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MIGRATION AMENDMENT (EXCISION FROM MIGRATION ZONE) BILL 2001
MIGRATION AMENDMENT (EXCISION FROM MIGRATION ZONE) (CONSEQUENTIAL PROVISIONS) BILL 2001
BORDER PROTECTION (VALIDATION AND ENFORCEMENT POWERS) BILL 2001
MIGRATION LEGISLATION AMENDMENT BILL (NO. 6) 2001
MIGRATION LEGISLATION AMENDMENT BILL (NO. 5) 2001
MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2001
MIGRATION LEGISLATION AMENDMENT (JUDICIAL REVIEW) BILL 1998 [2001]

Order of the day read for the further consideration of the bills in committee of the whole.

In the committee

MIGRATION AMENDMENT (EXCISION FROM MIGRATION ZONE) (CONSEQUENTIAL PROVISIONS) BILL 2001—

Consideration resumed of the bill.

Question—That the bill be agreed to—divided in respect of Schedule 2, items [4], [5] and [6].

Schedule 2, items [4], [5] and [6] debated and agreed to.

Question—That the bill be agreed to—divided in respect of Schedule 2, item [7], clause 447.224.

Schedule 2, item [7], clause 447.224 debated and agreed to.

Senator Bartlett moved the following amendment:

 Schedule 2, item [7], page 11 (lines 12 to 16), omit clause 447.311, substitute:

  447.311 The applicant is a member of the family unit of a person who satisfies, or has satisfied, the criterion in clause 447.211.

Question—That the amendment be agreed to—put and negatived.

Bill further debated.

Document: The Minister for Justice and Customs (Senator Ellison) tabled the following document:

 Migration bills—Copy of Department of Immigration and Multicultural Affairs fact sheet 24: Business skills migration.

Bill further debated.

The Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts (Senator Ian Campbell) moved—That the committee report progress and ask leave to sit again.

Question put and passed.


The Acting Deputy President (Senator George Campbell) resumed the chair and the Temporary Chair of Committees (Senator Knowles) reported that the committee had considered the bills, made progress and asked leave to sit again.

Senator Ian Campbell moved—That the committee have leave to sit again at a later hour.

Debate ensued.

Question put and passed.

Declaration of urgency: The Parliamentary Secretary to the Minister for Communications, Information Technology and the Arts (Senator Ian Campbell) declared the following bills to be urgent bills:

 Migration Amendment (Excision from Migration Zone) Bill 2001

 Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Bill 2001

 Border Protection (Validation and Enforcement Powers) Bill 2001

 Migration Legislation Amendment Bill (No. 6) 2001

 Migration Legislation Amendment Bill (No. 5) 2001

 Migration Legislation Amendment Bill (No. 1) 2001

 Migration Legislation Amendment (Judicial Review) Bill 1998 [2001],

and moved—That these bills be considered urgent bills.

Proposed suspension of standing orders: Senator Brown, pursuant to contingent notice, moved—That so much of standing order 142 be suspended as would prevent debate taking place on the motion.

Debate ensued.

Question put.

The Senate divided—

AYES,11


Senators—
AllisonBrownHarradineRidgeway
BartlettCherryLeesStott Despoja
Bourne (Teller)GreigMurray

NOES, 52


Senators—
AbetzCrossinHoggMurphy
BishopDenmanHutchinsO'Brien
BolkusEgglestonKempPatterson
BoswellEllisonKnowlesPayne
BrandisEvansLightfootRay
BucklandFergusonLudwigSchacht
Calvert (Teller)FerrisLundySherry
Campbell, GeorgeForshawMacdonald, SandyTambling
Campbell, IanGibbsMackayTchen
CarrHarrisMasonTroeth
ChapmanHeffernanMcGauranVanstone
CollinsHerronMcKiernanWatson
ConroyHillMcLucasWest


Question negatived.

Question—That these bills be considered urgent bills—put and passed.

Allotment of time: Senator Ian Campbell moved—That the time allotted for the remaining stages of the Migration Amendment (Excision from Migration Zone) Bill 2001 and six related bills be until midday today.

