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Monday, 11 August 2003
Page: 13014


Senator ABETZ (Special Minister of State) (4:25 PM) —I 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—

CIVIL AVIATION LEGISLATION AMENDMENT BILL 2003

The Civil Aviation Legislation Amendment Bill is an important step forward in the Government's aviation reform agenda. This bill improves aviation safety regulation by allowing benefits and efficiencies to be derived from the existence of similar aviation regimes in the global market.

Specifically this bill brings together a series of amendments that make significant progress towards achieving the Government's objectives of regulatory reform and harmonising Australian aviation legislation with international standards.

In line with the Government's announcement in 1996, the Civil Aviation Safety Authority (CASA) has been conducting a complete review of civil aviation legislation in Australia. The objective of this review was to harmonise Australia's aviation safety regulations with international standards and make them shorter, simpler, and easier to use and understand.

This process of review and re-enactment of civil aviation legislation has been ongoing and the Government believes it is important that these changes be made as part of a measured approach to aviation safety reform.

This bill brings together a series of significant changes, which will improve and clarify the legislative framework for aviation safety. Specifically this bill will amend and improve the Civil Aviation Act 1988 by:

· assisting in the development of regulations dealing with aircraft maintenance;

· altering certain definitions in the Act, such as those of “Australian aircraft” and “state aircraft”, to remove ambiguity and to align them more closely with internationally used definitions;

· appropriately transferring the function of entering into 83bis agreements with other countries, from the Minister for Transport and Regional Services, to CASA as the national airworthiness authority in accordance with the International Civil Aviation Organisation's (ICAO) recommendations;

· amending certain provisions to harmonise these provisions with the Criminal Code; and

· amending other minor provisions, such as those relating to goods seized as part of an investigation, to facilitate smoother operation of CASA. I note that legislative changes to CASA's structure and governance arrangements are contained in the Civil Aviation Amendment Bill 2003, also being introduced into Parliament.

This bill will also amend the Air Navigation Act 1920 to ensure definitions are aligned with those in the Civil Aviation Act 1988, and it will also repeal a redundant section of the Airports Act 1996.

The Explanatory Memorandum sets out the specific amendments to the terminology and definitions which seek to achieve compliance with Standards and Recommended Practices of the International Civil Aviation Organisation (ICAO). These amendments will harmonise provisions with the requirements of other National Airworthiness Authorities by removing maintenance requirements and terminology that are unique to Australia and by aligning definitions with those used internationally. The internationally recognised and accepted terms that will replace existing terminology reflect the requirements necessary for the enabling legislation dealing with aircraft maintenance.

These 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 introduces an important measure, that of giving CASA the function of entering into Article 83bis agreements with the National Airworthiness Authorities of other countries such as the Federal Aviation Authority in the United States and the Civil Aviation Authority in New Zealand.

Under 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.

There are, however, some obvious difficulties in administering safety regulations when an aircraft registered in one country is operated in another for a substantial period of time.

Article 83bis enables the transfer of safety regulatory functions from the State of registration to the State of operation, on agreement of both States. While at present there are no 83bis agreements between Australia and another country this provision will facilitate such agreements in the future.

Currently the Minister for Transport and Regional Services has the power to enter into Article 83bis agreements but CASA does not. As ICAO considers that such agreements should be made directly between the relevant national airworthiness authorities, because they are administrative instruments of less than treaty status, this bill appropriately transfers the function to CASA.

Administrative and technical provisions concerning the implementation of these agreements will be covered in regulations to be developed by CASA and the Department in consultation with industry.

The amendment to transfer the function of entering into 83bis agreements to CASA is consistent with Australia's objective of harmonising our legislative framework with international standards of safety regulation. Such agreements could 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, that are under utilised in Australia during periods of low demand, to overseas operators. Australian maintenance organisations may also benefit due to increased opportunities to carry out work on foreign aircraft that would otherwise have been carried out overseas.

