Kristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I rise to contribute to the debate on the Migration Amendment (Strengthening the Character Test) Bill 2019. From the outset, I want to make clear that Labor strongly supports the current powers to cancel or refuse visas on character grounds or criminal grounds which exist under section 501 and section 116 of the Migration Act. In 2014 Labor supported amendments to the Migration Act which strengthened the character test and gave the minister the power to cancel the visas of non-citizens and deport foreign criminals. This included people convicted of serious crimes involving violence, sexual offences, weapons offences, breaches of AVOs, and offences against women and children.

Since 2014 the government has cancelled thousands of visas under section 501 alone. If non-citizens in Australia commit these crimes, the government can and should cancel their visas. In fact, the extremely broad discretionary powers that already exist thanks to Labor's support mean that foreigners do not even need to spend a day in jail or be convicted of a crime to have their visa cancelled. Furthermore, the minister also has the powers under the Migration Act to refuse the visas of people of bad character before they can even come to Australia. The government can do this if these people pose a risk to the community or have a violent or criminal past. The minister can also refuse a visa if there is a significant risk to an individual who would vilify a segment of the community or incite discord or represent danger to them during their time in Australia. All of these powers currently exist.

Let's take about the bill. Let's talk about a minister for immigration whose word can't be trusted and a Prime Minister who would rather play politics with domestic violence than get an outcome that would actually make life safer for women and children. First of all, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs is Alex Hawke. Let me say upfront that I like Alex Hawke. I acknowledge that since he took the role of immigration minister he and I have been able to work together on a number of bipartisan initiatives: changes to the distinguished talent visa that would let Quade Cooper and other distinguished Australians—yes, people who should be Australians but currently aren't—be able to call Australia home; and quicker responses to visa applications during the height of the Afghanistan crisis, which is important to many Labor MPs who represent large sections of the Afghan-Australian community. Minister Hawke and I worked together.

These examples of bipartisanship in the national interest mean it is all the more disappointing that yesterday the minister for immigration reneged on a deal to work with me over the next two weeks to come up with a plan to get an agreement on this bill. Yesterday, at noon, the minister and I met. We struck a deal to negotiate a final position on this bill and bring it back for the final sitting fortnight of this year. At the heart of that deal, Minister Hawke and I agreed to work on Ministerial Direction No. 90 and to consider changes sought by the temporary visa working group, by the National Advocacy Group on Women on Temporary Visas Experiencing Violence and by the inTouch Multicultural Centre Against Family Violence.

The minister sat there in his office and agreed with me that he and I would work together, over the next fortnight, to finalise these changes to the ministerial direction to keep women and children safe. The minister also agreed that he and I would work together over the next fortnight to consider what, if any, changes we might make to the government's own amendment to its own bill to ensure that low-level offending was not inadvertently captured by the bill. That was at noon yesterday. Just before 5 pm, the minister's office called mine and pulled that deal.

Extraordinary. A minister—a recently promoted cabinet minister, no less—makes a deal to work with the opposition, to deliver real changes that would make a real difference to real women and children who experience domestic violence, and then the minister yanks it just a few hours later. Do you know what Minister Hawke said, when I spoke to him last night? He said that Senator Anne Ruston had told him the bill had to be voted on today. He blamed the Senate leadership for forcing him to renege on that deal.

I don't believe that for one minute. There is only one person who can make a cabinet minister renege on a deal, and that is the Prime Minister. Clearly, the Prime Minister, Scott Morrison, has yanked Minister Hawke's chain. The minister for immigration made a deal. The minister for immigration entered a real bipartisan negotiation, with a genuine intention to make life safer for women and children who are victims of domestic violence, and just four hours later he pulled it. The Prime Minister pulled his chain.

Extraordinary. A negotiation, an agreement, in good faith with a cabinet minister, to defer this bill to the next sitting fortnight and to land a deal, was overturned within a few hours. Senator Ruston didn't do this. The Prime Minister did it. I say the minister's behaviour was extraordinary but this is all too predictable from Prime Minister Morrison. He always looks for the political game. The Prime Minister never cares about the outcome. The Prime Minister doesn't care about Australians. The Prime Minister would rather play a political game than get a good outcome for victims of family violence. The Prime Minister overruled this cabinet minister just so he could run a political wedge on Labor and the crossbench. The Prime Minister's leaving domestic violence victims—women and children—behind.

