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Monday, 30 May 2011
Page: 5041

Mr MORRISON (Cook) (16:31): As I rise to speak on the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011, I reflect on the fact that this bill has been introduced by the Minister for Immigration and Citizenship following the riots that occurred at Christmas Island and Villawood detention centres. We all know that there are around 6,800 people in the detention network in Australia—up from just four people who had arrived illegally by boat when we left office. The reason for that is that so many boats have come. I do not think we can pass much further today without noting that yet another boat has arrived, as advised by the Minister for Home Affairs in a press release today—a boat containing 52 passengers and four crew. That is the fourth boat to have arrived since the government announced its people swap deal with Malaysia. Over 150 people have been found coming to Australia since that deal was announced. The government is quickly drawing down on what I call its asylum deal credit card with Malaysia, and it has not even completed that deal. The five-for-one people swap with Malaysia was a proposal conceived in denial and negotiated in desperation. The situation now is completely unclear. Confusion reigns, and it is clear that people smugglers are not buying the Prime Minister's bluff about a deal that is yet to be concluded and about which question marks are raised almost every day, not just from a human rights perspective but particularly from a human rights perspective.

The bill before us today deals with changes to the character test. This bill makes it clear that, from the date of commencement, a person will fail the character test under section 501 of the Migration Act if they have been convicted of an offence committed in immigration detention, during an escape from immigration detention, during a period where a person has escaped from immigration detention or if a person has been convicted of the offence of escaping from immigration detention, whether the conviction or offence occurred before, on or after that commencement. Where a person does not pass the character test because of any of the provisions in section 501, which go well beyond criminal conduct, the minister or his delegate has the power to refuse, grant or cancel a visa on these new character grounds. The amendments would apply only to persons who have been convicted of an offence by a court under the specific criminal conduct provisions that are being introduced in this bill. They would not apply to a person who is charged with an offence or offences but is not convicted. There must be at least one conviction for the amendments to sections 500A and 501 to apply. The coalition will provide some support to this bill, but we will seek to make an important amendment, which I will return to later in my remarks.

This measure was announced after the Villawood riots, but prior to that there were some serious riots on Christmas Island. On that occasion, the Minister for Immigration and Citizenship made some remarks, to which I will draw the attention of the House. I refer firstly to a statement made on 18 March. The minister gave a press conference with, I believe, the Australian Federal Police, at which he said:

Character can have regard to a number of factors: whether somebody has been sentenced for a criminal activity to prison for more than 12 months, and also general conduct and whether somebody’s general conduct implies that they are not of good character … character considerations will be taken into account for those on Christmas Island who have organised and perpetrated this sort of activity. It will be taken into account by our decision makers and ultimately by me.

This was the strong boast from the minister in the wake of the Christmas Island riots, where the Australian Federal Police had to retake the facility by force. They had lost control of the facility, it was in the hands of the detainees, and a pitched battle was waged in that detention centre on Christmas Island.

Mr Perrett: A pitched battle!

Mr MORRISON: I notice the member opposite interjects. I do not know if he has been to Christmas Island, but I have been to Christmas Island and I was there with the Immigration officials and Serco officers who were there that night. They described to the Leader of the Opposition and me the events that took place there—and it was a pitched battle. Bean bag rounds were shot into those who were in the detention centre. The member opposite may be in denial, like the rest of his government when it comes to these matters, but a pitched battle was fought and had to be won. The centre had to be retaken because of the riots going on. It is extraordinary that those opposite would want to enter into a debate about what happened on Christmas Island when they know exactly what happened there—it was an absolute disgrace. Also, having made it very clear that character considerations would be taken into account and that there were general conduct provisions as well as criminal conduct provisions, the minister was asked on 21 March by Lyndal Curtis:

You've said that you'll take into account the character test when you're considering whether those protesters should be granted asylum in Australia. Is that still the position? Have you made any more decisions on that?

The minister answered:

No, the decision, as I outlined last week, is that the Migration Act allows for character issues to be taken into account; that can take into account whether somebody is sentenced to a jail term for 12 months or more, also more general character considerations can be taken into account.

He thundered on:

But whatever people's frustrations, there is no excuse for violent behaviour. It is simply unacceptable and it is appropriate that the character test be taken into account.

I could not agree more with the minister. On 22 March he said:

I've said on a case by case basis I'll be taking the character concerns into very serious consideration.


I will abide by the Act, but what I have indicated is that the character provisions of the Act allow me or my delegate to take into account prison terms and also general conduct. I will be taking that into account and examining it very seriously.

