Bills Digest No. 149 2002-03
Migration Legislation Amendment (Further Border
Protection Measures) Bill 2002 [No. 2]
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest does
not have any official legal status. Other sources should be consulted
to determine the subsequent official status of the Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details
Passage History
Migration
Legislation Amendment (Further Border Protection Measures) Bill 2002
[No. 2]
Date Introduced:
26 March 2003
House:
House of Representatives
Portfolio:
Immigration and Multicultural and Indigenous Affairs
Commencement:
Royal Assent
To amend the Migration Act
1958 to extend the 'excision of the migration zone' to include islands
across the North of Western Australia, Northern
Territory and Queensland.
This Bill effectively reintroduces the Migration Legislation
Amendment (Further Border Protection Measures) Bill 2002 that was rejected
by the Senate in December 2002
On 7 June 2002,
the Governor-General signed the Migration Amendment Regulations 2002
(No. 4). These effectively extend the range of ‘excised offshore places’
to include:
- Coral Sea Islands Territory, Queensland
islands north of latitude 12 degrees south
- Western Australian islands north of latitude 23 degrees south,
and
- Northern Territory
islands north of latitude 16 degrees south.
The Regulations
commenced on gazettal (7 June 2002). However, as Regulations, they were disallowable
instruments under the Acts Interpretation Act 1901. As readers
will be aware, the Regulations were disallowed in the Senate on 19 June 2002. One effect of disallowance is that, subject to
certain exceptions, the Government cannot make a new Regulation which
is the same in substance as the disallowed Regulation for a period of
6 months after disallowance. Any regulation made in contravention of
this prohibition has no effect.
On 20 June 2002, the Migration Legislation Amendment (Further
Border Protection Measures) Bill 2002 was introduced and passed in the House of Representatives.
On 24 June
2002 the Bill was introduced in the Senate and was referred,
along with the broader 'excisions' policy, to the Senate Legal and Constitutional
References Committee for report on 29 August. This date was extended
to 26 September and later to 21 October.
The terms of reference for the Committee were to examine
the 'excisions' policy, including the implications for border security,
financial impact and effect on local communities, and the legislation
itself, particularly its consistency with Australia's
international obligations.
After the Report, Migration Zone Excision: An examination
of the Migration Legislation Amendment (Further Border Protection Measures)
Bill 2002 and related matters
(the Committee Report),(1) the Bill was negatived
in the Senate on 9 December
2002.
The present Bill
is the same as the Migration Legislation Amendment (Further Border Protection
Measures) Bill 2002 introduced into the House of Representatives on
20 June 2002.
The provisions in the Bill almost exactly replicate
the terms of the disallowed Migration Amendment Regulations 2002 (No.
4). The only real addition is section 4 which clarifies the operation
of section 46A in relation to the commencement of the new excisions.(2)
The Migration Amendment (Excision from Migration
Zone) Act 2001 (the Excision Act) created a separate visa application
regime applying to persons who arrive irregularly at certain places
that are 'excised' from Australian territory for the purposes of the
Migration Act 1958. The Act itself made Christmas
Island, Ashmore Reef and the Cocos (Keeling) Islands
'excised offshore places'. It provided for the excision of other islands
by regulation.
Schedule 1, item 1 adds the following
places to the definition of 'excised offshore place':
-
Coral Sea Islands
Territory
- Queensland islands
north of latitude 12 degrees south
- Western Australian islands north of latitude 23 degrees south,
and
- Northern Territory
islands north of latitude 16 degrees south.
Schedule 1, item 2 applies for these places
an 'excision time' of 2pm
on 19 June 2002.
As indicated above, the Migration Amendment Regulations
2002 (No. 4) commenced on 7
June 2002 and were disallowed on 19
June 2002. So, the extension of the excision regime was effective
for the period 7 June – 19 June. The focus of attention for these provisions
is therefore the period commencing on 19
June 2002. Given that, the provisions in Schedule 1 would
not commence until Royal Assent, it is necessary to amend the definition
of 'excision time' to allow the extensions to commence from this date.
This is done by item 2.
The Bill is situated within a wider context of excisions
and offshore border protection arrangements. Background to these issues
can be found in Bills Digest
No. 176 2001-02.
The key issues discussed here are those raised by the
Committee and in the Senate.
The key recommendations from the Committee Report were
that the Bill,(3) and the wider offshore processing policy,(4)
should not proceed. In the alternative, the procedures and 'declared
countries' in the offshore processing regime should be subject to greater
controls.
