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Thursday, 9 February 2017
Page: 471


Senator McKIM (Tasmania) (13:49): I rise to speak on the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016. It is worth pointing out to the Senate and to people watching and listening that this is the third time these amendments have been before the parliament, which means it is the third time that the government has had the opportunity to listen to the concerns of the Australian people about this legislation.

I want to start by going back and looking at the history of the character cancellation provisions that the Abbott-Turnbull governments have introduced. Back in 2014, the government brought in the Migration Amendment (Character and General Visa Cancellation) Act 2014, known as the character act. This act introduced new powers to refuse or cancel visas on character grounds. It meant that a person's visa would automatically be cancelled if, among other things, the person was imprisoned for a sentence of 12 months or more or was convicted of a sexual offence involving a child. Significant concerns were raised at the time by organisations like the Refugee Council of Australia and the Asylum Seeker Resource Centre. As with this bill, inquiry submissions were vastly, overwhelmingly, opposed to the changes.

These groups raised very legitimate concerns. They said the character act considerably increased the risk of indefinite detention because people found to be refugees cannot be returned to their country of origin. They criticised the mandatory nature of visa cancellation powers, which decreased the capacity of the system to consider the individual circumstances of a case. They said the lower thresholds for cancellation would trigger visa cancellations, even in the absence of a real risk to the community. In effect, they said the character act would unfairly expel vulnerable people from Australia without procedural fairness. They said we would see an increase in the number of people being deported.

Well, who would have thunk it—they were absolutely right! There has been a dramatic rise in the number of visa cancellations and consequent detentions. This includes, of course, refugees and asylum seekers who are now facing the prospect of indefinite detention, as they cannot be removed.

It is worth putting the figures on the record here. In 2010-11, there were 132 visa cancellations on character grounds. In 2013-14, there were 76 cancellations. In 2014-15, the year in which the character act was introduced, there were 580 visa cancellations on character grounds. In 2015-16, there were 983 visa cancellations on character grounds. That is an absolutely staggering 644 per cent increase in cancellations from 2010-11—a 644 per cent increase in five years! It is worth pointing out that the figures were trending down until 2014-15, when the character act was introduced, when they absolutely ballooned, going in one year from 76 to 580, and then in the subsequent year, the last year for which we have figures, 983—a staggering increase. Yet, before the commencement of the character act, the Department of Immigration and Border Protection stated in an answer to a question at Senate estimates:

The proposed amendments are not designed to necessarily result in large increases in the number of people whose visa applications … are cancelled.

The department was wrong. What is happening is that, because this is being administered by the incompetent, bumbling, shambolic minister for immigration, Minister Dutton, who is making these determinations inside his own head—and what a messy, dark place that must be—we have seen this explosion in the number of visas which have been cancelled on character grounds.

Just who are the people—our fellow human beings—who are being subjected to these visa cancellations? According to the Refugee Council of Australia, some of these visa cancellations have occurred despite significant histories of psychiatric illness, disabilities or statelessness. People have had their visas cancelled on character grounds for offences like drink-driving—a completely disproportionate punishment. They lack free legal advice or representation when faced with the cancellation of their visa. I just want senators to think about this for a minute. People have had their visas cancelled on character grounds because they have been convicted of drink-driving. Yet, as we heard yesterday from the government, including government ministers when they were asked about the Greens proposal—and in my speech on the second reading, I will move, 'that the Senate agree that the parliament should have the power to refuse visas to foreign heads of state on character grounds'—they think US President Donald Trump is of an acceptable character to visit Australia. So I pose the question: if the minister for immigration, Minister Dutton, is cancelling visas of people who have been convicted of drink-driving on character grounds for that reason, as he has, how on earth can the government assert that Mr Trump—who is on record as green-lighting sexual assault of women and grabbing women by the genitals without consent—can be of acceptable character to come into our country? Talk about double standards here.

Often in the past visa cancellations on character grounds have related to criminal charges prior to any determination of a court conviction. So it is about charges, not convictions. It has also affected people that have not even been charged with an offence. According to the Asylum Seeker Resource Centre, there are even a number of people who have had criminal charges against them dropped but who remain in immigration detention. Devastatingly, we have already seen these visa cancellation provisions result in a death in Yongah Hill, with a refugee whose visa had been cancelled subsequently burning himself to death.

I want to go to the Ombudsman's report into the character act. In December last year, the Commonwealth Ombudsman released a report on the administration of section 501 of the Migration Act or, if you like, the character provisions. This report was the result of an own-motion investigation by the Ombudsman. The concerns that led the Ombudsman to undertake the investigation included the length of time a person spends in immigration detention while awaiting a revocation request outcome; notification of visa cancellation shortly before release from prison; the impact of prolonged and interstate detention on detainees and their families; and the impact on immigration compliance operations and the detention network. The Ombudsman's report found that the immigration department has consistently failed to achieve its own aim of cancelling prisoners' visas well before they are released so that any revocation process can be finalised while the relevant person is in prison. The Ombudsman's report says:

Through prolonging family separation this failure has also undermined the other aim of the department to give primary consideration to the best interests of the minor children of persons subject to visa cancellation.

I could go on and on about the character act.

Senator O'Sullivan: No, please!

Senator McKIM: I am tempted to now, given Senator O'Sullivan's comment. But I want to move to the bill before us today. This bill makes amendments to the substantive amendments made to the character act, which I have been speaking about. It further embeds the lack of fairness and increases the broad discretionary ministerial powers to refuse a person's visa. It extends the minister's power to cancel visas on character grounds, allowing him even to overrule decisions made by officials in his department. He can even overturn a decision of a review tribunal, which basically completely exempts the minister from the rules of natural justice—not that I think Minister Dutton has any concept of natural justice. Clearly he does not.

These amendments are unnecessary given the broad powers which already exist in the Migration Act, which allow for the minister to cancel a person's visa if he forms a reasonable view that it is in the national interest. These amendments also mean that those subject to the minister's cancellation power could be detained if there is a mere reasonable suspicion—

The PRESIDENT: Order! It being 2 pm, we move to questions without notice. Senator McKim, you will be in continuation.