Senate debates

Tuesday, 27 November 2018


Migration Amendment (Family Violence and Other Measures) Bill 2016; Second Reading

6:32 pm

Photo of Nick McKimNick McKim (Tasmania, Australian Greens) Share this | | Hansard source

This is a continuation of my speech in the second reading debate on the Migration Amendment (Family Violence and Other Measures) Bill 2016. When I was speaking previously on this legislation, I made it clear that we do not support this legislation because it would basically create a separate family violence framework for people seeking asylum in this country and for migrants to this country. I referenced the Australian Law Reform Commission's 2011 report, entitled Family violence and Commonwealth lawsImproving legal frameworks, and noted that that report considered issues around regulating sponsorship and that the department of immigration submitted to that inquiry that:

Such measures could lead to claims that the Australian Government is arbitrarily interfering with families, in breach of its international obligations. It could also lead to claims that the Australian government is interfering with relationships between Australian and their overseas partners in a way it would not interfere in a relationship between two Australians.

The Australian Law Reform Commission concluded that, rather than instituting a separate criterion for sponsorship, the safety of victims of family violence can be promoted through targeted education and information dissemination. The Australian Law Reform Commission also concluded that:

… because of concerns about Australia's international obligations, as well as procedural fairness and privacy, sponsorship requirements should not be altered.

It's important to point out that partner visas form part of Australia's family migration stream, which allows noncitizens to enter and remain in Australia on the basis of their spouse or de facto relationship—and that is both opposite and same-sex—with an Australian citizen or permanent resident. It's also worth noting that submitters to the Senate Legal and Constitutional Affairs Legislation Committee inquiry into this bill noted that the bill has the potential to interfere with Australia's human rights obligations in regard to the right to family—specifically, the Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights.

I want to highlight the Australian National University's submission to the Senate Legal and Constitutional Affairs Legislation Committee inquiry, which stated:

We acknowledge that the provisions are intended to prevent people from entering into relationships where there is a risk of family violence. However, we submit that such decisions ought to be made by the individuals themselves, rather than by the government.

The Law Council submitted to that inquiry that the proposed amendments had the potential to discriminate against families on the basis of national or social origin or other status where one partner is a noncitizen. Their submission said:

There is no equivalent law that requires partners who are either citizens or permanent residents to have their partner's criminal and personal history assessed before they are granted the right to live together.

Indeed, when the Department of Immigration and Border Protection previously addressed this matter, they concluded that measures such as those contained in this bill could lead to claims that the Australian government is arbitrarily interfering with families in breach of its international obligations.

I want to be very clear that the Australian Greens are very supportive of legislative measures that address family violence, and we're also very supportive of significant extra funding going into addressing family violence in this country. We make the point that the shockingly high number of women who are killed—murdered—in this country by a violent male partner or ex-partner ought to be raising this issue prominently in the minds of every senator, and it ought to lead to far more significant investment by government into services that support people who are suffering from family violence. So we very much agree that family violence is a critical issue in this country, and we urge the government to do more than it already has to provide support for people who are suffering from family violence. However, we share the concerns of organisations like the Australian Law Reform Commission, the Australian Women Against Violence Alliance and the Law Council of Australia, who all raised valid concerns about privacy and procedural fairness. They also noted the risk of punishing victims of family violence by jeopardising their chances of accessing a visa and highlighting the lack of evidence of any support being available for those people who did come forward as family violence survivors.

Fundamentally, Senators, the Australian Greens believe that everyone should be treated equally in this country, whether your ancestors have been here for tens of thousands of years or for a couple of hundred years, or whether you arrived yesterday as a person who is seeking asylum in Australia or as a migrant to our country. We all ought to be treated equally under the law, and we, in the Greens, as senators would know, are big strong supporters of the rule of law.

As to the provisions in this bill, although they are intended to prevent people from entering into a relationship where there is a risk of family violence, we firmly believe that these decisions should be made by the people themselves, not by the government. Yes, the government has a role in the provision of information, and yes, the government has a role in the provision of education and other supports. But, fundamentally, decisions about who to enter into a relationship with should be left to the people who are considering entering into a relationship together.

This bill also provides the framework for the temporary sponsored parent visa program that the government announced in the budget. The new visa category will allow Australians to sponsor their parents to stay in Australia for up to five years at a time at a cost of $10,000. This new category is in addition to the existing parent visa categories. What we have here is yet another visa category for people who are wealthy enough to afford it. This is one of the big problems with the way this government runs the visa system in this country and the legislation that frames up the visa regime in this country: there are certain visas that are only accessible if you have enough cash to pay for them. That includes special investor visas but it also includes this new visa category.

