Peter Dutton should not get Trump-like powers

My speech to the Parliament, opposing a government bill that was reminiscent of President Trump's Muslim ban.

Ms BUTLER (Griffith) (10:46):  This Turnbull government bill is reminiscent of President Trump's Muslim ban executive order, and that is why we are so concerned about it. It is a grave shame, because the balance of the bill contains very important changes which we are very supportive of, including the SmartGate technology, which the tourism sector would no doubt like to see passed sooner rather than later. It is a very great shame that the government has seen fit to include such a controversial provision in the visa revalidation schedule to this bill.

By that schedule, the Turnbull government is seeking to give the immigration minister the power to personally decide that a class of persons must have their visa revalidated. This bill does not contain any guidance on how a class might be described, and there is a lack of clarity about that. But, if you look at the bill, it seems that the minister could decide that all persons from a particular country, from a particular ethnicity, from a particular religion, must immediately be in a position to seek to have their visas revalidated. Of course, the effect, if the visa is not revalidated, is that there is a cessation of the visa. In deciding on issuing the instrument determining that a class of persons must have their visa revalidated, the minister has to decide whether the minister thinks it is in the public interest to do so.

There are two issues that arise from that. Firstly, it is not a question of whether it is actually in the public interest to issue this instrument deciding that a class of persons must be submitted to visa revalidation, but it is sufficient if the minister thinks it is in the public interest, which is a much more subjective way of triggering the power to create this instrument. Secondly, the test for the minister in making the decision about this is the public interest, which is a pretty amorphous and ill-defined concept. There is a situation where, if this bill were to be passed in its current form with this power included in it, the minister for immigration could personally decide to require that a specified class of persons complete revalidation checks. There is no power for the parliament to overturn that decision, no power for the parliament to change the terms of it. The only parliamentary scrutiny of this instrument created by the minister is that the minister has to lay it before the parliament, but they do not have to lay it before the parliament immediately. There are two periods at the end of each of the parliamentary half-years where these instruments are laid before the parliament so, if it is done in the first half of the year, you have to lay it before the parliament within 15 sitting days of 1 July; and, if it is done in the second half of the year, then, similarly, you lay it before the parliament subsequent to that.

This is a situation where we are being asked in a bill that should really only be dealing with the non-controversial and broadly supported measures to include a provision that would say to whoever happens to be the immigration minister at the time, 'Here is virtually unfettered power to decide that anyone in Australia on a visa—it does not matter whether it is a permanent visa or a temporary visa—who is from any given country must resubmit to a visa revalidation process.' You only pass the revalidation check on the basis of the minister's satisfaction—that is the test in the revalidation check provision. It is a question of whether the minister is satisfied that there is no adverse information about the person seeking to have their visa revalidated or, if there is adverse information, that it would be unreasonable for that information to be taken into account. This is another test in this set of provisions that turns on the minister's satisfaction, not on whether there actually is a pass or fail or by some objective standard, but whether the minister is satisfied as to whether the visa should be revalidated. If the visa is not revalidated, the consequence is that the visa ceases to operate and, ultimately, people will have to leave the country and not return until they have revalidated their visa.

This bill is purportedly about the 10-year Chinese visitor visas but, if you look at the revalidation provisions in schedule 1 to the bill, you will see that there is no reference to the 10-year Chinese visitor visas, nor to any specific class of visa. If you look at the words of the bill, rather than what the government has said outside about the bill, you will see that it is obviously intended that Minister Dutton would have broad power in relation to all classes of visa to call people up by class for visa revalidation.

This is a very different power from the types of power that have previously existed under migration law which have been directed to individuals—for example, the character test. The character test is about whether a specific individual meets the character requirements to obtain a visa and come into our country. This is a very, very different kettle of fish, because it says the minister does not have to have any particular individual basis for saying that someone's visa will have to be revalidated or they will lose their right to have a valid visa. It is just a class-based thing. In describing a class, a minister deciding—for example, along the lines of the US executive order from the now President Trump—might decide to choose, say, seven Muslim-majority nations and decide that everybody who was in Australia on any form of visa from any of those nations must submit to this process, where the default position is that your visa will cease, unless you satisfy the minister that it should be revalidated.

It also raises concerns about the broad powers to be conferred on the minister, the very limited explanation as to the purpose of those broad powers, the fact that the instrument by which this power would be exercised would not be disallowable by the parliament and the fact that there are already existing powers that can be used in the Migration Act to address some of the concerns that have been raised.

I think most Australians would not be particularly happy with the idea of any minister for immigration having that much power with such limited scrutiny by parliament and without any power by parliament to alter or overturn the decision that is made.