Other amendments included in this bill will ensure that aviation operations are regulated appropriately and allow operational flexibility, without compromising safety requirements. Specifically, these amendments will correct provisions relating to the retention and disposal of goods seized by CASA during the course of an investigation. These amendments will enable CASA to carry out its responsibilities more efficiently.

The repeal of section 192 in the Airports Act 1996 will provide for a uniform regulatory approach to apply in seeking a `declaration' of essential, national interest infrastructure for the purposes of the Trade Practices Act 1974.

As of July 2003, Sydney Airport would become the only airport in Australia that would otherwise be subject to section 192. The section has become redundant in the sense that declaration of airport services is currently available under the provisions of Part IIIA of the Trade Practices Act 1974. Repeal of the section will ensure that all airports are subject to uniform statutory provisions in regard to providing access to certain essential facilities.

There will be no anticipated added cost to consolidated revenue due to the amendments of the Civil Aviation Act 1988, the Air Navigation Act 1920 or the Airports Act 1996. 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.

Each one of the amendments in this bill is testimony to the Government's commitment to measured reform which ensures efficient and effective regulation, accessibility and a world class standard of safety for operators and consumers alike.

—————

EXPORT CONTROL AMENDMENT BILL 2003

The purpose of this bill is to amend the Export Control Act 1982 (the Act) to:

(a) redraft part of subsection 11Q(5) as a consequence of the repeal of section 16 of the Act by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) ACT 2000; and

(b) amend section 23 to allow certificates issued in relation to goods for export to describe goods that originate from Christmas Island or from the Cocos (Keeling) Islands (the Territories) as goods from those Territories.

Section 16 of the Act created an offence of making a false or misleading statement in declarations furnished for the purposes of the regulations. This offence was repealed and replaced by offences in the Criminal Code by the Criminal Code Amendment (Theft, Fraud. Bribery and Related Offences) Act 2000. This bill removes the reference to section 16 in subsection 11Q(5) of the Act and replaces it with references to the relevant offences provided by subsection 137.1 `False or misleading information' and subsection 137.2 `False or misleading documents' in the Criminal Code.

Section 23 is being amended as part of the Government's preparation for the extension of the Act, by regulation, to the Territories. In its current form, section 23 would require that goods exported from the Territories be certified as exports “from Australia”. However, as Australia's access to its international markets has been negotiated on the basis of its reputation for freedom from pests and diseases that exist in the rest of the world, including in the Territories, it is important that certificates issued under the Act can make a distinction between goods exported from Australia and goods exported from the Territories. Accordingly, the amendment takes into account the significant difference in the pest and disease status between the Territories and the rest of Australia by enabling certificates issued in relation to goods for export to identify whether the goods come from the Territories or from the rest of Australia.

This amendment seeks to preserve the many international trade benefits that arise from Australia's unique pest and disease status while helping to create economic opportunities for the Territories by providing exporters in the Territories with the same framework for regulating their agricultural exports as that which applies to the rest of Australia.

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MIGRATION AMENDMENT (DURATION OF DETENTION) BILL 2003

The Migration Amendment (Duration of Detention) Bill 2003 adds four new subsections to section 196 of the Migration Act 1958. These additional subsections reiterate and clarify the Parliament's intention that an unlawful non-citizen is only to be released from immigration detention in the circumstances specified in section 196.

In 1992 the Parliament enacted a series of changes to the Migration Act that introduced mandatory detention. First, changes made by the Migration Amendment Act 1992 introduced mandatory detention of unauthorised boat arrivals. The Migration Reform Act 1992, which commenced on 1 September 1994, introduced mandatory detention of all unlawful non-citizens.

The Migration Reform Act included section 196, which provides that an unlawful non-citizen must be kept in immigration detention until he or she is:

· removed from Australia;

· deported; or

· granted a visa.

Subsection 196(3) specifically states:

“to avoid doubt, subsection (1) prevents the release, even by a court, of an unlawful non-citizen from detention (otherwise than for removal or deportation) unless the non-citizen has been granted a visa.”

