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Wednesday, 16 November 1983
Page: 2774


Mr WEST (Minister for Immigration and Ethnic Affairs)(12.29) —I move:

That the amendment be disagreed to.

When I introduced the Migration Amendment Bill 1983 in May this year, I indicated that it was the Government's objective to remove the discrimination which existed in the Act against non-Commonwealth citizens liable for deportation because of crimes committed in Australia. This discrimination was tolerated, I am afraid, by our predecessors for many years. Section 13 of the current Act made an unacceptable distinction between immigrants, that is, permanent residents of Commonwealth origin and aliens, that is, permanent residents from other parts of the world.

Broadly speaking, the Act allowed the Minister to deport an alien, irrespective of the period of residence, upon conviction and sentence to prison for a year or longer. In similar circumstances immigrants-that is Commonwealth citizens-could not be deported after five years. Section 14 of the current Act also allowed the Minister for Immigration and Ethnic Affairs to order the deportation of an alien if he considered the conduct of that alien was such that he or she could not remain in Australia. Section 14 provided the same treatment for immigrants who had up to five years residence in Australia. This power under section 14 was extremely wide. It was an unacceptable power of ministerial discretion, and it is unacceptable to the Government. Section 14 also retains the severe discrimination agains immigrants and aliens which is inherent in section 13 of the current Act. When I look back upon the significant contributions made in this country by non-Commonwealth migrants I wonder why this blatant and savage discrimination has been tolerated for so long. I am pleased to note that the Opposition, both here and in the Senate, now agrees with the Government that this discrimination should now completely end.

This House accepted the Government's proposal to introduce a statutory liability period of 10 years aggregate residence in Australia beyond which time a non-citizen cannot be deported except for security related crimes. The 10-year period reflects the Government's belief that if a non-citizen has arrived legally in the country and has 10 years of lawful residence that person should not be subject to the possibility of deportation except for conviction of security related crimes under the Crimes Act. Under the current Act there have been many cases of long term residents, who have no affinity whatsoever with their home country, being subject to deportation for relatively minor breaches of the law. Worse still is the possibility of the inconsistent use of ministerial discretion. It was decided by the Government that 10 years was a reasonable period to limit the operation of the Minister's discretion as it fairly balanced the need to protect the community from the criminal acts of non- citizens against the fundamental human rights of these people after a lengthy period of lawful residence in Australia.

The Senate does not accept these arguments. The amendment passed by the Senate rejects the notion of immunity after 10 years lawful residence and gives to the Minister an added discretion to deport non-citizens if they are convicted of trafficking in dangerous drugs or sentenced to prison for a period of five years or more, irrespective of the period of residence. The Government does not accept this amendment and proposes that the Bill be returned unamended to the Senate. The Government believes the amendment is wrong in principle, legally imprecise and discriminatory in application. The Government shares the Opposition's concern to protect the community from drug traffickers and dangerous criminals. However, deportation should not be regarded as a second punishment imposed by the Minister as it could be if the Senate's amendment were accepted.


Mr Hodgman —Australian Mafia protection.


Mr WEST —The honourable member should listen to the technical arguments. The criminal justice system in Australia is well equipped to handle such matters. It is not unreasonable to believe that after 10 years or more of lawful residence a non-citizen has become a constituent member of the Australian community and as such should not be subject to deportation.


Mr Spender —That is not what the High Court says.


Mr WEST —Let me answer the honourable member in this way. Australia is a great migration country; it has been since 1788. We are a major receiver nation of migrants. As such we should be developing a mature and tolerant attitude to migrants when they take permanent residence in Australia, short of citizenship. We take pride in advocating that we are a multicultural society. Besides the benefits there may be some disadvantages. In this situation should we expect to deport all of our undesirables regardless of how long they have been in Australia? Should a nation of origin be expected to accept that position? Does it not have some rights in the matter?

I will give honourable members an example. Take a person who arrived in Australia legally as a permanent resident at the age of seven or eight years. He has been educated here; he has been moulded here; he has worked here; and his character and attitude on life has been moulded by Australian concepts and ideals. After, say, 20 or 30 years, under the Senate's amendment, he would still be liable for deportation for certain offences and convictions. Is not the nation of origin from whence he came entitled to object to this procedure? Can we have the benefits both ways? Should we say to a person from Britain, Italy, Greece or any other nation who has been absent from his country of origin and has been a migrant living in Australia for say, 20, 30 or 40 years: Because you have been convicted of some crime in Australia your country of origin should mildly and meekly take you back because after all those years we have suddenly decided that we do not want you? What sort of a migration policy is that? It is not acceptable. In my view, it is not acceptable to other countries and it is not acceptable to this labor Government.

It has been claimed in the Senate that the 10-year immunity rule has been instigated out of some misplaced civil libertarian view held by me alone. The opinion has been expressed that:

The Minister has always had the ability to properly weigh up the situation, take advice, hear directly the views of the person to be deported and make a judgment that takes into consideration the rights of that individual and his family. He has been able to weigh up the individual's civil liberties against the offence and make a judgment . . .