Under the alternative regime, standards would be set
for processing, either in the Migration Act 1958(5)
or in international agreements with 'declared countries'.(6)
The initial assessments of refugee status would be reviewed by the Refugee
Review Tribunal or the Federal Magistracy.(7) Moreover, each
of the 'declared countries' would be assessed on matters such as, for
example, their compliance with international asylum law, human rights
standards and their willingness to allow refugees to stay pending a
durable solution.(8) The assessment would be tabled in Parliament
in the form of a Ministerial Statement.
Significantly, if the Bill
was to proceed, it was recommended that it not be retrospective.(9)
As noted above, the terms of reference included the
'implications for border security'. The Committee Report identified
'border security' as relating 'mainly to control of migration'.(10)
Noting the number and range of islands and their proximity to Australia,
it sought to identify the major objectives of the proposed excisions
in terms of migration control.
The general objective was to address implications from
the first round of excisions. In the Second Reading Speech, and in evidence
to the Committee, the Government stated that the excision of Christmas
Island, Ashmore Reef and the Cocos (Keeling) Islands might cause people
smugglers to change their focus and target islands closer to the mainland,
the mainland itself or even New Zealand and, indirectly, the islands
en route to New Zealand.
The arguments associated with this issue were threefold.
One of the implicit arguments was that the excisions
would protect the safety of life at sea. In the first round of excisions,
it was argued that the excisions, and the Operation Relex powers,(11)
would reduce incentives to people smugglers to undertake hazardous journeys:
[The first round of excisions] will significantly reduce
incentives for people to make hazardous voyages to Australian territories.
It will help ensure that life is made as difficult as possible for those
criminals engaged in the people smuggling trade.(12)
In the second round of excisions, it was argued that
the change in focus described above 'would have disastrous consequences
… for those people being smuggled'. The Minister observed that '[o]ur
intelligence suggests that some of the boats are poorly equipped'.(13)
A more explicit argument was that the excisions would
require people smugglers to bring their vessels closer to the mainland,
increasing the chance of detection and prosecution:
The Bill, by extending excised offshore places to islands
off the northern coast of Australia,
and therefore requiring people smugglers to bring their vessels closer
to mainland Australia
will make it harder for these people smugglers to escape detection and
remove themselves without being caught and prosecuted.(14)
The most explicit argument appeared to be that the
excisions would reduce the prospect of people smugglers targeting islands
closer to the mainland, particularly in the Torres Strait.
But, it seemed unclear as to whether these islands would be targeted
intentionally, as an alternative to landfall on the mainland of Australia,
or accidentally, as an incident of an attempted landfall in New Zealand.
In the debate on the regulations, Senator Hill said:
[I]ntelligence was building that … instead of talking the
traditional short cuts across to Christmas Island or Ashmore Reef, …
boats would move along the Indonesian archipelago and basically get
into the Torres Strait. Once there, of course, they would be able to
deposit their customers on islands within the Australian jurisdiction
...(15)
In the Second Reading Speech in 2002, the Minister
referred to 'reports of a boat which is believed to be currently attempting
a journey towards Australia
with the reported aim of sailing through the Torres Strait
to New Zealand'.(16)
In evidence the Department said '[t]he intelligence we have suggests
that New Zealand
remains the primary target at this point'.(17)
The intelligence that we are gathering suggests that smugglers
are now changing their tactics, not necessarily to target the mainland
but to bypass the mainland on the way to New
Zealand. … It is that change in tactics
that we are noting from the smugglers that this bill—and the regulations
that were disallowed—is seeking to prevent.(18)
The Senate Committee explored the possibility of ad
hoc landfall in Australia
by boats en route to New Zealand
and the effect of the excisions in the Bill. There are many 'push and
pull factors' determining attempts to reach New
Zealand. The major factors determining
ad hoc landfall were the length of the journey, the pressures on passengers
and the difficulty of navigating the Torres Strait.
