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Wednesday, 2 December 1998
Page: 1124


Mr SCIACCA (12:29 PM) —First of all, I indicate to the House that the opposition will be supporting the Migration Legislation Amendment Bill (No. 1) 1998 . We have come to that conclusion, firstly, because the Minister for Immigration and Multicultural Affairs has been kind enough, and perhaps one should also say astute enough, to bring it before the House in the form that he has. These bills were part of a single bill. Originally, I understand, in the last parliament the minister did bring forward a bill which included an attempt, by the provision of a privative clause, to limit judicial review.

But after a number of discussions with my predecessors in my position he did agree—we thank him for that—to bring this bill together, which in effect simply tries to streamline the merit review process. It is pretty obvious from some of the words used by the minister over recent months, and even by the Prime Minister in a recent address to the FECCA conference in Brisbane, that the government wants to restrict the rights of appeal and review in this immigration area.


Mr Ruddock —Unashamedly.


Mr SCIACCA —I say to him that we are, on the opposition side—


Mr Ruddock —We would like cooperation.


Mr SCIACCA —Yes, and you have got cooperation. You will continue to get cooperation provided that it is fair and provided that we still give everybody a fair go—which Australians are all about—where we do not deny people's human rights, and we give them the opportunity of having their day in court if they deserve it.

Mr Ruddock interjecting


Mr SCIACCA —Perhaps the minister would let me finish. I didn't interject on the minister while he was speaking. I ask him to give me the courtesy of doing the same thing—although we have been sparring partners here for many years and I know he can't resist. The minister and the government will get constructive cooperation from the opposition on matters that relate to keeping intact the integrity of our migration program. However, I make it very clear to the minister that we will not allow him, as I have said before in the chamber today, to throw out the baby with the bathwater. We still need to keep people's human rights in our minds when we are looking at these sorts of things.

I am a lawyer by occupation. I know the minister is as well. Sometimes it surprises me when I see the minister getting into them as much as he does. In some cases he has just cause. I had the opportunity over the last term of this parliament to go out and practise law again. Perhaps he should do that as well; he might get a different view on life. We cannot, if you like, undermine the integrity of our judiciary system or of our practice where we allow everybody in this country their day in court. It does concern me from time to time when I hear the minister—unashamedly, as he says himself—being very critical of some judgments that come down. He seems to think that, whatever the intention of the government of the day is in the area of the migration program, that should supersede, as he puts it, the `personal opinion' of some judges.

A lot of people in this country do not like decisions that come down from courts. The fundamental basis of our system of fair play and justice in this country is that we have a judicial system and a quasi-judicial system. You get decisions made. Some decisions you are happy with, some you aren't. But in the end it is the best possible system that we have. With all due respect to the minister, I find it very difficult, particularly as he is a trained lawyer, that he can be critical of judges and tribunals, and indeed courts, when he knows full well that that is a system that we are supposed, as members of the noble profession of the law, to uphold. For the time being he happens to be the minister in charge of the department, but these things are passing and he will still be a lawyer when we finish here. We need to uphold the integrity of the courts, of the judicial system.

I bring one item to the attention of the minister which I am sure he knows all about, an article which I saw in the Australian newspaper by Fiona Carruthers and Bernard Lane, and which I think spells out succinctly exactly what the minister is about. He hasn't denied it. He is quite prepared to go on record on it. I want to read it into the Hansard. The Australian on Monday, 30 November said:

Judges have been attacked by Immigration Minister Philip Ruddock for allowing their personal views to interfere with legal decisions on migration matters.

As the Howard Government prepares to reintroduce a Bill limiting the ability of asylum seekers to appeal to the courts against deportation, Mr Ruddock criticised some judges for extending the natural meaning of some aspects of the migration Act.

"Some judges make decisions where their own view of the world is the premier factor, rather than the law," he said.

"We should not have a system which produces such adverse outcomes."

Mr Ruddock's attack came as former High Court Chief Justice Gerard Brennan urged the government not to limit the Federal Court's right to review administrative decisions. It went on to say:

More than 750 appeals on migration matters are before the court.

Mr Ruddock said the High Court had given "some helpful guidance" on migration matters.


Mr Ruddock —It has.


Mr SCIACCA —Yes. That is why I am reading it out. It went on:

However, in the bigger courts "it's not hard to find one or two (judges) with a particular view of the world that is different to everybody else's".

Of course there are going to be judges who will have different views from those of the minister. What is the point of having a judicial system? What is the point of having judges who decide cases on the merits, on the basis of the people who go before—

Mr Ruddock interjecting


Mr SCIACCA —Yes. They have to take into consideration the law.

Mr Ruddock interjecting


Mr SCIACCA —I might let the minister finish. The courts are there for a reason. The judges hear the circumstances of a person's particular case. They have the opportunity of listening to the arguments that come before them and in the end they will come to a decision. You cannot bag the courts or the tribunal simply because a decision comes out which is not what the minister would like. The minister does have a fair gripe for some of the goings-on out there in the community, particularly amongst some advocates.

Let me place on record that I am in full agreement with the minister about those people. I put this on record now so that they will read the Hansard and they will understand the position the opposition is coming from. I do not under any circumstances condone what in the legal profession in personal injury matters we know as `ambulance chasing'. I do not under any circumstances, and neither does the opposition, condone a situation where some advocates out there, for the purposes of lining their own pockets, are prepared to advertise, as I heard the minister say this morning, in the Bangladesh newspaper or in the Fijian Times, and all the rest of it saying, `Put in $500 and we will get a class action going which will delay everyone's appeal and you are going to be able to stay longer.' I make it very clear to this parliament that the opposition does not condone that. I am more than happy to work constructively with the minister at any time to see if we can come up with ways and means of stopping that practice.

