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Wednesday, 4 February 2009
Page: 313


Senator CHRIS EVANS (Minister for Immigration and Citizenship) (4:10 PM) —Firstly, I table a correction to the explanatory memorandum to the Migration Legislation Amendment Bill (No. 2) 2008 [2009]. It is a minor amendment. I seek leave to continue the remarks that Senator McLucas started to make in summing up the debate.

Leave granted.


Senator CHRIS EVANS —I am sure Senator McLucas was doing a better job, but first of all I would like to acknowledge the contributions of Senator Fierravanti-Wells and Senator Hanson Young for their continuing interest in these issues. Senator McLucas had responded to the first tranche of amendments. The second set seeks to reinstate effective and uniform time limits applying to judicial review of migration decisions in the Federal Magistrates Court, Federal Court and the High Court. The new time limit is 35 days from the date of the migration decision. Importantly, though, the courts will have broad discretion to extend the time for applying for judicial review for a migration decision when it is necessary and in the interests of the administration of justice to do so. That seeks to balance the interests of the applicant with the interests of proper process.

The final set of amendments limits appeals from judgments to make an order or refuse to make an order to extend time to apply for judicial review of migration decisions. This set of amendments will assist in strengthening the time limit for applying for judicial review, which I mentioned earlier, by encouraging applicants to resolve their cases in a timely fashion and by helping to deter applicants from making strategic appeals simply to delay their removal from Australia. The amendments do not limit appeals to the High Court in its original jurisdiction because such a limitation would be unconstitutional. That is a very important step forward. We all support the right of people to seek appropriate decision making and pursue full and fair appeal rights, but there has to be an end to it and there has to be the capacity for a decision that is not in their favour to be enacted. The integrity of our immigration system relies not only on people receiving fair treatment but also on the capacity of the state to remove those who failed to meet our laws. I think that is an important step forward in making sure that we maintain that integrity.

Turning now to the points raised during the debate on the bill, I thank Senator Fierravanti-Wells for her contribution. After years of dealing with this stuff, she is way in front of me on the intricacies of it not only because of her legal background but also from having to wade through it in a professional capacity. I must admit some of this stuff is mind-numbingly difficult, but there are a number of people who live off it as its complexity encourages a profusion of lawyers.

I turn now to Senator Hanson-Young’s concerns regarding a number of issues. I note her concern that the new provision based on time running from the day of the decision rather than from the day of notification may adversely impact on clients. She also raised the concern that the onus that has been placed on applicants to seek an extension of time may be an unreasonable burden, particularly where there are language and financial difficulties. I acknowledge that they are legitimate concerns to raise, but the package put forward in the bill is actually more beneficial than the existing position. The bill introduces a new broad discretion, which is unlimited, to extend time. This means that, if someone wants to apply for an extension of time, they can do so outside the 35-day period—for example, two years later—provided the court decides that it is in the interests of the administration of justice.

Currently, an application for judicial review is required to be lodged within 28 days. Currently, if a person were to seek judicial review in the FMC or in the Federal Court after the extendable period of 84 days, the courts would not have jurisdiction to consider the application or any request to extend time even if there were compelling reasons. So I think the overall package is more beneficial. Those people who are out of time under the current provisions and therefore cannot access the courts will now have an opportunity to put their request for an extension of time to be considered by the courts—not by the department—and the courts’ ability to extend time will be unlimited under the bill.

Senator Hanson-Young also sought clarification of how the amendments to sections 477, 477A and 486A will safeguard applicants against being disadvantaged. The requirement that applicants give reasons is not a legal onus on the applicant. There is no concept of the applicant having to prove that on the balance of probabilities their reasons for an extension are in the interests of the administration of justice; it is merely a requirement that the applicant state reasons for the request for an extension of time. This will assist the court in early identification of meritorious cases so they can be resolved quickly. This is something I have been very keen to pursue since I have been in this portfolio.

Linking the commencement of time to date of decision rather than to date of notification will provide greater certainty for applicants and the courts. It will be clear on the face of the decision when time starts to run. The existing notification laws for notifying an applicant of the decision will continue to apply, but the time limits for applying for judicial review will no longer be linked to actual notification.

Senator Hanson-Young also asked why the time limits start to run even if there is a failure to comply with the requirements of certain provisions. This is to ensure that the time limits operate effectively to minimise the risk of an applicant claiming there was no date of decision for the purpose of time limits because the decision did not comply with legislative requirements, otherwise the effectiveness of the proposed time limits would be undermined. The court can address possible injustice caused by this provision by using its new broad discretion to extend time.

