Migration Amendment (Strengthening the Character Test) Bill 2019
Senator VAN (Victoria) (10:27): I rise to speak on the Migration Amendment (Strengthening the Character Test) Bill 2019. As we move out of an environment dominated by COVID-19, which has unfortunately been characterised by border closures and lockdowns, like in my home state of Victoria, we must once again set our sights on what a return to normal will look like. Considering how well the Morrison government has handled the pandemic, and the fact that our economy is in a position to continue to grow past COVID-19, Australia will once again become an attractive location for foreign citizens to come and visit, whether it be for tourism, for work or to live. Australia is proudly a multicultural nation, and a large part of our success has been built on the back of migrants from around the world who are attracted by some of the great many benefits that Australia has to offer.
However, unfortunately, not everyone who wishes to come to our shores has good intentions in mind and do not wish to subscribe to the many values that we hold dear, such as respect for the rule of law. The respect for the rule of law is a fundamental value that underpins our society; it is what keeps Australians safe and our nation prosperous. The Morrison government is resolutely committed to upholding these values, ensuring that those who enter our borders share our respect for the rule of law and value the benefits that this brings to our society. Consistent with the views and expectations of all Australians, the Morrison government has no tolerance for criminal behaviour. Those that engage in crime and who pose a threat to Australians in their homes and communities have no place entering our borders.
Once the number of people crossing the border into Australia again begins to increase, so too will the threats to our security increase. It is not a right of noncitizens to enter into Australia, it is a privilege. This privilege that we bestow on those entering Australia is one that we must carefully manage. Australians expect that we, as the representatives of the people, have in place the right rules and regulations to ensure that this privilege is not taken for granted by those who wish to do us harm.
The Morrison government has shown that it is resolute in its commitment to keeping Australians safe. We have recently passed numerous pieces of legislation designed to keep Australians safe from foreign threats. They include the Independent National Security Legislation Monitor Amendment Bill, the Foreign Intelligence Legislation Amendment Bill, the Surveillance Legislation Amendment (Identify and Disrupt) Bill, and the Counter-Terrorism Legislation Amendment (Sunsetting Review and Other Measures) Bill.
All of these, I have spoken on recently in this place. They are just a handful of recent examples of legislation, that have passed through the parliament, aimed at keeping Australians safe and free from the threat of violence. Recently, as everyone will be aware, the AUKUS announcement was made. This trilateral defence pact can be seen as one of the greatest achievements in strengthening our national security in recent history. It's one of the greatest steps taken by an Australian government to keeping Australians safe. These announcements outline the Morrison government's achievements over recent times that go towards keeping Australians safe. This commitment is extended today with the bill before us.
We are a welcoming, multicultural, open and cohesive society. At the same time, we need to ensure that we remain safe and secure. The Australian community expects that the Australian government can and should refuse entry to noncitizens or cancel their visas if they do not abide by the rule of law. It must be clear to those who wish to travel to our shores that if they choose to break the law and fail to uphold the standards of behaviour expected by the Australian community, that privilege of residing in Australia will be taken away from them. The purpose of this bill is to amend the Migration Act 1958 to specify that a person who does not pass the character test—that is, they've been convicted of a designated offence—may have their visa cancelled or visa application refused.
The character test, in one form or another, has been in the act since 1992. What the Morrison government is doing is ensuring that this test remains in step with the rest of our society and our values. The Migration Amendment (Strengthening the Character Test) Bill 2019 will ensure that noncitizens who are convicted of certain serious offences and pose a risk to the safety of the Australian community do not pass that character test and are, appropriately, considered for visa refusal or cancellation.
The bill broadens the existing discretionary powers to cancel or refuse visas under the character test. The amendments will allow for discretionary visa refusal cancellation for a noncitizen who has a conviction of a designated offence punishable by at least two years imprisonment. Designated offences include violent and sexual crimes, breaching personal protection orders like AVOs that protect women and children, using or possessing a weapon, or assisting with any of these crimes. These crimes are some of the most serious offences that can be committed and pose a direct threat to our community. The amendments address gaps in the current character test to capture noncitizens who have been convicted of a serious criminal offence punishable by at least two years imprisonment, have received less than 12 months imprisonment for their crimes and pose a risk to the Australian community.
