Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Hansard source

At the request of Senator Abetz, I move:

That the Migration Amendment Regulation 2012 (No. 6), as contained in Select Legislative Instrument 2012 No. 237 and made under the Migration Act 1958, be disallowed. [F2012L02021]

This is a motion for the disallowance of Migration Amendment Regulation 2012 (No. 6) as contained in Select Legislative Instrument 2012 No. 237 and made under the Migration Act 1958. The regulation was tabled on 29 October 2012. The government claims that the purpose of the regulation is as follows: to amend the Migration Regulations 1994 to prescribe a new class of persons as eligible noncitizens under paragraph 72(1)(b) of the Migration Act. That class of persons is a noncitizen who, when he or she last entered Australia, was not immigration cleared and after entering Australia was granted a bridging E (class WE) visa under section 195 of the act. As eligible noncitizens, persons in this class of persons are able to make valid applications for bridging visas in Australia subject to any other provisions in the act or the principal regulations.

The regulation will allow irregular maritime arrivals who have already a bridging visa granted by the minister under section 195A of the Migration Act to make a further application for a bridging visa when that initial bridging visa expires and have that visa granted where they have been unable to do so in the past. This regulation is no doubt being introduced by the government because of its failed border protection policies and because these failed policies have seen the number of IMAs arriving in Australia in this financial year increase to three times the rate of arrivals in the previous financial year, and as a result Australia's immigration detention network can no longer cope.

As confirmation of that, I refer to an article on the Sydney Morning Herald website entitled 'Labor's Pacific Solution overwhelmed', which was published about 40 minutes ago. The first paragraph of that article says:

Immigration Minister Chris Bowen has effectively conceded that Labor’s Pacific Solution Mark II has been overwhelmed, announcing that asylum seekers are arriving in such numbers that they will be allowed to live in the Australian community.

The government has admitted to the Australian people and to this parliament that the total number of IMAs in immigration detention centres and APODs is 7,670. There are 1,688 under residence determination, and more than 6,100 IMAs have been released on bridging visas since November 2011. The government therefore wants this regulation passed so that it can release the IMAs, as Minister Bowen has stated today—and only very recently—into the community as a matter of urgency so that the government can make way for the new IMAs that are arriving at an unprecedented rate.

If one distils the effect and the impact of this regulation, it is clear that it is in fact a declaration of abject failure and incompetence by the minister and by the Gillard Labor government. This regulation is a declaration by the minister and the government that Labor's border protection policies have comprehensively failed and that the people smugglers have won their right to decide who will be able to enter Australia and under what terms they will be able to do so. This regulation enables the people smugglers to continue to ply their criminal trade. They know that the more people they send to Australia, and the more pressure they put on a Labor government, the more likely it is that the government will make changes to the immigration regulations to accommodate the people smugglers' vile trade.

In fact, the scope of this regulation is so broad, representing such a decisive win for the people smugglers, that I expect that they will be photocopying this regulation and using it as a marketing ploy to show people that under Labor they actually determine who comes and the manner in which they come to Australia. People smugglers will probably laminate copies of this regulation and hand it out to IMAs, telling them that it shows that the minute they get to Christmas Island they are basically guaranteed a free passage to Australia, because that is what this regulation actually does. It has the effect of creating yet another avenue of judicial review for IMAs which they previously, prior to this regulation, did not have. One has to remember that judicial review is a great cost to the Australian taxpayer. It is the Australian taxpayer who pays for judicial review.

The regulation is also dangerous in that it clearly sends a signal to people smugglers that under the current Labor government, despite the spurious threat of offshore processing, once an IMA has been delivered to Australia they are effectively here for good. It represents a dramatic extension to the minister's announcement in November 2011 that he would allow IMAs to be released into the community on bridging visas prior to their applications being finalised and after initial checks had been completed. That November 2011 policy reversal was clearly designed to relieve pressure on the detention network, which had been straining under the increasing arrivals. The coalition was very critical of the announcement at the time, and the shadow minister for immigration, Scott Morrison, said:

Failed asylum seekers who arrive by boat will now be able to stay in Australia for years to pursue their claims through the Refugee Review Tribunal and endlessly in the courts, with broader grounds of appeal, while living and working in the community.