I have just quoted Senator Teague. The experience of my last nine months in office tells me otherwise. Indeed, the very existence of the Administrative Appeals Tribunal and the immigration review panel indicates that administrative decisions made privately and for undisclosed reasons are not in the best interests of an enlightened society. I do not disparage the good intentions of past Ministers but it must be accepted that the mere election to public office does not, of itself, guarantee enlightened and just decision making.

The Senate proposal is also wrong in principle; it is also legally imprecise. It is a matter of record that Senator Missen, an enlightened senator of the Opposition, referred to it as a very sloppy amendment. The Opposition proposes to insert in the Act the new clause concerning deportation for security related offences. Clearly it is in the wrong place. It is proposed that it be inserted under clause 11 of the Bill which seeks to amend section 14 as I said earlier at the Committee stage when first dealing with the Bill. New section 14 deals only with security related crime and replaces the current section 14 in the Act which allows for deportation on conduct. It relates to possible security breaches and also to security matters.

Let me say without being too disparaging that the Opposition in the Senate could not even place the amendment in the correct context and section of the Bill, that is, in clause 10 which relates to sections 12 and 13 of the current Act dealing with criminal deportation. It has been suggested that it be placed in the clause of the Bill relating to security deportation. That is mainly a technical matter. If there were not these other reasons I could have accepted it there and placed it in its right context. However, as I said there are other reasons. For instance, the amendment gives no indication as to what constitutes trafficking in dangerous drugs. The laws of the States vary widely on this point and it would be unreasonable to expect the Minister to impose his arbitrary view in the exercise of his discretion as to what is to constitute trafficking in dangerous drugs. Neither the Senate nor the Opposition has attempted to clarify this matter. As a consequence it would be irresponsible for this House to accede to the amendment on that ground alone. I will again quote Senator Missen. In the Senate debate he said:

. . . this amendment seems to be very vague. I think there are problems with the amendment. It seems to have been drafted somewhat on the run . . .

I will say it was. Neither the Senate nor the Opposition could place it in the proper context of the Bill. The amendment is also discriminatory in its application. The Senate amendment places non-citizens convicted of trafficking in dangerous drugs who receive a light prison sentence or even a suspended sentence in exactly the same situation as a non-citizen convicted of, say, murder or rape, who receives a life sentence. The gravity of the crime can be determined only by a court, and it is reasonable to regard the length of sentence as being indicative of the court's view. The Government cannot accept an amendment which allows such an anomaly, for where the law creates anomalies, ministerial discretion has the potential to exacerbate those anomalies.

I wish to make one other observation and then to predict what the Government intends to do with the Migration Act. The Migration Amendment Bill has been considered by the Senate Standing Committee for the Scrutiny of Bills. The comments made by that Committee deserve consideration. I assure this chamber that they will receive consideration following a further review of the Act after receipt of the Human Rights Commission report on the Act. At this stage I can only really express surprise that the Senate has not seen fit to take up any of the points raised by its own Standing Committee. For instance, I do have reason to expect that the Senate will now pass this Bill. I note, and I sincerely hope, that that is so.

I note the complaints made in speeches in the Senate during the debate. I note the complaints made by Senator Martin. To an extent they had some validity. Let me explain. The sections relating to the Crimes Act, that is, sections 24, 24AA, 24AB, 24C, 25, 26, 6, 7 and 86 (1), were included as security related offences in the Bill, conviction on which would render a person always deportable. It was said: Why include all those sections of the Crimes Act and leave out sections 78 and 81 which relate to espionage offences? I simply express surprise that seeing Opposition senators had the numbers during this debate, and if they felt this matter was important, they did not send it here as an amendment. I would have been inclined to accept it if they had, but they did not; they left it out. The Opposition did not seek to amend clause 11 (2) (c) of the Bill.

I am led to believe, and honourable members should listen so that they will understand perfectly when they make their contribution, that I am not now in a position to amend the Bill further. I say this: A further review of this Act will occur after the Human Rights Commission, which is currently receiving submissions in Melbourne, delivers its report to this Parliament. I will consider again clause 11 (2) and consider including espionage related crimes as grounds for permanent deportation. However, there is a further problem in relating permanent liability for deportation on security grounds to actual conviction under the Crimes Act; that is, the Crimes Act is also, in my view, in dire need of review. Indeed, it has been pointed out by members of the Opposition that many offences in the current Crimes Act are now virtually obsolete. There have never been any convictions for any offences as far as we know. So there is a problem there. I think it relates not only to our problems in relating conviction under the Crimes Act as a ground for permament liablity for deportation, which is a problem, but also there is a problem--


Mr Hodgman —Why do you not just abolish deportation completely?


Mr WEST —I am telling the honourable member that I believe there is a problem with the Crimes Act because of the obsolete nature of some of the described offences. I do believe that the Migration Act can be amended on these issues, probably before and/or after any future changes to the Crimes Act. In other words, it has to be a continuing, evolving thing. There is nothing firm or concrete about law; it should respond to the conditions of the day.


The DEPUTY CHAIRMAN (Mrs Darling) —Order! It being 12.45 p.m., in accordance with sessional order 101A, I shall report progress.

Progress reported.


Madam DEPUTY SPEAKER (Mrs Child) —It being 12.45 p.m., the House may, at a later hour this day, again resolve itself into a Committee of the Whole.

Sitting suspended from 12.46 to 2 p.m.