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Tuesday, 7 October 2003
Page: 20704


Mr MURPHY (8:29 PM) —I rise to support the principle of the Migration Legislation Amendment (Migration Agents Integrity Measures) Bill 2003, which I will refer to as the integrity measures bill. This is a cognate debate on two bills—the integrity measures bill and the Migration Agents Registration Application Charge Amendment Bill 2003. I will only be speaking to the integrity measures bill. Further, I support the foreshadowed second reading amendment to be moved in the House by the shadow minister for citizenship and multicultural affairs, the member for Reid, Mr Laurie Ferguson. I note that the opposition plans to continue communicating with the government following the introduction of this bill in the House on 17 September 2003, and I encourage the Minister for Citizenship and Multicultural Affairs and the government to engage meaningfully with the opposition on this bill, so serious are its ramifications for good governance of the current migration system.

The bill has wide-reaching implications and there are three groups of public interest stakeholders. The first is all migration agents and legal practitioners who are affected by this legislation. The second is all persons who use migration agency services. This public interest group includes two broad groups of persons: (a) visa applicants and those relying upon migration assistance and migration representation from any person as defined in the Migration Act; and (b) other affected parties who have a statutory, financial, matrimonial, emotional or other interest in the success of the visa application. This public interest group includes spouses of immigrants, parents, children, business sponsors, remaining relatives, carers, professional bodies and prospective employers. This bill therefore affects every Australian, either directly or indirectly. That is the third group.

So what is the purpose of this bill? I refer to the draft Bills Digest at page 1, which says that the purpose of this bill is to implement two key recommendations contained in the 2001-02 report to government, Review of statutory self-regulation of the migration advice industry. The two key recommendations concerned (a) sound knowledge requirements for registration as a migration agent, and (b) sanctions for large numbers of vexatious visa applications. The migration agents and legal practitioners agree that there are a number of unscrupulous migration agents and legal practitioners who bring their professions into disrepute and harm client interests. The honest migration agents and legal practitioners support the need to take action against the relatively small number of unscrupulous agents and legal practitioners. However, this bill does not address the needs and aspirations of the greater number of honest, hardworking migration agents and legal practitioners.

This bill introduces new, wide-ranging, capricious and discretionary powers which are to be solely in the hands of the minister. This new power is yet another power in a long line of existing discretionary non-compellable powers. In other words, the minister has absolute powers for which she is not publicly accountable. We know the dangers of that, as we have witnessed in this House with the prosecution during question time of the previous minister in relation to the cash for visas scandal.

I know that migration agents and legal practitioners are outraged by this legislation because this legislation will do little to curtail the adverse practices of migration agents via so-called vexatious visa applications, nor further the cause of de jure migration agent certification. The bill is misguided for two reasons. First, unscrupulous migration agents will continue to act that way anyway. As with any other legislation that prescribes a policy of deterrence, unscrupulous migration agents will continue to make migration representations and offer migration assistance to advise their clients to lodge vexatious visa applications anyway. Second, if it is the purpose of this bill to sanction vexatious visa applications, it fails miserably in its attempt. This legislation further falsely assumes that a vexatious application is one which fails in its application. The latter does not follow necessarily. It is an arrogant presumption embedded within this legislation that says that, if a visa application fails in which you offered migration assistance or made migration representations, it is therefore a vexatious application.

The purpose of this bill is to give the minister and, ultimately, the department a discretionary power to strike off any agent they deem not fit to hold a practising certificate. The purpose of this legislation has nothing to do with the agent's integrity. Again, this bill makes the bill's very name a marketing tool in order to win public popularity, whilst the actual purpose of this bill is something very different to that which the name says. You cannot judge a book by its cover, so the saying goes. You certainly cannot know this government's legislative intent by the names of their bills either. I might cite the `procedural fairness' legislative amendments to the Migration Act in 1998, which actually erased natural justice rights of visa applicants, as a moot point.

This power is based on the so-called refusal rate of the migration agent's case history. At once this is anathema to a long history of well-established legal principles. First and foremost, it is a fundamental right of a person to be represented by a legally competent person in any jurisdiction, even if their case would otherwise be considered a hopeless case. However, this legislation now hangs a sword of Damocles over the head of the migration agents, who will be in fear of taking on a difficult migration case, on the basis that it could be a losing case.

This raises another significant point regarding this bill: what is the `high visa refusal rate' anyway? It is proposed that a new definition will be inserted into part 3 of the act to accommodate this. There are a plethora of variations in this matter. The definition seems to mean that visa refusal or success will determine the visa refusal rate. Does that mean a visa refused at the primary decision stage and subsequently successful on appeal still counts as a high success rate?

