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

I rise to speak on the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016. The bill before us today introduces a new revalidation check framework for visas. It clarifies when a visa ceases to be in effect under the Migration Act and enables the use of contactless SmartGate technology during immigration clearance.

Labor always takes a constructive, bipartisan approach to these matters. That is how it should be. That is what Australians expect with respect to issues of migration and national security. The security of our nation and the safety of our people are and should be above politics. In this parliament and the last, we have consistently worked to improve and amend legislation because, where there are flaws in the system or errors in the legislation, they should be fixed before they cause problems, not after. That is the job of a strong opposition: improving and strengthening the system, delivering better processes and better outcomes. That is the approach that Labor has taken with the bill before the House today. Labor supports the pilot of a 10-year Chinese visitor visa and the expansion of SmartGate in Australia, but, really, this bill is about what is contained in schedule 1 and the visa revalidation issue. Concerns about parts of this bill have been raised by various stakeholders, including the Law Council of Australia, the Migration Institute of Australia, the Kaldor Centre for International Refugee Law, and the ANU College of Law migration program. Three parliamentary committees have examined the bill and released reports, including the Senate Standing Committee for the Scrutiny of Bills, the Parliamentary Joint Committee on Human Rights, and the Senate Standing Committee on Legal and Constitutional Affairs.

I say from the outset there are aspects of this bill that are concerning to Labor, particularly in schedule 1 and how visa revalidation checks will work within the current non-discriminatory immigration framework, which has had broad bipartisan support for decades. A revalidation check is defined in the new section 96A, which says:

revalidation check means a check as to whether there is any adverse information relating to a person who holds a visa.

Labor is concerned about the broad powers of a revalidation check as provided for in this bill and the limited parliamentary oversight of ministerial powers it allows within the ministerial framework. The revalidation measures outlined in schedule 1 of the bill will give the minister unfettered power to target whole groups of people for extra scrutiny and visa suspension through the revalidation process. Revalidation can apply to all visas, not just the pilot ten-year visitor visa, subclass 600, for Chinese nationals—a point which drew criticism from the Parliamentary Joint Committee on Human Rights, which noted the broad ministerial discretion to require any visa holder to complete a revalidation check. This engages, of course, the right to equality and non-discrimination in our community. The committee also suggested these measures may not be proportionate to achieving the minister's stated objective of managing risks and sought advice from the minister about whether safeguards could be included in the legislation. The bipartisan Parliamentary Joint Committee on Human Rights wrote:

As the power to prescribe the type of visa is unlimited, it appears that it could enable the minister to prescribe any type of visa, including a protection visa, spousal or other family visa or permanent visa as subject to the revalidation check. This measure therefore has the potential to engage a number of human rights, including Australia's non-refoulement obligations, the right to an effective remedy, the right to liberty and the right to protection of the family.

It was troubling that the explanatory memorandum for this bill refers to visa revalidation only in the context of applying to the 10-year visa pilot program for Chinese nationals. This led to confusion about which visa holders will need to take part in the revalidation process.

In their submission to the Senate inquiry, Kaldor Centre for International Refugee Law said the revalidation framework 'has the potential to adversely impact on all visa holders'.

The Law Council questioned whether the bill was necessary, given it:

… has a substantially broader application than was intended or expressed in the Explanatory Memorandum or the Minister's Second Reading Speech.

I note the Senate Standing Committee for the Scrutiny of Bills also raised concerns about the explanatory memorandum's silence on this matter:

The discussion in the explanatory memorandum is limited to this new type of visa, as stating that the revalidation checks for visas introduced by the bill will only apply to this new visitor visa.

However, the bill does not limit the application of the revalidation checks to the visitor visa. The power in the bill is to require persons to complete a revalidation check in relation to any visa ‘of a prescribed kind’. This gives a broad power which could result in the revalidation check being applied to any category of visa (including spouse or family visas or protection visas). The explanatory memorandum does not explain why it is necessary to include such a broad power in the bill.

It is disingenuous of the immigration minister to seek support from the parliament when he has not been upfront about the scope and application of his grab for unfettered powers within the bill's supporting documents. A visa ceases to be in effect if a person fails to complete a revalidation or if they fail to pass the revalidation check. Visas will cease to be in effect if the visa holder does not pass the revalidation. A visa holder will not pass the revalidation check if it is found there is adverse information; however, 'adverse information' is undefined and does not need to be directly about the person—it is enough if it relates to the person.

In their submission to the Senate inquiry, the Law Council submitted:

As drafted, the Law Council is concerned that 'adverse information' is too broad to meet its intended purpose to protect the Australian community due to the risks associated with longer validity visitor visas.

