ADDRESS TO THE LAW COUNCIL OF AUSTRALIA IMMIGRATION LAW CONFERENCE 2020 - MELBOURNE

06 March 2020


I acknowledge the traditional owners of the land on which we meet, and pay my respects to elders, past and emerging.
 
As the High Court recently affirmed, Australia’s First Peoples have a unique connection to the land and waters of Australia, and we await the day that our nation’s founding document – the constitution – recognises this land’s indigenous people.
 
I thank the Law Council of Australia and its Migration Law Committee for inviting me here today – particularly the chair of the committee, Georgina Costello, as well as David Prince and Joanne Kinslor for organising the conference.
 
I would like to acknowledge in the room:
        • Former Anti-slavery Commissioner of the UK, Kevin Hyland OBC,
        • NSW acting Anti-slavery Commissioner, Jennifer Burn; and
        • Federal Circuit Court Judge Riethmuller.
 
Last Sunday night, as Members of Parliament and Senators descended on Canberra and arrived at their home away from homes, a mini-series – a drama – called “Stateless” premiered on the ABC.
 
The show features a wonderfully talented cast including Fayssal Bazzi, Yvonne Strahovski, Cate Blanchett, Asher Keddie, Marta Dusseldorp and Dominic West, amongst others.
 
It told a story many people who now call this country call home have been through.
 
A story that seemed all too real.
 
It was a story about immigration detention.
 
I will say – immigration detention is part of migration system and it always will be.
 
It’s a form of an administrative detention that’s used to control non-citizens or facilitate their return to their country of origin.
 
From visa overstayers to hardened criminals, immigration detention rightly has its place as part of our migration system.
 
At the same time, our immigration detention network has often been a place of secrets and sometimes treated as a place of punitive – rather than administrative – detention.
 
There are some people being held for upwards of 10 years, even indefinitely, in Australia’s immigration detention network.
 
It’s one of the many facets of our immigration system which the public rightly questions – particularly when faced with lacking transparency or concerning allegations.
 
It is similar to how 10 kilometres away from here in the Mantra Hotel in Preston, there are currently close to 60 asylum seekers and refugees being held there.
 
Part of the hotel is a now Alternative Place of Detention – or an APOD.
 
It’s detaining people who were once in either Nauru or PNG and have been transferred to Australia for temporary medical treatment.
 
In an ideal world – or, at least, one in which Tony Abbott hadn’t shelved the New Zealand resettlement deal – these people would have already been resettled in a third country by now.
 
Instead, they have been moved from one form of migration limbo to another – being stripped of decency, dignity and the opportunity to determine their own futures.
 
These examples aren’t news to anyone in this room.
 
And they are just some facets of Australia’s incredibly complex and dynamic migration system which is facing the consequences of serious and significant neglect under the current Government.
 
The current Government has been in power for the past 7 years and they are responsible for the administration of, as well as any amendments to, Australia’s migration law.
 
I say this not to make a partisan point but to rather provide context to the issues that I am going to raise.
 
These issues – these failures – go to the heart of immigration law in this country and how the failures of the current Government impact the lives of real people.
 
These issues also impact you as immigration lawyers.
 
The most obvious example and a concern for many in this room is the Migration Amendment (Regulation of Migration Agents) Bill 2019.
 
I will make clear for the beginning – Labor supports this legislation and hopes the Government seeks to pass it through the Parliament expeditiously.
 
Even Government Senators recommended, quote, “the Senate pass the bills without delay” in the report from the Senate Standing Committee on Legal and Constitutional Affairs.
 
The first iteration of this legislation was introduced in June 2017 and – despite having bipartisan support – the Government failed to pass it.
 
This delay in abolishing the dual regulation of immigration lawyers rests squarely at the feet of Minister Peter Dutton – as well as the many other Immigration Ministers and Assistant Ministers.
 
No less than six Ministers or Assistant Ministers have had carriage of this legislation.
 
This is a piece of legislation which stemmed from recommendations made in 2014 – recommendations made three Prime Ministers ago.
 
In fact, the current Prime Minister was the Immigration Minister when the OMARA review – the catalyst for this legislation – was being undertaken.
 
It should come as no surprise that there were 8 pieces of migration legislation the Minister for Home Affairs failed to pass in the last Parliament.
 
