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Australian Senate Standing Committee for the Scrutiny of Delegated Legislation - Monitor |
Chapter 2
Concluded matters
This chapter lists matters previously raised by the committee and considered at its meeting on 25 June 2014. The committee has concluded its interest in these matters on the basis of responses received from ministers or relevant instrument-makers.
Correspondence relating to these matters is included at Appendix 3.
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Purpose
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Amends the Migration Regulations 1994 to establish an enforceable code of
behaviour for certain Bridging E (Class WE) visa holders (instrument F2013L02105
specifies the
code of behaviour for applicants seeking to satisfy the criteria
for the grant of a Subclass 050 Bridging (General) visa)
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Last day to disallow
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13 May 2014
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Authorising legislation
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Department
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Immigration and Border Protection
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[The committee first reported on this instrument in Monitor No. 1 of 2014, and subsequently in Monitor No. 5 of 2014. The committee raised concerns and sought further information in relation to:
(a) matters more appropriate for parliamentary enactment (this matter was concluded in Monitor No. 5 of 2014);
(b) insufficiently defined power;
(c) exemption of instrument from disallowance;
(d) retrospective effect of instrument; and
(e) consultation (this matter was concluded in Monitor No. 5 of 2014).
All previous comments on these matters above are reproduced below, followed by the committee's responses to the minister's most recent correspondence (where relevant)].
Background
Together, these two instruments establish and specify an enforceable code of behaviour as a visa condition for certain Bridging E (Class WE) visa (BVE) holders.
The first instrument (the regulation) provides that the minister must approve a code of behaviour (the code), compliance with which is made a condition of the BVE. The failure of a relevant visa holder to comply with the code enables the minister to cancel the visa. The consequence of cancellation is that the person 'will be returned to immigration detention and may be transferred to an offshore processing centre'. A person whose visa is cancelled in such circumstances is unable to apply for a further BVE.
The code of behaviour (the code) subsequently made under the authority of the regulation requires BVE holders to comply with the laws of Australia and prescribes certain behaviour, including that a BVE holder must not 'harass, intimidate or bully any other person or group of people or engage in anti-social or disruptive activities that are inconsiderate, disrespectful or threaten the peaceful enjoyment of other members of the community [sic]'. The committee notes that the code is itself not disallowable. However, the committee notes that the content of the code has informed its assessment of the regulation for compliance with the committee's scrutiny principles.
ISSUE:
(a) Matters more appropriate for parliamentary enactment
Scrutiny principle (d) of the committee's terms of reference require the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via principal rather than delegated legislation). This may include instruments which are intended or would have the effect of bringing about 'radical changes in relationships or community attitudes'.[1]
It is noted that, while visa BVE holders do not enjoy the full rights of Australian citizens, such persons are equally subject to Australian law. However, the regulation appears to create potential for such persons to be subject to behavioural standards not applicable to Australian citizens. To this extent, there would appear to be a reasonable possibility that the application of such a code could have the effect of bringing about significant changes in the relationship of Australian citizens to BVE holders. Further, the application of the code to BVE holders could conceivably influence community attitudes if, for example, the community were to regard BVE holders as being subject to standards of behaviour other than might be countenanced or expected of fellow citizens. In light of these considerations, the committee considers there is a question as to whether the changes effected by this instrument are appropriate for inclusion in delegated legislation, and should instead be contained in primary legislation. [the committee requested further information from the minister (Monitor No. 1 of 2014)].
MINISTER'S RESPONSE:
The committee has raised concerns about whether the legislative instrument contains matters more appropriate for parliamentary enactment. In particular, it has raised concerns that the regulation appears to create the potential for Bridging E (Class WE) visa (BVE) holders to be subjected to behavioural standards not applicable to Australian citizens and that the application of the Code of Behaviour (the Code) could have the effect of bringing about significant changes in the relationship of Australian citizens to BVE holders as being subject to standards of behaviour other than might be countenanced or expected of fellow citizens.
The wording contained within the Code was made into a legislative instrument to provide for greater flexibility in its contents and to allow me to respond and change its content where I consider it necessary. The cancellation powers, prescribed grounds and visa condition framework that support the Code of Behaviour amendment already exist within the Migration Regulations 1994 (the Regulations).
Under the Migration Act 1954 (the Act), unlawful non-citizens (i.e. non-citizens who do not hold a valid visa) are subject to mandatory detention. In general, IMAs (who, under the Act, are referred to as Unauthorised Maritime Arrivals) are barred by the Act from making a valid application for a visa. If I wish to grant a BVE to such non-citizens in detention, I must use my personal, non-delegable powers under section 195A of the Act where I think it is in the public interest to do so.
