Bills - Migration Amendment (Validation of Decisions) Bill 2017 - Second Reading


Senator IAN MACDONALD (Queensland) (18:12): The greatest challenge for any government in these difficult times is to ensure the safety of all Australians and people who come to Australia. For that reason, many decisions which in the past we as parliamentarians perhaps wouldn't have been enamoured with have to be looked at more closely. This is a case in point, because it is important that we know who is in Australia. For people who are not Australian, if they are criminals or involved in terrorist activities or activities that would harm Australians, the government must have the right to cancel visas and deport those non-Australians who are of this character.

I often wonder who the Greens political party represent in these issues of migration and citizenship. It seems that very often their support is for those elements of Australian society who most Australians would prefer not to be within Australia.

The Migration Amendment (Validation of Decisions) Bill 2017 was investigated by the Senate Legal and Constitutional Affairs Legislation Committee, and the committee tabled its report earlier today. The report is there for anyone to read should they wish to look further into this. The bill is a response to the High Court cases of Graham v Minister for Immigration and Border Protection and Te Puia v Minister for Immigration and Border Protection, which challenged the constitutional validity of section 503A of the Migration Act, which has been referred to by other senators.

The minister cancelled the plaintiffs' visas, referring to 'protected information' provided to him under section 503A of the act. These visas were then cancelled on the grounds that the plaintiffs failed a character test and that it was in the national interest to cancel the visas. The minister provided a statement of reasons which referred to certain information which is protected from disclosure under section 503. This bill is about reinforcing the validity of 503. As has been mentioned, both of the men in these court cases are members of motorcycle gangs, and they are currently in immigration detention.

Section 503A protects information from disclosure when it is provided to the Department of Immigration and Border Protection by gazetted law enforcement or intelligent agencies to support a section 501 character visa application or refusal, or a cancellation decision. Where protected information is provided to the minister to make decisions, section 503A(2)(c) of the act currently provides:

… the Minister or officer must not be required to divulge or communicate the information to a court, a tribunal, a parliament or parliamentary committee or any other body or person …

Clearly, this is about information upon which the minister makes his decision that comes to him from intelligence agencies and from specialised agencies who can give the minister information about the challenge to the safety of other Australians that these particular visa holders exhibit.

There were four submissions to the committee. The Law Council, for example, notes what the department highlighted in its submission to the committee—that this in no way impacts upon the merits review of the minister's cancellation. As the committee report says:

… the department submitted that the bill would preserve existing rights for relevant individuals to seek appropriate and fair judicial reviews of decisions to cancel their visas …

As the department said in its submission:

Persons who have had their visa cancelled, or visa application refused, on the basis of section 503A protected information will remain able to seek judicial review of their visa decision following the commencement of these amendments. The amendments will not affect any review rights afforded to noncitizens under law.

The amendments will maintain the status quo for individuals who have already had their case thoroughly assessed and considered under migration legislation. At the time of this consideration, these persons failed the character test and had no lawful right to hold a visa allowing them to enter or remain in Australia. They have had, and continue to have, access to judicial review of this decision and some of these individuals have challenged their cancellation/refusal decisions already.

I repeat: it is the principal job of governments of Australia, in this day and age, to protect the safety of Australian citizens and people lawfully here. It's a difficult job. It's never easy. But, if you're going to err, I think the Australian people would demand the government to err on the side of their protection and their safety, and the safety of their families and loved ones. As a result, the committee was satisfied that the bill is an appropriate, proportionate and timely strengthening of the Migration Act. Its provisions would maintain the integrity of Australia's visa framework by upholding decisions that have already been made to cancel or refuse visas for non-Australian individuals who have committed crimes in Australia and who may pose a significant risk to the Australian community in the future. The committee supported the explanatory memorandum's explicit acknowledgement that the bill is a proactive step to uphold existing decisions:

Through these amendments the Australian Government wishes to put beyond doubt that existing decisions to refuse or cancel visas under section 501 of the Act remain valid at law, notwithstanding their reliance on confidential information protected by section 503A.

The committee understood, in considering other concerns raised by the four submitters, that the bill would not affect the right of judicial review for any person negatively affected by a decision that was made referring to information provided under section 503A of the act. Furthermore, the committee noted that the department had clearly stated in its submission that the bill would not prevent a person's right to seek a merits review of a relevant decision to the extent that such review is provided for under the existing law. As a result of that, in its deliberations the committee has recommended the bill be passed. The Greens have, as they've mentioned, issued a dissenting report and a recommendation that the bill not be passed, but I think most Australians would want the parliament to endorse the government's action in protecting their future and the future of their families by cancelling the visas of people who are not Australians and who, really, should not be in Australia. They are not the sort of people that we want in our country.

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