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

by leave—I move the opposition amendments (1) and (2) on page 1991 together:

(1) Clause 2, page 2 (table item 3), omit the table item.

(2) Schedule 2, page 11 (line 1) to page 12 (line 4), to be opposed.

As I said in my second reading speech, these seek to omit schedule 2 from the bill because we are concerned about the unintended consequences of this. I outlined the rationale for that in my second reading speech and I won't detain the Senate by repeating that rationale tonight.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The removal of subdivision AK from the Migration Act will improve administrative efficiencies, minimise the risk of family separation and streamline the process for dual nationals seeking protection in Australia. 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 or reside in a third country should seek protection from the third country instead of applying for visa protection in Australia.

The government is making commonsense changes to the act to build a migration system that works in the national interest, is administratively efficient and provides certainty for visa applications. Subdivision AK is not in line with these principles and it is disappointing to see the opposition stand in the way of efficient and fair visa processing. We will be opposing these amendments.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Greens will likewise be opposing the opposition's amendments. I made it clear in my second reading contribution that in our view schedule 2 of this bill, which will repeal subdivision AK of the Migration Act, will provide for dual nationals to be able to lodge protection visa applications. I also made it clear that in our view this reform is a good one and, arguably, a long overdue reform to the Migration Act. On that basis it's welcomed by the Greens and we won't be supporting the opposition's attempts to strike out this schedule.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

We're dealing with opposition amendment (2) on sheet 1991. The question is that schedule 2 stand as printed. A division is required, but the division will need to be deferred to another day of sitting. Given that amendment (1) is contingent, we will need to move on to other amendments.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I have some questions for the Minister representing the Minister for Immigration, Citizenship and Multicultural Affairs. Firstly, proposed section 494E appears to create a loophole for the government to validate its own defective notifications to visa applicants and holders. We've got concerns that this will potentially result in people losing review rights, which in turn could result in things like permanent family separation, indefinite detention or refoulement. Given the potential for those consequences, which are pretty dire, why is the government proposing this section instead of simply working to improve its compliance with the current notification framework?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The introduction of a substantial compliance framework for notifications under the Migration Act will give greater certainty for visa holders and applicants, as well as the department's decision-makers, in relation to giving visa related notices. Specifically, the amendments will ensure notifications given in relation to all visa related decisions and associated actions will remain valid in spite of a potential defect in either the content of the document or in the way it is given, providing the defect does not cause substantial prejudice to the person's legal rights. Importantly, these changes ensure that people who receive visa notifications, including relevant information about any natural justice or review rights, will not be substantially disadvantaged. These changes provide greater certainty that notifications relied upon are valid and that a person's legal rights are upheld.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thanks, but that didn't tell us anything we didn't know was the government's position already. But it does give me the opportunity to ask whether the minister can inform the committee as to who will be responsible for assessing whether there has been substantial compliance or substantial prejudice, in relation to defective notification, under section 22.

While you're taking some advice there, Minister, I do have a corollary question to that: how does the government justify an additional layer of administrative decision-making, given the fact that there are already massive and excessive delays in visa processing in Australia?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator McKim. In relation to the first point, the decision-maker would be the department, but any decision would be eligible for judicial review.

In regard to the second point, which was, effectively, about the speed of processing, I know that the government has put in an extra $50 million of resources to ensure that we can speed up the processing system, because we understand that there has been a backlog. That is the decision the government has made.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I consider myself a fair person and I will give credit where it's due. It has been refreshing to see the extra resources that this government has directed into the processing of visas. I do acknowledge that that has been done and congratulate the minister and the relevant officials in the department for a quite refreshing change that we have seen, since the change of government, in this area.

I would reiterate the Greens' concerns that the creation of the concepts of substantial compliance and substantial prejudice does have the capacity to create an additional layer of decision-making and, potentially, contribute to delays in visa processing.

