Monday, 23 November 2015
Migration and Maritime Powers Amendment Bill (No. 1) 2015; Second Reading
I thank my fellow senators for contributing to the debate on the Migration and Maritime Powers Amendment Bill (No. 1) 2015. This bill is a technical omnibus bill that deals with a number of unrelated matters. The bill fixes a number of legislative gaps and clarifies the government's policy intention on a range of matters in the Migration Act 1958 and the Maritime Powers Act 2013. The bill amends the Migration Act to strengthen and clarify the legal framework to ensure that it will be interpreted consistently with original policy intention.
Firstly, the amendments in schedule 1 of the bill will amend the Migration Act to ensure that, when the department attempts to remove someone from Australia, if that removal is aborted for any reason up until the point the person successfully enters the destination country, the person can be returned to Australia without a visa. The amendments will also ensure that certain visa application bars will continue to apply to those persons. That means that, when an unlawful noncitizen's removal from Australia is aborted—for example, it could be refusal of entry by a transit country—and that person needs to be returned to Australia, that person can re-enter Australia lawfully without a visa.
Secondly, the amendments in schedule 2 of the bill strengthen and clarify the legal framework established in December 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014 and ensure that the character cancellation provisions operate effectively as intended. It does this by ensuring that confidential criminal intelligence that is critical to decision-making under certain character provisions can be appropriately protected. It does so by inserting a new removal power to put beyond doubt that a noncitizen whose visa has been mandatorily cancelled will be available for removal from Australia at the end of the process and aligning the definition of 'character concern' with the character test to ensure that the department is able to identify noncitizens who have a criminal history or who are of character concern. By aligning the definition of 'character concern' in the Migration Act with the changes to the character test, people of character concern will now include, amongst other things, references to noncitizens who have been suspected of or involved in conduct constituting an offence of people smuggling or human trafficking and the crime of genocide regardless of whether the noncitizen has been convicted; convicted or found guilty of child sex offences; or charged with such an offence even if the noncitizen was discharged without conviction. Thirdly, the amendments in schedule 3 to the bill will ensure that, when the Migration Act provides for a visa to cease, that visa will, with one exception, cease whether or not the visa is in effect at that time.
These amendments clarify that a person who has previously had a protection visa application made on their behalf, where the grant of that protection visa has been refused, cannot make a further protection visa application claiming to satisfy different grounds or criteria for the grant of the visa. This is a technical amendment to fix an oversight and gives effect to the policy that was originally intended when the provisions barring further protection visa applications were inserted by legislation passed by parliament in 2014. The intention is that, if a person's protection visa has been cancelled or refused, they cannot avoid or delay their departure by making repeated protection visa applications.
The amendments will also ensure that fast-track applicants who are refused protection visas on certain character or security grounds can make an application for review of that decision to the Administrative Appeals Tribunal under the existing provisions in the Migration Act. Character determinations can be evidentially and legally complex and the AAT has particular expertise in this area. By allowing the AAT to review those decisions, the government is ensuring a consistent, rigorous—but fair—and expert process. This is also a technical amendment to give effect to the original policy intention that this cohort have access to specialist merit review by a tribunal.
Amendments in schedule 3 to the bill will also clarify that when a protection visa application is made on behalf of a person who is a minor or is mentally impaired, and where that person is then refused the visa, the person cannot apply for a further protection visa regardless of whether the application is made on the same or different grounds from the original application. This will ensure that the protection visa application bar in section 48A applies consistently across all protection visa applications. Finally, schedule 4 to the bill amends the Maritime Powers Act 2013 to confirm that powers under that act are able to be exercised in the course of passage through or above the waters of another country in a manner consistent with the United Nations Convention on the Law of the Sea.
I now want to turn to the matters raised by the Senate Legal and Constitutional Affairs Legislation Committee in their consideration and report on this bill. Firstly, I thank the committee for their report on the bill. The committee reported on the bill on 10 November 2015. The committee recommended that the bill be passed, subject to the explanatory memorandum clarifying the operation of the retrospective provisions of the bill and the safeguards around the impact of these provisions on young people and people with cognitive impairment.
I can advise the Senate that, in line with the committee's recommendations, the government tabled an addendum to the explanatory memorandum to the bill on 12 November 2015. This addendum provides further detail on certain amendments made by schedule 2 and schedule 3 to the bill and relates to the retrospectivity of the measures as well safeguards for minors and vulnerable persons. I trust that this detail assures the Senate that, in relation to retrospectivity, the amendments are aimed at remedying drafting oversights and inadvertent omissions in legislation that was passed by parliament in 2014. They simply clarify what has always been the government's policy intention and are not expected to have an undue impact on individual cases.