We know because the Prime Minister's own colleagues have told the media: at the heart of the Morrison government sits a focus group. As Senator Fierravanti-Wells told the Senate this week, it's not the Prime Minister's office it's the 'prime marketing office'. The Prime Minister is so obsessed with serving his own political agenda that he is willing to shame, embarrass and weaken his own cabinet colleague Alex Hawke. I almost feel sorry for Minister Hawke. He's had the rug pulled out from under him. He's been shown to be weak in the cabinet. He's been shown to be a minister who cannot keep his word.

This is a Prime Minister whose character constantly reveals to the Australian people he is obsessed with politics, and he never delivers. Let's understand this. No matter what the government members might say in this debate today, this bill does not need to be finalised this week. You will hear from those opposite breathlessly declaring this bill is so urgent and vital and we need to get it resolved today or tomorrow; it certainly can't be left to the next sitting fortnight. Let's understand, any claim that this legislation is somehow considered urgent by the government is simply untrue.

The government first introduced this bill in 2018, more than a thousand days ago. They never brought it to a vote. They reintroduced it after the 2019 election. I wrote to the then immigration minister, David Coleman, in September 2019. I outlined the three things that Labor sought from the government in order to secure passage of this bill—and I never got a response. I didn't hear from Minister Coleman. I didn't hear from Minister Tudge. I am now onto the third immigration minister of this tired eight-year-old government, Minister Hawke, and he only raised this bill with me last week for the first time. We exchanged letters, we had a conversation, we agreed to meet. We met yesterday. We agreed yesterday at noon to a process to settle this bill in the next sitting fortnight, three years since the bill was first introduced, two years after I first wrote to the immigration minister. Finally, an immigration minister in this tired government decides to engage in a genuine constructive dialogue and then, within four hours, welches on his word.

This is not a genuine legislative process by the government; it is a political running gun game, a political ploy from a Prime Minister who only serves his political interests, not the national interests and certainly not the interests of women and children. If this bill was so urgent, the government would have dealt with it when they first introduced it, when I first wrote to them or indeed would have dealt with it genuinely, as Minister Hawke sought to do yesterday.

What is the intent of those opposite trying to pass this legislation? They have brought this forward in an abhorrent gutter politics at its very worst, a new low for this tired eight-year-old government that has plumbed new depths under Mr Morrison. If there has been a single instance of domestic violence in the last 1,090 days that could have been prevented by government actually engaging on this bill constructively with the opposition to get it passed, well then that incident sits on their heads.

Today, this is another effort by Scotty from marketing, the Prime Minister from marketing, to change the narrative to fix up his own failures—his failures on quarantine, his failures on vaccine rollout, his failures to lead. This is a Prime Minister who says 'it's not my job', 'that's a matter for the states 'and 'I don't hold a hose, mate'—too little too late. It is always a political game.

Let's talk about this bill. First of all, I am a little concerned that the minister for immigration fails to understand he already has the power to deport perpetrators of domestic violence. He fails to understand that women and children who are the victims of domestic violence, whether they are on temporary visas or Australian citizens, who suffer violence at the hands of visa holders, are often at risk. Those women and children, if they report domestic violence, their visa status is also at risk. Sometimes there are Australian children with a mother on a visa and those children are at risk of being separated from their mother. These are real things that happen, and the minister yesterday agreed to work with me to resolve them and four hours later pulled that deal.

In relation to this bill, Labor outlined two years ago to the government the three concerns that we had with this legislation. The removal of retrospectivity, a concern first highlighted by Jason Wood and the government-controlled committee on migration. Jason Wood called for the removal of retrospectivity. Labor also highlighted the concern that low level offending would be inadvertently captured by this bill, a concern the government has acknowledged is real. They are moving an amendment to their own bill. I don't think it goes far enough. Minister Hawke and I agreed yesterday to talk about how we can improve that amendment and we agreed we would work over the next two weeks to fix it but no, as we noted, the minister had the rug pulled out from under him, not by Senator Ruston—I don't believe that for a minute—but by the Prime Minister, who would rather get a political game going than deliver a pragmatic and practical outcome to help keep women and children safe. And Labor raised the concern about the disproportionate effect that it would have on our friends in New Zealand. The New Zealand government has made a submission and appeared at Senate inquiries. The New Zealand government do not just randomly appear at government inquiries but they said that this bill would 'Make a bad situation worse for New Zealanders and therefore New Zealand. This is one area of people-to-people relationships where our Prime Minister—the New Zealand Prime Minister—is pointing out the corrosive effect and we don't want it to be corrosive to our political relationship'. Those are the words of the New Zealand High Commissioner. This bill could put our relationship with our closest neighbour, our dear friends, in jeopardy, which is why Labor has asked the government to review and revise the ministerial direction. And we're not the ones who first raised this: Jason Wood raised it in the government-controlled committee! Jason Wood said that this ministerial direction should be revised to lessen the impact on New Zealanders. These are all matters that Labor raised two years ago and we only heard back from the government this week.

