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Wednesday, 11 November 1998
Page: 59

Senator KEMP (Assistant Treasurer) (9:35 AM) —I table the explanatory memorandum and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows

The purpose of this bill is to ensure that the Government can effectively discharge its fundamental responsibility to prevent the entry and stay in Australia of non-citizens who have a criminal background or have criminal associations.

This bill is largely the same as one which was before the Senate in the last Parliament.

The Government has, however, made two changes from that bill. The first of these extends the time limit for lodging review applications with the Administrative Appeals Tribunal, and the second doubles the time in which that Tribunal will have to review such applications.

In considering this bill, we must remember that the vast majority of non-citizens who come to Australia are in fact law-abiding people.

In a world of rapidly increasing people movements, our immigration arrangements must be designed to streamline the entry and stay of all genuine visitors, students, business people and permanent residents. However, a small proportion of non-citizens seeking to enter Australia do have substantial criminal backgrounds or criminal associations. Others commit crimes while they are in Australia.

Steps to improve the Department of Immigration and Multicultural Affairs' ability to detect visa applicants with substantial criminal backgrounds or associations are being taken including consultation with law enforcement bodies overseas. For these steps to be effective, however, they must be complemented by legislative provisions to ensure that non-citizens with criminal backgrounds or criminal associations can be refused a visa. The provisions must also enable the Government to remove those non-citizens who are detained following convictions for crimes committed in Australia.

Experience over recent years has shown that the existing legislative provisions are inadequate for this task. This is despite the fact that they were amended as recently as 1992 with the express purpose of improving the Government's ability to deal with visa applicants and visa holders with a substantial criminal background. In broad terms, the bill seeks to enhance the Government's ability to deal with non-citizens who are not of good character in three ways:

. First, decision-making in routine cases will be improved by:

- requiring applicants to show that they are of good character;

- deeming that certain levels of criminal sentences will lead to an automatic finding that the non-citizen concerned is not of good character; and

- allowing the Minister for Immigration and Multicultural Affairs to give binding directions to decision-makers.

. Secondly, in exceptional or emergency circumstances, the Minister, acting personally, will be given powers to act decisively on matters of visa refusal, cancellation and the removal of non-citizens.

. Thirdly, information provided by Australian and international law enforcement agencies will be afforded more effective protection so that such agencies can be confident about passing information to immigration decision-makers.

I will now describe the major provisions of the bill in more detail.

The character test

The amendments proposed in this bill introduce the concept of a character test. Under this test, the onus will be on visa applicants and visa holders to satisfy decision-makers that they can pass the test. This will redress a significant deficiency in the legislation arising from the changes made in 1992. Since that time, decision-makers have been required to establish that a person is not of good character before they could refuse a visa to an applicant or cancel a visa. This has meant that, whenever there has been doubt about the criminal background or criminal associations of a non-citizen, the doubt has been resolved in the non-citizen's favour. I understand that this was not the intention of the 1992 amendments.

This bill then takes us back to the situation that existed before 1992 by placing the onus of proof on the visa applicant to demonstrate that he or she is of good character. This means that where there are real doubts about the criminal background or criminal associations of a visa applicant or visa holder, the objective of protecting the Australian community will take precedence in immigration decision-making.

Deeming provisions

This bill also seeks to establish clear benchmarks for criminal behaviour that would automatically lead to a non-citizen failing the character test. Non-citizens who have been convicted to a single sentence of detention of 12 months or more, or where the length of several sentences aggregates to two years or more, will fail the character test. This will truncate the character assessment process and cover most non-citizens of character concern who come to notice. This will provide more certainty as to who is able to pass the character test.

Binding directions on exercise of the discretion

Once it is established that a visa applicant or visa holder does not pass the character test, decision-makers will have to decide whether to refuse the application or to cancel the visa. Exercise of this discretion will need to take into account a wide range of factors including: the non-citizen's links to Australia; the nature of crimes committed; and any international law obligations.

This bill will enable the Minister for Immigration and Multicultural Affairs to give precise written directions on what weight is to be given to each of these factors. These directions must be binding on all decision makers, including merits review tribunals, to ensure a consistency of approach. The written directions will be tabled in Parliament.

