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Wednesday, 11 May 2005
Page: 133


Senator COONAN (Minister for Communications, Information Technology and the Arts) (6:51 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—

BORDER PROTECTION LEGISLATION AMENDMENT (DETERRENCE OF ILLEGAL FOREIGN FISHING) BILL 2005

Illegal fishing in Australia’s northern waters is a growing problem. This is demonstrated by the record number of illegal foreign fishing vessels apprehended in northern Australian waters—138 vessels in 2003 and a further 161 vessels in 2004. To date in 2005, over 18 suspected illegal foreign fishing vessels have been apprehended and detained, demonstrating the Australian Government’s determination to maintain the integrity of our borders and the sustainability of our fish stocks.

To manage the increasing number of illegal foreign fishers in Australian waters, a stronger regime is needed. In recognition of this, by the end of 2005 the Australian Government will implement three significant new initiatives to boost our efforts against illegal fishing in our northern waters. Firstly, additional resources will be provided to the Australian Fisheries Management Authority (AFMA) to assist in the apprehension and prosecution of illegal foreign fishers. Secondly, the processing and detention arrangements for suspected illegal foreign fishers apprehended in Australia’s northern waters will be clarified and strengthened. Lastly, additional resources will be provided to the Australian Quarantine and Inspection Service (AQIS) to enhance its ability to monitor and protect Australia from potential quarantine risks posed by apprehended vessels.

It is vital that these new initiatives are underpinned by an effective and clear legislative framework. This will enable the Australian Government to implement tougher measures and to send a strong message to illegal foreign fishers. The Government is serious about protecting Australia’s fisheries resources, and serious about apprehending those who seek to illegally plunder those resources.

The Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005 will amend the Fisheries Management Act 1991, Torres Strait Fisheries Act 1984 and the Migration Act 1958 to ensure the effectiveness of Australia’s border protection regime is not compromised by any inconsistencies between the relevant legislation. This bill is part of a whole of government approach to prevent illegal fishing activity in Australian waters and to improve Australia’s general border protection arrangements. The proposed amendments to the Fisheries Management Act and the Torres Strait Fisheries Act will apply to all areas of Australia’s maritime jurisdiction.

The majority of this bill concerns the implementation of a detention regime that is broadly consistent between the Torres Strait Fisheries Act and the Fisheries Management Act. The proposed amendments will ensure that there are appropriate powers relating to the detention and investigation of suspected illegal foreign fishers under fisheries legislation. It will also ensure consistency of detention arrangements between the fisheries and immigration portfolios, providing for a seamless transition between fisheries and immigration detention for illegal foreign fishers in Australia.

The first purpose of the bill is to amend the Torres Strait Fisheries Act in order to bring it in line with the Fisheries Management Act. These amendments are necessary as the patterns of illegal foreign fishing in our northern waters are clearly increasing. Illegal fishers are expanding their operations and are venturing further east towards and within the Torres Strait Protected Zone and further west around the south-west coast of Western Australia. It is important to both Australia and to Papua New Guinea (PNG) that a strong stance is taken against the illegal foreign fishers that pillage the natural resources of the Torres Strait. It is also necessary to take action against illegal fishers in the Protected Zone, in order to fulfil our international obligations under the Treaty between Australia and the Independent State of Papua New Guinea concerning Sovereignty and Maritime Boundaries in the area between the two Countries, including the area known as Torres Strait, and Related Matters, otherwise known as the Torres Strait Treaty. The Torres Strait Treaty established the Torres Strait Protected Zone as a zone of joint fisheries jurisdiction. These amendments are essential to protect the precious resources in the Torres Strait.