Proposed suspension of standing orders: Senator Brown, pursuant to contingent notice, moved—That so much of standing order 142 be suspended as would prevent the motion being debated without limitation of time and each senator speaking for the time allotted by standing orders.

Debate ensued.

Question put and negatived.

Question—That the motion be agreed to—put and passed.

Limitation of debate: The time allotted for the consideration of the bills expired.

Explanatory memoranda: Senator Ian Campbell tabled supplementary explanatory memoranda [3] relating to the government amendments to be moved to the Migration Legislation Amendment Bill (No. 1) 2001 and the Migration Legislation Amendment (Judicial Review) Bill 1998 [2001].

The following amendments circulated by the Government were agreed to:

In respect of the Migration Legislation Amendment Bill (No. 1) 2001—

 Schedule 1, item 4, page 4 (lines 8 and 9), omit "within 35 days of the notification of the decision", substitute "within 35 days of the actual (as opposed to deemed) notification of the decision".

 Schedule 1, item 6, page 5 (line 6) to page 6 (line 9), omit section 486B, substitute:

 486B Multiple parties in migration litigation

   Application of section

  (1) This section applies to all proceedings (migration proceedings) in the High Court or the Federal Court that raise an issue in connection with visas (including if a visa is not granted or has been cancelled), deportation, or removal of unlawful non-citizens.

   Consolidation of proceedings

  (2) Consolidation of any migration proceeding with any other migration proceeding is not permitted unless the court is satisfied that:

   (a) the consolidation would otherwise be permitted under other relevant laws (including Rules of Court); and

   (b) the consolidation is desirable for the efficient conduct of the proceedings.


 (3) No appeal lies from a decision by the court not to consolidate proceedings under subsection (2).

   Other joint proceedings etc.

  (4) The following are not permitted in or by a migration proceeding:

   (a) representative or class actions;

   (b) joinder of plaintiffs or applicants or addition of parties;

   (c) a person in any other way (but not including as a result of consolidation under subsection (2)) being a party to the proceeding jointly with, on behalf of, for the benefit of, or representing, one or more other persons, however this is described.

   Relationship with other laws

  (5) This section has effect despite any other law, including in particular:

   (a) Part IVA of the Federal Court of Australia Act 1976; and

   (b) any Rules of Court.

  (6) However, this section does not apply to a provision of an Act if the provision:

   (a) commences after this section commences; and

   (b) specifically states that this section does not apply.

   Exceptions to general rules

  (7) This section does not prevent the following persons from being involved in a migration proceeding:

   (a) the applicants in the proceeding and any persons they represent, if:

    (i) the regulations set out a definition of family for the purposes of this paragraph; and

    (ii) all of those applicants and other persons are members of the same family as so defined;

   (b) a person who becomes a party to the proceeding in performing the person's statutory functions;

   (c) the Attorney-General of the Commonwealth or of a State or Territory;

   (d) any other person prescribed in the regulations.

 Schedule 1, item 11, page 9 (line 28), omit "paragraph 486B(4)(a) or (d)", substitute "paragraph 486B(7)(a) or (d)".

In respect of the Migration Legislation Amendment (Judicial Review) Bill 1998 [2001]—

 Schedule 1, item 7, page 6 (lines 5 to 11), omit subsection (6), including the note.

 Schedule 1, item 7, page 7 (after line 5), after section 475, insert:

 475A Section 476 not to affect the jurisdiction of the Federal Court in certain cases

   Section 476 does not affect the jurisdiction of the Federal Court under section 39B or 44 of the Judiciary Act 1903 in relation to:

   (a) a privative clause decision that is a decision made on a review by a Tribunal under Part 5 or 7 or section 500; or


   (b) any other decision in respect of which the Court's jurisdiction is not excluded by section 476.

 Schedule 1, item 7, page 7 (lines 8 to 21), omit subsection (1), substitute:

  (1) Despite any other law, including sections 39B and 44 of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in relation to a primary decision.

 Schedule 1, item 7, page 7 (line 26), omit "section 48B, paragraph 72(1)(c), section 91F,", substitute "subsection 37A(2) or (3), section 48B, paragraph 72(1)(c), section 91F, 91L, 91Q,".

