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Wednesday, 23 March 1994
Page: 2120


Senator McKIERNAN (6.56 p.m.) —In speaking tonight on the Migration Legislation Amendment Bill 1994 I am aware of the time constraints that we are under and, because of that, I will contain my remarks to the very minimum.

  I support this bill because I approach it from a different perspective. The bulk of the constituents who approach my electorate office in Perth are in the migration area; they represent the largest proportional number of constituents who seek my office. Those people come to me for assistance in settling in Australia on a lawful basis. They want to comply with each and every aspect of the laws relating to bringing their relatives or friends to this country, not only for permanent settlement, but also for visits—in some cases for a relatively short time.  So I approach it from a different perspective. I approach it from the individual who wants to do the right thing by this country and its citizens and wants to comply with the laws of this country.

  Mention has been made of the report of the Joint Standing Committee on Migration entitled Asylum, border control and detention, which was presented in this place some three weeks ago. This bill does not direct itself to each and every aspect of that inquiry, but it does relate to some very important aspects that the committee looked at. The committee made recommendations and suggestions to the government for further reform of this amending bill and the Migration Reform Act overall, particularly in the area of access to the judicial process and judicial review of migration decisions.

  It was of great concern to the committee—and I think it ought to be of great concern to the community as a whole—that the majority of the cases that are currently being heard under the jurisdiction of the Federal Court are in the area of migration. Migration is an administrative law, but more and more we are finding a resort to judicial review, and the judiciary setting the standards for who comes into Australia, who remains in Australia, and under what conditions that is going to happen. I do not think that the parliament of Australia can afford to abrogate its responsibility and allow the judiciary to do that.

  Under the Migration Reform Act, which this bill seeks to amend, judicial review will be limited to six areas: breach of procedural fairness requirements; lack of jurisdiction to make a decision; purported decision not authorised by the act or regulations; improper exercise of a power—this would include the exercise of power for a purpose other than for which the power was conferred; the exercise of power at the behest of another person; and the exercise of power in accordance with a rule or policy without regard to the merits of the case, and we have seen some examples of this even from the judiciary itself. Three other points are as follows: error of law involving an incorrect interpretation of the law or an incorrect application of the law to the facts; a decision induced by fraud or actual bias; and no evidence or other material to justify the making of a decision. Those are the grounds upon which failed applicants can go to the court for decisions.

  The Joint Standing Committee on Migration went further and suggested that there ought to be further amendments to stop what is perceived in many sections of the community as a flaunting of the laws—both judicial and administrative—of this country in relation to migration to and settlement in this country. I understand that the Department of Immigration and Ethnic Affairs, together with the Attorney-General's Department and the Department of the Prime Minister and Cabinet, is working on our recommendation that amendments be made to provide that the Administrative Decisions (Judicial Review) Act 1977 and section 39B of the Judiciary Act not apply to Migration Act decisions. We also suggested that a leave provision ought to be introduced to prevent frivolous and costly federal court applications.

  It would be a salutary lesson to each and every member of the community, and certainly elected members of parliament, to have a look at all of the cases taken so far by asylum seekers in this country. People should analyse how many of those cases have been successful; to analyse how many have been successful on minor points of law. It will be, I suggest, a very salutary lesson to find out that not very many of them at all have been successful.

  Whilst all of these cases have been going on, individual human beings have chosen to remain in detention in this country, thereby giving certain individuals in the community an opportunity to attack the government. They have not only attacked the government here in Australia but they have sought to attack the government of Australia and Australia in overseas forums as well. I suggest that that is inexcusable and ought to be stopped.

  It seems that advantage has been taken of the government on every occasion when it has made concessions to individuals in the area of migration. The government has been exploited, and exploited to the hilt, and that abuse has to stop. This amending bill will go somewhere towards halting abuses that have occurred in the past. Late last Sunday night I saw an example of the abuses as I perceive them—this is not necessarily a government response—on the Compass program presented by the Australian Broadcasting Corporation on channel 2. This program interviewed a former detainee and talked about the problems that he, as an individual, had experienced in detention in Australia.

  The ABC—a publicly funded body—had gone out, researched and arranged to talk with this particular individual and his family about how bad Australia is in its treatment of refugees. What was not made clear at any point during the program was that the individual concerned—I will not mention his name for privacy reasons, although the ABC was not quite as protective of his privacy—had made an application for refuge status, had been refused and had been given legal support at taxpayers' expense to make that application. When the initial application was rejected, the individual made an application for review, again with taxpayer funded legal assistance. That review was rejected.

  The individual then chose to return to Cambodia. He voluntarily returned to Cambodia because it was the end of the road for him here. He stayed in Cambodia for a period. He applied to come back here under the concession that was announced in October last year. That concession allowed Cambodians who have some links with Australia and who have been back in Cambodia for 12 months or more to apply to come back. He came back into this country legally and lawfully. He was interviewed as a legal resident in Australia.

  None of that was mentioned in the program. There was a real distortion of the facts, which gives no credit to the producers of the program who put it to air. It gives no credit to the ABC itself, which ought to be maintaining some standards about truth and accuracy in what it puts to air. I found that appalling, as I do some of the other public remarks that have been made about detainees in Australia.

  A little while ago Senator Chamarette made a short comment about a boat being turned around. Since the turn of the century Australia has never—maybe it happened before the 20th century—turned around a boat of refugees or people seeking asylum in this country. Senator Chamarette is not the only person who makes that statement; I have actually seen it in print. What is more, I have heard it from an advocate who gave evidence to a different parliamentary committee some weeks ago. I am taking steps to correct that. Those distortions and untruths serve no good to Australia, the asylum seekers, and people right across the world who need refuge in this country.

  Those sorts of statements inflame sections of the community, some of whom are opposed to immigration policies in toto. In fact, some in the community want to send some of the immigrants who have settled here back to where they came from. I hope that, in the near future, reason and rationality will return to this debate before it gets out of hand. I have problems with some of the more outrageous comments made by those who support unlawful entry into Australia. I worry that they might get out of hand at some time in the future. I certainly will be working to ensure that that does not happen.

  Debate (on motion by Senator Bolkus) adjourned.