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Monday, 4 July 2011
Page: 3949


Senator CASH (Western Australia) (20:24): Mr Deputy President, in commencing, I add my congratulations on your election by the Senate to the office of Deputy President.

I rise to speak on the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. The bill amends the Migration Act 1958. The purpose of the bill is stated to ensure that anyone who is charged with a criminal offence whilst in detention is found to have failed the character test. From the date of commencement, a person will fail the character test 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 the 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 fails the character test, the delegate has the power to refuse the grant or cancel a visa on these new character grounds.

The coalition will be offering some support to this bill. However, we will be seeking to make an important amendment which I will return to later in my remarks. In the coalition's position, the bill is too little too late and it has only become necessary because of the deliberate policy of the former Rudd and the current Gillard Labor governments to soften the coalition's tough but fair border protection policies. All this bill does is create provisions to ensure that anyone inside a detention centre will fail the character test if they commit a crime that attracts a custodial sentence of less than 12 months duration. These 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 which cost taxpayers millions of dollars. It is stated that it is intended that these changes will also provide a disincentive for people in immi­gration detention from engaging in violent and disruptive behaviour.

In discussing this bill we must be cognisant of the fact that it does not excuse the minister's continued failure to act to cancel or refuse visas during his time in office. The important point to remember is that the minister currently has the powers to do that but he has failed to avail himself of those powers. After the Christmas Island riots, which began on 12 March 2011, the minister gave a press conference where he stated:

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.

That was the statement of the current minister. When the minister uttered those words he was admitting that he is currently personally able to make a decision to cancel a person's visa pursuant to section 501(3) of the Migration Act. In such a case, the decision is not subject to the rules of natural justice, nor is it reviewable on the merits and nor is the minister bound, in Australian law, by any of the matters set out in ministerial directions. I again state for the record: the minister has failed to make any decision to refuse or cancel visas using the existing powers. In fact, despite these powers, the history of Australian Labor Party ministers is that they have used their powers under section 501 only once in the past two years to refuse or cancel a visa.

Let's now compare that to the time between 1996-97 and 2003, when Philip Ruddock, as the minister for immigration, personally cancelled 570 visas under the character test provisions of section 501. Those are provisions which are in place and which the current minister, if he chose to, could avail himself of.

However, the current minister is one who refuses to exercise these powers. Why?—because he is a minister who is weak, spineless and completely out of his depth when it comes to the immigration portfolio. One of the fundamental flaws of this bill is that the amendment proposed by the government will only apply to a limited number of people. Whilst the coalition support the new criminal provisions we believe they do not go far enough in that they do not apply to every non-citizen. In fact, the government have failed to provide an explanation as to why the provisions do not apply to every non-citizen.

The government is very good in its rhetoric when it talks about wanting to strengthen the current border protection policies in Australia but this bill only goes part of the way. The coalition want to see this bill go all of the way and will help the government. We will help the government strengthen border protection in this country. We are going to propose an amendment to ensure that all visa holders are subject to the same requirement. Every visa holder convicted of a crime that attracts a custodial sentence of less than 12 months will also be found to be of not good character and liable to visa cancellation.

Why does the government want to restrict this bill to a certain class of person—those inside immigration detention—when it is telling the Australian public that the purpose of this bill is to strengthen the current laws? The current laws entitle the minister, if he chooses, to cancel someone's visa. But he does not choose to do that.

Proceeding to visa cancellation requires decision makers to consider the requirements set out in ministerial direction 41. The minister is not bound by these directions, nor is his decision subject to appeal on the merits. Under section 499 of the Migration Act the minister may give written directions to decision makers, including the Adminis­trative Appeals Tribunal, on how they are to exercise powers under the Migration Act. The direction requires no act of parliament or regulation. It is issued administratively by the minister and is legally binding on all decision makers.

In June 2009, Minister Evans, the then immigration minister, issued direction 41 under section 499 in relation to visa refusal and cancellation under section 501 of the Migration Act. Minister Evans's direction revoked the previous direction 21 issued by Minister Ruddock in August 2001. The three primary mandated considerations established in the Ruddock directive for determining whether discretion should be used under section 501 to deny a non-citizen from remaining in Australia were (a) protection of the Australian community and members of the community; (b) the expectations of the Australian community; and (c) the best interests of the child or children, where they are involved.

The Evans directive abolished the 'community expectations' mandatory con­sider­ation. This requirement would have had special relevance to the recent riots and incidents in our detention network, where, surprisingly, under the coalition's directive, it would have demanded action. However, under Minister Evans—under the Australian Labor Party's watered down directive—there is no community expectation test.

In addition, under the 'protection of the Australian community' mandatory con­sideration, the Evans directive abolished the subcriteria that 'visa refusal or cancellation may prevent or discourage similar conduct (general deterrence)' as well as specific reference to serious crimes against the Migration Act. This is also telling, given that the minister is now saying to the people of Australia that he wants to provide a general deterrent against misbehaviour in the detention network. If this is the case why doesn't the current minister merely seek to amend the new directive?

The Evans directive also abolished references to non-citizens providing bogus documentation or providing misleading statements or declarations as relevant to the consideration of a person's general conduct when considering whether they were of good character. Why is this relevant? This is relevant because during the coronial inquest into the explosion on board the SIEV36, numerous false statements were provided by those on board. However, we were faced with a minister who, yet again, did not take any action. All of the people on board the boat were provided with permanent visas, including those found to be part of a plan to scuttle the boat.

The Evans directive also gave greater primacy to international treaties. These are elevated to mandated primary considerations in all cases when exercising discretion. In the previous Ruddock directive they were listed to be considered only where relevant and they were subject to an overarching qualification that Australia's national interest take precedence. Paragraph 2.24 in the Ruddock directive stated:

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 to remain in Australia in the interests of the Australian community ultimately lies within the discretion of the responsible Minister.

That was under the Ruddock directive. That is not the case under the directive implemented by former Minister Evans.

The Ruddock directive states:

The purpose of refusing or cancelling a visa under section 501 is to protect the safety and welfare of the Australian community and to exercise a choice on behalf of the Australian community as a whole as to who should be allowed to enter or to remain in the community.

It is this latter sentiment that has been abandoned by the Australian Labor Party in the Evans directive, and maintained by Minister Bowen, despite his public statement that he wants to get tough.

The coalition believes the minister should repeal direction 41 and restore the provisions contained in direction 21, in particular the community expectations test and the sov­ereignty clause to give primacy to national interest requirements over international obligations. Whilst it is clear that the Evans directive weakened the grounds, it would not have prevented the minister acting in relation to the SIEV36 bombers or Christmas Island rioters should he have chosen to do so. The only reason we are debating this piece of legislation in the chamber today is that we have a minister that, despite having certain powers available to him, declines to exercise those powers and make a decision. We have a minister that is weak. We have a minister that fails to exercise the discretionary powers that he is able to under an act.

As outlined by the shadow minister for immigration, Mr Morrison, in his speech on the second reading of this bill, on several occasions the minister has simply refused to use his discretionary powers and let the opportunity pass by him We have a government that knowingly and willingly dismantled the successful policy regime it inherited from the coalition. They had the issue under control and yet they chose to make policy changes and created the problems that we are faced with today.

This is a government that has well and truly lost its way when it comes to protecting Australia's borders. Notwithstanding the current bill, former Prime Minister Rudd and current Prime Minister Gillard have an appalling record, and their lack of strong, decisive or appropriate action continues to confirm that the Australian Labor Party is failing to protect Australia's borders.