The grant of a BVE in these circumstances is not a right, and there is no right for such BVEs to be renewed where they expire. They are granted to non-citizens in the expectation that they will abide by the law, will respect the values important in Australian society, participate in resolving their status, and will not cause or threaten harm to individuals or groups in the Australian community. These considerations contribute to my judgement as to whether it is in the public interest to use my powers to allow these people to hold a BVE.
Since November 2011, BVEs have been granted to more than 20,000 IMAs in immigration detention, significantly increasing the numbers of BVE holders in the community and resulting in IMAs comprising the majority of BVE holders in Australia. I am of the view that it is reasonable to hold these non-citizens to a higher standard of behaviour than was previously the case, where I have granted them a BVE in the public interest. This is because, if not for my decision, these individuals would continue to be unlawful non-citizens subject to mandatory detention under the Act. They do not hold and have not been assessed as meeting the statutory criteria for grant of any substantive visa.
There are already other longstanding areas of migration legislation which apply constraints to non-citizens, which do not apply more broadly to members of the community, for example relating to study, work and reporting of address information. I consider it reasonable that these non-citizens, particularly persons who have not lived in the Australian community previously, are given clear guidance on our expectation of them and I maintain that if we are going to release or allow people to remain in the community from a range of backgrounds, language groups and cultures we should have a process in place that explains what is expected of them, and be prepared to remove them from the community if those expectations are not met.
The Code provides a mechanism for the education of BVE holders on behavioural expectations, the importance of following public health related directives made by my department and to encourage ongoing engagement and compliance with my department whilst their immigration status is being resolved. The Code also provides for early warning and preventative measures through education on behavioural expectations before more serious behavioural problems arise that could otherwise threaten the safety of the Australian community, something that was previously not available. In addition, the Code provides a mechanism to ensure the protection of the Australian community through visa cancellation and re-detention of a person who engages in certain types of behaviour generally not considered to be acceptable in the Australian community.
There is no evidence that the Code is having an adverse impact on the treatment of BVE holders in the community, or that it will have an adverse impact in the future. I would be briefed accordingly should any such evidence be received by my department and I would consider any appropriate action at that time. There is evidence through media and public expression of concern over instances where BVE holders in the community might have posed a risk to the community or a member of the community.
The Code provides a valuable form of reassurance to the community that risks associated with placing non-citizens in the community instead of in detention can be responded to expeditiously.
COMMITTEE RESPONSE:
[The committee thanked the minister for his detailed response and concluded its interest in this matter (Monitor No. 5 of 2014)].
ISSUE:
(b) Insufficiently defined power
As noted above, the regulation provides that the minister must approve a code of behaviour. However, the regulation provides no criteria for any such code, effectively establishing a broad power for executive regulation of the behaviour of relevant visa holders. This concern is informed by scrutiny of the code, which prescribes a number of potentially vague and subjective behaviours, such as behaviour which is 'anti-social', 'disruptive', 'inconsiderate' or 'disrespectful', or which 'threatens the peaceful enjoyment of other members of the community [sic]'. Given the serious consequences which may flow from a breach of the code, a question arises as to whether the regulation should provide specific criteria in relation to the content of any code approved by the minister [the committee requested further information from the minister (Monitor No. 1 of 2014)].
MINISTER'S RESPONSE:
The committee raised concerns that the Code prescribes a number of potentially vague and subjective behaviours such as 'anti-social', 'disruptive', 'inconsiderate' or 'disrespectful' behaviour, or behaviour which 'threatens the peaceful enjoyment of other members of the community'. The committee questions whether, given the serious consequences which may flow from a breach of the Code, the specific criteria in relation to content of the Code should be provided for in the Regulations.
The terms used in the Code such as 'anti-social', 'disruptive', 'inconsiderate' and 'disrespectful' are commonly used terms in the Australian community and the supporting Code of Behaviour framework provides clear descriptions on the definition of these terms and how a breach of these elements would be assessed and a decision on a breach applied.
The existing visa condition framework within the Regulations also already contains subjective elements. For example, condition 8303 requires the holder must not become involved in activities disruptive to, or violence threatening harm to, the Australian community or a group with the Australian community. Much decision making in relation to visas is based on subjective judgments relating to terms set out in the Regulations. The codified natural justice processes for visa decision making provide an opportunity for the visa holder to challenge and/ or respond to potentially adverse conclusions.
