Immigration Lawyers of Australia Conference
Melbourne, 8 February 2008
Acknowledgements
Ross Ray QC, President Law Council of Australia
Maria Jockel, Chair, Immigration Lawyers Association of Australasia and convener of the Conference
Ladies and gentlemen
Introduction
It's a great pleasure to be here and to have the opportunity to meet you in my role as Parliamentary Secretary for Multicultural Affairs and Settlement Services.
As most of you are probably aware, I have been involved in, and interested in migration for many years.
Over those years, I have observed first-hand many of the issues that have evolved in the migration agent and migration law professions and played a central role in the last major legislative reforms.
The core of my involvement stems from a few realities. My seat is probably one of the most ethnically diverse in Australia, and some 85 per cent of the work that comes through my electorate office is about migration issues.
In the last Census, 51.5 per cent of respondents in Reid indicated they were born outside Australia compared to a national figure of 23.85 per cent.
Reid is the most Islamic seat in Australia and has the second highest level of residents with Chinese ancestry. Importantly, it also has a high new arrival presence.
So I've been at the front-line if you like, as Australia has experienced its record migration levels since the 1950s, with some 1.5 million people arriving on our shores to begin a new life, over the past 15 years.
Growth in migration
In Australia’s current population of just over 21 million, 45 per cent of us were either born overseas or have at least one parent who was born overseas.
There are now more than 200 languages spoken in Australia.
At the end of last year, the Australian Bureau of Statistics announced that Australia had recorded its largest annual population increase ever.
Net overseas migration contributed 54 per cent to this growth.
Therefore, immigration has been - and will continue to be - a major factor in shaping Australia’s population.
The size of the Migration Program has increased substantially over the past few years, reflecting a strong economy and related demand for skilled labour and it’s likely to increase further.
The need for vigilance has been shown in this growth activity by the widespread use of the opportunities to undermine Australia’s wages and conditions and to utilise these visas to fill unskilled jobs.
There will be major demographic shifts in the next few years as large numbers of baby boomers move into retirement.
This will affect the rate of growth of Australia’s working age population but managed migration programs will help to stabilise the actual size of our working age population at sustainable levels.
The skills shortages being experienced in Australia tend to be concentrated in certain geographic areas and are often sectoral. The Government will work with industry, state and territory governments and other stakeholders to target our skilled migration intake to areas of greatest need.
Obviously, the Government will also endeavour to counter the growth of exploitation of workers which has accompanied this surge in the skills crisis.
So you can see we are dealing with a complex and dynamic environment.
Having said that, it's also important to remember that immigration is not the silver bullet for all skills and labour shortages and demographic change.
However, well-planned migration mechanisms will certainly complement other public policy initiatives including domestic training strategies and policies which encourage people to stay in the workforce.
I know that various groups have put forward their own solutions to address shortages in unskilled labour as well.
It’s clear that there needs to be more work across Government in identifying the nature and quantum of these shortages and the extent to which unemployed or under-employed Australians can be better matched to labour market needs.
For instance, Australia has creatively used some of its temporary entry mechanisms such as the Working Holiday Maker program (which continues to expand) to help address the needs of primary industry and regional Australia.
And whilst there are currently high levels of demand for access to places under the Skill Stream of the Migration Program, it may not stay that way.
We already face competition from other developed nations also trying to attract skilled migrants for their own economies.
This is clearly the pattern of the competitive overseas education market.
For instance, European countries are for the first time developing managed skilled migration frameworks and they have already shown a keen interest in Australia’s success in this area.
Migration is not just about widgets and bottom lines. It is also about social and cultural benefits and there is an important humanitarian dimension
This year Australia will visa around 50,000 people in the Family Stream of the Migration Program. A large component of this stream is made up of the spouses and children of Australian citizens and permanent residents.
At the same time, Australia remains committed to being a good “world citizen” and making a contribution to resolving humanitarian crises.
The new Government’s renewed emphasis on the United Nations and multi-lateral endeavours is indicative of this.
This is being done through the Humanitarian Program which is currently set at 13 000 places per year.
Australia is one of only ten countries that has a dedicated program that actively seeks out and resettles people in humanitarian need and ranks among the top three countries, along with the US and Canada, in terms of the number of people accepted for resettlement each year.
One might say that we are somewhat immune to dramatic international movements due to our geographic location. However, given globalisation, some figures in a recent Guardian Weekly article by Tracy McVeigh are informative.
She notes that according to the UN Population Division, in 1975, there were only 84 million migrants whereas in the view of the Organisation for Immigrants, there were 150 million by 2000.
From 1985 to 1990, global population increased by 1.7 per cent, whereas international migrants rose by 2.59 per cent. Europe in particular has faced systematic illegal migration surges in recent years.
So where do Australia’s migration lawyers fit into this picture?
Complexity of migration law
Immigration law has always been a dynamic, controversial and highly contested area of public policy.
It is a controversial area of public policy because it concerns regulates the entry, stay or exclusion from Australia, of non-citizens.
It involves setting parameters about which individuals, what manner and how many, should be allowed to enter the country.
This in itself involves consideration of controversial issues, including human rights, cultural diversity, national security and perhaps more frequently, sustainability.
It involves decision-making on complex matters such as whether a person meets the relevant visa criteria: passes the character test, has suitable sponsorship arrangements in place, meets health requirements or meets eligibility for citizenship.
