Division Description Changes — Regulations and Determinations — Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017; Disallowance — 5th Dec 2017

Change	Division
senate vote 2017-12-05#6 Edited by mackay staff on 2017-12-17 13:55:00	Title ~~Regulations and Determinations — Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017; Disallowance~~ Regulations and Determinations - Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017 - Disallow Description ~~<p class="speaker">Nick McKim</p>~~ <p>I was just expounding on the way that the current immigration minister has abused the broad-ranging powers that this parliament has, sadly, seen fit to already give him. Now he's in here again, in a massive overreach, asking for yet more powers. One of the powers that he is asking for in this instrument that we are seeking to disallow is a power around responding to a healthcare debt. You've got to remember, Mr President, that many of these people that we're discussing may have spent years in a detention system, or being persecuted in other countries, or living in Australia on insecure bridging visas or other temporary visas, including temporary protection visas. Once they get a modicum of stability in their life, they are going to be faced with these draconian new conditions that the minister is seeking to impose. That will underscore the already fragile nature of the temporary visa status and, as I said earlier, expose a person potentially to detention and incarceration at the discretion of an immigration department official.</p> <p>With regard to health debts, in this instrument there is a new condition: that many temporary visa holders should not have an outstanding health debt. This exposes a range of already vulnerable people to the risk of their visas being cancelled and them being thrown into Australia's onshore detention system if they get sick and cannot afford health care. We are proposing to provide the minister for immigration with the powers to detain someone who has had the misfortune of being sick and not being able to pay for health care.</p> The majority voted in favour of a motion to disallow [Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017](https://www.legislation.gov.au/Details/F2017L01425/Explanatory%20Statement/Text), which means they'll no longer have any legal force. ### What did the Regulations do? Greens Senator [Nick McKim](https://theyvoteforyou.org.au/people/senate/tasmania/nick_mckim) (Tas) [explained that](http://www.openaustralia.org.au/senate/?id=2017-12-05.125.2): *> This regulation which we are seeking to disallow would provide the Minister for Immigration and Border Protection with sweeping new powers on top of what the** Australian Greens already consider to be a far too broad range of powers, which have been exercised continually in an unreasonable way by the minister.* *> The changes that the minister is proposing to make, in broad terms, would allow the immigration department to detain people, potentially indefinitely, on the basis of criminal conduct that has not been proven or even tried, on the basis of behaviour that's considered by the department to have endangered or threatened another person extending, potentially, to bullying and online vilification,** and because of inconsistencies in people's names on identity documents issued by any Commonwealth, state or territory government authority or official, or failures to update any name changes in those documents.* See the [explanatory memorandum](https://www.legislation.gov.au/Details/F2017L01425/Explanatory%20Statement/Text) for more information about what these Regulations did. <p>I look around Australia and I've visited onshore detention centres. I've been to Manus Island many times, where Australia is destroying its international reputation with the significant and serious harms that we are deliberately imposing on already vulnerable people. I ask myself, 'What sort of country are we becoming? And why don't I recognise the Australia I grew up in today?' Well, it's because of powers like this, it's because of regulations like this and it's because of ministers like Mr Dutton that I don't recognise the country I grew up in and it's why so many Australians don't recognise the country they grew up in.</p> <p>This instrument should be disallowed by the Senate on the basis that it is overreach, on the basis that it is punitive and on the basis that it will impact disproportionately on some of the most vulnerable people in the country. I commend this disallowance motion to the Senate.</p> ~~<p class="speaker">Kim Carr</p>~~ <p>Labor will be supporting this disallowance motion. I repeat that we are willing to work with the government to strengthen Australia's visa program if there are gaps, but any measures that are advanced must be appropriate, must be proportionate and must uphold the criminal justice system. This regulation, however, is disproportionate and is a denial of natural justice. It raises the prospect of temporary visa holders being detained and their visas cancelled even though they have not been found to have committed an offence. The regulation broadens the reasons for which a person may be detained or have their visa cancelled and be deported to include a public health debt, behaviour not necessarily subject to criminal sanction, and other behaviour not covered by section 501 of the Migration Act, which is the character test, such as driving offences. The regulation also prevents some temporary visa holders from applying for a bridging visa E. It changes the eligibility for resident return visas. The regulation seeks to substantially increase the waiting time for eligibility to reapply for a visa if a previous application was rejected under Public Interest Criterion 4020.