Family reunion for people who've migrated to this country is critical for the maintenance of family ties and family connections. It's worth the Senate knowing that it can cost over $100,000 to bring two parents to Australia under the contributory visa program. If you don't have the $100,000, there is the option of a non-contributory visa. But the Department of Immigration and Border Protection website currently advises:

If you are a new applicant for a Parent (non-contributory) visa, your application will be queued and you can expect to wait approximately 30 years after your queue date until visa decision. Let's be very clear about what is going on here: if you're wealthy and you want to bring your parents to Australia, you can go to the top of the queue; if you're poor and you want to bring your parents to Australia, you have to wait for up to 30 years to reunite your family, 30 years to be able to see your parents again. I've got news for some senators. There are many, many people who want to be reunited with their parents and bring their parents to Australia to reside who haven't got 30 years because their parents will be dead in 30 years. But if you've got the cash you can go to the top of the line. Again, there is one rule for the well-off but another rule entirely for the not-so-well-off. The waiting list for the non-contributory parent visa is so long that people often die while waiting for their visas and without having had the opportunity to spend significant time with their children and grandchildren.

It is a disgraceful situation in this country that we allow this to happen. The Australian Greens are determined to play a role in enforcing our country to do better and in making sure that people who want to can reunite with their parents—migrants to this country who want their parents to come here so that they can be with their grandchildren and so that their kids, who are often of working age, can support them through the later years of their life. We want to see that made more easy for more people. We don't want to see 30-year waiting periods where, in some cases, parents die before their visa applications are even considered by the department. That is unfair and an absolute travesty. The Federation of Ethnic Communities' Councils of Australia believes that high entry charges for migrants who want to live in Australia are inequitable and fundamentally overlook the importance of Australian society. The Australian Greens agree. The ability to bring your parents to Australia to live should not be limited to only those who have the financial means to do so.

It's also worth noting that, for people who came to Australia as refugees, it is even more difficult to sponsor family members, particularly if you are a refugee who arrived by boat. Of course, that is the combined policy-cruelty lock step that is engaged in by the LNP and the ALP in this place. Together they believe that if you arrive in Australia by boat and seek asylum then you ought to be exiled to places like Manus Island and Nauru. There are people on both Manus Island and Nauru who are about to clock up six years—six years in limbo, six years of lost life, six years of danger, six years of inadequate medical support, six years of indefinite offshore detention designed deliberately to destroy people's hope—and we are seeing the inevitable price being paid by innocent people on Manus Island and Nauru, including children: the inevitable mental illness, the inevitable trauma and torment that innocent people are suffering.

The current approach by government unfairly disadvantages refugees in reuniting with their families. It's worth pointing out that reunited families offer stable support networks for refugees and humanitarian entrants, and we should be doing more as a parliament to make sure that people, including refugees, can be reunited with their parents. I want to bring to the attention of the Senate a comment by Dr Anna Boucher from the University of Sydney, who said:

While the proposed five-year visa is described as temporary, it is also renewable, so parents could end up living out the rest of their lives in Australia on a series of temporary visas. They would be, for all intents and purposes, permanent residents, without any of the rights of permanent status, remaining outside the welfare safety net and wholly reliant on family for care and assistance. They would be living in a democracy but denied political representation and the right to vote.

I also want to put on the record the submission by FECCA, the Federation of Ethnic Communities' Councils of Australia, to the Department of Immigration and Border Protection regarding the temporary visa for parents:

FECCA believes that a pathway to permanent residence is crucial in the implementation of the temporary sponsored parent visa. Without this pathway, individuals may find themselves in an ongoing 'limbo' of temporary visas without certainty about their future …

The Australian Greens are at a loss to understand why the major parties in this parliament collectively believe that because you're a migrant or because you're a refugee you can be treated as a second-class citizen in this country. We are all Australians, and everyone who is living here has a right to the basic dignity of life, including the social security safety net, and many people have a right to be set on a pathway towards permanent residency and citizenship that is available to them. We have to do much, much more than we are currently doing to encourage and provide for the reuniting of families, many of whom have been kept apart for far too long by governments, of both political stripes, that don't appear to understand the value of bringing a family together.

