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Wednesday, 16 September 2015
Page: 10343


Mr DUTTON (DicksonMinister for Immigration and Border Protection) (10:15): I move:

That this bill be now read a second time.

The Migration and Maritime Powers Amendment Bill (No. 1) 2015 contains a number of amendments to the Migration Act and a separate amendment to the Maritime Powers Act. These amendments will strengthen and clarify the legal framework in those acts, ensuring that they will be interpreted consistently with original policy intention and operate effectively as intended.

Specifically, the bill will ensure that when an unlawful noncitizen is in the process of being removed to another country and before they enter the other country, the person is returned to Australia, then that person has a lawful basis to return to Australia without a visa; ensure that when such a person does return to Australia without a visa, the visa application bars in sections 48 and 48A of the Migration Act will continue to apply as if they never left Australia; make a technical amendment to ensure that the prohibition against the making of further protection visa applications in section 48A of the Migration Act operates as intended under policy; ensure that the Administrative Appeals Tribunal can review certain character or security based decisions to refuse to grant a protection visa to a fast-track applicant; ensure that the visa ceasing provisions in sections 82, 173 and 174 of the Migration Act operate as intended under policy and to make a number of amendments to give full effect to the substantive amendments made by the Migration Amendment (Character and General Visa Cancellation) Act 2014 to make a minor amendment to address an incorrect referencing area in section 38B of the Migration Act relating to maritime crew visas; and confirm that the powers in the Maritime Powers Act are able to be exercised in the course of passage through or above the waters of another country in a manner that is consistent with the 1982 United Nations Convention on the Law of the Sea.

The proposed amendments in schedule 1 ensure that, when an attempt is made to remove an unlawful noncitizen from our country, that noncitizen does not enter the destination country and is instead returned to Australia, the noncitizen can be returned to Australia without a visa. In addition, they will be treated as if they had never left Australia for the purposes of the visa application bars imposed by sections 48 and 48A of the Migration Act.

Currently the Migration Act allows an unlawful noncitizen who has been removed from Australia to return without a visa, if the unlawful noncitizen was refused entry into the destination country. It does not currently allow for the return without a visa of a noncitizen who we have attempted to remove from Australia in other circumstances where it may be necessary. For example, there is no facility to return a person to Australia without a visa, if a transit country refuses to allow the removed person to transit or if the United Nations Human Rights Committee makes an interim measures request that the removal not be completed. The amendments in schedule 1 will address this inconsistency.

Similarly, the current law provides that, when a noncitizen is returned to Australia without a visa because they were refused entry to the destination country, the bars on making further applications imposed by sections 48 and 48A of the Migration Act will continue to apply as if they had never left Australia. The amendments will ensure that the same rule applies to a noncitizen who is returned to Australia without a visa in any circumstance covered by these amendments.

The amendments in schedule 2 of this bill are required to give full effect to the substantive amendments made to the Migration Act last year by the Migration Amendment (Character and General Visa Cancellation) Act of 2014.

Dr Leigh: Mr Deputy Speaker Mitchell, I rise reluctantly on a point of order, but standing orders only permit a minister to move such legislation. I do want to clarify for the House, given recent reports, whether the member opposite is still a minister.

The DEPUTY SPEAKER ( Mr Mitchell ): You can respond to that if you want but otherwise continue.

Mr DUTTON: It was a juvenile interjection, and people would be laughing at this ridiculous interjection back in his electorate. On indulgence, because there clearly is no point of order, I think people can reflect on the juvenile interjections of this shadow minister who wants to be a minister in a government one day but who demonstrates no capacity to conduct himself in such a way—I will leave it at that.

The character and general visa cancellation act significantly strengthen the character and general visa cancellation provisions in the Migration Act to ensure that noncitizens who commit crimes in Australia, pose a risk to the Australian community or represent an integrity concern are appropriately considered for visa refusal or cancellation.

The character and general visa cancellation act also introduced mandatory cancellation of visas held by noncitizens in prison who do not pass certain limbs of the character test, a revocation power, specifically for mandatory cancellation decisions, and a new power for the minister to personally set aside in the national interest a decision made by his or her delegate or the AAT to revoke a mandatory visa cancellation decision.

The consequential amendments set out in schedule 2 of this bill will ensure that the mandatory cancellation related powers are reflected comprehensively throughout the Migration Act according to the original intent of the changes made last year. This will ensure that the government has the capability to proactively and robustly address character and integrity concerns.

In particular, schedule 2 of the bill will ensure criminal intelligence and related information, which is critical to the making of all character related decisions, can be protected from disclosure under section 503A of the Migration Act.

