House debates

Wednesday, 12 May 2021

Bills

Migration Amendment (Clarifying International Obligations for Removal) Bill 2021, Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021; Second Reading

5:03 pm

Photo of Andrew GilesAndrew Giles (Scullin, Australian Labor Party, Shadow Minister for Cities and Urban Infrastructure) Share this | | Hansard source

I rise to speak on the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 and the Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021. These bills are required to be enacted to address a pressing and very serious concern following some recent Federal Court decisions where it was found that, in effect, the Migration Act presently requires the department to remove a person in immigration detention where they do not hold a visa. The passage of the bills, therefore, is necessary to prevent the refoulement of people to whom Australia has recognised protection obligations. These bills and these decisions raise some important and, indeed, challenging issues, and some questions of balance and proportionality need to be struck.

The concern that has given rise to the need for this legislation relates to a cohort of 21 people who are presently in immigration detention who have all been found to be owed protection obligations but who have also failed to meet the criteria for a visa because they do not pass the character test or they have received adverse security assessments.

Labor supports the legislation before the House, having secured from the government some important amendments, including the second bill, the tabling notice of certain character decisions bills, and commitments which ensure that some of the consequential issues that we have been concerned about and stakeholders have raised as well are dealt with in a manner that is proportionate to the substantive and immediate question of preventing non-refoulement and the issues that that raises.

We believe these 21 individuals can't be returned to their country of origin, but they would also present some risks to the community or national security if they were to be released from immigration detention. Of course Australia has non-refoulement obligations under international treaties not to return individuals to situations where they face persecution, a real risk of torture or cruel, inhuman or degrading treatment or punishment, arbitrary deprivation of life or the application of the death penalty. As I don't need to tell you, Deputy Speaker Georganas, it is difficult to overstate the importance of such obligations. They are quite literally matters of life and death. It's also the case, and under the same international instruments, that Australia is not required to provide a visa to persons who engage protection obligations if there are compelling national security or public order matters that are also engaged. So these individuals prevent a significant challenge in terms of identifying a durable solution.

The impact of these court rulings put that into a stark set of circumstances where presently the only option available to the government to avoid refoulement would be to grant people a visa and allow them to stay, even though they fail the character test or have adverse security assessments. This presents us with an invidious and unsatisfactory set of circumstances. It would also be contrary to community expectations.

I know the government has contended the intent of the act was never to permit the refoulement of persons found to be owed protection. The principal bill we are debating now would amend the act to clarify that the Migration Act does not require or authorise removal of a person on character or national security grounds where that person has also been assessed as engaging refugee protection obligations. This is significant and important. The bill also provides additional options to resolve the ongoing detention of people in this cohort, including community detention with bail-like conditions, third-country options and ministerial discretion to determine that protection is no longer owed in circumstances where conditions that gave rise to the protection claim no longer exist. This raises some particular concerns which have been attended to since the bill was initially introduced.

It should also be noted that the provisions in the bill could also impact other individuals in the future who are held in immigration detention in Australia who engage refugee protection obligations, but only if they fail to satisfy the adverse character security assessment criteria for a visa. This is a real concern, but we must always remember that if this bill does not pass then people who are owed protection by us may be returned to countries where they face persecution. If the bill doesn't pass such people may be returned to a country to face persecution and perhaps death.

I am aware that my colleagues, the shadow minister for home affairs and the shadow Attorney-General, received some briefings from national security agencies in relation to the cohort directly affected by the legislation. I put on the record Labor's appreciation for the provision of these briefings, which has helped us in our consideration of the bill and the matters connected to it.

I will turn, briefly, to the concerns that we have expressed about the bill and how they have been addressed. From the outset, Labor has recognised that there are real concerns that the bill, including the new ministerial discretion, must be limited and exercised narrowly and appropriately, given the consequences at issue here. The powers to reassess protection obligations are significant and, as such, appropriate safeguards on the use of such a power are required. We welcome the minister's determination that where protection obligations are no longer engaged for a person this is to be subject to merits review. Given the significance of this power and the impact it may have on an individual, the right to merits review, not simply judicial review, is a very important, indeed a vital, safeguard in the circumstances. I recognise the government's agreement to this amendment as something that is very significant in our consideration of these matters.

