Mr HATTON (7:23 PM) —I am happy to speak on the Migration Legislation Amendment Bill (No. 1) 2002. It is an omnibus bill that gathers together a range of measures in the migration area, none of which is deemed to be controversial. It has been indicated that these are necessary tidying up pieces of this legislation jigsaw, covering various parts of the Migration Act. I will deal with these measures seriatim—one at a time. The very first provision this bill deals with provides that non-citizen children born in Australia are immigration cleared for the purposes of their birth entry. This and all the other matters we are dealing with here relate to questions of clarification. The purpose of the bill is to make as clear as possible the intent of the original act, and its associated parts, for people who find themselves in particular situations or who are attempting to challenge decisions taken by the minister or his delegates. The bill also provides general information for the community at large. But the underlying and most important purpose of the bill is to ensure the integrity of our migration legislation, and that is often the most difficult part to ensure.

I have had experience in dealing with migration matters over many years—some 17 years all up, of which 11¼ years were spent running the former member's electoral office in Blaxland, which I then took over. I have a reasonable amount of knowledge of immigration matters and of what Labor did in government, particularly the 1990 act and the 1992 act which toughened up the approach to immigration policy and also added an enormous layer of complexity. I will come to that a bit later and particularly to the PAMS introduced by former Minister Hand, which were the immigration department equivalent of the GST act in terms of just how high they might rise on a table.

In trying to ascertain certainty with regard to decisions taken by officers of the immigration department, everything had to be spelt out. When spelling everything out and in attempting to be as clear as crystal, everyone knows that that presents two significant problems. One is legalese or bureaucratese. The second is that, if you are trying to write it in plain, simple, straightforward English—like they were attempting to rewrite the NRMA rules or parts of the parallel importation bill, I think it was, the other day—it is very difficult to do, particularly when you are dealing with legal matters. This bill encompasses a range of particular legal matters with the attempt to clarify them. One of those goes to the question back in 1992 that Mr Hand was trying to deal with—to provide codification of the departmental processes of decision making. There has already been a related bill put to the House. It dealt in detail with those questions and it was directly related to procedural fairness and how you ensure that. I aim to come back to that in later comments.

There are challenges almost every day to decisions that have been taken by officers of the department. The challenges go to the point of what was meant in the original legislation. This government, like our government when it was dealing with these matters, has had to bring bills like this before the House to clarify such situations. I will give you an example of this. Whatever a person's status once they are in Australia—whether they are here on a tourist visa, a student visa or any other legal visa—if they give birth to a child in Australia then the question of the status of that child generally has been taken, in the past, and certainly in our legislation, to be one of equivalence to the status of the mother. We thought that was pretty clear. Given the length of time that people who are here unlawfully can be detained, there have been cases where people have had children in detention. This bill tries to fix the question of the legal situation for that child.

There has been an argument put, contrary to the department's expectation in terms of this, that the child's legal status should be different to that of the parent. Of course, going back a number of years, the classic case related to this was that of Nancy Presad. Her situation was that she had been born to parents who were not Australian citizens and the question was whether simply being born in Australia allowed her to achieve Australian citizenship. We know that that can be the situation in the United States, but in this case our courts held that it was not so. This bill clearly makes it known that, if a parent is immigration cleared and lawfully here, the child will be immigration cleared and lawfully here. Equally, if the person is held not to be immigration cleared, such as an asylum seeker in detention, this amendment provides that the child is not immigration cleared and that the child's immigration status will then be dealt with in the substantive visa application process. So there is an absolute equivalence between the status of the child and status of the parent: whether the status is lawful or unlawful, the child takes on the same status as the parent.

It is at this point that Labor's amendment to this bill becomes relevant. Whether a child has just been born in Australia to an unlawful non-citizen—that is, an asylum seeker in detention—or whether an older child accompanied that person to Australia, Labor's says that the regime needs to change. We need to take into account the situation of mothers and children. We need to have a very fast processing regime, and we have proposed a series of changes to achieve that end. But there is an equivalence in that mothers and children should be treated in a different way. This bill declares absolutely the status of a child born to a mother in detention. Given that clarification, which we support, the question that our amendment goes to is: how and where that mother and child should then be kept in detention. The shadow minister has outlined the case. We believe:

We note that there is a series of members on the other side of the House who have indicated some support for that approach, quite clearly because the department has been operating this on a trial basis since August 2001. The reports from the department are that this has worked pretty well and that there should be no fear on the part of the minister or others in taking this kind of step. The very first part of our consideration is that unaccompanied minors—those who are not with their parents or guardians—should be placed as soon as possible in a situation outside the detention centres, but that where the children are accompanied they should be reunited with their parents as soon as possible in a situation like Woomera. The department has run with that.

I will pass over and come back to the second matter that is dealt with here, which is that of special purpose visas. That relates to the 1992 situation: what Mr Hand was trying to achieve and the question of procedural fairness. There is a direct relationship there. I want to go to another element of this bill, which relates to the Criminal Code and strict liability for people-smuggling offences. In a way, I am a bit bemused about this. We have just heard from the Deputy Speaker that the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Bill 2002 has been passed by the Senate. I know the bill went through the Main Committee the other day, because I made a speech on it. I noted in that speech that the very provisions that are in this omnibus bill also happen to be in that bill. However, there were more provisions in the latter bill. I know that since the bill has been through the House and the Senate I cannot add to any argument about it except to say that both bills have some of the same provisions. If a person is taken to be assisting someone to unlawfully enter Australia, they can face 10 years jail and a $110,00 fine. The bill that has just gone through, the Crimes Legislation Amendment (People Smuggling, Firearms Trafficking and Other Measures) Bill 2002, has a further provision to double that amount to 20 years imprisonment and a $220,000 fine.

