Speech given by John Corcoran, President, Law Council of Australia at the opening of the Immigration Law Conference, Melbourne

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1 Welcome Address Speech given by John Corcoran, President, Law Council of Australia at the opening of the Immigration Law Conference, Melbourne 20 March 2009 GPO Box 1989, Canberra ACT 2601, DX 5719 Canberra 19 Torrens St Braddon ACT 2612 Telephone Facsimile Law Council of Australia Limited ABN

2 Welcome It gives me great pleasure to welcome you to the offices of Russell Kennedy in Melbourne for the 3 rd CPD Immigration Law Conference. This conference is proudly brought to you by the Immigration Lawyers Association of Australasia Focus Group of the Law Council s International Law Section, and the Refugee and Immigration Legal Centre Incorporated. Over the course of the next two days, this conference will aim to highlight and discuss important immigration law issues and to provide participants with a forum to exchange experiences. We ve been fortunate enough to attract an impressive list of guest speakers, all of whom are leaders in their field and experts on their chosen subject matter. In just a few minutes, the Honourable Laurie Ferguson MP, Parliamentary Secretary for Multicultural Affairs and Settlement Services, will deliver this morning s keynote address. Both today and tomorrow, participants will also have an opportunity to hear from Australian Industrial Relations Commissioner Barbara Deegan, Denis O Brien, Principal Member of the Refugee Review Tribunal, as well as representatives from law firms, the Bar and senior members of the Department of Immigration and Citizenship. And don t forget this evening s Conference Dinner address by His Honour Justice Mark Weinberg, of the Supreme Court of Victoria. The Law Council is very pleased to be involved in this event. Immigration law issues are of great importance to the Law Council and we are currently working on at least five policy areas of relevance to migration lawyers. These five policy areas are: 1. Dual regulation and the new regulatory arrangements affecting migration lawyers; 2. Interaction between migration law and criminal law in the Haneef case; 3. Legal aid in migration matters and access to justice issues; 4. Mandatory and indefinite detention in the context of recently announced policy reforms; and Immigration Law Welcome Address.docx Page 2

3 5. Broad nature of Ministerial discretion under the Migration Act. Allow me to touch briefly on each of these very important issues. Dual regulation and the new regulatory arrangements affecting migration lawyers The Law Council strongly opposes dual regulation of migration lawyers, which results from requiring migration lawyers to register as migration agents in order to assist their clients. Dual regulation should be ended immediately in light of the announcement by the Prime Minister that uniform regulation of the legal profession will become a COAG and SCAG priority. Migration lawyers should be permitted to undertake CPD which is not approved by the Migration Agents Registration Authority, but which is approved by the Law Society or Bar Association. Interaction between migration law and criminal law in the Haneef case The Haneef case, and the subsequent Clarke Inquiry, presented a critical opportunity to examine and review the interaction between migration law and criminal law and the impact this can have on the fundamental rights of individuals, particularly non-citizens of Australia. The purpose of migration law is to determine which non-citizens are able to come to and remain in Australia and on what terms. The purpose is not detention. When the operation of provisions of the Migration Act results in the detention of a person who has been released following a judicial order, a perception is created of executive inference in judicial proceedings. There is also a real risk that visa cancellation made on character grounds will undermine a person s fair trial rights in criminal proceedings. In order to prevent this from occurring, the Law Council has recommended that the Migration Act be amended to allow all those affected by an adverse decision made under section 501 the opportunity to seek merits review before the Administrative Appeals Tribunal. The Council also believes that: Immigration Law Welcome Address.docx Page 3

4 if a decision is taken to cancel the visa of a person who is facing criminal charges, and it is not intended to remove that person from Australia before the final disposition of the criminal charge, and a criminal justice stay certificate is issued accordingly, the Migration Act should provide that the person must be granted a criminal justice visa or other bridging visa. We have also recommended that when there are criminal charges pending against a non-citizen, the Minister for Immigration and Citizenship should be specifically required to consider the impact that any decision to cancel that person s visa will have on his or her ability to obtain a fair trial, before making a final decision. Legal aid in migration matters and access to justice issues The Law Council is concerned that the limitations placed on the availability of legal aid in migration matters leave many needy people unrepresented. We believe that Commonwealth legal aid guidelines should be amended to expand the migration matters in which Legal Aid Commissions can provide assistance in matters before the courts and review tribunals and adequate funding should be provided to enable them to do so. Administration of grants for assistance for primary applications to the Department and merits review tribunals should be restored to Legal Aid Commissions in relation to: visa applications where there are strong humanitarian or compassionate grounds, including applications for family reunion for protection visa holders and refugee and humanitarian visas, visa cancellations, and deportation decisions. Legal Aid Commissions apply a merits test to all applications and their involvement may reduce the number of unmeritorious applications by persons forced to represent themselves Immigration Law Welcome Address.docx Page 4

5 Mandatory and indefinite detention in the context of recently announced policy reforms The Law Council has been strongly and consistently opposed to mandatory, indefinite and non-reviewable immigration detention and has repeatedly called for the Commonwealth Government to replace that policy with a limited form of reviewable detention. The Law Council welcomed the Minister for Immigration and Citizenship s announcement in July 2008 last year of the Commonwealth Government s new policy position on immigration detention. We welcomed in particular the policy commitment to ensure children are not detained in immigration detention facilities, and to using immigration detention as a measure of last resort. Both the Australian Human Rights Commission and the Joint Standing Committee on Migration have recently urged the Commonwealth Government, as a matter of urgency, to give full legislative effect to its new immigration detention policy and amend the Migration Act 1958 (Cth) and Migration Regulations and Guidelines accordingly. The Law Council strongly endorses this recommendation. Without legislative change there is a risk that the policy will fail to result in any meaningful change to Australia s immigration detention regime. Broad nature of Ministerial discretion under the Migration Act The Law Council has long held concerns regarding the broad nature of ministerial discretion under the Migration Act and the non-compellable, nonreviewable and non-delegable nature of many of the Minster s decisions under the Act. The Law Council has particular concerns with the Minster s broad discretion in section 501 of the Migration Act to cancel a person s visa on character grounds. Decisions under section 501 cannot be reviewed by the Administrative Appeals Tribunal. The extended nature of the discretion invested in the Minister for Immigration has been examined by a number of independent bodies, including the Senate Committee on Ministerial Discretion in Migration Matters in March 2004 and more recently in the Proust report released in February Immigration Law Welcome Address.docx Page 5

6 The Minister himself has indicated that he has too much power and is actively considering reforms in this area. The Law Council calls upon the Australian Government to address the recommendations of the Senate Committee Report and respond to the recommendation of the Proust report. Conclusion These are just a few examples of the Law Council s growing involvement in immigration law issues. Some of these issues, no doubt, will be covered over the course of the next two days, and the vast majority will continue to play a significant role in the Law Council agenda over the coming year. Let me once again welcome you all to the 3 rd CPD Immigration Law Conference. The next two days promise to be enriching and rewarding and we trust you great a great deal out of the program. Ends. Disclaimer: This document remains the property of the Law Council of Australia and should not be reproduced without permission. Please contact the Law Council to arrange a copy of this speech. Elenore Eriksson Director, Public Affairs m e Immigration Law Welcome Address.docx Page 6

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