The Senate Committee appeared to be concerned that while the excisions
would deal with ad hoc landfalls in Australia,
they would not deal with the underling and more significant push and
pull factors in relation to New Zealand:
Aside from the risk of apprehension if a people-smuggling
vessel strays into Australian territorial waters or is forced by its
passengers to divert to the mainland, it is difficult to see how the
Bill would prevent any vessel from attempting to pass through the sea
channels of the Torres Strait on its way to New
Zealand. It is not clear how excising
Australian islands has any connection with that goal.(19)
Moreover, in relation to Australia,
the Senate Committee was concerned that the excisions would simply encourage
people smugglers to target the mainland directly:
[B]ecause of the excision of the outer islands and … the
change of destination, boats may come closer to the mainland. If this
happens, the likelihood of landings on the mainland increases. Accordingly,
the legislation is likely to be self defeating.(20)
The Senate Committee considered the argument to be
stronger in relation to other islands:
There is little evidence to support assertions that the
excision of islands close to the mainland is likely to deter asylum
seekers. In fact, some evidence was received that the likely effect
of the Bill would be to drive asylum seekers closer to the mainland,
either with the intent of landing there, or incidentally. Either may
increase the likelihood of landings on the mainland. There is also evidence
that far from reducing incentives for people to make hazardous journeys
to Australian territories, the Bill will increase the likelihood of
asylum seekers embarking on increasingly hazardous journeys, either
through the dangerous waters of the Torres Strait
or across Southern Australia. Accordingly, the
Bill must be considered as self-defeating.(21)
In dealing with border protection, and the need to
address the intentional targeting of the 'inner and outer' islands,
the Senate Committee examined the hypothetical prospect of excising
parts of the mainland. It referred to an answer to a question by the
Leader of the Opposition, where the Government said 'there is no intention,
and there never has been, to excise any part of the Australian mainland.
That is an absolutely ludicrous proposition.'(22)
While the proposition that parts of the mainland could
be 'excised from the migration zone' may not be government policy, such
a step would not relieve Australia
of its legal obligations under international human rights or refugee
law.
As a party to the 1951 Convention relating to the
Status of Refugees, as amended by the 1967 Protocol relating
to the Status of Refugees, Australia is obliged not to expel or
return, in any manner whatsoever, a person who has a well-founded fear
of being persecuted for reasons of race, religion, nationality, membership
of a particular social group or political opinion to a place in which
their life or freedom would be threatened on account of one of these
reasons.(23) The obligation of non-refoulement applies
regardless of whether the asylum seeker has entered legally or illegally
the territory of Australia.(24)
International human rights treaties are also relevant as they apply
to all persons, aliens and citizens, in the territory of or subject
to the jurisdiction of the State party.(25)
It appears that Australia
once had an arrangement whereby the mainland was effectively, 'excised
from the migration zone', at least for certain unauthorised arrivals.
The Migration Act 1958 once deemed unauthorised sea arrivals,(26)
and air arrivals,(27) not to have entered Australia
when they arrived at ports or airports and were detained onshore. The
genesis of these provisions was a provision in the Immigration Act
1901-1949.(28) These deeming provisions were eventually
removed, but not until the change over from entry permits to visas and
mandatory detention of unlawful non-citizens in the Migration Reform
Act 1992.
While the provisions only applied to persons detained
on vessels in port, they were viewed by government as an essential tool
in the treatment of onshore refugees. In 1989, in a Second Reading Speech
on a related Bill, the then Minister for Immigration said:
[t]he Government will not be amending s.36A … which
allows for undocumented arrivals to be deemed not to have entered Australia.
Removing this provision, which halts refugee claimants at Australia's
frontier, would, on the experience of other countries such as Canada,
the Federal Republic of Germany and Switzerland,
attract to Australia
tens of thousands of frontier claimants, many of them dubious. It
would thereby effectively shift our major refugee effort from overseas
to onshore.(29)
The practice of detaining border arrivals, on the basis
that they are deemed not to have entered a country, appears to have
been common practice in relation to air arrivals. It was based on the
view that an 'international zone' declared within an airport was not
part of the territory of the country or had an 'extraterritorial status'
for the purpose of domestic law. This created a legal fiction that the
person is not in the territory of Australia
but, it did not relieve Australia
of its obligations under international law.(30)
This point has been reinforced recently by a number
of cases in the European Court of Human Rights. In Amuur
v. France(31) the Court
held that while the France’s deeming provisions were valid in domestic
law, holding unauthorised arrivals in the international zone of an airport
made them subject to the law and jurisdiction of the relevant country
and that 'despite its name, the international zone does not have
extraterritorial status'.(32) This was reaffirmed in D v. United
Kingdom(33) where the Court stated that 'regardless
of whether or not [the applicant] ever entered the United
Kingdom in the technical sense … he
has been physically present there and thus within the jurisdiction of
the respondent'.(34) Consequently, the European Convention
on Human Rights and Fundamental Freedoms applied to those physically
present on the territory.
