Tuesday, 5 December 2017
Regulations and Determinations
Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017; Disallowance
I was just expounding on the way that the current immigration minister has abused the broad-ranging powers that this parliament has, sadly, seen fit to already give him. Now he's in here again, in a massive overreach, asking for yet more powers. One of the powers that he is asking for in this instrument that we are seeking to disallow is a power around responding to a healthcare debt. You've got to remember, Mr President, that many of these people that we're discussing may have spent years in a detention system, or being persecuted in other countries, or living in Australia on insecure bridging visas or other temporary visas, including temporary protection visas. Once they get a modicum of stability in their life, they are going to be faced with these draconian new conditions that the minister is seeking to impose. That will underscore the already fragile nature of the temporary visa status and, as I said earlier, expose a person potentially to detention and incarceration at the discretion of an immigration department official.
With regard to health debts, in this instrument there is a new condition: that many temporary visa holders should not have an outstanding health debt. This exposes a range of already vulnerable people to the risk of their visas being cancelled and them being thrown into Australia's onshore detention system if they get sick and cannot afford health care. We are proposing to provide the minister for immigration with the powers to detain someone who has had the misfortune of being sick and not being able to pay for health care.
I look around Australia and I've visited onshore detention centres. I've been to Manus Island many times, where Australia is destroying its international reputation with the significant and serious harms that we are deliberately imposing on already vulnerable people. I ask myself, 'What sort of country are we becoming? And why don't I recognise the Australia I grew up in today?' Well, it's because of powers like this, it's because of regulations like this and it's because of ministers like Mr Dutton that I don't recognise the country I grew up in and it's why so many Australians don't recognise the country they grew up in.
This instrument should be disallowed by the Senate on the basis that it is overreach, on the basis that it is punitive and on the basis that it will impact disproportionately on some of the most vulnerable people in the country. I commend this disallowance motion to the Senate.
Labor will be supporting this disallowance motion. I repeat that we are willing to work with the government to strengthen Australia's visa program if there are gaps, but any measures that are advanced must be appropriate, must be proportionate and must uphold the criminal justice system. This regulation, however, is disproportionate and is a denial of natural justice. It raises the prospect of temporary visa holders being detained and their visas cancelled even though they have not been found to have committed an offence. The regulation broadens the reasons for which a person may be detained or have their visa cancelled and be deported to include a public health debt, behaviour not necessarily subject to criminal sanction, and other behaviour not covered by section 501 of the Migration Act, which is the character test, such as driving offences. The regulation also prevents some temporary visa holders from applying for a bridging visa E. It changes the eligibility for resident return visas. The regulation seeks to substantially increase the waiting time for eligibility to reapply for a visa if a previous application was rejected under Public Interest Criterion 4020.
There's already a clear basis for deciding that a visa holder has forfeited their right to remain in Australia. The parliament has drawn the line and we say that should not be crossed. When a person fails a character test under section 501 of the act—that is, if someone fails a character test such as when they have a substantial criminal record, if they're found to not be of good character, if they've been given an adverse security assessment or if there's an Interpol notice from which it is reasonable to infer that the person is a risk to the Australian community—that is the basis upon which Labor has supported changes to the Immigration Act. Labor has offered its support to visa cancellations under section 501 if the person is serving a full-time custodial sentence or has been sentenced to 12 months or more of imprisonment or has been convicted of a sexually based crime involving a child. But, if the immigration minister reasonably suspects that a person does not pass the character test, he can use his existing powers to cancel a visa.
On these particular measures, Labor have not been consulted. If we had been, we would have pointed out that the regulation significantly expands the reason for cancelling visas and for deporting people. It sets the bar so low that the average Australian citizen could fail to pass the test. Of course, no-one in the Labor Party is suggesting that visa holders must do anything other than obey the law. But that's not what this regulation is about. It says that if you behave in any way contrary to the views of the minister or of some departmental official, you face being placed in immigration detention and having your visa cancelled.
New conditions under 8303 and 8564 are already applied in some visas, but they will now be applied to temporary visas, including temporary protection visas, and people who are on safe haven enterprise visas. While we say there is no place whatsoever for intentional fraud in Australia's visa program, the new public interest criterion 4020 penalises temporary visa holders who make a simple mistake on a form. They will be prevented from making another application for 10 years. This is simply unjust.
