Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that the bill stand as printed.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (3) on sheet 1810:

(1) Schedule 1, item 1, page 3 (line 7), before "The provisions of this Act", insert "(1)":

(2) Schedule 1, item 1, page 3 (after line 16), at the end of section 5AB, add.

(2) However, the effect of subsection (1) is to be disregarded in applying the provisions of this Act and the regulations for the purposes of doing a thing with respect to a New Zealand citizen and a special category visa (including the granting of such a visa to a New Zealand citizen).

(3) In this section:

do a thing includes:

(a) make a decision (however described); and

(b) exercise a power, perform a function, comply with an obligation or discharge a duty; and

(c) do anything else.

(3) Schedule 1, item 4, page 5 (after line 31), at the end of the item, add:

(6) Despite subitems (1) to (5), this item does not apply in relation to a thing done, or purported to be done, with respect to a New Zealand citizen and a special category visa (including the granting of such a visa to a New Zealand citizen).

The TEMPORARY CHAIR: The question is that the amendments be agreed to.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

Thank you, Senator Lambie, for talking to us about these amendments. We note your amendments, but the government will not be supporting them.

The Albanese government is taking a commonsense approach to visa cancellations, placing a priority on keeping the Australian people safe. This is a reasoned approach that appropriately deals with cancellation considerations for those who have lived almost their entire lives in Australia, which for some includes their formative years. The department will now also, importantly, consider the impact that a visa cancellation may have on children in Australia, and the limited connection that some may have to their country of citizenship. Where individuals pose a significant risk to the community, the Australian government will continue to cancel their visas and remove them. What we are looking at now is a commonsense approach for dealing with cancellation considerations for those who have lived almost their entire lives in Australia and who have limited connection to their country of citizenship. The new New Zealand Prime Minister, Mr Hipkins, has praised the Australian government for prioritising a commonsense approach.

As I've said previously, the Australian community has a reasonable expectation that noncitizens who seek to enter or remain in Australia are of good character and are law-abiding. Similarly, they expect any noncitizens who are not of good character to be refused a visa, or have any visa they hold cancelled. This bill does not change the framework within which the character test operates. Many of the other points I was going to make I have made already, so for those reasons we will be opposing the amendments moved by Senators Lambie and Tyrell.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

I just want to make this quite clear for those who are not quite sure what our amendments are. Our amendments make an exception for New Zealanders who have a special category visa. Anyone on a special category visa will not be subject to visa cancellation under this amended power. The minister says this is a simple bill, and so are these amendments. I've said it before: we need to protect our Anzacs. The minister said earlier that New Zealanders living in this country can get their visas cancelled on character grounds and he said they have an option to appeal that decision. How long do they get before they're deported? How do they get access to a lawyer? Why should they be cancelled at all?

What if they were brought here as a kid and have lived here for the last 30 years? They're not technically our citizens but they didn't become criminals on New Zealand's watch, it was on ours. We have a special bond with New Zealand and that's already recognised in our Migration Act. We should also treat our New Zealand neighbours with respect. The government talks up how we shouldn't worry about this bill, that it just returns things to how they used to be. But how things used to be was pretty ordinary, and now is the chance not just to take things back to how they used to be but to make them better than before. That's what we're supposed to do here, after all: if we can make something better then we do that. And if it means that we can have better diplomatic relations, especially with our Anzac counterparts, then we need to move heaven and earth to make sure those remain.

New Zealanders on a subclass 44 visa are often Australians in every way except for their citizenship status. They're part of our community, they've lived here for their whole lives and now they're are at risk of being sent to a country that they don't know from a bar of soap. This amendment to the bill stops that from happening. It's just common sense and it's good political relations with our New Zealander counterparts.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendments moved by Senator Lambie be agreed to. A division having been called and it being after 6.30, that will come forward for a division tomorrow.

(Quorum formed).

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

I move the amendment standing in my name and in the name of the Australian Greens on Sheet 1809:

(1) Page 7 (after line 33), at the end of the Bill, add:

Schedule 2 — Refusal or cancellation of visa on character grounds

Migration Act 1958

1 Subsection 501(2)

Omit "The Minister may", substitute "Subject to subsection (5A), the Minister may".

2 Subsection 501(3)

Omit "The Minister may", substitute "Subject to subsection (5A), the Minister may".

3 Subsection 501(3A)

Omit "The Minister must", substitute "Subject to subsection (5A), the Minister must".

4 After subsection 501(5)

Insert:

(5A) The Minister may not, under this section, cancel a visa that has been granted to a person if the person:

(a) has resided in Australia for a continuous period of at least 10 years; or

(b) arrived in Australia from overseas when the person was less than 10 years old.

5 After subsection 501(6)

Insert:

(6A) Conduct that was engaged in by a person when the person was less than 18 years old must not be taken into account in determining whether the person passes the character test.