Section 501(6)(c)(ii) of the Migration Act allows the minister to cancel or refuse a person's visa on the basis of a 'person's past and present general conduct.' This is completely unrelated to section 501(6)(c)(i) which allows the minister to cancel or refuse a person's visa on the basis of criminal conduct which resulted in a custodial sentence of more than 12 months. The government has deliberately, I believe, tried to blur these two provisions. The minister may also personally make a decision to cancel a visa pursuant to section 501(3) and in such a case the decision is not subject to the rules of natural justice nor is it viewable on its merits. Also, the minister is not bound in Australian law by any of the matters set out in ministerial directions that are provided when a decision is delegated. Where a decision has been made by a delegate or the AAT not to cancel a visa, section 501(A) of the Migration Act grants power to the minister to set aside the decision of a delegate or the AAT not to exercise the power in section 501(2) to cancel a visa. The minister personally exercises this power to set aside the original decision not to cancel a visa and to substitute it with a decision to cancel a visa. Further, the rules of natural justice do not apply to such a decision nor is it reviewable on its merits.

The minister has tried to put forward that this bill is necessary to enable him to act as he said he was going to act after the Christmas Island riots. He said the general character provisions would be taken into account and he would be making these decisions. In Senate estimates last week the Secretary of the Department of Immigration and Citizenship confirmed that the minister had sought advice prior to his press conference where he made those announcements about the operation of the general conduct provisions. So the minister had been advised by the secretary when he went to the podium and said very boldly that the general character provisions would be applied. While he has expressed some frustration at using the powers under the act, we find no amendments in this bill to the general character powers that sit under the act—none whatsoever. He has made some changes to the criminal provisions—he is right to do so—but he has made no changes to the general provisions. From that, I understand this minister has no problem with the general conduct provisions in the act. If he believed they needed strengthening and if he believed they were inadequate he would have brought a bill into this House which sought to strengthen the general character provisions in this act, but he has not done so. He has sought to amend an entirely different set of grounds.

This leaves me wondering about the motive behind what we see here today. While there can be some improvement in what the minister has put forward in this bill, it does not offer an excuse for not acting as he said he would. The minister is seeking to perform a ruse here, 'The reason I could not act was that the act was too weak.' He made a bold proclamation after being advised by his department. He was very specific about his reference to the general conduct provision and yet he has made no changes to the general conduct provision in the bill we see before us today. So, by all means, change the criminal conduct provisions, but do not try to put one over people by saying that this was necessary, because he was not prepared to use the general conduct provisions.

I remember at the time that the minister gave the excuse, 'Well, it could be reviewed judicially by the Federal Court.' Well, it might be, but if we did not make a decision in this country every time it might be reviewed by a court we would never make any decisions. Maybe that is the government's plan here because they certainly have not made too many positive decisions in this area for the last 2½ years, other than to wind back the coalition's strong border protection regime and we all know the consequences of that decision. We are in a situation where the minister has sought to make these changes, but he has not provided an explanation about why he has not used the general conduct provisions that were available to him before and after the Christmas Island riots. He has only sought to make amendments in these areas.

I also note that this bill has come forward not after the Christmas Island riots but after the Villawood riots. I am not sure how many riots it takes for the minister to get the point, but it would seem that it took at least two major riots where buildings were burnt to the ground. As I mentioned earlier in the House, the series of incidents, riots and various other activities that have taken place in our detention centres are symptomatic of a rolling crisis. So the government was forced to introduce this bill we see before us only after it saw those further riots. I can say that because in Senate estimates it was revealed that the advice on changing this bill was provided, as the secretary indicated, over the Easter weekend of 22 to 25 April. The riots at Villawood took place on 21 and 22 April, and let us not forget that the riots on Christmas Island took place on 12 March, and here we are debating this bill today. I am not fooled and the Australian people are not fooled by what is happening here. By all means, change the provisions if you think it will improve them, and there are some amendments that will improve things and we will seek to amend elements of those, but at the same time this minister has refused to act. Where has he refused to act?

We all know the tragic story of SIEV36. That happened under the jurisdiction of the previous Minister for Immigration and Citizenship, Senator Evans. He finally has stopped some boats, but he has stopped the wrong ones, in the wrong portfolio. The boats happen to be on our wharves, it would seem. That minister, when he was dealing with SIEV36, did not take action against the individuals who were specifically found by the Northern Territory Coroner—by an independent inquiry—to have been part of the plan to scuttle the boat. That incident resulted in the deaths of five people. It resulted in putting the lives of Australian Defence Force personnel at risk.

That minister, Senator Evans, chose not to act. He chose not to use the general conduct provisions that are available in section 501 of the act and he decided to sit. He decided to sit and sit and sit for his entire term as minister for immigration and thought his greatest failing was his inability to control the debate, not that he had allowed thousands upon thousands of people to arrive in boat after boat after boat while watching our detention centre spiral into chaos. He did not think that was his greatest failing; he thought his greatest failing was that he could not control the debate. I do not think that reflects well on that minister and nor does his failure to take action on those involved in the scuttling of the SIEV36. They walk around in Australia today with permanent visas. These are people who the government believes are of good character, who pass the character test and should be given a permanent visa for stay in Australia.

