Richard Marles (Corio, Australian Labor Party, Shadow Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I rise to speak in support of the Migration Legislation Amendment Bill (No. 1) 2014 and in saying that indicate to the House that the Labor opposition has determined to support this bill in full. This is a very technical and complex bill which has a number of schedules to it but which makes important amendments to update and housekeep, if you like, the Migration Act. It is on that basis that we are supporting this legislation. I do intend to go through the individual elements of the bill, but suffice to say that we do support it in full.

There are six schedules to the bill, each dealing with a different aspect of the Migration Act. The first schedule of the bill Labor supports. It seeks to amend sections 48, 48A and 501E of the act. Currently under the legislation persons who have had a visa rejected are blocked from seeking to apply for another visa, in order to prevent them from playing the system in a way that allows them to stay in Australia. The first part of schedule 1 seeks to make clear that persons who may have had a visa cancelled in the past, when they were in Australia on a separate occasion, do not have that history weighing upon them when they then seek to come to Australia on a different visa or when they are in Australia and seek to have a visa renewed. Obviously, that history does not form part of the behaviour in the present which would seek to play the system and to stay in Australia. That is an important amendment which clarifies a particular provision.

The second part of schedule 1 seeks to clarify the decision of Kim v Minister for Immigration. In this decision there seemed to be an ambiguity about the effectiveness of a visa application that had been refused in circumstances where the person on whose behalf the application was made was unaware that it was being made on their behalf. The circumstance that we are talking about here is that of a family member, who may be a juvenile or may have some mental impairment, who would not be aware whether or not a visa application has been made on their behalf. In this case, a person in such a situation was able to argue that, because they were unaware of the visa application that had been made on their behalf and had ultimately failed, this ought not to be held against them in circumstances where they then seek to apply for a new visa. The problem with that is that it treats different family members differently based on their level of awareness and has, as an underpinning assumption, the possibility that parents may seek to apply for visas on behalf of their children or dependants other than in those children or dependants' interests. That is not going to be the case.

We accept that the basic assumption that parents will act in their children's interest ought to be maintained and that when decisions are made in relation to a family group about whether a visa is accepted or not the consequences of an adverse decision ought to apply consistently to the entire family. To not amend the act so as to clarify the case of Kim v Minister for Immigration and Citizenshipwould lead to that differential outcome in relation to a decision made about a family who seek a visa on behalf of each member of the family. Schedule 1, therefore, will give rise to clarity in relation to that circumstance and we support it.

Schedule 2 deals with a situation where persons who apply for a bridging visa are able to avoid a circumstance where they are lawfully able to be removed from the country. The circumstance here is that a person may have exhausted various options under the Migration Act in terms of pursuing visas and, having exhausted those options, they are in a situation where it is now lawful for them to be removed from the country. In that circumstance, if the person applies for a bridging visa they are able to avoid that consequence. The intent of schedule 2 is to remove that as an option for a person in those circumstances.

To understand that, it is important to explain the point of a bridging visa. By and large, bridging visas are put in place to bridge a person over to the point of pursuing a substantive visa. The obvious example is where somebody seeks a permanent protection visa and they are issued a bridging visa until their refugee status determination can be made. Bridging visas are used to allow people to remain in the country until the substantive visa application is determined. There are some circumstances where a bridging visa will be issued without it necessarily connecting to a substantive visa—for example, a student who may have overstayed their visa and, when challenged about that, makes the point that they are going to leave the country in a week's time. In those circumstances, the normal course would be that such a person would be issued a bridging visa until the time of their flight, because that is the sensible thing to do. In circumstances where you could be removed from the country, bridging visas, being applied for in the absence of any substantive application, are able to avoid that removal. That is not the intent of the legislation. A rolling set of applications for bridging visas which do not lead to any substantive applications are ultimately playing the system. This schedule will remove that avenue for a person in that circumstance.

It is important to note that this amendment does not impinge on an individual's right to apply for any substantive visa. Further, to address potential concerns regarding Australia's human rights obligations, a provision has been added to the amendment after subsection 198(5) that will ensure that, despite the powers outlined in the amendment, protection visa applicants will not be considered for removal until either the visa application has been refused or the application has been finally determined. For these reasons, we support schedule 2.

Schedule 3 proposes amendments to section 262 to put in place debt recovery provisions to people who have been detained for people-smuggling or illegal foreign fishing activities. Under the current provisions of the act, a person is not liable for costs arising from their detention and removal when they are no longer detained because of section 250, because they were granted a visa or because they were not in Immigration detention at the time of their conviction. The amendments empower the Australian government to recover detention debts from people smugglers and illegal foreign fishers. This does not apply to asylum seekers, and that is a very important point for this House to understand. For that reason, these amendments are consistent with Labor's policy to combat the scourge of people-smuggling and illegal foreign fishing by providing a further financial disincentive to engage in such activities.

