September 18, 2019






I sat there while the Member for Fairfax failed dismally to explain why this bill was needed. But I must admit I did enjoy his feeble attempt to explain radicalisation to the House and how this bill was somehow going to stop terrorism. I've also just now sat through the Member for Ryan's lengthy discussion on this bill, and I'll respond to that in due course.

This bill, the Migration Amendment (Strengthening the Character Test) Bill 2019, is part of the Morrison Government's bubble-and-squeak agenda. I've never cooked bubble and squeak, but I understand it's something that you make when the cupboard is bare and you've got nothing else. That's what this is. It's part of the bubble-and-squeak agenda—something cobbled together purely for the purposes of wedging Labor. The Morrison Government seem obsessed, but they're not obsessed with the welfare and wellbeing of Australians. No. They're not obsessed with the protection and safety of citizens and those who would seek to be citizens or residents. But they are obsessed with us. They're obsessed with Labor.

Perhaps we should be flattered by the government's obsession with us. But we came here to work and we came here to achieve meaningful change, not to support a one-sided conversation where we are the only ones listening to the Australian people. All we hear on the other side of the chamber during question time and elsewhere is the government blaming us for their failings. On this particular bill, we agree without equivocation that dangerous criminals should be able to have their visas revoked. In fact, since 2014 the government has cancelled around 4,700 visas, as the previous member noted, under section 501 of the Migration Act because Labor supported and still supports—let me say that again: we supported and still support—the current powers to cancel or refuse visas on character or criminal grounds. That's right. The immigration minister can already cancel the visas of noncitizens and deport foreign criminals convicted of serious crimes.

We heard the Member for Ryan give a long list of such serious crimes. He even gave an example of a case where somebody did not get a conviction, or got a conviction under 12 months, and argued that this current bill would enable the minister to revoke that person's visa. Well, guess what. The minister can already do that. It's called ministerial discretion and it is already in section 501 of the act. If the minister is not doing that, if the minister is allowing people of questionable character who have committed crimes or who are on a trajectory to committing even more violent crimes and escalating their violent crimes, then the failing is not with the act, the failing is not that we need a bill. The failing is with the minister, who seems to only use his discretionary powers when it comes to au pairs.

This Minister's discretionary powers in this regard, under the current act, are so broad that noncitizens don't need to spend time in jail, or even be convicted of a crime, to have their visas cancelled. Let's think about this rationally. There are 4,700 people who have already had their visas cancelled and been deported, and the Minister has a broad-ranging discretion to deport noncitizens. So you would think there would be no need to introduce any further legislation. You would think that what would in fact be needed is some more scrutiny over exactly how the minister uses his discretion. The fact is that this bill, this amendment, does almost nothing to change existing laws. What it does do, however, is introduce some unintended and undesirable consequences about which Labor has raised concerns with the relevant ministers.

The government says that it should be able to revoke the visa of anyone who has been arrested but not charged with a crime. Let's take the example of a student who has come here to study and has been here two, three or maybe even five years. They work part time. They pay rent. They have friends and they have established a community. One night they are out with friends in the city and one of them is assaulted or takes part in some form of altercation. Those present are all arrested, even if they are trying to subdue the situation. In that situation, in that context, does a bell ring in the minister's office to let him know there's a noncitizen who has been arrested but not even charged and he needs to get this person out of the country as soon as possible? Is that how this is going to work? The bill does not affect the broad ministerial discretion to cancel a visa on character grounds which, I repeat, already exists within the Migration Act—including in circumstances where the person has not automatically failed the character test but the minister 'reasonably suspects' that the person does not pass the character test, regardless of whether the person has committed a crime or not.

The Member for Ryan gave the example of somebody who had committed a horrendous crime and had committed an assault previously. Why didn't the minister use his broad-ranging powers? Why didn't he have a reasonable suspicion that this person would not pass the character test? Surely this is a failing of the Minister. Right now, under the existing legislation, the Minister can cancel a visa if he has reasonable grounds to form a view on an individual's character. He can do it right now. This bill, I argue, does not represent a policy or legislative position—far from it. What it does represent is a purely political position. As I said, it is part of the Morrison Government's agenda to try to wedge Labor on a range of issues. We came to the party. We put forward a negotiating position. That negotiating position has been knocked back, undoing years of bipartisan work and bipartisan support on matters of national security, because this government is not interested in working together.