In their submission, Kaldor said it was particularly concerned at how visa revalidations could impact on refugee visa holders. In general terms, their concerns went further, saying the broad definition of adverse information would:

… enable the government to impose surveillance measures on temporary, and possibly, permanent visa holders. It undermines the long-standing rationale and stability of Australia's migration system, which is premised on the notion that once a person has been issued a visa, he or she is entitled to have that visa be in effect until the visa period expires (subject to any grounds for visa cancellation).

Labor's concerns were also shared by the Senate Standing Committee for the Scrutiny of Bills, which reported:

... it is not clear why information relating to the person would be included in a revalidation check and what this means, over and above information directly about the person.

The committee sought the minister's advice and, despite the minister making his case, the committee's response is outlined in the bill's digest:

… the power to prescribe any type of visa is ‘inappropriately broad in scope’. The committee also notes that the Minister’s power to require a revalidation check in the public interest is not limited to circumstances where the Minister identifies a risk to the Australian community.

Of specific concern to Labor is the minister having a non-compellable power to determine by legislative instrument that a specified class of people holding a visa of a prescribed kind must complete a revalidation check. The explanatory memorandum to this bill states that targeting of these visa holders for revalidation can apply to visa holders who: hold a particular passport, live in a particular country, live in a particular state or province within a country, may have travelled through a particular area during a particular time, or applied for the visa during particular dates. This measure has no genuine parliamentary oversight. It is extraordinary.

All the minister has to do is cause to be laid before each House of Parliament—that is, the Senate and the House of Representatives—a statement which states his determination, and it can be up to six months after he makes that determination. Labor is concerned at the possible unintended consequences of this measure and the real possibility that people could be targeted for revalidation based on their nationality, their region of origin or their religion.

Our immigration framework already has in place measures to manage imminent threats on our borders and our people, manage the risk of issuing visas and stop people being granted a visa, if they are unsuitable in the first place. The minister has the power to cancel visas based on character grounds, if a person provides incorrect application information in their application or on their passenger card; where, for example, the minister is satisfied the decision to grant the visa was based on a fact or circumstance which no longer exists, emergency cancellation can take place of a visa on security grounds such as an adverse ASIO assessment; and, if a visa is cancelled under certain sections, a visa held by a family member may be cancelled. The powers already exist and they can be done in the first place before a person gets a visa.

The immigration minister has not explained why he needs the new powers outlined in schedule 1 or has been unable to satisfy the concerns of stakeholders and parliamentary committees who have examined the bill. Under schedule 1, the minister can invoke these revalidation powers, if he considers it to be in the public interest. The public interest test is undefined, open to broad interpretation and could be abused to pursue a political agenda in the guise of public interest. It could lead to scenarios where people are asked to revalidate purely on the basis they hold a passport from certain nations, from regions—for example, where particular religions may be dominant or practised. These measures, and targeting of people, should be of concern to everyone in Australia.

In the Senate Standing Committee on Legal and Constitutional Affairs report, the committee wrote:

2.60 The committee encourages government to consider that public interest revalidation checks made by the Minister be subject to disallowance by the Senate.

This is particularly concerning in light of recent statements made by the immigration minister. In the last six months, the immigration minister's comments about immigration have only grown more concerning. This particular minister cannot be trusted with wide-ranging, unfettered powers over the visas of whole groups of people.

Recently, the immigration minister flagged an overhaul of the pathway to Australian citizenship, because he believed some migrants 'come to Australia with little respect for our values (but much for our generous welfare)…' and whether migrants 'had a long period of time on welfare' should be a factor into whether they are able to take up citizenship. This isn't the first time this minster has tried to play the welfare card, having earlier described refugees as 'illiterate and innumerate' people who would take Australian jobs or 'languish' on the dole and use free health services within Medicare.

Despite this, the minister often makes hurtful, unjustifiable and ignorant comments about migration, including when he argued Australia had 'made mistakes in bringing some people in' and suggested people who are of 'second- and third-generation Lebanese-Muslim background' were a mistake. Putting this much power in a good minister's hands would be a concern, but this immigration minister is not a good minister.

Ultimately, Labor cannot give Trump-like powers to a man that has such a high desire to see a divided Australia. Labor will not support a bill that could see whole groups of people targeted on the basis of their place of birth, passport or religion.

In November last year, after reviewing this bill, Labor reached out to the Minister for Immigration and Border Protection and requested amendments to the legislation in good faith. The minister basically ignored our request until Monday when his office confirmed the coalition would not support parliamentary oversight of the minister's non-compellable power to determine specified classes of people to revalidate their visa.

While some of Labor's concerns about schedule 1 of the bill were outlined in the Senate inquiry, those concerns are just the tip of the iceberg to Labor's broader issues with handing this particular minister—and any minister in general—unfettered power over the revalidation of visas by a targeted subset of people.