They sat on the notice paper for an accumulative of 3749 days.
 
Naturally, Labor did not support all of these pieces of legislation – and rightly so given the nature of some of the measures included in them.
 
Some of these bills have been reintroduced to the Parliament since last year’s election and are now before either the House or the Senate – where, if future parliamentary sitting weeks are anything like the four weeks we have endured this year, they may well continue to stagnate much like their predecessors.
 
The Government – who are in their seventh year – not only lack the ability to negotiate or progress legislation, but fail to have a plan for Australia.

Even the supposed plans they so enthusiastically spruik – such as their plan to encourage regional migration through provisional permanent visas and Designated Area Migration Agreements or DAMAs – are in disarray.
 
The Government’s two new visas – the Skilled Work Regional (Provisional) visa and the Skilled Employer Sponsored Regional (Provisional) visa – opened for applications on 16 November 2019, some three months ago.
 
Despite this, the supporting legislation for these visas – particularly amendments to ensure that new permanent migrants can access appropriate social safety nets – is yet to pass the Parliament six months after being first introduced.
 
As for DAMAs, despite these regional agreements being heralded as the solution for Australia’s regional migration woes – as of 31 December only two visas in the entire country had been granted under the Government’s new agreements.

Two visas across six agreements.
 
When it comes to immigration law in Australia – The Government is stuck between inaction and ignorance.
 
On one hand – this is a Government without the ability to pass migration legislation, even if that legislation has bipartisan support.
 
On the other – you have a Government, and a Minister, willing to ignore the symptoms that are presenting themselves when it comes to the abysmal health of Australia’s migration system.
 
Since I became the Shadow Minister for Home Affairs, I have sought to challenge the current Minister’s track record.
 
Whilst talking points may be a strength of Mr Dutton’s, his ability to oversee the Department of Home Affairs and his inability to arrest the emerging problems is plagued with incompetence.
 
Some people have questioned the topics I have brought to the fore – including some I will touch on here today – but, as the alternative Government, with me as the alternative Minister, it is my job within Labor to hold these failings to account.
 
The health of Australia’s migration system is dire.
 
As of 31 December, there were over 216,000 people on bridging visas in Australia – the majority of whom would be waiting for the Department of Home Affairs to process their substantive visa applications.
 
This has almost doubled since Labor left office in 2013.
 
The processing time for 90% of partner visas is currently at an astonishing 31 months.
 
That’s over two-and-a-half years Australian citizens are waiting to progress in their lives with their partners, husbands or wives.
 
There are currently 180,000 people in that position – over 90,000 Australians and 90,000 of their respective partners – in a state of migration limbo.
 
Our permanent migration intake has been reduced by the current Government whilst the number of temporary migrants in Australia continues to swell – an issue I addressed in a recent speech to the John Curtin Research Centre.
 
There are over 62,000 visa overstayers in Australia – and I doubt that Mr Dutton knows where all of those non-citizens are.
 
All these migration matters are only complicated further by the caseload at the Administrative Appeals Tribunal.
 
As of 31 January, there were over 66,500 cases before the Migration and Refugee tribunal of the AAT.
 
Case dates are currently being listed for 2022.
 
This ever-growing backlog is not going to improve with ignorance or incompetence.
 
These symptoms affect you, they affect your clients and they affect Australia and the fabric of our society.
 
Whilst the Government professes their “strong borders” rhetoric, one of the starkest red flags in our migration system is the number of people arriving by airplane and claiming asylum in Australia.
 
There's nothing wrong with claiming asylum – it's an important legal, and human, right.
 
However, in the past five years, over 100,000 airplane arrivals have claimed asylum.
 
By the Government’s own admission, when processed, 90% of claims such as these have been found to be unmeritorious.
 
The stress that these arrivals are placing on the migration system – particularly the appeals system – are wide-reaching.
 
Over 1,900 people arrived in January and claimed asylum.
 
In the same period, the Department of Home Affairs only finalised 795 protection applications.
 
On top of this, the number of people in Australia who have been found not to be owed protection and have to be deported is nearing 50,000.
 
On those statistics alone, it is clear to see how this issue will continue to spiral out of control.

New Questions on Notice reveal how the online lodgement of tourist visas for Chinese nationals – which was introduced in February 2017 – has led to a surge in the number of people arriving by air and claiming asylum by close to 700%.
 
