Scott Morrison (Cook, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

As I rise to speak on the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011, I reflect on the fact that this bill has been introduced by the Minister for Immigration and Citizenship following the riots that occurred at Christmas Island and Villawood detention centres. We all know that there are around 6,800 people in the detention network in Australia—up from just four people who had arrived illegally by boat when we left office. The reason for that is that so many boats have come. I do not think we can pass much further today without noting that yet another boat has arrived, as advised by the Minister for Home Affairs in a press release today—a boat containing 52 passengers and four crew. That is the fourth boat to have arrived since the government announced its people swap deal with Malaysia. Over 150 people have been found coming to Australia since that deal was announced. The government is quickly drawing down on what I call its asylum deal credit card with Malaysia, and it has not even completed that deal. The five-for-one people swap with Malaysia was a proposal conceived in denial and negotiated in desperation. The situation now is completely unclear. Confusion reigns, and it is clear that people smugglers are not buying the Prime Minister's bluff about a deal that is yet to be concluded and about which question marks are raised almost every day, not just from a human rights perspective but particularly from a human rights perspective.

The bill before us today deals with changes to the character test. This bill makes it clear that, from the date of commencement, a person will fail the character test under section 501 of the Migration Act if they have been convicted of an offence committed in immigration detention, during an escape from immigration detention, during a period where a person has escaped from immigration detention or if a person has been convicted of the offence of escaping from immigration detention, whether the conviction or offence occurred before, on or after that commencement. Where a person does not pass the character test because of any of the provisions in section 501, which go well beyond criminal conduct, the minister or his delegate has the power to refuse, grant or cancel a visa on these new character grounds. The amendments would apply only to persons who have been convicted of an offence by a court under the specific criminal conduct provisions that are being introduced in this bill. They would not apply to a person who is charged with an offence or offences but is not convicted. There must be at least one conviction for the amendments to sections 500A and 501 to apply. The coalition will provide some support to this bill, but we will seek to make an important amendment, which I will return to later in my remarks.

This measure was announced after the Villawood riots, but prior to that there were some serious riots on Christmas Island. On that occasion, the Minister for Immigration and Citizenship made some remarks, to which I will draw the attention of the House. I refer firstly to a statement made on 18 March. The minister gave a press conference with, I believe, the Australian Federal Police, at which he said:

Character can have regard to a number of factors: whether somebody has been sentenced for a criminal activity to prison for more than 12 months, and also general conduct and whether somebody’s general conduct implies that they are not of good character … character considerations will be taken into account for those on Christmas Island who have organised and perpetrated this sort of activity. It will be taken into account by our decision makers and ultimately by me.

This was the strong boast from the minister in the wake of the Christmas Island riots, where the Australian Federal Police had to retake the facility by force. They had lost control of the facility, it was in the hands of the detainees, and a pitched battle was waged in that detention centre on Christmas Island.

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

A pitched battle!

Scott Morrison (Cook, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I notice the member opposite interjects. I do not know if he has been to Christmas Island, but I have been to Christmas Island and I was there with the Immigration officials and Serco officers who were there that night. They described to the Leader of the Opposition and me the events that took place there—and it was a pitched battle. Bean bag rounds were shot into those who were in the detention centre. The member opposite may be in denial, like the rest of his government when it comes to these matters, but a pitched battle was fought and had to be won. The centre had to be retaken because of the riots going on. It is extraordinary that those opposite would want to enter into a debate about what happened on Christmas Island when they know exactly what happened there—it was an absolute disgrace. Also, having made it very clear that character considerations would be taken into account and that there were general conduct provisions as well as criminal conduct provisions, the minister was asked on 21 March by Lyndal Curtis:

You've said that you'll take into account the character test when you're considering whether those protesters should be granted asylum in Australia. Is that still the position? Have you made any more decisions on that?

The minister answered:

No, the decision, as I outlined last week, is that the Migration Act allows for character issues to be taken into account; that can take into account whether somebody is sentenced to a jail term for 12 months or more, also more general character considerations can be taken into account.

He thundered on:

But whatever people's frustrations, there is no excuse for violent behaviour. It is simply unacceptable and it is appropriate that the character test be taken into account.

I could not agree more with the minister. On 22 March he said:

I've said on a case by case basis I'll be taking the character concerns into very serious consideration.

And:

I will abide by the Act, but what I have indicated is that the character provisions of the Act allow me or my delegate to take into account prison terms and also general conduct. I will be taking that into account and examining it very seriously.

Section 501(6)(c)(ii) of the Migration Act allows the minister to cancel or refuse a person's visa on the basis of a 'person's past and present general conduct.' This is completely unrelated to section 501(6)(c)(i) which allows the minister to cancel or refuse a person's visa on the basis of criminal conduct which resulted in a custodial sentence of more than 12 months. The government has deliberately, I believe, tried to blur these two provisions. The minister may also personally make a decision to cancel a visa pursuant to section 501(3) and in such a case the decision is not subject to the rules of natural justice nor is it viewable on its merits. Also, the minister is not bound in Australian law by any of the matters set out in ministerial directions that are provided when a decision is delegated. Where a decision has been made by a delegate or the AAT not to cancel a visa, section 501(A) of the Migration Act grants power to the minister to set aside the decision of a delegate or the AAT not to exercise the power in section 501(2) to cancel a visa. The minister personally exercises this power to set aside the original decision not to cancel a visa and to substitute it with a decision to cancel a visa. Further, the rules of natural justice do not apply to such a decision nor is it reviewable on its merits.

The minister has tried to put forward that this bill is necessary to enable him to act as he said he was going to act after the Christmas Island riots. He said the general character provisions would be taken into account and he would be making these decisions. In Senate estimates last week the Secretary of the Department of Immigration and Citizenship confirmed that the minister had sought advice prior to his press conference where he made those announcements about the operation of the general conduct provisions. So the minister had been advised by the secretary when he went to the podium and said very boldly that the general character provisions would be applied. While he has expressed some frustration at using the powers under the act, we find no amendments in this bill to the general character powers that sit under the act—none whatsoever. He has made some changes to the criminal provisions—he is right to do so—but he has made no changes to the general provisions. From that, I understand this minister has no problem with the general conduct provisions in the act. If he believed they needed strengthening and if he believed they were inadequate he would have brought a bill into this House which sought to strengthen the general character provisions in this act, but he has not done so. He has sought to amend an entirely different set of grounds.

This leaves me wondering about the motive behind what we see here today. While there can be some improvement in what the minister has put forward in this bill, it does not offer an excuse for not acting as he said he would. The minister is seeking to perform a ruse here, 'The reason I could not act was that the act was too weak.' He made a bold proclamation after being advised by his department. He was very specific about his reference to the general conduct provision and yet he has made no changes to the general conduct provision in the bill we see before us today. So, by all means, change the criminal conduct provisions, but do not try to put one over people by saying that this was necessary, because he was not prepared to use the general conduct provisions.

I remember at the time that the minister gave the excuse, 'Well, it could be reviewed judicially by the Federal Court.' Well, it might be, but if we did not make a decision in this country every time it might be reviewed by a court we would never make any decisions. Maybe that is the government's plan here because they certainly have not made too many positive decisions in this area for the last 2½ years, other than to wind back the coalition's strong border protection regime and we all know the consequences of that decision. We are in a situation where the minister has sought to make these changes, but he has not provided an explanation about why he has not used the general conduct provisions that were available to him before and after the Christmas Island riots. He has only sought to make amendments in these areas.

I also note that this bill has come forward not after the Christmas Island riots but after the Villawood riots. I am not sure how many riots it takes for the minister to get the point, but it would seem that it took at least two major riots where buildings were burnt to the ground. As I mentioned earlier in the House, the series of incidents, riots and various other activities that have taken place in our detention centres are symptomatic of a rolling crisis. So the government was forced to introduce this bill we see before us only after it saw those further riots. I can say that because in Senate estimates it was revealed that the advice on changing this bill was provided, as the secretary indicated, over the Easter weekend of 22 to 25 April. The riots at Villawood took place on 21 and 22 April, and let us not forget that the riots on Christmas Island took place on 12 March, and here we are debating this bill today. I am not fooled and the Australian people are not fooled by what is happening here. By all means, change the provisions if you think it will improve them, and there are some amendments that will improve things and we will seek to amend elements of those, but at the same time this minister has refused to act. Where has he refused to act?

We all know the tragic story of SIEV36. That happened under the jurisdiction of the previous Minister for Immigration and Citizenship, Senator Evans. He finally has stopped some boats, but he has stopped the wrong ones, in the wrong portfolio. The boats happen to be on our wharves, it would seem. That minister, when he was dealing with SIEV36, did not take action against the individuals who were specifically found by the Northern Territory Coroner—by an independent inquiry—to have been part of the plan to scuttle the boat. That incident resulted in the deaths of five people. It resulted in putting the lives of Australian Defence Force personnel at risk.

That minister, Senator Evans, chose not to act. He chose not to use the general conduct provisions that are available in section 501 of the act and he decided to sit. He decided to sit and sit and sit for his entire term as minister for immigration and thought his greatest failing was his inability to control the debate, not that he had allowed thousands upon thousands of people to arrive in boat after boat after boat while watching our detention centre spiral into chaos. He did not think that was his greatest failing; he thought his greatest failing was that he could not control the debate. I do not think that reflects well on that minister and nor does his failure to take action on those involved in the scuttling of the SIEV36. They walk around in Australia today with permanent visas. These are people who the government believes are of good character, who pass the character test and should be given a permanent visa for stay in Australia.

The other riot occurred in late 2009 on Christmas Island and involved some 150 Afghans and Sri Lankans. People were taken to hospital and people were medivaced to Perth. That was a very serious incident. At the time, 11 people were charged. In November last year three were convicted of an offence, and this minister did nothing. It was on his watch that they were convicted, in November 2010 as reported. This minister had the opportunity at that time to ask for a brief to be prepared on these individuals and on how he could take action to deny visas to the people convicted of these offences. Nothing happened. They walk around today on permanent visas, as was confirmed to us by the minister himself in this place.

We are in a situation whereby we have a minister who is a serial offender when it comes to not taking action, whether it be on those who rioted on Christmas Island in 2009, whether it be on those who rioted on Christmas Island in 2011 or whether it be on those in Villawood who rioted. We even had several of them up on the roof. We learnt last week that the Deputy Secretary of the Department of Immigration and Citizenship was sent in to a roof cavity at Villawood to directly negotiate with those who were protesting and that they were told in the course of those days that if they came down they would not be sent to Silverwater prison, when so many others were sent to Silverwater prison. Not all of those who were sent to Silverwater prison were charged, and not everyone who sat on that roof would necessarily have been charged, but 22 were removed and their concern was that they would be sent to Silverwater prison. They were told that they would not be going to Silverwater prison immediately; ultimately they might be, but if they came down they certainly would not be going there on that day.

