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Thursday, 15 September 2005
Page: 8


Senator ELLISON (Minister for Justice and Customs) (9:42 AM) —I table an explanatory memorandum relating to the bill and draft migration amendment regulations and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

MIGRATION AND OMBUDSMAN LEGISLATION AMENDMENT BILL 2005

This bill makes some important amendments to the Migration Act 1958 and the Ombudsman Act 1976.

The amendments, together with those earlier implemented by the Migration Amendment (Detention Arrangements) Act 2005, generally build on reforms to immigration detention arrangements announced by the Prime Minister in June of this year, and on other arrangements that the Government has introduced over recent years.

These amendments do not alter the Government’s approach to immigration or mandatory detention. They show, however, the responsiveness of the Government by ensuring that our existing policy is administered with flexibility and fairness, and in a timely manner.

Protection Visa Decision Time Limits

On 17 June, the Prime Minister made a commitment that all primary protection visa applications will be decided within three months of the receipt of the application.

This three month time limit also applies to decisions by the Refugee Review Tribunal (RRT) when reviewing protection visa decisions.

Schedule 1 to this bill provides a 90 day time limit for decision on all primary protection visa applications, and any subsequent RRT review of such decisions. This implements the commitment made by the Prime Minister that primary decisions be made within three months.

This time limit also applies to repeat protection visa applications allowed by the Minister under section 48B of the Migration Act, and to cases remitted to the Department of Immigration and Multicultural and Indigenous Affairs (DIMIA) or the RRT by any court or tribunal.

This bill will also allow for the 90 day time limit for decision-making to be applied to the processing of applications for permanent protection by temporary protection visa holders and certain temporary humanitarian visa holders.

A key feature of protection visa arrangements is that persons granted temporary protection are unable to access a permanent protection visa until they have held their original visa for a specified minimum period of time - in most cases either 30 or 54 months. As a matter of fairness to applicants, decision-making on these applications for further protection does not commence until the specified minimum period of time has passed.

Accordingly, the commencement of the 90 day time limit is to be prescribed in regulations. The regulations will provide that the time starts from the point at which the applicant has held their temporary visa long enough to be able to access a permanent visa, or from the date of lodgement of their further protection visa application, whichever is the later.

The proposed amendments to the Migration Regulations 1994 to achieve this have been drafted by the Office of Legislative Drafting and Publishing and I table a copy to accompany this bill.

In his June announcement, the Prime Minister also set a deadline for DIMIA to complete all assessments of applications for permanent protection visas from the existing case load of temporary protection visa holders by 31 October 2005.

The 31 October 2005 deadline applies to those further protection visa applications on hand at the time of the Prime Minister’s announcement where the applicant had already held their temporary visa for the specified minimum period needed to be able to access a permanent protection visa. This deadline has not been incorporated into this bill, as most of these applications will have been decided by the time it commences.

The emphasis contained in this bill on clear time limits for the prompt finalisation of applications does not mean that cases should be decided irrespective of whether there are critical issues still outstanding which are beyond the control of DIMIA and the RRT.

Nor will the new time limits operate to the disadvantage of applicants.

On the contrary, DIMIA officers and RRT members will continue to be obliged to make fair decisions in a manner that gives applicants a proper opportunity to present their case.

In the 2004-05 program year, where there were not factors outside DIMIA’s control which prevented finalisation, DIMIA decision-makers completed almost 80% of the initial primary protection visa caseload in the community within 90 days.

In this regard, Australia’s average processing time for protection visa applications already compares well with European countries and is on a similar level to that of the United Kingdom and the United States of America.

DIMIA and the RRT will now aim to ensure that all cases will be decided within 90 days.

Where these time limits have not been met, this bill requires that periodic reports will be provided to the Minister for Immigration and Multicultural and Indigenous Affairs by the Secretary and Principal Member of the RRT on the reasons why these time limits were not met. The Minister will then table these reports in Parliament.

These reports will provide additional assurance to the Parliament and to the public that protection visa and review applications are dealt with in a timely manner.

It should be noted that delays to decision making can occur which are beyond DIMIA or the RRT’s control. These include cases where the applicant fails to co-operate, there are delays with security checks or the receipt of information from other Governments, or there are major increases in protection visa applications.

Reasons why protection visa decisions take longer than 90 days to decide will need to be specified in any reports provided to the Minister.

Other than the reporting requirement, no right, obligation or liability is created should DIMIA or the RRT fail to make a protection visa decision within the time limit.

It should be noted that priority processing will continue to be given to those applications made by people in immigration detention.

Commonwealth Ombudsman

Schedule 2 to the bill concerns the Commonwealth Ombudsman. The Government announced on 14 July 2005 that the Ombudsman would be given an enhanced role as the Immigration Ombudsman. This bill will enable the Ombudsman, when investigating matters of immigration and detention, to call him or herself the Immigration Ombudsman, and contains a range of other provisions to support and facilitate the Ombudsman dealing with immigration and detention complaints and inquiries as expeditiously as possible.