In conclusion, what I say to the minister for immigration is: come back to the negotiating table. You and I, Minister, had a constructive conversation yesterday. You and I discussed how we were going to make life safer for women and children who are victims of domestic violence. You and I, Minister Hawke, discussed how we were going to work together to ensure that this bill did not capture low-level offending, and then you welshed on the deal. Your Prime Minister pulled the rug out from under you. Well, stand up to the Prime Minister and tell him, just this once, that he doesn't get to play a political running-gun game. He should deliver a real outcome, a pragmatic outcome—an outcome that would make women and children safer, and an outcome that would ensure low-level offending is not captured. That's something you have already agreed, Minister, is a problem with your own bill. Frankly, Minister, you should ensure that our close friends and neighbours in New Zealand are not disproportionately affected; you should not corrode the relationship with New Zealand.

So I say to the minister: come back to the negotiating table. If we get to the committee stage today, I flag that we have amendments to deal with visa privatisation. And, by the way, on visa privatisation: the government has raised a concern about electronic tourist visas in terms of our amendment. I say to the government: fine, we will fix that up—but you should rule out visa privatisation. And we have amendments that seek to deal with New Zealand. Before we get to a final position on this bill, what I say to the government—what I say to minister—is to come back and do your job, mate. Come back and engage in a genuine legislative process. Don't just kowtow and be the water boy for a Prime Minister who would rather play a political game. You know this is wrong, this chamber knows this is wrong and we can do better to make life safer for women and children.

Nick McKim (Tasmania, Australian Greens) Share this | Link to 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.

David Van (Victoria, Liberal Party) Share this | Link to this | Hansard source

I rise to speak on the Migration Amendment (Strengthening the Character Test) Bill 2019. As we move out of an environment dominated by COVID-19, which has unfortunately been characterised by border closures and lockdowns, like in my home state of Victoria, we must once again set our sights on what a return to normal will look like. Considering how well the Morrison government has handled the pandemic, and the fact that our economy is in a position to continue to grow past COVID-19, Australia will once again become an attractive location for foreign citizens to come and visit, whether it be for tourism, for work or to live. Australia is proudly a multicultural nation, and a large part of our success has been built on the back of migrants from around the world who are attracted by some of the great many benefits that Australia has to offer.

However, unfortunately, not everyone who wishes to come to our shores has good intentions in mind and do not wish to subscribe to the many values that we hold dear, such as respect for the rule of law. The respect for the rule of law is a fundamental value that underpins our society; it is what keeps Australians safe and our nation prosperous. The Morrison government is resolutely committed to upholding these values, ensuring that those who enter our borders share our respect for the rule of law and value the benefits that this brings to our society. Consistent with the views and expectations of all Australians, the Morrison government has no tolerance for criminal behaviour. Those that engage in crime and who pose a threat to Australians in their homes and communities have no place entering our borders.

Once the number of people crossing the border into Australia again begins to increase, so too will the threats to our security increase. It is not a right of noncitizens to enter into Australia, it is a privilege. This privilege that we bestow on those entering Australia is one that we must carefully manage. Australians expect that we, as the representatives of the people, have in place the right rules and regulations to ensure that this privilege is not taken for granted by those who wish to do us harm.

The Morrison government has shown that it is resolute in its commitment to keeping Australians safe. We have recently passed numerous pieces of legislation designed to keep Australians safe from foreign threats. They include the Independent National Security Legislation Monitor Amendment Bill, the Foreign Intelligence Legislation Amendment Bill, the Surveillance Legislation Amendment (Identify and Disrupt) Bill, and the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill.

All of these, I have spoken on recently in this place. They are just a handful of recent examples of legislation, that have passed through the parliament, aimed at keeping Australians safe and free from the threat of violence. Recently, as everyone will be aware, the AUKUS announcement was made. This trilateral defence pact can be seen as one of the greatest achievements in strengthening our national security in recent history. It's one of the greatest steps taken by an Australian government to keeping Australians safe. These announcements outline the Morrison government's achievements over recent times that go towards keeping Australians safe. This commitment is extended today with the bill before us.

We are a welcoming, multicultural, open and cohesive society. At the same time, we need to ensure that we remain safe and secure. The Australian community expects that the Australian government can and should refuse entry to noncitizens or cancel their visas if they do not abide by the rule of law. It must be clear to those who wish to travel to our shores that if they choose to break the law and fail to uphold the standards of behaviour expected by the Australian community, that privilege of residing in Australia will be taken away from them. The purpose of this bill is to amend the Migration Act 1958 to specify that a person who does not pass the character test—that is, they've been convicted of a designated offence—may have their visa cancelled or visa application refused.

