Senate debates

Thursday, 6 December 2018

Business

Consideration of Legislation

2:35 pm

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

I seek leave to move that the consideration of this bill be not limited by time.

Leave not granted.

Pursuant to contingent notice, I move:

That so much of standing order 142 be suspended as would prevent further consideration of the Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018 without limitation of time.

As I said in my speech in the second reading stage, this is a bill that has been hijacked to do something that it was never intended to do. It was a housekeeping bill to clean up an oversight. It has now been turned into a weapon of political destruction. The price of that political destruction is the wellbeing of men, women and children on Nauru. For all the confected outrage about how concerned these people are who want to dismantle Australia's border protection system, the fact is that they are limiting debate in this place on a matter of life and death. They've left it to the last day in the parliament to guillotine a committee stage, a Senate inquiry. They truncated debate through the second reading debate—less than an hour. It's the death knell of this parliament and they're playing with people's lives. It is an appalling indictment of the processes and the sheer bastardry that is levelled by the use of numbers.

We know that when Labor and the Greens team up the consequences for Australia's border protection are catastrophic. We know that the price of that red-green alliance is people dying at sea. We know there are 50,000 people, legacy cases, that are testament to their failures. And now we're meant to believe that, somehow, this is not worthy of debate. The Australian people know that perhaps the greatest success of this government has been the continuation of the border protection policies. It has saved hundreds—nay, thousands—of lives. There is cavalier dismissal of those deaths at sea by people like Senator Hanson-Young, who say 'accidents happen; tragedies happen', as people are drowning at sea as a consequence of the policies that they want to reopen again. This is a shameful indictment on what is to come should a Shorten-Greens government be elected in Australia.

Senator Pratt interjecting

Even if you disagree with the policy position, the simple fact is that the sanctimonious and pious over on that side of the chamber refuse to allow debate. I note that Senator Pratt is interjecting as loudly as she possibly can, but she's had nothing to say about process. They've been hoisted on their own petard, because they've failed and mucked up the process at every single level, and now they start to complain and whinge because they're not getting what they want.

I will not have one bit of pious lecturing from those who have supported the hypocritical stance that you opposite are saving people from dying by opening Australia's borders. I'm standing up for Australia. I'm going to stand up for the people of Nauru. I'm going to stand up for the refugees—the genuine refugees—whilst you will stand up for any political act that will help entrench your power. What you're doing is diminishing the role of the Senate. You hijack an innocent bill, which was to clear up a very simple piece of administration, and you hoist your own ideological agenda on it. The price of that, that you're prepared to trade off, is the health and wellbeing of the little pawns in your political game, the people that are on Nauru as, I might add, you turn your backs on impoverished communities in this country. As you say, it's okay for the Indigenous people to live in abject poverty without appropriate medical care and without adequate schooling. You will not uphold the standards that you expect for the people on Nauru. The refugees on Nauru are in better conditions than our own populace are in some respects and still you remain silent. You think this is the most pressing issue for the people of Australia. That's how sadly out of touch you are.

It is an abuse of process that has taken place in this Senate. Not only are we not able to have a full debate and allow every senator to have their say on a very contentious and important piece of legislation or the amendments, but we're being expected to surrender the complete probity of process in the name of some fixation to score a cheap and petty political win. I will do what I can to deny you the ability to play games with people's lives on Nauru. I will not support you dismantling Australia's border protection system, because it is a great success of this government.

2:40 pm

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

The government will be supporting Senator Bernardi's proposed suspension motion. This is because what Labor and other non-government senators are seeking to do here is highly reckless and irresponsible, and Mr Shorten knows it's highly reckless and irresponsible.

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

Well, why didn't you organise the program properly?

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

Mr Shorten is not doing this because he thinks it's right.

Senator Kim Carr interjecting

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

Senator Carr, take a breath.

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

He is doing this because he's putting political tactics and political opportunism—

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

Senator Birmingham, on a point of order?

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Minister for Trade) Share this | | Hansard source

Mr President, could you please bring Senator Carr to order? It's clearly—

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

I'm doing my best without yelling. Senator Carr, take a breath. Senator Cormann.

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

Thank you very much, Mr President. I'm not concerned about Senator Carr. What this is all about is Bill Shorten demonstrating to the Australian people that he will, at any time, sacrifice Australia's national security on the altar of his political tactics and on his short-term, self-perceived political interests.

In pursuit of a little tactical victory, Bill Shorten is losing sight of what actually matters. What matters is that we maintain our strong border protection framework here in Australia. When we came into government, we inherited a mess at our borders from the Labor Party. We inherited chaos at our borders. More than a thousand people died at sea because of the mess that the Labor Party made with our border protection policy framework, and what Mr Shorten is signalling to the Australian people today is that he will go back to the failed and discredited policies that Labor pursued in the past. People across Australia cannot trust Mr Shorten with our national security. People across Australia cannot trust Mr Shorten with our community's safety, as they can't trust Mr Shorten with keeping the economy strong, creating more jobs and keeping the budget in surplus over the medium and long term.

A whole series of amendments to this bill have been circulated. This is a very important bill. There are many pages of amendments. Many of them are quite complex amendments, and I think a number of second reading amendments have been moved by senators asking, for example, for inquiry and report by the Parliamentary Joint Committee on Intelligence and Security to review the amendments that have been circulated so that we can actually make a decision in the full knowledge of the implications of voting for or against those amendments. There's been a second reading amendment moved that we should defer consideration of this bill until the Senate has received advice from the director-general of ASIO and from the Commissioner of the Australian Federal Police. Of course the Senate should do this. We should not be dealing with this government bill today until the proper work of the Senate and the proper consideration by the Senate have taken place.

Of course, Mr Shorten actually knows that this is a reckless move when it comes to our national security, but he's quite happy to sacrifice our border security. He's quite happy to sacrifice our strong border protection arrangements, including the offshore processing arrangements which were put in place as a late fix in the dying days of the last Labor government. The Rudd Labor government came into government in 2007, and we warned them: don't dismantle the Howard government's strong border protection policies—don't touch them. But, of course, they did. And do you know what happened? As we predicted, boatloads of illegal arrivals arrived on our shores and more than a thousand people died. There were 50,000 illegal arrivals on about 800 boats. That was the consequence. Of course, in the lead-up to the 2013 election, Mr Rudd was so embarrassed that he reintroduced offshore processing. He said that nobody on Manus Island would come to Australia under a Labor government. Of course, that is precisely what Labor is now supporting.

Opposition senators interjecting

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

Senator Seselja on a point of order.

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Treasury and Finance) Share this | | Hansard source

It's getting very difficult to hear. I would ask you to bring Senator Lines and, in particular, Senator Collins to order while the minister is speaking.

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

Quite right: I will ask senators for silence.

Photo of Zed SeseljaZed Seselja (ACT, Liberal Party, Assistant Minister for Treasury and Finance) Share this | | Hansard source

It is very, very difficult to actually hear what the minister is saying.

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

Thank you, Senator Seselja. Please resume your seat.

Opposition senators interjecting

If senators don't interject, there won't be points of order about noise.

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

Mr Rudd was so conscious that the Australian people were seriously upset with the mess that Labor had created on our borders, Labor were advertising to or supposedly targeting potential people smugglers and potential illegal immigrants in Australia about their strong offshore processing arrangements. That was in Australia, where there are apparently a lot of potential people smugglers and potential illegal arrivals.

The truth is that this is the beginning. This is Bill Shorten showing to the Australian people what he would do if he were elected at the next election. This is showing that he doesn't care about keeping Australia's border safe and secure. If given the opportunity, he would go back to the discredited and failed border protection policies of Labor in the past. Our very strong message to the Australian people is: don't risk it. And our very strong urging to the Senate is that this is a very sensible motion that has been moved by Senator Bernardi which deserves support. The Senate shouldn't become captive to Mr Shorten's tactical games that are putting our national security and our border protection arrangements at risk. These sorts of bills should be debated in the proper fashion, as they usually are, and that is what the Bernardi motion is seeking to achieve.

2:46 pm

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

I move:

That the question be now put.

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

The question is that the motion to suspend standing orders be now put.

2:54 pm

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

The question is Senator Bernardi's motion to suspend standing orders.

2:56 pm

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

Senator Hanson, are you raising a point of order?

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

No. I seek leave to move a motion to extend debate until five o'clock.

Leave not granted.

Pursuant to contingent notice, I move:

That so much of standing orders be suspended as would prevent further consideration of the bill until 5 pm.

Honourable senators interjecting

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

Order! If people would just be quiet and let the motion be read they would then have the chance to raise their points of order. Senator Abetz.

Photo of Eric AbetzEric Abetz (Tasmania, Liberal Party) Share this | | Hansard source

That is exactly my point of order. Given that this is a verbal motion being given to the Senate, it is vitally important that we all get to hear it.

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

I'm seeking leave to move a motion to extend debate until 5 pm.

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

Leave was not granted, so you're now moving—

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

I'm moving contingent notice that so much of standing orders be suspended as would prevent further consideration of the bill until 5 pm. I would like to make my comments here because this debate is being shut down in the chamber by people who—

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

Mr President, a point of order—

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

I've taken advice from the Clerk, Senator Wong. On the point of order, I'm happy to provide the advice I was just given by the Clerk. Do you wish to continue, Senator Hanson? Briefly, please, not a speech. Have you finished your notification to the Senate about what you're asking the Senate to vote on?

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

That I've asked for a contingent notice, yes.

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

Right. The point of order that was inevitably raised is: is this in order, given the Senate's previous vote? Firstly, this is not a contingent notice. This is a simple motion to suspend standing orders, according to my advice from the Clerk. The second matter, with respect to it being in order to move this motion given the previous vote of the Senate, is that this is, firstly, a different motion—it applies to the extension of time, not the deferral of a vote beyond the end of this parliamentary session. Secondly, when we dealt with the income tax bills following the budget and exactly the same thing happened, there were two opportunities for the Senate to consider alteration of the time-management motion that had previously been put in place. I give notice that this is the last time I will entertain a motion to change the time limitation, consistent with my rulings at that time. But this motion is now in order. Senator Hanson is free to speak for five minutes to the motion she has just moved.

