Deborah O'Neill (NSW, Australian Labor Party) Share this | Link to this | Hansard source

I wish to place on the record Labor's remarks regarding the Migration Amendment (Validation of Decisions) Bill 2017. Labor support the principle of cancelling the visas of noncitizens on character grounds or because of criminal offences, and we support the removal of criminals from Australia under section 501 of the Migration Act. Therefore we support this bill, which has arisen because of cases before the High Court that challenge the validity of section 501. It is not appropriate to comment on those cases, Graham and Te Puia, but it is clearly in Australia's best interests to preserve the validity of effective past decisions to remove people under section 501 of the act. That will be the effect of this bill. Section 501 sets out the grounds on which people can be excluded on character grounds or when the minister reasonably suspects that a noncitizen presents a risk to the Australian community. A person can fail the character test in several ways—for example, by having an extensive criminal record; through membership of a group or organisation involved in criminal conduct, such as a motorcycle gang; if there is a risk that the person will commit a criminal offence; if there is an Interpol notice that the person might present a risk to the community.

Immigration ministers decide to cancel visas on the best information available, including advice from the intelligence and security services. It is reasonable for these agencies to expect that, in some circumstances, the Department of Immigration and Border Protection will not disclose the advice. Section 503A of the act protects information the agencies supply to the department's officers on condition that it remains confidential. Ultimately, the minister's decision will be made according to the Commonwealth's interpretation of section 501. Visa applicants who are not satisfied with the decision can ask the Administrative Appeals Tribunal to review it. That is a fair system, which the bill is intended to uphold.

The bill has been brought on for debate on the same day that the report of the Senate inquiry into the bill has been tabled. That degree of haste may not be without precedent but it is certainly not usual practice. The Migration Act is a complex piece of legislation, and this government has a poor track record of consulting stakeholders and the Australian people about amendments to this very important act. That's why it's Labor's practice to refer all legislation amending the act to a Senate inquiry so that stakeholders have an opportunity to comment on unintended consequences. Labor notes the submissions made by the Department of Immigration and Border Protection, Dr Martin Bibby, Refugee Legal and the Law Council of Australia. In particular, I note the concern expressed by the Law Council that this bill should be held over until the High Court makes a decision on Graham and Te Puia. However, Labor believes that it is in our national interest to protect Australians from those noncitizens who do not meet character grounds, by upholding previous decisions to cancel visas.

I remind the Senate that in January the Commonwealth Ombudsman released two reports on Australia's immigration system. The reports highlighted failures by the minister and the department to manage the number of people in detention, leading to mismanagement of cases. One of the Ombudsman's reports concerned the administration of section 501 of the act and is therefore relevant to this bill. That report pointed to people being held for unnecessarily long and potentially indefinite periods of immigration detention. It's beyond question that noncitizens who commit serious offences should expect to be deported, but that does not mean that the minister should act in ways that leave families and children in limbo and increase their distress. Labor will continue to uphold the bipartisan commitments to keeping Australia and Australians safe. We are committed to upholding the integrity of the Migration Act. That includes the ability of law enforcement and intelligence agencies to freely provide the minister with advice. But we will also continue to hold the minister to account for failures of the kinds set out in the Ombudsman's report. With that warning, we support the bill.

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

It's no surprise that Labor's going to support this legislation—no surprise at all. Once again, they are in lock step with this government in eroding some of the most crucial and critical rights that we are lucky enough to enjoy in this country. Make no mistake: this bill is a direct response to a case that is currently before the High Court of Australia. It's not a case that has just finished being heard in the High Court; this bill is in response to a case currently in the High Court. That's not me saying this; this is me interpreting the explanatory memorandum, from which I will now quote:

This amendment is in response to current proceedings in the High Court of Australia, Graham and Te Puia, in which the validity of section 503A of the Act is being challenged.

Here we are, in the Commonwealth Parliament of Australia, bringing in legislation that is in direct response to a case that's currently being heard by the High Court. Separation of powers, anyone? Anyone? Separation of powers? Crickets, absolute crickets!