</p> <p>There's already a clear basis for deciding that a visa holder has forfeited their right to remain in Australia. The parliament has drawn the line and we say that should not be crossed. When a person fails a character test under section 501 of the act—that is, if someone fails a character test such as when they have a substantial criminal record, if they're found to not be of good character, if they've been given an adverse security assessment or if there's an Interpol notice from which it is reasonable to infer that the person is a risk to the Australian community—that is the basis upon which Labor has supported changes to the Immigration Act. Labor has offered its support to visa cancellations under section 501 if the person is serving a full-time custodial sentence or has been sentenced to 12 months or more of imprisonment or has been convicted of a sexually based crime involving a child. But, if the immigration minister reasonably suspects that a person does not pass the character test, he can use his existing powers to cancel a visa.</p> <p>On these particular measures, Labor have not been consulted. If we had been, we would have pointed out that the regulation significantly expands the reason for cancelling visas and for deporting people. It sets the bar so low that the average Australian citizen could fail to pass the test. Of course, no-one in the Labor Party is suggesting that visa holders must do anything other than obey the law. But that's not what this regulation is about. It says that if you behave in any way contrary to the views of the minister or of some departmental official, you face being placed in immigration detention and having your visa cancelled.</p> <p>New conditions under 8303 and 8564 are already applied in some visas, but they will now be applied to temporary visas, including temporary protection visas, and people who are on safe haven enterprise visas. While we say there is no place whatsoever for intentional fraud in Australia's visa program, the new public interest criterion 4020 penalises temporary visa holders who make a simple mistake on a form. They will be prevented from making another application for 10 years. This is simply unjust.</p> <p>The new visa condition in 8304 requires temporary visa holders to use the same name in all their dealings with government departments. Of course, people should use their real names and their identities. But the new condition doesn't provide flexibility to allow for the different ways Medicare or Centrelink or the immigration department respond to cultural naming practices. These differences can create inconsistencies that are not the fault of the visa holder.</p> <p>We accept that officers need to be able to act with discretion and with common sense, but community legal advocates and human rights advocates have repeatedly warned that, under this government, discretion is rarely applied when it comes to visa applications. In these circumstances alone, these broad measures should be treated with caution. The Refugee Council of Australia, refugee and advice casework services and the Federation of Ethnic Communities Councils of Australia have all raised concerns about these regulations.</p> <p>In Australia, we ask temporary visa holders to live by the rules as they are written, but when you have rules that are written in such a broad and unclear manner then these propositions go much further than one could reasonably expect. These measures allow people to be detained and deported and for their visas to be cancelled, even though they have not committed an offence. I think this is particularly important in a country that actually prides itself on upholding the principles of the rule of law and the principles of natural justice. We should not allow this to happen.</p> <p>Labor has confidence that, in the arrangements where the people who have been detained and deported under section 501, the cancellations have had the benefit of a fair hearing in the criminal justice system. This regulation, however, sends the message that the proper legal process need not count. This regulation sends that message that temporary visa holders do not have the protections of the safeguards that are provided by a proper rule of law. It creates a permanent class of temporary visa holders who are at all times extremely vulnerable. People are liable to be detained and deported even though they have committed no crime and have not been excluded on the character test.