We also note that the Parliamentary Joint Committee on Intelligence and Security will hold a statutory review of the bill's operation within 24 months of royal assent. Given the urgent requirement for the passage of the legislation, and the limited time for the committee's consideration, a request has been made for the PJCIS to undertake a statutory review of the amendments, and, indeed, their operation, within 24 months of royal assent. I note the government has agreed to this measure which will provide an appropriate opportunity to consider the impact of the amendments and the long-term detention impacts on the cohort, as well as to explore alternatives to indefinite detention—a matter of great concern to all of us on this side of the House, and to many in the community. As I said earlier, the matters before the House are complex, challenging and require a proportionate balancing of considerations. In the circumstances, this is an important consideration that will require ongoing review.

The government has also agreed to tabling measures which are implemented through the Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021. This will provide that the minister will now be required to table a statement in the parliament within 15 days when the visa of a person to whom protection obligations are owed is cancelled, but where the cancellation does not meet some of the mandatory cancellation provisions in the Migration Act or be the subject of a national security assessment. The statement for tabling will be modelled on the existing regime that applies to intervention cases.

It's also the case that the minister will provide assurances that the legislation only has implications for the small cohort of detainees who enliven Australia's non-refoulement obligations. Labor has been assured, including through the explanatory memorandum, that this is the intent of the government. Labor has also sought, and received, assurances from the government that this cohort receives ombudsman assessment under section 486O of the act and that the ombudsman requires an assessment of the appropriateness in the arrangements of detention for every person who has been in immigration detention for more than two years, and every six months thereafter, with a copy of this to be tabled in the parliament. These reports are also an important oversight measure for immigration detention, along with the other powers of the ombudsman, including investigating complaints, own-motion investigations and inspections of immigration detention facilities.

I would like to acknowledge the minister and his office for the way in which they have worked constructively through the issues that we have raised with them, and enabled this matter and the issues that we have brought forward to be resolved in a manner that we regard as satisfactory. Now, these provisions aren't necessarily the way in which Labor might have approached these issues, but we recognise they are a response to a very real issue with very real impact on people's lives, and, indeed, on Australia's international obligations. The choice here is quite stark. We must act if we are to prevent refoulement. We will continue to pay close attention to the operation of these provisions and the issues that have given rise to them, but we support the bills in the context I have outlined.

5:13 pm

Photo of Russell BroadbentRussell Broadbent (Monash, Liberal Party) Share this | | Hansard source

It's a pleasure to stand where a lot of consideration has been given to a bill by both parties—and at length, clearly. What I would just like to point out, though, is many members of the public do not understand the concept of refoulement and how it works. I'd like to explain it in the member for Monash's way, Russell Broadbent's way. If someone has entered this country and overstayed their visa for whatever reason and they don't have authority, a personal authority, to be in the country, then we have an obligation to look after our—I'm not saying our borders, but the regime that protects the citizenship of a nation. This has been fairly controversial lately, but let's go to this issue rather than other issues. And so if somebody has put themselves in a position where they are not capable of staying in this country, they don't have a legal right to be in the country—this happens no matter who is in government—then we have options to give them some other due consideration. It might be by the minister. It might be through the courts. They are options that we can give. Australia gives people more options than any other country in the world to identify themselves as somebody who has a right to stay. We really do. We go out of our way. But, if for some reason, we have not been in the right place at the right time, we do not understand their considerations or we have misunderstood the reasons for their being here in Australia, they have many options to go through before we say, 'No, you have to leave the country.' In that process, we say that we do not allow people in refoulement—that is, by deporting you from this country, we would put you in a place of your peril, of your physical danger or of your rights of activity in another country that may be absolutely and totally inappropriate under our national values here in Australia—that someone would be under severe threat of prosecution or death, or of imprisonment, for that matter—it depends—if they were returned to their own country.

