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

I move:

(1) Schedule 1, after item 4, page 3 (after line 32), insert:

4A Subsection 501(7)

Repeal paragraphs (b), (c), and (d), insert:

(b) the person has been sentenced to a term of imprisonment or periodic detention; or

(c) if the person has been convicted of an offence and the court orders the person to participate in:

  (aa) a residential drug rehabilitation scheme; or

  (ab) a residential program for the mentally ill; or

4B Subsections 501(8) and (9)

Repeal the subsections.

The amendment will ensure that the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill to strengthen the provisions relating to general criminal conduct under the character test will apply to all persons who are not citizens, not just those who are or should be held in detention. The Minister for Immigration and Citizenship has opposed the amendment, claiming it will cause chaos in the processing of tourist visas and deny access to subclass 976 visas provided through the electronic travel authority, the ETA.

There are some points I wish to bring to the minister's attention. Firstly, it is the government's preference that persons with any criminal conviction, including those carrying a custodial sentence of less than 12 months, apply for a 676 tourist visa rather than a 976 ETA visa. How do I know this? It says so on the government's website. It says:

Criminal convictions:

If you have had any criminal convictions in any country you may want to consider applying for a tourist visa subclass 676 rather than an ETA. If arriving on an ETA with criminal convictions, you could be refused entry into Australia.

I concur with the government's advice because offences that would attract a 12 month sentence or less in the UK, for example, include communicating a bomb threat and various forms of assault. It is important that we know about these sorts of things before people come to our country, or at least have the opportunity to know. The requirement to notify a criminal conviction carrying sentences of less than 12 months is also not uncommon in Western countries. For example, it is a standard requirement in both the United States and Canada. In fact, it is also a standard requirement in China, India and Russia.

Secondly, the condition to deny a person access to a 976 ETA visa is provided for under the migration regulations, not section 501 of the Migration Act that is the subject of this amendment. Regulations relating to the 976 ETA visa stipulate regulation No.8528 as a condition that must be imposed with respect to the 976 ETA visa. It is regulation 8528 that sets the bar of a 12-month custodial sentence for the ETA, not section 501 of the act that is the subject of my amendment.

The amendment that I have moved today does not alter the construction of the condition set out in regulation 8528. It will continue to operate as it always has. As a result, the ETA process will not be compromised by the amendment that I have put forward. The minister's objection is a red herring and he should know it.

Thirdly, and finally, the character test consideration is a separate issue to the decision as to whether or not to deny or cancel a visa. The decision to deny or cancel is discretionary. Using the minister's logic, every application for an ETA visa should currently be scrutinised under the general conduct provisions of the test. This is not done as these matters are triaged, as they will continue to be under my amendment.

The minister has a problem with making decisions. He has a problem with his discretionary powers under the Migration Act. In the earlier comments I made on this bill, we made it clear that on several occasions the minister had refused to use his discretionary powers and had simply allowed the opportunity to pass him by. Rather than seeking to delegate such decisions wherever possible, whether it is to the courts or his department or, as I just mentioned, just letting it go or just ignoring it, this is an issue the minister clearly has problems with.

The amendment that I have put forward would enable the same test to apply to someone on one side of the fence as it did on the other side of the fence. If the minister was of a mind to ensure that we had clear standards about acceptable conduct and behaviour, he would apply the provisions across the board and make whatever consequent adjustments he believed necessary either by a direction under section 499 or by changing regulations to achieve the desired outcome. But, prima facie, what I have put out here today is that that is unnecessary, because the change that I am making is to 501 of the Migration Act—not to the regulations, which is where the ETA is considered and made clear.

The ETA position is not affected by this. The minister can conduct all sorts of fear-mongering campaigns as he likes, as he has issued a statement in the last 24 hours saying my amendment will bring down the tourist industry. He knows that if this amendment is passed the ETA will operate as it always has. He needs to decide whether he wants to use his discretion under the act to ensure that people who come to this country abide by our laws, our rules.

It is his government that abolished the community expectations test from the directive provided to the department's decision makers. It is his government that rolled back the strong border protection laws that have put us in the situation we are now in. It is his government, and this minister in particular, that has refused to use the discretion that is available to him. He continues to obfuscate. I commend the amendment to the House.

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

I do not intend to detain the House for long, because this is clearly a stunt from the opposition. As I said last night, the opposition's position on the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill is that it does not go far enough and it is not necessary. The shadow minister has been saying for weeks, 'We don't need to do this, it is completely unnecessary,' and then he came out last night and said, 'It's not going far enough.'

