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 (Validation of Decisions) Bill 2017. This bill seeks to make the Migration Act 1958 preserve existing decisions under section 501 of the Migration Act. These are decisions of refusal or cancellation of visas on character grounds. These decisions are often made whilst relying on information provided by law enforcement and intelligence agencies, which is protected from disclosure to courts, tribunals, parliament, parliamentary committees or any other person, under section 503A of the act. Labor has referred this bill to the Senate for an inquiry, which is due to report on the 4 September 2017. Labor will support this bill through the House today. I note that the minister has in the media and social media demanded that Labor support this legislation. The irony is the minister already knows that Labor supports this legislation; indeed, our offices have negotiated that a short Senate inquiry take place, with a reporting date of 4 September 2017. It might pay for the minister to stop preening, posing and parading for the position of Prime Minister of this country and actually do his job.

Labor regards the security and safety of all Australians with the utmost seriousness. That's why Labor supported the amendments made to section 501 of the Migration Act in 2014 and continues to support them to this very day. Labor supports the refusal or cancellation of visas of noncitizens on character and criminal grounds and the removal of criminals from Australia. The community expects to be kept safe from serious offenders, and Labor is committed to this outcome. Section 501 of the Migration Act sets out when a visa can be refused or cancelled on character grounds, when a person fails the character test or when the minister reasonably suspects that the person does not pass the character test. A person can fail the character test in a number of ways, including having a substantial criminal record; if they are a member of a group or organisation involved in criminal conduct, such as an outlaw motorcycle gang; if there is a risk that, while in Australia, the person would engage in criminal conduct; or if there is an Interpol notice that the person presents a risk to the Australian community.

Immigration ministers have the critical responsibility to make decisions relating to immigration matters. This includes making decisions to cancel visas where appropriate, decisions made on the best information available to the minister and the Commonwealth's interpretation of the Migration Act. These decisions can often include protected information from our security and intelligence agencies. Section 503A of the Migration Act protects this information supplied by law enforcement agencies or intelligence agencies from being disclosed where that information was communicated to authorised migration officers by an agency on the condition that it's treated as confidential information. Labor notes that there has been some reporting of cases before the High Court challenging the constitutional validity of section 503A. It would be inappropriate to comment on these cases, but Labor agrees that it's in Australia's best interests to preserve the validity of affected past decisions made by previous immigration ministers, both Labor and Liberal, to refuse visa applications on character grounds. That is what these amendments seek to do, and that's why Labor will support the legislation in the House today.

The new section 503E, validation of decisions, is being inserted before section 504 of the Migration Act. The new subsection 503E(1) provides that if section 503A is not valid law of the Commonwealth, in whole or in part, the new subsection 503E(1) will prevent decisions made by a minister under section 503A from being invalid, because the decision relied upon or had regard to confidential information protected or supposedly protected by the existing section 503A subsections (1) and (2). This information can come, as I said, from the Australian Federal Police, the Australian Security Intelligence Organisation or the Australian Criminal Intelligence Commission. The new 503E(1) applies to decisions made by the minister in a whole range of sections, including section 501. It also includes decisions made by the delegate of the minister. The new subsection (2) in 503E ensures that subsection (1) doesn't apply to decisions that are subject to court proceedings where judgement is reserved by a court as at commencement of this item or in which a judgement has been delivered by a court before commencement of the item, setting aside declaring an invalid decision.

I do note that the provisions for disclosure of information by immigration ministers already exist in subsection (3) of section 503A of the Migration Act. For the benefit of the public, the immigration minister may declare certain information in certain circumstances and disclose that information to a court or a tribunal, but the immigration minister must consult with law enforcement agencies or intelligence bodies before doing so. The amendments before the House today also do not affect a person's ability to seek judicial review of a decision. Nor do they affect a person's right to seek merits review of a relevant decision, to the extent that such review is provided for under existing law. An individual has the ability to have visa decisions reviewed by the AAT if they're not satisfied with a visa decision. Character cancellations can often be very complex matters, and it's incumbent on ministers to be aware of their responsibilities and act in a timely way on visa decisions and with the best possible information provided.

