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Monday, 30 May 2011
Page: 5068


Mrs MOYLAN (Pearce) (18:30): The Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011 purports to strengthen legislation so that following a court conviction leading to a custodial sentence of less than 12 months the minister will have the power to refuse to grant a visa to a person or may cancel a person's visa if they do not satisfy the minister that they pass the character test. There is a similar amendment relating to section 500, which concerns temporary safe haven visas. The explanatory memorandum states that 'the changes are, in part, in response to the criminal behaviour during the recent disturbances at the Christmas Island and Villawood immigration detention centres which caused substantial damage to Commonwealth property' and in response to the 'violent, destructive and criminal behaviour which has been occurring in immigration detention'.

Lest my intentions be misconstrued or misunderstood, I do not in any way condone violent and destructive behaviour in detention centres, or in any other place for that matter. Those who break the law should clearly be charged, convicted and sentenced according to the law. However, in considering this legislation we must ask the questions: are these amendments warranted; are the remedies proportionate to the crime in cases where a sentence for criminal behaviour is less than 12 months; and should we be supporting the retrospective element of this amendment bill? The starting date for the new ministerial powers is 26 April 2011, a date that has passed. The retrospective element lies in the new provisions under section 501(6), which will apply to individuals convicted of an offence before or after that date. The bill, in clause 501(6)(aa), provides an additional ground on which a person will not pass the character test: if the person was convicted of an offence committed while in immigration detention, during an escape or while on the run before being detained again and is convicted and jailed for less than 12 months.

Although it has been argued that in some cases retrospective laws have a place in law making, retrospective laws have been widely condemned in cases of criminal law. The difficulty in this case, though, is that it is not the criminal law that is retrospectively applied; rather it is the operation of section 501(6) following a criminal conviction, no matter how minor, which may apply retrospectively. Previously the character test specified a number of grounds or criteria of assessment—for example, 501(6)(a), that a person has a 'substantial criminal record'. A 'substantial criminal record' is defined under 501(7)(c) mainly in terms of the severity of a sentence: that a person was sentenced to a term of imprisonment of 12 months or more.

The stated reason for this additional ground is that the current provisions specifying a minimum sentence of 12 months imprisonment are inadequate. According to the explanatory memorandum, the current provision 'imposes a significant limitation on the ability of the minister to appropriately respond to the violent, destructive and criminal behaviour which has been occurring in immigration detention'. That statement comes directly out of the explanatory memorandum. Under this new provision, and again I quote:

It does not matter what penalty is imposed by a court as a result of the conviction. This creates a clear and objective basis for a person to fail the character test.

The other question we should ask in this place is: is the new provision necessary? In a discussion with David Manne, the executive director and senior solicitor for the Refugee and Immigration Legal Centre, he said that, contrary to the assertion of the explanatory memorandum, the minister's ability to respond appropriately to recent conduct involving 'violence' and 'destruction' is not confined to the ground of 'substantial criminal record' with the threshold of a sentence of imprisonment for 12 months or more. The Migration Act contains further grounds for the character test which include 'the person's past and present criminal conduct' and 'the person's past and present general conduct'. I thank David Manne for his assistance in looking at some of the worst elements of this bill.

The Refugee Council of Australia also made this comment in a recent press release:

Presently, and even in his own words, the Minister for Immigration has 'very extensive' powers to deal with people in detention convicted of a crime, including criminal damage. There is no need to bolster these powers with legislation that could see them widened to include refugees who commit more minor offences while in the pressure cooker environment of long-term detention. Our concern is that a refugee who commits one misdemeanour could be denied protection and unity with his or her family for life.

In 2009 the minister for immigration issued a direction under section 499 of the Migration Act providing direction to decision makers with respect to section 501. It outlines a number of factors for decision makers to consider in determining whether a person is not of good character on the basis of criminal conduct and they include 'the nature, severity and frequency of the offence/s'. The factors do not include the penalty imposed by a court. The explanatory memorandum's statement that the new provision 'creates an objective basis for a person to fail the character test' implies that the limitation in the definition of substantial criminal record—a sentence of imprisonment of 12 months or more—which is asserted to constrain the appropriate response of the minister is not objective. That is not the case.