The other riot occurred in late 2009 on Christmas Island and involved some 150 Afghans and Sri Lankans. People were taken to hospital and people were medivaced to Perth. That was a very serious incident. At the time, 11 people were charged. In November last year three were convicted of an offence, and this minister did nothing. It was on his watch that they were convicted, in November 2010 as reported. This minister had the opportunity at that time to ask for a brief to be prepared on these individuals and on how he could take action to deny visas to the people convicted of these offences. Nothing happened. They walk around today on permanent visas, as was confirmed to us by the minister himself in this place.

We are in a situation whereby we have a minister who is a serial offender when it comes to not taking action, whether it be on those who rioted on Christmas Island in 2009, whether it be on those who rioted on Christmas Island in 2011 or whether it be on those in Villawood who rioted. We even had several of them up on the roof. We learnt last week that the Deputy Secretary of the Department of Immigration and Citizenship was sent in to a roof cavity at Villawood to directly negotiate with those who were protesting and that they were told in the course of those days that if they came down they would not be sent to Silverwater prison, when so many others were sent to Silverwater prison. Not all of those who were sent to Silverwater prison were charged, and not everyone who sat on that roof would necessarily have been charged, but 22 were removed and their concern was that they would be sent to Silverwater prison. They were told that they would not be going to Silverwater prison immediately; ultimately they might be, but if they came down they certainly would not be going there on that day.

We had the bizarre spectacle of the deputy secretary of the department going up there. I feel for the deputy secretary. I think it is a shame and a disgrace that the good officers of the Department of Immigration and Citizenship have been forced into these bizarre scenarios, having to mop up the mess of an incompetent government with failed policies. We had the deputy secretary standing on a box in a room, peering into a roof cavity, negotiating with detainees who were protesting on a roof and several days earlier, I am advised, had been throwing things at fire brigade officers. That is what it has come to.

How does this happen? It happens when you have a government that runs an operation in our detention network that is all carrot and no stick. We have complaint after complaint from those working in this detention network—people working for Serco and at other places—who are being abused, who are being attacked and who are having threats made against their life and their person. There was a case just the other week of someone who had boiling water thrown over them at Christmas Island. It was described to the media by someone in the department as a 'minor incident'. We know it was not a minor incident; we know it was a critical incident. And we know that in our detention network today, on average, more than three critical incidents occur every single day. If that does not demand an inquiry I do not know what does.

I am pleased that in this House this morning we had the opportunity to debate a motion for such an inquiry. Those terms of reference as amended now stand before this House and should be voted on on 16 June in accordance with the normal standing procedure of this House. So there is the opportunity for this House to take up that offer and to look deeply into these matters, to look at what is happening, to consider all the evidence before it, to take evidence in camera, to take evidence from those who are involved in the operations of the system and to get to the heart of why this system has collapsed under the weight of the failed policies of this government.

The form continues. The minister—who was so worked up and so concerned about the state of the detention facility that he was going to use the general character test over and over again but is yet to use it in these types of matters—inherited something else from Senator Evans, other than the mess he is now dealing with, and that is direction 41. Direction 41 was issued by Minister Evans in June 2009 and is an instruction, given under section 499 of the Migration Act, which provides direction to delegates on how they make decisions on section 501. This directive replaced a directive called directive 21, which was instituted by the now Father of the House and the then minister for immigration, the member for Berowra. That directive provided for the following: that the three primary mandated considerations 'for determining whether discretion should be used under section 501 to deny a non-citizen from remaining as Australia' were as follows—these were the Ruddock tests, the coalition tests:

(1) Protection of the Australian community and members of the community;

(2) The expectations of the Australian community and;

(3) The best interests of the child, or children, where they are involved.

Now, specifically, the expectations of the Australian community in deciding whether a behaviour is abhorrent and of bad character has been removed by this government since June 2009. The community expectation—the community standard test, if you like—has been abolished by this government. That standard said the following, under 2.12 of the old directive:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is significant risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to refuse the visa application or cancel the visa held by such a person. Visa refusal or cancellation and removal of the non-citizen may be appropriate simply because the nature of the character, concerns or offences are such that the Australian community would expect that the person would not be granted a visa or should be removed from Australia. Decision makers should have due regard to the government's view in this respect.

