Senate debates

Tuesday, 5 December 2017

Regulations and Determinations

Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017; Disallowance

4:43 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | Hansard source

I move:

That the Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017, made under the Migration Act 1958 , be disallowed [F2017L01425].

This regulation which we are seeking to disallow would provide the Minister for Immigration and Border Protection with sweeping new powers on top of what the Australian Greens already consider to be a far too broad range of powers, which have been exercised continually in an unreasonable way by the minister.

The changes that the minister is proposing to make, in broad terms, would allow the immigration department to detain people, potentially indefinitely, on the basis of criminal conduct that has not been proven or even tried, on the basis of behaviour that's considered by the department to have endangered or threatened another person extending, potentially, to bullying and online vilification, and because of inconsistencies in people's names on identity documents issued by any Commonwealth, state or territory government authority or official, or failures to update any name changes in those documents.

It's really important to note here that the conduct or behaviour that I've just referred to, and that the minister is seeking to act upon by detaining people who are on temporary visas, would not need to be assessed by a court, and therefore they would not be subject to the safeguards of Australia's criminal justice system. Indeed, the behaviour does not even need to be criminal and captures a very broad range of offences which would occur every day in every state and territory in our country, such as minor traffic offences. Potentially, people who have different names on their Medicare card and drivers licence could find themselves triggering the cancellation of a visa if these regulations go through, which would lead to detention and, in the case of refugees, potentially indefinite detention.

I acknowledge, and the Australian Greens acknowledge, that these changes would not immediately affect people on TPVs, temporary protection visas, but they would affect people if they renew their temporary protection visa after these regulations pass through the parliament—if, in fact, they do. It's important to note that the people we are discussing here are prevented by our current laws from ever becoming permanent residents in Australia, and they already suffer enormously because of their insecure state. We also acknowledge that this instrument will not immediately affect people on bridging visas. But it's important to note that bridging visas often have very limited time periods and will expire and potentially be renewed, in which case the proposed changes would start affecting people soon.

Of course, the human consequence of what the minister is proposing to do in the instrument that we are seeking to disallow today is that people who are already highly vulnerable for a range of reasons will have to live in fear that some day—maybe even decades into the future—they could be detained because somebody else has simply made an allegation that they have harassed or vilified them. While these changes do not apply to temporary protection visas that have already been granted, once the TPVs start being renewed—and there is currently a large tranche of people who will have their TPVs renewed starting shortly—it will also affect people once they have their visas renewed.

The idea that someone on a temporary visa should not engage in criminal conduct, should not endanger or threaten any individual and should use the same name for all government dealings, on the face of it, may not seem inappropriate, but it is actually the way that these measures will be implemented—and this will be implemented by the department, by departmental officers, at an unknown level—that is of significant concern to the Australian Greens.

Firstly, I go to the issue around names. Again, on the face of it, it's not unreasonable for somebody to have the same name on all of their documents. However, it's important to note that many people come here fleeing persecution and stretch out a hand to Australia for help. There are those who are lucky enough to still be here—because, of course, there are still many hundreds of people on Manus Island and Nauru who, shockingly, have been detained for nearly five years now in Australia's offshore detention system. For those people who are in Australia, it doesn't seem unreasonable to expect that they would have the identical name on all of their documents. But many of them come from countries where their names are required to be translated—sometimes from other languages that don't actually use the same alphabet as ours, such as Arabic—and it is at times almost an inevitability that letters or sounds will be lost in translation or translated differently by different people. So you have a situation where simply having a slightly differently spelled name—on, for example, your driver's licence and your Medicare card—could lead to you ending up in Australia's onshore detention system. These rules, in the view of the Greens, exacerbate the inadequacies of current laws concerning how we determine a person's legal identity. One of the real pitfalls, which I don't believe the minister has thought through here, is that these rules will increase the potential for false findings that migrants have intentionally misled or sought to defraud.

On the behaviour conditions—that is, the conditions that relate to a requirement not to engage in criminal conduct and a requirement not to endanger or threaten any individual—it's important to note that you won't even have to be charged with these offences for the minister to throw you into Australia's onshore detention system. You won't need to be charged with a criminal offence, much less convicted in a court. The freedom and the liberty of the people we are discussing here will turn on how an immigration department official interprets what are inherently vague concepts like 'endangering', 'threatening' and 'disrupting' either other people or the community.

