Migration Amendment (Visa Revalidation and Other Measures) Bill 2016


Peter Khalil: I rise to speak to the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 in its second reading and to the objectives of the bill. As many speakers have pointed out, the three main objectives contained in the bill are (1) to introduce a new revalidation check framework for visas, including a 10-year visitor visa; (2) to clarify when a visa ceases to be in effect under the Migration Act; and (3) to enable the use of contactless SmartGate technology during an immigration clearance.

In his second reading speech, the Minister for Immigration and Border Protection noted, quite explicitly, that this bill would support the introduction of a proposed 10-year validity visa. Of course, the implementation of this visa was induced by the outcomes of the Our North, Our Future: White Paper on Developing Northern Australia. The white paper highlighted the need for the Australian government to target the fastest-growing tourism markets, being China and India. It further noted that the electronic lodgement of visitor visa applications, a fast-track visa approval scheme and the trial of a 10-year validity visa would promote and boost tourism from those key regions. Clearly, the importance of tourism from these regions, especially in Asia, is something that is well understood and supported by Labor.

Indeed, it is Labor policy that we will restore tourism to the heart of Australia’s economic narrative, recognising its importance as a super-growth sector for local jobs and the economy. That is why Labor announced, prior to the last election, that we would undertake an audit of Australia’s tourist visa offerings for each of our main target markets and undertake an assessment of how those offerings compare to our major competitors. The tourist visa audit mandated by our election platform proposed to assess the competitiveness of our visa fees, visa processing arrangements and the ease of interaction with the Australian border.

With a specific view to the growing Chinese market, Labor proposed to (1) review the cost of the 10-year multiple entry visa so that it is competitive with that offered to Chinese citizens visiting the US and the EU; (2) introduce an online visa application in both English and Mandarin which can be submitted online at any time; and (3) reduce the processing time for visas submitted online to within 48 hours. These policy measures are aimed to help to arrest and reverse the decline in the share of the Chinese tourist market, which has been stagnant since 2004 as a proportion of the total Chinese market.

A report by Tourism Australia notes that, in 2015, visitors from China generated $8.3 billion in total expenditure. In response to the white paper recommendations, the first stage of the 10-year visa pilot for visitors from China commenced on 12 December 2016. I would note, for the record, the fact is that this pilot program has not occurred as part of a reciprocal arrangement with China.

The subsections under the proposed section 96 in this bill introduce a mechanism that would require visa holders to undergo revalidation at various points throughout the term of the visa in order to re-establish their visa. The explanatory memorandum notes that: a continuous updating of biographical, contact and passport information would be necessary in the context of extended grant periods. It also notes that this legislative framework enables the management of risks to the Australian public. However, the Parliamentary Joint Committee on Human Rights has raised concerns that the powers contained in the bill are not proportionate to this objective. While the powers will purportedly only be used in the course of addressing objective assessments of risk, there is nothing that constrains the powers arrogated to the minister under schedule 1 of this bill.

In a number of submissions that were received by the Senate Legal and Constitutional Affairs Committee, which many of the previous speakers have alluded to and quoted from, it has been recognised that these powers can be used at large against any person who holds a visa of a ‘prescribed kind’ entirely at the discretion of the minister. Of course, the stakeholders who have provided submissions include the Law Council of Australia, the Migration Council of Australia, the Kaldor Centre for International Refugee Law, the University of New South Wales, and the ANU’s College of Migration Law.

The real issue we have been discussing with concern is section 96E and its broad scope that would allow the minister discretion to seek revalidation of visas for a whole class of persons. As the member for Blair said earlier in this debate, Labor is concerned with the unintended consequences of schedule 1 of the bill.

The revalidation framework is an uncommon measure for a country to enshrine in legislation. No other nations who have introduced 10-year visas for Chinese nationals have used similar provisions as of the current time except one, and that is the United States. From November 2016, the United States Department of Homeland Security will require all holders of 10-year business or tourism visas to periodically update the information contained in their visa application. However, even under US jurisdiction, the United States policy is qualified within the stated purpose of the regime.

Natural justice comprises a common-law principle dictating that a decision-maker must provide the opportunity for a person whose rights, interests or legitimate expectations are affected by a decision to understand the basis for the decision and to be heard. The restraint that this bill proposes to place on certain basic rights of appeal gives rise to concerns that the amended Migration Act would severely limit natural justice being afforded to those people that it will impact.

Schedule 1 of the bill provides that, where the minister thinks it is in the public interest, the minister may issue a legislative instrument requiring a specified class of person holding a visa of a prescribed kind to complete a revalidation check. However, I note, as other speakers in this debate have noted, ‘public interest’ is not defined under the act, and the bill does not seek to create any definition that a public interest test would need to abide by. In common terms, the powers provided within this bill go much further than the stated objective requirements. This bill would provide the minister with extremely broad discretion to potentially revalidate any type of visa for any type or class of person. This could, in theory, be used to revalidate visas for people of one nationality or from one geographic region, or to target people of one ethnic or religious group, albeit indirectly. The instrument is non-disallowable, meaning that the minister merely has to make a statement to parliament in order to undergo revalidation of certain classes of visa holders.