So we have a regime. In some cases, when people are going through the courts or through other processes, we have a regime of detention. It's already here in Australia. As the world knows, I, the member for Monash, do not like indefinite detention in this country. I'll say that to anybody. I'll keep on saying it wherever I can. A nation needs to have the heart, the soul and the spirit to say that this is not how we treat people in this country. However, this is not the time to go there and say what I think about that.

We have a bill before us. I should say that the Liberal and National parties and the opposition parties—the Labor Party, the Greens and the Independents—take these issues really seriously, because they are people's lives we are dealing with. These are decisions we're making about people's lives. We all take them very seriously. However, if you have fouled your own nest in this country or done the wrong thing—people often forget that it's not only about the people who do not have a legal right to be here. We have to protect our own community from people who perhaps should not be here. If it's found that they shouldn't be in this country, they should be sent back to their own country. The government takes its international obligations really seriously in these matters, because we want to keep our reputation as a nation that treats people fairly in every instance possible—fairly under our law, fairly under our mutual obligations to each other and fairly under our international obligations in the treaties that we, as a nation, have signed up to and said that we will abide by. Refoulement comes into that area. We are not going to send people into refoulement.

For me, this is rather technical, as it was described by the shadow minister. Australia takes its international obligations very seriously and has a longstanding policy of not forcibly removing an unlawful noncitizen in breach of Australia's non-refoulement obligations. We won't do it. Where there have been changes in legislation or proposed changes from courts' rulings, the government, on behalf of the people of Australia, have to act. A recent judgement by a single judge of the Federal Court has altered the operation of section 197C of the Migration Act in a manner which is inconsistent with the intention of the Parliament of Australia. What have we got here? We've got a clash between the courts and the intention of the parliament in these matters. The parliament is now resolving to move this legislation so that the issue of certain persons of faith will not come before this, because we are doing these things. How did this come about? Obviously, it was raised with the opposition and there were some considerations made. We sat down, the opposition and the government, negotiated as to how we would resolve this matter and came to an agreement, which has formed this legislation. If I'm incorrect, please tell me now, but that is what you have done. The legislation has been put before the opposition, and they have worked through it piece by piece by piece. But then they put in place a couple of things that have been described to me just today. First, in 12 months time we are going to look at how this is working; is that correct?

Honourable Member:

An honourable member interjecting

Photo of Russell BroadbentRussell Broadbent (Monash, Liberal Party) Share this | | Hansard source

Sorry, I missed that; they have asked for a review after that, in two years time. The legislation is here, but, as part of its consideration, the government has agreed that in two years time we will see how this is working and see if it is effectual in the manner that the legislation has been described. More importantly, there was another point which you raised. Can you tell me what that one was, too, please?

Photo of Steve GeorganasSteve Georganas (Adelaide, Australian Labor Party) Share this | | Hansard source

Order! All speeches are through the chair. If you'd like a private discussion, you can have one later.

Photo of Russell BroadbentRussell Broadbent (Monash, Liberal Party) Share this | | Hansard source

I'm sorry; I'm just looking for a signal from the other side as to what the agreement was. It was probably written down in a speech that was not memorable. Given the serious consequences associated with the Federal Court judgement, the government has responded decisively by appealing the judgement in the High Court. So we have gone into the courts to talk to the people. Secondly, we have introduced this bill to restore section 197C to its intended purpose. This bill was introduced last sitting week and the government intends to pass it this week, so there is some urgency about the bill.

