Graham Perrett (Moreton, Australian Labor Party) Share this | Hansard source

I rise to speak on the Migration Amendment (Validation of Decisions) Bill 2017. As my good friend the member for Blair has indicated clearly and consistently, Labor strongly supports this legislation. Labor will always take our national security seriously. In fact, we take our national security so seriously that we would never use it as a cheap political tool, as Minister Dutton has done on this occasion by using fake patriotism and fear as a way to attack the Labor Party.

I know that playbook well. You can see that playbook when you read back through the pages of history. Minister Dutton got a few facts wrong. We saw that when he put out a press release saying that the member for Blair and the Labor Party should support this legislation, when he had already had meetings with the Labor Party where we had an agreed process. That shows the cheap political opportunism of this minister. We can see that this minister is not competent when it comes to doing his job. This minister is about to enter his fifth year in government, and what have we seen? We have not seen him act appropriately and do his job in terms of dealing with asylum seekers and dealing with appropriate processes. He's sitting on his hands. I long ago gave up on the idea that he would have compassion, but I will never stop asking for a minister to be competent. At the moment, we have a minister who stands up every day in question time, beating his chest, saying how tough he is and how strong he is on borders and throwing accusations at the Leader of the Opposition, but fundamentally this minister has not been competent when it comes to doing his job.

As I said, and as the member for Blair made clear, the minister did this sneaky political trick of leaking information to the newspapers about a piece of legislation that was introduced in June, was shown to us in July and then is suddenly urgent in August. This is cheap political tactics when we should take the security of the nation much more seriously.

Who we allow to stay in Australia is one part of our security that we can have substantial control over. It's important that we get the visa process right. I know there is a process to simplify that, and obviously the Labor Party will look closely at that. We will always do that. But it's important the immigration minister, whoever they may be—be they Liberal or be they Labor—have the capacity to refuse a visa to a noncitizen if they do not meet the character test set out in the act. Obviously that's important. So Labor support the refusal or cancellation of visas to noncitizens on character or criminal grounds and the removal of criminals from Australia under section 501 of the Migration Act.

Some of the decisions to be considered were actually made by Labor ministers. I note that there are cases before the High Court at the moment that will involve some consideration of sections of the Migration Act, and I won't be inappropriately commenting on those cases. I did see on Monday in question time that we had 'Chief Justice Turnbull' announcing what the High Court would decide, but I actually do respect our judicial process and know that the High Court will do its job.

There is no doubt, though, that it is in Australia's best interests to preserve the validity of decisions that have already been made to refuse visa applications on character grounds. So I say again for the benefit of the minister, who has walked in, Labor does support this bill. I say that in the presence of Minister Dutton because what we have is a minister walking around with a wedge and a sledgehammer. He's desperately swinging this sledgehammer and trying to drive a wedge somewhere between the Australian people and the Labor Party by saying: 'Labor is not strong on national security. Labor is not strong on immigration.' We have seen this behaviour from this minister day after day in question time.

If this minister were a bit more competent and able, I might be able to talk through the legislation a bit more, but I want to say a few things on the checks and balances that are appropriate in the Westminster system of democracy. There are some concerns about this legislation, raised significantly by the member for Moore, who is the chair of the human rights committee, in his report that he tabled this week in parliament. I will take the parliament to some of the concerns raised by the Parliamentary Joint Committee on Human Rights. That is a committee that Labor does not have the majority of numbers on. This bipartisan committee, with a Liberal majority—including people such as Senator Paterson, not exactly well known as a left-wing member of this parliament, and Senator Reynolds, to name just a few—has recommended that the minister provide further advice on a number of human rights compatibility issues. The minister has been asked to provide advice as to the compatibility of the measures in the bill with the right to due process prior to expulsion.

We have a long history of balancing the rights of the parliament and the judiciary and making sure that every man, every woman—every person—is treated equally before the law. In fact, article 13 of the International Covenant on Civil and Political Rights states:

An alien unlawfully in the territory of a State party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with the law and shall, except where compelling reasons of national security otherwise required, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

There is clearly an exception contained in article 13 where there are concerns about national security. That is an important safeguard. But due process is still important, particularly when the outcome of the process may be expulsion from Australia.

The committee, chaired by the member for Moore, a member of the Liberal Party, has requested that the minister particularly advise on:

… inability of affected individuals to contest or correct information on which the refusal or cancellation is based …

Article 9 of the International Covenant on Civil and Political Rights prohibits the arbitrary and unlawful deprivation of liberty. This right to liberty extends to all forms of deprivation of liberty, including immigration detention. Arbitrariness may also include elements of injustice and lack of due process. The Migration Act provides that, upon the cancellation of their visa, a noncitizen will be classified as an unlawful noncitizen and will be subject to mandatory detention prior to deportation. Generally, it would not be arbitrary to detain a person for a reasonable time while they await their deportation; however, it may become arbitrary in circumstances where a person is subject to a significant length of detention without knowing or being able to contest the information on which their detention is based before an independent body. Where a person is deprived of legal safeguards to effectively challenge the basis for their detention, such as access to the information that was relied on to support their visa cancellation, the report advised the minister that there may be 'a risk of arbitrariness'.