… A Government who claims to want to provide a deterrent on boat arrivals would never do this.

Senators will also be aware that sovereign governments have the right to determine who comes to their country and the manner and circumstances in which they do so. Most countries have migration acts which set out the terms and conditions of entry to ensure that the country's sovereign right is not in any way compromised.

In Australia the Migration Act 1958 is the statutory instrument that sets out the terms and conditions on which a person is allowed to enter Australia. Section 195A of the Migration Act provides the minister personal authority to grant a detainee a visa, whether or not on application, subject to the minister making his personal decision after considering the specific circumstances of the detained person. Section 195A of the Migration Act is couched in terms that, as set out in subsection (2), specifically require the minister to personally consider the facts before he or she makes a personal decision on the granting of a section 195A visa. The requirement of the personal decision was written into the Migration Act because the parliament in its wisdom determined that it was critical that a person who is directly accountable to the parliament exercises Australia's sovereign right to determine who will enter this country. Parliament was clear in its intent to ensure that such a decision was made by a minister because that minister could potentially be challenged on the floor of the parliament to explain his or her decision to the parliament.

The parliament also included a requirement, in section 195A(6), that the minister table his or her reasons for such a grant before each house of the parliament. This requirement for the minister to table their reasons for the exercise of their personal power was another safeguard that the parliament saw as critical to the process under the grant of a visa under section 195A of the Migration Act. Given the provisions of section 195A, the parliament further determined that the exercise of the minister's personal decision-making power was to be beyond the power of the courts to intervene in and that such decisions would be non-compellable and non-reviewable.

Senators should be aware that the regulations we are currently debating provide for the express requirements in section 195A to make the minister personally accountable for his actions to the parliament to be overridden and set aside and for the personal power of the minister to be delegated to a public servant. Further, there is no requirement to table any reasons for the public servant's decision in the parliament.

I quote from attachment B, which forms part of the explanatory memorandum to the relevant regulation:

This change will enable a delegate of the Minister in the Department of Immigration and Citizenship to decide subsequent visa applications for this cohort without requiring the Minister to consider using his personal power under section 195A. If a delegate of the Minister were to decide to grant a visa, the Minister would not be required to cause to be laid before each House of Parliament a statement under section 195A setting out the reasons for granting the visa for each subsequent grant.

The coalition says this to Minister Bowen: by the Migration Act, you, as the relevant minister, are required to lawfully exercise the powers that the parliament has conferred upon you in the manner set out in the appropriate statute. You are not at liberty, nor do you possess the power, to delegate your personal statutory obligations to others. If you do not want to exercise the powers the parliament has given you then, quite frankly, you should hand in your resignation. A minister should not abrogate a personal duty for which he is personally accountable to the parliament in this way.

The minister needs to understand that, unless the parliament agrees that the minister should be able to abrogate his personal duties to the parliament, such a regulation is incompetent. The change represents a dramatic reversal of the accountability of the minister to the parliament, as is currently required by section 195A, and effectively extinguishes by regulation the statutory obligations of the minister when using his personal decision-making power, as set out in section 195A. In fact, I would be keen to hear the minister's explanation. Perhaps Minister Ludwig, if he chooses to address this motion, can provide the explanation to us of why the minister sought to gazette a regulation in an attempt to relieve the minister of various statutory obligations, rather than to come into the parliament and amend the principal act.