This bill will also give full effect to the policy of mandatory cancellation by putting beyond doubt that a noncitizen who is a subject of mandatory character cancellation decision is available for removal from Australia, if they do not seek revocation within the relevant time period or are unsuccessful in having their visa reinstated.

Further, schedule 2 of the bill seeks to strengthen my department's ability to identify noncitizens suspected of being of character concern by aligning the definition of character concern in the act with the strength and character test in section 501.

Consistent with the original intent of the character and cancellation act, this will facilitate the lawful disclosure of non-citizens' identifying information where a noncitizen is suspected of being of character concern. Part 1 of schedule 3 of the bill makes an amendment to subsection 48A(1)(c) of the Migration Act to clarify that a person who has previously been refused a protection visa application that was made on their behalf—for example, because they were a minor at the time—cannot make a further protection visa application irrespective of the ground on which the further protection visa application would be made or the criteria which the person would claim to satisfy and irrespective of the grounds on which the previous protection visa application was made. This amendment is a technical amendment to ensure that the bar on further protection visa application in 48A of the Migration Act operates as originally intended.

Part 2 of schedule 3 of the bill includes a number of separate amendments to the Migration Act. The first of these are amendments to give full effect to the amendments made to the Migration Act last year by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014—the legacy act—which introduced the fast-track process for certain protection visa applicants who were defined in the Migration Act as a fast-track applicant. The applicant cohort to which this process applies are unauthorised maritime arrivals in Australia who came on or after 13 August 2012 but before 1 January 2014 and any other person or class of persons specified by the minister as a fast-track applicant by legislative instrument.

This government's intention during the development of the legacy act was always that a fast-track applicant whose protection visa application is refused on certain character or security grounds should be able to make an application for review of that decision of the Administrative Appeals Tribunal under the existing provisions in the Migration Act. These amendments implement the intention and clarify the types of fast-track decisions that can be reviewed by the Immigration Assessment Authority, which is established within the Migration and Refugee Division of the AAT. Certain character or security decisions relating to protection visa applications and often evidentially and legally complex, the government is providing a consistent and rigorous but fair and expert process by ensuring that the AAT's current jurisdiction to review these types of character or security based decisions will also apply where the applicant is a fast-track applicant. Consistent with the rest of this bill, these items demonstrate the government's clear and continuing commitment to ensuring that noncitizens who pose a risk to the Australian community are dealt with effectively, efficiently and comprehensively.

The second group of amendments in schedule 3 of the bill clarify the ways that visas can cease under the Migration Act. As the act currently provides for visas to be extinguished by ceasing to be in effect, it has created room for possible argument that a visa which is dormant—that is, not in effect—cannot cease to be in effect even if a relevant ceasing provision applies to it. To ensure that the visa-ceasing provisions under the act are interpreted consistently with policy amendments in schedule 3 to this bill clarify the operation of the visa-ceasing provisions—that is, a visa will always cease or be extinguished if a relevant ceasing provision applies to it, even if the visa is not in effect at the relevant time, except in one expressly carved out circumstance.

Schedule 3 of the bill also makes a minor technical amendment to subsection 38B(5) of the Migration Act to fix an incorrect referencing error.

Finally, the amendments proposed in schedule 4 of the bill are intended to confirm the government's clear intent that powers under the Maritime Powers Act are able to be exercised in the course of passage through or above the waters of another country in a manner consistent with the United Nations Convention on the Law of the Sea—the convention. Section 8 of the Maritime Powers Act defines a country to include the territorial sea and archipelic waters of the country. Section 40 prevents the exercise of powers under the Maritime Powers Act at a place in another country except in defined circumstances. Section 40 could be interpreted as preventing the exercise of powers under the Maritime Powers Act in waters within another country in circumstances where under the convention it would be permissible to exercise those powers—for example, when a vessel is in the course of transit passage through an international strait.

Schedule 4 to the bill amends section 40 to confirm the ability to exercise powers under the Maritime Powers Act in circumstances where vessels or aircraft are permitted or entitled under the convention to exercise rights of passage through or above those waters. Under the amendments, the exercise of the maritime powers in these circumstances can occur when three criteria are met. First, the exercise of the powers is to be part of a continuous exercise of powers that commenced in accordance with the existing framework for the exercise of powers. Secondly, the exercise of the powers occurs in the course of passage of a vessel or aircraft through or above waters that are part of a country, which includes the territorial sea, archipelic waters and international straits. Finally, a relevant maritime officer, including the commander of a vessel as well as more senior maritime officers who have knowledge, involvement in or command over the operation, or the minister considers that the passage is in accordance with the convention.

Schedule 4 demonstrates this government's clear intend to ensure that the powers exercised under the Maritime Powers Act are consistent with the convention. I commend the bill to the chamber.

Debate adjourned.