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Monday, 4 July 2011
Page: 3956


Senator FEENEY (VictoriaParliamentary Secretary for Defence) (21:00): I rise both to speak to the amendment of Senator Cash and the opposition and to sum up the government's position. Firstly I thank all honourable senators for their contributions to this second reading debate on the bill. I remind senators that the purpose of the Migration Amend­ment (Strengthening the Character Test and Other Provisions) Bill 2011 is to ensure that a visa applicant or holder will fail the character test should they be convicted of any offence committed while they were in immigration detention. The bill will also increase the maximum penalty for the manu­facture, possession, use or distribution of weapons by immigration detainees from three to five years imprisonment. I remind senators that this strengthening will provide a more significant disincentive for criminal behaviour inside our immigration detention centres now and in the future. I note from the contributions of both the opposition and the Greens that there does at least appear to be a unanimity of view that it is not okay for immigration detainees to destroy property, to start fires, to throw roof tiles at staff and so forth. Senator Hanson-Young herself spoke to this point, and on that basis I think that is something we can all agree on.

The Australian community expects non-citizens who seek to remain in Australia to be of good character. To meet this expec­tation the government must not only have the ability to act decisively and effectively to deal with criminal behaviour by people in immigration detention but also have the legislative basis to refuse to grant a visa or to cancel a visa for those non-citizens who are not of good character. Where the character test is failed, it would, however, remain a matter for the minister or the minister's delegate to consider the factors in relation to the nature of the conviction, any sentence applied and countervailing considerations before deciding whether to exercise the discretionary power under sections 501 and 500A of the Migration Act to refuse or cancel a visa. In other words, a determination that a person does not pass the character test under the new ground would enliven the discretion to refuse or cancel a visa but would not dictate the outcome of the exercise of the discretion.

There is a vitally important point here, and I could not help but reach the conclusion on the basis of Senator Hanson-Young's re­marks that it had been lost on the Greens. That is that the ministerial discretion exists only when considering the case of a person who has been convicted. I refer to the explanatory memorandum. It states very clearly:

The amendments to sections 501 and 500A have been drafted to ensure that, where applicable, they apply only to persons who have been convicted of an offence by a court. The amendments made to sections 501 and 500A would not apply to a person who is charged before a court with an offence or offences, and the court is satisfied, in respect of that charge or more than one of those charges, that the charge is proved, but has discharged the person without a conviction on that charge, or any of those charges. That is, there must be at least one conviction for the amendments to sections 501 and 500A to apply.

I think, Senator Hanson-Young, that, when one absorbs the import of that, much of your argument vanishes. You are right: it is not enough to accuse a detainee of making a disturbance. You are right: a minister is not above the courts of this land. You are right: it is a foundation principle of our legal system. It is a question of what is right and proper. I think that, when you absorb that critical point, you must by your own logic find yourself in support of this bill.

The amendments to the character provisions also do not change the existing arrangements relating to natural justice or review rights in relation to the character test. The measures are intended to send a strong and clear message—a message that those opposite have agreed with and a message that the Greens party and Senator Hanson-Young's contribution agree with. That message is this: the kind of unacceptable behaviour recently seen at immigration detention centres will not be tolerated by this government.

I turn to the opposition's amendment found on sheet 7100. In considering this, I make the point that this amendment has already failed in the House of Repre­sen­tatives. I trust it will do so here too, because this is an amendment that, amongst its many failings, seeks to introduce a test that is effectively impracticable. The oppo­sition have flagged an amendment which would amend section 501(7) so that all people who have ever had a conviction for any offence with a custodial sentence would have the character test enlivened.

There are some four million permanent and temporary visa holders and applicants to Australia each year. The amendment would mean that, for instance, somebody applying to visit Australia on a tourist visa who had been sentenced to a custodial sentence in their home jurisdiction, even if that were 40 years previously, would fail this character test proposed by the opposition. It would mean that every single tourist to this country, regardless of visa type, would then have to be considered by the department in that light. This of course would have a significant impact on the tourist industry, let alone the regulatory and administrative burden that the opposition flings so blasely at the Australian government.

The amendment would also apply to skilled workers coming to this country under the 457 visa program, so many employers would be affected through that, and student visas would also be affected. I would like to see the impact on processing times. A regulatory impact statement on the oppo­sition's amendment, I am sure, would bring tears to all our eyes. The opposition has not thought this through. That is why the amendment has failed the common-sense test in the House of Representatives and why I trust it will fail that same test here.

It is appropriate that, if you are in immigration detention, you have a very clear understanding of your obligations, because offences in immigration detention—even offences which do not attract a penalty of 12 months or more—involve damage to Com­monwealth property, risk to other detainees, risk to Commonwealth staff and risk to staff of service providers. We have seen all of this in recent times. They are serious offences and it is appropriate that this parliament and this government send a clear message about that sort of behaviour.

I table an addendum to the explanatory memorandum relating to the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. I thank the Senate and commend this bill to the Senate.

Question agreed to.

Bill read a second time.