were imposed by the Migration Legislation Amendment (Judicial Review) Act 2001 (The Act). It introduced a privative clause mechanism which restricted access to federal and High Court judicial review of administrative decisions made under the Migration Act 1958.

In practice these provisions sought to limit the availability of judicial review to a very limited class of errors of law. It applies not just to refugee determinations but to all decisions made under the Migration Act 1958.

The Australian Democrats rejected this legislation when it was first introduced because we believed it to be unjust, unfair and unnecessary. The legislation was widely criticised by a range of community groups who were opposed to the provisions which in effect limit accountability of decision makers amongst other things.

It was also initially rejected by the Labor Party, who unfortunately changed their position and allowed its passage through the Senate in the fear-driven frenzy leading up to the 2001 federal election, following the incident where the MV Tampa rescued hundreds of refugees at sea and brought them to Australian territory.

The legislation unfairly stigmatises people who are simply aiming to pursue their basic legal rights. Furthermore, the whole premise on which the act was based clearly implied that anyone who pursued their basic legal rights was doing so with the explicit intention of somehow rorting or frustrating the migration system.

The importance of protecting a basic safeguard such as the right to judicial scrutiny of a denial of procedural fairness is particularly acute when the decision is one affecting refugees.

In such cases, where the consequences of a wrongful decision can be extremely grave—namely, being sent back to a situation of persecution—it is vital that sufficient safeguards are preserved. The Democrats believe that the failure to preserve the safeguard of adequate judicial review runs the very real risk and alarming consequence that a person may be sent back to a place of persecution, in contravention of Australia’s international obligations.

The Democrats are always willing to support fair measures which reduce misuse of the immigration and refugee determination systems or reduce unnecessary legal delays and costs. The introduction of a privative clause does not achieve either of these aims. More importantly, it is a fundamentally unjust law which should be repealed.

I commend this bill to the Senate.

I table the explanatory memorandum and I seek leave to continue my remarks.

Leave granted; debate adjourned.