In the 12 months after online lodgement was introduced, 7,304 Chinese nationals on tourist visas made claims for asylum. 
 
By comparison, in the 12 months prior to online lodgement being introduced only 1,060 Chinese nationals on tourist visas made claims for asylum.
 
In total, between February 2017 and September 2019, 13,462 Chinese nationals on tourist visas have claimed asylum in Australia.
 
Now this is not an issue of a person’s nationality – it is about the integrity of our migration system – and an insight into how backlogs have grown so quickly.
 
Claiming asylum is an important right that we need to uphold, and you play a vital role in supporting that right. But an overloaded system that discourages or delays genuine claims disadvantages all asylum claims.
 
As the backlog grows, so does the honeypot for people – or people smugglers – to facilitate travel to Australia for the specific purpose of having an extended stay in our country, often to access the labour market.
 
As that continues, along with the wilful ignorance on the part of the Government, the exploitation of these vulnerable people – a developing economic underclass – will only continue to grow.
 
Plain and simple – this is a work scam.
 
But the real exploitation comes when workers are sent out – sometimes ordered – to dodgy labour hire companies facing pay as low as $4 an hour, physical or sexual assault, extortionate costs for food and accommodation, and curtailed movement as their passports are withheld.  

It’s no better than indentured servitude. In a lot of cases, it’s worse.
 
Despite Peter Dutton’s claims this is a “red herring” – those were the exact words he used – even the Australian Federal Police have raised alarm.
 
On Wednesday, the Herald Sun reported of people who are being held as sex slaves, locked in illegal brothels here in Melbourne and being forced to pay off debts.
 
The illegal brothels – as opposed to legal ones – are being run out of massage parlours, apartments and houses, smuggling, or trafficking workers from overseas.
 
According to the article, operators pay up to $10,000 for women to come to Australia, mainly from countries including Vietnam, Thailand, China and South Korea.
 
AFP Detective Superintendent Jayne Crossling told the Herald Sun, and I quote:
 
“They have questionable visa status. They are often tricked into thinking they do have a legitimate visa when they don’t. In many instances they are not free to move.”
 
This is happening here – in this very city – potentially mere blocks away from here.
 
Some of the most significant impacts of exploitation can be seen at a local level.
 
Not only are local farmers faced with severe labour shortages – or the risks of hiring illegal workers – local governments are now equally being faced with confronting situations.
 
Early this month in northern Tasmania, close to 70 people participating in a legal season worker program were found living in a five-bedroom house.

The “dormitory style” accommodation was uncovered by the local council with the people living, unsurprisingly in quote, “slum-like conditions”.
 
I don’t think parents putting a bunch of grapes in their child's lunchbox that they bought at Woolworths, Coles, or Aldi, contemplate the fact that those grapes were picked by a nineteen-year-old exploited French backpacker.
 
Or that the tomatoes used to make pasta sauce for the family dinner were picked by a Taiwanese national who has had their passport confiscated by a dodgy labour-hire firm and is being held in slavery-like conditions.
 
These aren’t rare situations; they aren't occasional. They are stories I hear every day.
 
If this is what is happening under the Morrison Government through their legal visa programs – imagine what is taking place under the cover of the darkness and dodginess of illegal operators.
 
It’s clear the Morrison Government has no plan to stop the spread of exploitation of temporary workers and the slavery-like conditions that have become all too common across Australia.
 
This exploitation, as well as airplane arrivals claiming asylum, are some of the topics that will be covered in the Select Committee on Temporary Migration which Labor successfully established in the Senate.
 
The inquiry is looking at the impact temporary migration has on the Australian economy broadly – including wages and jobs, social cohesion, and workplace rights and conditions. 
 
The inquiry – which is currently taking submissions – is due to report in December, and I expect recommendations to address issues such these and airplane arrivals. If you haven't made a submission – I urge you to.
 
In the interim, it’s incumbent on the Morrison Government to try and stem these arrivals because a failure to do so will only add to the intractable caseload.
 
The Government could look to properly fund and resource the interagency taskforce responsible for addressing these concerns – Taskforce Cadena, invest in more Airline Liaison Officers in overseas airports to detect people who aren’t travelling to Australia as genuine temporary entrants or look for identity management improvements. 
 
