Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Indigenous Affairs) Share this | Link to this | Hansard source

I rise to support the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016. This bill makes consequential amendments to the Migration Amendment (Character and General Visa Cancellation) Act 2014 to ensure that character related provisions are applied consistently throughout that legislation. It also clarifies the minister's rights and responsibilities when exercising ministerial discretion to cancel visas on character grounds.

Labor supported the Migration Amendment (Character and General Visa Cancellation) Bill when it was enacted in the last parliament. The bill before the house today was originally introduced in the last parliament and was referred to the Senate Legal and Constitutional Affairs Legislation Committee, which reported on 15 March 2016.

Noting the outcome in the recommendations of the Senate Legal and Constitutional Affairs Legislation Committee, Labor will support this bill today. The bill makes amendments to the substantive amendments made to the act in 2014. The changes came about through the review into the character and general visa cancellation framework, in 2013. With Labor's support in the last parliament, the framework was made by legislation to provide for mandatory cancellation of visas for persons who have been serving a prison sentence and have been found to have a substantial criminal record, or found guilty of a sexually based offence involving a child. It broadens the power to refuse or cancel visas with additional grounds in the character test. It provides that a person does not pass the character test if they are deemed a risk, rather than a significant risk, to the Australian community. It allows the minister to set aside decisions by a delegate for a tribunal and cancel a visa if it is in the national interest. And it enables the minister to require heads of state or territory agencies to disclose personal information.

I wanted to specifically note comments made, during the Senate inquiry, by the Department of Immigration and Border Protection in relation to the previous bill, which I think are important to note in the House today, and which provide context for these amendments before the chamber:

… the protection of the Australian community and is particularly important in the offshore visa context. In considering whether a non-citizen should be granted a visa to come to Australia, there is an expectation that the non-citizen will not cause or threaten harm to either individuals or the Australian community. Where there is information that suggests that a visa applicant presents more than a minimal or remote risk of causing harm to an individual or the broader Australian community, it is entirely appropriate that the non-citizen’s visa application be considered for refusal under subsection 501(1) of the Act.

I think that statement ultimately reflects the views and expectations of the broader community, and certainly of the Australian Labor Party.

In addition to the minor technical amendments, the bill will ensure the minister's existing power to override a decision of the Administrative Appeals Tribunal or a delegate and cancel a person's visa. It applies to all visa cancellations on character grounds. It will include a reference to section 501BA, ministerial discretion to override a decision by the Administrative Appeals Tribunal or delegate, in the sections of the Migration Act relating to authorised detention. This means that a non-citizen who is subject to these decisions will be handled in a consistent manner with those who have been subject to other character test cancellation decisions. The bill inserts a cross reference in sections 195 and 196 to clarify that these sections do not apply to decisions made by the minister under section 501BA consistent with other character test cancellation decisions.

The bill clarifies two key points that are worth noting: that all pending or outstanding visa applications are taken to have been refused following a decision by the minister under section 501BA consistent with other character test cancellation decisions; and, that the provision in paragraph 503(1)(b) of the Migration Act relating to the rights of those who had their visas cancelled in character test decisions to enter or to be in Australia also applies to decisions under section 501BA.

Removal powers will not be able to be utilised while a non-citizen still has appeal rights available to them. I think it is important to note that. It is in keeping with the original intention of the bill. The bill ensures that the government has explicit removal powers for people who have had their visas cancelled under the mandatory cancellation provisions and provides for consistency with all over visa cancellations due to the character test.

The character concern will be broadened and will include those instances of non-citizens who have been convicted of, or charged with or indicted for people smuggling, human trafficking, genocide or child sex offences and to non-citizens subject to Interpol notice or adverse security assessments. To ensure consistency with other character decisions, all decisions made under sections 501BA and 501CA will be reviewable by the Federal Court rather than the Federal Circuit Court, and I think that is important to note—a higher court. The bill provides consistency with other character test cancellation decisions as it enables non-disclosure of confidential information provided to the department as a part of section 501CA or 501BA—a decision to cancel a visa.

The government is supported by Labor in relation to this bill, but I echo the warning made by my predecessor, the shadow minister for immigration and border protection in the last parliament, the member for Corio, that Labor will keep a close eye on how the minister exercises his ministerial discretion. In that way we hope he does it fairly. We support the legislation.

Peter Dutton (Dickson, Liberal Party, Minister for Immigration and Border Protection) Share this | Link to this | Hansard source

I want to thank the members for their contributions to the debate on the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016. I would like to start by emphasising to the House that this bill is a technical bill. It will ensure that the character and cancellation provisions of the Migration Act operate effectively and as intended following amendments made in December 2014 by the Migration Amendment (Character and General Visa Cancellation) Act 2014. It is a bill that does not go beyond the intention of the substantive amendments made by the character act passed by parliament in 2014.

In relation to the substantive amendments made by the 2014 act, the key amendment made by the act was the introduction of mandatory visa cancellation for noncitizens in jail serving a full-time custodial sentence of imprisonment and where that sentence is for at least 12 months, or indeed that they have been guilty of a sexually based offence involving a child. The purpose of these mandatory cancellation amendments was to quickly and effectively capture noncitizens who pose a risk to the Australia community by cancelling their visas and considering their case while they are still serving a term of imprisonment. To date, the vast majority of noncitizens who have had their visa cancelled under the mandatory cancellation power are repeat offenders with multiple criminal convictions in Australia or have committed serious or violent offences. The amendments made by this bill will ensure that the mandatory cancellation related powers introduced by the 2014 act are given their full effect and operate coherently with the existing character cancellation powers in the Migration Act.

These are important consequential amendments required to ensure that noncitizens who pose a risk to the community are dealt with effectively, efficiently and comprehensively. The government has undertaken a considerable amount of work with agencies across the Commonwealth and indeed across the states and territories in relation to individual matters to identify those people who have been in breach of the standard that would be expected by Australians and in many cases we have moved to cancel visas of people who have failed to achieve the character test. It is the case—my judgement, and I think the judgement of many agencies involved in relation to a number of these matters—that we have made the Australian community a safer place, that we have, by cancelling these visas, sent a very clear message to people who would seek to perpetrate crimes against Australians and, in particular, the most vulnerable Australians, including children, that that behaviour is not acceptable and that this government will not tolerate the presence of those people in our society who are here as our guests and who are here on visas and are expected to abide by the Australian law. For those reasons, I commend the bill to the House.

Ian Goodenough (Moore, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill be read a second time.

Question agreed to, Mr Wilkie dissenting.

Bill read a second time.