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

Thank you very much, Mr President. I feel cheated, and so do the people of Australia, that they have not been able to have their voice heard in this place with regard to this. They're shutting down debate on this, which is such a very important issue. People stand up and talk about national security, but they're not prepared to actually debate it and talk about the issues that are happening. There are 483 unauthorised maritime arrivals on Nauru and a further 607 males on Manus Island. You are more concerned about the people over there then you are about the people here in Australia. I hear the debate in this place about the children. You're worried about children. I'm worried about children first, but would you please go and have an understanding of what's happening to the children in the Northern Territory with the sexual abuse that is happening to them—

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

Senator Bernardi, a point of order?

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

My point of order is that I'm finding it very difficult to hear Senator Hanson—I'm very close—because Senator Pratt is interjecting most loudly and rudely, and saying things that are almost unparliamentary, I would say.

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

Thank you, Senator Bernardi. Interjections are disorderly. For those concerned about time, I urge you to be quiet and there will be no more points of order about noise.

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

Thank you very much, Mr President. I'm glad you are really interested in what I have to say because every Australian should be. It annoys the heck out of me and a lot of Australian people that the Greens have more interest in what's happening around the world and in other countries than they do in the people here in Australia. As I have said, in the Northern Territory, you've got the sexual abuse of children, babies, and what is done about it? Is everyone screaming about that in this chamber? There's nothing. You're all quiet.

You're worried about these children over there. There are nine left there and you're worried about them. Do you know what they're doing? They're shopping for doctors. They get on Skype, they find a doctor that appeals to them and then they go to the judge at one o'clock in the morning. I say, 'What is happening to these people?' We don't even have that in Australia for the Australian people. They've got 61 doctors over there. There is one doctor to every eight refugees. I can't even get doctors out to rural and regional areas in Australia. We're providing that number of doctors at a cost of $450 million a year to the taxpayers?

These are not people who came here; these are people who have been denied coming here to Australia. Not only that but our obligation to them is on a welfare and medical basis. We have provided those. We have spent the taxpayers' dollars building a hospital wing on Nauru for these people. They had been taken to Taiwan. Some went while others refused to go there saying, 'We are coming to Australia because they are so soft over there.' Once they get to this country, they want to stay here.

You know what the Australian people tell me they get annoyed about? The Australian people are fed up with seeing refugees being given preference over Australians for hospitals, for housing, for welfare, for everything. The Australian people are fed up with it. They want to be looked after themselves. We are taxpaying Australians here and these people, who are economic refugees, have cost Australian taxpayers. They paid their way to get into this country.

This is about border protection. This is about looking after our borders. What did Kevin Rudd say? He confirmed that, if they are found to be genuine refugees, they will be resettled in Papua New Guinea. You're going to open up the floodgates. If you allow this to happen, you will open up the floodgates for more people to come here. There are 14,000 waiting in Indonesia to come here to Australia. I reiterate what I said: the Greens are absolutely disgusting and their attitude towards the Australian people is that they are more concerned about other people around the world. If that's your attitude then get out of this place because you don't deserve to be a representative of the Australian people. I believe that, if there are truly children in need of help, that help has been given to them by the 61 doctors there—more help than we give to Australian citizens.

I say to the people here: you are representatives of the people of Australia first and foremost. Don't try and be the representatives for the world. Look after your own people here. That's all they're crying out for. Understand their needs and concerns, get them medical assistance and get doctors to rural and regional Australia because that is where we need the help and assistance and stop worrying about everyone around the world. Clean up our own backyard first. That's what the Australian people want: to clean up our own backyard first.

3:04 pm

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

There is no doubt the Senate should be spending more time dealing with what is a very important piece of legislation, in particular, given how many amendments have been circulated. The amendments that have been circulated by Senator McKim and Senator Storer present a very serious risk to the integrity of our border protection policy framework. They present a serious risk in that they undermine the effective operation of our offshore processing arrangements. One of the central foundations of our successful efforts to stop the boats, which flooded Australia during the last Labor government, was a three-pronged policy framework. The first part was to turn boats around when it was safe to do so, which was something that former Prime Minister Kevin Rudd said could not be done, but, of course, it was done. And it was done under the leadership of none other than our Prime Minister, Scott Morrison. Our Prime Minister, Scott Morrison, is the one who actually cleaned up the mess left behind by two successive Labor governments, with the very active and outstanding support of none other than Senator Jim Molan, who provided significant advice to Mr Morrison in opposition and subsequent to coming into government. So the first part was to turn the boats around when it was safe to do so. The second part was temporary protection visas, and the third was offshore processing arrangements.

Under Labor, 800 boats arrived here illegally with more than 50,000 illegal boat arrivals and more than 1,000 people drowned at sea. Labor is now attaching themselves to a Greens motion, moved by Senator McKim of all people. If Senator McKim is going to be writing the national security policies of the Leader of the Opposition—who wants the Australian people to believe that he is the alternative Prime Minister of Australia—I say to the Australian people: 'Don't risk it. You don't want your Prime Minister to be somebody who is prepared to have his border security policies written by Senator McKim.' You could have knocked me over with a feather when I was advised that Labor had decided—

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

A pretty big stick or a pretty big feather?

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

I'm going to resist the interjection because otherwise there will be points of order and you'll be blaming me for playing for time. I wouldn't want you to think that somehow I'm not interested in the efficient—

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

Order! Senator Macdonald, on a point of order.

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party) Share this | | Hansard source

Mr President, it's people who are not even in the chamber who are interjecting, which is very disorderly. They're people who have been around for a while, and they should know better, so I ask you to call them to order. I'm sorry to interrupt my leader.

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

Quite right. There should be no interjections at all, especially from outside the floor of the chamber.

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

My initial assessment was there's no way Mr Shorten would want to be part of a Greens initiated amendment to our offshore processing arrangement but, knock me dead, he is. He is allowing the Greens to write his border protection policy. What I say to the Australian people is: if you don't want to see a return to drownings at sea, if you don't want to see a return of the people smugglers, if you don't want to see the people smugglers get back into business and send illegal boat arrivals to Australia, then don't elect Mr Shorten. His behaviour here today shows to everyone who cares about our border protection arrangements what Mr Shorten would do as Prime Minister. Of course, last time Labor was in government—

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

Senator Macdonald, on a point of order.

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party) Share this | | Hansard source

I'm sorry to interrupt my leader, but there seems to be another meeting happening in the chamber. There's this meeting here in the chamber, and there seems to be a meeting of several senators up there. They can go outside.

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

Senator Macdonald, by convention, senators are allowed to consult with advisers at the advisors box. There is no noise coming from that corner. I think it's being conducted in an orderly fashion.

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

The final point I would make is that, when Labor and the Greens last changed our border protection policies, do you know what happened? We had illegal boat arrivals as far south as Geraldton in Western Australia. The people who were sitting in the Dome Cafe in Geraldton could have been knocked over with a feather too. There was a boat coming over the horizon with illegal boat arrivals. That was the outcome of the last time Labor joined with the Greens to fiddle with our border protection policy framework. Don't do it. Our message to the Labor Party is: 'Don't do it. You don't know how to protect our country. Let us do it. Just accept that our policy framework works'—

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

Senator Bernardi, on a point of order.

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

After your rulings about interjections being disorderly, the only thing I can hear is Senator Whish-Wilson and maybe Senator Cameron interjecting. I'm not sure. It's so noisy I can't hear Senator Cormann.

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

To be fair to Senator Cameron, I don't think he's in the chamber. Oh, he is. I again remind senators—particularly those concerned about time—the fewer interjections, the fewer points of order. Senator Cormann.

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

I would have thought the Labor Party would have learned, if they want to keep our country safe, to keep our policies in place and not to fiddle with our border protection framework by joining in with the Greens as they are again doing today. That's what they did last time, and look at the chaos that created, including more than a thousand people dead at sea. Surely you don't want to go back there. Don't do it. If you do do it, I say to the Australian people: don't vote in the Labor Party at the next election. Don't do it.

3:10 pm

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

I move:

That the motion be now put.

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

The question is that the motion to suspend standing orders, moved by Senator Hanson, be now put.

3:17 pm

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

I will immediately put the motion to suspend standing orders, moved by Senator Hanson. The question is that the motion to suspend standing orders, moved by Senator Hanson, be agreed to.

3:20 pm

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

Senators, please remain in the chamber. There will be divisions, and I will be ringing the bells for one minute. I will entertain no further motions to change the time limitation under standing order 142, as the Senate has now expressed its will to deal with these bills. The question now is that the bill be read a second time.

3:24 pm

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

The Senate will now consider amendments. We will commence with amendments on sheet 8619, circulated by Senator Storer and the Australian Greens. The first question I need to put addresses amendments circulated by the government to those amendments. Senator Bernardi, on a point of order.

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

These amendments relate to this bill. They should be dealt with separately because they address different substantive issues in relation to home affairs and border protection, so I would request that each of these amendments be put separately.

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

Senator Wong, on a point of order?

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

Enough of the time wasting. The only basis on which that should be requested in these circumstances is if a senator indicates they are going to vote differently on any amendment, so I invite any senator who wants to do that to indicate so now.

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

Senator Bernardi, on the point of order?

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

Firstly, no senator should be bullied in this place by a hectoring Leader of the Opposition in the Senate. Secondly—

Honourable senators interjecting

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

Order! This is not a time for debate.

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

I'm quite happy to indicate that I intend to vote differently in accordance with some of these amendments.

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

The Senate has expressed its will to have these matters dealt with, so the amendments have been grouped accordingly and in line with precedent on these matters. The first issue, however, we will be dealing with is actually the amendments to the amendments moved by Senator Storer and the Australian Greens on sheets LX140 and LX141, which are the two amendments moved by the government. So we are actually dealing with LX140 and LX141. Do you intend to vote differently on those, Senator Bernardi?

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

Indeed, I do.

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

In that case, I will have to put them separately.

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

Can we clarify which ones he intends to vote differently on?

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

For the clarity of the chamber, I'm actually treating the amendments as sheets, so I will be putting sheet LX140 separately to sheet LX141. The question is that the amendments on sheet LX140 to the amendments moved by Senator Storer and the Australian Greens on sheet 8619 be agreed to.

3:28 pm

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

(In division) Senators are moving whilst a division is being counted. I'd ask them to return to the side of the chamber on which they were. I know they deliberately sat there to waste time. What a travesty! Mr President, they ought not be allowed to move. These Liberal senators deliberately did this.

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

Senator Wong, resume your seat. I had not concluded calling the division and asking senators to take their seats. If people want me to apply that rule strictly, there would have been quite a few people caught out in the last hour and a half. I had not concluded calling that division. Senator Macdonald, on a point of order?