Make no mistake, this bill seeks to pre-empt and negate a High Court decision in the event that that decision is in favour of the plaintiffs. That's what this is about. The reason we have this bill, and the reason it's so disappointing that Labor is in zombie lock step with the government on this legislation, is that the government doesn't like it when the courts get to actually apply justice in this country and when the courts get to exercise control over migration matters in this country. It is a disgrace that we are even debating this bill, and it's a disgrace that the Labor Party has indicated support with a bunch of weasel words which, with the greatest of respect, mean absolutely nothing whatsoever.

Clearly, the Liberal and Labor parties in this place would prefer it if the courts stayed out of the government's business as it relates to migration and visas, and just let the minister exercise his discretion and his will. When you look at the figures of the number of decisions this minister has made that have been overturned by the AAT, you can get some idea as to why the Liberal Party is so keen to keep the courts away. It doesn't explain, unfortunately, why it is that the Labor Party is backing this legislation.

Let's not forget the infamous statement of former immigration minister Philip Ruddock, who said that the courts ought not be involved in review of migration matters because the judiciary is, and I quote, 'ill-suited' to deal with these matters. Well, no, the judiciary is not ill-suited to deal with these matters. This is about the rule of law—one of the absolute foundations of any liberal democracy in the world. This is about a separation of powers, which is absolutely critical to allowing the courts to do their job. Section 503A was introduced by way of the Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998. What it does is provide for the protection and non-disclosure of certain information provided to a migration officer by a law enforcement or intelligence agency on the condition that it be treated as confidential information. The minister, after consulting the relevant agency, may authorise disclosure of the information to a relevant court or tribunal.

Section 503A(5), however, provides that if the information is disclosed to a tribunal, the tribunal cannot divulge that information. In other words, the tribunal cannot divulge that information to the person who is applying for the visa. Of course, the inability of the person who is applying for the visa to question this information means that that person whose character is being impugned will probably never even know why their character is being impugned. That runs counter to the rule of natural justice if you ask the Australian Greens. The Law Council of Australia submitted:

The proposed new section 503E would remove the right of an individual to have their cancellations or refusals reconsidered validly allowing them to access and comment on material held by the minister or delegate prior to their visa being cancelled or refused on the basis of that material.

We are not here today to argue that there are not good policy reasons why people who have engaged in unacceptable conduct should not be able to remain in or enter Australia, but people have a right to respond to accusations against them, and in doing so they have a right to be in possession of all the information that was in the possession of the person making those accusations or decisions. So this bill also has a retrospective application in that the provisions of the bill will apply to all decisions made prior to the day after royal assent—that is, they will apply to all cancellation and refusal decisions which relied on section 503A information. Retrospectivity, as a general comment, makes the law less certain and less reliable.

Some years back Canada dealt with a similar problem, with the Supreme Court over there striking down a provision preventing visa holders from seeing and responding to protected information. In that decision, Chief Justice McLachlin—with whom the entire court agreed—accepted, as one of the most fundamental responsibilities of a government, ensuring the security of its citizens. This means sometimes the government must—I quote from Chief Justice McLachlin—'act on information it cannot disclose and detain people who threaten national security'. However, in a constitutional democracy, Chief Justice McLachlin continued, 'governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees.' The tension that the Chief Justice described as lying at the heart of modern democratic governance must be resolved to respect 'the imperatives both of security and of accountable constitutional governance'.

In Australia, in 2007, the visa of Dr Mohamed Haneef was cancelled on character grounds, with some of the material provided to the then minister protected under 503A. Refugee Legal, in their submission to the Legal and Constitutional Affairs Committee inquiry into this bill, suggested that this amendment is 'an encroachment on the jurisdiction of the judiciary by the executive and legislature, and is inconsistent with the doctrine of the separation of powers'. The Australian Greens couldn't agree more with Refugee Legal.

I want to now draw the attention of the Senate to a quote from Chief Justice Gleeson:

It is self-evident that the exercise of jurisdiction such as this—

judicial review—

will, from time to time, frustrate ambition, curtail power, invalidate legislation, and fetter administrative action. As the guardian of the Constitution, the High Court from time to time disappoints the ambitions of legislators and governments. This is part of our system of checks and balances. People who exercise political power, and claim to represent the will of the people, do not like being checked or balanced.