By moving the character test onto more objective grounds, the bill will broaden the circumstances in which visas may be cancelled or refused and reduce the likelihood of such decisions being overturned on appeal. The last thing we want is for an individual whose character has been deemed unfit, and who poses a direct threat to the Australian community, to have their visa cancellation overturned on appeal. By focusing on the sentence available rather than the sentence imposed, the bill also captures offenders given sentencing discounts by judges due to plea bargains, guilty pleas or simply to avoid mandatory visa cancellation thresholds. This response to the precedents set out in Victoria, Queensland, Tasmania, the ACT and South Australia gives judges discretion to reduce criminal sentences where an offender may be deported due to their offending. As this power is discretionary, the government will have flexibility to focus on serious crimes perpetrated by criminals who pose a genuine and present risk to the Australian community.
Why the Labor Party would oppose this is beyond me. Opposing this bill is essentially saying that you're okay with convicted offenders, who pose a threat to our citizens, walking the streets amongst the community.
Senator Waters interjecting—
Senator VAN: You've had two years to negotiate. It shows that the Labor Party is not serious about ensuring that our citizens are safe and that their priorities are wrong.
Senator Waters interjecting—
The ACTING DEPUTY PRESIDENT ( Senator Chandler ): Order!
Senator VAN: The last time the Labor government was in government under Prime Ministers Rudd and Gillard, they only cancelled and refused a total of 1,128 visas on character grounds. The Morrison government is not okay with this and will pull upon every lever we can as a government to keep Australians safe in their homes and in their communities. The coalition government has a strong record when it comes to combatting crime and keeping our streets safe. Since significant reforms were made in 2014, this government has already cancelled and refused visas of over 9,900 serious criminals. That's almost ten times as many criminals kept out of the Australian community than under Labor. Of the nearly 10,000 cancellations and refusals, offences ranged from murder, child sex and child pornography offences, rape and serious sexual offences against adults, armed robbery, drug offences, kidnapping and other violent offences, including assault, grievous bodily harm, reckless injury, domestic violence, stalking and intimidation, use of a weapon and attempted murder. I think all Australians will agree we don't want those people in our community.
Furthermore, the government cancelled or refused visas to over 320 organised crime figures, including members of outlaw motorcycle gangs. Each one of these visa cancellations or refusals was a great accomplishment and made Australians and our communities safe. This is something we should all be proud of, and we on this side are very proud of it. No-one here should be comfortable with a person who has proven to be capable of horrendous acts to be walking around our communities.
That Labor's position to visa cancellation should be only triggered by the sentence received, rather than the sentence available, shows that they do not take the threats to our community seriously or that they are just simply playing politics. To me, however, it seems as if both those assumptions are true.
It is a fact in 2011, Chris Bowen from the other place, passed laws with coalition support, which focused on the sentence available specifically for where crimes are committed in immigration detention, as opposed to the broader circumstances covered by today's bill. If Labor believed that it was necessary for this type of action to be available for crimes committed in immigration detention centres, it makes very little sense to me as to why they believe it should not be applied to crimes committed in all other areas of our community. Even Mr Albanese, the Leader of the Opposition, when first asked about the bill in 2019, said: 'Is it a good idea to deport people who break the law in Australia? Yes, it is.' Labor's backflip is essentially showing that they are backing foreign criminals over Australian citizens.
As I said earlier, the Morrison government is committed to ensuring our communities are safe, and that is why at the 2019 election, as part of our plan to protect our borders to keep Australians safe, we committed to strengthening the character test for foreign criminals even further to enable visa cancellations where a noncitizen has been convicted of a broader range of violent and sexual offences. It was our election commitment. We're keeping it here today. This government intends to keep that commitment and ensure our communities are safe. An Australian visa is a privilege, and our laws must deny that to those who pose a threat to the safety of all Australians. Ensuring that Australians are safe and free from the threat of harm is one of the fundamental tasks that a government must undertake. Without this security, citizens cannot prosper. I commend the bill to the Senate.
Senator GRIFF (South Australia) (10:39): [by video link] At first glance, I can understand why the government has put forward the Migration Amendment (Strengthening the Character Test) Bill 2019, misguided though it is. I can see why the minister would be tempted to increase his powers and make his job easier while arguing that it is all for the greater good. But, in the case of this bill, he wants even more freedom than he has now to keep out or boot out anyone who deems of poor character and a possible threat to the safety of fellow Australians. What is harder to understand is why the minister is seeking to set the bar as low as this bill does.
