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Senate Legislative and General Purpose Standing Committees—Consolidated reports on the consideration of bills—July-December 2016—Volume 4-Legal and Constitutional Affairs; Rural and Regional Affairs and Transport


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Australian Senate

Senate Legislation Committees

Reports on the consideration of bills July-December 2016

Volume 4

Legal and Constitutional Affairs Committee

Rural and Regional Affairs and Transport Committee

© Parliament of the Commonwealth of Australia 2016

ISSN 1834-4062

This document was printed by the Printing Unit, Department of the Senate, Parliament House, Canberra.

TABLE OF CONTENTS

Legal and Constitutional Affairs Committee · Australian Crime Commission Amendment (Criminology Research) Bill 2016*, dated November 2016 ............................................................ 1

· Criminal Code Amendment (Firearms Trafficking) Bill 2016, dated November 2016 ............................................................................................ 35

· Migration Amendment (Family Violence and Other Measures) Bill 2016*, dated October 2016 ............................................................................... 55

· Migration Amendment (Visa Revalidation and Other Measures) Bill 2016*, dated November 2016 ........................................................................... 99

· Migration Legislation Amendment (Regional Processing Cohort) Bill 2016*, dated November 2016 ......................................................................... 137

· Corrigendum, tabled 15 November 2016 .............................................................. 174

Rural and Regional Affairs and Transport Committee · Nil ...............................................................................................................................

*Provisions of bill referred to committee.

The Senate

Legal and Constitutional Affairs

Legislation Committee

Australian Crime Commission Amendment (Criminology Research) Bill 2016 [Provisions]

November 2016

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ii

 Commonwealth of Australia 2016

ISBN 978-1-76010-476-4

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License.

The details of this licence are available on the Creative Commons website:

http://creativecommons.org/licenses/by-nc-nd/3.0/au/.

This document was produced by the Senate Legal and Constitutional Affairs Committee secretariat and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

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Members of the committee Members

Senator the Hon Ian Macdonald (LNP, QLD) (Chair)

Senator Louise Pratt (ALP, WA) (Deputy Chair)

Senator David Fawcett (LP, SA)

Senator Nick McKim (AG, TAS)

Senator Linda Reynolds (LP, WA)

Senator Murray Watt (ALP, QLD)

Secretariat

Ms Toni Matulick, Committee Secretary

Ms Charlotte Fletcher, Senior Research Officer

Ms Jo-Anne Holmes, Administrative Officer

Suite S1.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

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Table of contents

Members of the committee ............................................................................... iii

Recommendation ...............................................................................................vii

Chapter 1

Introduction and Background ................................................................................. 1

Conduct of the inquiry ............................................................................................ 1

Background ................................................................................................

............. 1

Purpose of the bill ................................................................

................................... 1

Changes to the bill since the previous inquiry ....................................................... 2

Chapter 2

Key issues................................

................................................................................... 5

The work and reputation of the AIC ...................................................................... 5

Research.................................................................................................................. 7

Work cultures ....................................................................................................... 14

Impact on AIC staff .............................................................................................. 15

The J V Barry Library .......................................................................................... 16

Steps to merge the AIC with the ACC, despite the bill not yet having passed into law ........................................................................................................................ 16

Lack of justification for a merger ......................................................................... 17

Alternative proposals ............................................................................................ 18

Committee view .................................................................................................... 19

Dissenting Report of the Australian Labor Party ......................................... 21

Dissenting Report of the Australian Greens................................................... 23

Appendix 1 - Public submissions ..................................................................... 25

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Recommendation

Recommendation 1

2.78 The committee recommends that the Senate pass the bill.

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Chapter 1

Introduction and Background 1.1 On 13 October 2016, pursuant to a recommendation of the Selection of Bills Committee, the Senate referred the Australian Crime Commission Amendment (Criminology Research) Bill 2016 [Provisions] (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 9 November 2016.

1.2 The committee inquired into and reported on the Australian Crime Commission Amendment (Criminology Research) Bill 2015 in November 2015. However, the bill in question lapsed upon the prorogation of parliament in May 2016, and was not passed into law.

1.3 The provisions of this bill are exactly the same as those of the 2015 bill (save for the proposed date of commencement), however the Explanatory Memorandum (EM) accompanying this bill does differ in some respects from that which accompanied the 2015 bill.

Conduct of the inquiry 1.4 In accordance with usual practice the committee advertised its inquiry on its website, and also wrote to various organisations and individuals inviting written submissions.

1.5 The committee received 25 submissions, listed at Appendix A.

1.6 Due to the short time for conducting this inquiry the committee resolved not to hold a public hearing.

Background 1.7 The composition and functions of the Australian Crime Commission (ACC) and Australian Institute of Criminology (AIC) were set out in the previous report into this bill, and will not be repeated here. By way of summary, the AIC was formed in 1973 and is a statutory authority focused on conducting criminological research. The ACC was established in 2003 to collect and analyse criminal and intelligence information, undertake intelligence operations and investigate matters relating to federal criminal activity.

1.8 As of 1 July 2016, the Australian Crime Commission (ACC) became known as the Australian Criminal Intelligence Commission (ACIC). The report will refer to the ACIC as the ACC, as this is the name contained in the bill, and the name by which the agency is still legally known.

Purpose of the bill 1.9 The bill seeks to provide the legislative framework for a merger of the AIC with the ACC. Specifically, the bill would:

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 insert a new definition of 'criminological research' (Item 1);

 enable the ACC to carry out criminological research, whether or not there is a

link between that research and past, present or future criminality (Item 3);

 enable the ACC to charge fees for functions associated with criminological

research (Item 4);

 enable the Australian Crime and Justice Research Centre (ACJRC), as which

the AIC area of the ACC would then be known, to access datasets and make data and research available in the same way the AIC current does (Item 5);

 continue the Criminology Research Special Account (CR Special Account) to

ensure that the ACC continues to manage the funds associated with commissioned research in the future (Item 6); and

 repeal the Criminology Research Act 1971, under which the AIC currently operates (Schedule 2).

1.10 The proposed merger of the AIC with the ACC is part of a broader plan to create one agency which combines the resources of a number of currently separate agencies. As the second reading speech states:

We need to find ways so that police officers doing their job can get the information they need. To do this we have created the Australian Criminal Intelligence Commission. This brings our intelligence analyst capabilities together with our datasets when we merged the Australian Crime Commission with CrimTrac. We are also merging into that new entity the Australian Institute of Criminology to give the ACIC all of the resources that it needs to be able to do this job of providing timely criminal intelligence to Australia's law enforcement community.1

Changes to the bill since the previous inquiry 1.11 Since the committee's report to the 44th Parliament, the EM has been amended to include new information.

1.12 The EM now states that:

 the ACC's criminological function will have a wide remit and extend beyond

purely law enforcement;2

 the non-legislated Research Advisory Committee, which will provide advice to the ACC Board about strategic research priorities and research grants, will consist of existing Criminology Research Advisory Council members, two law enforcement representatives, two members from the ACC, and a representative from the Australian and New Zealand Society of Criminology (ANZSOC);3

1 The Hon Michael Keenan MP, Minister for Justice and Minister Assisting the Prime Minister for Counter-Terrorism, House of Representatives Hansard, 14 September 2016, p. 850.

2 Explanatory Memorandum (EM,) p. 7.

3 EM, p. 7.

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 having a non-legislated committee 'ensures there is flexibility to add other

members if subject matter expertise would assist on particular subjects';4

 the ACJRC will continue to have access to the datasets available to the AIC, and 'will continue to make that data and research available in the same way the AIC currently does';5 and

 the JV Barry Library will continue to exist and provide the same level of

public access to its holdings, and the process of digitising of those holdings will continue following a merger.6

4 EM, p. 7.

5 EM, p. 8.

6 EM, p. 9.

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Chapter 2 Key issues

2.1 During the course of this inquiry a number of issues were put to the committee, many of which reflected concerns that were raised during the previous inquiry into this bill. The issues raised in the course of this inquiry included:

 the risk of research subsequent to the merger being perceived as less credible, and the research arm of the Australian Crime Commission (ACC) being viewed as less independent, and subservient to the needs of the ACC more broadly;

 the risk of staff losses and a consequent degradation of criminological

discourse and research in Australia;

 the potential impacts on the JV Barry Library, including access to its

holdings;

 the fact that many steps have already been taken to merge the Australian

Institute of Criminology (AIC) with the ACC, despite the bill not yet having passed into law; and

 the overall lack of justification for merging the AIC and ACC.

2.2 A number of submitters also raised alternative propositions to the proposed merger of the AIC with the ACC.

2.3 These issues, and alternative propositions, will be discussed in this chapter.

The work and reputation of the AIC 2.4 Nearly all of those individuals and organisations who made submissions highlighted the excellent quality of research produced by the AIC and the very strong reputation which the AIC has developed internationally.1

2.5 Professor Laycock, of the University College of London, stated that the AIC is a 'significant presence in the international criminological research community'.2 She argued that, while the AIC is not the only criminological organisation in Australia, 'the

1 See Professor Gloria Laycock, University College of London (UCL) Jull Dando Institute of Security and Crime Science (JDISCS), Submission 1; Professor Ernesto Savona, Professor of Criminology, Director of the Research Centre on Transnational Crime (RSTC), Universita Cattolica del Sacro Cuore (UCSC), Submission 2; Professor Tim Prenzler, University of the Sunshine Coast (USC), Submission 6; Master Peter Norman OAM, National Chairman, Australian Crime Prevention Council (ACPC), Submission 15; Commissioner Michael O'Connell APM, Commissioner for Victims' Rights, South Australia (CVR SA), Submission 17.

2 Professor Gloria Laycock, UCL, Submission 1, p. 2.

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AIC speaks uniquely to the Commonwealth's agenda', and is 'the only independent research voice which addresses issues across the whole of Australia'.3

2.6 Professor Ernesto Savona, Director of the Research Centre on Transnational Crime at the Univerita Cattolica del Sacro Cuore in Milan, stated that the AIC's research has, over time, been of great significance and has been used regularly by organisations in Europe.4 He also noted that it played an important role as a United Nations Office on Drugs and Crime research body.5

2.7 Professor Tim Prenzler of the University of the Sunshine Coast stated that since it was established, the AIC has 'been an essential source for reliable and accurate statistics on the very large and complex problem of crime in Australia', and has a 'strong reputation for integrity and rigour'.6

2.8 Master Peter Norman, National Chairman of the Australian Crime Prevention Council (ACPC), submitted that:

The AIC's research and its impact on practice, legislation and policy has been off immense value in setting budgets and forming policy in the law and order field. It has been quoted in many academic and practitioner publications and is of great assistance to others working in the area. It has been a well respected and highly regarded professional source of criminological data which has the same value as does medical research in the formulation of the health budget.7

2.9 The South Australian Commissioner for Victims' Rights, Mr Michael O'Connell APM, noted that the AIC has partnered with the World Society of Victimology (WSV) to host two international symposiums on Victimology, and that it did so effectively and efficiently.8 He stated that at the 2015 symposium:

Keynote speeches were audio-visually recorded and posted on Criminology TV, which has made such available to a global audience, including WSV members, at no cost to such audience. This is a treasured resource that has proven of great assistance to some WSV members and others who could not attend the symposium. It also raises the prestige of the AIC as a leader in fostering debate on contemporary crime and criminal justice issues - independent of the political ideology of the party governing Australia.9

2.10 Describing the institute as a 'fine example of cooperative federalism at work', Professor Duncan Chappell of the University of Sydney, highlighted the AIC's role as

3 Professor Gloria Laycock, UCL, Submission 1, p. 2.

4 Professor Ernesto Savona, RSTC, UCSC, Submission 2, p. 1.

5 Professor Ernesto Savona, RSTC, UCSC, Submission 2, p. 1.

6 Professor Tim Prenzler, USC, Submission 6, p. 1.

7 Master Peter Norman, National Chairman, ACPC, Submission 15, pp. 2 - 3.

8 Commissioner Michael O'Connell, CVR SA, Submission 17, p. 2.

9 Commissioner Michael O'Connell, CVR SA, Submission 17, pp. 2 - 3.

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a key resource for comprehensive and reliable research about crime and justice for over four decades.10

Research 2.11 A number of submitters raised concerns about the independence and perceived integrity of research which would be conducted by the AIC arm of the ACC, as well as the direction of the research agenda.

Independent research

2.12 The key criticism levelled against the proposed merger of the AIC and ACC was that the ACC would no longer be an independent organisation capable (or viewed as being capable) of producing independent research. A majority of submitters argued that for criminological research to be viewed as being credible, it must be produced by an organisation which is independent, and has no stake in the findings.11

2.13 Dr Peter Grabosky of the Australian National University (ANU), and a former Director of the AIC, argued that the institute should remain a statutory authority, and stated that the proposed amendments would 'strip the [AIC] of the last vestiges of independence'.12 Professor Kathleen Daly of Griffith University argued that the AIC's work must remain independent 'to ensure integrity and trust in the data gathered and results reported'.13

2.14 Professor Peter Norden AO, a fellow of the Australian and New Zealand Society of Criminology (ANZSOC), argued that:

[T]he suggestion that an academic research body such as the AIC being able to successfully merger with an intelligence agency of the nature of the ACIC shows a complete lack of understanding of the role of the two bodies.14

2.15 Professor Roderick Broadhurst of the ANU likewise argued that:

[C]riminological research and the intelligence products (Focused on threats, suspects and operations) are independent endeavours best served as mutually informative but independent aspects of the constant need to assess ever evolving criminal threats (both low and high) to our economy, social cohesion and good governance.15

10 Honorary Professor Duncan Chappell, University of Sydney, Submission 16, p. 1.

11 See Dr Peter Grabosky, ANU, Submission 4; Professor Tim Prenzler, USC, Submission 6; Professor Kathleen Daly, Griffith University, Submission 5; Dr Ross Coomber, Director, GCI, Submission 9; Dr Kristine Klugman OAM, President, CLA, Submission 13; Master Nor man, National Chairman, ACPC, Submission 15; Dr Jason Payne, ANU, Submission 10; Professor Murray Lee, Sydney Law School, Submission 23.

12 Dr Peter Grabosky, ANU, Submission 4, p. 1.

13 Professor Kathleen Daly, Griffith University, Submission 5, p. 1.

14 Professor Peter Norden AO, Adjunct Professor, School of Global, Urban and Social Studies, RMIT University Melbourne (RMIT), Submission 3, p. 1.

15 Professor Roderick Broadhurst, ANU, Submission 24, p. 1.

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2.16 Professor Ross Coomber, Director of the Griffith Criminology Institute, arguing that the importance of academic independence was not sufficiently addressed in the previous inquiry into this bill, submitted that:

Another important issue that was arguably understated on the original bill relates to perceptions of academic independence, and thus the perceived credibility of outputs/research. When an organisation produces data that, depending on how they are prevented, it can benefit from it is not seen as independence. The police already suffer from having even the barest of descriptive statistics produced internally subjected to critique because of assumed bias and thus there is an almost inherent lack of credibility built into any analysis it carries out.16

2.17 Professor Coomber argued that even though police might be using exemplary standards comparable to those of independent researchers, 'the research will often be perceived to not be credible because it is produced by those that may benefit from it'.17

2.18 Professor Adam Graycar AM of Flinders University, and the longest serving Director of the AIC, agreed, arguing that:

If [the AIC's] future outputs come through an intelligence agency there are two likely scenarios. One is that much of what is researched will not be publicly available as it will be stamped with a security classification. The second is that it might not be believed, as coming from an intelligence agency people might always question hidden agenda and transparency of methodology and data. In short, people are less likely to take the output seriously and give it credibility. Without credibility research is hollow.18

2.19 Ms Patricia Mayhew OBE, a former consultant to the AIC, stated that the Institute's independence from government is essential to ensuring that outputs and services are 'seen as untainted from political concerns and sensibilities'.19 She argued that 'the merger will alter the way output is perceived.20 Professor Broadhurst agreed, stating that 'extraordinary efforts to ensure transparency would be required'.21

2.20 Civil Liberties Australia (CLA) likewise argued that:

[T]he two organisations have antithetical philosophies, especially around transparency and evidence-based work (as opposed to mere 'intelligence'), and the AIC's independence will be fatally compromised if it is brought within the national security community.22

16 Dr Ross Coomber, Director, GCI, Submission 9, pp. 1 - 2.

17 Dr Ross Coomber, Director, GCI, Submission 9, p. 2.

18 Professor Adam Graycar AM, Flinders University (FU), Submission 8, p. 2.

19 Ms Patricia Mayhew OBE, Submission 14, p. 1.

20 Ms Patricia Mayhew, Submission 14, p. 2.

21 Professor Roderick Broadhurst, ANU, Submission 24, p. 1.

22 Dr Kristine Klugman, President, CLA, Submission 13, p. 1.

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2.21 Professor Chappell, an AIC Director from 1987 to 1994, discussed the AIC's capacity to deliver robust recommendations in challenging situations. He cited the lead-up to the introduction of Australia's gun control laws as an example:

[During my time as Director of the AIC] I experienced at first hand the often sensitive and challenging interactions required to offer robust, research based independent advice and assistance in support of Government crime and justice policy while also remains aloof and neutral from actual participation in law enforcement and allied activity. Perhaps nowhere was this challenge more evidence than in the very substantial research that the AIC undertook for the National Committee on Violence (NCV) in the late 1980's when two tragic mass shootings occurred in Melbourne. The NCV made comprehensive and detailed recommendations regarding measure[s] that might be taken to reduce such violence in Australian society (NCV 1990), including introducing strict uniform gun laws. These recommendations, and especially those relating to gun control, were resolutely opposed by many in the community.23

2.22 Professor Toni Makkai of the ANU, and former Director of the AIC, likewise stated that:

In my time as director there were occasions where findings from research were not necessary supportive of the government of the day (state/territory and commonwealth), private sector organisations or the non-government sector. These were handled sensitively, but the AIC always maintained its commitment to the publication of its findings…[W]here research involved either consultancy payments or powerful agencies, including law enforcement and corrections, the independence of the director and its board of management was critical when a serious dispute arose.24

2.23 Dr Jason Payne of the ANU, and an employee of the AIC for 12 years, noted the AIC's research into violent crimes and property crime victimisation of international students in Australia in response to several attacks against students from India. At the time, Australia's international student market generated approximately $18.3 billion per annum, and that India was a large source of international students. Dr Payne noted that concerns had been publicly aired by officials from India about the apparent racial targeting of Indian students, and the potential that this could have to adversely impact the intake of international students from India.25 Dr Payne stated:

At the time, there was no national or state-level data source capable of examining the prevalence and overrepresentation of Indian international students as victims of crime. Yet, to meet the ongoing concerns of government officials in India, it was essential for Australia to undertake a credible, methodologically robust, and (most importantly) independent empirical analysis of this issue. As an independent statutory agency, the

23 Professor Duncan Chappell, Submission 16, p. 1.

24 Professor Toni Makkai, ANU Centre for Social Research and Methods, Research School of Social Sciences (ANU), Submission 21, p. 3.

25 Dr Jason Payne, ANU, Submission 10, p. 1.

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AIC was uniquely placed to undertake this research. It's long-held position of trust with state and territory police agencies made possible the complex data matching and extraction processes. This, coupled with its position of independence, was critical to securing the information and data necessary to examine the issues with the transparency and breadth demanded by the Indian government.26

2.24 Dr Payne argued that the AIC was well-placed to undertake this research cost-effectively, swiftly, and using its criminal justice experience, submitting that:

[N]o research produced under the auspices of an intelligence agency…would have had the level of independence necessary to assure the Australian and international community of our commitment to openly and transparently investigating issues concerning the safety of its citizens and visitors.27

2.25 Professor Makkai argued that the AIC's independence enabled it to manage both short and long-term priorities. She stated that the institute's reputation has been built not only on its capacity to engage in independent research about current crime and justice issues, but also focus on future concerns which might not seem relevant to national crime and justice agencies of the day.28

2.26 Professor Rick Sarre, President of ANZSOC, argued that, 'to think one can merge the work of the ACIC and AIC and keep the latters' broad base and independence is simply fanciful'.29 He also submitted that the AIC would be conflicted as a result of the merger, stating:

It will simply not be possible for a merged body to do research on the accountability and effectiveness of police and intelligence agencies themselves. Who could ever say that the outcomes were not tainted?30

2.27 Addressing these concerns, the Minister for Justice, the Hon Michael Keenan MP, explained that the proposed ACJRC would be subject to peer review, which would ensure that it was capable of producing independent research, which would then be used to inform evidence-based policy.31 He stated that the ACJRC would produce world-leading criminological research on widely defined crime and justice issues of national importance.32

26 Dr Jason Payne, ANU, Submission 10, p. 1.

27 Dr Jason Payne, ANU, Submission 10, p. 2.

28 Professor Toni Makkai, ANU, Submission 21, p. 1.

29 Professor Rick Sarre, President, Australian and New Zealand Society of Criminologists (ANZSOC), Submission 18, p. 1.

30 Professor Rick Sarre, President, ANZSOC, Submission 18, p. 1.

31 The Hon Michael Keenan MP, Minister for Justice and Minister Assisting the Prime Minister for Counter-Terrorism, House of Representatives Hansard, 14 September 2016, p. 850.

32 The Hon Michael Keenan MP, Minister for Justice and Minister Assisting the Prime Minister for Counter-Terrorism, House of Representatives Hansard, 14 September 2016, p. 850.

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2.28 The Attorney-General's Department (AGD), ACIC and AIC jointly noted that the proposed ACJRC would be headed by a senior criminologist,33 and that the Centre would be guided by independent criminology research expertise through a non-legislated Research Advisory Committee.34

Research agenda

2.29 Several submitters raised concerns about a possible shift in the research agenda of a research wing within the ACC, and expressed concern that such a wing would become subservient to the agenda of the ACC.35 Submitters also highlighted the value of the AIC's research into broad issues relating to crime and justice.

2.30 Professor Sarre of the ANZSOC argued that:

For over 40 years the AIC has examined the vast array of crime that continues to bedevil our nation…It has analysed - and provided policy-relevant information concerning - family violence, Indigenous crime and victimisation, deaths in custody, homicide monitoring, drug use monitoring, alcohol and substance abuse, firearms trafficking, youth justice, restorative conferencing, violent crime, corrections and rehabilitation, and therapeutic courts to name but a few areas of important research that will not be given secondary status, if any at all.36

2.31 Master Norman of the ACPC agreed, noting that the AIC has focused on the prevention of all crime, and analysed the little-studied areas of corrections and rehabilitation.37 He highlighted in particular the value of the AIC's research into deaths in custody, national homicide monitoring, drug use monitoring, and national firearms trafficking, and argued that this research must continue, and continue to be made available to researchers and relevant agencies.38

2.32 Commissioner O'Connell likewise highlighted the value of the AIC's research in the area of victimology, and stated that he has 'turned often to AIC research findings to validate assertions on crime victims' plights'.39

2.33 Professor Daly submitted that the merger would lead to a more narrow ACIC-focussed research agenda, with an emphasis on policing and organised crime.40 She

33 Attorney-General's Department (AGD), Australian Institute of Criminology (AIC) and Australian Criminal Intelligence Commission (ACIC), Submission 20, p. 1.

34 AGD, AIC and ACIC, Submission 20, p. 2.

35 Professor Ernesto Savona, Director, RCTC, UCSC, Submission 2; Professor Gloria Laycock, UCL JLDSCS, Submission 1; Professor Kathleen Daly, Griffith University, Submission 5; Professor T

im Prenzler, USC, Submission 6; Dr Rebecca Scott Bray, Co-Director, Sydney Insti tute of Criminology (SIC), Submission 22.

36 Professor Rick Sarre, President, ANZSOC, Submission 18, p. 1.

37 Master Peter Norman OAM, National Chairman, ACPC, Submission 15, p. 2.

38 Master Peter Norman OAM, National Chairman, ACPC, Submission 15, p. 2.

39 Commissioner Michael O'Connell, CVR SA, Submission 17, p. 2.

40 Professor Kathleen Daly, Griffith University, Submission 5, p. 2.

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argued that the AIC's research agenda would be subservient to that of the ACC, and that this would 'impoverish fundamental research on crime and justice'.41 Ms Mayhew, a former consultant to the AIC, agreed, arguing that the merger would inevitably results in a re-direction of the research agenda to narrow issues of law enforcement and police intelligence.42

2.34 Dr Biles argued that if the merger were to proceed, any criminologist prepared to work in the kind of high security environment such as that which would exist in the ACC:

…will inevitably be drawn or gently guided to projects which are central to the ACIC (such as organised crime, terrorism etc.) and broader criminal justice issues…will become relatively neglected.43

2.35 Dr Biles also highlighted the small size of the proposed research wing of the ACC in comparison with the rest of the organisation. He estimated that approximately 20 AIC staff would be merged with over 1000 police staff from the AIC and Crimtrac, and described this as a 'smothering' rather than a merger.44 Professor Laycock likewise argued that the AIC would be a 'junior partner' in the merger.45

2.36 Professor Makkai also agreed, and argued that it is highly likely that over time the culture of secrecy and need to protect intelligence data and methodologies will 'assert itself'.46 She noted that under the proposed merger the ACIC board, which is dominated by law enforcement agencies, would determine priorities, and not an advisory board, which would also have significant law enforcement representation.47

2.37 Professor Sarre also argued that a narrowing of research scope would have a corresponding impact on funding decisions of the Criminology Research Council (CRC). 48

2.38 The AGD, AIC and ACC, in a joint submission, stated that the ACC research branch (the ACJRC) would be headed by a senior criminologist and conduct research which would be subject to both peer and ethics review.49 The submission notes that:

The ACJRC's research priorities will become more closely aligned with law enforcement's high level priorities. However, the ACJRC's priorities will also continue to be guided by an advisory body similar to the current Criminology Research Advisory Council…This will continue to allow

41 Professor Kathleen Daly, GU, Submission 5, p. 2.

42 Ms Patricia Mayhew, Submission 14, p. 1.

43 Dr David Biles, Submission 12, p. 2.

44 Dr David Biles, Submission 12, p. 2.

45 Professor Gloria Laycock, UCL JLDSCS, Submission 1, p. 2.

46 Professor Toni Makkai, ANU, Submission 21, p. 2.

47 Professor Toni Makkai, ANU, Submission 21, p. 2.

48 Professor Rick Sarre, President, ANZSOC, Submission 18, p. 1.

49 AGD, AIC and ACIC, Submission 20, p. 1.

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independent criminology research expertise to guide the work of the ACJRC.50

2.39 The submission further noted that, while the ACIC board would assume responsibility for providing strategic direction about research functions, and determining criminological research priorities, it would be advised by a non-legislated Research Advisory Committee.51 The submission states that this Committee would consist of existing Criminology Research Advisory Council members, an ANZSOC representative, two members of the ACIC and two law enforcement representatives.52

2.40 The joint submission states that the ACIC is 'subject to a robust accountability framework which provides significant oversight for the operations of the agency'.53

2.41 The submission also notes that if an individual has a complaint about the way in which the ACIC handles its personal information, complaints can be made to the Commonwealth Ombudsman, Integrity Commissioner, or the Parliamentary Joint Committee on Law Enforcement.54

Publicly available research

2.42 A number of submitters raised concerns about the potential for research conducted subsequent to the proposed merger not being publicly available.