But it’s also easy to forget that immigration policy has always been a source of debate in the Australian community.
For instance, one of the first Acts of the Federal Parliament in 1901 was the Immigration Restriction Act, known as the White Australia Policy.
This Act and its administration started over a century of contention over migration law.
In the 1920s, immigration laws on “who constituted a constituent member of the Australian community” were a feature of constitutional litigation. That is still the case today.
The introduction of the English dictation test attracted as much attention in the 1950s, as the citizenship test did in 2007.
What this tells us is that there has always been lively debate on immigration issues in this country, which I believe is a good thing.
Obviously it has been an area where there has been a contention that some of the debate was limited to a narrow band of people least affected by outcomes.
However, a lot has changed in the immigration law environment over the past 20 years, including as a result, the growth of accountability mechanisms and the development of more detailed policies and procedures.
The dynamism in the immigration law environment is reflected in the changes to immigration legislation in the past 20 years.
Much of this legislative change has resulted from the need to balance the competing expectations of flexibility and certainty in immigration decision-making.
Since 1986, the Migration Act has changed from a slim volume of broad principles to now encompass more than 550 provisions and more than 1900 pages of regulations.
As an example, in 2005, 1100 amendments were made to the Migration Regulations.
In addition, the new Australian Citizenship Act commenced on 1 July 2007.
Immigration policy and law is also highly contested, reflecting the complex nature of many issues involved in immigration decision-making and the fundamental nature of rights affected.
Immigration policy has been at the forefront of administrative law contestability since the introduction of the administrative law package in the late 1970s.
Since 1986, the migration litigation caseload has increased from double figures to more than 4000 applications for AAT and judicial review in 2006-07.
It is clearly an area of law where a significant proportion of the litigation is designed to guarantee lengthy sojourns in Australia regardless of the bona fides of clients.
Dual Regulation
I would now like to touch on the issue of dual regulation of migration lawyers.
I’m aware that the Law Council of Australia has publicly stated that it considers that lawyers who provide advice on migration matters should not be required to be registered under the migration agents’ regulation scheme because they are already regulated as lawyers.
In particular, I’m aware of the Council’s view that dual regulation is inconsistent with efforts of the Standing Committee of Attorneys-General, through the National Legal Profession Project to create a principled and uniform scheme of regulation for the legal profession.
I would like to acknowledge at this point that there are arguments both for and against dual regulation and this issue is being thoroughly reviewed through the 2007-08 Review of Statutory Self-Regulation of the Migration Advice Profession.
Thirty-seven submissions to the Review were received, with some supporting and others opposing the continuation of dual regulation.
The Department is currently considering all submissions with a view on dual regulation.
A special meeting was held on 30 January with the External Reference Group and representatives from the Migration Institute of Australia and the Law Council of Australia to discuss the issue of dual regulation of lawyers.
Initial feedback from this meeting has been positive and both the Migration Institute of Australia and the Law Council of Australia are working well together to arrive at a mutually acceptable outcome. Hopefully outcomes will provide a clearer path forward, with several recommendations to consider.
The Review will then report to Minister Chris Evans in June 2008.
Departmental business transformation
Central to many of the issues which impact on the migration advice profession, is the massive business and cultural reform currently happening in the Department of Immigration and Citizenship, following the Palmer and Comrie Reports in 2005.
The reforms are now two years into the four year program and I recognise that the department still has much to do.
However, few would argue against the analysis that in that time the department has improved its leadership and governance arrangements, including enhanced business planning, risk management, quality assurance, internal audit, stakeholder management and communication.
It has also invested in training its staff and improving its operational processes and guidance to staff.
A stakeholder engagement strategy has been developed for relevant exchange of information between key stakeholder groups and an enhanced case management approach has been implemented to ensure a focus on the management of vulnerable clients or those whose circumstances are complex.
Importantly, every person in immigration detention has a dedicated case manager to achieve the appropriate outcome as quickly as possible.
Over and above general training efforts in the department, a College of Immigration has been established to provide targeted, structured courses to progressively address the learning and development needs of its compliance, border security and detention staff.
A major element of the business transformation is occurring through the improvement of the department’s IT systems.
This will provide staff with an integrated view of all dealings with a client.
Overall, these reforms collectively contribute to the department becoming an open and accountable organisation with fair and reasonable dealings with clients.
As I said earlier, there is still some way to go, but I’m pleased that feedback from the Commonwealth Ombudsman indicates that the department is making significant headway in its reform process.
Conclusion
Ladies and gentlemen, in conclusion, let me say that I am looking forward to working with you, in the future.
Whilst I’m aware that some of you have already made your views known through the current Review process, I also encourage you to provide feedback to me on issues that impact on your profession and your clients, some of who are extremely vulnerable people with limited experience of our legal system or society’s nuances.
This feedback will help us to improve the effectiveness of the laws surrounding migration which we know is likely to increase steadily over the coming decades.
I encourage you to speak as a group, with clear and consistent arguments and feedback that will strengthen the relationship between the government and your profession.
This will build on the enormous capability and expertise that exists in the profession, and will ultimately benefit your clients by making their migration experience as smooth as possible.
Thank you.
See:
Index of Speeches
URL: http://www.minister.immi.gov.au
/parlsec/media/speeches/2008/lf080208.htm
Last update: 13 August 2008 at 17:14 AEST