While these cases related to the issue of
detention, they have broader implications for the way in which a country
deals with refugees and underscore the argument raised above.
Once a person has entered Australian territory, Australia’s
international legal obligations under the Refugees Convention and
the International Covenant on Civil and Political Rights apply
and continue to apply at least until those persons have left the territory
of Australia.
Excising certain parts of Australia
for the purpose of removing access to refugee determination procedures
and/or to the courts generally does not alter that position.(35)
That said, the Refugees Convention is silent on the question
of domestic procedures to determine refugee status although, as a matter
of practice, domestic procedures are required in order to discharge
the obligation under Article 33. Similarly, whether Article 14 of the
International Covenant on Civil and Political Rights entitles
asylum seekers to any procedural rights in the determination of their
status is an open question.
Double dissolutions are provided for in section
57 of the Constitution:
If the House of Representatives passes any proposed law,
and the Senate rejects or fails to pass it, or passes it with amendments
to which the House ... will not agree, and if after an interval of three
months the House ..., in the same or the next session, again passes
the proposed law with or without any amendments which have been made,
suggested, or agreed to by the Senate, and the Senate rejects or fails
to pass it, or passes it with amendments to which the House ... will
not agree, the Governor‑General may dissolve the Senate and the
House ... simultaneously.
The following summary is drawn from a Bills Digest
in 1999:
A section 57 disagreement between the Houses in essence
arises where the Senate:
·
rejects a proposed law, or
·
passes a proposed law but with amendments which are unacceptable
to the House, or
·
'fails to pass' a proposed law.
One 'disagreement' is, however, not enough to prime the
double dissolution trigger, and the Senate must for a second time either
reject the Bill, fail to pass the Bill, or pass the proposed law with
amendments that prove unacceptable to the House of Representatives.(36)
It is not always easy to identify bills that fall
within the ambit of section 57.
The case of rejection by the Senate is fairly clear
and apparent from the terms of any Message from the Senate. The case
of 'failure to pass' is more complex. The Bills Digest above states,
citing Victoria v. Commonwealth,(37) that '[i]n
very general terms, what amounts to a 'failure to pass' for the purposes
of section 57 depends on the particular circumstances including the
history and nature of the Bill and normal Senate practice and procedure at the time'.
Whether, in any particular case, the Senate has made amendments
'to which the House of Representatives will not agree' has been the
subject of some debate. It has been argued that this involves circumstances
where there is a single disagreement between the House of Representatives
and the Senate.(38) However, it was the opinion of the Clerk
of the Senate in 1998 that the Senate must be able to reconsider its
amendments and change its mind:
The condition prescribed by section 57 … is that the Senate
passes the bill concerned "with amendments to which the House of
Representatives will not agree" [emphasis added]. This expression
indicates that there must be an ongoing unwillingness by the House of
Representatives to accept amendments made by the Senate … It is therefore
not sufficient for the House of Representatives to disagree once with
the Senate amendments; it must indicate its ongoing disagreement after
providing the Senate with an opportunity to change its mind and withdraw
its amendments.(39)
As noted, a Bill must be reintroduced and passed by
the House after 3 months. This period is not measured from the date
on which it was originally introduced in the House.(40)
In the case of a Bill that the Senate rejects, it is
measured from the date of the rejection.(41)
In the case of a Bill that the Senate fails to pass,
it is measured from the date of failure.(42)
In the case of a Bill that is passed with amendments
that are unacceptable to the House, it may be measured from the
date when the House has considered the amendments:
The expression in s. 57 is 'passes it with amendments to
which the House of Representatives will not agree'. Those words would
not, in my opinion … necessarily be satisfied by the amendments made
in the first place by the Senate. At the least, the attitude of the
House of Representatives to the amendments must be decided and, I would
think, must be made known before the interval of three months could
begin. But the House of Representatives, having indicated in messages
to the Senate why it will not agree, may of course find that the Senate
concurs in its view so expressed, or there may be some modification
thereafter of the amendments made by the Senate which in due course
may be acceptable to the House of Representatives. It cannot be said,
in my opinion, that there are amendments to which the House of Representatives
will not agree until the processes which parliamentary procedure provides
have been explored.(43)
But, this view, expressed by Barwick
CJ in Victoria v. Commonwealth, is only an opinion.