Schedule 4 deals with the role of authorised recipients as defined under the act. This schedule seeks to amend section 379G in order to clarify the role of authorised recipients. Authorised recipients are authorised by a person in an immigration matter to receive legal documents associated with that matter. An authorised recipient may be a family member or they could be somebody who has a better fluency in English. There are a whole range of reasons why people may be appointed as authorised recipients by a person engaged in a matter.

There appeared to be some commentary in the case of MZZDJ v Minister for Immigration and Border Protectionwhich suggested that authorised recipients may have a broader role than simply the receipt of documents. This amendment will make clear that that is not the case and that authorised recipients, having been appointed as such, only have the role of being a recipient of legal documents and cannot act in any other form of agency in the context of an immigration matter. This is important because to not do this runs the risk of allowing authorised recipients to assume a broader role than was contemplated under the legislation. When you think that we have a system of regulated migration agents, it would ultimately undermine that scheme of regulation if you allowed persons who are simply appointed to receive documents to assume some greater role. It is an important amendment which makes sense.

There is a second amendment within schedule 4, which seeks to deal with the case, SZJDS v Minister for Immigration and Citizenshipwhere, by virtue of an imperfect application in relation to the substantive immigration matter, will not of itself invalidate the appointment that a person involved in that matter may have made in relation to an authorised recipient. The case to which I have just referred suggested that, if you do not get the substantive application correct, then that voids the appointment of the authorised recipient; that can then have the obvious consequence that a lot of notice might then be given around the fact that you got the application wrong in the first instance and so cannot validly be provided to you, because your authorised recipient is no longer authorised. That is obviously an absurd outcome, which the amendment seeks to deal with, and we support it.

Schedule 5 is perhaps the most substantively important schedule within this bill. This seeks to insert a new section 51A of the Australian Citizenship Act 2007 that will provide administrative access to and use of material and information obtained under a search warrant issued under the Crimes Act 1914. It will also insert a new section, 488AA, into the Migration Act, which mirrors the provision in the Australian Citizenship Act, to provide administrative access to and use of material and information obtained under a similar search warrant. There are often circumstances in which the Department of Immigration will have been the main driver of a case which is seeking to investigate a person who may have been involved in large scale breaches of the Migration Act. In doing so they use as their partner the Australian Federal Police who is the holder of the search warrant. Circumstances are arising where raids that are made by the Australian Federal Police in pursuit of such a warrant gain information which not only applies to the person who is the subject of the warrant but also provides a whole lot of information on other people who may be in breach of their visas and may be in circumstances where, had that information been known, they would not have been provided with visas and not given access to Australia. This will allow that information to be used, whereas at the moment we have the almost ridiculous situation where there are certain people within the Department of Immigration who are involved in that investigative and prosecutorial activity who are unable to release that information to other parts of the Department of Immigration, who, if they had that information, would then be able to act accordingly and cancel visas or act in some other administrative way. This will allow that information to be shared, and that is a very important measure in the context of maintaining the integrity of the Migration Act.

Finally, schedule 6 deals with the code of procedure within the Migration Act, currently in section 57, which codifies common law procedural fairness. At present section 57 only applies to applications that are made onshore, whereas for determinations made outside of Australia the common law definition of procedural fairness is applied. There is an obvious inconsistency in that: where we are applying common law procedural fairness offshore and we have a codified version that is used for onshore applications. It makes no sense, and so this tidies that up to make clear that the codified common law procedural fairness, as it is currently contained in the act, would apply to administrative decisions made either onshore or offshore so that there is consistency.

The Labor opposition believes all six schedules enhance the integrity of the Migration Act and associated pieces of legislation. They are obviously, as can be determined from the information I have just provided, highly technical but they are nevertheless very important, and we have great pleasure in supporting them so that the Migration Act can continue to evolve and keep pace with decisions and to perform the important work that it does within our system of law.

Andrew Laming (Bowman, Liberal Party) Share this | Link to this | Hansard source

It is encouraging to hear the response from the opposition to support, in the main, all of the schedules that we are discussing tonight. It leaves me with very little to do apart from echo the overview of the bill which the opposition spokesman did so well. These are very important measures that are strongly supported by the Australian public. Of course, many of the finer details of the Migration Act are not well understood by the man and woman on the street, so it is important in these examples—where in many cases the law has been tested and taken to the highest court—that, where the policy intent has not been followed, it is only appropriate that we should be making clarifications today. Obviously, there are huge and seismic changes in immigration policy, but this piece of legislation is an example of how we will be making the day-to-day operations—for those people that are either seeking visas or seeking adjudication on their eligibility for a visa—to be done in a more streamlined way, and in a way that concurs with the original intent of the legislation.

To very briefly touch on those points again: schedule 1 makes very clear that individuals who have been previously refused a visa should not have the active consideration of a subsequent visa refused, unless that refusal has occurred since their most recent arrival in Australia. In simple points, this means that if you were refused a visa in the distant past on a previous trip to Australia, that is not to prevent you from returning to this country on a different visa, being accepted, and being able to stay. That is, I think, an important clarification.