As noted in my media release after the BVE Regulation commenced, similar behaviour codes are currently enforced in held and community detention under the Act and it makes sense that a similar code he applied to those living in the community on a BVE whose status is also not yet determined.
Although the Regulations provide scope to cancel BVEs held by non-citizens where they were charged or convicted of a criminal offence, this does not adequately capture repeated anti-social activities that do not attract a charge or conviction, hut which interfere with the right of the community to peaceful enjoyment. Issues already emerging relate to, for example, intimidation and harassment of service provider staff members.
The Code now addresses such broader issues and focusses on such public safety issues as harassment, intimidation and bullying, as behaviours that may now invoke visa cancellation consideration.
As stated previously, the Code is both an enforceable tool providing a basis for visa cancellation and an educative tool for BVE holders to make behavioural expectations clear. The Code is not written in such a way as to regulate a BVE holder's legitimate freedom of expression and religion. It does, however, identify that certain types of behaviour could be viewed as harassment, intimidation or a form of bullying of other persons or groups of persons and are not considered to be tolerable in Australian society, and therefore could be seen as a breach of the Code. One of the important purposes of the Code is to provide the opportunity for early warning and for preventative measures to be taken in relation to less than criminal matters, before more serious behavioural problems may arise. In that regard, I consider it reasonable that BVE holders are given clear guidance about the behaviours that are considered acceptable and reasonable in Australian society.
My department has put in place a number of processes to ensure that the Code is clearly understood prior to the need to sign the Code. For example, IMAs in held and community detention have been assisted by case managers and interpreters when signing the Code to ensure that they understand the Code and what it contains. Supporting information explaining key terms used in the Code is being translated into twelve community languages and people in the community can seek support from my department to sign the Code where necessary. In addition, an initial information session has been held for IMA BVE holders who receive Community Assistance Support (CAS) services or Asylum Seeker Assistance Scheme (ASAS) services through the Adult Multicultural Education Services in Melbourne, with further information sessions planned for other locations.
Although the legislation provides a trigger for considering cancellation of the visa, the decision to cancel a bridging visa remains discretionary, allowing the decision maker to take into account the individual merits of a case. The discretionary cancellation process requires that a visa holder be notified if there appear to be grounds for cancellation and given particulars of those grounds and the information because of which the grounds appear to exist under the principle of natural justice. The visa holder must be provided with the opportunity to show that the grounds do not exist, or that there are other reasons why the visa should not be cancelled.
In addition, while the cancellation ground may be enlivened, there are a number of other responses that can be applied where a breach of the Code has occurred (or is alleged to have occurred), which can be tailored to suit individual circumstances and allow for flexible application. These responses include the use of counselling and warning letters for less serious matters, which are aimed at educating BVE holders further on the terms of the Code and reinforcing behavioural expectations.
COMMITTEE RESPONSE:
[The committee thanked the minister for his detailed response.
However, the committee noted that the minister's department has prepared 'supporting information explaining key terms used in the Code'.
Given the committee's concerns regarding the subjective nature of the terms used in the code, the committee requested from the minister a copy of any such supporting information.
The committee also requested the minister's advice as to whether departmental policy manuals and/or guidance material contain guidance for decision-makers on the application of key terms in decision-making, consistent with the supporting information provided to visa holders (Monitor No. 5 of 2014)].
MINISTER'S RESPONSE:
The committee noted that my department has prepared supporting information that explains key terms used in the code of behaviour and has requested a copy of any such supporting information. The committee has also sought advice as to whether departmental policy manuals and/or guidance material contains guidance for decision-makers on the application of key terms in decision-making, consistent with the supporting information provided to visa holders.
A range of supporting information and advices have, and are, being prepared for persons subject to the code of behaviour which explain the terms used within the Code, their relative meanings and the possible consequences with non-compliance of the Code. This information is designed to be consistent with the intention of the new Regulations and Legislative Instrument and the overall educational message to people being released from detention on a Bridging E (Class WE) visa (BVE) granted by me in the public interest.
Form 1443 is included at back of this letter and contains the code of behaviour and explanatory information for affected individuals. The form explains what the code of behaviour is about, and explains some of the terms in the code of behaviour, such as 'harass', 'intimidate', 'bully', 'antisocial' and 'disruptive'. For persons required to sign and abide by the code of behaviour, Form 1444i - Code of Behaviour for Subclass 050 Bridging (General) visa holders Supporting Information contains this explanatory information in a translated form, and is available on my department's external website at http://www.immi.gov.au/About/Pages/ima/info.aspx.