The Torres Strait Fisheries Act requires updating to allow for the adequate detention of persons involved in illegal foreign fishing offences. Currently, illegal foreign fishers intercepted in the Protected Zone are detained under the Migration Act as unlawful non citizens suspected of an offence and can be held in immigration detention pending the completion of any prosecution. However, this bill will enable fisheries officers to exercise a power of fisheries detention for the specific purpose of investigating foreign fishing offences under the Torres Strait Fisheries Act. This provision will make the Torres Strait Fisheries Act broadly consistent with the Fisheries Management Act and ensure that adequate time is allowed to investigate suspected offences. These provisions and all amendments to the Torres Strait Fisheries Act are consistent with the Torres Strait Treaty between Australia and PNG.

The second purpose of the bill is to create a fisheries detention regime that is broadly consistent with current immigration detention arrangements. Currently, under the Fisheries Management Act, foreign fishers are detained by fisheries officers if they are suspected of being involved in an illegal fishing activity. An enforcement visa, under the Migration Act, is then automatically granted to such a person, which enables the fisheries officers to bring them into the migration zone for the purposes of investigating the suspected offence. By creating an enforcement visa regime to apply to the Torres Strait Fisheries Act, greater consistency is achieved in the management of fisheries offences committed throughout all Australian waters.

Upon the expiration of fisheries detention, the enforcement visa automatically ceases and the person assumes the status of an unlawful non-citizen and is detained under the Migration Act. Under the Migration Act, the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) is required to remove unlawful non-citizens as soon as reasonably practicable. In the case of illegal foreign fishers, such persons would normally be repatriated within a short period of time after their apprehension and prosecution.

In order to facilitate the seamless transfer of detainees from fisheries to immigration detention, this bill will create a new class of officers, appointed by the Minister, who may exercise limited powers relating to fisheries detention. This will allow employees and contractors of both AFMA and DIMIA to exercise detention powers under fisheries legislation. DIMIA currently employs contractors to perform immigration detention functions under the Migration Act. The new regime will allow for employees of such contractors to also perform fisheries detention functions under fisheries legislation. This amendment is necessary as illegal foreign fishers will be held in a single facility for some part of their detention in Australia, regardless of whether they are held in fisheries or immigration detention.

This bill also amends the Fisheries Management Act and the Torres Strait Fisheries Act to enable fisheries officers to exercise the same powers in relation to searches and screening of people to those that currently exist for people detained as unlawful non-citizens in an immigration detention facility. These powers include the capacity to conduct searches, strip searches and screening of persons. It is necessary to have a uniform regime for persons detained under all three Acts. Since the transition from fisheries to immigration detention will be automatic, the applicable powers must be as similar as possible. Consistent powers between the three Acts will avoid administrative complexities where one facility will accommodate a combination of persons held under the detention powers of three different Acts. These powers will provide the necessary protection to officers and other detainees, as it will allow them to remove any weapons that the person may be concealing.

This bill also gives officers the capacity to collect personal identity information from detainees, for the purpose of identifying repeat offenders and factoring this into their prosecution. This proposed power is essential to ensure that fisheries officers have the capacity to adequately identify recidivists. The bill will also allow this information to be passed to agencies that will become responsible for the detention, welfare and repatriation of the detainees. These amendments are broadly consistent with provisions in the Migration Act for the taking of biometric identifiers from immigration detainees.

The proposed new powers to search, screen and collect personal identification information will only apply to persons detained for the purpose of investigating foreign fishing offences and to screen their visitors. These procedures are also subject to strict controls, which are consistent with the Migration Act. These measures are important and necessary for modern fisheries legislation, which must cope with high levels of illegal activity and form part of a whole of government approach to strong border security. The bill provides for appropriate safeguards in the exercise of these proposed powers.

These new powers will only be exercised by officers who are specifically authorised to do so. An important part of the authorisation process, will see any prospective officers receive comprehensive training in the effective and responsible use of these powers under the relevant Acts. Detainees will at all times be treated with dignity and their welfare will remain an important consideration when exercising any powers under this legislation.

