Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Indigenous Affairs) Share this | Hansard source

I rise to speak on the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016. The bill before us today introduces a new revalidation check framework for visas. It clarifies when a visa ceases to be in effect under the Migration Act and enables the use of contactless SmartGate technology during immigration clearance.

Labor always takes a constructive, bipartisan approach to these matters. That is how it should be. That is what Australians expect with respect to issues of migration and national security. The security of our nation and the safety of our people are and should be above politics. In this parliament and the last, we have consistently worked to improve and amend legislation because, where there are flaws in the system or errors in the legislation, they should be fixed before they cause problems, not after. That is the job of a strong opposition: improving and strengthening the system, delivering better processes and better outcomes. That is the approach that Labor has taken with the bill before the House today. Labor supports the pilot of a 10-year Chinese visitor visa and the expansion of SmartGate in Australia, but, really, this bill is about what is contained in schedule 1 and the visa revalidation issue. Concerns about parts of this bill have been raised by various stakeholders, including the Law Council of Australia, the Migration Institute of Australia, the Kaldor Centre for International Refugee Law, and the ANU College of Law migration program. Three parliamentary committees have examined the bill and released reports, including the Senate Standing Committee for the Scrutiny of Bills, the Parliamentary Joint Committee on Human Rights, and the Senate Standing Committee on Legal and Constitutional Affairs.

I say from the outset there are aspects of this bill that are concerning to Labor, particularly in schedule 1 and how visa revalidation checks will work within the current non-discriminatory immigration framework, which has had broad bipartisan support for decades. A revalidation check is defined in the new section 96A, which says:

revalidation check means a check as to whether there is any adverse information relating to a person who holds a visa.

Labor is concerned about the broad powers of a revalidation check as provided for in this bill and the limited parliamentary oversight of ministerial powers it allows within the ministerial framework. The revalidation measures outlined in schedule 1 of the bill will give the minister unfettered power to target whole groups of people for extra scrutiny and visa suspension through the revalidation process. Revalidation can apply to all visas, not just the pilot ten-year visitor visa, subclass 600, for Chinese nationals—a point which drew criticism from the Parliamentary Joint Committee on Human Rights, which noted the broad ministerial discretion to require any visa holder to complete a revalidation check. This engages, of course, the right to equality and non-discrimination in our community. The committee also suggested these measures may not be proportionate to achieving the minister's stated objective of managing risks and sought advice from the minister about whether safeguards could be included in the legislation. The bipartisan Parliamentary Joint Committee on Human Rights wrote:

As the power to prescribe the type of visa is unlimited, it appears that it could enable the minister to prescribe any type of visa, including a protection visa, spousal or other family visa or permanent visa as subject to the revalidation check. This measure therefore has the potential to engage a number of human rights, including Australia's non-refoulement obligations, the right to an effective remedy, the right to liberty and the right to protection of the family.

It was troubling that the explanatory memorandum for this bill refers to visa revalidation only in the context of applying to the 10-year visa pilot program for Chinese nationals. This led to confusion about which visa holders will need to take part in the revalidation process.

In their submission to the Senate inquiry, Kaldor Centre for International Refugee Law said the revalidation framework 'has the potential to adversely impact on all visa holders'.

The Law Council questioned whether the bill was necessary, given it:

… has a substantially broader application than was intended or expressed in the Explanatory Memorandum or the Minister's Second Reading Speech.

I note the Senate Standing Committee for the Scrutiny of Bills also raised concerns about the explanatory memorandum's silence on this matter:

The discussion in the explanatory memorandum is limited to this new type of visa, as stating that the revalidation checks for visas introduced by the bill will only apply to this new visitor visa.

However, the bill does not limit the application of the revalidation checks to the visitor visa. The power in the bill is to require persons to complete a revalidation check in relation to any visa ‘of a prescribed kind’. This gives a broad power which could result in the revalidation check being applied to any category of visa (including spouse or family visas or protection visas). The explanatory memorandum does not explain why it is necessary to include such a broad power in the bill.

