Labor will be opposing the Migration Amendment (Strengthening the Character Test) Bill 2019. It is unnecessary and ill considered and would carry with it concerning consequences if enacted into law. I would like to say that these consequences would be unintended ones, but the intransigence of the government in response to Labor's efforts to reach agreement in the national interest in respect of the matters that are the subject of this bill makes that hard to accept.
This bill tells us quite a lot about this government. In their seventh year they don't have a plan for Australia and so continually resort to using this parliament, to debasing this parliament, for their own narrow political purposes. It is extraordinary and shameful that Australia's Prime Minister, recently re-elected, would boast of setting tests for Labor rather than talking up his vision for our country. It's telling too that there isn't much worth talking about in that regard. The default setting of the Prime Minister and the Minister for Home Affairs is division.
While it's one thing to pick parliamentary fights with Labor, it's quite another to deliberately and consistently seek to generate fear and division. We saw this in question time today. This is unworthy. I believe Australians have had enough of this, especially when it comes to immigration and its relationship to our safety and security. There are plenty of things for us to argue about in this place—things on which our parties fundamentally differ. Let's argue about our differing visions for our country and not create needless conflict. Let me be very clear: there is no disagreement between Labor and the government when it comes to keeping our communities safe and national security. There is no substantive argument between us over the character test provisions in the Migration Act.
Whatever the rhetoric, the simple fact is that the government has not made the case for the additional powers contained in this bill—additional powers that have not been supported by anyone other than the government. In fact, the government haven't even tried to make the case, because it would appear that they are rather more concerned with cheap and nasty politics—using inflammatory language, generating misleading headlines and spreading fear—than getting on with serious responsibilities. Government members should reflect on this and on the signal sent by their obstinate refusal to engage with serious concerns and a genuine approach from Labor seeking to reach agreement on a pathway to realise what I believe are objectives that are shared across this parliament.
This bill is opposed by the New Zealand government, the Law Council of Australia, the Australian Human Rights Commission, the Federation of Ethnic Communities Councils of Australia, the Multicultural Youth Advocacy Network, the Refugee Council of Australia, the New South Wales Council for Civil Liberties, the Asylum Seeker Resource Centre, the Visa Cancellations Working Group, the UNHCR, Victoria Legal Aid and Oz Kiwi amongst many others. Outside of the government, it is supported by no-one.
This bill, which is in identical terms to the Migration Amendment (Strengthening the Character Test) Bill 2018, which was introduced into this House on 25 October last year, seeks to—
Ms Burney: Don't tell me they're trying it on again!
Yes, they are. It's another bill returning having not been properly considered. Maybe there's a reason for that, Member for Barton. This bill seeks to amend section 501 of the Migration Act so as to specify that a person does not pass the character test if they have been convicted of a designated offence, so they may have their visa cancelled or their application for a visa refused.
Labor strongly supports the existing character test provisions. They play a very important role in safeguarding community safety. I remind members opposite that in 2014 Labor supported changes to the Migration Act, introduced by the present government, that strengthened character test provisions and also introduced visa cancellation provisions. This included mandatory visa cancellation where a non-citizen is serving a full-time custodial sentence and has either been sentenced to a term of imprisonment of 12 months or greater or been found guilty of a sexually based crime involving a child. This support then reflected Labor's consistent and constructive bipartisan approach and commitment to the safety and security of Australians. This commitment continues, but it's not reciprocated, as I will go on to explain.
Labor has always been constructive and will similarly always strive to be bipartisan when it comes to questions of national security and of the safety of Australians. These are fundamental responsibilities of government which no-one in this place takes lightly, and it should not be lightly suggested that anyone does so. But the Morrison government is yet to properly justify the enactment of the provisions contained in this bill or, really, even to attempt to do so, and this is concerning. The Minister for Home Affairs today has very broad powers to act in order to cancel the visas of noncitizens who present a risk to the community or indeed to refuse a visa, and this is appropriate. But over the course of two Senate inquiries the government has not been able to identify what this bill would enable it to do that is not already provided for in the Migration Act in order to cancel a visa on character grounds. Indeed, the Scrutiny of Bills Committee stated that the explanatory materials for this bill had 'given limited justification for the expansion of these powers', whilst there has been a large body of evidence brought forward from a wide variety of stakeholders to the effect that this bill is unnecessary.
This is why the shadow minister for home affairs wrote to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, seeking to find a bipartisan way through. The letter restated Labor's strong support for the existing powers to cancel or refuse visas on character or criminal grounds under sections 501 and 116 of the act. It noted the existing discretionary powers of the minister enabling him or her to refuse or cancel visas of noncitizens on character grounds, including in circumstances where a person has not been convicted of a criminal offence. This is in the context of the bill presently before the House not adding additional criminal offences triggering automatic cancellation and following two Senate inquiry processes which have, on the one hand, failed to identify a rationale warranting the provisions proposed whilst, on the other, indicating significant problems in the form of the undesirable consequences I referred to earlier—which may have initially been unintended, but now that case cannot be maintained. So Senator Keneally, the shadow minister, proposed a sensible resolution in the national interest. It's disappointing but thoroughly unsurprising that this approach has been summarily rebuffed by the government, and this speaks to the real agenda of the government here. This is yet more 'wedgislation'—provisions introduced to serve not public policy purposes but rather a narrow political agenda.
