House of Representatives

Migration Legislation Amendment Bill (No. 1) 2008

Second Reading Speech

Senator CARR (Minister for Innovation, Industry, Science and Research)

I table the explanatory memorandum relating to the bill and 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-

The Migration Legislation Amendment Bill (No. 1) 2008 is an omnibus bill that will make over 100 amendments, spanning 4 Acts: the Migration Act 1958, the Australian Citizenship Act 2007, the Australian Citizenship (Transitionals and Consequentials) Act 2007 and the Customs Act 1901.

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. It will also ensure that the citizenship legislation is consistent with Australia's obligations under the United Nations Convention on the Reduction of Statelessness 1961.

The amendments will cover a wide range of subjects, from reinstating effective time limits for applying to the courts for judicial review of migration decisions, to changing a simple reference in the Australian Citizenship Act 2007 from '3 months' to '90 days', to achieve greater certainty.

The amendments in this bill are important and necessary, and in the case of the Migration Act, are long overdue.

The amendments to the Citizenship Act, which has now been in operation for about 12 months, rectify a number of issues that have been identified over that period. Rather than to allow these issues to accumulate over coming years, this government will deal with them now.

The amendments in this bill are too numerous to cover in this speech and so I will confine myself to the more notable amendments in each schedule.

Schedule 1 of the bill will, amongst other things, amend the Migration Act to reinstate effective time limits for applying to the courts for 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 for review.

The current time limits in the Migration Act are largely ineffective as a result of the April 2007 High Court decision of Bodruddaza v Minister for Immigration and Multicultural Affairs and the July 2007 Full Federal Court decision of the Minister for Immigration and Citizenship v SZKKC. To overcome the problems identified in those decisions the amendments will allow 35 days for lodging an application to the Federal Magistrates Court, the Federal Court and the High Court for judicial review of a migration decision and also vest the courts with a broad discretion to extend time where it is necessary in the interests of the administration of justice to do so.

Further, the 35 day period will start to run from the time "the decision is taken to have been made" rather than from the time of actual notification, which will ensure greater certainty in determining when time commenced to run.

The Schedule 1 amendments will also streamline the procedures for notifying parties of a decision of the Migration Review Tribunal - "the MRT" and the Refugee Review Tribunal - 'the RRT" - by, amongst other things, removing the requirement for the Tribunals to "hand down" their decisions.

The handing down and current notification procedures have doubtful practical value and have been the source of considerable litigation over the years, often with far-reaching effects, including, on occasion, the potentially unlawful detention of non-citizens. The amendments in Schedule 1 will make the notification and merits review process simpler and reduce the risk of administrative error by removing the handing down requirement and providing that the Tribunals' review decisions, other than oral decisions, are taken to be made on the date of the Tribunals' written statement of the decision.

The amendments also provide that where two or more persons apply for review of a decision together, documents given by the Tribunals to any of the applicants are deemed to have been given to all of them. This will avoid uncertainty regarding notification of review applicants who have made or sought to make a combined application and is also consistent with subsection 52(3C) of the Migration Act, which applies to notification of visa decisions made by myself or my delegate.

Schedule 1 also includes amendments that will create a new position of Deputy Principal Member for the MRT. Currently the RRT includes the position of Deputy Principal Member but the MRT does not. As the Tribunals operate administratively as a single agency, and the Principal Member and other members are cross-appointed to both the RRT and MRT, it is anomalous for the position of Deputy Principal Member to exist in one Tribunal but not the other.

Schedule 2 to the bill contains measures to strengthen the provisions in the Migration Act and Customs Act 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 of the bill relates to the requirement for operators of aircraft and ships to report on passengers and crew prior to entering Australia via the Advance Passenger Processing System. The amendments make it clear that an operator must report on each passenger and crew member individually. This is to ensure that operators take greater care in ensuring that every person on board the aircraft or ship is properly accounted for. The amendments also align reporting timeframes in the migration legislation with those prescribed in the customs legislation.

To ensure the government has in place practical methods for enforcing contraventions 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 advance passenger and crew reporting requirements. This regime is expected to be less costly to administer and easier to implement, with the flow on effect of increased compliance with reporting obligations.

Schedule 3 of the bill will make a number of minor amendments to the Act to clarify and improve certain provisions relating to visas, including amendments to give greater certainty to the immigration status and immigration clearance of non-citizen children born in Australia; amendments to ensure that a security may be imposed for compliance with visa conditions before grant; and a range of other amendments to clarify the operation of certain provisions relating to bridging visas. The Schedule also includes amendments to more effectively harmonise a number of offences in Divisions 12 and 14A of Part 2 of the Act with the Criminal Code.

Schedule 4 to the bill includes measures that aim to increase protection for clients of my Department who engage offshore migration agents. There is currently a comprehensive scheme in the Migration Act administered by the Migration Agents Registration Authority for the registration and disciplining of migration agents operating in Australia, but it is impracticable and contrary to international law principles to extend this regulatory framework offshore and provide coercive powers to the Authority to investigate actions taken overseas.

The amendments in Schedule 4 therefore use the authorised recipient provisions to regulate the activities of offshore migration agents, by providing that where an authorised recipient is giving immigration assistance and is not a registered migration agent, I or my delegate will not be compelled to communicate with them. This new power will provide my Department with the power to refuse to communicate with offshore migration agents, most of whom are unregistered, when there are concerns about their professionalism, competence, conduct or character. The measures will also provide a disincentive for clients to use such agents when there are these concerns.

This new statutory power is also designed to reinforce an administrative accreditation scheme that will be established to recognise offshore operators who deal professionally with clients of my Department. It is anticipated that the new statutory power will complement the administrative accreditation scheme by providing a sanction for unacceptable behaviour and more consumer protection for offshore clients.

Schedule 4 to the bill also amends the Migration Act so that the character cancellation provisions apply to all temporary and permanent transitional visas.

Where a visa applicant or visa holder does not pass the character test, I have been given the discretion to refuse or cancel a visa. In exercising this power, I have a responsibility to the Parliament and to the Australian community to protect the community from criminal or other reprehensible conduct and to refuse to grant visas, or cancel visas held by non-citizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within Australia.

It has always been intended that my powers would apply to all visas. However, doubt has been cast on this by the May 2007 Full Federal Court decision in Moore v Minister for Immigration and Citizenship in relation to transitional visas, both temporary and permanent, that came to be 'held' rather than 'granted'.

Schedule 4 to the bill amends the Act so that the character cancellation provisions apply to all temporary and permanent transitional visas and provides validation of all past character cancellation decisions in relation to such visas. This maintains my ability to protect the Australian community.

Schedule 4 also clarifies section 193 of the Migration Act to ensure that an illegal foreign fisher or environmental offender can be removed from Australia if they have previously been granted a criminal justice visa or bridging visa while in remand or serving a custodial sentence. This minor amendment ensures this provision is consistent with its original policy intention, that an illegal foreign fisher and more recently an environmental offender should be removed from Australia as soon as possible after they become an unlawful non-citizen.

The amendments in Schedule 5 seek to clarify the meaning of certain provisions in the Australian Citizenship Act 2007 and the Australian Citizenship (Transitionals and Consequentials) Act 2007 and remove inconsistencies across the Acts. The amendments also aim to ensure that Australian citizenship law is consistent with our international obligations under the United Nations Convention on the Reduction of Statelessness 1961.

I commend the bill to the chamber.

Ordered that further consideration of this bill be adjourned to the first day of the next period of sittings, in accordance with standing order 111.