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Wednesday, 23 March 1994
Page: 2115


Senator SHORT (6.25 p.m.) —The Migration Legislation Amendment Bill 1994 makes changes to the Migration Act 1958 which itself had a major overhaul in December 1992 through the Migration Reform Act. The bill deals mainly with consequential and technical matters arising from the commencement, now scheduled for 1 September 1994, of the majority of the provisions of that Migration Reform Act 1992. It also provides for consequential and technical amendments to the Migration Reform Act and to other Commonwealth legislation, including, in particular, the Australian Citizenship Act. As I said, these are consequential amendments rather than amendments of substance to that other legislation.

  The provisions of this bill which affect the Migration Act are several fold. Firstly, there is the creation of three new classes of visa to cover people legally in Australia but not eligible for a visa as proposed by the Migration Reform Act. In the three new classes there will be special purpose visas for non-citizens who have a prescribed status—for example, foreign armed services personnel in Australia on exercises. These visas will also be used to cater for unanticipated situations which require an immediate humanitarian response by Australia—for example, admitting an otherwise ineligible person to attend a funeral.

  The second new class of visa is the absorbed persons visa, which is in recognition that an immigrant does not always remain so and at some time becomes `absorbed' into the Australian community. Such people will be deemed to be holding an absorbed person's permanent entry visa, making them legal non-citizens.

  The third new class of visa called ex-citizens' visas arises out of the requirement for all non-citizens to have a visa to legally remain in Australia. These visas apply when a citizen renounces citizenship or loses it through other means. Without the ex-citizens' visas they would, under the present legislation, become illegal non-citizens.

  The second main provision of the bill which affects the Migration Act is to remove the dichotomy between approval and grant so that there is one decision-making process leading to the granting of a visa. The third provision is that protection visas may be granted as permanent visas. That reflects the decision of the government on 1 November last that persons recognised by Australia as refugees under the refugee convention would be granted permanent rather than temporary residence, which was the policy when the Migration Reform Act was enacted.

  The bill also makes some amendments to those sections of the Migration Reform Act which do not amend the Migration Act. They are mainly technical amendments. However, the regulation making power in section 40 of the reform act has been amended to deal with some additional matters, and a new section 41 has been inserted to provide for transitional arrangements in relation to non-citizens who are illegal entrants because of section 20, which is to be repealed.

  As I mentioned earlier, the bill also makes consequential technical amendments to a number of other Commonwealth acts, primarily to reflect change to terminology introduced through the Migration Reform Act 1992.

  The amendments, as I say, are basically of a technical nature. For that reason the opposition will not oppose the bill and its contents. But there are some important comments and criticism that I want to make which relate to the fact that the bill is before us at all. I say to those who have listened to my explanation of the main provisions of the bill that they may, like me, find them very difficult to follow. They contain phrases like `ex-citizens visas', `absorbed persons visas' and the like. They are phrases in regard to which the average Australian would say, `What is all of this about?'.

  Whilst not opposing these provisions, as I say, they all stem essentially from a pattern that we have had over the last four or five years of increasingly subjecting migration policy and immigration to, in my view, a more and more legalistic framework. That has happened since the major redrafting of immigration policy in 1989 or so. The amount of legislation that we seem to require for the purpose of the administration and operation of our migration policy is a matter for concern and is something we ought to look at in the not too distant future.

  The whole question of the direction of migration policy with regard to its legislative requirements seems to pose some very important issues that we ought to look at in light of the experience we have now had over the last four or five years of an increasing trend towards such legislation. I refer not just to the acts of parliament themselves, but to all the paraphernalia of regulations and semi-legislative provisions that go with them.

  The main point I want to make is to express again the concern of the opposition that this bill was required at all. You will recall, Mr Acting Deputy President, that the Migration Reform Act which was passed in December 1992 introduced some quite fundamental changes to the Migration Act 1958. Because it contained quite fundamental changes, the government proposed and the opposition accepted that there should be something like a 10- or 11-month delay before the act took effect. So the Migration Reform Act which was passed in December 1992 had as its start-up date 1 November 1993, with the major exception of the establishment of the Refugee Review Tribunal which was scheduled to start, and did start, on 1 July 1993.