As I said, we have a detention regime, but this bill is not designed to create a new framework for immigration detention. We already have one. The amendments in this bill are designed to ensure that detainees are not required to be removed in breach of Australia's international protection obligations. This is a humanitarian objective which should not, and has not, become a political football. We want to make sure that courts won'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. In some cases they are not the best of people, but that's for others to judge, not me. We're not talking here about the general run of the public; we're talking about difficult cases. They are in detention because both Labor and coalition governments have reviewed their cases and truly agonised over the details. Decision-makers have known that an adverse decision would carry a risk of long-term detention, but have decided that the risk to the community is so high that these people cannot be unleashed into the community. It is really difficult for governments to enter into this space. Each case is routinely reviewed by the Department of Home Affairs and subject to independent oversight by the Commonwealth Ombudsman. The government amendments to this CIOR bill will require review of the clarifying international obligations for removal within 24 months. The second one will insert AAT merits review rights for determination that a person who previously engaged protection obligations no longer engages those obligations.

I will leave it there at this stage. The bill provides greater transparency in relation to the exercise of ministerial power. We are offering greater transparency. We are offering a review in 22 months. We are offering review rights for determinations that a person who previously engaged protection obligations no longer engages those obligations. So there are three overriders here that are protections for the persons involved. At the same time, the government needs to protect the nation that we serve and have an obligation to the broader community. This establishes the previous intention of government in these matters, to hold the intention of the parliament to be fulfilled in this legislation.

5:24 pm

Photo of Chris HayesChris Hayes (Fowler, Australian Labor Party) Share this | | Hansard source

I would like to make a short contribution in this debate on the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021. Apart from agreeing with the direction of the bill, I would like to say—as I am sure that I have said on many occasions in this place—that my electorate, apart from being very colourful and vibrant, is also one of the largest recipients of refugees in the country. I can't speak for other members here, but I know that, with respect to matters contained in this bill, I have received many, many representations over a number of years both when Labor has been in government as well as when the current Treasury bench has been filled by the other side. It is something that has been a vexed question for everybody.

There is a genuine humanitarian issue at stake here, and I think there has been goodwill on both sides in trying to reach an outcome where we can not only honour our international obligations in terms of refoulement but also importantly meet the expectations of our communities. Our primary responsibility in this place is to keep our communities safe. So, from the outset, I would certainly indicate, as the shadow minister has, that Labor will be supporting this bill. We believe that, with the necessary amendments and the protections that have been secured, the bill strikes the right balance between Australia's refugee obligations and our obligations with regard to the protection of our communities here in Australia.

I note the bill addresses a circumstance in respect of a small cohort of 21 people who are currently in immigration detention, who have been found that we owe refugee protection to but have failed to meet the character test for a visa. Whether they have received adverse security assessments from our respective agencies or, alternatively, a serious crime has been committed, they have, nevertheless, failed that character test.

As was discussed earlier, Australia has a non-refoulement obligation under international treaties, and that is not to return people to a situation where they may face persecution, the real threat of torture, cruel, inhuman or degrading punishment, arbitrary deprivation of life and, indeed, the death penalty itself. Under the same treaties, Australia is not required to provide a visa to a person who engages refugee protection obligations if there are compelling national security or public order reasons that also come into effect. This is where the courts do get involved.

These 21 individuals, as I understand, pose a significant challenge in terms of identifying the practical situation for their issue. They have been determined and recognised as being refugees, but there are issues as to why they present a risk if released from immigration detention and into the community. That being the case, if they cannot be returned to their country of origin, as there are still threats of persecution that exist against them et cetera and, as I understand it, they also present a risk to the Australian community because of either criminal or national security issues if they are released, it has presented a question that has taken both sides of this House to work on for a long period of time to get an appropriate but nevertheless humanitarian response to. Interposed with that, the Federal Court rulings have certainly had an impact on this. The court has held that the removal powers of the Migration Act authorises the removal of person that fails to meet that criteria for a visa—that character test.

It would mean, if that were put into effect, that the government could basically wash its hands of it and say: 'They failed the test. We have no alternative but to send them back to where they came from or where they allege the persecution exists. And where we have been satisfied that a genuine threat exists to them, therefore we have assessed them as being refugees.' That would really be such a hypocritical position for any government to be forced into.