The character test, in one form or another, has been in the act since 1992. What the Morrison government is doing is ensuring that this test remains in step with the rest of our society and our values. The Migration Amendment (Strengthening the Character Test) Bill 2019 will ensure that noncitizens who are convicted of certain serious offences and pose a risk to the safety of the Australian community do not pass that character test and are, appropriately, considered for visa refusal or cancellation.

The bill broadens the existing discretionary powers to cancel or refuse visas under the character test. The amendments will allow for discretionary visa refusal cancellation for a noncitizen who has a conviction of a designated offence punishable by at least two years imprisonment. Designated offences include violent and sexual crimes, breaching personal protection orders like AVOs that protect women and children, using or possessing a weapon, or assisting with any of these crimes. These crimes are some of the most serious offences that can be committed and pose a direct threat to our community. The amendments address gaps in the current character test to capture noncitizens who have been convicted of a serious criminal offence punishable by at least two years imprisonment, have received less than 12 months imprisonment for their crimes and pose a risk to the Australian community.

By moving the character test onto more objective grounds, the bill will broaden the circumstances in which visas may be cancelled or refused and reduce the likelihood of such decisions being overturned on appeal. The last thing we want is for an individual whose character has been deemed unfit, and who poses a direct threat to the Australian community, to have their visa cancellation overturned on appeal. By focusing on the sentence available rather than the sentence imposed, the bill also captures offenders given sentencing discounts by judges due to plea bargains, guilty pleas or simply to avoid mandatory visa cancellation thresholds. This response to the precedents set out in Victoria, Queensland, Tasmania, the ACT and South Australia gives judges discretion to reduce criminal sentences where an offender may be deported due to their offending. As this power is discretionary, the government will have flexibility to focus on serious crimes perpetrated by criminals who pose a genuine and present risk to the Australian community.

Why the Labor Party would oppose this is beyond me. Opposing this bill is essentially saying that you're okay with convicted offenders, who pose a threat to our citizens, walking the streets amongst the community.

You've had two years to negotiate. It shows that the Labor Party is not serious about ensuring that our citizens are safe and that their priorities are wrong. The last time the Labor government was in government, under Prime Ministers Rudd and Gillard, they only cancelled and refused a total of 1,128 visas on character grounds. The Morrison government is not okay with this and will pull upon every lever we can as a government to keep Australians safe in their homes and in their communities. The coalition government has a strong record when it comes to combatting crime and keeping our streets safe. Since significant reforms were made in 2014, this government has already cancelled and refused visas of over 9,900 serious criminals. That's almost ten times as many criminals kept out of the Australian community than under Labor. Of the nearly 10,000 cancellations and refusals, offences ranged from murder, child sex and child pornography offences, rape and serious sexual offences against adults, armed robbery, drug offences, kidnapping and other violent offences, including assault, grievous bodily harm, reckless injury, domestic violence, stalking and intimidation, use of a weapon and attempted murder. I think all Australians will agree we don't want those people in our community.

Furthermore, the government cancelled or refused visas to over 320 organised crime figures, including members of outlaw motorcycle gangs. Each one of these visa cancellations or refusals was a great accomplishment and made Australians and our communities safe. This is something we should all be proud of, and we on this side are very proud of it. No-one here should be comfortable with a person who has proven to be capable of horrendous acts to be walking around our communities.

That Labor's position to visa cancellation should be only triggered by the sentence received, rather than the sentence available, shows that they do not take the threats to our community seriously or that they are just simply playing politics. To me, however, it seems as if both those assumptions are true.

It is a fact in 2011, Chris Bowen from the other place, passed laws with coalition support, which focused on the sentence available specifically for where crimes are committed in immigration detention, as opposed to the broader circumstances covered by today's bill. If Labor believed that it was necessary for this type of action to be available for crimes committed in immigration detention centres, it makes very little sense to me as to why they believe it should not be applied to crimes committed in all other areas of our community. Even Mr Albanese, the Leader of the Opposition, when first asked about the bill in 2019, said: 'Is it a good idea to deport people who break the law in Australia? Yes, it is.' Labor's backflip is essentially showing that they are backing foreign criminals over Australian citizens.