  In about September 1993 the government came back to the parliament and said, `We've put a bit of a toothcomb through the Migration Reform Act which we passed in December 1992. We reckon there are a lot of technical and perhaps some more serious flaws in this bill that we didn't detect. We can't give you now all the provisions and changes that we want, so we want to defer the implementation of the new provisions from 1 November 1993 until 1 September 1994. We'll draft all these technical and other changes that we think are needed and we'll introduce them into the parliament early in the autumn sittings in 1994 so that they can be passed, and then all the necessary administrative procedures, training of staff and so on will be put in place so that everything is up and running on 1 September 1994'.

  Despite the fact that the government said when it introduced the migration reform legislation in November 1992, which was passed in December 1992, that the provisions contained in the legislation were urgently needed—it listed a whole host of reasons to support that view—the simple fact is the provisions of the Migration Reform Act, with the exception of the commencement of the Refugee Review Tribunal, will not come into operation until 1 September 1994, that is, almost two years after the act was passed. It is very difficult for anyone to accept—certainly I find it impossible to accept—the proposition that an act which was said to be urgent at the end of 1992 should not actually be implemented until almost two years later. It does reflect, in my view, yet another example of the incompetence of this government in the administration of its policy.

  If the government produces legislation which then requires such substantial amendment that there is a delay of two years before the start-up date, something is very seriously wrong with the operation of the government, particularly its administration and its legislative drafting. Nothing has changed since December 1992 to suggest that the provisions of this legislation are in any way less urgent than they were said by the government to be then. Indeed, in some ways there is perhaps a more urgent need for this legislation. Yet the government has been forced, by virtue of its sloppiness and incompetence in the first instance, to delay so significantly the processes of fixing up the legislation and then going ahead with its implementation.

  Whilst, as I say, not seeking to oppose the provisions contained in this bill, which hopefully will lay to rest the Migration Reform Act 1992 and the other consequential legislative requirements without further change, on behalf of the coalition I very seriously condemn the government and the successive ministers involved—Mr Hand and subsequently Senator Bolkus—for what can only be described as incompetence in requiring this further amending bill and, in particular, for the delay that it has caused. These delays have some significant implications. They mean, for example, that the very generous—many people would say overly generous—judicial review rights contained in the earlier legislation will continue until 1 September this year. That means many people who would otherwise have had, in my view, entirely proper limitations placed on their access to judicial review, continue until September this year to have the existing extremely generous access. Also, it seems to me the government has failed in this period to take advantage of the delay to reassess the judicial review provisions under the Migration Reform Act.

  This parliament will need to keep a very close watch indeed on those judicial review provisions. I hope and expect that in the next year or so, following the commencement of the new more restrictive provisions, we will be looking to see that they have indeed operated effectively.

  I repeat that the coalition supports this bill, but criticises the very serious delays it has caused in the implementation of changes to the legislation and to the administration of the migration policy—changes which were rightly considered to be urgent almost 18 months ago. By the time we actually get into the implementation of the provisions, that period will be almost two years. One can only hope that we will see an end to this tendency towards absolute incompetence and sloppiness across the administration of portfolios—a trait on the part of this government that is costing Australia dearly in a whole variety of ways.

  I have a lot of respect for members of the Department of Immigration and Ethnic Affairs, but I believe that that department is in a considerable amount of turmoil and has been in that condition now for several years. The reasons are many and complex. On many occasions I have sought publicly to obtain the support of the Green senators and the Australian Democrats in this chamber for an inquiry into the operations and administration of the department. The longer the present situation goes on the more obvious it will become that such an inquiry will be beneficial.

  I hope in the period not too far ahead we will be able to get the support of the minor parties to consider that aspect. Senator Chamarette is here in the chamber and I hope to speak with her again on this point. It is a matter for another day, but it is an element that concerns me greatly, and I think that is reflected in my comments today.