In January the Commonwealth Ombudsman released two reports investigating the administration of Australia's immigration system. The first report examined the administration of section 501 of the Migration Act, a matter before the House today, and the second examined the administration of people who have had their bridging visas cancelled due to criminal convictions—another germane factor today. The reports highlighted significant failures by the immigration minister and his department to adequately manage the volume of people in detention, leading to the ongoing mismanagement of cases. There is no denying that noncitizens who commit serious offences in Australia know that they will be deported under either side of politics. Noncitizens cannot remain in Australia if they seek to do harm to our country or its people. However, that doesn't mean that immigration ministers can leave children and families in limbo, and there's simply no excuse for poor administrative processes that create uncertainty and distress for families.

The reports I refer to contain a number of damning findings regarding the management and documentation of people held in detention, pointing to 'a case management system that is struggling to adequately manage the volume of people in immigration detention'. The report into the administration of section 501 of the Migration Act also pointed to people being held for 'unnecessarily prolonged and potentially indefinite periods of immigration detention'.

Labor will not stand for mistakes or errors by the immigration minister and will continue to hold the government to account. Labor has consistently demonstrated our bipartisan commitment to keeping Australia and Australians safe. It's absolutely crucial to protect the ability of our law enforcement agencies and intelligence bodies to freely provide information to immigration ministers to make decisions. Labor wants to uphold the integrity of the Migration Act and ensure this bill is absolutely watertight. That's why this bill has been referred to a short Senate inquiry with the timetable agreed with the government, as the minister well knows. This vital parliamentary process is really important to ensure proper oversight, allow the public to make recommendations and raise concerns in relation to the legislation and make submissions to guarantee appropriate scrutiny. It's a process we deal with every day in this place.

Labor requested a briefing on this bill. We did so in mid-July. After the briefing was provided last week, we advised the minister's office of our preference to have the bill referred to a Senate inquiry. The government agreed in relation to that, and it will come back on 4 September, which is the first siting day after this week. Labor believes it's essential to preserve the validity of affected past decisions to refuse visa applications on character grounds. There is simply no question of that. That's why Labor will support the passage of the Migration Amendment (Validation of Decisions) Bill 2017 through the House today. I commend the bill to the House.

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

I rise to speak on the Migration Amendment (Validation of Decisions) Bill 2017. As my good friend the member for Blair has indicated clearly and consistently, Labor strongly supports this legislation. Labor will always take our national security seriously. In fact, we take our national security so seriously that we would never use it as a cheap political tool, as Minister Dutton has done on this occasion by using fake patriotism and fear as a way to attack the Labor Party.

I know that playbook well. You can see that playbook when you read back through the pages of history. Minister Dutton got a few facts wrong. We saw that when he put out a press release saying that the member for Blair and the Labor Party should support this legislation, when he had already had meetings with the Labor Party where we had an agreed process. That shows the cheap political opportunism of this minister. We can see that this minister is not competent when it comes to doing his job. This minister is about to enter his fifth year in government, and what have we seen? We have not seen him act appropriately and do his job in terms of dealing with asylum seekers and dealing with appropriate processes. He's sitting on his hands. I long ago gave up on the idea that he would have compassion, but I will never stop asking for a minister to be competent. At the moment, we have a minister who stands up every day in question time, beating his chest, saying how tough he is and how strong he is on borders and throwing accusations at the Leader of the Opposition, but fundamentally this minister has not been competent when it comes to doing his job.

As I said, and as the member for Blair made clear, the minister did this sneaky political trick of leaking information to the newspapers about a piece of legislation that was introduced in June, was shown to us in July and then is suddenly urgent in August. This is cheap political tactics when we should take the security of the nation much more seriously.

