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Monday, 26 February 2001
Page: 21910


Senator ABETZ (Special Minister of State) (5:53 PM) —I table three revised explanatory memoranda relating to the bills and move:

That these bills be now read a second time.

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

Leave granted.

The speeches read as follows—

MIGRATION LEGISLATION AMENDMENT BILL (No. 1) 2001

This bill was previously known as the Migration Legislation Amendment Bill (No. 2) 2000.

It implements a number of the government's policy initiatives within the immigration and multicultural affairs portfolio.

These initiatives will further ensure the integrity of Australia's immigration laws.

Most of the initiatives flow from the government's stated policy to restrict access to judicial review in visa-related matters “in all but exceptional circumstances”.

There are also a number of technical amendments in the bill.

The government's policy commitment to restrict access to judicial review in visa-related matters was given in light of the extensive merits review rights enshrined in the migration legislation.

Furthermore, the government is concerned about the ever-increasing cost and incidence of migration litigation with its associated delays in the removal of non-citizens from Australia.

The cost incurred by the department of immigration and multicultural affairs for all migration litigation amounted to more than $11 million last financial year, with projected costs of more than $20 million in the 2001/2002 financial year. Those figures do not include the operating costs of the courts.

A bill to implement the government's policy commitment was introduced into parliament in June 1997 and was subsequently passed by the house of representatives.

However, the bill was awaiting debate by the senate when the parliament was prorogued for the 1998 federal election.

The bill - now called the migration legislation amendment (judicial review) bill 1998 - was reintroduced into the senate on 2 December 1998 where it is currently awaiting debate.

That bill contains a privative clause which would greatly reduce the grounds of judicial review in visa-related matters both before the Federal Court and the High Court, and ultimately reduce the number of non-citizens going to the courts in migration matters.

It would also end the current disparity between the grounds of judicial review available before the Federal Court and High Court, making it no longer attractive for persons to go to the High Court in its original jurisdiction.

While the much needed Judicial Review Bill has not attracted the support of non-government senators, the judicial review amendments contained in the Migration Legislation Amendment Bill (No. 2) 2000 are not a substitute for those in the Judicial Review Bill.

These new legislative initiatives address a disturbing trend which has seen court challenges in migration matters being made by way of class or otherwise grouped actions.

The government believes class actions are being used to encourage large numbers of people to litigate, with the aim of obtaining a visa.

There are examples of advertisements being placed in ethnic community newspapers using the eligibility for a bridging visa as a selling point for joining the class action.

The changes in this bill are necessary to combat the recent increase in the use of class actions in this way for people with no lawful authority to remain in Australia to prolong their stay and frustrate removal action.

Other than through litigation, most of those people would have no other way of obtaining authority to remain in Australia and would otherwise have to be removed.

Some class actions have involved challenges to the validity of the Migration Regulations 1994 by persons who have not even been the subject of a relevant visa decision.

Even where members of class actions are the subject of a relevant visa decision, there is reason to believe that a significant number of these persons would be out of time to directly challenge the decision in the Federal Court.

Overall, this is a disturbing trend given the government's policy objective to restrict access to judicial review in all but exceptional circumstances.

I accept that there may be sound public policy reasons for the availability of class actions in some matters.

While class actions might well be appropriate in allowing individuals to sue large organisations in expensive consumer-related actions, they are inappropriate in relation to migration matters, particularly review of protection visa decisions. This is because in such matters individual consideration of the facts is required.

The government believes that, in the migration area, such actions are causing a substantial number of persons to litigate who would not otherwise do so merely to get a bridging visa to prolong their stay in Australia.

Despite the fact that a bridging visa has a “no work” condition, some may even be working illegally.

Therefore, the provisions in this bill generally bar class actions in visa-related matters both before the Federal Court and the High Court.

To deter any attempt to promote a rush of class actions before these amendments are passed, the provisions apply to all court applications made on or after 14 March 2000, the date the bill was introduced in the other chamber.

The government does not wish there to be any encouragement or entitlements for persons to commence class actions between that date and when the legislative amendments come into operation.

The joint standing committee on migration has made a number of recommendations relating to the restriction on class actions.

The majority report recommended that the time limit for making an application to the High Court for judicial review be increased from 28 days to 35 days.

Government amendments were passed by the other chamber to implement this recommendation.

As a result, the time limit for making an application to the High Court, in its original jurisdiction, for judicial review of certain decisions is now 35 days.

The majority report also recommended that proposed section 486b in the bill be reviewed.

The majority report wanted it clarified that test cases are not precluded and multiple party actions in other jurisdictions are not affected by the bill.

Individual test cases are not precluded.

The government attempts to have important legal issues determined wherever possible by the use of tests cases to which it is a party. This is undertaken in cooperation with the other party and the court.

When the court has determined an important legal principle, it is applied in respect of all other cases where this principle is relevant.

In situations where the principle is not in the applicant's favour, it is for the applicant to decide whether to continue to pursue their application - even if it will ultimately be unsuccessful.

