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

This legislation was introduced in the other place, the House of Representatives, during estimates—while the Senate wasn't sitting. It has now been brought on for debate in the Senate without providing the Senate with an opportunity to refer it to an inquiry. This is not what a transparent and accountable government looks like and certainly doesn't live up to Prime Minister Albanese's promise to change the way that politics operates in this country.

The Senate has a constitutional obligation to scrutinise and judge the activities, policies and legislation of the government. We are being prevented from doing that by the government's rush to pass this legislation without a Senate inquiry. This is an omnibus bill, comprising two unrelated schedules. The only commonality between those two schedules is that they both seek to reduce the need for ministerial interventions, thereby reducing administrative burden and increasing visa-processing efficiency. That does sound reasonable, but, as always, the devil is in the detail or, in the case of some of the measures in this bill, the devil is in the lack of detail.

Schedule 2 of the bill will repeal subdivision AK of the Migration Act, which bars dual nationals from lodging protection visas. This will ensure protection for refugees, including children with dual nationality, who fear harm from more than one country. This reform is a good and long-overdue reform, and the Australian Greens welcome and support it. However, there is a lack of clarity here, and that is around what will happen to those whose applications have already been found to be invalid and are awaiting ministerial intervention. I will put that question to the minister representing the minister for immigration in committee of the whole.

Schedule 1 of the bill—validating documents which do not comply with statutory requirements—ostensibly seeks to provide consistency regarding notifications on visa related matters. The government argues this reform will introduce efficiencies and consistency for all parties: the minister, the department and visa holders. But the issue is whether bureaucratic efficiencies and consistencies will trump the needs and rights of vulnerable visa holders. Schedule 1 contains highly technical amendments, and we are concerned about the potential for unintended consequences, which is, of course, exactly why this bill should have been referred to a Senate committee for inquiry, with proper scrutiny and evidence provided by legal and sector experts and those with lived experience of being a refugee. Sadly, that hasn't happened.

In the short time provided to consider the bill, the Australian Greens have concluded that there is the potential for proposed section 494E to be highly problematic. That section, titled 'When documents are taken to comply with content requirements', may well be titled 'Near enough is good enough'. This section provides that a document given to a person that doesn't comply with relevant requirements under the Migration Act will be considered to be compliant so long as there has been substantial compliance or the noncompliance does not cause substantial prejudice to the person's rights. Those concepts—'substantial compliance' and 'substantial prejudice to the person's rights'—are new concepts and are ambiguous concepts that are being introduced into the act. We have no idea how a court may interpret those terms. This ambiguity may diminish a visa applicant's right to challenge any defective notifications, as the interpretation of these terms will be subjective and legally complex.

This schedule is likely to cause prejudice and inconsistency for applicants and may also, despite the government's insistence, increase the department's administrative burden in assessing whether there has been substantial compliance and whether substantial prejudice exists. Worse yet, there appear to be no review rights for decisions made by the department under these new provisions. The bill also removes the requirement that notifications for certain visa cancellations ensure, as far as reasonably practicable, that the holder understands the content. This change, without justification, removes the appropriate burden on the department to notify with clarity. This isn't just rushed legislation; this has the potential to be unjust legislation.

The bill includes amendments to create consistency for visa cancellation notifications. This could be a positive reform, but we actually don't know for sure because this detail will be provided in regulations which we have not yet seen. As we won't be provided with an opportunity to debate any regulations that may be drafted, I want to take the opportunity to provide the government with some guidance on what the Australian Greens believe the regulations should provide for. The regulations must ensure that notifications affecting people's rights, particularly regarding visa refusals and visa cancellations, are clear and accessible and that people actually receive their notification documents. I'll just make the observation here that it's far too common that people do not receive their notification letters and consequently miss their deadlines and face devastating consequences.