Who we allow to stay in Australia is one part of our security that we can have substantial control over. It's important that we get the visa process right. I know there is a process to simplify that, and obviously the Labor Party will look closely at that. We will always do that. But it's important the immigration minister, whoever they may be—be they Liberal or be they Labor—have the capacity to refuse a visa to a noncitizen if they do not meet the character test set out in the act. Obviously that's important. So Labor support the refusal or cancellation of visas to noncitizens on character or criminal grounds and the removal of criminals from Australia under section 501 of the Migration Act.

Some of the decisions to be considered were actually made by Labor ministers. I note that there are cases before the High Court at the moment that will involve some consideration of sections of the Migration Act, and I won't be inappropriately commenting on those cases. I did see on Monday in question time that we had 'Chief Justice Turnbull' announcing what the High Court would decide, but I actually do respect our judicial process and know that the High Court will do its job.

There is no doubt, though, that it is in Australia's best interests to preserve the validity of decisions that have already been made to refuse visa applications on character grounds. So I say again for the benefit of the minister, who has walked in, Labor does support this bill. I say that in the presence of Minister Dutton because what we have is a minister walking around with a wedge and a sledgehammer. He's desperately swinging this sledgehammer and trying to drive a wedge somewhere between the Australian people and the Labor Party by saying: 'Labor is not strong on national security. Labor is not strong on immigration.' We have seen this behaviour from this minister day after day in question time.

If this minister were a bit more competent and able, I might be able to talk through the legislation a bit more, but I want to say a few things on the checks and balances that are appropriate in the Westminster system of democracy. There are some concerns about this legislation, raised significantly by the member for Moore, who is the chair of the human rights committee, in his report that he tabled this week in parliament. I will take the parliament to some of the concerns raised by the Parliamentary Joint Committee on Human Rights. That is a committee that Labor does not have the majority of numbers on. This bipartisan committee, with a Liberal majority—including people such as Senator Paterson, not exactly well known as a left-wing member of this parliament, and Senator Reynolds, to name just a few—has recommended that the minister provide further advice on a number of human rights compatibility issues. The minister has been asked to provide advice as to the compatibility of the measures in the bill with the right to due process prior to expulsion.

We have a long history of balancing the rights of the parliament and the judiciary and making sure that every man, every woman—every person—is treated equally before the law. In fact, article 13 of the International Covenant on Civil and Political Rights states:

An alien unlawfully in the territory of a State party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with the law and shall, except where compelling reasons of national security otherwise required, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

There is clearly an exception contained in article 13 where there are concerns about national security. That is an important safeguard. But due process is still important, particularly when the outcome of the process may be expulsion from Australia.

The committee, chaired by the member for Moore, a member of the Liberal Party, has requested that the minister particularly advise on:

… inability of affected individuals to contest or correct information on which the refusal or cancellation is based …

Article 9 of the International Covenant on Civil and Political Rights prohibits the arbitrary and unlawful deprivation of liberty. This right to liberty extends to all forms of deprivation of liberty, including immigration detention. Arbitrariness may also include elements of injustice and lack of due process. The Migration Act provides that, upon the cancellation of their visa, a noncitizen will be classified as an unlawful noncitizen and will be subject to mandatory detention prior to deportation. Generally, it would not be arbitrary to detain a person for a reasonable time while they await their deportation; however, it may become arbitrary in circumstances where a person is subject to a significant length of detention without knowing or being able to contest the information on which their detention is based before an independent body. Where a person is deprived of legal safeguards to effectively challenge the basis for their detention, such as access to the information that was relied on to support their visa cancellation, the report advised the minister that there may be 'a risk of arbitrariness'.

