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Thursday, 4 March 2004
Page: 20789

Senator IAN CAMPBELL (Minister for Local Government, Territories and Roads) (9:54 AM) —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—


In July 2003, the Government announced that as a result of bilateral discussions, we would work with the US to put in place arrangements to transfer Australian citizens convicted by a military commission to Australia for the purpose of serving any penal sentence in Australia in accordance with Australian and US law.

The Government has developed the International Transfer of Prisoners Amendment Bill 2004 to meet this commitment.

The bill is facilitative only.

At this stage, no Australian has been convicted by a military commission.

We know that there are two Australians currently being detained by US authorities in Guantanamo Bay, Cuba and that one of those men, David Hicks, was included in the 3 July 2003 list of the six detainees who President Bush has declared eligible for trial at this stage.

At this time, no charges have been laid against Mr Hicks.

Although Mr Habib has not yet been listed as eligible for trial, the Government understands that US authorities are expediting consideration of his case.

This bill provides a statutory basis for returning Mr Hicks and Mr Habib to Australia in the event that they are charged, convicted and sentenced to a period of imprisonment.

It is a preparatory step to ensure that both men can, if the circumstances arise, benefit from the humanitarian nature of the international prisoner transfer scheme.

The amendments will increase the flexibility and application of the international prisoner transfer scheme as it applies in Australia, allowing the scheme to apply to a broader range of areas.

This will allow the Act to apply to a larger number of Australian citizens or persons with community links to Australia who are imprisoned in foreign countries.

The amendments will also allow for a larger number of foreign nationals imprisoned in Australia to return to their home countries, thereby providing an economic benefit to Australia.

For example, Australia has been discussing with Hong Kong and China the possibility of entering into an agreement for transfer of prisoners from Hong Kong for a number of years.

However, the unusual status of Hong Kong, like Guantanamo Bay, precludes the application of the International Transfer of Prisoners Act 1997 to that area.

And, with the breakdown of colonial regimes around the world, it is increasingly likely that we will be confronted with other regions of unusual status with whom we may be interested in finalising a prisoner exchange agreement.

To facilitate the transfer of prisoners back to Australia from Guantanamo Bay and areas with an unusual status, such as Hong Kong, it is necessary to amend the Act.

The first amendment, when taken with the third and fourth amendments, address an anomaly whereby a region or area that is not a sovereign country cannot be declared a transfer country for the purposes of the ITP Act.

The second amendment will clarify the meaning of the terms `court' or `tribunal' under the ITP Act to clarify a possible ambiguity, in particular whether a military commission can be considered a “court” or tribunal” for the purposes of the ITP Act.

This will enable the ITP Act to apply to a sentence of imprisonment imposed by a US military commission.

The third amendment will extend the list of areas that are deemed part of a transfer country for the purposes of the ITP Act.

This gives recognition to the fact that a transfer country may consist of a range of different regions which may not be considered a part of that country because, for example, it is not a part of the landmass that constitutes the mainland of that country.

Increasing the flexibility and application of the ITP Act will provide increased community benefits.

It will reduce the impact on Australian families who have family members imprisoned in areas that the Act currently does not apply to.

It will also reduce the impact on Australian citizens imprisoned overseas who may suffer due to the cultural and language differences they experience in a foreign country.

Returning such prisoners to Australia increases their chances of rehabilitation, not only by enabling the prisoner to take part in prison programs and services that they may not have accessible to them in a foreign country, but also by enabling prisoners to have more contact with their family.



No government in this nation's history has done more to protect the Great Barrier Reef than the Howard Government.

We have done so, principally, through three far-reaching and ambitious actions.

First, we passed the Environment Protection and Biodiversity Conservation Act in 1999—opposed by members opposite—which gave this country its first, national, environment-specific legislation in our history. One of the significant impacts of the EPBC Act has been to give the Australian Government unprecedented powers to protect the Great Barrier Reef.

I note that in the Labor Party's recently unveiled environment platform that it continues to fall into factual error in claiming that it must protect the Great Barrier Reef from mining, and from mineral exploration.

There are two indisputable facts which demonstrate that the premise of the claim is flawed—pointless—redundant.

The first is that the Great Barrier Reef Marine Park Act 1975 explicitly bans mining, and mineral exploration, in the Park.