Schedule 2, which I think is also of enormous public interest, addresses the clash between section 195 and subsection 198(5) in the act. This is about ensuring the correct operation of removals policy intent—I guess on every street corner there are stories about people who apply to come to Australia, arrive, are refused, go through to the highest courts, and exhaust all their options for approval and for review, only then to be able to thwart the system by applying for a second bridging visa, or a subsequent bridging visa—and about finding opportunities or ways, within the very generous legal system that we have available to them, of frustrating or preventing their return. And so this schedule removes that ambiguity, and puts beyond doubt that if a person has applied for a protection visa and either that visa has not yet been refused or the person is still under the reviews and appeals process, they cannot be removed. But once that process has been completed, they cannot make spurious claims to new bridging visas in an effort to continue their stay.

The recovery of costs question in schedule 3 was very controversial. In 2009, from the government of the day, it seemed like such a compassionate thing to do: to remove what were sometimes enormous costs from individuals who were often innocent parties in the process—but we know that that is, in the main, not the case. It was then that those amendments removed the liability for people, and for liable third parties, to reimburse the Commonwealth for the costs of transporting them while they were in immigration detention. I am glad that the opposition spokesman has made it very clear that this does not apply to asylum seekers. That would have been a very tempting piece of misinformation to promote around the nation, but it absolutely is not the case. This predominantly applies to convicted people smugglers or to illegal foreign fishers, who are detained under particular elements of the act. The specific concern that is being addressed today—the loophole that is being closed—is that there were some provisions that actually impeded the recovery of those debts.

The examples that have already been tested in court are cases of people who were not initially detained because of section 250, but who might well have been detained under other sections, which made it impossible to reclaim those debts. They may well have been granted some other form of visa. An example of this is a criminal justice stay visa, where it is in the public interest to complete a court process and potential prosecution of an individual, but in that case and in many instances where that occurred, the individual on that visa was also able to escape reasonable cost recovery. Lastly, of course, is the situation where an individual is not in immigration detention at the time of their conviction. This was a massive loophole, given that now around 27,000 of the 30,000 in Australia are not in detention, also making large numbers of people immune from debt recovery. The overall concern in schedule 3 was a simple one: to create a disincentive; sending a very clear signal to these persons who are participating in people-smuggling and in illegal foreign fishing that there will be significant costs if they are caught, and that the costs of that detention and transportation will accrue to them.

In schedule 4, on authorised recipients: this addresses a fairly complex area where, with respect to someone who is authorised to receive written documentation and written communication from the government, it will now be very clear what those individuals' obligations are to government and vice versa. Under this schedule, there is no obligation on the government to share with the authorised recipient any oral communication, because that person's role is specifically restricted to documentation, but it also makes clear that these authorised individuals cannot move into other forms of activity on behalf of their client beyond receipt of documents. And obviously, these authorised recipients need to get the individual's consent if they wish to cease to be an authorised individual; they cannot simply refuse to do so, or withdraw that consent without the individual knowing.

Lastly, schedule 5 addresses the Crimes Act, and specific information that is collected under Crimes Act search warrants. It would seem utterly reasonable to the Australian public that that should be germane to administrative decisions under the Australian Citizenship Act 2007. Australians would like to know that all possible evidence that has been legally collated should be available to a minister or a department in making those citizenship decisions.

These are relatively small issues. They are issues that have gone, in many cases, to the highest court in the land. As a result of these decisions, should this bill be passed, some of the more ambiguous elements of this legislation will be corrected tonight. It is good to see that there is bipartisan support to ensure that that indeed occurs.

Matt Thistlethwaite (Kingsford Smith, Australian Labor Party, Shadow Parliamentary Secretary for Foreign Affairs) Share this | Link to this | Hansard source

I am pleased to rise in support of the passage of this bill, the Migration Legislation Amendment Bill (No. 1) 2014. As has been indicated by the shadow minister for immigration, Labor supports the contents of this bill and will vote accordingly.

The contribution of migrants to Australian society, culture and prosperity has been an important factor in shaping our nation. Since 1945, more than seven million people have come to Australia as new settlers. In the 2011 census, it was reported that one in four of Australia's 22 million people were born overseas. We all know that Australia's migration framework—its network—is often a complex web of evolving legislation, with legislative provisions and judicial decisions intertwined with policy decisions and intentions.

It is of vital importance that we continue to refine the legislation that underpins our system of migration. In many cases it is up to the legislature to respond to anomalies, to unfair decisions, particularly those that are identified by the courts. The purpose of this bill in many respects is for the House of Representatives and the Senate, the parliament, to act as a response to a number of inconsistencies and anomalies that have been identified through court decisions, through policy decisions over many years in respect of the migration legislation.

