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Wednesday, 24 September 2008
Page: 8384


Dr STONE (11:03 AM) —I rise to speak on the Migration Amendment (Notification Review) Bill 2008. I am very pleased to be doing so as the new shadow minister for immigration and citizenship. The coalition welcomes the bill as a sensible measure to address problems that can arise with the notification requirements under the Migration Act 1958. The content of communications between the Department of Immigration and Citizenship, the Migration Review Tribunal, the Refugee Review Tribunal and their clients may be to do with visa applications or the clients’ future legal status, so these communications are of critical importance. Often these notices require a response or particular action within a tightly specified time frame.

Unfortunately, there have been cases in the past where a very small deviation from the prescribed process has given a client recourse to challenge the legality of the notice itself, even though the communication was received and perfectly understood. Some clients have been able to delay the resolution of their cases by mounting court challenges based on a minor technical error in the notification. There have been a series of cases over the last few years when the courts have determined that small technical defects in notifications amounted to the client not, in effect, being officially and appropriately notified. The then Minister for Immigration and Citizenship, the Hon. Kevin Andrews, described these notification issues as the ‘legal process gone mad’.

This bill will ensure that clients continue to be treated with fairness and that standard procedures will be followed, but with less opportunity to use a wrong postcode or some other small hitch as an excuse to rule the communication as not being received or not requiring the specified response—that is, of course, if the communication has in fact been delivered to the client in the proper time frame.

Put simply, this bill amends the Migration Act 1958 by introducing changes that will clarify the way in which the Department of Immigration and Citizenship, the Migration Review Tribunal or the Refugee Review Tribunal can properly notify clients of decisions. This legislation will, at the same time, ensure that the notification system remains a fair and reasonable process for all of the parties involved.

The provisions of the bill relate to the notification of minors and the deemed time of notification. The bill provides that where the minister or tribunal forms a reasonable belief that an individual has care and responsibility for a minor the minister or tribunal may communicate with that person instead of the minor to notify the individual of a decision about the minor. This is a sensible measure that will ensure a more appropriate handling of applications when an underage person is not part of a combined application, especially when he or she is too young to understand what the notification is about.

Secondly, the bill provides that the deemed time of application provisions will operate despite noncompliance with the procedural requirement for giving a document to an individual, where the individual has actually received the document. Where the individual is able to show that they received the document at a later date, that later date will be taken as the date of receipt. As has already been said, the courts currently require a strict and inflexible compliance with the statutory notification procedures and this has led to delays and costly legal proceedings despite the fact that the client may have received the notice in a timely manner.

This legislation should restore more common sense and give a greater degree of certainty to the notification procedures. With ongoing monitoring, there will no doubt be further evolution of these processes and procedures to ensure they are the most efficient, effective and just and cannot be exploited as a stalling opportunity. I am pleased that this government has realised that the bill as originally presented in the Senate needs an amendment in this House to eliminate what could have caused new complications and the potential for more inefficiency and time wasting.

The original bill as introduced contained a rather nebulous provision that ‘substantial compliance’ with the required contents of a notification document was sufficient unless the visa applicant or other applicant was able to show the error or omission in the document had caused them ‘substantial prejudice’. Proving what constituted ‘substantial’ compliance or prejudice would have been complicated and, of course, highly subjective. I am pleased that the government has recognised that, rather than tightening interpretations or closing loopholes, this provision may have caused us more opportunities for unintended consequences. I am therefore pleased to support the further amendment.

While this is a technical bill which does not fundamentally change Australian immigration policy, it does refer to the business of effectively administering appeals and assuring compliance with our immigration policy. It is therefore a significant and important matter. There are some 46,000 visitors who are currently overstayers in our country. There are another 2,000 or so onshore protection visa applicants waiting to be processed. Clearly our systems of application processing must be transparent, efficient, just and humane. The Howard government left a legacy of immigration law, regulation and practice which has delivered one of the best controlled and managed immigration programs in the world, where the government decides who comes to our country, who is most in need and who is best served by our ongoing protection.

The number of people now arriving on our shores illegally has decreased substantially as a result of the strong but fair policies that the Howard government implemented. This has meant that more of the world’s most needy refugees, including those who have been waiting for years in refugee camps, are given the opportunity to settle here under our refugee or humanitarian programs. I am pleased to see the new Labor government choosing to continue the Howard policies, given they have been very successful in reducing the number setting sail in leaky boats, often exploited by unscrupulous operators. We will never know how many boats sank on their voyages as the people smugglers tried to slip through the back door to Australia.

We need to ensure that places on our humanitarian program go to those with the most urgent need, rather than to those who have the best contacts and capacity to pay people smugglers or to pay for air tickets to Australia. Immigration is, and will continue to be, both a social and economic imperative for Australia. To borrow a phrase from the former Prime Minister, ‘I believe we all recognise that the things that unite us as Australians are much greater than the things that divide us,’ and we are a great nation as a result of generations and waves of migrants coming to our shores, working hard and embracing our great Australian values and traditions.

As the member for the northern Victorian seat of Murray, the most ethnically diverse electorate in regional Australia, I know firsthand the contribution that migrants have made to the social and economic fabric of our communities. As the shadow minister I look forward to working with the government to ensure that migrants to Australia have the support they need and that, in due course, different categories can apply to become citizens.

Citizenship is a privilege, not a right, but I am concerned that nearly a million people who are eligible for citizenship have not yet chosen to take this step. Many are older settlers from the United Kingdom, who arrived at a time when Australia’s citizenship laws and associated privileges, like voting, were different. I encourage the 900,000 settlers who contribute to and enjoy the freedoms and opportunities of our great country to take the final step to become Australian citizens. The Howard government wanted to ensure that English language understanding and a knowledge and acceptance of the values, rights and obligations of Australian citizenship were understood by those who stepped up to take an oath of allegiance to our country. I am pleased this new government has embraced the new citizenship testing and record numbers are now stepping forward. This test will, no doubt, evolve over time to become ever more effective in truly testing the new arrivals’ knowledge of our country and our first language. I commend this bill to the House. It has the strong support of the coalition.