The shadow minister in his contribution has retrospectively fitted his amendment to his rhetoric. In his second reading contribution yesterday, he said that this amendment was necessary because if somebody who was in Australia on a visa commits an offence—and he used the example of Northies or down at the club; I think he used the example of the Coogee Bay Hotel—the Australian people deserve to know that if they are convicted of an offence they could then be deported. What he did not outline to the House were the implications for people who are applicants for visas. I suspect he did not even realise that was the import of his amendment.

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

I just addressed it.

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

He is addressing it now, but he did not address it last night. He explained to the House last night the import of his amendment, and he was talking about the implications of this amendment for people in Australia on a temporary or a permanent basis. At no stage did he say to the House that this would have any impact on tourist applications or 457 applications or any other applications. I pointed that out to the House last night and now the shadow minister has gone back to his office and retrofitted his rhetoric to fit his amendment. He probably got his legal advice from George Brandis again—and you always get into trouble when you do that. You really need to get a better lawyer.

The member for Cook should show us the problem he is trying to fix. Which tourist committed an offence in another country and then came to Australia and caused trouble in Australia, which is covered by this legislation? Which 457 visa holder was it? Which case is the shadow minister pointing to to justify this amendment? Very clearly the opposition and the government agree that the character test was not strong enough for people in detention. People in detention can impact on government property and can impact on the wellbeing of Commonwealth employees and employees working on behalf of the Commonwealth, not to mention other detainees. They are very serious issues.

There have been a number of instances under governments of this persuasion and under governments of that persuasion where people in detention have committed offences with a penalty of less than 12 months and the government has not been able to exercise the character power. It happened under Mr Ruddock, it happened under Mr Evans and it has happened under me. I have recommended to the House that that situation be changed, and the House endorsed it last night. The member for Cook found himself in a bit of a political situation where he thought he could not just back the government, so he was going to have to look tougher: 'What I do best is beating my chest, so how am I going to beat my chest if I just go in and support the government's legislation? I know what I'll do—I'll cook up an amendment; I'll bring in issues about tourists and 457 visas and all sorts of other things.

The member for Cook used the term 'red herring'—if the member for Cook looks in the mirror he will see a red herring in relation to this amendment. It is a stunt and a farce and I would invite the honourable member to call a division. If he really believes this is important, there are plenty of members in the House and he should call a division on this amendment—bring it on, let us have a division and see if every member of the opposition lines up behind the member for Cook. Let us see if every single member of the opposition supports him.

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

The Independents don't support it.

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

That has not stopped the member for Cook calling divisions before. We know the Independents do not support him; what we also know is that he is unlikely to get the support of the Liberal party room for this amendment. That is why he is running from this division. If he has nothing to hide, he should call a division. If he is hiding divisions in his party room, then he should not call for a division. I suspect we know the answer—he will not call a division because he cannot rely on the support of every Liberal party room member. We know that the Liberal Party is divided on many issues, and they are divided on this issue because there are several members opposite who think this amendment is a joke—as it is.

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

I note the bluster of the , but he failed to address the issue he raised in the House last night. I flagged this amendment in the House last night and also in the briefing with the minister's department and with his own office, and I asked at that time: why are we only strengthening the character test for those in detention and not for all of those on visas, as currently these applications apply right across the board? There was no answer. They had not thought of it. I understand that last night the minister must have thought of it after that—they certainly had not thought of it before I raised it—but he did not give me the courtesy of a reply on the issue I had raised with his staff so I brought the amendment forward.

The amendment deals very specifically with changes to section 501 of the Migration Act. Last night in this place the minister said that this amendment would not work because it would require a complete collapse of the electronic travel authority system, which would destroy the tourism industry. He was even so bold as to talk about my previous time as the managing director of Tourism Australia. He said I should have known this. The minister should actually understand his own regulations and his own act. He came into this place last night and said that this amendment could not be practically operational. Effectively that is what he said. Today in this place, in putting forward this amendment, I have made it very clear to the minister, and I have set it out, that the requirement to consider someone's criminal convictions under the ETA, which effectively would bar them from making an ETA application, is provided for under condition 8528, which reads:

The holder must not have one or more criminal convictions, for which the sentence or sentences (whether served or not) are for a total period of 12 months duration or more, at the time of travel to, and entry into, Australia.