</p> <p>The new visa condition 8303, which can be applied mandatorily to most temporary visas, would mean that a visa holder could have their visa cancelled and face deportation without ever having been accused, charged or convicted of a criminal offence. The regulation's explanatory memorandum makes it clear that the behaviour does not have to be unlawful; it simply only has to be unacceptable or disruptive.</p> <p>We have a tradition in this country. A famous High Court judge said, 'It's not wrong to be an agitator.' Remember that famous expression? You might not like it, but we do not lock people up because they're unacceptable or because they're disruptive. We don't throw them out of the country on that basis, which is what these regulations would provide for. These are terms that are far too broad and far too undefined. In the hands of an authoritarian minister they could mean anything. You may well say that the current minister is not of that character—I would disagree with you, but you may well say that—but these are propositions that will stand the test of time, if they're accepted by this parliament, and that's the danger here.</p> <p>The memorandum lists some examples of 'unacceptable behaviour', and there is potential for a wide range of activities to come under the label. There is no guidance. They might include broad categories of activities that could endanger an individual. They could be comments made online about individuals. Temporary visa holders could be detained and deported for making comments on Facebook about the Department of Immigration and Border Protection or if an officer doesn't like criticism. It suggests that the regulation is less about protecting Australians than it is about protecting the political authorities of this country. I'm sure that, if the department was to look on Facebook on any day of the week, there would be any number of Australians who would fail the tests that are set by these regulations.</p> <p>We know that migrant workers in this country are exploited every day of the week. Despite the pious statements of the ministers in this government, we know how widespread the abuse of workers is in this country. We know how often it is that personal safety is at risk. We know, from evidence put before Senate inquiries, about the exploitation of temporary visa holders and we know of the serious and systematic shortcomings in the protections that are actually available at law. We know this government has done very little to change those circumstances.</p> <p>These visa regulations make the situation even worse. They make people more vulnerable to detention and visa cancellation if they complain about those circumstances, because they are the sorts of circumstances that could be alleged as 'disruptive'. Stakeholder consultation about these regulations demonstrate that the definition of 'disruptive behaviour' could include a visa holder participating in union activity. How could that possibly be justified as grounds for deportation? These are measures the Labor Party cannot support. They are very badly drafted, they are very poorly considered and, as has already been indicated, they have all the hallmarks of vindictiveness. They demonstrate a government that has lost its way on these matters. These measures are not appropriate to be on the statute books of this nation.</p> ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~Nick McKim~~
I was just expounding on the way that the current immigration minister has abused the broad-ranging powers that this parliament has, sadly, seen fit to already give him. Now he's in here again, in a massive overreach, asking for yet more powers. One of the powers that he is asking for in this instrument that we are seeking to disallow is a power around responding to a healthcare debt. You've got to remember, Mr President, that many of these people that we're discussing may have spent years in a detention system, or being persecuted in other countries, or living in Australia on insecure bridging visas or other temporary visas, including temporary protection visas. Once they get a modicum of stability in their life, they are going to be faced with these draconian new conditions that the minister is seeking to impose. That will underscore the already fragile nature of the temporary visa status and, as I said earlier, expose a person potentially to detention and incarceration at the discretion of an immigration department official.
With regard to health debts, in this instrument there is a new condition: that many temporary visa holders should not have an outstanding health debt. This exposes a range of already vulnerable people to the risk of their visas being cancelled and them being thrown into Australia's onshore detention system if they get sick and cannot afford health care. We are proposing to provide the minister for immigration with the powers to detain someone who has had the misfortune of being sick and not being able to pay for health care.
The majority voted in favour of a motion to disallow [Migration Legislation Amendment (2017 Measures No. 4) Regulations 2017](https://www.legislation.gov.au/Details/F2017L01425/Explanatory%20Statement/Text), which means they'll no longer have any legal force.