So the purpose of this Migration Legislation Amendment Bill (No. 1) 2014 is to amend the Migration Act to clarify the restriction and scope on applying for further visas. The bill will ensure that visa applications are considered on their merits. If a person has a visa violation dating from a previous visit to Australia and is now back in the country, then prior history will not bar that person from further application. This amendment will make it clear that the restriction on applying for a further visa applies only if a noncitizen has had a visa cancelled and, importantly, since last entering Australia. While the existing provisions contain a statement to this effect for the purpose of noncitizens who have had their visa refused since last entering Australia, those important additional words 'since last entering Australia' are missing from the equivalent provision relating to those who have had their visa cancelled. This suggests that a person who had their visa cancelled at any time would be subject to the prohibition in section 48 on applying for a further visa, which the department claims would be contrary to policy intent. So this amendment in schedule 1 in respect of the operation of section 48 of the act clarifies that position and ensures that the act operates according to its original intent.

Amendments contained in the bill will extend the operation of section 48 of the act to people that may have had a valid application lodged on their behalf. This is a result of a matter before the full Federal Court challenging the application of section 48 to a minor on whom an application was made on their behalf. It was argued in a particular case that section 48 would not operate to limit further applications by the minor if they did not know about or understand the nature of the visa application that was made on their behalf and subsequently refused. This could have unintended policy outcomes, particularly for families and minors in difficult situations.

I highlight the example that is outlined quite effectively, I think, by the Parliamentary Library in the Bills Digest of a 16-year-old girl who remains in conflict with her father due to family violence and remains living in a refuge with her mother. She is included on a non-meritorious visa application without her knowledge by her father, which is refused. Then when her mother includes her on a subsequent meritorious visa application as her dependent, she is informed that the application by the daughter is invalid due to the father's previous application. We all know that that is not the intent of this type of legislation. It is generally found to be beneficial legislation and should operate accordingly. To have situations where someone is a victim of family violence and could be refused an application for a visa due to an invalid previous application that was lodged without her knowledge is not the original intent of this legislation and, accordingly, needs to be amended. That is what this amendment will do. It puts beyond doubt that the bar will apply regardless of whether the applicant was unaware of the application being made. The fundamental point is that the system will assume that the parent acts in the best interests of the child with the visa application is made on their behalf.

The bill seeks to ensure that an application for a bridging visa does not prevent the removal of a detainee who is otherwise eligible for removal. The amendment will expressly clarify that, despite the power of removal under subsection 198(5), the department must not remove a noncitizen that has made a valid application for a protection visa that has not been refused and finally determined, even if the application was made outside of the time limit. So to address potential concerns regarding Australia's human rights obligations, a provision has been added to the amendment, after subsection 198(5) that will ensure that, despite powers outlined in the amendment, protection visa applicants will not be considered available for removal until either the visa application has been refused or the application has been finally determined. Again, that clarifies the position with respect to Australia's human rights obligations and the operations of that particular section of the act.

The bill also seeks to enable debt recovery from all persons convicted of people smuggling and illegal foreign fishing. We know just how awful and bad people smuggling has been not only to those seeking asylum to the north of Australia but also to regional relations between Australia and our nearest neighbours. It is an insidious trade, it is an immoral trade, and this amendment provides the opportunity for the government to recover from persons convicted of this insidious activity. These amendments are, of course, consistent with Labor's policy to combat people smuggling and illegal foreign fishers by providing a further financial disincentive to engage in such activities and builds upon some of the strong actions that were taken by Labor in government, particularly around in illegal fishing and people smuggling, where penalties were severely increased.

The bill amends the act to clarify that the role of an authorised recipient is to receive documents on behalf of an applicant, not to do things—not to act on their behalf. These amendments address the finding of the full bench of the Federal Court in the 2012 case of SZJDS v Minister for Immigration and Citizenship that the term 'applies for review' in the act means that an application must have been properly made under section 347 for the obligation of the tribunal to give documents to an authorised recipient or to be engaged. The amendments make it clear that no technicalities will make invalid an application to have an authorised recipient. As long as the person has expressed a desire to have an authorised recipient act on their behalf, it will not matter if the application is valid.

The bill will also amend the Australian Citizenship Act to enable greater use of material and information obtained through a search warrant, including making or assisting to make a decision to grant, cancel, revoke or refuse a visa or Australian citizenship, about the detention, removal or deportation of a non-citizen from Australia or cancel approval of citizenship. There are currently a number of cases in the department where they operate with the AFP and have uncovered highly sophisticated criminal networks that led to further migration fraud relating to current applications pending before the department. However, because there is currently no ability to share the information with the administrative side of the department, that information is not able to be used to question those applicants. Labor is satisfied that the amendments will not adversely impact upon applicants' ability to have decisions reviewed and to have procedural fairness and natural justice applied to those decisions. Those two important legal principles will continue to apply in such situations where the Crimes Act warrants are used in administrative decision making.

Finally, the amendments will bring all visa applications under the code of procedure—section 57 of the act, which currently only applies to visa applications made onshore, and Commonwealth procedural fairness applies to applications made offshore. It is appropriate that the definition of procedural fairness is consistent across all visa applications regardless of whether they are made onshore or offshore, and this particular provision will clarify that inconsistency. The amendment will also significantly reduce the risk of jurisdictional error arising from the failure to apply the common law test appropriately.