A visa refusal can find its way to ultimate success via a wide range of appeals structures: the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal, the Federal Magistrates Court, the Federal Court of Australia, the High Court and the minister under her wide number of discretionary statutory powers. That means that a visa refusal introduces a statutory interest in the decision at the appeals stage or at referral to the minister under one of her non-compellable discretionary powers. This is particularly so with respect to section 501 of the Migration Act, a discretionary power which prescribes the character test at subsection 501(6). This power, if exercised, may cancel a visa after it is granted. So I ask: does a visa cancellation under section 501 count as a visa refusal for the purpose of this draft bill?

Noted and merited legal practitioners describe this draft bill as unworkable. It is an unworkable bill. We are told that the substantive provisions of this bill will be found in subsequent regulatory amendments. The mind boggles as to what regulatory amendments the legal profession can expect. These disallowable instruments will not pass through this House. They will go undetected and, even if they are detected, any disallowance motion will be defeated by the government for the purpose of again ramming through the intent of the legislation. It raises the question of why the government is ramming this legislation through. Is it to cull the number of agents? Is it to ensure that only the big end of town succeeds in mopping up on the migration agency business and runs the smaller operators out of the profession? The intention cannot be to protect consumers and public interest holders. The real solution is to adopt the recommendations to be put by the shadow minister for citizenship and multicultual affairs, the member for Reid, and to defer the passage of the bill until real dialogue occurs between the government and the opposition.

The proposed amendments violate an inalienable right of a person to be represented even if there is little prospect of success in a case due to factors that may or may not be the fault of the applicant. A person is allowed to be adequately represented even if they know their case is not a winner. It is a basic right of any person in natural law that they are allowed to advocate their case irrespective of the prospects of success. Yes, there are notable legal and procedural exceptions. However, this legislation creates a statutory incentive for the migration agent and a good many legal practitioners to say, `No, I will not take your instructions, on the basis that your case is too risky and I fear losing the application. For this reason, I refuse to represent you.'

In this new statutory regime, it is highly likely that the actual consequence of the legislation will be exactly the opposite of the effect intended. Like the dodgy brothers, only the desperate and disreputable migration agent or legal practitioner will take carriage of a matter that no other agent would dare shoulder. However, by then the damage from the legislative scheme will be done. The client will have the door slammed in their face by those agents who, but for the legislation, would have advocated their cause to the best of their professional skill and expertise. Put another way, the visa success or failure rate is not dependent upon the win or loss rate of agents. Such legislative schemes are legal reductionism—a point I have made in this House consistently over the last five years. By `legal reductionism' I mean reducing law to a discrete and simple list of dos and don'ts or ins and outs. The success or failure of a migration agent or legal practitioner cannot be reduced to such a discrete list. What is 50 per cent supposed to mean in terms of success or failure? How will the agent or legal practitioner ever be able to challenge the veracity of such a statistic anyway? Under section 306A, at page 5 the Bills Digest notes:

... the Minister is empowered ... to refer a migration agent for disciplinary action by the Migration Agents Registration Authority if the agent has a high visa refusal rate ...

The provisions of new section 306A cannot work for the very reasons to which I have previously referred. The bill, its provisions and the manner in which it has been rammed through this House raise serious issues concerning fairness, democratic process and efficient parliamentary government. This bill introduces yet another non-compellable discretionary power in the hands of the Minister for Immigration and Multicultural and Indigenous Affairs. Yet again, this bill ensures that the line between the legislature and the executive is further blurred to the point where the executive is at once capable of commanding its will on the legislature to give itself unwieldy and unchallengeable power in the hands of one person.

Indeed, the ambit of discretionary powers is breathtaking in its arrogance of non-accountability. Perhaps the only passage of legislation that applies that surpasses this arrogance is that of the statutory amendments to the Migration Act which ensure that in many provisions of the act—again, for example, section 501—there is a statutory provision that the rules of natural justice do not apply to that provision. This incredible provision means that this government has seen itself fit to abrogate the application of the natural law to laws of its own making, thereby assuming a power that transcends reason. This is not an isolated example. There is now a long line of laws made by this government going back to the 38th parliament whereby it has systematically assumed power far and beyond its natural mandate. A point has been reached in jurisprudence where this government has usurped for itself an immediate right of power, altogether losing sight of the fact that the government is a body that has only mediate rights and is ultimately accountable to its elected constituencies. Government cannot make laws that defy the natural law. If a government does so, it does so arrogantly. Ultimately a law that defies the natural law is no law at all.

