Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

Mr Deputy President, in commencing, I add my congratulations on your election by the Senate to the office of Deputy President.

I rise to speak on the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. The bill amends the Migration Act 1958. The purpose of the bill is stated to ensure that anyone who is charged with a criminal offence whilst in detention is found to have failed the character test. From the date of commencement, a person will fail the character test if they have been convicted of an offence committed in immigration deten­tion, during an escape from immigration detention, during a period where a person has escaped from immigration detention or if the person has been convicted of the offence of escaping from immigration detention, whether the conviction or offence occurred before, on or after that commencement. Where a person fails the character test, the delegate has the power to refuse the grant or cancel a visa on these new character grounds.

The coalition will be offering some support to this bill. However, we will be seeking to make an important amendment which I will return to later in my remarks. In the coalition's position, the bill is too little too late and it has only become necessary because of the deliberate policy of the former Rudd and the current Gillard Labor governments to soften the coalition's tough but fair border protection policies. All this bill does is create provisions to ensure that anyone inside a detention centre will fail the character test if they commit a crime that attracts a custodial sentence of less than 12 months duration. These changes are in part in response to the criminal behaviour during the recent disturbances at the Christmas Island and Villawood immigration detention centres which caused substantial damage to Commonwealth property and which cost taxpayers millions of dollars. It is stated that it is intended that these changes will also provide a disincentive for people in immi­gration detention from engaging in violent and disruptive behaviour.

In discussing this bill we must be cognisant of the fact that it does not excuse the minister's continued failure to act to cancel or refuse visas during his time in office. The important point to remember is that the minister currently has the powers to do that but he has failed to avail himself of those powers. After the Christmas Island riots, which began on 12 March 2011, the minister gave a press conference where he stated:

Character can have regard to a number of factors: whether somebody has been sentenced for a criminal activity to prison for more than 12 months, and also general conduct and whether somebody’s general conduct implies that they are not of good character. ... character considerations will be taken into account for those on Christmas Island who have organised and perpetrated this sort of activity. It will be taken into account by our decision makers and ultimately by me.

That was the statement of the current minister. When the minister uttered those words he was admitting that he is currently personally able to make a decision to cancel a person's visa pursuant to section 501(3) of the Migration Act. In such a case, the decision is not subject to the rules of natural justice, nor is it reviewable on the merits and nor is the minister bound, in Australian law, by any of the matters set out in ministerial directions. I again state for the record: the minister has failed to make any decision to refuse or cancel visas using the existing powers. In fact, despite these powers, the history of Australian Labor Party ministers is that they have used their powers under section 501 only once in the past two years to refuse or cancel a visa.

Let's now compare that to the time between 1996-97 and 2003, when Philip Ruddock, as the minister for immigration, personally cancelled 570 visas under the character test provisions of section 501. Those are provisions which are in place and which the current minister, if he chose to, could avail himself of.

However, the current minister is one who refuses to exercise these powers. Why?—because he is a minister who is weak, spineless and completely out of his depth when it comes to the immigration portfolio. One of the fundamental flaws of this bill is that the amendment proposed by the government will only apply to a limited number of people. Whilst the coalition support the new criminal provisions we believe they do not go far enough in that they do not apply to every non-citizen. In fact, the government have failed to provide an explanation as to why the provisions do not apply to every non-citizen.

The government is very good in its rhetoric when it talks about wanting to strengthen the current border protection policies in Australia but this bill only goes part of the way. The coalition want to see this bill go all of the way and will help the government. We will help the government strengthen border protection in this country. We are going to propose an amendment to ensure that all visa holders are subject to the same requirement. Every visa holder convicted of a crime that attracts a custodial sentence of less than 12 months will also be found to be of not good character and liable to visa cancellation.

Why does the government want to restrict this bill to a certain class of person—those inside immigration detention—when it is telling the Australian public that the purpose of this bill is to strengthen the current laws? The current laws entitle the minister, if he chooses, to cancel someone's visa. But he does not choose to do that.