2.43 The Community and Public Sector Union (CPSU) argued that since AIC employees had been transferred to the ACC in October 2015, 'AIC/ACC employees have experienced difficulties in designing, conducting and disseminating high-quality criminological research'.55 It argued that a primary cause of these difficulties is 'restrictions in the way criminological research is communicated'.56

2.44 Professor Graycar argued that security classifications are sometimes needlessly applied, and that some information subject to classification is of a poor quality:

While I was Director of the AIC I had a 'top secret' security clearance. From time to time I would see classified material, and often would have no idea why it was classified, because there was nothing special or secret in it. What I soon discovered was that the quality of the material was so very poor that the author or agency would have been ashamed or even humiliated were it open to public scrutiny. Not only that, there were times when material came marked as classified, which was entirely plagiarised. The material which I recall, produced by the former [National Crime

50 AGD, AIC and ACIC, Submission 20, p. 2.

51 AGD, AIC and ACIC, Submission 20, p. 2.

52 AGD, AIC and ACIC, Submission 20, p. 2.

53 AGD, AIC and ACIC, Submission 20, p. 3.

54 AGD, AIC and ACIC, Submission 20, p. 3.

55 Community and Public Sector Union (CPSU), Submission 19, p. 5.

56 CPSU, Submission 19, p. 5.

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Authority] and other agencies, was on occasion an AIC or other public research document, word for word, but re-titled and classified.57

2.45 Mr Cameron Langfield, a student of criminology at the ANU, argued that the proposed amendments would make it more difficult to gather and assess information about criminology in Australia, as well as statistics on crime, victimisation and incarceration rates.58 He submitted that such data 'is essential to the next generation of aspiring criminologists'.59

2.46 In their joint submission the AGD, ACIC and AIC highlighted that the EM attaching to this bill has been amended to confirm that 'criminological research and access to datasets will continue to be made available to the public', and 'the ACIC will have access to the same databases to inform research that are currently available to the AIC'.60

2.47 Noting that the ACIC can conduct work which involves personal information, the submission further states that:

The Bill contains a new information disclosure regime to allow the ACIC CEO to disclose and publish the ACIC's criminological research and related information in a manner similar to the way in which the AIC Director can currently disclose that information. Where the ACIC's criminological research or related information contains personal information…the new information disclosure regime will outline additional requirements that must be met before the ACIC can disclose that information.61

Work cultures 2.48 Several submitters raised concerns about the professional cultures of the AIC and ACC, and their potential incompatibility.

2.49 Dr Scott Bray of the Sydney Institute of Criminology (SIC) argued that the concept of a merger resulting in a unified workforce of two different organisational cultures with different functions seems inappropriate.62

2.50 Dr Biles argued that criminologists require very different skills to those required of individuals working for policy and law enforcement agencies. He argued that 'criminologists are essentially academics who provide advice to governments and also to criminal justice practitioners', whereas policing focuses on individuals or a small number of individuals, makes use of specialist information, typically in a confidential environment.63 He also argued that the police culture encourages 'absolute

57 Professor Adam Graycar AM, Flinders University, Submission 8, p. 2.

58 Mr Cameron Langfield, Submission 11, p. 1.

59 Mr Cameron Langfield, Submission 11, p. 1.

60 AGD, AIC and ACIC, Submission 20, p. 2.

61 AGD, AIC and ACIC, Submission 20, p. 3.

62 Dr Rebecca Scott Bray, Co-Director, SIC, Submission 22, p. 2.

63 Dr David Biles, Submission 12, pp. 1-2.

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loyalty to colleagues and to the police service in general' whereas criminologists 'favour an environment which has close contacts with university' and where 'differences of opinion are expected and encouraged'.64

2.51 Professor Makkai likewise argued that 'the AIC research culture will not survive the larger ACIC culture which is command and control, secretive and risk averse', and which has 'no track record of successfully managing either researchers or potential pitfalls of consultancies'.65

2.52 The AGD, ACIC and AIC jointly emphasised that, while the proposed ACJRC would be more closely aligned with ACIC priorities and strategic goals than the AIC currently has been, there would be measures in place to ensure that the work of the centre would be guided by independent criminological research expertise.66 The Minister also highlighted the positive impacts that the proposed merger would have on the capabilities of the ACC more broadly, stating that it would provide staff with all the resources it would need to

access not just timely criminal intelligence, but also

comprehensive consolidated research on issues of criminal justice.67

Impact on AIC staff 2.53 Submitters raised both short and long-term concerns about the impact of the proposed merger on AIC staff, and potential future staff.

2.54 Both Professor Daly and Dr Scott Bray argued that the merger could lead to AIC staff losses,68 with staff 'unwilling to work within an intelligence agency and its security compacts', as well as 'difficulties in recruiting suitable researchers suspicious of security organisational structures'.69

2.55 The CPSU argued that the machinery of government changes which have led to AIC staff being transferred to the ACC and then seconded back to continue work has adversely impacted on the timely recruitment of researchers.70 It noted that:

The AIC experienced a high rate of attrition between July 2015 and October 2016. The Institute lost 21 full-time equivalent (FTE) positions: 14 employees permanently let the Institute, four went on long-term maternity leave and three took leave without pay or secondment to other APS agencies. Fourteen of the 21 FTE were research positions.71

64 Dr David Biles, Submission 12, p. 2.

65 Professor Toni Makkai, ANU, Submission 21, p. 4.

66 AGD, AIC and ACIC, Submission 20, p. 2.

67 The Hon Michael Keenan MP, Minister for Justice and Minister Assisting the Prime Minister for Counter-Terrorism, House of Representatives Hansard, 14 September 2016, p. 850.

68 Dr Kathleen Daly, GU, Submission 5, p. 2.

69 Dr Rebecca Scott Bray, Co-Director, SIC, Submission 22, p. 2.

70 CPSU, Submission 19, p. 3.

71 CPSU, Submission 19, p. 3.

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2.56 The CPSU also noted, however, that 11 new 'AIC' employees have commenced since June 2016, and ten of those new employees are researchers.72

The J V Barry Library 2.57 Mr John Myrtle, Principal Librarian of the JV Barry Library for 17 years, noted that since being moved to the ACC, the library has reduced in size with much of its holdings being located off-site, and is less accessible by virtue of being in a high security building.73 He argued that:

Overall, the Institute's J V Barry Library has retreated from being a highly regarded open source information centre with comprehensive criminal justice collections, to a narrower service, principally serving the research requirements of the [ACC]. The irony is that the Institute's Library could operate in an open environment as part of an independent statutory authority and still provide information services for staff of the ACC.74

2.58 In their joint submission, the AGD, ACIC and AIC confirmed that the J V Barry Library will be maintained and that the ACIC will continue to provide public access to its holdings, as the AIC currently does,75 and noted that the EM has been amended to confirm this.76 The EM states that public access will be by appointment only, as was the case when the library was separately housed in the AIC. Although the EM does not specifically address whether and how physical access to the library may be affected by housing it in a high security building, it does note that the AIC has begun digitising library holdings in order to enhance access.77

Steps to merge the AIC with the ACC, despite the bill not yet having passed into law 2.59 The CPSU raised concerns about commencing the proposed merger despite the enabling legislation not having been enacted.78 It noted that all AIC employees were transferred to the ACC 'via a machinery of government change in October 2015', before being seconded back to the AIC to ensure that institute could operate while legislation to enable the move was introduced in the Parliament.79

2.60 The CLA argued that such actions indicate that the government has defied the Parliament (which is yet to pass the enabling legislation), and show contempt for both the Parliament and the rule of law.80 Machinery of government changes are, however,

72 CPSU, Submission 19, p. 3.

73 Mr John Myrtle, Submission 7, p. 1.

74 Mr John Myrtle, Submission 7, pp. 1 - 2.

75 AGD, AIC and ACIC, Submission 20, p. 2.

76 AGD, AIC and ACIC, Submission 20, p. 2.

77 Explanatory Memorandum (EM), p. 9.

78 CPSU, Submission 19, p. 1.

79 CPSU, Submission 19, p. 3.

80 CLA, Submission 13, p. 1.

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standard practice and will, as a matter of course, generate consequential legislative changes. The committee has no concerns about the transparency of this process in the case of the ACIC.

Lack of justification for a merger 2.61 A number of submitters questioned whether there was any justification for the proposed merger.

2.62 Professor Prenzler argued that, '[i]t is difficult to see how amalgamation of the Institute with another organisation would generate any public benefits'.81 Highlighting the differences in the work of the ACC and AIC, Professor Chappell argued:

I cannot perceive what real benefits will be gained by the proposed merger of the AIC with the ACIC. The fundamental aims and ethos of both agencies are radically different. The ACIC stands at the vanguard of active and vital law enforcement measures designed to combat serious organised criminal activity… The AIC's work…covers the entire spectrum of and justice policy and practice whether it affects law enforcement, prosecution, courts or corrections.82

2.63 Dr David Biles OAM, who was employed at the AIC from 1974 to 1993, stated:

It is not clear to me why the ACC or ACIC, was interested in promoting this merger in general, or taking over part of the J V Barry Library in particular. Nothing I have read or heard suggests that measurable improvement can be seen in the performance of the ACIC. If the ACIC wanted to have more access to the AIC library there is no reason why they could not have had it simply by asking, as many other individuals and organisations have been doing for many years. On the other hand, the harm or damage done by the merger is easily identifiable. NO longer is there an independent and highly respected body of criminological knowledge that is widely available to governments at all levels, to other organisations and to Australian and overseas individuals.83

2.64 The minister advised that this merger is intended to take place in order to establish the new ACIC.84 Noting that CrimTrac has already been merged with the ACC, the minister stated:

Bringing three of our nation's justice, law enforcement and intelligence agencies together does significantly enhance support for law enforcement around the country and bolster Australia's response to serious and organised crime and national security issues. The new agency allows police, justice

81 Professor Tim Prenzler, USC, Submission 6, p. 1.

82 Professor Duncan Chappell, University of Sydney, Submission 16, pp. 1 - 2.

83 Dr David Biles OAM, Submission 12, p. 2.

84 The Hon Michael Keenan MP, Minister for Justice and Minister Assisting the Prime Minister for Counter-Terrorism, House of Representatives Hansard, 14 September 2016, p. 850.

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agencies and policy makers at all levels of government to adopt a more effective, efficient and evidence based response to crime.85

2.65 The minister also explained that the new ACJRC, to be headed by a senior criminologist, would have 'increased access to classified information', meaning that its research would be expected to have 'increased value and relevance for Australian policy decision-making' and 'an enhanced evidence base to support a proactive and targeted response to crime by all of Australia's law enforcement community'.86

2.66 The minister concluded that:

The merger will enable the ACIC to better fulfil its role as Australia's national criminal intelligence agency, supporting and informing the efforts of law enforcement agencies around the country.

Similarly, the new [ACJRC] held within the ACIC will continue to prepare and disseminate world-leading criminological research, which informs our understanding of the trends and developments in crime and justice.87

Alternative proposals 2.67 A number of submitters discussed alternatives to merging the AIC and ACC. These included:

 moving the AIC to a university; 88

 posting a small cohort of AIC staff to the ACC to conduct research specific to the ACC;89

 allocating 0.25% of the ACC's budget to the AIC to conduct research specific to the ACC;90 and

 morphing the AIC from an organisation which conducts its own research, into

one which funds and manages research by administering funding grants, similar to the US National Institute of Justice.91

2.68 Professor Makkai noted that National Commission of Audit recommended that the AIC be relocated to a university, and that this recommendation has been ignored.92 She submitted that for such a move to be effective, it would require 'an

85 The Hon Michael Keenan MP, Minister for Justice and Minister Assisting the Prime Minister for Counter-Terrorism, House of Representatives Hansard, 14 September 2016, p. 850.

86 The Hon Michael Keenan MP, Minister for Justice and Minister Assisting the Prime Minister for Counter-Terrorism, House of Representatives Hansard, 14 September 2016, p. 850.

87 The Hon Michael Keenan MP, Minister for Justice and Minister Assisting the Prime Minister for Counter-Terrorism, House of Representatives Hansard, 14 September 2016, p. 850.

88 Professor Toni Makkai, ANU, Submission 21, p. 4; Professor Gloria Laycock, UCL JDISCS, Submission 1, p. 3; Professor Adam Graycar, Flinders University, Submission 8, p. 2.

89 Professor Gloria Laycock, UCL JDISCS, Submission 1, p. 3; Ms Mayhew, Submission 14, p. 2.

90 Professor Toni Makkai, ANU, Submission 21, p. 5.

91 Professor Toni Makkai, ANU, Submission 21, p. 5.

92 Professor Toni Makkai, ANU, Submission 21, p. 4.

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affective contractual arrangement with strong high level board oversight coupled with a mandated review process'.93 She argued that this option would provide researchers with access to the resources and infrastructure that a university could provide, as well as access to 'training of undergraduate and postgraduate students creating a pathway into the Institute's research programs'.94

2.69 In contrast, Professor Laycock submitted that moving the AIC to a university would make the ACC's research capability worse (noting that the justification for the merger is to improve the ACC's research capabilities), and submitted that agencies such as the ACC are 'more open to research that is sponsored by a government organisation than by a university'.95 Professor Graycar likewise argued that moving the AIC to a university would be a better idea than merging it with the ACC, but was not the best solution.96

Committee view 2.70 This is the second inquiry of this committee into a bill proposing to enable the merger of the AIC and ACC. When the committee inquired into the 2015 version of this bill it expressed support for the bill's objectives, and accepted the ACC and AGD's assurances that the independence and integrity of criminological research would be maintained.97 The committee recommended that the Senate pass the bill.

2.71 Despite the relatively short time for inquiring into this bill, the committee received 25 submissions to this inquiry from as far afield as Italy and the United Kingdom. It is clear that the AIC has developed a global reputation for excellence in criminological research. The committee notes concerns that have been raised regarding the quality of AIC output following the merger but are of the view that the government would not jeopardise the safety of Australian citizens or the efficacy of

Australian law enforcement by diluting the utility of this critical resource.

2.72 The committee has reflected carefully on the issues raised by submitters to this inquiry, in particular concerns about the independence of the ACJRC, the credibility of its research (perceived and actual), and management of the ACJRC's research agenda, noting that the research arm's research priorities 'will become more closely aligned with law enforcement's high-level priorities'.98

2.73 The committee notes concerns raised regarding the independence of research conducted by the AIC as the ACJRC. The committee is of the view that independence can be ensured through legislative and non-legislative safeguards (including the input of a Research Advisory Committee), and regular parliamentary scrutiny of the work of

93 Professor Toni Makkai, ANU, Submission 21, p. 5.

94 Professor Toni Makkai, ANU, Submission 21, p. 5.

95 Professor Gloria Laycock, UCL JDISCS, Submission 1, p. 3.

96 Professor Adam Graycar, Flinders University, Submission 8, p. 2.

97 Legal and Constitutional Affairs Legislation Committee, Australian Crime Commission (Criminology Research) Bill 2015, November 2015, p. 13.

98 AGD, AIC and ACIC, Submission 20, p. 2.

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the ACIC (such as would take place at Senate Budget Estimates, and in the scrutiny of Annual Reports). It is also clear from the submissions to this inquiry that any research outputs by the proposed ACJRC would be subject to scrutiny by the national and international fraternity of criminologists and associated professionals.

2.74 The committee believes that the same safeguards could be applied in relation to the research agenda of the proposed ACJRC, and the different working cultures of criminal intelligence and criminology research communities. While the ACJRC would be a relatively small wing of the proposed ACIC, that does not mean that the research wing would necessarily be subsumed into the culture of the broader organisation. Again, regular scrutiny would help to ensure that while a research wing operated as part of a broader criminal intelligence organisation, and actively participated in improving the research capabilities of that organisation, the wing itself would be engaging in a related but separate endeavour.

2.75 The committee notes the comments of the CPSU, but does not agree that the recent staff re-organisation at the AIC indicates that the proposed merger is flawed. The committee is pleased to note that since the re-organisation, the AIC has hired ten new researchers.

2.76 The committee notes that the collections of the JV Barry Library will be retained and that public access will continue. The committee commends the AIC for beginning the process of making its holdings more accessible through digitisation.

2.77 The committee supports the objectives of this bill and recommends that it be passed by the Senate.

Recommendation 1

2.78 The committee recommends that the Senate pass the bill.

Senator the Hon Ian Macdonald Chair

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Dissenting Report of the Australian Labor Party 1.1 The Australian Crime Commission Amendment (Criminology Research) Bill 2016 (the bill) should not be passed. The proposed merger is unnecessary, and would lead to the degradation of valuable independent criminological research.

Independence of research is critical 1.2 As the majority of submitters to this and previous inquiries highlighted, the independence of the Australian Institute of Criminology (AIC) is critical. Labor senators agree that the proposed merger will impinge on the capacity of criminologists working as part of the Australian Crime Intelligence Commission (ACIC) to produce independent research. Correspondingly, it would jeopardise the quality of crime research in Australia. The AIC is also the only independent source of nation-wide crime statistics in Australia. It is not in the public or national interest for such statistics to be seen to be anything less than completely accurate and compiled by independent and skilled professionals. The continued integrity and independence of criminological research in Australia is vital for both the quality of research itself, and the public trust in crime statistics.

Breadth of research should be maintained 1.3 The breadth of the AIC's research is also a serious consideration. The AIC is an internationally renowned institute undertaking general criminological research on a wide range of areas, from child sexual assault to lockout laws, recidivism and problem gambling. Under the planned merger, the ACIC would be responsible for setting the research agenda. Historically, the ACIC’s aim has been to 'reduce serious and organised crime threats of most harm to Australians and the national interest'. Clearly, many of the AIC's research projects would not fit within that framework.

1.4 Labor senators believe there

is a serious risk that many of the AIC's research

projects unrelated to organised crime and other ACIC priorities would be neglected and ultimately abandoned. Labor senators are concerned that the merger would see the AIC shift from important research about high-volume crimes such as assault, domestic violence and theft. These crimes cost the Australian community billions of dollars. A degradation of the research and statistical data in these areas would have broad-reaching impacts. Law- and policy-makers should be able to turn to reliable and credible data in these areas to inform the development of effective and responsive policies.

The proposed merger is unnecessary 1.5 Labor senators also note that the proposed merger will not save any significant amount of money. As the Explanatory Memorandum states, the merger will deliver only small savings over the forward estimates.

1.6 Labor senators believe that merging two bodies with very different aims and functions will be inefficient. Even the 2014 National Commission of Audit did not suggest the possibility of the AIC merging with the ACIC (then the ACC), proposing instead the possible relocation of the AIC to a university.

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Conclusion 1.7 There are better ways to improve information sharing between the AIC and ACIC. Access to classified data can be secured through legislation or inter-agency agreements. A merger is not required.

Recommendation 1

1.8 Labor senators recommend that this bill not be passed.

Senator Louise Pratt Deputy Chair

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Dissenting Report of the Australian Greens 1.1 The Australian Crime Commission Amendment (Criminology Research) Bill 2016 seeks to merge the functions of the Australian Institute of Criminology (AIC) into the Australian Crime Commission (ACC).

1.2 This bill was first introduced in 2015 and lapsed on prorogation of the parliament in May 2016. The 2016 bill has had changes made to the Explanatory Memorandum.

1.3 The government has stated that it sees great opportunity in combining the resources of the AIC and ACC to provide Australian law enforcement agencies with central access to a consolidated and comprehensive criminal research and intelligence resource.

1.4 As per the previous inquiry into this bill, the majority of submitters raised significant concerns about the proposed merger. Professor Adam Graycar AM, former Director of the AIC stated that 'people are less likely to take the output seriously and give it credibility. Without credibility research is hollow'.1

1.5 Concerns were expressed to the committee that merging the research function of the AIC with the law enforcement function of the ACC would compromise the perception of the independence of the AIC.

1.6 Professor Duncan Chappell submitted that the 'fundamental aims and ethos of both agencies are radically different',2 and Professor Peter Norden AO, a fellow of the Australian and New Zealand Society of Criminology (ANZSOC) submitted that, 'the suggestion that an academic research body such as the AIC being able to successfully merger with an intelligence agency…shows a complete lack of understanding of the role of the two bodies'.3

Conclusion 1.7 Should this bill pass there is a significant risk that broad ranging

criminological research that focusses on understanding the causes of crime, and recommending crime prevention strategies, will take second place to the law enforcement needs of the ACC.

1.8 The government's stated aim of providing Australian law enforcement agencies with central access to criminological research could have been achieved by administrative changes which would not require merging the AIC into the ACC.

1 Professor Adam Graycar AM, Flinders University, Submission 8, p. 2.

2 Professor Duncan Chappell, University of Sydney, Submission 16, pp. 1 - 2.

3 Professor Peter Norden AO, Adjunct Professor, School of Global, Urban and Social Studies, RMIT University Melbourne (RMIT), Submission 3, p. 1.

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Recommendation 1

1.9 The Australian Greens recommend that the bill be rejected by the Senate.

Senator Nick McKim Australian Greens

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Appendix 1

Public submissions

1 Professor Gloria Laycock PhD FRSA OBE

2 Professor Ernesto Savona

3 Mr Peter Grabosky

4 Adjunct Professor Peter Norden

5 Professor Tim Prenzler

6 Professor Kathleen Daly

7 Mr John Myrtle

8 Professor Adam Graycar

9 Griffith Criminology Institute

10 Dr Jason Payne

11 Mr Cameron Langfield

12 Dr David Biles OAM

13 Ms Pat Mayhew

14 Civil Liberties Australia

15 Australian Crime Prevention Council

16 Professor Duncan Chappell

17 Mr Michael O'Connell, Commissioner for Victims Rights, South Australia

18 Australian and New Zealand Society of Criminology

19 Community and Public Sector Union

20 Attorney-General’s Department, the Australian Criminal Intelligence Commission and the Australian Institute of Criminology

21 Professor Toni Makkai, Emeritus Professor of the ANU College of Arts and Social Sciences

22 Sydney Institute of Criminology

23 Professor Murray Lee

24 Professor Roderic Broadhurst

25 Professor Michael Levi PhD, DSc (Econ), FAcSS, FLSW

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The Senate

Legal and Constitutional Affairs

Legislation Committee

Criminal Code Amendment (Firearms Trafficking) Bill 2016

November 2016

35

ii

 Commonwealth of Australia 2016

ISBN 978-1-76010-475-7

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License.

The details of this licence are available on the Creative Commons website:

http://creativecommons.org/licenses/by-nc-nd/3.0/au/.

This document was produced by the Senate Legal and Constitutional Affairs Committee secretariat and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

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Members of the committee Members

Senator the Hon Ian Macdonald (LNP, QLD) (Chair)

Senator Louise Pratt (ALP, WA) (Deputy Chair)

Senator David Fawcett (LP, SA)

Senator Nick McKim (AG, TAS)

Senator Linda Reynolds (LP, WA)

Senator Murray Watt (ALP, QLD)

Secretariat

Ms Toni Matulick, Committee Secretary

Dr Marcus Smith, Principal Research Officer

Ms Jo-Anne Holmes, Administrative Officer

Suite S1.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

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v

Table of contents

Members of the committee ............................................................................... iii

Recommendations .............................................................................................vii

Chapter 1.............................................................................................................. 1

Introduction and background ................................................................................. 1

Referral ................................................................................................................... 1

Conduct of inquiry .................................................................................................. 1

History of the bill .................................................................................................... 1

Treatment of minors and individuals with significant cognitive impairment ........ 3

Committee view a

nd recommendations ................................................................. 5

Diss

enting Report of the Australian Labor Party ........................................... 7

Dissenting Report by the Australian Greens .................................................... 9

Appendix 1 - Public submissions ..................................................................... 11

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vii

Recommendations

Recommendation 1

The committee recommends that the Senate pass the bill.

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Chapter 1

Introduction and background Referral 1.1 On 13 October 2016, the Senate referred the Criminal Code Amendment (Firearms Trafficking) Bill 2016 to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 7 November 2016.1 The Senate Selection of Bills Committee recommended that the bill be referred as it proposes changes to the criminal law which have 'a significant impact on the rights and obligations of the Australian people, including potentially the ability to see them deprived of their liberty'.2

1.2 The bill is identical to a bill introduced in the 44th Parliament that was the subject of an inquiry by this committee. Following the prorogation of the 44th Parliament, the previous bill lapsed.

Conduct of inquiry 1.3 In accordance with usual practice, the committee advertised the inquiry on its website and also wrote to organisations inviting written submissions by 26 October 2016. The committee received 4 submissions, listed at Appendix 1. The committee did not hold a public hearing due to the short timeframe and the fact that the committee has previously considered the bill.

History of the bill 1.4 On 3 December 2015, the Criminal Code Amendment (Firearms Trafficking) Bill 2015 was referred to the Senate Legal and Constitutional Affairs Legislation Committee (the committee). Nine submissions were received. The committee reported on the previous bill in February 2016.

1.5 In

the 44th Parliament, the committee recommended that the bill be passed, subject to amending the Explanatory Memorandum (EM) to clarify who bears the onus of proof in relation to the age of defendants, as well as the operation of mandatory minimum sentencing in relation to people with significant cognitive impairment.3 Both of these amendments have since been made.

1.6 The committee notes that this is the fourth time that the parliament has considered similar provisions related to mandatory minimum sentences to those proposed in this bill. Similar provisions were included in the Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, introduced on 17 July 2014, and the Crimes Legislation Amendment (Powers, Offences and Other

1 Journals of the Senate, No. 11—13 October 2016, p. 327.

2 Senate Selection of Bills Committee, Report No. 7 of 2016, 13 October 2016, Appendix 2.

3 Senate Legal and Constitutional Affairs Legislation Committee, Criminal Code Amendment (Firearms Trafficking) Bill 2015 [Provisions] Committee Report, February 2016, pp. 12-13.

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Measures) Bill 2015, introduced on 19 March 2015. While both bills were passed, in each case this only occurred following amendments in the Senate that removed the mandatory minimum sentence provisions.

1.7 The Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, and the earlier version of this bill have been the subject of inquiry by this committee.4 The current bill inquiry is therefore the fourth time since 2014 that the committee has examined these measures. Collectively, the inquiries that have been conducted by this committee, including receiving evidence from key stakeholders, have been significant and substantial.

Purpose of the bill 1.8 The bill amends the Criminal Code Act 1995 (Cth) (Criminal Code) to set new mandatory minimum penalties and maximum penalties for the offences of:

 trafficking firearms and firearms parts within Australia (in Division 360

of the Criminal Code); and

 trafficking firearms and firearms parts into and out of Australia (in Division 361 of the Criminal Code).

1.9 For each of the offences in these Divisions, the following penalties will apply:

 a mandatory minimum sentence of imprisonment for five years; and

 maximum penalties of imprisonment for 20 years or a fine of 5,000 penalty units, or both.

1.10 The bill implements the Government’s Keeping illegal guns off our streets and our communities safe election policy.5 The EM provides a number of reasons why the amendment is necessary. These include:

 the mandatory mini

mum sentence and increased maximum penalties aim to more adequately reflect the serious nature and potential consequences of supplying firearms and firearm parts to the illicit market;6

 firearms cause serious harms and the amendments are reasonable to

achieve the objective of ensuring that sentences 'reflect the seriousness of their offending; and7

4 Senate Legal and Constitutional Affairs Legislation Committee, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014 Committee Report, September 2014; Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 [Provisions] Committee Report, June 2015; Senate Legal and Constitutional Affairs Legislation Committee, Criminal Code Amendment (Firearms Trafficking) Bill 2015 [Provisions] Committee Report, February 2016.