The second equally obvious and indisputable fact that Labor cannot seem to absorb is that the EPBC Act protects the Park from impacts from mining and exploration outside the park to the limit of the Exclusive Economic Zone.

Any proposed activity within the EEZ that has the potential to impact negatively on the World Heritage values of the Great Barrier Reef, or that otherwise awakes the provisions of the EPBC Act, is captured by this Australian law, which provides a quantum advance in the protection of the Great Barrier Reef from the sorts of mineral exploration in the region that was actively promoted by Labor when it was last in control of this parliament.

The second massive contribution to the protection of the Great Barrier Reef by the Howard Government has been the development of a new zoning plan for the Great Barrier Reef Marine Park that will, if it is not disallowed by this parliament, ensure that one third of the reef—a six fold increase—will be protected in so-called “no-take zones”—zones where no extractive activity can occur.

This is a plan that has been hailed internationally.

It is, undoubtedly, the most comprehensive effort to protect and preserve the environmental and economic values of a coral reef system, and its associated ecosystems, anywhere in the world. This Government is a world leader in this regard.

This Representative Areas Program for the Great Barrier Reef Marine Park has the intent of providing the Great Barrier Reef with such a level of protection of its unique and wondrous biodiversity as to give it a high level of resilience in the face of the threats that confront it.

The better the overall health of the reef, the better it will be able to survive those pressures.

The third great advance that this Government has made in terms of protecting the biodiversity, and thus the resilience, of this national icon, is the development in concert with the Queensland Government of the Reef Water Quality Protection Plan.

The intent of the Plan is to first halt, and then ultimately to repair, the decline in water quality in the Great Barrier Reef lagoon.

The aim is to achieve a halt in the decline in water quality in ten years and this is an action that is completely synergistic with the Representative Areas Program, and the EPBC legislation.

Together these actions comprise a suite of measures to protect the reef that are interconnected and that are singly, and collectively, unmatched.

One of the great beneficiaries of this suite of actions is the tourism industry.

Tourism is, by far, the largest single industry associated with the Great Barrier Reef and the Great Barrier Reef Marine Park.

Fishing is important. In the catchments of the Great Barrier Reef mining, and agriculture, are extremely important but, when it comes to the reef and the park, and many of the communities adjacent to them, tourism is, far and away, the biggest industry.

And that is understandable. The Great Barrier Reef is not only a great regional, State, and national tourist attraction—it is a premier destination of international tourists.

What those tourists come to see is pristine reef. The Great Barrier reef has more pristine reef than any other coral reef system on the planet—and we have an obligation to maintain the quality of the reef as best as we possibly can. That is what this government is doing—more comprehensively than any other in the history of our country.

And that is in the interests of biodiversity for its own sake. It is in the interest of natural beauty for its own sake, and it is most certainly in the interest of the tourism industry that the Productivity Commission recently estimated had an annual value well in excess of $4 billion.

That introduction, to the significance of the tourism industry, brings me to the bill.

The Environmental Management Charge (“the charge”) was introduced in 1993 as a charge on operators using the Great Barrier Reef Marine Park (“the Marine Park”) to contribute financially to the management of the Marine Park. Currently the maximum charge imposed is $4.50 per visitor.

The introduction of the charge provided the Great Barrier Reef Marine Park Authority (“GBRMPA”) with revenue to apply to the management of the Marine Park. Monies collected from the charge have been applied to research and management of the Marine Park to ensure that it is able to manage the increasing pressures caused by tourism, coastal development, mariculture, shipping, fishing, climate change, and the like.

Under the current arrangements, the permission holder or tour operator has legal liability to pay the charge to the GBRMPA. The charge is paid by the tour operator based on the number of visitors participating in excursions each day, and is submitted to the GBRMPA at the end of each quarter.

However, since the introduction of the Goods and Services Tax (“GST”) in 2000, there has been confusion amongst tour operators operating in the Marine Park as to whether or not the GST is applicable to the charge.

The charge is listed in the Treasurer's determination pursuant to section 81-5 of the A New Tax System (Goods and Services Tax) Act 1999; the effect of which is that payments of the charge made to the GBRMPA directly by the tour operator are not subject to the GST. However, when the tour operator passes on the charge to the visitor, it is treated as one of many input costs of the tour operator and the GST applies to the full price of the services provided.

