Senate debates

Thursday, 13 May 2021


Migration Amendment (Clarifying International Obligations for Removal) Bill 2021, Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021; Second Reading

1:17 pm

Photo of Anne RustonAnne Ruston (SA, Liberal Party, Minister for Families and Social Services) Share this | | Hansard source

I table a revised explanatory memorandum relating to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 and move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—


The Clarifying International Obligations for Removal Bill amends the Migration Act to clarify that, in line with Australia's international obligations relating to non-refoulement, the removal power in the Migration Act does not require or authorise removal of a person where they have been assessed as engaging those obligations unless:

        Furthermore, the Bill improves our ability to assess if a person engages protection obligations, regardless of whether or not they fail to satisfy other criteria for the grant of a Protection visa. It enables access to merits review for certain individuals who were previously determined to have engaged protection obligations and in respect of whom the Minister has decided that they no longer engage those obligations. The person will not be subject to removal unless the decision is affirmed on merits review, or the period within which the person may apply for merits review has ended without an application for review having been made, or the person has withdrawn the application for merits review.

        As noted in the Revised Explanatory Memorandum: "The Bill is anticipated to operate in relation to the very small cohort of serious character/national security concern detainees who enliven Australia's non-refoulement obligations."

        The required review by Parliamentary Joint Committee on Intelligence and Security will further ensure that the legislation is effective.

        This Bill protects the integrity of Australia's migration framework and deserves the support of all Senators. It presents an opportunity for those within this Parliament to stand up and demonstrate their commitment to human rights by ensuring that we are not obliged to remove a person from Australia where that removal would be in breach of non-refoulement obligations, and by ensuring that those who lodge a valid Protection visa application will always have their claims assessed.


        The Tabling Notice of Certain Character Decisions Bill amends the Migration Act to require notice of the making of certain character decisions by the Minister under subsection 501(3) to be laid before each House of the Parliament within 15 sitting days of that House after the day the decision was made.

        Decisions made under subsection 501(3) of the Migration Act are those decisions to refuse to grant a visa or to cancel a visa on character grounds that the Minister makes personally, without notice to the applicant or visa holder, where the Minister considers the refusal or cancellation to be in the national interest.

        This requirement to table notice of the making of certain character decisions under subsection 501(3) will not apply where the Minister reasonably suspects the person does not pass the character test because the person:

              Requiring notice of certain character decisions under subsection 501(3) of the Act to be tabled before each House of Parliament will provide transparency on the decision to refuse or cancel a person's visa. Usual tabling practices will be followed, including to ensure that personal information is not published.

              All those who support measures to ensure greater transparency and accountability in relation to visa decision-making should support this Bill.


              In the House, this Bill was supported by the Opposition on a bipartisan basis. We thank the Opposition for their support, in particular the Member for Fowler (Chris Hayes) and Member for Scullin (Andrew Giles), who spoke in favour.

              Both Bills deserve the support of all Senators and I commend the Bill to the Chamber.

              1:18 pm

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

              It is no surprise that no Labor senators stood to speak on the second reading here, because what we are faced with is yet another bill to make life far more difficult and potentially put refugees' lives at risk being jammed through this parliament because of collusion by the LNP and the ALP, who, as always, are in lock step on the shameful way that we treat refugees in this country. The Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 now is going to be ushered through with an exemption from the cut-off order. It will be denied a Senate inquiry, and we are now facing debate being guillotined in 10 short minutes time, thanks to a dirty deal between the ALP and the LNP, who like nothing more than colluding with each other to destroy the lives of people who come to this country seeking our help and protection from persecution.

              This bill comes about because the government introduced section 197C of the Migration Act in 2014, when the now Prime Minister was Minister for Immigration and Border Protection. I put on the record that that provision, section 197C, was supported not only by the LNP but by the ALP and was of course not supported by the Australian Greens. That section requires the government to disregard its nonrefoulement obligations when deporting people from Australia under section 198 of the Migration Act. The introduction of that provision, 197C, therefore created a tension between the government's stated policy of compliance with nonrefoulement obligations and its now self-imposed obligation to remove people from Australia irrespective of nonrefoulement obligations.