As I said earlier, the Morrison government is committed to ensuring our communities are safe, and that is why at the 2019 election, as part of our plan to protect our borders to keep Australians safe, we committed to strengthening the character test for foreign criminals even further to enable visa cancellations where a noncitizen has been convicted of a broader range of violent and sexual offences. It was our election commitment. We're keeping it here today. This government intends to keep that commitment and ensure our communities are safe. An Australian visa is a privilege, and our laws must deny that to those who pose a threat to the safety of all Australians. Ensuring that Australians are safe and free from the threat of harm is one of the fundamental tasks that a government must undertake. Without this security, citizens cannot prosper. I commend the bill to the Senate.

Stirling Griff (SA, Centre Alliance) Share this | Link to 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.

Sarah Henderson (Victoria, Liberal Party) Share this | Link to this | Hansard source

[by video link] Australia is an open nation. We are a welcoming people, and we stand towards the world with open arms. We have a proud multicultural history and there is no doubt that the vast majority of immigrants to Australia have greatly enriched the story of this nation. These immigrants uphold Australian values, support our way of life, contribute to our democracy and feel proud to be Australian. These are people of good character, who think Australia is a country worth protecting.

However, it is simply common sense that we must be alert to the inherent dangers that accompany our otherwise generous immigration policies. It is an unfortunate truth that not all who wish to come to this country do so with honesty or integrity. Serious and hardened criminals often attempt to enter the country on false pretences, seeking to do us harm, threatening the safety of our children, undermining our social order and corroding our way of life.

It is the duty of every government to provide for the safety and protection of its people. This government will not shirk that duty. This bill stands as a testament to the government's commitment to see Australians safe and secure from any threat which lurks beyond our borders.

Before I move to the substance of the bill, I want to challenge the Greens' extreme opposition to the bill and some of the unfortunate remarks made by Senator McKim, which I won't repeat. I will say this in relation to his advocacy for a bill of rights. Over the past 18 months we've seen many what I regard as fundamental breaches of human rights here in Victoria under the guise of health restrictions—people being locked in their homes with no warning and no medication, as happened with the public housing towers in Flemington last year. Victorians have been locked out of their homes for weeks on end under the guise, again, of border protection, under circumstances where people were effectively forced into homelessness and where some people were denied the right to seek medical treatment from their own doctor. Of course, there's the overnight curfew. It has been impressed upon the state government for such a long time that this is wholly unnecessary. There is a charter of human rights and responsibilities in Victoria, and this made absolutely no difference to constraining the exercise of power and these draconian restrictions under the guise of health orders. It is disappointing, I note for the record, that the Greens have not raised their voices in relation to some of these serious transgressions of human rights.

I now move to this bill, which amends section 501 of the Migration Act to provide that a person will objectively not pass the character test if the person has been convicted of a designated offence which carries a maximum sentence of not less than two years. The minister and his delegates within the department will then have the discretion to cancel or refuse a visa on that basis. A designated offence—I reiterate this, particularly given the remarks of Senator Griff—is not a minor offence. It is an offence which involves violence against a person, non-consensual conduct of a sexual nature, breaching an order made by a court or tribunal for the personal protection of another person or using or possessing a weapon. Any offence which commands a jail sentence of a minimum of two years is a serious offence in this country. So this is no free-for-all.

In making a decision to cancel or refuse a visa on this ground, the department will need to take into account a wide range of factors contained within a binding ministerial discretion. Those factors include: the protection of the Australian community from criminal or other serious conduct; the best interests of minors in Australia; expectations of the Australian community; Australia's international obligations; the impact on victims; and the nature and extent of the person's ties to Australia. The bill provides a clear standard for anyone seeking to enter this country as to what kind of person we expect them to be. The bill also enables the minister or his delegates to prevent criminals, including people convicted of violent assault related offences, from coming to this country who might otherwise slip through our current legal regime.

By strengthening the character test in the Migration Act, this bill strengthens Australia's security and protects the Australian people. Moreover, it does this in a sophisticated way. For example, the proposed subsection 501(7AA)(b) provides that a person's conviction for an offence of common assault or an equivalent offence is taken not to be a conviction for a designated offence unless the act constituting the offence for which the person was convicted causes or substantially contributes to bodily harm to another person or harm to another person's mental health within the meaning of the Criminal Code—in both cases temporarily or permanently—or involves family violence as defined by the Family Law Act by the person in relation to another person. Let me reiterate: this means that low-level assaults, including threats, that neither cause nor contribute to a person's bodily harm or harm their mental health and do not involve family violence will not cause a person to fail the character test. However, if a low-level assault does involve family violence then this will constitute a designated offence. As I say and reiterate, this is not about minor offences. This relates to more serious offences to ensure that the Australian community does not come under any threat from any person who has slipped through the net. So not only does this bill reflect the government's attention to concerns that the designated offences grounded in the original bill may unintentionally capture low-level offending—and certainly we have addressed that—it also demonstrates the government's commitment to combatting family violence wherever it occurs.