In the position that we put forward, we stated our concerns. We stated our concerns that these amendments create significant risks. The first risk that we are concerned about is retrospectivity. We're talking about people who have lived in Australia for decades and have no recent criminal history. They may have previously undergone assessment for criminal behaviour by the department and the minister, and the assessment of any criminal behaviour was deemed as not of bad character. Now the Morrison Government wants to reach back and have another go at getting those people. We know this because the only circumstance in which a person would be vulnerable to discretionary visa cancellation under this bill, but not under the existing law, is where they have been convicted of 'a designated offence' but the conduct was so trivial that it could not reasonably support a suspicion that the person is not of good character.

The retrospective liability is not only a concern for the practical implications but also strikes at the heart of the significant principle of common law and justice: people not being judged and sentenced retroactively for an offence when the consequence of that offence at the time did not include the outcome that is then effected on them. The second concern is about capturing low-level offending that does not currently rise to the level of the character test. We're not talking about the kinds of serious criminals that the Member for Ryan and the Member for Fairfax were talking about. The Minister, as I've said, can already cancel the visas of noncitizens and deport those kinds of criminals—those convicted of serious crimes involving violence or sexual offences et cetera. The bill currently means that a person convicted of low-level offences but who received no sentence could have their visa cancelled. We're asking that the bill be amended to align with the definition of a substantial criminal record, where a person is sentenced to a term of imprisonment of 12 months or more. This morning, the Minister for Immigration confirmed that the whole point of this law is to have a clear and objective way of cancelling the visas of noncitizens who have committed serious crimes, even if they are sentenced to less than 12 months imprisonment. But, as I said, we already have that in place.

The third point of concern that Labor has raised is the significant damage this bill would cause to Australia's relationship with New Zealand. I know that those who have stood up to speak on this bill from the other side have basically dismissed that. They have very clearly said they don't really care about Australia's relationship with New Zealand. In question time today, the minister made remarks to the effect that he was not concerned with that relationship. He basically said on record that he has no regard for our longstanding relationship, which is in Australia's national interests. I wonder what the foreign minister would have to say about that?

As I have acknowledged many times in this House, I have a wonderfully diverse electorate, and that means that I get a lot of inquiries in my office relating to issues people are having with visas. This includes citizens of New Zealand who live here and are particularly concerned. But I also have large cohorts of communities from other migration locations, including one of the largest cohorts of migrants from the United Kingdom and South Africa, as well as a broad range of new and emerging migration locations. What am I supposed to say to someone the first time they come through my door—someone who has lived in Australia for 10 years, 20 years or 30 years? Let's say that person made a poor decision two decades ago, where they committed a crime and ended up with a suspended sentence, but since then they've been an upstanding member of the community and they've contributed to the community. Say, for whatever reason, the government starts looking into their past and decides to go for them, based on this bill, and decides that they no longer meet the requirements of being of good character in order to stay in Australia. What am I supposed to say to that person?

In concluding my remarks, given the government's record to date with regard to discretion, how are we supposed to know how this new instrument of legislation will be used? The Minister has said that there will be no discrimination, but I note that experts have warned that the bill would lead to a fivefold increase in the number of people facing deportation, with residents from New Zealand and humanitarian refugees being disproportionately affected. We don't know whether to be worried as to whether the minister will or won't exercise discretion because of this bill. We've already called on him; we've already said, 'You've got the powers to exercise your discretion.' If things are happening, if non-citizen criminals are not being deported, then that's on the minister's shoulders. I don't know whether I should be telling the French au pairs in my electorate that they have nothing to worry about, but I'm telling the ethnic communities that they'd better watch out.

This bill represents the very worst of the wedging that the Morrison Government is attempting. If this is any indication of the next three years, we should be very concerned about how much discretion this government wants and how little they are actually delivering for Australians.