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Thursday, 9 February 2017
Page: 487


Mr KEOGH (Burt) (11:16): I also rise to speak on the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016.

There comes a moment in the life of every minister when they have to consider what sort of minister they want to be and what sort of minister they want to be known for being. This legislation, in part, represents such a moment. There is actually only one part of this legislation that is problematic. The remainder—the 10-year Chinese visitor visas and the expansion of SmartGate—are all supported by Labor. The problem is with the revalidation provisions.

Almost as concerning as the provisions through this section has been the minister's approach to how he wishes—or, rather, how he does not wish—to deal with them. The minister is digging in over what is essentially just bad or sloppy drafting. The ability that these provisions provide to require revalidation of course is not in any way limited. It provides the capacity for a minister to provide a notice to a broad class of persons, limited only to a visa class which is prescribed in regulation—again, something that can be set by the minister. This provides the executive with a huge range of powers for a class of persons—not any one individual visa holder—upon any reasonable suspicion or basis.

Critical to all of this, of course, is that a regulation or a provision that will allow a revalidation to occur to a class of persons is for a prescribed class of visa. While those regulations that prescribe the class of visa may be disallowed, the notices themselves issued by the minister cannot be disallowed. This means that there is absolutely no legislative oversight for this delegated responsibility to the executive and to the minister.

Of course, we have raised this issue with the minister. We have said, 'There are minor changes we need here. We need to make sure that if you're going to have this power, that it is something the parliament has some oversight over.' These are simple changes to be made and they would in no way, if made, come as any detriment to the regime that the government is proposing in the concept of revalidation—which is a sensible idea for a visa that will exist for 10 years.

But instead of making these sensible changes, which will not restrict government's capacity to make sure it can revalidate visas, the government is being stubborn. The government is being particularly stubborn, because there are some significant problems here. The problems have been well set out by many people and organisations in their submissions to the Senate committee that considered this legislation—in particular, the Law Council of Australia.

What is interesting is that the committee acknowledged these concerns were raised in the submissions that were made to it. Fundamentally, we have a dragnet power over classes of people which could be applied based on nationality, based on the passport they hold, based on their place of birth or based on their religion, with no capacity for a disallowance by the parliament. The power is too broad, it is inappropriate and it fundamentally lacks any oversight by the legislature.

In addition, the constraining elements in the legislation, as drafted—the concept of the public interest and the concept of adverse information—are too broad, not defined and will virtually allow any action by the minister in respect of a visa that is being revalidated. Specifically, the Law Council of Australia noted:

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;

Bill grants a broad range of powers to the Minister, with limited or no explanation as to their intended purpose;

And they could apply much more broadly than the way in which they are described in the explanatory memorandum and how the government has said that it wishes to use them.

When we legislate in this place for the Commonwealth of Australia we cannot just take for granted what a government says is the limited purpose of how it wishes to use a broad power. The parliament must always consider how the breadth of power that it is providing to the executive may or can be used. It needs to have consideration of the full breadth of the power that it is providing to the executive—especially when it is providing that power in a completely unfettered way, which is what is being proposed here by the government. The Law Council goes on to say:

Bill provides capacity for the Executive to make legislative instruments that are not subject to disallowance by the Senate—

or the House—

potentially impacting upon all persons residing in Australia as temporary or permanent residents; …

if the minister so decided to apply these to those types of visas. The last point, that I think the Law Council makes well, is that there are already existing powers in the Migration Act that allow it to do many of the things that the government has stated the purpose of these provisions is for. As I said, Labor has said that it will be very happy to work with the government to find a way to ameliorate the larger issues that they have with this legislation, but they refuse to do that.

The question is: given these issues are easy to fix, why not fix them? This is a very important question, and the minister has to ask himself: how are provisions like this in keeping with Australian liberal democracy? Handing unfettered powers like this to the executive, to a minister, undermines the concept of the rule of law. It completely does away with the concept of why we have a parliament in the first place if we hand to a minister very broad powers that are in no way reviewable by the parliament itself.

Really, the question the minister has to ask himself is this: what sort of liberal party would do this? This is not even what real conservatives would do. This really does look more authoritarian than anything else. We have gone through centuries in the establishment and the working out of the concepts of parliamentary democracy and the rule of law, and one of the key aspects of that has always been the separation of the power of those who create the laws and those who put the laws in place.

Understandably, we delegate many capacities to legislate through legislative instruments to executives on a regular basis in a limited and constrained way. But this is not that. This is handing an unfettered power that will not even be subject to disallowance by the parliament to a minister, to do something to a broad class of persons that is ill-defined—and is not only ill-defined but would in fact be, in most respects, almost completely unlimited, other than the requirement that it be limited to a class of visas to which this power applies. But then we find that the class of visas to which this applies is something that is set by the minister in delegated legislation.

This is not about the proper administration of our borders. This is not about national security. All of those issues can be fixed, and Labor is happy to work with the government to make sure that this legislation can work properly.

So, Minister Dutton, the question for you is: what sort of minister do you want to be known as? Labor always supports good legislation. Ten-year visas? That is agreed. SmartGates? That is agreed. Unfettered class revalidation? No deal. Fix the bill.