Of course, that's the nub of it right there. The Liberal Party and the National Party—the coalition parties in government—do not like being checked or balanced by our courts. The Labor Party—knowing that it's highly likely that after the next election they will form a government—are preparing themselves to adopt the same position. And why are they doing that? Because the Labor Party, when in government, doesn't like being checked or balanced either. There's no other explanation for Labor's craven capitulation on this piece of legislation. I'll tell you what—if the light on the hill hasn't gone out, it's flickering ever so faintly as we stand here today. This legislation is an attack on the separation of powers and it's an attack on the rule of law in this country. It continues the ongoing erosion of our rights, our freedoms and our liberties that goes on week after week, month after month, year after year in this place, with the Liberals, the Nationals and Labor in zombie lock step as they continue to erode some of the rights and freedoms that many Australians have fought and, tragically, died for throughout our country's history.

This is why we need a charter of rights in this country—to codify our rights, to enshrine our rights and to make it more difficult for governments and parliaments to take those rights away from the Australian people. If it's good enough to go to war to fight for these rights, it's good enough to stand up in this place and defend them. And the Australian Greens will defend them. We'll campaign strongly for a charter of rights in this country, because they are our rights. They're the rights of the Australian people, and they shouldn't be taken away lightly. Yet, day after day, week after week, month after month, the establishment parties in this place collude to trample on the rights of the Australian people. We're going to call it out every time we see it. We're going to campaign for a charter of rights, and we won't rest until we have codified and enshrined the rights that so many Australians take for granted but that so many Australians are prepared to take action to fight to defend. We've seen it throughout our country's history, and we will see it again while ever the establishment political parties in this place work together, as they are today, to trample roughshod over those rights.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

I rise to speak on the Migration Amendment (Validation of Decisions) Bill 2017. This bill amends the Migration Act 1958 to shelter visa cancellations and refusals by the minister on grounds of character that were based upon information protected from disclosure under section 503A in the event that this section is successfully challenged. This is an extraordinary bill. What it means, in effect, is that the government is seeking to grant retrospective absolution for ministerial decisions on visas from adverse decisions by the courts. It seems completely at odds with the principles upon which a liberal democracy and just legal system should operate. The measures in this bill are in response to current proceedings in the High Court of Australia in which the validity of section 503A is being challenged in response to the ministerial cancellation of the visas of two New Zealand citizens who are apparently motorcycle gang members.

Sadly, the idea of exempting visa decisions from legal due process has a history. In 1998, the Migration Act was changed by the insertion of section 503 to protect intelligence which informed visa cancellation decisions. The current amendment inserts a new subsection in the act which will shelter past cancellations made by the minister on grounds of character which relied on section 503A protections from being ruled invalid by the courts except for cases where judgements have been made or are reserved. In his second reading speech to justify the further strengthening of section 503, the minister stated that:

… law enforcement and intelligence agencies will only provide information to the Department because it can be protected from disclosure.

However, it is precisely this issue to which the Liberal Democrats take exception. The suggestion that agencies won't disclose information to a department unless cloaked in secrecy is nonsense. In a democracy, government agencies should do as the law requires. The great legacy of the adversarial legal system which Britain bequeathed us is that all defendants have a right to know the specific basis of allegations so that they can challenge them. The whole concept of section 503A protections goes contrary to that principle, and the provisions of this bill—which would effectively sprinkle legal holy water on past dubious decisions—only compound this.

Let us not forget the legal and administrative fiasco of Dr Mohamed Haneef, who was damned by remote association with one of the Glasgow bombers and found himself arrested in 2007 at Brisbane Airport, charged with terrorist offences and stripped of his visa. When the farrago of allegations against him was subjected to the light of day, the case against him collapsed and his visa had to be returned. If secrecy had prevailed and the flimsy adverse determination of his character had not been scrutinised, a serious miscarriage of justice would have occurred.