Proceeding to visa cancellation requires decision makers to consider the requirements set out in ministerial direction 41. The minister is not bound by these directions, nor is his decision subject to appeal on the merits. Under section 499 of the Migration Act the minister may give written directions to decision makers, including the Adminis­trative Appeals Tribunal, on how they are to exercise powers under the Migration Act. The direction requires no act of parliament or regulation. It is issued administratively by the minister and is legally binding on all decision makers.

In June 2009, Minister Evans, the then immigration minister, issued direction 41 under section 499 in relation to visa refusal and cancellation under section 501 of the Migration Act. Minister Evans's direction revoked the previous direction 21 issued by Minister Ruddock in August 2001. The three primary mandated considerations established in the Ruddock directive for determining whether discretion should be used under section 501 to deny a non-citizen from remaining in Australia were (a) protection of the Australian community and members of the community; (b) the expectations of the Australian community; and (c) the best interests of the child or children, where they are involved.

The Evans directive abolished the 'community expectations' mandatory con­sider­ation. This requirement would have had special relevance to the recent riots and incidents in our detention network, where, surprisingly, under the coalition's directive, it would have demanded action. However, under Minister Evans—under the Australian Labor Party's watered down directive—there is no community expectation test.

In addition, under the 'protection of the Australian community' mandatory con­sideration, the Evans directive abolished the subcriteria that 'visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)' as well as specific reference to serious crimes against the Migration Act. This is also telling, given that the minister is now saying to the people of Australia that he wants to provide a general deterrent against misbehaviour in the detention network. If this is the case why doesn't the current minister merely seek to amend the new directive?

The Evans directive also abolished references to non-citizens providing bogus documentation or providing misleading statements or declarations as relevant to the consideration of a person's general conduct when considering whether they were of good character. Why is this relevant? This is relevant because during the coronial inquest into the explosion on board the SIEV36, numerous false statements were provided by those on board. However, we were faced with a minister who, yet again, did not take any action. All of the people on board the boat were provided with permanent visas, including those found to be part of a plan to scuttle the boat.

The Evans directive also gave greater primacy to international treaties. These are elevated to mandated primary considerations in all cases when exercising discretion. In the previous Ruddock directive they were listed to be considered only where relevant and they were subject to an overarching qualification that Australia's national interest take precedence. Paragraph 2.24 in the Ruddock directive stated:

Notwithstanding international obligations, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.

That was under the Ruddock directive. That is not the case under the directive implemented by former Minister Evans.

The Ruddock directive states:

The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.

It is this latter sentiment that has been abandoned by the Australian Labor Party in the Evans directive, and maintained by Minister Bowen, despite his public statement that he wants to get tough.

The coalition believes the minister should repeal direction 41 and restore the provisions contained in direction 21, in particular the community expectations test and the sov­ereignty clause to give primacy to national interest requirements over international obligations. Whilst it is clear that the Evans directive weakened the grounds, it would not have prevented the minister acting in relation to the SIEV36 bombers or Christmas Island rioters should he have chosen to do so. The only reason we are debating this piece of legislation in the chamber today is that we have a minister that, despite having certain powers available to him, declines to exercise those powers and make a decision. We have a minister that is weak. We have a minister that fails to exercise the discretionary powers that he is able to under an act.

As outlined by the shadow minister for immigration, Mr Morrison, in his speech on the second reading of this bill, on several occasions the minister has simply refused to use his discretionary powers and let the opportunity pass by him We have a government that knowingly and willingly dismantled the successful policy regime it inherited from the coalition. They had the issue under control and yet they chose to make policy changes and created the problems that we are faced with today.

This is a government that has well and truly lost its way when it comes to protecting Australia's borders. Notwithstanding the current bill, former Prime Minister Rudd and current Prime Minister Gillard have an appalling record, and their lack of strong, decisive or appropriate action continues to confirm that the Australian Labor Party is failing to protect Australia's borders.