Our legal system has a set of checks and balances built into it. They are designed to make sure that people get access to a fair trial and a fair hearing, and that a range of rights that we often take for granted in this country are not trampled through our legal system or our administrative law system. This seeks to move matters that are caught by these regulations out of those systems with those safeguards and into the hands of an immigration department official. And, as I said, you won't even need to be charged with an offence to find yourself locked up and potentially, in some cases, indefinitely locked up, depending on the circumstances of the individuals who fall foul of these draconian new provisions that the minister is seeking to make. The changes would also bar people whose temporary visas have been cancelled on behaviour related grounds from applying for a bridging visa, and they would also bar people from applying for a resident return visa where their permanent visa has been or is being considered for cancellation.

So what we've got here is a minister, in Minister Dutton, who has shown horrendous disregard for human rights and horrendous disregard for the rule of law—a man who was happy to order the withdrawal of drinking water, food, electricity and medicine from over 600 people on Manus Island who have already, in most cases, been indefinitely detained for nearly five years—and, for a large part of that time, illegally detained on Manus Island, according to the Papua New Guinea Supreme Court. Mr Dutton's track record on fairness can be described in no other way than as an abject failure. He is a serial trampler of human rights. He has shown repeatedly in the past that he has no respect for the rule of law and no respect for decisions that our country's administrative law system makes and, in fact, our judicial system makes. He cannot be trusted with these draconian, sweeping powers that he is seeking to grant himself with this instrument. It is strongly and stridently opposed by the Australian Greens.

When you take what the minister is doing as a whole, when you think about the fact that you won't need to be charged to be thrown into detention in Australia by Minister Dutton, when you think about the fact that you are dealing here with a cohort of people, many of whom will already be in an incredibly vulnerable state due to their life circumstances and their journeys to arrive in Australia, to allow someone like this immigration minister—or, in fact, any immigration minister—to have such unfettered control over their lives and to have such draconian capacity to deny them of their rights, their liberties and their freedoms, we have to ask ourselves: on what basis do we seek to allow this instrument to be made? It's the view of the Australian Greens that we ought not to allow this instrument to be made. Of course, that's why we have moved the disallowance motion that we are speaking about this evening.

It's ironic, isn't it, that at times the immigration department has, itself, incorrectly entered somebody's name onto their paperwork. There are demonstrated circumstances and proven circumstances where this has occurred. So you've got a situation where the department of immigration may itself make an error which entraps an innocent person who has done nothing wrong into a regime that the minister and the government are proposing to create, and this will allow the minister to throw someone into Australia's onshore detention system. This absolutely beggars belief. It is overreach in the extreme for this minister, with such an abject track record on human rights and respecting the rule of law, to come into this place and seek to grant himself ever more draconian and sweeping powers. He has more front than a D9 bulldozer—this minister. The Australian Greens are not going to have a bar of it.

The inevitable consequence of this regulation passing—and we don't believe that it should, which is why we've moved this disallowance—will be miscarriages of justice. The inevitable consequence will be natural justice denied to some of the people in this country who need it the most—many of whom would have fled from a country where a fair and reasonable justice system is only, and can only ever be, a thing of dreams. They come to this country, where they have a right to expect the government to respect the rule of law and where they have a right to expect a fair and impartial justice system, and they find themselves, if this regulation is not disallowed, entering a country where they can simply be thrown into our onshore detention regime effectively on the whim of an officer of the Department of Immigration and Border Protection for something as minor as a traffic offence. I look around this chamber now and I wonder how many of us have ever been caught speeding. I'll put my hand up for that. And I reckon there would be a majority of others who'd put their hand up, too. Do we seriously want people thrown into Australia's onshore detention system because they drove a car six kilometres an hour over the limit?

What sort of country are we becoming, where we would even countenance such draconian and sweeping powers for a minister who has repeatedly shown that he cannot be entrusted to wield the powers that he already has in a fair and impartial manner? The answer, of course, is: we shouldn't be creating these new draconian, sweeping powers for this minister, or any other. I seek leave to continue my remarks later.

Leave granted; debate adjourned.


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