The only other alternative that would present itself to the minister would be that they be released into the community. This is a situation of either one or the other; it's not a situation of being able to look at a suitable alternative. The only option would be for the government to grant a person a visa and allow them to stay in Australia, which would fail our test of ensuring the safety of our community. I think that would fail the test of community obligations that we have to keep our people safe.

This bill amends the Migration Act. To clarify, the act does not require or authorise removal of a person on character or national security grounds where the person has been assessed and found to be owed refugee protection. It also provides an additional option to resolve the ongoing detention of people in this cohort, including community detention—bail-like conditions—a third-country option and, this is the important one, discretion to determine that protection is no longer owed in the circumstances where conditions that gave rise to the protection claim no longer exist. In other words, it allows the government to look at the situation and determine whether the claim for protection is no longer valid against that particular person, and that person then could be returned to their country of origin or the country where they allege the persecution exists. However, if this bill does not pass then people who are owed that protection may certainly be returned to a country where they face persecution.

The bill also keeps Australians safe and certainly goes a fair distance to prevent harm to the general community by preventing someone of a threat or of a great risk being released into the community proper. Many stakeholders have voiced considerable concern about the retrospective nature of ministerial discretion in this regard and I have received a lot of correspondence in my office about this. In terms of the reassessment of protection obligations under the bill, this is something new and something that did not exist before. On balance, I think it is quite legitimate and sensible for any government to be able to assess, retrospective or otherwise, to determine the actual nature of a refugee's status. Nevertheless, Labor also recognises that this bill, including the ministerial discretion, must be limited and it must be exercised narrowly. This is the first time we hope it will be exercised other than in rare situations. That is why we have proposed a number of amendments to safeguard the use of this power.

These amendments include the making of a ministerial determination subject to a merits review and ensuring that the Parliamentary Joint Standing Committee on Intelligence and Security hold a review into the bill's implementation after two years of operation. Labor has also sought assurances from the government that this cohort, the 21 people, receive an ombudsman's assessment in relation to individuals in detention and the appropriateness of their arrangements for detention.

Accordingly, the measures proposed in the bill are, I believe, necessary for ensuring Australia's non-refoulement obligations are met while ensuring that the persons who are a risk are not released back into the community. With that said, we on this side believe that, with the necessary amendments and protections that we have been able to secure, this bill strikes an appropriate balance. Therefore, I support the passage of this bill.

5:35 pm

Photo of Julian LeeserJulian 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.

5:40 pm

Photo of Andrew WilkieAndrew Wilkie (Clark, Independent) Share this | | Hansard source

I will not attempt to stand in the way of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021; I certainly won't be calling a division. But I would like to take this opportunity to voice some concerns that I do have with the bill, and I think I speak for many Australians who would share these views. First and foremost I disagree in principle with the whole idea of what would amount to indefinite mandatory detention, and in extreme circumstances that's what this bill would allow—that someone who has had their visa cancelled and for whatever reason is unable to be returned to their country of origin could be held in immigration detention for the rest of their days. I do want to put on the public record that I strongly disagree with that as a matter of principle.

I also disagree with the whole notion of disrespecting the rulings and the intent of the Federal Court. I think it is poor practice that whenever the Federal Court rules against the government, the government just keeps changing the law until it finds a workaround for the Federal Court. I also disagree strongly in principle with the idea of retrospectivity. Retrospectivity, clearly, as a matter of high principle, should be avoided at all costs and only be used in the most extreme of circumstances. Of course, indefinite mandatory detention is at odds with numerous international agreements that this country has signed up to in good faith. One of those international agreements, which I often refer to in this place, and will again, is the Rome Statute, where it is explicitly detailed that it is a crime against humanity to hold anyone in detention indefinitely. That of course, as I've remarked already, would be allowed for under this bill if it should become law.