These issues can be addressed by the regulations prescribing that the department takes all steps possible to ensure the affected person receives their notification letter and understands their notification letter. For example, people who are in immigration detention and criminal custody should be personally handed their notification documents by immigration officers, rather than via third-party contractors. Also, an explanation of the content of the notification must be provided, including a translation of the letter or via an interpreter, where appropriate. Notifications should also specify the date of a person's review deadline. The current system of calculating deadlines based on when a notification is deemed to be received is confusing and should be changed. Importantly, the Australian Greens want to take this opportunity to strongly encourage the government to agree with the refugee sector, the refugee legal sector and the human rights sector while drafting these regulations.

As the bill stands, we have concerns, in particular, with schedule 1. Unfortunately, rather than allowing the parliament to consider fully formed reforms and their potential impacts on people and on justice in this country, the government has again chosen to leave these important details to delegated legislation and, unfortunately, has, as I stated earlier, refused to allow this bill to be scrutinised by a Senate inquiry. Regardless of what the regulations may or may not include, there is nothing that could be drafted to fix the injustices that we believe are at risk from clause 494E of the bill, which is why I give notice of my intention to move the amendment on sheet 1997, as circulated under my name, to strike out schedule 1 of the bill.

I also want to take this opportunity to make it clear to the government that they are on notice from the Australian Greens on their policies regarding boat turn backs and the continuation of offshore detention. There are still 80 people in Papua New Guinea who were exiled illegally, as the Papua New Guinean Supreme Court found, to Manus Island a decade ago—by a Labor government, I might add. Those people are clearly impacted by the unfortunate situation where this current government has adopted the previous policies of Mr Morrison and Mr Dutton in washing their hands of responsibility for those people who remain in Port Moresby in Papua New Guinea.

I want to make it clear that many of those people are critically ill. In many cases, they are critically mentally ill. We shouldn't be surprised about this. They were subjected to a situation on Manus Island designed to deliberately dehumanise them, brutalise them and torture them. They witnessed death and disease. They were subject to attacks by Papua New Guinean armed forces. They witnessed murders. They witnessed other assaults. And they witnessed those things while being illegally detained in Papua New Guinea, as found by the Papua New Guinea Supreme Court.

There are also many hundreds of people from the offshore cohort who are now in Australia. The department and the government describe them as transitory persons. The Greens describe them as human beings. Many hundreds of those people have no pathway to permanent protection and no pathway to a free and safe place to call home. That's even if the opportunities remaining under the US agreement, the New Zealand agreement and private sponsorship opportunities in Canada are fully filled. There are still many hundreds of people from the offshore detention cohort who have no prospect whatsoever, as we stand here tonight, of permanent freedom and permanent safety. I remind colleagues that we signed up to provide them with those things when we signed the Refugee Convention in the 1950s. Those were the days when Australia was a global leader in human rights rather than the global pariah on human rights that we are today.

I note recent reports around the fact that the United Kingdom is now commissioning an Australian company to provide Hulk barges for the imprisonment of refugees in the United Kingdom. It wasn't that many centuries ago that people who were on prison hulks in the UK became some of the convicts that were brought to Australia in the early days of colonisation and land theft that occurred in this country. Now an Australian company—incidentally, I might add, the very same company that provides travel services to senators in this place—is a contractor to the UK government in providing prison hulks for refugees in the UK. I also note that the UK has entered into offshore detention agreements with third-party governments, once again demonstrating and proving that offshore detention is one of this country's most shameful exports.

This legislation, which relates in part to refugee status, can help us take a small step along a path that would ultimately address a very small part of the reputational damage that Australia has caused to itself and that we have caused to ourselves by our attitude to offshore detention, our attitude to boat turn-backs and our attitude to indefinite onshore immigration detention, which,    quite shamefully, we still engage in in this country. So that part of the bill will receive the support of the Australian Greens, and it will in a very minor way start to repair some of that damage. But, believe me, there is a lot more damage that is yet to be repaired, and this government has a lot more work to do before it can be considered a government that is on the side of people seeking asylum in Australia.