Monday, 13 February 2017
Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016; In Committee
I wanted to firstly ask the minister how, or in fact whether, the provisions contained in the Migration Amendment (Character Cancellation Consequential Provisions) Bill around expanding the minister's capacity to consider character would apply to the granting of a special purpose visa for a foreign head of state or head of government?
I am advised that the minister may make a written declaration under section 33(9) of the relevant act to cease a special purpose visa if it is undesirable that a person travels to, enters or remains in Australia. If such a declaration is in force section 33(3) of the relevant act provides that the person is taken not to have been granted a special purpose visa.
Minister, obviously what you have just been through there relates to the cessation of a special purpose visa, so I take it it would be accurate to suggest that during the process of granting a special purpose visa there is no capacity for the minister to intervene and ensure that that visa is not granted to a foreign head of state or head of government on character grounds?
The Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016 is important legislation which I do support because it will strengthen our national security and it will be safer for Tasmanian families if this legislation passes the Senate. Therefore, I am happy to vote for it. That is not to say that it could not be improved. One of the main purposes of the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016 is to amend the Migration Act 1958 to, principally, amend the definition of a 'character concern' to be consistent with character tests in subsection 501(6) of the act. I agree with the government's proposal to, firstly, provide for mandatory cancellation of the visa of a person who was serving a prison sentence where the minister is satisfied that the person fails the character test as they have a substantial criminal record or have been found guilty of a sexually based offence involving a child; and, secondly, provide that a person does not pass the character test if there is a 'risk' rather than the previous 'significant risk' that they will pose a danger to the Australian community.
I ask the minister: who will be given additional or broadened powers under this legislation to refuse or cancel visas of people wanting to live or visit Australia and to give some thought as to whether those prospective visitors share our democratic beliefs and respect the liberties and human rights which automatically come with our love for a democratic system of government? A prospective visitor or immigrant's attitude to our system of democratic life in Australia should always be taken into account when our immigration minister makes a decision whether to ban a visitor or stop an immigrant from becoming a permanent Australian citizen. After all, our oath of allegiance states that, as an Australian citizen, 'I pledge my loyalty to Australia and its people, whose democratic beliefs I share'. If immigrants and prospective citizens do not share our democratic beliefs then it should automatically disqualify them from becoming citizens. That should be no questions asked. If you want to visit Australia and you do not share our democratic beliefs, that should at least ensure our immigration minister has a second look at them and their visa application, asking who they are loyal to and why they do not like democracies. This is the vetting that should be done.
If the answer is that they are loyal to people and organisations that are at war with Australia, our allies, our soldiers, our seamen and our airmen then that person should not be allowed into our country. That is why I believe Donald Trump is on the right track following his temporary ban on people from countries where sharia law is part of that nation's culture. A country which allows sharia law to be practised and enforced obviously does not share our democratic values or respect basic human rights for women, gay people, teenagers, young girls and all Jewish people. Support for sharia law is a clear sign of Islamic radicalisation and support for Australia's enemies, so I ask that the immigration minister consider a better screening process for Australia with regard to those who support sharia law. Why is the question not even asked?
On the shores of Lake Burley Griffin, written into the cement are the words of the oath of allegiance to Australia. I have thought a lot about these words—since I have been in parliament, more so. As an Australian citizen, I affirm my loyalty to Australia and its people, whose democratic beliefs I share. The oath continues, but, for the moment, I would like to talk about this simple but very profound beginning, which I believe has great meaning with regard to this legislation.
It is a sad fact that many people living in Australia, enjoying the safety, benefits and lifestyle of living in a first-world country, are disloyal to Australia and its people. Many people have divided or split loyalties with other countries, as witnessed by dual citizenships or support for Australian enemies. Our Constitution recognises the inherent danger to Australia from people living here who have split or divided loyalties and officially discriminates against those people by stopping them from standing for elected positions in this parliament. The precedent has already been set. Many of those people do not share our democratic beliefs and do not appreciate the sacrifices that previous generations of Australians made to keep our nation free and democratic.
People who support the imposition of sharia law in Australia or any other country obviously do not share our beliefs in democracy or in our rights and liberties. How could someone who thinks it is okay to kill someone simply because they are gay or Jewish share our democratic beliefs?
How could someone who thinks it is okay for women to be treated like possessions of men and like second- or third-class citizens share Australian democratic beliefs? Sharia law is not Australian law. Terrorists want to force it on the rest of the world; that has been made quite clear. It is antidemocratic. Show me a successful democracy in the Middle East that imposes the death penalty on gay people for being gay, imposes the death penalty on women who are unfaithful to their husband and denies the right of the Jewish people to live in peace in Israel. Accepting the supposedly good bits of sharia law gives legitimacy to the bad bits of sharia law. That is rubbish. Sharia law is an antidemocratic cancer that does not belong in a free society and fails to respect the human rights of women, gays and Jews.
All I am asking is that we screen people for their support for sharia law. If they support sharia law and want it in Australia do not let them in—that would be your first mistake. Such people are obviously supporters of the terrorists, their law and their culture.
In closing, I take this opportunity to support Senator Bernardi's call to halve our overall immigration rate, and also to remind people that I want our foreign aid halved. I have one question for the minister, which I would liked answered: how many of the 190 people that ASIO is currently watching—I am going through older statistics here—have had their dual citizenship cancelled, or at least vetted?
Thank you, Senator Lambie, for your support in relation to this piece of legislation. On your question, I am advised that that is a matter for ASIO and that we do not have that information, but we can refer it on for you.