The statement of human rights compatibility accompanying this bill, provided by the minister's department, said that the measures contained in the bill are reasonable and that the detention of a noncitizen would not be considered unlawful or arbitrary under international law, and certainly ensuring the safety of Australians and the integrity of the immigration system may be legitimate objectives under international human rights law. However; the bipartisan committee—as I said, chaired by the Liberal member for Moore, with a Liberal majority—have requested that the minister provide advice about the compatibility of this bill with the right to liberty, including:

The protection of the family is also an important consideration enshrined in article 17 of the International Covenant on Civil and Political Rights—that is, family members should not be involuntarily and unreasonably separated from one another. The human rights committee was concerned that 'the validation of a visa cancellation could operate to separate family members'. On most occasions, obviously, there would be, on balance, good reasons for so doing, but the committee have requested that the minister provide advice about what advice there will be in terms of safeguards for families.

Non-refoulement is an important obligation under the Refugee Convention, the International Covenant on Civil and Political Rights and the Convention against Torture. Australia is under an obligation not to return any person to a country where there is a real risk that they would face persecution, torture or other serious forms of harm, including the death penalty. The bipartisan human rights committee, chaired by the member for Moore, continually stated:

Effective and impartial review by a court or tribunal of decisions to deport or remove a person … is integral to complying with non-refoulement obligations.

A possible consequence of confirming the validity of decisions to refuse or cancel a visa may be removal from Australia. The statement of compatibility provided by the minister's department acknowledges that this would engage the right to non-refoulement. The committee report scrutinising this legislation notes that the obligation of non-refoulement is absolute and may not be subject to any limitations.

There is a right to freedom of movement, which includes the right to leave Australia as well as the right to enter, remain or return to one's own country. Article 12 of the International Covenant on Civil and Political Rights protects this right. With regard to the proportionality of the bill before chamber, the committee sought further information:

… in particular regarding any safeguards applicable to individuals for whom Australia is their 'own country', such as ensuring their visa is only cancelled as a last resort where other mechanisms to protect the safety of the Australian community are unavailable.

The human rights committee raised serious issues with this bill that need to be addressed by the minister. Obviously, it is a report provided to the parliament, but the minister no doubt would have close regard to the concerns raised by the human rights committee.

I say again that Labor support this bill. Why? Because national security is crucial. It's crucial that criminals, people not of the right character, are refused entry to Australia or, if they have committed those crimes here, that they can have their visas cancelled by the minister, whether that minister be a Labor minister or a Liberal minister. But the issues raised by the human rights committee need to be addressed. We support this bill being referred to a short Senate inquiry where these issues could be further canvassed. We all know that in parliament checks and balances are important—crucial, in fact; an essential part of our democratic process—so we have committees like the human rights committee and the Senate inquiry process to look at legislation and make constructive recommendations. We have seen that in our security legislation, where recommendation after recommendation has come from the Labor Party. They are important in the review process for any decisions made by a statutory body, or if there is ministerial discretion.

We see that the minister who has brought this legislation to the chamber is now setting up a super ministry—the home affairs department that will centralise the existing Border Force, immigration department, Customs, ASIO and the Australian Federal Police. It is appropriate, when we look at the range of powers they will have, that we look at the checks and balances. There will be visa applications, cancellations and appeals; immigration detention centres; deportations; border protection; intelligence gathering; counter espionage; protective security; investigations into departments and agencies; counterfeit operations; disrupting human trafficking; criminal records and criminal history checks; missing persons coordination; airport security and policing; and international crime and policing—all under this super ministry with Minister Dutton responsible. This is a minister who could not organise a chook raffle when it comes to getting people out of our detention centres. This is a minister who is about to start his fifth year in government and we have people in detention who have not moved.

We also hear people saying—as the wheel nuts have come a bit loose on the current Prime Minister's motor vehicle—that Minister Dutton is the great hope for the Liberal Party. Oh my goodness, if he is the great hope, this nation is really going into some serious territory. As I said, I don't expect this minister to have compassion—I would love him to have more compassion—but I do expect him to be competent and I do expect him to provide a detailed response to the Senate inquiry and to the human rights committee that have raised these concerns.