Procedural fairness dictates that those who are accused of bad character have the right to know the basis of that charge. In its current form, the Migration Act denies this under section 501(3). The minister's discretion to cancel a visa merely needs to be in the national interest, and the act specifically states that natural justice does not apply. Under section 503A, intelligence that may form the basis of an adverse ministerial decision is concealed. If passed, this bill would simply sanctify that denial of natural justice in ministerial decision making, indemnifying past ministerial decisions against adverse findings by the High Court regarding section 503A. This is disturbing. Allowing legal or administrative decisions that affect the fate of individuals to be made based on secret information that is withheld from the individual is exactly the sort of tactic used by every police state in history. Secret courts, allegations for which evidence is never given and retrospective validation of unlawful decisions by members of the political executive are all hallmarks of the most oppressive governments. Stalin did it. Hitler did it. I'm sure Kim Jong-un does it all the time. Is this really the company that the Turnbull government wishes to keep?

The Liberal Democrats have absolutely no objection to ministerial cancellation of visas of noncitizen criminals and those of genuine bad character, but let this occur in the light of day in which those wrongly accused can defend themselves as our adversarial legal system intended. Maintaining a veil of secrecy over the basis for visa cancellations and indemnifying past ministerial decisions against future adverse court rulings is wrong and contrary to what we should stand for. Accordingly, I oppose this bill.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

The greatest challenge for any government in these difficult times is to ensure the safety of all Australians and people who come to Australia. For that reason, many decisions which in the past we as parliamentarians perhaps wouldn't have been enamoured with have to be looked at more closely. This is a case in point, because it is important that we know who is in Australia. For people who are not Australian, if they are criminals or involved in terrorist activities or activities that would harm Australians, the government must have the right to cancel visas and deport those non-Australians who are of this character.

I often wonder who the Greens political party represent in these issues of migration and citizenship. It seems that very often their support is for those elements of Australian society who most Australians would prefer not to be within Australia.

The Migration Amendment (Validation of Decisions) Bill 2017 was investigated by the Senate Legal and Constitutional Affairs Legislation Committee, and the committee tabled its report earlier today. The report is there for anyone to read should they wish to look further into this. The bill is a response to the High Court cases of Graham v Minister for Immigration and Border Protection and Te Puia v Minister for Immigration and Border Protection, which challenged the constitutional validity of section 503A of the Migration Act, which has been referred to by other senators.

The minister cancelled the plaintiffs' visas, referring to 'protected information' provided to him under section 503A of the act. These visas were then cancelled on the grounds that the plaintiffs failed a character test and that it was in the national interest to cancel the visas. The minister provided a statement of reasons which referred to certain information which is protected from disclosure under section 503. This bill is about reinforcing the validity of 503. As has been mentioned, both of the men in these court cases are members of motorcycle gangs, and they are currently in immigration detention.

Section 503A protects information from disclosure when it is provided to the Department of Immigration and Border Protection by gazetted law enforcement or intelligent agencies to support a section 501 character visa application or refusal, or a cancellation decision. Where protected information is provided to the minister to make decisions, section 503A(2)(c) of the act currently provides:

… the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person …

Clearly, this is about information upon which the minister makes his decision that comes to him from intelligence agencies and from specialised agencies who can give the minister information about the challenge to the safety of other Australians that these particular visa holders exhibit.

There were four submissions to the committee. The Law Council, for example, notes what the department highlighted in its submission to the committee—that this in no way impacts upon the merits review of the minister's cancellation. As the committee report says:

… the department submitted that the bill would preserve existing rights for relevant individuals to seek appropriate and fair judicial reviews of decisions to cancel their visas …

As the department said in its submission:

Persons who have had their visa cancelled, or visa application refused, on the basis of section 503A protected information will remain able to seek judicial review of their visa decision following the commencement of these amendments. The amendments will not affect any review rights afforded to noncitizens under law.

The amendments will maintain the status quo for individuals who have already had their case thoroughly assessed and considered under migration legislation. At the time of this consideration, these persons failed the character test and had no lawful right to hold a visa allowing them to enter or remain in Australia. They have had, and continue to have, access to judicial review of this decision and some of these individuals have challenged their cancellation/refusal decisions already.