The effect of this regulation, if it is supported, is to enable visas to be granted, without the need for an application, at the discretion of public servants who will not be accountable to the parliament. This is directly in opposition to what is currently required by the Migration Act. I say 'not accountable to the parliament' because any issue affecting the discretionary exercise of this power by a public servant will be reviewable by the courts; it will not be an issue for the parliament. That is completely at odds with the minister's current responsibilities under section 195A of the Migration Act. This regulation effectively outsources to public servants the statutory obligations of ministerial decision making in the vital area of the discretionary grant of visas to IMAs and, quite frankly, is a gross abrogation of ministerial responsibility.

The coalition is appalled that the government and the Greens would seek to sell out the parliament for crass political purposes. It is also extremely concerning to the coalition that, as stated in the explanatory memorandum, no consultation outside the Department of Immigration and Citizenship was undertaken in the preparation of the measure in this regulation because it was required urgently. Surely the parliament is entitled to a comprehensive explanation of why there is an urgent need for a regulation that (a) seeks to override the express words of the Migration Act 1958 and purports to divest the minister of his express statutory obligations; (b) abrogates the personal decision-making power of the minister to public servants, who were not elected by the people, merely appointed by the government of the day; and (c) establishes a further avenue of appeal through judicial review of the decisions of public servants for people who arrive here unlawfully by boat.

This regulation also raises a number of very important issues that have not been addressed by the government—again, perhaps Minister Ludwig would be kind enough to address these issues if he chooses to address the chamber—but that could have very serious consequences in this important portfolio area. These issues include: what is the effect of this regulation on those persons who are subject to the provisions of the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012, remembering that that amendment provided the minister with the discretion to determine that a person does not have to be taken to a regional processing country? Others issues it raises include an explanation of what criteria or conditions will prevent the bridging visa being granted by the public servant and an explanation of what criteria or conditions must be considered by the public servant prior to the granting of a bridging visa. Can the public servant actually refuse the grant of a bridging visa and, if so, why is the regulation expressed in terms of 'apply for and be given'? That is the current wording of that regulation: apply for and be given. What is the process undertaken prior to the granting of a bridging visa, or is this process merely an automatic rubber-stamp by a public servant once an application for a bridging visa is made? That therefore confirms exactly what the Sydney Morning Herald is currently saying in its article online, which is basically that asylum seekers are effectively here for good and allowed to live in the Australian community. Further, is the public servant able to grant a bridging visa to any person who arrived in Australia's excised offshore territory on or after 13 August 2012 and, if so, who?

I have to say that, for once, the press in their analysis have actually got it right. Minister Bowen, in making his further announcement today, has conceded that the detention network in Australia is now basically overwhelmed. This regulation shows that the government is desperate to keep as many people as possible out of detention as the cost pressures on the detention network escalate unsustainably. Perhaps this is the sole reason for the government bringing in this measure, because it will allow every IMA who has a BVE from the minister to apply for a bridging visa after that initial visa expires and have it granted by a public servant without reference back to the minister. A further visa will be granted automatically, subject to other provisions in the acts and regulations. However, every refusal of an application will open the door for endless appeals through the tribunals and eventually the courts, and it must be remembered that this will all be paid for by the Australian taxpayer.

The regulation effectively allows, and in most cases will likely force, the government and the minister to keep IMAs on bridging visas indefinitely. This is nothing more and nothing less than bad public policy, and it is clearly not in the national interest when it is completely at odds with the express provisions of section 195A of the Migration Act, which make this a personal statutory responsibility of the minister—a responsibility about which, by this regulation, the minister is throwing his hands up and saying to the Australian people, 'I cannot cope anymore, and because I cannot cope I am delegating my decision-making power under section 195A to public servants who are not accountable to the parliament.'

Basically, by this regulation the government is saying to the people smugglers and the people of Australia that mandatory detention is effectively over under the Gillard Labor government. By a stroke of the pen and with the introduction of this regulation, the government has removed any incentive at all for an IMA to return home. This is yet another step by the Labor government that will damage the integrity of our migration program. It is not in the interests of good governance and the proper exercise of ministerial responsibility. In the interests of good governance and in the interests of ministerial responsibility, this regulation should be disallowed.