Form 1444i is available in Arabic, Bengali, Dari, Farsi (Persian), Kurdish (Kurmanji), Kurdish (Sorani), Myanmar language (Burmese), Pashto, Sinhalese, Tamil, Urdu, and Vietnamese.
Illegal Maritime Arrivals (IMAs) in community detention and held detention sign the code of behaviour with the support of departmental case managers and accredited interpreters to explain the code of behaviour and its effect on BVE eligibility. IMAs in held detention and community detention commenced signing the code of behaviour in January 2014. More than1900 IMAs who were in held or community detention when they signed the code of behaviour have been released from detention following BVE grant (as at 29 May 2014).
In mid-February 2014, signature of the code of behaviour by IMAs who had previously been released on a BVE commenced at information sessions run by service providers. All Community Assistance Support (CAS) and Asylum Seeker Assistance Scheme (ASAS) service providers have been involved in organising information sessions about the code of behaviour and behaviour expected in Australia. Most service providers have also provided staff to act as witnesses to signature of the code of behaviour. The department has also distributed the code of behaviour in small targeted mail-outs to bridging visa holders in selected regional and rural locations. Some 1000 IMAs who were living in the community have signed the code of behaviour and been granted a further BVE. More than 5000 code of behaviour forms have been received from IMAs who have signed them while in the community. These are being processed (as at 29 May 2014).
Service providers have been provided with supporting documents about the code of behaviour to use in their information sessions for IMAs, and in their ongoing engagement with IMAs in the community. An example of these documents is the Communication Guide: Code of Behaviour information for clients, included at the back of this letter, which is produced by my department and provided to service providers.
A Policy Advice Manual (PAM), Ministerial Direction and other internal documents are also being finalised, which will support departmental staff responsible for assessing and triaging any alleged breaches of the code of behaviour. These documents will also provide guidance on the terms of the code of behaviour consistent with existing documentation, and will inform the guiding principles to be considered on whether the discretion to cancel a person's BVE should be exercised, or whether an alternative response is more appropriate in that circumstance.
COMMITTEE RESPONSE:
The committee thanks the minister for his response and has concluded its interest in this matter.
ISSUE:
(c) Exemption of instrument from disallowance
As noted above, the regulation provides that the minister must approve a code of behaviour for BVE holders. The code is to be made by instrument in writing. The authority for the making of such an instrument has been provided for by the addition of Part 4.1 to Schedule 4 of the migration regulations. Instruments made under this schedule are exempt from disallowance. Despite the apparently legislative character of such an instrument, and the potentially significant consequences for individuals affected by the code, the committee notes that the ES contains no information on the exemption of the code from disallowance, including:
• the broader justification for the exemption of instruments made under Schedule 4;
• the extent to which any such justification applies to the code; and
• whether, taking into account the nature of the code, it is appropriate to exempt such an instrument from disallowance (and therefore remove it from the effective oversight of the Parliament).
[the committee requested further information from the minister (Monitor No. 1 of 2014)].
MINISTER'S RESPONSE:
The committee has noted that the Explanatory Statement contains no information on the exemption of the Code from disallowance. Under item 26 of section 44 of the Legislative Instruments Act 2003, legislative instruments under Part 1, 2, or 5 or Schedule 1, 2, 4, 5A, 6, 6A, or 8 of the Regulations made under the Act are not subject to disallowance. As the Code is made under Schedule 4 to the Regulations it is not subject to disallowance by operation of the Legislative Instruments Act 2003.
COMMITTEE RESPONSE:
[The committee thanked the minister for his response.
However, the committee noted that the minister's response did not address the issues raised. The committee therefore requested further information from the minister regarding:
• the broader justification for the exemption of instruments made under Schedule 4;
• the extent to which any such justification applies to the code; and
• whether, taking into account the nature of the code, it is appropriate to exempt such an instrument from disallowance (and therefore remove it from the effective oversight of the Parliament) (Monitor No. 5 of 2014)].
MINISTER'S RESPONSE:
The committee has noted that my previous response did not address the issues raised by the committee, and has requested further information regarding:
the broader justification for the exemption of instruments made under Schedule 4;
the extent to which any such justification applies to the code; and
whether, taking into account the nature of the code, it is appropriate to exempt such an instrument from disallowance (and therefore remove it from the effective oversight of the Parliament).
