Ross Hart (Bass, Australian Labor Party) Share this | Hansard source

I rise today to speak on the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 currently before the House. The purpose of this bill is to amend the Migration Act 1958 in three broad ways. It will enable the use of contactless SmartGate technology during immigration clearance, it will clarify when a visa ceases to be of effect under the Migration Act, and it will also introduce a new revalidation check framework for visas.

Let me start by noting that there are elements of this bill that Labor took to the last election. Measures are included ensuring our competiveness as a nation in the Asia-Pacific region, removing ambiguity in current legislation, improving technology that supports greater flows of people and minimising delay whilst maintaining the ability to identify persons of concern.

This bill also supports the pilot of a proposed 10-year validity visitor visa, created in part with the aim of attracting visitors from the world's fastest growing outbound tourist market—that is, China and India. The 10-year visitor visa will encourage repeat visits to Australia by genuine tourists and business people, hopefully giving this economy an edge over similar markets such as the United States and Europe.

Tourism Australia reports that visitors from China generated $8.3 billion in total expenditure in 2015. China is already our largest source of tourism, worth over $5 billion. It would seem fair to assume, as the government has done with this pilot visa program, that increased visitor numbers to Australia from China will continue to translate into significant benefits for our economy.

However, Australia's visa costs impact upon our competitiveness as a nation in the Asia-Pacific region. There is, of course, an imperative to ensure that every discretionary cost within the government's control is minimised. Labor plans to undertake an audit of Australia's tourist visa offering for each of our main target markets and to undertake an assessment of how that offering compares to our major competitors.

With respect to the Chinese tourism market, Labor will review the cost of the 10-year multiple entry visa so that it is competitive with that for Chinese citizens visiting, for example, the US and the EU. We plan to introduce an online visa application in both English and Mandarin which can be submitted online anytime, as well as reduce the processing time for visas submitted online to within 48 hours.

Labor will also continue the rollout of SmartGate at our borders, as enabled by this bill, whilst exploring and investing in new technologies which can further reduce delays and modernise existing systems. Under this legislation, the contactless technology is to be rolled out for SmartGate in major airports from May 2017. The use of contactless SmartGate technology during immigration clearance will speed processing times, as the technology uses biometric capabilities to facilitate self-processing for up to 90 per cent of international travellers. SmartGate can also confirm a traveller's identity without the need for manually presenting a passport using live facial mapping compared to a verified image from departmental holdings.

I would also note that amendments contained in this bill act to remove an existing ambiguity as to whether a 'ceasing event' under certain sections of the Migration Act can apply to a visa that has been granted but not in effect. By clarifying the circumstances in which a visa can cease to be in effect, this bill operates to provide certainty under the act.

From what I have described so far, this legislation appears to be run-of-the-mill, straightforward legislation. For two of the three amendments so far contained in the bill, that is more or less true. What I would like to draw attention to, however, is that the legislative framework contained in this bill by which visa holders may be required to undergo a 'revalidation check' at one or more points during the visa period has some significant problems.

On the face of it, with respect to the introduction of the 10-year visitor visa, a revalidation check would seem to be a sensible measure. Certainly a person who is granted such a visa at any point in time may experience a change in their personal circumstances over a 10-year period, meaning that, for whatever reason, it may be no longer appropriate that they are granted entry into Australia. In his speech, delivered on 19 October 2016, the Minister for Immigration and Border Protection made much of the fact that it is necessary to manage the risks associated with granting a visa for a period of 10 years. The minister went on to say:

This 'revalidation' will be used to ensure that visa holders continue to meet genuine temporary entrant, identity, health, character, passport, national security and other criteria over the 10-year period.

The minister also said the following:

… schedule 1 of the bill also introduces a 'public interest' revalidation check to manage specific, serious, or time-critical risks in relation to an identified cohort of visa holders. In such circumstances, issuing a personal ministerial revalidation requirement will immediately prevent specified visa holders from being able to travel to and enter Australia until they successfully revalidate their visa. This will ensure that we have up-to-date information on an individual's circumstances and we can effectively mitigate potential risks to the Australian public, while providing a streamlined mechanism to facilitate travel as appropriate.

What is not sensible—what is in fact of great concern, certainly to me and to the Labor Party—is that under this bill the visa revalidation check is not limited to the 10-year visitor visa category. Rather, the visa revalidation check could be applied to the holder of any Australian visa. Let me be clear: this legislation provides the minister for immigration the power to require a revalidation check of any category of visa, including protection visas, spouse or family visas, or permanent resident visas. Let me repeat that last point: permanent residents of this country may be required to undergo revalidation checks upon criteria to be determined by the minister.