### What did the Regulations do?
Greens Senator [Nick McKim](https://theyvoteforyou.org.au/people/senate/tasmania/nick_mckim) (Tas) [explained that](http://www.openaustralia.org.au/senate/?id=2017-12-05.125.2):
> *This regulation which we are seeking to disallow would provide the Minister for Immigration and Border Protection with sweeping new powers on top of what the Australian Greens already consider to be a far too broad range of powers, which have been exercised continually in an unreasonable way by the minister.*
> *The changes that the minister is proposing to make, in broad terms, would allow the immigration department to detain people, potentially indefinitely, on the basis of criminal conduct that has not been proven or even tried, on the basis of behaviour that's considered by the department to have endangered or threatened another person extending, potentially, to bullying and online vilification, and because of inconsistencies in people's names on identity documents issued by any Commonwealth, state or territory government authority or official, or failures to update any name changes in those documents.*
See the [explanatory memorandum](https://www.legislation.gov.au/Details/F2017L01425/Explanatory%20Statement/Text) for more information about what these Regulations did.
I look around Australia and I've visited onshore detention centres. I've been to Manus Island many times, where Australia is destroying its international reputation with the significant and serious harms that we are deliberately imposing on already vulnerable people. I ask myself, 'What sort of country are we becoming? And why don't I recognise the Australia I grew up in today?' Well, it's because of powers like this, it's because of regulations like this and it's because of ministers like Mr Dutton that I don't recognise the country I grew up in and it's why so many Australians don't recognise the country they grew up in.
This instrument should be disallowed by the Senate on the basis that it is overreach, on the basis that it is punitive and on the basis that it will impact disproportionately on some of the most vulnerable people in the country. I commend this disallowance motion to the Senate.
~~Kim Carr~~
Labor will be supporting this disallowance motion. I repeat that we are willing to work with the government to strengthen Australia's visa program if there are gaps, but any measures that are advanced must be appropriate, must be proportionate and must uphold the criminal justice system. This regulation, however, is disproportionate and is a denial of natural justice. It raises the prospect of temporary visa holders being detained and their visas cancelled even though they have not been found to have committed an offence. The regulation broadens the reasons for which a person may be detained or have their visa cancelled and be deported to include a public health debt, behaviour not necessarily subject to criminal sanction, and other behaviour not covered by section 501 of the Migration Act, which is the character test, such as driving offences. The regulation also prevents some temporary visa holders from applying for a bridging visa E. It changes the eligibility for resident return visas. The regulation seeks to substantially increase the waiting time for eligibility to reapply for a visa if a previous application was rejected under Public Interest Criterion 4020.
There's already a clear basis for deciding that a visa holder has forfeited their right to remain in Australia. The parliament has drawn the line and we say that should not be crossed. When a person fails a character test under section 501 of the act—that is, if someone fails a character test such as when they have a substantial criminal record, if they're found to not be of good character, if they've been given an adverse security assessment or if there's an Interpol notice from which it is reasonable to infer that the person is a risk to the Australian community—that is the basis upon which Labor has supported changes to the Immigration Act. Labor has offered its support to visa cancellations under section 501 if the person is serving a full-time custodial sentence or has been sentenced to 12 months or more of imprisonment or has been convicted of a sexually based crime involving a child. But, if the immigration minister reasonably suspects that a person does not pass the character test, he can use his existing powers to cancel a visa.
On these particular measures, Labor have not been consulted. If we had been, we would have pointed out that the regulation significantly expands the reason for cancelling visas and for deporting people. It sets the bar so low that the average Australian citizen could fail to pass the test. Of course, no-one in the Labor Party is suggesting that visa holders must do anything other than obey the law. But that's not what this regulation is about. It says that if you behave in any way contrary to the views of the minister or of some departmental official, you face being placed in immigration detention and having your visa cancelled.
New conditions under 8303 and 8564 are already applied in some visas, but they will now be applied to temporary visas, including temporary protection visas, and people who are on safe haven enterprise visas. While we say there is no place whatsoever for intentional fraud in Australia's visa program, the new public interest criterion 4020 penalises temporary visa holders who make a simple mistake on a form. They will be prevented from making another application for 10 years. This is simply unjust.
