Immigration and Border Protection

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February 09, 2018

Thank you for inviting me to speak at the Law Council of Australia’s Immigration Law Conference.

I’d like to begin by acknowledging that we are meeting on traditional Country of the Kaurna people of the Adelaide Plains and pay my respects to elders past and present.

Thank you to the Migration Law Committee of the Federal Litigation and Disputes Resolution Section for inviting me here today.

I’d like to acknowledge immediate past-President of the Law Council Fiona McLeod who, during her time as President, has been a fierce advocate – standing up for the rule of law, respecting the judiciary, advocating for lawyers and spreading the word about the invaluable work you do.

I want to take this opportunity to thank Fiona for her service, her time, and for refraining from billing me in 6 minute units each time my office called to ask for her advice.

I shudder to think what she could have charged me on her hourly rate.

I want to welcome the Law Council’s new President Morry Bailes who I met with in Canberra earlier this week. I look forward to working with him during the year ahead.

I’m sure Morry is especially appreciative that we are in his own hometown of Adelaide.

The Law Council of Australia has been instrumental in not only its advocacy, but also its work in submitting to, and testifying before, the Senate Standing Committee on Legal and Constitutional Affairs.

Migration law isn’t easy, but I don’t need to tell you that. 

Sometimes I feel like I’m back at the University of Queensland in the 1980s doing a crash-course in migration law.

Because of these complexities, Labor’s preference is to refer migration legislation – especially amendments to the Migration Act 1958 – to a Senate Inquiry.

This is to ensure both proper scrutiny of proposed legislative changes and that there are no unintended consequences.

Even though I was elected as the member for Blair in 2007 – representing Ipswich and the Somerset Region – I still remember fondly more than two decades practicing as a litigation lawyer eventually specialising in family law.

Now, as the Shadow Minister for Immigration and Border Protection, I am acutely aware of the legal intricacies associated with what is a politically-charged portfolio.

I am proud that Australia is a nation built on migration and I recognise 7.5 million people have immigrated to and called Australia home since 1945.

As the 2016 census shows, nearly half of all Australians were either born overseas or have one or both parents who were born overseas.

Our non-discriminatory migration program has helped create the vibrant, multicultural nation we call home today.

According to the Scanlon Foundation’s 2017 Mapping Social Cohesion Report, 85 per cent of Australians believe multiculturalism has been good for Australia and 63 per cent that “accepting immigrants from many different countries makes Australia stronger”.

One in three small businesses are owned by migrants and those businesses employ 1.41 million people across Australia.

Immigration is inextricably tied to a modern Australia.

My portfolio encompasses complex matters which have an impact on the lives of often vulnerable people.

With the Department of Immigration and Border Protection becoming the Department of Home Affairs, it is imperative that immigration does not get solely treated as an issue of national security.

Labor takes the security and safety of Australians with the utmost of seriousness.

Immigration is at the forefront of public policy and legislation – from ensuring the integrity of Australia’s migration program, to protecting our borders, and to overseeing our generous humanitarian program.

When it comes to migration legislation, Labor will not stand-by idly and let the rule of law be undermined.

We have opposed the Government when it has attempted to pass broad and overreaching legislation.

Labor opposed the Government’s attempt at passing its Lifetime Ban on refugees.

This legislation would have seen some former refugees who may have been living overseas in America for years from travelling to Australia for tourism, business, study or to visit family.

Similarly Labor will oppose the Government’s Code of Procedure Harmonisation legislation which would remove the requirement for the Administrative Appeals Tribunal to “act according to substantial justice and the merits of the case”, would limit applicants' access to documents being used to assess their case, and remove the right for applicants to request a translator to assist them giving evidence.

Labor opposed the Immigration Minister’s attempt to grant himself Trump-like powers with the Migration Amendment (Visa Revalidation and Other Measures) Bill 2016 and the Bill has now stagnated in the Senate.

The revalidation measures would give the Minister unfettered power to target whole groups of people for extra scrutiny and visa suspension through the revalidation process.

Late last year, Labor successfully opposed the Migration Legislation Amendment (2017 Measures No 4) Regulations 2017 in the Senate.

This Regulation would have set the bar so low for migrants that they could be detained and have their visa cancelled for exercising their right to protest peacefully or if they made lawful comments on Facebook the Immigration Minister did not like.

This week, I along with my colleagues, stood in the House of Representatives as Labor opposed the Government’s Migration Amendment (Prohibiting Items in Immigration Detention Facilities) Bill.