Minister, I want to ask about proposed section 5C(1)(bb), which encapsulates the minister coming to a reasonable suspicion that the relevant noncitizen has been or is a member of a group or organisation, or has had or has an association with a group, organisation or person which is involved in criminal conduct. For the purposes of this debate I might call them the association provisions. What is the burden of proof, if any, that the minister has to achieve. I understand that it has to be a reasonable suspicion, but what does 'reasonable suspicion' mean? Can the minister provide the Senate with any case law or jurisprudence on this that can, hopefully, confirm that the minister is cognisant of that case law, if any, when making decisions? Secondly, is the minister able to apply this particular provision to a foreign leader and deny any foreign leader on the basis of his or her associations?
My understanding is that in relation to 'reasonable suspicion' there is case law upon which guidance is sought. Obviously, any decisions made would also be based on all of the evidence available to the minister at that particular point in time. I am seeking guidance from the department in relation to your further questions.
In relation to whether or not they are undesirable, that would take into consideration whether or not they are associated with certain people.
Minister, I wonder if you could confirm, specifically in the context of a foreign leader of government, what matters the minister would or could consider when considering whether or not a foreign leader or head of government was not a desirable person to have in Australia. Specifically, would those criteria include the association provisions that we are currently discussing and (bc) in schedule 1, which goes to the crime of genocide, a war crime and other matters?
I have sought guidance from the departmental officials and I am advised that, in relation to reasons for a declaration, some examples of situations in which the entry of a special purpose visa holder might be declared undesirable are: a person who is listed on the Central Movement Alert List or other agency's alert list; a person who presents a national security risk to Australia, or whose entry would be contrary to Australia's national interests; a person who should not be permitted to enter Australia on health grounds; or a person whose other circumstances would make it undesirable for them to enter. Circumstances in which a declaration may be made that it is undesirable for a noncitizen who is a special purpose visa holder to travel to and enter Australia are also outlined in the policy procedure manual, I understand, in the compliance and case resolution character test—section 501—documents.
I have one last question. I think it is about time people were very honest in this place. I simply want a yes or no, because the Australian people want to know exactly where everybody stands on this. Would support for sharia law, for the coalition, be a reasonable excuse to stop someone from coming into the country? That is simply all the Australian people want to know. I am simply asking, through the chair, for a response from the minister—yes or no.
Thank you, Senator Lambie, for the question. In relation to the granting or not granting of a visa, there are a number of issues that are taken into account. This might be one of the issues taken into account by the minister, but certainly there are a number of issues that the minister makes the decision based on.
My advice is that support or not for sharia law is not a specific issue, but, again, I go to the fact that there are a number of issues that the minister at the time is able to take into consideration when determining whether or not a visa should or should not be issued.
Minister, I want to take you to the amendments which this bill proposes to subsection 5C(1) on page 4 of the amendment bill. They provide that the minister is able to deny a visa on the basis of a foreign court convicting a noncitizen of certain things. Did the government consider Australia's international human rights obligations, which require Australia not to be complicit in trials that do not comply with accepted fair trial principles? I do not see an exemption in here for a foreign court. You and I and all senators know that there are some so-called legal proceedings in some countries around the world which fail the basic tests of natural justice. If someone is convicted, in effect, by a kangaroo court in a foreign jurisdiction, is the minister able to exercise discretion and ensure that that conviction, if it has been arrived at outside the principles of natural justice, does not automatically mean that a visa is cancelled—so, in fact, the minister has the discretion to ignore such a conviction?
In the first instance, I would advise—and I am sure you are aware—that a statement of compatibility with human rights has been completed in relation to the amendments in this bill, and the assessment has been made that the amendments are compatible with Australia's human rights obligations. A copy of that is available, as you would be aware. In relation to your specific question, I am advised by department officials that the answer is yes, the minister can take this into account.
Thank you, Minister; I appreciate that clarification. The last matter I want to raise is a matter I raised last week. I am not sure if you were in the chamber or not, so I will go over it very quickly. We have seen an explosion in visas cancelled on character grounds over the last few years. I put the numbers on the record last week; rather than go through them again, I will just say that there has been a very significant increase since the previous round of amendments were made a few years ago. You may or may not have information here. If you do not, I am very happy for you take it on notice and come back to me. I am interested in the workload for the department and also for the minister's office here, given that explosion in the number of visas of various classes cancelled on character grounds. Could you also inform the Senate of the length of time that it has taken the department as well as the minister's office to process such matters. Perhaps you could come back with the average length of time, and what costs there are to the taxpayer, specifically in relation to the potential longer detention of larger numbers of people.
Thank you for the questions, Senator McKim, and also for enabling me take some of the statistical analysis on notice. I will take your questions on length of time and cost on notice and provide that information to you.
Regarding the issue that you raise generally, I believe you may have raised it in in relation to the findings of a recent Commonwealth Ombudsman's report. The response I have received from the minister, specifically in terms of the Commonwealth Ombudsman's report into the administration of section 501 of the Migration Act, is that the department has, over the past 12 months, significantly improved its management of the section 501 case load. However, given the time frame in which the report was actually prepared, some of these improvements are not reflected in the final document. The improvements that have been made include streamlining administrative processes to expedite cancellation and revocation decisions, and expanding the capacity to make decisions at an earlier stage in a noncitizen's custodial sentence. The advice I am given is that these initiatives have already seen a gradual decline in the overall number of section 501 cases in detention. The minister's department will provide you with the actual statistical information that you requested.
Bill agreed to.
Bill reported without amendments; report adopted.