Migration Amendment Bill 2013 - Second Reading


Senator IAN MACDONALD (Queensland) (11:44): I support this bill and think that it is another step by the minister in trying to bring some sense and certainty to the whole refugee and migration program. I congratulate the minister on what he has done. I have long been an adversary of those supporting the illegal arrival of people into our country, on the basis that every person who arrives illegally further pushes out someone who is doing the right thing by waiting in a squalid refugee camp somewhere around the world for their turn to get to Utopia—Australia. I congratulate the minister on the work he has done on border control. It is a fantastic record and it will help regularise our refugee and migrant intake. In the budget, something like $2½ billion will be saved because detention centres can be shut down. The sheer cost of dealing with people arriving illegally in our country has been addressed by the fact that no-one now is illegally arriving, so all congratulations to the minister for that.

I want to speak on some comments and recommendations by a couple of Senate committees of which I am a member. The Legal and Constitutional Affairs Legislation Committee made three recommendations on this bill, the third of which was that the bill be supported. But the third recommendation also contained a plea, a request, a recommendation that the government seriously consider recommendations 1 and 2. Recommendation 1 related to hearings of the Refugee Review Tribunal and the Migration Review Tribunal. When a matter is brought before one of those tribunals by an applicant a decision is made but, as I understand it, the decision is only communicated by mail, or by some transmission process, but not in a court. I accept that these tribunals are not courts and they fulfil a different role from courts, and I do understand that they do need a degree offered stability. But we did here evidence from applicants who have been before the tribunal. What I understand happens in most cases is that the tribunal reserves its decision and then at some time the tribunal registry writes out to the applicant and tells them the decision. That is fine if they get the advice. But for any number of reasons, some of which were mentioned to the committee—applicants move, the addresses are not valid or something else has happened—some persons never actually receive advice of the decision.

I and the committee understand that the department need some certainty as to when decisions are finally determined. I and the committee agree that there has to be that certainty—and some of the provisions put in place by this bill help with that. But it concerns me that there are instances where people, through no fault of their own, do not actually receive advice of the outcome—and the appeal provisions are then in some difficulty. I hope the minister might refer to this in her final address, but I understand there is a suggestion that, if someone does not actually receive advice, then it is a defective advice and the appeal times do not run until the person is advised. That was not, as I recall, the evidence before the committee. I thought some of the evidence given before us did relate some instances where, through no fault of the applicant, the applicant was not aware of the outcome until somebody turned up at the door and said, 'You're being deported.' As a lawyer and a politician, I find it unfortunate that there is not any certain way that applicants can be advised of the final decision.

Recommendation 1 was that the committee recommend to the department that it put in place policies and procedures, consistent with the act, which would support applicants to seek leave to apply out of time or apply for alternative forms of review in the rare situations where the department or tribunal fails to correctly notify the applicant and the applicant has been directly disadvantaged. If there is an answer, I would have hoped that the minister may have responded before this time. As everyone knows, this is my government and it is my minister. But that does not absolve anyone on the executive, in my view, who ignores recommendations and reports of this parliament, of this Senate committee.

I have a vague suspicion that I read somewhere that an explanation was given for why you could not reconvene the tribunal to actually deliver the judgement in person—which is what I and others suggested at the committee hearing. We suggested that, if it was 12 months later—and in some instances I understand that it is—that the decision was about to be delivered, the applicant should be advised. They could appear in the tribunal by themselves or via counsel and actually hear the decision and would then know straightaway what the decision was. And then, if there were appeal processes, they could start straightaway. I hope I am not misjudging the minister—perhaps he has written to me and I have lost it in my paperwork—but I would hope that any minister would respond seriously to recommendations of Senate committees.

Recommendation 2 was dealt with not only by the Legal and Constitutional Affairs Legislation Committee but also by the Scrutiny of Bills Committee, which met this morning and—unbeknown to me, I must confess—had raised the same issue. The minister did give a response to the Scrutiny of Bills Committee, which I will relate. Again, it was not a particularly useful response, but at least it was a response to the Scrutiny of Bills Committee. Recommendation 2 was:

… that the … Government consider putting in place a regulatory framework to underpin the powers, authority and role of the Independent Reviewer of Adverse Security Assessments.

