Senate debates

Tuesday, 4 December 2018

Bills

Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018; Second Reading

12:02 pm

Photo of Kim CarrKim Carr (Victoria, Australian Labor Party, Shadow Minister for Innovation) Share this | | Hansard source

The Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 includes a number of minor amendments to the Migration Act, the Customs Act and the passenger movement charge and would have been a fairly non-controversial bill, but, as I understand it, there is going to be a proposal in the committee stage of this bill, by a Greens senator, to link measures from members of the House of Representatives crossbench to this bill. As a consequence, there may well be further amendments moved by the Labor Party, given the change in circumstances. What might well have been a fairly routine—and, I would have thought, rudimentary—measure is now becoming a little bit more complicated. As a consequence, there will need to be time for the clerks to be able to prepare these amendments.

We've only just discovered that this measure is being treated in this way. I had been at other meetings and only walked back into my office very recently. I'm not certain if the government is aware of these changes. That was certainly the intent, as I understand it. It will be confirmed, presumably, when others get up to speak. But that's clearly the information that I've been given. As a consequence, let me just deal with these matters as they are at the moment. It will be necessary to put additional speakers on the list to provide time for the clerks to actually prepare the Labor Party's amendments to this bill, given the changed circumstances. I understand now that it's actually the case that it is being proceeded with. I look forward to clarification on that matter.

This bill seeks to clarify when a noncitizen is in the migration zone, and it ensures a bar on applying for further visas remains in place if the process of removal is interrupted. It allows the department to provide information to visa applicants via their online ImmiAccount. It also seeks to reduce the risk of breaching the Constitution where refunds are mistakenly made from the Consolidated Revenue Fund, and it establishes an ability to recover merchant fees for services similar to those the department recovers from other statutory portfolio charges and fees and various other duties.

So Labor is supporting the thrust of the bill, although there will now be further amendments—I think I've got that confirmed—not just from the Greens but from the Labor Party. The amendments will go way beyond these minor matters that are being considered in this bill to matters relating to the removal of people from Nauru, as I understand it.

This bill, as I say, should have been dealt with in non-contro, and the government may well rue the opportunity that they have missed in not dealing with it in that way. As I say, if it had been put forward in that manner, it would have been dealt with in a rather speedy fashion. This is, nonetheless, an opportunity for me to record Labor's deep concern at the way in which this portfolio has been handled. There has been, in our judgement, a very high level of incompetence. This Minister for Home Affairs, it should be remembered, is under a cloud, insofar as his eligibility remains in doubt given the constitutional questions that have been raised in other matters. Those matters should, properly, be referred to the High Court. Minister Dutton, in our judgement, has been a very poor minister in his management of immigration issues. His failure to negotiate third-country resettlement of refugees on Nauru and Manus highlights the haphazard management of this department, and it is, I think, amongst the more serious of the many failures of his administration.

This government's tick-and-flick approach to the management of immigration matters can be highlighted in a few instances, including the way in which frontline immigration and border protection staff have been in a pay dispute. That raises really basic questions about the way in which staff are treated within the immigration department. There has been a pay dispute now for four years! You would have thought that, after four years, you could have sorted out the department EB. I find it remarkable that that dispute has been going on for so long.

Of course, the Australian National Audit Office has released scathing reports into the systemic failures within the department—including the $1.1 billion question of payments to contractors between September 2012 and April 2016 which were approved by departmental officers who didn't have the appropriate authorisation. You'll say to me, of course, that that was partly under the Labor government as well. I acknowledge that, but the fact remains that these have been brought to light now, and the government has no apparent recourse on those matters. There have been occasions where there's no departmental record of who was actually authorised to make the payments. That's a serious matter. The National Audit Office has made some quite insightful observations about the failures within the department in that regard.

Of course, there has also been the admission from the former Department of Immigration and Border Protection around cybersecurity questions, which, it would appear, remain unresolved as well—something that the department, you would have thought, would have been able to deal with more effectively than we've seen. There has been a 12-month delay in the delivery of fast-response boats to the Border Force in Cairns to protect Australia from illegal fishing, people-smuggling and other transnational crime. I don't think we've heard anything yet about the collisions on the reef in regard to those boats. There remain outstanding questions there. There are the botched changes to the skilled migration visa program that have sent shockwaves through business, industry and the Australian community—and, of course, we shouldn't forget the time the immigration department locked up Australian citizens in onshore immigration detention. These are extraordinary records.

This is a government that has, unfortunately, chosen to use immigration in a highly divisive way. In fact it sought to use it as a form of race-baiting in the recent Victorian election, a tactic which, thankfully, failed so dismally, particularly in a state which has such a proud record in regard to multiculturalism. We saw that the minister himself sought to use some extraordinary attacks on various ethnic groups, claiming that Victorians were frightened to go out at night, frightened to go out and use restaurants in Melbourne, in a blatant attempt to wind up ethnic stereotyping to a new form of racial profiling, which you would have thought there'd be no place for in a country like Australia. But there's no depth to which this government won't sink, when it tries to wind up xenophobia in a desperate attempt to win support. And I repeat: it's so pleasing to see that the Australian people—particularly as demonstrated in Victoria—have so thoroughly rejected that style of politics. We've seen this minister mishandle his portfolio in such a manner that I think it's now become a symbol of the shambles that is very much emblematic of the Abbott-Turnbull-Morrison government.

You would have thought that migration and immigration more generally would be a real strength for this country, given how important these issues have been for the welfare and extraordinary prosperity that this nation has enjoyed. Over seven million people have come to this country since the 1950s. There is now an overwhelming body of opinion that highlights the fact that our prosperity can very much be traced back to that migration program. The extraordinarily rich diversity of our people has been an important part of our capacity to engage with the world and, I think, an important part of the way in which we can actually distinguish ourselves from so many other parts of the globe in the way in which we're able to get on so well together in this country. But you wouldn't get that impression from the way in which this government seeks to stigmatise, isolate and attempt to divide, as I say, in a most unbecoming manner. This is a government that has failed a fundamental test of a civilised political system in the way in which it's treated our migration program. It's profoundly disappointing to see that.

It's a shame to have to say this, but Mr Dutton also performed pretty poorly when he was health minister. I can recall circumstances when there was a poll conducted by the Australian Doctor magazine which declared him 'the worst health minister in living memory'. So he's got form. He's got form when it comes to the style of politics. I think he regards it as a successful model in some parts of the population. The overwhelming sense, though, is that the Australian people don't buy it. They do want to see a country of migration that acknowledges the breadth of talent, the extraordinary diversity and the amazing contribution that people have made throughout our history.

To me, it's a shame that there's the desperate attempt to play the terrible dog-whistle type of politics. It might play well in some sections of the Liberal Party; I just don't think it plays particularly well in the public at large. I'm disappointed that those attempts continue to be made, but I am absolutely encouraged by the way in which the Australian people have turned their backs on this extraordinarily offensive style of trying to promote division in this country. It's really quite interesting. I noticed that, in the last state election in Victoria, even the Liberal Party leadership in Victoria rejected the crass attempts that were being made to inject those sorts of xenophobic elements into public debate. The Prime Minister, in the last week of the Victorian election campaign, sought to make issues around immigration. It was the Leader of the Opposition in Victoria at the time, Mr Guy, who said, 'No, we don't share that view, because in my state—which is now the fastest-growing state in the Commonwealth; Melbourne will be the largest city in the Commonwealth of Australia and enjoys extraordinarily good multicultural relations—there is a view that, while there are obviously issues that need to be contended in terms of questions about economic growth and there are clearly challenges that need to be met, the answer is not to blame our migration policies.' It was actually acknowledged that governments have responsibilities. Governments have responsibilities to plan. Governments have responsibilities to actually deal with the fundamental questions about resource allocation. Governments have responsibilities to ensure that people, when they come to this country, have the resources necessary to be able to adapt well to the new environment. But, above all, when it comes to basic infrastructure questions, and if there are real strains as a result of significant population growth, the answer is not to blame the migration policies or the migrants; it's to look at the failure of governments, over a long period of time, to develop the necessary infrastructure that you need to sustain the schools, the hospitals and the transport systems, and to ensure that there are jobs and industry development policies. In the past, we've leant heavily on our migrants to develop the economic prosperity of the nation and to take on the jobs that, quite often, many Australians won't take on.