That is where the power is created to bar someone access to the ETA. It is not an automatic progress from section 501 of the act and the character test into that condition. Even still, the minister knows that if he wanted to support this amendment and he wanted the same rules for everyone on both sides of the fence, he could quite easily introduce regulations and he could quite easily introduce a directive under section 499 of the act to ensure that these matters were operational.

I am happy for the minister to tell me where these things are out of place. After all, he has 9,000 people working for him in the Department of Immigration and Citizenship. On the opposition side, there are a few of us here working together with our staff in our offices, and we have some experience in dealing with these matters, but at the end of the day it is for the minister to be able to come to this place and understand specifically what occurs under the act he administers and under the regulations. I put it to the Minister: if it is not condition 8528 that is the key issue here for the operation of the electronic travel authority, then I am happy for him to correct me; I am happy for him to set me straight.

Equally, on top of that, the minister can also advise what changes he could therefore make to the regulations and what directives he could give under section 499 to make sure that they were operational. I am sure he would get support from the opposition to do that, because we are supporting this bill. We are supporting this bill and we will ensure that it passes through this place and the other place. But, in making this point, we offer the opportunity for the minister to ensure that we would be in a position to have this change effected. If the government is not prepared to support the opposition in passing this amendment then, frankly, there is no point in a division—because it will not go through this place, and I am not going to waste this chamber's time with the government's refusal to cooperate in a bipartisan way with the opposition over something of this nature.

The coalition have provided the government with support for their measure. We have put forward a practical proposal which, in our understanding, we believe can work. If the government do not believe that is the case, I am open for the government to actually tell me how this can be made to work at an operational level. But, from what I have seen to date, it would seem that the regulations are quite clear, and changes to section 501 of the act would not impact on the operation of the ETA system. But, even still, if the minister believes it does require changes, I am sure those changes can be made to the regulations or can be made otherwise by the form of a directive under section 499.

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

I am happy to address the matters raised by the shadow minister. First, the shadow minister raised the question: why the difference? I actually did address that last night, and earlier this evening, and I am happy to spell it out again as clearly as I can for the shadow minister tonight: the changes proposed by the government are there to fix a problem; the changes proposed by the opposition are a solution in search of a problem. The Leader of the Opposition—the shadow minister for immigration, sorry; I am getting a bit ahead of myself: he might be the Leader of the Opposition soon, but he is not yet—has not outlined the problem he is trying to fix. When you bring in a change to legislation it is normal practice to outline to the House what is wrong with the existing legislation—what is wrong with the character test as it applies to tourists, to 457 visa holders and to all non-citizens and visa holders in this country. There are 4½ million applications for permanent and temporary visas in Australia each year. So what the shadow minister needs to do is point out where the problem is that he is trying to fix.

In relation to people in detention, the government has pointed out that offences committed by people in detention can result in damage to public property and harm to Commonwealth employees and to people in our care—that is to say, detainees. Of course, there have been a series of events which have shown that the character test needed to be strengthened, that it would benefit from more clarity in being strengthened. The shadow minister, in search of a political solution— which I completely understand as that is his role as shadow minister: to find political solutions to political challenges for the opposition—has put forward this amendment. But it is not a solution to a public policy problem—because there is no public policy problem which he has identified. I invite the shadow minister again to show us an example of somebody who has come to Australia, who has had a custodial sentence of less than 12 months at some point in their past, and who has gone on to cause a problem in Australia.

I will deal with the matter of ETAs, because the shadow minister has chosen to verbal me—or, alternatively, he has misunderstood. I will give him the benefit of the doubt and say he did not understand what I was saying last night. I was actually pointing out last night exactly what the shadow minister is pointing out: that there is an inconsistency, that ETAs, which apply to people who come to Australia from several countries, would not be covered, and you would therefore have an inconsistency in terms of how this amendment would be implemented. If you came from certain countries, you would be covered in a certain way; if you came from other countries, you would be covered in another way. This had not been thought through by the shadow minister, with due respect to him. This was a thought bubble, cooked up as a solution to making him look tougher. As a result, he would implement a system which would mean that the department would have to devote considerably more resources or see processing times blow out very substantially for tourists, for 457 visa holders et cetera. I wonder what the tourism industry would think about that. I wonder what the resources industry would think about that. I wonder what industries in search of more skilled labour would think about that. This government has worked hard to reduce processing times for 457 visas and has achieved considerable results, with much better processing times than in years past—yet we see this nonsensical amendment from the opposition. I invite him to call a division.