              That section, 197C, was challenged in the Commonwealth of Australia v AJL20, which was a landmark case based on a habeas corpus argument. AJL20, the person that was the subject of that case, languished in indefinite immigration detention because he couldn't be returned to war-torn Syria when it wasn't safe to do so, and yet the government refused to grant him a protection visa. That person languished in indefinite immigration detention, like so many others. Let's be clear about this: Australia's record on immigration detention is the shame of the world. There are no countries similar to Australia that have average lengths of immigration detention anywhere near what Australia has. It is not unheard of for people to spend more than a decade in immigration detention in this country, and the average time that people spend in immigration detention in Australia is significantly longer than in any similar country in the world; for example, the United Kingdom or Canada. Last year Justice Bromberg ruled that AJL20's detention had been unlawful and ordered the government to release him from immigration detention immediately. He further ruled that the government cannot hold people indefinitely in detention for no reason. They must be actively pursuing an outcome for the detainees they keep locked up, whether that be deportation or release into the community or a third country. This was a landmark precedent, and now the government is coming in, with the cooperation of the Labor Party, and trying to subvert Justice Bromberg's decision, or the effect of Justice Bromberg's decision.

              This legislation will have serious impacts on the visa cancellation process, particularly for refugees who may face cancellation for minor incidents, because under these powers the decision-maker would no longer be able to consider the risk of indefinite detention or harm from refoulement while making the decision to cancel their visa. Instead, these considerations could only be dealt with through a separate, later protection visa application made while the person is in detention. Not only are the government and the Labor Party colluding to try to achieve those outcomes; the government has also inserted into this bill the inclusion of a new power to reconsider a person's refugee status, so that even if someone has previously been found to be a refugee by the Australian government—that is, it is found that we owe them protection—the department or minister could reopen that decision at any time under proposed section 197D(2) of the government's amendment on sheet RV151.

              This is a complicated, highly complex amendment to a complicated, highly complex section of the Migration Act. What chance has this parliament had to scrutinise it? Absolutely none: rammed through the House this week, jammed through the Senate as we speak, under an exemption from the cut-off order. There has been no Senate inquiry whatsoever, so we've not been able to hear from stakeholders on this issue. This is a disgrace. This bill could result in people dying. Those who vote for this bill will have blood on their hands. But do you know what? They'll be comfortable with that because they've already got blood on their hands; for example, Reza Berati's blood and the blood of the other at least 13 people who died in our horrendous, racist offshore detention regime. Now these major parties want to put more blood, potentially, on their hands by ramming through a bill that would allow for someone's refugee status to be overturned and for them either to languish in indefinite detention as a result or to end up being sent back to danger and persecution.

              We would have liked to interrogate this bill in the committee stage. We have some questions about whether or not the government has actually been refouling people under the 197C provisions. There are only two possible scenarios here. One is the government has been returning people back to face danger, which would be an extreme international embarrassment and contrary to our international obligations, or it's been in breach of its own stupid law, and we would like to know which it is. We're not going to get a chance to ask those questions today because the government, along with the Labor Party, is guillotining this bill through, and in five minutes time there'll be no further opportunity for debate, no further opportunity for questions in this place, and the remaining questions on this legislation will be put without debate. This is what the Labor Party has allowed the government to get away with in this place.

              This bill will lead to more refugees languishing in indefinite immigration detention in Australia without a habeas corpus claim. What is this country coming to! You've got to be careful how you allow governments to treat refugees, because, if you let them get away with treating refugees like they are subhuman, which is what the Liberal-National coalition and the ALP do, sooner or later they'll be coming for the rest of us. If you want any evidence on that have a look right now at what we've dealt with over the last two weeks for Australian citizens stranded in India. We let the coalition and the ALP, despite the best efforts of the Australian Greens, get away with deliberately harming people by detaining them indefinitely in offshore detention. Now, because the government's become emboldened and wants to have an election based in part at least on border control along with, of course, the beating drums of war that are so beloved by the coalition, we have a situation where the government is threatening to put Australian citizens attempting to come home from India, which has been ravaged by coronavirus, in jail if they try. That is what happens when you allow governments to get away with treating people as subhuman: sooner or later you get scope creep, you get bracket creep, and other people are treated in that same way. That is the situation facing Australian citizens who wish to come back to this country from India.