I also want to pick up the point that Senator Macdonald made as the chair of the Legal and Constitutional Affairs Legislation Committee about how Senator Hanson-Young has, in her usual manner, come into this chamber today and dropped amendments on the table. These amendments relate to issues she did not bother to raise when the Legal and Constitutional Affairs Legislation Committee was considering these bills, so she obviously did not think that they were important at that time—yet she is now prepared to come into this place and grandstand about them. So, Senator Hanson-Young, I really have to question your bona fides here. You have clearly written the dissenting report of the Greens in the Legal and Constitutional Affairs Legislation Committee's report—Senator Macdonald referred to that—but you did not see fit to include any reference to this issue whatsoever. Senator Macdonald may well correct me on this, but I do not even think that you led any evidence, or that there was any evidence raised, in relation to the matters that you are now trying to put through the Senate by way of your amendments. It just goes to show, Senator Hanson-Young, that you will take any opportunity—any time or any place—to grandstand about these issues. If you thought they were so important, you would have raised them at the Legal and Constitutional Affairs Committee—not turned up this morning and just dropped the amendments so that you could have another opportunity to gasbag in this chamber on these matters. It really does, I have to say, go to your bona fides on this particular issue.
In summary, this bill deserves the support of all senators and I commend the bill to the chamber. But, before concluding, can I just put some facts on the record, because facts are things that the Greens and those opposite do not always refer to: 'Why let a fact get in the way of an argument?'
Senator Kim Carr interjecting—
I will go particularly to some of the comments that were made by Senator O'Neill. I have the benefit of having spent many years as a government lawyer. Those opposite come to this place and criticise the coalition on our record. Cast your minds back to who instituted mandatory detention in this country. Who instituted it? It was those opposite. So go back, Senator Carr. Some of us have a long record and some of us have spent a lot of time dealing with legal issues pertinent to the time when you opposite instituted mandatory detention in this country. So do not come into this place and preach to us about people in detention. You need to go back into history and have a look at your record in this space before you come and preach to us.
Let me also put some other matters on the record. Senator O'Neill started to lecture us on what we are doing in the humanitarian space. I remind those opposite and the Senate that we take 13,750 people under our Humanitarian Program every year. That figure will go up to 18,750 by 2018-19. We are now taking 12,000 people as a one-off, and we are taking them as permanent residents. We are taking them in addition to our current Humanitarian Program. We have a good Humanitarian Program. Indeed, we have one of the best settlement processes in the world. That is not to say that there is not room for improvement, and I have made comments in relation to some potential improvements. But we do it very well compared to the rest of the world.
I also remind those opposite that, when the Howard government left office in 2007, there were only four illegal maritime arrivals in detention. None of those were children. So, Senator Hanson-Young, do not come into this place and preach, because, without policy foresight, Labor proceeded, with your help, to tear down the successful Howard government border protection policies. They tore them down. They changed program after program after program, and what did that result in? That resulted in 50,000 people arriving, on over 800 boats, and 1,200 deaths at sea. At the height of this absolute policy disaster, July 2013, there were over 10,000 people in detention, including almost 2,000 children. Labor were forced to open 17 detention centres to deal with the influx of illegal arrivals, all of which resulted in an $11 billion border protection blow-out. This government is using strong and consistent policies, which include turn-backs when it is safe to do so, offshore processing and temporary protection visas. All of this has ended Labor's chaos and has restored integrity to Australia's immigration system. As a consequence of this, we have halted the abhorrent people-smuggling trade and we have ended the deaths at sea.
Australia is a migration country that has been very successful. Why? Because, when you have an ordered migration process, people respect it. People respect ordered migration processes.
Senator Hanson-Young interjecting—
Clearly, Senator Hanson-Young, when you rabbit on this way, you have absolutely no idea. That is why millions of people have come to this country. Since 1945, 7.5 million migrants have come to this country, including over 825,000 people under our Humanitarian Program. Under successive coalition governments, we have run good and ordered migration processes. I am a daughter of migrants to this country. My parents came to this country in the proper way. Millions of people have come to Australia in the proper way. That is what has made this such a successful country. That is why it is important that you have a good and ordered migration process, and that is why this legislation that we are up putting before the Senate today—
Senator Hanson-Young interjecting—