I think most Australians would expect that under Australian law it is a criterion for a grant of a protection visa that an individual does not have an adverse security assessment by ASIO. I think we would all accept that. If ASIO have some real problems with an applicant then we as Australians do not want that person in our country. I think that is in order.

But ASIO, as they admitted in evidence before the committee, are not always perfect. Sometimes they do make a mistake. They gave, as I recall, evidence saying that on one occasion they had given an adverse security assessment. They then, some months down the track, realised that they had got it wrong, that the information they had been working on was not valid, and they withdrew their assessment. So it does happen, on the admission of ASIO themselves, and I am sure that, human nature being what it is, there are at times mistakes made.

To address that, governments in the past have arranged for what is called the Independent Reviewer of Adverse Security Assessments to have a role not in rehearing or completely reassessing the work that ASIO has done but in cases of people who feel that they have been judged on the wrong basis, on the basis of the wrong facts. They can approach the independent reviewer, as I understand it, and have the matter looked at. The situation, I understand, works well.

We noted in our report that the committee supported 'the excellent work undertaken by the Hon. Margaret Stone in her role' as the independent reviewer and that this system does work. That is good. We all support that. Unfortunately, though, the position is not a statutory or a regulatory position; it is a policy position of the government of the day. Accordingly, while it seems to work well and everyone seems to be happy with that, tomorrow a government could say, 'Sorry, that position is abolished; it's gone.'

This is a very important issue. I am a great supporter of ASIO. I know they do a very, very difficult job. I am not one of those who would in any way want to diminish their powers, because they do a fabulous job in protecting and supporting our country and my fellow Australians. But, as I say, given the instance—and there are many others, I understand—where mistakes have been made or a decision has been made on wrong facts, this process of the independent reviewer does give confidence to me and everyone else in a democracy like Australia that, if decisions have been made on the basis of completely wrong facts or maliciously or in any other improper way, there is someone you can go to and say, 'Hey, can you have a look at this because I think they got it wrong?' So it works. It is good. Everybody supports it. But it is only a policy decision.

Recommendation 2 of the Legal and Constitutional Affairs Legislation Committee was that the government look at putting some more certainty into that position. As I say, as far as I am aware, there has been no response by the government to that recommendation. Perhaps the minister may be able to address that in her final summation. But the same issue was raised by the Scrutiny of Bills Committee. The issue there was that, while there is a process for independent review of adverse ASIO security assessments, in the light of concerns particularly that the process is fully administrative, independence is not guaranteed by the law and the whole scheme is 'subject to administrative alteration or abolition at any time'. That is from the Scrutiny of Bills Committee report.

The report goes on to say that the committee sought advice from the minister on whether the independent review process should be placed on a statutory basis. The minister responded to the scrutiny committee and did not answer the question—which mildly annoys me as well—so the committee wrote again to the minister. The minister did then say that placing the independent review process on a statutory basis is beyond the policy intent of the bill. The minister also noted the role of the Independent Reviewer of Adverse Security Assessments but stated that the government does not consider it appropriate or necessary that an independent reviewer be established on a statutory basis. I am reading from the digest. I am not sure that the government gave any reasons why they did not consider that the additional scrutiny needed to be subject to regulatory or legislative attention, so I again ask the government. The minister has just mentioned to me privately, and no doubt she will put this on the record, that this independent reviewer of adverse security assessment is not a matter for the immigration minister but rather the Attorney-General. I accept that that would be the case, but the recommendation of the committee was not a recommendation to the Minister for Immigration and Border Protection; it was a recommendation to the Australian government, of which the Attorney is a member, about that issue.

The fact that these amendments have not been followed does not cause me to suggest that the Senate should not support this bill. I certainly will be supporting the bill. But I would hope that those two issues do receive the attention of the government sometime in the future. There may be a very good reason why the independent reviewer of adverse security assessments is just there as a policy decision. But if that is the case then I would not mind hearing it. It would seem to me that this process of assessments and then those assessments having very dramatic results in what happens to applicants in the future is something that perhaps governments could look at making more secure. Like the appeals court, like the High Court, perhaps we should do that. I look forward to the minister responding to those two things and putting on record what the government's decision is.

With those concerns about the process, this is a bill that does take Australia forward. I think it is a very worthy bill and I certainly will be supporting it.

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