The third purpose of the bill is to allow officers to safely exercise their duties and perform their border protection functions. Officers and other persons exercising powers under fisheries legislation often have to operate in dangerous conditions. The Australian government has become increasingly concerned about the open displays of hostility that have been made towards fisheries officers by some illegal foreign fishers and is committed to ensuring that our legislative regime provides for their safety and protection.

The bill will amend the Fisheries Management Act and the Torres Strait Fisheries Act to broaden the offence of obstructing an officer to include other persons in the exercise or performance of any power, authority, function or duty under the Act. This provision will provide a penalty and some assurance to those performing, or assisting officers in, their duties. This would include detention officers, translators, medical staff, AFMA officials and others that are involved in the administration of fisheries legislation.

This bill will also give fisheries officers powers to search people on foreign boats suspected of committing fishing offences, in order to determine whether any evidence or dangerous objects are being held or concealed by the person. Enabling officers to examine and take possession of any items which may constitute evidence will prevent the possibility of people concealing evidence or throwing it overboard, before they are detained. It will further ensure that illegal fishers are dealt with appropriately under the fisheries legislation. These provisions will also enhance the safety of officers and other detainees once these people are detained, by allowing the confiscation of weapons or other dangerous objects.

This bill will also insert a new provision into the Fisheries Management Act and the Torres Strait Fisheries Act to prevent certain legal actions against officers, those assisting officers, and the Commonwealth, in cases where people are on vessels that are subject to directions by an officer. This is to put beyond doubt that any restraint on these people’s liberty is lawful as it is a lawful direction by the officer to move to a place in Australia, where suspected fishing offences can be properly investigated.

The final amendments proposed in this bill involve the introduction of forfeiture provisions in the Torres Strait Fisheries Act. This bill introduces automatic forfeiture provisions, which are similar to those already contained in the Fisheries Management Act. This will allow for the automatic forfeiture of boats and other things used in foreign fishing offences (including specific provisions that detail how these things may be dealt with). At present, boats, gear and catch seized under the Torres Strait Fisheries Act can only be forfeited by a court. This amendment will allow patrol boats to intercept and seize gear and catch from illegal vessels in the Protected Zone. This will provide an additional, timely and cost effective deterrent to illegal fishing activity.

The Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005 will provide for a consistent and seamless detention regime, from the time an illegal foreign fisher is apprehended within any part of Australian waters, to the time that they are passed to immigration detention and are awaiting repatriation arrangements. In addition, the bill will provide for the due safety and welfare of officers in the exercise of their duties and the detainees that are under their care.

It is vital that Australia maintains a robust but fair apprehension and detention policy for suspected illegal foreign fishers. This bill is an essential step in protecting Australia’s natural resources and maintaining the integrity of our borders.


TELECOMMUNICATIONS LEGISLATION AMENDMENT (REGULAR REVIEWS AND OTHER MEASURES) BILL 2005

The Telecommunications Legislation Amendment (Regular Reviews and Other Measures) Bill 2005 amends the Telecommunications (Consumer Protection and Service Standards) Act 1999 to insert provisions for a framework for future, regular and independent reviews of the adequacy of regional telecommunications services. The bill also amends the Telecommunications Act 1997 to enable the Minister for Communications, Information Technology and the Arts to delegate administrative decision making powers to the Australian Communications Authority in respect of any licence condition placed on Telstra to maintain a local presence in regional, rural and remote areas and makes a consequential amendment to the Telstra Corporation Act 1991.

This legislation is part of a package that delivers on the Government’s commitments to implement its response to recommendations of the Regional Telecommunications Inquiry as a matter of priority. The measures contained in this bill are directed at ‘future proofing’ regional telecommunications so that:

  • service quality is maintained into the future;
  • when future services start being provided, rural Australia will not miss out or face unreasonable delays; and
  • other benefits that Telstra currently provides as a result of its regional presence do not diminish.

