Before I move my amendment, I wanted to ask one or two very brief further questions of the minister. Minister, I note that it's possible that you were only part way through an answer when we hit the adjournment debate last night, but it's also possible that you weren't. I did want to take the opportunity this morning to ask you the following question: if this bill passes, what will happen to humanitarian visa applications made by dual citizens that have already been found to be invalid under current legislation and are awaiting ministerial intervention?
I had concluded my answer last night, but I might take this opportunity to respond to a couple of things we took on notice.
To provide further clarity, the High Court in Plaintiff S157/2002 v Commonwealth held that actions of the staff of the department are subject to constitutionally entrenched judicial review. Accordingly, a person affected by a decision of a departmental officer under the new provision will have the ability to seek review of that decision in the courts. The courts will have a role in interpreting the scope of the substantial compliance provision, which will be binding on departmental staff.
In terms of changes to the migration regulations flowing from this bill, they would be disallowable. The bill does not allow for the specific making of regulations to further define terms contained within the bill. I have not been able to get to a specific answer on the number of noncompliant notices in the time frame, but where a notice has been found to be defective it will be reissued. We will endeavour to come back to you with a more fulsome answer at a later date.
In terms of the question just put then, regarding the provisions of this bill and their impact on humanitarian visa applications by dual citizens, a dual national who has made an application for a visa, where a finding as to their dual nationality is pending as at the commencement date, will not need to make a new application. Their existing application will become valid, subject to them meeting all other criteria. A person who has previously made an invalid application for a protection visa on the basis of a finding that the person is a dual national will need to make a new application for a protection visa and will need to meet all other validity criteria. The department will directly contact those persons with pending requests for ministerial intervention, to notify them that they can make a new application, and the department will publish information about making a new application on its website as well.
Can I express my appreciation to the minister for reverting back to the Senate on some of the questions that I asked him last night and also for his response to the question I asked this morning. I acknowledge that the minister for immigration has provided for that to happen. I thank both ministers for that. The last question I have is: while the department is drafting the regulations required by this bill, will the government commit to consulting with the sector as part of the drafting process?
We remain committed to undertaking appropriate consultation with the legal sector on the substantial compliance framework for this bill and in the future.
I would note that it would be helpful if the department would consult on this with the refugee sector as well as the legal sector. Once again, I thank the minister for his constructive responses to the questions I asked him both last night and this morning. With that, I move:
(1) Clause 2, page 2 (table item 2), omit the table item.
(2) Schedule 1, page 3 (line 1) to page 10 (line 6), to be opposed.
I want to put the government's position on these amendments in that we will note the concerns raised by Senator McKim but will not be supporting the amendments. The bill creates a stronger, more coherent notification framework and addresses a number of technical deficiencies which have been identified in recent court judgements. The amendments in this bill will give greater certainty to visa applicants, visa holders and those whose visas have been cancelled, as well as to decision-makers in relation to notifications given under the Migration Act and regulations.
I briefly want to state on record that, as I said in my second reading speech, the opposition is supportive of the majority of this bill, save for schedule 2, which has now been dealt with by way of our unsuccessful amendment, and therefore we will also be opposing the Greens amendment.
The question is that schedule 1 stand as printed.
Date and time: 10:51 AM on 2023-06-21
Senator Pocock's vote: Aye
Total number of "aye" votes: 26
Total number of "no" votes: 12
Total number of abstentions: 38
Related bill: Migration Amendment (Giving Documents and Other Measures) Bill 2023
Adapted from information made available by theyvoteforyou.org.au