Photo of Ian MacdonaldIan Macdonald (Queensland, Liberal Party) Share this | | Hansard source

Mr President, again you are making a ruling and the Leader of the Opposition in the Senate is shouting, turning her back to you and doing her normal theatrics. It's just bad manners as well as a breach of the standing orders.

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

The standing orders don't have manners in them; that might be an amendment we consider!

I will now put the amendments on sheet LX141 moved by the government to the amendments moved by Senator Storer and the Greens.

Government's circulated amendments—

(1) After proposed subsection 198C(5), insert:

(5A) An officer must not bring a person to Australia from a regional processing country in accordance with subsections (3) to (5) if the officer knows or reasonably suspects that the person has a substantial criminal record as defined in s 501(7).

The question is the amendments on sheet LX141 be agreed to.

3:34 pm

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

The question now is that the amendments on sheet 8619, circulated in the names of Senator Storer and Senator McKim, be agreed to.

Senator Storer and Senator McKim's circulated amendments—

(1) Clause 2, page 2 (at the end of the table), add:

[transitory persons]

(2) Page 10 (after line 13), at the end of the Bill, add:

Schedule 6—Transitory persons

Migration Act 1958

1 Subsection 5(1)

Insert:

legacy minor has the meaning given by subsection 198D(1).

relevant transitory person has the meaning given by subsection 198E(2).

treating doctor has the meaning given by subsection 198E(7).

2 Paragraph 42(2A) (ca)

Omit "section 198B", substitute "section 198B or 198C".

3 At the end of section 198B

Add:

(4) Without limiting the generality of subsection (1), a temporary purpose may include:

(a) medical or psychiatric assessment or treatment; or

(b) accompanying a person who has or will be brought to Australia in accordance with subsection (1) or section 198C, if that person is a member of the same family unit or if recommended by a medical practitioner.

4 After section 198B

Insert:

198C Transfer of legacy minors, relevant transitory persons and family members for medical treatment

Transfer of legacy minors

(1) If the Minister approves the transfer of a legacy minor to Australia under section 198D, an officer must, as soon as practicable, bring the legacy minor to Australia for the temporary purpose of medical or psychiatric assessment or treatment.

Note: For legacy minor, see subsection 198D(1).

Transfer of relevant transitory persons

(2) If the Minister approves the transfer of a relevant transitory person to Australia under section 198E or 198F, an officer must, as soon as practicable, bring the person to Australia for the temporary purpose of medical or psychiatric assessment or treatment.

Note: For relevant transitory person, see subsection 198E(2).

Transfer of family unit etc.

(3) If an officer knows or reasonably suspects that a transitory person in a regional processing country is a member of the same family unit as another transitory person (the relevant transferee) who is being brought to or is in Australia for a temporary purpose, and the Minister has approved the transitory person's transfer under section 198G, the officer must, for the temporary purpose referred to in paragraph 198B(4) (b), bring the transitory person to Australia at the same time as, or as soon as practicable after, the relevant transferee.

(4) If an officer knows or reasonably suspects that a transitory person in a regional processing country has been recommended by a treating doctor to accompany another transitory person (the relevant transferee) who is being brought to or is in Australia for a temporary purpose, and the Minister has approved the person's transfer under section 198G, the officer must, for the temporary purpose referred to in paragraph 198B(4) (b), bring the transitory person to Australia at the same time as, or as soon as practicable after, the relevant transferee.

(5) If an officer knows or reasonably suspects that a transitory person in a regional processing country is a member of the same family unit as a minor who is in Australia, and the Minister has approved the person's transfer under section 198G, the officer must, for a temporary purpose, bring the transitory person to Australia.

Miscellaneous

(6) Nothing in this section shall affect the operation of section 198B.

(7) An officer must not bring a person to Australia from a regional processing country in accordance with subsection (1), (3), (4) or (5) while the person does not consent to being brought to Australia.

198D Minister ' s approval to bring legacy minors to Australia

(1) As soon as practicable after this section commences, the Secretary must:

(a) identify each transitory person who, on the day this section commences, is both in a regional processing country and aged under 18 (a legacy minor); and

(b) notify the Minister that each such person is a legacy minor.

(2) Within 24 hours of being notified that a person is a legacy minor, the Minister must approve, or refuse to approve, the person's transfer to Australia.

(3) The Minister must approve the person's transfer to Australia unless the Minister reasonably believes that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act.

(4) For the purposes of subsection (3), the Minister must also have regard to the best interests of the person.

(5) If the Minister does not make a decision under subsection (2) within the time required by the subsection, the Minister is, at the end of the time, taken to have approved the person's transfer under the subsection.

(6) The Minister's powers under this section may only be exercised by the Minister personally.

(7) The regulations may prescribe processes to be complied with in relation to the exercise of the Minister's powers under this section.

198E Minister ' s approval to bring relevant transitory persons to Australia

(1) If 2 or more treating doctors for a transitory person who is in a regional processing country have notified the Secretary that the person is a relevant transitory person, the Secretary must notify the Minister as soon as practicable.

(2) A person is a relevant transitory person if, in the opinion of a treating doctor for the person:

(a) the person requires medical or psychiatric assessment or treatment; and

(b) the person is not receiving appropriate medical or psychiatric assessment or treatment in the regional processing country; and

(c) it is necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment.

(3) Within 24 hours of being notified by the Secretary that a person is a relevant transitory person, the Minister must approve, or refuse to approve, the person's transfer to Australia.

(4) The Minister must approve the person's transfer to Australia unless:

(a) the Minister reasonably believes that it is not necessary to remove the person from a regional processing country for appropriate medical or psychiatric assessment or treatment; or

(b) the Minister reasonably believes that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act.

(5) If the Minister does not make a decision under subsection (3) within the time required by the subsection, the Minister is, at the end of the time, taken to have approved the person's transfer under the subsection.

(6) The Minister's powers under this section may only be exercised by the Minister personally.

(7) A medical practitioner is a treating doctor for a transitory person if the medical practitioner:

(a) is registered or licensed to provide medical or psychiatric services in a regional processing country or in Australia; and

(b) has assessed the transitory person either remotely or in person.

(8) The regulations may prescribe processes to be complied with in relation to the exercise of the Minister's powers under this section.

198F Review by Independent Health Advice Panel of refusal on ground that transfer is not medically necessary

(1) If the Minister refuses to approve a relevant transitory person's transfer to Australia on the ground set out in paragraph 198E(4) (a), the Minister must notify the Independent Health Advice Panel established by section 199A (the panel) as soon as practicable.

Note: The ground set out in paragraph 198E(4) (a) is that the Minister reasonably believes that it is not necessary to transfer the person to Australia for appropriate medical or psychiatric assessment or treatment.

(2) Within 24 hours of being notified by the Minister, the panel must:

(a) conduct a further clinical assessment of the person (whether in person or remotely); and

(b) inform the Minister of the findings of that assessment, including its recommendation that:

  (i) the decision to refuse the person's transfer be confirmed; or

  (ii) the person's transfer be approved.

(3) If the panel does not inform the Minister of its recommendation under subsection (2) within the time required by the subsection, the panel is, at the end of that time, taken to have recommended that the person's transfer be approved and informed the Minister accordingly.

(4) Within 24 hours of being informed by the panel of its findings and recommendation, the Minister must reconsider the decision to refuse to approve the person's transfer and either:

(a) confirm the decision to refuse; or

(b) approve the person's transfer.

(5) If the panel recommends that the person's transfer be approved, the Minister must approve the person's transfer to Australia unless the Minister reasonably believes that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act.

(6) If the Minister does not make a decision under subsection (4) within the time required by the subsection, the Minister is, at the end of the time, taken to have approved the person's transfer under the subsection.

(7) The Minister's powers under this section may only be exercised by the Minister personally.

(8) A recommendation made by the panel for the purposes of this section must be agreed to by a majority of the panel's members.

(9) The regulations may prescribe processes in relation to the exercise of the Minister's powers under this section.

198G Minister ' s approval to bring members of family unit etc. to Australia

(1) An officer must inform the Minister as soon as practicable if the officer has knowledge or reasonable suspicion in relation to a person as mentioned in subsection 198C(3), (4) or (5).

(2) Within 24 hours of being informed by an officer under subsection (1), the Minister must approve, or refuse to approve, the person's transfer to Australia.

(3) The Minister must approve the person's transfer to Australia unless the Minister reasonably believes that the transfer of the person to Australia would be prejudicial to security within the meaning of the Australian Security Intelligence Organisation Act 1979, including because an adverse security assessment in respect of the person is in force under that Act.

(4) For the purposes of subsection (3), the Minister must also have regard to the best interests of the person.

(5) In deciding whether to approve or refuse to approve the person's transfer, the Minister must have regard to the best interests of the relevant transferee or minor mentioned in the applicable subsection of section 198C.

(6) The regulations may prescribe processes to be complied with in relation to the exercise of the Minister's powers under this section.

198H AAT review of decisions

Applications may be made to the Administrative Appeals Tribunal for review of decisions of the Minister under subsection 198E(3) to refuse to approve a relevant transitory person's transfer to Australia (other than on the ground set out in paragraph 198E(4) (b)).

198J Tabling of information relating to refusal to approve transitory person ' s transfer

(1) This section applies in relation to a decision under section 198D, 198E (other than a decision on the ground set out in paragraph 198E(4) (a)) or 198G to refuse to approve a person's transfer to Australia.

(2) The Minister must cause a refusal statement to be laid before each House of the Parliament within 3 sitting days of that House after the day the Minister makes the decision.

(3) In this section:

refusal statement means a statement of reasons as to why the Minister made the decision.

(4) A refusal statement tabled in accordance with subsection (3) must not include:

(a) the name of the person; or

(b) any information that may identify the person; or

(c) the name of any other person connected in any way with any person covered by paragraph (a); or

(d) any information that may identify that other person.

5 At the end of Division 8 of Part 2

Add:

Subdivision D—Independent Health Advice Panel

199A Independent Health Advice Panel

(1) The Independent Health Advice Panel (the panel) is established by this section.

(2) The objective of the panel is to monitor, assess and report on the physical and mental health of transitory persons who are in regional processing countries and the standard of health services provided to them.