While I'm talking about the value of bringing families together, in the very short time remaining to me for this contribution I want to put on the record that there are still families separated, with some members on Nauru or Manus Island and other members in either Australia or a third country, due to the cruel policy lock step. We have to do more to reunite families of people who have been exiled to either Manus Island or Nauru and have lingered there for nearly six years now.

6:49 pm

Photo of Stirling GriffStirling Griff (SA, Centre Alliance) Share this | | Hansard source

At the outset, I indicate that Centre Alliance supports the main objective of this bill, the Migration Amendment (Family Violence and Other Measures) Bill 2016, to combat violence and abuse in the sponsored family visa program. We have waited a very, very, very long time to debate this important piece of legislation. It's been well over two years since this bill was introduced, and this is the second incarnation after the first version lapsed with the previous parliament. Its delay shows that this government does not rate family violence high enough on its agenda.

This bill addresses an oversight in the current law where there is very little, if any, focus on the character of a sponsor or the responsibilities that are attached to sponsorship. The sponsorship assessment and visa application are currently lumped together, which this bill seeks to separate. This bill will ensure character checks of the sponsor are conducted before the visa application can be made and that the findings are shared with the person they are sponsoring, so, importantly, they are aware of what they're getting into. At the moment sponsors are required to agree to undertakings of financial support and accommodation for up to two years. But those undertakings, unbelievably, are not enforceable and there are also no penalties whatsoever for noncompliance.

The problem with this approach from a family violence perspective is self-evident. There is no question that newly arrived migrants are among the most vulnerable people in our community. They are heavily reliant on their sponsor, are less likely to have an established support network of family and friends and are less likely to know where or even how to seek assistance if things go wrong in their private life. In many instances, their grasp of the English language may also be quite limited, which further compounds their isolation.

There is a particular powerlessness that comes with being a victim of domestic abuse in a new country. Can you imagine wanting help but not knowing what services exist or who to turn to? Imagine having dependants—the decision to seek help might become even more difficult. How can you be confident that authorities will respond to your situation in the way you need and won't take your children away from you? Even if you're brave enough to reach out, you have a very real worry that, if you leave your abusive sponsor, you risk being sent back to your home country. This bill, covered with regulations introduced last year, seeks to circumvent this situation by requiring approval of sponsors. There are requirements for police checks; providing newly arrived family members with information about essential services and emergency contacts; statutory obligations on sponsors; and penalties for failing to provide agreed support.

We recognise that there have been questions about whether this bill strikes the right balance. The brief Legal and Constitutional Affairs Legislation Committee inquiry into this bill, held more than two years ago, unearthed some important considerations. It's fair to say that the handful of stakeholders that provided evidence during the very much short-lived inquiry either opposed the bill or supported the government's policy objectives but expressed concerns about how those objectives were being addressed in this bill. The main area of concern that they centred on were visa processing delays; the separation of family units; issues of privacy; concern about procedural fairness and the government interfering with these families in ways it wouldn't domestically; and the perception that visa applicants are being punished for the conduct of their sponsors. There is also the possibility that a spousal refusal alone will not necessarily result in the end of an abusive relationship but rather an application for a different type of visa. While my colleagues and I are concerned about the issues that have been raised by stakeholders, it is our position that these need to be weighed against the policy intent of the bill and the effectiveness of the measures being proposed.

In terms of safeguards, it's important to bear in mind that the minister will have the discretion to refuse sponsorship applications in limited circumstances only. Those circumstances will include cases where the sponsor has convictions for sexual abuse or violence against children. This type of offending is especially heinous, and visa applicants ought to be entitled to know if their sponsors have offended. We note that, even where the sponsor has a criminal conviction, a decision by the minister to refuse or approve sponsorship would take into account a range of factors. These include the length of the relationship with the visa applicant, the type of offending by the prospective sponsor, how recently the offending occurred, the relevance of the offending to the family relationship and any mitigating circumstances. Applicants would also be entitled to natural justice and have access to a merits review of any refusal by the Administrative Appeals Tribunal.

It is also important to bear in mind that the bill does not seek to remove the family violence exception from the current act. The bill takes those existing protections one step further and provides additional preventative measures. According to the then Department of Immigration and Border Protection, in 2016-17, 540 partner visa applicants sought to remain in Australia under family violence provisions. My office knows of one such case involving a woman who moved to a remote country town in South Australia with her partner, who she met online. From the moment she arrived in Australia, her partner sought to exercise power and control over her, and the woman became completely isolated. The marriage was extremely short lived and ended when the injuries that this woman sustained at her husband's hands resulted in her being airlifted out of town for emergency medical treatment. She was forced to live in a refuge and struggled to come to terms with the fact that she'd left behind a happy life in her home country, surrounded by loved ones including her only son and grandchild, only to fall victim to family violence in a foreign land.

