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Friday, 25 November 2011
Page: 9680

Senator BRANDIS (Queensland—Deputy Leader of the Opposition in the Senate) (14:09): Can I indicate at the outset that the opposition supports these amendments. As a result of discussions between the Attorney-General and myself and an exchange of letters between the Attorney-General and the Leader of the Opposition, we have undertaken both to support the bill and to expedite its passage through the parliament. I will address it very briefly, although I do not propose to take very long to do so.

Subdivision A of division 12 of the Migration Act 1958 contains certain prohibitions upon the entry into Australia of a noncitizen in circumstances where the noncitizen does not have a valid visa or is not otherwise entitled to enter into Australia. An issue has arisen in which, in certain proceedings in the Supreme Court of Victoria, as I understand, it is alleged that the claim of a right under the refugee convention and the refugee protocol is sufficient to take a noncitizen beyond the prohibitions in subdivision A of division 12. Therefore, so it is said, on the proper interpretation of those provisions the mere claiming of status under the refugee convention or the refugee protocol is sufficient to enable the noncitizen to escape the operation of those provisions.

That has never been the way in which that subdivision of the Migration Act has been understood. The purpose of these amend­ments is really out of abundant caution to clarify that meaning. In particular, the proposed section 228B(2) provides that, to avoid doubt, a reference to a noncitizen includes a reference to a noncitizen seeking protection or asylum, however described, whether or not Australia has or may have protection obligations in respect of the noncitizen under the refugees convention as amended by the refugees protocol or for any other reason.

We agree with the government that it is very important to maintain the integrity of the border protection regime. If it were the case that a claim of right under the refugee convention or the refugee protocol was all it took to circumvent the operation of the Migration Act, then it would be beyond the capacity of Australian migration authorities or, indeed, the Australian Federal Police or any domestic Australian authority to deal with the arrival of unauthorised noncitizens.

The effect of these provisions will be to operate from the day on which they receive royal assent, which, I understand, will be sought urgently. They will apply forthwith to all proceedings, including the proceedings to which I have referred in the Supreme Court of Victoria. It has been said, and I anticipate it may be said by the Australian Greens, who I understand oppose these amendments, that they have a retrospective operation. That is not so. It would be a misuse of the term 'retrospective' to say that provisions that apply prospectively but whose commencement applies to existing but yet to be determined proceedings is retrospective in character. In truth, these are clarifying amendments or essentially declaratory amendments which declare the meaning of an existing prohibition in the act to be as it has always been understood to be and, as I said at the start, out of abundant caution to express more fully the legal position to be as it has always been understood to be.

The opposition, as I said, supports the amendments.