Senator Hanson-Young also asked if there were an unreasonable burden on applicants with financial, language or knowledge of the legal system issues. The amendments are intended to allow the courts to conduct extension of time applications as informally and flexibly as possible with minimal burden. Providing access to an extendable appeal period allows applicants with financial, language or knowledge issues to seek assistance from available resources.

Senator Hanson-Young also asked what had changed since the first iteration of these amendments in the omnibus bill last year and why we are adding schedule 3 at this time. That is a good question. Since drafting Migration Legislation Amendment Bill (No. 1) 2008 it became apparent that in order for the time limits to operate effectively those amendments should be accompanied by a limitation on appeals. The limitation on appeals amendments have been included in a separate schedule in the bill for ease of reference but they should not be viewed in isolation from the rest of the bill. They are an integral part of the time limit amendments. Introducing the new broad discretion to extend time without having schedule 3 would open up an additional avenue for judicial review, with consequential implications for cost, time and extra workload for the courts. It may also exacerbate the strategic litigation that we have seen some applicants use to prolong their stay in Australia.

Senator Hanson-Young’s second reading amendment is not supported. As the Senate is aware, last year I announced the government’s New Directions in Detention policy. That included the announcement of our key immigration values, which I think are widely understood. They are values designed to drive the development of a very different detention model. Acknowledging Senator Hanson-Young’s call to immediately put forward amendments to the Migration Act to implement these principles in legislation, I just note that the government is well aware of the desire of stakeholders and others that those policies have legislative backing. That action was strongly advocated by stakeholders in the extensive consultation process we undertook and was also part of recommendation 12 in the first report into immigration detention of the Joint Standing Committee on Migration. That part of the report was across party lines—I think it was unanimous, but I will double-check that. It was certainly supported on all sides of the parliament.

I am working to implement these changes as quickly as possible to get them working in practice as quickly as possible on the ground. We will legislate to support those new practices once we have got that experience. I thought that was a better way of going than having a sort of theoretical debate in the parliament and then looking to implement that. I think we will benefit from the experience—knowing what works and what does not work—and then we will have legislation that reflects that. I am keen to progress amendments to the Migration Act. I hope to bring forward more legislation this year. There are obviously drafting and policy issues to be considered, but this certainly should not be seen as the end of it. I am keen to make significant changes to the Migration Act.

I also note the reference again to the introduction of judicial review of the decision to detain. I know this is very important to advocates and that a lot of people are arguing this case out in the community. It was also a recommendation in the first report of the Joint Standing Committee on Migration. It is our intention—and this is reflected in the values statement—that detention will be for the shortest period possible and subject to increased transparency and accountability. Clearly, detention that is indefinite or otherwise arbitrary is not acceptable. We need regular review of the decision to detain. We have introduced a system that will provide more regular and earlier review. There are three-monthly reviews by a senior departmental officer, and an Ombudsman review at the six-month mark will provide an outside check. The whole philosophy of the department is turned around to justify why you detain—not to detain as your first response. The department is well advanced in implementing those changes, and we should have some evidence of how that is working very shortly.

The main point to make is that I do not have a closed mind on the introduction of judicial review of the decision to detain, but I am mindful that the effectiveness of new three- and six-month detention review arrangements are yet to be determined. There has been no policy decision taken by government regarding judicial review, but it is very much on the table and I am having conversations and interaction with interested parties about those aspects. The joint migration committee’s work is informing that debate and I thank them for that work. I think it is proving useful for the parliament. It is good to see the House of Reps members following the lead of the Senate and learning to conduct inquiries that actually assist the development of public policy and lead the debate. We have good cooperation on that committee and it has done some good work.

Thirdly, Senator Hanson-Young reflects some of her dissenting report into the joint standing committee’s current inquiry into immigration detention, calling for a person to be detained beyond 30 days only if there is a court order that it is necessary to detain that person on a specified ground. I reiterate our policy position that the government’s intention is that detention will be the shortest period possible and that there will be transparency and accountability around those decisions.

I think that responds to the points made in Senator Hanson-Young’s second reading amendment. I understand the motives behind it. The government is not inclined to support it but it has been useful for taking forward the debate. As I say, I think we will have more debate around immigration throughout the year. There is a lot of interest in a range of measures that the government is considering. I think we can as a parliament do some good work in improving the migration legislation and making it more reflective of a modern, tolerant, democratic society.

I thank senators for their contributions and particularly the opposition for their support and I look forward to working with the parliament on further amendments to the migration legislation over the coming year.


The ACTING DEPUTY PRESIDENT (Senator Carol Brown)—The question is that the amendment moved by Senator Hanson-Young be agreed to.

Question negatived.

Original question agreed to.

Bill read a second time.