The bill is also an unreasonable extension of the power of the state. Over the last 20 years or so, there have been countless laws made in this place when it comes to immigration and immigration detention. Probably the most dramatic and memorable of those laws was the excision of Australian offshore territories and islands from our migration zone. To this day, I think it was the most bizarre—and it would be laughable if it wasn't so wrong—decision made in this place some years ago. I remember a cartoon in one of the newspapers, where it had the immigration minister at the time standing next to Uluru, saying: 'They touched the rock. They can stay.' It was funny in some ways, but very, very sad, and very, very true in other ways, as far as the point it was making. I take this opportunity, in talking about the overreach of the power of the state, to say that it has to do with not just immigration matters but so many other matters, most obviously national security, where almost 100 different laws have been made by this parliament since the 9/11 terrorist attacks, many of which have been quite unnecessary and are very worrying extensions of the power of the state.

It's not like we don't have alternatives to what we're about to decide upon in this place. As recently as February this year I introduced into the parliament a private member's bill, the Ending Indefinite and Arbitrary Immigration Detention Bill 2021, which received no support from the government, nor from the alternative government. I take this opportunity to remind honourable members of that bill, because it just goes to show that there are viable alternatives to the way we detain people in this country. That bill, if it were ever to become law, would abolish unlawful mandatory detention of asylum seekers, refugees and noncitizens. By the way, in doing so, it would have the effect of ending offshore detention. I do note that in last night's budget even more money is being thrown at increasing the capacity of the Christmas Island detention facility. How many billions of dollars after billions of dollars is this country going to throw at offshore detention before we realise we have to find better and more humane—and lawful, in international law—ways of dealing with irregular immigration?

The bill provides that community alternatives to immigration detention will always be preferred to detention behind wire and bars. The bill ensures that those in alternatives to immigration detention have full access to housing and financial support and have the right to work and the right to education, health care and other government services, as required under international law.

The bill that I introduced earlier this year, the alternative to what we're talking about tonight in many cases, includes specific conditions on how and why a person can be detained. It disallows long-term and arbitrary detention by setting limited time frames to ensure that an individual's detention period is as short as possible. The bill would remove the abhorrent and torturous conditions that detainees currently experience by ensuring their access to information and services. Importantly, every decision under my bill, the alternative to tonight's in many cases, would allow every decision to be subject to independent oversight and prompt review and not to be at the whim of the minister of the day. Sure, the ministers of the day will often be fine people who make sound decisions, but we should never have in place laws that would allow some ministers to act improperly.

The bill that I'm referring to is urgently needed. I think that in coming in here and debating what we're debating tonight—a bill that under Australian law would legalise indefinite arbitrary detention—we see again very, very clearly how important alternatives are, and we should be coming in here and debating them. I can't believe that the government has not even allowed the debate of my bill, which would provide an alternative to arbitrary indefinite detention.

Let's not forget that arbitrary immigration detention, as practised in this country and as legalised tonight, is immoral and illegal under international law. It is immoral, in that we have a moral obligation to give people protection, to hear their claims and to give them refuge if their claims are accurate. If someone is found to be a refugee, we should give them permanent refuge in this country and access to all of the services and opportunities that are enjoyed by the rest of us. It is illegal to have indefinite mandatory detention, because it's in contravention of numerous international agreements. Sure, tonight we might legalise something in this country under Australian law, but in doing so we will be at odds with so many international agreements that the members of this House in years gone by have debated, scrutinised, signed and ratified in good faith—agreements like, obviously, the refugee convention; the refugee protocol; the International Covenant on Civil and Political Rights; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of all Forms of Discrimination Against Women; the Convention on the Rights of Persons with Disabilities; the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and, of course, the Rome Statute, which I've already referred to.