I repeat: it is the principal job of governments of Australia, in this day and age, to protect the safety of Australian citizens and people lawfully here. It's a difficult job. It's never easy. But, if you're going to err, I think the Australian people would demand the government to err on the side of their protection and their safety, and the safety of their families and loved ones. As a result, the committee was satisfied that the bill is an appropriate, proportionate and timely strengthening of the Migration Act. Its provisions would maintain the integrity of Australia's visa framework by upholding decisions that have already been made to cancel or refuse visas for non-Australian individuals who have committed crimes in Australia and who may pose a significant risk to the Australian community in the future. The committee supported the explanatory memorandum's explicit acknowledgement that the bill is a proactive step to uphold existing decisions:

Through these amendments the Australian Government wishes to put beyond doubt that existing decisions to refuse or cancel visas under section 501 of the Act remain valid at law, notwithstanding their reliance on confidential information protected by section 503A.

The committee understood, in considering other concerns raised by the four submitters, that the bill would not affect the right of judicial review for any person negatively affected by a decision that was made referring to information provided under section 503A of the act. Furthermore, the committee noted that the department had clearly stated in its submission that the bill would not prevent a person's right to seek a merits review of a relevant decision to the extent that such review is provided for under the existing law. As a result of that, in its deliberations the committee has recommended the bill be passed. The Greens have, as they've mentioned, issued a dissenting report and a recommendation that the bill not be passed, but I think most Australians would want the parliament to endorse the government's action in protecting their future and the future of their families by cancelling the visas of people who are not Australians and who, really, should not be in Australia. They are not the sort of people that we want in our country.

Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Link to this | Hansard source

As we've heard from a number of speakers, this particular bill was considered by the Senate committee, and whilst it was done reasonably quickly, a range of submissions from people interested in this process were taken into account. It is difficult to talk about any of these particular processes. In this case, we can put on record that Labor supports the refusal or cancellation of visas of noncitizens on character or criminal grounds and the removal of criminals from Australia under section 501 of the Migration Act. Section 501, which we've heard about from a number of the senators who are part of the process, sets out when a visa can be refused or cancelled on character grounds: when a person fails, or the minister reasonably suspects that the person does not pass the character test. The legislation sets out the ways that a person can fail the character test. The whole issue of the character test is on record and has been widely discussed both within the area of migration law and throughout the media in recent months.

The core areas which people can fail include: having a substantial criminal record, which people are aware of; having substantial brushes with the law which lead to concerns about their nature and their ability to be an effective citizen of a country; if they were a member of a group or organisation that was involved in criminal conduct—in this case, there has been significant commentary, certainly in my own state, as the result of a number of inquiries and also through the Law Reform Commission, about the particular criminal activities of motorcycle gangs across the whole of this country and now in international affairs, where there are clear links with motorcycle gangs here, particularly in the Asian region—if there is a risk that, while in Australia, the person would engage in criminal conduct, taking into account information about the person and the people with whom they mix; previous conduct that could lead to a genuine suspicion that there would be a possibility that, while in Australia, the person could engage in criminal conduct; and if there was an Interpol notice that the person presents a risk to the Australian community. We've just heard from Senator Macdonald talking about the particular responsibilities of government when there is an issue around genuine risk to Australia, to the safety of Australians, and also of any activities which could be of a criminal nature in our country.

The Migration Amendment (Validation of Decisions) Bill 2017 amends the Migration Act to preserve existing section 501 decisions. Of the submissions that were received by the inquiry, certainly the submission from the department was quite clear about the background to the need for this change and also about the people who would be affected by the change. The department sets out that section 503A of the Migration Act—and a number of senators have particularly drawn attention to section 503A—requires a departmental officer and the Minister for Immigration and Border Protection to protect information from disclosure, including to a court, when it is provided by a gazetted law enforcement or intelligence agency to support a visa application refusal or visa cancellation decision made on character grounds.

Section 503A was introduced by the Migration Legislation Amendment (Strengthening of Provisions related to Character and Conduct) Act 1988, which is when this particular amendment was brought in. It was brought in to facilitate law enforcement and intelligence agencies providing relevant information to the department, while ensuring that the content and sources are protected. This is not used regularly. We're talking about very specialised, quite specific cases where there is a need for real protection. This particular process includes protecting the information from disclosure to a court, a tribunal, a parliament or parliamentary committee, or any other body or person. This process is determined by the intelligence agencies, who have weighed up the value of the information, weighed up the evidence and determined that, for particular reasons of safety and security, this information should not be shared.

