Parliamentary speeches

Migration Amendment Bill 2021

May 12, 2021

I rise to speak on the Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 and the Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021. These bills are required to be enacted to address a pressing and very serious concern following some recent Federal Court decisions where it was found that, in effect, the Migration Act presently requires the department to remove a person in immigration detention where they do not hold a visa. The passage of the bills, therefore, is necessary to prevent the refoulement of people to whom Australia has recognised protection obligations. These bills and these decisions raise some important and, indeed, challenging issues, and some questions of balance and proportionality need to be struck.

The concern that has given rise to the need for this legislation relates to a cohort of 21 people who are presently in immigration detention who have all been found to be owed protection obligations but who have also failed to meet the criteria for a visa because they do not pass the character test or they have received adverse security assessments.

Labor supports the legislation before the House, having secured from the government some important amendments, including the second bill, the tabling notice of certain character decisions bills, and commitments which ensure that some of the consequential issues that we have been concerned about and stakeholders have raised as well are dealt with in a manner that is proportionate to the substantive and immediate question of preventing non-refoulement and the issues that that raises.

We believe these 21 individuals can't be returned to their country of origin, but they would also present some risks to the community or national security if they were to be released from immigration detention. Of course Australia has non-refoulement obligations under international treaties not to return individuals to situations where they face persecution, a real risk of torture or cruel, inhuman or degrading treatment or punishment, arbitrary deprivation of life or the application of the death penalty. As I don't need to tell you, Deputy Speaker Georganas, it is difficult to overstate the importance of such obligations. They are quite literally matters of life and death. It's also the case, and under the same international instruments, that Australia is not required to provide a visa to persons who engage protection obligations if there are compelling national security or public order matters that are also engaged. So these individuals prevent a significant challenge in terms of identifying a durable solution.

The impact of these court rulings put that into a stark set of circumstances where presently the only option available to the government to avoid refoulement would be to grant people a visa and allow them to stay, even though they fail the character test or have adverse security assessments. This presents us with an invidious and unsatisfactory set of circumstances. It would also be contrary to community expectations.

I know the government has contended the intent of the act was never to permit the refoulement of persons found to be owed protection. The principal bill we are debating now would amend the act to clarify that the Migration Act does not require or authorise removal of a person on character or national security grounds where that person has also been assessed as engaging refugee protection obligations. This is significant and important. The bill also provides additional options to resolve the ongoing detention of people in this cohort, including community detention with bail-like conditions, third-country options and ministerial discretion to determine that protection is no longer owed in circumstances where conditions that gave rise to the protection claim no longer exist. This raises some particular concerns which have been attended to since the bill was initially introduced.

It should also be noted that the provisions in the bill could also impact other individuals in the future who are held in immigration detention in Australia who engage refugee protection obligations, but only if they fail to satisfy the adverse character security assessment criteria for a visa. This is a real concern, but we must always remember that if this bill does not pass then people who are owed protection by us may be returned to countries where they face persecution. If the bill doesn't pass such people may be returned to a country to face persecution and perhaps death.

I am aware that my colleagues, the shadow minister for home affairs and the shadow Attorney-General, received some briefings from national security agencies in relation to the cohort directly affected by the legislation. I put on the record Labor's appreciation for the provision of these briefings, which has helped us in our consideration of the bill and the matters connected to it.

I will turn, briefly, to the concerns that we have expressed about the bill and how they have been addressed. From the outset, Labor has recognised that there are real concerns that the bill, including the new ministerial discretion, must be limited and exercised narrowly and appropriately, given the consequences at issue here. The powers to reassess protection obligations are significant and, as such, appropriate safeguards on the use of such a power are required. We welcome the minister's determination that where protection obligations are no longer engaged for a person this is to be subject to merits review. Given the significance of this power and the impact it may have on an individual, the right to merits review, not simply judicial review, is a very important, indeed a vital, safeguard in the circumstances. I recognise the government's agreement to this amendment as something that is very significant in our consideration of these matters.

We also note that the Parliamentary Joint Committee on Intelligence and Security will hold a statutory review of the bill's operation within 24 months of royal assent. Given the urgent requirement for the passage of the legislation, and the limited time for the committee's consideration, a request has been made for the PJCIS to undertake a statutory review of the amendments, and, indeed, their operation, within 24 months of royal assent. I note the government has agreed to this measure which will provide an appropriate opportunity to consider the impact of the amendments and the long-term detention impacts on the cohort, as well as to explore alternatives to indefinite detention—a matter of great concern to all of us on this side of the House, and to many in the community. As I said earlier, the matters before the House are complex, challenging and require a proportionate balancing of considerations. In the circumstances, this is an important consideration that will require ongoing review.

The government has also agreed to tabling measures which are implemented through the Migration Amendment (Tabling Notice of Certain Character Decisions) Bill 2021. This will provide that the minister will now be required to table a statement in the parliament within 15 days when the visa of a person to whom protection obligations are owed is cancelled, but where the cancellation does not meet some of the mandatory cancellation provisions in the Migration Act or be the subject of a national security assessment. The statement for tabling will be modelled on the existing regime that applies to intervention cases.

It's also the case that the minister will provide assurances that the legislation only has implications for the small cohort of detainees who enliven Australia's non-refoulement obligations. Labor has been assured, including through the explanatory memorandum, that this is the intent of the government. Labor has also sought, and received, assurances from the government that this cohort receives ombudsman assessment under section 486O of the act and that the ombudsman requires an assessment of the appropriateness in the arrangements of detention for every person who has been in immigration detention for more than two years, and every six months thereafter, with a copy of this to be tabled in the parliament. These reports are also an important oversight measure for immigration detention, along with the other powers of the ombudsman, including investigating complaints, own-motion investigations and inspections of immigration detention facilities.

I would like to acknowledge the minister and his office for the way in which they have worked constructively through the issues that we have raised with them, and enabled this matter and the issues that we have brought forward to be resolved in a manner that we regard as satisfactory. Now, these provisions aren't necessarily the way in which Labor might have approached these issues, but we recognise they are a response to a very real issue with very real impact on people's lives, and, indeed, on Australia's international obligations. The choice here is quite stark. We must act if we are to prevent refoulement. We will continue to pay close attention to the operation of these provisions and the issues that have given rise to them, but we support the bills in the context I have outlined.