Mr Tony Burke (Watson, Australian Labor Party, Leader of the House) Share this | Link to this | Hansard source

I move:

That this bill be now read a second time.

The decision of the High Court yesterday is not the one the government wanted—but it is one we were prepared for.

That's why the government is in a position to take immediate steps to protect community safety.

This morning I attended Government House, where Her Excellency the Governor-General signed new regulations into law that will allow us to continue to use curfews and electronic monitoring devices—ankle bracelets—as visa conditions on the NZYQ cohort.

These visa conditions are designed to protect the community—not as a punitive measure.

The new regulations were ready to go because the government was meticulously prepared for every possible outcome of the YBFZ case.

Those regulations are now in effect.

This legislation will support those regulations—but it is not necessary to give them immediate effect.

Part of the reason these changes are necessary is that the High Court has objected to certain conditions being presumed unless the minister finds otherwise rather than requiring a positive decision from the minister.

This particular provision was actually not in the original bill that the former minister introduced to this parliament but became part of amendments agreed to between the government and opposition before the legislation was finalised.

New community protection test

There is a new community protection test. These changes establish a revised community protection test in the Migration Regulations, requiring (among other things) that the minister is satisfied on the balance of probabilities that the holder of a bridging visa (removal pending)—known as a BVR—poses a substantial risk of seriously harming any part of the Australian community by committing a serious offence.

Under the revised test, the minister must also be satisfied on the balance of probabilities that the imposition of each condition (in addition to the other conditions imposed on the BVR) is:

The amendments of the Migration Regulations also necessitate certain amendments of the Migration Act 1958.

Section 76E at the moment is not consistent with the new regulations. The way the regulations have been drafted it will be some weeks before section 76E will be required to be used.

Therefore, while it is important for this legislation to go through within a reasonable time, it does not have to be rushed through this week.

Section 76E provides BVR holders an opportunity to make representations to the minister if they are granted a BVR with electronic monitoring, curfew or certain financial reporting conditions imposed, and for the minister to consider whether to grant a new BVR without one or more of those conditions (subject to the community protection test).

Enhanced removals powers

On enhanced removals powers, this legislation will also strengthen and streamline the government's power to remove to third countries people who have had their visas cancelled.

When someone's visa is cancelled, for any reason, the first preference of the government is for them to leave the country, voluntarily or involuntarily.

One of the most basic principles of our migration system is if you are in Australia you should either be a citizen or have a visa.

We will of course exercise our removal powers in accordance with our international non-refoulement obligations.

This legislation will establish immunity provisions which ensure that the Commonwealth and its officers (including the minister) are not liable under Australian law in respect of civil claims arising out of the performance of duties to remove a person, or the circumstances of a person being removed to another place from Australia where the Commonwealth and its officers have acted in good faith—under sections 198 and 198AD of the Migration Act (as opposed to creating a bar on bringing proceedings). This provision is prospective and does not extinguish claims for conduct that has already occurred.

The legislation will also clarify that despite any Commonwealth, state or territory law, collection, use, and disclosure of information about criminal history—including spent conviction information, charges, findings and results of a criminal proceeding—by the minister or an officer of the parliament, for the purpose of performing a function or exercising a power, including collection, use and disclosure by a person or body who has received the information from the minister or department for the purpose of providing advice or recommendations, is permitted and is lawful, regardless of whether the collection, use or disclosure of information occurred before or after commencement.

The legislation will further provide that the disclosure of information—including personal information and criminal history information—to foreign countries is permitted and broadly covers collection, use and disclosure for any purposes directly or indirectly connected with the removal of a person from Australia including in relation to a third-country reception arrangement. This overrides existing Commonwealth, state and territory restrictions on disclosing spent conviction information (with certain exceptions) and includes disclosure of information obtained before commencement.

This legislation will also make minor amendments to harmonise references in the Migration Act relating to the merits review of migration and protection decisions within the jurisdiction of the new Administrative Review Tribunal.

Enabling amendments

To enable the effective operation of the proposed amendments, the bill also includes:

I commend the bill to the House.

Debate adjourned.