Of course, we understand that the government are interested in what it can do to ensure that there is scrutiny with respect to the 10-year China visitor visas, but that is not how they have drafted the bill. That is not how this bill has been drafted. Either they have misunderstood their own legislation or it is more likely to be the case that they have deliberately included in this bill a much broader power than has previously been represented to the nation and to members of this parliament. The opposition obviously have had some concerns about this.

Our shadow minister, the member for Blair, who spoke in this debate yesterday, has sought to engage with the Minister for Immigration and Border Protection in relation to the bill and the problems with it. He has reached out to the minister. He has done so following the Senate inquiries, where issues with this bill were highlighted. Unfortunately, the minister has not taken the opportunity to seek to work with Labor to, firstly, ensure that the noncontroversial aspects of this bill can be conveniently passed or, secondly, to respond to the genuine and serious concerns that we have about this wide-ranging and almost unfettered power that he wishes to have conferred upon himself. That, I would suggest, is not just an example of this minister's refusal to negotiate on the terms of this power; it is also quite irresponsible. I suspect that the tourism sector will be very disappointed by the minister's conduct in this regard.

It would have been very easy to split off schedule 1 from this bill and allow the other schedules to be passed. It would have been very easy to have the SmartGate expansion, for example, passed very quickly and very conveniently through this House, if the minister had done the right thing and worked with Labor to ensure that that happened. Instead, he has insisted on pressing ahead with this bill in the form in which it was drafted with this controversial, wide-ranging and potentially very oppressive power to discriminate against people based on a class definition conjured up by the minister on any basis whatsoever. That is a great shame.

It is a great shame that the government did not listen when these issues were raised in the Senate inquiry. It is a great shame that the government has refused to negotiate with the shadow minister. It is a very great shame that we are in a position now where we are genuinely having to have an argument about whether powers reminiscent of those being exercised by the now US President Donald Trump should be conferred on Minister Dutton. Those things are a very great shame. I know that my electorate would not want me to stay silent while such powers were being sought to be conferred on the immigration minister, the member for Dickson. My electorate would not support this idea that we should, as a nation, confer on a member of the executive the power to decide on any class of persons he likes and to then be able to cause significant detriment to people who happen to be members of that class.

I think my constituents expect the Labor Party, of which I am a member, to speak out against this sort of creeping executive power that could be used for oppressive purposes, and that is what I intend to do when I am here in this place. My constituents would not want to see that. We have all seen the press reports from LAX. We have all seen the press reports of the protests that are happening at the United States airports. We have seen the press reports of the courts being in a position to consider whether that particular executive order from the new administration is constitutionally valid. We have all seen the press reports of people who have been unable to get home to their families because of the travel bans that have happened in the United States. My constituents would not support those measures and they certainly would not support this idea that Minister Dutton should be given this virtually unfettered power to do things that are very much reminiscent of what is happening in the US at the moment.

Australia has had a non-discriminatory immigration framework in place for the last four decades. We should not be signing up to Trump-style immigration measures that give the minister this virtually unfettered power. So we are going to do what Minister Dutton should have done. We are going to move an amendment in the Senate to remove schedule 1 of the bill. We are very happy to work with the government to create a visa revalidation framework that is fair. In the meantime, we call on the government—and I repeat the call that the shadow minister has made—to work with Labor to get schedule 1 out, renegotiate it, and to pass the other provisions that are now being held up because of this government's inability to work across the aisle to negotiate and to find a way forward to get non-controversial legislation passed.

It is not just Labor that have concerns with this bill. I have really sought to emphasise why I believe this bill is so concerning in its current form with the virtually unfettered power being conferred on Minister Dutton. But there are significant stakeholders who have raised concerns about this bill through the Senate inquiry processes. The Migration Institute of Australia made submissions in which it reserved its full support for the bill due to concerns related to this exact power that we have been talking about today. The Kaldor Centre for International Refugee Law has made submissions raising concerns about it. They have said that they are concerned about the minister's power to decide that it is in the public interest that certain visa holders must complete a revalidation check and raised issues about the lack of definition of 'public interest', and about the extent to which this would give the minister discretion to impose checks on any number of visa holders.

The Law Council of Australia has also raised a number of concerns with schedule 1 of the bill—the schedule that Labor are very worried about—and those concerns include the fact that it does not seem to be either necessary or proportionate to the bill's intended objective, because the power that is being conferred on the minister has the potential to apply to all classes of visas not just the 10-year Chinese visas.

The ANU College of Law migration law program has also raised very similar concerns about the power proposed to be conferred upon the minister. They say:

The effect of making such a determination that bypasses parliamentary disallowance increases the potential harm the legislation can do to both individuals and to Australia's reputation.

You have seen what has happened in other countries that have imposed unreasonable migration bans on people from a particular country or ethnicity and what that has done to tourism and international education, which would, of course, be terrible for our nation too. Those are the concerns, and we hope that the government will work with Labor to resolve them.

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