 Schedule 1, item 7, page 7 (after line 27), after subsection (2), insert:

  (2A) Despite any other law, including sections 39B and 44 of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of:

   (a) a decision of the Principal Member of the Migration Review Tribunal or of the Principal Member of the Refugee Review Tribunal to refer a matter to the Administrative Appeals Tribunal; or

   (b) a decision of the President of the Administrative Appeals Tribunal to accept, or not to accept, the referral of a decision under section 382 or 444.

  (2B) Despite any other law, including sections 39B and 44 of the Judiciary Act 1903, the Federal Court does not have any jurisdiction in respect of a decision of the Minister under Division 13A of Part 2 to order that a thing is not to be condemned as forfeited.

 Schedule 1, item 7, page 7 (lines 28 to 31), omit subsection (3).

 Schedule 1, item 7, page 8 (line 4), omit "subsection (1) or (2)", substitute "this section".

 Schedule 1, item 7, page 8 (after line 4), at the end of section 476, add:

  (5) The reference in subsection (2) to section 345 is a reference to section 345 of this Act as in force before the commencement of Schedule 1 to the Migration Legislation Amendment Act (No. 1) 1998.

  (6) In this section:

   primary decision means a privative clause decision:

   (a) that is reviewable, or has been reviewed, under Part 5 or 7 or section 500; or

   (b) that would have been so reviewable if an application for such review had been made within a specified period.

 Schedule 1, item 7, page 8 (line 12), omit "Registry of the".

 Schedule 1, item 7, page 8 (lines 14 to 31), omit subsections (2) to (4), substitute:

  (2) The Federal Court must not make an order allowing, or which has the effect of allowing, an applicant to lodge an application referred to in subsection (1) outside the period specified in that subsection.

  (3) The regulations may prescribe the way of notifying a person of a decision for the purposes of this section.


 Schedule 1, item 7, page 9 (line 9), at the end of section 478, add:

   ; or (c) in any case—a person prescribed by the regulations.

 Schedule 1, item 7, page 9 (line 18), at the end of section 479, add:

   ; or (c) in any case—a person prescribed by the regulations.

 Schedule 1, item 7, page 9 (line 22), omit "or (2)".

 Schedule 1, item 7, page 9 (lines 23 and 24), omit "the High Court or the Federal Court (as the case requires)", substitute "the Federal Court".

 Schedule 1, item 7, page 9 (lines 29 and 30), omit "or (2)".

 Schedule 1, page 10 (after line 31), after item 7, insert:

 7A Subsection 486A(1)

  Omit "decision covered by subsection 475(1), (2) or (4)", substitute "privative clause decision".

 7B After section 486A

  Insert:

 486AA Intervention by Attorney-General

  (1) The Attorney-General may, on behalf of the Commonwealth, intervene in a proceeding resulting from an application referred to in subsection 486A(1).

  (2) If the Attorney-General intervenes in such a proceeding, the High Court may make such orders as to costs against the Commonwealth as the court thinks fit.

  (3) If the Attorney-General intervenes in such a proceeding, he or she is taken to be a party to the proceeding.

 486AB Operation etc. of decision

   The making of an application referred to in subsection 486A(1) does not:

   (a) affect the operation of the decision; or

   (b) prevent the taking of action to implement the decision; or

   (c) prevent the taking of action in reliance on the making of the decision.

 7C Subsection 486C(1)

  Omit "(the relevant issue)".

 7D Subsection 486C(2)

  Repeal the subsection, substitute:

  (2) Those persons are:

   (a) a party to a review mentioned in section 479; or

   (b) the Attorney-General of the Commonwealth or of a State or a Territory; or

   (c) a person who commences or continues the proceeding in performing the person's statutory functions; or

   (d) any other person prescribed by the regulations.


 Schedule 1, item 8, page 12 (lines 1 to 13), omit subitems (4) and (5), substitute:

 (4) The amendments made by items 7A and 7B apply to decisions made after the commencement of those items.

