Migration Amendment (Strengthening the Character Test) Bill 2019


Peter Khalil: Basically, the Migration Amendment (Strengthening the Character Test) Bill 2019 seeks to provide further grounds for the minister to cancel noncitizen visas. We know that. It attempts to expand ministerial discretionary powers to refuse or cancel the visa of a noncitizen, according to both section 116 and section 105 of the Migration Act. Labor supports the powers that are already granted to the minister under this act. The government’s bill, which purports to strengthen the character test, does not expand the substantive powers available to the minister, nor does it add new offences that will trigger visa cancellation. Two Senate inquiries have confirmed this.

Even though the bill is ultimately redundant, on three points the government’s changes to the Migration Act have unintended and undesirable consequences. Labor has already put forward three amendments to address these problems. If the government include them in their bill, Labor will support its passage through the parliament. Unfortunately, the government are more interested in what we’re now calling ‘wedgislation’, quite appropriately, than legislation. They are more interested in antagonising the opposition than working productively in a bipartisan manner, which would actually further the national interest.

The amendments that Labor proposes are as follows. Labor would amend the bill so that the Migration Act does not impose retrospective liability on residents who have, in many cases, been in Australia for decades, effectively subjecting them to a form of double jeopardy. Labor would prevent trivial offences, such as teenage shoplifting, from being considered as part of a character test by amending the bill to use the current offence definition. Finally, in light of Prime Minister Ardern’s comments about the corrosive effects of this bill, Labor is calling for the government to launch a review of ministerial decisions under the Migration Act, particularly focusing on the cancellation of New Zealanders’ visas.

Now that Labor has considered the Senate committee’s report on the inquiry and the government has rejected its amendments, Labor will oppose this bill in the House. We oppose it because why this bill is necessary has not been justified. It’s going to have those unintended consequences that will harm Australia’s relationship with New Zealand. I heard the Minister for Home Affairs earlier in question time complaining about Labor talking about the rights of New Zealanders. Actually, we’re talking about what is an integral and critical bilateral relationship between Australia and New Zealand. That is in our national interest. The bill could cause significant damage to Australia’s relationship with New Zealand. We have heard this time and time again, from both Prime Minister Ardern and, as recently as yesterday, the High Commissioner. They have been clear about what they think about this bill. The New Zealand government wrote to the Senate inquiry and said that the changes ‘would make a bad situation worse for New Zealanders and therefore for New Zealand’.

The existing law is already effective, as I’ve said. It’s not necessary to pass this bill into legislation, because the broad discretionary powers are already in the possession of the minister for immigration. It already protects Australia from people who represent a danger to the community. It already achieves what the government claims it wants to do with this unnecessary bill before us. The immigration minister already has extremely broad discretionary powers to refuse to issue or to cancel the visa of a noncitizen. Section 501 already applies to noncitizens who represent a danger to the Australian community. We understand—and they on the government benches should understand—that section 501 of the Migration Act gives the minister both mandatory and discretionary powers to refuse or cancel a visa of a noncitizen if they fail to pass the character test.

As I’ve said, we strongly support the current powers to cancel or refuse visas on character or criminal grounds under section 501. The existing legislation already allows for mandatory cancellation of visas for foreign nationals who have served a custodial sentence of a minimum of 12 months or who have committed a serious crime. That character test is defined under section 501(6) of the act. If a person has a substantial criminal record, has been convicted or suspected of committing offences, has a conviction for immigration detention offences or is subject to an adverse security assessment, they fail that character test. The act defines a substantial criminal record as ‘a term of imprisonment for 12 months or more’. Most noncitizens who fail the character test do so because they have been sentenced to a term of imprisonment for 12 months or more. If the home affairs minister or immigration minister suspects that a noncitizen does not pass the character test or that there is a risk to the community while they are in Australia, they can use these existing powers to cancel their visa.

Given all this, it is quite clear that this bill is unnecessary. The government has not offered any substantive justification as to why these expanded powers are needed. Basically they have done this because they’re a policy-free zone. They have no plan, no agenda, no vision; they have nowhere to go. They need to look busy, so they pass their ‘wedgislation’ and play politics instead of focusing on the national interest. There is a further disturbing element—that is, the concentration of power to the minister. Not only is this bill unnecessary for the reasons outlined; the expanded powers will likely have a problematic effect in the sense of concentrating powers to the minister—another example of poor drafting, of overreach. Powers that will have unintended consequences have become far too common under this government and the Minister for Home Affairs in particular. In many respects this government is like a drunken boxer, throwing haymakers, hoping to land a political punch, hoping to find a wedge they can carry on about, because they are otherwise substance-free.

This bill overreaches, and how much power it gives to the Minister for Home Affairs is of serious concern. The Senate Standing Committee for the Scrutiny of Bills said:

… the proposed amendments would allow the minister the discretion to cancel or refuse to issue a visa to a person who has been convicted of a designated offence but who may have received a very short sentence or no sentence at all.

It is self-evident that Labor is committed to the safety and security of Australians. It has been demonstrated, and the Minister for Home Affairs shouldn’t politicise Labor’s bipartisan commitment to Australia’s national security like he has on an ever-increasing basis over the past weeks and months. There is a complete lack of support from stakeholders. The bill has virtually no support at all. Important stakeholders that have considered the consequences of the bill include the New Zealand government, the Law Council of Australia, the Australian Human Rights Commission, the Refugee Council of Australia, Legal Aid New South Wales, Australian Lawyers for Human Rights, the New South Wales Council for Civil Liberties, the Federation of Ethnic Communities’ Councils of Australia, the Asylum Seeker Resource Centre and Oz Kiwi.

Of the 17 submissions that the Senate inquiry received, only one supported the bill in its current form. All the rest—16 organisations, experts in their fields—are opposed to the bill in its current form. These stakeholders in their opposition talked about the bill being ‘overly broad’, an ‘unwarranted expansion of executive power’, ‘entirely disproportionate’ and ‘adding to a draconian framework’ and said that it:

… will offer no greater protection or safety to the Australian community beyond what is already provided for in existing law.

These are quotes from the Law Council of Australia, the Refugee Council of Australia and the other organisations. All these organisation say—as we do in the Labor Party—that this bill overreaches and will have those unintended consequences, and it achieves nothing that isn’t already possible under the current laws.

Now, if you’ve been paying attention on the other side you might have a great deal of suspense about which one of these submissions—the single submission—was in support of the government. There was one stakeholder that wrote to the Senate inquiry and supported the legislation in its current form. Can you guess which stakeholder that was? Can anyone guess? Drum roll—it was actually the one organisation that supported—

Mr Neumann: The Department of Home Affairs.

Mr KHALIL: Well done, Member for Blair! It was the Department of Home Affairs, of course.

In conclusion, it is not in Australia’s interests to undermine one of our strongest relationships over legislation that hasn’t been justified by this government, that is completely unnecessary—that is an expansion of power that would be problematic on a number of levels, as I’ve outlined. The minister already has these powers. The minister already has the powers to cancel those visas if they’re already there. The government has no justification for this bill. They are searching around, as I said, like a drunken boxer throwing punches every which way, hoping to land a political punch. They are not putting the national interest first. They’re pursuing this for political reasons, for ‘wedgislation’, so that they can play politics with our national security, as they’ve always done.

We cannot support this unnecessary expansion of the powers of the Minister for Home Affairs. We will not support it. Labor does strongly support the current laws that work to protect Australians from people who might pose danger if they were allowed to come to our country, and we’ll always put the national interest first, above politics.