The intention of section 196 was to make it clear that there was to be no discretion for any person, or court to release from detention an unlawful non-citizen who is lawfully being held in immigration detention.

Mandatory detention remains an integral part of the Government's unauthorised arrivals policy. The Government needs to ensure, as a matter of public policy, that all unlawful non-citizens are detained until their status is clarified. This means that they must continue to be detained until one of three things happens, either that they are removed or deported from Australia or that they are granted a visa. It is not acceptable that any person is, or who is suspected of being, an unlawful non-citizen, is allowed out into the community until the question of their status is resolved.

Since the latter part of 2002, the Federal Court has decided that the Migration Act does not preclude the court from making interlocutory orders that persons be released from immigration detention pending the court's final determination of the person's judicial review application.

Such orders mean that a person must be released into the community until such time as the court finally determines their application. The court's final determination of the case can take anywhere between several weeks and several months. Where the person is subsequently unsuccessful, that person must be relocated, redetained and arrangements then made for their removal from Australia. This is a time consuming and costly process and can further delay removal from Australia.

I understand that there have now been some 20 persons released from immigration detention on the basis of interlocutory orders. In the case of more than half of these persons removal action had been commenced, as they are of significant character concern, and the Government believes their presence is a serious risk to the Australian community.

In its judgements, the Federal Court has indicated that if the Parliament wishes to prevent a court from ordering the interlocutory release of a person from immigration detention it must make its intentions unmistakably clear. This bill is intended to achieve this.

The bill amends the Migration Act to make it clear that, unless an unlawful non-citizen is removed from Australia, deported or granted a visa, the non-citizen must be kept in immigration detention. This applies unless a court finally determines that:

· the detention is unlawful; or

· the person is not an unlawful non-citizen.

The bill ensures that an unlawful non-citizen must be kept in immigration detention pending determination of any substantive proceedings, whether or not:

· there is a real likelihood of the person detained being removed from Australia or deported in the reasonably foreseeable future; or

· a decision to refuse to grant, to cancel or refuse to reinstate a visa may be determined to be unlawful by a court.

The bill puts beyond doubt that section 196 of the Migration Act has effect despite any other law.

I stress that the amendments contained in the bill do not affect the court's powers to finally determine the lawfulness of a person's detention, or to finally determine the lawfulness of the decision or action being challenged.

They are intended simply to clarify the existing provisions of the Act. They do no more than what the courts have said that the Parliament needs to do. That is make its intention in relation to immigration detention unmistakably clear.

The Government believes that it is in the interests of all parties that such cases are finally determined as quickly as possible.

In summary, the bill implements measures to ensure that the Parliament's original intention in relation to immigration detention is clearly spelt out and the integrity of the Act is not compromised.

I commend the bill to the Senate.

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AUSTRALIAN HUMAN RIGHTS COMMISSION LEGISLATION BILL 2003

I am pleased to introduce this bill, which will continue the Government's reform of the Human Rights and Equal Opportunity Commission to provide the Commission with a framework to undertake its future work efficiently and effectively.

The bill is the result of a detailed examination by the Government of the structure of the Commission and of a consideration of the responses to past efforts at reform.

The provisions of the bill have already been the subject of inquiry and report by the Senate Legal and Constitutional Legislation Committee.

Before introducing this bill into the House of Representatives the Government was aware of the views of stakeholders subsequently presented to the Committee.

The Government believes that the bill appropriately implements its policy regarding reform of the Commission.

However, the Government is considering the Committee's report and will respond in due course.

The bill implements the Government's 2001 election commitment to reform the Commission `to ensure that it is efficient and focused on educating the broader Australian community about human rights issues'.

These reforms will build on the substantial focus already given to human rights education by the Commission.

The protection afforded to all Australians under Commonwealth anti-discrimination laws will be fully maintained, and enhanced, under the new Australian Human Rights Commission.