5 Liberal Party of Australia, Keeping Illegal Guns Off Our Streets and Our Communities Safe, https://www.liberal.org.au/coalitions-policy-keep-illegal-guns-our-streets-and-our- communities-safe (accessed 1 November 2016)

6 Explanatory Memorandum (EM), Criminal Code Amendment (Firearms Trafficking) Bill 2016, p. 2.

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 firearms can remain within that market for many years and be accessed

by individuals and groups who would use them to commit serious and violent crimes, such as murder.8

1.11 Further detail on the bill can be found in the committee's report of February 2016.9

Treatment of minors and individuals with significant cognitive impairment 1.12 The bill provides that the mandatory minimum penalty does not apply if it can be established, 'on the balance of probabilities, that the person was aged under 18 years when the offence was committed', which allows for judicial discretion in sentencing minors.10 Further, the EM also states in relation to the age of the defendant:

As this provision is framed as an exception to the law on mandatory minimums, the provisions in the Criminal Code regarding defences will apply. As a result, the defendant bears an evidential burden regarding their age, meaning they need to adduce or point to evidence that suggests a reasonable possibility that they are under 18 (see section 13.3 of the Criminal Code). If the defendant discharges that evidential burden, the prosecution must prove beyond reasonable doubt that the defendant is aged over 18 (see section 13.3 of the Criminal Code).11

1.13 The mandatory minimum penalty will also not apply for individuals with a significant cognitive impairment. The EM makes two points in relation to this issue. First, it notes that 'mandatory minimum sentences in the bill do not impose a minimum non-parole period for offenders' and that this will allow judicial discretion in relation to matters such as significant cognitive impairment. Second, it states that the mental impairment defence in the Criminal Code will also apply.12

Issues raised by submitters 1.14 The Sporting Shooters Association of Australia (SSAA) believes that the bill appropriately recognises that law enforcement should focus on the illicit firearms market. However, more broadly, SSAA holds the view that:

Current legislation affecting legal firearms and private firearms ownership continues to be onerous on the licensed owner, with some legislation based on emotive political and social ideology, rather than credible and scientifically proven evidence.13

7 EM, p. 2.

8 EM, p. 2.

9 Senate Legal and Constitutional Affairs Legislation Committee, Criminal Code Amendment (Firearms Trafficking) Bill 2015 [Provisions] Committee Report, February 2016

10 Subsections 360.3A(2) and 361.5(2).

11 EM, p. 5.

12 EM, p. 5.

13 Sporting Shooters Association of Australia, Submission 1, p. 1.

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1.15 Civil Liberties Australia (CLA) opposes mandatory minimum sentences because, in their view, they contravene the separation of powers by limiting the role of the judiciary to apply 'laws to individual cases and determine what penalty should apply for contravening them'.14 Further, they consider that mandatory minimum sentences are 'ineffective in reducing crime' and result in 'harsh and unjust punishments' as a result of forcing courts to apply an inflexible standard without considering the specific facts and broader circumstances associated with a particular case.15

1.16 The Law Council of Australia (LCA) has adopted a similar position to CLA. Whilst the LCA supports increasing the maximum penalties for firearms trafficking, it does not support a mandatory minimum penalty of 5 years imprisonment:

The imposition of a mandatory minimum imprisonment sentence is a partial fettering of judicial discretion that impedes the sentencing judge’s ability to fashion a sentence that is of an appropriate severity in all the

circumstances…16

1.17 The submission of the Attorney-General's Department (the Department) states that the amendments recognise the fact that firearms trafficking offences are serious crimes that pose a significant threat to community safety, but also that 'current efforts

to prevent the diversion of firearms into overseas illicit markets [demonstrate] Australia’s commitment to its international obligations regarding the illegal firearms trade'.17

1.18 According to the Department, the introduction of mandatory minimum sentences 'reflects the belief that those caught trafficking firearms should receive penalties that are commensurate with the seriousness of their offending'.18 The Department also highlights the fact that the Commonwealth is not the first jurisdiction to introduce mandatory minimum sentences for this type of offence, noting that it has already been adopted in Queensland and the

United Kingdom.19

1.19 The Department responds to potential human rights objections to the provisions of the bill in their submission. The Parliamentary Joint Committee on Human Rights (PJCHR) deferred consideration of the bill in its most recent report.20 In the 44th Parliament, the bill was also considered by the PJCHR, which recommended that:

14 Civil Liberties Australia, Submission 4, p. 1.

15 Submission 4, p. 1.

16 Law Council of Australia, Submission 3, p. 4.

17 Submission 2, p. 2.

18 Attorney-General's Department, Submission 2, p. 2.

19 Submission 2, p. 2.

20 Parliamentary Joint Committee on Human Rights (PJCHR), Human Rights Scrutiny Report No. 7 of 2016, 11 October 2016.

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…the provision be amended to clarify that the mandatory minimum sentence is not intended to be used as a 'sentencing guidepost' and that there may be a significant difference between the non-parole period and the head sentence.21

1.20 The Department highlights the fact that the EM states: 'the mandatory minimum is not intended as a guide to the non-parole period, which in some cases may differ significantly from the head sentence'.22 The Department expands on this point in their submission:

The Government believes that mandatory minimum sentences for firearms trafficking offences are reasonable and necessary both to deter would-be firearms traffickers, and to appropriately penalise those who commit these offences. There are appropriate limitations and safeguards in place to ensure that detention is proportionate in each individual case. As the provisions do not impose a mandatory non-parole period, the actual time a person will be incarcerated will remain at the discretion of the sentencing judge.23

1.21 The Department emphasises that a relevant provision of the Crimes Act 1914 (Cth), requiring courts to take into account the character, antecedents, age, means and physical or mental conditions of the person.24 Finally, it is the Department's view that 'based on the High Court’s reasoning in Magaming v The Queen25 in relation to mandatory minimum penalties for aggravated people smuggling offences, the proposed provisions are considered lawful and not arbitrary'.26

Committee view and recommendations 1.22 The committee agrees that there are serious harms associated with firearms trafficking, due to the role of firearms in violent crime and the associated threat to community safety. For this reason, the committee believes that strengthening penalties in this area is necessary. The committee is pleased that the recommended amendments have been made to the EM since the bill was previously considered by the committee. These changes appropriately clarify the impact of the bill on minors and individuals with significant cognitive impairment.

1.23 The committee is satisfied that the bill includes sufficient flexibility to allow courts to take account of individual circumstances where this is appropriate, and addresses recommendations the committee made following its previous inquiry into the bill in the 44th Parliament.

1.24 The committee also notes that this is the fourth time that mandatory minimum sentencing provisions have been considered by the parliament, and by this committee.

21 PJCHR, 22nd Report of the 44th Parliament, 13 May 2015.

22 Submission 2, p. 4.

23 Submission 2, p. 4.

24 Crimes Act 1914 (Cth) s. 16A(2)(m).

25 [2013] HCA 40.

26 Submission 2, p. 4.

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The committee is pleased to note the high level of consultation and inquiry that has taken place in relation to these proposed provisions, and that amendments to the EM recommended by this committee have been made by government.

Recommendation 1

The committee recommends that the Senate pass the bill.

Senator the Hon Ian Macdonald Chair

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Dissenting Report of the Australian Labor Party

1.1 While Labor Senators agree with the report's commentary in relation to increased penalty provisions, we have serious concerns about the introduction of mandatory minimum sentences for those convicted of firearm trafficking offences.

1.2 The Australian Labor Party maintains its position that the introduction of mandatory minimum sentences for firearms trafficking offences should be avoided. We note that these provisions have now been considered three times and rejected by Parliament, including by this Parliament in relation to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. The government has, for a fourth time, failed to justify the need for such provisions.

1.3 Noting evidence provided to this committee during the last inquiry into this bill, Labor Senators believe that effective deterrence is achieved by increasing penalties applicable to the most serious firearms offenders, rather than by imposing prison terms on the least serious offenders. Labor Senators have previously made this point in relation to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015. At that time, Labor recommended that mandatory minimum sentences for firearms trafficking offences be replaced with increased penalty provisions.

1.4 Increasing maximum penalties for firearms trafficking reflects community concern about the consequences of serious firearms offences, and mirrors the regime of penalties proposed by Labor when it was in Government. It would send a strong message to serious criminals about the consequences of firearms trafficking.

1.5 The explanatory memorandum offers no evidence to support the idea that mandatory minimum sentences for firearms trafficking will enhance or sustain Australia's firearms control regime by deterring potential offenders. Labor Senators note that there is evidence suggesting that imposing mandatory minimum penalties in fact has the opposite effect.1

1.6 Furthermore, the introduction of mandatory minimum penalties would impinge on the judicial discretion to impose appropriate sentences with regard to the unique circumstances of each case, and would not effectively deter potential offenders.

1.7 Considering the increased burden on the justice system from the introduction of mandatory minimum sentences, the Law Council of Australia (LCA) has previously warned of:

1 See, Legal and Constitution Affairs Legislation Committee, Criminal Code Amendment (Firearms Trafficking) Bill 2015 [Provisions], February 2016, Australian Human Rights Commission, Submission 6, p. 12.

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[P]otentially increasing the likelihood of recidivism because prisoners are inappropriately placed in a learning environment for crime. This reinforces criminal identity and fails to address the underlying causes of crime. This has particular relevance to young and first time offenders.2

1.8 State prosecutors and the LCA have previously raised concerns with this committee that introducing mandatory minimum sentences for firearms offences could 'lead to unjust results'.3 The LCA specified that these results will be 'particularly for vulnerable groups within society: indigenous peoples, young adults, juveniles, persons with a mental illness or cognitive impairment and the impoverished'.4 Labor Senators do not consider that non-legislative changes can adequately mitigate the potential impact of the bill on vulnerable groups, or the risk of a miscarriage of justice.

1.9 Accordingly, in restating Labor's commitment to stronger penalties for firearms trafficking offences, Labor Senators would support the passage of the Bill without the harmful and unnecessary inclusion of mandatory minimum sentences.

Recommendation 1

1.10 Labor Senators recommend that the bill be amended to remove the provisions for mandatory minimum penalties.

Recommendation 2

1.11 Labor Senators recommend that, subject to recommendation 1.10, the bill be passed.

Senator Louise Pratt Deputy Chair

2 Senate Legal and Constitutional Affairs Committee, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, September 2014, Law Council of Australia (LCA), Submission 4, p. 4.

3 Senate Legal and Constitutional Affairs Legislation Committee, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, September 2014, LCA, Submission 4, p. 4.

4 Senate Legal and Constitutional Affairs Legislation Committee, Crimes Legislation Amendment (Psychoactive Substances and Other Measures) Bill 2014, September 2014, LCA, Submission 4, p. 4.

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Dissenting Report by the Australian Greens 1.1 The Criminal Code Amendment (Firearms Trafficking) Bill 2016 seeks to amend the Criminal Code Act 1995 to introduce a mandatory minimum sentence of imprisonment for the offences of trafficking firearms or firearms parts within Australia and into and out of Australia. The bill also increases the maximum penalties for these offences.

1.2 This will be the fourth time the Government has sought to legislate for mandatory minimum sentences for firearms trafficking offences.

1.3 In the previous inquiry on the 2015 bill, the majority of submissions received by the committee raised significant concerns about the mandatory minimum penalties.

1.4 The Migration Act 1958 contains mandatory minimum sentences for certain people smuggling related offences. These are the only Commonwealth offences that currently attract a mandatory minimum sentence. There are currently no mandatory minimum penalties in the Criminal Code Act 1995.

1.5 During the previous inquiry into this bill, the Law Council of Australia (LCA) submitted that:

[I]ncreasing the maximum penalty to 20 years imprisonment or a fine of 5000 penalty units, or both, reflects community concern regarding the potential seriousness of the offence.1

1.6 Many submissions also acknowledged that it was appropriate to increase to increase the maximum penalties and that an increase in penalties acknowledges the gravity of firearms trafficking offences.

1.7 The Australian Human Rights Commission (AHRC) submitted that:

[T]he imposition of mandatory minimum sentences raises the real prospect that the sentence imposed will be disproportionate to the culpability of the offender or the gravity of the particular offence because it is set without regard to the individual circumstances of the offender and context of the particular offence.2

1.10 The Australian Greens acknowledge the seriousness of firearms trafficking and the need for sentences that reflect the seriousness of the offending.

1.11 The Australian Greens do not support mandatory minimum sentences for any offences.

1.12 There is no clear evidence that mandatory sentencing laws have a deterrent effect. In addition, they can result in injustice and remove the court’s discretion to

1 Legal and Constitutional Affairs Legislation Committee, Criminal Code Amendment (Firearms Trafficking) Bill 2015, February 2016, Law Council of Australia (LCA), Submission 4, p. 2.

2 Legal and Constitutional Affairs Legislation Committee, Criminal Code Amendment (Firearms Trafficking) Bill 2015, February 2016, Australian Human Rights Commission (AHRC), Submission 5, p. 5

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impose a sentence that takes the individual circumstances of the offender and the offence into account.

Recommendation 1

1.8 The Australian Greens recommend clauses relating to mandatory minimum sentencing be removed from Schedule 1.

Senator Lee Rhiannon Australian Greens

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Appendix 1

Public submissions

1 Sporting Shooters' Association of Australia

2 Attorney-General's Department

3 Law Council of Australia

4 Civil Liberties Australia

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The Senate

Legal and Constitutional Affairs

Legislation Committee

Migration Amendment (Family Violence and Other Measures) Bill 2016 [Provisions]

October 2016

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ii

 Commonwealth of Australia 2016

ISBN 978-1-76010-470-2

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License.

The details of this licence are available on the Creative Commons website:

http://creativecommons.org/licenses/by-nc-nd/3.0/au/.

This document was produced by the Senate Legal and Constitutional Affairs Committee secretariat and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

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Members of the committee Members

Senator the Hon Ian Macdonald (LNP, QLD) (Chair)

Senator Louise Pratt (ALP, WA) (Deputy Chair)

Senator David Fawcett (LP, SA)

Senator Nick McKim (AG, TAS)

Senator Linda Reynolds (LP, WA)

Senator Murray Watt (ALP, QLD)

Participating Members

Senator Pauline Hanson (PHON, QLD)

Secretariat

Ms Toni Matulick, Committee Secretary

Ms Charlotte Fletcher, Senior Research Officer

Ms Jo-Anne Holmes, Administrative Officer

Suite S1.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

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v

Table of contents

Members of the committee ............................................................................... iii

Recommendations .............................................................................................vii

Abbreviations ..................................................................................................... ix

Chapter 1

Introduction and background ................................................................................. 1

Conduct of the inquiry ............................................................................................ 1

References to the Hansard transcript

...................................................................... 1

Purpose of the bill ................................................................................................... 2

Key provisions of the bill ....................................................................................... 3

Proposed regulations .............................................................................................. 4

Chapter 2

Key issues................................................................................................................... 7

Addressing family violence .................................................................................... 7

Australia's obligations under international law .................................................... 17

Privacy ..................................................................................................................

20

Procedural fairness ............................................................................................... 22

Impacts on the visa application process ............................................................... 25

Appendix 1 - Public submissions and Answers to Questions on Notice ...... 29

A

ppendix 2 - Public hearings and witnesses ................................................... 31

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Recommendation

Recommendation 1

2.84 The committee recommends that the Senate pass the bill.

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ix

Abbreviations

AAT Administrative Appeals Tribunal

ACIC Australian Criminal Intelligence Commission

ALRC Australian Law Reform Commission

AWAVA Australian Women Against Violence Alliance

BCO The Border Crossing Observatory, Monash Gender and Family Violence Focus Program, and InTouch Multicultural Centre Against Family Violence

CALD Culturally and linguistically diverse

CATWA Coalition Against Trafficking in Women Australia

CEDAW Convention on the Elimination of All Forms of Discrimination Against Women

DIAC Department of Immigration and Citizenship

DIBP Department of Immigration and Border Protection

EM Explanatory Memorandum

FCA Federal Court of Australia

FECCA Federation of Ethnic Communities' Councils of Australia

IARC Immigration Advice and Rights Centre

ICCPR International Covenant on Civil and Political Rights

LCA Law Council of Australia

MCSW McAuley Community Services for Women

MIA Migration Institute of Australia

MLP Australian National University College of Law Migration Law Program

OAIC Office of the Australian Information Commissioner

PIA Privacy Impact Assessment

SCA Settlement Council of Australia

VRC Victorian Royal Commission

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Chapter 1

Introduction and background 1.1 On 16 March 2016 the Hon Peter Dutton MP, Minister for Immigration and Border Protection (the minister), introduced the Migration Amendment (Family Violence and Other Measures) Bill 2016 into the House of Representatives.1

1.2 On 17 March 2016, pursuant to a report of the Senate Standing Committee for Selection of Bills, the Senate referred the provisions of the bill to the Senate Legal and Constitutional Affairs Legislation Committee (the committee) of the 44th parliament for inquiry and report by 10 May 2016.2 At the dissolution of the Senate and the House of Representatives on 9 May 2016, the committee ceased to exist and the inquiry lapsed.

1.3 The bill was re-referred to the committee of the 45th parliament on 15 September 2016 for inquiry and report by 10 October 2016.3

Conduct of the inquiry 1.4 In accordance with usual practice, the committee of the 44th parliament wrote to a number of persons and organisations, inviting submissions to the inquiry by 11 April 2016. The inquiry was also made public on the committee website. The committee received nine submissions to the inquiry.

1.5 The committee of the 45th parliament resolved not to call for further submissions, but rather to rely on the submissions already provided and allow for any new submissions to be made via the committee's webpage up to the date the report was to be tabled. The committee also wrote to one organisation which had indicated an intention to make a submission to the initial inquiry, but had not done so prior to the dissolution of parliament.

1.6 The committee received a further five submissions.

1.7 Submissions are located at Appendix 1.

1.8 The committee held a public hearing in Canberra on 5 October 2016.

References to the Hansard transcript 1.9 References to the committee Hansard are to the proof Hansard. Page numbers may vary between the proof and the official transcript.

1 House of Representatives, Votes and Proceedings, No. 183, 16 March 2016, p. 1994.

2 Journals of the Senate, No. 148, 17 March 2016, pp 3989-3990.

3 Journals of the Senate, No. 7, 15 September 2016, pp 211-213.

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Purpose of the bill 1.10 The bill proposes to amend the Migration Act 1958 (the Migration Act) to provide for the introduction of an assessable sponsorship framework for family sponsored visas.

1.11 Proposed new subsections 140AA(2) and (3) set out the purposes of the new scheme:

(2) The purposes of this Division, to the extent it applies in relation to the sponsored family visa program, are:

(a) to strengthen the integrity of the program; and

(b) to place greater emphasis on the assessment of persons as family sponsors; and

(c) to improve the management of family violence in the delivery of the program.

(3) The purposes referred to in subsection (2) are to be achieved by

establishing a framework that:

(a) requires the approval of persons as family sponsors before any relevant visa applications are made; and

(b) imposes obligations on persons who are or were approved family sponsors; and

(c) provides for sanctions if such obligations are not satisfied; and

(d) facilitates the sharing of personal information in accordance with this Division.

1.12 Introducing the bill into the House of Representatives, the minister explained that under existing arrangements, sponsorship for family visas was assessed as part of the relevant visa application, and for most family visas, there was little focus on the character of the sponsor or responsibilities attaching to the sponsorship. For example, sponsors were required to provide police checks only when a child was involved in the visa application.4 This had led to 'integrity issues' in the family visa program,5 including 'Australians who have a violent history, including against family members, being able to sponsor noncitizens without having to disclose details of their past' to the department or to the visa applicants.6 The minister said the bill would 'address these shortcomings' by extending relevant aspects of the sponsorship framework that

4 The Hon Peter Dutton MP, Minister for Immigration and Border Protection, House of Representatives Hansard, 16 March 2016, p. 8.

5 Explanatory Memorandum (EM), p. 1.

6 The Hon Peter Dutton MP, Minister for Immigration and Border Protection, House of Representatives Hansard, 16 March 2016, p. 8.

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currently applies to temporary work sponsored visas, to the family sponsored visa program.7

1.13 The Explanatory Memorandum (EM) to the bill adds that the bill is intended to support the National Plan to Reduce Violence against Women and their Children, whose Action Item 11 includes 'requiring additional information disclosure by the Australian husband or fiancé applying for an overseas spouse visa',8 in recognition that newly arrived migrants are among the more vulnerable people in the community.

Key provisions of the bill 1.14 Part 2 Division 3A of the Migration Act currently provides for a sponsorship framework for the temporary sponsored work visa program. The Act currently defines an 'approved sponsor'.9 The provisions of the bill would establish two distinct categories of approved sponsor: 'approved family sponsor' and 'approved work sponsor'. The provisions of the bill would amend relevant sections within Division 3A to create distinct references to work visa sponsorship and family visa sponsorship, and then to extend the application of specified provisions within Division 3A to the family visa program.

1.15 Generally speaking, the amendments set out in the bill do not set up the substantive conditions and operations of the proposed family visa assessable sponsorship framework. Rather, they establish the legislative powers under which the details of the scheme are to be prescribed by regulation.

1.16 The key proposed amendments include:

 inserting definitions into subsection 5(1) to define and distinguish an

'approved family sponsor' and an 'approved work sponsor' (Items 1 and 2);

 setting out the purposes of the program in new subsections 140AA(2) and (3),

as noted above. The EM states that while these provisions set out the broad purposes of the amendments, they are not intended to limit or restrict the interpretation or administration of any of the provisions in the Division;10

 amending relevant provisions within Subdivision B of Division 3A, notably

the insertion of new subsection 140E(1A), to provide that the minister must approve a person as a family sponsor in relation to prescribed classes of visa, if prescribed criteria are satisfied (Item 14). The amendments would provide for such prescription to be made in the regulations, allow the regulations to set out approval processes for family sponsors and different terms and processes

7 The Hon Peter Dutton MP, Minister for Immigration and Border Protection, House of Representatives Hansard, 16 March 2016, p. 8.

8 Department of Social Services (DSS), Second Action Plan 2013-2016: Moving Ahead, of the National Plan to Reduce Violence against Women and their Children 2010-2022, September 2014, p. 25.

9 Migration Act 1958, s. 5(1).

10 EM, p. 5.

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for different types of visas and sponsorships, and provide for the minister to vary sponsorship approvals;

 extending section 140H to allow the prescription in regulations of sponsorship obligations for family visa sponsors (Item 32), and inserting new subsections 140HA(2A) and (2B), setting out the kinds of sponsorship obligations that are to be applied to the sponsored family visa program, and to whom the relevant regulations will apply. The minister must 'take all reasonable steps' to ensure that the obligations prescribed in regulations include complying with requirements to keep and provide certain information, and notifying the minister of changes in the sponsor or visa holder's circumstances (Item 38);

 enabling the minister to impose sanctions if sponsorship obligations are not

met by current or former family visa sponsors (Items 41 to 48). These include barring the sponsor from doing certain things, cancelling the sponsorship approval, applying for a civil penalty order, requiring an undertaking from the person (with (civil) court action able to be taken if the undertaking is breached), and barring the person from sponsoring more people or from applying to be a family sponsor in future. Item 49 would amend section 140L such that the regulations may prescribe circumstances in which the minister may or must bar or cancel sponsorships, and criteria to be taken into account by the minister in determining what action to take; and

 providing for the minister to waive a sponsorship bar placed on a person under circumstances or criteria prescribed in the regulations.

1.17 Items 60 to 63 of the bill would amend section 140ZH of the Act, which provides for disclosure of personal information by the minister in relation to the sponsored work visa program. These provisions are extended to the family program, empowering the minister to disclose personal information about potential, present and former visa applicants and their sponsors, to each other, and to prescribed Commonwealth, state or territory agencies, within circumstances and under conditions prescribed in regulations.

1.18 For the operation of these provisions, the regulations will need to prescribe the kinds of personal information that may be disclosed by the minister under the respective provisions, and the kinds of visas to which the provisions will apply.11

Proposed regulations 1.19 The bill provides that its substantive provisions would commence on a day to be fixed by Proclamation, or if not before, then 12 months after the date of Royal Assent. The EM states that the delayed commencement is to allow time for the necessary regulatory and administrative arrangements to be put in place to give effect to the legislative scheme facilitated by the bill. The government expects that the

11 EM, p. 19.

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provisions would commence by Proclamation in late 2016 or early 2017, subject to possible delays occasioned by the 2016 election.12

1.20 The Statement of Compatibility with Human Rights in the EM provides some further insight into the intended details of the scheme which would be put in place by the regulations. The EM states that the scheme would initially apply to partner visas, and then be extended to other visas in the family program.13 All sponsors for partner visas would have to undergo a police check.14

1.21 The EM also sets out the situations in which the minister may refuse a sponsorship application. It states that refusals would occur 'in limited circumstances', including where the sponsor has convictions for paedophilia, sexual offences against minors, or violent offences.15 Even in these circumstances, refusal of sponsorship would not be mandatory but discretionary and a decision would take into account 'a range of factors including: the length of the relationship; the type of offence; how recently the offence occurred; relevance to the family relationship; and any mitigating circumstances'.16 Applicants would be entitled to natural justice during the process, and have access to merits review of any refusal by the Administrative Appeals Tribunal.17

12 EM, p. 3.

13 EM, p. 22.

14 EM, p. 23.

15 EM, p. 24.

16 EM, p. 24.

17 EM, p. 24.

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Chapter 2 Key issues

2.1 During the course of this inquiry, a number of issues were raised. These included:

 the capacity of the proposed amendments to address family violence;

 Australia's obligations under international law;

 procedural fairness for both visa and sponsor applicants;

 privacy implications; and

 the impact of the proposed amendments on the processing of visa

applications.

Addressing family violence 2.2 One of the key justifications for introducing these proposed amendments is to combat family violence in the context of the family visa scheme.1 In its 2014-15 Annual Report, the Department of Immigration and Border Protection (DIBP) indicated that between 2012 and 2015 an average of approximately 690 family violence claims were made to the Department each year.2

2.3 Earlier this year the Victorian Royal Commission into Family Violence (VRC) found that people from culturally and linguistically diverse (CALD) backgrounds will be more likely to face barriers in obtaining help. It also found that the impact on those victims is particularly severe where they do not have permanent residency and consequently have limited access to support services, and are at risk of coercion and control from a sponsoring spouse and other family members.3 The Coalition Against Trafficking in Women Australia (CATWA) also noted that there have been numerous cases of Australian men 'facilitating forced and servile marriages with migrant women', and of men with violent histories sponsoring migrant women to come to Australia, and then being violent towards them, culminating in some instances in their murder.4

The extent of the proposed amendments

2.4 The committee heard evidence that the proposed amendments would only have an impact on some victims and potential victims of family violence, and only

1 The Hon Peter Dutton MP, Minister for Immigration and Border Protection, House of Representatives Hansard, 16 March 2016, p. 8.

2 Department of Immigration and Border Protection (DIBP), Annual Report 2014-15, p. 68, https://www.border.gov.au/ReportsandPublications/Documents/annual-reports/DIBP-Annual- Report-2014-15.pdf.

3 Victorian Government, Royal Commission into Family Violence (Commissioner: The Hon. Marcia Neave AO), March 2016, p. 34.

