Senator McKIERNAN (4:21 PM) —I present the report of the Joint Standing Committee on Migration entitled `Review of Migration Regulation 4.31B', together with submissions, Hansard record and minutes of proceedings. I seek leave to move a motion in relation to the report.

Leave granted.

Senator McKIERNAN —I move:

That the Senate take note of the report.

I wish to put on the record the committee's acknowledgment of the very fine work done by the secretariat staff of the committee. They were, for the record, Margaret Swieringa, Gim Del Villar, Penne Humphries, Rohan Tyler and Margaret Atkin.

The regulation 4.31B was introduced on 1 July 1997 as part of a package of measures to combat abuse in Australia's refugee determination system. Other measures included streamlining processing of primary applications and limiting work rights to applicants who applied within 45 days of entering Australia.

The aim of the package was to deter people who knew they were not refugees but were using the refugee appeal process to prolong their stay here, often for the purposes of obtaining income from employment in Australia. The purpose of regulation 4.31B was, in conjunction with other measures, to deter non-genuine applicants from appealing to the Refugee Review Tribunal after their primary application had been unsuccessful. The regulation imposed a $1,000 fee on applicants whose appeals to the RRT failed. Successful applicants to the RRT were not required to pay the fee of $1,000 and neither were unsuccessful applicants to the RRT who were subsequently granted protection visas on the basis of ministerial discretion. It was not suggested then that regulation 4.31B was a revenue raising measure, nor was it suggested at the time that the revenue raised by the fee was to be used to offset departmental costs in other areas of the portfolio.

The regulation was controversial, and the then shadow minister for immigration, Duncan Kerr, agreed to the package on condition that a number of its provisions be changed. Those changes are already on the public record. One of the conditions imposed which the government agreed to was that the regulation be subject to a sunset clause and that a review of its operations and effect be conducted by the Joint Standing Committee on Migration. This report is the result of that review.

I participated in all of the committee's public hearings, and I have read and studied all of the submissions. From this process I have formed my own conclusions on the regulation. My conclusions differ from those of my Labor colleagues on the committee, and I have provided a direct, succinct additional comment at page 45 of the report which elucidates further on the reasons I formed the views that I did. In formulating my conclusions I relied upon the evidence that was presented to the committee—evidence which, I might add, was tested with the witnesses who provided the evidence to the committee. The evidence was tested, sometimes quite vigorously, and cannot therefore be dismissed.

Many of the witnesses—who came with impeccable credentials—agreed that, even now, with the conditions that were put in place two years ago, the internal onshore refugee application system continues to be abused. I have noted in my additional comments some comments from the Refugee Council of Australia—the peak refugee organisation in this country. I have also itemised comments on the matter made by the Secretary-General of the Australian Section of the International Commission for Jurists, Mr David Bitel, and I have drawn attention to the comments of Ms Grace Gardner from the Adelaide Justice Coalition and a number of others.

I particularly want to draw attention to the words of Ms Caroline Graydon from the Refugee and Immigration Legal Centre. I will quote what she said. I know it is a duplication, but it is well worth duplicating. Ms Graydon told the committee at the Melbourne hearings:

From my own personal knowledge, I am not aware of any cases where I thought a person had very strong prospects of success but had been deterred by applying due to the $1000 penalty fee. Some people are driven by such strong subjective fear that I do consider it to be unlikely that someone who faces persecution, or has a well-founded fear of persecution, in their home country would be deterred.

On every possible opportunity I asked the witnesses to provide evidence of people who had been deterred from making an application because of this post-decision fee. Nobody was forthcoming. I put it to the Senate—as I put it to the committee when we were deliberating on the report—that, if anybody would know about a deterrent, people such as Caroline Graydon, the Refugee Council of Australia and Mr David Bitel certainly would have known, and I am sure they would have put it on the public record when they had the opportunity to do so at the committee hearings.

We were given some case studies of people who allegedly were suffering because of the fee, and I have noted those case studies in my 3½ pages of additional comment. They are on the public record for anybody to examine. In a sense, I think those case studies actually help the argument for the minister's case that the fee should be retained.

Notwithstanding what I have said, I agree with the majority of the committee and their report that it is probably too early to judge the effectiveness of the measure. Effectively, the measure has been in existence for only 18 months. I know it is now almost a two-year period, but at the time we were examining it and taking evidence it had been in operation for about 18 months to 21 months. Many witnesses to the hearings agreed that it was a very short time frame and that many of the applications that had been before the RRT and were being adjudicated on actually had been in the system prior to the fee coming into operation.

I have agreed with my colleagues that the sunset clause should be extended for a further three years and that, prior to the expiration of that sunset clause, it should be subjected to a more thorough assessment of its effectiveness. Let me at this stage inject a note of caution and a warning. I mentioned earlier that regulation 4.31B was not a revenue raising measure, nor was it an offsetting cost initiative. I now await specific clarification from the Minister for Immigration and Multicultural Affairs on this matter. This clarification is necessary as a result of a sentence in his press statement MPS/99 dated 11 May 1999 where he said:

If the fee was continued it would provide a partial cost recovery and help offset the cost of a limited extension of the Asylum Seeker Assistance Scheme.

I have been advised through the office of the shadow minister, Mr Con Sciacca, that a letter will be forthcoming from the minister that gives the assurance that there is absolutely no policy link between the fee and the Asylum Seeker Assistance Scheme.

I hope that that letter will be forthcoming and I hope the clarification will be forthcoming. If it is not, I state clearly here that I will be arguing in my party room that we support any disallowance motion, if such a disallowance motion is moved, in the event of the minister seeking to continue the fee. There should be no link between this fee and the Asylum Seeker Assistance Scheme. There never has been and, if there is going to be that linkage now, I for one will not be standing here in this chamber or in my party room supporting such a proposition. It was never the case in the past and it should not be the case now. I certainly await the minister's written reply. I have been assured that that is forthcoming. It would have been easier had we been able to be given that assurance during the Senate estimates committee processes a couple of weeks ago, but I do understand that the public servants could not publicly stand up and contradict their minister. The ball on this matter is clearly in the minister's court, and I have put on the record how I will be arguing if that letter and that assurance are not forthcoming. I commend the report to the chamber.