Claire Moore (Queensland, Australian Labor Party, Shadow Minister for Women) Share this | Hansard source

As we've heard from a number of speakers, this particular bill was considered by the Senate committee, and whilst it was done reasonably quickly, a range of submissions from people interested in this process were taken into account. It is difficult to talk about any of these particular processes. In this case, we can put on record that Labor supports the refusal or cancellation of visas of noncitizens on character or criminal grounds and the removal of criminals from Australia under section 501 of the Migration Act. Section 501, which we've heard about from a number of the senators who are part of the process, sets out when a visa can be refused or cancelled on character grounds: when a person fails, or the minister reasonably suspects that the person does not pass the character test. The legislation sets out the ways that a person can fail the character test. The whole issue of the character test is on record and has been widely discussed both within the area of migration law and throughout the media in recent months.

The core areas which people can fail include: having a substantial criminal record, which people are aware of; having substantial brushes with the law which lead to concerns about their nature and their ability to be an effective citizen of a country; if they were a member of a group or organisation that was involved in criminal conduct—in this case, there has been significant commentary, certainly in my own state, as the result of a number of inquiries and also through the Law Reform Commission, about the particular criminal activities of motorcycle gangs across the whole of this country and now in international affairs, where there are clear links with motorcycle gangs here, particularly in the Asian region—if there is a risk that, while in Australia, the person would engage in criminal conduct, taking into account information about the person and the people with whom they mix; previous conduct that could lead to a genuine suspicion that there would be a possibility that, while in Australia, the person could engage in criminal conduct; and if there was an Interpol notice that the person presents a risk to the Australian community. We've just heard from Senator Macdonald talking about the particular responsibilities of government when there is an issue around genuine risk to Australia, to the safety of Australians, and also of any activities which could be of a criminal nature in our country.

The Migration Amendment (Validation of Decisions) Bill 2017 amends the Migration Act to preserve existing section 501 decisions. Of the submissions that were received by the inquiry, certainly the submission from the department was quite clear about the background to the need for this change and also about the people who would be affected by the change. The department sets out that section 503A of the Migration Act—and a number of senators have particularly drawn attention to section 503A—requires a departmental officer and the Minister for Immigration and Border Protection to protect information from disclosure, including to a court, when it is provided by a gazetted law enforcement or intelligence agency to support a visa application refusal or visa cancellation decision made on character grounds.

Section 503A was introduced by the Migration Legislation Amendment (Strengthening of Provisions related to Character and Conduct) Act 1988, which is when this particular amendment was brought in. It was brought in to facilitate law enforcement and intelligence agencies providing relevant information to the department, while ensuring that the content and sources are protected. This is not used regularly. We're talking about very specialised, quite specific cases where there is a need for real protection. This particular process includes protecting the information from disclosure to a court, a tribunal, a parliament or parliamentary committee, or any other body or person. This process is determined by the intelligence agencies, who have weighed up the value of the information, weighed up the evidence and determined that, for particular reasons of safety and security, this information should not be shared.

We know that the legislation before us has been stimulated by the High Court consideration, and clearly the measures in this bill will amend the legal framework in the act to put beyond doubt that decisions to cancel a visa or refuse a visa application on character grounds will remain effective in the event of the High Court deeming section 503A of the Migration Act invalid. It is not unusual for legislation to come to this place in response to High Court challenges. It's something that the parliament weighs up in terms of the situation, and in this case there has been the movement around the challenge that's in front of the High Court at the moment, the decision on which is due to be brought down. It's very difficult to ever talk about when you will expect a High Court decision, but there is an expectation that that will be soon.

Senator Macdonald actually went into a degree of detail around the types of persons who will be affected by this legislative change. It's important, I think, to reinforce what he said in his contribution about what will actually be impacted and what will not. The department's submission to the Senate Legal and Constitutional Affairs Legislation Committee clearly states that this bill imposes no extra requirements or burden on people seeking a visa, industry bodies, Australian business or residents, as it seeks only to uphold decisions already made. It does not impact future visa cancellations or visa application refusal decisions, nor does it prevent affected individuals from seeking judicial review of their individual decision. I think that is a really important element in terms of consideration of this legislation. It does not preclude judicial appeal, and I think that that is an important process in terms of talking about individual rights. We have spoken before in this place about some changes that have come into migration legislation and about the importance of ensuring that people do have a judicial process that they can follow in terms of their own rights and their cases. It was stated clearly by the department and by other submitters to the legislation committee that this does not prevent affected individuals from seeking judicial review of their individual decisions.

The process that we have is very much based on a balance of responsibilities and on the particular nature of the individuals whose cases are being considered. We look at information around their particular background. We talked about the kinds of things that are taken into account, such as criminal records, whether they are members of groups or organisations that are involved in criminal conduct, the risk that someone would actually be able to have that form of conduct in Australia and whether there's an outstanding Interpol notice. These are areas that are very clearly identified, and the security risks of these areas are exactly—

Sitting suspended from 18:30 to 19:30