4 Coalition Against Trafficking in Women Australia (CATWA), Submission 2, p. 1.

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where those individuals engaged with Australia's migration framework as contemplated by this bill. Ms Erin Gillen of the Federation of Ethnic Communities' Councils of Australia (FECCA) argued that the proposed measures would only impact existing intimate relationships where the parties to that relationship choose to apply for a family visa, and that this needs to be considered when talking about the capacity of the proposed amendments to 'prevent' family violence. She explained that:

[T]o get a partner visa the requirement is that you are married or in a de facto relationship with an Australian citizen or permanent resident and that that relationship is genuine and ongoing. That may be happening in Australia. There may already be people in relationships in Australia applying for partner visas or they may be offshore applying for partner visas. Violence may already be happening. It may have happened previously in that relationship. So I think it is a little difficult to talk about prevention when we are talking about existing relationships. We are not talking about someone brand new, who has never been in a relationship with this person coming in. They are already there.5

2.5 Ms Gillen also argued that in a scenario where a non-citizen was in Australia on a different type of visa (such as a student visa), entered into a relationship and applied for a partner visa, but was unsuccessful due to the sponsor applicant having a criminal history, that relationship would not necessarily end simply because the sponsor application had been unsuccessful.6 That person could try and apply for another type of visa, therefore not allowing a person to sponsor a non-citizen does not necessary mean the relationship will end, and that they will be protected from any violence by virtue of that sponsor refusal.7 CATWA agreed, arguing that 'it is…problematic to assume that the abusive nature of the relationship will end merely because the sponsor's application has been refused'.8

2.6 Both the McAuley Community Services for Women (MCSW) and the Settlement Council of Australia (SCA) noted that family violence is underreported.9 The SCA argued that the proposed measures would not help to exclude potential sponsors who had been violent in the past, but whose actions had not resulted in any criminal conviction.10 The Border Crossing Observatory, Monash Gender and Family Violence Focus Program, and InTouch Multicultural Centre Against Family Violence

5 Ms Erin Gillen, Acting Director, Federation of Ethnic Communities' Councils of Australia (FECCA), Committee Hansard, 5 October 2016, p. 12.

6 Ms Erin Gillen, Acting Director, FECCA, Committee Hansard, 5 October 2016, p. 13.

7 Ms Erin Gillen, Acting Director, FECCA, Committee Hansard, 5 October 2016, pp 13-14.

8 CATWA, Submission 2, p. 2.

9 McAuley Community Services for Women (MCSW), Submission 13, p. 1; Settlement Council of Australia (SCA), Submission 10, p. 2.

10 SCA, Submission 10, p. 2.

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(BCO) agreed, noting that where family violence crimes are reported, there is a significant rate of attrition at each stage of the justice process.11

2.7 The BCO also argued that:

To presume that women are empowered by knowledge of a violent history undermines all the emerging research that indicates that knowing about violence and experiencing violence is not enough to enable women to be safer. This is a particularly important point given the body of research in Australia and internationally which finds that separation is one of the leading risk factors for intimate partner killing or serious harm.12

2.8 Mr Hamish Hansford of the DIBP, stated that over the past five years there have been significant changes in general attitudes and approaches to family violence, and argued that the Department has a better awareness of the issues than it did previously.13 He also indicated that it is important to consider the proposed amendments in context, and explained that:

[T]here are a whole range of different pathways for people affected by domestic violence. I think the issue some of the people were raising earlier this morning was: what happens when there is a family onshore where there is domestic violence involved?...The department has an understanding about how we deal with that situation—as well as, of course, ministerial intervention, where the minister can consider individual cases. The department has a whole range of mechanisms that we can consider. We will accord with international convention and keeping families together where appropriate, and provide options where there is domestic violence or other factors at play.14

We are not saying that this is a complete solution for everything but, in the department that manages migration and immigration, we think this is a proportionate response that the government has put forward as a bill.15

2.9 Mr Hansford also emphasised that the proposed amendments are designed to help enhance the overall integrity of Australia's migration system.16 Mr David Drummond, Director of Visa Framework and Reform, emphasised in particular the importance of the proposed enforceable obligations on sponsors, stating that:

Right now there is only one real undertaking on the sponsor, and that is to support someone financially for two years and provide accommodation. The bill actually looks at the ability of a sponsor to provide information to

11 Border Crossing Observatory, Monash Gender and Family Violence Focus Program, and InTouch Multicultural Centre Against Family Violence (BCO), Submission 11, p. 5.

12 BCO, Submission 11, p. 5.

13 Mr Hamish Hansford, First Assistant Secretary (FAS), Immigration and Citizenship Policy Division (ICPD), DIBP, Committee Hansard, 5 October 2016, p. 23.

14 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 23.

15 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 24.

16 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 20.

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the department to support their application—and that is an important part of the bill—to provide notification of key changes and to make sure that the information is not false and misleading. So it really gets back to the point that I mentioned in the opening statement about transparency between all three partners. Where someone who is a sponsor does try to hide something, it damages the integrity of the migration system, of the process and of the relationship between those three individuals.17

'Punishing' visa applicants

2.10 The Immigration Advice and Rights Centre (IARC) argued that the proposed sanctions for sponsors who fail to comply with statutory obligations under the scheme could serve to punish visa holders. It stated that the two most common circumstances in which a sponsor may fail to fulfil their undertaking is due to financial hardship or manipulative and controlling behaviour over an applicant. It concluded that imposing sanctions in either circumstance is inappropriate because:

If the failure to comply with the undertaking is because of family violence…then sanctioning a sponsor may place the applicant at a greater risk of harm and if the failure is because of severe financial hardship then imposing a sanction will only add to the existing hardship and will deter people from seeking aid and assistance.18

2.11 Mr Ali Mojtahedi, Principal Solicitor of the IARC argued that sanctions involving a monetary fine would be inappropriate and ineffective:

If you are going to impose a fine on a sponsor in circumstances of family violence, that would…put the visa applicant at risk. It would get them offside…[I]f someone is struggling, two questions arise. Firstly, why would you impose a fine on them? Why would you make the circumstance worse? Secondly, if they are struggling, that would make them feel reluctant to go out and actually ask for help. If they are struggling, if they cannot afford to pay their bills and cannot afford to feed the children, they would be reluctant to go out and say, 'Help me,' because, if they do, they could be facing a fine.19

2.12 The BCO stated that it is not clear how the proposed statutory obligations on visa sponsors would be monitored.20 It argued that in the work-related visa scheme, there is a 'clear absence of comprehensive review of the upholding of visa conditions and/or sponsor obligations'. It questioned how the proposed statutory obligations would be monitored and enforced in this context, and like the IARC, raised concerns that the failure to meet these obligations was likely to come to the attention of authorities during challenging financial circumstances.21

17 Mr David Drummond, Director, Visa Framework and Reform (VFR), DIBP, Committee Hansard, 5 October 2016, p. 22.

18 Immigration Advice and Rights Centre (IARC), Submission 7, p. 4.

19 Mr Ali Mojtahedi, Principal Solicitor, IARC, Committee Hansard, 5 October 2016, p. 8.

20 BCO, Submission 11, p. 4.

21 BCO, Submission 11, p. 4.

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2.13 The BCO also submitted that the proposed amendments:

[S]end a message that [culturally and linguistically diverse] women are expected to leave and/or end their relationship if they are aware of their partner/potential sponsor's previous history of violence, specifically violence in the familial setting.22

2.14 They argued that:

[T]his runs counter to the recognition that women should be supported and empowered to know what their options are, and to provide multiple supports to enable women to make the best decision for themselves and their children without judgment'.23

2.15 The IARC also submitted that the proposed amendment enabling an approved sponsorship to subsequently be cancelled may also punish visa applicants:

The explanatory memorandum…provides that an approved sponsorship may be cancelled where there is inappropriate use of the program or where serious offences are detected…[This punishes] a visa applicant for the conduct of a sponsor and will deter applicants from disclosing a serious offence (including family and domestic violence). This amendment will not serve to protect visa applicants and is counterproductive to the National Plan to Reduce Violence Against Women and Children.24

2.16 The BCO agreed, noting that while a protection order is a civil remedy, breach of a protection order becomes a criminal matter which would be found on a police check.25 They argued that women living in situations of partner and familial abuse may choose to stay silent while their application is being processed, and not to pursue any avenue of support.26

2.17 The DIBP advised the committee that some of the content of concern to submitters is not yet drafted. Mr Hansford stated that the detail of the proposed sponsorship obligations, while established under the bill, would need to be fleshed out and examined in relevant regulations.27

2.18 The Department also emphasised that the test for refusing a sponsorship application would be set at a high level. Mr Drummond explained that for a sponsorship application to be refused, the Department would need to be concerned that there was a 'significant risk' to the applicant, and that they would be in physical danger if the visa were to be granted.28

22 BCO, Submission 11, p. 2.

23 BCO, Submission 11, p. 2.

24 IARC, Submission 7, p. 3.

25 BCO, Submission 11, p. 5.

26 BCO, Submission 11, p. 5.

27 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 26.

28 Mr David Drummond, Director, VFR, DIBP, Committee Hansard, 7 October 2016, p. 29.

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2.19 As set out at paragraph 2.8, the Department explained that there are a range of pathways for victims of family violence in the family visa program, and indicated that the Department has the ability to deal with individual cases appropriately.29

Initiating the visa application process

2.20 Several submitters raised concerns about the addition of a new sponsorship application process preventing visa applicants from commencing their engagement with the visa application process, and gaining access to corresponding family violence protections.

2.21 The IARC noted the 'family violence exception' contained in Division 1.5 of the Migration Regulations 1994. This enables some visa applicants to continue with their visa application and obtain a permanent visa, even if the relationship with their partner/sponsor has ended.30 The IARC argued that, 'The provisions, no doubt, exist to ensure that visa applicants do not feel compelled to remain in abusive and violent relationships in order to obtain a visa'.31

2.22 Submitters raised concerns about the addition of an initial sponsor application process and the capacity of this addition to help victims of family violence. The Law Council of Australia (LCA) stated:

Under the proposed amendments, if an approved sponsor is refused, then a visa applicant will be prevented from applying for a visa, potentially leaving the visa applicant in a vulnerable position - for example, women (typically) being forcibly returned to their country of origin.32

2.23 It argued that under the existing scheme, those women may have been entitled to a permanent partner visa via the existing family violence exception, or have had gender-based claims for protection.33 CATWA agreed that the addition of a new sponsor approval process could leave migrant women without recourse to the legal remedies and support services to which they may otherwise be afforded, had the application for a partner visa been processed.34

2.24 Ms Clare Hughes of the LCA echoed these concerns, stating:

[I]f an Australian sponsor was refused under the proposed amendments it would be the non-citizen visa applicant who would be the one prevented from applying for an Australian visa, and this would potentially leave them in quite a vulnerable position…typically women—who might be forcibly returned to their country of origin without appropriate consideration of their circumstances…They might have already personally sustained a number of years of violence at the hands of their sponsor prior to the application being

29 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 23.

30 Migration Regulations 1994, Division 1.5.

31 IARC, Submission 7, pp 1-2.

32 Law Council of Australia (LCA), Submission 9, pp 8-9.

33 LCA, Submission 9, p. 9.

34 CATWA, Submission 2, p. 2.

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made but have been unable or unwilling to properly seek legal redress. By these amendments they would be then placed in a really difficult situation in which they were unable to stay in Australia but were also unable to return to their home country because of social or cultural stigma and more serious risks to their lives, like honour killings, ostracism and homelessness. If the person comes to Australia to get married and the marriage ends and they are forced to return as a divorced or 'broken' women, it is quite shameful and in some countries they do face a real risk of being killed or otherwise seriously harmed by their families and communities.35

2.25 The BCO likewise flagged the potentially serious consequences for a woman returning to the country in which they were married. It highlighted a case in which a client told their case worker that they would rather die than have to return home after having been married in front of their whole community.36 It also stated that some married women who are not able to live with their husband because of visa processing issues, may be shamed by their family, abandoned by their society, and be unable to re-marry or re-establish themselves in their community.37

2.26 As set out in detail in paragraph 2.8, the DIBP noted that the family visa framework includes 'a range of different pathways' for victims of family violence, that both the Department and the minister have an understanding of how to deal with cases, and that the minister retains the discretion to intervene and consider individual cases.38

2.27 The Department also pointed out that the extra time associated with a sponsor application, while varying from case to case, could be very minimal. It explained that to date, police checks received from the CrimTrac system have been obtained in a timely manner, and that in some cases the time for processing those sponsor applications could take mere weeks.39

Previous inquiries into family violence and the family visa program

2.28 A number of submitters drew attention to previous inquiries into the intersection between family violence and Australia's migration system. In 2012, having considered the implementation of a sponsorship application process, the Australian Law Reform Commission (ALRC) concluded that the safety of victims of family violence would be better promoted via targeted education and the dissemination of information.40 It recommended the use of independent experts, better

35 Ms Clare Hughes, Member, Migration Law Committee, LCA, Committee Hansard, 5 October 2016, p. 2.

36 BCO, Submission 11, p. 4.

37 BCO, Submission 11, p. 5.

38 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 23.

39 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, pp 21, 27.

40 Australian Law Reform Commission (ARLC), Family Violence and Commonwealth Laws - Improving Legal Frameworks, ALRC Report 117, 2012, p.508.

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dissemination of information about legal rights in Australia, and the provision of information about family violence support services both prior to and on arrival in Australia.41 This was a sentiment echoed by a number of submitters.42

2.29 Ms Hughes of the LCA explained that:

[T]he ALRC recommended things like dissemination of information to these applicants about their rights, about family violence services and about what is acceptable in Australia and what is not. It is so that, when they come to Australia, if they see signs that they might be vulnerable to violence or that their husband or partner might be abusive then they know how to go about it: how to contact the department of immigration and how to access social services and other people who might help before it is too late.43

2.30 The IARC noted Action Item 11 of the National Plan to Reduce Violence Against Women and their Children: 'development of resource material to inform and support these overseas spouses including information about essential services and emergency contacts in Australia'.44

2.31 Both the LCA and MCSW commended the development of a series of factsheets for new arrivals to Australia entitled the 'Family Safety Pack'.45 This pack includes factsheets dealing with domestic and family violence, sexual assault, and family violence and partner visas. It is currently available in 46 languages.46 The LCA noted that the Family Safety Pack includes factsheets for interpreters dealing with family violence situations,47 a move consistent with a recommendation of the 2016 VRC into Family Violence.48 Echoing the sentiments of both the LCA and IARC, the MLP stated:

41 ARLC, Family Violence and Commonwealth Laws - Improving Legal Frameworks, ALRC Report 117, 2012, recommendations [20-5], [20-6] and [20-79].

42 ALRC, Submission 1, p. 1; FECCA, Submission 4, p. 3; IARC, Submission 7, p. 4; Australian National University College of Law Migration Law Program (MLP), Submission 8, p. 9; LCA, Submission 9, p. 11; SCA, Submission 10, p. 2; BCO, Submission 11, p. 6; AWAVA, Submission 12, p. 4; MCSW, Submission 13, p. 3.

43 Ms Clare Hughes, Member, Migration Law Committee, LCA, Committee Hansard, 5 October 2016, p. 10.

44 Department of Social Services (DSS), Second Action Plan 2013-2016, Moving Ahead of the National Plan to Reduce Violence against Women and their Children 2010-2022, p. 27.

45 LCA, Submission 9, p. 10; MCSW, Submission 13, p. 2.

46 DSS, Family Safety Pack, https://www.dss.gov.au/family-safety-pack, (accessed 30 September 2016).

47 LCA, Submission 9, p. 10.

48 Victorian Government, Royal Commission into Family Violence (Commissioner: The Hon. Marcia Neave AO), March 2016, p. 34.

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We support these recommendations not only on the basis that they are sensible, but that they resulted from extensive community consultation, which is the hallmark of best law reform practice.49

2.32 CATWA argued that 'far greater resources and initiatives are required to genuinely improve the management of family violence in the visa program, and these must go beyond the refusal of the sponsor's application'.50

2.33 The Department emphasised that the proposed amendments do not purport to be a complete solution to the problems which it is designed to help address, and noted that the purpose of the Department is to manage migration and immigration. 51

Defining 'family violence'

2.34 A number of submitters recommended that, in keeping with the recommendations of the ALRC,52 and the 2016 VRC,53 the definition of 'family violence' contained in the Migration Regulations 1994 be broadened to be consistent with the definition in other pieces of Commonwealth legislation.54 The Migration Regulations 1994 does not define the term 'family violence', but rather outlines the circumstances in which a person will be deemed to have suffered family violence.55 These include where a court has granted an injunction against an alleged perpetrator,56 and where a court has made a protection order for an alleged victim in relation to an alleged offender.57 In circumstances where a non-judicially determined claim of family violence is made, the minister must consider whether the alleged violence took place, and must seek the opinion of an independent expert if they are not satisfied.58

2.35 The 2016 VRC considered the way in which 'family violence' is defined. It highlighted the definition contained in the Family Violence Protection Act 2008 (Victoria) as being a sound model.59 The Act defines both 'family member' and 'family violence' broadly.60 'Family member' is defined to include a range of individuals living

49 MLP, Submission 8, p. 9.

50 CATWA, Submission 2, p. 2.

51 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 24.

52 ARLC, Family Violence and Commonwealth Laws - Improving Legal Frameworks, ALRC Report 117, 2012.

53 Victorian Government, Royal Commission into Family Violence (Commissioner: The Hon. Marcia Neave AO), March 2016.

54 MLP, Submission 8, p.9; LCA, Submission 9, p.11; SCA, Submission 10, p.3; FECCA, Submission 4, p.3; MCSW, Submission 13, p. 2.

55 Migration Regulations 1994, Division 1.5.

56 Migration Regulations 1994, r.1.23(2).

57 Migration Regulations 1994, r.1.23(4).

58 Migration Regulations 1994, rr.1.23(8)-(14).

59 Victorian Government, Royal Commission into Family Violence (Commissioner: The Hon. Marcia Neave AO), March 2016, pp15-16.

60 Family Violence Protection Act 2008 (Victoria), Part 2.

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in a family environment, not merely biological relatives. It also defines 'family violence' to include physical, sexual, emotional, psychological and/or economic conduct which is abusive, or behaviour which is threatening or coercive, or 'in any other way controls or dominates the family member and causes that family member to feel fear'.61 It also states that 'behaviour may constitute family violence even if they behaviour would not constitute a criminal offence'.62

2.36 FECCA argued that by expanding the definition of family violence, family members other than a spouse would be able to seek protection under the current family violence exception, where they had experienced violence from a family member.63

2.37 The Department explained that it has developed a better awareness of family violence over time,64 emphasising the importance of the checks which the Department undertakes where a claim of violence is made in the course of a visa application:

[T]he pathway to permanent residency involves a whole range of checks, and the genuineness of the domestic violence suffered is one component of that assessment. So we would have to look at the individual case. It is not as if someone can claim it and then immediately gain permanent residency in Australia. There has to be a basis and evidence behind some of the claims.65

Existing limitations on sponsors

2.38 A number of submitters discussed the existing limitations on visa sponsors, and the capacity of these limitations to help address family violence.

2.39 The MLP noted that family visa sponsors already have limitations placed upon them, which are designed to protect visa applicants.66 Australian citizens or permanent residents cannot sponsor more than two people in a lifetime, and sponsorships must be at least five years apart,67 unless the minister decides to waive these limitations due to compelling and compassionate circumstances affecting the sponsor.68 Sponsors cannot sponsor applicants under the age of 18 if they have been charged with or convicted of a 'registrable offence' (which includes offences against child protection legislation),69 although the minister retains the discretion to approve sponsorship for charges or convictions which occurred more than five years prior, or if

61 Family Violence Protection Act 2008 (Victoria), s.5.

62 Family Violence Protection Act 2008 (Victoria), s.5(3).

63 FECCA, Submission 4, p. 4.

64 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 24.

65 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 26.

66 MLP, Submission 8, p. 4.

67 Migration Regulations 1994, r.1.20J.

68 Migration Regulations 1994, r.1.20J(2).

69 Migration Regulations 1994, r.1.20KB.

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there are other compelling circumstances.70 The MLP argued that the bill 'represents a significant departure from these arrangements'.71

2.40 The Department explained that, despite these current restrictions, there is still a need for the introduction of the proposed sponsor application. Mr Hansford emphasised that under the current system a visa sponsor is subject to very few checks, and no police checks.72 He also stated that while there are only a small proportion of visa sponsors who sponsor people for non-genuine purposes, 'it is very difficult for a departmental officer to provide that information to the applicant'.73

The committee's view

2.41 The committee believes that given the importance of addressing family violence, it is vital that the Government endeavour to address and alleviate its effects wherever possible. In saying that, the committee recognises that family violence can be very challenging to address because it can manifest in very different ways, and often goes unreported. The committee commends the DIBP for its efforts to address family violence where it intersects with Australia's family visa program.

2.42 The committee recognises that newly-arrived migrants, and potential new migrants, who may have limited English skills, few personal connections, a lack of understanding about Australian law and social norms, and who come from a society very different from that of modern Australia, are extremely vulnerable.

Australia's obligations under international law 2.43 Several submitters raised concerns about the potential for the proposed measures to conflict with Australia's obligations under international law. The MLP drew attention to the ALRC's 2012 Family Violence and Commonwealth Laws - Improving Legal Frameworks report.74 In that report, the ALRC stated that it made no recommendations with regards to amending the sponsorship requirements 'in light of the difficulties in implementing a separate sponsorship criterion without breaching Australia's international obligations'.75 At that time the then Department of Immigration and Citizenship (DIAC) itself submitted to the ALRC that:

Such measures could lead to claims that the Australian Government is arbitrarily interfering with families, in breach of its international obligations. It could also lead to claims that the Australian government is interfering with relationships between Australian and their overseas

70 Migration Regulations 1994, r.1.20KB(5), (9), (10).

71 MLP, Submission 8, p. 4.

72 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 20.

73 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 20.

74 MLP, Submission 8, p. 7.

75 ALRC, Family Violence and Commonwealth Laws - Improving Legal Frameworks, ALRC Report 117, 2012, p. 506.

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partners in a way it would not interfere in a relationship between two Australians.76

2.44 The MLP maintained that a separate sponsorship criterion does amount to arbitrary interference with family life, and is in breach of Article 17 of the International Covenant on Civil and Political Rights (ICCPR).77 It also submitted that the proposed amendments may breach Article 23 of the ICCPR, which states that 'family is the fundamental unit of society and is entitled to protection by the society and the State'. It noted the United Nations Human Rights Committee's observation that while the ICCPR does not recognise the right of an alien to reside in the territory of a State party, in certain circumstances an alien may enjoy the protection of the covenant when 'considerations of non-discrimination…and respect for family life arise'.78 The LCA argued that where one party is a non-citizen, the proposed amendments may discriminate against families on the basis of national or social origin.79

2.45 Ms Hughes of the LCA argued that the proposed measures could be discriminatory because:

[T]here is no similar or equivalent law that says [an Australian citizen] cannot then form a violent relationship with an Australian partner. So there is potential for discrimination against those families who have one member who is from a non-Australian background.80

2.46 Mr Hoang of the MLP stated that the sponsorship and character considerations also have the potential to discriminate against non-citizens. He argued, in relation to the Migration Legislation Amendment (2016 Measures No. 3) Regulation 2016, already before parliament:

[S]ponsorship can be refused on the basis of someone having - according to what is here - a significant criminal record. That is defined to include cumulative sentences that add up to 12 months or more. That can include quite minor things…[Y]ou could have instances where someone could have committee quite a minor offence and could then be precluded from sponsorship their overseas partner in a way in which you would not impose these kings of obligations on an Australian citizen who wishes to enter a relationship with another Australia citizen.81

76 ALRC, Family Violence and Commonwealth Laws - Improving Legal Frameworks, ALRC Report 117, 2012, p. 507.

77 MLP, Submission 8, p. 8.

78 UN Human Rights Committee, General Comments 15, The position of aliens under the Covenant (Twenty-Seventh Session, 1986), Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies, U.N. Doc. HRI/GEN/1/Rev.1 at 18 (1994), at [5], in MLP, Submission 8, p. 8.

79 LCA, Submission 9, p. 7.

80 Ms Clare Hughes, Member, Migration Law Committee, LCA, Committee Hansard, 5 October 2016, p. 3.

81 Mr Khanh Hoang, Associate Lecturer, MLP, Committee Hansard, 5 October 2016, p. 9.

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2.47 Ms Gillen of the FECCA likewise submitted that the types of relationships in question involve two consenting adults 'who both have the capacity to voluntarily enter into relationships'. She argued that in light of this, the government should not be able to interfere with their relationships in a way that it cannot interfere with a relationship between two Australian citizens.82

2.48 AWAVA argued that the proposed amendments enliven the operation of the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW).83 It noted that the Explanatory Memorandum (EM) did not discuss Australia's obligations under the CEDAW, and raised concerns about aspects of the proposed amendments not complying with the instrument.84

2.49 The EM statement of compatibility with human rights identified that the provisions of the bill have implications with regards to human rights.85 It concluded that where there are limits to human rights pursuant to the provisions of the bill, 'those limitations are reasonable, necessary, proportionate and rationally connected to achieve a legitimate objective'.86

2.50 The DIBP argued that the proposed amendments are justifiable because

[New migrants] are a much more vulnerable group, and the support structures around an individual coming to the country - particularly in terms of language; knowledge of the country; access to services, family and friends - are very different.87

2.51 In response to submissions noting the Department's previous statements in relation to the problem of implementing a separate sponsorship application process, the DIBP stated:

In 2011, the department was concerned that a separate sponsorship assessment could be seen to be in conflict with our international obligations. At that time, the registrable offences had only been in place for about 12 months and it was too soon to assess their impact. So, over the past five years, we have continued to look at the impact. We believe the model is entirely consistent with our international obligations, and there is no mandatory refusal proposal in the bill…The convention people were talking about is the right to form a family, but there are also other international conventions around human rights and domestic violence that we have to trade off and look at as well.88

82 Ms Erin Gillen, Acting Director, FECCA, Committee Hansard, 5 October 2016, p. 13.

83 AWAVA, Submission 12, pp 3-4.

84 AWAVA, Submission 12, p. 4.

85 Explanatory Memorandum (EM), Attachment A, pp 23-25.

86 EM, attachment A, p. 25.

87 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 22.

88 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 23.

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Committee view

2.52 The committee agrees with a number of submitters who have raised that the proposed amendments in this bill do indeed enliven many of Australia's obligations under international law. The committee does not, however, agree that the proposed amendments are in breach of the international legal obligations discussed in this report. The committee believes that, where the proposed amendments do affect the rights contained under international legal instruments outlined in this report, that impact is both reasonable and proportionate.

