Laurie Ferguson (Reid, Australian Labor Party, Parliamentary Secretary for Multicultural Affairs and Settlement Services) Share this | Hansard source

I move:

That this bill be now read a second time.

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

This will 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 and the United Nations convention relating to stateless people 1954.

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 over 12 months, rectify a number of issues that have been identified over that period. Rather than allow these issues to accumulate this government will deal with them now.

Since the introduction of the bill, some urgency has now arisen in relation to the amendments in schedule 4 that I will address as I am going through the bill.

As the bill will make over 100 amendments, spanning four acts, I will confine this speech to the more notable amendments in each schedule.

Schedule 1 of the bill will, amongst other things, amend the Migration Act to streamline the procedures for notifying parties of a decision of the Migration Review Tribunal, MRT, and the Refugee Review Tribunal, RRT, by 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 the minister or his delegate in the case of combined applicants.

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 the MRT, it is anomalous for the position of deputy principal member to exist in one tribunal but not the other.

Schedule 2 of the bill contains measures to strengthen the provisions in the Migration Act and the 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. 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 time frames in the migration legislation with those prescribed in the Customs legislation.

To ensure the government has in place practical methods for enforcing compliance with 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 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.

Schedule 3 also includes amendments to clarify certain offence provisions in divisions 12 and 14A of part 2 of the act and clarify the operation of certain provisions after they were amended as part of the Criminal Code harmonisation changes with the Criminal Code.

As I flagged earlier, amendments in schedule 4 have now taken on some urgency. The amendments were initially included to address obiter comments in the May 2007 full Federal Court decision in Moore v Minister for Immigration and Citizenship [2007] FCA 626. The obiter comments cast doubt on whether the minister’s powers under section 501 of the Migration Act to cancel a visa on character grounds would apply to transitional visas.

Where a visa applicant or visa holder does not pass the character test, the minister has been given the discretion to refuse or cancel a visa. In exercising this power, the minister has 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 noncitizens whose actions are so abhorrent to the community that they should not be allowed to enter or remain within Australia.

As part of what was a highly technical judgement, the full Federal Court in Sales v Minister for Immigration and Citizenship [2008] FCAFC 132 on 17 July 2008 found that a transitional (permanent) visa cannot be cancelled on character grounds because it is a visa that is ‘held’ rather than ‘granted’. These transitional visas are held by operation of law post reforms to the Migration Act in 1994.

As a result of the court’s decision in Sales, 23 people, including Mr Sales, were released from immigration detention.

The department decided, on legal advice, not to appeal the judgement in the Sales case.

The amendments in schedule 4 to the bill address the Moore decision (and now the Sales decision) to ensure that the character cancellation provisions in the Migration Act apply to all temporary and permanent transitional visas, and provide validation of all past character cancellation decisions in relation to such visas. This maintains the minister’s ability to protect the Australian community.

Another measure in schedule 4 to the bill aims to increase protection for clients of the department who engage offshore migration agents. There is currently a comprehensive scheme in the Migration Act administered by the Migration Agents Registration Authority, MARA, 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, the minister or his delegate will not be compelled to communicate with them. This new power will provide the 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 which provides a form of sanction for unacceptable behaviour is also designed to reinforce an administrative accreditation scheme that will be established to recognise offshore operators who deal professionally with clients of the department.

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 noncitizen.

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 and the United Nations convention relating to stateless people 1954.

I commend the bill to the chamber.

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