I'll close there. I've made my point. I'm talking not just to matters of international law but also to matters of high principle. It is wrong in principle to be prepared to legalise the detention of people—and to legalise and go ahead and detain people—in this country indefinitely, arbitrarily and without trial. To be fair to the government, yes, genuine efforts to safeguard against people being sent back to harm should be welcomed. That point has been made by other contributors to the debate tonight. But such safeguards must be part of changes to stop people languishing in indefinite detention. This bill is targeted at giving the government more power to detain refugees and hold them in detention indefinitely. That's the bottom line. Indeed, this bill will make the current trend of long-term warehousing of refugees in detention even worse.

5:50 pm

Photo of Alex HawkeAlex Hawke (Mitchell, Liberal Party, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) Share this | | Hansard source

I want to thank all members for their contributions to this debate on both the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 and the subsequent Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021.

I want to thank the opposition, of course, and other members who have constructively engaged on the nature of this bill and the amendments that I'll subsequently be moving to the bill. This has been a good process to ensure that there is transparency in our Migration Act and in this very vexed area of international obligation versus criminal cancellations and the implications for Australia.

I would say to the members who have made contributions that we've had some obviously profound experience from people like the members for Fowler, Monash and Clark—people who have taken a long-term interest in these matters. On balance, the contributions have shown that there is an acceptance that this is a needed and necessary amendment to the Migration Act, and that isn't always obvious in this parliament. It's good to see that people on all sides have reached the same conclusion about our international obligations and the non-refoulment of people who we owe protection to, and the balance of ensuring that the Australian community is safe where we have criminal cancellations.

I would say to the member for Clark that there are two things I would disagree with in his contribution. The bill in no way is retrospective, and I can say that confidently to the House: it doesn't operate retrospectively. We're doing this because, as he points out, there are a series of court decisions, the interaction with the Migration Act and the consequences. I can absolutely say to him that, if we were to follow the intended outcome of those court decisions, Australia would be in breach of its international obligations by being forced to refoul people. That's why we're here. I know he doesn't agree with that; I know he doesn't support that, and he didn't say that. But we have to have these amendments because of this serious sequence of events.

There is a small cohort of people who we do owe protection to who are also serious criminals. They have been convicted—not arbitrarily and not detained, but they have served serious criminal sentences and are the subject of adverse security assessments by our agencies or, objectively, they pose an ongoing risk to the community and any fair minded member of this parliament would come to that conclusion about this small cohort of people. In this situation, indefinite detention can arise. Obviously, sometimes it does, because we can't refoul them in breach of our international obligations—and no-one here would call for that—but we may not be able to release them. It is a difficult situation in all regards. The government will continue to look at its options in relation to that.

Obviously, circumstances can change in countries. Countries change their situations regularly over years: safety can be re-established, order can be re-established and protection obligations can be revisited from time to time. Or the risk posed to the community can change over time as well. There's regular assessment of those matters and, hopefully, a resolution can be found. But, of course, difficult and complex situations will arise in a small number of cases.

Again, the parliament can have confidence that both the opposition and the government have carefully considered the matter and understand this to apply to a small cohort. With the amendments that I will be moving under the discretionary national interest cancellation and refusal power under 501(3), the parliament will get notice, obviously, that the power has been exercised, except in cases involving significant criminal offending or national security concerns. That means the government and the parliament will be committed to increased transparency in relation to the operation of these provisions, which should satisfy the parliament, the courts and the public that we are doing the right thing in relation to protecting the community and exercising our international obligations.

We understand that it's a grave topic. I acknowledge the concerns of the member for Clark, but the government takes these concerns very seriously and I believe the opposition has taken these concerns very seriously on both elements in this case. We worked together to ensure that we have a strong law and that the operation of the law will continue both to give effect to our international commitments and to protect the Australian community. We can do both by the proper operation of the law. I want to provide that confidence to the member for Clark and to any other concerned members that these bills do nothing other than provide that certainty to the government, the community and the parliament about the operation of our character cancellations with our international obligations of non-refoulement.

Without further ado, I commend these provisions. I thank all members for their thoughtful contributions and I thank the opposition for its support for these bills. It is a good example of the parliament coming together.

Question agreed to.

Bill read a second time.