Labor shares the concerns of those stakeholders who put in submissions to the Senate inquiry, including the Law Council of Australia who recommended against the passage of schedule 1 on the grounds that the:

Bill appears to be neither necessary nor proportionate to its intended objective, in that it has the potential to apply to all classes of visas, not just the proposed longer validity visitor visa;

Bill grants a broad range of powers to the Minister, with limited or no explanation as to their intended purpose;

Bill provides capacity for the Executive to make legislative instruments that are not subject to disallowance by the Senate, potentially impacting upon all persons residing in Australia as temporary or permanent residents;

presence of powers in the existing structure of the Migration Act and Regulations, which already provide adequate powers to address the concerns raised in the Explanatory Memorandum and the Minster’s second reading speech; and

insufficient information on the establishment of the proposed longer validity visa.

It was similar concerns that led Labor to refer this bill to the Senate Standing Committee on Legal and Constitutional Affairs.

We will speak out against legislation that seeks to target people from certain regions, because Labor has never and will never agree to discriminate against people on the basis of their race, religion and country of origin. Australia's non-discriminatory immigration framework has been in place for the last four decades and has resulted in the multicultural society which we are proud of and in which we live in today—a place that has welcomed 7.5 million migrants since World War II.

Labor is prepared to work with the government to get a proper revalidation process in place, relevant to this subclass of visa. In its current form, Labor cannot support schedule 1 and we will move amendments in the Senate to remove the schedule 1 from the bill.

We call on the government to work constructively with Labor to remove schedule 1 and split this bill to allow passage of the other measures, which we support, such as SmartGate and visa ceasing events. Labor will work with the government in a bipartisan way to create a revalidation framework that is fair, in line with Australia's non-discriminatory immigration policy and subject to appropriate parliamentary oversight.

Labor supports Chinese tourism–that is Labor's policy; we have supported it since the days of Whitlam going to China. Labor recognises the wonderful contribution made by the Chinese community to Australia's economic and social development and we support the 10-year visa pilot in relation to Chinese nationals, and we call on the government to allow these measures to pass by removing schedule 1 from the current bill. We cannot support the bill in its current form.

Andrew Giles (Scullin, Australian Labor Party) Share this | Link to this | Hansard source

This ought to be a non-controversial bill. That it has become a matter of controversy between the parties really bears witness to the character of this government and, in particular, the responsible minister. The conduct of the Minister for Immigration and Border Protection, as outlined very effectively by the shadow minister in his contribution, has been disingenuous at best. At worst, he has been cavalier in respect of how Australians should see themselves and their role in the world; in particular, how all of us in this place manage our responsibilities as lawmakers who are conscious of the proper relationship between the legislature and the executive.

It is for those reasons that I rise to join my Labor colleagues in opposing one aspect of the legislation which is before us—a troubling aspect that does not appear to be, in the breadth within which it is set out, at all appropriate within the scheme of the bill. I think it is important that this parliament—this House and the other place—adopt the course foreshadowed by the shadow minister, the member for Blair, and seek to remove schedule 1 from this bill. That way we can proceed with the other important measures as expeditiously as possible. We can serve those purposes while we look, if it is appropriate, at the imposition of a revalidation regime that is appropriately targeted and provides appropriate safeguards for affected individuals and, indeed, a harmonious community and a decent society.

It was a particular pleasure to be in the chamber for the contribution of the shadow minister, who very effectively set out Labor's concerns with this legislation. His contribution made clear that the provisions in schedule 1 raise very serious questions of rights and the relationship between the legislature and the executive. These are matters which must be of concern to all of us who have a say in the making of laws.

At a more practical level, the regime that is proposed in schedule 1 raises some pretty significant questions that we should be interrogating. We have not had the opportunity to interrogate properly questions of scope and purpose, which you would think would come from a considered minister and a considered government before parliament was presented with a regime such as this to debate. We do not have any sense of the purpose of such a wide-ranging regime which interferes with the categories of rights of many people without any form of effective safeguard. This is despite the fact that these concerns, in various terms, have been raised by very significant stakeholders and in a series of inquiries into this bill.

There are very significant consequences which attach to the provisions in schedule 1. The regime which is proposed, in my view, does some violence to the whole scheme of the act and how visa holders are to be treated—that is, as individuals and not by reason of some class they are said to be a part of by a minister at a particular point in time and for no particular reason. Obviously, this also does violence to other regimes that are cornerstones not just of Australian law but of how we see ourselves as Australians. I think most particularly of the Racial Discrimination Act. These are very significant matters which go beyond the impact of directly impacted individuals. So the course of action proposed by the shadow minister is critically important in a wider sense. It goes to how we treat people and how we think people ought to be treated.

