Julian Hill (Bruce, Australian Labor Party) Share this | Hansard source

Building on the comments of the shadow minister and the member for Scullin, the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 should be straightforward. Schedules 2 and 3 have bipartisan support, as has been outlined, but unfortunately it is not straightforward. Schedule 1 raises substantive and serious concerns as currently drafted.

The stated policy objective of these amendments is to introduce a new revalidation check framework for visas, and that is said to be required for 10-year Chinese tourist visas. The Chinese tourist visa commenced on 12 December last year and is a bipartisan commitment. Indeed, it was part of Labor's election policy to support the growth in Chinese tourist numbers. It would be easier to take the government's objective to grow tourism more seriously if they actually had a tourism plan. Tourism has now overtaken coal to become one of Australia's biggest exports, according to research out only this week, but the coalition still has no plan for tourism, which employs one million Australians. Nevertheless, we can accept the logic that, during the course of a long-term, 10-year visa, we may want to ensure that certain details or aspects are up to date—passport numbers, criminal history, health checks and so on. The Law Council of Australia has questioned whether this schedule or these powers are even needed and has pointed to existing laws or regulations available to manage these requirements. It is worth noting that, of the other countries around the world that issue these long-term, 10-year type visas, there is no other jurisdiction that has these kinds of powers. The USA is moving in that direction, as the member for Scullin outlined, although with a much more focused and purposeful regime.

Despite these doubts, let us just accept at face value that there is a need for this legislation and that a clearer head of legislative power is warranted. Our concern is that the breadth of the proposed provision massively exceeds what is needed. It provides extreme powers to this minister and to any minister in the future to pick on any group of people, including permanent residents of this country. They are the kinds of powers that authoritarian leaders worldwide would salivate for. As legislators, I firmly believe that we should not support schedule 1 as drafted because it provides powers well in excess of what is needed and reasonable and necessary to the executive.

There are two new clauses of concern in particular. Clause 96B applies to where a person holds a visa of a prescribed kind. The argument is that this provides for the future should other visas be introduced. I am concerned, though, that it is not limited or specific to long-term visitor visas, as has been suggested by Senate inquiries. In fact, this could be applied to family or spousal visas, skilled visas and visas with long-term resident rights, including permanent residents. The instrument here is at least made subject to parliamentary scrutiny.

This brings me to the cause of greatest concern in this bill, clause 96E, which provides the minister an outrageously broad power to issue a non-disallowable legislative instrument requiring 'a class of persons' to undertake a visa revalidation check 'in the public interest'. This is extraordinary. It must be a matter of enormous concern to any responsible legislator in this parliament—if there are indeed any Liberals left in the Liberal Party—and, indeed, to citizens. The key reasons I say this are, firstly, there is no guidance or restriction whatsoever provided in the legislation as to what the class of persons may be. The minister could decide on a whim to identify people of any race or any religion or any eye colour or hair colour and so on. That may sound fanciful; it may sound exaggerated; you may be shocked; but it is true. There is no guidance, secondly, as to what is in the public interest. There is waffle in the explanatory memorandum of examples but no definition, and this power is not limited to circumstances where the minister identifies a risk to the Australian community. Thirdly, the minister's extraordinary power here is not reviewable or disallowable by the parliament. There is no parliamentary scrutiny and it is unclear as to why. There is scrutiny available for the visa classes but not for the class of persons. So a single minister, now or in coming years, if we pass this could decide to pick on any group of people in Australia. The shadow minister was kind when he talked about inadvertent consequences, but it smells fishy or suss to many of us. It is an extreme order or an extreme vetting power, but this is not even about filtering who comes into our country, as is the debate in the United States. There is no restriction on this power being used to threaten long-term permanent residents. Frankly, every permanent resident of Australia should be deeply worried by the power that this gives to a minister of the Crown. It is unclear also as to how or to what extent federal antidiscrimination laws such as the Racial Discrimination Act even apply and it is unclear as to whether merits reviews of these decisions are available.

The shadow minister and the member for Scullin have remarked upon the appalling record of this minister—the shameful record of race baiting in public and in this chamber—but that, to my mind, is a distraction. There is good news for the House: Peter Dutton will not be the minister for immigration forever. I am confident of that. So let's try not to think of him. Let's put him out of our minds. It is a happier place.

There is a deeper principle here for legislators, which is: should any minister of any persuasion from any party have such a power that is so broad? At a minimum, parliamentary oversight is warranted. But I do not believe the policy case for this kind of power has been made, and this parliament should not provide it to any minister, whether it be my party or any other party fronting up. Our job is to ensure that powers granted to ministers are proportionate to a clear, objective requirement and are properly oversighted. My view is that we grant the required powers, and no more.