Sarah Hanson-Young (SA, Australian Greens) Share this | Link to this | Hansard source

I rise to speak to the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. After listening to Senator Cash's contribution, I am still unclear as to why the opposition are voting for this legislation. While I and the Greens have a very different reason for why we will not be supporting this legislation, the point was made very clearly by Senator Cash that the powers that the minister has spoken publicly about and that this bill would give him already exist within the current legislative framework. We know that he already has powers to ensure that people who hold convictions for serious criminal acts can be judged on that in terms of their character test when applying for permanent protection or permanent residency in Australia.

I struggle to see exactly why the opposition would support this bill, despite Senator Cash—with all due respect—spending the entire speech saying how the government does not need this particular piece of legislation. I agree: the government does not need this piece of legislation. I think it is simply for show. It is a knee-jerk reaction by the government of the day, in the aftermath of some pretty awful and horrific events in detention centres on Christmas Island and in Villawood, as to how to deal with the public concern about what was going on in immigration detention centres.

We know that the big problem within the current system is the length of time people are detained without access to information about their cases. They start to dwell, often leading to a deterioration of their mental health, of their feelings and, of course, of their hope that at some stage down the track their application process will be resolved.

The bill is unnecessary because the existing mechanisms within the act that enable visa refusal or cancellation on the basis of character are sufficient. They already exist. In the view of the UNHCR, the 1951 Refugee Convention provides the appropriate legal framework and parameters through which matters relating to a refugee's character should be considered by the country of asylum. Article 51 of the convention sets out an exhaustive list of grounds on which an asylum seeker can be refused protection. The Migration Act as its currently stands already enables the minister to delegate or to consider past and present criminal conduct in determining whether to exercise discretionary powers under the existing character test outlined in sections 501 and 500A.

Let's get some facts on the table. The laws already exist for the minister to do this. In the past four to five years the minister has used this particular section no more than three times. I take the point that Senator Cash made when she said that, under Minister Ruddock, some 500 applications for visas were cancelled. I think that probably says more about the government of the day and the minister—that is, the 'lock up the kids and throw away the key' minister, Philip Ruddock—than about whether the legislation is sufficient to deal with these issues.

The legislation is sufficient if you want to judge people's character based on their criminal history. We know that. People have been able to do that in the past. The minister could do that now. This legislation simply goes to punishing people—vulnerable people—twice over because of their situation. If somebody is in serious doubt of an individual's character or the minister does not believe that a person should be given permanent protection and residency in this country, the minister already has the power to make those decisions. The proposed amendments will impose another tier of punishment on a person in addition to the punishment imposed by the court.

Because we have an awful situation within the immigration detention system, because we have people acting out of pure frustration about their current circumstances, and because we have overcrowding and long-term detention—the detention of children; the detention of people behind barbed wire, including children, as we do at the moment with 300-odd people held on Christmas Island—this bill says that, regardless of what the court decides, the minister will make a second judgment. This bill will take the power away from the court and the minister will decide whether somebody, simply because of one minor offence, should be subjected to a lifetime of fear, uncertainty and anxiety. That is what this bill will do.

This is not a bill that should be introduced by a government that believes in the fundamental principles of law. This is not a bill that should be introduced by a government that understands the funda­mental principles of human rights. This is not a bill whose passage a government should be asking for if that government fundamentally believes in our principles and obligations under the refugee convention. This government wants to ship people off to Malaysia—expel vulnerable men, women and children to a country that has not signed the refugee convention and that cannot guarantee their rights. This government is doing everything it can to undermine Australia's obligations to the refugee convention.