The bill further provides the minister the power to determine that a specified class of person holding a visa of a prescribed kind must complete a revalidation check if the minister determines that it is in the public interest to do. To top this all off, this determination is not a disallowable instrument. The minister is only required to provide a statement to the parliament. There is no scope for parliamentary oversight.

On 10 November 2016 the bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for inquiry and report. The committee tabled its report on 28 November 2016, with the majority report recommending that the bill be passed. The committee noted concerns from interest groups regarding the visa revalidation system and the oversight mechanism in place but was satisfied that the proposed measures were 'necessary and justified' and would 'lead to good outcomes for both the integrity of the Australian immigration system and the national economy'. In regard to the specific public interest revalidation checks, the committee encouraged the government to consider that the ministerial exercise of powers in relation to those checks would be subject to disallowance by the Senate.

The question of oversight of the exercise of power by this parliament is not an abstract consideration, in my submission. The power reserved to the minister is broad and discretionary. As the bill is presently drafted, there are effectively no limits upon the exercise of the power, to such an extent that a minister might, in my view, make a decision requiring revalidation which would otherwise offend, for example, the Racial Discrimination Act, in that a class of persons might be selected by a criterion that would normally be prohibited. There is an open question as to whether other legislation, in particular federal antidiscrimination laws, might operate to place limitations on the exercise of the minister's power. It might be the case that a ministerial determination that applied to a particular class of persons on the basis of race or some other objectionable criteria would be subject to legal challenge as breaching provisions under the RDA. It is not a stretch to suggest that recent criticism of executive orders issued by President Trump with respect to immigration controls affecting permanent residents—in that case residents holding so-called 'green cards'—could equally apply here, but in this case to an express power that is proposed to be granted to the minister by virtue of this legislation. In such a case we, as a parliament, would stand condemned. Put yet another way, the exercise of this broad power may be unconstrained and not subject to review or oversight except through expensive legal challenge.

Selection of a class of individuals by reference to race or any other characteristic, upon public interest grounds, might be permitted. This should not be a power that is given to a minister except in specific, not general, circumstances and certainly not without oversight in this place or administrative review. Public interest grounds such as health, national security, compliance with the law and the like are not criteria that provide effective limitations upon the exercise of this power in a bona fide manner. Rather, a minister might see those public interest grounds as an opportunity to characterise or dress up the circumstances of the case to justify acting against a group of individuals, whether by reference to race, religion or other criteria.

Although the minister's explanatory memorandum states the revalidation check is intended to support the proposed introduction, on trial, of a specific new, longer validity visitor visa—that is, the Chinese 10-year visa—the bill itself does not link to any particular visa or visa type. As indicated earlier, it confers on the minister a broad discretion to prescribe in regulations any kind of visa as being subject to revalidation requirements. Regulations made to prescribe a visa for the purpose of the proposed subsections 96B(1) and 96E(1) will be subject to parliamentary scrutiny via the normal disallowance process; however, the minister's determination that a particular class of persons holding this prescribed visa type must complete a revalidation check would not be subject to the same disallowance process. As 'public interest' is not defined under the Migration Act, the proposed provision gives the minister the very broadest discretion.

A revalidation check is defined as a check as to whether there is any adverse information relating to a person who holds a visa. 'Adverse information' is not defined in the legislation. A visa holder will pass the revalidation check if the minister is satisfied there is no adverse information relating to the person or that it is reasonable to disregard any adverse information relating to the person. The bill does not specify the types of information a visa holder may be required to provide. When a revalidation check is required, a written notice must be given to the visa holder, specifying how that person is to complete the revalidation check. The explanatory memorandum notes:

Adverse information … is to be given its ordinary general meaning when considering whether the information relating to the person is adverse. Whether the information is adverse will also depend on the circumstances of each particular case and depend on the visa held by the person as a revalidation check will generally be directed to determining whether the person continues to meet the criteria for the visa that has been granted.

The Law Council of Australia has raised concerns with respect to the broad definition of adverse information currently used in the migration regulations in the context of employer sponsorship and nomination.

It noted that this covers a wide range of activities committed not only by the relevant person but also by an associated person, and does not relate to either the criteria for the grant of the visa or the matters which may expose a person to visa cancellation under the existing provisions of the Migration Act. Also, the ANU College of Law Migration Law Program pointed to the broad range of matters covered by the definition and queried whether a similar definition will be inserted into the migration regulations to apply in the context of the revalidation checks. The explanatory memorandum to this bill does not provide clarification on this issue.

In summary, therefore, Labor is not prepared to pass this legislation unamended. We will be moving amendments to the legislation in the other place. It is not appropriate for us to simply pass this legislation. This parliament will stand condemned if we give this minister the power to act with the broadest discretion permitted by this legislation. Thank you.

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