Of course, this debate today does not take place in a vacuum. All of us who sit here do so with an understanding of the impact of executive decisions elsewhere, in the United States, on people—not by reason of their circumstance or entitlement but by reason of where they are from or the faith they profess. We cannot ignore that. It is of course shameful that Australia formally has not been clearer in articulating its opposition to the decision-making of the President of the United States in that regard.

The bill that is before us should not be about affecting a radical change to how we manage the rights of visa holders generally. If the minister were serious about the wider objects of the bill then he would take the entreaties of the shadow minister and the opposition seriously and enter into a conversation about purpose and, beyond that, about safeguards. That he has not done so is disappointing to say the very least. It is particularly disappointing—and I mentioned earlier that his contribution was disingenuous at best—when you have regard to his second reading speech and, indeed, the explanatory memorandum. Neither averts to the prospect that this revalidation regime might extend beyond the visa category that is ostensibly the subject of the bill before us. What Labor is saying today is that all of us in this place should do our jobs properly. We should do our duty as lawmakers to get this right. That requires a proper look at schedule 1 informed by purpose.

In the remainder of the time I will touch first upon the elements of the bill that Labor is strongly supportive of. Indeed, some elements have been Labor policy for quite some time. I will then touch briefly on some process issues which are significant, having regard to the passage of this piece of legislation, and then echo and hopefully reinforce the comments of the shadow minister in terms of the substantive concerns that arise should schedule 1 be enacted into law.

The second reading does set out some important objectives in this legislation. These are shared objectives: promoting Australia as an attractive destination for visitors; recognising—as all of us in this place do—the critical contribution of tourism to the Australian economy and all of our aspirations that it can make a greater contribution to our economy in the future; and facilitating ever more effective use of technology in managing the experience of visitors entering Australia, having regard to having appropriate safeguards in place. I am firmly of the view—as are my colleagues, I am sure—that the 10-year visitor visa is a good idea. I note that such visas have been issued for some months now. I am convinced that this regime will deliver efficiencies and, with that, significant economic benefits. Similarly, through the provisions in the bill, the streamlining that will be facilitated through improvements in the form of contactless smart gates will enable more effective use of technology to get that balance right between the convenience of visitors and our clear interest in questions of national safety and wider issues around how people come and go into Australia. I urge the government to take up the proposal of the shadow minister to enable the swift passage of these elements of the bill, the elements which are said to be the driving force behind the introduction of this legislation.

Questions of process do need to be considered here because, while consideration by committees has, at face value, supported the passage of the legislation, there are a number of very significant caveats which do need to be raised. Firstly, the three committees have all pointed to the need for safeguards to be improved. In my view, the committees which have considered the legislation have not had an appropriate time to canvass the very significant issues in schedule 1. I note the Legal and Constitutional Affairs Committee had a very short inquiry time and, as I understand it, no formal hearings. Only six submissions were received, and a number of organisations have advised me that they would have liked to have made submissions to the inquiry recognising the significance of the issues in schedule 1. Nonetheless, very significant concerns were raised, in particular the question of the absence of a disallowance mechanism or other meaningful oversight or safeguard. These concerns have not been addressed.

Similarly, the Scrutiny of Bills Committee of the Senate raised concerns, and the Parliamentary Joint Committee on Human Rights raised very serious concerns, as articulated by the shadow minister, and in particular squarely raised the issue of why there is no limit in the legislation to clarify the revalidation process for the 10-year visas or other appropriate visa categories. No meaningful response has been received to this or to any other questions going to purpose or to safeguards. These are very significant matters that require proper investigation.

On the substance of the bill, I note—and the very helpful Bills Digest has directed my attention thus—that a regime of the type which is proposed in schedule 1 is very unusual. It suggests that the United States is the only jurisdiction which presently has or is moving towards such a regime. But, even there, the regime is qualified and informed by a sense of the purpose to which such a regime ought to be directed—which is, of course, the principal failing in the piece of legislation before us here. Having regard, in particular, to the uncomfortable way in which a class-based regime sits with the Migration Act as it stands today and, I would also submit, to the Australian values of being open to non-discriminatory migration, this novelty, of itself, warrants very careful consideration and very careful scrutiny being applied to this sort of provision.

I urge members to consider the contribution of the Kaldor Centre in their submission to the Senate Legal and Constitutional Affairs Committee. They point out that 'the definition of a revalidation check is extremely wide' and that the issue around the provision of adverse information raises particular concerns, given the failure to define that term. The examples set out in the explanatory memorandum offer very little comfort in this regard. The Kaldor Centre say:

In effect, the proposed provisions enable the government to impose surveillance measures on temporary, and possibly, permanent visa holders. It undermines the long-standing rationale and stability of Australia's migration system, which is premised on the notion that once a person has been issued a visa, he or she is entitled to have that visa be in effect until the visa period expires—

subject to proper grounds for cancellation on the merits of the individual case, not a discriminatory approach based on a class to which that person is said to belong. They go on to note:

The revalidation framework has the potential to adversely affect refugees.