The new visa condition in 8304 requires temporary visa holders to use the same name in all their dealings with government departments. Of course, people should use their real names and their identities. But the new condition doesn't provide flexibility to allow for the different ways Medicare or Centrelink or the immigration department respond to cultural naming practices. These differences can create inconsistencies that are not the fault of the visa holder.
We accept that officers need to be able to act with discretion and with common sense, but community legal advocates and human rights advocates have repeatedly warned that, under this government, discretion is rarely applied when it comes to visa applications. In these circumstances alone, these broad measures should be treated with caution. The Refugee Council of Australia, refugee and advice casework services and the Federation of Ethnic Communities Councils of Australia have all raised concerns about these regulations.
In Australia, we ask temporary visa holders to live by the rules as they are written, but when you have rules that are written in such a broad and unclear manner then these propositions go much further than one could reasonably expect. These measures allow people to be detained and deported and for their visas to be cancelled, even though they have not committed an offence. I think this is particularly important in a country that actually prides itself on upholding the principles of the rule of law and the principles of natural justice. We should not allow this to happen.
Labor has confidence that, in the arrangements where the people who have been detained and deported under section 501, the cancellations have had the benefit of a fair hearing in the criminal justice system. This regulation, however, sends the message that the proper legal process need not count. This regulation sends that message that temporary visa holders do not have the protections of the safeguards that are provided by a proper rule of law. It creates a permanent class of temporary visa holders who are at all times extremely vulnerable. People are liable to be detained and deported even though they have committed no crime and have not been excluded on the character test.
The new visa condition 8303, which can be applied mandatorily to most temporary visas, would mean that a visa holder could have their visa cancelled and face deportation without ever having been accused, charged or convicted of a criminal offence. The regulation's explanatory memorandum makes it clear that the behaviour does not have to be unlawful; it simply only has to be unacceptable or disruptive.
We have a tradition in this country. A famous High Court judge said, 'It's not wrong to be an agitator.' Remember that famous expression? You might not like it, but we do not lock people up because they're unacceptable or because they're disruptive. We don't throw them out of the country on that basis, which is what these regulations would provide for. These are terms that are far too broad and far too undefined. In the hands of an authoritarian minister they could mean anything. You may well say that the current minister is not of that character—I would disagree with you, but you may well say that—but these are propositions that will stand the test of time, if they're accepted by this parliament, and that's the danger here.
The memorandum lists some examples of 'unacceptable behaviour', and there is potential for a wide range of activities to come under the label. There is no guidance. They might include broad categories of activities that could endanger an individual. They could be comments made online about individuals. Temporary visa holders could be detained and deported for making comments on Facebook about the Department of Immigration and Border Protection or if an officer doesn't like criticism. It suggests that the regulation is less about protecting Australians than it is about protecting the political authorities of this country. I'm sure that, if the department was to look on Facebook on any day of the week, there would be any number of Australians who would fail the tests that are set by these regulations.
We know that migrant workers in this country are exploited every day of the week. Despite the pious statements of the ministers in this government, we know how widespread the abuse of workers is in this country. We know how often it is that personal safety is at risk. We know, from evidence put before Senate inquiries, about the exploitation of temporary visa holders and we know of the serious and systematic shortcomings in the protections that are actually available at law. We know this government has done very little to change those circumstances.
These visa regulations make the situation even worse. They make people more vulnerable to detention and visa cancellation if they complain about those circumstances, because they are the sorts of circumstances that could be alleged as 'disruptive'. Stakeholder consultation about these regulations demonstrate that the definition of 'disruptive behaviour' could include a visa holder participating in union activity. How could that possibly be justified as grounds for deportation? These are measures the Labor Party cannot support. They are very badly drafted, they are very poorly considered and, as has already been indicated, they have all the hallmarks of vindictiveness. They demonstrate a government that has lost its way on these matters. These measures are not appropriate to be on the statute books of this nation.
