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Tuesday, 5 May 1992
Page: 2370


Mr HAND (Minister for Immigration, Local Government and Ethnic Affairs) (4.06 p.m.) —I move:

  That the Bill be now read a second time.

This Bill makes changes to the merit review system established as part of the major amendments of the Migration Act in 1989. The changes are designed to enhance the position of the applicants for review. The Bill also increases penalties in the Act in line with Commonwealth criminal law policy and makes a number of other minor amendments.

  The Government, in 1989, established a two-tier merits review system of certain decisions under the Migration Act. The first tier is the Migration Internal Review Office (MIRO). The second tier is the Immigration Review Tribunal (IRT) which is an independent external review agency. As I noted in the House of Representatives on 17 April 1991 the objectives of the review system continue to be achieved. That is to say, the review system provides independent review which is fair, just, economical, informal and quick. Further legislative changes have been made to enhance the review system and I refer honourable members to the Migration Amendment Act 1991 which introduced a number of important changes.

  This Bill will make two further changes to the review system. Firstly, the Bill will clarify the matters which may be considered by MIRO or the IRT when reviewing an assessment under section 30 of the Act. Section 30 provides for an assessment to be made of an applicant's qualifications with points awarded for each qualification as prescribed in the Migration Regulations. It is a criterion for the grant of some visas that the applicant receive more than a specified number of points when assessed under section 30. At present the Act does not indicate whether MIRO or the IRT are required to consider changes to the Migration regulations, prescribing points for qualifications, which occur subsequent to the original decision on the application. It is possible that the points awarded for a particular qualification may increase or decrease in the period between the original decision and the review stage. The Bill will insert a new section 121A into the Act which will provide that points under section 30 are to be assessed by MIRO and the IRT in accordance with the regulations in force at the time of the original decision. However, if the regulations prescribing points and qualifications which are in force at the time of the review will lead to a more favourable outcome for the applicant, those regulations will apply instead.

  The second change to the review system which will be effected by this Bill is a technical amendment to ensure that illegal entrants who may be invited by the IRT to lodge an application for an entry permit under section 121 are not prevented from doing so by section 37. Section 37 is designed to prevent illegal entrants from delaying their departure from Australia by lodging a sequence of applications for entry permits. That section was not intended, contrary to what one construction of the language might indicate, to prevent illegal entrants from lodging an application when invited to do so by a review authority. Section 37 will therefore be amended accordingly.

  I turn now to the issue of the level of penalties provided for offences created by the Act. Honourable members will appreciate that the Migration Act creates a number of criminal offences dealing with such matters as illegal entry to Australia, obstruction of officers, and escaping from custody. In line with the Government's determination to reduce the number of illegal entrants in Australia, the penalties provided in the Act have recently been reviewed.

  The pecuniary penalties, provided as an alternative to imprisonment, were found to be below the levels now considered appropriate in terms of Commonwealth criminal law policy. That policy is expressed in section 4B(2) of the Crimes Act 1914 and provides that maximum pecuniary penalties are to be determined in accordance with a formula whereby six months of imprisonment equates to $3,000. For example, the offence of escaping from custody in section 171 of the Act currently has a penalty of $5,000 or imprisonment for two years or both. These are, of course, the maximum penalties which a court may impose. Under the proposed amendment the penalty set out in the Migration Act will be two years imprisonment. However, application of the formula in section 4B(2) of the Crimes Act—$3,000 per six months of imprisonment—will increase the maximum pecuniary penalty from $5,000 to $12,000.

  The offences in the Migration Act which will not be subject to the formula in section 4B(2) of the Crimes Act are those where no imprisonment option is provided. The majority of those penalties will also be increased to maintain relativity with the penalties derived under section 4B(2).

  In addition I should mention those offences relating to the arranging of non-genuine relationships for the purpose of securing permanent residence in Australia. Persons who arrange contrived relationships to defeat Australia's migration laws will risk penalties of $100,000 or 10 years imprisonment or both. These penalties were introduced recently in the Migration Amendment Bill (No. 2) 1991 and reflect the need for a more substantial deterrent in this area than would be provided by the application of the section 4B(2) formula.

  The Bill will also introduce a number of other less significant, but nonetheless important, amendments to the Migration Act to which I will make brief reference.

  References to powers of arrest will be removed from sections 92 and 93 and from a number of related sections to ensure that no confusion arises between the powers under the Act to take persons into what might be termed `migration custody' and the power to arrest persons for criminal offences.

  Officers who exercise powers under the Migration Act to take persons into custody do so for specific purposes under the Migration Act related to migration processing and/or removal from Australia. Those powers are, therefore, not subject to the restrictions set out in the Crimes Act 1914 which apply to the power to arrest persons for criminal offences. However, to make this distinction absolutely clear the term `arrest' has been removed from a number of sections of the Act and replaced with the term `detain in custody'.