I will discuss, briefly, those matters set out in our letter, because they go to the heart of our substantive concerns with the bill. We sought the agreement of the government to changes that deal with three concerning aspects of the present bill—namely, its retrospective effect, concerns regarding low-level offending, and those going to our critical relationship with New Zealand. None of these should have been in the bill. If they were removed, we would support its passage and enactment.
I will briefly outline Labor's concerns and our proposed solution to each of these issues in turn. On removal of retrospectivity, at the outset, let me say that this is not just a Labor or stakeholder concern. The Joint Standing Committee on Migration, when chaired by the member for La Trobe, now the assistant minister in the Home Affairs portfolio, formed the same view that we have. Recommendation 15 of the report entitled No-one teaches you to become an Australian: report of the inquiry into migrant settlement outcomes proposed mandatory visa cancellation following conviction for certain offences, but said:
… this should be accompanied by a caveat that no retrospective liability is thereby created.
That was the recommendation. But the provision contained in this bill would apply to people convicted of a designated offence at any point in their past, including people who've been in this country for decades and have no recent criminal history, including people previously determined to have passed the character test. This is a matter of serious concerns to stakeholders, in particular the government of New Zealand. The bill should be amended to remove retrospectivity, which is not warranted here, and the double jeopardy issue that comes with it.
The government should also deal with the issue we have raised, genuinely, of reducing the risk that low-level offending that does not currently rise to the level of the character test leads to visa cancellation. Other than through retrospectivity, the only way through which a person who is not presently in the prospect of discretionary visa cancellation, but would be following the enactment into law of this bill, is where the conduct, which is the subject of the designated offence, is at a level where it could not found a reasonable suspicion that the person is not of good character. This bill differs from the present act in that it seeks to replace an approach based on the sentence actually served with a new test applying if a person is convicted of an offence that carries a term of two years or more, regardless of whether the person in fact served such a term. This is not a proposal founded in evidence. It is not consistent with the existing definition of 'substantial criminal record' in the Migration Act. That is the approach that should continue to apply here. I urge members opposite, in making their contributions to the debate, to pay careful attention to the submission of the Law Council and the concern expressed that this proposal 'has the potential to undermine the sentencing power of the judicial system'. This is a very serious matter.
The third issue we have raised that the government should have regard to and resolve on reasonable terms is reviewing ministerial directions in relation to New Zealand. The Prime Minister in question time spoke about how important our relationship with our allies is. He spoke proudly about us getting on with managing our relationships in the national interest. This clearly isn't the case with New Zealand. Whatever the Prime Minister said, all of us in this House heard what the Minister for Home Affairs said about that relationship—he used the most contemptuous terms to treat our closest ally and all but nearest neighbour. If we care about our relationship with New Zealand, as I believe almost all of us in this place do, we do need to listen to the New Zealanders. They made a submission to the Senate committee, and the High Commissioner herself gave evidence and said this bill would make a bad situation worse for New Zealanders. This is noteworthy. This is an area of policy which impacts particularly on New Zealanders. Particular concern was expressed—and this is a matter that, again, we should all think hard about—about the prospect of cancellation of visas of those who arrived in Australia as children. The submission also noted that New Zealanders were uniquely affected as the only nationality that can reside definitely in Australia on temporary visas. It highlights very significant implications for individuals in this case—issues going to human rights. Prime Minister Ardern has described this question as being corrosive to the relationship.
This cannot be ignored, especially when, once again, this view is echoed not just by submitting stakeholders but when the Joint Standing Committee on Migration has delivered to the government a recommendation, this time in its report The report of the inquiry into review processes associated with visa cancellations made on criminal grounds, dealing with precisely this issue. So we requested of the minister that there be undertaken a detailed review of the relevant ministerial directions used for section 501 and section 116 cancellations, looking specifically at the impact of these cancellations on New Zealanders; in particular, that consideration should be given to a sliding scale in the directions to take into account the duration of time a person has lived in Australia and their connection to Australia. Of course, again, the government has ignored this constructive engagement. I'd like to say I found this surprising, but of course it's not. It's true to form for this government.
So I move the second reading amendment which has been circulated in my name. I move:
That all words after "That" be omitted with a view to substituting the following words:
"the House:
(1) declines to give the bill a second reading; and
(2) notes that the:
(a) Immigration Minister already has broad discretionary powers to refuse or cancel visas under Section 501 of the Migration Act;
(b) Government is yet to make a compelling case for the powers contained in this bill; and
(c) Government has not considered the wider impact of this legislation, particularly on Australia's important relationship with New Zealand and in light of the significant concerns raised about the disproportionate impact this proposed change will have on New Zealanders".
At a time when so many electors are so disenchanted with our politics we don't need unnecessary conflict in this place, which this bill, as presented, is. The government should have made a compelling case for expanding powers further. They should have set out a rationale, but they have failed to do so. They have failed to even try.
This has been all about the politics and not about the policy, and this has been demonstrated in the summary way in which the minister responded to the concerns and proposals put forward by the Labor Party to try to find a way through. There is no disagreement of principle here when it comes to the important role of the character test and the broad discretionary powers which are necessary to go with it. These are things that we support now, as we did in 2014. But what we have here is a failure by the government to have regard to the consequences of its actions and a failure of the government to look to the national interest in progressing significant legislation impacting on people's lives.
I urge honourable members to think carefully about the views expressed by submitters and stakeholders. I urge honourable members opposite to think about the matters set out in the second reading amendment, and I urge all members to reject this unnecessary and divisive legislation.