We have heard that there are some, including senators opposite and some members of the crossbench and the Greens, who think this bill is wholly unnecessary, that it unduly gives the minister too much power to restrict immigration. There are some who even argue that the bill is problematic because it might harm our relations with other countries. To those people I say: where is your concern for the Australian people? This is, first and foremost, about protecting our community. The bill gives the minister the power to stop convicted criminals from entering this great country. That is not overreach, that is not unnecessary—far from it. It is wholly right and good that the government does everything in its power to safeguard our freedoms and our way of life.

The government's record on this issue is impressive and it far outstrips Labor's paltry efforts. The Rudd-Gillard government refused only 1,128 visas on character grounds. In contrast, after significant reforms in 2013-14, as we heard in the excellent contribution from Senator Van, this government has already cancelled or refused visas to over 9,900 serious criminals. That's almost 10 times as many serious criminals kept out of the Australian community than under Labor. Of the 9,900 cancellations and refusals, 216 were for murder; 1,372 were for sexual offences, including 905 for child sex and child pornography offences, rape and serious sexual offences against adults; 498 were for armed robbery, 1,701 were for drug offences; 37 were for kidnapping; and nearly 4,000 were for other violent offences, including assault, grievous bodily harm, reckless injury, domestic violence, stalking, intimidation, use of a weapon and attempted murder. Furthermore, the government has cancelled or refused visas to over 320 organised crime figures, including members of outlaw motorcycle gangs. These figures demonstrate the government's commitment to keeping our community safe.

This bill also would not result in the automatic cancellation—and this is an important point—or refusal of any visas at all. Rather, this bill gives the minister and his delegates the power to review the visa status of any non-citizen convicted of a serious criminal offence. The bill also makes sure that visa applications are reviewed carefully and in accordance with clear criteria. This is prudent. As far as our relations with other countries are concerned, the government's first and overriding duty is to the people of Australia, not the governments of other countries or their representatives. The government was elected by the people of Australia and we intend to govern in their interests—cognisant, of course, of the important role that our government plays and our country plays in the global community and the responsibilities we have to other nations.

The government is proud of its efforts and success in protecting the people of this great nation. We know that the Australian people value commonsense legislation when it comes to protecting their communities—and this bill is exactly that. Common sense dictates that if nefarious people wish to enter this country we must stop them. It's as simple as that. Even the Leader of the Opposition, Mr Albanese, agrees that serious criminals who are visa holders should be deported from this country. This bill also affirms that other maxim of common sense: entry into Australia is a privilege, not a right. It is a privilege to enter this country, partake of its freedoms, enjoy its democratic culture and flourish in its egalitarian spirit.

This is a critical bill, and the current proposed amendments are crucial to ensuring the government meets the expectations of the Australian people that noncitizens wishing to enter this country who have been convicted of serious crimes will be appropriately dealt with. It is of paramount importance that we pass this bill so that the government can do its great work in protecting Australians from threats to their livelihoods, to their families and to their wellbeing, and to first and foremost keep Australian communities safe. I commend this bill to the Senate.

Mehreen Faruqi (NSW, Australian Greens) Share this | Link to this | Hansard source

I rise to speak to the Migration Amendment (Strengthening the Character Test) Bill 2019. I associate myself with the remarks of my colleague Senator McKim, who has laid out in no uncertain terms how damaging and toxic this bill really is. This bill amends the Migration Act 1958 to specify that a person does not pass the character test under section 501 and may have their visa cancelled or visa application refused if they have been convicted of a designated offence.

Organisation after organisation have stood up and opposed this bill: the Refugee Council, the New South Wales Council for Civil Liberties, the Asylum Seeker Resource Centre, the Law Council and many more. FECCA has pointed out the dire consequences for those who are deemed to fail the character test on arbitrary grounds—in particular, refugees and long-term permanent residents. FECCA states:

An individual may be removed to a country where they do not speak the language; where they have spent little time (or never lived); and where they have no familial, social or economic connections. Further, those who are unable to be returned to their country of citizenship, for example refugees and stateless people, risk indefinite prolonged periods of arbitrary detention.