Minister, it is evident that the notification framework requires an overhaul as it is confusing and overly rigid, in our view, towards visa applicants and visa holders and that that confusion and rigidity can result in dire consequences, including permanent family separation, indefinite detention and refoulement. Given the administrative review, reform, that is currently in progress, this is an opportune time to fix the notification framework. But why has the government decided not to legislate meaningful improvements to the notification framework and, instead, create loopholes that will provide for defective notification?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thank you, Senator McKim, for the question. This is the decision the government have made, at this time, which we think is an improvement. We'd certainly be happy to engage with you further on potential changes.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I thank the minister. Minister, under section 494E, exactly how will the department determine whether a document meets the tests of substantial compliance or substantial prejudice to a person's rights?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Senator McKim, these are some examples of how a defect or breach will be allowed to be made. A document may contain one or more breaches of a requirement, such as an error, omission, misstatement or misdescription, and, nevertheless, be found to substantially comply with the relevant requirements. The terms used in the new provision as examples of breaches—'error', 'omission', 'misstatement' or 'misdescription'—are intended to mean the following: 'error' is intended to capture a broad range of content related defects that could be made in the document; 'omission' is intended to capture missing information in the document, including grammatical omissions and omissions of parts of names, numbers, titles, subheadings or certain sentences or meanings; 'misstatement' is intended to capture incorrect statements made in the document, including those made about the person, addressee or legislation, or statements that are correct and relevant to the person or matter but placed under incorrect headings; and 'misdescription' is intended to capture the incorrect descriptions in the document, including those made about the person, addressee, actions, facts, legislation or rights. An example of where a document might be taken to substantially comply with content requirements would include a document that includes information on review rights but under the wrong heading. It's intended that the defect may not prevent substantial compliance.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I thank the minister. Will any of those matters be quantified or expressed in regulation?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Senator McKim, I can advise that we're happy to engage with you around the drafting process.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I thank the minister. Minister, my assumption is that implicit in that answer is that there will be regulations that will cover these matters. I would appreciate it if you could confirm that verbally.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Correct.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Has the government made a decision about whether they will be disallowable, or is it clear in the provisions of this bill whether those regulations will be disallowable?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I'd have to take that on notice and come back to you, Senator McKim.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for that. I thank this minister and, via him, the immigration minister for his invitation to engage in those issues. I do appreciate that.

I turn to the rights of review. Minister, you did mention judicial review in one of your earlier answers. I don't want to verbal you here or assert that you said anything, but I want to be clear. Are there any rights of review for departmental decisions made under the tests of substantial compliance or substantial prejudice to a person's rights?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is the High Court has made a determination that the decisions of the department can be judicially reviewed.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Are those rights expressly provided for in either this bill or the act?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

They're not expressly provided for in this bill, because there is a general understanding that that applies to decisions of the department.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Did the government take any legal advice around the creation of substantial compliance and/or substantial prejudice? To make it clear, I'm not asking you to reveal what that legal advice is. I'm simply asking whether advice was taken and, specifically, whether advice was taken on how a court may interpret the terms of substantial compliance and substantial prejudice to a person's rights.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

My understanding is that legal advice was provided in relation to the legislation. I don't know if it specifically covered the issue that you raised but I'm happy to try to come back to you on that.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I thank the minister for that commitment. Minister, you would have heard in my contribution to the second reading debate that the Greens are firmly of the view that this bill should have been referred to the Senate committee for inquiry, because these are potentially very complex matters—at least what that part of the bill deals with. Is the government able to explain what is so vital, or urgent or time sensitive about this legislation that it felt the need to present this to the Senate without supporting it being referred to a Senate committee for inquiry?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The urgency from our point of view was knowing that this would provide certainty for visa applicants, and we can only do that once this bill has been passed. From our point of view, that was the urgency and why we were keen to get this passed as soon as possible.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Well, I'll just take this opportunity to reiterate the Greens' view that there's significant potential for unintended consequences that would have massive ramifications on people's lives, including, ultimately, being forcibly deported back into danger and also in terms of permanent family separation and indefinite detention. I do note the proposition that Australia engages in indefinite immigration detention was roundly and explicitly rejected by the Department of Home Affairs. I want to place on the record the absurdity of the department's position in relation to that when I presented it to them in Senate estimates recently. There can be no doubt at all that we detain people indefinitely in immigration detention in Australia. That proposition is actually supported by no less than the United Nations. But the department, somehow, has managed to convince itself—Lord knows how, and with what mental gymnastics—that we don't actually detain people indefinitely. Of course we detain people in immigration detention indefinitely in Australia. It beggars belief that the department could convince itself otherwise.

You may or may not have this information, Minister; if you don't have it, I'd be happy for you to take it on notice and see whether in fact it is something that could be provided. I accept that government departments have varying datasets and varying data storage and searching capabilities, so you may not be able to answer this, but you could commit to at least responding in some form to this question. How many documents or notifications have the department sent out that have been found to be noncompliant with current requirements under the Migration Act or the regulations? I'd be happy if you'd just address that in the time frame of the existence of the new government.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

We'll take it on notice and provide whatever information we can, Senator McKim.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I appreciate that, Minister. What is the government's policy argument for removing the requirement that notifications for certain visa cancellations ensure, as far as reasonably practicable, that the holder understands the content? Surely that's an appropriate burden on the department—to ensure that notifications received by visa holders provide them with clarity and, as far as reasonably practicable, that the holder actually understands the content? I don't see what's so burdensome on the department about that provision.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

The requirement was relevant when information was provided to the visa holder orally. It is not applicable to written notifications. Instead, the visa notice would need to clearly set out why the relevant information is relevant to the visa cancellation.

Progress reported.