The new visa condition in 8304 requires temporary visa holders to use the same name in all their dealings with government departments. Of course, people should use their real names and their identities. But the new condition doesn't provide flexibility to allow for the different ways Medicare or Centrelink or the immigration department respond to cultural naming practices. These differences can create inconsistencies that are not the fault of the visa holder.
We accept that officers need to be able to act with discretion and with common sense, but community legal advocates and human rights advocates have repeatedly warned that, under this government, discretion is rarely applied when it comes to visa applications. In these circumstances alone, these broad measures should be treated with caution. The Refugee Council of Australia, refugee and advice casework services and the Federation of Ethnic Communities Councils of Australia have all raised concerns about these regulations.
In Australia, we ask temporary visa holders to live by the rules as they are written, but when you have rules that are written in such a broad and unclear manner then these propositions go much further than one could reasonably expect. These measures allow people to be detained and deported and for their visas to be cancelled, even though they have not committed an offence. I think this is particularly important in a country that actually prides itself on upholding the principles of the rule of law and the principles of natural justice. We should not allow this to happen.
Labor has confidence that, in the arrangements where the people who have been detained and deported under section 501, the cancellations have had the benefit of a fair hearing in the criminal justice system. This regulation, however, sends the message that the proper legal process need not count. This regulation sends that message that temporary visa holders do not have the protections of the safeguards that are provided by a proper rule of law. It creates a permanent class of temporary visa holders who are at all times extremely vulnerable. People are liable to be detained and deported even though they have committed no crime and have not been excluded on the character test.
The new visa condition 8303, which can be applied mandatorily to most temporary visas, would mean that a visa holder could have their visa cancelled and face deportation without ever having been accused, charged or convicted of a criminal offence. The regulation's explanatory memorandum makes it clear that the behaviour does not have to be unlawful; it simply only has to be unacceptable or disruptive.
We have a tradition in this country. A famous High Court judge said, 'It's not wrong to be an agitator.' Remember that famous expression? You might not like it, but we do not lock people up because they're unacceptable or because they're disruptive. We don't throw them out of the country on that basis, which is what these regulations would provide for. These are terms that are far too broad and far too undefined. In the hands of an authoritarian minister they could mean anything. You may well say that the current minister is not of that character—I would disagree with you, but you may well say that—but these are propositions that will stand the test of time, if they're accepted by this parliament, and that's the danger here.
The memorandum lists some examples of 'unacceptable behaviour', and there is potential for a wide range of activities to come under the label. There is no guidance. They might include broad categories of activities that could endanger an individual. They could be comments made online about individuals. Temporary visa holders could be detained and deported for making comments on Facebook about the Department of Immigration and Border Protection or if an officer doesn't like criticism. It suggests that the regulation is less about protecting Australians than it is about protecting the political authorities of this country. I'm sure that, if the department was to look on Facebook on any day of the week, there would be any number of Australians who would fail the tests that are set by these regulations.
We know that migrant workers in this country are exploited every day of the week. Despite the pious statements of the ministers in this government, we know how widespread the abuse of workers is in this country. We know how often it is that personal safety is at risk. We know, from evidence put before Senate inquiries, about the exploitation of temporary visa holders and we know of the serious and systematic shortcomings in the protections that are actually available at law. We know this government has done very little to change those circumstances.
These visa regulations make the situation even worse. They make people more vulnerable to detention and visa cancellation if they complain about those circumstances, because they are the sorts of circumstances that could be alleged as 'disruptive'. Stakeholder consultation about these regulations demonstrate that the definition of 'disruptive behaviour' could include a visa holder participating in union activity. How could that possibly be justified as grounds for deportation? These are measures the Labor Party cannot support. They are very badly drafted, they are very poorly considered and, as has already been indicated, they have all the hallmarks of vindictiveness. They demonstrate a government that has lost its way on these matters. These measures are not appropriate to be on the statute books of this nation.
~~Long debate text truncated.~~