The Bill, if it passes the Senate, would allow the Immigration Minister to declare any item in Australia’s onshore immigration detention network as a “prohibited thing” by legislative instrument that is not disallowable.

The Minister’s decisions would not be subject to parliamentary scrutiny and, as your organisation highlighted in its evidence, the Bill as it is currently drafted could allow the Minister to ban not just mobile phones, but pens and pencils from immigration detention facilities.

There were 82 submissions to the Senate Inquiry, 80 of which raised concerns and opposed the Bill as it is currently drafted – including the Law Council of Australia’s submission.

Only one submission supported the Bill – the submission from the now-Department of Home Affairs.

The Senate Inquiry found the Bill in its current form gives the Immigration Minister unnecessarily broad powers, is poorly drafted, and has obvious, adverse, unintended consequences.

These have become recurrent issues in legislation drafted by this out-of-touch Government.

Labor will continue to stand up to this conservative Government and the Immigration Minister when they try to extend their powers beyond what is reasonable, proportionate and appropriate.

Growing up in Queensland under the Bjelke-Petersen regime, I know of the importance of the separation of powers and how it is fundamental to our democracy.

It is imperative that the community has respect for the judiciary and its independence.

Politically-charged attacks and criticisms only undermine confidence in the judiciary and the decisions they make – decisions made based on the law.

Any suggestion or thought bubble that might undermine that – such as the election of judges by a public popularity poll – deserves to be called-out.

Dog whistling and divisive language has not only been levelled at the judiciary, but also at particular Melbourne community groups.

Regardless of the target, the purpose and the subsequent outrage of these jibes are a cheap stunt that hurt the Australian community.

Comments like these don’t lead to evidence-based policy or legislation to address any problems our communities might face, and they definitely do not help in ensuring the public’s confidence in our legal system.

Labor has zero tolerance for gang-related crime and relies on the expertise, advice and evidence from our security and law enforcement agencies.

That is why Labor set up the National Anti-Gangs Taskforce in 2013, and will continue to invest in our law enforcement agencies to keep Australians safe.

As you know, there are real crime problems in communities across Australia and Labor has been and will continue to be tough on crime where it occurs.

Any claim otherwise – like those over the past two months – is pure politicking.

Labor strongly supports the cancellation of visas on character grounds under Section 501 of the Migration Act.

As you well-know, the Immigration Minister already has the broad powers to refuse or cancel the visas of non-citizens who don’t meet the character test – such as members of outlaw motorcycle gangs.

These powers are broad, apply regardless of a non-citizen’s age, and exist to protect Australians from harm.

Decisions made under Section 501 are too important for an Immigration Minister to get wrong or make “legal errors” as we have seen in recent, high-profile cases.

If the Immigration Minister suspects that a non-citizen does not pass the character test, or there is a risk to the community while they are in Australia, he shouldn’t sit on his hands.

He can, and should, use the existing powers available to him to cancel their visa.

We have seen Government backbenchers advocating for amendments to Section 501 of the Migration Act in the media and Senate inquiries without understanding these powers that already exist under the current legislation.

Labor is always willing to work in a bipartisan way when it comes to ensuring the safety of Australians, but any attempt to amend Section 501, must be done in an evidence, fact-based way rather than a grab for power by a Minister.

Members of the Turnbull Government have been quick to demonise certain communities, yet the same Government members have remained woefully silent on how they’ve cut the Australian Federal Police’s budget by $184 million over four years and an extraordinary 151 personnel from the Australian Federal Police this year alone.

I, along with my Labor colleagues, Shadow Attorney General Mark Dreyfus and Shadow Minister for Justice Clare O’Neil, are committed to working in a bipartisan way, and cooperatively with State and Territory authorities, to examine what further Commonwealth support, if any, might be required.

The current Turnbull Government has failed Australia’s migrant communities.

The Turnbull Government’s proposed citizenship changes that were defeated in the Senate last year were a brazen attempt to redefine how a person becomes an Australian citizen, under the guise of “strengthening” Australian citizenship.

The Government proposed both a university level English language test and were attempting to put in place a decade-long delay before people could make a commitment to Australia.

The changes would have undermined what modern, multicultural Australia means by creating an underclass of citizens.

I know Labor, and our Shadow Minister for Citizenship Tony Burke, will continue to fight for the interests of Australia’s future and our multicultural communities if there are any further attempts to undermine what it means to be Australian citizen again.

The Turnbull Government has broken their immigration promises – namely in regards to introducing a new temporary sponsored parent visa and a community sponsored refugee resettlement program.