Australia is not the first country to encounter these problems. Germany and the US have both faced similar challenges and took pragmatic steps to resolve particular backlogs, while also stemming the trafficking of people into their labour markets.
 
The Government may attempt to respond with crass or callous measures such as banning onshore asylum claims form certain countries, rolling out widespread immigration detention – a proposal the current Prime Minister previously raised in Cabinet as the Immigration Minister – or reducing the Government humanitarian intake while processing a self-inflicted backlog.
 
These won’t work and would undermine people’s legal rights and have corrosive effects on our migration system or humanitarian program.
 
I warn of the Government’s potential overreach when it comes to legislative or policy responses because you only have to look at their track record.
 
The current Minister for Home Affairs will always look for blunt measures to address issues within the migration system.
 
You only have to look to the Government’s Migration Amendment (Strengthening the Character Test) Bill 2019.
 
As you well know, under the Migration Act the Minister can already cancel the visas of non-citizens and deport foreign criminals.
 
This includes people convicted of serious crimes involving violence, sexual offences, weapons offences, breaches of AVOs, and offences against women and children.
 
In fact, these extremely broad discretionary powers that already exist mean foreigners do not even need to spend a day in jail or even be convicted of a crime to have their visa cancelled.
 
In 2014 Labor, in opposition, supported the amendments to the Migration Act because we believed these were necessary provisions to keep the Australian community safe.
 
I am constantly bemused by this Government’s approach – blaming Labor – for programs introduced and administered by the former Immigration Minister, Scot Morrison, and the current Minister for Home Affairs, Peter Dutton.
 
The administration of this program is very poor, yet somehow Labor is to blame.
 
One of those areas is how the current Government have managed the operation of the laws with our close friends in New Zealand.
 
I respect New Zealand Prime Minister Jacinda Ardern for taking the opportunity to raise her concerns, and the concerns of her country.
 
You would expect Australia to do the same if we had concerns about a law in New Zealand.
 
Ms Ardern raised concerns because these laws have impacted more New Zealanders than any other nationality – and often those New Zealanders have spent the majority of their lives in Australia, sometimes since birth.
 
The Government’s proposed legislative measures to “strengthen” the Migration Act does not change the fact the Minister already has the power to cancel visas under Sections 501 and Section 116 of the Migration Act.
 
The proposed legislation does create significant unintended or undesirable consequences – including significant damage to Australia’s relationship with New Zealand.
 
The retrospective nature of the proposed legislation means the Minister could reach into the past of a 70 year old Australian permanent resident and cancel their visa for a low-level offence which occurred when they were 16 years old.
 
These concerns – as well as the fact that a person could have their visa cancelled for something as trivial as a conviction of assault for grasping a person by the sleeve – are just examples why the Parliament, and in particular the Senate, must always scrutinise the laws this Government puts forward.
 
It’s why I will always hold Mr Dutton to account.
 
Ever since the Minister for Home Affairs’ personal intervention to grant visas to two au pairs the discretionary powers of the Minister, as well as the Immigration Minister, have been thrust into the public spotlight.
 
Once described as “god-like” powers by former Labor Immigration Minister Chris Evans, Ministers within the Home Affairs and Immigration portfolios have had the ability and discretion to intervene in individual cases.
 
These are important provisions within the Migration Act which I believe should exist.
 
Yet it’s their often opaque and sometimes mind-numbingly inconsistent operation or use which I know raise concerns for those in this room.
 
I will say we are seeing a somewhat concerning emerging trend where it takes personal stories to escalated in the media for the Home Affairs Minister, or Immigration Minister, to be compelled to respond.
 
I know cases like this will always be covered by the media because, much like the ABC’s TV show Stateless, they tell real stories about real people.
 
However, I would like to think that each of the ministers under the Home Affairs portfolio – and I know there has been a number of them with shifting responsibilities under the current Government – would be capable of doing their job, reading their briefs and treating cases with the considered care, focus and compassion that Australians would expect of a Minister with “god-like” powers.
 
And despite the Minister possessing the powers to intervene right now, we still see a family – including two young girls – continuing to be detained by this Government on Christmas Island whilst their case drags on in the courts and their local community in Biloela, Queensland just wants them to be returned home.
 
