Andrew Giles (Scullin, Australian Labor Party, Minister for Immigration, Citizenship and Multicultural Affairs) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

This bill proposes urgent amendments to the Migration Act and the Migration Regulations to support the effective management of noncitizens released from immigration detention following the decision of the High Court in the matter of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs.

While the Commonwealth argued that previous detention settings were constitutionally valid, the High Court's decision requires the immediate release of NZYQ and similarly affected people from immigration detention.

Let me be clear, the safety of the Australian community is the absolute priority of the Australian government.

While the High Court has not yet handed down the reasons for its decision, noncitizens affected by the NZYQ decision are being released on removal pending bridging visas as a result of the High Court's order. The purpose of this visa is to regularise a noncitizen's migration status pending their removal from Australia.

Removal pending visa holders are all subject to a range of conditions, including key reporting and security conditions.

Importantly, the removal pending visa includes requirements for the person to cooperate and to facilitate their removal from Australia.

The Australian community reasonably expects that all noncitizens in Australia will obey Australia's laws.

The Australian community also expects that noncitizens who do not meet the requirements for migration to Australia will not undertake activities or engage in further criminal offending that harms the community and could prejudice the Australian government's ability to facilitate their removal from Australia.

As has been reported publicly, the NZYQ caseload includes certain individuals with serious criminal histories.

The government is working with state and territory criminal justice agencies, who have primary responsibility for community safety, and the Australian Federal Police and Australian Border Force are providing updates to responsible counterparts.

This collaboration is underpinned by an enduring law enforcement engagement mechanism, which was established before any individuals other than the plaintiff in the High Court case had been released. It has also supported NZYQ affected people to move into state and territory post-offending programs, where appropriate.

Let me be absolutely clear: depending on the nature of the offending, and the circumstances of the individual, the government is working to ensure the individuals are managed appropriately under the relevant legal frameworks.

The measures outlined in this bill are proposed to complement and strengthen existing safeguards.

Amendments to the removal pending visa are required to ensure the effective management of this cohort. Noncitizens with a history of serious criminal offending require appropriate and proportionate management while their migration status is being resolved.

Specifically, the government is proposing to amend the Migration Act to include:

Appropriate amendments to the bridging visa conditions to protect the community, increase monitoring capabilities and reporting obligations, and secure ongoing engagement with the Department of Home Affairs. Including mandatory reporting obligations and discretionary curfew and monitoring requirements which will be imposed on a case-by-case basis only where necessary to protect the safety of the community, and new criminal offences for failing to comply with these reporting and monitoring conditions.

These amendments are proposed to apply to all existing and future NZYQ affected noncitizens.

This means noncitizens who are no longer able to be managed in immigration detention where there remains no real prospect of removal in the reasonably foreseeable future.

New visa conditions

The government proposes stringent new visa conditions. These new conditions include a discretionary requirement for the visa holder to wear an electronic monitoring device, as directed by the minister, and a requirement to comply with the electronic device condition.

The purpose of this condition is to protect the community where an individual is assessed as posing an unacceptable risk of harm to the community. The monitoring device supports ongoing monitoring, which will help keep the community safe.

Electronic monitoring will also assist in preventing people from disengaging or avoiding engagement with the government, which would hamper efforts to facilitate their removal.

It provides an alternative means for encouraging compliance that will be more suitable in circumstances where additional support alone will not prevent reoffending.

The bill includes a discretionary requirement for the visa holder to adhere to a curfew for the hours specified by the minister at the location notified to the department, as required.

A rigorous assessment process will be undertaken by the department to identify those individuals whose background and past conduct, including criminal offending, makes them of particular concern in terms of future offending.

The government believes that individuals who pose a particular risk to the community should be required to comply with additional visa conditions such as the wearing of an electronic monitoring device, and/or being locatable at certain hours through a curfew mechanism, where that is reasonably necessary and appropriate to protect the safety of the community.

These measures are consistent with the legitimate objective of community safety, and the rights and interests of the public, especially vulnerable members of the public.

The conditions relating to electronic monitoring and the curfew are proposed as discretionary conditions and will not apply to all visa holders. They will only be imposed where necessary for the protection of the community. Where appropriate, the conditions may be revoked.

Other conditions developed for the NZYQ caseload are mandatory. These include:

This new condition ensures that the proposed employment by the noncitizen is appropriate and consistent with the purpose of the removal pending bridging visa, and reflects community safety considerations.