It is also important to note that the period ends when
the Bill is passed by the House. It may be reintroduced at any time,
but may not be passed until 3 months after rejection, etc.
The Bill as finally sent to the Senate
Another question relates to the extent of amendments that the House may
make to a Bill
prior to its final re-introduction into the Senate after the 3 month
interval required by section 57. As noted, section 57 allows the House
to pass a Bill at this juncture 'with or without any amendments
which have been made, suggested, or agreed to by the Senate'. Harris
suggests that the House may not make any other amendments such as amendments
in lieu of Senate amendments: '[t]he
Bill which is again passed by the House and sent to the Senate after
the three month interval must be the original Bill modified only
by amendments made, suggested or agreed to by the Senate'.(44) Odgers notes that this issue has
not been judicially considered, referring to a paper,(45)
where it was said:
The application of
section 57 in respect of a particular proposed law at each stage depends
on the retention of the identity of the proposed law as the proposed
law originally introduced by the House of Representatives, or that proposed
law with such amendments only as have been made, suggested or agreed
to by the Senate. This would seem to preclude any alteration of the
text of the proposed law (other than such amendments).(46)
In summary, bills may become 'double dissolution triggers',
if:
- they originate
in the House; and
- they are introduced
into the Senate, and:
-
are rejected by the Senate; or
-
are amended by the Senate in an unacceptable way
and laid aside by the House; or
-
'fail to pass' the Senate; and
- they are reintroduced
in the House and passed by the House 3 months after the rejection,
etc, provided they are not amended in any new way – it must be
the old disagreement between the House and the Senate and not a new
disagreement based on amendments by the House; and
- they are again reintroduced into the Senate and are rejected, etc.
- Senate Legal and Constitutional References Committee,
Migration Zone Excision: An examination of the Migration Legislation
Amendment (Further Border Protection Measures) Bill
2002 and related matters, October 2002.
- Section 46A is the formal mechanism by which an
'offshore entry person' is prohibited from making a valid visa application
whilst they are in Australia
and remain an unlawful non-citizen (a person in the migration zone
without a visa).
- Recommendation 1.
- Recommendation 3.
- Recommendation 5.
- Recommendation 6.
- Recommendation 2.
- Recommendation 4. It was recommended that the Migration
Act 1958 'incorporate similar requirements as those that apply
to safe third countries under section 91D'. The requirements above
are drawn from subsection 91D(3).
- Recommendation 10.
- Senate Legal and Constitutional References Committee,
p. 17.
- That is, the powers to control the movement of vessels,
and their passengers, offshore.
- Philip Ruddock MP,
Migration Legislation Amendment (Further Border Protection Measures)
Bill 2002, Second Reading Speech, House of Representatives, Debates,
18 September 2001,
p. 30869.
- Philip Ruddock MP,
Migration Legislation Amendment (Further Border Protection Measures)
Bill 2002, Second Reading Speech, House of Representatives, Debates,
20 June 2002,
p. 4017.
- Department of Immigration and Multicultural and
Indigenous Affairs, Answers to Questions on Notice to the Senate Legal
and Constitutional References Committee, 21 August 2002, p. 5.
- Senator Robert Hill,
Migration Amendment Regulations 2002 (No. 4): Motion for Disallowance,
Senate, Debates, 19 June 2002, p. 2167.
- Philip Ruddock MP,
Migration Legislation Amendment (Further Border Protection Measures)
Bill 2002, Second Reading Speech, House of Representatives, Debates,
20 June 2002,
p. 4018.
- Killesteyn, Evidence to the Senate Legal and Constitutional
References Committee, 6 August 2002, L&C p. 6.
- Killesteyn, Evidence to the Senate Legal and Constitutional
References Committee, 6 August 2002, L&C p. 6.
- Senate Legal and Constitutional References Committee,
p. 20.
- Senate Legal and Constitutional References Committee,
p. 20.
- Senate Legal and Constitutional References Committee,
p. 25.
- The Hon John Howard,
Answer to Question on Notice, 'Immigration: Border Protection', House
of Representatives, Debates, 17 June 2002, p. 3432.
- This specific obligation (against 'refoulement')
is contained in the Convention relating to the Status of Refugees,
Article 33(1). Australia
ratified the Convention on 22
January 1954.