Privacy 2.53 Under the proposed amendments, the Minister may disclose 'prescribed personal information' about both visa applications and applicants for approval as a family sponsor. This personal information would include the results from Police checks, and details of relevant migration-related activities.89 Sponsorship applicants would have to agree that this information could be shared with other parties to the application.90 Currently, police checks for visa sponsors are only conducted where the visa application includes a minor.91

2.54 A number of submitters raised concerns about the proposed enhanced disclosure of personal information. The IARC argued that it is not justifiable for information sharing to extend to an applicant's prior migration-related activities or matters not relevant to the safety and welfare of the visa applicant.92 It also stated that it is unclear 'why it is reasonable or necessary for the information to be disclosed to other agencies'.93 The MLP stated that it saw merit in disclosing information where doing so would help a visa applicant to make an informed decision about whether or not to proceed, however, it argued that provisions would need to undergo 'rigorous scrutiny' to ensure that the relevant 'prescribed information' would not infringe on the privacy of either party.94

2.55 The LCA highlighted the cases of Elias & Elias [2014] FCCA 457 and Dalton & Dalton [2016] FamCA 174, in which the courts held that spouses and domestic partners cannot obtain private or confidential information about each other without the other party's consent (albeit in the area of a family law property settlement).95 It argued that the proposed amendments, enabling the Minister to disclose the results of

89 DIBP, Submission 3, p. 7.

90 EM, p. 24.

91 DIBP, Submission 3, p. 3.

92 IARC, Submission 7, p. 4.

93 IARC, Submission 7, p. 4.

94 MLP, Submission 8, p. 7.

95 LCA, Submission 9, p. 6.

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a potential sponsor's police check to other parties to the application, would be a deviation from the current legal position in Australia, as detailed in these cases.96

2.56 The Office of the Australian Information Commissioner (OAIC) noted that the right to privacy is not absolute and may give way where there is a compelling public interest reason, provided the solution implemented 'minimises the privacy intrusion to the fullest extent possible in the circumstances'.97 Both the OAIC and LCA recommended undertaking a Privacy Impact Assessment (PIA) to determine the potential privacy impacts of the proposed framework.98 Noting that the types of private information in question would be set out in regulations, the LCA argued that a PIA would serve as an 'additional safeguard and scrutiny mechanism'.99

2.57 The Department advised that it had commenced a PIA during the early stages of drafting the amendment, but following a discussion with the OAIC a decision was made to defer the PIA and provide with the consequential amendments to the Migration Regulations 1994.100

2.58 It explained that 'the fundamental aspect of the bill is trying to create transparency between the applicant, the sponsor and the department'.101 Mr Drummond of the DIBP noted that an Australian Criminal Intelligence Commission (ACIC) CrimTrac criminal history search only provides a list of convictions and no detail behind those convictions.102 He explained that if the Department found an issue in a sponsor applicant's criminal history they would start to engage with that sponsor to find out what the background was.103 In terms of the procedure of sharing that information, Mr Drummond stated that:

[T]he sponsor would be well aware of the fact that we have the information and that they had been given the opportunity to comment, and part of that information exchange with these sponsors would be advising them that we will be passing the information to the visa applicant.104

Committee view

2.59 The committee is of the view that the information sharing contemplated by the proposed amendments is both reasonable and appropriate considering the seriousness of conduct the amendments are designed to address. The committee encourages the DIBP to ensure that its staff has both the knowledge and training to assess both

96 LCA, Submission 9, p. 6.

97 Office of the Australian Information Commissioner (OAIC), Submission 6, p. 2

98 OAIC, Submission 6, p. 2; LCA, Submission 9, p. 6.

99 LCA, Submission 9, p. 6.

100 DIBP, Answer to question on notice, 5 October 2016 (received 7 October 2016).

101 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 20.

102 Mr David Drummond, Director, VFR, DIBP, Committee Hansard, 5 October 2016, p. 25.

103 Mr David Drummond, Director, VFR, DIBP, Committee Hansard, 5 October 2016, p. 25.

104 Mr David Drummond, Director, VFR, DIBP, Committee Hansard, 5 October 2016, p. 25.

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sponsor and visa applications on a case-by-case basis, and apply sound judgement in the handling of personal information.

Procedural fairness 2.60 A number of submitters raised questions about procedural fairness for both visa applicants and sponsor applications. CATWA stated that the proposed amendments would leave affected visa applicants without access to the legal resource which they can currently access where a visa application has been denied, or where family violence is deemed to have occurred.105 The MLP agreed, stating that the bill's silence on the consequences for visa holders should the visa be cancelled:

…would leave the visa holder vulnerable to exercise of the general visa cancellation power, on the grounds that the circumstances for the grant of the visa no longer exist. It may be an unintended consequence of the Bill that [an] innocent person is liable for visa cancellation. Unless the person can make an application for another visa, they would be liable for detention and removal from Australia. This perpetuates the vulnerability of visa holders in family violence situations…106

2.61 The IARC also argued that allowing for an approved sponsorship to be cancelled where there has been 'inappropriate use' of the program, or where a serious offence is detected, will punish the visa applicant for the conduct of their sponsor, as well as deterring applicants from disclosing serious offences out of fear that they will no longer have secure sponsorship.107 The SCoA agreed, stating that this will likely have the opposite effect to that intended by the bill.108

2.62 The LCA raised concern about an aspect of the family visa scheme which, despite not being the subject of proposed amendment, is central to the bill's intended purpose: situations in which family violence will be deemed to have occurred for the purpose of the family visa scheme. The LCA referred to situations in which a non-judicially determined claim of violence had been made and the minister had referred the matter to an independent expert. It stated that legal practitioners had made anecdotal comments about 'instances in which the DIBP has refused access to lawyers and migration agents during interviews between victims of family violence and independent experts'.109 It argued that this constituted a 'denial of the victim's right to legal advice and assistance and possible subsequence prejudice', and noted that the expert opinions based on that process could later be relied upon by the Department in its decision-making.110

105 CATWA, Submission 2, p. 2.

106 MLP, Submission 8, p. 6.

107 IARC, Submission 7, p. 3.

108 SCA, Submission 10, p. 2.

109 LCA, Submission 9, pp 10-11.

110 LCA, Submission 9, p. 11.

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2.63 Submitters also raised concerns about the capacity for past conduct to adversely impact a sponsor's application. In 2012 the then Department of Immigration and Citizenship (DIAC) itself submitted to the ALRC that regulating sponsorship could lead to 'a risk that Australian sponsors could be disadvantaged by previous conduct that occurred a long time ago'.111 The LCA particularly questioned the way the proposed amendments would operate in relation to the Commonwealth Spent Conviction Scheme.112 The Spent Conviction Scheme, contained in Part VIIC of the Crimes Act 1914, sets out the circumstances in which an offender does not have to disclose convictions for less serious offences.113 The LCA argued that 'a disclosure exception should apply to spent convictions unless there are reasonable grounds for waiving the exception'.114

2.64 The LCA argued that the bill should be amended to state explicitly that a person whose sponsor application has been refused will be able to appeal that decision to the Administrative Appeals Tribunal (AAT) for merits review.115 It highlighted the case of Ahmed v Minister for Immigration and Border Protection [2015] FCAFC 182, in which the Federal Court of Australia (FCA) held that a right of review can be affected by provisions contained in regulations.116 The LCA submitted that until the relevant regulations have been amended, it is not clear whether merits review will actually be available.117

2.65 The DIBP advised the committee that the only situation in which merits review is not available is where 'the minister makes a personal decision under a particular power of the Migration Act' and that this scenario is not contemplated in regards to this bill.118

2.66 A number of submitters agreed that the fact much of the substance of these amendments would be contained in regulations is problematic. As the DIBP stated, to implement the proposed framework, the Migration Regulations 1994 would need to be amended to set out information including sponsorship approval criteria, the processes and terms for approval, sponsorship obligations, circumstances where the Minister can take action against a sponsor, and the kinds of personal information which may be disclosed.119 The MLP stated that

111 ALRC, Family Violence and Commonwealth Laws - Improving Legal Frameworks, ALRC Report 117, 2012, p. 507.

112 LCA, Submission 9, p. 7.

113 Crimes Act 1914, Part VIIC.

114 LCA, Submission 9, p. 7.

115 LCA, Submission 9, p. 8.

116 LCA, Submission 9, p. 8.

117 LCA, Submission 9, p. 8.

118 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 27.

119 DIBP, Submission 3, p. 5.

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It is most concerning to us that the Bill does not specify at all what the obligations of the sponsors might be, what the sanctions for breaching sponsorship are, or under what circumstances a person would have their sponsorship status cancelled or barred.120

2.67 The OAIC stated that while setting out the definition of 'prescribed information' in regulations for the purposes of information sharing may provide future flexibility, greater certainty could be achieved about privacy impacts if more detail was contained within the bill itself.121

2.68 The DIBP explained that the migration framework provides the Department and the Minister with options for assisting visa applicants and visa holders who have been the victim of family violence. As set out previously in paragraph 2.8, Mr Hansford stated:

[T]here is potentially a pathway for people to a permanent visa because of their domestic violence issues. There is also potential for the department to provide individuals with bridging visas in circumstances, and of course there is ministerial intervention, where the minister can intervene in individual cases to give people visas to Australia in Australia.122

2.69 The DIBP further explained that governing legislation is required in order to establish a level of detail in regulations, and noted that those regulations are disallowable instruments.123

The committee's view

2.70 The committee is of the view that the bill would afford both visa applicants and sponsor applicants due procedural fairness. In relation to the availability of merits review, the committee notes that the EM states explicitly that where the DIBP refuses a sponsorship application, 'refused applicants will have access to merits review by the Administrative Appeals Tribunal.124 The committee regards this as a sufficient assurance that relevant decisions will be appealable, except in the rare circumstances that the Minister makes a personal decision under the Act.

2.71 The committee also notes the recent Migration Legislation Amendment (2016 Measures No. 3) Regulation 2016, which provides detail as to the limitations on approval for sponsorship, including information about police checks and what constitutes a 'significant criminal record.125 The committee notes that the provisions of this regulation are consistent with the indications made by the DIBP in relation to the proposed family visa scheme.

120 MLP, Submission 8, p. 6.

121 OAIC, Submission 6, p. 2.

122 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 26.

123 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 29.

124 EM, p. 24.

125 Migration Legislation Amendment (2016 Measures No. 3) Regulation 2016, Schedule 6.

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Impacts on the visa application process 2.72 A number of submitters raised questions about the addition of a new level of processing in partner visa applications, and additional costs incurred as a result. The Migration Institute of Australia (MIA) stated that the waiting period for a partner visa currently stands at a minimum of 12-15 months and may take up to 24 months to be determined.126 It strongly disputed the claim that the financial impact of the proposed changes will be low and could be met with existing resources, stating that:

The processing times for partner applications are already extremely slow and a large backlog exists. Adding an extra application to the process for each couple, will add around 50,000 extra sponsor applications in to the process pet year. It is difficult to understand how the DIBP can claim the processing of such a large number of extra applications will be able to be met within the financial constraints of its current funding. Partner applicants are already paying almost twice the fees of other permanent residency applicants and receiving far slower service.127

2.73 The DIBP confirmed that it receives approximately 50,000 partner visa applications annually,128 and advised that at 31 August 2016 there were 53,334 partner visa first stage migration applications on hand.129

2.74 Ms Julian-Armitage of the MIA argued that the proposed amendments could have a significant impact on visa applicants who apply onshore:

If a person is onshore in a de facto relationship with an Australian resident or citizen, they will not be, as they are now, entitled to a bridging visa until such time as their visa application is assessed. They will not be able to acquire a bridging visa to allow them to stay in Australia lawfully. Consequently, they will be required to go offshore and have extensive periods of time where they will be separated, because that bridging visa will not be applicable to them.130

2.75 The MLP argued that for Australian citizens to be separated from their partners for prolonged periods of time (particularly where their partner applies offshore) is especially unfair considering the recent 72 per cent increase of partner visa application fees.131 The BCO likewise argued that an important consideration in regards to appealable decisions is the cost and time of pursuing such an appeal.132

126 Migration Institute of Australia (MIA), Submission 5, p. 2.

127 MIA, Submission 5, p. 4.

128 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, pp 21-22.

129 DIBP, Answer to question on notice, 5 October 2016 (received 7 October 2016).

130 Ms Angela Julian-Armitage, National President, MIA, Committee Hansard, 5 October 2016, p. 16.

131 MLP, Submission 8, p. 5.

132 BCO, Submission 11, p. 4.

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2.76 The SCA submitted that apart from the longer processing times and potential higher costs, the addition of a new layer of application could also place a greater evidentiary burden on applicants and their families.133

2.77 Both the MIA and MLP highlighted the difficulties individuals can face when their visa status is uncertain. The MIA noted that from July 2014 applicants whose immigration status in Australia has become unlawful for some reason can no longer lodge a partner application from within Australia. They must leave Australia and their family, make an application from offshore, and await the outcome.134 It also stated that temporary visa holders awaiting a permanent visa application outcome can face hardship in the areas of employment, loan applications, and purchasing property.135

2.78 The MIA recommended that if the proposed extra sponsor application were to be introduced, extra financial resources and staff be allocated to the relevant partner visas processing sections.136 The MLP agreed that extra funding and resources would be required.137

2.79 The DIBP explained that its experience to date of obtaining criminal history checks from CrimTrac has been positive, and that results have been returned swiftly.138 Mr Drummond stated that an assessment for a sponsor applicant with no criminal history could take weeks.139 Mr Hansford further explained that in situations where criminal convictions were found and put to the visa applicant, the processing time could vary:

It could range from a very short time where the applicant says, 'Yes, I'm aware of those convictions and situation and I'm fine.' That scenario would be quite quick, whereas in another scenario for an applicant it might take a range of weeks to consider the offences and whether they would weigh the decision to put forward an application against those particular issues. It is a matter for an individual.140

2.80 Mr Hansford also noted that, depending on the types of criminal convictions present on a sponsor applicant's criminal record, the Department may make further inquiries such as contacting the relevant police force for more information.141

133 SCA, Submission 10, p. 2.

134 MIA, Submission 5, p. 3.

135 MIA, Submission 5, p. 3.

136 MIA, Submission 5, p. 4.

137 MLP, Submission 8, p. 5.

138 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 21.

139 Mr David Drummond, Director, VFR, DIBP, Committee Hansard, 5 October 2016, p. 24.

140 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 28.

141 Mr Hamish Hansford, FAS, ICPD, DIBP, Committee Hansard, 5 October 2016, p. 30.

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Committee view

2.81 The committee commends the efforts of the DIBP in seeking to address family violence where it intersects with the Australian family visa program. The committee notes that various issues which were raised in the course of this inquiry, and believes that provided those concerns are noted by the relevant agencies, the proposed amendments do have the capacity to help improve the welfare and safety of (primarily) women and children who are new to Australia.

2.82 The committee notes the concerns about the capacity of the proposed amendments to combat family violence, and the fact that the impact will be limited because the proposed amendments relate only to particular classes of visa. Nevertheless, the committee believes the proposed amendments will have a positive impact on the visa applicants in relation to whom it will operate.

2.83 On this basis, the committee recommends that the Senate pass the bill.

Recommendation 1

2.84 The committee recommends that the Senate pass the bill.

Senator the Hon Ian Macdonald Chair

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Dissenting Report from the Australian Greens 1.1 The Senate inquiry into the Migration Amendment (Family Violence and Other Measures) Bill 2016 received 14 submissions in total. With the exception of two submissions, all raised significant concerns that the bill would not achieve its intended outcomes.

1.2 Despite the evidence provided and concerns raised, the Chair's report has recommended that this bill be passed.

1.3 The Australian Greens are supportive of legislative measures that address family violence and agree with submitters that there is merit in addressing family violence in the migration law context. However, a number of concerns were raised by submitters.

1.4 The Australian Law Reform Commission (ALRC) submitted that:

[B]ecause of concerns about Australia's international obligations, as well as procedural fairness and privacy, sponsorship arrangements should not be altered.1

1.5 The Australian Women Against Violence Alliance (AWAVA) submitted that:

[T]hese measures may…inadvertently 'punish' victims/survivors by jeopardising their ability to access a visa. Furthermore, the ambiguity of the measures raises a number of concerns about whether the proposed amendments will effectively address domestic, family and sexual violence. For example, it is far from clear whether the requirements imposed on prospective 'family sponsors' will assisting in not only protecting visa applicants from domestic, family and sexual violence but also providing victims/survivors with the support they need.2

1.6 Further, the Law Council of Australia (LCA) submitted that:

There is no equivalent law that requires partners who are either citizens or permanent residents to have their partner's criminal and personal history assessed before they are granted the right to live together.3

1.7 The Australian Greens note that when the Department of Immigration and Border Protection (DIBP) previously addressed this matter they concluded that measures such as these could lead to claims that the Australian Government is arbitrarily interfering with families, in breach of its international obligations.

1.8 The majority report has not satisfactorily responded to concerns raised by the majority of submissions on this bill.

1 Australian Law Reform Commission (ALRC), Submission 1, p. 1.

2 Australian Women Against Violence Alliance (AWAVA), Submission 12, p. 2.

3 Law Council of Australia (LCA), Submission 9, p. 7.

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Recommendation 1

1.9 The Australian Greens recommend that the bill be rejected by the Senate.

Recommendation 2

1.10 The Australian Greens recommend increased education on rights and supports available to respond to family violence for Spouse Visa and Partner Visa holders.

Senator Nick McKim Australian Greens

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Appendix 1

Public submissions

1 Australian Law Reform Commission

2 Coalition Against Trafficking in Women Australia (CATWA)

3 Department of Immigration and Border Protection

4 Federation of Ethnic Communities' Councils of Australia (FECCA)

5 Migration Institute of Australia

6 Office of the Australian Information Commissioner

7 Immigration Advice & Rights Centre

8 ANU Migration Law Program

9 Law Council of Australia

10 Settlement Council of Australia

11 Border Cross Observatory, InTouch Multicultural Centre Against Family Violence and Monash Gender and Family Violence Program

12 Australian Woman Against Violence Alliance (AWAVA)

13 McAuley Community Services for Women

14 Women's Legal Service NSW

Answers to Questions on Notice

1 Department of Immigration and Border Protection - answer to question on notice from public hearing 5 October 2016 (received 7 October 2016)

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Appendix 2

Public hearings and witnesses

Wednesday 5 October 2016—Canberra

DRUMMOND, Mr David, Director, Visa Framework and Reform, Department of Immigration and Border Protection

GILLEN, Ms Erin, Acting Director, Federation of Ethnic Communities' Councils of Australia

HANSFORD, Mr Hamish, Acting First Assistant Secretary, Immigration and Citizenship Policy Division, Department of Immigration and Border Protection

HOANG, Mr Khanh, Associate Lecturer, Migration Law Program, Australian National University

HUGHES, Ms Clare, Member, Migration Law Committee, Law Council of Australia

JULIAN-ARMITAGE, Ms Angela, National President, Migration Institute of Australia

MOJTAHEDI, Mr Ali, Principal Solicitor, Immigration Advice and Rights Centre

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The Senate

Legal and Constitutional Affairs

Legislation Committee

Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 [Provisions]

November 2016

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ii

 Commonwealth of Australia 2016

ISBN 978-1-76010-499-3

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License.

The details of this licence are available on the Creative Commons website:

http://creativecommons.org/licenses/by-nc-nd/3.0/au/.

This document was produced by the Senate Legal and Constitutional Affairs Committee secretariat and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

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iii

Members of the committee Members

Senator the Hon Ian Macdonald (LNP, QLD) (Chair)

Senator Louise Pratt (ALP, WA) (Deputy Chair)

Senator David Fawcett (LP, SA)

Senator Nick McKim (AG, TAS)

Senator Linda Reynolds (LP, WA)

Senator Murray Watt (ALP, QLD)

Secretariat

Ms Toni Matulick, Committee Secretary

Dr Marcus Smith, Principal Research Officer

Mr Nicholas Craft, Senior Research Officer

Ms Jo-Anne Holmes, Administrative Officer

Suite S1.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

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Table of contents

Members of the committee ............................................................................... iii

Recommendations .............................................................................................vii

Chapter 1.............................................................................................................. 1

Introduction and background ................................................................................. 1

Background and purpose of the bill ....................................................................... 1

Overview of the provisions of the bill .................................................................... 3

Concerns raised by the Scrutiny of Bills committee .............................................. 5

Financial implications ............................................................................................ 5

Compatibility with human rights ............................................................................ 6

Conduct of the inquiry ............................................................................................ 6

Structure of this report ............................................................................................ 6

Acknowledgements ................................................................................................ 7

Chapter 2.............................................................................................................. 9

Key issues................................................................................................................... 9

Schedule 1 - Revalidation check for certain visas .................................................. 9

Schedule 2 - Cessation of visas that are not in effect .......................................... 20

Schedule 3 - Contactless immigration clearance ................................................. 21

Committee view .................................................................................................... 22

Dissenting report by the Australian Greens ................................................... 25

Conclusion ............................................................................................................ 26

Appendix 1 ......................................................................................................... 29

Public Submissions ................................................................................................. 29

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Recommendations

Recommendation 1

2.61 The committee recommends that the Senate pass the bill.

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Chapter 1

Introduction and background

1.1 On 10 November 2016, the Senate referred an inquiry into the provisions of the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (the bill) to the Senate Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 28 November 2016.1

1.2 The Senate Selection of Bills Committee recommended that the bill be referred to the committee for inquiry to further investigate the potential impacts of the bill and seek views from affected stakeholders.2

Background and purpose of the bill

1.3 The Minister for Immigration and Border Protection, the

Hon Peter Dutton MP (the Minister) introduced the bill into the House of Representatives on 19 October 2016. In his second reading speech, he stated that the bill's provisions would support two key government initiatives in his portfolio, namely:

…initiatives which seek to promote Australia as an attractive destination…[and measures that] facilitate the use of enhanced technology to improve the traveller experience at the Australian border.3

1.4 The Minister stated that the bill contributes to the government's commitment to boosting the Australian tourism sector, noting that the sector provides employment for around 600,000 people and contributes more than $120 billion to the domestic economy.4 Moreover, he also noted the new class of visa would encourage repeat visits by Chinese business travellers, which would also benefit the wider Australian economy.5

The trial of 10-year visas

1.5 One government measure aimed at increasing the number of tourists visiting Australia is the introduction of a 10-year visa for holidaymakers and businesspeople.

1 Journals of the Senate, No. 15, 10 November 2016, p. 448.

2 Senate Selection of Bills Committee, Report No. 8 of 2016, 10 November 2016, Appendix 5.

3 The Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, p. 2433.

4 The Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, p. 2433.

5 The Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, p. 2433.

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In his second reading speech, the Minister noted the positive effects for the tourism industry and the Australian economy more generally that would stem from this initiative:

The introduction of a 10-year visitor visa will encourage repeat visits by genuine tourists and businesspeople choosing Australia as their preferred destination.6

1.6 This new class of visa will be trialled in a pilot program for Chinese nationals commencing in December 2017.7 This measure was initially proposed by the government's 2015 White Paper on Developing Northern Australia, alongside other measures to encourage Chinese tourists and business travellers, which included the ability to lodge visa applications online, as well as the provision of a fast-track visa approval service with a 48-hour turnaround.8

The use of 'SmartGates' to enhance immigration processing

1.7 Some Australian airports currently allow some passengers arriving from overseas to self-process through immigration clearance, by presenting an ePassport to a 'SmartGate kiosk'. This kiosk captures biometric information, such as the underlying bone structure of the face, distances between facial features such as eyes, nose, mouth and ears, which is then checked against a person's ePassport to identify the traveller.9

1.8 In his second reading speech, the Minister commented that in 2014-15 around six million people self-processed using SmartGates, of a total of more than 19 million arrivals into Australian airports. Additionally, he observed that improvements to the current system made by the provisions of the bill would help meet any future increase of the number of visitors to Australia, which is forecasted to rise by almost 25 per cent in the next four years.10

6 The Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, p. 2433.

7 This initiative was announced on 17 June 2015 by the Hon Peter Dutton MP, Minister for Immigration and Border Protection, the Hon Andrew Robb MP, Minister for Trade and Investment, and Senator the Hon Michaela Cash, Assistant Minister for Immigration and Border Protection. See the Joint Media Release - New Pilot Visa to Boost Australian Tourism, 17 June 2015.

8 Commonwealth of Australia, Our North, Our Future: White Paper on Developing Northern Australia (2015), p.11.

9 Department of Immigration and Border Protection, 'Arrivals SmartGate: frequently asked questions' available at www.border.gov.au/Trav/Ente/Goin/Arrival/Smartgateor-ePassport (accessed 23 November 2016).

10 The Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, p. 2434.

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1.9 This future need, the Minister suggested, had informed the government's plans to increase the use of the SmartGate technology in the future to enhance the experience of travellers, whilst also delivering efficiencies to Commonwealth:

As part of the 2015-16 budget, the government committed $93.7 million to the Seamless Traveller initiative, which included the expansion of SmartGates, and when fully implemented, we expect 90 per cent of travellers will self-process through these gates.11

Overview of the provisions of the bill

1.10 The bill consists of three schedules amending the Migration Act 1958 (the Migration Act) that would:

• introduce a new revalidation check framework for visas, initially pertaining to a pilot of the proposed 10-year visa for visitors from China (Schedule 1);

• clarify when a visa 'ceases to be in effect' under the Act (Schedule 2); and

• enable the use of contactless technology to clear travellers coming through the immigration clearance system (SmartGate) (Schedule 3).12

Revalidation check for visas (Schedule 1)

1.11 Given the long timeframe of the new 10-year visa, the Minister noted that it was likely the personal circumstances of some visa holders would change over the period their visa was valid. To manage potential risks this may pose he stated that Schedule 1 of the bill:

…introduces a mechanism that will allow for the department to seek revalidation of certain information from visa holders over the life of the visa, either through a 'routine' revalidation or a 'public interest' revalidation.

This 'revalidation' will be used to ensure that visa holders continue to meet genuine temporary entrant, identity, health, character, passport, national security and other criteria over the 10-year period.13

1.12 Moreover, the Minister also noted that a further potential risk was that 'a serious incident overseas' could necessitate a reassessment of a number of individuals holding certain visas. Given this, he provided more detail on the 'public interest revalidation check', which would be used:

11 The Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, p. 2434.

12 The Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, pp. 2433-2434.

13 The Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, pp. 2433-2434.

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…to manage specific, serious, or time-critical risks in relation to an identified cohort of visa holders. In such circumstances, issuing a personal ministerial revalidation requirement will immediately prevent specified visa holders from being able to travel to and enter Australia until they successfully revalidate their visa.14

Cessation of visas that are not in effect (Schedule 2)

1.13 Schedule 2 proposes amendments to the Act that would clarify the circumstances under which a visa can cease to be in effect. The Minister stated in his second reading speech that, while most visas come into effect at the time they are granted, there are a small number of visa classes that do not come into effect immediately. The Minister highlighted that the bill would clarify aspects of the current Act as:

There is currently ambiguity as to whether a 'ceasing event' under sections 82, 173 and 174 of the Migration Act can apply to a visa that has been granted, but not in effect.