199B Membership and appointment

(1) The panel consists of:

(a) the person occupying the positions of Chief Medical Officer of the Department and the Surgeon-General of the Australian Border Force;

(b) the person occupying the position of Commonwealth Chief Medical Officer; and

(c) not less than 6 other members, including:

  (i) at least one person nominated by the President of the Australian Medical Association;

  (ii) at least one person nominated by the Royal Australian and New Zealand College of Psychiatrists;

  (iii) at least one person nominated by the Royal Australasian College of Physicians; and

  (iv) at least one person who has expertise in paediatric health.

(2) Other than the persons mentioned in paragraphs (1) (a) and (b), each member of the panel is to be appointed by the Minister by written instrument for a minimum term of 3 years.

(3) The Minister must not appoint a person as a member of the panel unless the Minister is satisfied that the person:

(a) has expertise in one or more of the following:

  (i) the medical profession;

  (ii) mental health;

  (iii) public health;

  (iv) paediatric health; and

(b) has been nominated by one or more of the following bodies:

  (i) the Australian Medical Association;

  (ii) the Royal Australian and New Zealand College of Psychiatrists;

  (iii) the Royal Australasian College of Physicians;

  (iv) the Australian Psychological Society;

  (v) an Australian professional body prescribed by the regulations.

199C Performance of panel ' s functions

(1) Subject to this section, the panel is to carry out its functions in such manner as the panel determines.

(2) In performing its monitoring and assessment functions, the panel may:

(a) assign different members of the panel to monitor and assess the health of transitory persons in different regional processing countries; and

(b) travel to regional processing countries to conduct monitoring and assessment activities; and

(c) assess whether initial assessments of transitory persons on arrival in a regional processing country are adequate; and

(d) assess the adequacy of health services and support provided to transitory persons in regional processing countries; and

(e) monitor a transitory person's health on an ongoing basis for as long as the transitory person remains in a regional processing country; and

(f) adjudicate between treating doctors if there are differing clinical assessments and recommended treatment options.

(3) The panel may, at any time it considers appropriate, make recommendations to the Minister in respect of the health of transitory persons who have been taken to regional processing countries, including recommendations relating to:

(a) the treatment of individual transitory persons; and

(b) the treatment of a cohort of transitory persons in regional processing countries; and

(c) medical processes and procedures for managing the treatment of a cohort of transitory persons in regional processing countries.

199D Power to obtain information and documents

(1) If the panel has reason to believe that:

(a) a Department of the Commonwealth or a prescribed authority (a relevantagency); or

(b) a person who is engaged as a consultant or independent contractor by a relevant agency;

is capable of giving information or producing documents or other records relevant to the panel's performance of its functions, the panel may, by notice in writing given to the head of the agency, require the head of the agency or a person nominated by the head of the agency, to give the information or produce the document or other record to the panel.

(2) The panel may specify in a notice given under subsection (1) the place where, or date or time when the information must be given or the document or other record produced.

(3) The Secretary must provide appropriate assistance to the panel for the purpose of ensuring the panel performs its functions and exercises its powers.

(4) Without limiting subsection (3), assistance provided by the Secretary may include:

(a) allowing the panel appropriate access to records, documents or information relating to the health of transitory persons who are in regional processing countries; and

(b) ensuring the panel has appropriate administrative support and assistance to perform its functions.

199E Reporting

(1) The panel must, as soon as practicable after 31 March, 30 June, 30 September and 31 December in each year, prepare and give to the Minister a report on its operations during the 3-month period that ended on that day.

(2) The Minister must cause a summary of each report to be laid before each House of the Parliament within 3 sitting days of that House after the report is given to the Minister.

(3) A summary report mentioned in subsection (2) must not include any information that may identify a transitory person.

(4) A summary report mentioned in subsection (2) must provide information about the number of transitory persons who have been brought to Australia under sections 198B and 198C in the relevant 3-month period.

(5) The Minister must prepare a response to any report provided in accordance with subsection (1).

(6) The Minister must cause the response to be laid before each House of Parliament within 3 sitting days of that House after the summary report mentioned in subsection (2) was laid before that House.

(7) A report provided to the Minister under subsection (1), and a summary report laid before a House of Parliament under subsection (2) must include a statement on the timeliness of the provision of information and assistance under section 199D.

(8) Notwithstanding subsection (1), the panel must produce its first report as soon as practicable after the commencement of this Subdivision.

(9) The first report of the panel is to consist of an assessment of:

(a) the physical and mental health conditions of transitory persons in regional processing countries; and

(b) the standards of health services provided to transitory persons in regional processing countries.

6 Subsection 474(4) (before table item 1)

Insert:

7 Subsection 499(1)

After "this Act", insert "(other than the panel established under section 199A)".

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

Once again, Mr President, I seek that you put these amendments separately. I'd be happy to run through the reason why we should deal with them individually.

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

No. There's no time for debate, Senator Bernardi. Do you intend to vote separately on amendments (1) and (2) on that sheet?

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

I intend to vote differently on all the amendments as far as I possibly can.

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

Senator Bernardi, are you asking for amendments (1) and (2) on sheet 8619 to be put separately.

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

Yes, indeed, on sheet 8619, but I want to deal with JC580, JC575, JC5—

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

We'll deal with that next. I'm going to deal with 8619. The question now is that amendment (1) on sheet 8619 be agreed to.

3:39 pm

Photo of Derryn HinchDerryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | | Hansard source

On that mistake: with respect, earlier this afternoon you did the same thing, called a 32-30 affirmative in the negative. It was about an hour ago.

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

It will be corrected in the Journals

Photo of Derryn HinchDerryn Hinch (Victoria, Derryn Hinch's Justice Party) Share this | | Hansard source

It was when I tried to stand in the wrong place.

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

It will be corrected in the Journals. Thank you. I will endeavour not to make the mistake again. The question is now that amendment (2) on sheet 8619 be agreed to. I've been asked by the whips—

Senator Jacinta Collins interjecting

Senator Collins, do you want to be quiet for a moment while I actually chair the chamber? Senator Cormann?

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

I've sat in this chamber for very lengthy debates without toilet breaks with a number of colleagues on both sides, and I think we should accommodate people.

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

I'm going to ring the bells for four minutes on that basis—to give people who've been here for the last two hours an opportunity. The question is that amendment (2) on sheet 8619 in the names of Senators Storer and McKim be agreed to.

3:46 pm

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

The question now is that the amendments on sheets JC580, JC574, JC575, JC576, JC577, JC578 and JC579, circulated by the government, be agreed to. Senator Bernardi.

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

Mr President, as these amendments deal with different substantive issues in relation to home affairs and border protection, I request that they be put individually.

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

Are you indicating that you're voting separately on the amendments, Senator Bernardi?

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

Indeed I am.

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

Senator McKim, on a point of order?

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

Mr President, you just read through a number of amendments. My point of order is: could Senator Bernardi confirm that he will be voting differently on all of them, and whether or not there is any opportunity to form a subgroup of those amendments so that we can vote on some of them together.

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

I would love to form a subcommittee and discuss this further, and reconsider it in the new year! As it stands, I'd love to run through them.

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

No, Senator Bernardi, this is not a chance for debate.

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

Sheet JC580 relates to the commencement—

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

Senator Bernardi, please resume your seat. Senator McKim, I take senators' requests at face value on this. Senators who do not reflect different votes will be considered out of order, and I will treat subsequent requests through that prism. So far today, when people have made the requests, different votes have been recorded. I will put the amendments on sheet JC580, moved in the name of the government:

Government's circulated amendments

(1) Clause 2, page 1 (line 8) to page 2 (line 7), omit the clause, substitute:

2 Commencement

(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

[commencement]

The question is that the amendments on sheet JC580 be agreed to.

3:51 pm

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

I will put the amendments on sheet JC574:

Government's circulated amendments—

(1) Page 10 (after line 13), at the end of the Bill, add:

Schedule 6—Prohibiting Items in Immigration Detention Facilities

Migration Act 1958

1 Subsection 5(1)

Insert:

immigration detention facility has the meaning given by section 251A.

prohibited thing has the meaning given by section 251A.

2 After section 251

Insert:

251A Search of detainees etc.—prohibited things in immigration detention facilities

(1) A thing is a prohibited thing in relation to a person in detention, or in relation to an immigration detention facility, if:

(a) both:

  (i) possession of the thing is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained, or in which the facility is located; and

  (ii) the thing is determined under paragraph (2) (a); or

(b) the thing is determined under paragraph (2) (b).

(2) The Minister may, by legislative instrument, determine a thing for the purposes of subsection (1) if the Minister is satisfied that:

(a) possession of the thing is prohibited by law in a place or places in Australia; or

(b) possession or use of the thing in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.

Note: Examples of things that might be considered to pose a risk mentioned in paragraph (b) are as follows:

(a) mobile phones;

(b) SIM cards;

(c) computers and other electronic devices, such as tablets;

(d) medications or health care supplements, in specified circumstances;

(e) publications or other material that could incite violence, racism or hatred.

(3) An immigration detention facility is:

(a) a detention centre established under this Act (see section 273); or

(b) another place approved by the Minister in writing for the purposes of subparagraph (b) (v) of the definition of immigration detention in subsection 5(1).

3 Section 252 (heading)

Repeal the heading, substitute:

252 Searches of detainees and non -citizens in immigration clearance—general powers

4 At the end of subsection 252(2)

Add:

; (c) for a search under paragraph (1) (a)—in addition to the purposes mentioned in paragraphs (a) and (b) of this subsection, to find out whether a prohibited thing, other than a prohibited thing to which paragraph (a) or (b) applies, is hidden on the person, in the clothing or in the property.

5 Subsection 252(4)

Omit ", or a document or other thing referred to in paragraph (2) (b),", substitute ", a document or other thing referred to in paragraph (2) (b), or a prohibited thing determined under paragraph 251A(2) (a),".

6 Paragraphs 252(4 ) ( a) and (b)

Omit "other".

7 At the end of subsection 252(4)

Add:

Note: A prohibited thing determined under paragraph 251A(2) (a) that is found in the course of a search of a person who is detained is a thing the possession of which is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained (see section 251A).

8 After subsection 252(4)

Insert:

(4A) If, in the course of a search in relation to a detained person under this section, an authorised officer finds a prohibited thing determined under paragraph 251A(2) (b), the officer:

(a) may take possession of it; and

(b) may retain it; and

(c) must, if it appears that the thing is owned or was controlled by a detainee, take all reasonable steps to return it to the detainee when he or she ceases to be in detention; and

(d) must, if it appears that the thing is owned or was controlled by a person other than a detainee, take all reasonable steps to return it to the person.

