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Wednesday, 8 June 1994
Page: 1445


Senator FAULKNER (Minister for the Environment, Sport and Territories) (9.37 a.m.) —I table the explanatory memorandum, and move:

  That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

  Leave granted.

  The speech read as follows

This bill, through its proposed changes to sections 35 and 36 of the Migration Act 1958 (which were renumbered in December 1989 to become sections 87 and 88 respectively) seeks to restore to those sections the effect they were previously thought to possess.

Section 36 (now section 88) of the Act deals with people who come to Australia by boat without prior authorisation and who may be kept in custody until the departure of the vessel from its last port of call in Australia. Up until May 1991, unauthorised boat arrivals of the kind usually referred to as "boat people", were detained in custody under this section.

High Court challenges to other aspects of migration legislation involving boat people subsequently cast doubt on the lawfulness of detention for a number of boat people under section 88 once it became apparent that the boats on which they had arrived would never depart Australia. This doubt turns not on the central issue of unauthorised arrival, but on the understanding that the vessel be expected to leave Australia on a further, outward and ongoing voyage.

In this instance, the Commonwealth acted on a mistaken view of what the law was, believing—like all other concerned parties—that its detention of boat people was lawful. It is significant that no-one, apparently including the boat people themselves—and their legal representatives—saw any reason to question the lawfulness of detention, as none of the vessels on which they had arrived had ever left Australia. Should that custody prove to have been unlawful, it is as a result of an innocent and technical breach, and no more. This has created an artificial situation when the fact of the matter is that the boat people did arrive in Australia unlawfully, and their detention was based on the understanding of the provisions of section 36 (section 88) by the Government and the Department at that time. Nevertheless, actions for damages have been lodged by some 88 of the boat people who now maintain that their detention under section 36 (section 88) was unlawful.

New provisions to detain unauthorised boat arrivals came into effect in May 1992 with the commencement of Division 4B of the Act. These provisions, under which the boat people have been detained since May 1992, were found by the High Court in December 1992 to be constitutionally valid. However, at that time the High Court cast doubt upon the use of section 88 to detain boat people. As a consequence, section 54RA was enacted in late December 1992. This section extinguished the right of action for damages for false imprisonment for persons found to have been unlawfully detained under section 88 prior to their transfer to custody under Division 4B of the Act, replacing it with a statutory right of action limiting to one dollar per day the damages payable.

As my predecessor declared to Parliament, ". . . It is essential to counter the possibility of significant damages claims. It would be absurd for the Australian taxpayer to be expected to underwrite compensation payments to people who arrived here without authority and who have been detained on reasonable grounds while their claims to remain were exhaustively examined".

A case challenging the constitutional validity of the compensation scheme established in section 54RA—and I would repeat that the compensation scheme in section 54RA was regarded as constitutionally valid at that time—can be expected to be heard by the High Court later this year. This is a test case related to the action for unlawful detention to which I referred earlier. The main ground for challenge is likely to be that section 54RA breaches section 51(xxxi) of the Constitution, in that it involves an acquisition of property by the Commonwealth otherwise than on just terms. A number of High Court decisions since section 54RA was enacted on the ambit of the "just terms" requirement in the acquisitions power in the Constitution have raised doubts whether the limit on damages to one dollar per day is constitutional.

As I earlier remarked, the amendments proposed seek to reflect the Commonwealth's previous understanding of sections 35 (section 87) and 36 (section 88), and their operation. Legislative amendment of this kind can be classed as "curative", which retrospectively corrects defects discovered in the law or its administration, and restores what was previously thought by all parties to be the status quo.

Recent High Court judgements involving the "just terms" requirement of our Constitution have suggested that this approach of "curative" legislation is an avenue available to the Commonwealth. Indeed the courts, including the present Chief Justice of the High Court, have emphasised that it is always open for Parliament to correct developments in the law, other than in constitutional matters, where those developments do not accord with Parliament's intention. The rationale for curative legislation is the strong public interest in the proper functioning of government. Occasional defects in administration or statutory drafting are inevitable, and it may be fairly argued that a law which seeks retrospectively to cure innocent defects does not take away rights, but merely gives effect to administrative action already taken; action, it should be noted, which was previously assumed by all relevant parties to be valid.

It is therefore proposed to amend sections 35 (section 87) and 36 (section 88) of the Act from 1 November 1989 to give them the effect which they were previously thought to have. These amendments do not seek to change the operation of those sections, but insert new provisions intended instead to reflect the Commonwealth's understanding of sections 35 (section 87) and 36 (section 88) and the manner in which they were actually administered in practice prior to the commencement of Division 4B. The Attorney-General's Department has been consulted at every stage of the drafting process. It is the view of that Department that the amendments are not inconsistent with Australia's obligations under international law.

The proposed subsection 36(1AA) (subsection 88(1AA)) seeks to put beyond doubt that section 36 (section 88) authorises the custody, for a finite period, of persons who arrive without lawful authority on board a vessel that subsequently is unable to depart Australia because it has been destroyed, or for example is not seaworthy, has been impounded or forfeited, has sunk, or is otherwise unable to depart.

This amendment also permits the taking and keeping of persons in custody, notwithstanding that the vessel on which those persons departed for Australia might not necessarily be the same vessel on which those persons arrive. It is restricted to persons who arrive on vessels that have left an Australian port and returned to an Australian port without having entered any other country. This covers situations where a person arrives at a port in Australia on an Australian based vessel to which the person was transferred from the vessel on which that person left another country, for instance to a rescue vessel when the original vessel is about to sink.

In these circumstances envisaged by new subsection 36(1AA) (subsection 88(1AA)) it is not appropriate that the period for which a person may be detained should be determined by reference to the departure of a vessel from a port. The proposed amendments will, therefore, provide that custody is to be authorised until the person is granted an entry permit; or for such period as is necessary to allow for the person's removal from Australia, following a request in writing from the person to be removed, or after all applications to remain (for example, entry permit applications and applications for refugee status) and associated appeals or reviews have been finalised, or once all consideration of whether the person will be permitted to remain in Australia has been otherwise concluded; or until such earlier time as an authorised officer directs.

Under the Migration Act, a person is considered to have entered Australia once they disembark in Australia. Proposed subsection 36(1AB) (section 88(1AB)) makes it clear that a person is taken not to have entered Australia as a result of temporarily, haphazardly disembarking—for instance, on an island off the Australian mainland, briefly and without the knowledge of the Australian authorities—after which the persons then reboard their vessel.

The proposed amendment to section 35 (section 87) similarly does not seek to alter its existing operation but instead inserts specific provisions, to avoid any doubts, as to the extent of the power under this section. Under it an officer may, to prevent a person from entering Australia unlawfully, require a vessel to enter a port and require unauthorised persons to remain on that vessel until it arrives at the port.

I repeat that these simple, common-sense amendments, curative in nature, seek no more than to ensure that sections 35 (section 87) and 36 (section 88) of the Act have and have had the operation and effect that Parliament intends them to have, which is the operation and effect which the Department and Ministers previously understood those provisions to have had.

The bill also inserts a constitutional validity or "reading down" provision. This will provide, unless a contrary intention can be clearly discerned, that where a provision of the Act could have both valid and invalid applications, the provision is not to have the invalid application but is to have every valid application. The provision is similar to and consistent with "reading down" provisions in certain other Commonwealth legislation.

I commend the bill to the Senate and I present the explanatory memorandum to the bill.

    Debate (on motion by Senator Reid) adjourned.