Thursday, 9 February 2017
Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016; Second Reading
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.
I rise to speak on the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016. It is worth pointing out to the Senate and to people watching and listening that this is the third time these amendments have been before the parliament, which means it is the third time that the government has had the opportunity to listen to the concerns of the Australian people about this legislation.
I want to start by going back and looking at the history of the character cancellation provisions that the Abbott-Turnbull governments have introduced. Back in 2014, the government brought in the Migration Amendment (Character and General Visa Cancellation) Act 2014, known as the character act. This act introduced new powers to refuse or cancel visas on character grounds. It meant that a person's visa would automatically be cancelled if, among other things, the person was imprisoned for a sentence of 12 months or more or was convicted of a sexual offence involving a child. Significant concerns were raised at the time by organisations like the Refugee Council of Australia and the Asylum Seeker Resource Centre. As with this bill, inquiry submissions were vastly, overwhelmingly, opposed to the changes.
These groups raised very legitimate concerns. They said the character act considerably increased the risk of indefinite detention because people found to be refugees cannot be returned to their country of origin. They criticised the mandatory nature of visa cancellation powers, which decreased the capacity of the system to consider the individual circumstances of a case. They said the lower thresholds for cancellation would trigger visa cancellations, even in the absence of a real risk to the community. In effect, they said the character act would unfairly expel vulnerable people from Australia without procedural fairness. They said we would see an increase in the number of people being deported.
Well, who would have thunk it—they were absolutely right! There has been a dramatic rise in the number of visa cancellations and consequent detentions. This includes, of course, refugees and asylum seekers who are now facing the prospect of indefinite detention, as they cannot be removed.
It is worth putting the figures on the record here. In 2010-11, there were 132 visa cancellations on character grounds. In 2013-14, there were 76 cancellations. In 2014-15, the year in which the character act was introduced, there were 580 visa cancellations on character grounds. In 2015-16, there were 983 visa cancellations on character grounds. That is an absolutely staggering 644 per cent increase in cancellations from 2010-11—a 644 per cent increase in five years! It is worth pointing out that the figures were trending down until 2014-15, when the character act was introduced, when they absolutely ballooned, going in one year from 76 to 580, and then in the subsequent year, the last year for which we have figures, 983—a staggering increase. Yet, before the commencement of the character act, the Department of Immigration and Border Protection stated in an answer to a question at Senate estimates:
The proposed amendments are not designed to necessarily result in large increases in the number of people whose visa applications … are cancelled.
The department was wrong. What is happening is that, because this is being administered by the incompetent, bumbling, shambolic minister for immigration, Minister Dutton, who is making these determinations inside his own head—and what a messy, dark place that must be—we have seen this explosion in the number of visas which have been cancelled on character grounds.
Just who are the people—our fellow human beings—who are being subjected to these visa cancellations? According to the Refugee Council of Australia, some of these visa cancellations have occurred despite significant histories of psychiatric illness, disabilities or statelessness. People have had their visas cancelled on character grounds for offences like drink-driving—a completely disproportionate punishment. They lack free legal advice or representation when faced with the cancellation of their visa. I just want senators to think about this for a minute. People have had their visas cancelled on character grounds because they have been convicted of drink-driving. Yet, as we heard yesterday from the government, including government ministers when they were asked about the Greens proposal—and in my speech on the second reading, I will move, 'that the Senate agree that the parliament should have the power to refuse visas to foreign heads of state on character grounds'—they think US President Donald Trump is of an acceptable character to visit Australia. So I pose the question: if the minister for immigration, Minister Dutton, is cancelling visas of people who have been convicted of drink-driving on character grounds for that reason, as he has, how on earth can the government assert that Mr Trump—who is on record as green-lighting sexual assault of women and grabbing women by the genitals without consent—can be of acceptable character to come into our country? Talk about double standards here.
Often in the past visa cancellations on character grounds have related to criminal charges prior to any determination of a court conviction. So it is about charges, not convictions. It has also affected people that have not even been charged with an offence. According to the Asylum Seeker Resource Centre, there are even a number of people who have had criminal charges against them dropped but who remain in immigration detention. Devastatingly, we have already seen these visa cancellation provisions result in a death in Yongah Hill, with a refugee whose visa had been cancelled subsequently burning himself to death.
I want to go to the Ombudsman's report into the character act. In December last year, the Commonwealth Ombudsman released a report on the administration of section 501 of the Migration Act or, if you like, the character provisions. This report was the result of an own-motion investigation by the Ombudsman. The concerns that led the Ombudsman to undertake the investigation included the length of time a person spends in immigration detention while awaiting a revocation request outcome; notification of visa cancellation shortly before release from prison; the impact of prolonged and interstate detention on detainees and their families; and the impact on immigration compliance operations and the detention network. The Ombudsman's report found that the immigration department has consistently failed to achieve its own aim of cancelling prisoners' visas well before they are released so that any revocation process can be finalised while the relevant person is in prison. The Ombudsman's report says:
Through prolonging family separation this failure has also undermined the other aim of the department to give primary consideration to the best interests of the minor children of persons subject to visa cancellation.
I could go on and on about the character act.
I am tempted to now, given Senator O'Sullivan's comment. But I want to move to the bill before us today. This bill makes amendments to the substantive amendments made to the character act, which I have been speaking about. It further embeds the lack of fairness and increases the broad discretionary ministerial powers to refuse a person's visa. It extends the minister's power to cancel visas on character grounds, allowing him even to overrule decisions made by officials in his department. He can even overturn a decision of a review tribunal, which basically completely exempts the minister from the rules of natural justice—not that I think Minister Dutton has any concept of natural justice. Clearly he does not.
These amendments are unnecessary given the broad powers which already exist in the Migration Act, which allow for the minister to cancel a person's visa if he forms a reasonable view that it is in the national interest. These amendments also mean that those subject to the minister's cancellation power could be detained if there is a mere reasonable suspicion—