Note: Paragraph 251A(2) (b) covers the determination of a thing as a prohibited thing if the Minister is satisfied that its possession or use in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.

(4B) However, if an authorised officer retains a prohibited thing under paragraph (4A) (b), after taking all reasonable steps to return the thing under paragraph (4A) (c) or (d), it is forfeited to the Commonwealth if the officer considers on reasonable grounds that:

(a) its owner or the person who last controlled the thing cannot be identified; or

(b) the thing is abandoned; or

(c) if it appears that the thing is owned or was controlled by a detainee—the thing cannot be returned to the detainee when he or she ceases to be in detention; or

(d) if it appears that the thing is owned or was controlled by a person other than a detainee—the thing cannot be returned to the person.

(4C) If a prohibited thing is forfeited under subsection (4B), the authorised officer may dispose of it in any way he or she thinks appropriate.

9 Subsection 252(9)

Repeal the subsection, substitute:

(9) To avoid doubt, a search of a person may be conducted under this section irrespective of whether powers are exercised under any of the following sections in relation to the person, or an immigration detention facility:

(a) section 252AA (searches of detainees—screening procedures);

(b) section 252A (searches of detainees—strip searches);

(c) section 252BA (searches of certain immigration detention facilities—general).

10 Section 252AA (heading)

Repeal the heading, substitute:

252AA Searches of detainees—screening procedures

11 Subsection 252AA(1)

Omit all the words after "a thing in his or her", substitute:

possession:

(a) a weapon, or other thing, capable of being used:

  (i) to inflict bodily injury; or

  (ii) to help the detainee, or any other detainee, to escape from immigration detention; or

(b) a prohibited thing, other than a weapon or other thing to which paragraph (a) applies.

12 After subsection 252AA(3)

Insert:

(3A) If an authorised officer uses a dog in conducting a screening procedure under this section, the officer must:

(a) take all reasonable precautions to prevent the dog touching any person (other than the officer); and

(b) keep the dog under control while conducting the screening procedure.

(3AA) If an authorised officer uses a dog in accordance with subsection (3A) in conducting a screening procedure under this section, that use of the dog is not unlawful only because of the behaviour of the dog (including the touching of any person by the dog).

13 Subsection 252AA(4)

Repeal the subsection, substitute:

(4) To avoid doubt, a screening procedure in relation to a detainee may be conducted under this section irrespective of whether powers are exercised under any of the following sections in relation to the detainee, or an immigration detention facility:

(a) section 252 (searches of detainees and non-citizens in immigration clearance—general powers);

(b) section 252A (searches of detainees—strip searches);

(c) section 252BA (searches of certain immigration detention facilities—general).

14 Subsection 252AA(5) (at the end of the definition of conducting a screening procedure )

Add:

; or (d) using a dog to search a detainee or things in the detainee's possession.

15 Section 252A (heading)

Repeal the heading, substitute:

252A Searches of detainees—strip searches

16 Subsection 252A(1)

Omit all the words (including the note) after "a thing in his or her", substitute:

possession:

(a) a weapon, or other thing, capable of being used:

  (i) to inflict bodily injury; or

  (ii) to help the detainee, or any other detainee, to escape from immigration detention; or

(b) a prohibited thing, other than a weapon or other thing to which paragraph (a) applies.

Note: Section 252B sets out rules for conducting a strip search under this section.

17 Paragraph 252A(3 ) ( a)

After "subsection (1)", insert "(including a prohibited thing)".

18 Subsection 252A(7)

Repeal the subsection, substitute:

(7) To avoid doubt, a strip search of a detainee may be conducted under this section irrespective of whether powers are exercised under any of the following sections in relation to the detainee, or an immigration detention facility:

(a) section 252 (searches of detainees and non-citizens in immigration clearance—general powers);

(b) section 252AA (searches of detainees—screening procedures);

(c) section 252BA (searches of certain immigration detention facilities—general).

19 Section 252B (heading)

Repeal the heading, substitute:

252B Searches of detainees—rules for conducting a strip search

20 Paragraph 252B(1 ) ( j)

After "subsection 252A(1)", insert "(including a prohibited thing)".

21 After section 252B

Insert:

252BA Searches of certain immigration detention facilities—general

Power to search

(1) For the purposes set out in subsection (2), an authorised officer may, without warrant, conduct a search of an immigration detention facility operated by or on behalf of the Commonwealth, including, without limitation, a search covering any or all of the following:

(a) accommodation areas;

(b) administrative areas;

(c) common areas;

(d) detainees' personal effects;

(e) detainees' rooms;

(f) medical examination areas;

(g) storage areas.

Purposes of search

(2) A search of the facility may be conducted under this section only to find out whether any of the following are at the facility:

(a) a weapon or other thing capable of being used to inflict bodily injury or to help a detainee to escape from immigration detention;

(b) a prohibited thing, other than a weapon or other thing to which paragraph (a) applies.

Note: For the possession and retention by an immigration officer of any of these things found in the course of a search under this section, see sections 252C and 252CA.

Conduct of search

(3) Without limiting subsection (1), an authorised officer may use a dog in conducting a search under this section.

(4) If an authorised officer uses a dog in conducting a search under this section, the officer must:

(a) take all reasonable precautions to prevent the dog touching any person (other than the officer); and

(b) keep the dog under control while conducting the search.

(5) If an authorised officer uses a dog in accordance with subsection (4) in conducting a search under this section, that use of the dog is not unlawful only because of the behaviour of the dog (including the touching of any person by the dog).

(6) An authorised officer who conducts a search under this section must not use more force against a person or property, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search.

Exercise of search powers

(7) To avoid doubt, a search of an immigration detention facility may be conducted under this section irrespective of whether powers are exercised under any of the following sections in relation to a person detained in the facility:

(a) section 252 (searches of detainees and non-citizens in immigration clearance—general powers);

(b) section 252AA (searches of detainees—screening procedures);

(c) section 252A (searches of detainees—strip searches).

252BB Searches of certain immigration detention facilities—authorised officers ' assistants

Authorised officers may be assisted by other persons

(1) An authorised officer may be assisted by other persons in exercising powers or performing functions or duties in conducting a search under section 252BA (other than under subsection 252BA(3)), or under section 252C or 252CA in relation to such a search, if that assistance is necessary and reasonable. A person giving such assistance is the authorised officer's assistant.

Note: Subsection 252BA(3) provides for an authorised officer to use a dog to conduct a search of an immigration detention facility. Sections 252C and 252CA provide for how to deal with things that are found in the conduct of a search under section 252BA.

Powers of an authorised officer ' s assistant

(2) An authorised officer's assistant in relation to a search of an immigration detention facility under section 252BA:

(a) may enter the facility; and

(b) may exercise powers and perform functions and duties for the purposes of a search or screening procedure in relation to which subsection (1) applies in relation to any thing found in the course of that search or screening procedure; and

(c) must do so in accordance with any directions given to the assistant by the authorised officer.

(3) A power exercised by an authorised officer's assistant as mentioned in subsection (2) is taken for all purposes to have been exercised by the authorised officer.

(4) A function or duty performed by an authorised officer's assistant as mentioned in subsection (2) is taken for all purposes to have been performed by the authorised officer.

(5) If a direction is given under paragraph (2) (c) in writing, the direction is not a legislative instrument.

22 Section 252C (heading)

Repeal the heading, substitute:

252C Screening and strip searches of detainees and searches of facilities—retention of seized things (general)

23 Subsection 252C(1)

Omit "conducting a screening procedure under section 252AA or conducting a strip search under section 252A", substitute "a search under section 252AA (which deals with screening procedures), 252A (which deals with strip searches) or 252BA (which deals with immigration detention facility searches)".

24 Subsection 252C(2)

Repeal the subsection, substitute:

(2) The following things are forfeited to the Commonwealth if found in the course of a search mentioned in subsection (1):

(a) a weapon or other thing capable of being used to inflict bodily injury or to help a detainee to escape from immigration detention;

(b) a prohibited thing determined under paragraph 251A(2) (a), other than a weapon or other thing to which paragraph (a) applies.

Note: A prohibited thing determined under paragraph 251A(2) (a) that is found in the course of a search of a person who is detained is a thing the possession of which is unlawful because of a law of the Commonwealth, or a law of the State or Territory in which the person is detained (see section 251A).

25 After section 252C

Insert:

252CA Screening and strip searches of detainees and searches of facilities—retention of certain prohibited things

(1) This section applies in relation to a prohibited thing determined under paragraph 251A(2) (b), unless subsection 252C(1) applies in relation to the prohibited thing.

Note 1: Paragraph 251A(2) (b) covers the determination of a thing as a prohibited thing if the Minister is satisfied that its possession or use in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.

Note 2: Paragraph 252C(1) (a) provides for the retention under section 252C of a thing (including a prohibited thing determined under paragraph 251A(2) (b)) if it might provide evidence of the commission of an offence against this Act.

Note 3: For the possession and retention of other things obtained by screening or strip search, or by a search of immigration detention facilities, see section 252C.

(2) If, in the course of a search under section 252AA (which deals with screening procedures), 252A (which deals with strip searches) or 252BA (which deals with immigration detention facility searches), an authorised officer finds a prohibited thing in relation to which this section applies, the officer:

(a) may take possession of it; and

(b) may retain it; and

(c) must, if it appears that the thing is owned or was controlled by a detainee, take all reasonable steps to return it to the detainee when he or she ceases to be in detention; and

(d) must, if it appears that the thing is owned or was controlled by a person other than a detainee, take all reasonable steps to return it to the person.

(3) However, if an authorised officer retains a prohibited thing under paragraph (2) (b), after taking all reasonable steps to return the thing under paragraph (2) (c) or (d), it is forfeited to the Commonwealth if the officer considers on reasonable grounds that:

(a) its owner or the person who last controlled the thing cannot be identified; or

(b) the thing is abandoned; or

(c) if it appears that the thing is owned or was controlled by a detainee—the thing cannot be returned to the detainee when he or she ceases to be in detention; or

(d) if it appears that the thing is owned or was controlled by a person other than a detainee—the thing cannot be returned to the person.

(4) If a prohibited thing is forfeited under subsection (3), the authorised officer may dispose of it in any way he or she thinks appropriate.

26 Section 252G (heading)

Repeal the heading, substitute:

252G Persons entering immigration detention facilities—screening powers

27 Subsection 252G(1)

Omit "a detention centre established under this Act", substitute "an immigration detention facility operated by or on behalf of the Commonwealth".