We know that the legislation before us has been stimulated by the High Court consideration, and clearly the measures in this bill will amend the legal framework in the act to put beyond doubt that decisions to cancel a visa or refuse a visa application on character grounds will remain effective in the event of the High Court deeming section 503A of the Migration Act invalid. It is not unusual for legislation to come to this place in response to High Court challenges. It's something that the parliament weighs up in terms of the situation, and in this case there has been the movement around the challenge that's in front of the High Court at the moment, the decision on which is due to be brought down. It's very difficult to ever talk about when you will expect a High Court decision, but there is an expectation that that will be soon.

Senator Macdonald actually went into a degree of detail around the types of persons who will be affected by this legislative change. It's important, I think, to reinforce what he said in his contribution about what will actually be impacted and what will not. The department's submission to the Senate Legal and Constitutional Affairs Legislation Committee clearly states that this bill imposes no extra requirements or burden on people seeking a visa, industry bodies, Australian business or residents, as it seeks only to uphold decisions already made. It does not impact future visa cancellations or visa application refusal decisions, nor does it prevent affected individuals from seeking judicial review of their individual decision. I think that is a really important element in terms of consideration of this legislation. It does not preclude judicial appeal, and I think that that is an important process in terms of talking about individual rights. We have spoken before in this place about some changes that have come into migration legislation and about the importance of ensuring that people do have a judicial process that they can follow in terms of their own rights and their cases. It was stated clearly by the department and by other submitters to the legislation committee that this does not prevent affected individuals from seeking judicial review of their individual decisions.

The process that we have is very much based on a balance of responsibilities and on the particular nature of the individuals whose cases are being considered. We look at information around their particular background. We talked about the kinds of things that are taken into account, such as criminal records, whether they are members of groups or organisations that are involved in criminal conduct, the risk that someone would actually be able to have that form of conduct in Australia and whether there's an outstanding Interpol notice. These are areas that are very clearly identified, and the security risks of these areas are exactly—

Sitting suspended from 18:30 to 19:30

Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Link to this | Hansard source

This evening we're discussing the Migration Amendment (Validation of Decisions) Bill 2017. Labor supports the refusal or cancellation of visas of noncitizens on character or criminal grounds, and the removal of criminals from Australia, under section 501 of the Migration Act. We note that section 501 of the Migration Act sets out when a visa can be refused or cancelled on character grounds: when a person fails, or the minister reasonably suspects that the person does not pass, the character test. We know that this legislation is a response to the Graham and Te Puia cases, currently before the High Court of Australia, which are challenging the constitutional validity of section 503A of the Migration Act. When this legislation was brought before this place, the Labor opposition responded by asking for the legislation to be referred to a Senate committee so that we could consider the issues in it, noting that some stakeholders had raised some concerns about the bill. I will note some of those concerns now. It's important to examine the manner in which those concerns will be addressed, as expressed by the government.

Submitters raised a number of matters, including concerns over the retrospective operation of the bill's provisions, the potential denial of natural justice and the right to a fair hearing to some individuals adversely affected by visa decisions, the need to preserve and uphold the constitutional principle of separation of powers, and other matters, including the potential burden on the judiciary from appeals following the High Court's decision. We also note that concerns were raised about the retrospective nature of the bill. The Law Council put in a submission raising concern about the proposed retrospective application of the amendments to holders of cancelled visas or refused visa applicants, noting that they may be denied the opportunity to properly present their case. Submissions also went to issues of natural justice and the right to a fair hearing, with some submitters arguing that the provisions of the bill would result in a number of people being denied a fair hearing of their cases. I note the Law Council suggested that and that Refugee Legal noted that denying individuals a fair hearing of their claims would contravene fundamental principles within Australian law.

The committee, in looking at these issues and reporting, put weight on what the department submitted, which was that the bill does not cancel out natural justice and, indeed, preserves existing rights for relevant individuals to seek appropriate and fair judicial review of decisions to cancel their visas. The department told us that persons who've had their visas cancelled or a visa application refused on the basis of section 503A, protection of information, will remain able to seek judicial review of their visa decision following the commencement of these amendments. The amendments will not affect any review rights afforded to noncitizens under the law. They went on to say:

The amendments will maintain the status quo for individuals who have already had their case thoroughly assessed and considered under migration legislation. At the time of this consideration, these persons failed the character test and had no lawful right to hold a visa allowing them to enter or remain in Australia. They have had, and continue to have, access to judicial review of this decision and some of these individuals have challenged their cancellation/refusal decisions already.