The provisions in this bill were previously linked with the Telstra sale legislation. However, these provisions have now been de-linked to fulfil the Government’s commitment to lock-in its response to Regional Telecommunications Inquiry recommendations as a matter of priority and to support its commitment not to progress any further sale of Telstra until arrangements are in place to ensure that Australians have access to adequate telecommunications services.

The bill concerns Regional Telecommunications Inquiry recommendations relating to:

  • regular independent reviews into the adequacy of telecommunications in regional, rural and remote parts of Australia; and
  • the need for Telstra to maintain a local presence in regional, rural and remote parts of Australia.

Though forming part of the Government’s ‘future proofing’ package for regional telecommunications, introduction of this bill will not preclude the Government from taking further action as warranted to safeguard the ongoing needs of regional Australia.

Changes in Telstra’s ownership status will not affect the Government’s ability to protect the interests of consumers, competitors and the public generally. The regional protection measures introduced in this bill, along with general consumer regulatory safeguards such as the universal service obligation, the customer service guarantee, price controls, the network reliability framework, and the Telecommunications Industry Ombudsman, will be maintained into the future.

The bill provides for establishment of a Regional Telecommunications Independent Review Committee to review the adequacy of telecommunications services in regional, rural and remote parts of Australia on a regular basis. The key objectives of these provisions are firstly to provide a high degree of certainty for regional, rural and remote communities that the review process will result in improved, equitable access to important telecommunications services and, secondly, that the reviews are independent from the executive government of the day.

To provide a high degree of ongoing certainty to the public, the reviews must occur at a minimum of five yearly intervals, there must be public consultation and the Government of the day must publicly respond to recommendations made by the Committee.

To assure independence from Government, the bill provides safeguards regarding the appointment of the Chair of the Committee and other Committee members and in relation to conflicts of interest that may arise.

The Minister is currently developing a licence condition and expects to make an announcement on this shortly. However, to provide additional flexibility to the Government about how the local presence arrangements will be administered into the future, the bill also clarifies that, if a licence condition is imposed on Telstra to maintain a local presence in regional, rural or remote parts of Australia, the Minister may delegate the power to make decisions of an administrative nature to the Australian Communications Authority.

The actual detail of Telstra’s local presence obligations will be spelt out in a licence condition currently being developed. The licence condition will provide a high degree of certainty and reassurance:

  • for regional, rural and remote communities—that an effective Telstra local presence will be maintained; and
  • for Telstra—that it will maintain the right to manage its regional operations autonomously and in its commercial interests.

MIGRATION LITIGATION REFORM BILL 2005

This bill amends the Migration Act 1958 and other related legislation to improve the overall efficiency of migration litigation.

The bill builds on the substantial progress already made by the Government in implementing a comprehensive package of migration litigation reforms.

In May 2004, the Government provided an extra $34.2 million over four years in the 2004-05 Budget for the appointment of eight additional federal magistrates. These additional magistrates, who have all taken up their appointments, are enabling the Federal Magistrates Court to handle the migration workload more efficiently.

The Government has been concerned about the high volume of migration cases, unmeritorious litigation and delays which are impacting on the federal courts and the migration system as a whole.

In recent years, the Government has won over 90 per cent of all migration cases decided at hearing. Of course the Government recognises that not all unsuccessful cases are unmeritorious. However, the very large proportion of unsuccessful migration cases is a strong indicator that some unsuccessful visa applicants are using judicial review inappropriately to prolong their stay in Australia.

The measures in the bill have been drawn from recommendations by the Migration Litigation Review, which was established by the Government to inquire into more efficient management of migration cases. Other measures stem from recommendations in my Department’s Federal Civil Justice System Strategy Paper published in December 2003.

A key feature of the bill is to enhance the role of the Federal Magistrates Court in migration cases. The Court was established to deal with a high volume of shorter and less complex matters making it a suitable forum for most migration cases.

It is commonsense that efficiency is to be gained by directing migration cases to the Federal Magistrates Court. To that end, the bill limits the original jurisdiction of the Federal Court in migration cases.