So it's a double-edged sword, isn't it, when it comes to those questions? But, when you think there's an opportunity to win a few of the redneck votes, particularly from shock jocks, then it is a government that does not mind resorting to the politics of xenophobia and fear. Of course, what we saw in Victoria is that the politics of hope is able to succeed over the top of such extraordinary behaviour. What plays well in the focus groups in the Liberal Party—which I think really talk to members of the Liberal Party—doesn't actually reside well with the general attitude of people, especially as I've experienced it in the state of Victoria. That's why you've seen communities in the east of Melbourne, for instance, which are traditionally very conservative—that is, they vote Liberal; they've voted that way for generations—turning to Labor. They reject the politics of fear; they reject the race-bait approach; they reject the xenophobia. They understand that, for a country like us to succeed, we have to be a sophisticated part of the modern world. That's the way it's been in this country throughout our history, I might add. We effectively double our population every 40 years, and governments have to be able to deal with that and think through the long-term implications in order to ensure that all our people are able to enjoy the prosperity that this nation is able to provide. Clearly, that's not the approach of the current government—and it's certainly not the approach of the current minister.

I'm particularly disappointed that the officers of the Department of Immigration and Border Protection, who have a really proud history of serving this nation, have been treated in the way they have. The fact that they can't get their industrial agreement sorted out makes me think that they have been treated pretty poorly. I've also noticed the very high turnover of officers. A number of comments made by longstanding officers and people who are no longer in the department—Mr Rizvi, for instance—highlight the very sharp contrast in the approach taken to migration issues in this country and the cultural change that has occurred as a result of the directions of this government. This country has a very fine international reputation in terms of its migration policies, and enormous support has been experienced by the Australian people for those migration policies.

A great deal of media attention concentrates on the question of people who are seeking refugee status. The overwhelming bulk of people who come to this country, 190,000-odd—or the 160,000 that this government now seeks—come here in an orderly manner and are welcomed in this country. They are welcomed and have been welcomed for generations. It reflects the enormous success of the approach that this country has had towards not only a mass migration program but also multiculturalism. That's a process which the Australian Labor Party is very proud of and which we ought to be very proud of as Australians.

I think this is a bill where, unfortunately, we'll see some other issues raised. We will obviously have to deal with them, which will provide an opportunity to make a few points more broadly about the great benefits of our migration program, even if it's set against the context of an appalling record by this government and this minister in trying to trash that reputation both domestically and internationally. This bill should've been dealt with as non-controversial legislation, and perhaps these questions would then have been dealt with in a much speedier manner—but that's a matter for the government. (Time expired)

12:22 pm

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

I rise to make a contribution to the debate on the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018. This bill makes a range of amendments, including to the Migration Act 1958, to provide that when an unlawful noncitizen is in the process of being removed to another country under section 198 and the removal is aborted then the person will be taken to have been continuously in the migration zone for the purposes of the Migration Act. What this means, in effect, is that when an unlawful noncitizen—I'm using the government's language here—is in the process of being removed to another country and that removal is aborted or that removal is completed but the person is not permitted entry into the receiving country and, as a direct result, the person is returned to Australia, then that person has a lawful basis to return to Australia without a visa. It also provides that, when such a person does return to Australia without a visa, the person be taken to have been continuously in the migration zone for the purposes of certain sections of the act which bar the person from making a valid application for certain visas.

Currently, the relevant visa bar only applies to a person deemed a noncitizen, not an unlawful noncitizen, because, as we all know—government included—there is actually no such thing. So this bar applies to a person deemed a noncitizen by the act. The act bars that person from applying for particular visas after they've been removed or deported from Australia under section 198 to another country but have been refused entry by that country and so are returned to Australia.

This amendment seeks to extend that visa bar to people the government attempts to remove from Australia but for whom, for whatever reason, that removal was not completed or where the person did not enter the destination country. So this is basically extending the circumstances in which a statutory bar against applying for further visas can be applied to already vulnerable people seeking asylum, to people the government wants to send back to their country, or departure. As we know from the bill's digest—112 of 2017-18—this could apply to people who do not enter the other country due to being refused entry by that country. The risk here is that we're going to create a situation where there are, effectively, stateless people trapped in limbo by two countries saying, 'Not my problem'.

The Parliamentary Joint Committee on Human Rights rightfully raised concerns about the expansion of circumstances in which this statutory bar applies and, in particular, how this bill would impact right-to-liberty and non-refoulement obligations, and how it might engage and limit the obligation to consider the best interests of the child. The human rights that this amendment may engage are the right to liberty, the right to not be refouled and, potentially, the rights of the child. What we need to understand from government here is how it responds to those questions around the human rights that are engaged by this legislation, particularly those rights that I just outlined. And we need to specifically understand in that circumstance why it's necessary to apply a visa bar to noncitizens which the government has attempted to remove from Australia under section 198 of the Migration Act. What is the rational purpose or what is the purpose of this legislation? Is it a legitimate purpose under international human rights law, and are there less rights-restrictive approaches than the application of the visa bar?

We are also interested in hearing from government whether there are adequate and effective safeguards in place to ensure that a person is not subject to arbitrary detention, including the availability of periodic review of whether detention is reasonable, necessary and proportionate in any individual case, and also the circumstances in which a person may apply for a particular class of visas or apply that a visa bar may be lifted. So this is a piece of legislation that potentially has incredibly serious human rights ramifications, and it's important that the Senate completely understands how the government responds to those significant potential breaches of human rights.

With regard to the requirements under international law around the rights of a child, the government also needs to be clear about what relative weight will be given to the obligation to consider the best interests of any child in departmental policies and procedures in the context of the measures proposed in this legislation; what the threshold for intervention is on the basis that the measure would not be in the child's best interests; whether there are proper procedural safeguards in place to ensure that the obligation to consider the best interests of the child is given due consideration; whether the measure is aimed at achieving a legitimate objective for the purposes of human rights law; how the measure is effective to achieve the objective—that is, its rational connection to the objective; and whether the limitation is reasonable and proportionate to achieve the stated objective.

Those last three questions I raised, which were whether or not the measure is aimed at achieving a legitimate objective, how the measure is effective to achieve that objective—that is, is it rationally connected to the objective—and whether the limitations contained in this legislation are a reasonable and proportionate measure to achieve the stated objective—are actually fundamentals of international human rights law. They're absolute 1.01 questions, which any government ought to be able to answer comprehensively and clearly so that the Senate can understand whether or not this legislation is in breach of any or some of Australia's international human rights obligations. I mentioned the potential for refoulement. Provisions against refoulement are contained, obviously, within the protocol to the refugee convention to which Australia is a signatory.

We have seen, time after time, this government walk away from its international human rights obligations and we've got concerns that that is happening in this situation. We've seen that, for example, on Manus Island and Nauru. The government still claims that these are offshore processing centres when in fact there are many people that have clocked up over 5½ years now in offshore detention and there is little or no processing happening of people who've been trapped for well over five years on Manus Island and Nauru. We have a system on Manus Island in Papua New Guinea and on Nauru which is deliberately designed to dehumanise people, which is deliberately designed to harm innocent people, including innocent children, and which is deliberately designed—this is explicitly admitted by the government—to deter other desperate people from attempting to seek asylum in Australia after arriving by boat.

