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Wednesday, 4 February 2009
Page: 258


Senator HANSON-YOUNG (12:35 PM) —The Migration Legislation Amendment Bill (No. 2) 2008 [2009] is a welcome move to clarify and enhance judicial provisions relating to the merits and judicial review of migration decisions. Judicial review has been an issue of great concern for the Greens. We are particularly pleased to see the government move to ensure effective time limits for judicial review of migration decisions reinstated, effectively allowing for the courts to extend the time frame where they consider it necessary in the interests of justice and of course administration. Despite our overall support for this bill, we have some ongoing concerns about the proposed increase in the length of time unsuccessful applicants have to lodge an application for judicial review and, more concerningly, the proposal to remove the right of unsuccessful applicants to appeal decisions regarding extension of time to a superior court.

Firstly, I will address the issue of the time frames. Currently, an application for judicial review must be lodged within 28 days of the actual notification of that decision. The relevant court may extend the initial 28-day period by up to 56 days if an application for such an extension is made within the 84 days of the actual notification of the decision and the court is satisfied that it is in the interests of the administration of justice to grant that extension. While in theory this amendment seems logical, on closer inspection there seems to be a danger that the new provisions may not sufficiently safeguard against unfairness to applicants who experience delays or mistakes in being notified of the migration decision. Under this proposed new provision, time would be running as soon as the decision was made and any error or delay in providing notification could diminish or completely use up the amount of time available to make an application.

Although these circumstances would most probably be sufficient grounds to apply for an extension of time, we are concerned that the onus of doing so would be on the applicant alone, requiring an application in writing setting out why the extension was in the interests of the administration of justice. This appears to impose an unreasonable burden upon applicants who may already suffer considerable disadvantage—including language barriers and limited financial means—in accessing the legal system and may diminish their practical ability to obtain a fair hearing. Accordingly, I would like the minister to outline how the proposed amendments to sections 477, 477A and 486A will safeguard against any potential disadvantages that could arise if these amendments were to proceed.

The second issue I would like to raise deals with schedule 3 of the bill. Essentially, schedule 3 removes the right to appeal in a superior court in respect of a decision of a lower court relating to the extension of time given to lodge an application for judicial review. The explanatory memorandum notes that the amendments are being made to ‘discourage unsuccessful visa applicants from taking advantage of the delays caused by litigation to prolong their stay in Australia’. Although I understand the contention of the Minister for Immigration and Citizenship that appeals of such decisions may, in some circumstances, be used as a delaying tactic or as a burden on court resources, these factors should not justify unreasonable restrictions upon fundamental rights. The rights of applicants to obtain a fair trial and access to the legal system must be protected. While I see the minister’s point, it is a concern that we are suggesting taking away people’s rights just because some people do not play fairly.

Although the proposed amendments were not contained in the  Migration Legislation Amendment Bill (No. 1) 2008, the government has not indicated what has changed between the drafting of the two bills to necessitate the imposition of the limitation nor has it provided detailed reasons as to why this measure is needed other than that it will strengthen and enhance the new time limits, it may help to prevent applicants from making weak or vexatious appeals to deliberately delay their removal and it may seek to encourage applicants to seek timely resolution of their cases.

Schedule 3 as it stands is unacceptable to the Greens and we will not be supporting it. Judicial discretion should instead be exercised to allow review of orders in respect of an extension of time in appropriate cases. I ask the minister to outline how this amendment will not diminish a person’s fundamental right to access the legal system. Putting aside the small handful of cases as shown in the statistics of people who do currently take advantage of the processes, we need to ensure that we are not undermining the rights of those who are more vulnerable and disadvantaged.

The Greens support the overall intent of this bill, and I stress that. There are some good parts in this bill and overall we do support the intent, but we believe that the Migration Act as a whole needs to be amended to immediately implement the many principles announced by the Minister for Immigration and Citizenship on 29 July 2008, as well as to immediately implement judicial review for detention decisions. We want to give the courts the ability to review decisions and to make judgements in relation to immigration. We need a judicial process for looking at decisions made around detention.

While I understand that the bill before us today deals specifically with judicial review of migration decisions, it is important to note the findings in the Australian Human Rights Commission annual report into immigration detention which highlighted that asylum seekers, including children, continue to be held indefinitely, despite assurances by the government that detention is only being used as a last resort and for the shortest time possible.

Considering the bill aims to extend the judicial review time frames for applicants who have already received a tribunal decision on their visa applications—some of whom would still be in detention—stipulating reasonable time frames for people to contest their detention should also be an obvious inclusion in this overall package. As I outlined in my speech on the Joint Standing Committee on Migration report into immigration detention last year, we need to urgently ensure that the merit of detention decisions is subject to independent oversight without indicating a view as to whether that should be available as a right or should occur as a matter of course. Their intention did not suggest that they would have considered it reasonable to preclude merits and judicial review for 12 months—something I would like the minister to respond to today.

The Greens will therefore move a second reading amendment calling on the government to immediately put forward amendments to the Migration Act to implement the principles announced by the minister last year and to ensure that a person cannot be kept in immigration detention for more than 30 days unless a court makes an order deeming it necessary to detain a person on a specified ground and there are no effective alternatives to detain that person. I now move:

At the end of the motion, add:

                  "but the Senate calls on the government to immediately put forward amendments to the Migration Act:

              (a)    to implement in legislation the principles relating to immigration detention announced by the Minister for Immigration and Citizenship on 29 July 2008, in particular the following:

                    (i)    detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of detention, including the appropriateness of both the accommodation and the services provided, would be subject to regular review,

                   (ii)    detention in immigration detention centres is only to be used as a last resort and for the shortest practicable time,

                  (iii)    people in detention will be treated fairly and reasonably within the law,

                  (iv)    conditions of detention will ensure the inherent dignity of the human person; and

              (b)    to ensure that a person placed in immigration detention can apply to a court for an order that he or she be released because there are no reasonable grounds to justify detention; and

              (c)    to ensure that a person cannot be kept in immigration detention for more than 30 days unless on the application of the Department of Immigration and Citizenship a court makes an order that it is necessary to detain a person on a specified ground and there are no effective alternatives to detention".