The bill provides that the Federal Magistrates Court has the same jurisdiction under the Migration Act as the High Court under paragraph 75(v) of the Constitution.

Identical grounds for relief in the High Court and the Federal Magistrates Court will assist the courts to quickly identify applicants who are seeking to re-litigate matters that have already been the subject of judicial consideration. A complementary reform in the bill requires the disclosure by applicants of any prior judicial review applications in relation to the same migration decision.

Migration cases filed in the High Court’s original jurisdiction and remitted will be directed to the Federal Magistrates Court. Further, the bill expressly provides that the High Court may remit on the papers without a hearing. This is an appropriate efficiency for the handling of all matters filed in the High Court. The High Court is the apex of our judicial system. It should not be burdened with cases that are more appropriately handled by a lower court.

The Federal Court will retain appellate migration jurisdiction. The bill will facilitate the current practice of single judges hearing most migration appeals from the Federal Magistrates Court except in circumstances where it is appropriate for the appeal to be heard by a Full Court.

The bill also includes amendments to ensure that procedural provisions relating to judicial review in Parts 8 and 8A of the Migration Act apply to all migration decisions. These amendments are necessary following the High Court’s decision in Plaintiff S157 v Commonwealth. In S157, the High Court upheld the constitutionality of the privative clause in the Migration Act but the decision meant that time limits ceased to apply in many migration cases. The bill reinstates the original intended operation of these procedural provisions.

More than one-third of all applications currently seeking judicial review of migration decisions are made outside the 28 day time limit specified in the Migration Act. Some applications are being lodged up to six years after the original visa decision.

The bill provides uniform extendable time limits in the High Court, Federal Court and Federal Magistrates Court. The time limit measures provide a balance between giving applicants opportunity to seek judicial review of migration decisions and ensuring timely handling of these applications.

The bill also strengthens the powers of the courts to deal with unmeritorious matters, by broadening the grounds on which federal courts can summarily dispose of unsustainable cases. It is appropriate that this provision is of general application. It will be a useful addition to the courts’ powers in dealing with any unsustainable case.

Having regard to the high rate of unsuccessful migration cases, the Government is also concerned to ensure lawyers and other advisers on migration matters do not promote the prosecution of unmeritorious claims.

It is grossly irresponsible to encourage the institution of unmeritorious cases as a means simply to prolong an unsuccessful visa applicant’s stay in Australia.

It is equally irresponsible for advisers to frustrate the system by lodging mass-produced applications without considering the actual circumstances of each case.

The measures in this bill seek to deter such conduct and require lawyers and others who provide advice on bringing migration litigation to do so carefully and having regard to the chances of the claim succeeding. Before lawyers file documents in migration cases, they will be required to certify that the application has merit.

Lawyers acting ethically and in accordance with their professional duties have no need for concern. However, representatives who encourage the institution and continuation of proceedings which have no reasonable prospect of success run the risk of a costs order being made personally against them if they did not give proper consideration to such prospects or acted for an ulterior purpose.

The bill also includes amendments to the arrangements for the administration of the Federal Magistrates Court to reflect its growth from sixteen magistrates in 2000 to thirty-one at present, including the eight new magistrates funded in the 2004-05 Budget. The Chief Federal Magistrate will be responsible for the administration of the Court. This brings the arrangements for the administrative management of the Court in line with the arrangements in the Federal Court and Family Court of Australia.

All of the measures in the bill, taken together, combined with the additional resources that the Government has provided to the Federal Magistrates Court, will assist the courts in managing their workloads and will improve access for all cases with merit.

I commend this bill.

Debate (on motion by Senator Coonan) adjourned.

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

Ordered that the resumption of the debate on the Border Protection Legislation Amendment (Deterrence of Illegal Foreign Fishing) Bill 2005 be an order of the day for a later hour.