I go back to the essential opening comment that I made: Labor will support this legislation; we didn't need to read about it in The Australian. The minister knew this before he put out his press release saying that this was an important piece of legislation.

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

I thank all of those members for their contributions to the second reading debate on the Migration Amendment (Validation of Decisions) Bill 2017. I also acknowledge the very different opinion of the member for Moreton when he is outside this chamber—when he thanks me for matters we were able to help him on in relation to constituents. He is nodding now. Thank you for being genuine outside this parliament. We just note that difference in your stance here in your contribution—the theatrics that go into it.

It was an interesting point made by the member for Moreton about getting people out of detention, because when he was a member of the Labor government thousands of children were put into detention on his watch, with not a word from him during the course of that. That was pretty outrageous and shows the hypocrisy of the member for Moreton. He was the person who was in a government that set up 17 detention centres and put people into those detention centres. I have got children out of detention and closed the 17 detention centres. We have not had a death on my watch as Minister for Immigration, whereas, under the member for Moreton and his government, 1,200 people drowned at sea, including women and children. The fact is that he, like many who sit beside him and around him, would go back to that terrible, horrible policy disaster tomorrow if they were elected at the next election. Don't look at the hypocrisy and grandstanding from some of those who see themselves as righteous in the Labor Party; look at what they said and, frankly, what they didn't say when the Labor Party was in government. It shines a light on the fact this Leader of the Opposition has a complete inability to rein in people like the member for Moreton, who would close the successful Operation Sovereign Borders and we would again see the deaths at sea and the children back in detention. Frankly, he has no more credibility on this than the Greens do.

This bill addresses the potential risk of people committing crimes in our community, and the current proceedings in the High Court of Australia deal with some of the issues that we seek to address in this bill. The purpose of the bill is to uphold the visa cancellations and applications refusals, on character grounds, of certain noncitizens who have committed very serious crimes in Australia or pose a risk to the safety of the Australian community. These include organised crime figures and those who pose a threat to national security.

Specifically, the bill amends the Migration Act of 1958 to preserve existing section 501 character decisions which have relied on information that is protected from disclosure under section 503A of the act. Section 503A protects information from disclosure when it is provided to the Department of Immigration and Border Protection by gazetted law enforcement or intelligence agencies to support a section 501 character visa application refusal or cancellation decision. This protects the information from disclosure to a court, a tribunal, a parliament or a parliamentary committee or any other body or person. The ability to protect information from disclosure is critical to the continuation of our highly successful relationship with law enforcement and intelligence agencies. Continuing to successfully counter crime is dependent on agencies like the Australian Federal Police and the Australian Criminal Intelligence Commission being able to share information on the activities of non-citizen criminals with the Department of Immigration and Border Protection while their intelligence and sources remain protected.

The strengthening of the character test in late 2014 has led to the cancellation now of over 2,500 visas, including more than 140 held by organised crime figures. Without the information supplied by intelligence agencies, these criminals may have kept their visas and been free to continue their illicit activities. The amendments in this bill proactively address the risk to the safety of Australians and reflect the government's and the Australian community's low tolerance for criminal behaviour by those who are given the privilege of holding a visa to enter into and to stay in Australia. This is not the first time the parliament has considered validating legislation. In 2008, with the support of the coalition, Labor, then in government, passed similar amendments to section 501 of the Migration Act in response to an adverse decision in the Federal Court. The full Federal Court later upheld the amendments. We expect Labor's support today for these proposed amendments, and on that basis I commend the bill to the House.

Tony Smith (Speaker) Share this | Link to this | Hansard source

The question is that this bill be now read a second time.

A division having been called and the bells having been rung—

As there are fewer than five members on the side for the noes in this division, I declare the question resolved in the affirmative in accordance with standing order 127. The names of those members who are in the minority will be recorded in the Votes and Proceedings.

Question agreed to, Mr Bandt, Ms McGowan and Mr Wilkie voting no.

Bill read a second time.