It is quite a complicated bill, a necessary one, that will improve and clarify the operation of a very important piece of legislation. It is one that governments must constantly reform and refer to in the wake of decisions being regularly made in the courts. That is what this bill does, and for those reasons Labor and I support the passage of the bill.

Don Randall (Canning, Liberal Party) Share this | Link to this | Hansard source

I am pleased to speak on the Migration Legislation Amendment Bill (No.1) 2014. This is the continuation of the coalition government's commitment to the Australian people to restore integrity to Australia's migration system and to ensure the security of Australian borders. As the member for Kingsford Smith said, it is quite a technical bill. It goes to a whole lot of detail, and I will not regurgitate it all, since it is in Hansard, but there are elements that need to be mentioned. The bill amends sections 48, 48A, 501E of the act so that they can be correctly applied according to the policy's intention. It ensures that a pending bridging visa application cannot be used to prevent removal, thus limiting the ability of some of the detainees to frustrate the removal process. It applies the debt liability provisions of the act to all convicted people smugglers and illegal foreign fishers—as the member previously said. It clarifies the process and requirements relating to the receipt of documents by an authorised recipient from the Migration Review Tribunal or the Refugee Review Tribunal. It clarifies the role of the authorised recipient and the requirement to notify them of any direct communication that the department may have had with the person who appointed them. It allows for the access and the use of material and information obtained under a search warrant issued under the Crimes Act 1914 by the department for duties under this and other acts. It sees that the procedural fairness requirements prescribed in this act apply universally to all applications. Finally, it repeals any reference to section 14 of the Electronic Transactions Act 1999.

Before I continue in this debate, I would like to talk about the success and the reason why we are here today in this particular context: fixing up Labor's mess on migration. Let us understand that, when John Howard left office in 2010, there were four people in detention as a result of having come via boats. When he handed over, that was the situation. When the Labor Party handed over—the people booted them out essentially, because they could not control our borders—we had something like 30,000 people displaced in the Australian community without their visa status assessed. We had something like 15,000 people in detention in places like Christmas Island, Scherger and Curtin, or they had been released into the community because they were deemed not to be of any conflict.

I have to congratulate the now Minister for Immigration, Scott Morrison, for what he has done in this area. He had one of the biggest challenges, because everyone knew that John Howard stopped the boats and stopped the illegal trade of migration, but after six years it was a case of—and the media were very responsible for saying this—'Well, it's different now. It's gone too far. You can't stop it. It's entrenched. The people smugglers have got the upper hand.' When Kevin Rudd became Prime Minister, he found a solution to destroy a successful outcome in terms of protecting our borders. I am particularly appalled that the first minister for migration, under the Labor Party, was a Western Australian. His name was Senator Chris Evans. Senator Chris Evans was the one who turned the green light on. The green light essentially said, 'If you can get to Australia, you will get a visa. If you get to Australia not only will you get a visa but you will get somewhere to live, you will essentially get paid and your kids will go to school. If you stay long enough, you will get a permanent visa.' What sort of green light is that?

Let's have a look at Lampedusa in Italy. Dare I talk about Italian connections? Boats are sinking off Lampedusa because the Africans have now realised there is a porous border solution going through Italy. Before you ask, 'How would you know?', I went to Italy. I went to Sicily and other places where there are detention centres. I went there and talked to the Africans who were in detention. They basically said, 'It is the same story. All we have to do is get on a boat and Italy will take us.' When I went to another detention centre in Rome, I asked the policeman who was showing me around the detention centre, 'Why don't you try to stop these people and send them back like we do?' This was at the end of the John Howard year. He said, 'I'm sorry, signor. We are the land of the Pope. We don't do that.' In other words, he was saying they have a soft and open heart. But what the Italians do is send them north. They take them into the detention centres and give them money to go to Germany, Denmark and other northern European countries that have decided they should open their borders as well. You can see what is happening in France as a result. So thank you very much, Senator Chris Evans, for what you did.

He was followed by the member for Gorton, then the member for McMahon and then, finally, the member for Watson. They all presided over the disgraceful situation which allowed people to come to Australia unbridled. As I said, those people are now sitting in the Australian community. Remember when Kevin Rudd said, 'We are going to put a moratorium on Afghans and we are not going to process them'?

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

You bloody hypocrite—

Don Randall (Canning, Liberal Party) Share this | Link to this | Hansard source

I would not talk too much, if I were you. If anybody knows about Sri Lanka it is me. I am the chair of the Sri Lankan friendship group and I can tell you, Member for Moreton, I know more about this situation than you will ever write a dirty book about. What you do not understand is what you did on your side when you were in government to the border protection of this country. You are a disgrace. You should not open your mouth. Aren't you the one who said you were going to resign from parliament if Kevin Rudd ever came back again? Why didn't you have the guts to resign? You did not have the guts, did you? You did not have the guts to resign.

Julie Owens (Parramatta, Australian Labor Party, Shadow Parliamentary Secretary for Small Business) Share this | Link to this | Hansard source

Mr Deputy Speaker, I rise on a point of order. I ask the member to address his remarks through the chair.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

The member for Canning will address all his remarks through me and he will be heard in silence.

