Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

I move coalition amendment (1) on sheet 7100:

(1)   Schedule 1, page 3 (after line 31), after item 4, insert:

4A Paragraphs 501(7)(b), (c) and (d)

Repeal the paragraphs, substitute:   (b)   the person has been sentenced to a term of imprisonment or periodic detention; or   (c)   the person has been convicted of an offence and the court orders the person to participate in:   (i)   a residential drug rehabilitation scheme; or   (ii)   a residential program for the mentally ill; or

4B Subsections 501(8) and (9)

Repeal the subsections.

[character test]

I listened carefully to the minister's speech, and one of the things the minister said about why the government is putting forward this bill is that it expects non-citizens who remain in Australia to remain of good character. I agree with that; the coalition agrees with that. However, what I would say to the minister in relation to that statement is: if you expect non-citizens who remain in Australia to remain of good character, why are you proposing a bill that only applies to certain non-citizens, and they are those non-citizens who are in immigration detention? The bill as it is currently drafted does not apply to all non-citizens; it only applies to a certain class of non-citizen.

The coalition can help you with that, as I have already outlined. The coalition's amendment will ensure that the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill to strengthen the provisions relating to general criminal conduct under the character test will apply to all persons who are not citizens, not just to those who are or should be held in detention. In other words, the amendment would actu­ally achieve what the government has stated that it wants to do, which is to ensure that all non-citizens who remain in Australia remain of good character. The amendment that the coalition puts forward would enable this same test to apply to those on one side of the fence, in immigration detention, as it would to those on the other side of the fence, not in immigration detention. If the government were of a mind to ensure that we had clear standards about acceptable conduct and behaviour—and the minister has stated that that is what the government does have—it would apply these provisions across the board by supporting the coalition's amendment.

In relation to the allegation that the opposition's amendment will cause chaos in the processing of tourist visas and deny access to subclass 976 visas provided through the electronic travel authority, or ETA as it is known, the first thing I would say to the minister in relation to his comments is this: please don't talk about processing times to those on this side of the chamber. The department is currently gridlocked due to the continuous arrival of boats. It simply, at this stage, does not have the resources to properly deal with the processing of most types of visas. Delays are being experienced, as we have heard in evidence at estimates hearings, across most visa categories. Why? Because of the govern­ment's failure to control Australia's borders. Turning specifically to the amend­ment the opposition has put forward, the allegation that it would cause a collapse of the electronic travel authority and would somehow cause chaos within the processing system is simply wrong.

The condition to deny a person access to the 976 electronic travel authority or ETA visa is specifically provided in the Migration Regulations. It is not provided in section 501 of the Migration Act, which the coalition's amendment specifically relates to. Regula­tions relating to the 976 ETA visa stipulate—and I suggest the minister read this—that regulation No. 8528 is a condition that must be imposed with respect to that visa. If you go to regulation 8528, it clearly sets out:

The holder must not have one or more criminal convictions, for which the sentence or sentences (whether served or not) are for a total period of 12 months duration or more, at the time of travel to, and entry into, Australia.

It is this document here, the regulation, that sets the bar of a 12-month custodial sentence for the ETA; it is not the Migration Act, which is what we are dealing with. They are two completely separate processes.

The coalition agrees that it is important to the national security of this country that we are made aware of any convictions prior to the person entering the country. I am very surprised at the minister's statement in relation to persons that are convicted of an offence with a sentence of less than 12 months. The implication of what the minister has said is that that makes them less of a threat to Australia. The coalition does not subscribe to that position. If you have been convicted of an offence carrying a custodial sentence of 12 months or less, quite possibly you are just as much a threat to Australia, and that is why we are moving these amendments.

We also need to bear in mind, in relation to the amendment put forward by the coalition, that—surprise, surprise—we are not the first country, and I would pre-empt that we will not be the last country, that has a requirement to notify of criminal convictions carrying sentences of less than 12 months. This is not a novel idea that is being put forward by the coalition. It is a standard requirement in China, India, Russia, Canada and the United States. If the minister actually wants to stand by the statement that he made that the government expects non-citizens who remain in Australia to remain of good character, supporting the coalition amendment would be a very good start.

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

I will seek to respond to some of the points made by Senator Cash. Firstly, Senator Cash, you are quite right. This bill does have a narrow goal, if I can put it in those terms, and that is to deal with questions pertaining to persons in detention. It is not seeking to deal with the much wider class of persons that can be described as non-citizens. That is deliberate on our part and it is our continuing intention that that is the appropriate way for this legislation to operate.

On the question of boat arrivals and the workload of the department, I guess I would simply make the point that we believe the bill that we are offering to the Senate is practicable. We think that the amendment you are proposing would have a number of consequences, as I have already outlined in my summation of the second reading debate, that would render this legislation gravely flawed.

With respect to section 8528, the government simply makes the point that legislation always overrides regulation. We think the phenomenon you described is in fact a strengthening rather than a weakening or a distraction of the legislation.

Finally, on your point of custodial sentences and our using the time-honoured test of 12 months or more for a custodial sentence, I simply make the point that that is commonly found across legislation. It has been commonly found across legislation for many years. It was the same standard that applied when the coalition was in office and when Philip Ruddock was the minister for immigration. We think it is an entirely sensible course of action to continue to use that standard.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

Very briefly, the bill does have a narrow goal; I absolutely agree with you. That is why the coalition has put forward its amendment. But having a narrow goal is clearly inconsistent with the statement I believe that you made to the Senate, which was that the government expects non-citizens who remain in Australia to remain of good character. The more precise statement should have been that the government expects a certain class of non-citizens who remain in Australia—

David Feeney (Victoria, Australian Labor Party, Parliamentary Secretary for Defence) Share this | Link to this | Hansard source

The government would make this point: we expect every person in Australia to be of good character. I point to the fact that this bill adds to the existing regulatory and legislative framework; it does not replace or subtract from the framework. What I mean by that is that we are, with this bill, pro­viding the government with additional legislative powers with respect to non-citizens who are detained, but that in no way changes the existing obligations, or rights for that matter, of non-citizens found throughout the country. The existing pantheon of rules, laws and regulations will continue to apply to those persons. We would say to all of them that we expect them to remain of good standing in this country.

Michaelia Cash (WA, Liberal Party, Shadow Parliamentary Secretary for Immigration) Share this | Link to this | Hansard source

I will briefly respond to the minister's comments on the custodial sentence of 12 months or more, the reason the government has adopted that definition of more than 12 months and the fact that it was the same under the former Howard government—in particular when Mr Ruddock was minister for immigration. I would merely state that you are right; it was. However, the fundamental difference, as I outlined in my speech during the second reading debate, was that Minister Ruddock took it upon himself to undertake and use the discretionary powers that were available to him in, I believe I stated, over 500 circum­stances, which is fundamentally, diamet­rically opposite to the use of the powers by ministers under a Labor government.

Question put:

That the amendment (Senator Cash's)be agreed to.

The Senate divided. [21:25]

(The Deputy President—Senator Parry)

Question negatived.

Bill agreed to.

Bill reported without amendments; report adopted.