The overwhelming majority of the people on Manus Island and Nauru have been there for over five years. I do ask the Senate to pause and reflect on that for a minute. Five years—that's a big chunk out of a person's life. It's a big chunk of time. It's a big part of their life to be detained in a punitive system which is designed deliberately to harm people. I say that advisedly, because there is abundant psychological and medical literature which shows that indefinite detention is directly correlated, in many cases, to significant mental health conditions. We have a mental health crisis, both on Nauru and on Manus Island. We have a situation where there are children on Nauru who are suffering from resignation syndrome. What that basically means is that they have withdrawn from life. There are many children there who are not eating or drinking and are effectively being kept alive by emergency medical supports.

I know there's been a long debate—in this parliament, in this chamber, in the community—about offshore detention, but I want to make one thing particularly clear. If the answer is deliberately harming innocent children, then you're asking the wrong question, because the answer to any question is never deliberately harming innocent children. The answer to any question is never deliberately harming innocent men and women. I can personally attest to the harm that's being caused, because, unlike the overwhelming majority—and, to the best of my knowledge, every other senator—I've been to Manus Island. I've been there many times. I've seen firsthand the human cost of Australia's offshore detention policy. I've seen it, and it's awful. It's disgusting. It's something that, ultimately, we will see a royal commission into in this country, and we will see in the future one of our prime ministers get up and make the requisite apologies. It's important that those things happen—a royal commission and an apology from the Prime Minister of the day—because we all ought to be focused, firstly, on getting innocent men, women and children out of offshore detention and here to Australia and, secondly, ensuring that this dark and bloody chapter in our national story is never, ever repeated. That is absolutely crucial.

Decades ago Australia was an international human rights leader. Other countries used to look up at us for our human rights stances. Now we're an international shame. There are far right-wing political parties in Europe that are actually using the Australian government's messaging when they talk about immigration and people seeking asylum. It is an international shame. Do you know what? I've got a firm view that the Australian people are better than what the government's policy is on offshore detention. We respect values like compassion, human decency and a fair go for everyone. I'm here to tell you that the people locked up on Manus Island and Nauru have not been given a fair go. They have not. There are people on Manus Island who ask me, when I'm there: why is one person they were sitting next to, on the very same boat, in community detention in Australia and yet another person they were sitting next to, on the very same boat, in offshore detention on Manus Island? And I know there are people on Nauru who are asking the same question. I know there are families that have been ripped apart by this cruel, inhumane policy of the Liberal-National Party. I know somebody on Nauru who has a baby daughter who is well over 12 months old now, and he's never seen his daughter. He's never held his daughter, because the daughter and the mother are here in Australia, and the husband and father has spent over five years of his life on Nauru. These are terrible, distressing stories, but they have to be told. And I'll keep telling the stories until we get a change in government policy and Labor Party policy on this issue.

Members will be aware that I've also tried to visit Nauru but my application for a visa was denied by the Nauruan government, who put in an email to me that, because the visa did not have the support of the Department of Foreign Affairs and Trade in Australia, they were unable to issue me with a visa. Make no mistake: even though the government's political line on offshore detention is that it's all a matter of PNG and Nauru, every single string is being pulled by the Department of Home Affairs here in Australia—every single string, every single time.

We don't want to see this stuff happening again, and we've got very real concerns about this legislation. The Assistant Minister for Home Affairs at the time, Mr Hawke, provided the Parliamentary Joint Committee on Human Rights with a response saying that, in planning the removal of any child, the best interests of the child must be taken into consideration. But he was very clear that it would be a consideration, not the only consideration. He went on to say that visa bars treat all noncitizens—including children—'as if they had never departed Australia,' therefore restoring them to their previous immigration status. What of that person's status? Is that not our problem anymore in this country? If a person is a child, is that not our problem anymore? I don't believe that's what the Australian people are. It's just such a shame that this government think that they are reflecting the values of the Australian people, when clearly they are not.

Regarding this bill's compatibility with the right to nonrefoulement and the right to liberty, the Joint Committee on Human Rights made it very clear that the committee had concerns about this issue. It made it clear that, in the previous parliament, the committee considered:

… that the statutory bar on visa claims in the event of unsuccessful removal from Australia failed to provide for effective and impartial review of non-refoulement decisions, and accordingly the measure was incompatible with Australia's nonrefoulement obligations …

We have very serious concerns that this legislation falls into the same category.

12:42 pm

Photo of Slade BrockmanSlade Brockman (WA, Liberal Party) Share this | | Hansard source

I rise to speak on the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018. I will start with a few points addressing the contributions that have been made so far. I think that the foreshadowed amendments that Senator Carr spoke about earlier—I believe Senator McKim touched on them as well—at best reflect tangentially on what is at issue before us today in this bill. Senator Carr stated that this could have been dealt with in non-controversial legislation later in the week. If that is the case, I say to those opposite: then treat this bill as it should be treated—look at it on its merits. Don't get dragged by the ears by the Greens because you're worried about inner-city electorates. Treat the bill on its merits, do what is right for Australia and continue to protect Australian citizens in the way this government has been doing now for five years.

This government has been taking action to make sure that Australians are kept safe. This is not a one-off process. This is not a change to the law that happens and then we can all go and congratulate ourselves, slap ourselves on the back and sit down and have a beer. This is something that you need to keep going back to again and again because methods change, methodologies change and the individuals involved change. It is a constantly changing environment. The technology of terror changes, and we need to be constantly on guard to make sure that our legal arrangements are the most effective they can be. That is why, on 28 November this year, the government introduced the Australian Citizenship Amendment (Strengthening the Citizenship Loss Provisions) Bill 2018.

This bill does a couple of things. Importantly, it amends the Citizenship Act so that dual citizens convicted of a terrorism offence in Australia are eligible to lose Australian citizenship, irrespective of the sentence. This removes the current requirement that a terrorist offender must be sentenced to at least six years imprisonment. The bill also adjusts the threshold for determining dual citizenship, a change aimed at improving the scope of determining a person's foreign citizenship status by the minister. Similar to the UK scheme, the government will also develop a temporary exclusion order scheme, so Australians involved in terrorism overseas would be legally unable to return to Australia for up to two years. These temporary exclusion orders would enable authorities to delay and then monitor and control the return and re-entry into our community of Australian foreign fighters.

Why is this important? It's important because the Australian national terrorism threat level is at 'probable'. This isn't something that is used to scare people; this is just a statement of reality. Since 2001, 56 people have been convicted—not charged; convicted—of terrorism related offences. Thirty-seven per cent of these people are currently serving custodial sentences. Thirty-nine people are currently before the courts on terrorism related offences. Since 12 September 2014, when the national terrorism threat level was raised, 93 people have been charged as a result of 41 counterterrorism related operations around Australia. There have been seven attacks and 15 major counterterrorism disruption operations in response to potential attacks. These are real statistics. These are the facts of what is happening in the Australian community. This is a set of circumstances which is extraordinarily regrettable. We wish it wasn't the case, but it is the reality that we are facing.

It is important for government to continue to examine the laws we have, to make sure those laws are fit for purpose, and to ensure we are doing everything to monitor, restrict, reduce the possibility of and disrupt potential terrorism activities before they occur. We've seen some episodes, quite publicly, in the last few months of what can happen. But I'd also point out that, for example, in the north of Western Australia, we have vast economic assets that would be relatively easy to disrupt with a terrorism incident. We need to be able to deter, disrupt, monitor and continue to effectively police potential terrorism activity in this country.