Don Randall (Canning, Liberal Party) Share this | Link to this | Hansard source

It needed to be responded to. If the drivel keeps going, I will keep responding to it. If he wants to keep quiet, we will continue with the bill. But if he wants me to point out his history and his party's history on this issue I am happy to do that.

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

The member for Moreton will listen to you in silence.

Don Randall (Canning, Liberal Party) Share this | Link to this | Hansard source

At the end of the day, they were the party that opened the gate. This is what the now minister, Scott Morrison, is fixing. These technical amendments stop the ability of people smugglers to get away with it, essentially. They stop them from appealing to every court level in Australia. They stop them from using our judicial system and taxpayers' money to stay here. All these amendments we are going through are necessary because they have found legal circumventions to the laws that the Labor Party put in—with the help of the Greens, I will add. The Greens were in bed with them. They formed a coalition with them.

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

You voted with them—

Ross Vasta (Bonner, Liberal Party) Share this | Link to this | Hansard source

Order! The member for Moreton will listen to the member for Canning in silence.

Don Randall (Canning, Liberal Party) Share this | Link to this | Hansard source

If you have something decent to contribute, wait your turn. Otherwise, show some manners.

At the end of the day, while people said we could never fix this and turn back the boats, it has been done. For almost six months there has not been a boat. There has been no help from the media. All the Canberra press gallery, the left wing version of the Canberra press gallery and —dare I say it?—one of the biggest culprits, the ABC have been part of this process of undermining us in fixing this. I understand Laura Tingle in the weekend's media was reported as having said the coalition would have to backtrack on our hard migration changes because they would never work. We did not backtrack. We have put them in place and, as a result, we have stopped the boats. It has been almost six months since there has been any illegal arrivals by boat.

Then we had George Roberts from the ABC. George Roberts is up in Indonesia and he is trying to make a name for himself as a junior ABC journalist. He was the one who went out there and vilified our naval service personnel, saying that they forced people on boats to put their hands on the hot exhausts of the boats and burn their hands. Not only did he not backtrack, he continued to repeat this. Not only did he continue to repeat this but he was backed up by the ABC executives at the most senior editorial level. Against all the lack of assistance from the press gallery here in Canberra, we have stopped the boats.

The whole issue is that these amendments are going to do something about making sure that the department has the ability through both the department itself and the Migration Review Tribunal to stop people using the system to stay here. There is going to be a common-sense approach to the processing of visas for people who are clogging the system. The continual nuisance applications designed to facilitate their further stay in Australia are going to be dealt with through these amendments.

I do not know well the previous speaker, the member for Kingsford Smith, but he seemed to be quite genuine in what he was saying. He was in the Senate, by the way, when these laws were passed. I understand the Labor Party is not opposing these amendments, so it will be interested to see the member for Moreton criticise them, even though they are not going to vote against them. At the end of the day the legislation will work towards ensuring that we can finally stop the rorts that have been happening through this change of systems.

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

You are an expert on rorts, aren't you Don?

Don Randall (Canning, Liberal Party) Share this | Link to this | Hansard source

You just go and write another dirty book and see how you go. You will have an opportunity shortly, Kevin Rudd's mate.

One of the things these amendments will do is enshrine the character test into legislation. The Labor Party talked about character tests under their new regime. I think they even talked about new paradigms and such, but none of them worked. You may recall the boats that have arrived off Darwin, and in particular the one they set on fire themselves. The court found that five people were guilty of having started the fire. Can you believe that the previous government gave those people visas to stay in Australia. They were given visas to stay in Australia even though they killed some of the people on their own boats.

This legislation is going to fix up those terrible rorts and the lack of accountability that happened under the previous government. We are the ones who are going to bring integrity back to this country's migration system. I know those on the other side are uncomfortable about this. The member for Fremantle is someone I know well, being a Western Australian. I know that she wanted to move in her party room that they move away from detention. Remember that it was Gerry Hand, all those years ago, who confirmed that there would be mandatory detention in this country. Those on the other side, particularly the Left of the Labor Party, are still uncomfortable that we have mandatory detention. It is a bipartisan policy, but they still want to move in their own caucus meetings that they walk away from these things. That is the real issue here. If they had the opportunity again to be on the Treasury benches or on this side of the House they would water down the arrangements and legislation so that the green light could be turned on again.

We want to bring fairness back into the system. I have constituents who have family overseas and are trying to bring their children here. They talked about domestic violence. A particular woman I know in Malaysia has been subjected to domestic violence and has been ostracised by her ex-husband in Malaysia, who has now returned to the Middle East. She cannot get a visa. She is stranded in Malaysia. They are the sort of people we want to bring to Australia, rather than the ones who pay a people smuggler $10,000 and then use our court system to park themselves in Australia on the charity of organisations in Australia like the Salvation Army and others.

This is decent legislation that is designed to tidy up the mess the Labor Party brought to this country, and as a result denigrated our reputation as a migration destination without any discrimination. I support the bill.