It is disingenuous of the immigration minister to seek support from the parliament when he has not been upfront about the scope and application of his grab for unfettered powers within the bill's supporting documents. A visa ceases to be in effect if a person fails to complete a revalidation or if they fail to pass the revalidation check. Visas will cease to be in effect if the visa holder does not pass the revalidation. A visa holder will not pass the revalidation check if it is found there is adverse information; however, 'adverse information' is undefined and does not need to be directly about the person—it is enough if it relates to the person.

In their submission to the Senate inquiry, the Law Council submitted:

As drafted, the Law Council is concerned that 'adverse information' is too broad to meet its intended purpose to protect the Australian community due to the risks associated with longer validity visitor visas.

In their submission, Kaldor said it was particularly concerned at how visa revalidations could impact on refugee visa holders. In general terms, their concerns went further, saying the broad definition of adverse information would:

… enable the government to impose surveillance measures on temporary, and possibly, permanent visa holders. It undermines the long-standing rationale and stability of Australia's migration system, which is premised on the notion that once a person has been issued a visa, he or she is entitled to have that visa be in effect until the visa period expires (subject to any grounds for visa cancellation).

Labor's concerns were also shared by the Senate Standing Committee for the Scrutiny of Bills, which reported:

... it is not clear why information relating to the person would be included in a revalidation check and what this means, over and above information directly about the person.

The committee sought the minister's advice and, despite the minister making his case, the committee's response is outlined in the bill's digest:

… the power to prescribe any type of visa is ‘inappropriately broad in scope’. The committee also notes that the Minister’s power to require a revalidation check in the public interest is not limited to circumstances where the Minister identifies a risk to the Australian community.

Of specific concern to Labor is the minister having a non-compellable power to determine by legislative instrument that a specified class of people holding a visa of a prescribed kind must complete a revalidation check. The explanatory memorandum to this bill states that targeting of these visa holders for revalidation can apply to visa holders who: hold a particular passport, live in a particular country, live in a particular state or province within a country, may have travelled through a particular area during a particular time, or applied for the visa during particular dates. This measure has no genuine parliamentary oversight. It is extraordinary.

All the minister has to do is cause to be laid before each House of Parliament—that is, the Senate and the House of Representatives—a statement which states his determination, and it can be up to six months after he makes that determination. Labor is concerned at the possible unintended consequences of this measure and the real possibility that people could be targeted for revalidation based on their nationality, their region of origin or their religion.

Our immigration framework already has in place measures to manage imminent threats on our borders and our people, manage the risk of issuing visas and stop people being granted a visa, if they are unsuitable in the first place. The minister has the power to cancel visas based on character grounds, if a person provides incorrect application information in their application or on their passenger card; where, for example, the minister is satisfied the decision to grant the visa was based on a fact or circumstance which no longer exists, emergency cancellation can take place of a visa on security grounds such as an adverse ASIO assessment; and, if a visa is cancelled under certain sections, a visa held by a family member may be cancelled. The powers already exist and they can be done in the first place before a person gets a visa.

The immigration minister has not explained why he needs the new powers outlined in schedule 1 or has been unable to satisfy the concerns of stakeholders and parliamentary committees who have examined the bill. Under schedule 1, the minister can invoke these revalidation powers, if he considers it to be in the public interest. The public interest test is undefined, open to broad interpretation and could be abused to pursue a political agenda in the guise of public interest. It could lead to scenarios where people are asked to revalidate purely on the basis they hold a passport from certain nations, from regions—for example, where particular religions may be dominant or practised. These measures, and targeting of people, should be of concern to everyone in Australia.

In the Senate Standing Committee on Legal and Constitutional Affairs report, the committee wrote:

2.60 The committee encourages government to consider that public interest revalidation checks made by the Minister be subject to disallowance by the Senate.

