Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Indigenous Affairs) Share this | Hansard source

I rise to support the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016. This bill makes consequential amendments to the Migration Amendment (Character and General Visa Cancellation) Act 2014 to ensure that character related provisions are applied consistently throughout that legislation. It also clarifies the minister's rights and responsibilities when exercising ministerial discretion to cancel visas on character grounds.

Labor supported the Migration Amendment (Character and General Visa Cancellation) Bill when it was enacted in the last parliament. The bill before the house today was originally introduced in the last parliament and was referred to the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 15 March 2016.

Noting the outcome in the recommendations of the Senate Legal and Constitutional Affairs Legislation Committee, Labor will support this bill today. The bill makes amendments to the substantive amendments made to the act in 2014. The changes came about through the review into the character and general visa cancellation framework, in 2013. With Labor's support in the last parliament, the framework was made by legislation to provide for mandatory cancellation of visas for persons who have been serving a prison sentence and have been found to have a substantial criminal record, or found guilty of a sexually based offence involving a child. It broadens the power to refuse or cancel visas with additional grounds in the character test. It provides that a person does not pass the character test if they are deemed a risk, rather than a significant risk, to the Australian community. It allows the minister to set aside decisions by a delegate for a tribunal and cancel a visa if it is in the national interest. And it enables the minister to require heads of state or territory agencies to disclose personal information.

I wanted to specifically note comments made, during the Senate inquiry, by the Department of Immigration and Border Protection in relation to the previous bill, which I think are important to note in the House today, and which provide context for these amendments before the chamber:

… the protection of the Australian community and is particularly important in the offshore visa context. In considering whether a non-citizen should be granted a visa to come to Australia, there is an expectation that the non-citizen will not cause or threaten harm to either individuals or the Australian community. Where there is information that suggests that a visa applicant presents more than a minimal or remote risk of causing harm to an individual or the broader Australian community, it is entirely appropriate that the non-citizen’s visa application be considered for refusal under subsection 501(1) of the Act.

I think that statement ultimately reflects the views and expectations of the broader community, and certainly of the Australian Labor Party.

In addition to the minor technical amendments, the bill will ensure the minister's existing power to override a decision of the Administrative Appeals Tribunal or a delegate and cancel a person's visa. It applies to all visa cancellations on character grounds. It will include a reference to section 501BA, ministerial discretion to override a decision by the Administrative Appeals Tribunal or delegate, in the sections of the Migration Act relating to authorised detention. This means that a non-citizen who is subject to these decisions will be handled in a consistent manner with those who have been subject to other character test cancellation decisions. The bill inserts a cross reference in sections 195 and 196 to clarify that these sections do not apply to decisions made by the minister under section 501BA consistent with other character test cancellation decisions.

The bill clarifies two key points that are worth noting: that all pending or outstanding visa applications are taken to have been refused following a decision by the minister under section 501BA consistent with other character test cancellation decisions; and, that the provision in paragraph 503(1)(b) of the Migration Act relating to the rights of those who had their visas cancelled in character test decisions to enter or to be in Australia also applies to decisions under section 501BA.

Removal powers will not be able to be utilised while a non-citizen still has appeal rights available to them. I think it is important to note that. It is in keeping with the original intention of the bill. The bill ensures that the government has explicit removal powers for people who have had their visas cancelled under the mandatory cancellation provisions and provides for consistency with all over visa cancellations due to the character test.

The character concern will be broadened and will include those instances of non-citizens who have been convicted of, or charged with or indicted for people smuggling, human trafficking, genocide or child sex offences and to non-citizens subject to Interpol notice or adverse security assessments. To ensure consistency with other character decisions, all decisions made under sections 501BA and 501CA will be reviewable by the Federal Court rather than the Federal Circuit Court, and I think that is important to note—a higher court. The bill provides consistency with other character test cancellation decisions as it enables non-disclosure of confidential information provided to the department as a part of section 501CA or 501BA—a decision to cancel a visa.

The government is supported by Labor in relation to this bill, but I echo the warning made by my predecessor, the shadow minister for immigration and border protection in the last parliament, the member for Corio, that Labor will keep a close eye on how the minister exercises his ministerial discretion. In that way we hope he does it fairly. We support the legislation.

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