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Migration Charater Test

Senator HANSON-YOUNG (South Australia)

(20:40): I rise to speak to the Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011. After listening to Senator Cash's contribution, I am still unclear as to why the opposition are voting for this legislation. While I and the Greens have a very different reason for why we will not be supporting this legislation, the point was made very clearly by Senator Cash that the powers that the minister has spoken publicly about and that this bill would give him already exist within the current legislative framework. We know that he already has powers to ensure that people who hold convictions for serious criminal acts can be judged on that in terms of their character test when applying for permanent protection or permanent residency in Australia.


I struggle to see exactly why the opposition would support this bill, despite Senator Cash-with all due respect-spending the entire speech saying how the government does not need this particular piece of legislation. I agree: the government does not need this piece of legislation. I think it is simply for show. It is a knee-jerk reaction by the government of the day, in the aftermath of some pretty awful and horrific events in detention centres on Christmas Island and in Villawood, as to how to deal with the public concern about what was going on in immigration detention centres.


We know that the big problem within the current system is the length of time people are detained without access to information about their cases. They start to dwell, often leading to a deterioration of their mental health, of their feelings and, of course, of their hope that at some stage down the track their application process will be resolved.


The bill is unnecessary because the existing mechanisms within the act that enable visa refusal or cancellation on the basis of character are sufficient. They already exist. In the view of the UNHCR, the 1951 Refugee Convention provides the appropriate legal framework and parameters through which matters relating to a refugee's character should be considered by the country of asylum. Article 51 of the convention sets out an exhaustive list of grounds on which an asylum seeker can be refused protection. The Migration Act as its currently stands already enables the minister to delegate or to consider past and present criminal conduct in determining whether to exercise discretionary powers under the existing character test outlined in sections 501 and 500A.


Let's get some facts on the table. The laws already exist for the minister to do this. In the past four to five years the minister has used this particular section no more than three times. I take the point that Senator Cash made when she said that, under Minister Ruddock, some 500 applications for visas were cancelled. I think that probably says more about the government of the day and the minister-that is, the 'lock up the kids and throw away the key' minister, Philip Ruddock-than about whether the legislation is sufficient to deal with these issues.


The legislation is sufficient if you want to judge people's character based on their criminal history. We know that. People have been able to do that in the past. The minister could do that now. This legislation simply goes to punishing people-vulnerable people-twice over because of their situation. If somebody is in serious doubt of an individual's character or the minister does not believe that a person should be given permanent protection and residency in this country, the minister already has the power to make those decisions. The proposed amendments will impose another tier of punishment on a person in addition to the punishment imposed by the court.


Because we have an awful situation within the immigration detention system, because we have people acting out of pure frustration about their current circumstances, and because we have overcrowding and long-term detention-the detention of children; the detention of people behind barbed wire, including children, as we do at the moment with 300-odd people held on Christmas Island-this bill says that, regardless of what the court decides, the minister will make a second judgment. This bill will take the power away from the court and the minister will decide whether somebody, simply because of one minor offence, should be subjected to a lifetime of fear, uncertainty and anxiety. That is what this bill will do.


This is not a bill that should be introduced by a government that believes in the fundamental principles of law. This is not a bill that should be introduced by a government that understands the fundamental principles of human rights. This is not a bill whose passage a government should be asking for if that government fundamentally believes in our principles and obligations under the refugee convention. This government wants to ship people off to Malaysia-expel vulnerable men, women and children to a country that has not signed the refugee convention and that cannot guarantee their rights. This government is doing everything it can to undermine Australia's obligations to the refugee convention.


Existing criminal law is adequate to deal with the criminal acts committed in immigration detention centres. I totally agree that the people responsible for the destruction of property, the burning of buildings, the rioting and violence that we have seen in immigration detention centres need to feel the full force of the law. That is what the law is for; that is what the courts are for. Let them do their job. Since when should the immigration minister be above the courts? Since when should the immigration minister, simply because of the political will of the day and the knee-jerk jumping at the ghosts of John Howard and Philip Ruddock, think, 'Hang on a minute; I'm going to put in a law that says that my decision is going to be greater than the courts of this land'? That is what this legislation does. It does not follow that this piece of legislation would be upheld by a government that believes in the principle of justice and the principles of law. It is likely to hand down lifetime sentences that are absolutely disproportionate in terms of punishment for the offence committed.

The Australian Human Rights Commission submitted during the inquiry to this bill that:

"... people involved in disturbances in immigration detention centres may currently be prosecuted, convicted and sentenced under the Criminal Code Act 1995."


Any additional punishment is incompatible with the principles of Australia's democratic justice system. During the Senate inquiry into this bill, not only did the government try and push it through and give us only an hour and a half to inquire into this legislation late on Thursday night in the middle of a Senate sitting, but they did not receive one supportive submission to this piece of legislation except their own submission from the bureaucratic department. No-one else believes that this is a good idea. Speak to the legal experts: no-one thinks that this is a good idea. It undermines our basic principles of justice. It says that because this government is jumping at the ghosts of John Howard and Philip Ruddock-and we can see why; we can see the opposition jumping up and saying, 'You're not tough enough'-we have this government saying, 'We are going to start giving punishment above that of the laws and courts in our land.'