 (5) The amendments made by items 7C and 7D apply in relation to proceedings that are commenced after the commencement of those items.

The following amendments circulated by the Australian Democrats were considered:

In respect of the Border Protection (Validation and Enforcement Powers) Bill 2001—

 Page 1 (after line 5), after the title, insert:

 Preamble

 Whereas Australia is a party to the United Nations Convention on Refugees and the Protocol relating to the Status of Refugees, and thereby shares the profound concern of the United Nations for refugees, and endeavours to assure refugees the widest possible exercise of their fundamental rights and freedoms;

 And whereas Australia, recognising the social and humanitarian nature of the problem of refugees, welcomes genuine refugees fleeing persecution in their homelands on the grounds of race, nationality, religion, membership of a particular social group, or political opinion;

 Page 1 (line 6), after "Australia", insert "therefore".

 Page 2 (after line 8), after clause 3, insert:

 3A Expiration of Act

   This Act ceases to be in force on 1 July 2002.

 Clause 7, page 4 (after line 14), at the end of the clause, add:

  (3) No costs are payable to:

   (a) the Commonwealth; or

   (b) a Commonwealth officer; or

   (c) any other person who acted on behalf of the Commonwealth in respect of an action to which this Part applies;

   in respect of proceedings to which this section applies that were instituted on or before the day on which this Act receives the Royal Assent.

 Schedule 2, item 5, page 10 (line 26) to page 11 (line 24), omit the item.

In respect of the Migration Legislation Amendment Bill (No. 6) 2001—

 Page 2 (after line 5), after clause 3, insert:

 4 Expiration of Act

   This Act ceases to be in force on 1 July 2002.

 Schedule 1, item 2, page 3 (lines 11 to 13), omit paragraph (a), substitute:

   (a) a non-citizen in Australia to whom Australia has protection obligations under any of the following:

    (i) the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly of the United Nations on 10 December 1989;


    (ii) the Convention on the Rights of the Child, adopted by the General Assembly of the United Nations on 20 November 1989;

    (iii) the International Covenant on Civil and Political Rights, adopted by the United Nations General Assembly on 16 December 1966;

    (iv) the Refugees Convention as amended by the Refugees Protocol; or

 Schedule 1, item 3, page 3 (lines 18 to 22), omit the item.

 Schedule 1, item 4, page 3 (line 23) to page 4 (line 7), omit the item.

 Schedule 1, item 5, page 4 (line 17), omit "the essential and significant reason", substitute "a relevant and contributing factor".

 Schedule 1, item 5, page 4 (line 18), omit "the essential and significant reasons", substitute "relevant contributing factors".

 Schedule 1, item 5, page 5 (lines 1 to 11), omit subsection (3).

 Schedule 1, item 5, page 5 (lines 12 to 30), omit section 91S.

 Schedule 1, item 5, page 6 (line 12) to page 7 (line 16), omit section 91U.

 Schedule 1, item 5, page 6 (line 25), omit "; or", substitute "; and".

 Schedule 1, item 5, page 6 (lines 26 and 27), omit subparagraph (iv).

 Schedule 1, item 5, page 7 (line 17) to page 9 (line 25), omit section 91V.

 Schedule 1, item 5, page 9 (line 26) to page 10 (line 11), omit section 91W.

 Schedule 1, item 5, page 4 (line 21), omit "and discriminatory".

 Schedule 1, item 5, page 4 (line 28), after "physical", insert "or mental".

 Schedule 1, item 5, page 7 (line 24) to page 8 (line 13), omit subsections (2) and (3).

 Schedule 1, item 5, page 8 (line 28) to page 9 (line 18), omit subsections (5) and (6).

 Schedule 1, item 5, page 9 (line 31) to page 10 (line 11), omit subsection 91W(2).

In respect of the Migration Legislation Amendment Bill (No. 5) 2001—

 Schedule 1, item 1, page 3 (after line 26), after subsection (2), insert:

  (2A) An officer to whom information is disclosed under this section must treat that information as confidential and must not, either directly or indirectly, divulge or communicate the information to another person except in the course of his or her duties as an officer under this Act.