The amendments contained within schedule 2 will ensure that, subject to limited exceptions, a visa will cease if a relevant ceasing provision applies to it, even if the visa is not in effect at the relevant time.15

1.14 The Minister stated that this was a key measure to support the new revalidation check framework introduced by the bill, especially as it would 'increase the number of persons who may hold a visa that is not in effect at a particular time'.16

Enhancing immigration clearance (Schedule 3)

1.15 Schedule 3 of the bill would introduce provisions to enhance the use of facial recognition technology by airport 'SmartGates'.These provisions would remove:

…the requirement for travellers to present a travel document for identity purposes, such as a passport, unless requested to do so by a clearance officer or an authorised system. The identity of a traveller will be confirmed using a unique biometric identifier, such as a facial image instead of document based checks. SmartGates embedded with contactless technology will be gradually rolled out to major airports from May 2017. The gradual roll out will minimise disruptions to Australian Border Force operations and traveller processing.17

14 The Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, p. 2433.

15 The Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, p. 2434.

16 The Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, p. 2434.

17 Explanatory Memorandum, p. 3.

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Concerns raised by the Scrutiny of Bills committee

1.16 The committee is aware that the Senate Scrutiny of Bills Committee has raised concerns about the proposed amendments made by the bill and sought further clarification from the Minister on a number of matters, namely:

• Why the revalidation check is linked to whether there is any 'adverse information' about the visa holder, rather than whether they still met the requirements for the initial grant of the visa (Item 4, proposed

subsection 96a);18

• Why the legislation does not define 'adverse information', which would provide more certainty for visa holders who could be subject to revalidation checks (Item 4, proposed subsection 96a);19

• Why the proposed ministerial power to subject a person to a revalidation check is expressed to relate to a visa of a prescribed kind, without providing details of, or limits to, the types of visas that may be prescribed (Item 4, proposed subsection 96B(1));20

• Why a legislative instrument setting out a specified class of persons who are to complete revalidation checks should not be subject to disallowance in the Parliament (Item 4, proposed subsection 96E(1));21 and

• Whether the decisions made under a proposed new subdivision BA of Division 3 of Part 2 of the Act will be reviewable, which is not explained in the Explanatory Memorandum (Item 4).22

1.17 The committee understands that, at the time of writing, the Scrutiny of Bills Committee has not received comments from the Minister on these issues.

Financial implications

1.18 The Explanatory Memorandum includes a financial impact statement which states that the amendments made by the bill would result in increased Commonwealth

18 Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 8 of 2016, 9 November 2016, p. 25. 19 Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 8 of 2016, 9 November 2016, p. 25. 20 Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 8 of 2016,

9 November 2016, p. 26.

21 Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 8 of 2016, 9 November 2016, p. 26.

22 Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 8 of 2016, 9 November 2016, pp. 27-28.

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revenues. These would be delivered by amendments made by Schedules 1 and 3 of the bill, with Schedule 2 having a 'low financial impact'.23

1.19 The Explanatory Memorandum forecasts that the Visa Application Charge (VAC) introduced under Schedule 1, would have a net impact of $33.5 million in administered revenue over the forward estimates from 2016-17.24

1.20 Regarding Schedule 3 of the bill, the Explanatory Memorandum states that improvements to contactless automated immigration clearance technology (SmartGates) are expected to save the Commonwealth $32.9 million a year in compliance costs.25

Compatibility with human rights

1.21 The Explanatory Memorandum states that the bill is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.26

Conduct of the inquiry

1.22 Details of the inquiry were advertised on the committee's website, including a call for submissions by 18 November 2016, as well as links to the bill and relevant documents.27 The committee also wrote to some individuals and organisations directly, inviting them to make submissions.

1.23 The committee received six submissions, which are listed at appendix 1 of this report. These submissions are available on the committee's website.

Structure of this report

1.24 This report consists of two chapters:

• This chapter provides a background and overview of the bill, as well as the administrative details of the inquiry.

• Chapter 2 sets out the concerns that were raised by submitters to the inquiry, as well as the committee's views and recommendations.

23 Explanatory Memorandum, p. 3.

24 Explanatory Memorandum, p. 3.

25 Explanatory Memorandum, p. 3.

26 Explanatory Memorandum (Attachment A), p. 48.

27 The committee's website can be found at www.aph.gov.au/Parliamentary_Business/ Committees/Senate/Legal_and_Constitutional_Affairs

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Acknowledgements

1.25 The committee thanks all submitters to this inquiry, particularly noting the short timeframe given to them for the lodgement of submissions.

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Chapter 2 Key issues

2.1 This chapter discusses the key provisions of the Migration Legislation Amendment (Visa Revalidation) Bill 2016 (the bill).

2.2 First it outlines the key issues raised by submitters to the inquiry, which overwhelmingly addressed provisions contained in Schedule 1 of the bill. It then provides an outline the provisions of Schedules 2 and 3 of the bill.

2.3 Lastly, this chapter sets out the committee's views and recommendations.

Schedule 1 - Revalidation check for certain visas 2.4 The Explanatory Memorandum outlines the proposed amendments that would be made by Schedule 1 of the bill, which would establish a visa revalidation framework within the Migration Act 1958 (the Migration Act ). This would include:

…a general power for the Minister to require, from time to time, a person who holds a visa of a prescribed kind to complete a revalidation check. There will be an additional personal non-compellable power for the Minister to determine by legislative instrument, if he or she thinks it is in the public interest, that a specified class of persons holding a visa of a prescribed kind must complete a revalidation check for the visa.

The amendments will provide that a person will pass a revalidation check if the Minister is satisfied that there is no adverse information relating to the person, or it is reasonable to disregard that adverse information. The consequences of a person failing to complete or pass a revalidation check may be that the visa will cease to be in effect, depending on their circumstances, by operation of law. If a person's visa has previously ceased to be in effect, they can subsequently complete and pass the revalidation check during the visa period and their visa will come back into effect.1

Support for the revalidation framework

2.5 The introduction of the visa revalidation framework would support the trial of a new 10-year multiple entry Visitor visa for Chinese nationals.2

2.6 The Department of Immigration and Border Protection (the department) submitted that the framework would deliver economic dividends for the Australian tourism sector by boosting the numbers of Chinese tourists and businesspeople coming to Australia.3

1 Explanatory Memorandum, p. 2.

2 See Explanatory Memorandum, p. 48; also see the Hon Peter Dutton, Minister for Immigration and Border Protection, House of Representatives Hansard, 19 October 2016, p. 2433.

3 Submission 2, p. 3.

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2.7 The department also noted that the provisions of the bill would simplify immigration processes for visitors, while maintaining the integrity of Australia's security system:

This framework simplifies visa processes for frequent travellers whilst managing specific, serious, or time critical risks to the Australian community and individual circumstances which may change through the visa validity period. The new framework will support the proposed trial of the new 10 year validity visitor visa to ensure that, among other things, only genuine visitors retain the right to travel to and enter Australia.4

2.8 The Migration Institute of Australia (MIA) recognised that it was reasonable to expect visas with longer periods of validity, including the new 10-year multiple entry visa, to be subject to revalidation checks, as:

Visa holders' personal circumstances can undergo any number of changes over time and the longer the visa validity, the greater the opportunity for unforeseen or undesirable changes to occur.

Revalidation at biannual intervals and through the processes specified in this Bill appear reasonable and appropriate without being overly onerous within the circumstances.5

Issues raised by submitters to the inquiry

2.9 Submitters raised a number of issues about the introduction of the visa revalidation scheme by Schedule 1 of the bill. These issues will be discussed in turn, and include:

• claims there is currently insufficient information available about the nature, conditions and implementation of the new 10-year visa for Chinese nationals;

• allegations that the bill does not limit the revalidation scheme to holders of the new 10-year multiple entry visa, which means revalidation tests could be extended to other classes of visa in the future;

• the suggestion that 'adverse information', which can be used by the Minister of Immigration and Border Protection (the Minister) to determine revalidation checks for certain visa holders, is insufficiently defined in the bill and supporting regulations;

• the view that ministerial powers to determine 'public interest revalidation checks' may not be subject to robust accountability and scrutiny mechanisms in the Migration Act;

• claims the bill lacks provisions for reviews of decisions made under the visa revalidation framework, and concerns that natural justice is not guaranteed to be afforded to individuals subject to negative visa revalidation assessments; and

4 Submission 2, p. 3.

5 Submission 3, p.3.

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• the perception that there may already be existing powers in the Migration Act to address potential security and public interest concerns regarding 10-year visitor visas.

Insufficient information about the new visa

2.10 The Law Council of Australia (Law Council) advised the committee that it was difficult to assess the potential impact of revalidation checks, given that:

…the visa referred to in the Explanatory Memorandum does not currently exist, and there are no details as to the criteria which must be satisfied for that visa, or the conditions which may or must be imposed. The Law Council is of the view that without this information, the breadth of the power conferred by Schedule 1 of the Bill cannot be fully appreciated.6

2.11 At the recent Supplementary Estimates hearing of this committee, the Secretary of the Department of Immigration and Border Protection,

Mr Michael Pezzullo, and Acting Commissioner of the Australian Border Force, Mr Michael Outram, provided information about new types of visas, including the 10-year visa for Chinese visitors to Australia:

By the end of 2016, the Department will have implemented a number of new and innovative tourist visa products: first, a Lodgement in Simplified Chinese and second, a 10-year validity Visitor (Subclass 600) visa - which allows multiple entries and a three-month stay period. The visa will commence as a pilot in China for a fee of AUD $1000.7

2.12 The committee notes that the Law Council's submission includes an overview of the nature and conditions of the 10-year visa, which are all drawn from the Explanatory Memorandum, including that it:

• is a 10 year visa, applying to tourism and business visitor activities;

• will allow for multiple entries and up to a three-month stay period after each entry during the validity period of the visa (with no more than 12 months cumulative stay in a 24 month period;

• will initially only be available to applications who are nationals of the People’s Republic of China;

• costs AUD1000 as the visa application charge; and

• will be marketed as a premium product to attract high value frequent travellers.8

6

7

8

Submission 4, p. 12.

Mr Michael Pezzullo, Secretary, Department of Immigration and Borde r Protection and Mr Michael Outram, Acting Commissioner, Australian Border Force, Written Opening Statement tabled at the Legal and Constit utional Affair s Legislation Committee Estimates Hearing (tabled 17 October 2016). Also note that more information about the general Visitor visa (subclass 600) is available on the department's website at www.border.gov.au/Trav/Visa-1/600- (accessed 24 November 2016). Submission 4, pp. 5-6.

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2.13 The department clarified that the new Frequent Traveller stream of the Visitor (subclass 600) commenced on 19 November 2016, which will provide for the pilot of the longer multiple entry visas for Chinese nationals. It also directed the committee to further detail in the new regulations supporting this visa, which the Federal Executive Council endorsed on 10 November 2016.9

The revalidation framework is not limited to the new 10-year visa

2.14 Some particular submitters raised concerns that the bill does not explicitly link the scheme to any visa type, despite the claim it is designed to support the integrity of the new 10-year visitor visa. This means the revalidation framework could potentially be used to review and rescind other classes of visa. For example, the Law Council of Australia questioned 'whether the Bill is necessary, justified and proportionate to achieving a legitimate purpose', given that:

…the Bill has a substantially broader application than was intended or expressed in the Explanatory Memorandum or the Minister’s Second Reading Speech.10

2.15 The Andrew & Renata Kaldor Centre for International Refugee Law (Kaldor Centre) advised the committee that the revalidation framework 'has the potential to adversely impact on all visa holders'. Even though the Kaldor Centre noted that it was most likely that it could be used regarding holders of temporary visas, it noted the potential for it to be applied to all classes of visas, including permanent visas granted to refugees.11

2.16 The Law Council also advised the committee that ministerial powers under the proposed subsection 96B(1) may not be limited to the new visa:

The definition of a 'prescribed kind' of visa is not defined within the Bill, nor is it limited to the proposed new longer validity visitor visa. A 'prescribed kind' of visa could potentially be any visa as deemed by the Minister. As a visa of a 'prescribed kind' can be specified in regulations which then refer to an Instrument which defines the subclass or class of visa, the Bill has the potential to all classes of visas.12

2.17 Moreover, the Law Council noted there were no time limitations imposed by the amendments made by the bill, which made it possible that:

…these proposed powers could be exercised many years after a person has been granted permanent residence. The fact that that many people will have moved address in that period will meant that many people may not be

9 See Migration Legislation Amendment (2016 Measures No. 5) Regulation 2016 www.legislation.gov.au/Details/F2016L01745 (accessed 21 November 2016). Department of Immigration and Border Protection, Response to the Law Council of Australia’s submission to the Senate Legal and Constitutional Affairs Committee in relation to the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (Attachment A), [p. 1].

10 Submission 4, pp. 8-9.

11 Submission 1, p. 1. 12

Submission 4, p. 9.

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aware that that a notice requiring them to complete a revalidation check has been issued. In practical terms their visas will then cease to be in effect when they travel internationally.13

2.18 The department provided further information about the scope of the bill's provisions, noting that only the new Subclass 600 (Visitor) visa will be prescribed for the purposes of requiring a revalidation check. The department explained why the power to prescribe which visa could be subject to a revalidation check process has not been limited, as follows:

Flexibility had been provided as other longer validity visa products may be implemented in the future. The revalidation framework may be an appropriate mechanism to manage identified risks in these products. Limiting the types of visas that can be prescribed would restrict the ability to use the revalidation framework to reduce red tape and manage risks associated with newly developed or reformed visa products.14

2.19 The department also noted proposed regulations under the new provisions that would specify that:

For the purposes of subsection 96B(1) of the Act, a Subclass 600 (Visitor) visa in the Frequent Traveller stream is a prescribed kind of visa.

For the purposes of subsection 96E(1) of the Act, a Subclass 600 (Visitor) visa in the Frequent Traveller stream is a prescribed kind of visa.15

2.20 Moreover, the department made it clear there were no proposals to extend the new provisions to other visas, and that any future changes to the Migration Regulations 1994 would be subject to parliamentary scrutiny and disallowance:

It is not proposed that the amendments to the Migration Regulations 1994 (Migration Regulations) to prescribe these visas will include a power to make a legislative instrument to specify additional visas. Further, as any amendments to the Migration Regulations would themselves be subject to disallowance, there would be parliamentary oversight of any proposal to include such an instrument making power (or to add further visas to the Revalidation scheme).16

13 Submission 4, p. 15.

14 Department of Immigration and Border Protection, Response to the Law Council of Australia’s submission to the Senate Legal and Constitutional Affairs Committee in relation to the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (Attachment A), [p. 1].

15 Department of Immigration and Border Protection, Response to the Law Council of Australia’s submission to the Senate Legal and Constitutional Affairs Committee in relation to the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (Attachment A), [p. 2].

16 Department of Immigration and Border Protection, Response to the Law Council of Australia’s submission to the Senate Legal and Constitutional Affairs Committee in relation to the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (Attachment A), [p. 2].

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Lack of a robust definition of 'adverse information'

2.21 The Explanatory Memorandum provides some guidance regarding adverse information that could be used to inform a revalidation check, noting it may cover information that includes, but is not limited to, if a person:

• has been convicted of an offence since the grant of the visa;

• may present a health concern to the Australian community;

• no longer intends to stay in Australia for temporary or tourism purposes; or

• may present a security risk to the Australian community.17

2.22 The Law Council noted that Regulation 1.13A of the Migration Regulations 1994 defines 'adverse information' in broad terms, which include 'a wide range of activity, not just committed by the person themselves, but also a person associated with that person'.18 It observed that, under the revalidation checks proposed by the bill:

The adverse information also does not need to relate to: (a) the criteria that the person met to be granted the visa in the first place; or (b) factors/matters which would potentially expose the person to visa cancellation under existing powers of the Act. Conceivably this could relate to something as simple as a parking fine. As drafted, the Law Council is concerned that 'adverse information' is too broad to be meet its intended purpose to protect the Australian community due to the risks associated with longer validity visitor visas.19

2.23 The Kaldor Centre argued that the broad definition of 'adverse information' in the bill, could:

…enable the government to impose surveillance measures on temporary, and possibly, permanent visa holders. It undermines the long-standing rationale and stability of Australia's migration system, which is premised on the notion that once a person has been issued a visa, he or she is entitled to have that visa be in effect until the visa period expires (subject to any grounds for visa cancellation).20

2.24 Given this, the Kaldor Centre argued that the introduction of these provisions could have negative effects for recipients of refugee visas:

For example, [a requirement to complete a visa revalidation check] would require a refugee to respond to information relating to a change in circumstances in their country of origin, or a health problem, or a minor traffic infringement. It means that a refugee potentially has to continually validate his or her claims for protection, and information supplied may be

17 Explanatory Memorandum, p. 11.

18 Submission 4¸ p. 10.

19 Submission 4¸ p. 10.

20 Submission 1, p. 1.

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used to cancel a visa. This is likely to have significant consequences for refugees' ability to adjust to life in Australia, to feel safe and well-integrated in the community, and to recover from trauma or general stress associated with the reasons for flight and/or experiences as an asylum seeker.21

2.25 The department provided further information to the committee about the nature and scope of 'adverse information' that could be considered by the Minister in making determinations. It highlighted that 'adverse information' had to be defined broadly to 'allow for flexibility in addressing future changes in both domestic and global circumstances', and commented that a Minister could 'disregard adverse information when reasonable'. It noted that conditions for accepting or disregarding adverse comment could include:

…circumstances relevant to the assessment of the genuine temporary entrant criteria, including consideration of both the personal circumstances of the applicant in their home country and general conditions in the home country that might encourage them to remain in Australia. These conditions include:

• economic disruption, including shortages, famine, or high levels of unemployment, or natural disasters in the applicant’s home country;

• civil disruption, including war, lawlessness or political upheaval in the applicant’s home country; or

• emerging public health and safety risks identified in the visa holder’s country of citizenship or long term residence.22

The extent of ministerial powers

2.26 The Explanatory Memorandum sets out the powers of the Minister to determine that certain visa holders must complete a 'public interest revalidation check' under new subsection 96E(1):

The public interest test is intended to be broad and flexible to allow the Minister to consider any factor that he or she considers relevant when deciding whether to make a determination under new subsection 96E(1). For example, the Minister may consider the public health and safety of the Australian community or particular individuals, national security, the economic wellbeing of Australia, the circumstances in a person's home country, the risk of overstaying or other factors, or combination of factors, determined to be relevant to the particular circumstances.23

2.27 Additionally, proposed subsection 96B(1) states that:

21 The Kaldor Centre also suggested that adverse findings against refugees under the provisions of the bill 'may also raise issues of incompatibility with article 1C of the Refugee Convention (cessation of refugee status)'. See Submission 1, p. 2.

22 Department of Immigration and Border Protection, Response to the Law Council of Australia’s submission to the Senate Legal and Constitutional Affairs Committee in relation to the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (Attachment A), [pp. 1-2].

23 Explanatory Memorandum, p. 21.

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The Minister may, from time to time, require a person who holds a visa of a prescribed kind (however described) to complete a revalidation check for the visa.24

2.28 The MIA expressed reservations about the extent of the personal powers that could be granted to the Minister by section 96E(1) of the bill, if enacted:

The MIA believes that circumstances could emerge that could provide the Minister at that time with unfettered power to determine classes of person who must submit to revalidation checks. For example, if the Government of the day held a majority in both the Upper and Lower Houses of the Federal Parliament, any legislative instrument changing the classes of persons specified in such an instrument, may have an easy path to approval.

At worst, the Minister's powers could be used to significantly skew this interpretation of the 'public interest' and to significantly and retrospectively change the eligibility characteristics for passing the revalidation test. Unlikely as it may seem at this time, this could be extrapolated to discriminate against large numbers of long term visa holders lawfully living in Australia, preventing them from revalidating their visas and requiring them to leave the country.25

2.29 The Law Council pointed out that the bill does not contain any threshold requirements for the Minister to invoke discretionary powers. It flagged concerns that the lack of a threshold for the exercise of ministerial discretion may be at odds with existing visa cancellation powers contained in the Migration Act:

…[under the amendments the Minister has] a power that can be used at large against any person who holds a visa of a 'prescribed kind', entirely at the discretion of the Minister.

This is at odds with all the visa cancellation powers which exist in the Migration Act under Subsections 109, 116, 133A, 133B, 134, 137Q, and 501 (and related powers). For each of those cancellation powers, the Migration Act prescribes specific adverse matters/facts of which the Minister must be satisfied before the discretion can be exercised.26

2.30 This concern was shared by the Kaldor Centre, which observed that bill does not define 'public interest' and that this 'in practice this would give the Minister considerable discretion to impose checks on any number of visa holders'.27 The Law Council also noted this extension of the Minister's discretionary powers, and highlighted that the Migration Act itself does not contain a definition of 'public interest'.28

24 Explanatory Memorandum, p. 12.

25 Submission 3, p. 3.

26 Submission 4, p. 13.

27 Submission 1, p. 2

28 Submission 4, p. 13.

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Ministerial accountability and the scrutiny of decisions

2.31 Proposed subsection 96E(3) of the bill sets out the provision that a Minister can make a determination it is in the public interest for certain a class of visa holders to complete a revalidation check (a public interest revalidation check). This stipulates that, following such determinations:

…the Minister must cause to be laid before each House of the Parliament a statement that:

• states that the Minister has made the determination; and

• sets out the Minister’s reasons for making the determination, referring in particular to the Minister’s reasons for thinking that the making of the determination is in the public interest.29

2.32 The Explanatory Memorandum states that this:

…provides a mechanism for the Minister to ensure that there is public and political accountability to the Parliament regarding the exercise of the power in new subsection 96E(1), in particular over the reasons that the Minister thinks the making of the determination was in the public interest.30

2.33 Some submitters recognised that the powers of the minister under the bill are not completely unfettered, as the amendments do contain some accountability and scrutiny mechanisms to ensure discretionary powers are not abused. For instance, despite its concerns over some elements of the bill, the MIA recognised that 'this Amendment contains a variety of checks and balances within the prescribed processes.31

2.34 The Law Council drew the committee's attention to potential limitations to the ability of the Parliament to apply appropriate scrutiny to Ministerial decisions made under new provisions proposed by the bill:

It is the current approach in migration matters for the regulations to refer to the wording such as 'those visa subclasses as specified in a legislative instrument'. An attempt to make regulations for the purposes of the 'prescribed kind' of visa in the Bill would be a decision made by the determination of the Minister. Consistent with section 44 of the Legislative Instruments Act 2003 (Cth), these regulations would not be disallowable. This potentially limits capacity to scrutinise the broader impacts of the Bill if passed.32

2.35 However, the Explanatory Memorandum states that parliamentary scrutiny of ministerial decisions would be possible under the tabling provisions:

29 Explanatory Memorandum, pp. 22-23

30 Explanatory Memorandum, p.23

31 Submission 3, p. 3. These concerns raised by the MIA are outlined earlier in this chapter.

32 Submission 4, p. 9.

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While a legislative instrument made under new subsection 96E(1) is not subject to disallowance, the tabling provisions will still ensure that the Parliament can scrutinise the Minister’s decision and provide comment on such a determination through a motion of disapproval or other mechanism.33

2.36 The department clarified that any regulations applying revalidation checks to visas other than the new Frequent Traveller stream of the Visitor (subclass 600) would be subject to the disallowance process:

There would be Parliamentary scrutiny over which visas, or the types of visas, that were prescribed for the revalidation check framework through the disallowance process. If the Parliament considered it was inappropriate for a visa which has been prescribed to be subject to the revalidation check process, a motion could be moved to disallow that regulation.34

2.37 The department also noted that a flexible approach would provide for:

…consideration of the visa holder’s ongoing compliance with the conditions of their visa, as well as consideration of information relevant to any new grounds for visa cancellation that are introduced in the future under the Migration Act 1958 (the Migration Act).35

Reviews of findings under the visa revalidation framework

2.38 Some submitters observed that it is not clear whether adverse decisions made under the visa revalidation framework are reviewable. For instance, the Kaldor Centre noted:

While the ultimate decision to cancel a visa may be subject to administrative and judicial review, it does not appear that the decisions as to whether a person passes the revalidation check would be.36

2.39 The Law Council also raised concerns that there was no explicit acknowledgement in the bills that natural justice would be afforded to visa holders subject to negative assessments, who wished to seek a review of decisions.37 It set out the issues this may raise, as follows:

33 Explanatory Memorandum, p. 23

34 Department of Immigration and Border Protection, Response to the Law Council of Australia’s submission to the Senate Legal and Constitutional Affairs Committee in relation to the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (Attachment A), [p. 1].

35 Department of Immigration and Border Protection, Response to the Law Council of Australia’s submission to the Senate Legal and Constitutional Affairs Committee in relation to the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (Attachment A), [p. 2].

36 Submission 1, p. 2.

37 The Law Council described natural justice as 'the common law rule that a decision maker must provide the opportunity for a person whose rights, interests or legitimate expectations are affected by a decision to understand the basis for the decision and to be heard'. See Submission 4, p. 10.

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While not specifically excluding natural justice, the Law Council is concerned that the revalidation check under proposed section 96B may give rise to natural justice issues. Under proposed section 96D it is not clear that the long term validity visa holder would be provided with reasons or be heard following a decision that a 'visa ceases to be in effect'.38

2.40 Given this, the Law Council recommended that the bill be amended:

…to expressly provide that natural justice is afforded to those affected by a visa revalidation decision and that administrative review rights are not curtailed. This would require that the Minister inform the person subject to the visa revalidation of the nature and precise content of any ‘adverse information’ on which a decision is based and allow opportunity for the person to respond.39

2.41 Regarding the provision of natural justice to individuals undergoing visa revalidation checks, the department commented:

The cancellation powers in the Migration Act include a mechanism to provide natural justice to a visa holder in relation to adverse information, either in the form of a NOICC (Notice of Intention to Consider Cancellation) or through the request for revocation of visa cancellation process. This means that where the Department of Immigration and Border Protection (the Department) is aware of such information, adequate powers exist to take appropriate action.40

Existing powers under the Migration Act

2.42 The Law Council advised the committee that the Migration Act and Regulations may already provide adequate powers to address any concerns about safeguarding the integrity of Australian immigration system when the new 10-month visitor visa is introduced, citing provisions that:

• A visa holder can be required to inform of any change of their contact details - see for example conditions 8505, 8506 and 8513.

• A temporary visa can be cancelled if it is later determined that:

i. the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

ii. the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist.

38 Submission 4, p. 11.

39 Submission 4, p. 11.

40 Department of Immigration and Border Protection, Response to the Law Council of Australia’s submission to the Senate Legal and Constitutional Affairs Committee in relation to the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (Attachment A), [p. 3].

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• A temporary visa can also be cancelled if the holder has not complied with the conditions of their visa.

• Any visa (whether temporary or permanent) can be cancelled on the basis that a bogus document, or false or misleading information in a material particular, was provided as part of a visa application (Public Interest Criteria 4020).

• With respect to protection, refugee and humanitarian visas, the Minister has extensive cancellation powers under subsections 5H(2), 36(1C), 36(2C) and section 501 of the Migration Act.41

2.43 The Law Council also noted that similar regimes for the automatic cancellation of certain visas, such as the provisions enacted by the Migration Legislation Amendment (Student Visas) Act 2012, had been abandoned by the Commonwealth. It suggested that '[a]utomatic cessation of visas is an inefficient tool for managing visa compliance, consistent with the commentary in the Knight Review [Strategic Review of the Student Visa Program (2011)]'.42

2.44 In response to these concerns, the department stated that:

There is no existing head of power in the Migration Act that is broad enough to require a visa holder to provide updated information on their personal circumstances for the purpose of ascertaining the existence of any such adverse information. This would be required to enable the Minister to be satisfied that the visa holder continued to meet health, character, security, genuine temporary entrant and other criteria that would normally be considered at the time of visa grant over the visa period.43

The short timeframe for inquiry into the bill

2.45 The Law Council considered that 'one week is insufficient time for consultation on the Bill, which will grant substantial additional powers to the Minister'. It noted that a longer reporting time 'would have enabled [the committee] to obtain the views of a much wider range of organisations and individuals affected by the Bill'.44

Schedule 2 - Cessation of visas that are not in effect 2.46 Currently, section 82 of the Migration Act sets out when a visa ceases to be in effect, including in cases when:

• a visa holder leaves Australia because of a deportation order;

41 Submission 4, pp. 13-14.

42 Submission 4, pp. 14-15.

43 Department of Immigration and Border Protection, Response to the Law Council of Australia’s submission to the Senate Legal and Constitutional Affairs Committee in relation to the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (Attachment A), [p. 3].