We had the bizarre spectacle of the deputy secretary of the department going up there. I feel for the deputy secretary. I think it is a shame and a disgrace that the good officers of the Department of Immigration and Citizenship have been forced into these bizarre scenarios, having to mop up the mess of an incompetent government with failed policies. We had the deputy secretary standing on a box in a room, peering into a roof cavity, negotiating with detainees who were protesting on a roof and several days earlier, I am advised, had been throwing things at fire brigade officers. That is what it has come to.

How does this happen? It happens when you have a government that runs an operation in our detention network that is all carrot and no stick. We have complaint after complaint from those working in this detention network—people working for Serco and at other places—who are being abused, who are being attacked and who are having threats made against their life and their person. There was a case just the other week of someone who had boiling water thrown over them at Christmas Island. It was described to the media by someone in the department as a 'minor incident'. We know it was not a minor incident; we know it was a critical incident. And we know that in our detention network today, on average, more than three critical incidents occur every single day. If that does not demand an inquiry I do not know what does.

I am pleased that in this House this morning we had the opportunity to debate a motion for such an inquiry. Those terms of reference as amended now stand before this House and should be voted on on 16 June in accordance with the normal standing procedure of this House. So there is the opportunity for this House to take up that offer and to look deeply into these matters, to look at what is happening, to consider all the evidence before it, to take evidence in camera, to take evidence from those who are involved in the operations of the system and to get to the heart of why this system has collapsed under the weight of the failed policies of this government.

The form continues. The minister—who was so worked up and so concerned about the state of the detention facility that he was going to use the general character test over and over again but is yet to use it in these types of matters—inherited something else from Senator Evans, other than the mess he is now dealing with, and that is direction 41. Direction 41 was issued by Minister Evans in June 2009 and is an instruction, given under section 499 of the Migration Act, which provides direction to delegates on how they make decisions on section 501. This directive replaced a directive called directive 21, which was instituted by the now Father of the House and the then minister for immigration, the member for Berowra. That directive provided for the following: that the three primary mandated considerations 'for determining whether discretion should be used under section 501 to deny a non-citizen from remaining as Australia' were as follows—these were the Ruddock tests, the coalition tests:

(1) Protection of the Australian community and members of the community;

(2) The expectations of the Australian community and;

(3) The best interests of the child, or children, where they are involved.

Now, specifically, the expectations of the Australian community in deciding whether a behaviour is abhorrent and of bad character has been removed by this government since June 2009. The community expectation—the community standard test, if you like—has been abolished by this government. That standard said the following, under 2.12 of the old directive:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character, concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision makers should have due regard to the government's view in this respect.

That community standards test was abolished by this government, and it is not for returning. It is not for returning, according to the government—they are not interested in having a community standard test on behaviour and what Australians think is appropriate behaviour. And it does not only apply to detention centres; it applies to everyone who is here on a visa. Let us be clear: someone who is here on a visa, in Australia, is a guest of this nation. They are here under specific terms and conditions. They are protected by the various international conventions and treaties that we are signatories of, but they are also guests in our country. And in our country they are expected to abide by our rules, by our laws and by our standards of behaviour—all of them. When they do not, this act provides for remedies to be applied by the minister. And the previous coalition government specifically said, when making those decisions, you need to give consideration to what community standards and expectations are—and this government have abolished those standards, they have abolished that test. I think that is a great shame, and we urge the government to reconsider this matter. If the minister is serious about strengthening the character provisions, as he has boldly titled his bill, then he should reintroduce directive 21, he should re-establish the community expectations test, and that should be something of a matter of importance.

The other thing that was in the previous directive of the former coalition government was that it said in paragraph 224:

… notwithstanding international obligations, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or remain in Australia in the interests of the Australian community ultimately lies with the discretion of the responsible minister.

This provision was also removed. Australia's interests were subordinated to those interests beyond our shores, in the removal of this provision. While they may have been considered, they did not enjoy the standing of consideration that was made possible by the previous directive 21.

So we have form from this government, who are not interested in seriously addressing the issues that sit within our detention network. They can bring these measures into this House, but what they need to address is what is happening within our detention centres as we speak today—and, as we speak today, it is all carrot and no stick; as we speak today, we have people working in those centres who are being abused on a daily basis, without any enforceable code of conduct that enables them to deal with disorder in the centre. Those who get up on a roof, come down from the roof and life continues as normal. That is what happens under the Gillard-Bowen plan for running our detention network. Is it any wonder that it is in such a mess?

I want to turn finally to the provision and its application. While the coalition is supportive of the bill and how it is put forward, we do not think it goes far enough. It does not go far enough in these two areas. Firstly, the bill will only apply to the misconduct and criminal conduct of people either in a detention centre or who should have been in a detention centre but who have escaped. What that says, to all of those Australians, who live all around the country, is that if there is someone here on a visa and they commit an offence—they assault you or do something of that nature; they thump you over the head, or whatever it may be—and they get a sentence of less than 12 months, they will not fall foul of this provision; but if it happens in a detention centre then they will fall foul of that provision. So it is okay for someone to whack someone over the head down at Northies, or down at the Coogee Bay Hotel in Sydney, and get a conviction of less than 12 months, and they can go on their merry way with their visas not addressed in any way, shape or form, and the minister just scurries away again and says, 'Well, it's less than 12 months; there's nothing I can do—my hands are tied.' We know this minister will not use the general conduct provisions; he has already proved that.

On behalf of the coalition I foreshadow that I will be moving an amendment, circulated in my name, that will do the following: ensure that these provisions apply to all visa holders—not just those who are in detention. There should be one rule on one side of the fence and on the other side of the fence. Too often we have seen the inequity, going both ways, in terms of one rule for some and a different rule for others from this government. What the coalition believes is, if you want to change these provisions, if you want to toughen the test, then you have to be fair dinkum about it—do not just apply it to detention centres; apply it to all of those who are on visas here if you are concerned, and the coalition would be concerned. So we are prepared to put forward that amendment, and we would seek support for that amendment from this House.

The reason that they will not support the amendment is that they want to use this as some sort of leverage against bad behaviour in detention centres by, in effect, those who fall foul of these provisions being given a temporary protection visa. Does that ring a bell? They will not call it that. They will call it something like a 'non-permanent visa' or something like that, but what it will be is a TPV—that is what it will be. On this side of the House we think people convicted of crimes, who fail to satisfy the character test, should not be given a visa. That is what we think. We do not think they should get a visa, permanent , temporary or otherwise. If you have violated the behaviour, code, laws and standards of this country then it is no visa for you. You are not welcome in a country where you are going to violate and abuse those rules. So, the same practice and provisions that are applied for those who fail the ASIO security tests should be applied for those who fail the character test and are denied a visa. We put that before the government.

The government likes to say that TPVs will be effective in discouraging bad behaviour in the detention network, but they think they will have no impact on discouraging someone from getting on a boat. The hypocrisy of the argument is laid bare. It does not even need the 50 seconds I have remaining to make the point, because the government inches painfully closer every day to the provisions that were put in place by the Howard government. It is taking them far too long to get there. It is important that this government starts to wise up, move ahead and get to the policies that worked last time. Stop all this mucking around with all these ridiculous deals, none of which ever seem to land. Stop talking to countries that are not interested and not talking to ones that are, like Nauru, and get on with the job of stopping the boats and ensuring that our detention network does not continue to fill up and create the chaos that has occurred as a result of the government's mismanagement.

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

I rise to voice my support for the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. I voice the opinion of nearly every one of my constituents, I would suggest, when I affirm that the recent riots and disturbances at the immigration detention centres on Christmas Island and Villawood are completely unacceptable. Many Moreton constituents have taken the time to contact me and voice their concerns about this reprehensible behaviour. Not only did the riots cause extensive damage to buildings but this kind of irresponsible behaviour also put detention officers and fellow detainees in harm's way.

It is no secret that there are pressures on our detention system, and we are working hard to relieve that pressure by improving processing times for asylum claims and delivering a regional solution to irregular migration and people smuggling. All reasonable Australians know that we need to sort this out. On Friday I spent a day on the Joint Select Committee on the Christmas Island Tragedy, where we saw the footage of that horrific boat accident to SIEV221. It is not something at all we want to be repeated. We know that anything that we can do to prevent such an accident from occurring again should be done.

The Gillard Labor government is committed to an orderly and compassionate immigration process and we will therefore not tolerate the kind of behaviour at Villawood and Christmas Island that many Australians saw on their television screens. That is why this bill introduces tough consequences for criminal behaviour in immigration detention that enhance the current ability for the minister to consider the past and present general conduct and character considerations that still apply—I point this out in reference to some of the mistaken comments made by the member for Cook.

The bill ensures that anyone who commits a criminal offence while in immigration detention will fail the character test, thus enabling the minister to refuse or cancel a visa on this basis. So these two aspects of the immigration legislation complement each other. It means that those who commit offences in detention may be denied the opportunity to apply for a permanent protection visa. This nation will neither embrace nor protect those who bite the nation's hand.

We are not talking about a return to the harsh temporary protection visas of the Howard years, despite the bleating of those opposite. Under that regime all asylum seekers, each and every one, who were found onshore to be refugees were denied a permanent visa. That resulted in a horrible status—eternal limbo. Having spoken to many refugees who went through that process, they called it soul destroying, because of the uncertainty of not knowing. People are able to wait five, 10, 15 or 20 years if there is a light at the end of the tunnel. But the uncertainty that went with the temporary protection visas was soul destroying and horrible. They had no way forward and nothing to wait for, because they did not know whether they were going to be uprooted at any time. The other horrible characteristic was that the uncertainty meant the person had no opportunity to put their roots down in the community, to be a good citizen and to be ready to go once their status changed. By contrast, under the Gillard government system, claims for asylum will continue to be assessed on a case-by-case basis.

However, those who are involved in criminal acts in detention run the risk of being denied a permanent visa. This legislation sends a very strong and unambiguous message to those in Australian immigration detention centres that this kind of behaviour is completely unacceptable—dangerous, and therefore completely unacceptable. It will help to ensure good order in our detention centres and turn those responsible away from destructive and violent behaviour. As the law currently stands, the minister is only able to apply the character test if a visa holder or detainee receives 12 months imprisonment, or more, for an offence committed in immigration detention. This bill amends the Migration Act 1958 to allow the character test to be applied for any offence committed in immigration detention, or during an escape or after escaping, regardless of the actual sentence imposed by the courts. The changes in this bill will apply to these decisions from 26 April 2011 and will relate to offences committed before or after 26 April—that is, from the date of Minister Bowen's announcement. This applies to all people in immigration detention—onshore and offshore arrivals, asylum seekers or otherwise.