              I also wanted to ask questions about the dirty deal that Labor did. These two pieces of legislation that are being debated together, despite the Greens' attempts to separate them, appear to be collectively the result of a deal between the coalition and the ALP. The Labor Party selling their soul so cheaply for a minor increase in transparency with regard to introducing a requirement to table notice of certain character decisions that are made under section 501 of the Migration Act just goes to show how little the modern Labor Party in Australia value human rights and how cheaply they are prepared to sell themselves to this government: very, very cheap. You couldn't even get a decent deal out of the government for your complicity in riding roughshod over human rights, riding roughshod over Australia's international obligations. And those are not just contained in the refugee convention and the protocol to that convention, I might add; there are numerous other international statutes and agreements that Australia has signed up to that this legislation flies in the face of.

              For Labor, the price of selling their soul yet again will not only sit very heavily on all those who support them as the progressive party; it will sit particularly heavily on all those who will be affected by this brutal and callous piece of legislation. Defending human rights should be core business for all of us in this place, and yet time after time it is only the Australian Greens who stand up for human rights, who stand up for the rule of law in this place and who stand up for fairness and justice in this country. So we would have liked to have moved an amendment to this bill. I understand I'll have to try and do that by leave now. I want to say to colleagues: just when you think this parliament could not sink any lower in the way that it treats refugees and people whose only crime was to reach out a hand to our country and seek our assistance and protection, the bottom comes out of the debate and down the elevator we go. This is yet another chapter in a dark and bloody story.

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

              Order! The time allotted for the debate on the bills has expired.

              1:30 pm

              Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | | Hansard source

              In the absence of the opportunity, I seek leave to incorporate my remarks.

              Leave granted.

              The incorporated speech read as follows—

              I rise to speak on the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 and Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021.

              These Bill seeks to address the situation concerning a small cohort of 21 people in immigration detention who have been found to be owed refugee protection, but who also fail to meet the criteria for a visa because they do not pass the character test or have received adverse security assessments from ASIO.

              Labor supports this Bill after securing a range of important amendments and protections.

              The Bill concerns 21 individuals.

              These 21 individuals who cannot be returned to their country of origin, but who also present risks to the community or national security if they are released from immigration detention.

              Of course, Australia has non-refoulement obligations under international treaties not to return individuals to situations where they face persecution; a real risk of torture or cruel, inhuman or degrading treatment or punishment; arbitrary deprivation of life; or the application of the death penalty.

              Under these international treaties, Australia is not required to provide a visa to persons who engage refugee protection obligations if "compelling national security or public order" matters are also engaged.

              These 21 individuals present a significant challenge in terms of identifying a durable solution.

              This is because they cannot be returned to their country of origin, but they also present risks to the community or national security if they are released from immigration detention.

              It's important to note that Federal court rulings present further challenges in relation to this cohort.

              The court found that the removal powers in the Migration Act compel or authorise the removal of persons who fail to meet the criteria for a visa.

              The impact of this ruling on this cohort is likely to mean they must either be:

                  This means that the only option presently available to the Government to avoid refoulement would be to grant these persons a visa and allow them to stay in Australia, even though they fail the character test or have adverse security assessments.

                  The Government argues that the intent of the Migration Act was never to permit the refoulement of persons who are found to be owed protection.

                  And as a consequence, the Bill amends the Migration Act to clarify that the Act does not require or authorise removal of a person on character or national security grounds where that person has also been assessed as engaging refugee protection obligations.

                  The Bill also provides additional options to resolve the ongoing detention of people in this cohort, including community detention with "bail-like" conditions, third country options, and ministerial discretion to determine that protection is no longer owed in circumstances where conditions that gave rise to the protection claim no longer exist.

                  It should be noted that the Bill would also impact other individuals in future who are being held in immigration detention in Australia and who engage refugee protection obligations, but, only if they fail to satisfy the character or adverse security assessments criteria for a visa.