Mr Ruddock interjecting


Mr SCIACCA —No, you are the government. If I can come up with some ideas, I will. If that is what is in the overriding mind of the minister—and I understand it is—I simply say to him: you are not going to stop that sort of thing simply by cutting into people's rights and cutting into the justice system as we know it simply because they are people who have migrated from another country, whether they are illegals or not. The reality is that you cannot throw the baby out with the bathwater. I say that yet again.

I believe the motives of the minister are quite noble. I have no qualms about that. Maybe some of the advice that he is receiving is a little bit harder than what he—I would think—would usually countenance. In the end you cannot use a sledgehammer to kill an ant. If you want to do something about this and if you want to come up with some constructive stuff, we will cooperate. We have already agreed this morning to the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 . We agreed to that bill and we are agreeing to this bill as well.

I am making it very clear to the minister today—and this is the first opportunity I have had to speak in the main chamber here—that the opposition will be constructive and that the opposition are not about knocking the integrity of the migration system, but we will not allow the government to simply fix up all their problems by just getting rid of tiers of judicial review. We are not going to allow that. I put on notice today that the opposition will be definitely opposing the other bill which the minister and the Prime Minister have made clear they will be introducing where they will be bringing in a privative clause that in effect attempts to exclude judicial review.

I believe that in this country, like in every other Western country in the world, the system of justice may not be perfect, but we have to give people a fair go. I would hate to think—and I am sure it is not the case—that some of the reasoning behind all of this is to save some money. I know some of my colleagues in the Senate made this point, but I do not want to go through those arguments. I know that at the moment this government is all about saving the almighty dollar. I say money is not everything; I say human compassion, a sense of justice and a sense of fairness are everything. It does not matter whether somebody comes here from Bangladesh, Turkey or wherever, whether they are boat people or not, they are human beings who deserve their day in court. By restricting that opportunity, we are denying them a fundamental human right.

I was particularly interested to see in an article from Fiona Carruthers and Bernard Lane the comments of former Chief Justice Gerard Brennan of the High Court, an eminent judge who I think everybody respected. He urged the government not to limit the Federal Court's right to review administrative decisions. The reality is that that is what the government proposes to do with its other bill.

Mr Ruddock interjecting


Mr SCIACCA —But that is the point. The minister said his eminence does not understand what he is doing there in this issue. That might be the case, but what sort of a justice system have we got in this country? I have been a lawyer now for 28 years and a clerk for five years—that is 33 years. I have lost cases that I should have clearly won and I have won cases that I should have clearly lost. That is the system that we work under. Everybody is going to have an opinion on a decision of a particular judge at some point in time. It is just crazy to say, `Because he doesn't agree with what I say, because he doesn't agree with the policy of this government or because he doesn't really understand the legislation, he is wrong.' He may be wrong and he may not be wrong, but in the end we have to accept those decisions. To just simply take away their power to make those decisions is, in my view, not correct.

On balance, we will let this bill through because they are good measures. There is no doubt about that. They were negotiated by my predecessor with the minister, and the minister is usually very cooperative on these things. I wanted to take this opportunity to make sure that the minister understands where we are coming from. This is the second bill that has come before the parliament where we have had total agreement. I thank him for agreeing to the amendments that he has now incorporated into the bill, which were discussed and negotiated with him. I thank him for that.

I will finalise my comments now because I know there will be other colleagues of mine who will want to look at the more technical aspects of this bill, and I am happy to leave that to them. I want to again confirm that, Minister, you will have my cooperation and that of the opposition in matters that I and the opposition deem to be fair and are not cutting across people's basic human rights—their day in court, et cetera. We will not countenance measures which are unfair. We will not countenance attempts by the government to curtail the powers of the tribunals.

Frankly, I think it is wrong of the minister to be making public statements attacking the judiciary. I think it is wrong of him to be sending out the signals to people that, `If you don't do what it is the government really wants you to do, you may not even be appointed.' I am not saying that is what he is doing, but the messages can go out that way. He has got an opportunity now to appoint a stack of people when the new Migration Review Tribunal comes up. I am sure he will put good people on that. But he has to remember that they are supposedly independent.

The minister would not have a chance of doing anything if he were to go and listen to every case that goes before a tribunal in his portfolio. The fact is that those people who are there are listening to the cases as they are presented, they are listening to the facts and circumstances, and they are listening to real life stories. All the minister can get is some sort of an idea by way of a report on what happened. In the end a decision which he may think is wrong may in fact have been the right decision.

What happened to that old adage, that old saying, in the system of criminal justice in this country that better that 10 guilty men go free than one innocent person be sent to gaol? That has been a cornerstone of our judicial systems—in the criminal area anyway—since the year dot. In the end, if it is only a small number of cases that are upheld in the Federal Court, then at least some people who obviously had genuine grounds for appeal have been given some justice.

Mr Ruddock interjecting


Mr SCIACCA —Minister, I will say to you again: as far as we are concerned, the opposition will always listen to you if you really are fair dinkum about trying to streamline the appeals process. We will listen to that all the time, we will go ahead, and we will agree with you on matters that will save money. But again I make it very clear in conclusion that we will not support any further restrictions, as you intend to do with that privative clause in the judicial review bill. I give you notice now that we will be opposing that very strongly. But the opposition supports this bill.