Protection of criminal intelligence

Criminal intelligence and related information is critical to assessing the criminal background or associations of non-citizen visa applicants and visa holders. At present, it is difficult for the Department to use such information in making character decisions because its disclosure might be threatened. Australian and international law enforcement agencies are reluctant to provide sensitive information unless they are sure that both the information and its sources can be protected. Greater protection for such material would complement broader national and international strategies to counter transnational crime and the activities of those associated with it.

This bill increases the level of protection for such information. I cannot overstate the importance of this protection to the job of preventing the entry of foreign criminals to Australia. This was highlighted in the Minister's recent discussions with officials of international law enforcement agencies.

Merits review

The opportunity to appeal character decisions to the Administrative Appeals Tribunal (AAT) will be retained. However, there is a critical need to reform these arrangements in two main respects: first, in terms of speeding up merits review processes; and, secondly, in terms of ensuring that merits review decisions reflect community standards and expectations.

Merits review streamlining and time limits

Where a non-citizen who is already in Australia is refused a further visa or has their visa cancelled on character grounds, it is essential that merits review cannot be used to prolong stay in Australia at taxpayers' expense. The average time currently taken for such cases at merits review is 227 days from the initial notification to a final decision. Many cases take even longer.

During this time, the non-citizens involved, many of whom have committed serious crimes, either will be in detention at great cost to the taxpayer or will be at liberty in the community. Quite frankly, this must stop. This bill introduces more streamlined procedures for dealing with such cases. It also introduces a strict 84 day time limit for the conduct of merits review cases involving character where the non-citizen is in Australia.

We will ensure that all relevant documentation necessary for the AAT to determine the matter will be provided quickly, at the outset of the process. The amendments will establish a new process where the Department will be required to provide two copies of the relevant documentation to the applicant at the time of the decision. Then, at the time the appeal is made, the applicant only has to lodge one copy of the documentation with the AAT. The need for strict time limits is consistent with other review processes in the immigration area where delay can prejudice both the applicant and the community.

The provision will result in a more streamlined process, with the applicant, the Department and the AAT using less time and resources to obtain the necessary documentation. Currently much effort is devoted to, and delay arises in, pursuing papers and documentation from non-citizens and the Department.

The strict time limit will prevent non-citizens from further attempts to delay the resolution of their case.

Minister's power to intervene or set aside Administrative Appeals Tribunal decisions

Over the past 12 months or so, the AAT has made a number of character decisions that are clearly at odds with community standards and expectations. The AAT has found a number of non-citizens, who have been convicted of very serious crimes, to be of good character, and has ruled that they should be granted a visa. This has alarmed the community and I might say the community, when they are aware of these decisions, hold the Government and not the AAT responsible.

It is essential that the Minister, acting personally, have the power to intervene or set aside such decisions in the national interest. The Minister should, however, continue to be required to table the making of any such decisions in the Parliament.

Emergency cases

From time to time, there will be emergency cases involving non-citizens who may be a significant threat to the community. These people may be threatening violence or some other act of destruction or have a prior history of serious crime. In these emergency circumstances, the Minister, again acting personally, should have the power to act without notice and have them taken into detention.

Once the visa is cancelled, the non-citizen will have a right to make a submission to the Minister as to why the cancellation should be revoked. Natural justice will apply in such cases. However, if they cannot satisfy the Minister that they pass the character test, they should be removed immediately. Parliament should be notified of the making of such decisions but the decisions should not be subject to merits review because of their national significance. The Minister is very accountable for his actions—to the Parliament, his colleagues, and to the people of Australia.

The provision is similar in nature to other provisions already present in the Migration Act—Subdivision F of the Migration Act (section 128) provides for cancellation offshore without notice and the right of the non-citizen to make a subsequent submission as to why the cancellation or refusal should be revoked. This Subdivision was inserted in 1992 by the previous Government.


In summary, this bill sends a clear and unequivocal message on behalf of the Australian community. The Australian community expects that non-citizens coming to Australia should be of good character. To discharge this expectation, the Government must have the ability to act quickly and decisively, wherever necessary, to remove non-citizens who are not of good character.

During debate in the House of Representatives before the election, the Opposition indicated that they supported the objective that the Government provides for in this bill. This bill now incorporates some amendments reflecting discussions between the Minister and the then Opposition spokesman.

I commend the bill to the Chamber.

Ordered that further consideration of the second reading speech of this bill be ad journed till 14 days after today, in accordance with standing order 111.