The Biloela Family are just some of the Legacy Caseload in Australia.
 
The cohort of asylum seekers who arrived under the previously Labor Government live within communities across Australia, particularly communities here in Melbourne and Sydney.
 
As of January, the Department of Home Affairs still have close to 6,500 cases on hand or at review – the significant majority of which are for Safe Haven Enterprise Visas (or SHEVs).
 
Over 17,000 Temporary Protection Visas (TPVs) and SHEVs have been granted so far – and yet the real problem is going to arise when these visas expire after three or five years respectively.
 
Some of the first TPVs granted are already being renewed – and the rest of the cohort will follow.
 
According to the Incoming Government Brief provided to the Minister for Home Affairs and obtained under Freedom of Information laws, these people will not have access to any form of legal assistance when their renewals are due.
 
Many immigration lawyers – including those at the Refugee Advice and Casework Service (RACS), who do fantastic work – are concerned how these renewals will be treated and triaged by the Department of Home Affairs.
 
John Coyne from the Australian Strategic Policy Institute has described the Legacy Caseload as, and I quote:
 
“a political time bomb to which the policy response has been slow. The option of removing families that have grown community connections over several years is heartbreaking for all involved as well as expensive.”
 
Many of these people have been in Australia for upwards of 10 years, living in community and already been found to be owed protection. They are refugees.

Yet still, here is the current Government forcing vulnerable people to re-live the trauma of the lives they have escaped or been forced to leave behind.
 
Whilst you may not always represent asylum seekers, I do hope when the Migration Amendment (Regulation of Migration Agents) Bill I spoke of earlier becomes law, will allow more lawyers to perform pro bono migration law work for some of the most vulnerable in our society.
 
I am sure you will agree with me that quality, fair, and efficient legal representation is one of the pillars of our justice system – and it should be treated with equal regard when it comes to migration law.
 
Much like the Morrison Government’s neglect our migration system, it has failed to adequately stand up against racism rearing its ugly head in our country.
 
At a time when anti-Semitic attacks have risen 30%, violent attacks of people of an Asian appearance or the Muslim faith have occurred in suburbs across Australia, and ASIO has declared right-wing extremism a threat capable of causing a terrorist attack in Australia, we must reflect on the action we can take to arrest these trends.
 
The coronavirus – and the spread of misinformation around it, particularly on social media – has been confronting.
 
It has caused damage not only to thriving Chinese communities across Australia but also their livelihoods and, in turn, our economy and our cohesion.
 
As part of New Zealand’s response to the Coronavirus outbreak the NZ Human Rights Commission declared on Facebook “coronavirus is not an excuse to be racist and xenophobic”.
 
At the same time, the “Give Nothing to Racism” campaign by our neighbours across the ditch is an investment in their future.
 
We should be doing the same.
 
Social cohesion does not create itself. And when social cohesion begins to crumble, it requires proper governance, hard work, investment, and leadership for it to recover.
 
Labor has been calling on the Morrison Government to fund a new national anti-racism campaign, promoting a zero tolerance approach to racism.
 
It’s been more than seven years since Prime Minister Julia Gillard funded the Racism – it stops with us campaign.
 
It’s time for our Government to make this investment in our community’s social cohesion yet again.
 
It is a call I am sure many in this room would back and one supported by the likes of the Federation of Ethnic Communities Councils of Australia.
 
Today, I’ll join the Shadow Minister for Multicultural Affairs, Andrew Giles, in Chinatown to launch Labor’s petition for Australians to stand against racism.
 
People need to know that when they see racism, not only should they stand up to it, but they must have the confidence that their family, their neighbours, their friends will stand with them.
 
I’ve covered just some of the matters in the expansive Home Affairs, Immigration and Citizenship portfolios.
 
There are many other matters I haven’t delved into – skilled migration, community sponsorship of refugees and the privatisation of Australia’s visa processing system to name a few.
 
Yet it is clear this is a portfolio which requires attention to detail rather than ignorance and incompetence.
 
Mr Dutton is a Minister with no plan for his Department or some the major issues facing our migration system and wider Australia – and your profession.
 
I will continue to expose these failures – and work with you on the solutions.
 
I look forward to your questions. Thank you.
ENDS
MEDIA CONTACT: TIMOTHY DUNLOP 0428 043 110