- Whether the Refugee Convention has extraterritorial
application or provides for a right of non-rejection at the frontier
is an issue which turns on the interpretation of the phrase ‘any manner
whatsoever’. This issue falls outside the scope of the current Digest.
- See for example, article 2 of the International
Covenant on Civil and Political Rights (ICCPR).
- A person who arrived at a port aboard a vessel as
a stowaway or in circumstances where they might become a 'prohibited
immigrant' (ie without an entry permit) could be detained in Australia.
Such a person was 'not deemed to have entered Australia
by reason only of his having been taken ashore': Migration Act
1958–1989, section
88. This provision appeared as section 36 of the original Migration
Act 1958. It was repealed by section 19 of the Migration Reform
Act 1992.
- Migration Act 1958–1994, section
89. This provision was inserted by section 21 of the Migration
Amendment Act 1979.
- Immigration Act 1901-1949, subsection 13C(3),
inserted by Act No. 86 of 1948: '[a] stowaway shall not, for the purposes
of this Act, be deemed, by reason only of his having been taken ashore
in pursuance of this section to have entered the Commonwealth or to
have been given permission to land'.
- The Hon Clive Holding,
Second Reading Speech
Migration Legislation Amendment Bill 1989, House of Representatives,
Debates, 1 June 1989,
p. 3447.
- International treaties apply to the whole of the
territory of the State, including external territories and apply to
all persons within the territory or subject to the jurisdiction of
the State party, see for example, Article 2 of the International
Covenant on Civil and Political Rights.
- Amuur v. France, European Court of Human
Rights, Strasbourg (judgment of 25 June 1996) 22 EHRR
(1996) 533.
- At [52].
- D v. United
Kingdom, Judgment of 2 May 1997;
(1997) 24 EHRR 423.
- At [48].
- Australia
has no reservations in place limiting the application of these treaties
to persons on the mainland. In any event, reservations of this nature
would arguably be contrary to the object and purpose of the treaties
and therefore of doubtful validity.
- Bob Bennett, Workplace
Relations Legislation Amendment (Youth Employment) Bill 1998 [No.
2], Bills Digest No. 46 1999-2000.
- (1975) 134 CLR 81.
- George Williams,
'The Road to a Double Dissolution', Research
Note No. 29 1997-98.
- Harry Evans, 'Constitution,
section 57; Native Title Amendment Bill 1997; and Public Service Bill
1997', hc/pap/11732, 28 January
1998.
- Victoria
v. Commonwealth (1975) 134 CLR 81.
- The headnotes to Victoria v. Commonwealth describe
the majority decision as follows: '[t]he three month interval is measured
not from the first passage of a proposed law by the House of Representatives,
but from the Senate's rejection or failure to pass it. This interpretation
follows both from the language of section 57 and its purpose which
is to provide time for the reconciliation of the differences between
the Houses; the time therefore does not begin to run until the deadlock
occurs'.
- Clearly, as noted, this may be difficult to quantify.
- Victoria
v. Commonwealth (1975) 134 CLR 81, per Barwick
CJ at p. 124.
- Harris, op. cit., p. 447. Harris refers to a case
involving the Aboriginal and Torres Strait Islander Commission Amendment
(Indigenous Land Corporation and Land Fund) Bill 1994 in which the
Government agreed to accept some of the Senate amendments, but changed
the short title of the bill.
- Harry Evans (Ed),
Odgers' Australian Senate Practice, 10th Edition, p. 86.
- Comans, 'Constitution, section 57 — further questions',
Federal Law Review, Vol. 15 No. 3, September 1985, p. 243 at
p. 246. Comans suggests that 'identity of text is not necessarily
enough' and that section 57 may require an identity in terms of legal
operation or effect. He refers to the potential problem that would
arise if, in the meantime, other amendments were made to the principal
legislation that would vary the legal operation of the bill or would
partly enact its provisions or a variation of. The bill would not
be the same, in a legal sense, as the one originally introduced
in the House: 'It would seem that, to keep within the terms of section
57 the twice rejected Bill would have had to be introduced in its
original form notwithstanding that that form included some provisions
already enacted. However, as these provisions of the reintroduced
Bill could not, in the circumstances, have any legal effect, it could
have been argued with some force that the Bill was not the same proposed
law as that previously twice rejected by the Senate' (at p. 247).
Nathan Hancock
13 May 2003
Bills Digest Service
Information and Research Services
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