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Wednesday, 26 September 2001
Page: 31479


Ms JANN McFARLANE (12:12 PM) —I rise today to speak in support of the Jurisdiction of the Federal Magistrates Service Legislation Amendment Bill 2001, which amends the Migration Act 1958 to give jurisdiction to the Federal Magistrates Service in matters under part 8 of the act. The bill will affect a range of case matters. I will talk today on a particular aspect, and that is the removal of restrictions on the Federal Magistrates Service hearing migration matters under the Administrative Decisions (Judicial Review) Act and hearing appeals in relation to migration matters under the Administrative Appeals Tribunal Act.

This is a piece of legislation which the community want. This is because they see reducing the appeal period as a solution to the unauthorised arrivals in Australia of people by boat. However, it does not address the large numbers of unauthorised arrivals of people by plane with valid tourist visas. This bill will confer jurisdiction in migration matters on the Federal Magistrates Service, allowing Australia to streamline the appeals process for migration and refugee cases before the Australian judicial system. This is necessary because the current system is failing and is prey to unscrupulous lawyers who seek to profit from the complexity of the current system and the misery of their clients.

The current system is failing because of the lengthy delays that occur in determining migration and refugee matters. Generally, unsuccessful applicants for asylum pursue every avenue of appeal. This means that those people who have not made out genuine claims of asylum can spend very long periods—sometimes years—in detention awaiting appeals, prior to being deported back to their country of origin. The cost of the current appeals process by applicants in migration and refugee matters has now reached $15 million per year. This is in addition to the cost of $104 per person per day to house asylum seekers in detention while their appeals are being processed. This is a huge financial burden for the taxpayers of Australia to bear. This cost makes it a matter of national interest that migration and refugee appeals should be dealt with as quickly and fairly as possible. This legislation will give the Federal Magistrates Service concurrent jurisdiction to hear migration appeals with the Federal Court. That is, both the Federal Magistrates Court and the Federal Court have the authority to accept and deal with appeals from the Migration Review Tribunal and the Refugee Review Tribunal.

Applicants who have had their appeal rejected by the tribunal would be entitled to choose whether to appeal to the Federal Court, as per the current rules, or to the Federal Magistrates Service. However, applicants who choose the Federal Magistrates Service to hear their case will then be automatically entitled to a further appeal to the Federal Court. The shadow Attorney-General has already indicated to the House that Labor seeks to amend this bill to improve it significantly. Despite the government's stated claim that it is seeking to simplify appeal mechanisms, this may paradoxically create more opportunities for unsuccessful applicants to delay the resolution of their cases by introducing yet another layer of appeal. Labor's amendments will introduce new rules designed to discourage lawyers and migration agents from encouraging applicants to make appeals that have no reasonable prospect of success. These rules would allow a court to impose a personal costs order of up to $5,000 on a lawyer who encourages a person to make an appeal that has no reasonable prospect of success. This measure would discourage lawyers from exploiting applicants and would help stop vexatious appeals driven by lawyers seeking to line their own pockets at the expense of Australian taxpayers and the continued misery of their clients.

Labor's amendments will retain judicial review but will allow applicants only a single opportunity for judicial review in the Federal Magistrates Service. There would be no right of appeal from a decision of a federal magistrate. Some applicants may elect to seek a review of the decision of the Migration Review Tribunal or the Refugee Review Tribunal in the original jurisdiction of the High Court, as is presently the case. However, Labor's amendments will allow the High Court to send those cases directly to the Federal Magistrates Service for a decision. These amendments will improve the government's stated aim of reducing avenues for appeal, but it remains to be seen whether the government will support Labor's attempts to improve this bill. The government's attempts to exclude the jurisdiction of the High Court in migration matters might be unconstitutional. This is because there is a guarantee in the Constitution that the High Court has authority to hear applications for judicial review. It is unlikely that the High Court would accept that its original jurisdiction to hear migration matters might be excluded by way of legislation. Nevertheless, Labor has agreed to pass this legislation should the government not agree to Labor's amendments, so that it can be tested in the High Court.