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

I rise to speak on the Migration Legislation Amendment Bill (No. 1) 2014. Deputy Speaker Vasta, with your Italian background you would well know that our migration framework underpins our economic and social growth. Since World War 2 we have had over seven million people arrive in Australia. In fact, you could say that we have had a migration scheme running for about 226 years, apart from Indigenous Australians.

For most of those 226 years—I think in fact for 224 years—the number one source of migrants to Australia was Great Britain. We see that on our flag, the Union Jack having predominance on our flag, with the Cross of St Andrew, from Scotland, the Cross of St Patrick, from Ireland, the Cross of St George, from England—unfortunately the Welsh do not get a look in, but that is something for the United Kingdom to sort out. For 224 years of our migration program, Great Britain has been the number one source. In the last two years we have seen something interesting. The number one source country has changed. Two years ago China was the number one source and then one year ago India was the number one source, reflecting the changing face of Australia.

Migration is an emotive topic. People are arriving here as skilled migrants, or through family reunification or through love or as people seeking asylum. We see people try to exploit it. We even see ignorant people in this chamber try to make mileage out of the fact that people, when their family is in dire straits, will do anything. They will try to rake up $10,000 or go into hock to criminals to try to put their children into a safe place. I know that I would do anything to give my children a safe haven if my environment had changed such that they were being persecuted. This is not to mention that you cannot seek asylum when you are starving to death. That is not legitimate grounds under any treaty for coming to Australia. You cannot seek asylum in Australia when your country is going underwater because of climate change and rising sea levels. That is not a legitimate ground at the moment. Obviously it will become more of a factor, but the reality is that the treaties we have signed that give us obligations will let you flee persecution and come to Australia, but we will not let you come here if you are starving to death or drowning.

Migration is an important thing to get right. There is a little bit of interplay between the legislation that comes out of the Commonwealth parliament, and the judiciary. I think the very first piece of legislation to go through the Commonwealth parliament was the 'white Australia act', which reflected the views of the men of the time. Since then we have signed other treaties with the world. We have been a proud leader when it comes to actually guiding the world in terms of doing the right thing. Despite the legislation we signed off in the first parliament we have become a much more multicultural nation and we have been able to hold our head up high.

The bill before the chamber is highly technical and complex. It seeks to address inconsistencies in the application of parts of the Migration Act 1958 (the Act), obviously reflecting some of that interplay that comes with judicial interpretation, especially in the High Court.

In my six of seven years in this parliament I have been involved with lots of pieces of legislation. The biggest inquiry I was involved with was the Christmas Island tragedy inquiry back in December 2010, when my views, which have changed over the last decade, came into sharp focus while interviewing the people who tried to rescue the people who died in that tragedy and when we looked at the extended horrible footage showing young girls drowning and people doing their best to get to Australia. But obviously that was not to be the case. The Labor Party's response to that tragedy was in fact to look at a solution whereby we would do a deal with the Malaysian government and try to break the people smugglers' business model so that they did not have anything to sell. Obviously it would have been something that would have changed lives. In fact, arguably, if the Liberal and National parties had voted with the Labor Party on this piece of legislation we would have had a piece of legislation that perhaps would have saved the lives of 689 people who have lost their lives at sea. They lost their lives as a result of the LNP and the Greens getting together to put the kibosh on the Malaysian agreement.

But that was not to be. That was political opportunism at its most rank, as far as I am concerned. That is why I was amazed the other day to see the Treasurer come in here and make the following statement in parliament:

But most of all, as a result of the actions of this government, there are no children floating in the ocean between Australia and East Timor, as occurred under Labor.

The rank hypocrisy of that statement, after the Treasurer voted with the Greens to block the Malaysian agreement, still riles me. And I ask him to come back in and apologise for making that statement. I follow closely what the immigration minister says. He would never have said that. Maybe it was in the heat of the moment, and the Treasurer still has the opportunity to come back in and apologise to the parliament for making that statement. Obviously it will not bring back the 689 people who lost their lives at sea after the Malaysian deal was blocked by the Liberal and National parties and the Greens. Nevertheless, that the Treasurer came into this parliament and made that statement still offends me.

The legislation before the parliament is, as I said, mainly technical. It seeks to clarify the restriction and scope on applying for further visas by amending sections 48, 48A and 501E of the Migration Act. Obviously this is based on the current interpretation of section 48. It is suggested that anyone who has had a visa cancellation or application cancellation at any time is prohibited from applying for a further visa. This is contrary to the policy intention—and there is agreement between Labor and the LNP on this policy—to prevent people who have done something wrong from playing the system so that they can stay in the country. The amendment will ensure that each application is considered on its merits. So, if a person has a violation dating from a previous visit to Australia and is now back in the country, prior history will not bar their further applications.

Schedule 2 of the act proposes that the department must remove a detainee who was entitled to apply for a substantive visa or revocation of the cancellation of a substantive visa but did not do so. This obligation to remove in such circumstances will apply irrespective of whether the detainee has made a valid application for a bridging visa. The amendment expressly clarifies that despite the power of removal in subsection 198(5) of the act the department must not remove a noncitizen who has made a valid application for a protection visa that has not been refused or finally determined, even if the application was made outside the time limit.