This, of course, goes to the international obligations we have entered into. These are issues which are avoided by the government but require proper consideration in this place before any regime of this type is to be considered.

The questions that go to the wider powers of the minister, similarly, are deeply troubling—they are deeply troubling in any case but particularly for this minister at this point in time. The notion of such a broad executive power to characterise classes of people by reason of where they are from or their faith is deeply offensive to me. It is also fundamentally unnecessary to the purposes which are said to be achieved by this legislation. This parliament should remove schedule 1 from the bill, get on with those things which are great for the Australian economy and take a very hard look at how we characterise people, reaffirming our support for a genuinely non-discriminatory immigration policy which has served Australia so well. (Time expired)

Julian Hill (Bruce, Australian Labor Party) Share this | Link to this | Hansard source

Building on the comments of the shadow minister and the member for Scullin, the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 should be straightforward. Schedules 2 and 3 have bipartisan support, as has been outlined, but unfortunately it is not straightforward. Schedule 1 raises substantive and serious concerns as currently drafted.

The stated policy objective of these amendments is to introduce a new revalidation check framework for visas, and that is said to be required for 10-year Chinese tourist visas. The Chinese tourist visa commenced on 12 December last year and is a bipartisan commitment. Indeed, it was part of Labor's election policy to support the growth in Chinese tourist numbers. It would be easier to take the government's objective to grow tourism more seriously if they actually had a tourism plan. Tourism has now overtaken coal to become one of Australia's biggest exports, according to research out only this week, but the coalition still has no plan for tourism, which employs one million Australians. Nevertheless, we can accept the logic that, during the course of a long-term, 10-year visa, we may want to ensure that certain details or aspects are up to date—passport numbers, criminal history, health checks and so on. The Law Council of Australia has questioned whether this schedule or these powers are even needed and has pointed to existing laws or regulations available to manage these requirements. It is worth noting that, of the other countries around the world that issue these long-term, 10-year type visas, there is no other jurisdiction that has these kinds of powers. The USA is moving in that direction, as the member for Scullin outlined, although with a much more focused and purposeful regime.

Despite these doubts, let us just accept at face value that there is a need for this legislation and that a clearer head of legislative power is warranted. Our concern is that the breadth of the proposed provision massively exceeds what is needed. It provides extreme powers to this minister and to any minister in the future to pick on any group of people, including permanent residents of this country. They are the kinds of powers that authoritarian leaders worldwide would salivate for. As legislators, I firmly believe that we should not support schedule 1 as drafted because it provides powers well in excess of what is needed and reasonable and necessary to the executive.

There are two new clauses of concern in particular. Clause 96B applies to where a person holds a visa of a prescribed kind. The argument is that this provides for the future should other visas be introduced. I am concerned, though, that it is not limited or specific to long-term visitor visas, as has been suggested by Senate inquiries. In fact, this could be applied to family or spousal visas, skilled visas and visas with long-term resident rights, including permanent residents. The instrument here is at least made subject to parliamentary scrutiny.

This brings me to the cause of greatest concern in this bill, clause 96E, which provides the minister an outrageously broad power to issue a non-disallowable legislative instrument requiring 'a class of persons' to undertake a visa revalidation check 'in the public interest'. This is extraordinary. It must be a matter of enormous concern to any responsible legislator in this parliament—if there are indeed any Liberals left in the Liberal Party—and, indeed, to citizens. The key reasons I say this are, firstly, there is no guidance or restriction whatsoever provided in the legislation as to what the class of persons may be. The minister could decide on a whim to identify people of any race or any religion or any eye colour or hair colour and so on. That may sound fanciful; it may sound exaggerated; you may be shocked; but it is true. There is no guidance, secondly, as to what is in the public interest. There is waffle in the explanatory memorandum of examples but no definition, and this power is not limited to circumstances where the minister identifies a risk to the Australian community. Thirdly, the minister's extraordinary power here is not reviewable or disallowable by the parliament. There is no parliamentary scrutiny and it is unclear as to why. There is scrutiny available for the visa classes but not for the class of persons. So a single minister, now or in coming years, if we pass this could decide to pick on any group of people in Australia. The shadow minister was kind when he talked about inadvertent consequences, but it smells fishy or suss to many of us. It is an extreme order or an extreme vetting power, but this is not even about filtering who comes into our country, as is the debate in the United States. There is no restriction on this power being used to threaten long-term permanent residents. Frankly, every permanent resident of Australia should be deeply worried by the power that this gives to a minister of the Crown. It is unclear also as to how or to what extent federal antidiscrimination laws such as the Racial Discrimination Act even apply and it is unclear as to whether merits reviews of these decisions are available.