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

In addressing the points the minister has just raised, I will read the statement that he issued today. He said that, under this proposed amendment:

… every person with even the most minor conviction would fail the character test, which could result in visa rejection.

It is interesting, because every person arriving on an ETA right now, under that class of visa, when they present themselves at the airport, having filled out the bit about a criminal conviction, can be rejected right there and then. My point about the amendment is that it changes nothing in terms of the normal operation of the department in issuing visas. Whether they are tourist visas, skilled visas, 457 visas, family reunion visas or humanitarian visas, the amendment I have put forward makes no change to the smooth working of any of those operations. But I can tell you what has caused a change to the smooth running of this department: the decision of this government in August 2008 to abolish the border protection regime put forward and run successfully under the Howard government. Since that regime was abolished by this government we have gone into absolute chaos. The cost associated with managing asylum seekers has gone from $100 million a year to more than $1 billion a year. If the minister is concerned about the impacts on the smooth running of the department of government policy changes, or indeed opposition amendments, I would caution him and ask him to look at the record of this government, because that is what has gridlocked this department, gridlocked business visa applications, gridlocked family reunion applications, gridlocked every form of visa application consideration across the full spectrum of what is offered in this country. My office, and members' offices on our side, are constantly having stories brought to them of frustrations in dealing with visa applications—including humanitarian applications, I should stress. Matters have been brought to me by members of the Salvation Army, specifically relating to humanitarian applications that have been delayed and not considered and rejected on the simple grounds that the government's program had been overwhelmed by those who had come by boat. That was the advice they got from this department. So the minister may want to come to the dispatch box and he may want to say, as he has said in the statements he has issued, that he wants to ensure consistency in our laws—because that is why this amendment has been put forward by the coalition. That is the issue he should be addressing. If the minister does not think there is a problem, if he does not think there is an issue in our community of those on visas breaking the law, if he thinks that every person who comes here on a visa never gets themselves into trouble, never engages in disorderly conduct, never has one drink too many, never engages in assault or never commits any sort of offence, then he should pick up the phone not just to the President of Nauru to fix his other problem but to the New South Wales Commissioner of Police. He should pick up the phone to the New South Wales Police Force, who deal with these incidents constantly. They tell me that they want to see a consistent approach applied to noncitizens. If there were the added sanction—faced by those who choose to act up while they are guests of our country—that a conviction of less than 12 months meant a clear failure of the character test, with the minister then able to deny or cancel their visa, it would be a welcome addition to the measures that are available to those who enforce our laws not just in New South Wales but all around the country.

The minister can choose to stay with inconsistency, as proposed in his bill, or he can choose the path of consistency. The path of consistency will not have the implications suggested by the minister. He has not been able to demonstrate that. He has come into the House today with no backup for his claim that this would cause havoc. The only thing that has caused havoc in the Department of Immigration and Citizenship is the way that this government has dealt with asylum seeker management and refugee policy.

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

Again, the shadow minister for immigration, the member for Cook, attempts to verbal the government and me. He says that I believe that people who come to Australia on visas never commit criminal offences. I have not said that. In fact, the current regime works. Noncitizens who have been sentenced to a term of imprisonment in Australia for 12 months or more are already identified, at the rate of about 60 people of interest per month. That shows that the system works. The shadow minister needs to indicate where there has been a problem which his amendment seeks to fix. That is what he needs to do.

The shadow minister has again said that he will not call a division because he will not win the division. I have been in this House for seven years, and I can recall a number of instances where oppositions have called divisions when they did not think they could win—every division ever called in any of the previous parliaments before this one, for example, and several divisions called during this parliament.

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

Get with the new paradigm.

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

This is a new precedent. I am sure the member for Cook will let the member for Sturt, the Manager of Opposition Business in the House, know that this is a new rule, that you do not call a division unless you think you are going to win it; otherwise, the House is entitled to conclude that the shadow minister for immigration is not calling a division because he cannot rely on the support of his own party.

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

Don't verbal me; address my points.

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

Call a division. I cannot under the standing orders. You can.

John Murphy (Reid, Australian Labor Party) Share this | Link to this | Hansard source

The member for Cook! The minister will not respond to the interjections.

Question put:

That the amendment (Mr Morrison's) be agreed to.

Question negatived.

Bill agreed to.