Under this bill, a noncitizen would fail the character test and have their visa considered for cancellation if convicted of a designated offence against another person, no matter how minor the offence and even if they serve no jail time whatsoever. Even if their conviction only results in a fine, they will still fail the character test as long as the crime is punishable with two or more years imprisonment. Designated offences include murder and kidnapping, which are already well dealt with by existing laws, as well as threats of violence, breaching an AVO, processing or threatening to use a weapon, and being an accessory to the offence.
The minister argues this bill will target people convicted of serious offences and who pose a risk to the safety of the Australian community. However, existing laws already deal with serious offenders and people who pose a risk to others in the community. This bill will only serve to capture convictions for minor offences—because that is all that is left. It could mean that someone who has lived in Australia peacefully for 30 years as a permanent resident but then does something stupid, like many of us do, like making a verbal threat or getting into a scuffle with another person, could potentially be deported.
The Senate inquiry into this bill heard from many submitters who again and again made the point that section 501 of the Migration Act already gives the minister and his delegate very broad powers to refuse or to cancel someone's visa on character grounds. These powers are so broad that section 501(6)(c) is almost a free-for-all. It allows the minister to refuse or cancel someone's visa if the minister decides that, due to their past and present general conduct or criminal conduct, they are not of good character. Under section 501(6)(d), noncitizens also fail the character test if there is a risk that they will harass, molest, intimidate or stalk another person in Australia, or vilify a segment of the Australian community, or incite discord or pose a danger to the community because they might get involved in disruptive or violent activities.
Under section 501(3)(a), there is mandatory cancellation of a visa for noncitizens who have served 12 months or more in prison over their entire lifetime. Visas are also automatically cancelled for anyone convicted of sexual offences involving a child, regardless of the length of any sentence. Otherwise, the minister only needs to reasonably suspect that the person does not pass the character test under existing laws. That visa can then be cancelled if that person fails to convince the minister or his delegate otherwise. They will also have no rights whatsoever to a merits review. If the minister is satisfied that the visa cancellation is in the national interest, they will have no rights whatsoever to a merits review.
If that's not enough, under section 116(1)(e), the minister may cancel a visa if the holder poses a risk to the health, safety or good order of the community or the health and safety of an individual. This section allows for the cancellation of a temporary visa or permanent visa once the holder travels outside Australia. According to New Zealand's submission for the identical 2018 legislation, section 116 of the Migration Act was previously used to deport New Zealanders for a breach of restraining orders or one-off assault charges. What more does this minister need?
The migration act already gives the minister broad powers to boot out pretty much anyone who could be deemed a real threat to the community or individual safety.
In reality, this bill isn't about making the community safer. It is about making the administration of the existing laws easier. Lowering the bar to ensure anyone convicted of a designated offence against another person that fails the character test takes the hard work out of the process. It provides an automatic and low benchmark. It means discretion is instead focused on when not to cancel or refuse a visa. It will mean these visa cancellations and refusal decisions can almost become a tick-box exercise. While this might be a bureaucrat's dream, this alone is not enough justification for lowering the bar as low as this bill does. The bill is retrospective, so will immediately have implications for all visa holders if passed.
There are also some serious unintended consequences that might arise from this bill, not least of which is that we would potentially be separating families and disrupting lives by cancelling or refusing the visas of people who pose no real or ongoing threat to the community. The bill's explanatory memorandum says the reason the offence must be punishable by at least two years in jail is to make it clear that a designated offence must be a serious offence and not merely a minor or trifling one. But the fact is that no custodial sentence is required, and a lack of safeguards in the legislation, even for children, undermines this attempt at reassurance. Not only that, the bill will lead to a substantial jump in visa cancellations, which will lead to greater pressure on the already slow and overstretched tribunal and court systems, and place more people in onshore detention while they wait for outcomes.
A submission from a field of experts, including a former immigration department deputy secretary, estimated that the bill could lead to a five-fold increase in cancellations. The number of visas cancelled on character grounds has already increased 11-fold since 2014, when the Migration Act was reformed to strengthen the character test. Around a quarter of the people in detention are here due to visa cancellations under section 50, and those that challenge these decisions often face prolonged detention at significant cost. As the Law Council said in its submission, a decision to cancel or refuse a visa will almost always have a profound and direct impact on people's lives. For many people, it would mean permanent separation from family. This power should not be expanded without robust justification. What is missing in all of this is a demonstrated need for these laws. No compelling case has been made that the existing laws are insufficient to protect the community from real risk. That is why I will most certainly be opposing this bill.
