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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