Shayne Neumann (Blair, Australian Labor Party) Share this | Hansard source

I rise to speak in favour of the Migration Amendment (Notification Review) Bill 2008. This bill is an amending piece of legislation designed to overcome technical obstacles in respect of notification. What does that mean? I will not bore the House with the names of all the various judicial decisions but I will refer to a number of judgements and what was said, and I will give a precis of some of the outcomes in that regard, just to show what the problem is that currently needs to be overcome. These judicial decisions concern the way in which the Department of Immigration and Citizenship and certain tribunals deal with what they call their ‘clients’ in respect of visa applications and visa cancellations.

The Migration Act 1958 and the Migration Regulations (Amendment) 1984 set out the provisions for how the department, the Migration Review Tribunal and the Refugee Review Tribunal deal with clients in the circumstances. I have had a look at the regulations, the act and the various case law. They specify what must happen with respect to notification and the contents of notification, the methods by which notification is affected and the deemed time of notification and its application. This information can be found in detail in the regulations and in the act. It is quite a complex piece of legislation when you have a look at it—it is a wonder that any individual can actually understand it. The actual notification and the service provisions can be found in the legislation in sections 379A, 379B and 379AA, so we are talking about legislation that is starting to look like the Income Tax Assessment Act—it is quite complex and quite long.

The service requirements are prescriptive and they are technical. Any lawyer who practices in civil litigation understands that service provides a great possibility for disputation; it is pregnant with possibilities. As a lawyer who practised in the area of civil litigation and personal injuries, crime—in my early days—and family law, I always looked closely when service was being affected. How was the method of service being affected? Did it need to be ordinary service, service by post, special service or service to the person personally—actually delivered to their hand? What about a corporate entity? Do you serve the registered office? Where is the registered office? Is service upon the lawyer for the party effective service? All these things challenge litigants, they challenge lawyers who practise in these areas and they are ripe with the possibility for dispute.

In the Federal Magistrates Court and the Family Court, when service has been effected upon someone and they actually front up to the court itself, they can hardly dispute that they have not been served, because how or why are they there otherwise? If they require an adjournment, it is quite common for courts and tribunals in the federal area to grant adjournments in the circumstances if the person feels that they have not been given enough notice. But, really, the technical difficulties in this piece of legislation and in the regulations are quite extraordinary and they frustrate the whole integrity of the process. They are really an attack on the kind of litigation process that Australians expect will happen—that is, one which will deal with them consistently, deal with them fairly and deal with them in a manner which allows the process to be conducted expeditiously.

The primary purpose of this bill is to clarify and provide greater certainty in terms of the notification procedures. That was said by the Parliamentary Secretary for Multicultural Affairs and Settlement Services, Laurie Ferguson, in his second reading speech, and I agree with what he has to say. He said in that speech that the service provisions provide ‘fertile ground for the courts to find notification defects’. To rectify these issues, this bill seeks to clarify and improve the way that the department, the various tribunals and other bodies communicate on visa applications. Specifically, it will amend the Migration Act in three broad policy areas. The first is to provide that actual notification will apply if the deemed notification provisions cannot operate. That is fair in the circumstances. The second is to provide that where the minister or the relevant appeal tribunal reasonably suspects that a person has care and responsibility for a minor—in Queensland, where I come from, that is someone who is under the age of 18—then notification of that person equates to notification of the minor, except where an authorised recipient has been validly appointed. The third area is to provide that substantial compliance with the required contents of a notification document is sufficient.

I will not deal with the third area, because it has been flagged with me that the government may be sponsoring amendments to this area and there is some issue in relation to it, so I will deal with the first two areas. Can I say at the outset that this bill is not about to disadvantage or prejudice anyone in any way at all. It is all about certainty, clarity and specificity. It is fair and reasonable to ensure that clients are there and that, if they are present and they receive a letter from the department or the tribunal, they can act upon it and rely upon it.

The bill is necessary to fix technical errors. For instance, if a minister or the tribunal can communicate with a minor’s carer instead of the minor, then, under the changes, it will be lawful for the carer to respond on behalf of the minor. That seems sensible in the circumstances. The bill also makes it very clear that, where a person has actually received a document, they are served. It overcomes the procedural difficulties in those circumstances.