Labor has sought to work constructively with the government to amend this bill. As the member for Blair stated earlier, Labor reached out in good faith to the Minister for Immigration and Border Protection in November last year to request amendments to the bill. It is somewhat unbelievable that the request was ignored until just this week, when the member for Blair received a flat refusal to support parliamentary oversight of the minister’s non-compellable power to determine specified classes of people to revalidate their visa.

In accordance with part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011, the government has provided advice that it considers the bill, in its current form, is compatible with Australia’s human rights obligations. However, it is important to note that, in its ninth report of 2016, the Parliamentary Joint Committee on Human Rights raised the matter of the broad ministerial powers. The committee’s report stated:

As the power to prescribe the type of visa is unlimited, it appears that it could enable the minister to prescribe any type of visa … This measure therefore has the potential to engage a number of human rights, including Australia’s non-refoulement obligations, the right to an effective remedy, the right to liberty and the right to protection of the family.

The Minister for Immigration and Border Protection, who is here in the House, knows that I am on the record with many criticisms of some of the rhetoric that has been espoused by him in his portfolio responsibilities, and I have made the argument—it is part of our democratic debate—that I believe that he has been irresponsible and somewhat divisive in his conflation of immigration policy and national security. I also note and have said publicly that I think that there has been a protracted campaign of dog-whistle type politics undertaken in the media.

So, clearly, I am a critic of the minister and his attitude towards multiculturalism and the way that it influences immigration policy. But this debate is not where I think we should be discussing those types of criticisms, because, regardless of who is Minister for Immigration and Border Protection—whether it is Minister Dutton or another minister on either side of politics—the principle of using the discretionary powers given to the minister in this bill should be proportionate and commensurate with the stated policy objectives. This is a principle worth defending. In this case, we believe, that those powers are not proportionate and not commensurate with the stated policy objectives.

It is important for us as members of parliament to sustain and protect the checks and balances in our democratic system, the separation of powers and, specifically, the checks on executive power, which are critically important. And, in this instance, as I have said, we do not believe that these broad discretionary powers are proportionate to the more narrow objective of revalidating long-term tourism or business visas. In its current scope, it would permit the closure of a whole class of persons across many different visa classes, and this executive decision could be based on race, religion or country of origin. We believe that this is unnecessary executive overreach.

An important point to make here is that we all know that the minister already has a range of instruments under the Migration Act that allow the minister to cancel visas if there is any bona fide concern for the public interest or national security. In particular, section 501 already allows the minister to cancel a visa on character grounds; section 109 allows the minister to cancel a visa if the holder has provided incorrect information on their application or on their passenger card; section 116 allows the minister broad circumstances to cancel a visa where the minister is satisfied the decision to grant the visa was based on a fact or circumstance which no longer exists; section 134B allows the minister to undertake an emergency cancellation of a visa on security grounds through an ASIO assessment; section 140 provides that, if a visa is cancelled under certain sections, a visa held by that person’s family member or members may also be cancelled.

There is a stark contrast between Labor, we on this side of the House, and the coalition government that could not be more evident. I commend and concur with the comments our leader, Bill Shorten, made only last week, when he said:

Australia has had a non-discriminatory immigration policy for more than four decades. It’s made us stronger.

We don’t just tolerate diversity, we embrace it. We are the home of the fair go for all. All races, all faiths, all cultures.

And I wholeheartedly concur with the member for Blair when he said in this place that Labor will speak out against legislation that seeks to target people from certain regions, because Labor has never and will never agree to discriminate against people on the basis of their race, religion or country of origin—which this bill gives the potential for a current minister or a future minister to do.

Notwithstanding the aforementioned issues with the powers proposed by schedule 1 of the bill, I do emphasise that all of the other measures contained in this bill are consistent with Labor policy. Indeed, they are very much Labor policy, as I have outlined. We support the implementation of contactless automated technology for immigration clearance—referred to as SmartGates. This technology is estimated to achieve substantial savings to the Commonwealth, by reducing manual processing and creating a fast, seamless self-processing experience for up to 90 per cent of people entering Australia. The savings to be found in reducing compliance costs are estimated to be almost $33 million per annum.

As previously referenced, Labor also recognises the significant importance of promoting tourism from certain key global regions. I am proud of Labor’s record in government of investing in the infrastructure and legislative framework to deliver long-term growth in tourism. We have always ensured that tourism receives representation at the highest levels of government, sending a message around the cabinet table and around the world that tourism matters. We of course support returning tourism to the centre of government. Amongst our comprehensive suite of tourism policies, we have clearly pledged support for a 10-year multiple entry visa in order to remain competitive in the global tourism market and we support SmartGates to facilitate a better, faster and cheaper experience for people arriving at our border. So I do not want our isolated criticisms of part of this bill to reflect on those far more sensible elements of the bill before the House which we support.

But, while the bill does seek to make some sensible changes to the Migration Act, we must ask what has driven this government overreach beyond the basic objectives of the bill and to provide powers which have raised these concerns—concerns that were articulated by the Law Council of Australia in their submission to the Senate Standing Committee on Legal and Constitutional Affairs, where they said:

The Law Council queries whether the Bill is necessary, justified and proportionate to achieving a legitimate purpose.

After full consideration of all the current circumstances, I stand with my Labor colleagues on this side of the House to oppose the bill in its current form. And I echo the member for Blair’s call to the government to work with Labor in a sensible, bipartisan fashion to create a visa revalidation framework that is fair.