This amendment will ensure children and people who for all intents and purposes are Australian cannot have their visas cancelled on character grounds. This amendment will achieve this aim by legislating that no-one who has lived in Australia for more than 10 years, was under the age of 10 when they migrated to Australia, arrived in Australia before the age of 10 or was under the age of 18 when they offended can have their visa cancelled on character grounds.

These new laws have led to thousands of people—over 6½ thousand since the Migration Amendment (Character and General Visa Cancellation) Bill 2014 was enacted—many who've lived most of their lives in Australia, having their visas cancelled. They've often been cancelled for minor offences like drink driving and after they have paid the penalty for those offences as imposed by the courts. These people often have histories of trauma or of disability. They are often refugees or stateless people. They are then sent either into detention or to countries they do not know and where they have no family or social support networks. These are punishments—for entire families, sometimes—that are unjust, that don't fit the crime and, frankly, that are un-Australian.

The character test laws have seen a disproportionate amount of New Zealanders deported from Australia. Close to 3,000 New Zealanders have been deported on character grounds within the last decade, when former immigration minister and now opposition leader, Mr Dutton, significantly broadened the scope of the character test under section 501 and introduced mandatory visa cancellations under section 501(3A). This is well over a third—in fact, it's nearly half—of all section 501 deportations to New Zealand.

Up until 1998, when the Howard government introduced a character test into section 501 of the Migration Act, any migrant who had spent 10 years or more in Australia was protected from deportation. A similar system that recognises time spent living in the country still operates to this very day in New Zealand. As former New Zealand prime minister Ms Ardern told former Prime Minister Morrison during her trip to Australia in 2019, while expressing what she described as her concern and disappointment with Australia's visa cancellations policy:

We have seen cases where there is almost no connection of an individual to New Zealand who has been deported … There are some examples that will not make any sense to a fair-minded person … I consider that to be a corrosive part of that policy. And it's having a corrosive effect on our relationship.

Colleagues, let's be clear about this: this is having a corrosive effect om Australia's relationship with New Zealand. New Zealand shares many, many cultural attributes with Australia. Many Australians would describe New Zealand as a sibling country to Australia, and yet, according to Ms Ardern, these matters are having a corrosive effect on our relationship. Prime Minister Ardern finished her comments with a request for Australia to 'send back Kiwis—genuine Kiwis—but do not deport your people and your problems.' With this amendment, that is exactly what we are attempting to address, and we call on the government to support it.

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

The Greens have moved a series of amendments that have previously been moved to this bill. The Australian community, as I've said throughout this debate, has a reasonable expectation that noncitizens who seek to enter or remain in Australia are of good character and are law-abiding. Similarly, they expect any noncitizens who are not of good character to be refused a visa or have any visa they hold cancelled. This bill does not change the framework within which the character test operates. It allows for the continued effective administration of the powers in the Migration Act by ensuring aggregate sentences are considered sentences, thereby restoring the ability to rely on substantial criminal record as an objective measure for the purpose of the character test. This government is taking urgent commonsense action in order to keep our community safe. We're not here to debate the broader character framework; we're here to clarify the powers in the Migration Act. For those reasons the government will be opposing the amendment moved by the Greens.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendment by the Australian Greens on sheet 1809 be agreed to.

Question negatived.

David Pocock (ACT, Independent) Share this | Link to this | Hansard source

I move amendment (1) on sheet 1811:

(1) Page 7 (after line 33), at the end of the Bill, add:

Schedule 2 — Character test

Migration Act 1958

1 After subsection 501(7)

Insert:

(7AA) Paragraphs (7)(c) and (d) do not apply in relation to the following:

(a) a person for whom a protection finding within the meaning of subsections 197C(4) to (7) has been made;

(b) a person in respect of whom Australia has non-refoulement obligations;

(c) a person who is stateless;

(d) a person who has arrived in Australia and has been granted a visa on humanitarian grounds.

Whilst I agree with what the minister is saying about the expectation of Australians, I do think that in this debate we need to be able to talk about getting that balance right. From reading this legislation, I wholeheartedly agree that the Australian community should be protected from people who have committed serious crimes, but, when we're dealing with a person who is a refugee or a stateless person, they don't have anywhere else to go, and indefinite immigration detention seems like a very heavy penalty for a crime that carries a 12-month sentence. Does the government have a plan to make sure that we aren't locking people up for years and years should their sentence come to 12 months?

Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

As I think you're aware, the government notes your amendments but will not be supporting them. I understand Minister Giles's office has had some engage with you about these issues already, and Minister Giles is certainly happy to engage with you separately on this bill as to how Australia can meet our international obligations in the way that you're seeking while maintaining the safety of the community. As I've said a number of times, this bill doesn't change the framework within which the character test operates. It really is a matter of clarifying powers which were always believed to exist in the Migration Act until that recent court decision. But we are happy to have some further engagement with you about this.

Linda Reynolds (WA, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendment be agreed to. A division is required. It being after 6.30, the division will be held tomorrow.

Progress reported.