Senator IAN CAMPBELL (9:45 AM) —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—

The purpose of this bill is to amend the Migration Act to clarify the rights of certain people who are in immigration detention.

People who are in Australia unlawfully or are not the holders of valid visas are not entitled to be at liberty in the community. Section 189 of the Migration act requires the detention of a non-citizen who does not hold a valid visa and section 198 requires that such a person be removed from Australia as soon as is reasonably practicable.

The onus is on unlawful non-citizens who arrive without a visa to advise officials as to why they have come to Australia and if they wish to seek legal advice.

Section 256 of the Migration act makes provision for access to legal advice by persons in immigration detention but only where the persons in detention request legal advice. This approach is clearly intended by the Migration act, and has been upheld by the courts in a number of cases.

Against this background, in March 1996 the then Refugee Advice and Casework Service in Victoria (now known as the Refugee and Immigration Legal Centre) sought access to people who had arrived on a boat named the "Teal" to provide legal advice. However, the people on "Teal" had not sought legal assistance and this request was refused. RACS complained to the Human Rights and Equal Opportunity Commission, who then sought to have delivered to the captain, crew and passengers of the "Teal" a confidential letter, in reliance on the Commission's powers under paragraph 20(6)(b) of the Human Rights and Equal Opportunity Commission Act 1986. The effect of that action would have been to ensure access to legal advice, despite the fact that none had been requested.

Following consultation with the Attorney-General's Department, the Department of Immigration and Multicultural Affairs refused to deliver the letter and the Human Rights and Equal Opportunity Commission took action in the Federal Court. On 7 June 1996 the Federal Court ruled that the letter should be delivered.

Encouraged by the Federal Court's ruling, RACS then sought access to all the boat people who had arrived around that period. In so doing RACS mounted a direct attack on the fundamental capacity of the government to manage effectively the boat people issue. This requires that boat people have their claims processed as expeditiously as possible. The approach adopted by RACS would have encouraged boat people to engage in unwarranted, lengthy and expensive processing.

The area of government administration dealing with unauthorised arrivals and detention has been the subject of protracted litigation over recent years. It is therefore important that we have clearly understood processes supported by clear and unambiguous legislation in place to avoid confusion of the government's intent in this area.

Certain interest groups have always argued that all unlawful non-citizens should, on arrival in Australia, immediately be offered access to legal advice, even where they do not request it. Such an approach would, however, have the effect of ensuring that all unlawful non-citizens, regardless of their reason for coming to Australia, could invoke lengthy and expensive processing. This is especially of concern given the large numbers of unauthorised arrivals in recent years.

This bill ensures that Parliament's intention in relation to the management of unauthorised arrivals in immigration detention, as reflected by section 256 of the Migration act, cannot be subverted through the use of the Human Rights and Equal Opportunity Commission Act 1986 or the Ombudsman Act 1976.

The bill is largely the same as one that was before the Senate in the last Parliament.

The Government has, however, made two minor changes to that bill. Following discussions between officials of the Department of Immigration and Multicultural Affairs, the Ombudsman, and officials from the Attorney-General's Department, the Government has removed the requirement that complaints to the Ombudsman must be "in writing".

The other change is to provide that this bill should commence on the day of introduction into the Senate. The previous bill provided that it was to commence on 20 June 1996.

I commend the bill to the Chamber.

Ordered that further consideration of the second reading of this bill be adjourned until the first sitting day in 1999, in accordance with standing order 111.