A number of people raised the separation of powers issue. However, the committee found on balance that those issues had been addressed by virtue of the fact that the bill is an appropriate, proportionate and timely strengthening of the Migration Act, noting that its provisions maintain the integrity of Australia's visa framework by upholding decisions that have already been made to cancel or refuse visas for non-Australian individuals who have committed crimes in Australia or who may pose a significant risk to the Australian community in the future.

We on this side of the chamber note that the High Court is yet to hand down its decision in relation to the particular case I mentioned earlier and that some submitters advocated for this case to be concluded before the bill is further considered in this place. However, we are certainly of the view that the explanatory memorandum's acknowledgement that the bill is a proactive step to uphold existing decisions, pending the High Court's decision, is important. I note the explanatory memorandum says:

Through these amendments the Australian Government wishes to put beyond doubt that existing decisions to refuse or cancel visas under section 501 of the Act remain valid at law, notwithstanding their reliance on confidential information protected by section 503A.

We have noted, importantly, that the department has very strongly said that it does not affect judicial review for any person negatively affected by a decision. That was made in reference to information provided under section 503A of the act. We note that the department has clearly stated in its submission that the bill would not prevent a person's right to seek merits review of a relevant decision, to the extent that such a review is provided for under existing law.

That brings us to a place where the Labor Party believes that those issues, with the government's assurance, have been addressed. We note that it's important that we retain the capacity to refuse or cancel visas of noncitizens on character or criminal grounds and that it's important that we are able to remove criminals from Australia under section 501 of the Migration Act. Section 501 of the Migration Act sets out when a visa can be refused or cancelled on character grounds when a person fails to pass a character test or the minister reasonably suspects that the person does not pass a character test. I know from my own experience as a senator that these situations do not infrequently crop up and that ministerial review is often used with a good level of discretion to enable people to stay in Australia if exceptional circumstances apply.

I know many of us in this place will have had the situation where someone has committed, admittedly, a very serious offence but pleas on a range of compassionate grounds have been made to the minister to reconsider the cancellation of the visa, provided that that person is not deemed to be a significant security risk to Australia. I certainly know of cases, such as young people who have committed serious offences and have served their jail time and faced being deported to countries where they had very little of the language and very little in the way of family networks. It's important that that kind of discretion exists within the act, but it's also important that such provisions not be abused in ways that mean that when someone should reasonably have their visa cancelled, we are not able as a nation to do so.

I note that failing a character test is a significant thing. It means someone has a substantial criminal record. It means they may have been a member of a group or organisation that's involved in criminal conduct and there's a risk that while in Australia the person would engage in criminal conduct, or, if there's an Interpol notice on that person, they present a risk to the Australian community. These are not insignificant matters as far as being able to remove persons who have failed such a character test.

We note the effect of the bill does indeed preserve the validity of past decisions in the event that section 503A itself is found not to be valid as a result of the case that's currently before the court. We on this side of the chamber don't believe it's appropriate to comment on this case while those matters are still before the court, so I won't offer any comment. However, we do recognise that immigration ministers make decisions to cancel visas based on the best information they have available to them. That includes protected information from our security and intelligence agencies, and according to the Commonwealth's interpretation of the Migration Act. Indeed, I note that some of that information comes from members of the community and, indeed, members of parliament where they believe there may be mitigating circumstances against that character assessment. We note that if visa applicants are not satisfied with a decision, they do have the opportunity to lodge an application for review. That capacity remains with the passing of this legislation.

We are pleased that we were able to refer this bill to the Senate legal and constitutional affairs committee to allow for the short inquiry that's taken place, and that committee, of which I have been part, has recommended that the bill indeed be passed. I want to note the submissions by the Department of Immigration and Border Protection, Dr Martin Bibby, Refugee Legal and the Law Council of Australia. I note that they did balance out some of the issues and that the department needed to respond to the issues that were raised by those submitters. The Law Council did indeed express a view that the bill should be held over until the High Court makes a decision. However, the Labor Party agrees with the government that it is in Australia's best interests to preserve the validity of affected past decisions to refuse a visa application on character grounds.

