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Thursday, 7 December 2006
Page: 21

Senator ELLISON (Minister for Justice and Customs) (10:23 AM) —I table an explanatory memorandum relating to the bill 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 Migration Amendment (Review Provisions) Bill 2006 amends the Migration Act 1958 to allow the Migration Review Tribunal and Refugee Review Tribunal flexibility in how they give procedural fairness to review applicants.

The Migration Act currently states that the tribunals must give the applicant particulars of adverse information ‘in the way the Tribunals consider appropriate in the circumstances’ and invite the applicant to comment on those particulars. What I mean by the expression ‘adverse information’, is information that would be the reason, or a part of the reason, for the member affirming the decision under review.

The current provisions also state that the particulars and invitation to comment must be given by one of the methods set out in the Act. These methods involve the tribunal sending a document to the applicant.

The full Federal Court and the High Court have strictly interpreted the latter to mean that the tribunals can only discharge their procedural fairness obligations by providing applicants with particulars of adverse information and the invitation to comment on it in writing.

The cumulative effect of the court decisions is creating serious operational difficulties for the tribunals, including delays in finalising decisions.

The proposed amendments seek to resolve these difficulties.

Specifically, they provide that where an applicant is at a hearing before one of the tribunals, the tribunal member will have a discretion to either (1) tell the applicant about any adverse information before it at the hearing, and invite him or her to respond, or (2) write to the applicant about the adverse information, and invite him or her to respond.

Whether they opt for the written or the oral method of providing procedural fairness, the proposed amendments will require the tribunals to do their best to ensure that the applicant understands why the adverse information being put to them is relevant to the review. They must ensure that the applicant understands the consequences of the tribunal relying on that information to affirm the decision that is under review.

If the tribunal chooses to tell the applicant at hearing about any adverse information, the member must also tell the applicant that he or she may ask for more time to respond to that information. If the applicant then asks for more time, and the tribunal considers that this request is reasonable, the tribunal must adjourn the review.

As has long been the case, interpreters will be available to applicants who need them for review proceedings so people who have difficulty with English will in no way be disadvantaged.

The tribunal’s choice as to whether they provide procedural fairness to an applicant orally or in writing will depend on what is appropriate in a particular case and with the tribunal bearing in mind the guiding principle, which is stated in the act, that it endeavour to provide a review that is fair, just, economical, informal and quick.

The bill will also provide that the tribunals are not obliged to provide an applicant with information already given by the applicant to the department, as part of the process leading to the decision under review.

The current requirement to give an applicant particulars of adverse information is subject to an exception in relation to information that has been given by the applicant for the purposes of ‘the application’.

However, the courts have strictly interpreted this exception to apply only to information provided to the tribunals, and not to information provided by the applicant to the department during the process leading to the decision under review.

The bill will insert a new exception for information given by the applicant to the department during the process leading to the decision that is under review. This exception will not extend to information that the applicant orally gave to the department, such as information provided during an interview with a departmental officer for a visa application. Such information is typically not recorded verbatim, and the tribunals will still be required to give the particulars of that information to the applicant for comment.

Since the full Federal Court and the High Court decisions I referred to earlier, the tribunal has operated under a very technical application of the law. The tribunals advise that this is seriously hampering their efficient operation and is causing unnecessary delays in finalising cases.

For example, take information such as passport details and details of a person’s movements—information that is frequently before the tribunals. If the tribunal was to rely on such information to affirm a decision, it must put particulars of it to the applicant in writing for comment before making the decision, even if the tribunal had orally put that to the applicant at the hearing, and the applicant had an opportunity to comment on it at the hearing and so had, in substance and effect, been given procedural fairness.

The bill will also insert new provisions into the act, expressly requiring the tribunals, when applying the requirements and procedures set out in relevant divisions of the act (which are an exhaustive statement of the requirements of the natural justice rule), to act in a way that is fair and just.

These amendments will uphold the fundamental right of all review applicants to receive procedural fairness during review proceedings, while at the same time giving the tribunals flexibility in how they meet their procedural fairness obligations.

These amendments will allow the tribunals to conduct reviews more efficiently, with less unnecessary process and paperwork. This will help the Refugee Review Tribunal to comply with its statutory 90-day time limit for finalising decisions. It will also lead, in many cases, to the faster completion of many cases, which will benefit review applicants who no doubt experience stress and uncertainty in waiting to hear of a decision.

I commend the bill to the chamber.

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