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

I rise to speak on the Migration Amendment (Validation of Decisions) Bill 2017. This bill seeks to make the Migration Act 1958 preserve existing decisions under section 501 of the Migration Act. These are decisions of refusal or cancellation of visas on character grounds. These decisions are often made whilst relying on information provided by law enforcement and intelligence agencies, which is protected from disclosure to courts, tribunals, parliament, parliamentary committees or any other person, under section 503A of the act. Labor has referred this bill to the Senate for an inquiry, which is due to report on the 4 September 2017. Labor will support this bill through the House today. I note that the minister has in the media and social media demanded that Labor support this legislation. The irony is the minister already knows that Labor supports this legislation; indeed, our offices have negotiated that a short Senate inquiry take place, with a reporting date of 4 September 2017. It might pay for the minister to stop preening, posing and parading for the position of Prime Minister of this country and actually do his job.

Labor regards the security and safety of all Australians with the utmost seriousness. That's why Labor supported the amendments made to section 501 of the Migration Act in 2014 and continues to support them to this very day. Labor supports the refusal or cancellation of visas of noncitizens on character and criminal grounds and the removal of criminals from Australia. The community expects to be kept safe from serious offenders, and Labor is committed to this outcome. Section 501 of the Migration Act sets out when a visa can be refused or cancelled on character grounds, when a person fails the character test or when the minister reasonably suspects that the person does not pass the character test. A person can fail the character test in a number of ways, including having a substantial criminal record; if they are a member of a group or organisation involved in criminal conduct, such as an outlaw motorcycle gang; if there is a risk that, while in Australia, the person would engage in criminal conduct; or if there is an Interpol notice that the person presents a risk to the Australian community.

Immigration ministers have the critical responsibility to make decisions relating to immigration matters. This includes making decisions to cancel visas where appropriate, decisions made on the best information available to the minister and the Commonwealth's interpretation of the Migration Act. These decisions can often include protected information from our security and intelligence agencies. Section 503A of the Migration Act protects this information supplied by law enforcement agencies or intelligence agencies from being disclosed where that information was communicated to authorised migration officers by an agency on the condition that it's treated as confidential information. Labor notes that there has been some reporting of cases before the High Court challenging the constitutional validity of section 503A. It would be inappropriate to comment on these cases, but Labor agrees that it's in Australia's best interests to preserve the validity of affected past decisions made by previous immigration ministers, both Labor and Liberal, to refuse visa applications on character grounds. That is what these amendments seek to do, and that's why Labor will support the legislation in the House today.

The new section 503E, validation of decisions, is being inserted before section 504 of the Migration Act. The new subsection 503E(1) provides that if section 503A is not valid law of the Commonwealth, in whole or in part, the new subsection 503E(1) will prevent decisions made by a minister under section 503A from being invalid, because the decision relied upon or had regard to confidential information protected or supposedly protected by the existing section 503A subsections (1) and (2). This information can come, as I said, from the Australian Federal Police, the Australian Security Intelligence Organisation or the Australian Criminal Intelligence Commission. The new 503E(1) applies to decisions made by the minister in a whole range of sections, including section 501. It also includes decisions made by the delegate of the minister. The new subsection (2) in 503E ensures that subsection (1) doesn't apply to decisions that are subject to court proceedings where judgement is reserved by a court as at commencement of this item or in which a judgement has been delivered by a court before commencement of the item, setting aside declaring an invalid decision.

I do note that the provisions for disclosure of information by immigration ministers already exist in subsection (3) of section 503A of the Migration Act. For the benefit of the public, the immigration minister may declare certain information in certain circumstances and disclose that information to a court or a tribunal, but the immigration minister must consult with law enforcement agencies or intelligence bodies before doing so. The amendments before the House today also do not affect a person's ability to seek judicial review of a decision. Nor do they affect a person's right to seek merits review of a relevant decision, to the extent that such review is provided for under existing law. An individual has the ability to have visa decisions reviewed by the AAT if they're not satisfied with a visa decision. Character cancellations can often be very complex matters, and it's incumbent on ministers to be aware of their responsibilities and act in a timely way on visa decisions and with the best possible information provided.

In January the Commonwealth Ombudsman released two reports investigating the administration of Australia's immigration system. The first report examined the administration of section 501 of the Migration Act, a matter before the House today, and the second examined the administration of people who have had their bridging visas cancelled due to criminal convictions—another germane factor today. The reports highlighted significant failures by the immigration minister and his department to adequately manage the volume of people in detention, leading to the ongoing mismanagement of cases. There is no denying that noncitizens who commit serious offences in Australia know that they will be deported under either side of politics. Noncitizens cannot remain in Australia if they seek to do harm to our country or its people. However, that doesn't mean that immigration ministers can leave children and families in limbo, and there's simply no excuse for poor administrative processes that create uncertainty and distress for families.

The reports I refer to contain a number of damning findings regarding the management and documentation of people held in detention, pointing to 'a case management system that is struggling to adequately manage the volume of people in immigration detention'. The report into the administration of section 501 of the Migration Act also pointed to people being held for 'unnecessarily prolonged and potentially indefinite periods of immigration detention'.

Labor will not stand for mistakes or errors by the immigration minister and will continue to hold the government to account. Labor has consistently demonstrated our bipartisan commitment to keeping Australia and Australians safe. It's absolutely crucial to protect the ability of our law enforcement agencies and intelligence bodies to freely provide information to immigration ministers to make decisions. Labor wants to uphold the integrity of the Migration Act and ensure this bill is absolutely watertight. That's why this bill has been referred to a short Senate inquiry with the timetable agreed with the government, as the minister well knows. This vital parliamentary process is really important to ensure proper oversight, allow the public to make recommendations and raise concerns in relation to the legislation and make submissions to guarantee appropriate scrutiny. It's a process we deal with every day in this place.

Labor requested a briefing on this bill. We did so in mid-July. After the briefing was provided last week, we advised the minister's office of our preference to have the bill referred to a Senate inquiry. The government agreed in relation to that, and it will come back on 4 September, which is the first siting day after this week. Labor believes it's essential to preserve the validity of affected past decisions to refuse visa applications on character grounds. There is simply no question of that. That's why Labor will support the passage of the Migration Amendment (Validation of Decisions) Bill 2017 through the House today. I commend the bill to the House.

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