To continue, around 230 people in Australia are being investigated for providing support for individuals and groups in the Syria-Iraq conflict, including through funding and facilitation or seeking to travel to join these groups. Obviously the overwhelming majority of these people are young men and women. Some 230 Australians have travelled to Syria and Iraq to fight or support the groups involved with the conflict. Around 100 Australians are currently in Syria and Iraq and have fought for or otherwise supported Islamic extremist groups. Around half of the Australian travellers are still active in the conflict zone. The other side to this is that at least 90, and possibly as many as 94, Australians have been killed as a result of their involvement in the conflict. Around 40 people have returned to Australia after travelling to Syria and Iraq, having, unfortunately, joined groups involved in those conflicts. These Australians were part of some 40,000 foreign fighters, including 7½ thousand from Western countries, who have travelled to the region and participated in the conflict since it began. Obviously that is a large pool of individuals who do pose a certain level of risk to society.

Two hundred and forty Australians have had their passports cancelled or refused in relation to the Syria-Iraq conflict. The Australian Federal Police has obtained 26 arrest warrants relating to persons of interest to counterterrorism operations. Twelve people have been convicted of terrorism financing and a further five are currently before the courts on terrorism-financing charges. Again, this is the reality of the world we currently live in, and we have to, as a government, respond to that. I do very much encourage those opposite to consider this bill on its own merits. Don't allow yourselves to be distracted by amendments from the Greens; focus on this bill and what it is trying to achieve and support it on that basis. I won't say, 'Don't support it,' because I think that would be very unwise, but support it on that basis.

Just to go through a little more detail on the bill itself, schedule 1 contains amendments relating to removal. This amends the Migration Act to strengthen and clarify the legal framework to ensure that it will be interpreted consistently with the original policy intention. The amendments provide that, when an unlawful noncitizen's removal from Australia is aborted for any reason—for example, refusal of entry by a transit country—and the person needs to be returned to Australia, that person can re-enter Australia lawfully without a visa. The amendments will also make it clear that such a person will be taken to never have left the migration zone and will continue to be subject to visa application bars—that is, they cannot apply for certain visas in Australia.

Schedule 2 makes some changes to the handling of documents. These changes broaden the channels by which the department can provide documents to people. The law will now allow the department to communicate directly via an online account. Obviously this is a relatively straightforward technical change that is keeping the method of communication up to date. Though the change adds a new delivery method to the list of delivery methods available, it does not limit or remove any of the existing methods. This is a key component in permitting the department to move most of their communications onto the same online system as currently used by clients when applying for visas and allows them to provide information to the department online, and I think we all know the potential that has for making things more straightforward. These amendments are in keeping with the government's overall Digital Transformation Agenda. The legislation, as currently enacted, does not cover the use of the department's online account system as a method of providing documents. This amendment adds a new method of giving a document to a person that will capture that system and should be sufficiently inclusive to encompass any future systems the department may implement.

Schedule 3 covers recoverable payments. This inserts a new power into the Customs Act to enable the department to refund duty or drawback of duty in circumstances where a person has been paid a refund or drawback that they were not entitled to. Obviously, again, this is a relatively straightforward technical amendment that allows the refunds and drawbacks to be recovered in certain circumstances.

Schedule 4 covers changes to the passenger movement charge. The passenger movement charge is the charge that is imposed on persons seeking to depart from Australia for either another country or an external territory. The objective of the charge is to offset the cost of the provisions of customs, immigration and quarantine services, and short-term visitor visa processing. The charge is a flat rate of $55. It's included in the price of a ticket charge by certain airline carriers or cruise liners and is collected by those airline carriers or cruise liners at the time the person purchases a ticket. The charge is normally collected in the ticketing price by the carriers and then deposited into the department's account. Where the person purchases a ticket from an airline carrier or a cruise liner that has not entered into a special arrangement with the minister, the charge is not part of the ticket price. In these circumstances, an officer in the Australian Border Force collects the charge from the relevant person at the place of departure. If the person elects to pay with a credit card, the merchant fee is charged to the department by the banking institution. Where the person pays with a debit card, a merchant fee is not charged. While the department encourages clients to use electronic or online systems and facilities for the payment of charges, fees duties, taxes et cetera, there is a real need for the department to manage the cost of merchant fees charged on these fees.

The department currently recovers merchant fees associated with credit card payment under citizenship, customs and migration legislation. The head of power to prescribe regulation for the recovery of fees associated with the charge would be consistent with the recovery of merchant fees for other portfolio payments. In schedule 5 there are some minor amendments, some technical changes to the wording of some provisions in the Customs Act. Again, these are relatively straightforward, minor proposals.

I just want to go into a little more detail on the temporary exclusion orders and the provisions of the bill itself. On 22 November, the Prime Minister announced that a temporary exclusion order scheme, similar to the UK scheme, would be introduced. The TEO scheme will enable Australian authorities to delay and then monitor and control the return and re-entry into our community of Australians who have been in conflict zones like Iraq and Syria. I think some of the statistics I read out earlier reveal why that is so important to ensuring that our society is kept safe.

Under the TEO scheme, the Minister for Home Affairs will be able to impose a temporary exclusion order for up to two years on an Australian citizen of counterterrorism interest located offshore. The TEO will make it a criminal offence to return to Australia unless a permit is granted that would manage their return. Once the person is back in Australia, the permit may also impose controls on the individual, such as reporting to police, curfews and restrictions on technology use. It is very important to get the balance of this right. It needs to be workable and it needs to be operationally effective, but it is also a very important part of ensuring that, when people do come back to Australia from exclusion zones, they do so on terms where the Australian government can manage the process effectively. In general, this is a bill that is designed to make sure we deter would-be terrorists and to support our police and security agency in the face of those evolving terrorism threats.

Conviction for a terrorist offence is a very strong statement that someone does not share the values that have made this such a good place to live and such an attractive place for so many migrants. Senator Carr spoke about the importance of migration to Australia, and I absolutely agree with him. Migrants, for many, many years—and my family came from the UK many, many years ago now—over the course of Australia's history have strengthened our nation, have brought us economic prosperity and have played a vital role in what a wonderful country we have, and those on this side certainly agree with those sentiments. However, conviction for terrorism is a statement of repudiation of many or most of the values that we all hold dear.

Where a convicted terrorist would not become stateless, it is appropriate to reassess whether they should or should not be able to remain an Australian citizen. The bill protects Australians and Australians' interests from further harmful acts and maintains the integrity of the Australian citizenship frameworks. It does remove the requirement for a person to be sentenced to at least six years imprisonment to be eligible to lose their citizenship; all that is required is a conviction for a terrorist offence—although it should always be noted that a conviction for a terrorist offence is a high bar. It has occurred—and, as I've described, there have been a number of convictions for terrorist offences over the last decade—but to be convicted of a terrorist offence is a very high bar. So this will not, in any sense, be an easy step, but it recognises the fact that, if you are convicted of a terrorism offence, there must be consequences beyond the prison sentence.

Secondly, it adjusts the threshold for determining dual citizenship. The legislation currently requires that a person is a national or citizen of another country, other than Australia. The bill provides that the minister must be satisfied that the person will not become stateless if their Australian citizenship ceases. This is an appropriate and proportional response in light of evolving threats. As I opened today, I think it is very important that the parliament continues to evolve our legal framework dealing with terrorism offences to make sure that our legal system is capable of deterring, but also identifying and prosecuting, those who are seeking to do our nation harm. These laws are proportionate; they are reasonable. I certainly urge those opposite to treat them on their own merits and not be dragged somewhere they do not want to go by the Greens. It's very important that this bill continues the strong record of bipartisanship on this issue. I commend the bill to the chamber.