I remind the Senate that in January the Commonwealth Ombudsman released two reports on Australia's immigration system. The reports highlighted significant failures by the minister and the department to manage the number of people in detention, leading to significant mismanagement of cases. One of the ombudsman's reports concerned the administration of section 501 of the act, and is therefore, in our view, relevant to this bill. The report pointed to the fact that people being held unnecessarily for long periods of time—and potentially indefinite periods of time—in immigration detention was a significant concern. It's beyond question that noncitizens who commit serious offences in our nation should expect to be deported. But that does not mean the minister should act in ways that leave families and children in limbo and increase their distress. I have certainly seen, through my own experience as a senator, those kinds of cases come before me where that kind of distress is caused.

Labor wants to continue to uphold a bipartisan commitment to keeping Australia and Australians safe. We're committed to upholding the integrity of the Migration Act. This includes the ability of law enforcement and intelligence agencies to freely provide the minister with advice. But we on this side of the chamber express our commitment to continuing to hold the minister to account for failures of the kind set out in the ombudsman's report, which are significant and concerning. With that warning, I express Labor's support for this bill.

Michaelia Cash (WA, Liberal Party, Minister for Women) Share this | Link to this | Hansard source

I thank all senators for their contributions to the second reading debate on the Migration Amendment (Validation of Decisions) Bill 2017. I note that the bill was referred to the following Senate committees: the Legal and Constitutional Affairs Legislation Committee, the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights. I thank the Legal and Constitutional Affairs Legislation Committee for its consideration of the bill and note its recommendation to pass the bill unamended.

As you know, this bill addresses the potential risk to the community arising from current proceedings in the High Court of Australia. The purpose of the bill is to uphold the visa cancellations and applications refusals on character grounds of certain noncitizens who have committed serious crimes in Australia or pose an unacceptable risk to the safety of the Australian community. In terms of the types of criminal activity that would lead to a visa refusal or cancellation based on character grounds, a noncitizen who holds or applies for a visa may have their visa cancelled or application refused if they don't meet the character test. This includes if they have a substantial criminal record, are a member of or have an association with on outlaw motorcycle gang, have been convicted of a sexually based offence involving a child, or pose a threat to Australia's national interest. Again, I believe the Australian community would well and truly be backing the government in this regard.

Specifically, the bill amends the Migration Act 1958 to preserve existing section 501—character decisions which have relied on information which is protected from disclosure under section 503A of the act. The amendments in this bill will not impose extra requirements or burden on affected noncitizens or prevent affected noncitizens from seeking judicial review of their individual visa cancellation or visa refusal decision. Additionally, it will not impact future visa cancellation or visa application refusal decisions. Rather, the amendments will maintain the status quo for individuals who have already had their case thoroughly assessed and considered under migration legislation. At the time of this consideration, these persons failed the character test and had no lawful right to hold a visa allowing them to enter or remain in Australia.

Section 503A of the act protects information from disclosure when it is provided to the Department of Immigration and Border Protection by gazetted law enforcement or intelligence agencies to support a section 501 character visa application refusal or cancellation decision. This protects the information from disclosure to a court, a tribunal, a parliament, a parliamentary committee or any other body or person. The ability to protect information from disclosure is critical to the continuation of the critical relationship between the Department of Immigration and Border Protection and law enforcement and intelligence agencies. Continuing to successfully counter crime is dependent on agencies like the Australian Federal Police and the Australian Criminal Intelligence Commission being able to share information on the activities of non-citizen criminals with the Department of Immigration and Border Protection while their intelligence and sources remain protected.

The strengthening of the character test in late 2014 has led to the cancellation of over 2½ thousand visas, including more than 140 visas held by organised crime figures. Without the information supplied by intelligence agencies, these criminals may have kept their visas and been free to continue their illicit activities. The amendments in this bill proactively address the risk to the safety of Australians and reflect the government's and the Australian community's low tolerance for criminal behaviour by those who are given the privilege of holding a visa to enter into and stay in Australia. With that contribution, I commend the bill to the Senate.

David Leyonhjelm (NSW, Liberal Democratic Party) Share this | Link to this | Hansard source

The question is that this bill now be read a second time.