Existing criminal law is adequate to deal with the criminal acts committed in immigration detention centres. I totally agree that the people responsible for the destruc­tion of property, the burning of buildings, the rioting and violence that we have seen in immigration detention centres need to feel the full force of the law. That is what the law is for; that is what the courts are for. Let them do their job. Since when should the immigration minister be above the courts? Since when should the immigration minister, simply because of the political will of the day and the knee-jerk jumping at the ghosts of John Howard and Philip Ruddock, think, 'Hang on a minute; I'm going to put in a law that says that my decision is going to be greater than the courts of this land'? That is what this legislation does. It does not follow that this piece of legislation would be upheld by a government that believes in the principle of justice and the principles of law. It is likely to hand down lifetime sentences that are absolutely disproportionate in terms of punishment for the offence committed.

The Australian Human Rights Commission submitted during the inquiry to this bill that:

… people involved in disturbances in immi­gration detention centres may currently be prosecuted, convicted and sentenced under the Criminal Code Act 1995.

Any additional punishment is incompatible with the principles of Australia's democratic justice system. During the Senate inquiry into this bill, not only did the government try and push it through and give us only an hour and a half to inquire into this legislation late on Thursday night in the middle of a Senate sitting, but they did not receive one supportive submission to this piece of legislation except their own submission from the bureaucratic department. No-one else believes that this is a good idea. Speak to the legal experts: no-one thinks that this is a good idea. It undermines our basic principles of justice. It says that because this government is jumping at the ghosts of John Howard and Philip Ruddock—and we can see why; we can see the opposition jumping up and saying, 'You're not tough enough'—we have this government saying, 'We are going to start giving punishment above that of the laws and courts in our land.'

This bill proposes amendments that would breach our international obligations. We know that, as outlined by Professor Jane McAdam from the University of New South Wales, the existing character test regime under sections 500A and 501 already breaches Australia's obligations under international law because the scope and matters that are to be considered in refusing to grant a visa exceed the exhaustive grounds permitted under article 1F of the 1951 refugee convention. We already have these laws, they already breach our obligations and this government wants to extend them even further without any justification, without using the existing laws thus far, all simply to grab a headline to say: 'You know what? We can be as tough as John Howard and Philip Ruddock were.' Bollocks.

A refugee who commits a crime in this country should feel the full force of the law. No-one is suggesting that they should not, but the current laws allow for the minister to use that, to understand that and not to grant a visa if that is the case. We simply do not need something that extends this beyond the laws that already exist.

The way in which this bill has been designed—the way it looks and the impact that it has on individuals—is discriminatory towards detainees. We know that the Law Council of Australia noted:

… the proposed amendments continue a legislative approach which treats people differently depending on their mode of arrival.

That is, of course, another breach of our international obligations. We should in this country, as other countries who are signatories to the refugee convention do, accept people's case for protection regardless of their mode of arrival. If somebody comes by boat, or if somebody comes by plane, the place from which they fled, their reasons for fleeing and their need for protection are not different simply because they came by boat rather than coming by plane.

This particular piece of legislation continues that abhorrent discrimination against people simply because of their mode of arrival—and I will tell you why. It is because people who arrive by boat in this country are automatically thrown into immigration detention. We know that the current process means that they are in immigration detention for longer. It is prolonged detention—indefinite detention for some, especially those who have arrived since 7 May. It actively discriminates against people who are in immigration detention and those people who have had to take the most desperate avenues to reach our country.

The amendments are solely for those in immigration detention, which dispropor­tionately affects those who have arrived by boat, who are immediately placed into immigration detention. The amendment is focused on deterring:

… detainees from engaging in disturbances in immigration detention, rather than the need to ensure all non-citizens arriving in Australia are of good character.

That is what the Australian Law Council said. The weight is not on whether people are of good character. The weight is on what happened to them, what they did and their behaviour while locked up for months and months and years on end. Of course that is going to disproportionately affect people who come here as asylum seekers and are immediately subject to our mandatory detention laws.

