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Wednesday, 11 November 2015
Page: 8324


Senator McGRATH (QueenslandAssistant Minister to the Prime Minister) (16:04): I move:

That these bills be now read a second time.

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

Leave granted.

The speeches read as follows—

MIGRATION AMENDMENT (CHARGING FOR A MIGRATION OUTCOME) BILL 2015

The Migration Amendment (Charging for a Migration Outcome) Bill 2015 amends the Migration Act 1958 ("the Act") to introduce a new criminal and civil penalty regime that will make it unlawful for a person to ask for, receive, offer or provide payment or other benefits in return for a range of sponsorship-related events. The Bill also allows visa cancellation to be considered where the visa holder has engaged in such conduct, referred to as 'Payment for Visas' conduct.

This Bill will implement a key integrity recommendation of the Independent Review into Integrity in the Subclass 457 Programme: that it be made unlawful for a sponsor to be paid by visa applicants for a migration outcome and that this be reinforced by a robust penalty and conviction framework.

This Bill will apply to a range of temporary sponsored work visas and skilled permanent employer sponsored visas, including the 457 visa.

'Payment for Visas' conduct is not currently unlawful. This conduct is unacceptable to the Government and the Australian people because it undermines the genuine purposes for which visas are intended to be granted. This Bill will strengthen the integrity of Australia's migration programme by allowing action to be taken where 'Payment for Visas' conduct has occurred.

'Payment for Visas' conduct may occur through an employer offering to sponsor a visa applicant in return for a payment or benefit. It may occur before the applicant applies for a visa or during the visa holder's stay in Australia. Evidence obtained through monitoring sponsors indicates that the sponsor and applicant are complicit in the majority of 'Payment for Visas' activity. Employers may also exploit an employee by requiring payment in return for ongoing sponsorship.

A strong response is required to ensure that this practice does not continue.

The Bill will amend the Act to make it a criminal offence for a sponsor or other third party to ask for or receive a benefit in relation to a sponsorship-related event. The offence will be punishable by a maximum of two years' imprisonment or a fine of up to 360 penalty units. This currently equates to $64,800 for an individual person or five times higher - $324,000 - for a body corporate.

The Bill introduces civil penalties applicable to a sponsor, visa applicant or any other third party who asks for or receives, or provides or offers a benefit, in relation to a sponsorship-related event. The maximum pecuniary penalty is 240 penalty units, which currently equates to $43,200 for an individual person or five times higher - $216,000 - for a body corporate.

The maximum penalties reflect the high upper limit of amounts paid in 'Payment for Visas' cases.

The Bill defines "benefit" in wide terms to include any payment or deduction, and any kind of real or personal property, advantage, service or gift. It does not include payments of reasonable amounts for the provision of a professional service such as by a migration or recruitment agent.

The Bill includes a definition of "sponsor-related event" to capture the types of conduct between a sponsor and a visa applicant or visa holder to which the offence will apply.

The Bill defines "sponsorship-related event" to capture 'Payment for Visas' conduct that occurs at any point in the visa application process or throughout the duration of the visa.

The Bill provides for further types of "sponsorship-related events" to be prescribed in the future, ensuring the legislation will be flexible to respond to emerging 'Payment for Visas' conduct. The Bill also provides for a criminal or civil penalty to be imposed on an executive officer of a body corporate, which has been found to be involved in 'Payment for Visas' activity.

The criminal and civil penalty framework will have extended extraterritorial application, so that the offence and penalties apply to conduct by an Australian citizen or body corporate outside Australia, or to an Australian resident outside Australia if there is an equivalent offence in the law of the local jurisdiction.

The Bill will also allow existing inspector, investigation, search warrant and notice to produce powers, which are currently used to investigate work-related offences, to be used in relation to 'Payment for Visas' activity.

Finally, the Bill will introduce a new discretionary power to consider visa cancellation where any person engages in 'Payment for Visas' conduct.

Visas granted at any time may be considered for cancellation, where conduct occurred on or after the commencement date of this Bill.

Consistent with other cancellation powers in the Act, the visa holder would be afforded procedural fairness during the cancellation process. Where a decision to cancel a visa is made, consequential cancellation of the same visas held by family members would automatically apply. A person whose visa is cancelled would have the ability to seek merits or judicial review of that decision.

It is my intention to later expand the 'Payment for Visas' provisions to family and other visas where there is the potential for this conduct to occur. The Bill ensures that the Department is able to take appropriate action against unscrupulous people who have engaged in 'Payment for Visas' conduct.

I commend this Bill to the Senate.

MIGRATION AND MARITIME POWERS AMENDMENT BILL (NO. 1) 2015

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 they will be interpreted consistently with original policy intention and operate effectively as intended.

Specifically, the Bill will:

ensure that when an unlawful non-citizen 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;

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;

make a minor technical amendment to address an incorrect referencing error 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 non-citizen from Australia, but that non-citizen does not enter the destination country and is instead returned to Australia, the non-citizen 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 non-citizen who was been removed from Australia to return without a visa if the unlawful non-citizen was refused entry into the destination country. It does not currently allow for the return without a visa of a non-citizen 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 non-citizen is returned to Australia without a visa because they were refused entry to their destination country then 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 non-citizen 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 2014. The Character and General Visa Cancellation Act significantly strengthened the character and general visa cancellation provisions in the Migration Act to ensure that non-citizens 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 non-citizens 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 non-citizen who is the subject of a 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 non-citizens suspected of being of character concern by aligning the definition of 'character concern' in the Act with the strengthened '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 non-citizen is suspected of being of character concern.

Part 1 of Schedule 3 of the Bill makes an amendment to subsection 48A(1C) 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 applications in section 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 are 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 to the Administrative Appeals Tribunal (the AAT) under the existing provisions in the Migration Act. These amendments implement this 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 are 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 this Government's clear and continuing commitment to ensuring that non-citizens 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, i.e. 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 archipelagic 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, archipelagic waters and international straits). Finally, a relevant maritime officer (including a 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 intent to ensure that the powers exercised under the Maritime Powers Act are consistent with the Convention.

I commend the Bill to the Senate.

Debate adjourned.

Ordered that the resumption of the debate be made an order of the day for a later hour.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.