Senate debates

Thursday, 9 February 2017


Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016; Second Reading

1:41 pm

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Shadow Minister Assisting the Leader for Science) Share this | Hansard source

Labor supported the Migration Amendment (Character and General Visa Cancellation) Act 2014, which introduced measures which were the first substantive update of the visa cancellation provisions since the inception of the Migration Act.

We support this bill because we believe that the measures contained within it are essentially justified in the light of experience and, I think, community expectation. That act and this bill were designed to ensure that non-citizens who have committed crimes in Australia, who pose a risk to the community or who are of dubious character will have their eligibility for visas reassessed. People who come under scrutiny for these reasons are liable to have their visas revoked or their applications refused.

In the material that was sent to the Senate committee for the Senate inquiry into the bill, the Department of Immigration and Border Protection stated:

… the protection of the Australian community and is particularly important in the offshore visa context. In considering whether a non-citizen should be granted a visa to come to Australia, there is an expectation that the non-citizen will not cause or threaten harm to either individuals or the Australian community. Where there is information that suggests that a visa applicant presents more than a minimal or remote risk of causing harm to an individual or the broader Australian community, it is entirely appropriate that the non-citizen's visa application be considered for refusal …

That is the view of the Labor Party and I believe that to be the view of the community at large.

Labor recognises that the government must have the capacity to act quickly against non-citizens who are liable to harm this country. It is also essential that Australia's immigration system allows easy identification of people seeking to come to this country who fail the character test. The 2014 amended act provided for the mandatory cancellation of visas of people who are serving a prison sentence, who are found to have a criminal record or who are found guilty of a serious offence, including sexual offences involving children. The act also broadened the power to refuse or cancel a visa, with additional grounds in the character test. The act allowed the minister to set aside the decisions by a delegate or a tribunal and cancel a visa in the national interest. And it gave the minister power to require that the heads of agencies in states or territories to disclose personal information.

The present bill clarifies the minister's rights and responsibilities when exercising discretion to cancel a visa on character grounds. The character concerns that the minister must take into account include instances where people have been convicted of or charged with an indictable offence for people smuggling, human trafficking, genocide or sex crimes—child-sex crimes in particular. Noncitizens subject to INTERPOL notices or adverse security assessments are also deemed to be of character concern.

The bill is also intended to ensure that the cancellations based on the character provisions of the Migration Act are applied consistently. The bill will ensure that the minister's power to override a decision of the AAT—the Administrative Appeals Tribunal—or a delegate and cancel a visa applies to all cancellations on character grounds. This means that noncitizens who are subject to these decisions will be treated in a manner consistent with other character-test decisions. The sections of the Migration Act relating to authorised detention will now also include references to the minister's discretion to override a decision of the AAT or a delegate. The bill makes clear that the sections relating to a detainee's right to apply for another visa and to the duration of the detention do not apply to character-test cancellations by the minister.

The bill also makes it clear that pending or outstanding visa applications will be taken to have been refused after a decision by the minister that is consistent with other character-test cancellations. The rights of people whose visas have been cancelled will be consistent across all sections of the act. As a consequence of this consistency, the nondisclosure of information provided by the Department of Immigration and Border Protection that applies to character cancellations under other sections of the act will also apply to the minister's discretionary power to override decisions by a tribunal or a delegate.

Noncitizens who still have appeal options available to them will not be automatically deported, but the government will have the explicit power to deport people whose visas have been cancelled under the mandatory cancellation provisions of the act.

The effect of all of these changes, of course, is to increase the power of the minister. Labor accept that that is a necessity for the reasons that I have already outlined, but we also say to the minister—as we did when supporting the 2014 act—that we shall keep a close eye on how he exercises his discretionary power. The Australian people have a right to expect that he will do so in a manner that is fair and with regard to all relevant circumstances in each case. If he does not, we will hold him to account. Subject to that warning, the Labor Party will be supporting this measure.

I will conclude on this note: I understand that Senator McKim has tabled a second reading amendment. At this point I would like to indicate that, while we support this bill, we will not be entertaining this second reading amendment. The amendment clearly seeks to target a particular head of state, and in this regard I do not think there is any secret that the head of state that the amendment is aimed at is the President of the United States. We take the view that the US alliance is stronger than any single person. Our relationship with the Americans is based on shared values and mutual respect, and it is a two-way street. Our alliance has never meant that we blindly agree to everything that the United States does or says. We will continue to advocate for our values, and the Labor Party will continue to advocate for an independent foreign policy within the alliance framework. That does not go to supporting measures such as Senator McKim's second reading amendment.


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