The bill will facilitate the early provision of information to the Ombudsman, through amendments to provide that disclosure of information to the Ombudsman during a preliminary inquiry or investigation will be taken to be authorised by law for the purposes of the Privacy Act, and not prevented by any other Commonwealth enactment. It should be noted that disclosure of information under these provisions will still be discretionary; a person or agency will be entitled not to provide information at this stage, but the Ombudsman could then consider issuing a section 9 notice compelling provision of the information.

The bill will also provide that action by Commonwealth contractors and subcontractors in the exercise of a power or the performance of a function for or on behalf of an agency will be taken, for the purposes of the Ombudsman Act, to be action by the agency, where the contract is for the provision of goods or services to the public. These amendments implement the Government’s response to the recommendation in the Joint Committee of Public Accounts and Audit Report 379, Contract Management in the Australian Public Service, that the Ombudsman Act be amended to extend the jurisdiction of the Ombudsman to include all government contractors. The Government agreed that the Ombudsman should have jurisdiction to investigate government contractors providing goods or services to the public. These amendments remove uncertainty about the Ombudsman’s jurisdiction over government contractors.

The amendments relating to disclosure of information and the Ombudsman’s jurisdiction over contractors will apply to all matters within the Ombudsman’s jurisdiction, not only when the Ombudsman is investigating an immigration or detention matter.

The bill also repeals the current provision which excludes immigration detainees who have not made a complaint to the Ombudsman from the entitlement which would otherwise apply to receive mail from the Ombudsman. This will enable the Ombudsman to contact immigration detainees at his or her own initiative, for example when performing functions under Part 8C of the Migration Act, concerning reports and assessments of the adequacy of detention arrangements of long-term detainees. Technical consequential amendments are provided for, in relation to the Ombudsman’s role as Postal Industry Ombudsman, to be established under separate legislation.

Disclosure of Identifying Information

The immigration identification and authentication scheme in the Migration Act, allowing the collection of personal identifiers in various immigration circumstances, has now been in effect for almost a year.

This scheme contains strict controls for the collection, access and disclosure of personal identifiers such as photographs, fingerprints and iris scans.

In the Migration Act, the disclosure of personal identifiers is subject to robust protections, which prevent the disclosure of information, such as photographs, except in clearly specified circumstances.

These circumstances allowing for disclosure do not include situations where DIMIA believes disclosure is reasonably required to identify, authenticate the identity of, or locate persons of interest.

An illustration of this is that an immigration officer is currently unable to show a member of the Australian community a photograph of a person who is a suspected non-citizen to confirm who the person is.

The prohibition against disclosing personal information when trying to identify or locate a person significantly detracts from the ability of immigration officers to perform their functions under the Migration Act.

One of the concerns of the Inquiry into the Circumstances of the Immigration Detention of Cornelia Rau about the handling of Ms Rau’s case was that DIMIA had been reluctant to publicly release photographs of Ms Rau in an effort to identify her.

The amendments in Schedule 3 to the bill are part of the Government’s response to the recommendations of the Inquiry.

The amendments feature provisions allowing the Secretary of the Department to authorise the release of a person’s identifying information to the public to identify or locate the person in connection with the administration of the Migration Act. Public release of personal information will only be permitted when other reasonable efforts to identify or locate the person have failed.

Safeguards have been built into the amendments to ensure that public disclosure can only be authorised after the person’s views have been taken into consideration (if possible), the sensitivity of the information has been assessed, and it is reasonably necessary to disclose the information.

This will be an important mechanism in making absolutely sure that all possible steps are taken to identify or locate persons of interest to DIMIA, particularly where the person is in immigration detention.

Legislative Instrument Technical Amendments

Schedule 4 to the bill proposes technical amendments to the Migration Act and Migration Legislation Amendment Act (No. 1) 2001 which are consequential to the commencement of the Legislative Instruments Act 2003 on 1 January 2005.

These amendments are to preserve the operation which various migration legislation provisions had prior to the Legislative Instruments Act, which has to date been preserved by regulations under the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003, as an interim measure. The amendments in Schedule 4 also ensure that migration legislation is otherwise consistent with the new legal and procedural framework created by the Legislative Instruments Act.

Summary

In summary, the bill will improve the speed and transparency of protection visa decision making by DIMIA and the RRT.

It will ensure a greater level of accountability and explanation of the protection visa determination process overall.

It will also assist the Ombudsman to handle immigration and detention complaints and inquiries quickly and efficiently.

It will fine tune the very important protections surrounding the release of personal identifiers and allow immigration officers to better identify or locate persons in connection with the administration of the Migration Act.

These changes contribute to the continuing development and improvement of migration law and administration in Australia.

Ordered that further consideration of this bill be adjourned to the first day of the next period of sittings, in accordance with standing order 111.