That community standards test was abolished by this government, and it is not for returning. It is not for returning, according to the government—they are not interested in having a community standard test on behaviour and what Australians think is appropriate behaviour. And it does not only apply to detention centres; it applies to everyone who is here on a visa. Let us be clear: someone who is here on a visa, in Australia, is a guest of this nation. They are here under specific terms and conditions. They are protected by the various international conventions and treaties that we are signatories of, but they are also guests in our country. And in our country they are expected to abide by our rules, by our laws and by our standards of behaviour—all of them. When they do not, this act provides for remedies to be applied by the minister. And the previous coalition government specifically said, when making those decisions, you need to give consideration to what community standards and expectations are—and this government have abolished those standards, they have abolished that test. I think that is a great shame, and we urge the government to reconsider this matter. If the minister is serious about strengthening the character provisions, as he has boldly titled his bill, then he should reintroduce directive 21, he should re-establish the community expectations test, and that should be something of a matter of importance.

The other thing that was in the previous directive of the former coalition government was that it said in paragraph 224:

… notwithstanding international obligations, the power to refuse or cancel must inherently remain a fundamental exercise of Australian sovereignty. The responsibility to determine who should be allowed to enter or remain in Australia in the interests of the Australian community ultimately lies with the discretion of the responsible minister.

This provision was also removed. Australia's interests were subordinated to those interests beyond our shores, in the removal of this provision. While they may have been considered, they did not enjoy the standing of consideration that was made possible by the previous directive 21.

So we have form from this government, who are not interested in seriously addressing the issues that sit within our detention network. They can bring these measures into this House, but what they need to address is what is happening within our detention centres as we speak today—and, as we speak today, it is all carrot and no stick; as we speak today, we have people working in those centres who are being abused on a daily basis, without any enforceable code of conduct that enables them to deal with disorder in the centre. Those who get up on a roof, come down from the roof and life continues as normal. That is what happens under the Gillard-Bowen plan for running our detention network. Is it any wonder that it is in such a mess?

I want to turn finally to the provision and its application. While the coalition is supportive of the bill and how it is put forward, we do not think it goes far enough. It does not go far enough in these two areas. Firstly, the bill will only apply to the misconduct and criminal conduct of people either in a detention centre or who should have been in a detention centre but who have escaped. What that says, to all of those Australians, who live all around the country, is that if there is someone here on a visa and they commit an offence—they assault you or do something of that nature; they thump you over the head, or whatever it may be—and they get a sentence of less than 12 months, they will not fall foul of this provision; but if it happens in a detention centre then they will fall foul of that provision. So it is okay for someone to whack someone over the head down at Northies, or down at the Coogee Bay Hotel in Sydney, and get a conviction of less than 12 months, and they can go on their merry way with their visas not addressed in any way, shape or form, and the minister just scurries away again and says, 'Well, it's less than 12 months; there's nothing I can do—my hands are tied.' We know this minister will not use the general conduct provisions; he has already proved that.

On behalf of the coalition I foreshadow that I will be moving an amendment, circulated in my name, that will do the following: ensure that these provisions apply to all visa holders—not just those who are in detention. There should be one rule on one side of the fence and on the other side of the fence. Too often we have seen the inequity, going both ways, in terms of one rule for some and a different rule for others from this government. What the coalition believes is, if you want to change these provisions, if you want to toughen the test, then you have to be fair dinkum about it—do not just apply it to detention centres; apply it to all of those who are on visas here if you are concerned, and the coalition would be concerned. So we are prepared to put forward that amendment, and we would seek support for that amendment from this House.

The reason that they will not support the amendment is that they want to use this as some sort of leverage against bad behaviour in detention centres by, in effect, those who fall foul of these provisions being given a temporary protection visa. Does that ring a bell? They will not call it that. They will call it something like a 'non-permanent visa' or something like that, but what it will be is a TPV—that is what it will be. On this side of the House we think people convicted of crimes, who fail to satisfy the character test, should not be given a visa. That is what we think. We do not think they should get a visa, permanent , temporary or otherwise. If you have violated the behaviour, code, laws and standards of this country then it is no visa for you. You are not welcome in a country where you are going to violate and abuse those rules. So, the same practice and provisions that are applied for those who fail the ASIO security tests should be applied for those who fail the character test and are denied a visa. We put that before the government.

The government likes to say that TPVs will be effective in discouraging bad behaviour in the detention network, but they think they will have no impact on discouraging someone from getting on a boat. The hypocrisy of the argument is laid bare. It does not even need the 50 seconds I have remaining to make the point, because the government inches painfully closer every day to the provisions that were put in place by the Howard government. It is taking them far too long to get there. It is important that this government starts to wise up, move ahead and get to the policies that worked last time. Stop all this mucking around with all these ridiculous deals, none of which ever seem to land. Stop talking to countries that are not interested and not talking to ones that are, like Nauru, and get on with the job of stopping the boats and ensuring that our detention network does not continue to fill up and create the chaos that has occurred as a result of the government's mismanagement.