The shadow minister and the member for Scullin have remarked upon the appalling record of this minister—the shameful record of race baiting in public and in this chamber—but that, to my mind, is a distraction. There is good news for the House: Peter Dutton will not be the minister for immigration forever. I am confident of that. So let's try not to think of him. Let's put him out of our minds. It is a happier place.

There is a deeper principle here for legislators, which is: should any minister of any persuasion from any party have such a power that is so broad? At a minimum, parliamentary oversight is warranted. But I do not believe the policy case for this kind of power has been made, and this parliament should not provide it to any minister, whether it be my party or any other party fronting up. Our job is to ensure that powers granted to ministers are proportionate to a clear, objective requirement and are properly oversighted. My view is that we grant the required powers, and no more.

In relation to the current construct of the act, this is no little fiddle. It is true that the minister has extremely broad powers under the Migration Act, and it is one of those acts, as we know, where the minister is a god, in a legislative sense, and has incredibly broad powers over individuals and cases, and I accept that. But this goes much further. The advice that I have received is that no Australian immigration minister has ever had the power to issue a non-disallowable legislative instrument which imposes obligations on a specified class of persons which can have consequences for that person's visa. Primarily the act is constructed so the minister has these broad powers to deal with specified classes of visas or individual visa holders.

For the sake of completeness, there are a few minor procedural abilities in relation to classes of persons in relation to the issuing of visas, or so I am advised; things like evidentiary requirements, fees, health checks and so on—and that is fair enough—when people are applying; but nothing approaching this. And, given the purported reasons for this legislation in the second reading speech, it is fair to say that this is an unwarranted, sneaky grab for power, and it is deeply troubling, to my mind, in this era of growing populism.

True democracy hands power to those who the majority choose. But implicit in—indeed, core to—our democratic compact is an understanding that the rights of minorities are protected and respected and that individuals and groups are protected from government overreach by checks and balances. If we let that slide, then we drift very quickly from populism to authoritarianism and fascism. It may sound extreme, but we forget these lessons of history at our peril.

Our role as legislators is to fully scrutinise, to reflect on and to review powers granted to the executive, to give what is required and no more. It is important to rebuilding trust in this great institution of parliament and our vocation, here in this people's house, that we take that seriously. We should oppose schedule 1, as drafted, in the strongest possible terms, because the policy case has not been made out.

The Senate inquiries, as has been mentioned, raised multiple concerns. The Legal and Constitutional Affairs Legislation Committee raised concerns regarding the lack of parliamentary oversight. The Scrutiny of Bills Committee raised concerns about the breadth of the power. They noted that it is unclear why legislative limits to the type of visas cannot be set, and described it as inappropriately broad in scope. They noted that 'adverse information' for a revalidation check is not defined in the bill. There is no clarity as to what information a visa holder may be required to provide. There is circular waffle in the explanatory memorandum, verging on being evasive. The Law Council raised concerns about this. And the shadow minister, the member for Blair, outlined very eloquently serious concerns about these adverse information provisions and some of the concerning scenarios. The Parliamentary Joint Committee on Human Rights noted that this breadth: 'has the potential to engage a number of human rights, including Australia's non-refoulement obligations, the right to an effective remedy, the right to liberty and the right to protection of the family.' I sought advice, and they sought advice, as to the safeguards that can be included in the legislation, such as limiting this to long-term visas—the problem we are trying to solve, or so we thought; making clear the basis on which a revalidation check can be provided; and the requirement that this be based on an objective assessment of an increased risk to the Australian community, not a ministerial whim. To my knowledge—and I am happy to be corrected—the minister has provided no substantive response to those points.

So I appeal, as do my colleagues, to the decent, moderate legislators opposite to force a rethink, however that happens in your party. This needs to be rethought. I would encourage you to imagine your reaction, as decent Australians—there are some there—if we introduced this kind of provision. What would your response be?

It is clear that this is not just bad legislation. It is not just sloppily drafted. It is dangerous and it is wrong. It is a classic example of executive overreach.

The white Australia policy is long gone. Australia's discriminatory immigration policy is gone. There are some fringe voices—some opposite, but many in the other place and elsewhere—trying to bring it back. I am not suggesting that the majority of the government or the government's formal position is to do that. But this legislation provides a wedge, a head of power, which we should not let through, that could allow a minister—this minister or a future minister—to bring back discrimination in our migration program. This is not who we are or who we want to be. It is not necessary—unfortunately, in my view—to prove that someone has an intent to do that. The fact that a minister could is more than sufficient basis for us to oppose this schedule, and it needs to be rethought. So let us not do this. Let us split this bill. People on this side want to work together.