28 At the end of subsection 252G(1)

Add:

; (d) allow an authorised officer to use a dog for the purposes of searching the person for a thing to which subsection (3) applies.

29 After subsection 252G(2)

Insert:

(2A) If an authorised officeruses a dog for the purposes of searching a person for a thing to which subsection (3) applies, the officer must:

(a) take all reasonable precautions to prevent the dog touching any person (other than the officer); and

(b) keep the dog under control while conducting the search.

(2B) If an authorised officer uses a dog in accordance with subsection (2A) for the purposes of searching a person for a thing to which subsection (3) applies, that use of the dog is not unlawful only because of the behaviour of the dog (including the touching of any person by the dog).

30 Subsection 252G(3)

Repeal the subsection, substitute:

(3) An authorised officer may request that a person do something under subsection (4) if the person is about to enter an immigration detention facility operated by or on behalf of the Commonwealth, and the officer suspects on reasonable grounds that the person has in his or her possession:

(a) a thing that:

  (i) might endanger the safety of the detainees, staff or other persons at the facility; or

  (ii) might disrupt the order or security arrangements at the facility; or

(b) a prohibited thing.

(3A) A request may be made under subsection (4) that a person do something whether or not a request is also made under subsection (1) that the person do something.

31 Paragraph 252G(4 ) ( e)

Omit all the words after "concealing", substitute:

something that:

  (i) might endanger the safety of the detainees, staff or other persons at the immigration detention facility; or

  (ii) might disrupt the order or security arrangements at the facility; or

  (iii) is a prohibited thing.

32 Subsection 252G(5)

Omit "A person", substitute "Subject to subsections (6) and (6A), a person".

33 Subsections 252G(5) and (6)

Omit "detention centre", substitute "immigration detention facility".

34 After subsection 252G(6)

Insert:

(6A) If a person leaves a prohibited thing determined under paragraph 251A(2) (b) in a place as mentioned in subsection (5) of this section, after taking all reasonable steps to return the thing to the person for the purposes of that subsection, it is forfeited to the Commonwealth if an authorised officer considers on reasonable grounds that:

(a) its owner or a person who controls the thing cannot be identified; or

(b) the thing is abandoned; or

(c) the thing otherwise cannot be returned to the person.

Note: Paragraph 251A(2) (b) covers the determination of a thing as a prohibited thing if the Minister is satisfied that its possession or use in an immigration detention facility might be a risk to the health, safety or security of persons in the facility, or to the order of the facility.

(6B) If a prohibited thing is forfeited under subsection (6A), the authorised officer may dispose of it in any way he or she thinks appropriate.

35 Subsection 252G(7)

Omit "a detention centre established under this Act", substitute "an immigration detention facility".

The question is that the amendments on sheet JC574 be agreed to.

3:54 pm

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

We move to the amendments on sheet JC575 in the name of the government:

Government's circulated amendments—

(1) Page 10 (after line 13), at the end of the Bill, add:

Schedule 7—Regional Processing Cohort

Part 1—Amendments

Migration Act 1958

1 Subsection 5(1)

Insert:

member of the designated regional processing cohort means:

(a) a person who:

  (i) is an unauthorised maritime arrival under subsection 5AA(1); and

  (ii) after 19 July 2013, was taken to a regional processing country under section 198AD; and

  (iii) was at least 18 years of age on the first or only occasion after 19 July 2013 when he or she was so taken to a regional processing country; or

(b) a transitory personwho:

  (i) after 19 July 2013, was taken to a regional processing country under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; and

  (ii) was at least 18 years of age on the first or only occasion after 19 July 2013 when he or she was so taken to a regional processing country.

2 Subsection 33(2)

Omit "subsection (3)", substitute "subsections (3) and (3A)".

3 After subsection 33(3)

Insert:

(3A) A non-citizen who is a member of the designated regional processing cohort is not taken to have been granted a special purpose visa.

(3B) The Minister may waive the operation of subsection (3A) in a particular case.

4 After subsection 46A(2)

Insert:

(2AA) An application for a visa is not a valid application if it is made by a person who:

(a) is an unauthorised maritime arrival under subsection 5AA(1); and

(b) after 19 July 2013, was taken to a regional processing country under section 198AD; and

(c) was at least 18 years of age on the first or only occasion after 19 July 2013 when he or she was so taken to a regional processing country.

(2AB) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (2AA) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.

(2AC) If the Minister thinks that it is in the public interest to do so, the Minister may, by legislative instrument, determine that subsection (2AA) does not apply to an application by an unauthorised maritime arrival included in a class of unauthorised maritime arrivals specified in the determination for a visa of a class specified in the determination.

5 Subsection 46A(2A)

After "subsection (2)", insert ", (2AB) or (2AC)".

6 Subsection 46A(2B)

After "determination", insert "under subsection (2), (2AB) or (2AC)".

7 Subsection 46A(2C)

After "subsection (2)", insert "or (2AB)".

8 After subsection 46A(2C)

Insert:

(2D) The Minister may, by legislative instrument, vary or revoke a determination made under subsection (2AC) if the Minister thinks that it is in the public interest to do so.

9 Subsection 46A(3)

Omit "(2) or (2C)", substitute "(2), (2AB), (2AC), (2C) or (2D)".

10 Paragraphs 46A(5 ) ( a) and (b)

Omit "the unauthorised", substitute "an unauthorised".

11 Subsection 46A(7)

After "subsection (2)", insert ", (2AB)".

12 At the end of section 46A

Add:

(8) The Minister does not have a duty to consider whether to exercise the power under subsection (2AC) or (2D) in respect of any class of unauthorised maritime arrivals, whether the Minister is requested to do so by an unauthorised maritime arrival included in such a class or by any other person, or in any other circumstances.

13 After subsection 46B(2)

Insert:

(2AA) An application for a visa is not a valid application if it is made by a transitory personwho:

(a) after 19 July 2013, was taken to a regional processing country under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; and

(b) was at least 18 years of age on the first or only occasion after 19 July 2013 when he or she was so taken to a regional processing country.

(2AB) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (2AA) does not apply to an application by the person for a visa of a class specified in the determination.

(2AC) If the Minister thinks that it is in the public interest to do so, the Minister may, by legislative instrument, determine that subsection (2AA) does not apply to an application by a transitory person included in a class of transitory persons specified in the determination for a visa of a class specified in the determination.

14 Subsection 46B(2A)

After "subsection (2)", insert ", (2AB) or (2AC)".

15 Subsection 46B(2B)

After "determination", insert "under subsection (2), (2AB) or (2AC)".

16 Subsection 46B(2C)

After "subsection (2)", insert "or (2AB)".

17 After subsection 46B(2C)

Insert:

(2D) The Minister may, by legislative instrument, vary or revoke a determination made under subsection (2AC) if the Minister thinks that it is in the public interest to do so.

18 Subsection 46B(3)

Omit "(2) or (2C)", substitute "(2), (2AB), (2AC), (2C) or (2D)".

19 Paragraphs 46B(5 ) ( a) and (b)

Omit "the transitory", substitute "a transitory".

20 Subsection 46B(7)

After "subsection (2)", insert ", (2AB)".

21 At the end of section 46B

Add:

(8) The Minister does not have a duty to consider whether to exercise the power under subsection (2AC) or (2D) in respect of any class of transitory persons, whether the Minister is requested to do so by a transitory person included in such a class or by any other person, or in any other circumstances.

Migration Regulations 1994

22 At the end of subregulation 2.07AA(2)

Add:

; and (d) the applicant is not a member of the designated regional processing cohort.

23 After subregulation 2.07AA(2)

Insert:

(2A) The Minister may waive the operation of paragraph (2) (d) in a particular case.

24 After subregulation 2.07AB(1)

Insert:

(1A) Subregulation (1) does not apply if the applicant is a member of the designated regional processing cohort.

25 At the end of subregulation 2.07AB(2)

Add:

; and (e) the applicant is not a member of the designated regional processing cohort.

26 At the end of regulation 2.07AB

Add:

(5) The Minister may waive the operation of subregulation (1A) in a particular case.

(6) The Minister may waive the operation of paragraph (2) (e) in a particular case.

27 At the end of regulation 2.07AM

Add:

(6) The Minister may waive the operation of paragraph 1402(3) (bb) of Schedule 1 in a particular case.

28 At the end of paragraph 2.08A(1 ) ( da)

Add "and".

29 After paragraph 2.08A(1 ) ( da)

Insert:

(db) the additional applicant is not a member of the designated regional processing cohort;

30 At the end of regulation 2.08A

Add:

(3) The Minister may waive the operation of paragraph (1) (db) in a particular case.

30A At the end of paragraph 2.08AAA(1 ) ( g)

Add "and".

30B After paragraph 2.08AAA(1 ) ( g)

Insert:

(ga) the additional applicant is not a member of the designated regional processing cohort;

30C At the end of regulation 2.08AAA

Add:

(3) The Minister may waive the operation of paragraph (1) (ga) in a particular case.

31 Regulation 2.11A (note)

Omit "Section 46A", substitute "Subsection 46A(1)".

32 Regulation 2.11B (note)

Omit "Section 46B", substitute "Subsection 46B(1)".

33 After paragraph 1402(3 ) ( ba) of Schedule 1

Insert:

(bb) Applicant must not be a member of the designated regional processing cohort.

34 At the end of subitem 1402(3) of Schedule 1

Add:

Note: See also subregulation 2.07AM(6), which provides that the Minister may waive the operation of paragraph (bb) of this subitem in a particular case.

35 After Part 53 of Schedule 13

Insert:

Part 53A—Amendments made by the Migration Legislation Amendment (Regional Processing Cohort) Act 2016

5301A Operation of Schedule 1

(1) Paragraph 2.07AA(2) (d) of these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a visa application if the conditions mentioned in paragraphs 2.07AA(2) (a) to (c) of these Regulations are satisfied in relation to the application after the commencement of that Schedule.

(2) Subregulation 2.07AB(1A) of these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a visa application if the applicant provides his or her passport details (as mentioned in subregulation 2.07AB(1) of these Regulations) after the commencement of that Schedule.

(3) Paragraph 2.07AB(2) (e) of these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a visa application if the applicant asks for the visa (as mentioned in paragraph 2.07AB(2) (d) of these Regulations) after the commencement of that Schedule.