Proposed section 486b clearly limits the restriction on multiple party actions to those which raise an issue in connection with visas, deportation, or removal of an unlawful non-citizen.

It does not preclude any person from being a member of a class action in relation to any other issue.

The dissenting report suggested that alternatives to restricting class actions should be considered.

For example, there should be more effective monitoring of the legal profession.

The department has received legal advice that the commonwealth cannot directly regulate the conduct of legal practitioners.

This is because it is not within a constitutional head of power.

With such limited options available, the conclusion which that advice reached was that this bill is an effective way of dealing with the increasing use of class actions in migration litigation.

The dissenting report also commented that the evidence before the committee only indicated a potential for exploitation of the class action process.

The dissenting report claimed that the evidence did not prove that there was such widespread abuse as to require the legislative action proposed in the bill.

The government does not accept this conclusion.

Ample evidence of the increasing incidence and cost of migration litigation was provided to the committee by the department.

Between 30-50% of applicants withdraw from migration litigation prior to a hearing.

The minister is successful in at least 85% of matters that proceed to a hearing.

On 14 march 2000, the Minister For Immigration And Multicultural Affairs advised the other chamber that, since October 1997, 14 class actions, involving thousands of people, had been commenced.

Since that time, another 6 class actions have been commenced.

These class actions are allowing more and more people to obtain bridging visas and remain in Australia until the courts have determined the matter.

A pattern has also developed of people moving from one class action to another in order to further prolong their stay in Australia.

For example, an analysis of half of the 700 members in the Macabenta class action showed that 40% had been a member of at least two class actions.

Further, many people are joining class actions because they are out of time to make an individual application to the Federal Court.

An analysis of a recent Federal Court class action indicates that:

· 75% had joined the class action more than 6 months after the date of the decision that was being challenged; and

· 48% had joined more than 12 months after the date of the decision that was being challenged.

The government believes that this provides substantial evidence of abuse of class actions in the migration jurisdiction.

The provisions in this bill also limit standing to commence or continue visa-related proceedings in the Federal Court to where there is a person who is actually the subject of a decision or action.

Because of constitutional complexities, the bill does not impose similar limits in relation to the High Court's original jurisdiction under section 75 of the commonwealth constitution.

However, the bill does stop the High Court from remitting such cases to the Federal Court, to prevent persons circumventing the restriction directly imposed on the Federal Court.

As I indicated earlier, access to bridging visas acts as a pull factor encouraging persons to take part in court actions to prolong their stay in Australia.

However, denying access to bridging visas for litigants is not the government's preferred option.

Many such persons would, I believe, still take court action even if access to bridging visas were denied.

That would mean that those persons would be unlawful non-citizens and required, under section 189 of the Migration Act 1958, to be taken into immigration detention.

Looking at economic grounds alone, that would put additional strain on existing detention facilities and result in detention costs, which, while liable to be paid by the detainee, are rarely recoverable in practice.

The removal of class actions complements the measures that the government currently has before the senate in the Judicial Review Bill.

The government urges the senate to allow the government the tools to address the serious and continuing problem of misuse of judicial processes by non-citizens refusing to leave Australia.

Schedule 2 of the bill makes a number of technical amendments to the Migration Act 1958.

The amendments to section 501a clarify the original policy intention behind the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998.

The amendments put it beyond doubt that the minister can, in the national interest, substitute his or her own section 501 decision for that of a delegate or the Administrative Appeals Tribunal.

I commend the bill to the chamber.

—————

AVIATION LEGISLATION AMENDMENT BILL (No.1) 2001

In July 1996 the Government announced that the Civil Aviation Safety Authority (CASA) would conduct a complete review of the civil aviation legislation in Australia, with the objectives of harmonising it with international standards of safety regulation and making it shorter, simpler, and easier to use and understand. We are taking a measured and sensible approach to these reforms because we recognise that Australians are conservative about air safety.

The process of review of civil aviation legislation is ongoing. Recent efforts in this regard have been directed at promulgating standards for air traffic services, rescue and fire fighting services, and telecommunication services, and reviewing the law in relation to air traffic controller and aircraft maintenance engineer licensing, parachuting operations, and aircraft maintenance. The primary purpose of this Bill is to make a series of small but significant changes to terminology in the Civil Aviation Act 1988, which will assist in the development of regulations dealing with aircraft maintenance and maintenance engineer licensing.

The proposed legislative changes to the Act seek to achieve compliance with Standards and Recommended Practices of the International Civil Aviation Organisation (ICAO) and to harmonise with the requirements of other national airworthiness authorities (NAAs) by removing, wherever practicable, maintenance requirements and terminology currently unique to Australia. The internationally recognised and accepted terms “aeronautical product”, “maintenance” and “line maintenance” will replace existing terminology and reflect the requirements necessary for the enabling legislation dealing with aircraft maintenance.

The proposed changes will have no effect on the current aircraft maintenance requirements prescribed by the Civil Aviation Regulations. They will, however, ensure that new Australian regulations harmonise with international standards and practices and promote the maintenance of air safety.