1:01 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party) Share this | | Hansard source

I rise to also speak on the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018. First of all, I'd like to make some remarks about the content of the bill itself and the provisions within it, but I will take the opportunity to make some more general remarks about the administration of the Immigration and Home Affairs portfolio by this government and by Minister Dutton in particular.

Dealing with the bill itself, it makes a number of amendments to several existing pieces of legislation: firstly, the Migration Act 1958; secondly, the Customs Act 1901; and, thirdly, the Passenger Movement Charge Collection Act 1978. Going to some of the things the bill does: firstly, the bill clarifies when a noncitizen is in the migration zone and ensures a bar on the application for further visas remains in place if the process of being removed is interrupted. Secondly, the bill allows the department to provide information to visa applicants via their online ImmiAccount. Many people have found the use of those sorts of online mechanisms to assist with visa processing very useful, so that is an amendment that we support. Thirdly, the bill reduces the risk of breaching the Constitution—which is always a good thing and something that I know Minister Dutton is particularly keen to ensure in his personal circumstances—where refunds are mistakenly made from the Consolidated Revenue Fund. And, fourthly, the bill establishes an ability to recover merchant fees for services. As has been made clear already by Senator Carr, Labor will be supporting the passage of this legislation because it does clarify a number of relatively minor issues across the portfolio that was previously known as Immigration and Border Protection. But, as I say, the bill does nothing to assist with the increasing level of maladministration that we see in this portfolio, by Minister Dutton in particular.

Dealing in a little bit more detail with the amendments that are proposed, I begin with the provisions regarding the removal of noncitizens. Schedule 1 of the bill outlines amendments relating to the removal of a noncitizen from the migration zone and ensures that a bar on applying for further visas remains in place if the process of being removed is interrupted. Section 198 of the Migration Act, as it currently stands, allows for the removal from Australia of unlawful noncitizens. Those unlawful noncitizens can include those who have breached the conditions of their visa or have overstayed their visa. I think all Australians would accept that the ability of the department to remove unlawful noncitizens is an important power that any Australian government should have. At times, because of circumstances, the removal of an unlawful noncitizen may be interrupted or aborted altogether, or it might be that a removal is completed but the person is not permitted entry into a receiving country. It does happen from time to time that Australian authorities are able to effect a removal of an unlawful noncitizen, only to find, when a person is deported, that they are refused entry at the country to which they are taken. In fact, there have been some instances where aircraft have been forced, mid-flight, to return to Australia because of the inability or the unwillingness of another country to accept the arrival of an unlawful noncitizen from Australia. There have even been instances where the government has decided to cancel a removal in response to an interim measures request from the United Nations. So it is important that our legislation keeps pace with all of these sorts of eventualities, and that's what's intended to occur here.

If a situation such as those occurs, and a person is returned to Australia as a direct result, then these amendments that we're debating today will allow for that person to have a lawful basis to return to Australia without a visa, and they will ensure that, when such a person does return to Australia without a visa, there is a bar on the person from making a valid application for certain visas. Obviously, if we're dealing with a situation where someone is deported and, in the worst-case scenario, an aircraft is forced to be turned around to take them back to Australia, there needs to be some legal mechanism for that person to regain entry to Australia, at least for a period of time. But these amendments will make sure that the person doesn't have the ability to reactivate any visa application to replace an earlier decision.

In terms of the amendments regarding information being provided via an online ImmiAccount, the Department of Home Affairs can already communicate with individuals applying for visas in a number of ways. They include giving documents by hand, by post, by email, by fax or by other electronic means. But, even as I say those words, you will recognise that they are means of communication that are rapidly becoming obsolete as more and more people move to online mechanisms for dealing with government. The amendments under schedule 2 of this bill amend sections 494B and 494C of the Migration Act to allow the department to provide visa applicants with information and documents via their online ImmiAccount. The department describes the ImmiAccount as the 'front door' to its online services. We on the Labor side hope that these amendments will improve the department's ability to process visa applications in a timely manner. That is something that has become an increasing problem under the current minister, and I'll have a bit more to say about that later.

The third set of amendments concern recoverable payments. In this bill, schedule 3 reduces the risk of breaching the Constitution where refunds are mistakenly made from the Consolidated Revenue Fund. For those watching at home who have their copies of the Constitution beside them, section 83 of the Constitution provides that no amount may be paid out of the Consolidated Revenue Fund except under an appropriation made by law. The department currently operates mainly on a client self-assessment basis for the collection, refund and drawback of duty in the Integrated Cargo System. Due to this system, there is always a chance that refunds and drawbacks which aren't owed are still made. That would put those refunds and drawbacks in breach of section 83 of the Constitution. I know that Minister Dutton upholds the Constitution extremely thoroughly, so it's good to see him and his department taking action to make sure that the Constitution isn't being breached on this occasion. This amendment will reduce the risk of breaching the Constitution and it also implements a requirement for the secretary of the home affairs department to report in the annual report any payments that Public Service employees are aware of that were made for a particular financial year.

The fourth set of amendments contained here are in schedule 4, and they apply to the Passenger Movement Charge Collection Act 1978. What they say is that, if a person is seeking to depart Australia, they are liable to pay a charge known as the passenger movement charge. That's the current situation. Currently, the Department of Home Affairs incurs a merchant fee if the passenger pays the movement charge with a credit card. This cost is incurred by the department and, in turn, the Australian taxpayer. I think most of us would concede that it is really the obligation of someone who is paying their movement charge to incur all charges associated with it. These amendments before the Senate now allow for a new paragraph 2 to be added to section 15 of the act that will allow for regulations to recover this cost which is otherwise incurred by the department. This move is consistent with the fee-for-service that the department recovers for other current statutory portfolio charges, fees and duties that are paid by credit card or PayPal. So it's bringing it in line with current practice being followed by the department in other ways.

Finally, there are a number of additional minor amendments outlined in schedule 5 of the bill which apply to the Customs Act 1901. These amendments include some wording clarification, such as adding the words 'to an external place' to two paragraphs in section 58A within the act. The purpose of section 58A of the Customs Act is to control the movement of persons and goods between sea installations installed in the adjacent area and the coastal area of Australia or a resources installation attached to the Australian seabed at an external place. The words 'to an external place' were inadvertently omitted by the Customs Legislation Amendment Act (No. 1) 1999, so we welcome the current coalition government fixing the drafting errors of previous coalition governments. I'd encourage them to take the opportunity to do whatever else is necessary as well.

That's what this bill deals with in specific terms. I want to take the opportunity, in the remaining time that I have, to talk more generally about Minister Dutton's administration of his department—or, more accurately, his maladministration of his department. I know Minister Dutton has tried to build up this image of himself as a hard man—the hard man of this government, the man who is going to keep our borders safe and keep the bad people out—and he would like every Australian to think of him with that degree of respect.

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

And he has!

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party) Share this | | Hansard source

I'll take the interjection from Senator Reynolds, who I know did not support Minister Dutton in the recent leadership change, so she must agree with me that Minister Dutton's attempts to fashion himself in that way have dismally failed and that he has failed in his duties.

Senator Hume interjecting

I see Senator Hume also joining in—someone else who had the good sense to oppose Minister Dutton in the leadership change. I welcome your recognition and shared view that Minister Dutton has not handled his portfolio responsibilities correctly and that he would've made an absolutely disastrous prime minister for Australia. Good on you for making that decision and choosing the second-worst option: making Minister Morrison the Prime Minister of Australia.

We all remember that Minister Dutton has a long record of maladministration in his portfolios, having been voted the worst health minister in living memory in a poll conducted by Australian Doctor, and he's rapidly on the way to being regarded as the worst immigration minister Australia has ever seen.

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

That was in GetUp!, was it?