Do not believe for one second that this is about ensuring that we have people in this country of good character. It is absolutely not. It is about deterring behaviour that could simply be deterred if we did not have 6½ thousand people locked up in immigration detention centres in remote locations around the country and, of course, on Christmas Island. Amnesty International cites that failing the character test is not fair or reason­able punishment for criminal behaviour. Amnesty International further highlights that, unlike punishment in the criminal justice system, such as imprisonment, being denied a visa may have unquantifiable, ongoing, long-term consequences. Of course that is the case. Very vulnerable people who are subject to long-term detention, mental health deterioration, anxiety and confusion about their case do unfortunately do desperate things and take desperate measures.

The idea that anybody who is charged with any type of criminal activity, regardless of how big or small, should not be able to access the protection laws that our country has signed up to under the refugee conven­tion not just undermines our obligations but undermines our ethos as a country for a fair go. It says that, regardless of the circum­stance, we will automatically deny you protection simply because we lock you up and put you in a situation where you are so desperate that the only cry for help you can make is to sew your own lips together and cause disturbance—whatever the definition of that is—in the small, confined space that you have been locked up in for months and months.

This is not at all an honourable piece of legislation. These are very vulnerable people. These are very desperate people. I absolutely agree that if people are convicted of serious criminal acts then of course we need to be looking at their character. But the laws already exist for us to be able to do that. That is not what this piece of legislation is about. This legislation is saying that if you act in disturbance in an immigration detention centre, regardless of your personal circum­stance, regardless of how long you have been there and regardless of the lack of service provision and access to independent support and advice that you have—who cares?—we are not going to let you into our country. We are not going to give you the protection of the convention that for some reason Aust­ralia's signature still sits on.

This government seriously has to start thinking about what it means to be a signatory to the refugee convention if it is simply able to be waved about or waived depending upon the domestic needs of the government of the day. That is not what the refugee convention is about. That is not what signatories to the refugee convention should be showing. Australia can do better than that. Australia should be showing the way in our region as to what a serious business being a signatory to the refugee convention is. When we start playing with our laws and saying that one minister should be above the courts of our land, we have a problem. If the courts want to give somebody a serious conviction, that should, of course, be taken into con­sid­eration. That is what the current laws allow.

If we simply believe in this place that, regardless of what the courts say, the min­ister can automatically deny people per­man­ent protection or avenues to be able to apply for protection then why do we even bother to go to places like Malaysia to nego­tiate protection for individuals? We do not even know what that means. We totally under­mine it. We are trashing our reputation in the inter­national sphere because of laws like this which this government wants to introduce. We are trashing our obligations to the ref­ugee convention, and it makes it very, very difficult for countries like Australia to argue that others in our region should sign up to the refugee convention when we do not even prove or show what that obligation really takes: commitment to human rights, justice, fairness and, of course, the rule of law.

This is a terrible bill, and the Greens will not be supporting it. I think the government has to seriously consider how far it wants to go simply to undermine our basic principles of law and access to justice, the principles of a democratic justice system and, of course, our international obligations. It is an appalling piece of legislation and it should not proceed. (Time expired)

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I rise both to speak to the amendment of Senator Cash and the opposition and to sum up the government's position. Firstly I thank all honourable senators for their contributions to this second reading debate on the bill. I remind senators that the purpose of the Migration Amend­ment (Strengthening the Character Test and Other Provisions) Bill 2011 is to ensure that a visa applicant or holder will fail the character test should they be convicted of any offence committed while they were in immigration detention. The bill will also increase the maximum penalty for the manu­facture, possession, use or distribution of weapons by immigration detainees from three to five years imprisonment. I remind senators that this strengthening will provide a more significant disincentive for criminal behaviour inside our immigration detention centres now and in the future. I note from the contributions of both the opposition and the Greens that there does at least appear to be a unanimity of view that it is not okay for immigration detainees to destroy property, to start fires, to throw roof tiles at staff and so forth. Senator Hanson-Young herself spoke to this point, and on that basis I think that is something we can all agree on.