I know my electorate well, but the Australian community more broadly has expressed collective disgust at the riots and vandalism we have seen at Villawood and Christmas Island. These amendments will ensure that those who commit such offences in detention will not be rewarded. This bill also increases the maximum penalty which can be enforced for the manufacture, possession, use or distribution of weapons by immigration detainees from three years imprisonment to five. This measure will boost deterrence for the manufacture of weapons and help ensure greater safety for other detainees, detention centre staff and visitors.

When people who are close to staying in what many would see as the promised land are then given a decision by the immigration system that they are not able to stay in Australia, they can behave in a bizarre and irrational way. I understand that. I am a student of literature and it is like Gatsby's green light—the idea of something that is so close yet unable to be grasped. It can make you do bizarre and irrational things like sitting on roofs. I understand that. We have seen that ever since 21 August last year, when the Leader of the Opposition went so close to winning the election but missed out. His behaviour has been quite bizarre and irrational ever since then and it might even continue that way for the next 900 days.

Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

Mr Deputy Speaker, I draw your attention to standing order 90 on reflections on members and the imputation of improper motives. The member is making a direct reflection on the Leader of the Opposition . He should withdraw, and stick to the substance of the bill.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

I would counsel the honourable member for Moreton to observe the standing order and be very careful that he does not reflect on the Leader of the Opposition.

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

Mr Deputy Speaker, could you remind me of that rule again? I do not think I was doing that at all.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

Standing order 90 says all implications of improper motives to a member and all personal reflections on other members should be considered highly disorderly. All I am saying is that all honourable members ought to observe that standing order.

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

With respect, I did not impute any improper motive to the Leader of the Opposition at all.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

The honourable member will resume his seat. I would ask the honourable member for Fadden to specifically point out the form of words used by the member for Moreton which he believes is outside standing order 90.

Stuart Robert (Fadden, Liberal Party, Shadow Minister for Defence Science, Technology and Personnel) Share this | Link to this | Hansard source

It was in terms of flip-flopping around and getting so close and losing direction in terms of where he was going from thereon. It was a direct reflection.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

There is no point of order, but the honourable member for Moreton will observe all standing orders. I would encourage honourable members not to raise frivolous points of order.

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

Thank you, Mr Deputy Speaker. I was making the point that the next election is perhaps 900 days away and it would be strange to see such bizarre and irrational behaviour every single day for the next 900 days.

This bill builds on the government's strong measures to ensure this nation has an orderly immigration system. We understand that those who risk their lives on the high seas to seek asylum in Australia are genuinely desperate people. That is why the Gillard government seeks to treat these asylum seekers with dignity and respect. It is also why we are working with Malaysia and Papua New Guinea to break the people smugglers' business model and deter people from taking that dangerous journey. Looking at the footage of SIEV221, it is quite horrendous to see the decisions people make when their circumstances are such that they will risk everything to have an opportunity in a wonderful country like Australia. Our momentous arrangement with Malaysia means there is no guarantee that any asylum seekers arriving by boat will be processed and resettled in Australia. This will break the people smugglers' business model, and should save lives. Negotiations with Malaysia are continuing, but already the Malaysian government has agreed to treat asylum seekers in accordance with agreed human rights standards. Importantly, Malaysia has also agreed not to send any genuine refugees back to face persecution in their country of origin. That is our obligation under the refugee convention and that is Malaysia's commitment under this bilateral agreement.

Obviously there is no quick fix; three word slogans are not the answer; there is no simple solution. Resettling refugees is a massive worldwide challenge that demands Australia play its part, and I am proud to say that we have done a bit over the years. At the end of 2009 there were an estimated 43.3 million people forcibly displaced worldwide, including 15.2 million refugees, 983,000 asylum seekers and 27.1 million internally displaced persons—that is more than the population of Australia.

As long as conflicts continue around the world and various countries go through political or military upheaval, we will unfortunately continue to see refugees crying out for help. That is a reality that those opposite and those on this side of the House both know. When there is war the normal process is for families to flee from it. That is what people do to protect their children and give them an opportunity. That is why an Arab spring here means a winter of despair there; that is why a freedom fighter's advance here means a family fleeing there. That is the reality of war and it is the same as it has always been. That is why the Prime Minister's announcement to increase our refugee intake as part of the agreement with Malaysia is such an important step forward in our kind and practical response to the international refugee crisis.

When our foreign minister and immigration minister talk to ministers from Italy and other countries in Europe, they say that on any one day there can be more people arriving on Italy's shores than arrive in Australia in a whole year. Nevertheless, it is an immutable tenet of respective Australian governments that we must have secure borders—whether it be putting cannons at Sydney Heads to keep the Russians out or our White Australia policy or all of those various things that we have done in our history: Australians are obsessed with this notion. However, the reality is we only have around 22 million people here. When you look out beyond our northern beaches, we have 11 per cent of the globe to patrol. Even if we had all 22 million people out there in dinghies, we would not be able to defend the borders.

I thank the Minister for Immigration and Citizenship for introducing this bill and welcome the measures to deter criminal and violent behaviour in our immigration detention centres. I commend the bill to the House.

Luke Simpkins (Cowan, Liberal Party) Share this | Link to this | Hansard source

Of all the member for Moreton's contribution, the point I would agree with him on is that there are no quick fixes. Unfortunately, there has been an absolute quick failure. When the government decided that they were going to change a workable system, a solution, and create a problem, they were highly successful with that. They have certainly made the circumstances of a lot of people different over their time since they changed the immigration policies. They have filled up the Christmas Island detention centre and created and filled up detention centres around the country. There is no doubt that the only quick thing that this government has done is failed spectacularly.

That brings us to the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. This bill comes to the House to try to end the embarrassment that the border control failures of the government continue to deliver for the government. The reality is that television cameras have bought into the lounge rooms of my constituents and all Australians the images of riots and misbehaviour in immigration detention centres around the country. The newspapers report the stories of what is going on in the detention centres and the costs of that.

The reality is that the people of Australia are pretty unhappy with the assaults, the riots, the damage and the abuse of the taxpayer provided facilities. There are stark contrasts, of course, where those who are in these detention centres get everything for free, and then some create trouble and destroy the facilities. The contrast is that that is against those on fixed incomes: Australians who do not get free accommodation, do not get free food, do not get free internet and do not get free cigarettes, nose-hair trimmers or other goodies for attending sport or classes. Australia is a very tolerant country. Australians do not mind helping out those who are down and need a hand up, but they do expect accountability.

This bill is a reaction to the scrutiny that only the coalition has provided on this matter. The questions and the close examination provided by the member for Cook, the Leader of the Opposition and many of us on this side have forced the government to at last act in the face of increasing community outrage. I am in favour of these criminal provisions, but this legislation does not go far enough. These are the sorts of legislation and measures that should apply to all those who are noncitizens and commit crimes that attract a custodial sentence, not just those in detention centres. There have been many cases where I would have liked to have seen the cancellation or refusal of visas.

Leading on from this, I again turn my attention to the common theme that my constituents so often raise with me, and that is accountability. Accountability for bad behaviour is a concept that really does mirror the expectations of the Australian community. I think that it is correct that the majority of Australians want due processes to be followed in dealing with those who seek asylum and they want the law obeyed. They want the facilities provided to be respected. They want absolute loyalty and respect for this nation from those who came here to escape another place. It is also true that the vast majority of Australians want judicial liability and process for those who break the law. Australians want those who waste taxpayers' funds and damage taxpayer funded facilities to be responsible for their actions. The vast majority of Australians expect these things and I for one do not think that the expectations of the wider Australian community are unreasonable. After all, we are here to represent the Australian community, the people of our electorates, so that is correct.

In recognition of these matters, in August 2001 the then Attorney-General, the Hon. Philip Ruddock, issued directive 21 in relation to visa refusals under section 499 and for cancellation under section 501 of the Migration Act. In that directive, three primary considerations were mandated: firstly, the protection of the Australian community, next the expectation of the Australian community, and, finally, the best interests of the child or children where they are involved. I certainly supported and appreciated those considerations. As a representative of Western Australia and the representative of the people of Cowan in this place, I reiterate that those I speak to have a clear view that their expectations are valid and should be reflected when decisions are made in relation to visa refusals and cancellations.

However, it was the case that in June 2009 the then minister for immigration, Senator Evans, cancelled directive 21 and, instead, issued directive 41. Unfortunately, what directive 41 took out was the consideration that the expectations of the Australian community be considered when looking at visa refusals and cancellations. I make the point that taking the expectations of Australian people out of this issue is a retrograde step.

I also take the opportunity to speak on the need for a greater level of transparency in this portfolio area. When we look at the series of events that were the catalyst for some action and this bill today, there is an increasing concern that, with each embarrassing revelation that afflicts the government, there is an increasing intention that information will be restricted. There are the details of the Malaysian rip-off swap deal, the treatment that faces those who are sent there regardless of the national guarantees, the riots and the damage to our detention facilities, the general abuse of those facilities, the assaults, and the special deals that are available to those who are being detained and that are provided by the taxpayers absolutely free of charge. These are certainly the sorts of matters that need to be reviewed. A parliamentary review into these matters is required because what this country faces is an absolute crisis. The huge blow-outs in costs, the huge number of people now in detention, the assaults and the mismanagement of this portfolio area are the reasons why this entire matter must be looked at in detail. In returning to this bill I say again that I am in support of any attempt to ensure that accountability is sheeted home to those doing the wrong thing. There is a very strong belief by my constituents that criminal action and behaviour by those in detention and those allowed out into the community must involve accountability. The minister must be ready to cancel visas to ensure that the safety of this nation is addressed and that the sorts of people we take as refugees are known by their law-abiding integration into this society and that we do not take the sorts of people who find fault and who are defined by the crimes they commit.

The trouble with what we have seen at Christmas Island and Villawood and in incidents such as the SIEV36 fire and explosion is that there is a group of people that have a predilection towards crime and trouble. We should not give them an excuse for their bad criminal behaviour by blaming mandatory detention. They knew the rules when they came by boat and the bleeding-heart lawyers and advocacy groups are assisting the trouble with their endless appeals causing long delays.

Leaving the criminality aspect behind, I will turn to the character test and I would like to mention subsection 501(6)(d)(v). In that subsection a person can fail the character test if they 'represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way'. There seems, therefore, to be sufficient latitude for rejecting visas for all those who riot or destroy property or assault or try to scuttle boats.

Regardless of charges there are the options in section 501 to reject these sort of people. The provisions exist and there has not been an attempt by the government to upgrade these provisions. The problem is that we have a minister without the courage to act. We have a minister who has implied that there is a need for upgrading these provisions but has not acted to make such upgrades in this bill. That is the problem at the core of this attitude by this government.