The difficulties with respect to the notification provisions had the potential to, and did, result in significant cost to the Commonwealth government. All litigation can be expensive: expensive to the litigant, expensive to the Commonwealth and, in the circumstances, it is necessary to overcome these problems. This was commented upon by the Commonwealth Ombudsman in his report Notification of decisions and review rights for unsuccessful visa applicants in December 2007.

As a former lawyer, I believe that due process is crucial. The right to be heard and to face whatever allegations may be confronting you is crucial. It is what we call ‘natural justice’. It is integral to the integrity of any immigration process system. Correct notification is required to trigger legal rights and obligations and to ensure that consequences for action can be lawfully followed.

The current provisions in the legislation stipulate that notification must occur in a certain way, it must contain certain information and it must be given to a specific person at a specific address in order for legal consequences to flow. Unfortunately, our courts, specifically the Federal Court, have adopted an overly strict interpretation of the notification provisions, irrespective of whether the applicant was actually notified, and I think, sadly and regrettably, it has frustrated the intention of the parliament. Justice Lander, in a 2008 decision, made this very clear. He said:

In my opinion, the provisions of section 422B, which make the content of Division 4A and Division 7A, together with sections 416, 437 and 438, a complete code for the discharge of the Tribunal’s obligations in relation to the natural justice hearing rule, suggests that Parliament intended that there be strict adherence to each of the procedural steps leading up to the hearing. Each of the procedural steps is imperative and must be complied with in the manner described in the Act.

It is interesting, because the decision was a unanimous decision and it held that the actual notification of a hearing invitation, evidenced in that case by the applicant’s attendance at the hearing, was not sufficient to override a failure to strictly comply with every part of the notification requirements in the act. In other words, if the actual applicant turned up to the court, service had not been effected. It is a legal nonsense. It is simply stupid for that provision to remain. In that case, all the applicants appeared at the hearing and a number of them had the chance to present their evidence. So none of the applicants were prejudiced by the failure to strictly comply with the relevant notification requirements.

This literalistic interpretation has led to numerous judgements from the courts which have found that the department and the tribunals have not correctly provided notification of the circumstances. The amendments in this bill relate to how the department and the tribunals communicate with their clients. I hope the onus will shift onto the applicant, to overcome excessive litigation. I do not think anyone in this House wants to see multitudinous cases in this area. It can be very difficult when people talk about migration, and there would be many of us who have had people in our offices talking about the challenges of the migration system. Just last Saturday afternoon I had someone in my office talking about these issues.

The amendments provide that the tribunals are deemed to have validly given notification, in a document, to an authorised recipient even if the document, the envelope containing the document or any accompanying material contains an error or omission that is minor or insignificant, unless the applicant can show that the error or omission substantially prejudices them. That amendment is necessary because of a 2002 decision which found that an envelope containing a notification letter had to be addressed to the noncitizen’s authorised recipient, not the noncitizen care of the authorised recipient. What a nonsense. What a silly thing to decide. It is hardly believable that a court would make a decision like this. That decision affected potentially hundreds, if not thousands, of cases.

Another decision in 2008 arose from the inclusion of an incorrect postcode on two letters sent to a visa applicant by the tribunal, which were received and acted on him. Fortunately, in that case the tribunal affirmed the decision and refused the visa protection. The outcome may, however, be less certain and more precarious in other cases.

The purpose of these amendments is to overcome this silliness in the circumstances. The amendments are about ensuring that individuals do not experience prejudice, that individuals are not disadvantaged in any way and that the court process can continue and go forward. It is not about denials of natural justice. It is about making the whole system simpler. It is about greater consistency, it is about greater integrity, it is about greater clarity, it is about greater flexibility and it is about the streamlining of notification procedures. It is about consistency and it is about reducing complexity. As someone who has practised for nearly a quarter of a century in the legal system, I think anything that achieves that outcome is not only good for the nation but good for the clients I used to have, good for the people in my electorate, good for the taxpayers of Australia, good for our country and good for the future integrity of our migration system. I commend the bill to the House.

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