(4) Paragraph 2.08A(1) (db) of these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a request made by the original applicant under paragraph 2.08A(1) (b) of these Regulations if the request is made after the commencement of that Schedule.

(4A) Paragraph 2.08AAA(1) (ga) of these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a request made by the original applicant under paragraph 2.08AAA(1) (c) of these Regulations if the request is made after the commencement of that Schedule.

(5) Paragraph 1402(3) (bb) of Schedule 1 to these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a visa application if the application is made after the commencement of Schedule 1 to that Act.

Part 2—Application provisions

36 Application—sections 46A and 46B of the Migration Act 1958

Applicant outside Australia

(1) Subsections 46A(2AA) and 46B(2AA) of the Migration Act 1958 (as amended by this Act) apply in relation to a visa application made when the applicant was outside Australia if:

(a) the application is made after the commencement of this item; or

(b) the application:

  (i) was made before the commencement of this item but after the time when the Bill that became the Migration Legislation Amendment (Regional Processing Cohort) Act 2016 was introduced into the House of Representatives; and

  (ii) was not finally determined before the commencement of this item.

Applicant in Australia

(2) Subsections 46A(2AA) and 46B(2AA) of the Migration Act 1958 (as amended by this Act) apply in relation to a visa application made when the applicant was in Australia if:

(a) the application is made after the commencement of this item; and

(b) no determination was made under subsection 46A(2) or 46B(2) of the Migration Act 1958 in relation to the application before the commencement of this item.

[regional processing cohort]

The question is the amendments on sheet JC575 be agreed to.

3:57 pm

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

We now move to the amendments on sheet JC576 in the name of the government:

Government's circulated amendments—

(1) Page 10 (after line 13), at the end of the Bill, add:

Schedule 8—Validation of Port Appointment

1 Definitions

In this Schedule:

appointment includes a purported appointment.

2 Validation of appointment of an area of water within the Territory of Ashmore and Cartier Islands as a port

(1) This item applies in relation to the appointment of an area of waters within the Territory of Ashmore and Cartier Islands under paragraph 5(5) (a) of the Migration Act 1958 by notice published in the Gazette on 23 January 2002.

(2) The appointment has, and is taken always to have had, effect as if all of the words from and including "the area of waters" to and including "point of commencement." were omitted and the following words were substituted:

the area of waters within the Territory of Ashmore and Cartier Islands commencing at a point on the Mean Low Water (MLW) line closest to Latitude 12 degrees 13 minutes South, Longitude 122 degrees 59 minutes East, then following the line of MLW in an anticlockwise direction so as to enclose a bay by bridging across islands of MLW at the entrance to the bay to close back to the point of commencement.

(3) The Migration Act 1958 has, and is taken always to have had, effect as if the area of waters specified in the appointment (as affected by subitem (2)) were a port for the purposes of that Act.

(4) This item does not, by implication, prevent amendment or revocation of the appointment.

3 Validation of things done under the Migration Act 1958

(1) This item applies to a thing done under the Migration Act 1958 at any time before the day this Schedule commences, to the extent that the doing of the thing would, apart from this Schedule, be invalid or ineffective because the doing of the thing relied, directly or indirectly, on the validity of the appointment referred to in subitem 2(1).

(2) The thing done is as valid and effective, and is taken always to have been as valid and effective, as it would have been had this Schedule been in force at that time.

4 Schedule does not affect certain rights or liabilities

This Schedule does not affect rights or liabilities arising between parties to proceedings in which judgment has been delivered by a court before the commencement of this Schedule, if:

(a) the validity of the appointment referred to in subitem 2(1) was at issue in the proceedings; and

(b) the judgment set aside the appointment or declared it to be invalid.

[validation of port appointment]

3:58 pm

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

This amendment relates to the validation of an area of water within the Territory of Ashmore and Cartier Islands. I seek leave to ask the government a couple of questions in respect to this amendment.

Leave not granted.

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

The question is that the amendments on sheet JC576, circulated by the government, be agreed to.

4:02 pm

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

We will now move to the amendments on sheet JC577, circulated in the name of the government:

Government's circulated amendments—

(1) Title, page 1 (line 2), after "customs", insert ", bail".

[presumption against bail]

(2) Page 10 (after line 13), at the end of the Bill, add:

Schedule 9—Presumption against bail

Part 1—Court records

Crimes Act 1914

1 After subsection 15AA(3)

Insert:

(3AA) If the bail authority is a court and it grants bail, the court must:

(a) state its reasons in writing; and

(b) cause those reasons to be entered in the court's records.

2 Application provision

The amendment made by this Part applies in relation to a decision, made on or after the commencement of this Part, by a bail authority to grant bail to a person charged with, or convicted of, an offence (whether the person was charged with, or convicted of, the offence before, on or after that commencement).

Part 2—Commonwealth child sex offenders

Crimes Act 1914

3 After section 15AA

Insert:

15AAA Bail not to be granted to various persons charged with, or convicted of, certain Commonwealth child sex offences

(1) Despite any other law of the Commonwealth, a bail authority must not grant bail to a person who:

(a) is charged with, or convicted of, an offence described in column 1 of an item in the table in section 16AAA; or

(b) is charged with, or convicted of, an offence described in column 1 of an item in the table in subsection 16AAB(2) and who has previously been convicted of a child sexual abuse offence;

unless the bail authority is satisfied by the person that circumstances exist to grant bail.

(2) In addition to any other matters, in determining whether the bail authority is satisfied that circumstances exist to grant bail to a person, the bail authority must take into account such of the following matters as are relevant and known to the bail authority:

(a) whether the bail authority considers that the person would be likely to fail to appear at any proceedings for the offence if the person were granted bail;

(b) whether the bail authority considers that the person would be likely to commit a further offence if the person were granted bail;

(c) whether the bail authority considers that the person would be likely to put at risk the safety of the community or cause a person to suffer any harm if the person were granted bail;

(d) whether the bail authority considers that the person would be likely to conceal, fabricate or destroy evidence or intimidate a witness if the person were granted bail;

(e) whether the person was aged 18 years or over when the offence was committed;

(f) if the person has pleaded guilty to the charge in respect of the offence or been convicted of the offence—whether the bail authority considers that the person would not be likely to undertake a rehabilitation program, or not be likely to comply with any bail conditions relating to rehabilitation or treatment, while released on bail.

(3) If the bail authority is a court and it grants bail, the court must:

(a) state its reasons in writing; and

(b) cause those reasons to be entered in the court's records.

(4) Despite any law of the Commonwealth, the Director of Public Prosecutions or the person may appeal against a decision of a bail authority:

(a) to grant bail to the person despite subsection (1) on the basis that the bail authority is satisfied that circumstances exist to grant bail; or

(b) to refuse to grant bail to the person on the basis that the bail authority is not satisfied that circumstances exist to grant bail.

(5) An appeal under subsection (4):

(a) may be made to a court that would ordinarily have jurisdiction to hear and determine appeals (however described) from directions, orders or judgments of the bail authority referred to in subsection (4), whether the jurisdiction is in respect of appeals relating to bail or appeals relating to other matters; and

(b) is to be made in accordance with the rules or procedures (if any) applicable under a law of the Commonwealth, a State or a Territory in relation to the exercise of such jurisdiction.

(6) If:

(a) a bail authority decides to grant bail to the person; and

(b) immediately after the decision is made, the Director of Public Prosecutions notifies the bail authority that he or she intends to appeal against the decision mentioned in subsection (4);

the decision to grant bail is stayed with effect from the time of the notification.

(7) A stay under subsection (6) ends:

(a) when a decision on the appeal is made; or

(b) when the Director of Public Prosecutions notifies:

  (i) the bail authority; or

  (ii) if an appeal has already been instituted in a court—the court;

that he or she does not intend to proceed with the appeal; or

(c) 72 hours after the stay comes into effect;

whichever occurs first.

(8) To avoid doubt, except as provided by subsections (1), (4), (5), (6) and (7), this section does not affect the operation of a law of a State or a Territory.

Note: These provisions indirectly affect laws of the States and Territories because they affect section 68 of the Judiciary Act 1903.

4 Application provisions

(1) The amendment made by this Part applies in relation to a decision, made on or after the commencement of this Part, by a bail authority whether to grant bail to a person charged with, or convicted of, an offence (whether the person was charged with, or convicted of, the offence before, on or after that commencement).

(2) If conduct that occurred before the commencement of this Part:

(a) constituted a Commonwealth child sex offence before that commencement; and

(b) does not constitute a Commonwealth child sex offence on or after that commencement;

section 15AAA of the Crimes Act 1914 as inserted by this Part applies in relation to that conduct as if, on or after that commencement, that conduct constituted a Commonwealth child sex offence.

[presumption against bail]

The question is that the amendments on sheet JC577 be agreed to.

4:05 pm

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

The question now is that government amendments on sheet JC578 be agreed to.

Government's circulated amendments—

(1) Title, page 1 (line 2), after "migration,", insert "citizenship,".

(2) Page 10 (after line 13), at the end of the Bill, add:

Schedule 10—Strengthening the Citizenship Loss Provisions

Australian Citizenship Act 2007

1 Subsection 35A(1)

Repeal the subsection, substitute:

Meaning of relevant terrorism conviction

(1A) A person has a relevant terrorism conviction if the person has been convicted of an offence against, or offences against, one or more of the following:

(a) a provision of Subdivision A of Division 72 of the Criminal Code;

(b) a provision of Subdivision B of Division 80 of the Criminal Code (treason);

(c) a provision of Part 5 of the Criminal Code (except Division 104 or 105);

(d) a provision of Part 5 of the Criminal Code;

(e) section 6 or 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978.

Meaning of relevant other conviction

(1B) A person has a relevant other conviction if:

(a) the person has been convicted of an offence against, or offences against, one or more of the following:

  (i) a provision of Division 82 of the Criminal Code (sabotage) other than section 82

(preparing for or planning sabotage offence);

  (ii) a provision of Division 91 of the Criminal Code (espionage);

  (iii) a provision of Division 92 of the Criminal Code (foreign interference); and

(b) the person has, in respect of the conviction or convictions, been sentenced to a period of imprisonment of at least 6 years, or to periods of imprisonment that total at least 6 years.