I say again that the real refugees are those who are stuck in refugee camps and are in fear of their lives. Real refugees have escaped across borders and now languish in refugee camps across the nearest border. They do not have the money for airfares to fly to people smugglers. They do not have the money to cross through several countries, or move through international airport departure lounges. They do not have the money to pay the people smugglers. Real refugees are stuck in refugee camps and deserve our concern because they suffer from malnutrition, malaria and other such afflictions. It really does irritate me when those with money exploit this country and this government's failed border policies, and that they do so with the connivance of advocacy groups that should be supporting real refugees.

There was a time when the borders of this country were strong, where those that came under the humanitarian program were literally those from refugee camps. This was a time of strength but also compassion. What we have now is a lack of control by this government and a misplaced focus away from those that need our assistance. I say let us particularly look to those refugee camps on the Burma-Thailand border, where there are the sorts of people that need our help and fit into this nation very well.

We need amendments to this bill to extend its scope, and I will be supporting that course of action. Yet we also need an inquiry into this whole portfolio area. It is the right time for a fundamental look at the crisis that afflicts the immigration detention system in this country. I call upon the crossbenchers to support the coalition's plan for a parliamentary review. The system is broken and must be examined in detail before any more lives and money are thrown away on the failures that this government has overseen and continues to oversee.

Bob Baldwin (Paterson, Liberal Party, Shadow Minister for Tourism) Share this | Link to this | Hansard source

I rise today to speak on the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. As I read the bill I was very concerned that the person who is failing the character test in putting this bill forward is the minister. Much has been made about the toughness of this measure and the outcomes that it will deliver. As I went through the bill and looked at what it does, I found that it does nothing more than is available to the minister now. The minister already has powers available under the act. Under the minister's powers he can refuse a visa.

When the minister was talking tough in introducing this legislation after the riots and after the unconscionable actions of some individuals I expected to see a piece of legislation instructing, 'If you do this then this will happen'—no 'if', 'and' or 'but' about it. But the amendments to this act only introduce what the minister may refuse visas for. That is the key point: this bill does not say, 'If you do this you will be denied a visa.' This bill says, 'If you do this the minister may refuse you a visa.' It does not change one thing. Perhaps that is why today we saw yet another boat coming into Australia. It was a boat carrying another 56 illegal immigrants, bringing the total to 11,413 since August 2008—a total of 228 boats.

So all this tough talk of legislation designed to toughen up the stance on border protection and all this talk about moving people offshore for processing—if they can ever get it right—is failing. It is failing because it is megaphone diplomacy without any substance. And nothing could prove that more than this bill. As I have said, it is called the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011 but the only person who is failing that character test is the minister.

I needed to look no further than the minister's second reading speech where he said, in part:

If a person fails the character test, this can be used as a basis for the refusal of a visa application or the cancellation of a visa that is held by a person.

It goes on to say:

Similarly, section 500A of the Migration Act provides that the minister may refuse the grant of a temporary safe haven visa—

He said not 'will' but 'may'. That is the key point: it is no different to what currently exists.

I point out to the House that Australia has standards of socially acceptable behaviour. I understand the plight of many of these people, but I cannot understand why, when you have come from an impoverished, dangerous environment, you would bring those arguments here to this country or, whilst seeking to gain access to this country and show yourself to be a model citizen worthy of being granted a visa or citizenship, resort to the kinds of acts that we have witnessed. I return to the Villawood riot. Millions of dollars worth of damage was done by a number of people—exactly how many is not yet determined—who burnt the place to the ground. They felt they were not being processed and given visas fast enough and decided they would burn the place to the ground. How Australian is that? They want to come to this country and one of the first things they do on Australian soil, while they are being assessed, is burn the building providing them protection to the ground, endangering not only their own lives but the lives of their fellow detainees and those who are there to keep them secure.

It does not end with the Villawood riot. That was not an isolated incident. In fact, there were riots on Christmas Island where they burnt buildings and extra police had to be sent to stop the rioting. The average person in Australian society would sit there and think, 'Are these the kinds of people that I want as my fellow Australians? Do I want to share this country with the sorts of people who, when they decide they have had enough, will set fire to the place or create a riot or a disturbance?' Yes, that is the way to model yourself to be an Australian citizen.

It is reported that there are three major incidents every day across the detention centres. I say to those detainees awaiting processing and approval: if you want to be accepted into Australian society, act in a manner such that your fellow Australians would say, 'Welcome.' I cannot imagine too many people, except those in the Labor Party and particularly those in the Greens, who, following these acts, would turn around and say to anyone, 'You've just burned my home down, created a riot and put people in hospital—come on in. We want your sort of people in this country.' The people who come into my electorate office say 'No'. They say that they have had enough. It is the taxpayers—the constituents that I represent—who are picking up the bill for the damage that is being done and the extra security required for people who have supposedly come to Australia seeking a safe haven and peace. There is no safe haven and peace when you are in a detention centre and are trying to burn the place down.

In another failed test of integrity, Prime Minister Gillard during the election campaign said that she had had all the discussions and that there was going to be an offshore processing centre in East Timor. The only problem was that she forgot to tell most of the East Timorese parliament. Then she was going to Manus and then she was going to Malaysia. I have to say: I want the Prime Minister to sit with whomever I am next going to play poker against. I would just love her to be sitting on the other side of the table calling the odds—put up $800; get $4,000 back. I would just love to be playing poker against her, and what a poker face she has. She can come out in the community to do press conferences, put her hand over her heart and say, 'I've cut the deal in Timor,' or, 'We're going to Manus Island,' or, 'What a deal I've cut in Malaysia,' but will not pick up the phone and talk to the President of Nauru. This Prime Minister has also failed the integrity test—the character test—and lacks the leadership that Australia is looking for. Tough decisions require tough people and people with character. It is an easy decision to just open the borders to the queue jumpers, pushing to the back of the queue those who have been in detention centres around the globe, desperately seeking protection and awaiting their turn while being properly and adequately processed and assessed.

I have a couple of figures to put on the record. In 2002, no boats arrived in Australia. In 2003, there was one boat with 53 people on board. In 2004, there were no boats. In 2005, there were four boats with a total of 11 people on board. In 2006, there were six boats with a total of 60 people on board. Then it started to escalate. In 2007, there were five boats with a total of 148 people on board—and it goes on and on. Now, we have gone from having four people in detention when this government came to power to having 11,413 people in detention. This government claims that it has grown our economy; the only thing this government truly has grown is the number of illegal arrivals into the country. It is an absolute disgrace. If the government think that this bill will do anything to deter those violent acts, to deter the criminal activities that have been occurring, then they need to come in here and amend their own bill. This government need to show that they have the strength of character to remove the 'may' provisions. In order to earn the confidence of our fellow Australians, they need to state clearly to those in detention centres, 'If you do this you will not come into Australia'—not 'will not', not 'may not', and not 'at the minister's discretion'. That is what strength of character is, but unfortunately this government repeatedly fail the character test, and they fail the integrity test over a range of issues. They failed it by stating that there would be no carbon tax, and now there is a full push for it. They failed it when they said they would drive down pressures on the cost of living. They failed it when they said they would stop the boats, and all they have done is to grow and escalate it.

There is one thing that needs to happen. This government needs to show some integrity and some character, and this applies not just in a detention centre but in the community. It needs to go on the front foot and say, 'If you are a criminal in our community while you are on a visa, then you need to be denied that visa and you need to be deported back to where you were.' After all, the common catchcry from people who have come here as illegal boat people is that they wanted a safer haven. That safe haven does not include committing crimes.

I do not intend to take any more time of this House other than to say: I am disgusted that the government would seek a cheap political media shot by introducing this legislation, because in reality it does nothing to toughen up anything in relation to the illegal activities and crimes being committed by people in detention centres.

Jamie Briggs (Mayo, Liberal Party, Chairman of the Scrutiny of Government Waste Committee) Share this | Link to this | Hansard source

It is a pleasure to follow the member for Paterson and his thoughtful contribution on the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. The member for Paterson is a member who is in touch with his community. He is a member who has won a marginal seat more times than people care to remember, he does a wonderful job in this place representing his constituency—and he is a wonderful housemate, too, despite what the owner of the house sometimes says on national television. But I digress.

This bill is yet another example of failure by those opposite in managing Australia's borders and the border security system. Let us not forget that it comes as a result of some very disturbing incidents which occurred around Easter time this year which were handled appallingly. As much as I have some time for the Minister for Immigration and Citizenship, his handling of these incidents was terrible and it really reflected the problem that the Labor Party in government have with managing this issue.

We remember the scene of the Minister for Immigration and Citizenship trying to defend the government's policies when there were people on roofs at Villawood after half the Villawood detention centre had been burnt down. This was following riots at Christmas Island and at Curtin prior to that, and the minister was standing there saying, 'We can't get them off the roof, but we will change the law to make this not happen again.' This is the bill which attempts to cover over the political problem that was the episode of people on the roof during the riots at the Villawood detention centre. It has been reported in the media that the New South Wales riot squad sat at the gate for about 4½ hours watching half the detention centre burn down. These issues are pertinent to my electorate, because we still have no evidence which says that the South Australian police would be able to act if a similar incident occurred at the Inverbrackie detention facility. There have been reports about this in the media and yet no satisfactory response has come from either the Minister for Immigration and Citizenship or the South Australian police minister. I know that the South Australian police minister has many other things on his mind, but if he could at some point turn his attention to this issue it would be appreciated, because my community is concerned because of the events at Villawood.

We heard during estimates hearings about the complete farce of how the riots were managed. In a classic Senate estimates scene we heard about how Senator Cash, the Liberal senator from Western Australia, punched a hole in the minister's and the government's management of the system. She went through, in intricate detail, the events when the deputy secretary of the immigration department stood on two boxes—not one—to get into the roof cavity to try to convince those who were protesting to come down. I think it highlights nothing better than the failure of this minister and this government to properly address this issue. We have the two-box minister standing up there trying to fix what is a complete debacle of a policy. This bill highlights that and it does not fix the problem, because the problem had been fixed when the Labor Party came to government. It was stopped when they came to government and created a problem with their changes to the law in August 2008. The shadow minister for immigration makes this point day in and day out, and yet the Labor Party refuses to listen to the solution because it is a solution proposed by this side of the House. We really should be debating the solution that we suggested some time ago, that we put in place in government, which did stop this occurring. No-one on this side of the House wants to see people get on the boats in the first place. We think that is a terrible thing to encourage people to do, and that is unfortunately what this government's policies do. They put the people smugglers back in trade. They have done that and, since then, we have seen more than 11,000 people take that perilous journey. Unfortunately we have seen incidents like the Christmas Island incident just before Christmas last year, which was a terrible occurrence.