This government cannot draft a law that defies reason—as it systematically continues to do. In its drive for power, it will lose it. History is replete with examples of governments that applied tyranny and came crashing down. That is what will happen here if this law is passed. If it is the intention of this government to make laws to curb the unscrupulous agents then, in my view, this is not the way. There are other control devices that are reflected in the shadow minister's foreshadowed amendments, which I support.

I also want to raise a most serious procedural matter directly relevant to the passage of this bill in this House tonight going to the constitutional conventions being applied—or, more accurately, routinely ignored—by the Minister for Citizenship and Multicultural Affairs and the Government Whip. I refer to the House of Representatives Practice, 4th edition, at page 79. Under the chapter entitled `House, government and opposition' it states:

Fair, democratic and efficient parliamentary government calls for:

the provision of reasonable parliamentary time for opposition purposes;

... ... ...

the provision of information and resources (to reduce the wide gap in information availability between Government and Opposition); and

the provision of procedural advice and drafting assistance when necessary.

During the last five years, I have kept copies of many of the draft daily programs issued by the Department of the House of Representatives. The published prospective draft daily program bears little, if any, resemblance—as a rule rather than an exception—to the actual order of business in this House. Changes in the government order of business are expected. It is a constitutional right of the government to be free to make changes so as to not hamstring the government in adjusting to the daily occurrence of business, and I accept that. However, there are limits. It is all too easy to say that changes were inevitable. It is long known that this government flagrantly uses this privilege to deny the opposition party in this House or the Senate, let alone any other public interest holder, reasonable time in which to marshal their case in response to the introduction of a bill into this House or the Senate.

The facts with respect to the passage of this bill are that on 17 September 2003 this bill was introduced into this House and on that same day the debate was adjourned. Today, 7 October 2003, this bill is being read for a second time. In my opinion, these bills are being ramrodded through. There is no legal or other binding duty on the government or opposition to abide by the provisions of the constitutional convention; nonetheless, it must be binding in spirit, otherwise the ordering of opposition business becomes impossible. Cynically, this appears to be the deliberate intention of government. In my view, it is the intention of this government to systematically refuse to give validity and due recognition to the constitutional conventions that are supposed to be honored by the government party in this House.

In House of Representatives Practice, Harris notes that the role of the opposition is `critical' to the good management of the House and the parliament. He says:

A primary function of the whole House, through its role of scrutiny and criticism, is to exercise an oversight of the actions of the Government. In modern times, the Opposition has a critical role in this and, thus, the functions of the Opposition have become identified and linked with the role and more important functions of the House. These functions include ... scrutiny of, criticism of, and suggestion of improvements to legislation and financial proposals ...

I put it to the House that the timing of the introduction of this bill into the House on 17 September 2003 and the timetable of debate for the second reading speech tonight are unreasonable. I further put it to this House that the fact the BillsDigest is unavailable at this time is tantamount to show that the bill has caught everyone off guard by the shortness of time. I do not criticise the Department of the Parliamentary Library, the DPL, for this because they allocate their resources very efficiently and are expert in drafting the Bills Digest, which, as you know Mr Deputy Speaker, is the de jure policy advice for members of this House who seek to be briefed on the details of a bill.

The fact that this bill has literally caught the DPL off guard is testimony to the fact that this bill is being rushed through. Indeed, it is one of many examples of legislation that is rushed through deliberately whenever the government forms the view that any little public interest stakeholder may raise objection to an item of legislation. In short, this government's flagrant abuse of parliamentary procedure is a deliberate gagging tactic to thwart meaningful debate on this most serious bill. The point has indeed been reached where a capricious, undemocratic and tyrannical mode of governance is driving the government order of business to a point of erasure of longstanding constitutional conventions.

In concluding, I commend the foreshadowed amendment by the member for Reid. I commend the continued dialogue between government and opposition parties and call upon the minister to open this debate to the public interest stakeholders, particularly the greater body of migration agents and the legal profession, so they can comment on the provisions of this bill. I think that is the least we can do, because they are the ones who are most affected by this legislation. It is totally inappropriate to have a bill rushed through the parliament without proper consideration and input from those who are to be most affected by the bill. I hope the minister at the table takes that back to the government on behalf of the opposition. It will serve our democracy better if we get more time to discuss the bill. (Time expired)