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party) Share this | | Hansard source

Again, I'll take Senator Reynolds's interjection in saying that that poll was conducted by GetUp!. It's very disappointing that you regard Australian Doctor, which I presume is a magazine published by and for doctors in Australia, with that degree of contempt, because I know that you do hold GetUp! in such contempt. As I say, Minister Dutton has, for a long period of time, prided himself on being the hard man of the government, the man who could be relied upon to do what was necessary in Australia regarding border protection and immigration. But I have a different view, and that is that he has led the charge on probably the most divisive approach to immigration that this country has ever seen. Of course, he has race-baited his way across Australia and has made and republished various lies about asylum seekers on Manus and Nauru. I welcome the fact that his own colleagues baulked at the opportunity to make him Prime Minister, and increasingly we're seeing Australians do the same. I'll leave my remarks at that because I know that there are other people who want to make a contribution, but we will be supporting this bill.

1:15 pm

Photo of Rachel SiewertRachel Siewert (WA, Australian Greens) Share this | | Hansard source

I rise also to make a contribution on the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018. This bill amends the Migration Act in the following ways. Firstly, the bill clarifies that, if a process to remove a person from Australia under section 198 is unsuccessful, the person does not require a visa to return. The bill provides that, where a person leaves the migration zone but returns as the result of an unsuccessful removal under section 198, they remain subject to a statutory bar against applying for further visas. The bill also enables the department to deliver documents to a person through their online ImmiAccount and to charge people for that so-called privilege.

The Greens have serious concerns regarding the amendments in relation to the expanded application of the visa bar under the Migration Act, and have requested information from the minister in relation to this. These concerns are based largely on the Parliamentary Joint Committee on Human Rights report on the bill dated 8 May 2018. In relation to removal from Australia and the requirement for a visa when travelling to Australia, section 42 of the Migration Act provides that a noncitizen must not travel to Australia without a visa that is in effect. A noncitizen who is in the migration zone without a valid visa would be deemed an unlawful noncitizen. The act requires the removal from the migration zone of any noncitizen who does not hold a visa that is in effect and who is unable to resolve their visa status. The bill requires that that removal must occur as soon as is reasonably practicable. I'll come back in a minute to the phrase 'as soon as is reasonably practicable', which would be rather laughable if the circumstances weren't so tragic.

Firstly, proposed section 42(2A)(d) provides that a visa is not required where an attempt to remove a noncitizen under section 198 is made but not completed, the noncitizen travels to Australia as a direct result of this, and the person would be an unlawful noncitizen if they were in the migration zone. Secondly, section 42(2A) applies where removal under section 198 is completed but the noncitizen does not enter the other country—for example, due to being refused entry by that country—and would be an unlawful noncitizen if they were in the migration zone. The Greens have concerns because these amendments would affect the department's processes in bringing a person back to Australia where removal from Australia is unsuccessful, but they do not change or regularise the person's status. Currently, this visa bar applies only to a person deemed a noncitizen—not 'an unlawful noncitizen', because, as we know, government included, there is no such thing. So the visa bar bars a person deemed a noncitizen by the act from applying for particular visas after they were removed or deported from Australia to another country but were refused entry to that other country, and so were returned to Australia.

The Greens have real concerns in relation to amendments relating to the bar on further visa applications. We have very strong concerns about this. Under section 48 of the Migration Act, a person is barred from applying for most visas if they are in the migration zone, they do not hold a substantive visa—that is, they are on a bridging visa—and, since last entering Australia, they have had either a visa application refused or a visa cancelled. The bill amends sections 48 and 48A in line with its amendments to section 42, with the effect being that, when the person returns to Australia, they will be taken to have been continuously in the migration zone. This means that, if prior to the person's removal they would have been barred from making a visa application under either section, this will continue to be the case when they return to Australia. The Parliamentary Joint Committee on Human Rights has raised concerns about this measure, which it noted will expand the circumstances in which the statutory visa bar applies. The committee has suggested that the proposed amendments are not compatible with the right to liberty and the right to an effective remedy, as well as the obligation to consider the best interests of the child. Unfortunately, it's another cruel approach from this government.

The committee also suggested that there is a risk that a person barred from applying for a new protection visa, for example, could be subject to immigration detention for an extended period given that an attempt to deport the person has already failed or could be deported even if owed protection obligations. As if in this country we haven't already locked up enough people for indefinite detention, we are building disaster upon disaster with these amendments. This amendment bill seeks to extend that visa bar to people the government has attempted to remove from Australia but, for whatever reason, that removal was not completed or the person did not enter the designation country. This is extending the circumstances in which this draconian, inhumane statutory bar against applying for further visas can be applied to already vulnerable people seeking asylum who the government wants to send back to their country of origin or departure and then that government says, 'No, they are not welcome here,' and they do not—as per the Bill's Digest examples—enter the other country due to being refused entry by that country. So these are stateless people trapped in a limbo by two countries saying, 'It's not my problem.' Imagine being that person and being pinged between countries that are basically saying, 'We don't want you.' We need to ask ourselves, 'When will we see a government acting with integrity, honouring its commitments to the United Nations refugee convention and treating human beings like human beings?'

One of the other points I'd like to raise is on the delivery of documents. The electronic sending of documents highlights another query, being that, as the Migration Act already provides for the delivery of documents by email, fax and other electronic means, this would possibly cover documents via an online account. Under schedule 2 of this bill, the parliament can send these documents to a person through their online ImmiAccount. This is a tragedy just waiting to happen for so many vulnerable people who have come to us for help and for our compassion. This will also apply to minors. A document under this schedule of the bill can be sent to a person the minister 'reasonably believes' to be the carer of a minor. Again, this is a tragedy waiting to happen. You can imagine how many possible slip-ups and mistakes could be made through this process. You can imagine what boundaries will be put around who the minister 'reasonably believes' to be the carer of a minor. I don't want to put any trust into this system and into what the minister would believe is 'reasonable'. There have been so many mistakes and slip-ups, and then, of course, there has been the genuine, full-on cruelty, on behalf of this government, to those seeking asylum and seeking protection by this country. You will forgive us Greens for not trusting that this government would implement the 'reasonable' aspect of this legislation in any sensible way.

The final insult added to injury contained in this cruel and cold-hearted bill is that the government wants to be able to charge people it tries to send back to horrific situations that they have in fact fled. These are people who have come to Australia seeking asylum. The government wants to charge these people for having the door slammed in their face. To add insult to injury, here's the government saying, 'We're saying no. We're slamming the door in your face. We're treating you appallingly. And now, you can pay for it.'

We do not support measures that make life even harder for those seeking asylum. The Greens will not be supporting this bill in its current form, because it is just another version of the government's overreach and an attempt to demonise and humiliate innocent people who have dared to seek the safety and protection of this country. It is an attempt to demonise and humiliate people to whom we have already done so much harm. It is appalling.

The Greens have now, for an extremely long time, stood up for the most vulnerable members of our community and stood up for those seeking to be members of our community—those who have fled the oppression, violence and horrific situations that we have talked about in this chamber many times. We will not be supporting this bill in its current form because it's designed to make life even harder for those people seeking asylum. People will end up being pinged between countries, where we say, as a nation, 'It's not our problem,' and the other country says, 'It's not our problem.' It gives the lie to requiring that their removal must occur as soon as is reasonably practicable. It means that people, as we have seen, are condemned to years and years of being stateless, of not knowing their future, of not having a life, of not knowing what's happening to their family and, as Senator McKim just pointed out, of not even once being able to hug their child. Put yourself in those circumstances: of never having spent any time with your child, simply because you fled an unacceptable, horrific situation—a thing that I warrant that any member of this chamber would do if their families and their lives were at risk, and particularly if their families were at risk. I know personally that I would have done and would do anything to protect my family and my child. Put yourselves into the shoes of those who sometimes have had to make that horrific decision to leave other family members behind. They're still in that situation. They can't go back to their country of birth. Then they're stuck here in this country, being treated appallingly. We will stand against that every single time. We will not be supporting this bill in its current form.

