Katy Gallagher (ACT, Australian Labor Party, Minister for the Public Service) Share this | Hansard source

I thank those who have contributed to this debate. The Migration Amendment (Bridging Visa Conditions) Bill 2023 proposes urgent amendments to the Migration Act and the Migration Regulations to support the effective management of noncitizens released from immigration detention following the decision of the High Court in the matter of NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor. While the Commonwealth argued that previous detention settings were constitutionally valid, the High Court's decision requires the release of NZYQ and similarly affected people from immigration detention.

Let me be clear: the safety of the Australian community is an absolute priority for the Australian government. While the High Court has not yet handed the reasons for its decision, noncitizens affected by the NZYQ decision are being released on removal-pending bridging visas as a result of the High Court's order. Removal-pending visa holders are all subject to a range of conditions, including key reporting and security conditions. Importantly, the removal-pending visa includes requirements for the person to cooperate and to facilitate their removal from Australia. The Australian community also expects that noncitizens who do not meet the requirements for migration to Australia will not undertake activities or engage in further criminal offending that harms the community and could prejudice the Australian government's ability to facilitate their removal from Australia.

As has been reported publicly, the NZYQ case load includes certain individuals with serious criminal histories. The government is working with state and territory criminal justice agencies, who have primary responsibility for community safety. This collaboration is underpinned by an enduring law enforcement engagement mechanism, which was established before any individuals other than the plaintiff in the High Court case had been released. It has also supported NZYQ affected people to move into state and territory post-offending programs where appropriate. Let me be absolutely clear: depending on the nature of the offending and the circumstances of the individual, the government is working to ensure the individuals are managed appropriately under the relevant legal frameworks.

The measures outlined in this bill are proposed to complement and strengthen existing safeguards. Specifically, the government is proposing to amend the Migration Act to include appropriate amendments to the bridging visa conditions to protect the community, to increase monitoring capabilities and reporting obligations, and to secure ongoing engagement with the Department of Home Affairs. Some of these conditions will have mandatory reporting obligations and discretionary curfew and monitoring requirements, which will be imposed only where necessary to protect the safety of the community. New criminal offences will also apply for failing to comply with these reporting and monitoring conditions. These amendments are proposed to apply to all existing and future NZYQ affected noncitizens.

The government proposes new, stringent visa conditions. These new conditions include a discretionary requirement for the visaholder to wear an electronic monitoring device as directed by the minister and a requirement to comply with the electronic device condition. The purpose of this condition is to protect the community where an individual is assessed as posing an unacceptable risk of harm to the community, and the monitoring device supports ongoing monitoring, which will keep the community safe. Electronic monitoring will also assist in preventing people from disengaging or avoiding engagement with the government, which would hamper efforts to facilitate their removal. It provides an alternative means of encouraging compliance that will be more suitable in circumstances where additional support alone will not prevent offending.

The bill also includes a discretionary requirement for the visaholder to adhere to a curfew for the hours specified by the minister at the location notified to the department, as required. These conditions would only be imposed for the minimum number of days required to support community safety according to the specific circumstances and only where appropriate with regard to the community safety risk posed by the visaholder. This is consistent with the legitimate objective of community safety and the rights and interests of the public, especially vulnerable members of the public.

To be clear, the conditions relating to electronic monitoring and the curfew—and I know we are continuing to discuss this with members of the opposition, but as the bill is drafted relating to electronic monitoring and the curfew, there are proposed discretionary conditions. They will be imposed where necessary for the protection of the community. Where appropriate, the conditions may be revoked. Other conditions developed for the NZYQ case load are mandatory, including a requirement for the visaholder to seek approval before doing any work with vulnerable people. This includes work with children. There is a requirement for the visaholder to notify the government of a change in finances, including any significant transactions, debts or income. There is a requirement for the visaholder to notify the government of changes in accommodation circumstances, including providing the details of any persons residing in the visaholder's household. There is a requirement for the visaholder to notify the government about any membership or association with any club or organisation. There is a requirement for the visaholder to notify the government of associations with any individual, group, entity or organisation alleged, known or reported to be engaged in criminal or illegal activities. There is a requirement for the visaholder to notify the government about any interstate or overseas travel. These conditions are essential for ensuring the Department of Home Affairs and the Australian Border Force remain aware of the noncitizen's location, activities and associations and that the visaholder remains engaged so that they are available for removal as soon as possible as soon as removal is reasonably practicable. The bill proposes that the breach of these conditions would be a criminal offence.

Ordinarily, a visaholder who does not comply with the condition of their visa may be considered for visa cancellation on the basis of that breach and, if cancelled, would be liable to be detained as an unlawful noncitizen. For the NZYQ affected cohort, immigration detention is not an available option. As such, the prospect of visa cancellation for the breach of a visa condition is not an effective deterrent against noncompliance with reporting requirements. Establishing new offences for NZYQ affected visaholders sends a clear message about the importance of compliance with requirements to report to the Department of Home Affairs and to notify of changes in circumstances.

These new offences relate to mandatory visa reporting conditions, compliance with a curfew and compliance with wearing an electronic device. Each of the offences would only be enforced following due consideration of the circumstances of the case. This recognises that they are designed to support a proportionate response in circumstances where the non-citizen attempts to deliberately or repeatedly evade contact and monitoring with the Department of Home Affairs. Each offence carries a maximum penalty of five years and equivalent penalty units to address serious and repeated cases of noncompliance. Importantly, the offences also encourage compliance with conditions that help to ensure the noncitizen engages appropriately in removal processes.

It's reasonable to expect that removal-pending visaholders will cooperate with the authorities to facilitate their removal from Australia if and when that becomes possible. The evidentiary burden for establishing a reasonable defence for failure to comply with conditions will sit with the noncitizen. The standard defences available in the Criminal Code would also apply. By establishing an offence specifically for NZYQ affected bridging visa holders, the government is making clear that compliance with conditions and ongoing engagement with the Department of Home Affairs is of critical importance. This includes in-person reporting and reporting by other means. It also includes notifying the Department of Home Affairs of changes of circumstances to give both the department and the Australian Border Force continuing visibility of the visa holder's movements and circumstances. This reporting will also help to ensure the noncitizen is available as soon as the visa holder's removal from Australia becomes practicable.

It is critical that these arrangements are enacted through an amendment to the Migration Act, and it will remove any doubt that these new laws apply to both current and future NZYQ affected cases. Pending passage and commencement of these measures, new visas will be granted to this cohort with the new conditions imposed. This will occur by operation of the law. In essence, this means the original visa ceases completely and is replaced by a new visa that must be held, with the mandatory conditions automatically imposed. The government will continue to work through the implications of the High Court judgement, and the ongoing engagement of the visa holders is necessary to support this process. The government is also considering additional visa conditions that may be developed to apply to the NZYQ affected cohort over the medium and longer term to strengthen the Australian government's monitoring capabilities and to reinforce expectations about their conduct in the Australian community. The amendments we are proposing today enable the conditions imposed by way of ceasing the existing visa and granting new ones. The overarching objective is to bolster the existing framework and ensure an enduring and appropriately robust framework for the management of NZYQ affected noncitizens.

In closing, I note that the High Court's decision has significant implications for immigration compliance and for the community protection objectives of the government. While it is important that we enact this legislation as a priority, further safeguards are being considered. Community protection remains a fundamental priority, and the measures included in this bill are fundamental for providing the legislative framework to support this outcome. I thank other members for their contributions on the bill, and I also acknowledge that there will be amendments to be moved in the committee stage that are being finalised now in discussions between the government and the opposition. I commend the bill to the Senate.