It was quite interesting to listen to Senator McKim's comments today, because the Greens are hell-bent on weakening Australia's immigration system. They have consistently tried to open our borders to anyone, and they don't care who they are or how that affects other Australians. We can see in the disallowance motion before us that the Greens want public health debts incurred on previous visits to Australia to be ignored when a new visa application is made. I see that right across our country we don't have enough money to open up hospital beds for our Australian people here. We aren't able to give them the dental health care that they need or the operations that they need. But don't worry about; we've gotta look after those who have been here previously with health debts incurred! We don't want to worry about that or to put any impost on these people!
Secondly, the Greens want to allow visas to be granted to people who lied—absolutely lied—to get a visa in the past. This weakens what is known as the public interest criterion 4020. So we are getting people coming to this country that cannot be truthful and we're supposed to overlook that. Then, thirdly, the Greens want to remove the condition that visa holders maintain a single identity in Australia. Well, I've heard a lot of drivel on the floor of parliament today with regard to, 'Oh, there might be an incorrect letter, or the spelling may be wrong.' What we're talking about are multiple names. How often do we hear through Centrelink, drivers licences, even getting your HR drivers licence or any certificate that people are rorting the system with multiple names? Why shouldn't we expect someone to have the right name? We have had migrants come into this country in a flood after the Second World War. They had names that were hard to pronounce, but they got through the system. They had to do it tough.
I wish the Labor Party and the Greens would actually see the vote that One Nation got in the last election in Queensland, because in a lot of the seats we pulled 25 to 30 per cent. Our average is about 21 to 22 per cent right across the state. That's a clear indication that they are not listening to what the Australian people want. I cannot really get my head around the fact that every time I hear the Greens in this chamber, all they are worried about is the people who have come to this country illegally, people who want to come to this country like the illegals that are on Manus Island. Manus Island has absolutely nothing to do with this. That's the detention centre. They were the illegals. We're talking about visa holders coming into Australia. It has nothing to do with Manus Island. In the time that I've been here, I have never heard—correct me if I'm wrong—the Greens stand up and fight for the farmers in this country, the people who are homeless on the street. You don't need to go very far. It actually happens here in Canberra on the streets at night, when I go back to my apartment after finishing a day here. Where's the fight for those people to find out whether they've got decent health care or housing? I never hear one word from them. I often wonder what the hell they're doing in this parliament, because it's not representing the Australian people that have voted for them. It's always representing someone else around the rest of the world.
Labor say they want to lock them up because they are disruptive. Well, let's look at the streets of Melbourne. Go and ask the people down in Melbourne how they feel about it, with these ones that have come into the country. They've lost control of their streets in Melbourne and they would dearly love to do something about it. Yes, if people are not going to abide by the rules of this country and be disruptive, and if they think they can carry on in this country like they have from the place that they've come from, no, we don't want them. Why would we?
Senator McKim said if they go six kays over the limit they're going to be locked up and thrown into a detention centre. What an exaggeration—an absolute exaggeration! That is not the case whatsoever. We have allowed too many people in this country who are abusing us and taking us for granted and taking us for mugs, and that's the way we're seen around the world. We're actually mugs. What I see in this country is taxpayers forking out more and more, and we're raising their taxes even more, there's no real wage increase, there's nothing. And Australians are doing it tough. Yet, bleeding hearts in this place are going out to people who want to come here. We don't need these people in this country. We can actually be very particular who we bring in, and we should be, because people are breaking down our doors to actually come to Australia.
We want quality people coming into this country. Stop making excuses for them; set tough laws and give the reasons. Many migrants are now supporting One Nation because they know how tough it was for them to get here. They're sick of seeing all the leniency shown to these others who will lie and cheat to get into this country and have no regard for Australia. They don't want to be Australians. They have no respect for our culture, our laws or our way of life. You talk about the legal system. I know many Australians who would dearly love to be able to have their cases paid for by the taxpayer—but we don't have the money. It was around $12 per person for legal aid in Australia; now it's down to $7 per person. People can't afford to get legal aid in Australia; yet you're opening up our courts and we're going to pay for it! It's also quite interesting that even the Nick Xenophon Team may, I believe, be supporting this disallowance.