1:29 pm

Photo of Louise PrattLouise Pratt (WA, Australian Labor Party, Shadow Minister for Environment and Water (Senate)) Share this | | Hansard source

This afternoon, as we discuss the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018, we are considering some reasonably simple and important amendments that the opposition supports. These include amendments to the Migration Act 1958, the Customs Act 1901 and the Passenger Movement Charge Collection Act 1978. I contend that while these amendments are important and rational, there is a great deal that is completely irrational and illogical going on within this government and within the Department of Home Affairs as it pertains to the management of both the Customs Act 1901 and the Migration Act 1958.

We've seen a Minister for Home Affairs who is woefully incompetent in his management of his portfolio responsibilities. I've seen this firsthand through my work on the Legal and Constitutional Affairs Committee, where we've done numerous inquiries into issues that pertain to removals, to offshore processing and to other matters within the Migration Act. The member for Dickson has been voted previously the worst health minister in living memory and now, as Minister for Home Affairs, he is clearly very much outdoing himself.

We seem to be able to deal with things like the details in the Migration Act and the Customs Act for the removal of noncitizens—simple legislative amendments like that. But there is something missing in action from this government and the minister; there is an endemic failure to negotiate other third-country resettlement options for the refugees on Manus Island and Nauru. We have haphazard management within this megadepartment. The minister's failings run deeply throughout this. We've seen a tick-and-flick approach to immigration, which has seen crisis after crisis and failure after failure.

One of the consistent complaints that I've heard, along with colleagues—and I know that this is something we experience in our electoral offices—is how visa-processing times within the Department of Home Affairs have completely blown out. I'm sure that members on the other side of this Senate are also receiving these complaints about processing times, which should be within this government's control.

For example, last year we saw processing times for 90 per cent of applications at 19 months. For the month ending 30 June this year the processing time for 90 per cent of applications for partner visas was 30 months. Just this week in the Legal and Constitutional Affairs References Committee we've been looking at domestic violence and abuse that's facilitated, frankly, through the visa application process. It was really quite confronting to see the disconnect between the department's lack of acknowledgement of the issue and the lack of effectiveness of that response up against the very real and traumatic experiences of people subject to this kind of abuse. It was really clear, for example, how a long visa-processing time could be used to do things like facilitate dowry abuse by a potential spouse. Essentially, that is extorting money from a spouse.

On the other side it also means that couples are waiting 2½ years, putting their lives on hold, for their partner's visa to be approved. Partner visas are just one of the many types of visas available in Australia. We have a real issue with visa processing times. We call on the government to do something about this and fix this growing backlog. But it's very hard to see how they will be able to fix this backlog with the kinds of morale and staffing issues that exist, both within Australian Border Force and the immigration department.

We've seen the minister beat his chest about cutting Australia's total migration program and the number of permanent migrants settling in Australia. Again, we have legislation here before us that amends the Migration Act, the Customs Act and the Passenger Movement Charge Collection Act but doesn't address the core issues of concern to our nation. They are worthy and important amendments in and of themselves, but this government time and time again fails to deal with the substantively important issues within immigration that should be dealt with. We still have vulnerable asylum seekers and children supposedly settled in Nauru but effectively detained there, who haven't yet had migration to America or other places offered to them, all of which is a sign of how long this government has taken to resolve our offshore processing issues.

In the last financial year we saw some 162,000 people granted permanent visas in Australia. That included those on skilled visas, who are absolutely keen to call this country home, and people who have been granted family reunion visas such as partner visas. In fact, when the government say they're cutting immigration numbers, in many cases these people are already in Australia on other kinds of visas, be they student visas, visitor visas or tourist visas. They might be here with a spouse. They might be here on holiday visas visiting their family. In fact, the population base is already here. The government talk about slashing migration numbers, but it's actually a completely false premise when, actually, the government have already granted visas to a great, great many of these people who are in Australia but have just not resolved their visa status, and that puts a great deal of hardship on Australian citizens and their families in managing these issues.

We've seen a reduction of 21,000 compared to previous years, and that was splashed as a so-called cut to Australia's permanent migration levels. But, just as I highlighted before, there were over 176,000 people on bridging visas—38,000 people more than compared with 30 June 2018. We know that bridging visas are just temporary. They allow people to stay in Australia after their current visas cease while they wait for their next visa applications to be processed or while they make arrangements to leave the country.

In speaking to this bill, we support the legislation but we note that there are great many significant issues in immigration, border protection and customs that this government is failing to resolve.

1:39 pm

Photo of Sarah Hanson-YoungSarah Hanson-Young (SA, Australian Greens) Share this | | Hansard source

I rise to speak on Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018, and, in doing so, also support the comments made by my colleagues who spoke before, Senator Siewert and Senator McKim. The Greens have some considerable concerns in relation to a number of the amendments that are designed to expand the application of the 'visa bar' under the Migration Act, and we've requested information from the minister in relation to this. In fact, we're hoping that we can have some honesty and transparency from the government in relation to this so that we can know with full confidence exactly what the consequences will be if and when this legislation passes. We know that, when the Parliamentary Joint Committee on Human Rights responded to this piece of legislation, they had concerns as well.

Firstly, we know that the bill seeks to clarify that, if a person is unsuccessfully removed from Australia under section 198, they do not require a visa to return. Secondly, the bill provides that, where a person leaves the migration zone but returns as the result of an unsuccessful section 198 removal, they will remain subject to a statutory bar against applying for further visas. Thirdly, our understanding of the bill is that it enables the department to deliver documents to a person through their online ImmiAccount and charge them for the so-called privilege. We really would like some of the implications of this bill to be clarified by the government before it passes into law. One of the reasons why clarification is important is that, when we're dealing with issues of immigration, when we're dealing with issues of whether a person is to be removed from Australia or not, it needs to be absolutely crystal clear what those conditions are and what those individuals have a right to. It does seem a little bit strange that we'd charge people for the privilege of the government wanting to remove them.

Section 42 of the Migration Act provides that a non-citizen must not travel to Australia without a visa that is in effect. A non-citizen who is in a migration zone without a valid visa will be deemed as an unlawful non-citizen. The act requires the removal from the migration zone of any non-citizen who does not hold a visa in effect and is unable to resolve their visa status. This bill, as we know, requires the removal to occur as soon as reasonably practicable. We need to be really clear about the conditions by which people can be removed—what the abilities are to understand personal and special circumstances. We don't just want to be giving more powers to the government to remove people without proper recourse. There are a variety of reasons why some people might not have the right visa or why a perceived visa breach has occurred. Also, there are some people who simply don't abide by the rules, and they, of course, should be dealt with properly. But you can't make everything more difficult for everyone simply because the government wants to look tough at the border for the sake of it. We need to make sure there is a proper process and understanding of how these new rules would be applied.

We have real concerns about the amendments relating to further visa applications. Under section 48 of the Migration Act a person is barred from applying for most visas if they are in the migration zone and do not hold a substantive visa—that is, if they're on a bridging visa. We know there are a variety of reasons that individuals are put on bridging visas, and bridging visas are, of course, a legitimate process for ensuring that we can resolve immigration matters and visa complications. They're a legitimate part of ensuring that we can resolve these issues without the expense and heartache of having to remove people unnecessarily. The bill amends sections 48 and 48A in line with its amendments to section 42, so when a person returns to Australia they'll be taken to have been continuously in the migration zone. This means that if prior to the person's removal they would have been barred from making a visa application under section 48, this will continue to be the case when they return to Australia.

The Parliamentary Joint Committee on Human Rights have raised concerns about this measure, which it noted will expand the circumstances in which the statutory visa bar applies.

