Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

I table the supplementary explanatory memorandum relating to the government amendments to be moved to this bill. The memorandum was circulated in the chamber on 26 August 2008. I seek leave to move government amendments as circulated.

Leave granted.

I move government amendments (1),  (2),  (4),  (5),  (7) to (11) and (13) on sheet PD344:

(1)    Clause 2, page 2 (table item 7), omit the table item, substitute:

(2)    Schedule 1, heading, page 4 (lines 2 and 3), omit “judicial and”.

(4)    Schedule 1, item 37, page 11 (lines 16 to 19), omit subitem (4).

(5)    Schedule 1, item 37, page 11 (line 20), omit the note.

(7)    Schedule 2, page 15 (after line 18), after item 8, insert:

8A  At the end of section 64ACD

Add:

        (4)    An operator of an aircraft or ship commits a separate offence under subsection (1) or (2) in relation to each passenger or member of the crew in relation to whom the operator contravenes section 64ACA or 64ACB.

(8)    Schedule 2, page 17 (after line 12), after item 16, insert:

16A  At the end of section 245N

Add:

        (4)    An operator of an aircraft or ship commits a separate offence under subsection (1) or (2) in relation to each passenger or member of the crew in relation to whom the operator contravenes subsection 245L(2).

(9)    Schedule 5, page 30 (before line 6), before item 1, insert:

1A  Section 3

Insert:

Stateless Persons Convention means the Convention Relating to the Status of Stateless Persons, done at New York on 28 September 1954 [1974] ATS 20.

Note:   The text of the Convention is set out in Australian Treaty Series 1974 No. 20. In 2008, the text of a Convention in the Australian Treaty Series was accessible through the Australian Treaties Library on the AustLII website (www.austlii.edu.au).

(10)  Schedule 5, item 1, page 30 (line 8), omit “any country and the person”, substitute “any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person, and the person”.

(11)  Schedule 5, item 2, page 30 (lines 11 and 12), omit “any country”, substitute “any country, or if article 1(2)(iii) of the Stateless Persons Convention applies to the person”.

(13) Schedule 5, item 14, page 32 (line 9), omit “items 1 to 13”, substitute “items 1A to 13”.

Also, the opposition opposes schedules 1 and 5 in the following terms:

(3)    Schedule 1, items 30 to 35, page 9 (line 6) to page 10 (line 18), to be opposed.

(6)    Schedule 1, item 41, page 12 (line 21) to page 13 (line 37), to be opposed.

(12)  Schedule 5, item 11, page 31 (line 32) to page 32 (line 1), to be opposed.

The government proposes amendments to the Migration Legislation Amendment Bill (No. 1) 2008 to ensure that measures contained in the bill operate effectively and as intended. The aim of the bill is to clarify and improve the effectiveness of the migration and citizenship legislation by addressing and rectifying a range of problems that have been identified in the legislation over the years.

Schedule 1 to the bill, amongst other things, sought to amend the Migration Act 1958 to reinstate effective time limits for applying to the courts for a judicial review of migration decisions. Without effective time limits, there is an incentive for unsuccessful visa applicants to take advantage of litigation delays and wait until removal is imminent before lodging an application review—something that is intensely frustrating to the minister, as I am sure it was to previous ministers.

Following introduction of the bill into parliament, it became apparent that the amendments in the bill did not cover all decisions which are judicially reviewable and which should be subject to time limits. I am committed to reinstating effective time limits for judicial review, and further consideration will be given to how best to do this for all judicially reviewable decisions. Therefore, amendments (2) to (7) propose to amend schedule 1 to the bill to remove the items that sought to reinstate effective time limits. This is to allow further consideration to be given as to how best to reinstate effective time limits for all judicially reviewable decisions.

Schedule 2 to the bill contains measures to strengthen the provisions of the Migration Act and the Customs Act 1901 relating to border protection, to ensure that the Commonwealth can take appropriate and unified action across departments when Australia’s border protection laws are contravened. An important new measure in schedule 2 to the bill relates to the existing obligations on operators of aircrafts and ships to report on passengers and crew prior to entering Australia. The amendments make it clear that an operator must report on each passenger and crew member individually.

