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Wednesday, 4 November 1992
Page: 2620


Mr HAND (Minister for Immigration, Local Government and Ethnic Affairs) (9.17 p.m.) —I move:

  That the Bill be now read a second time.

On 5 May this year, during the debate on the Migration Amendment Act 1992, I foreshadowed to the House that I would be recommending a comprehensive program of legislative amendments to ensure that our migration law is the best mechanism available to deal with current issues and needs.

  The Labor Government has already been the author of significant reform of immigration policies and laws. In 1989 my predecessor, Senator Robert Ray, took a major step towards legislative implementation of the recommendations of the CAAIP report. In spite of the 1989 reforms, a major issue confronting the Government is border control. There are people who are intent on bypassing the established categories of entry into this country. Some do this by trying to avoid immigration processing altogether by arriving in Australia without authority. The boat people are a good example. Owing to weaknesses which have been inherent in our migration laws for many years, these people are often successful. Many manage to stay here, even though they do not fall within the specific visa categories, which is the only lawful way to enter and stay in Australia. At the very least, many manage to delay the substantive decision on their case and, as a consequence, their departure, by using the courts to exploit any weaknesses they can find in our immigration law. This must stop.

  In the Migration Reform Bill currently before the House I propose a range of measures to enhance the Government's control of people who wish to cross our borders. The Bill sets out more effective means of regulating entry, detention and removal of people who do not establish an entitlement to be in Australia. The reforms are complemented by an enhanced scheme of independent merits review rights.

  A primary objective of the Migration Act is to regulate, in the national interest, the entry and presence in Australia of persons who are not Australian citizens. The Government views it as essential that all provisions and policies under the Act be interpreted in a way which furthers this objective. An objects provision will be inserted in the Act to remind the community, the administrators and the courts of this intention.

  Under the reforms, a non-citizen will require a single authority—a visa—to travel to, enter or remain in Australia. All non-citizens will be brought within the one visa system. However, limited categories of non-citizens, in particular New Zealanders, will still be able to travel to Australia without a visa and enter with the same degree of convenience as at present. Upon arrival, all persons, including Australian citizens, will be required to present themselves for immigration clearance. Australian citizens will be required to use their Australian passport or other acceptable evidence of Australian citizenship when leaving or entering Australia. These measures will streamline identification of non-citizens entering Australia and will reduce the prospect of evasion of immigration controls.

  At present, we have an array of laws which govern detention and removal, depending upon how a person arrived in Australia. This is confusing to the public and administrators alike. The Bill will provide for a uniform regime for detention and removal of persons illegally in Australia. Non-citizens who are in Australia without a valid visa will be unlawful and will have to be held in detention.

  Unlawful non-citizens who satisfy prescribed criteria will be able to acquire lawful status and release from detention by the grant of a bridging visa. Bridging visas will not be available to people who arrive in Australia without authority. Depending on their circumstances, they will be immediately removed from Australia or will be subject to detention until any claim they wish to make has been resolved.  When a person who is in Australia unlawfully has exhausted all available application and merits review entitlements, the law will require that person to be removed as soon as practicable. Deportation will only apply in relation to the current `criminal', `national security' and `certain serious offences' categories.

  The measures I have announced so far will lead to greater precision in our efforts to control the border. Under the reforms, decision making procedures will be codified. This will provide a fair and certain process with which both applicant and decision maker can be confident. Decision makers will be able to focus on the merits of each case knowing precisely what procedural requirements are to be followed. These procedures will replace the somewhat open-ended doctrines of natural justice and unreasonableness.

  The Reform Bill proposes significant extensions to the current system for review of migration decisions. Credible independent merits review will ensure that the Government's clear intentions in relation to controlling entry to Australia, as set out in the Migration Act, are not eroded by narrow judicial interpretations. Under the Reform Bill, the following people who are adversely affected by a decision will be entitled to independent merits review: onshore refugee claimants; onshore cancelled visa holders, except those cancelled at the border; onshore applicants for a visa, except those detected at the border; and an Australian sponsor of an offshore applicant for a visa.

  As now, people offshore will not be entitled to merits review. A specialist refugee review tribunal will be established to provide independent and determinative merits review of onshore refugee status decisions. The tribunal will be non-adversarial, operating along similar lines to the IRT, with power to hold hearings and record its decisions in writing.

  I would like to briefly explain why I am introducing these changes.  Throughout my political life I have believed that government, working in partnership with the community, can bring about change—change for the good and changes which make a difference to our society and how we view ourselves.