The Government agreed to the name, suggested by the former President of the Commission, which is consistent with the names of other human rights institutions in our region.

The existing Commission's powers to investigate and conciliate complaints will be retained and the bill will complete the task of fully consolidating the complaint-handling functions with the President.

In order to provide a further option for managing complaint-handling workloads, the Attorney-General will be able to appoint legally qualified persons as Complaints Commissioners on a part-time basis to assist the President with these functions.

Work will be allocated to a Complaints Commissioner by the President.

The Government believes that education is the key to a society in which human rights are respected by all.

The bill provides for the re-focusing and enhancing of the Commission's functions to give greater legislative priority to education and the dissemination of information on human rights.

This supports the Commission's existing approach to protecting and promoting the human rights of all Australians by a strong focus on education.

The Commission has also suggested the use of a by-line `Human Rights—everyone's responsibility' with its name.

The incorporation of a reference to the use of the by-line into the retitled Australian Human Rights Commission Act supports the legislative refocus of the Commission's functions and reflects the common terminology by which the Commission is often referred.

A new executive structure for the Commission, with a strengthened `collegiate' approach, will assist the Commission in reaching the broad spectrum of Australians.

The bill provides for three Human Rights Commissioners to replace the existing portfolio specific commissioners.

The Human Rights Commissioners and the President will have a common responsibility to protect and promote human rights for all Australians.

These reforms take into account the possibility of new areas of Commission responsibility (such as age discrimination), the fact that human rights issues increasingly crossover the portfolio specific boundaries of the existing structure (such as issues relating to women with disabilities), and the social and economic environment that faces all levels of government and business.

In addition to the requirements for individual expertise, knowledge or experience, the bill will require that the President and the Human Rights Commissioners, as a group, have expertise in matters likely to come before the Commission.

The Government is confident that these reforms will assist the Commission to build on its already impressive reputation as a centre of knowledge and expertise.

The Commission will also retain responsibility for determining its administrative support structure.

This means that the new Commission can continue to benefit from its specialist policy units if it chooses.

The bill will also provide for the removal of certain statutory consultative mechanisms which are unnecessary.

The provision for the establishment of a Community Relations Council, to which no members have ever been appointed, will be removed.

The provision for the establishment of advisory committees, which has only been used once, will also be repealed.

The Commission will retain its power to work with and consult appropriate persons, governmental organisations and non-governmental organisations.

The bill will require the new Commission to seek the approval of the Attorney-General, as First Law Officer of the Commonwealth, before exercising its power to seek leave to intervene in court proceedings.

This will ensure that the intervention function is only exercised after the broader interests of the community have been taken into account.

This requirement is not intended to prevent court submissions that are contrary to the government's views, but rather to prevent duplication and the waste of resources and to ensure that court submissions accord with the interests of the community as a whole.

Where a federal judge is appointed to the position of President, the new Commission will not be required to seek approval from the Attorney-General before seeking leave to intervene.

In this case, the new Commission will be required to notify the Attorney-General of its intention to seek leave to intervene and its reasons for doing so.

This ensures that there are no constitutional issues arising from the appointment of a federal judge as President.

The provision for notification of interventions would apply during the term of the new President of the Commission, Justice von Doussa, who was appointed President of the Commission from 10 June 2003.

The Commission's function to assist in proceedings, with the leave of the relevant court, as amicus curiae is unchanged.

The Commission will retain its power to make recommendations to remedy or reduce loss or damage suffered by a person as a result of an act or practice inconsistent with a person's human rights or constituting discrimination.

However, this power will no longer include the power to recommend the payment of compensation.

The Government is proud that Australia has a human rights record that is among the best in the world and our national human rights institution is recognised as a leader in our region.

These reforms will ensure that the new Australian Human Rights Commission is able to continue to contribute effectively to this record in the coming years.

I commend the bill to the Senate.

Debate (on motion by Senator Mackay) adjourned.

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