Both measures were introduced as part of the 2017 Budget but are yet to have come into effect.

At the last federal election, the Liberals followed Labor’s lead and promised to introduce a new temporary parent visa.

There are large numbers of Australians who wish to be temporarily reunited with their parents who live overseas, especially if there are grandchildren who may not have had the chance to meet their grandparents.

Many of you will have represented these people in helping with their visa applications or through the appeal process.

The Turnbull Government said one thing at the election and then delivered something entirely different once they had won.

Despite saying before the election that children would have to pay a bond rather than a fee – the Government announced a fee of up to $20,000 if families chose the full 10 year option.

A new cap of 15,000 visas per year was announced and that the new visa would be limited to one set of parents per household – forcing families to choose which parents they were to reunite with.

As for the Government’s Community Support Programme, they have dragged their heels on their own proposal.

Despite being announced in the 2017 Budget, and “introduced” on 1 July 2017, the Government still haven’t announced Approved Proposing Organisations (APOs) which are needed to propose humanitarian applicants to resettle in Australia.

Community organisations and businesses are ready and waiting to support refugees to resettle in Australia, but their hands are tied until the Turnbull Government get their act together and appoint these organisations.

Labor believes any community sponsored programme should result in a net increase in Australia’s current intake of refugees.

If the Turnbull Government was serious about humanitarian resettlement, they would match Labor’s commitment we took to the last election to increase the annual humanitarian intake to 27,000 by 2025.

I know many people in this room have a keen interest in ways Australia can improve our record on refugee and humanitarian issues.

Increasing Australia’s humanitarian intake is one of the ways Labor, in Government, would ensure a compassionate approach to asylum seekers.

We believe Australia can do more to address the global humanitarian crisis, which sees an unprecedented 65.6 million forcibly displaced people worldwide.

Labor, in Government, would take a leadership role within South East Asia and the Pacific to build a regional humanitarian framework to improve the situation of asylum seekers.

As part of this, we took a commitment to the last Federal election to provide $450 million over three years to support the important work of the UNHCR.

Our humane approach to asylum seekers also includes:

  • Establishing independent oversight of Australia’s immigration detention network, appointing an independent children’s  advocate to represent the interests of children seeking asylum and legislating to impose mandatory reporting of child abuse;
  • Restoring the “90 day rule” to the Migration Act and work to have children out of detention as quickly as possible; and
  • Abolishing Temporary Protection Visas, which leave people in a permanent state of limbo.

Labor strongly supports the US refugee resettlement agreement but, I, like so many members of the Australian community, am disappointed the Prime Minister has failed to show leadership and accept New Zealand’s offer to resettle refugees currently in Manus Island and Nauru.

This generous offer from New Zealand – which has been on the table since 2013 – could take place whilst the U.S. refugee resettlement arrangements continue.

When the Government reached the US resettlement agreement, they negotiated conditions which made the Immigration Minister comfortable that the US agreement wouldn’t create a pull factor or an incentive to people smugglers. 

The Turnbull Government has refused to release the details of the agreement despite Labor calling for it on many occasions.

If the Government was able negotiate those conditions for the US deal, then surely the Immigration Minister should be able to negotiate similar conditions for any deal with New Zealand.

The Immigration Minister has attempted to make the Australian public believe the New Zealand option is a bad idea, or that it’s risky for Australia, but a recent ReachTel poll proved Australians aren’t buying it.

I note 58 per cent of Australians back New Zealand’s offer and only 19 per cent reject it.

Every time Peter Dutton lies about Labor’s strong position on border protection, he is a walking, talking billboard for the people smugglers to start their vile trade and he should be ashamed of himself. He should know better.

Labor’s policy on asylum seekers is clear – we will never let the people smugglers back in business.

We support strong borders, offshore processing, third country resettlement and boat turn backs when safe to do so.

I’ll say it again, Labor wants to see eligible refugees on Manus and Nauru resettled in third countries as quickly as possible.

Labor calls on the Prime Minister to ask President Trump to expedite the US resettlement process when he meets with him in Washington in two weeks’ time.

The Government needs to get moving on this deal as they have been in Government for five years.

For years now, the Immigration Minister has clearly failed at his job and now it’s time for the Prime Minister to show some leadership and prioritise negotiating third country resettlement agreements.

It’s not just on asylum seeker issues where this Government has stumbled.

The Turnbull Government’s rushed skilled migration changes in April last year, and sent shockwaves of uncertainty through the business, innovation and education sectors.