This is a matter of tidying up unintended consequences or the fact that there are questions about what strict and absolute liability are. The problem here is that, when the Migration Legislation Amendment (Application of the Criminal Code) Act 2001 came into effect, there was a question about whether a person committing the act was mindful of the consequences of what they were doing, and, if they were not, whether or not that could be taken as a defence under the act. The bill that we are discussing today tries to reinforce what liability is and add clarity to that. It is a difficult concept to get around but it is an important one in dealing with not only those who have been smuggled but those who smuggle. If they are bringing people into Australia, it is important that the severity of the law is exercised as strictly as possible. So there is a conjunction of the two pieces of legislation in relation to that.

There is a further conjunction when we deal with older legislation which informs one of the other changes that this bill proposes, and I will go to that now. It is the matter of special purpose visas. This is an excellent example of particular situations where people who one would not think were in particular difficulty might seek to be treated in a different way from what would be expected in immigration law. Who are the people who get special purpose visas? They are aircraft crews, crews of visiting vessels and members of foreign armed forces visiting for exercises or training. There have been cases in the past where people have jumped ship and sought to stay in Australia. My aunty, Gwen Charisiadis, was married to Gerasimos Charisiadis, who jumped ship in the late 1940s. He was a ship's engineer and a great cook. He jumped ship, and, given that it was the forties, there was not much of a penalty, even though he had a Mediterranean background. It was probably the quality of Gerry's cooking that got him a guernsey in the first place. He was allowed to stay in Australia. He worked on Australian National Line ships, going from one port in Australia to another. After a long and successful career as a ship's engineer, he moved on to work on the fireboats on Sydney Harbour. Under this provision, my uncle Gerry would not have got a guernsey; he would not have been able to stay in Australia. On this matter—ex post facto, because it certainly will not affect my uncle—it is necessary to consider that, where people are given a special permit to do their work, it is possible for them to take advantage of our largesse.

Here we get to the question of procedural fairness and the question of natural justice. The shadow minister at the table, the member for Lalor, is a lawyer of distinction and someone who has put together a very strong policy for the Labor Party to take us forward in this regard. But we know what the lawyers in the immigration area get up to—I have suffered them for 17 years. I know that there is pedantic nitpicking to pull out every thread from the immigration law to try and get a further step forward. The argument that has been put up is that, if a person is in one of these categories and they happen to decide to apply to stay in Australia, you should extend to them natural justice. They should be able to put in an application, put their hand up and have a chance to stay in Australia.

Gerry Hand not only had a great sense of humour but was also a pretty tough old immigration minister, and anyone who had to deal with him was aware of that. The law that he brought into operation in 1992 attempted to codify once and for all Labor's immigration law, to get a tough set of codified laws that was as specific as possible. The immigration regulations arising out of that were about six feet long. They attempted to give clarity and certainty to immigration law. Labor entirely supports the provision within this bill, quite simply because this bill makes clear that the rules of natural justice do not apply to such a visa cancellation. The person involved simply has no right to be heard. Why is that a sensible clarification? The shadow minister has made this point in her brief, and it could not be any clearer. This sums up our approach to a tough immigration policy that should be there to protect our borders and to protect our people. I quote:

There are certain hearing rights to non-citizens in other circumstances, particularly offshore refugees, but for these categories we believe there should not be a question of whether natural justice should operate. Rather, the bill clarifies that and states it absolutely. The reason it does so is that, in the procedural fairness bill, the explanation given by the minister and by the department went to considerable lengths to underline the fact that the certainty that should have been there with regard to what procedural fairness was in immigration matters had been gradually eroded.

In fact, if you run back 50 years, the fundamental principles in relation to procedural fairness were laid down by Justice Dixon, our greatest High Court judge, the most influential person when it came to making fundamental law in a range of areas and the person who set this doctrine in place. It is arguable on a range of grounds that he may have been wrong. I personally do not think so; I think he actually got it pretty right. People who are arguing the toss from one angle or another are doing so in order to push the bounds of credibility and to push the bounds of immigration law as far as they go. The reinforcement of this ruling in this bill is all to the good.

A range of matters are dealt with in this bill. The last one I will go to in the short amount of time I have left is the question of restrictions on bridging visas for onshore applications for visas. Section 48 of the act deals with this. I am a bit concerned about the way it will practically operate. They say that, essentially, you have to be careful that people on bridging visas do not have a range of reasons to try to stay in Australia. I agree with that absolutely. What this bill goes on to try to ensure is that you cannot, if you want to make a change, nick off to Auckland or go on a bit of a trip to Port Moresby or to Fiji and then come back into Australia. What this says is: if you go to Auckland, Port Moresby or Fiji—and we know there is a bit of a precedent for this—it will be taken to be part of Australia's migration zone. The problem with that is that we have had case after case of spouse applicants where the department has had to arrange for them to nick off to Auckland, New Guinea, Port Moresby, Fiji or somewhere else rather than send them back to Sverdlovsk or Denmark and then have them come back into Australia given the fact that they are legally married. With that in train, I would support the bill and support our amendment. (Time expired)

Debate (on motion by Ms King) adjourned.