We are seeing these incidents in the detention network because the detention network is under an enormous amount of stress. I hear reports daily from within the Inverbrackie detention facility—the one in my electorate which was foisted on the community without any consultation at all. The minister at the table, Mr Butler, knows this and he knows the shame that it is bringing the Labor Party in the great state of South Australia because of the lack of consultation and the lack of honesty with the community when they foisted this decision on the community. The day before it was announced, the Prime Minister was in my electorate and she did not tell the community or ask the community what they thought about it. It was just announced because they failed to manage this issue properly. This is putting pressure on the detention network and we are seeing outbursts at Villawood, Curtin and Christmas Island—and we hope not to see it at other places. But, as the member for Paterson said, we are seeing daily occurrences of unfortunate incidents. At Senate estimates, the incidents at Inverbrackie were well outlined by the department. They were not fully outlined, but the department is going to come back with some details. It was quite remarkable that at estimates they had very little details about many of these incidents, but we are looking forward to the information that they will come back to us with to tell us what is actually happening within the centres.

The shadow minister has put forward a worthwhile motion to have a full inquiry into the detention facilities. What is going on in these centres is very deeply concerning, particularly to those of us who have detention centres in our electorates and are experiencing the problems they are causing within those electorates. At the time that these centres were announced the minister for immigration waltzed into the electorates and told everybody, 'It will all be fine. There will be huge economic benefits. There will be no problems at all. It is a family friendly facility. This will be great. This will go really well.' What we have seen from estimates is violent incident after violent incident; we have seen people walking out the front gate; and we have seen that the South Australian police have no powers to deal with any occurrences like we saw at Villawood—thus this legislation.

To highlight the problem that the Labor Party have, I will briefly address one of the comments made by the member for Moreton, which I thought was quite a disgraceful comment, in his contribution to this debate. In fairness, the member for Fadden rightly pulled him up on this point. He attempted to compare the campaign of exposing Labor's failure on so many of these issues that the Leader of the Opposition is running to those who rioted in Villawood, rioted in Curtin and rioted in Christmas Island. It is a great shame on the member for Moreton that he would stoop to those levels.

I know he is under a great deal of pressure in his own electorate about this issue and about the carbon tax issue. I know that not because of any private conversations; I know that because I read the Courier-Mail, and pretty much every second day the member for Moreton is in there bagging the current Prime Minister and the current Treasurer for the way that they are running the government. He is right to do that—though it is an interesting strategy for his own career—because the analysis of it is right. But his comment about the Leader of the Opposition is disgraceful and reflects on where the Labor Party are at in trying to manage this issue. It is killing them and they know it out in the community. People have seen through this government. They know it was the change that Labor made that has caused this problem and that that it is the reason that these incidents are occurring.

One of their great policy ideas last year was to have a processing freeze. That was a 'brilliant' idea that resulted in probably three riots. And we have got, in effect, another processing freeze at the moment—which, again, will be like putting the pressure cooker lid back on the pressure cooker and waiting to see if it explodes. Of course, it will explode because people will be desperate and they will react. It is unacceptable behaviour—and the coalition has always said that—but what is also unacceptable is creating policies which encourage people to get on these boats in the first place. That is what the Labor Party have done with their legislation. That is what has led to 11½ thousand people getting on boats and trying to make it to Australia. We absolutely support a strong intake of humanitarian refugees each year and we support ensuring that we take those from appropriate places. What we do not support is a flimsy attempt at legislative paper to wallpaper over the cracks which are in the system, because it has encouraged these people to get on these boats in the first place.

There was once a shadow immigration minister—at a time when you might remember these matters, Mr Deputy Speaker Thomson—who put out a very famous press release which said 'Another boat; another policy failure'. Of course, that can now be sheeted home to the now Prime Minister, who was the shadow minister for immigration when she put out that press release, because every single boat is another policy failure of this Prime Minister, this minister for immigration, this Labor Party and this government.

They do not manage this issue properly and it is causing a huge problem. It is causing a massive blowout in our budget of $1.75 billion—money which could otherwise be spent on worthwhile things such as giving money back to Australians so that they can spent it how they best choose. Instead this money has been spent on the bungling, the debacles and the mess that is the detention network, because the government decided in August 2008 that they were going to try to look like they were compassionate, humanitarian and soft and make it look like they were not the Howard government. Of course, what that has done is create a situation which has encouraged the people smugglers back into business. The truth is that it is not humanitarian to encourage people to get onto these boats. It is far from it; it is the opposite of it. The best thing we can do is have strong laws which do not encourage people to get on these boats in the first place, so we do not face these problems and we do not have to deal with this flim-flam legislation that comes before this place trying to cover over Labor's policy debacles.

This is another bill which highlights this minister's failure and this government's failure. As the shadow minister consistently outlines, we should be having an inquiry into the detention network and the failure of the Labor Party to manage this system properly. We should be reinstituting the solutions that were put forward by the Howard government when this was a substantial issue in 2001 and 2002. Those solutions worked. They stopped the problem. The government should grow up and adopt our solutions. It will save an enormous amount of taxpayers' money, it will save an enormous amount of human grief and it will save this minister the ongoing embarrassment of what is his complete failure to manage this issue properly.

Nola Marino (Forrest, Liberal Party) Share this | Link to this | Hansard source

This bill, the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011, would not be necessary if the Labor government had not lost control of our borders and the minister for immigration was actually doing his job. It is that simple. It would not be necessary if the Labor government had not given the green light to people smugglers and given them the opportunity to make millions of dollars from asylum seekers. Given the free and easy open border policies of the Labor government and the way the government gave in to the demands of asylum seekers on the Oceanic Viking, I am not surprised that people smugglers have been encouraged to believe that they can get away with criminal behaviour.

One of the most consistent issues currently being raised in my electorate of Forrest is, without a doubt, that the Labor government have lost control of our borders. So many people are now actually angry. They are angry that the government has not only jeopardised Australia's strong border reputation but has recently revealed a massive $1.75 billion blow-out in taxpayers' funds used to pay for these shambolic and failed asylum seeker policies. My constituents do not trust the Labor government at all. They do not believe that Labor will stop the boats because the boats continue to arrive. Today we have seen another boat with 56 people aboard. The minister is now scratching around trying to be seen to do something.

We know that during 2001 people smugglers made 43 successful incursions into Australia. As a result, the coalition made tough decisions that made it perfectly clear that Australia was not going to be a bottomless pit of profit-making opportunities for people smugglers and would not encourage vulnerable people to put their lives at risk. This is the issue: they are encouraging vulnerable people to put their lives at risk. The effect was immediate. In 2002 just one boat arrived. Over the remaining years of the coalition government 25 illegal entry vessels arrived, an average of just over three a year from 2002 to 2008. However, in 2008 the newly elected Labor government threw open Australia's borders to people smugglers, literally putting up a sign that said 'Open for the business of people smuggling'. This unfortunately encouraged even more vulnerable people to put their lives at risk in dangerous and unseaworthy boats. In 2009, 61 boats reached Australia. In 2010 people smugglers earned their lucrative illegal income through 134 successful incursions.

The Australian people can see that Labor has well and truly lost control of our borders and my constituents continually tell me so. We know that 11,413 people have come here on 228 boats since August 2008, but this government has continued to deny the obvious. Now, after years of encouraging and allowing people smugglers to take advantage of the Australian government, Labor has decided that they need to do something. They are not quite sure what that something is and they do not know how to rectify a major problem entirely of their own making. I remember this phrase, and I hope members in this House do as well: the coalition found a problem and created a solution; Labor found a solution and created a problem.

The Prime Minister started by saying that detaining boat people on Pacific islands was 'costly, unsustainable and wrong in principle.' Then she back flipped by announcing that the government would try to re-open Manus Island. The Prime Minister also previously insisted that boat people could not be sent to Nauru because Nauru is not a signatory to the UN convention on refugees. But now she has announced 800 boat people will be sent to Malaysia, which is not a signatory either. Australia will receive 4,000 asylum seekers from Malaysia for those 800 that are heading that way. We understand this policy comes with a cost of nearly $70,000 per person.

How this will actually work no-one knows. Australia has not finalised an agreement to transfer asylum seekers to Malaysia, PNG, East Timor, Thailand or anywhere else. This is yet another demonstration of the problems emerging from the Labor government rushing out in panic to announce the latest deal that is not actually a deal. We all remember the mining tax mark I and II, the carbon tax mark I and II, the NBN mark I and II—the list goes on. The government's handling of these varying border protection policies leaves Australians with no confidence. Conversely, it continues to give people smugglers great confidence to continue their activities. As I said, today another 56 people arrived. People smugglers are literally making a mockery of Labor's inability to manage Australia's borders. I see that the West Australian today reported that:

Federal police officers have carried out 100 wrist X-rays of Indonesian crew members claiming to be under the age of 18 since 2008.

But results of the scans have shown 60 of the so-called "children" to be aged over 18.

People smugglers are now not only bringing increased numbers of asylum seekers but they are claiming to be under 18. This is another issue for the government to deal with that they have created.

This bill attempts to ensure that a person will fail the character test if they have been convicted of a criminal offence while in detention. There have been more than three critical incidents happening every day in our detention centres. They are putting people's lives at risk. Incidents have included everything from deaths, escapes, riots, and fires to assaults, particularly assaults on the people who work in these centres. Of course, there has also been millions of dollars of damage.

It is intended that the changes in this legislation will provide a disincentive for people in immigration detention to carry out violent and disruptive behaviour, but it does not do anything to address the Labor government's failure to act to cancel or refuse visas. If someone fails the character test, a decision to grant a visa can still be made. The minister has indicated that in these circumstances he intends to still allow the granting of a temporary visa to these people. The coalition does not support the issuing of such visas. While we are supportive of the new criminal provision, it does not go far enough as it does not apply to every non-citizen. If the government is really serious about this issue, it will re-introduce the provision of ministerial direction No. 21, which allows decision makers to take the interests of the Australian community into account—that is, to 'regulate, in the national interest, the coming into and presence in Australia of non-citizens.'

People, not only in my electorate but right around the nation, are angry about the contempt for Australian law in detention centres. People are outraged by reports of asylum seekers intentionally damaging Commonwealth property and their lack of respect for the Australian communities in which they are being housed. Claims that during the 11 days that detainees were on the roof of the Villawood detention centre they were free to come down, charge their mobile phones and then return without any action has frustrated and upset people and it certainly sends the wrong message. The volume of people in Australian detention centres and the associated pressure on these centres comes as a direct result of Labor's soft border protection policies. The Australian Customs and Border Protection Service is also being stretched beyond capacity. The Labor government has to take responsibility for the situation it has created. There is no-one else to blame. The Labor government has created this problem. We cannot allow the fairness and integrity of our immigration and refugee programs to be further compromised.