The Government failed to consult with stakeholders about these changes leading to uncertainty and unintended consequences – occurrences which have become far too common under this conservative Government.

Over the past year, I have had numerous meetings with affected stakeholders, expressing their genuine concerns over the changes, the way they were made and the way they have been treated by this Government.

The final changes to temporary skilled visas are due to occur before March and Labor is committed to ensuring any further changes face the proper scrutiny they deserve.

Only Labor has a plan to put local workers first.

Opposition Leader Bill Shorten, Brendan O’Connor – the Shadow Minister for Employment and Workplace Relations – and I have announced a raft of measures to ensure Australia’s skilled migration program isn’t being used to undercut local jobs, by-pass labour market testing and exploit vulnerable workers – regardless of whether they are Australian workers, working holiday makers or other overseas workers.

We will do this by establishing the Australian Skills Authority – an independent, labour market testing body that ensures temporary visas are only made available when a genuine skills gap cannot be met with local workers.

Labor will:

  • Establish a new SkillUP Training Fund with revenue raised from the fee increase to be used to fund Labor’s agenda in skills and training;
  • Close labour market testing loopholes and not waive labour market testing requirements for any new Free Trade Agreements; and
  • Introduce a new four-year visa SMART visa so Australia still has access to the best and brightest in Science, Medicine, Academia, Research and Technology for continued access to the best specialists to collaborate with their Australian counterparts. This will also provide a pathway to permanent residency for educators, innovators and researchers of global standing.

Only Labor will stand up to protect workers from exploitation and will oppose any legislation that could lead to the exploitation or abuse of workers.

It is unacceptable that in a country like Australia we are hearing stories about the appalling mistreatment and exploitation of migrant workers.

These are confronting stories which have detailed verbal and physical abuse as well as psychological and sexual exploitation.

Some working holiday makers are locked into paying overpriced accommodation and are then forced into working to pay off their accumulated, unfair debt by these unscrupulous employers.

The 2017 report “Wage Theft in Australia” found nearly a third of migrant workers were paid $12 an hour or less – well below the minimum wage – and half reported that they never or rarely received pay slips.

Our temporary work visa program must not be used as a backdoor way to source cheap labour or abuse workers.

This appalling and endemic wage theft is not only bad for migrant workers, but undercuts pay and conditions for all workers in Australia.

Labor has been disappointed by the inaction of the Prime Minister and Immigration Minister to take real steps to address these systemic examples of worker exploitation seriously.

Bill Shorten and Labor are committed restoring integrity to Australia’s skilled migration program and commit to building a skilled Australian workforce.

Skilled migration has its place in Australia, but locals should have the first shot at applying for a local job and that’s what our policy does.

We have already seen the Turnbull Government attempts at changing our citizenship laws, and there are signs they are looking to make other changes to Australia’s visa system and migration program.

The Government’s visa simplification discussion paper was released late last year and aimed at making substantial changes to Australia’s visa system – including reducing the number of types of visas available to 10 visas.

I would be concerned by any proposed changes that make it more difficult, or place unnecessary barriers, for migrants to call Australia their home.

I note 55 per cent of submissions to the Government’s discussion paper opposed the idea of a provisional visa prior to permanent residency.

Leaked Cabinet documents from November 2016 showed the Department of Social Services had raised concerns that the Government’s proposed visa simplification may create a two-tiered society or even potentially increase the risk factors that may lead to violent extremism.

Any changes to Australia’s visa system should improve its integrity and make the visa system easier to understand, rather than create unfair barriers or inequality.

Meanwhile, the Government has announced another discussion paper in December about managing Australia’s migrant intake.

The discussion paper admits “migration is an important policy lever for economic growth” and “getting the settings right depends on the quality and strength of evidence available.”

Labor strongly believes that any reforms to Australia’s visa system or migration program should rely on an evidence and fact-based argument.

That’s something I feel very comfortable saying in a room full of lawyers.

Any proposed changes to Australia’s immigration program must not undermine its strength – its non-discriminatory nature.

Labor is committed to genuine consultation and proper scrutiny of any migration law changes.

Labor will always stand up for the rule of law as well as the independence of the judiciary.

Labor will continue to work with the Law Council of Australia in making sure there are no unintended consequences of ill-conceived policy or poorly-drafted legislation by the current Government. 

I personally believe immigration will continue to be an integral part of Australia’s future and strength.

My door is always open and thank you again for inviting me to speak today.