Cessation of citizenship on determination by Minister

(1) The Minister may determine in writing that a person ceases to be an Australian citizen if:

(a) the person has a relevant terrorism conviction or a relevant other conviction; and

(b) the Minister is satisfied that the person would not, if the Minister were to determine that the person ceases to be an Australian citizen, become a person who is not a national or citizen of any country; and

(c) the Minister is satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia; and

(d) having regard to the following factors, the Minister is satisfied that it is not in the public interest for the person to remain an Australian citizen:

  (i) the severity of the conduct that was the basis of the conviction or convictions and the sentence or sentences;

  (ii) the degree of threat posed by the person to the Australian community;

  (iii) the age of the person;

  (iv) if the person is aged under 18—the best interests of the child as a primary consideration;

  (v) the person's connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;

  (vi) Australia's international relations;

  (vii) any other matters of public interest.

Note: A person may seek review of a determination made under this subsection in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903.

2 Subsection 35A(4)

Omit "paragraph (1) (b)", substitute "paragraph (1B) (b)".

3 Paragraph 35A(4 ) ( b)

Omit "paragraph (1) (a)" (wherever occurring), substitute "paragraph (1B) (a)".

4 Application and saving provisions

(1) Section 35A of the Australian Citizenship Act 2007 (as amended by this Schedule) applies in relation to persons who became Australian citizens before, on or after the commencement of this item.

(2) Section 35A of the Australian Citizenship Act 2007 (as amended by this Schedule) applies in relation to a relevant terrorism conviction occurring on or after 12 December 2005.

(3) Section 35A of the Australian Citizenship Act 2007 (as amended by this Schedule) applies in relation to a relevant other conviction of a person if:

(a) the conviction occurred on or after 12 December 2005; and

(b) if the conviction occurred before 12 December 2015—the person was sentenced to a period of imprisonment of at least 10 years in respect of the conviction.

(4) The amendments made by this Schedule do not affect the validity of a determination made under subsection 35A(1) of the Australian Citizenship Act 2007 before the commencement of this item.

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

by leave—That was a very funny 20 minutes. We've seen what's happened in here. There is no-one who has been watching this debate who does not know that this government is playing games in the Senate in order to protect their majority—or their minority—on the floor of the House of Representatives. They have lost control of the House.

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

I've got a point of order, Senator Wong. I'll go to Senator Cormann first, and then Senator Bernardi.

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

Thank you very much, Mr President. We are operating under a gag motion—

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

Senator Cormann, you'll have the opportunity to make a statement.

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

This is a point of order. The point of order is that it is important that we move swiftly through the remaining divisions. I don't think the Leader of the Opposition should be holding up the Senate.

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

Senator Bernardi rose on a point of order. On a point of order, Senator Bernardi.

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

My point of order is that the government hasn't been playing games; it's moved amendments. I have sought, in my role as a senator—

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

That's a point of debate, Senator Bernardi; it's not a point of order.

Photo of Cory BernardiCory Bernardi (SA, Australian Conservatives) Share this | | Hansard source

Senator Wong seems upset that I've been voting with the Labor Party on occasion.

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

It's not a point of order with respect to what Senator Wong is saying. Senator Wong.

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

Thank you, Mr President. Of course, a consequence of the government running away from having this bill debated in the House of Representatives is that an important national security bill will not become law. I have circulated an amendment to ensure we vote on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 by six o'clock. We should have been in that debate already. Mr Pyne has now made clear he will send the House of Representatives home before they have a chance to speak on the bill—

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

Order, Senator Wong!

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

This is an abrogation—

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

Order, Senator Wong! When I call people to order, I respect the right of senators to call a point of order. Senator Wong has been given leave to make a statement. Senator Birmingham on a point of order.

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Minister for Trade) Share this | | Hansard source

Mr President, Senator Wong was given leave to make a short statement. Senator Wong is now seeking to debate the point. Senator Wong is seeking to debate the point and mislead the Senate at the same time.

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

Senator Birmingham, please resume your seat now—

Photo of Simon BirminghamSimon Birmingham (SA, Liberal Party, Minister for Trade) Share this | | Hansard source

The order of debate today—

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

Please resume your seat now, Senator Birmingham. Order! I don't want to have to keep standing up. It's the last day.

Senator Birmingham interjecting

Senator Birmingham, take your seat! On a point of order, Senator Di Natale.

Photo of Richard Di NataleRichard Di Natale (Victoria, Australian Greens) Share this | | Hansard source

On another matter.

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

Senator Wong was given leave. It was not leave to make a short statement; it was leave a make a statement. The Senate granted that leave. Senator Wong.

Photo of Penny WongPenny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | | Hansard source

Thank you, Mr President. I appreciate the courtesy. We now are at risk of not passing important national security legislation which I and other members of the Parliamentary Joint Committee on Intelligence and Security have worked very hard on. We gave the government very clear notice in that report—a unanimous report—that there would be amendments to that legislation and they needed to reflect the PJCIS's recommendations. Notice was clearly given by the shadow Attorney-General in the House of Representatives that some of the amendments did not reflect the bipartisan committee recommendations, and those would be moved in the Senate. We have a letter from Mr Christian Porter, reflecting the fact that government amendments would be moved in the Senate.

In those circumstances, this delay, which is about the government's political priorities on the floor of the House of Representatives, will prevent important national security legislation from becoming law, and I urge the government to reconsider its position. I urge the government to stop this filibustering; to ensure we can bring on the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill, a national security bill that has bipartisan support; to enable the amendments that reflect the majority report of the parliamentary Joint Committee to be passed; and to ensure that the House remains so it becomes law so that our security agencies have the powers they need. Their failure to keep the House because they are so worried about this bill is an indictment on a government—on any government—that says it says it cares about national security! Australians' safety is worth more than the political points you are seeking to avoid in the House of Representatives.

4:10 pm

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

I seek leave to make a short statement.

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

Leave is granted for one minute.

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

I actually agree with Senator Wong; we should move immediately to deal with the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, which is a very important piece of national-security-related legislation. If the opposition are indicating through Senator Wong that they want to bring that debate on immediately then the government is happy to facilitate such a motion.

Of course, what has happened is that there was a bipartisan agreement in relation to the amendments to the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill, and the amendments agreed between the government and the opposition were passed by the House of Representatives. Clearly, the Labor Party wants to play tactical games in order to enable Mr Shorten to put our offshore protection arrangements at risk. So, in order to facilitate Mr Shorten playing tactical games, the Labor Party tried to gazump the government's legislative agenda in this chamber.

The Labor Party, the opposition, has actually sought to bring on government legislation where the government is saying that it needs more time for it to be considered. How often has that happened before? So don't tell us about games. If you're genuinely interested in national security, let's adjourn the debate on the home affairs bill now. I will support a motion to adjourn the debate on the home affairs bill now to bring on the bill in relation to the other matters immediately.

Photo of Deborah O'NeillDeborah O'Neill (NSW, Australian Labor Party, Shadow Assistant Minister for Innovation) Share this | | Hansard source

You guys should stay here and do the work you're paid to do!

Photo of Mathias CormannMathias Cormann (WA, Liberal Party, Vice-President of the Executive Council) Share this | | Hansard source

This is it! They're literally just playing games! If the encryption bill is not passed by the Senate and those powers are not in place for intelligence and law enforcement agencies, it is on the Labor Party's head. The legislation was passed through the House of Representatives and it's 100 per cent consistent with what was agreed through the Parliamentary Joint Committee on Intelligence and Security. If you are moving any amendments to that bill, it is only to frustrate the efficient passage of that bill and it is only to frustrate that bill becoming law so that our intelligence and law enforcement agencies can have the powers they need.

If you're serious and you want to deal with the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018, I suggest that you support a motion that I am prepared to move to adjourn debate on the home affairs amendment bill and we can move on to it immediately. I won't do it, because I don't want to waste any more time. I was sitting here, quite happy to move through the divisions, but I'm mindful that we do have to deal with the hours motion before 4.30. So if the opposition is not prepared to facilitate efficient passage of the Telecommunications and Other Legislation Amendment (Assistance and Access) Bill 2018 through the Senate then it is on the Labor Party's head, and the Australian people will know that the Labor Party is deliberately standing in the way of our intelligence and law enforcement agencies having the powers they need.

4:13 pm

Photo of Richard Di NataleRichard Di Natale (Victoria, Australian Greens) Share this | | Hansard source

I seek leave to make a short statement.

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

Leave is granted for one minute.

Photo of Richard Di NataleRichard Di Natale (Victoria, Australian Greens) Share this | | Hansard source

I seek leave to make a statement for five minutes.

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

Leave is granted for one minute.

Photo of Richard Di NataleRichard Di Natale (Victoria, Australian Greens) Share this | | Hansard source

I move:

That so much of the standing orders be suspended as would prevent me from giving a five-minute statement.

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

I will take advice from the Clerk in respect of that motion. Senator Di Natale, the only motions to suspend standing orders that are debated during a debate time-limited by standing order 142 relate to that. We have done that twice and I have previously advised the chamber that I will not take any further suspensions of standing orders because the Senate has determined to deal with these matters first. So I will put your motion to suspend standing orders.

Photo of Richard Di NataleRichard Di Natale (Victoria, Australian Greens) Share this | | Hansard source

Point of order. We had contributions from the leader of the government in the Senate and the Leader of the Opposition in the Senate. They were given fair time to debate—

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

Senator Di Natale, please resume your seat. You know it's not my ruling. You sought leave of the chamber. You were granted leave for one minute. I will now put your motion to suspend standing orders if you wish. The question is that so much of standing orders be suspended so as to allow Senator Di Natale to make a statement of no more than five minutes.

We shall now return to dealing with the amendments.

4:23 pm

Photo of Richard Di NataleRichard Di Natale (Victoria, Australian Greens) Share this | | Hansard source

I seek leave to make a short statement.

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

Leave is granted for one minute.

Photo of Richard Di NataleRichard Di Natale (Victoria, Australian Greens) Share this | | Hansard source

Mr President, this is everything that's wrong with this place. This has been a disgrace, a shambles, and you should be ashamed of yourselves, both of you. Those contributions we just heard from both the Liberal and Labor parties didn't even mention the word 'refugees'. We have been, for the last two hours, trying to get those desperate people off Nauru, people who are being tortured and who, as a result of that torture, have serious mental health issues and need psychiatric assessment here in Australia, and we are denying it. We are denying innocent people who are being tortured at the hands of the Liberal government access to medical treatment. It is a disgrace. You should be absolutely ashamed of yourselves. This is a stain on the Australian nation. We had an opportunity to come together and to actually do something decent for innocent people, to show a bit of humanity, and what have you done? You've played politics. (Time expired)