We must also ask ourselves: is the new provision proportionate to the problem it seeks to address? The explanatory memorandum states that 'the changes are, in part, a response to the criminal behaviour during the recent disturbances at the Christmas Island and Villawood immigration detention centres which caused substantial damage to Commonwealth property' and a response 'to the violent, destructive and criminal behaviour which has been occurring in immigration detention'. Again, these are direct quotes from the explanatory memorandum. According to the explanatory memorandum:

… it is intended by the Government to ensure that any conviction for an offence of the kind covered by this Bill results in the person automatically failing to pass the character test.

However, the amendments do not specify any particular kind of offence and are not limited to 'violent' and 'destructive' conduct. A person who is convicted of any offence committed while in immigration detention, including minors in community detention, will not pass the character test. Offences someone detained in the community might commit include jay-walking, public drunkenness, not having a ticket on public transport, placing graffiti without consent and begging. My goodness me, if we applied this to the general community we might have a few problems.

Proponents of the bill may argue that the minister would only refuse to grant a visa in the case of very 'serious' offences, as intended—so trust the minister to exercise the greatly expanded power with proper discretion. However, it is reasonable to anticipate that, given the widespread hostility to people in detention who have committed serious offences, decision makers may feel under pressure to deny granting visas to people presumptively determined as of bad character for committing a wider range of acts other than the violence and destruction that was the reason for this bill's existence.

In a speech in the parliament this morning on the Morrison motion to establish a House of Representatives committee to examine all elements of detention centres, I called for the discontinuance of the indefinite, arbitrary detention system and I am going to repeat some of that. Of course if you overcrowd prison systems there is bound to be trouble. That is not an excuse for some of the criminal behaviour we have witnessed recently in detention centres, but it is a fact. As I said this morning, the issue of indefinite, arbitrary mandatory detention for asylum seekers has been much debated and much criticised since it was first implemented by the Labor government in 1992. It is a negative and punitive system of dealing with those who come to our shores seeking asylum. Apart from the all-too-apparent negative effects on people incarcerated in detention prisons, the system is administratively demanding and very costly.

The original intention when mandatory detention was introduced by the Labor government was to act as a deterrent to those seeking to come to our shores. Originally, it was aimed at a very small number of people arriving by boat. Yet 10 years after the implementation of the policy there were 5,000 boat arrivals. Similarly the policy of temporary protection visas was introduced as a deterrent. In the five years prior to temporary protection visas being introduced, there were 3,103 boat arrivals. In the five years following the introduction of temporary protection visas there were over 11,000 arrivals.

It is time we looked at these policies in the cold light of day and worked toward a durable solution to the problem of people fleeing the threat of death or oppression in their own countries. In 2001 to 2005, some of us in this place worked toward hard-won changes which were made to the system of mandatory detention and implemented. Then the new Labor government came into government on the promise of its New Directions in Detention policy, a seven-point plan. The government acknowledged that 'detention that is indefinite or otherwise arbitrary is not acceptable'. The Refugee Council recently put out a press release highlighting the 1,412 per cent increase in the number of asylum seekers who have now been in detention for more than six months. That figure is an increase over the last 12 months. The government has failed to implement its own New Directions in Detention and, according to the most recent Australian Human Rights Commission report, 2011: Immigration detention at Villawood, thousands of people, including over 1,000 children, remain in these prisons. It is no wonder that there is trouble. More than half of those people have been detained for longer than six months, and more than 750 people have been detained for longer than a year.

As I said in a speech in this House in 2006, the stranger who stumbles upon our shores has a claim on both our conscience and our patriotism and, when he or she arrives with credentials uncontaminated by smugglers and pleading a case, that at very least is worthy of a fair hearing. The qualities that constitute fairness are not those that visit unmitigated sequestration and inhumanity upon the stranger. I put it to you, Mr Deputy Speaker, that this indefinite, arbitrary migration detention centre policy is inhumane and that there has been plenty of evidence, in report after report from many different agencies, to highlight the terrible harm that this system is doing to individuals, particularly to children. We should be working much harder in this place to find durable solutions and to separate out those two issues, the one of people fleeing from persecution and possible death and the other of how we treat people once they come to our shores seeking our protection. This amending legislation is a sloppy attempt to continue to paper over the cracks of a cruel system of indefinite, arbitrary mandatory detention for people who have never committed any crime.