44 Submission 4, pp. 12-13.

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• a bridging visa ceases because the holder has another type of visa come into effect; or

• the holder of a visa valid for a particular period or date leaves Australia after that period or date.

2.47 The Explanatory Memorandum further outlines examples in which amendments introduced by proposed 82A would apply, as well as the policy intention of these legislative changes:

A common example of where this may occur is in the case of a bridging visa that has been granted to a person in association with an undecided application for another substantive visa, where a non-citizen might travel offshore and return to Australia whilst holding a different substantive visa.

The policy intention is that the bridging visa that is out of effect should continue to be held by the person, so that if a decision has not been made on the undecided application when the person's substantive visa ceases following their return to Australia, the bridging visa will come into effect to maintain the person's lawful status until a decision is made on the outstanding application.45

2.48 Submitters raised no concerns specifically addressing provisions contained in Schedule 2 of the bill.

Schedule 3 - Contactless immigration clearance 2.49 The department set out the advantages of contactless technology in enhancing the use of SmartGates in immigration processes:

These immigration clearance measures·amend the Migration Act to enable the use of 'contactless' technology to clear travellers through the automated immigration clearance system, SmartGate, which is an authorised clearance authority under the Migration Act. Contactless technology is an enhancement to SmartGates at both departure and arrival, and uses leading edge technology to confirm a traveller's identity, removing the SmartGate's reliance on document based checks to confirm identity.46

2.50 The department emphasised that the use of SmartGates was voluntary, and that individuals could choose to be processed by an immigration officer.47 Moreover, the department highlighted both the security and economic benefits of the improvement of automated immigration clearance systems:

With increased automation, Australian Border Force resources can be diverted from manual processing tasks to focus on managing border threats and minimising vulnerabilities. This enhancement provides stronger

45 Explanatory Memorandum, p. 37.

46 Submission 2, p. 5.

47 Submission 2, p. 5.

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security measures and contributes to the economic development of Australia through faster and more efficient traveller facilitation.48

2.51 No concerns about Schedule 3 were raised by submitters to the inquiry.

Committee view 2.52 The committee is satisfied that the provisions of the bill would achieve the stated goals of supporting the trial of 10-year multiple entry visas for Chinese nationals wishing to visit Australia for tourism and business purposes.

2.53 Tourism is one of Australia's largest sectors, contributing around $120 billion to our national economy. Within this, China is Australia's largest source of tourists, who contribute over $5 billion to the Australian economy annually.49

2.54 Expediting visas for Chinese visitors will clearly deliver benefits for the tourism industry in the future, and through this contribute substantially to the Australian economy more generally.50

2.55 The committee understands that the bill's proposed provisions would also assist in streamlining the Australian immigration system, which faces significant challenges in the near future, exemplified by forecasts that suggest there will be a 25 per cent increase to the number of visitors to Australia over the next four years.

2.56 Given this, the committee considers that the bill will go some way to making it more convenient for many visa holders to enter Australia, as well as reducing red tape and costs for the Commonwealth.

2.57 The committee understands that concerns have been raised by submitters to the inquiry about the visa revalidation system introduced by the bill. Additionally, the committee has considered evidence that argues the bill does not include robust mechanisms to ensure that determinations made by the minister are subject to appropriate scrutiny and accountability.

2.58 However, the committee is satisfied that the proposed measures are necessary and justified, and will lead to good outcomes for both the integrity of the Australian immigration system and the national economy.

2.59 The committee notes that any decision made by the minister to make determinations for certain classes of visa holders to be subject to public interest revalidation checks requires that the minister table a statement in both Houses of Parliament justifying the decision. This provision would ensure that decisions made by the Minister are subject to appropriate scrutiny by Parliament.

48 Submission 2, p. 5.

49 The Hon Malcolm Turnbull MP, Prime Minister, Remarks at the 16th Annual Tourism and Transport Forum Leadership Summit, 23 November 2016.

50 The Hon Peter Dutton MP, Minister for Immigration and Border Protection, The Hon Andrew Robb MP, Minister for Trade and Investment, and Senator the Hon Michaela Cash, Assistant Minister for Immigration and Border Protection, Joint Media Release - New Pilot Visa to Boost Australian Tourism, 17 June 2015.

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2.60 The committee encourages government to consider that public interest revalidation checks made by the Minister be subject to disallowance by the Senate.

Recommendation 1

2.61 The committee recommends that the Senate pass the bill.

Senator the Hon Ian Macdonald

Chair

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Dissenting report by the Australian Greens 1.1 The Australian Greens have serious concerns with the proposed Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 (the bill), and so consider that the bill should not be passed by the Senate.

1.2 The Explanatory Memorandum claims the bill will amend the Migration Act 1958 (Migration Act) to support the new 10-year multiple entry Visitor visa for Chinese nationals, which is scheduled to be trialled from December 2016.1

1.3 However, the amendments contain significant changes to the Migration Act that could affect all visas offered by the Commonwealth. Most troublingly, this could make all Australian visas—no matter whether temporary or permanent—subject to the unchecked discretionary powers of the Minister for Immigration (the Minister).

1.4 The Greens endorse the findings of the Law Council's submission, which were underpinned by the conviction that:

The Bill appears to be neither necessary nor proportionate to its intended objective, in that it has the potential to apply to all classes of visas, not just the proposed longer validity visitor visa.2

1.5 The Greens also agree with some submitters that the proposed visa has not been adequately set out by the government, even though its pilot program is imminent. This makes it difficult to assess the need for or nature of the amendments made by the bill. As the Law Council noted:

…the visa referred to in the Explanatory Memorandum does not currently exist, and there are no details as to the criteria which must be satisfied for that visa, or the conditions which may or must be imposed. The Law Council is of the view that without this information, the breadth of the power conferred by Schedule 1 of the Bill cannot be fully appreciated.3

1.6 It is clear that the bill, should it be enacted, would grant an unprecedentedly broad range of discretionary powers to the Minister, without government having sufficiently explained their intended purpose or defining key terms. The bill places no limits on or definition of what types of 'prescribed visas' the Minister can subject to a 'public interest revalidation check'.4 As highlighted by the main committee report, the term 'public interest' remains undefined by the bill, as well as the broader Migration

1 Explanatory Memorandum, p. 21.

2 Submission 4, pp. 8-9.

3 Submission 4, p. 12.

4 Law Council of Australia, Submission 4, p. 7; ANU College Of Migration Law, Submission 6, p. 2;

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Act and supporting regulations. The term 'revalidation check' itself is also undefined.5 Lastly, the bill insufficiently defines 'adverse information', which provides too much discretionary power to the Minister to determine the type of information used to assess visa holders undergoing revalidation checks.6

1.7 The extent of Ministerial discretion, combined with the unsatisfactory definitions of key terms, means the Minister could potentially use the bill's amendments to unfairly discriminate against a large number of visa holders lawfully living in Australia, both on temporary and permanent visas.

1.8 The Australian Greens reject the lack of scrutiny that could be applied to decisions made under the provisions of the bill, particularly to require certain classes of persons to submit to revalidation checks. In this, the Minister could make legislative instruments that are not subject to disallowance by the Parliament, even if they have to be tabled in both houses. This could potentially mean the Senate is unable to scrutinise far-reaching decisions that could affect all persons residing in Australia as temporary or permanent residents.7

1.9 The Australian Greens share the Kaldor Centre's concerns that the bill has the potential to adversely affect refugees through the unchecked powers it confers on the Minister. We also find it troubling that the bill contains no assurances that a person who fails a revalidation check would have access to appropriate reviews of the determination and fairness of the assessment process.8

1.10 Lastly, we concur with the Law Council, which provided a comprehensive outline of the existing powers under the Migration Act that are adequate to oversee the trial of the new 10-year multiple entry visa for Chinese nationals.9

Conclusion

1.11 The Australian Greens find that the bill would unreasonably extend the Minister's discretionary powers, and that key terms in the legislation are not sufficiently defined.

1.12 Moreover, we note that the Explanatory Memorandum claims this legislation is being introduced to support the trial of new 10-year Visitor visas for Chinese nationals. However, this claim cannot be sustained, given the provisions of the bill

5 Migration Institute of Australia, Submission 3, p. 2; Law Council of Australia, Submission 4, p. 9.

6 Kaldor Centre, Submission 1, p. 2.

7 Migration Institute of Australia, Submission 3, p. 3; Law Council of Australia, Submission 4, p. 9.

8 Kaldor Centre, Submission 1, pp. 2-3; Civil Liberties Australia, pp. 1-2.

9 Submission 4, pp. 13-14.

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could be applied, if enacted, to require the holder of any Australian visa to undergo a revalidation check.

1.13 Regarding this visa, the Australian Greens consider there is already sufficient provision in the Migration Act to ensure its trial, beginning in December 2016, does not compromise the Australian visa system.

Recommendation 1

1.14 The Australian Greens recommend that the bill be rejected by the Senate.

Senator Nick McKim

Australian Greens

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Appendix 1

Public Submissions

Submission Submitter

Number

1 Kaldor Centre

2 Department of Immigration and Border Protection

3 Migration Institute of Australia (MIA)

4 Law Council of Australia

a) Response to Law Council Submission by DIBP

5 Civil Liberties Australia

6 Australian National University College of Law Migration Law Program

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The Senate

Legal and Constitutional Affairs

Legislation Committee

Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 [Provisions]

November 2016

137

ii

 Commonwealth of Australia 2016

ISBN 978-1-76010-488-7

This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License.

The details of this licence are available on the Creative Commons website:

http://creativecommons.org/licenses/by-nc-nd/3.0/au/.

This document was produced by the Senate Legal and Constitutional Affairs Committee secretariat and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

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Members of the committee Members

Senator the Hon Ian Macdonald (LNP, QLD) (Chair)

Senator Louise Pratt (ALP, WA) (Deputy Chair)

Senator David Fawcett (LP, SA)

Senator Nick McKim (AG, TAS)

Senator Linda Reynolds (LP, WA)

Senator Murray Watt (ALP, QLD)

Participating Member

Senator Derryn Hinch (DHJP, VIC)

Secretariat

Ms Toni Matulick, Committee Secretary

Dr Marcus Smith, Principal Research Officer

Ms Potheda Youhorn, Principal Research Officer

Ms Charlotte Fletcher, Senior Research Officer

Mr Nicholas Craft, Senior Research Officer

Ms Kathleen McGarry, Research Officer

Ms Jo-Anne Holmes, Administrative Officer

Suite S1.61 Telephone: (02) 6277 3560

Parliament House Fax: (02) 6277 5794

CANBERRA ACT 2600 Email: legcon.sen@aph.gov.au

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v

Table of contents

Members of the committee ............................................................................... iii

Recommendation ...............................................................................................vii

Chapter 1

Introduction .............................................................................................................. 1

Referral ................................................................................................................... 1

Conduct of inquiry .................................................................................................. 1

Overview of the bill ................................................................................................ 1

Inquiry timeframe ................................................................................................... 3

Structure of this report ............................................................................................ 3

Chapter 2

Key issues................................................................................................................... 5

Purpose of the bill ................................................................................................... 6

Interpretation of the lifetime ban ............................................................................ 9

Potential impact on families ................................................................................. 10

Ministerial discretion ............................................................................................ 11

Retrospectivity ...................................................................................................... 11

Committee view .................................................................................................... 13

Dissenting Report by the Labor Senators ....................................................... 15

Dissenting Report by the Australian Greens .................................................. 21

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Appendix 1 - Public submissions ..................................................................... 23

Appendix 2 - Public hearings and witnesses ................................................... 27

Appendix 3 - Tabled documents, answers to questions on notice and additional information ...................................................................................... 29

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Recommendation

Recommendation 1

2.35 The committee recommends that the Senate pass the bill.

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Chapter 1 Introduction

Referral 1.1 The Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 (the bill) was introduced into the House of Representatives on 8 November 2016 by the Minister for Immigration and Border Protection, the Hon Peter Dutton MP.1 On 10 November 2016, the Senate referred the bill to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 22 November 2016.2

1.2 The Senate Selection of Bills Committee recommended that the bill be referred to examine the '[i]mpact on families and children [and] compliance with Australia's International Human Rights obligations'.3

Conduct of inquiry 1.3 In accordance with usual practice, the committee advertised the inquiry on its website and wrote to organisations inviting written submissions by 14 November 2016. The committee received 84 submissions, listed at Appendix 1. The committee held a public hearing in Melbourne on 15 November 2016. Details of the public hearing are provided at Appendix 2. Questions on notice and other material received by the committee are listed at Appendix 3. The committee thanks the Department of Immigration and Border Protection and the other organisations and individuals that assisted with the inquiry.

Overview of the bill 1.4 The bill, if passed, would amend the Migration Act 1958 (Migration Act) and the Migration Regulations 1994 (Migration Regulations) to indefinitely preclude 'unauthorised maritime arrivals' (UMAs) from making a valid application for any Australian visa. Item 1 of the bill inserts a proposed new definition in subsection 5(1) of the Migration Act. This classifies specific persons as part of a 'regional processing cohort'. This includes individuals who were at least 18 years old and are transferred to a regional processing country after 19 July 2013, including those who:

 are currently in a regional processing country;

 have left a regional processing country and are in another country;

 are in Australia awaiting transfer back to a regional processing country and who are taken to a regional processing country in the future;4 and,

1 The Hon Peter Dutton MP, Minister for Immigration and Border Protection, House of Representatives Hansard, 8 November 2016, p. 1.

2 Journals of the Senate, No. 15 2016, p. 448.

3 Senate Selection of Bills Committee, Report No. 8 of 2016, 10 November 2016, Appendix 6.

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 people temporarily transferred from regional processing countries to Australia

for medical treatment and those who have since settled in another country or returned home and applies to both temporary and permanent visas.5

1.5 The bill confers a power on the Minister to permit a member of the designated regional processing cohort, or a class of persons within the designated regional processing cohort, to make a valid application for a visa if the Minister considers it is in the public interest to do so.

1.6 The bill also includes measures to prevent a member of the designated regional processing cohort from being deemed to have been granted a special purpose visa under section 33 of the Migration Act, or being deemed to have applied for particular visas under the Migration Regulations.

1.7 The Explanatory Memorandum describes the bill as introducing a 'statutory bar' preventing certain non-citizens who were taken to a regional processing country from making a valid application for a visa to come to or remain in Australia. The Minister's power to permit a member of a regional processing cohort to make a valid visa application where it is in the public interest is referred to as 'lifting the bar' in the Explanatory Memorandum.6

Purpose and background 1.8 The stated purpose of the bill is:

…to prevent unauthorised maritime arrivals (UMAs) who were at least 18 years of age and were taken to a regional processing country after 19 July 2013 from making a valid application for an Australian visa.7

1.9 The Minister for Immigration and Border Protection, the Hon Peter Dutton MP, described the policy background to the bill in the second reading speech:

The government's reform of our border protection policies has sent the message to people smugglers that they cannot offer a path to Australia. Life in Australia is not an illicit commodity to be sold to the desperate and vulnerable at a great profit.8

1.10 The Minister has stated that the purpose of the bill is to 'reinforce the government's longstanding policy that people who travel here illegally by boat will never be settled in this country'.9

4 Migration Legislation Amendment (Regional Processing Cohort) Bill 2016, Explanatory Memorandum (EM), p. 2.

5 EM, p. 2.

6 EM, Attachment A, p. 23.

7 EM, p. 2.

8 The Hon Peter Dutton MP, Minister for Immigration and Border Protection, House of Representatives Hansard, 8 November 2016, p. 1.

9 The Hon Peter Dutton MP, Minister for Immigration and Border Protection, House of Representatives Hansard, 8 November 2016, p. 1.

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1.11 The measures in the bill were first announced on 19 July 2013. The

Department of Immigration and Border Protection confirmed in evidence to the committee that

Mr Rudd said, that after that date, 19 July 2013—it being significant insofar as it was the date that he and Mr O'Neill, the Prime Minister of Papua New Guinea, signed an agreement pertaining to Manus—persons who were transferred to Manus or Nauru would 'never settle' in Australia.10

Inquiry timeframe 1.12 The committee notes the short timeframe for reporting on the bill, and appreciates the assistance of submitters and witnesses who provided evidence and made themselves available at the public hearing.

Structure of this report 1.13 There are two chapters in this report.

1.14 Chapter 1 outlines the context and background to the inquiry.

1.15 Chapter 2 discusses the key issues raised in submissions and at the public hearing, and provides the committee's recommendation.

10 Mr Michael Pezzullo, Secretary, DIBP, Committee Hansard, 15 November 2016, p. 30.

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Chapter 2 Key issues

2.1 A number of key issues were raised about the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 (the bill) during the inquiry. These ranged from the need to augment Australia's suite of border protection measures, concerns regarding the impact of the bill on people and families, and the interaction of the bill’s provisions with Australia’s human rights obligations. This chapter will outline issues raised by submitters and witnesses, and provide the committee's views on the bill.

2.2 During the committee's inquiry, the Government announced that agreement had been reached with the United States of America (United States) (in addition to earlier agreements with Papua New Guinea and Cambodia), for the resettlement of refugees currently in regional processing centres:

This further agreement is with the United States and it will not under any circumstances be available to any future illegal maritime arrivals (IMAs) to Australia. The priority under this arrangement will be for resettlement of those who are most vulnerable, namely women, children and families. US authorities will conduct their own assessment of refugees and decide which people are resettled in the US. Refugees will need to satisfy standard requirements for admission into the US, including passing health and security checks.1

2.3 The committee was advised that the bill is part of a comprehensive set of measures designed to form a 'strengthened protective shield' to deter unauthorised boat arrivals from coming to Australia.2 In addition to the resettlement agreement and the bill, other measures include:

 A surge in intelligence and disruption operations, including with international partners;

 The largest civil maritime operation in Australia's history; and

 The maintenance of ongoing and enduring regional processing on Nauru,

accompanied by a 20-year visa that the Government of Nauru has decided to implement.3

2.4 According to the Department of Immigration and Border Protection (the Department), 857 people in the proposed cohort have registered their interest in being

1 Hon Peter Dutton MP, Minister for Immigration and Border Protection (DIBP), Media Release, Refugee resettlement from Regional Process Centres', 13 November 2016, http://www.minister.border.gov.au/peterdutton/Pages/Refugee-esettlement-from-Regional- Process-Centres.aspx (accessed 18 November 2016).

2 Mr Michael Pezzullo, Secretary, Department of Immigration and Border Protection, Committee Hansard, 15 November 2016, p. 21.

3 Mr Pezzullo, DIBP, Committee Hansard, 15 November 2016, p. 21.

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settled in the United States.4 The committee notes that it does not consider that the passage of the bill is dependent on the resettlement deal proceeding.

Purpose of the bill 2.5 The committee heard evidence from several witnesses at their public hearing that the objective of the bill had not been sufficiently explained. Mr David Manne from Refugee Legal stated that currently:

There is no evidence that has been presented by the government, that this is necessary in order to deter people. In fact, we have been told for a long time that everything is under control, that the boats have been stopped and that the measures in place have deterred people. Putting aside the question of whether I agree with those laws and think they meet our obligations that is what we have been told. So the onus, I would submit, is on the government to demonstrate why all of a sudden, out of the blue, these laws were not presented some time ago if they are so necessary.5

2.6 A significant number of submissions made to the inquiry argued that the bill is unnecessary.6 The Refugee Council of Australia (RCA) noted that the Government’s main justification for the bill 'appears to be that these people might be able to enter Australia illegitimately, through (for example) faking marriages with Australians'.7 However, RCA explained that the Migration Act already contains extensive powers and safeguards to regulate these matters, and visas are refused or cancelled on a regular basis when evidence is available.8

2.7 Concerns were raised that the Explanatory Memorandum (EM) does not sufficiently explain the purpose of the bill, and that the bill 'prevents entry even if a person would otherwise meet all the criteria for a visa, simply because this person has been on Nauru or Manus Island'.9 Ms Fiona McLeod SC advised the committee that more detail of the Government's objectives in the EM 'would certainly be useful to lawyers scrutinising the bill'.10 The Department has, however, indicated that it believes the scope of the EM is sufficient.11

4 The Department of Immigration and Border Protection, answers to questions on notice, 15 November 2016 (received 17 November 2016).

5 Mr David Manne, Executive Director, Refugee Legal, Committee Hansard, 15 November 2016, p. 16.

6 See e.g. Australian Lawyers Alliance, Submission 18; Civil Liberties Australia, Submission 6; Fr Frank Brennan, Submission 31; Dr Anne Junor, Submission 33; Dr Helen Johnson, Submission 43.

7 Refugee Council of Australia (RCA), Submission 26, p. 2.

8 RCA, Submission 26, p. 2. 9 Law Council of Australia (LCA), Submission 8, p. 11. 10 Ms Fiona McLeod SC, President-elect, LCA, Committee Hansard, 15 November 2016, p. 20.

11 The Department of Immigration and Border Protection, answers to questions on notice, 15 November 2016 (received 17 November 2016).

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2.8 The Immigration Advice and Rights Centre (IARC) argue that there is nothing in the bill or the EM to support a conclusion that the measures are 'necessary, reasonable or proportionate', concluding that 'the proposed changes are punitive'.12 Mr Julian Burnside QC stated that '[b]y our increasingly harsh policies, which are explicitly intended to deter boat people, we are contradicting the central purpose of the Refugees Convention'.13

2.9 The Department provided further information to the committee to explain why the bill was introduced:

It is a measure that the Australian government has independently determined to be in the national interest, insofar as the measure, should it be passed into law, will form a crucial and, indeed, imperative component of the suite of measures that will form a strengthened protective shield to deter potential illegal immigrants from coming by boat to Australia.14

2.10 Many submitters offered their view that the bill contravenes Australia's international human rights and other obligations, including the Refugee Convention and the Convention on the Rights of the Child.15

2.11 Potential human rights issues in the bill are addressed in Attachment A of the EM which describes how these issues are mitigated. Where a non-citizen has family members who have been granted a visa to enter or remain in Australia, and this results in separation, or the continued separation of a family unit, the EM explains that the bill:

…includes flexibility for the Minister for Immigration and Border Protection to ‘lift’ the bar where the Minister thinks it is in the public interest to do so. This consideration could occur in circumstances involving Australia’s human rights obligations towards families and children…16

2.12 A further potential human rights issue noted in the EM is the right to equal protection of the law without discrimination.17 Attachment A of the EM explains that any differential treatment proposed by the bill is for a 'legitimate purpose and based on relevant objective criteria and that is reasonable and proportionate in the

12 Immigration Advice and Rights Centre (IARC), Submission 22, p. 1. 13 Mr Julian Burnside AO QC, Submission 30, p. 6.

14 Mr Pezzullo, DIBP, Committee Hansard, 15 November 2016, p. 21.

15 See e.g., Ms Elaine Pearson, Human Rights Watch, Committee Hansard, 15 November 2016, p. 1; Mr Daniel Webb, Human Rights Law Centre, Committee Hansard, 15 November 2016, p. 1.

16 Explanatory Memorandum (EM), Attachment A, p. 23.

17 Article 26 of the International Covenant on Civil and Political Rights (ICCPR) states: All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

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circumstances'.18 These circumstances include that it is a proportionate response to prevent a 'cohort of non-citizens who have previously sought to circumvent Australia’s managed migration program by entering or attempting to enter Australia…from applying for a visa…' and that the bill seeks to discourage people

from attempting hazardous boat journeys with the assistance of people smugglers, instead encouraging them to pursue regular migration pathways.19

2.13 As discussed in Chapter 1, the Government has stated that a key objective of the bill is to discourage refugees from attempting to reach Australia by boat and discourage the people smugglers who have facilitated Illegal Maritime Arrivals. In response to this, witnesses argued that Australia already has a robust visa application process:

…the Australian migration system has very robust processes for determining whether or not someone is granted, for example, a partner visa or for that matter any other kind of visa. There are already robust processes to determine whether people can get a visa to enter Australia. I should note that even if you are granted a visitor visa, for example, to come to Australia it is not the case then that you can just stay in Australia forever. These people are then expected to leave after the duration of their visas. People are subjected to quite rigorous character assessments for visas as well. In that sense, we think those kinds of arguments about sham marriages do not really stack up when you look at the current migration system and how it operates.20

2.14 The Secretary of the Department confirmed for the committee that the proposed measures in the bill, if passed, would discourage refugees from attempting to reach Australia illegally by boat and discourage the people smugglers who have facilitated Illegal Maritime Arrivals:

Yes, indeed. Anything that we do that has the effect of ratcheting up the difficulties involved in getting to Australia, or ever getting to Australia if they get to regional processing, always have a dampening effect on the interest in travelling to Australia—always.21

2.15 The Secretary of the Department also confirmed for the committee that the proposed measures in the bill, if passed, would provide a further deterrent to persons seeking to illegally enter, or illegally facilitate entry into, the Australian migration zone.22 Finally, the Secretary explained:

It goes fundamentally to the point I made in my opening statement; that is, that this is part of a suite of further strengthening our 'shield', as I described

18 EM, Attachment A, p. 24.

19 EM, Attachment A, p. 24.

20 Mr Khanh Hoang, Co-Chair, Refugee Rights Sub-committee, Australian Lawyers for Human Rights (ALHR), Committee Hansard, 15 November 2016, p. 2.

21 Mr Pezzullo, DIBP, Committee Hansard, 15 November 2016, p. 18.

22 Mr Pezzullo, DIBP, Committee Hansard, 15 November 2016, p. 23.

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it. The Prime Minister did not mince his words on the weekend and nor will I. Whatever resettlement arrangement you come to, if it is sufficiently conducive with carrots in it to get people to take up the option—because there is only consensual resettlement to deal with this diabolically difficult problem that has been inherited by every official at this table, I can assure you—you need sticks, and this is a stick.23

Interpretation of the lifetime ban 2.16 The LCA considered that the bill’s proposed lifetime ban is inconsistent with international human rights obligations because it discriminates on the basis of arrival method. That is, the ban only applies to boat arrivals that have been taken to a regional processing country (Nauru and Papua New Guinea), and that this constitutes a penalty.24 Further, the Castan Centre for Human Rights Law (Castan Centre) states that:

Banning refugees from coming to Australia would comprise an unlawful penalty which places Australia in breach of Article 31. It is widely accepted that the term ‘penalty’ does not need to be a criminal punishment. Therefore administrative sanctions and a restriction on freedom of movement would constitute a penalty for the purpose of Article 31.25 26

2.17 The RCA submitted that the bill 'targets the very people that Australia has already punished the most…who have been languishing in Nauru or Manus Island for over three years in indefinite detention in awful conditions'.27

2.18 Save the Children is critical of a lack of detail concerning how the Government intends to implement the ban, and considers that insufficient evidence has been provided to support the claim that the bill will deter potential unauthorised maritime arrivals in the future. They emphasise that:

The decisions made by refugees about the direction in which they flee persecution involve a complex array of issues and may be influenced by a variety of push-factors as well as pull factors and individual circumstances. In our experience, most refugees who have sought to come to Australia by boat in recent years have done so with a view to simply finding a safe place to rebuild their lives.28

23 Mr Pezzullo, DIBP, Committee Hansard, 15 November 2016, p. 24.

24 LCA, Submission 8, p. 14. 25 Castan Centre, Submission 20, p. 5. 26 Article 31(1) of the Refugee Convention states: The Contracting States shall not impose penalties, on account of their illegal entry or presence,

on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence.