Under this new condition, the visa holder will be required to obtain ministerial approval before taking up employment in certain occupations relating to vulnerable people, including minors, or where the arrangement is as a contractor or a volunteer. This condition also includes regular organised activities, whether for reward or otherwise. This builds upon existing obligations to obtain ministerial approval in fields such as:

The government's primary objective is community protection. In order to achieve this objective, the minister's approval will be required prior to the visa holder's engagement in occupations involving interactions with minors, such as education, child care, or babysitting.

Ministerial approval will also be required in other roles requiring a Working with Vulnerable People check.

The proposed new conditions also include: a requirement for the visa holder to notify the government of changes in finances, including any significant transactions, debt or income.

This notification requirement supports the department to identify circumstances that could prejudice the Commonwealth's ability to resolve the visa holder's migration status, in particular, to affect removal, and to allow the government to appropriately manage community safety considerations and the circumstances of the visa holder.

The proposed new conditions also include:

Again, these conditions are essential for ensuring that the Department of Home Affairs and the Australian Border Force remain aware of the noncitizen's location, activities and associations, and that the visa holder remains engaged so that they are available for removal as soon as removal is reasonably practicable.

This bill proposes that the breach of some of these conditions will be a criminal offence.

New criminal o ff ences

Ordinarily, a visa holder who does not comply with a condition of their visa may be considered for visa cancellation on the basis of that breach, and if cancelled, would be liable to be detained as an unlawful noncitizen.

For the NZYQ-affected cohort, immigration detention is not available. As such, the prospect of visa cancellation for a breach of a visa condition is not an effective deterrent against non-compliance with reporting requirements.

Establishing new offences for NZYQ-affected visa holders, sends a clear message about the importance of compliance with requirements to report to the Department of Home Affairs, and to notify of changes of circumstances.

These new offences relate to:

Each of these offences would only be enforced following due consideration of the circumstances of the case, recognising that they are designed to support a proportionate response in circumstances where the noncitizen attempts to deliberately or repeatedly evade contact with, and monitoring by, the Department of Home Affairs.

The aim is to reflect the seriousness of the breach of conditions.

Each offence carries a maximum penalty of five years and equivalent penalty units to address serious and repeated cases of noncompliance.

Importantly, the offences also encourage compliance with conditions that help ensure the noncitizen engages appropriately in removal processes.

It is reasonable to expect that removal pending visa holders will cooperate with the authorities to facilitate their removal from Australia if, and when, that becomes possible. This cooperation includes refraining from activities that either threaten community safety or otherwise prejudice the government's efforts to facilitate removal from Australia.

The evidentiary burden for establishing a reasonable defence for failing to comply with the conditions will sit with the noncitizen. The standard defences available in the Criminal Code will also apply.

By establishing an offence specifically for NZYQ-affected bridging visa holders, the government is making it clear that compliance with conditions and ongoing engagement with the Department of Home Affairs is of critical importance.

This includes in person reporting and reporting by other means. It also includes notifying the Department of Home Affairs of changes in circumstances to give both the department and the Australian Border Force continuing visibility over the visa holder's movements and circumstances.

This reporting will also help to ensure the noncitizen is available as soon as the visa holder's removal from Australia becomes practicable.

The im p ortance o f amendments to s im il ar le g islation

It is critical that these arrangements are enacted through an amendment to the Migration Act. And it will remove any doubt that these new laws apply to both current and future NZYQ affected cases.

Pending passage and commencement of these measures, new visas will be granted to this cohort with the new conditions imposed.

This will occur by operation of law.

In essence, this means the original visa ceases completely and is replaced by a new visa that must be held with the mandatory conditions automatically imposed.

The government will continue to work through the implications of this High Court judgement, and the ongoing engagement of the visa holders is necessary to support this process.

Additional measures

These amendments are necessary as an immediate response following the High Court's decision. Further responses may be required once we have received the High Court's reasons for decision.

The overarching objective is to bolster the existing framework and ensure an enduring, and appropriately robust, framework for the management of NZYQ affected non-citizens over the long-term.

Closing remarks

In closing, the High Court's decision has significant implications for immigration compliance and for the community protection objectives of the government.

While it is important that we enact this legislation as a priority, further safeguards are being considered.

Community protection remains a fundamental priority, and the measures included in this bill are fundamental for providing the legislative framework to support this outcome.

I commend this Bill to the chamber.

Debate adjourned.