I think I have made my point about schedule 1, so I turn now, briefly, to schedule 2. As to the cessation of visas not in effect, I have no particular comments to make, given that no substantive issues were raised by the Senate committees, and the provisions clarify the circumstances in which a visa can cease to be in effect under the Migration Act.

In relation to schedule 3, contactless immigration clearance: it is to enable the lawful introduction of the next generation of SmartGates. It is fair to say that I, like most Australians I am guessing, love coming home, and I love SmartGates. Melbourne Airport is where I usually arrive home—generally; occasionally, I get that horrible transfer through Sydney—though not always. And it is a great place. It is quick and efficient. Most countries give their own citizens preferential treatment when returning home, but—and maybe it is a sign of my age—SmartGates still seem like a form of magic! So I am pleased to know that things are progressing to the next generation of technology—contactless SmartGates.

Labor, at the election, outlined policies which support the introduction of new technologies to modernise current systems and further reduce processing time for greater numbers of people, giving a more efficient arrival experience. And obviously it is critical to ensure that technology provides ongoing security and properly identifies people. So no substantive issues were raised.

In summary, I say to those opposite: I urge you, I plead with you, to reflect on schedule 1, do the right thing and take it out of this bill. Let us sit down and find a sensible, moderate way which does not provide an inappropriate and appalling head of power to any minister in the future.

Anne Aly (Cowan, Australian Labor Party) Share this | Link to this | Hansard source

Like my colleagues before me, I rise to speak on the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 in its second reading. The bill is, in the words of the Minister for Immigration and Border Protection, designed to support initiatives 'which seek to promote Australia as an attractive destination'—which indeed it is—and 'facilitate the use of enhanced technology' to improve and streamline the traveller experience. I support the purpose of the bill with regard to the introduction of a revalidation framework for the 10-year visa for Chinese nationals. It makes sense to me—and my colleagues before me have also said—that if we are going to be issuing extended visas then we should also put in place checks and balances to ensure that those visas can be reassessed and revalidated in a manner that upholds our expectations of visa holders, particularly with regard to their identity, health, character and other such criteria. It is also prudent to ensure that provisions are included for this visa so that we are responsive to national security threats or other matters that could have adverse impacts on Australians. These are matters that are in the public interest.

However, this bill in its current form goes beyond that. In its current iteration, the bill specifies little in the way of detail about the nature, conditions and implementation of the visa itself and of the proposed validation checks. More concerning, though, is the fact that the bill includes within it, in schedule 1, under proposed subsection 96E, conferral of power to the minister to subject a 'specified class of persons holding a visa of a prescribed kind' to revalidation checks. In other words, the bill gives the minister the power to require revalidation checks of whole groups of people under a certain visa class beyond and broader than the 10-year visa for which it was originally drafted. Hence it goes beyond the design of the bill that I mentioned earlier.

There is no guarantee within the bill that the revalidation scheme will be limited to holders of the 10-year visa, which means that the checks could be extended to other classes of visa holders in the future based on insufficiently defined 'adverse information', determined by the minister and with no provision for disallowance in the parliament. As my colleague the member for Bruce mentioned, these are extraordinary and unprecedented measures here in Australia.

The issues with this bill, and particularly schedule 1, are quite clear. Firstly, the breadth of the power conferred by schedule 1 of the bill cannot be fully determined. While the bill is designed to apply only to the 10-year visa for Chinese visitors, the powers within the bill could well extend beyond that visa class to any visa class or, indeed, any group of people. Secondly, the definition of 'adverse information' that can be used by the minister to determine revalidation checks is insufficient in the bill. It is actually very broad. Thirdly, the ministerial powers to determine public interest in order to require revalidation checks on entire groups of visa holders are not subject to the kind of scrutiny and accountability that Australians deserve and are used to.

In my previous role—in a life long before this life—as a professor specialising in counterterrorism, radicalisation and national security, I often made the point, whenever I taught courses or gave talks, about the reasoned negotiation of risk. In times of uncertainty and times when we are gripped by fear, policies and strategies that once seemed impossible or irrational can be constructed as quite rational and even prudent. That is why we need to think long and hard and carefully about introducing provisions that could be used in ways for which they were not intended, and why we need to safeguard against that.

To quote from a submission to the inquiry by the Senate Legal and Constitutional Affairs Legislation Committee into the bill being debated:

The Bill appears to be neither necessary nor proportionate to its intended objective, in that it has the potential to apply to all classes of visas, not just the proposed longer validity visitor visa.

