Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

We've seen a few government bills that lapsed at the proroguing of the last parliament introduced into this parliament in a better form than they were previously drafted. Sadly, this is not one of those bills. This bill is identical to one tabled in the previous parliament which the government did not bring on for debate in the Senate because it knew it didn't have the numbers to pass it. This legislation, the Migration Amendment (Strengthening the Character Test) Bill 2019 is police-state legislation. It's legislation that seeks to make a minister of the Crown judge, jury and jailer.

This is yet another piece of legislation introduced by the government to solve a problem that doesn't exist. This is wedge politics at its absolute lowest. Despite the government's hyperbole and its out-of-control rhetoric on the issue of crime in this country, crime rates in Australia are in fact decreasing. This bill is far more about stigmatising and persecuting particular groups of people than it is about public safety. It's about, of course, throwing a massive wedge at the Australian Labor Party. It's also, sadly, and extremely disappointingly, about increasing the extrajudicial power of the minister for immigration.

We know this government's got a problem with migrants. In fact, just yesterday, this Senate failed to disallow a regulation introduced by this government to nearly double the fees at the Administrative Appeals Tribunal for people to appeal certain migration decisions that this government makes. It's pricing migrants out of access to justice. That was just yesterday. And now we have another anti-migrant bill being presented to the Senate today—because there's nothing, or, I should say, there's very little that this government likes more than scapegoating and demonising migrants in Australia. As submitted to the Senate inquiry into this bill, by Mr Sherrell and others, this bill will possibly increase the number of people captured by section 501 of the Migration Act 1958 by a factor of five. Of particular concern is that this will clearly catch people who are highly unlikely to be any kind of an ongoing threat to the Australian community. 'Round them up and kick them out', is the mantra of this government. This is the behaviour of a far Right government, a government in early-onset fascism. This is not the behaviour of a contemporary liberal democracy. This is not the behaviour of a government that believes in the rule of law. This is the behaviour of a government that believes in extra-judicial authority and a government that seeks to actively undermine the rule of law in Australia.

Of the hundreds of visa cancellations made by Minister Dutton under the last tranche of draconian section 501 powers bestowed on him by parliament, most have been made against people of New Zealander backgrounds or Pacific Islander backgrounds—many of whom have spent most or all of their lives here in Australia, most of whom have extended families here and many of whom have little or no support networks in New Zealand or the Pacific Islands. More than a third of all the New Zealanders who have had their visas cancelled under section 501 in recent years haven't set foot in New Zealand for over a decade. New Zealand Prime Minister Ardern appealed to us, during her visit to Australia last year, on the matter of people with stronger ties to Australia than to New Zealand being deported under section 501 as it currently stands and she said this: 'Send back Kiwis, genuine Kiwis. Do not deport your people and your problems.' That is what she said to Australia's Prime Minister, Scott Morrison. Unfortunately, deporting our people and our problems is exactly what this corrosive and unfair legislation does.

But not everyone ministers have targeted under 501 powers has been of New Zealander or Pacific Islander backgrounds. Some of those targeted have been First Nations peoples of this country—of our country. I remind colleagues that cultural heritage in Australia provides evidence of Aboriginal culture stretching as far back as 80,000 years on this bit of land that is now called Australia. But, apparently, according to this government that is not enough of an argument to allow people who are Aboriginal to stay in Australia. The Love v Commonwealth of Australia; Thoms v Commonwealth of Australia ruling in February 2020, where the High Court quite rightly ruled that Aboriginal people are not aliens under the Constitution and therefore cannot be deported, sought to ensure that such travesties of justice could no longer be entertained by a colonialist government. And I remind folks that this country was stolen, this land was never ceded, and we still do not have a treaty or treaties with Australia's First Peoples. I remind folks that for a large part of this colonial period in Australia, over the last 220-odd years, a White Australia policy existed. So it's with high levels of concern that the Greens note that Ministers Hawke and Andrews, the ministers for immigration and home affairs respectively, are now working to overturn that landmark decision of the High Court. What an absolute disgrace that is! I can assure the government the Australian Greens will have a lot more to say on that when the time comes.