We can't get into a situation where people aren't able to apply for the appropriate visa simply because the letter of the law hasn't taken into consideration all of the complexities that go along with people's lives—that just because somebody is on a bridging visa they are therefore barred from applying for another substantive visa along the way. We can't have people living in limbo or constantly in fear of removal.

The committee has suggested that the proposed amendments are not 'compatible with the right to liberty and right to an effective remedy, as well as with the obligation to consider the best interests of the child'. We need to understand that when we are making decisions about rules and procedures for how people's visas are granted or removed there is always an element of understanding that human life is complicated. You can't always have a black-and-wide process that everybody will be able to follow to the tee. Things happen. People end up in situations where relatives are sick or an accident happens or a baby is born or there is simply the complication of getting from one side of a country to another to the appropriate immigration office or consulate. There are a variety of reasons why we need to have some discretion to ensure that people aren't left without a choice because new rules barring certain visas have been put in place.

The committee also suggested:

… there is a risk that a person barred from applying for a new protection visa (for example) 'could be subject to immigration detention for an extended period given that an attempt to deport the person has already failed', or could be deported even if owed protection obligations.

If we haven't been able to deport somebody, because we owe them protection, the default position shouldn't be that they get locked up and punished in immigration detention. That is just ridiculous. We need to make sure that people who are owed protection have every opportunity to apply for the appropriate type of visa that would ensure Australia's obligations are invoked. Making it difficult, and near impossible, for them to apply for the appropriate visa, therefore saying they are unlawful and therefore can be removed, is setting people up to fail. The result will be that innocent people are kept in immigration detention indefinitely. We know all of the problems with immigration detention, not the least being that there is no judicial review. There is no ability for anyone to have their detention effectively challenged, looked at by an independent prosecutor or judge, and a decision made that those people perhaps should be allowed to live outside detention while their visa issues are resolved.

Of course, it's very expensive to keep people locked up in immigration detention simply because the bureaucracy made it too hard for everyone to understand what the situation was in order to ascertain what the appropriate visa application should have been. We know that a number of people kept in immigration detention here on the Australian mainland—we're not talking about people necessarily who arrived by boat in the past; we're talking also about people who have flown into this country on very legitimate visas—are people for whom, for whatever reason, it is now unsafe to return home. Those people deserve the right to have a proper process, a valid process, to apply for proper protection and to invoke Australia's obligations for protection. Punishing them by putting them in immigration detention, hoping that they would drop their plea for help, is just mean spirited and unnecessary.

There are many other issues in relation to this bill that the Greens have concerns about. It would be no surprise to anybody that when this government decides to 'get tough' at the border, whatever that means—we understand there are plenty of people here in Australia who have overstayed their visas. We don't hear the Prime Minister talking about those people. We constantly hear, when it comes to this debate, the beat-up and obsession with those who are the most vulnerable. They are individuals and their families who have fled war, torture and persecution, who are stateless and perhaps have no other option than to wait it out in Australia's awful, harsh immigration detention centres, hoping that one day there will be a change of heart or mind from this government.

It's no surprise that the Greens will not be supporting this legislation. While we're standing here today and debating this particular bill there are still children detained on Nauru, out of sight and out of mind. They're the same children who, when I was there five years ago, pleaded with me not to leave them living in limbo. Those children and their families deserve to have their suffering ended. They deserve to have Australia welcome them and give them an opportunity to rebuild their lives, and to get on with being productive members of our community. Those children have suffered enough under the hands of this hideous and cruel government.

There are other refugees on Nauru, of course, aside from children. Many of them are fathers whose children are here in Australia because they became sick. They became so sick and tortured by their experiences, of being locked up on that island prison, that they had to be sent back to Australia on the advice of doctors who said they simply could not spend one extra day on Nauru. These children are here in Australia but a number of fathers are left, separated from their families, on Nauru. It is just unnecessary brutality to see families split up in this manner. It's designed to make the suffering that much worse and even more damaging. It's designed to break the spirits of these very resilient and brave people who did what they needed to do to get their families out of some pretty hideous situations overseas, whether that be war in Syria, Iraq or Afghanistan or on the Afghan-Pakistan border. They could be Hazara families who lived through generations of persecution or young Tamil families who are Catholic and, as a result of being trained professionals in their homeland, were targeted by the current regime. These are individuals who deserve to have their suffering ended.

Of course, we cannot forget the men who are left on Manus Island. I had a message from a refugee on Manus Island, only last night, informing me that there had been two attempted suicides on the island yesterday. That is what we have done to these people. We have tortured them and been unnecessarily cruel and brutal, pushing them to a point of self-destruction, and their only way out is to end their own lives. These are individuals who fled war, torture and persecution. They came to Australia for our help, for our care and for our compassion, and we treated them appallingly, using them as political pawns. This government, day after day, is playing politics with the lives of these individuals. Day after day they are using these individuals as examples of how tough, apparently, this government is. I don't think it's very tough to beat up on some of the world's most vulnerable people. I don't think it's very tough to keep helpless, vulnerable refugees and children locked up on island prisons and used as an example to weaponise political strategy back here at home. The lives of these children have been destroyed because of the toxic politics of this government and the toxic politics and the internal machinations of the coalition.

Of course Scott Morrison may have shored up his leadership in the Liberal Party last night—change the rules once you're in, and lock it in. What does that say about how safe the Prime Minister must be feeling? He thought there was a reason to have an emergency meeting for his leadership, but he won't have an emergency meeting to get sick, suffering children off Nauru. That shows you everything you need to know about the priorities of this government and the priorities of this Prime Minister. He's more worried about his own job than he is about the vulnerable people that he sent to these island prisons in Manus and on Nauru. As we are debating this piece of legislation, when we're weighing up whether to give this government more power to just simply deny people visas or block them from being able to apply for the appropriate visa, we cannot forget that this is all in the context of the political scaremongering and manipulation of the lives of very real people—children and their families—who are left stranded on Nauru and on Manus Island.

To the men on Manus Island, who are suffering today as a result of two members of their group and their community who attempted suicide yesterday, I say please don't give up hope. There are plenty of decent Australians who know that what this government is doing is wrong. There are many decent Australians who want this policy to change. We have not given up. We will continue to fight for you. We will continue to fight for decency. We will continue to make sure that the stain that has been smeared on Australia's national identity will, at one point, be scrubbed, because we are a country of a fair go. We are a country that understands and celebrates diversity, opportunity and respect. The moment we can get rid of this government, we might be able to get on with putting a bit more decency and a bit more compassion back on the table. Please don't give up. Understand that there are people in this place, on all sides of politics, who know that this current regime is toxic. It's brutal and it's time it ended.

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

I will go to Senator Faruqi. The normal rule is to allow the Senate to continue a debate.

1:58 pm

Photo of Mehreen FaruqiMehreen Faruqi (NSW, Australian Greens) Share this | | Hansard source

I rise on behalf of the Greens to speak to the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018. I would like to associate myself with the comments made by my colleagues Senator Sarah Hanson-Young, Senator Nick McKim and Senator Rachel Siewert on this particular bill. We know that this bill will allow offshore processing—it is within the scope of this bill—and we know the horrendous outcomes of offshore processing on men, on women and on children. People are stuck there in those hellholes just because this government does not want people who look like them to come here to Australia, and this bill will allow that to continue.

I also want to raise some of the issues that the Parliamentary Joint Committee on Human Rights raised as concerns about this particular bill and which will expand the circumstances in which the statutory visa bar applies. This is really concerning. The committee queried— (Time expired)

Photo of Scott RyanScott Ryan (President) Share this | | Hansard source

Senator Faruqi, you will be in continuation when debate resumes.