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Monday, 22 September 1997
Page: 6598

Senator ELLISON (Minister for Customs and Consumer Affairs and Minister Assisting the Attorney-General) —I table revised explanatory memoranda relating to both bills and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard

Leave granted.

The speeches read as follows—


This bill contains four amendments to the Native Title Act 1993 in relation to the National Native Title Tribunal. The first two amendments concern the qualifications for appointment of the Registrar and presidential members of the Tribunal, the third amendment provides for the temporary appointment of the Registrar by the President of the Tribunal and the fourth amendment provides further clarification of when a member of the Tribunal is considered to have a conflict of interest in relation to an application or inquiry before the Tribunal.

The bill will not have any significant financial impact.

The functions and roles of presidential members and the Registrar will change as part of changes to the role of the Tribunal necessitated by the High Court's Brandy decision. These changes are included in the Native Title Amendment Bill 1997. Under the changes all applications for compensation and native title determinations will be made to the Federal Court and the Court will have sole responsibility for making determinations of native title. The changes mean the main role of the Tribunal will be in the area of mediation of native title claims.

The first amendment removes the requirement that the Registrar be admitted to legal practice for 5 years and replaces it with a requirement that a person may not be appointed as Registrar unless the person is legally qualified and has had substantial experience in relation to:

Aboriginal or Torres Strait Islander societies; or

the law; or

administration; or

any other activities considered relevant to duties of the Registrar.

As the Registrar will no longer have any role in deciding whether or not applications should be accepted, it is appropriate that the qualifications for appointment be changed. This amendment will allow a more diverse field of suitably qualified candidates to be considered for the position of Registrar of the Tribunal.

The second amendment concerns presidential members of the Tribunal. Currently, a presidential member has to be a judge of the Federal Court or a former judge of the High Court, Federal Court, Family Court or State or Territory Supreme Court in order to be eligible for appointment. The amendment adds a further class of persons who may be appointed as a presidential member of the Tribunal—namely, persons who have been admitted to legal practice for at least five years. Again, this amendment ensures that a more diverse field of highly qualified people may be considered for appointment as presidential members.

The third amendment provides that the President of the Tribunal may appoint an acting Registrar. This will ensure that the Tribunal can quickly and efficiently deal with any temporary vacancy in the position of Registrar.

The last amendment provides further clarification on when a member of the Tribunal is considered to have a conflict of interest in relation to a particular application before the Tribunal.

This amendment relates to majority recommendation 9 of the Parliamentary Joint Committee on Native Title and the Aboriginal and Torres Strait Islander Land Fund in its report on the Native Title Amendment Bill 1996. That recommendation considered the possibility of a conflict of interest where members of the Tribunal may be conducting consultancies in native title matters.

This provision addresses the concerns of the community that members of the Tribunal are impartial, and are seen to be impartial, but is flexible enough to allow people experienced in native title matters to continue to be appointed to the NNTT.

I commend the bill.


This bill implements a number of the Government's important policy initiatives within the Immigration and Multicultural Affairs portfolio, particularly in relation to merits review.

The measures contained within the bill are consistent with the Government's commitments to improve the immigration decision-making system and continue the process of restoring community credibility in the management of immigration matters.

On 20 March this year, the Minister for Immigration and Multicultural Affairs announced a range of significant changes the Government would make to refugee and immigration decision-making and review systems. These changes will improve the efficiency, credibility and accountability of immigration decision-making.

One major change is the streamlining of the current two tier review process of non-refugee visa decisions into a single review by an independent review agency. The bill gives effect to this by merging existing internal review undertaken by the Migration Internal Review Office of the Department Immigration and Multicultural Affairs with the external merits review carried out by the Immigration Review Tribunal.

Under the changes introduced by this bill, the single tier review will be conducted by a new external review body, the Migration Review Tribunal. Review of non-refugee decisions by the Migration Review Tribunal will commence on 1 July 1998.

The Migration Review Tribunal will be required to conduct fair, impartial and expeditious review of migration decisions, at lower cost to the Australian taxpayer. This will be achieved through the introduction of more streamlined and flexible review decision-making processes.

The Tribunal's Principal Member will have clear authority to apply efficient processing practices. This may include the introduction of a case management system where much of the preliminary research and investigative work would be undertaken by administrative staff of the Tribunal. Tribunal members would be responsible for directing that any further investigation be undertaken, and for the final decision.

