House of Representatives- MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2008

The Migration Legislation Amendment Bill (No. 1) 2008 seeks to clarify and improve the effectiveness of the Migration Act, the Australian Citizenship Act, the Australian Citizenship (Transitionals and Consequentials) Act and the Customs Act. There are a range of amendments proposed by the bill; I want to speak to only a few aspects of those amendments.

The Migration Legislation Amendment Bill (No. 1) 2008 seeks to clarify and improve the effectiveness of the Migration Act, the Australian Citizenship Act, the Australian Citizenship (Transitionals and Consequentials) Act and the Customs Act. There are a range of amendments proposed by the bill; I want to speak to only a few aspects of those amendments.

Before I do, I would note the major changes that the government has made towards a fairer and more just immigration system. Amongst these are changes to the detention system recently announced by the Minister for Immigration and Citizenship, Senator Chris Evans. The Rudd Labor government has made reforms to ensure that detention will be the last resort and will be for the shortest practicable time. Other changes have included the ending of the so-called Pacific solution, the abolition of the temporary protection visa regime, increasing the minimum salary levels for 457 visa holders and increasing the humanitarian and refugee intakes.

I was sorry to hear the member for Cowan this morning persisting in the defence of the brutal immigration regime of the former government. I was sorry also to hear the member for Cowan persisting in the demonisation of those seeking refuge in this country. The Rudd Labor government has put the immigration regime of the former government behind us. We are no longer going to imprison children of those seeking refuge. We are no longer going to remove people seeking refuge to the middle of the Pacific at huge cost to this nation—even before one considers the emotional and physical cost to the people concerned. We are going to use a just and humane approach to immigration matters—one that Australians can be proud of rather than ashamed of, as so many Australians were of the approach of the former government to immigration questions.

I want to specifically deal with one of the reforms introduced by this legislation, and it is the abolition of the handing down procedure that has been used by the Migration Review Tribunal and the Refugee Review Tribunal until now. This is something that is dealt with in items 6 to 9 and items 19 to 22 of schedule 1 of the bill, by which those handing down procedures are going to be abolished. The abolition of these handing down procedures in both the Migration Review Tribunal and the Refugee Review Tribunal makes good practical sense. They reflect the current processes found within the Administrative Appeals Tribunal at the Commonwealth level, the Veterans Review Board, the Social Security Appeals Tribunal, and, in my home state, the Victorian Civil and Administrative Tribunal.

I should refer to a letter that was written by Jillian Segal, who has done tremendous work in the service of the Commonwealth as President of the Administrative Review Council. What Jillian Segal wrote about the handing down process was that it was ‘administratively costly with no apparent benefit to the applicant’. With only 22 per cent of review applicants attending the handing down of their decisions, it was also a very artificial procedure.

What these amendments will do is to allow the tribunal to simply give the applicant and the secretary of the department a copy of the decision within 14 days of the decision being made. This reflects the current processes found for those in immigration detention and also unifies the notification procedures. This simplification will reduce the risk of administrative error and prevent additional needless expense. It will also limit the source of a significant amount of litigation which the department has faced due to uncertainties in the notification and handing down procedures. The abolition will also expedite the notification processes by ensuring that decisions can be speedily delivered and, hence, any potential appeal or additional submission of materials can only occur after a certain date.

I want to mention briefly the question of time limits because these were originally dealt with when this bill was introduced to the Senate in June. In the form in which this bill was introduced in the Senate, it contained amendments to reinstate appropriate and effective time limits for judicial review, and those provisions were found in schedule 1 in the form introduced. The existing sections 477 for the Federal Magistrates Court, 477A for the Federal Court and 468A for the High Court provide extra time limits on the time frames required for applications in immigration matters to be lodged with those courts.

In the decision in Bodrudazza v Minister for Immigration and Multicultural Affairs, the High Court held that such provisions were inconsistent with the powers provided by section 75(v) of the Constitution. In a joint judgement made by Chief Justice Gleeson sitting with Justices Gummow, Kirby, Hayne, Heydon and Crennan, the court stated that section 468A could not be read down or severed to preserve its validity. The later decision of the High Court in Plaintiff S157 confirmed that any time limits must be truly regulatory in nature and not remove the constitutional right to recourse to the court. In that decision, Justice Callinan suggested that a 35-day time limit accompanied by a power to extend time would be acceptable.