The statement of human rights compatibility accompanying this bill, provided by the minister's department, said that the measures contained in the bill are reasonable and that the detention of a noncitizen would not be considered unlawful or arbitrary under international law, and certainly ensuring the safety of Australians and the integrity of the immigration system may be legitimate objectives under international human rights law. However; the bipartisan committee—as I said, chaired by the Liberal member for Moore, with a Liberal majority—have requested that the minister provide advice about the compatibility of this bill with the right to liberty, including:

The protection of the family is also an important consideration enshrined in article 17 of the International Covenant on Civil and Political Rights—that is, family members should not be involuntarily and unreasonably separated from one another. The human rights committee was concerned that 'the validation of a visa cancellation could operate to separate family members'. On most occasions, obviously, there would be, on balance, good reasons for so doing, but the committee have requested that the minister provide advice about what advice there will be in terms of safeguards for families.

Non-refoulement is an important obligation under the Refugee Convention, the International Covenant on Civil and Political Rights and the Convention against Torture. Australia is under an obligation not to return any person to a country where there is a real risk that they would face persecution, torture or other serious forms of harm, including the death penalty. The bipartisan human rights committee, chaired by the member for Moore, continually stated:

Effective and impartial review by a court or tribunal of decisions to deport or remove a person … is integral to complying with non-refoulement obligations.

A possible consequence of confirming the validity of decisions to refuse or cancel a visa may be removal from Australia. The statement of compatibility provided by the minister's department acknowledges that this would engage the right to non-refoulement. The committee report scrutinising this legislation notes that the obligation of non-refoulement is absolute and may not be subject to any limitations.

There is a right to freedom of movement, which includes the right to leave Australia as well as the right to enter, remain or return to one's own country. Article 12 of the International Covenant on Civil and Political Rights protects this right. With regard to the proportionality of the bill before chamber, the committee sought further information:

… in particular regarding any safeguards applicable to individuals for whom Australia is their 'own country', such as ensuring their visa is only cancelled as a last resort where other mechanisms to protect the safety of the Australian community are unavailable.

The human rights committee raised serious issues with this bill that need to be addressed by the minister. Obviously, it is a report provided to the parliament, but the minister no doubt would have close regard to the concerns raised by the human rights committee.

I say again that Labor support this bill. Why? Because national security is crucial. It's crucial that criminals, people not of the right character, are refused entry to Australia or, if they have committed those crimes here, that they can have their visas cancelled by the minister, whether that minister be a Labor minister or a Liberal minister. But the issues raised by the human rights committee need to be addressed. We support this bill being referred to a short Senate inquiry where these issues could be further canvassed. We all know that in parliament checks and balances are important—crucial, in fact; an essential part of our democratic process—so we have committees like the human rights committee and the Senate inquiry process to look at legislation and make constructive recommendations. We have seen that in our security legislation, where recommendation after recommendation has come from the Labor Party. They are important in the review process for any decisions made by a statutory body, or if there is ministerial discretion.

We see that the minister who has brought this legislation to the chamber is now setting up a super ministry—the home affairs department that will centralise the existing Border Force, immigration department, Customs, ASIO and the Australian Federal Police. It is appropriate, when we look at the range of powers they will have, that we look at the checks and balances. There will be visa applications, cancellations and appeals; immigration detention centres; deportations; border protection; intelligence gathering; counter espionage; protective security; investigations into departments and agencies; counterfeit operations; disrupting human trafficking; criminal records and criminal history checks; missing persons coordination; airport security and policing; and international crime and policing—all under this super ministry with Minister Dutton responsible. This is a minister who could not organise a chook raffle when it comes to getting people out of our detention centres. This is a minister who is about to start his fifth year in government and we have people in detention who have not moved.

We also hear people saying—as the wheel nuts have come a bit loose on the current Prime Minister's motor vehicle—that Minister Dutton is the great hope for the Liberal Party. Oh my goodness, if he is the great hope, this nation is really going into some serious territory. As I said, I don't expect this minister to have compassion—I would love him to have more compassion—but I do expect him to be competent and I do expect him to provide a detailed response to the Senate inquiry and to the human rights committee that have raised these concerns.

I go back to the essential opening comment that I made: Labor will support this legislation; we didn't need to read about it in The Australian. The minister knew this before he put out his press release saying that this was an important piece of legislation.

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