                  We need to be clear here: if this Bill doesn't pass then people who are owed protection may be returned to counti es where they face persecution.

                  And clearly, there are legitimate grounds why we don't want this cohort of potentially dangerous individuals released into the Australian community.


                  The Shadow Attorney-General and I received high-level and secure briefings from national security agencies in relation to the cohort affected by this legislation.

                  And I want to thank the Government and the various agencies for these important briefings.

                  This cohort is made up of persons who had their visas cancelled under Labor and Coalition Governments.

                  The cohort of 21 individuals includes:

                                    These are the people that this legislation is seeking to address. Put simply, they cannot be released safely into the community.

                                    UN Refugee Convention

                                    Australia is a party to the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which defines a refugee as a person who has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion.

                                    While the Convention articulates refugees be provided protection by signatories to the Convention, article two of the Convention states that refugees abide by the law in the country that grants them protection.

                                    And article 28 states that "…Contracting States shall issue to refugees lawfully staying in their territory travel documents for the purpose of travel outside their territory, unless compelling reasons of national security or public order otherwise require…"


                                    Labor recognises concerns that the Bill, including the new ministerial discretion, must be limited and exercised narrowly and appropriately.

                                    These powers to reassess protection obligations are significant and as such safeguards on the use of the power are required.

                                    Labor proposed the following amendments and commitments, which the Government has agreed to.

                                    We welcome the Minister's determination that protection obligations are no longer engaged for a person in this cohort be subject to a merits review.

                                        That the Parliamentary Joint Standing Committee on Intelligence and Security hold a statutory review of the Bill's operation within 24 months of royal assent.

                                            The Government agreed to tabling measures which are implemented through the Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021.

                                                That the Minister provide assurances that the legislation only has implications for the small cohort of serious character/national security concern detainees who enliven Australia 's non-refoulement obligations.

                                                Labor has been assured - that this is the Government's intent.

                                                Labor has also sought and received assurances from the Government that this cohort receives Ombudsman assessment under S486O of the Migration Act.

                                                The Ombudsman requires an assessment of the appropriateness of the arrangements for the detention of every person who has been in immigration detention for more than two years, and every six months thereafter, with a copy to be tabled in Parliament.

                                                The Ombudsman's reports are an important oversight measure for immigration detention, along with other powers of the Ombudsman that include investigating complaints, own motion investigations and inspections of immigration detention facilities.

                                                I would like to acknowledge the Minister and his office for the way they have worked constructively through the issues Labor has raised.

                                                Labor supports the Bills and the amendments.

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

                                                In accordance with the resolution agreed to, I will now put the questions on the remaining stages of the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 and the Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021.

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

                                                Can I ask you to put the question separately on the two bills?

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

                                                No, the motion passed earlier was that the bills be taken together. I have to use the prepared notes in front of me but, if you plan to vote differently on any particular question, I will separate that question. Is that fair enough?

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

                                                Thank you.

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

                                                I will then put the questions on the remaining stages of the other bills listed in the resolution. The question is the bills be read a second time, but you would like that question separated?

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

                                                Yes, please.

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

                                                The question is that the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 be read a second time.

                                                1:37 pm

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

                                                I will now deal with amendments to the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 that were circulated by the Australian Greens. As these amendments were circulated after 11.30 this morning, leave will be required for them to be considered by the Senate. Is leave granted?

                                                Leave granted.

                                                I will now put them as follows: sheet 1291 in the name of the Australian Greens. The question is that item 3F of schedule 1 stand as printed.

                                                The Australian Greens opposed item 3F of schedule 1 in the following terms—

                                                (2) Schedule 1, item 3F, page 8 (lines 23 and 24), to be opposed.

                                                1:41 pm

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

                                                The question now is that the remaining amendments on sheet 1291 circulated by the Australian Greens be agreed to.

                                                The Australian Greens' circulated amendments—

                                                (1) Schedule 1, items 2 to 3D, page 4 (line 8) to page 8 (line 18), omit the items, substitute:

                                                2 Section 197C

                                                Repeal the section.

                                                (3) Schedule 1, item 4, page 9 (lines 1 to 3), omit subitem (3).