Don Randall (Canning, Liberal Party, Shadow Parliamentary Secretary for Local Government) Share this | Link to this | Hansard source

I am very pleased to speak on the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. We would not be here today if there were not so many people arriving unlawfully. To use the Orwellian language of the Labor Party, they are irregular unauthorised boat arrivals—in other words, people who have jumped the queue. Let us put that in context. When the Rudd government came to power in 2007 there were only four people in detention who had arrived by boat. Now we are heading towards 7,000 in detention. What has caused this? As my friend and colleague from the seat of Forrest mentioned, it is because the green light has been turned on by the Labor Party's changes to the Migration Act, which have sent a signal that if you can get to the Australian mainland you will get a visa. We know that is pretty much the case because, as an example that I have cited in this place before, roughly 20 per cent of those who apply from Afghanistan have a migration outcome, whereas those Afghans who arrive here by boat have a far higher migration outcome, and very few of them have been returned.

We can go into the figures, and I am sure my colleagues have done the same, about the shambolic state of the migration system under the Gillard-Brown government. The immigration system in this country was the envy of the world. It was seen as one that had great integrity. In fact, when I have had the opportunity to go to other countries in the world—for example, when I visited detention centres in Italy—I have found that they saw our system under the Howard government as having the highest integrity and the best outcomes for those arriving unlawfully.

The system has become so chaotic that there is much violence in the detention centres. Let us remember what happened before this government took over in 2007. When we were building the detention centre on Christmas Island the then opposition spokesperson and now Prime Minister said, 'We won't need Christmas Island because there won't be anyone to put into it.' It was going to have a capacity of only 800. What happened? They changed the policy and turned the green light on. Now not only are there more than 800; there are, as we know, well over 2,000, with overcrowding causing many problems. In opposition they said they would not bring asylum seekers onto the mainland for processing, but Christmas Island is so full and has so many problems, asylum seekers have had to be brought to the mainland.

The government is now fishing around in Asia for any place it can to find a solution—except Nauru, even though there is a facility there that was built by Australian tax dollars. The government will not use Nauru on the basis that Nauru is not a signatory to the UN convention, yet it is doing it with Malaysia. Suddenly, we find out that Thailand might be the go or that New Guinea might be reopened. Is Kiribati going to be the next stop? Tuvalu? Some other Pacific Island? It is: tick-tack-toe, here we go; let's find a place we can put you. That is what is happening at the moment because the government is so out of control with migration arrivals and the processing of people. It is causing overcrowding and resentment, and we are becoming the laughing stock of the world. If I have time, I will tell members about a personal incident in Western Australia which shows how derisively we are being considered.

Isn't it right that we invite people to come here who will add something to our community—skilled migrants, people reuniting with family and those on the humanitarian visas which we were famous for. There were about 14,000 of those a year, which were generally allocated to us by the UNHCR in countries where people had been waiting in an orderly fashion, applying through the camps and the post. But that is not the case anymore. We find now that if you arrive here you generally get a visa outcome.

Christmas Island was part of the exclusion zone for migration purposes and so was an ideal centre for processing. Those that have come to Australia have gradually filtered through some of the nefarious behaviour that they were involved in before they reached here and since they have arrived. I have produced evidence in this place previously that some Sri Lankans who, once they had obtained their visa, returned to Sri Lanka within 12 months of getting their visa. So much for fleeing persecution and fearing for your life.

It was reported in the Australian not so long ago that 70 per cent of entrants who arrive and get a humanitarian visa return to their country of origin within 12 months. Canada has realised this and is about to reassess the humanitarian visas it has granted, based on the honesty and integrity of the applicants' information, with a view to removing their visas or citizenship. Australia might want to look at this, because we are being taken for a ride—we are being conned—by a number of these people. I will point to some of these cases shortly. If the Canadians are doing it because people have been laughing in their face, why wouldn't Australia? We know why we wouldn't—because this government is being led by the nose by the Greens. It is not going to do anything unless Bob Brown gives the okay. As we know, Bob would open the gates and let the millions into this country if he could. He would not care about the economic circumstances or about Australian society and culture as we know it; he would just open the doors without any thought about what he was going to do. The character test is very important because we want to not only maintain the integrity of our migration system but also add something to the Australian community for those coming here. Those people who have fled through a number of other countries hold up somewhere in either Malaysia or Indonesia for some time until they can find a people smuggler who can get them a better outcome. Let us think about the case of the Sri Lankans who were held up at the Port of Merak with that marvellous guy, Alex, as their spokesperson. He had a criminal record in Canada and he said, 'Why don't you treat us better?' Surprisingly, Alex sniffed the wind and realised that he had better scarper because out of all the ones who were relocated to Australia he just vanished into thin air.

Why would the minister bring this legislation to the House when he can do something about it now? He has ministerial discretion to look at the character of individuals on a case-by-case basis and say, 'This person is not a fit and proper person, given the evidence to me from the department, the police or Interpol.' Any one of those agencies would be in a position to state, 'This person is of dubious character.' He can do that now, but he does not seem to have the courage. The previous minister who I consider a colleague from Western Australia, Senator Chris Evans, had the opportunity and he did not want to do it either, which surprised me because it is well within the minister's remit to do so. I do not know why they do not because it would prevent a massive legal challenge, which I have mentioned previously about previous legislation.

Let us have a look at the reasons we are now being brought to this place. There were the Christmas Island riots in November 2009. It was a massive brawl involving 150 people. Some guards suffered minor injuries after breaking up the fight. They used pool cues, broom handles and branches et cetera. Eleven people were charged, but eight had their charges dismissed—amazing. Three were charged and two of them ended up on good behaviour bonds. That is not bad for wrecking a joint. Only one was charged so he must have been the only one who wrecked the joint. He was the only one who ended up with any sort of sanction or penalty. All three were granted visas in late 2010. These marvellous people are going to bring this sort of violent behaviour to Australia. This sends a dangerous message.

There were riots on Christmas Island again in 2011. Unrest was noted on the last weekend of February when 13 people were injured and three asylum seekers were arrested after a fight broke out over property damage. On 11 March there was the first break-out from the detention centre when 150 asylum seekers damaged the gates and fences. Initially, 100 refused to return to the centre. Christmas Island residents said that the extent of the break-out was under-reported, and many islanders feared for their safety and barricaded themselves in their homes on that idyllic island in the middle of the Indian Ocean.

A second break-out occurred days later from the North West Point Immigration Detention Centre, supposedly the island's most secure facility. Fewer than 100 men broke free and roamed the island. It took Federal Police over a week to locate all those who escaped. Prime Minister Gillard made a comment at the time: 'Where are they going to go to? They are on an island, after all.' This was much to the bemusement and frustration all those who call Christmas Island home. On 17 March up to 250 asylum seekers set buildings ablaze and threw Molotov cocktails at the Federal Police. Over 200 Federal Police were taken to the island to secure the facility. Police were forced into using beanbag bullets and tear gas to gain control.

We all remember the pictures of people dragging wheelie bins that were alight and running from building to building to make sure that they were properly alight. This is what they did to Australian facilities. Were they of good character when they burned down the places they ran to for refuge so they could migrate to Australia? Minister Bowen denied it and said that some sorts of ringleaders were sent to the mainland, and some of them were later implicated in the Villawood riot.

I could go on about the Villawood riot. I can tell you that nothing galled the people of Australia more than to see what they did to Villawood when they burned down those nine buildings, including the kitchen and all those facilities. Then they got on the roof and would not come down. Around Anzac Day in my electorate people were saying to me: 'Mr Randall, I will get them down for you. Just give me the opportunity and I will show you how to get them down.' They were appalled by the fact that we were such a weak, lily-livered group of people who allowed ourselves to be held hostage by people who decided to come here seeking refuge and trashing it along the way. It was an absolute disgrace.

We could go on with a whole lot of other incidents. For example, guards have been bashed at Curtin. The West Australian reported on 23 March that an Iranian detainee had claimed that he had been raped by several men at the Phosphate Hill camp at Christmas Island but that no charges were laid. Coincidentally, a guy has told me that he supplies 700 condoms a week to Curtin, which is surprising given the strong male population there. Obviously there are some cultural issues that seem to be festering. There were also scuffles at Darwin airport.

We could go on. There was the boat carrying 47 asylum seekers which was sabotaged by the crew when they threw 30 litres of petrol on the deck below. Our Navy got involved and of the five people identified, I understand that three of them have visas already. This is shameful. It is a disgrace that Australia allows this to go on. There is one clear way you could deal with this, obviously—that is, to make sure that people do not arrive by boat but arrive in an orderly fashion and apply as humanitarian entrants, rather than trying to jump the queue. Constituents come to me one after the other to say: 'Mr Randall, we love migration; we were all built on migration. This country is a migrant society. But what we don't like is when you get in a queue at the shopping centre and someone decides to push past you at the checkout because they are in a hurry. Or when somebody at the footy wants to get a better seat and he shoulders past everybody else to get the front of queue and says, "I don't care who you are because I am big and ugly enough to push you out of the way".' That is what they do not like about the shambolic state of our migration system. We must maintain proper character assessments so that we end up with and maintain a system that is full of integrity. The minister is doing this because he will not do his own job. He could do this job himself, without requiring this legislation, but this is just an indication of how out of control and how messy this government is. Everything this government has touched so far is turning to mud. This is just another prime example. Our migration system, which was held as one of the beacons of the world on how to do this, has now been reduced to the state that it is in.

Peter Slipper (Fisher, Liberal Party) Share this | Link to this | Hansard source

I am very pleased to have the opportunity to join the debate on the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. It is obvious—and any objective person looking at the facts would have to accept—that under this government our border protection policy is in tatters. Compared with the record of the former Howard government, this government has completely lost control of Australia's borders and it has turned the seas around this nation into a superhighway. There is an incentive for people to seek to come to Australia as unauthorised arrivals because of the record of this government in allowing so many of those who have arrived in this way to stay here on a permanent basis.

Let us look at the facts. Since August 2008, 228 boats have arrived. Many of them slipped through the detection net and were unexpected when they appeared off Australia's offshore islands. Eleven thousand four hundred and thirteen people have arrived in this manner. Some 56 arrived only today. On any sort of clear-headed assessment, the government's policy has not worked, and it should be obvious to anyone that this government needs to sit down and reconsider the situation.

No matter how well intentioned the government are—and I do accept that they are well intentioned—it is obvious that their policies have comprehensively failed. What they really ought to do is to go back to basics. They should go back to scratch. They should look again at what has worked in the past, look again at what is not working now. Even if they have to absorb a modicum of political embarrassment, they should say that the policies of the former Howard government with respect to border protection were infinitely more effective. The former government said, 'We will lock anyone up who enters Australia illegally,' and that proved to be a very powerful disincentive for people smugglers. People smugglers are amongst the most evil people in the world. I think everyone agrees with that. But, if you make it not viable for people smugglers to stay in business, then obviously they will move their evil and pernicious traffic elsewhere in the world.