Talk of solving the problems relating to migration and refugee issues cannot be limited to just the judicial process. Labor has a plan to help reduce the number of migration and refugee cases reaching the stage of appeal, and, in the context of discussing ways to reduce the burden of migration and refugee case load, it makes sense to examine other ways that this might be done. Labor's plan is threefold: first, you have to close the gate; second, you have to have a cop on the beat; and, third, you have to have a process to deal with the people who get through the gate and past the cop. We in the Labor Party are 100 per cent opposed to illegal immigration, but the Howard government has an atrocious record on illegal immigrants. The Howard government let 136 boats though to Australian waters and decided, just a few weeks before an election, to turn around the 137th boat, the Tampa, before the government even had a plan in place to do so. There is no limit to the cynicism of this government.

As I mentioned earlier, first we have to close the gate, and Australia will not fix the border problem without fixing the relationship with Indonesia. A Labor government will pursue the issue of people-smuggling at the highest levels of the Indonesian government and at the ASEAN regional security forum, and Labor will appoint a special Australian representative to promote with our neighbours regional action on people-smuggling and organised crime. Second, we need a cop on the beat. Labor will create an Australian Coast Guard to fill this role and it has a bill before the House to do this now. Effective coastal surveillance and protection needs to be for 52 weeks a year and not just, as the Howard government believes, in the run-up to an election.

On 6 March 2001, I gave an appropriation bill speech in this place, calling on the government to respond to the concerns of the people of Stirling about Australia's coastal security by introducing an Australian Coast Guard. In my speech, I made several points, which I will repeat for the benefit of members who did not hear it or may have forgotten. I explained that currently there is no overriding jurisdiction covering enforcement of law in maritime areas under Australian control. I explained that the vision of the people of Stirling, which is also the vision of the Australian Labor Party, is the development of a cohesive, modern, integrated coastal security system that draws together programs and activities that are currently undertaken by a range of different organisations. I also explained that the Labor Party had committed, as long as two years ago, to establish an Australian Coast Guard that will have overall responsibility for our coastal surveillance and protection, but the government has ignored my calls on behalf of the people of Stirling. Fortunately, the Leader of the Opposition has listened to the people of Stirling's concerns and on 24 September 2001 introduced a bill to establish an Australian Coast Guard. It remains to be seen whether the Howard government will support this worthy plan but, by their words, I am not hopeful that they will.

The government has ridiculed Labor about the Coast Guard and has told us that we cannot afford it. That is rich coming from a government that has spent around $110 million to send the refugees of a single boat, the Tampa, to Nauru. I say `around $110 million' because, as was reported by Megan Saunders in the Australian on 18 September 2001, the Minister for Defence has refused to reveal the full costs of the exercise. Processions of Liberal members have stood up in this House to ridicule Labor's Coast Guard plan. The member for Murray said that such an option is not considered appropriate or necessary in Australia. The Minister for Defence called Labor's plans for a Coast Guard a hallucination and said that the best people to do that job are the people of the Australian Navy. The member for Herbert said that Labor's Coast Guard was probably the most ridiculous suggestion that he had seen. The Minister for Defence, at it again, characterised Labor's plan for a Coast Guard as an attack on the Australian Defence Force and called it a furphy that ought to be rejected. It is important for the people of Australia to know where the Howard government stands on this issue, because the Labor Party disagrees with it. When we have a Coast Guard, our Defence Force can stop playing policeman and get on with the job it is supposed to do: defend Australia from attack and prepare for war. In these difficult times, it is ludicrous that our Navy should be patrolling our coast for leaky fishing boats when there are uncertain and potentially dangerous challenges ahead.

Third, you have to have a process for dealing with those who still manage to get through the gate and past the cop. This bill goes a long way towards creating that process, which is why Labor supports it, but it would be improved immeasurably if the government agreed to Labor's amendments. I commend this bill, with the Labor amendments, to the House. In doing so, I recommend that the government support Mr Beazley's private member's bill for an Australian Coast Guard—a bill which will also help reduce the number of migration and refugee appeals before the Australian courts.