The Bill also makes two other important amendments to the Civil Aviation Act.

Firstly, the Bill gives CASA the function of entering into so-called `Article 83bis agreements' with the NAAs of other countries. Under the Convention on International Civil Aviation, Chicago 1944 (the Chicago Convention) a State party to the Convention is generally responsible for the safety regulation of aircraft on that State's register, irrespective of where the aircraft is in the world. Some obvious difficulties in administering safety regulations arise when an aircraft registered in one country is operated in another. Article 83bis is a relatively recent addition to the Chicago Convention, and enables the transfer of safety regulatory functions from the State of registration of an aircraft to the State of operation of the aircraft, on agreement of both States. The ICAO considers that such agreements should be made between the relevant national aeronautical authorities, as they are administrative instruments of less than treaty status.

Australia ratified Article 83bis on 2 December 1994 after amending the Civil Aviation Act by the Transport and Communications Legislation Amendment Act (No. 2) 1993. Importantly a new section 4A was inserted which allows provisions of the Civil Aviation Act implementing the functions under Articles 12, 30, 31 and 32 of the Chicago Convention:

· to be applied to a foreign aircraft identified in an Article 83bis agreement which transfers those functions to Australia; and

· to be disapplied to an Australian aircraft identified in an Article 83bis agreement which transfers those functions to another state.

This Bill ensures that CASA will have the function to enter into Article 83bis agreements on behalf of Australia. Administrative and technical provisions concerning the implementation of these agreements will be covered in regulations to be developed by CASA and my Department in consultation with industry.

Taking into account Australia's objective of harmonising with international standards of safety regulation, the ability for Australia to enter into Article 83 bis agreements should also benefit the Australian aviation industry and the consumer in terms of increased economic opportunities and reduced costs. For example, domestic operators would potentially have greater flexibility and more cost-effective options in operating their aircraft fleets, and in being able to lease aircraft to overseas operators, that are under utilised in Australia during periods of low demand. Australian maintenance organisations could have increased opportunities to carry out work on foreign aircraft that would otherwise have been carried out overseas.

Secondly, the Bill adds to CASA's suite of enforcement tools, by giving it the power to accept written undertakings from people in relation to compliance with civil aviation safety legislation. Giving of such undertakings will be completely voluntary - CASA will not have the power to compel the giving of undertakings. However, once a person has given an undertaking, CASA will be able to seek an order from the Federal Court requiring a person to abide by his or her undertaking. The provision is modelled on section 87B of the Trade Practices Act 1974.

Finally, the Bill makes amendments to the Civil Aviation (Carriers' Liability) Act 1959 to correct an inadvertent error which imposed a liability on foreign charter operators which is inconsistent with Australia's international obligations under the Convention for the Unification of Certain Rules relating to International Carriage by Air, Warsaw 1929 (the Warsaw Convention). The correction ensures that Australia imposes certain liabilities only upon Australian airlines, not foreign.

There will be no anticipated added cost to the Budget due to the amendments of the Civil Aviation Act or the Carriers' Liability Act. There will however, be long term cost benefits to those aviation industries involved in international trade which will flow from the legislative changes, as Australia's law will reflect the law of major markets for aviation products and services.

—————

HEALTH LEGISLATION AMENDMENT BILL (No. 1) 2001

This bill amends the National Health Act 1953 and the Health Insurance Act 1973 to enable the private health industry to fund alternative models of health care delivery as a direct substitute to in-hospital care for admitted patients. This Health Legislation Amendment Bill (No. 1) 2001 also contains some minor amendments relating to Lifetime Health Cover.

The aim of the bill is to enable private patients in both public and private hospitals to receive the same equitable care choices available to public patients in public hospitals.

Medicare patients in public hospitals have been able to receive outreach care as a substitute to in-hospital care for some years.

This bill enables approved outreach services as a direct substitute for in-hospital care that is provided beyond the hospital that either shortens or prevents a hospital admission.

Under the National Health Act 1953, funds can only pay benefits from hospital tables for admitted patients. This means that funds have only been able to offer outreach services to their members from their ancillary tables, which are not eligible for inclusion in the reinsurance arrangements.

This bill will also allow the many older Australians who have private health insurance the option to receive a direct substitute for in-hospital treatment in the familiar and comfortable surroundings of their own homes.

The first amendment relating to Lifetime Health Cover ensures that all people who enter Australia on a humanitarian or refugee visa after 1 January 2000, or who were granted a protection visa after entering Australia on or after 1 January 2000, have 12 months after the day on which they become eligible for Medicare in which to take out hospital cover without their contributions being increased under Lifetime Health Cover.

The bill also clarifies the definition of adult beneficiary and hospital cover with respect to Lifetime Health Cover to ensure that spouses (including de facto spouses) of contributors are defined as adult beneficiaries and can have hospital cover.

This bill will allow approved outreach services to offer private patients improved hospital benefits, an innovative new private health insurance service, and funds to access the reinsurance arrangements.

Debate (on motion by Senator Denman) adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.