We know that in the majority of cases women are the victims of family violence. We also know that in Australia at least one woman is killed every week as a result of such violence. According to KPMG, who undertook a study for the Department of Social Services, the cost to the Australian economy of violence against women and their children is estimated to be well in excess of $22 billion a year—a staggering number, particularly when you consider that family violence is severely underreported by victims. And that's just violence against women. Men are also victims. One in three people who experience violence from a current partner are male, and males are two to three times more likely to never tell anybody about the violence. Males are also excluded from government antiviolence programs despite making up a significant proportion of victims of family and sexual violence. As we know, children are also victims. But, even when they are not themselves assaulted or abused, they suffer severe trauma just from witnessing domestic violence—seeing a beloved parent be abused and feeling powerless to act.

The long-term impact on the victims of family violence, whether they are women, men or children, is extremely profound. If this bill results in one less case, it is very much worth supporting. Indeed, it is incumbent upon us to do more to protect vulnerable individuals. Whether or not this bill strikes the right balance between protecting vulnerable people, on the one hand, and overcoming the concerns that have been raised by stakeholders, on the other, remains to be seen.

There is a very real possibility that the bill will only capture the tip of the iceberg in terms of family violence because the bill only addresses those sponsors who have convictions for the offences outlined earlier. It does not address those individuals who have a history of violence with multiple partners but don't have any convictions. We know that this area of law is very problematic, especially for women, who are often pressured into not pursuing charges against their intimate partner.

It is for this reason that I propose to move an amendment to review the operation of the bill 18 months after its introduction. Specifically, the review will consider the extent to which the new provisions strengthen the integrity of the family visa program and improve the management of family violence in the delivery of the family visa program. If the concerns that have been raised by stakeholders do eventuate, that at least will provide an opportunity to consider further changes to the family visa program where appropriate.

Lastly, there is some suggestion that the family violence exception is difficult to establish. When this bill was first introduced, my office raised the issue with the minister's policy advisers, who indicated that four out of five family violence claims are accepted by the department. Based on the advice provided, it would appear that, in practice, family violence applicants are given the benefit of any doubt. Only a very small proportion of the claims made are rejected, and this is done on the advice of an independent expert. This is an issue that I will continue to keep an eye on and raise as part of the review into this bill in the future.

I will also briefly note that the government has used this bill as an opportunity to make a completely unrelated amendment to introduce a new class of temporary parent visa. This visa will allow parents to stay in Australia for five years at a time, to be renewed only once, as long as they hold private health insurance while here and their sponsor agrees to pay all health and aged-care costs. We are prepared to support this amendment on the grounds that members of the community who have faced long delays in sponsoring parents are interested in having more options for parent visas. However, I should caution that in supporting this amendment we do not want to see the provisions that make this visa possible, such as the extension of the debt recovery function to family sponsors, exploited for other visa classes such as partner visas and child visas. We would also expect that the government will maintain annual places in the existing parent visa classes.

7:00 pm

Photo of Linda ReynoldsLinda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | | Hansard source

I thank my fellow senators for contributing to the debate on the Migration Amendment (Family Violence and Other Measures) Bill 2016. The bill amends the Migration Act 1958 to strengthen provisions to prevent family violence within visa programs. It builds on the work the government has already undertaken to provide information in the form of a predeparture pack to support visa applicants coming to Australia that clearly states that family violence is unacceptable in Australia.

A key element of this bill will be to put in place a framework that will require a sponsor of a family stream visa to be assessed and to be approved before a visa application can be made. In addition, it will require sponsors to agree to the results of their character checks being shared with the persons they are sponsoring so that they can make an informed decision about whether to proceed with their application or not, especially in circumstances in which children are involved in the application. These amendments are an important part of the government's initiative to ensure that women and their families are safe from violence. The amendments support and deliver on important elements of the Second Action Plan in the National Plan to Reduce Violence against Women and their Children 2010-2022. In summary, I believe that the bill deserves the support of all senators, and I commend the bill to the chamber.

Photo of Barry O'SullivanBarry O'Sullivan (Queensland, National Party) Share this | | Hansard source

The question is that the bill be read a second time.