To ensure that the government has in place practical methods for enforcing contravention of these reporting requirements, schedule 2 also establishes an infringement notice regime. This new regime is an alternative sanction to prosecution for failure to meet the reporting requirements. This will ensure that operators take greater care in ensuring that every person on board their aircraft or ship is properly accounted for.

Subsequent to the introduction of the bill in parliament it became apparent that the proposed amendments to the Migration Act and Customs Act as drafted would not achieve the policy objective of providing for airline and shipping carriers to be liable for separate prosecution for each and every individual not reported on prior to arriving in Australia. Amendments (7) and (8) respectively insert a new subsection at the end of section 64ACD of the Customs Act and 245N of the Migration Act to make it clear that an operator of an aircraft or ship is liable to separate prosecution under these offence provisions in relation to each individual passenger and crew member not reported on prior to arrival in Australia, rather than in relation to each journey generally.

The amendments in schedule 5 to the bill seek to clarify the meaning of certain provisions in citizenship legislation and aim to ensure that Australian citizenship law is consistent with our international obligations and the United Nations Convention on the Reduction of Statelessness 1961. Subsequent to the introduction of the bill in parliament it was realised that certain persons such as war criminals, who are specifically excluded from the application of the United Nations Convention relating to the Status of Stateless Persons 1954, need not be accorded the special treatment reserved for stateless people in Australian law. To ensure that all amendments contained in the bill are consistent with both conventions, amendments (1), (9), (10) and (11) provide that if an applicant for citizenship by descent is a national or a citizen of any country, or is excluded from the application of the 1954 convention, the minister must be satisfied that the applicant is of good character at the time of his or her decision on the citizenship application.

Schedule 5 of the bill also contained amendments to change references in the Citizenship Act from six months to 180 days respectively to achieve greater certainty in relation to when an applicant serving in the Naval, Army or Air Force Reserve meets the residency requirement. Subsequent to the introduction of the bill into parliament it became apparent that people serving in the Naval, Army or Air Force Reserve may take longer than six calendar months to have completed relevant defence service depending on the nature of a person’s service. Further consideration will be given to how best to give effect to the policy intent while giving greater certainty in relation to when an applicant who has an Australian defence service background meets the residency requirement for citizenship. Amendments (12) and (13) remove the technical amendments to subparagraph 23A(2) of the Citizenship Act to leave the requirement that an applicant must have completed at least six months service rather than 180 days in the reserves to meet the residency requirement.

These amendments are important and necessary to ensure that measures contained in the bill operate effectively and as intended, and that migration citizenship legislation can be clarified and improved. I commend the amendments to the chamber. I again want to acknowledge the contribution of the opposition spokesman, Senator Ellison, to ensuring the legislation is the best it can be.

This bill has again highlighted the concerns I have about the complexity of the Migration Act. The fact that it has grown over time, by having amendment after amendment added, has added to the complexity. The continuing judicial review has further added to the complexity of the legislation and confirms my view that a major root-and-branch review of the legislation is well overdue. I do not underestimate the enormous size of that task.

I also indicate that Senator Xenophon has approached me about a concern he still has with the bill as amended. Because of the shortage of time between circulation of the amendments and consideration in the chamber today we have not been able to completely satisfy those concerns. So, with the chamber’s indulgence, at the end of any debate today I might seek to adjourn the debate prior to ending the second reading debate, to allow Senator Xenophon to have his concerns addressed. Then we will come back to it at some later stage, either today or tomorrow. I encourage other senators who have contributions to make them today, and then we will adjourn the debate and come back later, if that is acceptable. I urge the Senate to support the government amendments and the bill in total.

Gavin Marshall (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

Senator Ellison, just before I call you I will clarify the question before the committee at the moment. The question is that government amendments (1), (2), (4), (5), (7), (8), (9), (10), (11) and (13) be agreed to and that schedules 1 and 5 stand as printed.

Chris Ellison (WA, Liberal Party, Manager of Opposition Business in the Senate) Share this | Link to 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.

Chris Evans (WA, Australian Labor Party, Leader of the Government in the Senate) Share this | Link to this | Hansard source

As there are no further contributions at the moment, I intend to report progress in order to accommodate Senator Xenophon’s concerns.

Progress reported.