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Wednesday, 3 September 2014
Page: 6325


Senator CASH (Western AustraliaAssistant Minister for Immigration and Border Protection and Minister Assisting the Prime Minister for Women) (12:31): I thank senators for their contributions to this important debate. As has been stated, the Migration Legislation Amendment Bill (No. 1) 2014 amends the Migration Act and the Australian Citizenship Act to clarify various provisions in those acts resulting from recent court and tribunal decisions that significantly affect the operations of the Department of Immigration and Border Protection. The bill also makes a number of technical amendments. In relation to the first schedule of the bill it will put beyond doubt the department's longstanding position which has been in place since 1994 that a person who has been refused or held a visa that was cancelled since last entering Australia will be prohibited from making a further valid visa application whilst they remain in Australia. This is irrespective of whether the person knew about or understood the nature of the application.

To address Senator Ian Macdonald's comments, I do note the recommendation of the report of the Legal and Constitutional Affairs Legislation Committee into this bill that:

…the … government consider whether additional safeguards are necessary to ensure that children and people with a mental impairment are not unfairly prevented from making a subsequent visa application in circumstances where they are unaware of a previous application having been made on their behalf.

In response, these amendments do not deny children and people with a mental impairment the right to be heard in a judicial or administrative proceeding. Where valid protection claims are raised by a child or a mentally impaired person following a visa refusal, Minister Morrison or I can intervene under section 48B of the act to enable a further protection visa application to be made so that any personal protection claims which were not properly or fully articulated on their behalf in the previous application may be assessed.

Seeking judicial review is another option for a child or mentally impaired person who believes that the decision to refuse was incorrectly made because their claims were not properly considered by the decision maker. This provides a robust safeguard against the concerns raised regarding the perceived inadequacies of ministerial intervention powers under section 48B. In addition, before a person is made available for removal, a rigorous preremoval assessment process is undertaken in relation to the person to ensure that the person is not returned if there is a risk of serious harm occurring. This provides an opportunity for people to raise those issues with the department before any removal takes place.

To reiterate, the government's position is that additional safeguards are unnecessary because the availability of ministerial intervention powers under section 48B—the right to seek judicial review, the right to be heard in a judicial proceeding, and preremoval clearance—cumulatively provide appropriate and adequate safeguards for children and mentally impaired people who may be unaware of the previous protection application. By restoring the intended operation of the statutory bar, the amendments will preserve the integrity of Australia's visa program and avoid its abuse by preventing noncitizens from repeatedly making, or having made, on their behalf unmeritorious visa applications in order to prolong their stay in Australia.

The second schedule to the bill clarifies that a bridging visa application is not an impediment to the removal of a person. The amendments also make clear that a person cannot be removed if they have applied for a protection visa and the visa has not been refused or the application has not been finally determined. The third schedule to the bill ensures that the debt liability provisions of the Migration Act apply to all convicted people smugglers and illegal foreign fishers. The fourth schedule to the bill clarifies the obligation of the Migration Review Tribunal and Refugee Review Tribunal to give documents to an authorised recipient where one has been appointed. The amendments also clarify the role of the authorised recipient and the extent of the obligation to notify an authorised recipient of direct communications made with the person who appointed them. In relation to the fifth schedule to the bill, this will allow for material obtained by way of a search warrant issued under the Crimes Act to be used for the purpose of making certain administrative decisions either under the Migration Act or the Australian Citizenship Act.

As Senator Carr stated—and I thank the Labor Party for their support of the bill—the bill actually makes a number of technical amendments. However, I do want to make a number of comments in relation to the issues that have been raised by Senator Hanson-Young. In relation to the interjections that Senator Hanson-Young was making while Senator Macdonald was speaking, I believe it is appropriate to say that on 8 September 2013 Senator Hanson-Young clearly found her conscience. She clearly found her moral compass because she had clearly lost it in relation to the Labor Party and the Greens unholy alliance over the last six years. Senator Hanson-Young referred to refugees currently in Iraq and Syria and asked what this government was doing. Well let me tell you that it is because this government has restored integrity to our borders that we have been able to announce that we will be quarantining 4,400 places specifically for those people displaced in the Iraq and Syria conflicts. This is something that Senator Hanson-Young was unable to do as part of the previous government because the policies that she supported ensured that in excess of 14,500 people, who have been waiting in camps for five, 10, 15 or 20 years, were denied places in our refugee resettlement program because of Senator Hanson-Young's policies. She also forgets the 1200 people who died at sea as a direct result of the policies that she supported. So, Senator Hanson-Young, when you come into this place and you start to criticise the government's policies, can you at least put a caveat on your comments? Put your hand up and say: 'I found my moral compass; I found my conscience the day after we lost office, because I lost it whilst we were in government and there were disastrous results to our border protection policies. Because I am such a hypocrite, the day that the Abbott government was elected, I suddenly found my voice in relation to those who had died and those who had been displaced.'

I will deal with Senator Hanson-Young's concerns with the bill. Senator Hanson-Young has expressed concern that amendments in schedule 1 to the bill will place vulnerable people in grave danger of being returned to persecution. That is completely unfounded. It should be noted that a person whose protection visa application is refused, because they are found not to engage Australia's protection obligations, cannot by definition be in danger of being returned to persecution. Secondly, the objective of the amendments is merely to restore the long-standing operations of sections 48, 48A and 501E to the interpretation that they have had since 1994. Australia remains committed to adhering to our protection obligations under the refugee convention and any other international human rights instruments. Anyone who is found to engage Australia's protection obligations will not be removed from Australia in breach of these obligations.

In relation to schedule 2, Senator Hanson-Young has expressed concerns that the amendments could potentially lead to Australia breaching its non-refoulement obligations. The amendments specifically provide that a non-citizen cannot be removed where they have made a valid application for a protection visa and the visa has not been refused or the application has not been finally determined. I also clarified earlier that people are not removed if there is a likelihood of serious harm arising from their removal. In relation to the fourth schedule, Senator Hanson-Young raised concerns that the amendments will limit an agent's ability to act on behalf of their client. To clarify: the amendments in no way an agent's ability to act on behalf of their client. This is because the role of an authorised recipient is separate to, and distinct from, the role of a solicitor or a migration agent.

In relation to the fifth schedule, Senator Hanson-Young expressed concerns that the amendment would result in information being used for the purposes that extend well beyond preventing, investigating or prosecuting a criminal offence as intended under the crimes Act. She also expressed concern over whether the amendments would put asylum seekers and refugees at risk, given the confidential nature of a person's case where they are fleeing persecution. To re-iterate the explanatory memorandum:

The amendments would not further extend coercive powers or administrative responsibilities, [they would] simply to provide further information to administrative officers for more effective decision making. This will enhance decision-making and as a result, will enhance the integrity of the migration and citizenship programmes. This enhancement will be particularly prevalent where persons have provided false, misleading or fraudulent information to the Department and have acquired, or will acquire, a visa or citizenship as a result.

An individual's right to privacy in Australia is governed by the Privacy Act. The amendments seek only to use legitimately-obtained information for legitimate policy objectives—namely, the making of certain decisions under the Migration Act and the Citizenship Act. So, once again, Senator Hanson-Young clearly has not read the bill and does not understand the amendments or has come in here once again claiming to have found a moral conscience, which she clearly forgot during the time they were in government. With those comments, I commend the bill to the chamber.

The ACTING DEPUTY PRESIDENT ( Senator Lines ): The question is that the bill be read a second time.

Bill read a second time.