This bill has been sitting around for two years. It passed the House of Representatives in September 2019. Before that, an identical bill had been introduced into the House in October 2019. You really have to wonder: why is the government finally bringing this on now? Even if you accept their argument that this bill is critical to protecting Australians' safety, how does this square up with letting it languish for three years? The only explanation I can think of is that bringing this bill on now, months out from an election, is pure politics. The government sees political advantage in having this debate now. We know that they rely on drumming up fear and anxiety about migrants and criminality on the eve of an election It's the oldest play in the book. They want to portray themselves as the ones who will be the toughest on borders, the toughest on migrants, the toughest on crime, and they are cynically and shamefully trying to spin all of this as a big problem.

Once again, you are playing with the lives of migrants as you use us as pawns in your political games, because that's all you care about: your political advantage. And you're sacrificing people already at risk—the same people you have dog-whistled against and dehumanised and demonised. But what more can we expect of this government?

During COVID, pandemic responses targeted and stigmatised communities in western and south-western Sydney with police operations, military presence and curfews, like no other community in New South Wales. The only people who were left out of pandemic support were migrant workers, temporary visa holders and international students. They were left high and dry in precarious employment and dangerous work situations because you did not lift a finger to help them. Why? Because they can't vote. Why? Because they don't look like you; they look like me. Why? Because you don't give a damn. But you are all fine with using international students as cash cows, harvesting their money when it suits you. You are fine with migrant workers doing the hard work that others won't do: driving taxis; being late-night workers at 7-Eleven; serving your food at restaurants; cleaning your buildings; working as security guards, providing protection at all hours. You take, take, take and you give nothing back in return.

The truth is, whether we have the blue passport or not, our citizenship, our belonging to this country is conditional. Our Australianness is conditional. It is conditional on us keeping our heads down and our mouths shut. It is conditional on us being grateful for being let in. It is conditional on agreeing with those in power. It is conditional on giving up our identity and assimilating. And even then you're not happy, and you want to grind us down even more by bringing bills like this to parliament. We have—and we should have—the same rights and privileges as anyone who lives in this multicultural country.

Here's another truth: multiculturalism in this country is just skin deep. It is measured only in the economic value migrants bring here through their business, their expertise, their skills, their food and their culture. Politicians use us as photo opportunities at our cultural festivals. They use us as voting blocs when they need us in elections. They come to Diwali, to Eid and to Baisakhi; they stand with us and make promises that they never fulfil. They never address the issues we face: exploitation at work, racism, unemployment. When those issues come up for us every single day, you are nowhere to be seen. You'll take our money, you'll take our hard work, you'll take our vote, but you won't listen to us. You won't give us a seat at the decision-making table either. You keep telling us to wait our turn, to get to the back of the queue. I'm afraid that I do have to look at Labor as well, because that's exactly what you are doing in Fowler, one of most multicultural seats in Australia. You do a lot of talking, but little walking. We are not here to be used, abused and marginalised. We deserve to be treated with respect and dignity. Shame on you Liberals for bringing this toxic, destructive, damaging bill into the Senate.

Jim Molan (NSW, Liberal Party) Share this | Link to this | Hansard source

This is a very important amendment to a bill. I see it as a continuation of the support for border control and stopping the boats, which has been a totally successful aspect of how this country runs itself. I see it as a very important part of Operation Sovereign Borders, of which I was co-author and one of the people who made that policy work. This is probably the single most successful policy with regard to this country defining itself as a sovereign nation, and sovereign nations control their own borders.

Greens and Labor got that appallingly wrong over a very long period of time. We have just heard Senator Faruqi say that these are political games we're playing, and all that we care about is exploiting newcomers to this country. What an appalling statement. What an absolutely appalling statement. I took part in Operation Sovereign Borders for the simple reason that Labor and the Greens had caused the deaths of 1,200 people through their incompetence in applying border controls. Time and time again, we have saved many multiples of that 1,200 that were lost at sea—women and children—who our sailors saw on a daily basis rotting in the sea and taken by sharks.

This is an essential manifestation of being a sovereign country, and there are various reasons that we can look at as to why we should proceed with this bill, the Migration Amendment (Strengthening the Character Test) Bill 2019, and with this amendment.

The first one is that it is a national security issue. The people of Australia must have faith that the borders will be controlled. Border control is not an easy policy; it is a difficult policy, and there are aspects of it which are very, very unpleasant. For the Australian people to have faith in how our borders are managed, it is critically important that we continue to maintain them. Criminals or non-Australians who do not subscribe to the Australian way of life, which is to obey the law, have no right to remain in this country. So that's the first point.

I can hardly hear myself talk. I wonder if there could be some quiet, please?

Claire Chandler (Tasmania, Liberal Party) Share this | Link to this | Hansard source

Order! Order, Senator Hanson-Young.