  (2B) An officer who contravenes subsection (2B) is guilty of an offence punishable, on summary conviction, by a fine of 50 penalty units or imprisonment for 12 months, or both.

   Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.


In respect of the Migration Legislation Amendment Bill (No. 1) 2001—

 Page 2 (after line 24), after clause 3, insert:

 4 Expiration of Act

   This Act ceases to be in force on 1 July 2002.

 Page 11 (after line 26), at the end of the bill, add:

 Schedule 3—Review of certain matters

 Migration Act 1958

 After section 507

  Insert:

 508 Review of certain matters

  (1) The Minister must cause an independent review to be undertaken by a person or body of the operation of the following Acts:

   (a) Border Protection (Validation and Enforcement Powers) Act 2001;

   (b) Migration Amendment (Excision from Migration Zone) Act 2001;

   (c) Migration Amendment (Excision from Migration Zone) (Consequential Provisions) Act 2001;

   (d) Migration Legislation Amendment Act (No. 1) 2001;

   (e) Migration Legislation Amendment Act (No. 5) 2001;

   (f) Migration Legislation Amendment Act (No. 6) 2001;

   (g) Migration Legislation Amendment (Judicial Review) Act 2001.

  (2) The review must be undertaken as soon as possible after the first anniversary of the first day on which all of the Acts mentioned in subsection (1) have commenced.

  (3) The person or body undertaking a review must give a report of the review to the Minister.

  (4) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives it.

In respect of the Migration Legislation Amendment (Judicial Review) Bill 1998 [2001]—

 Page 2 (after line 9), after clause 3, insert:

 4 Expiration of Act

   This Act ceases to be in force on 1 July 2002.

Question—That the amendments be agreed to—put.

The Senate divided—

AYES,10


Senators—
AllisonCherryLeesRidgeway
BartlettGreigMurrayStott Despoja
Bourne (Teller)Harradine

NOES, 53



Senators—
AbetzCraneHutchinsPayne
AlstonCrossinKempReid
BishopDenmanKnowlesSchacht
BolkusEgglestonLudwigSherry
BoswellEllisonMacdonald, IanTambling
BrandisEvansMacdonald, SandyTchen
BucklandFergusonMackayTierney
Calvert (Teller)FerrisMasonTroeth
Campbell, GeorgeForshawMcGauranVanstone
Campbell, IanGibbsMcKiernanWatson
CarrHarrisMcLucasWest
ChapmanHeffernanMurphy
CollinsHerronO'Brien
ConroyHoggPatterson

Question negatived.

The following amendments circulated by Senator Brown in respect of the Border Protection (Validation and Enforcement Powers) Bill 2001 were considered:

 Part 2, page 3 (line 2) to page 5 (line 5), Part 2, omit the Part.

 Schedule 2, item 5, page 10 (line 26) to page 11 (line 24), omit the item.

 Schedule 2, item 9, page 13 (line 13) to page 14 (line 24), omit section 245FA.

Question—That the amendments be agreed to—put and negatived.

Statements by leave: Senator Schacht and the Minister for Justice and Customs (Senator Ellison), by leave, made statements relating to the bills.

Question—That the remaining stages of the bills be agreed to and the bills be now passed—put.

The Senate divided—

AYES,50


Senators—
AbetzCraneHutchinsPatterson
AlstonCrossinKempPayne
BishopDenmanKnowlesReid
BoswellEgglestonLudwigSchacht
BrandisEllisonMacdonald, IanSherry
BucklandEvansMacdonald, SandyTambling
Campbell, GeorgeFergusonMackayTchen
Campbell, IanFerrisMasonTierney
CarrForshawMcGauranTroeth
ChapmanGibbsMcKiernanWatson
CollinsHarrisMcLucasWest
ConroyHeffernanMurphy
Coonan (Teller)HoggO'Brien

NOES, 10



Senators—
AllisonCherryLeesRidgeway
BartlettGreigMurrayStott Despoja
Bourne (Teller)Harradine

Question agreed to.

Bills read a third time.

After 12.45 pm—