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 21 MESSAGE FROM THE SENATE—MIGRATION LEGISLATION AMENDMENT BILL (NO. 1) 2002

Message No. 451, 30 March 2004, from the Senate was reported returning the Migration Legislation Amendment Bill (No. 1) 2002 with amendments.

Ordered—That the amendments be considered forthwith.

Mr Hardgrave (Minister for Citizenship and Multicultural Affairs) moved—That the amendments be disagreed to.

Debate ensued.


Question—put.

The House divided (the Deputy Speaker, Mr Scott, in the Chair)—

AYES, 77

Mr AbbottMr DuttonMr P. E. KingMr Slipper
Mr AndersonMrs ElsonMrs LeyMr A. D. H. Smith
Mr K. J. AndrewsMr EntschMr LindsayMr Somlyay
Mr AnthonyMr FarmerMr LloydDr Southcott
Fran BaileyMr Forrest*Mr McArthur*Dr Stone
Mr BairdMrs GallusMr I. E. MacfarlaneMr C. P. Thompson
Mr BaldwinMs GambaroMr McGauranMr Ticehurst
Mr BarresiMrs GashMrs MayMr Tollner
Mr BartlettMr GeorgiouMrs MoylanMr Truss
Mr BillsonMr HaaseMr NairnMr Tuckey
Mrs B. K. BishopMr HardgraveDr NelsonMr M. A. J. Vaile
Ms J. I. BishopMr HartsuykerMr NevilleMrs D. S. Vale
Mr BroughMr HockeyMs PanopoulosMr Wakelin
Mr CadmanMr HuntMr PearceDr Washer
Mr CameronMr JohnsonMr ProsserMr Williams
Mr CausleyMr JullMr PyneMr Windsor
Mr CharlesMr KatterMr RandallMs Worth
Mr CioboMrs D. M. KellyMr Ruddock
Mr CobbJackie KellyMr Schultz
Mr CostelloDr KempMr Secker

NOES, 59

Mr AdamsMr L. D. T. FergusonMs C. F. KingMr Price
Mr AlbaneseMr M. J. FergusonMr LathamMr Quick*
Mr AndrenMr FitzgibbonDr LawrenceMr Ripoll
Mr BevisMs GeorgeMs LivermoreMs Roxon
Mr BreretonMr GibbonsMr McClellandMr Sawford
Ms BurkeMs GillardMs MacklinMr Sercombe
Mr ByrneMs GriersonMr McLeayMr Sidebottom
Ms CorcoranMr GriffinMr MelhamMr S. F. Smith
Mr CoxMs HallMr MossfieldMr Swan
Mr CreanMr HattonMr MurphyMr Tanner
Mrs CrosioMs HoareMs O'ByrneMr K. J. Thomson
Mr Danby*Mrs IrwinMr B. P. O'ConnorMs Vamvakinou
Mr EdwardsMs JacksonMr G. M. O'ConnorMr Wilkie
Mr EmersonMr JenkinsMr OrganMr Zahra
Mr EvansMr KerrMs Plibersek

* Tellers

And so it was resolved in the affirmative.

Mr Hardgrave presented reasons, which were circulated, and are as follows:

Reasons of the House of Representatives for disagreeing to the amendments of the Senate

Senate Amendments 1 and 2

These amendments propose to change the framework for immigration detention by introducing a requirement that unaccompanied minors be released as soon as possible into foster care or other appropriate community-based care arrangement as determined by an appropriately qualified child protection officer. The amendments also propose to specify detention conditions for any detained child.

These amendments are unnecessary. The existing legislative scheme is sufficiently flexible to respond to the specific needs of individual detainees, including children. The amendments also introduce complexity and uncertainty since they do not specify whether unaccompanied children will be granted visas (and if so, on what conditions) upon their release. The amendments are at odds with the universal
visa system contained in the Migration Act 1958. The amendments remove the discretion vested in the Minister to ensure that the most appropriate arrangements are made for each individual unaccompanied child, which arrangements may not necessarily be placement with a foster family or community-based care arrangement (as required by the proposed amendment).

The proposed section 197E (relating to detention conditions of any detained child) is unworkable and creates a potential risk to the welfare of children. The proposed section requires detained children to be accommodated with their family members, yet does not define family members and does not provide any protection for children at risk from abuse from family members.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendment 3

The proposed amendments seek to partially implement a package of amendments to the Migration Regulations 1994that was disallowed by the Senate in October 2003. The proposed amendments broaden the coverage of temporary protection visa (TPV) arrangements to include all asylum seekers arriving in Australia, not only those arriving unlawfully. The amendments also provide the ability to grant TPVs and temporary humanitarian visas for periods shorter than those currently specified in the Migration Regulations 1994. Finally, the proposed amendments would remove the 7 day rule (which prevents non-citizens who, while en route to Australia, spend 7 or more days in a country where they could have obtained effective protection from applying for a visa in Australia) for certain subclass 785 visa holders.

The proposed amendments undermine the changes that were made by the Parliament in September 2001 as part of a tiered and comprehensive legislative approach to providing protection in Australia. In particular, the selective implementation of some of the amendments that were disallowed undermines the overall framework designed to remove incentives for those who have bypassed opportunities for protection elsewhere to obtain permanent residence at the expense of Australia's international resettlement program.

The proposed abolition of the 7 day rule for certain subclass 785 visa holders would allow forum shopping by applicants who could have sought and obtained effective protection in a country through which they passed to get to Australia. This would also encourage people smugglers to attempt to deliver these persons to Australia.

Accordingly, the House of Representatives does not accept these amendments.

Senate Amendment 4

The proposed amendments have the effect of limiting the duration of TPVs to 24 months and preventing TPV holders from applying for another temporary visa. The proposed amendments would thus restrict refugee applicants to only one TPV, with a permanent visa to follow where the person remains in need of protection.

The amendments appear intended to remove the 7 day rule. However, in order to give effect to this intention it is necessary to also change the criteria for the permanent protection visa (subclass), which the proposed amendments do not do. The proposed amendments prevent non-citizens granted a TPV from obtaining a further protection visa of any sort for a period of 6 months.

As with Senate Amendment 3, these amendments undermine the comprehensive legislative approach to providing protection adopted by Parliament in 2001.

Accordingly, the House of Representatives does not accept these amendments.

On the motion of Mr Hardgrave, the reasons were adopted.