In relation to the current construct of the act, this is no little fiddle. It is true that the minister has extremely broad powers under the Migration Act, and it is one of those acts, as we know, where the minister is a god, in a legislative sense, and has incredibly broad powers over individuals and cases, and I accept that. But this goes much further. The advice that I have received is that no Australian immigration minister has ever had the power to issue a non-disallowable legislative instrument which imposes obligations on a specified class of persons which can have consequences for that person's visa. Primarily the act is constructed so the minister has these broad powers to deal with specified classes of visas or individual visa holders.

For the sake of completeness, there are a few minor procedural abilities in relation to classes of persons in relation to the issuing of visas, or so I am advised; things like evidentiary requirements, fees, health checks and so on—and that is fair enough—when people are applying; but nothing approaching this. And, given the purported reasons for this legislation in the second reading speech, it is fair to say that this is an unwarranted, sneaky grab for power, and it is deeply troubling, to my mind, in this era of growing populism.

True democracy hands power to those who the majority choose. But implicit in—indeed, core to—our democratic compact is an understanding that the rights of minorities are protected and respected and that individuals and groups are protected from government overreach by checks and balances. If we let that slide, then we drift very quickly from populism to authoritarianism and fascism. It may sound extreme, but we forget these lessons of history at our peril.

Our role as legislators is to fully scrutinise, to reflect on and to review powers granted to the executive, to give what is required and no more. It is important to rebuilding trust in this great institution of parliament and our vocation, here in this people's house, that we take that seriously. We should oppose schedule 1, as drafted, in the strongest possible terms, because the policy case has not been made out.

The Senate inquiries, as has been mentioned, raised multiple concerns. The Legal and Constitutional Affairs Legislation Committee raised concerns regarding the lack of parliamentary oversight. The Scrutiny of Bills Committee raised concerns about the breadth of the power. They noted that it is unclear why legislative limits to the type of visas cannot be set, and described it as inappropriately broad in scope. They noted that 'adverse information' for a revalidation check is not defined in the bill. There is no clarity as to what information a visa holder may be required to provide. There is circular waffle in the explanatory memorandum, verging on being evasive. The Law Council raised concerns about this. And the shadow minister, the member for Blair, outlined very eloquently serious concerns about these adverse information provisions and some of the concerning scenarios. The Parliamentary Joint Committee on Human Rights noted that this breadth: 'has the potential to engage a number of human rights, including Australia's non-refoulement obligations, the right to an effective remedy, the right to liberty and the right to protection of the family.' I sought advice, and they sought advice, as to the safeguards that can be included in the legislation, such as limiting this to long-term visas—the problem we are trying to solve, or so we thought; making clear the basis on which a revalidation check can be provided; and the requirement that this be based on an objective assessment of an increased risk to the Australian community, not a ministerial whim. To my knowledge—and I am happy to be corrected—the minister has provided no substantive response to those points.

So I appeal, as do my colleagues, to the decent, moderate legislators opposite to force a rethink, however that happens in your party. This needs to be rethought. I would encourage you to imagine your reaction, as decent Australians—there are some there—if we introduced this kind of provision. What would your response be?

It is clear that this is not just bad legislation. It is not just sloppily drafted. It is dangerous and it is wrong. It is a classic example of executive overreach.

The white Australia policy is long gone. Australia's discriminatory immigration policy is gone. There are some fringe voices—some opposite, but many in the other place and elsewhere—trying to bring it back. I am not suggesting that the majority of the government or the government's formal position is to do that. But this legislation provides a wedge, a head of power, which we should not let through, that could allow a minister—this minister or a future minister—to bring back discrimination in our migration program. This is not who we are or who we want to be. It is not necessary—unfortunately, in my view—to prove that someone has an intent to do that. The fact that a minister could is more than sufficient basis for us to oppose this schedule, and it needs to be rethought. So let us not do this. Let us split this bill. People on this side want to work together.

I think I have made my point about schedule 1, so I turn now, briefly, to schedule 2. As to the cessation of visas not in effect, I have no particular comments to make, given that no substantive issues were raised by the Senate committees, and the provisions clarify the circumstances in which a visa can cease to be in effect under the Migration Act.

In relation to schedule 3, contactless immigration clearance: it is to enable the lawful introduction of the next generation of SmartGates. It is fair to say that I, like most Australians I am guessing, love coming home, and I love SmartGates. Melbourne Airport is where I usually arrive home—generally; occasionally, I get that horrible transfer through Sydney—though not always. And it is a great place. It is quick and efficient. Most countries give their own citizens preferential treatment when returning home, but—and maybe it is a sign of my age—SmartGates still seem like a form of magic! So I am pleased to know that things are progressing to the next generation of technology—contactless SmartGates.

Labor, at the election, outlined policies which support the introduction of new technologies to modernise current systems and further reduce processing time for greater numbers of people, giving a more efficient arrival experience. And obviously it is critical to ensure that technology provides ongoing security and properly identifies people. So no substantive issues were raised.

In summary, I say to those opposite: I urge you, I plead with you, to reflect on schedule 1, do the right thing and take it out of this bill. Let us sit down and find a sensible, moderate way which does not provide an inappropriate and appalling head of power to any minister in the future.

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