Many people who seek to come to Australia illegally are economic refugees. One can understand why they would want to leave the conditions in their home countries and come to join us here in Australia, a country that has freedom. We have a sense of democracy, a sense of fairness. We enjoy the rule of law. So one cannot dispute the fact that people would want to come here but, if we are going to have an immigration system with integrity, it has to be one that has checks and balances, one that has appropriate penalties and one that acts as a disincentive to people smugglers who take people's money and bring people here.

The current situation with the people smugglers is completely undesirable from the point of view of the Australian people as a whole, but it is also a very unfair situation because we have a finite capacity to absorb humanitarian refugees. We have a quota for this purpose. If people jump the queue then it means that genuine people who have been going through the appropriate processes will have a lower likelihood of being admitted to Australia than would otherwise be the case.

I can understand the attractiveness to the government of the five-for-one deal which has been heavily talked about and heavily promoted with respect to Malaysia. Clearly Malaysia gets a very good deal: for up to 800 unauthorised arrivals, we will absorb 4,000 people who are currently in Malaysia. It seems like a pretty dud deal as far as Australia is concerned. The only silver lining in the cloud from the government's point of view is that, if people do come as unauthorised arrivals, they will probably be sent off to Malaysia and they will go to the back of the queue. Hopefully that will discourage people smugglers from continuing to do what they do. It still seems a pretty bad deal for Australia because we are accepting 4,000 people in exchange for 800. If the government had opted for the policies of the former Howard government then we would not have the boats arriving and we would not have the problem.

Australia is a very generous nation. We are a compassionate nation. As you go round our country you will find that people are well aware of the benefits of migration. After all, most of us came here as migrants in one way or another. But Australians have a sense of fair play. They understand that we are a country which has amongst the highest per capita absorption of refugees from countries around the world. But it is imperative that our borders be protected so that we are not overwhelmed by illegal boat arrivals, which place strain on the integrity of our immigration system and processing and can become a financial and social burden.

When one looks at what the government is proposing to spend on unauthorised arrivals and processing and transporting them and detention centres, one can see that this places a very great strain on the budget and makes it more difficult for the government to achieve the objectives sought by the Treasurer in his budget of returning the budget to surplus within a finite period. If one could reinstate our border protection policy, one could stop the boats from arriving. The government would not have to spend what it is proposing to spend and the budgetary bottom line would be so much better off. I also do not understand why the government says it will not use the detention facilities at Nauru, which have been paid for by the Australian taxpayer. Nauru is prepared to be of assistance in this matter. It would be good for Nauru; it would be good for Australia. The facilities are already there. It would not take them long to recommission the detention centre. Yet we find, to the contrary, the government seems to be hawking its wishes from one country in the region to another, when there is already a very obvious solution.

Labor has failed with its border protection policies, and most people in the community, in any part of the country, would agree that that is in fact the case. Our immigration detention centres are stretched and have become places where we have riots. We find that detainees are destroying the property of the Australian taxpayer. While one has to applaud the contents of the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011 upon first reading—and no-one could possibly object to what is contained in the bill—the bill simply does not go far enough. It is interesting to note that people who are not in detention but who commit offences are not caught by the provisions of this bill.

It is also strange to read that you can have a situation where, even though a person fails the character test, the decision to grant a visa can be taken, particularly if the person is found to be a refugee and cannot be returned to his or her country of origin. I am also advised that the minister intends to issue some sort of new temporary protection visa. Maybe it could be referred to as a return pending visa. But it is simply unacceptable, in my view, to grant visas to people who fail the character test. We have enough problems in this country already with law and order. To admit to Australia to live here on an indefinite or permanent basis those people who fail the character test is not what the Australian people want. I would encourage government members to go to any shopping centre in the country. They would find when they talk to ordinary, decent Australians, regardless of how they vote at elections, that people want appropriate levels of border protection. There is a very great level of unhappiness in the community that 228 boats have arrived since August 2008. There is a very great unhappiness that 11,413 unauthorised arrivals have somehow managed to trespass across the border to arrive here and have had to be dealt with in accordance with Australia's immigration laws. People are exceedingly unhappy that today another 56 people have arrived.

One ought to never forget that, while we talk about 'unauthorised arrivals', these are people. These are people who obviously have hopes and aspirations for a better life. They clearly must be treated with compassion, but if we had an appropriate level of border protection they would not be here and they would not actually need to have the processes which are being set out in this bill and in other bills applied to them. If we could re-create a situation where Australia's border was properly protected, we would not have these unauthorised arrivals. They would not be here; they would be somewhere else and we would not be talking about the matters we are currently talking about. It is interesting to note, however, that the government has not been prepared in this legislation to go further and to say that those people who commit offences when they are not in detention are similarly caught by these provisions.

Australia is a country which has Judaeo-Christian values. We are a country which does in fact accept our fair share of the refugee burden from around the world. We are not a heartless nation. We do care about others in strife, and we have proven time and time again that we are good international citizens. Collectively as a country we dip our hands into our national pocket to assist people overseas in times of difficulty. While most Australians sympathise with genuine refugees and the hardships they face, they understand the need to maintain diligence in processing and to have appropriate examination of new refugee applicants. They do not want common sense thrown out the window, and they want to do all they can to protect our Australian people and to maintain the way of life and level of safety that we are privileged to enjoy in Australia.

We as a country want to have only those people who are of good character. While the bill certainly strengthens the current provisions, it does not go far enough. Most Australians are outraged when they hear about the riots and the protests which have taken place on Christmas Island and at Villawood. That indicates that these people have no respect whatever for Australia, its laws or its property and that they believe they have the right to do what they want. Even the thought of a deputy secretary of the department having to plead with people to come down from where they were is unacceptable. What happens is that a certain number of people play on the basic decency and good values of Australians.

We are a relatively small nation and we would be silly to put at risk the things that make Australia the wonderful country that it is by going soft on those who claim to be asylum seekers and as a result seek to take up residence in Australia. It is very important that anyone who commits violence, destroys property or breaches the peace while in detention is not allowed to remain here. It is certainly unacceptable that some people have vandalised and trashed the accommodation that has been provided by the Australian taxpayer. That does not sit well with the Australian people and our sense of fair play. It is certainly a bizarre type of behaviour, akin to biting the hand that feeds you. In the very short amount of time left to me, let me say that these changes to the Migration Act 1958 aim to improve the behaviour of detainees and to bring about consequences for those who behave badly. The bill is a step in the right direction. It does not go anywhere near far enough. I, on behalf of the people of Australia, implore the government to consider strengthening the provisions of this bill so that it will achieve what the Australian people would want it to achieve.

Judi Moylan (Pearce, Liberal Party) Share this | Link to this | Hansard source

The Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011 purports to strengthen legislation so that following a court conviction leading to a custodial sentence of less than 12 months the minister will have the power to refuse to grant a visa to a person or may cancel a person's visa if they do not satisfy the minister that they pass the character test. There is a similar amendment relating to section 500, which concerns temporary safe haven visas. The explanatory memorandum states that 'the changes are, in part, in response to the criminal behaviour during the recent disturbances at the Christmas Island and Villawood immigration detention centres which caused substantial damage to Commonwealth property' and in response to the 'violent, destructive and criminal behaviour which has been occurring in immigration detention'.

Lest my intentions be misconstrued or misunderstood, I do not in any way condone violent and destructive behaviour in detention centres, or in any other place for that matter. Those who break the law should clearly be charged, convicted and sentenced according to the law. However, in considering this legislation we must ask the questions: are these amendments warranted; are the remedies proportionate to the crime in cases where a sentence for criminal behaviour is less than 12 months; and should we be supporting the retrospective element of this amendment bill? The starting date for the new ministerial powers is 26 April 2011, a date that has passed. The retrospective element lies in the new provisions under section 501(6), which will apply to individuals convicted of an offence before or after that date. The bill, in clause 501(6)(aa), provides an additional ground on which a person will not pass the character test: if the person was convicted of an offence committed while in immigration detention, during an escape or while on the run before being detained again and is convicted and jailed for less than 12 months.

Although it has been argued that in some cases retrospective laws have a place in law making, retrospective laws have been widely condemned in cases of criminal law. The difficulty in this case, though, is that it is not the criminal law that is retrospectively applied; rather it is the operation of section 501(6) following a criminal conviction, no matter how minor, which may apply retrospectively. Previously the character test specified a number of grounds or criteria of assessment—for example, 501(6)(a), that a person has a 'substantial criminal record'. A 'substantial criminal record' is defined under 501(7)(c) mainly in terms of the severity of a sentence: that a person was sentenced to a term of imprisonment of 12 months or more.

The stated reason for this additional ground is that the current provisions specifying a minimum sentence of 12 months imprisonment are inadequate. According to the explanatory memorandum, the current provision 'imposes a significant limitation on the ability of the minister to appropriately respond to the violent, destructive and criminal behaviour which has been occurring in immigration detention'. That statement comes directly out of the explanatory memorandum. Under this new provision, and again I quote:

It does not matter what penalty is imposed by a court as a result of the conviction. This creates a clear and objective basis for a person to fail the character test.

The other question we should ask in this place is: is the new provision necessary? In a discussion with David Manne, the executive director and senior solicitor for the Refugee and Immigration Legal Centre, he said that, contrary to the assertion of the explanatory memorandum, the minister's ability to respond appropriately to recent conduct involving 'violence' and 'destruction' is not confined to the ground of 'substantial criminal record' with the threshold of a sentence of imprisonment for 12 months or more. The Migration Act contains further grounds for the character test which include 'the person's past and present criminal conduct' and 'the person's past and present general conduct'. I thank David Manne for his assistance in looking at some of the worst elements of this bill.

The Refugee Council of Australia also made this comment in a recent press release:

Presently, and even in his own words, the Minister for Immigration has 'very extensive' powers to deal with people in detention convicted of a crime, including criminal damage. There is no need to bolster these powers with legislation that could see them widened to include refugees who commit more minor offences while in the pressure cooker environment of long-term detention. Our concern is that a refugee who commits one misdemeanour could be denied protection and unity with his or her family for life.

In 2009 the minister for immigration issued a direction under section 499 of the Migration Act providing direction to decision makers with respect to section 501. It outlines a number of factors for decision makers to consider in determining whether a person is not of good character on the basis of criminal conduct and they include 'the nature, severity and frequency of the offence/s'. The factors do not include the penalty imposed by a court. The explanatory memorandum's statement that the new provision 'creates an objective basis for a person to fail the character test' implies that the limitation in the definition of substantial criminal record—a sentence of imprisonment of 12 months or more—which is asserted to constrain the appropriate response of the minister is not objective. That is not the case.