These amendments that I am introducing today are aimed at dispelling that confusion by restructuring the method of payment and collection of the charge. These amendments will place the legal liability for payment of the charge on the visitor, and not the tour operator. As the Treasurer's Determination pursuant to section 81-5 of the A New Tax System (Goods and Services Tax) Act 1999 operates to ensure that the payment of the charge is not taken to be the provision of consideration, the GST will not be applicable to the charge paid by the visitor. The tour operator will then collect the charge paid by the visitor and remit that money to the Commonwealth through the GBRMPA.

Given the amount of public money involved, the bill creates a new offence if the tour operator does not submit the money collected from the visitor.

In addition, the Great Barrier Reef Marine Park Act 1975 already contains provisions allowing an inspector to search vessels, aircraft or premises for the purposes of ascertaining a person's liability to charge, and allows an inspector to apply for a search warrant for the same. The bill will increase the scope of those powers in order to allow inspectors to ascertain that a person has collected the correct amount of the charge from the visitor and to ensure that all visitors have paid the charge.

These amendments clarify the situation regarding the EMC and GST payments. This will provide greater certainty for the tourism operators who depend on the Reef and provide significant employment and economic benefits.

It enhances the list of actions being undertaken by this government to ensure fair and reasonable access to a well protected natural and economic asset.



The Migration Amendment (Duration Of Detention) Bill 2004 adds a new subsection to section 196 of the Migration Act 1958.

The effect is to make unmistakably clear the parliament's intention that an unlawful non-citizen is only to be released from immigration detention in the circumstances specified in section 196—unless a court finally determines that the detention is unlawful or the person is not an unlawful non-citizen.

The bill substantially mirrors the Migration Amendment (Duration Of Detention) Bill 2003 in its original form. The 2003 bill was ultimately passed with amendments that only prevented the courts ordering the interlocutory release of persons of character concern.

During the house's consideration of the Senate's amendments, the then Minister for Immigration and Multicultural and Indigenous Affairs indicated that the government accepted the amendments as an interim measure only. The government's priority was to protect the Australian community against the possibility of people of character concern being released from detention, with possible tragic consequences.

In accepting the limited scope of the bill, however, Mr Ruddock made it clear that the government would be introducing a new bill to cover broader concerns it has on interlocutory release of all persons from immigration detention before final resolution of their court proceedings—this is that bill.

This bill is an important measure in upholding the principle of mandatory detention for all unlawful non-citizens under the Migration Act.

In 1992, the parliament enacted a series of changes to the migration act to introduce the policy of mandatory detention. First, 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 believes that it is necessary 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 they are removed or deported from Australia or granted a visa.

It is not acceptable that any person who is, or who is suspected of being, an unlawful non-citizen, is allowed into the community until the question of their status is resolved.

This policy sends a strong deterrence message to people-smugglers—that Australia's regularised immigration processes will not be circumvented.

Despite the clear intent of section 196, there has been a trend by the federal court to order the interlocutory release of persons in immigration detention under section 23 of the Federal Court of Australia Act 1976.

An “interlocutory order” is an order made during proceedings prior to the court's final determination of the substantive matter. Where such an order is made, a person must be released into the community until such time as the court finally determines their application.

In the case of VFAD of 2002, the full Federal Court held that:

“section 196(3) is silent as to the power of this court to grant interlocutory release in circumstances where a person in detention claims not to be an unlawful non-citizen”

Further, the court did not accept that section 196(3) by implication denied its power to order the interlocutory release of persons in immigration detention.

The court was also of the opinion that:

“Parliament has not made `unmistakably clear its intention to abrogate the power of this court to protect a `fundamental freedom' by ordering the release......on an interlocutory basis, of persons in detention.........”.

This bill makes parliament's intention “unmistakably clear”.

The bill repeals subsections 196(4) and (4a) which were introduced in 2003 to prevent the interlocutory release of a specific class of persons into the community—that is, people of character concern. The repealed sections are substituted instead by a new subsection 196(4) that has wider application to cover all persons in immigration detention. Sections 196(1) and (3) remain unchanged.

The new subsection makes it explicitly 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.

I stress that the amendments do not affect the court's powers to finally determine the lawfulness of a person's detention, or to 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 `unmistakeably clear'.

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

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.

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 mandatory detention provisions of the act are not compromised.

I commend the bill to the chamber.

Ordered that further consideration of these bills be adjourned to the first day of the next period of sittings, in accordance with standing order 111.

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