Under this legislation before us today, every permanent resident in this country, even if they've spent practically their whole lives here; who are products of our schools; who've worked in our communities; who've got families here; who've paid taxes here, in some cases for many decades—every one of them—if they have a misdemeanour conviction against their name, will be worried. If this legislation passes, they'll be squarely in the government's crosshairs. No matter how long they've been living in Australia, they will fail the character test if they've been convicted of a designated offence at any point in the past. Even if this conviction happened decades ago while the person was relatively young and even if the person has no recent convictions whatsoever, they can be kicked out of the country under this legislation and not allowed back in. Retrospective laws like this are highly inconsistent with the rule of law, and that's why the Australian Greens are pushing back so hard.

This bill, of course, will also impact on the rights and welfare of children and is in clear breach of our commitment to international obligations to the protection of children, like the Convention on the Rights of the Child. Already we've seen existing section 501 powers ripping apart families and separating parents from children and grandparents from grandchildren.

This bill will also move the so-called character test away from an individual sentenced based model to an arbitrary penalty model. Rather than being tested against the sentence a judge actually imposed on someone, knowing all the facts of a case, they will now be effectively tried by the government against the maximum length of time a designated offence may potentially be sentenced. Most of the people this bill targets are people who already have significant challenges accessing justice, people who have no access to free legal assistance, and the provisions in this bill will only further restrict their access to justice. It is a blatant targeting of migrants and a blatant attempt to bypass judicial process and the rule of law. The bill does this by lowering an already low bar for refusing or cancelling the visas of noncitizens for reasons such as sharing intimate images, verbally threatening someone, associating with particular people or even holding a rock in a threatening way. I note, after many years across two parliaments, that yesterday the government circulated an amendment to tidy up the definition of designated offences in the bill to provide that the offence must cause or substantially contribute to the physical or mental harm of another person or involve family violence as defined by the Family Law Act, because the government, quite extraordinarily, now seeks to pitch this as a women's rights sport.

The flagrant disregard for the rule of law aside, if this government really wanted to get tough on domestic violence and do more to protect women in Australia from being harmed and, in far too many tragic cases, being murdered by men, there are far better targeted ways to do that. The Australian Greens would welcome that long-overdue conversation.

The government's also argued that this bill would make it harder for decisions to deport people to be defeated on appeal, and here we go: they've said the quiet part out loud! This is about denying people access to justice, because this government seeks to undermine the rule of law. This government seeks to increase the extrajudicial powers of the minister for immigration, because it doesn't like it when its vindictive, poorly-made decisions are overturned on appeal by the AAT or our court system.

The government, of course, is still smarting after its decision to cancel the visa of a 73-year-old who'd spent his whole life in Australia was overturned after it was unable to prove that the minister had spent more than 11 minutes considering the case. Yes, this man had committed a heinous crime; but for all intents and purposes, the man was an Australian—the product of our society here in Australia, with an Australian education and an Australian family. He is someone who was rightfully tried and sentenced under Australian law, and who did his time in an Australian jail. As Prime Minister Ardern said last year, 'Do not deport your people and your problems.' But that is exactly what this bill seeks to do.

This is another shameless power grab to provide the government—and, in particular, the minister for immigration—with powers to circumvent and veto the rule of law, our legal system and our court system in Australia. This is another step down the dangerous road to a prefascist state in Australia, and continues this country down the dark path to being a police state and a surveillance state. This bill is yet another strong argument as to why Australia needs a charter of rights. We remain the only liberal democracy in the world that does not have some form of legislatively or constitutionally enshrined charter or bill of rights. This government uses that gaping hole in our statutes to continue to erode fundamental rights and freedoms that many Australians, including some of my ancestors, fought and died to protect and enhance over the last hundred years. Here we are: this government continues to undermine it and take this country further into prefascism, and further down the dangerous and dark path to a police state. The Greens oppose this legislation.