27 RCA, Submission 26, p. 2. 28 Save the Children, Submission 21, p. 3.

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2.19 However, the Department clearly stated in evidence to the committee that the measures in the bill are likely to have an important deterrent effect on the people smuggling trade:

The deterrent effect of this legislation has to play out in the future, but our assessment based on hard experience, based on toughening up or ratcheting up certain measures, is that, whenever you announce a measure of this character—either regional processing in Manus or Nauru; changes to visa conditions; the introduction of temporary visas; the introduction of more stringent checking; the escalation of maritime security patrols—we know that, literally sometimes within minutes, if not hours or days—and that has certainly happened since Sunday—there is a dampening effect in terms of the interest, particularly for people who are currently poised in Indonesia.29

Potential impact on families 2.20 The Castan Centre claimed that the bill may cause children residing in Australia to be separated from their parents, and further claimed that the 'ministerial power to lift the bar in order to facilitate family reunification is not expeditious and lacks transparency and certainty'.30

2.21 A number of submissions, including those received from Save the Children, the LCA, Amnesty International, and UNICEF raised concerns regarding whether Ministerial discretion could satisfy Australia’s human rights obligations.31 For example, the LCA stated:

…if the intention is that the public interest test would provide the capacity to interpret matters on a case by case basis with reference to Australia’s international human rights obligations with respect to the rights of families and children, it should be explicitly stated.32

2.22 UNICEF Australia argue that exclusions for some individuals should be incorporated into the bill, such as whether:

…the individual concerned has family members in Australia (particularly children) and/or it is otherwise in the best interests of a child (wherever residing) for a person to be granted an Australian visa.33

2.23 The Department advised that situations such as this can be avoided by offering people the opportunity to express an interest in going to a specific third country, and working with them and the other government to find a suitable approach on an individual basis:

The bottom line is that those transitory people—parents with children in Australia—can now express an interest in going to the United States from

29 Mr Pezzullo, DIBP, Committee Hansard, 15 November 2016, p. 30.

30 Castan Centre, Submission 20, p. 4. 31 LCA, Submission 8, p. 16; Save the Children, Submission 21, p. 5; Amnesty International, Submission 17, p. 2; UNICEF Australia, Submission 5, p. 2. 32 LCA, Submission 8, p. 16.

33 UNICEF Australia, Submission 5, p. 2.

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Australia, and then once we understand whether they are interested, we can work through the logistics of that on a case-by-case basis from a compassionate perspective with those other governments that I mentioned.34

Ministerial discretion 2.24 The bill confers a power on the Minister to permit a member of the designated regional processing cohort, or a class of persons within the designated regional processing cohort, to make a valid application for a visa if the Minister considers that it is in the public interest to do so.

2.25 The Department advised the committee that Ministerial decisions on whether to lift the bar would be subject to review, stating that '[t]he personal, non-compellable power of the minister to lift the bar…once engaged, is the subject of judicial review'.35 However, they also advised that the Minister cannot be compelled to exercise their power to consider a particular individual's visa. If the Minister does not exercise their authority to consider an application, it cannot be pursued further by an applicant, and 'there is no review of a decision not to make a decision'.36

Retrospectivity 2.26 Concerns were raised during the inquiry that the bill, if passed, contains measures that have retrospective application, as they would apply from 19 July 2013. There is an argument that this may be unfair because it imposes consequences on the basis of past conduct (coming to Australia by boat) when an individual affected could not have been aware of the bill. According to the LCA, this is discriminatory to those who arrived by boat and were taken to a regional processing country, as opposed to those who arrived via another form of transportation.37 The Castan Centre also argue that this approach is 'inconsistent with well-established common law principles and undermines the rule of law'.38 Ms Fiona McLeod SC explained that in her view, '…retrospective laws are bad in all circumstances. The primary reason for that is that we should be governed by laws that are known and knowable at all times'.39

2.27 The Department advised the committee that the bill relies on a statement made by the then Prime Minister on 19 July 2013, that no one coming to Australia by boat would be settled in Australia. This is included in the second reading speech by the Minister for Immigration and Border Protection when the bill was introduced in the House of Representatives:

34 Ms Rachel Noble, Deputy Secretary, Policy, DIBP, Committee Hansard, 15 November 2016, p. 20.

35 Ms Philippa de Veau, General Counsel, DIBP, Committee Hansard, 15 November 2016, p. 18.

36 Ms de Veau, DIBP, Committee Hansard, 15 November 2016, p. 22 .

37 LCA, Submission 8, p. 17.

38 Castan Centre, Submission 20, p. 2.

39 Ms McLeod SC, LCA, Committee Hansard, 15 November 2016, p. 18.

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This legislation importantly is consistent with the announcement by former Prime Minister Kevin Rudd who when announcing the signing of the Regional Resettlement Arrangement with Papua New Guinea on 19 July 2013 declared and I quote: 'from now on any asylum seeker who arrives in Australia by boat will have no chance of being settled in Australia as refugees.40

2.28 Some witnesses emphasised that this statement by the former Prime Minister has no legal effect and should not be used by the Government as a basis for claiming that the bill is not retrospective. Mr David Manne from Refugee Legal stated that '…warnings are not laws…were the warning to have been legislated before, this bill would not be before parliament'.41 However, the committee notes that similar procedures are often used where legislation follows an earlier announcement.

2.29 Although there is scope for the Minister to lift the bar on valid applications in the public interest, submitters expressed concern that wide discretion is granted to the Minister to vary, revoke or change any decision.42 Points that have been made include a lack of procedural fairness, no reasons being provided for an adverse decision, and the administrative burden of the Minister being involved in all visa decisions, potentially resulting in lengthy delays in processing.43 It was noted that while reference is made to human rights obligations, the EM does not outline the public interest grounds for the potential exercise of the Ministerial discretion to lift the bar.44

2.30 The Secretary of the Department explained at the hearing:

As to the reach back to 19 July 2013, as the minister made clear in his speech, as I think the EM makes abundantly clear and as the Prime Minister and others have stated, that is to capture, by definition, the 'group' that falls within the ambit of this legislation. That is the date which the then Labor government agreed with a change or tightening of its policy about regional processing. Mr Rudd said, that after that date, 19 July 2013—it being significant insofar as it was the date that he and Mr O'Neill, the Prime Minister of Papua New Guinea, signed an agreement pertaining to Manus— persons who were transferred to Manus or Nauru would 'never settle' in Australia. So it has become the policy position that was carried forward by Mr Abbott and then Mr Turnbull. What this legislation seeks to do is to say that…class of people who are defined by that date fall within the ambit of the legislation. So it is retrospective in that sense. It codifies in statute what has been our policy position for 3½ years.45

40 Mr Pezzullo, DIBP, Committee Hansard, 15 November 2016, p. 31.

41 Mr Manne, Refugee Legal, Committee Hansard, 15 November 2016, p. 14.

42 LCA, Submission 8, p. 17. 43 LCA, Submission 8, p. 18. 44 LCA, Submission 8, p. 18. 45 Mr Pezzullo, DIBP, Committee Hansard, 15 November 2016, p. 30.

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Committee view 2.31 The committee notes the concerns that have been expressed about aspects of this bill by submitters and witnesses in the course of the inquiry. However, it has formed the view that the bill is part of a comprehensive suite of related measures that together act as a deterrent to people risking their lives by illegally coming to Australia by boat, and to those who would ply the illegal people smuggling trade into Australia.

2.32 The committee notes the concerns expressed by some witnesses and agrees that it would be beneficial if the explanatory memorandum clarified in more detail why further measures are necessary beyond those that are already in place to deter unauthorised maritime arrivals; as well as the factors that the Minister should consider in determining whether it is in the public interest to 'lift the bar' on a case-by-case basis.

2.33 The committee is satisfied that the proposed measures are necessary and that there are sufficient safeguards incorporated within the bill to deal with the issues that have been raised.

2.34 The committee notes that, per capita, Australia has one of the most generous refugee resettlement programs in the world. This program provides resettlement services and support for those persons already identified as refugees who are resident in camps around the world.

Recommendation 1

2.35 The committee recommends that the Senate pass the bill.

Senator the Hon Ian Macdonald Chair

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Dissenting Report by the Labor Senators

1.1 The Senate should reject this bill.

1.2 Labor Senators believe that the bill should be rejected because:

(a) The bill would not achieve its stated aims or the Government's stated policy intent;

(b) the effects of the bill would be broad-reaching, and extend well beyond the Government's stated policy objective;

(c) the Minister for Immigration and Border Protection's discretion is non-compellable and the public interest is undefined, meaning the Minister has no obligation to consider applications for a visa from this cohort;

(d) the bill would contravene international legal instruments, notably article 31 of the Refugee Convention; and

(e) the bill would have retrospective applicatio

n.

The bill would not achieve its stated aims or the Government's stated policy intent 1.3 The Explanatory Memorandum (EM) states that the purpose of this bill is to:

Prevent unauthorised maritime arrivals (UMAs) who were at least 18 years of age and were taken to a regional processing centre after 19 July 2013 from making a valid application for an Australia visa.1

1.4 As the Minister for Immigration and Border Protection, the Hon Peter Dutton MP, explained, the bill would also be part of the government's broader aim of making it clear to people smugglers that they cannot promise a pathway to Australia.2

1.5 It is clear that the measures proposed in this bill would not help to achieve this aim.

1.6 It seems implausible that the threat of being denied a tourist visa twenty years into the future (for example) would have any impact on a vulnerable asylum seeker's decision to try and seek asylum in Australia by a people smuggler's boat. As Mr Daniel Webb of the Human Rights Law Centre stated, Australian law already requires that any such individual will be processed in an offshore detention centre and will have no right to apply for protection. The idea that such a measure would add to the deterrence policy is illogical.3 The added penalty of never being able to come to

1 Explanatory Memorandum (EM), p. 2.

2 The Hon Peter Dutton MP, Minister for Immigration and Border Protection, House of Representatives Hansard, 8 November 2016, p. 1.

3 Mr Daniel Webb, Director of Advocacy, Human Rights Law Centre (HRLC), Committee Hansard, Tuesday 15 November 2016, pp. 2-3.

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Australia in future, even as a tourist, student or business-person, would be, as Mr Webb stated, 'harm for harm's sake'.4

The effects of the bill 1.7 This bill is designed to permanently exclude any person who travelled to Australia by means other than the normal channels for immigration, and by boat, from ever entering Australia. This would include individuals travelling to visit family, for tourism, and for business or study.

1.8 Despite claims to the contrary, there is no credible evidence to suggest that the bill is required to secure durable third country resettlement options for the regional processing cohort.

1.9 Labor senators agree with the Law Council of Australia (LCA) President-elect Ms Fiona McLeod SC, who stated that the bill is neither necessary nor proportionate to its intended objective.5 The effects of the bill would extend far beyond the stated aim of enacting into law the previous Labor government and current Coalition Government's policy that asylum seekers who arrive by boat will not be settled in Australia.

1.10 Labor Senators were particularly convinced by the comments of Mr David Manne, Executive Director of Refugee Legal, who questioned why this bill was being introduced when the government continually states that all boats have been stopped and our borders are under control.6 Mr Manne also provided the personal story of Australian orthopaedic surgeon, Associate Professor Munjed Al Muderis, who arrived in Australia as a refugee by boat. The committee was told that if this proposed legislation had been in force when Professor Al Muderis had arrived, he would not even be able to enter Australia to attend a professional conference:

[N]ot only would they be automatically barred from coming but having to seek to lift that ban could cause all sorts of embarrassment to that person and to our country. It would end up ultimately…having to go to the minister's desk with a submission asking: 'Can this world-leading surgeon come to Australia? Can you make an exception?' We do not know what the outcome would be.7

1.11 Other scenarios could include:

 politicians undertaking a political exchange;

 elite athletes hoping to compete in Australian sport events;

4 Mr Daniel Webb, Director of Advocacy, HRLC, Committee Hansard, Tuesday 15 November 2016, p. 3.

5 Ms Fiona McLeod SC, President-elect, Law Council of Australia (LCA), Committee Hansard, Tuesday 15 November 2016, p. 10.

6 Mr David Manne, Executive Director, Refugee Legal, Committee Hansard, Tuesday 15 November 2016, p. 10.

7 Mr David Manne, Executive Director, Refugee Legal, Committee Hansard, Tuesday 15 November 2016, p. 16.

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 adverse impacts to any future Australian Olympic bids, noting that there is

now a recognised Refugee Olympic Team;

 former refugees who are now citizens of another country visiting family members in Australia;

 tourist visits by former refugees who are now citizens of another country; and

 business owners or employees visiting in Australia to discuss the expansion of

companies and businesses into the Australia market.

1.12 Witnesses also raised the example of someone needing to rush to Australia for a family funeral, or to visit a sick relative.8 In such scenarios having to apply to the Minister for an exception to the blanket rule that they would be barred from applying for any visa could be very problematic. Secretary Michael Pezzullo stated that in such scenarios the applicants could seek to have their matter dealt with urgently, and that 'a future minister would attend to that as expeditiously as was necessary'.9 Labor senators are not assured that the Minister would always have the capacity to attend to urgent applicants in the timeframe required by the applicant, nor do Labor senators believe that placing such an administrative burden on the shoulders of the applicant would be appropriate.

1.13 Mr Manne also noted that people who would be banned from entering Australia under this bill would have to declare this when trying to enter unrelated countries, and that this would affect them for the rest of their lives:

There is the possibility that, when seeking to arrive in other countries, this cohort will be required to tick the box that says, 'Yes, I've been deported or banned from entering another country.' It will not be a historical incident; it will be an ongoing incident that will stay with them for the rest of their lives. They will continue to have to declare that, whether it happened two weeks ago or 20 years ago. That might affect their ability to travel around the globe, and that is not something that is really being addressed in terms of the implementation of this.10

1.14 These measures would also negatively impact Australia's relationship with New Zealand as measures imposed by the bill could prevent former refugees who are granted New Zealand citizenship from entering Australia. Currently, citizens of New Zealand who travel to Australia for work, study or to visit, are issued with a special category 444 temporary visa. It would be unreasonable for former members of the regional processing cohort who may in future receive New Zealand citizenship to not be able to take advantage of this arrangement. New Zealand Prime Minister John Key has been reported as ruling out an arrangement which would create 'different classes

8 See Ms Fiona McLeod SC, President-elect, LCA, Committee Hansard, Tuesday 15 November 2016, p. 16.

9 Mr Michael Pezzullo, Secretary, Department of Immigration and Border Protection (DIBP), Committee Hansard, Tuesday 15 November 2016, p. 27.

10 Mr David Manne, Executive Director, Refugee Legal, Committee Hansard, Tuesday 15 November 2016, p. 17.

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of New Zealand citizens' and has stated that New Zealand would not enter into a resettlement arrangement with Australia on those conditions.11

International legal instruments 1.15 As many witnesses highlighted, this bill would be inconsistent with a number of international legal instruments. In particular, the bill would be in breach of article 31 of the Refugee Convention,12 the Convention on the Rights of the Child,13 the International Covenant on Economic Social and Cultural Rights, and the International Covenant on Civil and Political Rights.14 The Regional Representative of the United Nations High Commissioner for Refugees, Mr Thomas Albrecht, has also raised concerns about the proposed ban breaching international law,15 as has Mr Ben Saul, Challis Chair of International Law at the University of Sydney.16

Ministerial discretion 1.16 The Minister for Immigration and Border Protection's discretion is non-compellable and the public interest is undefined, meaning that the Minister has no obligation to consider applications for a visa from this cohort. The bill would give the Minister the personal power to decline to make a decision about an application to allow a person otherwise ineligible for a visa to be allowed to apply, or to make the decision to decline or allow such an application. As the bill states, the Minister could permit a member of the 'regional processing cohort' to make a valid visa application if the Minister considers it to be in the public interest to do so, however 'public interest' remains undefined. The effect of this would be to shift exclusive control over access to Australia by former asylum seekers to the Minister.

1.17 Labor senators agree with Mr Khanh Hoang of Australian Laws for Human Rights (ALHR) and Ms Fiona McLeod SC, that this ministerial discretion is far too

11 Sky News, NZ says Australia won't accept refugee deal, http://www.skynews.com.au/news/top- stories/2016/10/31/nz-says-australia-won-t-accept-refugee-deal.html (accessed 21 November 2016).

12 See Ms Elaine Pearson, Australia Director, Human Rights Watch (HRW), Committee Hansard, Tuesday 15 November 2016, p. 1.

13 Ms Elaine Pearson, Australia Director, HRW, Committee Hansard, Tuesday 15 November 2016, p. 1; Ms Rebecca Dowd, Co-Chair, Refugee Rights Sub-Committee, Australian Lawyers for Human Rights (ALHR), Committee Hansard, Tuesday 15 November 2016, p. 10; Ms Fiona McLeod SC, President-elect, LCA, Committee Hansard, Tuesday 15 November 2016, p. 14.

14 Ms Fiona McLeod SC, President-elect, LCA, Committee Hansard, Tuesday 15 November 2016, p. 14.

15 Sydney Morning Herald, Refugee visa ban a likely breach of UN convention, http://www.smh.com.au/federal-politics/political-news/refugee-visa-ban-a-likely-breach-of- refugee-convention-20161104-gsic81.html (accessed 21 November 2016).

16 Radio National, Proposed ban on refugees arriving by boat in breach of Australia's international obligations: expert, http://www.abc.net.au/radionational/programs/breakfast/ proposed-ban-on-refugees-arriving-by-boat-breach-of-obligations/7982624 (accessed 21 November 2016).

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broad,17 and the legislation fails to define 'public interest', meaning that the power is unclear. The reviewability of decisions made would be limited, and would necessarily require the applicant to bear the administrative (and quite possibly the financial) burden of making an application for review. Labor senators also note that a decision not to make a decision, is not a reviewable decision.

1.18 The establishment of a broad and vaguely defined ministerial discretion under legislation creates a risk of unfair and inconsistent decisions, and is not in keeping with the rule of law. The establishment of the ministerial discretion contemplated by this bill would be highly inappropriate.

Retrospectivity 1.19 Were this bill to pass into law, individuals who had sought asylum in Australia since 19 July 2013 could be subject to its operation, despite the law not having been introduced or contemplated until November 2016. Such retrospective application in this context would be inappropriate. Labor senators agree with Ms McLeod SC who stated that, 'we should be governed by laws that are known and knowable at all times'.18

Concluding remarks 1.20 Labor senators support the government's goal of retaining control over Australia's borders, and working to ensure that people smugglers are not allowed back in business.

1.21 This does not, however, mean that Labor supports measures which are punitive for the sake of being punitive or extend beyond the policy position that people who come to Australia by a people smuggling boat will never settle in Australia. Furthermore, any amendments must be subject to rigorous scrutiny as to their compliance with international legal instruments, and must be found to be consistent with those instruments. This bill does not satisfy these requirements.

1.22 The Australian government has a robust visa compliance program in place to prevent, catch and remove people who overstay their visa. There has been no suggestion that this program is not equipped to manage future risks associated with issuing short-term visas to members of the regional processing cohort.

1.23 Lastly, Labor senators note that this legislation is required by third countries to secure durable third country resettlement options.

17 Mr Khanh Hoang, Co-Chair, Refugee Rights Sub-Committee, Australian Lawyers for Human Rights (ALHR), Committee Hansard, Tuesday 15 November 2016, p. 2; Ms Fiona McLeod SC, President-elect, LCA, Committee Hansard, Tuesday 15 November 2016, p. 10.

18 Ms Fiona McLeod SC, President-elect, LCA, Committee Hansard, Tuesday 15 November 2016, p. 18.

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Recommendation 1

1.24 Labor senators recommend that the Senate reject the bill.

Senator Louise Pratt Senator Murray Watt

Deputy Chair Australian Labor Party

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Dissenting Report by the Australian Greens

1.1 The committee's inquiry into the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 (the bill) received 84 submissions from legal and immigration experts. All of these submissions raised serious concerns regarding this bill. All witnesses at the public hearing also criticised the bill, with the exception of those representing the Department of Immigration and Border Protection.

1.2 Despite the evidence provided and concerns raised by submissions and witnesses, the report recommends that this bill be passed. However, the Australian Greens believe that the recommendation does not sufficiently address the serious problems identified with this bill.

1.3 The Australian Greens are concerned that the bill is punitive, will impact negatively on fa milies, and that the Government has not demonstrated the bill is

necessary to deter asylum seekers. There is no evidence that this bill will actually achieve its stated objective.

1.4 The bill arbitrarily discriminates against the cohort on the basis of their mode of arrival, which they may have had little choice over. The bill contravenes numerous human rights and international obligations to which Australia is a signatory.

1.5 The Australian Greens note the issues raised by witnesses about the public interest test and capacity of the Minister to 'lift the bar' in individual cases. We do not believe that this is sufficient to satisfy Australia's international human rights obligations. The public interest is not defined in the bill, and there is no duty on the minister to exercise this power. The bill provides yet another non-compellable and therefore non-reviewable discretionary power to the Minister.

1.6 The Australian Greens reject the view of the Government that a statement by the then Prime Minister on 19 July 2013 can be used as a basis for claiming that the bill is not retrospective. This is an arrogant and disrespectful claim to make in proposing a bill that will have significant repercussions for this cohort of individuals.

1.7 The bill has the potential to further separate families and sever support networks of people who have already been significantly damaged, both mentally and physically, by Australia’s policy of indefinite offshore detention.

Conclusion

1.8 The Australian Greens find that the report has not adequately responded to or addressed the concerns raised in all 84 submissions received on this bill.

1.9 The Australian Greens find that the bill contravenes numerous international rights including the rights to non-discrimination and equality, and the rights of the child and protection of the family.

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Recommendation 1

1.10 The Australian Greens recommend that the bill be rejected by the Senate.

Senator Nick McKim Senator for Tasmania

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Appendix 1

Public submissions 1 Andrew & Renata Kaldor Centre for International Refugee Law, UNSW; the Institute of International Law and Humanities, Melbourne Law School; and Professor Ben Saul, Challis Chair of International Law, Sydney Law School

2 Australian Lawyers for Human Rights

3 UnitingJustice Australia

4 NSW Council for Civil Liberties

5 UNICEF Australia

6 Civil Liberties Australia

7 Australian Association of Social Workers

8 Law Council of Australia

9 Federation of Ethnic Communities' Councils of Australia (FECCA)

10 Muslim Legal Network (NSW)

11 Hunter Asylum Seeker Advocacy

12 Victorian Women Lawyers

13 Baptcare

14 University of Adelaide

15 Welcome to Australia

16 Settlement Council of Australia

17 Amnesty International

18 Australian Lawyers Alliance

19 ANU College of Law

20 Castan Centre for Human Rights Law

21 Save the Children

22 Immigration Advice and Rights Centre (IARC)

23 Doctors for Refugees

24 Australian Churches Refugee Taskforce

25 Human Rights Law Centre

26 Refugee Council of Australia

27 United Nations High Commissioner for Refugees

28 Australian Human Rights Commission

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29 Ms Margaret Sinclair

30 Mr Julian Burnside AO QC

31 Fr Frank Brennan

32 Mx Bridget Harilaou

33 Dr Anne Junor

34 Ms Betty McGeever

35 Name Withheld

36 Ms Virginia Overell

37 Name Withheld

38 Ms Morgan Hemsworth-Shead

39 Mr Ryan Edwards

40 Ms Sarah Gleeson

41 Name Withheld

42 Ms Suzon Fuks

43 Dr Helen Johnson

44 Name Withheld

45 Ms Rosie Isaac

46 Ms Eva Birch

47 Ms Andrea Hince

48 Mr Greg Reilly

49 Ms Kandy Henderson

50 Ms Julia Hall

51 Mr Rastko Antic

52 Ms Elka Sadler

53 Ms Frederika E. Steen AM

54 Mr Benjamin Dimas

55 Humanist Society of Victoria Inc

56 Ms Tracie Aylmer

57 Name Withheld

58 Name Withheld

59 Mr Joseph Ishow

60 Ms Jenny Barnes

61 Ms Zoe Hooligan

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62 Ms Saskia Doherty

63 Mr James Robinson

64 Human Rights Committee of the Victorian Bar

65 Mr Ben Hjorth

66 Ms Jennifer Coman

67 Mr Jeffrey Passlow

68 Ms Kate Matthews

69 Ms Briony Galligan

70 Ms Emma Hart

71 Name Withheld

72 Dr Emma Browne

73 Dr Sheknaz Graham

74 Ms Katrine Mcleod

75 Ms Fay Smith

76 Ms Sally Hunter

77 Name Withheld

78 Mrs Beverly Holmes-Brown

79 Ms Liz Thompson

80 Rural Australians for Refugees - Euroa

81 Ms Anthea Falkenberg

82 Name Withheld

83 Asylum Seeker Resource Centre

84 Confidential

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Appendix 2

Public hearings and witnesses

Tuesday 15 November 2016—Melbourne

BUTTON, Ms Lisa, Asylum Seeker and Refugee Policy and Advoca cy Adviser, Save the Children

CHIA, Dr Joyce, Senior Policy Officer, Refugee Council of Australia

de VEAU, Ms

Philippa, General Counsel, Department of Immigration and Border Protection

DOWD, Ms Rebecca, Co-Chair, Refugee Rights Sub-committee, Australian Lawyers for Human Rights

FREW, Ms Amy, Lawyer, Human Rights Law Centre

HANSFORD, Mr Hamish, Acting First Assistant Secretary, Immigration and Citizenship Policy Division, Department of Immigration and Border Protection

HOANG, Mr Khanh, Co-Chair, Refugee Rights Sub-committee, Australian Lawyers for Human Rights

MANNE, Mr David, Executive Director, Refugee Legal

McLEOD, Ms Fiona, SC, President-elect, Law Council of Australia

NOBLE, Ms Rachel, Deputy

Secretary, Policy, Department of Immigration and

Border Protection

PARMETER, Mr Nick, Director, Policy, Law Council of Australia

PEARSON, Ms Elaine, Australia Director, Human Rights Watch

PEZZULLO, Mr Michael, Secretary, Department of Immigration and Border Protection

TALBOT, Ms Anna, Legal and Policy Adviser, Australian Lawyers Alliance

TINKLER, Mr Mat, Director of Policy and Public Affairs, Save the Children

WEBB, Mr Daniel, Director of Advocacy, Human Rights Law Centre

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Appendix 3

Tabled documents, answers to questions on notice and additional information

Answers to questions on notice

1 Department of Immigration and Border Protection - answers to questions taken on notice at a public hearing on 15 November 2016 (received 17 November 2016)

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Senate Legal and Constitutional Affairs References Committee

Report into the Migration Legislation Amendment (Regional Processing Cohort) Bill 2016 [Provisions]

Corrigendum

In Dissenting Report by the Labor Senators

Paragraph 1.13

Replace 'Mr Manne' with 'Ms Lisa Button of Save the Children'.

Footnote 10 Replace 'Mr David Manne, Executive Director, Refugee Legal, Committee Hansard, Tuesday 15 November 2016, p. 17.' With 'Ms Lisa Button, Asylum Seeker and Refugee Policy and Advocacy Adviser, Save the Children, Committee Hansard, Tuesday 15 November 2016, p. 17.'

Senator the Hon Ian Macdonald Chair

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