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Monday, 13 October 2008
Page: 5779

Senator LUDWIG (Manager of Government Business in the Senate) (3:55 PM) —I give notice that on the next day of sitting I shall move:

That the provisions of paragraphs (5) to (8) of standing order 111 not apply to the following bills, allowing them to be considered during this period of sittings:

   Migration Amendment (Notification Review) Bill 2008

   Migration Legislation Amendment (Worker Protection) Bill 2008.

I table a statement of reasons justifying the need for these bills to be considered during these sittings and seek leave to have the statement incorporated in Hansard.

Leave granted.

The statement read as follows—


Purpose of the Bill

The bill amends the Migration Act 1958 to make modifications to the notification regime that will assist in providing greater certainty in effective notification pending a broader review.

The amendments will reduce the Commonwealth’s exposure to risk. A failure or error in notification can have serious consequences that may result in the denial of access to review rights, inappropriate and potentially unlawful detention and possible removal of non-citizens who are not unlawful at the time of removal.  As highlighted starkly in the Commonwealth Ombudsman’s “Report into referred Immigration cases: notification issues” of June 2007, the complexities and difficulties in administering notification under the Act directly contributed to the unlawful detention of people.

The bill amends the Migration Act 1958 to:

  • Provide, in cases where other notification provisions would not apply to a minor, that where the Minister (or MRT/RRT member, Registrar, Deputy Registrar or other officer of the Tribunal) forms a reasonable belief that an individual has care and responsibility for a minor, then the Minister (for primary decisions) or the Tribunal (for MRT/RRT decisions) may communicate with that person (instead of the minor) to notify that individual of a decision of the Minister or Tribunal about the minor;
  • Provide that substantial compliance with the required contents of a notification document is sufficient unless the visa applicant is able to show the error or omission in the document causes them substantial prejudice;  and
  • Provide that the deemed time of notification provisions will operate despite non-compliance with a procedural requirement for giving a document to an individual, where the individual has actually received the document, unless the individual is able to show they received the document at a later date, in which case they will be taken to have received the document at that date.

Reasons for Urgency

Non-compliance with the procedural requirements for notification means that statutory duties remain unperformed, with consequences for both the duration of bridging visas and the time limits for the exercise of merits and judicial review rights.  Strict judicial oversight of the complex notification provisions has caused uncertainty and has created large legacy caseloads which have proved difficult, if not impossible to address through litigation or administrative reforms.

If the bill is not passed in the 2008 Spring sittings these measures, which go some way to addressing notification issues, will remain unresolved.

(Circulated by authority of the Minister for Immigration and Citizenship


Purpose of the Bill

The bill amends the Migration Act 1958 to:

  • better define obligations for sponsors of temporary residents, including sponsors of Subclass 457 visa Business (Long Stay) holders;
  • improve investigative powers to more effectively monitor compliance with new obligations;
  • create a more robust sanctions framework to encourage compliance and manage non-compliance with new obligations, including a civil penalties and infringement notice regime and improved recovery powers; and
  • improve information sharing with relevant Commonwealth, State and Territory government agencies, including Education Employment and Workplace Relations and the Australian Taxation Office.

The bill also amends the Tax Administration Act 1953 to:

  • allow the Commissioner of Taxation to disclose information to the Department of Immigration and Citizenship to ensure compliance with sponsorship obligations.

Reasons for Urgency

The Government seeks these amendments as a matter of urgency to restore public confidence in this essential labour supply program and to remove the abuse and exploitation of overseas workers.

Public confidence in the Business (Long Stay) visa program has diminished and media attention continues to focus on cases of exploitation and abuse of overseas workers. The Government is reviewing all aspects of the program to improve its integrity. The measures introduced by this bill are necessary to foster a climate for longer term reforms which will seek to deliver necessary skills from an increasingly competitive global labour market with a minimum of regulation while effectively limiting abuse of the program.

If the bill is not passed in the 2008 Spring sittings, the necessary reforms will not occur in a timely way and confidence in the Business (Long Stay) program will further diminish.

(Circulated by authority of the Minister for Immigration and Citizenship)