It's about representing the people here in Australia. You talk about people coming here. We have the Administrative Appeals Tribunal. It was set up about 30-odd years ago—I think it was in the 1970s or the 1980s; I'm not quite sure—and it cost us about $2 million a year. The tribunal now costs us $142 million to run. People who come here on visas can appeal to it. There are around 4,000 to 5,000 people a year who apply for a visa to come to Australia—and we have opened up for visa applications from Malaysia, the only Third World country who can do it via the internet—and a very high percentage of those people, after being here for three months, apply for refugee status. When the immigration department knocks them back, they then apply to the tribunal, which is a $35 fee. On average, it takes around 386 days for a decision to be made. In the meantime, they are given a bridging visa, they can work and they're looked after. Most of them actually leave the country before the 386 days, after they've worked and accumulated some money to take back to their own country—and we're actually paying for that. The taxpayer is paying for it. Like I said, the tribunal now costs $142 million a year to run. A lot of them are coming from Malaysia, China, India and Pakistan—and, like I said, we're taken for mugs.
I have Australians here who need only a few thousand dollars to help them, and charities and organisations that we need to help our own. The bleeding hearts in this parliament disgust me. The Australian people voted for you to represent them, to fight for their needs and to fix up their needs. Clean up our own backyard first before you worry about everyone else around the world. That is what we need to do first. I guarantee that the Australian people will agree with what I say about this. We need to have intervention with this because we cannot keep going down the track that we're going. You have more and more people applying for visas here. They will come here under a visa and turn around and abuse the whole system. We don't need any more people on our welfare system. We cannot afford it, because by 2019-20 we will be reaching $191 billion. We cannot afford it any longer.
I'm calling on the Xenophon party to have a rethink about whether they are going to support this disallowance motion and to have a rethink about looking after the Australian people, because they are the ones who actually voted for you to represent them in this parliament—not those who want to try to get into this country who have no regard for Australian values or way of life.
I take great pleasure in stating that the Xenophon party, or NXT, have thought about this matter extensively, and we very much will be supporting this disallowance. We believe the regulations contain elements which are ambiguous and have well and truly gone too far. For instance, the regulations introduce a new clause, condition 8303, which in part prohibits a temporary or bridging visa holder from becoming involved in activities 'disruptive to the Australian community or a group within the Australian community'.
We have no issue with protecting the community, but booting a visa holder out for being disruptive is a step too far. What does the government mean by 'disruptive'? It is not defined, so we can't say. Does it mean that they can't engage in their democratic right to protest? If they make a scene in a hospital or at a post office, is their visa cancelled? Refugee advocates have raised concerns that people caught up by condition 8303 can be detained indefinitely from the moment an accusation against the visa holder is made until the matter is resolved. That is a denial of due process and, again, goes beyond what a fair-minded person would think is reasonable.
The regulations also seek to amend public interest criterion 4020, which allows the minister to refuse or cancel a visa if an applicant provides a fake document or misleading information to support their application. It affects applicants for skilled migration visas, business visas, temporary visas, student visas and family visas. Currently, this condition relating to a visa that the applicant held in the 12 months before the application was made; the government now wants to make this 10 years, which is excessively punitive, particularly for minor infractions.
These are just some of the concerns which have been raised with us, and we believe they warrant the government well and truly going back to the drawing board on these regulations.
The government does not support this disallowance motion. The regulations which Senator McKim has moved to disallow have been introduced to ensure that integrity, identity and community protection issues relating to temporary visa holders can be managed effectively. These regulations should be uncontroversial. They do not impact on the vast majority of temporary visa holders who come to Australia who abide by our laws. The government has zero tolerance for fraudulent, disruptive or criminal behaviour by noncitizens, and the measures introduced by these regulations allow the government to better manage noncompliance with Australian laws.
The question is that the disallowance motion moved by Senator McKim be agreed to.
Senator Urquhart did not vote, to compensate for a vacancy caused by the resignation of Senator Nash.
Senator Duniam did not vote, to compensate for a vacancy caused by the resignation of Senator Kakoschke-Moore.
Senator Gallagher did not vote, to compensate for a vacancy caused by the resignation of Senator Parry.