The Australian community expects non-citizens who seek to remain in Australia to be of good character. To meet this expec­tation the government must not only have the ability to act decisively and effectively to deal with criminal behaviour by people in immigration detention but also have the legislative basis to refuse to grant a visa or to cancel a visa for those non-citizens who are not of good character. Where the character test is failed, it would, however, remain a matter for the minister or the minister's delegate to consider the factors in relation to the nature of the conviction, any sentence applied and countervailing considerations before deciding whether to exercise the discretionary power under sections 501 and 500A of the Migration Act to refuse or cancel a visa. In other words, a determination that a person does not pass the character test under the new ground would enliven the discretion to refuse or cancel a visa but would not dictate the outcome of the exercise of the discretion.

There is a vitally important point here, and I could not help but reach the conclusion on the basis of Senator Hanson-Young's re­marks that it had been lost on the Greens. That is that the ministerial discretion exists only when considering the case of a person who has been convicted. I refer to the explanatory memorandum. It states very clearly:

The amendments to sections 501 and 500A have been drafted to ensure that, where applicable, they apply only to persons who have been convicted of an offence by a court. The amendments made to sections 501 and 500A would not apply to a person who is charged before a court with an offence or offences, and the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but has discharged the person without a conviction on that charge, or any of those charges. That is, there must be at least one conviction for the amendments to sections 501 and 500A to apply.

I think, Senator Hanson-Young, that, when one absorbs the import of that, much of your argument vanishes. You are right: it is not enough to accuse a detainee of making a disturbance. You are right: a minister is not above the courts of this land. You are right: it is a foundation principle of our legal system. It is a question of what is right and proper. I think that, when you absorb that critical point, you must by your own logic find yourself in support of this bill.

The amendments to the character provisions also do not change the existing arrangements relating to natural justice or review rights in relation to the character test. The measures are intended to send a strong and clear message—a message that those opposite have agreed with and a message that the Greens party and Senator Hanson-Young's contribution agree with. That message is this: the kind of unacceptable behaviour recently seen at immigration detention centres will not be tolerated by this government.

I turn to the opposition's amendment found on sheet 7100. In considering this, I make the point that this amendment has already failed in the House of Repre­sen­tatives. I trust it will do so here too, because this is an amendment that, amongst its many failings, seeks to introduce a test that is effectively impracticable. The oppo­sition have flagged an amendment which would amend section 501(7) so that all people who have ever had a conviction for any offence with a custodial sentence would have the character test enlivened.

There are some four million permanent and temporary visa holders and applicants to Australia each year. The amendment would mean that, for instance, somebody applying to visit Australia on a tourist visa who had been sentenced to a custodial sentence in their home jurisdiction, even if that were 40 years previously, would fail this character test proposed by the opposition. It would mean that every single tourist to this country, regardless of visa type, would then have to be considered by the department in that light. This of course would have a significant impact on the tourist industry, let alone the regulatory and administrative burden that the opposition flings so blasely at the Australian government.

The amendment would also apply to skilled workers coming to this country under the 457 visa program, so many employers would be affected through that, and student visas would also be affected. I would like to see the impact on processing times. A regulatory impact statement on the oppo­sition's amendment, I am sure, would bring tears to all our eyes. The opposition has not thought this through. That is why the amendment has failed the common-sense test in the House of Representatives and why I trust it will fail that same test here.

It is appropriate that, if you are in immigration detention, you have a very clear understanding of your obligations, because offences in immigration detention—even offences which do not attract a penalty of 12 months or more—involve damage to Com­monwealth property, risk to other detainees, risk to Commonwealth staff and risk to staff of service providers. We have seen all of this in recent times. They are serious offences and it is appropriate that this parliament and this government send a clear message about that sort of behaviour.

I table an addendum to the explanatory memorandum relating to the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. I thank the Senate and commend this bill to the Senate.

Question agreed to.

Bill read a second time.