This is particularly concerning in light of recent statements made by the immigration minister. In the last six months, the immigration minister's comments about immigration have only grown more concerning. This particular minister cannot be trusted with wide-ranging, unfettered powers over the visas of whole groups of people.

Recently, the immigration minister flagged an overhaul of the pathway to Australian citizenship, because he believed some migrants 'come to Australia with little respect for our values (but much for our generous welfare)…' and whether migrants 'had a long period of time on welfare' should be a factor into whether they are able to take up citizenship. This isn't the first time this minster has tried to play the welfare card, having earlier described refugees as 'illiterate and innumerate' people who would take Australian jobs or 'languish' on the dole and use free health services within Medicare.

Despite this, the minister often makes hurtful, unjustifiable and ignorant comments about migration, including when he argued Australia had 'made mistakes in bringing some people in' and suggested people who are of 'second- and third-generation Lebanese-Muslim background' were a mistake. Putting this much power in a good minister's hands would be a concern, but this immigration minister is not a good minister.

Ultimately, Labor cannot give Trump-like powers to a man that has such a high desire to see a divided Australia. Labor will not support a bill that could see whole groups of people targeted on the basis of their place of birth, passport or religion.

In November last year, after reviewing this bill, Labor reached out to the Minister for Immigration and Border Protection and requested amendments to the legislation in good faith. The minister basically ignored our request until Monday when his office confirmed the coalition would not support parliamentary oversight of the minister's non-compellable power to determine specified classes of people to revalidate their visa.

While some of Labor's concerns about schedule 1 of the bill were outlined in the Senate inquiry, those concerns are just the tip of the iceberg to Labor's broader issues with handing this particular minister—and any minister in general—unfettered power over the revalidation of visas by a targeted subset of people.

Labor shares the concerns of those stakeholders who put in submissions to the Senate inquiry, including the Law Council of Australia who recommended against the passage of schedule 1 on the grounds that the:

Bill appears to be neither necessary nor proportionate to its intended objective, in that it has the potential to apply to all classes of visas, not just the proposed longer validity visitor visa;

Bill grants a broad range of powers to the Minister, with limited or no explanation as to their intended purpose;

Bill provides capacity for the Executive to make legislative instruments that are not subject to disallowance by the Senate, potentially impacting upon all persons residing in Australia as temporary or permanent residents;

presence of powers in the existing structure of the Migration Act and Regulations, which already provide adequate powers to address the concerns raised in the Explanatory Memorandum and the Minster’s second reading speech; and

insufficient information on the establishment of the proposed longer validity visa.

It was similar concerns that led Labor to refer this bill to the Senate Standing Committee on Legal and Constitutional Affairs.

We will speak out against legislation that seeks to target people from certain regions, because Labor has never and will never agree to discriminate against people on the basis of their race, religion and country of origin. Australia's non-discriminatory immigration framework has been in place for the last four decades and has resulted in the multicultural society which we are proud of and in which we live in today—a place that has welcomed 7.5 million migrants since World War II.

Labor is prepared to work with the government to get a proper revalidation process in place, relevant to this subclass of visa. In its current form, Labor cannot support schedule 1 and we will move amendments in the Senate to remove the schedule 1 from the bill.

We call on the government to work constructively with Labor to remove schedule 1 and split this bill to allow passage of the other measures, which we support, such as SmartGate and visa ceasing events. Labor will work with the government in a bipartisan way to create a revalidation framework that is fair, in line with Australia's non-discriminatory immigration policy and subject to appropriate parliamentary oversight.

Labor supports Chinese tourism–that is Labor's policy; we have supported it since the days of Whitlam going to China. Labor recognises the wonderful contribution made by the Chinese community to Australia's economic and social development and we support the 10-year visa pilot in relation to Chinese nationals, and we call on the government to allow these measures to pass by removing schedule 1 from the current bill. We cannot support the bill in its current form.

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