Andrew Bartlett (Queensland, Australian Democrats) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

This Private Senator’s Bill is fifth in a series of Migration Bills which I will seek to introduce over the course of this parliamentary year.

The aim of these bills is to provide a roadmap for what needs to be done to reverse the many negative provisions that have been introduced into the Migration Act over the last fifteen years which have undermined the rule of law and restricted or removed the rights of refugees, asylum seekers and migrants.

The purpose of this bill seeks to repeal the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 which toughened the existing provisions in the Migration Act enabling the refusal or cancellation of visas on character grounds.

In my minority report to the inquiry into the bill, I accepted that Australia has a right to monitor and restrict the entry of persons who are of ‘bad’ character and supported the implementation of workable provisions to protect Australians from the presence of undesirable or dangerous entrants. However, I strongly believe that such provisions must be sufficiently flexible to be applicable in a wide range of circumstances and must be firmly founded on principles which include compassion, empathy and natural justice.

My specific concerns about the following aspects of the provisions in the Act are addressed in my bill:

“National Interest” test for conclusive certificates

I have major reservations about the subjective nature of the term “national interest” on which basis the Minister is able to refuse or cancel a visa on character grounds under the Act, as there is no longer an avenue for access to an independent review process. Instead, people are now subjected to the whim of the government of the day determining what is in the national interest, it deserves serious consideration because, the term “national interest” is so broad as to justify almost any issue of a certificate.

I am concerned at the potential dangers of major decisions regarding the future of individual human beings becoming more subject to immediate political pressures rather than broader, soundly based legal principles. This provision has been repealed in my bill to be replaced by a system allowing for internal review and allows for the Minister to issue a conclusive certificate under certain circumstances.

The ‘character test’ and refusal or cancellation of visa on character grounds

The provision in the Act which allows the Minister to refuse or cancel a visa on character grounds is one that has had strong objections with regards to the character test itself. The inclusion of certain levels of criminal sentences as an automatic indication of a person’s character is a particular problem.

The intent of this provision as expressed in the second reading speech of the Minister said that “decision-making in relation to character judgements will be improved by deeming that certain levels of criminal sentences will lead to an automatic finding that the non-citizen concerned is not of good character”. Based on evidence given at the inquiry at the time, I believe this statement as being somewhat simplistic in that it seems to assume a uniform system and standard of justice is operating across the board.

The provision formulating the character test does not take into account the fact that justice and criminality are defined very differently in various countries throughout the world with many people being jailed simply for voicing an opinion or holding an unpopular religious or political view.

I am yet to be convinced that the character test can be applied in any just and equitable fashion to people coming to Australia from countries which do not hold the same values or have the same standards of justice as we do.

I note comments made by Dr Crock from the Law Council of Australia in inquiry hearings (refer to the committee’s transcript of evidence by Dr Mary Crock at pg 195) that if the proposed character test were strictly applied people such as Nelson Mandela and Ghandi—if he were still alive—would be deemed to be of bad character. It should not be the Government’s intention to make it harder for highly respected and highly regarded figures to enter Australia.

I also have specific concerns about the way the character test may and is affecting people with psychiatric disabilities. The section in question contained in s.501 (7)(e) which states that a “person who has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution” has a substantial criminal record does appear to be somewhat out of step with Australia’s non-discriminatory policies in relation to people with disabilities.

As there is no clear distinction between criminal behaviour and psychiatric illness contained in the provision, it should be eliminated all together.

The provisions contained in my bill seek to repeal this provision and to substitute it instead with specific conditions that must be satisfied before a Minister is allowed to refuse or cancel a visa or entry permit.

Minister’s personal powers

I have major reservations with any prospect whereby the Minister is given additional personal power. The result of this bill virtually gave the Minister absolute power to exclude or remove non-citizens who are determined not to be of good character. This included the ability to set aside decisions of the AAT and to refuse or cancel a visa where the Minister suspects that the person does not pass the character test and the refusal or cancellation is in the national interest.

While recognising that, from time to time, there may be a need to expedite the normal processes in order to address emergency cases involving non-citizens, I have specific concerns that the additional powers bestowed on the Minister may have the effect of undermining the rules of natural justice and will remove many of the safeguards against arbitrary and capricious decision making.

I commend this bill to the Senate.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.