This bill proposes amendments that would breach our international obligations. We know that, as outlined by Professor Jane McAdam from the University of New South Wales, the existing character test regime under sections 500A and 501 already breaches Australia's obligations under international law because the scope and matters that are to be considered in refusing to grant a visa exceed the exhaustive grounds permitted under article 1F of the 1951 refugee convention. We already have these laws, they already breach our obligations and this government wants to extend them even further without any justification, without using the existing laws thus far, all simply to grab a headline to say: 'You know what? We can be as tough as John Howard and Philip Ruddock were.' Bollocks.


A refugee who commits a crime in this country should feel the full force of the law. No-one is suggesting that they should not, but the current laws allow for the minister to use that, to understand that and not to grant a visa if that is the case. We simply do not need something that extends this beyond the laws that already exist.


The way in which this bill has been designed-the way it looks and the impact that it has on individuals-is discriminatory towards detainees. We know that the Law Council of Australia noted:

"... the proposed amendments continue a legislative approach which treats people differently depending on their mode of arrival."


That is, of course, another breach of our international obligations. We should in this country, as other countries who are signatories to the refugee convention do, accept people's case for protection regardless of their mode of arrival. If somebody comes by boat, or if somebody comes by plane, the place from which they fled, their reasons for fleeing and their need for protection are not different simply because they came by boat rather than coming by plane.


This particular piece of legislation continues that abhorrent discrimination against people simply because of their mode of arrival-and I will tell you why. It is because people who arrive by boat in this country are automatically thrown into immigration detention. We know that the current process means that they are in immigration detention for longer. It is prolonged detention-indefinite detention for some, especially those who have arrived since 7 May. It actively discriminates against people who are in immigration detention and those people who have had to take the most desperate avenues to reach our country.


The amendments are solely for those in immigration detention, which disproportionately affects those who have arrived by boat, who are immediately placed into immigration detention. The amendment is focused on deterring:

"... detainees from engaging in disturbances in immigration detention, rather than the need to ensure all non-citizens arriving in Australia are of good character."


That is what the Australian Law Council said. The weight is not on whether people are of good character. The weight is on what happened to them, what they did and their behaviour while locked up for months and months and years on end. Of course that is going to disproportionately affect people who come here as asylum seekers and are immediately subject to our mandatory detention laws.


Do not believe for one second that this is about ensuring that we have people in this country of good character. It is absolutely not. It is about deterring behaviour that could simply be deterred if we did not have 6½ thousand people locked up in immigration detention centres in remote locations around the country and, of course, on Christmas Island. Amnesty International cites that failing the character test is not fair or reasonable punishment for criminal behaviour. Amnesty International further highlights that, unlike punishment in the criminal justice system, such as imprisonment, being denied a visa may have unquantifiable, ongoing, long-term consequences. Of course that is the case. Very vulnerable people who are subject to long-term detention, mental health deterioration, anxiety and confusion about their case do unfortunately do desperate things and take desperate measures.


The idea that anybody who is charged with any type of criminal activity, regardless of how big or small, should not be able to access the protection laws that our country has signed up to under the refugee convention not just undermines our obligations but undermines our ethos as a country for a fair go. It says that, regardless of the circumstance, we will automatically deny you protection simply because we lock you up and put you in a situation where you are so desperate that the only cry for help you can make is to sew your own lips together and cause disturbance-whatever the definition of that is-in the small, confined space that you have been locked up in for months and months.


This is not at all an honourable piece of legislation. These are very vulnerable people. These are very desperate people. I absolutely agree that if people are convicted of serious criminal acts then of course we need to be looking at their character. But the laws already exist for us to be able to do that. That is not what this piece of legislation is about. This legislation is saying that if you act in disturbance in an immigration detention centre, regardless of your personal circumstance, regardless of how long you have been there and regardless of the lack of service provision and access to independent support and advice that you have-who cares?-we are not going to let you into our country. We are not going to give you the protection of the convention that for some reason Australia's signature still sits on.


This government seriously has to start thinking about what it means to be a signatory to the refugee convention if it is simply able to be waved about or waived depending upon the domestic needs of the government of the day. That is not what the refugee convention is about. That is not what signatories to the refugee convention should be showing. Australia can do better than that. Australia should be showing the way in our region as to what a serious business being a signatory to the refugee convention is. When we start playing with our laws and saying that one minister should be above the courts of our land, we have a problem. If the courts want to give somebody a serious conviction, that should, of course, be taken into consideration. That is what the current laws allow.


If we simply believe in this place that, regardless of what the courts say, the minister can automatically deny people permanent protection or avenues to be able to apply for protection then why do we even bother to go to places like Malaysia to negotiate protection for individuals? We do not even know what that means. We totally undermine it. We are trashing our reputation in the international sphere because of laws like this which this government wants to introduce. We are trashing our obligations to the refugee convention, and it makes it very, very difficult for countries like Australia to argue that others in our region should sign up to the refugee convention when we do not even prove or show what that obligation really takes: commitment to human rights, justice, fairness and, of course, the rule of law.


This is a terrible bill, and the Greens will not be supporting it. I think the government has to seriously consider how far it wants to go simply to undermine our basic principles of law and access to justice, the principles of a democratic justice system and, of course, our international obligations. It is an appalling piece of legislation and it should not proceed. (Time expired)

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