Stirling Griff (SA, Centre Alliance) Share this | Hansard source

[by video link] At first glance, I can understand why the government has put forward the Migration Amendment (Strengthening the Character Test) Bill 2019, misguided though it is. I can see why the minister would be tempted to increase his powers and make his job easier while arguing that it is all for the greater good. But, in the case of this bill, he wants even more freedom than he has now to keep out or boot out anyone who deems of poor character and a possible threat to the safety of fellow Australians. What is harder to understand is why the minister is seeking to set the bar as low as this bill does.

Under this bill, a noncitizen would fail the character test and have their visa considered for cancellation if convicted of a designated offence against another person, no matter how minor the offence and even if they serve no jail time whatsoever. Even if their conviction only results in a fine, they will still fail the character test as long as the crime is punishable with two or more years imprisonment. Designated offences include murder and kidnapping, which are already well dealt with by existing laws, as well as threats of violence, breaching an AVO, processing or threatening to use a weapon, and being an accessory to the offence.

The minister argues this bill will target people convicted of serious offences and who pose a risk to the safety of the Australian community. However, existing laws already deal with serious offenders and people who pose a risk to others in the community. This bill will only serve to capture convictions for minor offences—because that is all that is left. It could mean that someone who has lived in Australia peacefully for 30 years as a permanent resident but then does something stupid, like many of us do, like making a verbal threat or getting into a scuffle with another person, could potentially be deported.

The Senate inquiry into this bill heard from many submitters who again and again made the point that section 501 of the Migration Act already gives the minister and his delegate very broad powers to refuse or to cancel someone's visa on character grounds. These powers are so broad that section 501(6)(c) is almost a free-for-all. It allows the minister to refuse or cancel someone's visa if the minister decides that, due to their past and present general conduct or criminal conduct, they are not of good character. Under section 501(6)(d), noncitizens also fail the character test if there is a risk that they will harass, molest, intimidate or stalk another person in Australia, or vilify a segment of the Australian community, or incite discord or pose a danger to the community because they might get involved in disruptive or violent activities.

Under section 501(3)(a), there is mandatory cancellation of a visa for noncitizens who have served 12 months or more in prison over their entire lifetime. Visas are also automatically cancelled for anyone convicted of sexual offences involving a child, regardless of the length of any sentence. Otherwise, the minister only needs to reasonably suspect that the person does not pass the character test under existing laws. That visa can then be cancelled if that person fails to convince the minister or his delegate otherwise. They will also have no rights whatsoever to a merits review. If the minister is satisfied that the visa cancellation is in the national interest, they will have no rights whatsoever to a merits review.

If that's not enough, under section 116(1)(e), the minister may cancel a visa if the holder poses a risk to the health, safety or good order of the community or the health and safety of an individual. This section allows for the cancellation of a temporary visa or permanent visa once the holder travels outside Australia. According to New Zealand's submission for the identical 2018 legislation, section 116 of the Migration Act was previously used to deport New Zealanders for a breach of restraining orders or one-off assault charges. What more does this minister need? The migration act already gives the minister broad powers to boot out pretty much anyone who could be deemed a real threat to the community or individual safety.

In reality, this bill isn't about making the community safer. It is about making the administration of the existing laws easier. Lowering the bar to ensure anyone convicted of a designated offence against another person that fails the character test takes the hard work out of the process. It provides an automatic and low benchmark. It means discretion is instead focused on when not to cancel or refuse a visa. It will mean these visa cancellations and refusal decisions can almost become a tick-box exercise. While this might be a bureaucrat's dream, this alone is not enough justification for lowering the bar as low as this bill does. The bill is retrospective, so will immediately have implications for all visa holders if passed.

There are also some serious unintended consequences that might arise from this bill, not least of which is that we would potentially be separating families and disrupting lives by cancelling or refusing the visas of people who pose no real or ongoing threat to the community. The bill's explanatory memorandum says the reason the offence must be punishable by at least two years in jail is to make it clear that a designated offence must be a serious offence and not merely a minor or trifling one. But the fact is that no custodial sentence is required, and a lack of safeguards in the legislation, even for children, undermines this attempt at reassurance. Not only that, the bill will lead to a substantial jump in visa cancellations, which will lead to greater pressure on the already slow and overstretched tribunal and court systems, and place more people in onshore detention while they wait for outcomes.

A submission from a field of experts, including a former immigration department deputy secretary, estimated that the bill could lead to a five-fold increase in cancellations. The number of visas cancelled on character grounds has already increased 11-fold since 2014, when the Migration Act was reformed to strengthen the character test. Around a quarter of the people in detention are here due to visa cancellations under section 50, and those that challenge these decisions often face prolonged detention at significant cost. As the Law Council said in its submission, a decision to cancel or refuse a visa will almost always have a profound and direct impact on people's lives. For many people, it would mean permanent separation from family. This power should not be expanded without robust justification. What is missing in all of this is a demonstrated need for these laws. No compelling case has been made that the existing laws are insufficient to protect the community from real risk. That is why I will most certainly be opposing this bill.