After the introduction of this bill to the parliament, a concern was raised that the amendments might not cover all decisions that are judicially reviewable and which should be subject to time limits. This included decisions made offshore to refuse to grant a visa to an applicant who has applied for a visa outside the migration zone and is not sponsored by an Australian permanent resident or citizen, and decisions to cancel a visa held by such a person while outside the migration zone.

Due to the urgency in passing the amendments found elsewhere in the bill in schedule 4—and this relates to the decision of the full Federal Court in Sales, which I will come to in a moment—and as more detailed consideration is required to ensure that the amendments to reinstate effective time limits for judicial review will operate in the way intended, the government withdrew the amendments relating to time limits in government sponsored amendments in the House. I understand that the Minister for Immigration and Citizenship has indicated that he will seek to introduce amendments dealing with time limits in a separate bill later in the spring or autumn legislative program.

As I have already mentioned, this bill has been given very considerable urgency by the decision on 17 July 2008 of the full Federal Court in Sales v Minister for Immigration and Citizenship. That decision in effect built on comments that had been made by Justice Weinberg in an earlier decision, Moore v Minister for Immigration and Citizenship. What these decisions deal with, particularly what the decision in Sales deals with, is section 501(2) of the Migration Act, which reads:

The Minister may cancel a visa that has been granted to a person if:

(a)   the Minister reasonably suspect that the person does not pass the character test; and

(b)   the person does not satisfy the Minister that the person passes the character test.

Under the subsection, ministerial discretion exists for a visa that has been granted to be cancelled on character grounds.

In the Sales decision, the Federal Court found that visas that are ‘held’ by operation of law rather than ‘granted’ cannot be cancelled under the character cancellation provisions of the Migration Act. As a result of that judgement on 17 July in which Mr Charles Sales’s appeal against a decision of the former minister to cancel his transitional permanent visa on character grounds was upheld, Mr Sales was released from immigration detention. I should point out that Mr Sales was convicted of a particularly brutal murder in 1989 and had been serving a term of imprisonment until 2006.

As a further result of the judgement some 22 other people were released from immigration detention: 14 were released from detention on 21 July 2008, six were released on 24 July 2008, one was released on 28 July and another was released on 30 July. Sixteen were released from Villawood, four from Perth and three from Maribyrnong in Melbourne. These people are all noncitizens who had served terms of imprisonment for their convictions for a variety of crimes. Those crimes cannot be detailed for privacy reasons, but the convictions include armed robbery, serious drug trafficking, sexual assault—including of minors—manslaughter and murder. It is of course the case that had they been Australian citizens each of these people would have been released into the community at the conclusion of their sentences. As noncitizens they had all been assessed as not passing the character test.

The Migration Act provision to which I have already referred contains a ministerial discretion to refuse or cancel a visa where a visa applicant or visa holder does not pass the character test. In exercising this power, there is 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 to 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. Their visas having been cancelled under section 501, the group of people who were released had been detained upon their release from prison and were awaiting removal from our country. As a result of the court’s decision in Sales, there were no grounds on which to continue to detain them and they were released from immigration detention.

Turning to the specific amendments that are designed to deal with this problem that has arisen, it needs to be made clear that there can be no suggestion that it was ever intended that the holders of transitional permanent visas would be exempt from having their visas cancelled on character grounds—like other noncitizens. What schedule 4 to this bill does is amend the Migration Act so that the character cancellation provisions apply to all temporary and permanent transitional visas and provide validation of all past character cancellation decisions in relation to such visas. There is no reason at all why this group of visas should have been exempted as a group.

The amendment makes clear what could only have been parliament’s original intention—that the holders of permanent and temporary transitional visas would be subject to the same character cancellation provisions as any other visa holder. The bill validates the cancellation power in relation to previous cancellations of transitional visas—that is, it is not a wholesale validation of the cancellation decisions in all respects; it deals with the critical technical issue of whether the visa was granted.

The amendments as drafted will effectively and automatically reinstate the cancellation decisions under which many of these people were detained. Following the commencement of these amendments, the majority of the people who have been released from immigration detention as a result of the Sales decision may then be liable for re-detention, depending on their circumstances. For those not automatically covered by the legislation, the department will be considering their individual circumstances to decide what further action may be appropriate. This legislation will deal promptly and effectively with the consequences of the Federal Court’s decision in the Sales case. I commend the bill to the House.