We must also ask ourselves: is the new provision proportionate to the problem it seeks to address? The explanatory memorandum states that 'the changes are, in part, a response to the criminal behaviour during the recent disturbances at the Christmas Island and Villawood immigration detention centres which caused substantial damage to Commonwealth property' and a response 'to the violent, destructive and criminal behaviour which has been occurring in immigration detention'. Again, these are direct quotes from the explanatory memorandum. According to the explanatory memorandum:

… it is intended by the Government to ensure that any conviction for an offence of the kind covered by this Bill results in the person automatically failing to pass the character test.

However, the amendments do not specify any particular kind of offence and are not limited to 'violent' and 'destructive' conduct. A person who is convicted of any offence committed while in immigration detention, including minors in community detention, will not pass the character test. Offences someone detained in the community might commit include jay-walking, public drunkenness, not having a ticket on public transport, placing graffiti without consent and begging. My goodness me, if we applied this to the general community we might have a few problems.

Proponents of the bill may argue that the minister would only refuse to grant a visa in the case of very 'serious' offences, as intended—so trust the minister to exercise the greatly expanded power with proper discretion. However, it is reasonable to anticipate that, given the widespread hostility to people in detention who have committed serious offences, decision makers may feel under pressure to deny granting visas to people presumptively determined as of bad character for committing a wider range of acts other than the violence and destruction that was the reason for this bill's existence.

In a speech in the parliament this morning on the Morrison motion to establish a House of Representatives committee to examine all elements of detention centres, I called for the discontinuance of the indefinite, arbitrary detention system and I am going to repeat some of that. Of course if you overcrowd prison systems there is bound to be trouble. That is not an excuse for some of the criminal behaviour we have witnessed recently in detention centres, but it is a fact. As I said this morning, the issue of indefinite, arbitrary mandatory detention for asylum seekers has been much debated and much criticised since it was first implemented by the Labor government in 1992. It is a negative and punitive system of dealing with those who come to our shores seeking asylum. Apart from the all-too-apparent negative effects on people incarcerated in detention prisons, the system is administratively demanding and very costly.

The original intention when mandatory detention was introduced by the Labor government was to act as a deterrent to those seeking to come to our shores. Originally, it was aimed at a very small number of people arriving by boat. Yet 10 years after the implementation of the policy there were 5,000 boat arrivals. Similarly the policy of temporary protection visas was introduced as a deterrent. In the five years prior to temporary protection visas being introduced, there were 3,103 boat arrivals. In the five years following the introduction of temporary protection visas there were over 11,000 arrivals.

It is time we looked at these policies in the cold light of day and worked toward a durable solution to the problem of people fleeing the threat of death or oppression in their own countries. In 2001 to 2005, some of us in this place worked toward hard-won changes which were made to the system of mandatory detention and implemented. Then the new Labor government came into government on the promise of its New Directions in Detention policy, a seven-point plan. The government acknowledged that 'detention that is indefinite or otherwise arbitrary is not acceptable'. The Refugee Council recently put out a press release highlighting the 1,412 per cent increase in the number of asylum seekers who have now been in detention for more than six months. That figure is an increase over the last 12 months. The government has failed to implement its own New Directions in Detention and, according to the most recent Australian Human Rights Commission report, 2011: Immigration detention at Villawood, thousands of people, including over 1,000 children, remain in these prisons. It is no wonder that there is trouble. More than half of those people have been detained for longer than six months, and more than 750 people have been detained for longer than a year.

As I said in a speech in this House in 2006, the stranger who stumbles upon our shores has a claim on both our conscience and our patriotism and, when he or she arrives with credentials uncontaminated by smugglers and pleading a case, that at very least is worthy of a fair hearing. The qualities that constitute fairness are not those that visit unmitigated sequestration and inhumanity upon the stranger. I put it to you, Mr Deputy Speaker, that this indefinite, arbitrary migration detention centre policy is inhumane and that there has been plenty of evidence, in report after report from many different agencies, to highlight the terrible harm that this system is doing to individuals, particularly to children. We should be working much harder in this place to find durable solutions and to separate out those two issues, the one of people fleeing from persecution and possible death and the other of how we treat people once they come to our shores seeking our protection. This amending legislation is a sloppy attempt to continue to paper over the cracks of a cruel system of indefinite, arbitrary mandatory detention for people who have never committed any crime.

Chris Bowen (McMahon, Australian Labor Party, Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

I thank all honourable members who have contributed to this debate on the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. This is an importance piece of legislation. The intent of this legislation is to make it crystal clear to people in immigration detention and the broader community that inappropriate behaviour in our detention centres is unacceptable. That means that anyone who is in an immigration detention centre who is convicted of any offence will know that they will fail the character test and enliven the minister's and the department's ability to refuse them a visa if they are convicted of an offence. That is important. I will respond to some of the points made by the opposition. I will do that by addressing a series of points made by the opposition. The opposition have flagged an amendment, which I will get to in a moment. They have also made a more general contribution. I will confine my comments to their contribution on this particular bill although obviously several honourable members opposite have taken the opportunity to comment more broadly. The opposition's position on this is that this legislation is not necessary and it does not go far enough. I am not sure how the opposition can close the ring on that argument. The shadow minister, who joins us in the chamber, has said on several occasions that he does not regard this legislation as necessary. Several of his colleagues have said that in the chamber tonight—nevertheless, they have said they will support it, which I welcome—and then they have said the legislation does not go far enough. I am not sure how you can argue that legislation that is not necessary does not go far enough. I have made the department's legal advisers available to the honourable member opposite. I understand they provided him with advice that shows why this legislation is necessary, which the honourable member is aware of—although he has not referred to it.

It is my view that this has been necessary for some time. Honourable members opposite have pointed out that there have been instances of people who have been convicted of offences whilst in immigration detention who have not then failed the character test. That is correct, and honourable members have referred to those instances. There have been others that honourable members opposite have not referred to. For example, in the 2002-03 Woomera and Baxter riots and escapes, in relation to Woomera 15 people were convicted of offences. Of those 15 people who were convicted of offences in relation to the Woomera riots and escapes, 12 got permanent visas and five were granted Australian citizenship. The honourable gentleman opposite and his colleagues complain here, and elsewhere in the broader debate, about this government not applying the character test. Previous ministers and governments found similar issues. Yes, I have taken the view that the character test does need to be strengthened. The honourable member has pointed out, correctly, that I said I would be applying the character test to people who participated in the events at Christmas Island and Villawood. Yes, I said that; of course I said that. It is not inconsistent of me to say also that I think the character test needs to be strengthened, and that is why this legislation has been introduced today.

The honourable member for Cook has criticised the government for our response to the Villawood protest. He said that we should have ignored the Australian Federal Police advice on how to handle that situation. He has criticised the government for having a senior departmental official explain to those people on the roof that they were not achieving anything and they should come down. I went back and looked at how previous governments might have handled these sorts of issues, because I thought: 'That's criticism which is aimed at the government.' I again had a look at the situation in relation to Woomera and I found a report from Saturday, 10 June 2000. It says:

Mr Ruddock said he had decided not to go to Woomera, despite demands from the boat people, because he did not feel it appropriate to go there under duress.

Fair enough, I say. The report goes on:

The secretary of the Immigration Department, Mr Bill Farmer, had been sent instead .

Previous ministers have sent the secretary for discussions with people who have been involved in protests and riots, and the honourable member opposite criticises the department and the government for having the deputy secretary say to people on the roof that they were achieving nothing and they should get down. The honourable member for Cook said in his contribution that life goes on. That was what he said. He said that for people who had been on the roof of Villawood life goes on and there are no consequences for the people involved. He ignored the fact that one of the people involved has been charged with very serious offences with a potential sentence of up to 12 years in prison. So his argument that life goes on is a little hard to manage.

I want to spend some time dealing with the opposition's amendment, which they have flagged for discussion. We will be opposing that amendment. The opposition have flagged an amendment which would amend section 501(7) so that people who are convicted of an offence with a custodial sentence would have the character test enlivened. To listen to the contribution of the shadow minister for immigration you would think that that would mean that anybody who is in Australia who is not a citizen who commits an offence in Australia could have their visa cancelled if they committed an offence which had a custodial sentence—and that would be true. What the shadow minister for immigration did not outline to the House is who else that would apply to. There are 4½ million permanent and temporary visa holders and applicants in Australia. The shadow minister's amendment would mean that, for example, somebody applying for a tourist visa to Australia who had been sentenced to a custodial sentence perhaps 40 years ago would fail the character test. For all the 4½ million people that this would apply to, it would mean that, for example, somebody who may have spent two weeks in prison 40 years ago would fail the character test. That would mean that every single tourist to Australia, regardless of visa type, would then have to be considered by the department in that light. I wonder whether the shadow minister for immigration has consulted with the shadow minister for tourism, who is at the table. I hope he has, because this will have a very significant impact on the tourist industry in Australia. I am surprised that a former head of Tourism Australia would move such an amendment as this. If they are concerned about processing times now, I would like to see the impact of their amendment on processing times, which will blow out.

Of course the government considered the type of amendment that the shadow minister has proposed tonight. We went through it. I did consider the position that this should apply more broadly and, when some of the implications of that were pointed out to me, I made the appropriate decision. I am not sure the shadow minister has thought this through. I think we see a bit of a thought bubble from the shadow minister. He would create a special class, because according to the shadow minister's amendment this would not apply to holders of ETA visas. So if you were to come from some countries you would be covered by this amendment; if you were to come from other countries you would not be covered, because ETAs would be under a separate regime. That was the advice to me from my department this evening.

I do not think the shadow minister for immigration has thought this through at all. It is appropriate that if you are in immigration detention you are very clear on your obligations, because offences in immigration detention, even offences which do not attract a penalty of 12 months or more, involve damage to Commonwealth property, risk to other detainees, risk to Commonwealth staff and risk to staff of service providers. They are serious offences, and it is appropriate that this parliament, this government, sends a clear message about that sort of behaviour. If the shadow minister for immigration sincerely believes that this amendment is feasible, then I would invite him to call a division. I would invite him to have the names recorded of honourable members who agree with him in this House and I would look forward to that division occurring. I am glad that he will be supporting the bill and I welcome that support and the support of the opposition, but I would also encourage them to reconsider the amendment they propose to move here tonight. I do not expect them to withdraw it from the House but I hope, after reflection, they do not move it in the other place. We will certainly be pointing out the inefficiencies and the shortcomings in the opposition's thought bubble on this approach.

Sid Sidebottom (Braddon, Australian Labor Party) Share this | Link to this | Hansard source

The question is that the bill be now read a second time. There being more than one voice calling for a division, in accordance with standing order 133(b) the division is deferred until 8 pm.

Debate adjourned.