Scott Morrison (Cook, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Hansard source

I move:

(1) Schedule 1, after item 4, page 3 (after line 32), insert:

4A Subsection 501(7)

Repeal paragraphs (b), (c), and (d), insert:

(b) the person has been sentenced to a term of imprisonment or periodic detention; or

(c) if the person has been convicted of an offence and the court orders the person to participate in:

  (aa) a residential drug rehabilitation scheme; or

  (ab) a residential program for the mentally ill; or

4B Subsections 501(8) and (9)

Repeal the subsections.

The amendment will ensure that the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill to strengthen the provisions relating to general criminal conduct under the character test will apply to all persons who are not citizens, not just those who are or should be held in detention. The Minister for Immigration and Citizenship has opposed the amendment, claiming it will cause chaos in the processing of tourist visas and deny access to subclass 976 visas provided through the electronic travel authority, the ETA.

There are some points I wish to bring to the minister's attention. Firstly, it is the government's preference that persons with any criminal conviction, including those carrying a custodial sentence of less than 12 months, apply for a 676 tourist visa rather than a 976 ETA visa. How do I know this? It says so on the government's website. It says:

Criminal convictions:

If you have had any criminal convictions in any country you may want to consider applying for a tourist visa subclass 676 rather than an ETA. If arriving on an ETA with criminal convictions, you could be refused entry into Australia.

I concur with the government's advice because offences that would attract a 12 month sentence or less in the UK, for example, include communicating a bomb threat and various forms of assault. It is important that we know about these sorts of things before people come to our country, or at least have the opportunity to know. The requirement to notify a criminal conviction carrying sentences of less than 12 months is also not uncommon in Western countries. For example, it is a standard requirement in both the United States and Canada. In fact, it is also a standard requirement in China, India and Russia.

Secondly, the condition to deny a person access to a 976 ETA visa is provided for under the migration regulations, not section 501 of the Migration Act that is the subject of this amendment. Regulations relating to the 976 ETA visa stipulate regulation No.8528 as a condition that must be imposed with respect to the 976 ETA visa. It is regulation 8528 that sets the bar of a 12-month custodial sentence for the ETA, not section 501 of the act that is the subject of my amendment.

The amendment that I have moved today does not alter the construction of the condition set out in regulation 8528. It will continue to operate as it always has. As a result, the ETA process will not be compromised by the amendment that I have put forward. The minister's objection is a red herring and he should know it.

Thirdly, and finally, the character test consideration is a separate issue to the decision as to whether or not to deny or cancel a visa. The decision to deny or cancel is discretionary. Using the minister's logic, every application for an ETA visa should currently be scrutinised under the general conduct provisions of the test. This is not done as these matters are triaged, as they will continue to be under my amendment.

The minister has a problem with making decisions. He has a problem with his discretionary powers under the Migration Act. In the earlier comments I made on this bill, we made it clear that on several occasions the minister had refused to use his discretionary powers and had simply allowed the opportunity to pass him by. Rather than seeking to delegate such decisions wherever possible, whether it is to the courts or his department or, as I just mentioned, just letting it go or just ignoring it, this is an issue the minister clearly has problems with.

The amendment that I have put forward would enable the same test to apply to someone on one side of the fence as it did on the other side of the fence. If the minister was of a mind to ensure that we had clear standards about acceptable conduct and behaviour, he would apply the provisions across the board and make whatever consequent adjustments he believed necessary either by a direction under section 499 or by changing regulations to achieve the desired outcome. But, prima facie, what I have put out here today is that that is unnecessary, because the change that I am making is to 501 of the Migration Act—not to the regulations, which is where the ETA is considered and made clear.

The ETA position is not affected by this. The minister can conduct all sorts of fear-mongering campaigns as he likes, as he has issued a statement in the last 24 hours saying my amendment will bring down the tourist industry. He knows that if this amendment is passed the ETA will operate as it always has. He needs to decide whether he wants to use his discretion under the act to ensure that people who come to this country abide by our laws, our rules.

It is his government that abolished the community expectations test from the directive provided to the department's decision makers. It is his government that rolled back the strong border protection laws that have put us in the situation we are now in. It is his government, and this minister in particular, that has refused to use the discretion that is available to him. He continues to obfuscate. I commend the amendment to the House.

See this speech in context