  I will now deal with the proposed amendments to section 20 of the Act. Section 20 identifies a number of matters which would result in a person becoming an illegal entrant unless those matters are disclosed in a notice under section 20. For example, a person suffering from a prescribed disease or a prescribed physical or mental condition must disclose that fact in a section 20 notice. If a visa or entry permit is subsequently granted to the person who has made the required disclosure that visa or entry permit must be endorsed with a statement that the person is recognised to be a person to whom section 20 applies. In other words a person who has, for example, a prescribed disease, must have that fact acknowledged on their visa or entry permit.

  The migration regulations currently permit the endorsement to be in the form of a code recognisable only by departmental officers. Despite this, the requirement for an endorsement can cause embarrassment or offence to some persons. The proposed amendment will provide that the obligation to endorse the visa or entry permit will be satisfied if the information is recorded in a departmental database. A number of other minor technical amendments will be made by the Bill. These are explained adequately in the explanatory memorandum to the Bill.

  I now wish to foreshadow major Government amendments to the Bill which I will move during the committee stage. The Government is conscious of the extraordinary nature of the measures which will be implemented by the amendment aimed at boat people. I believe it is crucial that all persons who come to Australia without prior authorisation not be released into the community. Their release would undermine the Government's strategy for determining their refugee status or entry claims. Indeed, I believe it is vital to Australia that this be prevented as far as possible. The Government is determined that a clear signal be sent that migration to Australia may not be achieved by simply arriving in this country and expecting to be allowed into the community.

  Australia will, of course, continue to honour its statutory and international obligations as it always has done. Any claims made by these people will be fully and fairly considered under the available processes, and any persons found to qualify for Australia's protection will be allowed to enter. Until the process is complete, however, Australia cannot afford to allow unauthorised boat arrivals to simply move into the community.

  The Government has no wish to keep people in custody indefinitely and I could not expect the Parliament to support such a suggestion. Honourable members will note that the amendment calls for custody for a limited period. The period provided for in the amendment is 273 days—this translates into nine months. This period is, however, restricted to that time where consideration of a person's claims is directly within the control of my Department. Where factors are outside the control of my Department, the period is suspended. For example, where it is up to the applicant to provide information relevant to a claim, the time taken to provide that information would not be included in the period.

  Honourable members will understand that although under optimum conditions new procedures allow for the processing of border claimants in about two months, there is at present no guarantee that the process cannot be delayed. It would be a concern if that could occur. The amendment provides the incentive for the parties involved in the process not to embark on tactics calculated to delay the final processing of claims. For its part, the Government has no desire to keep these people in custody longer than necessary and would prefer that a proper decision is made as quickly as possible. Indeed, it has acted throughout this process with the aim of expediting the finalisation of cases.

  Mr Deputy Speaker, honourable members, if a claimant's application for refugee status or entry is refused he or she will have to leave Australia. The Department will be under an obligation to effect removal as soon as practicable. This will, of course, always depend on the time it takes to make the appropriate arrangements with the receiving country to properly effect removal.

  The most important aspect of this legislation is that it provides that a court cannot interfere with the period of custody. I repeat: the most important aspect of this legislation is that it provides that a court cannot interfere with the period of custody. No law other than the Constitution will have any impact on it.

  The amendment provides that those boat people already in Australia will be in the new custody from the date this Bill receives the royal assent. In other words, the 273 days will commence on that date. For those unauthorised boat people who arrive in Australia between 27 April and 1 December this year, custody will start when the person is detained. The 273 days will start on the day that the detainee makes an application. The formula for suspending the period applies once the 273-day period starts.

  Designated persons not in custody on the date of royal assent may be detained without warrant and kept in custody. This will mean that persons who have escaped from custody since arriving in Australia and those who may have been released from custody must be taken back into custody. In those cases the 273 days will start to run on the day they are taken back into custody.  The existing rights and status of a person in other respects of the Migration Act will be unaffected.

  I might say, in closing, that this legislation is only intended to be an interim measure. The present proposal refers principally to a detention regime for a specific class of persons. As such it is designed to address only the pressing requirements of the current situation. However, I acknowledge that it is necessary for wider consideration to be given to such basic issues as entry, detention and removal of certain non-citizens.

  It is my intention shortly to recommend to Ministers a comprehensive program of legislative amendment to ensure that our immigration law is the best mechanism to deal with current migration issues and needs. The program is being designed in close consultation with the Attorney-General's Department. It will be the result of careful and extended consideration of those issues and needs.

  I also point out to the House that it is my intention to liaise with the shadow Minister through that process of developing these proposals. I think that this is an issue where we can work towards a bipartisan approach.

  Mr Beale interjecting—


Mr HAND —I would expect you to make that comment, but not the shadow Minister. Accordingly, I intend to recommend amendments to the Act to, among other things, simplify and clarify the applicable law in relation to provisions governing the entry, detention and removal from Australia of non-citizens. I hope, for example, to address the present complexities of the current powers in the Act to detain non-citizens. Such a revised scheme will be of significant benefit to those responsible for administering our migration law, as well as to those subject to it, in terms of simplicity, clarity and fairness. I am also contemplating amendments to codify aspects of the process of review of refugee determination.

  I commend the Bill to the House and I present the explanatory memorandum to the Bill.