Jim Molan (NSW, Liberal Party) Share this | Link to this | Hansard source

The second reason is to keep Australians safe. We've heard an awful lot about that. We've gone through the number of murders, the number of rapes and the amount of family violence. The second reason is to keep Australians safe, and that is the ultimate obligation of any government.

The third reason is to support victims, such as rape victims and the family members of those who have been murdered. Any number of commendations for this bill have been given by people who made the simple statement that, if this bill had existed, their family member would not have been killed, raped or beaten.

The fourth reason—I will limit my presentation to that at this stage—is respect for citizenship. We have an extraordinarily welcoming country. We give citizenship, after a period of time, to anyone who comes here legally and we are very, very generous in it. But it's not a right. It is a privilege for people who are prepared to obey Australian laws. That is what the character test is all about: whether you are, in fact, willing to obey Australian laws. This is, I believe, illustrated most specifically by the figures.

A simple figure to begin with is that the Rudd-Gillard government only cancelled and refused a total of 1,128 visas on character grounds. We are very proud of the fact that, by contrast, after significant reforms in 2014, this government has already cancelled or refused visas to over 9,900 serious criminals. If people don't think that this was for serious crimes, then they really haven't looked at the detail of what is going on.

Let me just run through it once again for the benefit of Labor and the Greens. Of the 9,900 cancellations and refusals, 216 were for murder and 1,372 were for sexual offences, including 905 for child sex and child pornography offences. So whose interests are we looking after by claiming the right of these non-Australian, noncitizen criminals to stay in this country? Are we looking after the families of those who were murdered? Are we looking after the 905 who had committed child sex and child pornography offences, or the 467 who had committed rape and/or serious sexual offences against adults? This is absolutely appalling. This is an incorrect focus, not where the mind of this country should be. It is faux civil rights and faux humanity to say that these people have any right to stay in this country.

Four hundred and ninety-eight of the 9,900 had committed armed robbery. We are deeply concerned at the moment that, during the COVID-19 period, people have lost their income. We see time and time again not just the traumatic impact on individuals but the economic impact on individuals who have been subjected to armed robbery—nearly 500 cases amongst the 9,900 people who have had their visas refused or cancelled. There were 1,701 for drug offences There were 37 for kidnapping. There were 3,908 for other violent offences, including assault, grievous bodily harm, reckless injury, domestic violence, stalking, intimidation, use of a weapon and attempted murder. If they were Australian citizens, they would be treated differently, but they have elected not to be Australian citizens, regardless of how long they may have stayed in this country. They've elected not to become Australian citizens, and that's a decision that they have made, for the consequences of which they have to suffer.

In conclusion, I say that this is an amendment bill that is worth supporting. It should be supported, if for no other reason than for the victims of those who have been deported—for the victims of those who have had their visas and the great privilege of Australian citizenship removed from them.

Michaelia Cash (WA, Liberal Party, Deputy Leader of the Government in the Senate) Share this | Link to this | Hansard source

I rise to sum up the debate on the Migration Amendment (Strengthening the Character Test) Bill 2019. I thank all members for their contributions to the debate on this bill. The bill amends the Migration Act 1958 to provide grounds for noncitizens who commit serious offences and who pose a risk to the good order and safety of the Australian community to be appropriately considered for visa refusal or cancellation.

We recognise that certain offences have a significant impact on victims and their communities. Like the Australian community, the government has a low tolerance for criminal behaviour and believes that entry or stay in Australia should remain a privilege granted only to those of good character. We remain committed to upholding the good order and safety of our community and protecting our residents. The amendments in the bill allow for discretionary visa refusal or cancellation where a noncitizen has a conviction for a designated offence punishable by at least two years imprisonment. Designated offences include violent and sexual crimes, breaching personal protection orders like AVOs, using or possessing a weapon or assisting with any of these crimes.

The amendments address gaps in the character test to capture noncitizens who have been convicted of a serious crime punishable by at least two years imprisonment, have received less than 12 months imprisonment for their crimes and pose a risk to the Australian community. The bill is specifically designed to protect women and children from family violence. That's why it targets violent and sexual crimes as well as breaches of personal protection orders like apprehended violence orders. Furthermore, the existing ministerial directions set family violence as a primary consideration for decision-makers when they apply the character test.

Under the Morrison government, foreign criminals have been deported at record rates. We will continue to keep Australians safe by seeking to ensure our laws allow us to deport even more serious criminals. Anthony Albanese and Labor should either back these changes or provide a much clearer explanation as to why they will not. The bill deserves the support of all members and I commend the bill to the Senate chamber.

Slade Brockman (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill be read a second time.