Louise Pratt (WA, Australian Labor Party, Shadow Parliamentary Secretary for the Environment, Climate Change and Water) Share this | Hansard source

This evening we're discussing the Migration Amendment (Validation of Decisions) Bill 2017. 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. We note that section 501 of the Migration Act 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. We know that this legislation is a response to the Graham and Te Puia cases, currently before the High Court of Australia, which are challenging the constitutional validity of section 503A of the Migration Act. When this legislation was brought before this place, the Labor opposition responded by asking for the legislation to be referred to a Senate committee so that we could consider the issues in it, noting that some stakeholders had raised some concerns about the bill. I will note some of those concerns now. It's important to examine the manner in which those concerns will be addressed, as expressed by the government.

Submitters raised a number of matters, including concerns over the retrospective operation of the bill's provisions, the potential denial of natural justice and the right to a fair hearing to some individuals adversely affected by visa decisions, the need to preserve and uphold the constitutional principle of separation of powers, and other matters, including the potential burden on the judiciary from appeals following the High Court's decision. We also note that concerns were raised about the retrospective nature of the bill. The Law Council put in a submission raising concern about the proposed retrospective application of the amendments to holders of cancelled visas or refused visa applicants, noting that they may be denied the opportunity to properly present their case. Submissions also went to issues of natural justice and the right to a fair hearing, with some submitters arguing that the provisions of the bill would result in a number of people being denied a fair hearing of their cases. I note the Law Council suggested that and that Refugee Legal noted that denying individuals a fair hearing of their claims would contravene fundamental principles within Australian law.

The committee, in looking at these issues and reporting, put weight on what the department submitted, which was that the bill does not cancel out natural justice and, indeed, preserves existing rights for relevant individuals to seek appropriate and fair judicial review of decisions to cancel their visas. The department told us that persons who've had their visas cancelled or a visa application refused on the basis of section 503A, protection of information, will remain able to seek judicial review of their visa decision following the commencement of these amendments. The amendments will not affect any review rights afforded to noncitizens under the law. They went on to say:

The amendments will maintain the status quo for individuals who have already had their case thoroughly assessed and considered under migration legislation. At the time of this consideration, these persons failed the character test and had no lawful right to hold a visa allowing them to enter or remain in Australia. They have had, and continue to have, access to judicial review of this decision and some of these individuals have challenged their cancellation/refusal decisions already.

A number of people raised the separation of powers issue. However, the committee found on balance that those issues had been addressed by virtue of the fact that the bill is an appropriate, proportionate and timely strengthening of the Migration Act, noting that its provisions maintain the integrity of Australia's visa framework by upholding decisions that have already been made to cancel or refuse visas for non-Australian individuals who have committed crimes in Australia or who may pose a significant risk to the Australian community in the future.

We on this side of the chamber note that the High Court is yet to hand down its decision in relation to the particular case I mentioned earlier and that some submitters advocated for this case to be concluded before the bill is further considered in this place. However, we are certainly of the view that the explanatory memorandum's acknowledgement that the bill is a proactive step to uphold existing decisions, pending the High Court's decision, is important. I note the explanatory memorandum says:

Through these amendments the Australian Government wishes to put beyond doubt that existing decisions to refuse or cancel visas under section 501 of the Act remain valid at law, notwithstanding their reliance on confidential information protected by section 503A.

We have noted, importantly, that the department has very strongly said that it does not affect judicial review for any person negatively affected by a decision. That was made in reference to information provided under section 503A of the act. We note that the department has clearly stated in its submission that the bill would not prevent a person's right to seek merits review of a relevant decision, to the extent that such a review is provided for under existing law.

That brings us to a place where the Labor Party believes that those issues, with the government's assurance, have been addressed. We note that it's important that we retain the capacity to refuse or cancel visas of noncitizens on character or criminal grounds and that it's important that we are able to remove criminals from Australia under section 501 of the Migration Act. Section 501 of the Migration Act sets out when a visa can be refused or cancelled on character grounds when a person fails to pass a character test or the minister reasonably suspects that the person does not pass a character test. I know from my own experience as a senator that these situations do not infrequently crop up and that ministerial review is often used with a good level of discretion to enable people to stay in Australia if exceptional circumstances apply.

I know many of us in this place will have had the situation where someone has committed, admittedly, a very serious offence but pleas on a range of compassionate grounds have been made to the minister to reconsider the cancellation of the visa, provided that that person is not deemed to be a significant security risk to Australia. I certainly know of cases, such as young people who have committed serious offences and have served their jail time and faced being deported to countries where they had very little of the language and very little in the way of family networks. It's important that that kind of discretion exists within the act, but it's also important that such provisions not be abused in ways that mean that when someone should reasonably have their visa cancelled, we are not able as a nation to do so.

I note that failing a character test is a significant thing. It means someone has a substantial criminal record. It means they may have been a member of a group or organisation that's involved in criminal conduct and there's a risk that while in Australia the person would engage in criminal conduct, or, if there's an Interpol notice on that person, they present a risk to the Australian community. These are not insignificant matters as far as being able to remove persons who have failed such a character test.

We note the effect of the bill does indeed preserve the validity of past decisions in the event that section 503A itself is found not to be valid as a result of the case that's currently before the court. We on this side of the chamber don't believe it's appropriate to comment on this case while those matters are still before the court, so I won't offer any comment. However, we do recognise that immigration ministers make decisions to cancel visas based on the best information they have available to them. That includes protected information from our security and intelligence agencies, and according to the Commonwealth's interpretation of the Migration Act. Indeed, I note that some of that information comes from members of the community and, indeed, members of parliament where they believe there may be mitigating circumstances against that character assessment. We note that if visa applicants are not satisfied with a decision, they do have the opportunity to lodge an application for review. That capacity remains with the passing of this legislation.

We are pleased that we were able to refer this bill to the Senate legal and constitutional affairs committee to allow for the short inquiry that's taken place, and that committee, of which I have been part, has recommended that the bill indeed be passed. I want to note the submissions by the Department of Immigration and Border Protection, Dr Martin Bibby, Refugee Legal and the Law Council of Australia. I note that they did balance out some of the issues and that the department needed to respond to the issues that were raised by those submitters. The Law Council did indeed express a view that the bill should be held over until the High Court makes a decision. However, the Labor Party agrees with the government that it is in Australia's best interests to preserve the validity of affected past decisions to refuse a visa application on character grounds.

I remind the Senate that in January the Commonwealth Ombudsman released two reports on Australia's immigration system. The reports highlighted significant failures by the minister and the department to manage the number of people in detention, leading to significant mismanagement of cases. One of the ombudsman's reports concerned the administration of section 501 of the act, and is therefore, in our view, relevant to this bill. The report pointed to the fact that people being held unnecessarily for long periods of time—and potentially indefinite periods of time—in immigration detention was a significant concern. It's beyond question that noncitizens who commit serious offences in our nation should expect to be deported. But that does not mean the minister should act in ways that leave families and children in limbo and increase their distress. I have certainly seen, through my own experience as a senator, those kinds of cases come before me where that kind of distress is caused.

Labor wants to continue to uphold a bipartisan commitment to keeping Australia and Australians safe. We're committed to upholding the integrity of the Migration Act. This includes the ability of law enforcement and intelligence agencies to freely provide the minister with advice. But we on this side of the chamber express our commitment to continuing to hold the minister to account for failures of the kind set out in the ombudsman's report, which are significant and concerning. With that warning, I express Labor's support for this bill.