I do not think it is too much to ask this government—or indeed any government—to ensure that bills that are introduced for intended purposes are drafted in ways which would ensure that they are effective for that intended purpose, for that express design. I might add that I also do not think it unreasonable for the government to read and pay heed to the concerns expressed by reputable individuals and groups through submissions to the Senate committee—and I have outlined concerns earlier. I also note that our own committees have raised concerns about elements of the bill.

As I have said, the expressed purposes of promoting Australia as an attractive destination and facilitating the use of enhanced technology to improve and streamline the traveller experience are welcomed; indeed, we support them. The expressed purpose of ensuring a revalidation measure to ensure that those with 10-year visitor visas—Chinese nationals—continue to be eligible recipients of such visas is welcome; indeed, we support it; we recognise the need for it. But the bill does more than that—it goes beyond that—and that is not welcome. It is not smart, nor is it prudent, nor is it effective, to include a section—namely, section 96E—that grants the minister disproportionate powers to execute what would effectively be travel bans to entirely different groups of visa holders, with no provision for disallowance by the Senate. The minister already has the discretionary power to cancel visas and has extensive cancellation powers in relation to refugee and humanitarian visas under sections 5H(2), 36(1C), 36(2C) and 501 of the Migration Act. Surely these existing powers negate the need for any further discretionary powers, particularly if they are proposed without the protections, limits and oversights that are incorporated in the Migration Act and that are vital to upholding our democratic principles.

This is the crux of it right here: that we should not become a country where the introduction of laws and policies that have the potential to be misused in ways that have some very far-reaching impacts goes unchecked; that we should not become a country where the advice and concerns of reputable agencies with regard to judiciary processes go unheeded; that we should not become a country where the scope of powers under a bill such as this would not be subject to reasonable limits; that we should not become a country that introduces a mechanism where we could foreseeably go back to a time where our immigration policy was based on discriminating against certain groups of people and favouring others—a time we rightly left behind several decades ago.

May I provide a possible scenario where this bill—specifically section 96E—could be used. Given that the specifics around what is considered adverse information are missing, the definition of this phrase includes a wide range of activity, not just committed by the person themselves but also by a person associated with that person. It is quite conceivable that, under this bill, revalidation checks could be required of someone that are not even related to the criteria for the visa in the first place. They could be required on the basis of criteria like a parking fine or a minor traffic infringement. Mr Deputy Speaker, I don't know about you but I am quite okay admitting that I have had parking fines in the past and I am probably likely to get some in the future, though I try to avoid them as much as I can. Would a parking fine make me, or you, should we be holders of permanent residency or temporary visas, unable to stay in this country? In the case of a refugee, would it invalidate his or her claims to protection? Would it make an international student any less likely to finish their studies successfully? I am not saying definitively that this bill would mean that anyone on a temporary visa who gets a parking fine will have to revalidate their visa and may have it cancelled—frankly, that would be quite ridiculous. What I am saying is that this bill gives the potential for such extreme examples to become a reality.

But there is something even more worrying about this bill, and that is the provisions contained in section 96E specifically in relation to the powers for the minister to require revalidation checks of a specified class of persons holding a visa of a prescribed kind. I am going to speak quite frankly here. My parents came to this country in 1969, in the years before the White Australia policy was finally and completely dismantled by the Whitlam government. Back then we were called aliens. Changes in the act meant that my parents could come here on merit, not based on their ethnicity or their country of origin. They arrived in an Australia that was still governed by people who very much believed in many of the discriminatory aspects of Australia's immigration policy and its inherent substantive inequalities. In 1972 the Whitlam government passed the Citizenship Act, which allowed all immigrants, regardless of origin, to quality for citizenship on an equal footing, and for the past 44 years this country has proudly had a bipartisan approach that rejects discrimination in our immigration program. We have embraced our multicultural identity and we stand proud as a nation that does not discriminate.

But sadly these values and ideals are fragile, as we have seen with some past issues and global trends that are happening now. In the face of growing discontent around the world and populist politics that exploits grievances and directs them at entire groups of people, in the face of immigration bans and the exclusion of groups based on race or ethnicity, sadly we have to be ever more vigilant of our commitment. We have to be ever more vigilant of our longstanding bipartisan commitment to an immigration program that does not discriminate. This is why the bill in its current form, and particularly section 96E, is so concerning—because it could potentially be used to do just that: to exclude entire groups of people and visa holders on the basis of ethnicity or country of origin or some other tenuous characteristic, without scrutiny and without accountability. So, yes, we do need a way to revalidate visas that are proposed to be long term—to ensure that visa holders continue to be genuine and to mitigate any risks posed to Australians—but we have to get better, smarter, at ensuring that, in our efforts to mitigate risks, we do not undermine the very values that make us a great nation. (Time expired)