The current subsection is creating a situation in which detainees are held in indefinite detention due to their ongoing pending applications for bridging visas as the department does not have the power to remove a person if they have applied for a bridging visa. There is no limit to the number of bridging visas a person can apply for. A bridging visa application also takes away the removal powers of the department. This can result in detainees applying continuously for bridging visas after all avenues have been exhausted. So, basically this amendment removes bridging visas if there is a bridge to nowhere, effectively, so they cannot just keep creating a bridging visa. Bridging visas still have an important role while people are in flux or when their situations are changing. They are used sparingly, but they are an important part of our immigration repertoire. But obviously we need a bridge to somewhere for it to be an appropriate mechanism.

Schedule 3 of the act proposes amendments to section 262 to put in place debt recovery provisions for people who have been detained for people-smuggling and illegal foreign fishing. I am not sure how successful that will be. But, if people have built up assets, that is something that always should be encouraged under Australian law. Under the current provisions of the act a person is not liable for costs arising from their detention and removal when they are no longer detained because of section 250 or because they were granted a visa or because they were not in immigration detention at the time of their conviction. The amendments empower the Australian government to recover detention debts from people smugglers and illegal foreign fishers—obviously not asylum seekers, but the people who are doing the illegal activity. We would never suggest that it is illegal to seek asylum. These amendments are consistent with Labor's policy to combat the scourge of people-smuggling and illegal foreign fishing by providing a further financial disincentive to engage in such activities.

Schedule 4 amends section 379G of the act to clarify that the role of an authorised recipient is to receive documents on behalf of an applicant and not to actually do things on their behalf. That is mainly technical.

Schedule 5 inserts a new section 51A of the Australian Citizenship Act 2007 that will provide administrative access to and use of material and information obtained under a search warrant issued under the Crimes Act 1914 for certain purposes of the act and the Citizenship Act.

Schedule 6: this amendment will bring all visa applications under the code of procedure, which is section 57 of the act. This only applies to visa applications made onshore, and common law procedural fairness applies to applications made offshore. It is appropriate that the definition of 'procedural fairness' is consistent across all visa applications, regardless of whether it is made onshore or offshore. It is not appropriate that offshore applications are afforded a higher standard of procedural fairness than those made onshore. The amendment will significantly reduce the risk of jurisdictional error arising from the failure to apply the common law test appropriately.

Obviously, migration debates are always seen through the prism of our borders. We know that, and we know that the signs and symbols are important. The sign and symbolism of the Liberal and National parties in renaming the department 'border protection' belies that long history going back to 1788, I guess, of people arriving here by boats in Australia, whether it was from the fear of the French, who arrived three days after the First Fleet, or the fear of the Russians, or the fear of the Japanese—they built cannons out in Brisbane harbour and they built cannons on the Sydney heads; I think they even built them down in Melbourne, but I am not as familiar with that—or the fear of the Chinese or the Indonesians. I am not sure whether they have ever had a fear of the New Zealanders apart from at Bledisloe Cup time! But for Australia, as a nation that is based on the fact that people have arrived in boats and made a claim on the land, we seem to have a greater fear of people arriving and seeking asylum. It is almost irrational.

I have heard other speakers in this chamber, despite having made quite incoherent statements, talk about this reality and comparing it with Europe, where there are significant arrivals of asylum seekers. As the armed conflicts in places like Syria and Iraq deteriorate, people will always seek a safe haven. People will always do what they can to give their children or their grandchildren a chance in life. That is the human brief; that is the human condition. We will always do what we can to look after our children. So that reality, and these figures are a little bit out of date, means that because of war, famine and climate change there are about 42 million displaced people in the world.

Now, we are generous nation. We have done more than our fair share of heavy lifting when it comes to settling people in Australia on permanent visas and through other visas. I think it is basically the United States first, Canada second, Australia third and pretty much daylight fourth. But the reality is that even if we doubled, tripled or quadrupled our intake we could never accommodate that 42 million people. If you then cut it down to the number of people registered with the United Nations High Commissioner for Refugees—I think, from memory, it is about 15 million people registered as refugees, having a reason to flee persecution or the like—we could never settle that number of people. We could never grant asylum and have a harmonious community.

We do multiculturalism well because we do it appropriately and in a well-resourced way. We offer support, guidance and comfort to people who arrive in Australia, however they get here—whether they come on a skills visa, a marriage visa, an asylum seeker visa or on a plane organised by the Australian government. The reality is that our harmonious community is a result of us looking after people appropriately when they arrive in Australia.

This legislation cleans up some of the problems associated with it. There is much that the Labor, Liberal and National parties agree with when it comes to dealing with migration. Obviously, there is political pointscoring that is a little bit obscene on occasions, but the reality is that much of this legislation is agreed on by both sides of the chamber. I commend it to the House.