Julian Leeser (Berowra, Liberal Party) Share this | Hansard source

These bills, the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 and the Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021, are before the House because of a decision of Justice Bromberg of the Federal Court of Australia on 11 September 2020 in a case called AJL20 v the Commonwealth of Australia [2020] FCA 1305. The facts of the case concern a Syrian man who came to Australia as a child in 2005 and had his visa cancelled by the immigration minister on character grounds. He had been imprisoned and served time for criminal offences as a teenager. He was then placed in immigration detention but, rather than returning him to Syria, the Commonwealth did not take steps to return him to Syria. Justice Bromberg, in that case, interpreted section 197C of the Migration Act in a way that is inconsistent with the original intention of the parliament.

The bills before us do two things. First, they clarify the interpretation and the meaning of section 197C of the Migration Act, particularly in relation to the principle of non-refoulement. Non-refoulement is that very important principle at the foundation of migration and refugee law which means that somebody should not be returned to a country where they would face torture, cruel, inhumane or degrading treatment or punishment or to a place where they would face persecution, torture or other ill treatment and human rights violations. That's a very important principle of human rights law. It's a very important principle of refugee law. It's a principle which Australia, consistent with our international obligations, abides by.

The second issue that this legislation deals with is the question of character determinations. The minister, in exercising his or her power from time to time to exclude people from Australia on the basis of character grounds, to cancel their visas on the basis of character, exercises a very important set of powers to protect Australia from people who would commit crimes. We're talking about very serious crimes. We are talking about serious assault. We are talking about murder. We are talking about serious violent sexual crimes. We're talking about very serious crimes for which the character determination is often exercised by the minister. We are talking also about threats to national security, as we do from time to time.

This particular legislation provides greater transparency and oversight of the minister's determinations on character matters than we have previously had in the migration system. It amends the minister's discretionary national interest cancellation and refusal powers under 501(3) to insert a requirement to table notice that the power has been exercised except in cases involving significant criminal offending or national security concerns. Thereby, because of that tabling requirement, other than in those exceptional cases, this legislation actually provides greater transparency for the minister's exercise of that very important character determination power under 501 of the act.

I thought I would say something about 197C and its purpose and why we have this legislation before us today. Section 197C was designed to deter last-minute court injunctions by unlawful citizens who sought to prevent their removal by making what are effectively vexatious claims that the removal would be in breach of Australia's non-refoulement obligations, despite these individuals having been already found not to actually engage those obligations. But it was never intended that section 197C would require a person to be removed from Australia in breach of non-refoulement obligations. That's the issue with the interpretation that Justice Bromberg has put on the law in the case of AJL20. It's for that reason that this legislation is before us today. Given the serious consequences associated with this Federal Court judgement, the government's responded decisively—firstly, by appealing the case to the High Court and, secondly, by introducing this legislation. These bills were introduced in the last sitting week and the government is hoping to pass them this week.

The amendments are designed to ensure that detainees are not required to be removed in breach of Australia's international protection obligations. We want to make sure that courts understand they shouldn't order the government to send people back to places where they are expected to face persecution, torture or death. This may prolong the detention of a handful of serious criminals and people of national security concern. Decision-makers who make these decisions under the character determination understand that the decisions they're making carry that risk but that the risk of the person to the community is so high that these people cannot be unleashed into the community more broadly. Each case is routinely reviewed by the department and subject to independent oversight by the Commonwealth Ombudsman. These are sensible and not controversial amendments, and I commend them to the House.

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