  For instance, in 1990 I consulted widely with community organisations on the new refugee determination procedures, particularly the inclusion of a community representative on the Refugee Status Review Committee and the new natural justice procedures. At the time, this decision was widely applauded. However, when we started seeing negative decisions coming out of the Committee, the goal posts suddenly moved. The Committee was branded as an arm of the Government, the Government was criticised as having a fixed view and the system was declared as being unfair.

  Similarly, when the Government acted quickly to introduce fast tracking of new refugee cases, this was believed to be a good move. The fast tracking system has been a success and we are starting to see results. Amazingly, however, I am now being criticised for processing some cases too quickly. I reject totally such claims about the Committee and the fast track processing.

  Nearly three years ago I also met with a group of people who claimed to support the Cambodian asylum seekers. They were lawyers, local politicians and community workers. They came to me and said they were concerned with the way that my Department had processed these people's applications and asked that they be done again. They also wanted the asylum seekers to be given access to legal representation. I agreed to this request because I believe that it is better to make sure that the decision making is beyond reproach and open to scrutiny. In the spirit of that partnership, I also allowed the community to be part of that process. But what happened? In some cases it took 18 months for applications to be lodged for these asylum seekers while more boats arrived, and still the support groups asked for more time. While they were doing this, what of their clients? They continued to wait in the processing centres.

  Enormous energy was put into making wild and fantastic statements about Port Hedland, often by people who had never been there. The tragedy is that people have continued to be housed in Port Hedland and Westbridge, unable to get on with their lives. At the same time, some of those who are supposedly supporting them are more interested in making their reputations as human rights campaigners rather than assisting in a speedy resolution of their cases.

  During this period, what sort of advice did they give their clients? I cannot presume to know but I wonder whether they were ever honest with them, whether they gave them realistic, practical advice or whether they were simply fodder for a noble crusade. Some lawyers employed by the Refugee Council of Australia cared about their clients so much that they put up a sign on the door of their interview room which said: `Suicide is just two steps away—you might as well jump'. What sort of irresponsible, non-thinking person could in the first instance dream up such a slogan and, secondly, display it on the door of a room which was to be used by people who were going to seek that person's advice? My primary responsibility is to make sure that asylum seekers are treated with dignity and fairness. They have a right to expect their cases to be handled fairly and quickly.

  I cannot be held responsible for the actions of those who provide them with false hope and tempt them into taking drastic and futile measures such as hunger strikes. We must have a system that is clear, predictable and fair and that applies equally to all asylum seekers in Australia. Clients should know what is happening to them and should be able to make informed decisions about their claims and options. The proposals dealing with refugee processing contained in this Bill further strengthen the procedures in two ways: they provide a fair system for the applicant and, at the same time, provide the necessary protection for the Australian community.

  In the general migration area, the Immigration Review Tribunal will handle the expanded jurisdiction. In a small number of IRT or RRT cases where an important principle of general application is involved, the principal member of that tribunal will be able to refer the case to a presidential bench of the Administrative Appeals Tribunal. The AAT will provide guidance for primary and review decision makers dealing with similar principles in other cases without the disadvantages of delay and expense associated with court appeals. These changes to the migration merit review system broadly accord with views which I have received informally from the Committee to review the system of review of migration decisions. I established this Committee, chaired by a former immigration Minister, the Hon. Ian Macphee, to consider the effectiveness of the merits review system introduced in 1989.

  As I have indicated, the Government wishes to make the application of the legal concepts of migration decision making predictable. Judicial review rights for decisions on the grant or cancellation of a visa will be set out in the Migration Act. Judicial review will only be possible after the applicant has pursued all merits review rights or where merits review is not available.  Grounds for review will include failure to follow the codified decision making procedures set out in the Act. As the codified procedures will allow an applicant a fair opportunity to present his or her claims, failure to observe the rules of natural justice and unreasonableness will not be grounds for review.

  Another feature of the Bill should be noted. The Migration Act currently allows a visa to be issued to an accused person who is being extradited to Australia. This Bill introduces a broader scheme to permit entry of not only these people but also others, such as key witnesses who are needed before the courts. The scheme will also ensure that law enforcement agencies have made adequate arrangements for these people while they are in Australia.

  The reforms set out in the Bill will ensure that the Government retains control of Australia's borders whilst providing a review system at a reasonable cost. These measures will not only make the enforcement of Australia's migration law more effective but will ensure that individuals are treated fairly and are not subjected to unnecessary restrictions or inconvenience.

  Establishment of the RRT will cost $3.2m in 1992-93. However, the RRT will provide credible independent merit review, with an anticipated saving of approximately $72m over the next four years from the expected costs for the existing refugee determination system.  I commend the Bill to the House and I present the explanatory memorandum to the Bill.

  Debate (on motion by Mr Ruddock) adjourned.