Andrew Giles (Scullin, Australian Labor Party, Shadow Minister for Cities and Urban Infrastructure) Share this | Hansard source

I rise to restate Labor's longstanding position on the Migration Amendment (Strengthening the Character Test) Bill 2021. Labor has consistently engaged in good faith with the government to amend this bill and its predecessors. In 2014, Labor supported changes to the Migration Act moved by the Abbott government to strengthen the character test, introduce mandatory visa cancellations for foreign nationals who served a custodial sentence of 12 months or more, and provide further discretionary powers to the minister to cancel a visa. These measures brought Australia into line with other countries. Since 2018 the government has proposed further changes, which are contained in this bill. For the past four years, with three immigration ministers and through three Senate inquiries, we have raised our concerns time and time again.

To be clear, we have three main concerns with this bill: the risk of low-level offending being captured by the cancellation regime, the retrospectivity in cancellation, and the significant and corrosive impact this bill has on our relationship with New Zealand. As the bill stands, it does not adequately address these concerns, and we will be seeking to deal with these matters by way of amendments in the Senate. This bill and its prior iterations have sat on the Notice Paper for almost 1,200 days. The government has had ample time to get this right. The shadow minister, Senator Keneally, has written to the many ministers. The shadow minister has met with the current minister. They even reached an agreement, only for him to tear up the deal. The minister is yet to explain what it is that he wishes to be able to do that he cannot do already. As the Novak Djokovic debacle shows, the Migration Act already gives the immigration minister godlike powers. The minister can cancel the visa of anyone who is or might be a risk to Australians and to our society.

I want to briefly set out Labor's concerns on those three areas, firstly turning to retrospectivity. The imposition of a mandatory failure of the character test would apply to people who have been convicted at any point in the past. Some of these individuals will have lived in Australia for decades with no recent criminal history. A number will previously have been considered by the minister or the department and been determined through that process to pass the character test. The bill introduces a form of double jeopardy in relation to visa cancellation. In raising this retrospectivity concern, Labor notes a recommendation regarding retrospectivity in a December 2017 report issued by the Joint Standing Committee on Migration, then chaired by now Assistant Minister Jason Wood, recommending that any changes to the mandatory visa cancellation regime 'be accompanied by a caveat that no retrospective liability is thereby created'.

There is also the issue of the treatment of low-level offending. A person could be subject to discretionary visa cancellation under this bill but not under existing law where they have been convicted of a designated offence but the conduct is such that it could not reasonably support a suspicion that the person is not of good character. This could include, for example, a conviction for assault for grasping a person by the sleeve. The minister did come some way with his amendments to the last bill, which I acknowledge. I do note that these have been incorporated into this bill. But, unlike the existing definition of substantial criminal record in section 501 of the Migration Act—a person sentenced to a term of imprisonment of 12 months or more—the test this bill applies is not the actual sentence served. To ensure consistency across the act and to address issues identified by various stakeholders regarding low-level offending, Labor requests that the government agree to amend the bill to use the existing substantial criminal record definition within section 501.

I want to turn to the issues that go to our relationship with our good friends in New Zealand. The New Zealand government has said that this bill would make a bad situation worse for New Zealanders and, therefore, New Zealand. Prime Minister Jacinda Ardern has publicly described the impact of cancellation as 'corrosive'. High Commissioner King wrote to the Senate inquiry expressing serious concerns about the bill and rushed inquiry process and the disproportionate impact these amendments may have on the hundreds of thousands of New Zealand citizens living and working in Australia. Previously, the government of New Zealand raised concerns about the retrospectivity provisions of the bill and the deportation of people who arrived in Australia as young children. Critically, they have repeatedly pointed to the corrosive effect that Australia's visa cancellation and deportation policies have had on bilateral relations. Nothing in this bill attempts to address the valid concerns raised by the New Zealand government, nor has the government taken steps to repair strained relations with one of our closest neighbours. These are priorities for Labor, which is why we have requested a detailed review of the ministerial directions, with regard given to the impact of visa cancellations on New Zealanders.

This need not be yet another example of the Morrison government seeking to divide Australians. This is especially important where all of us in this place have shared concerns relating to domestic violence. If the parliament can speak as one on this issue, recognising and advancing our shared concerns, this is important. This bill fails to recognise the complex nature of family violence, particularly for temporary migrant victim-survivors and it may increase the reluctance of victim-survivors to report family violence offences if they could have their own visas cancelled as a consequence. This issue was raised by many submissions to the Senate inquiry, including by the Law Council of Australia, and the potential unintended consequences of the bill as drafted must be addressed. The Department of Home Affairs, in their submission to the Senate inquiry, noted that broad grounds to refuse or cancel a visa due to family violence offending already exist in the visa cancellation framework. Indeed, ministerial direction 90, which governs section 501 visa cancellation and refusal decisions, requires that acts of family violence be considered as very serious, regardless of whether there is a conviction for an offence or of the sentence imposed. The current regime, therefore, provides a rigorous regime which treats family violence seriously in the exercise of the discretion regarding the refusal or cancellation of a visa. The minister should stop playing politics with family violence and instead consider the changes sought by the temporary visa working group, the National Advocacy Group on Women on Temporary Visas Experiencing Violence and the inTouch Multicultural Centre Against Family Violence to provide meaningful support to temporary visa holders who have experienced family violence.

I should note that the only difference between this bill and its previous versions is an alteration to the definition of a designated offence. Conviction of such an offence would deem that a person had automatically failed the character test, but it of course would still be up to the minister to exercise discretion to cancel the visa. The bill that's before us now seeks only to amend section 501 of the Migration Act. Yet, yesterday, we saw the minister talk about issues with respect of the cancellation powers in sections 116 and 17 in the Migration Act. This is an issue that had not been raised before with Labor or across three Senate inquiries. It's not clear that the bill in its current form addresses this issue, and we can only assume the government will be moving amendments to do so. As they are not amending the bill here, they must be amending it in the Senate. This morning the minister spoke about the need to get this bill passed, yet today in question time he spoke about running out of time before the election. It just doesn't look like he is serious when it comes to the issues contained in this bill.

As I foreshadowed, Labor will move amendments in the Senate to address our concerns about the impact on New Zealand and the retrospectivity of the bill. The matters this bill deals with should not be issues which divide us; they should not be mischaracterised, nor should our longstanding position be misrepresented. We remain willing to engage constructively with the government to improve this bill. The improvements we seek are important and they should not be controversial.

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