Migration Review Tribunal members will be independent decision-makers, able to reach their own conclusions on a decision under review, in accordance with the law. However, this independence does not amount to non-accountability.

Members will be accountable, on matters of procedure, to the Parliament through the Principal Member for ensuring that they conduct reviews, fairly and expeditiously. The bill will give the Migration Review Tribunal's Principal Member power to make directions on the efficient conduct of reviews. These directions only relate to review procedures. The Principal Member can not make directions on policy issues related to the merits of a case.

For the purposes of ensuring efficient conduct of reviews, the Principal Member will be able to reconstitute the Tribunal provided specific preconditions are satisfied. Reconstitution may only occur where, following consultation with the member constituting the Tribunal and a Senior Member of the Tribunal, either:

the Principal Member is satisfied that there is insufficient material before the Tribunal for it to decide the review; or

the prescribed time has elapsed since the case was constituted to that member.

These preconditions emphasise that reconstitution is solely for ensuring efficient and timely reviews and safeguard against misuse of the power.

These changes will set the framework for significant reductions in both the time and costs of review of general migration visa decisions. However, I should stress that the bill will not alter the entitlements of persons to seek review of decisions by the Department refusing or cancelling visas. Those persons who are currently able to seek review of particular decisions by the Migration Internal Review Office or the Immigration Review Tribunal will be able to seek independent review of those decisions by the Migration Review Tribunal.

The Principal Member of the Refugee Review Tribunal will be provided with the same authority to apply efficient processing practices as those of the Principal Member of the Migration Review Tribunal. This includes clear authority to give directions on the operation of the Refugee Review Tribunal and the efficient conduct of reviews.

The provisions allowing the Minister to appoint persons to act in a senior office of the Refugee Review Tribunal for periods of up to 12 months will be brought into line with the equivalent provision which currently exists for the Immigration Review Tribunal and that proposed for the Migration Review Tribunal. This will allow the Minister to appoint members to act as Senior members.

The bill also includes certain safeguards for applicants by introducing a code of procedure for both the Migration Review Tribunal and the Refugee Review Tribunal which is similar to that already applying to decisions made by the Department. This code includes such matters as the giving of a prescribed notice of the timing for a hearing, and a requirement that applicants be given access, and time to comment, on adverse material relevant to them.

In addition, the bill contains a number of measures to allow for more flexible processes in both Tribunals. These include:

enabling the Tribunals to use telephone or other media to conduct personal hearings or to require other witnesses to appear before them; and

allowing Tribunals to proceed to a decision without delay, if an applicant does not respond to a notice to attend a hearing or provide comment.

Taken together, these changes mean that people with bona fide review applications will be given a decision more quickly and a better decision if the initial decision is wrong. Those persons intent on fraud, deception or delay will not have the benefits of a delayed decision.

These changes are consistent with foreshadowed Government moves to introduce further reform of merits review tribunals across all portfolios by consolidating all tribunals into one, new Tribunal.

The bill includes a number of other changes. These relate to measures to enhance the visa cancellation powers, including:

the power to ensure that there is more effective cancellation of visas which were granted on the basis of incorrect information, for example, where a previous visa was granted on the basis of incorrect information; and

the tightening of certain notice provisions which are integral to the visa cancellation process.

One further measure which is consistent with other proposals in this bill to improve flexibility in migration processes, is the introduction of a waiver of the condition which is placed on certain visas to prevent the visa holder from being granted a further visa.

In relation to citizenship, legislative changes to implement strengthened deprivation provisions came into effect earlier this year. However, these changes meant that the penalty provisions in the Australian Citizenship Act 1948 were not in line with general Commonwealth policy. The proposed amendments rectify this anomaly.

Finally, I would like to emphasize the fact that this bill is part of a continuing process adopted by this Government to ensure that the integrity of the migration program is not undermined as well as the strengthening of those controls over who can be granted, or continue to hold, Australian visas. This Government will be introducing further legislation in this area later this year.

I commend the bill to the Senate.

Debate (on motion by Senator Chris Evans) adjourned.

Ordered that these bills be listed on the Notice Paper as separate orders of the day.