As the committee is aware, section 44 of the Legislative Instruments Act 2003 (LI Act) provides that Legislative Instruments made under Parts 1, 2, 5 and 9 and Schedules 1, 2, 4, 5A, 6, 6A or 8 to the Migration Regulations 1994 (Migration Regulations) are not subject to disallowance. The LI Act was enacted by Parliament in 2003 and is administered by the Attorney's General Department. I note that Schedule 4 to the Migration Regulations relates to public interest criteria and is the appropriate and relevant Schedule under which to make the instrument in question.
I considered it appropriate that the code of behaviour be contained in a legislative instrument in order to provide more flexibility to change the content of the code of behaviour as required. I also note that the Regulations made in support of the code of behaviour framework are subject to parliamentary scrutiny.
I would reiterate that an IMA in detention can only be granted a BVE where I exercise my personal powers to grant a visa in the public interest. Given that I grant these visas using my personal powers it is appropriate that I determine the conditions under which these people may live in the community. The grant of a visa in these circumstances is not a right, and is conferred on these non-citizens in the expectation that they will be law abiding, considerate, compliant, and will not cause or threaten harm to the Australian community. Without my intervention these non-citizens would remain in immigration detention and would return to immigration detention at the expiry of their BVEs.
COMMITTEE RESPONSE:
The committee thanks the minister for his response and has concluded its interest in this matter.
ISSUE:
(d) Retrospective effect of instrument
The application of the new visa criterion relating to the code of behaviour applies to applications for BVEs made, but not finally determined, before the commencement of the instrument (14 December 2013), as well as applications made on or after that day. This means that otherwise valid applications not determined at 14 December 2013 may, by virtue of the new criterion, now be invalid, giving the instrument an element of retrospectivity in its effect. The ES provides no justification for this apparent removal of the entitlement in relation to current applications for BVEs [the committee requested further information from the minister (Monitor No. 1 of 2014)].
MINISTER'S RESPONSE:
The committee raised concerns about the retrospective effect of the BVE Regulation and the Explanatory Statement's justification for the apparent removal of pre-existing entitlements in relation to applications for a BVE. In particular, the Committee noted that this Instrument introduced new visa criterion relating to the Code which has the effect of invalidating otherwise valid BVE applications not determined on the commencement date (14 December 2013).
The BVE Regulation has no effect on the validity of otherwise valid applications. Under the migration legislation, a visa application is assessed against validity criteria and where that application is valid, against criteria that is to be met at the time of the visa application and at the time of the visa decision. This instrument introduces a new visa criterion related to the time of decision criteria only. Consistent with the government's policy intention to ensure that people who were granted a BVE as a result of the exercise of my powers under section 195A of the Act are held to a higher level of accountability, the new time of decision criterion requires certain persons being considered for the grant of a BVE to have signed a Code of Behaviour. This new criterion does not affect the validity of a BVE application. Any applications that were determined to be valid prior to the commencement of the Instrument remain valid after the commencement of the Instrument. The Explanatory Statement does not contain justifications about the apparent retrospectivity of the Instrument given it only affects decisions made after the date of the regulation.
Under this amendment any person who has had a BVE cancelled for reason of failure to comply with condition 8564 or 8566, or where the visa was cancelled under a ground specified in 2.43(l)(p) or (q) is barred from applying for a further BVE.
COMMITTEE RESPONSE:
[The committee thanked the minister for his response.
However, the committee noted that its inquiry related to the retrospective effect of the instrument, as opposed to retrospectivity in the strict sense. Although the instrument is not strictly retrospective, the new criterion (signing the code) prescribes a rule for the future based on antecedent facts (that is, the existence of an earlier visa application). As a consequence, it appears that an otherwise valid application not determined at 14 December 2013 may now be subject to a new criterion (the code) at the time of the visa decision. The committee noted that its usual approach to such cases is to regard them as being retrospective in effect, and to assess such cases against the requirement to ensure that instruments of delegated legislation do not unduly trespass on personal rights and liberties (scrutiny principle (b)) [the committee therefore requested further information from the minister (as to the justification for this approach) (Monitor No. 5 of 2014)].
MINISTER'S RESPONSE:
The committee has noted that, as a result of this instrument, an otherwise valid application not determined at 14 December 2013 may now be subject to a new criterion (the code) at the time of the visa decision. As such, the committee considered the instrument to be retrospective in effect and requested further information as to the justification for this approach.
Clause 050.225 states if the applicant: (a) is at least 18 at the time of application; and (b) holds, or has previously held, a BVE granted under section 195A of the Act; the applicant satisfies Public Interest Criterion 4022 (PIC 4022) containing a requirement to sign a code of behaviour. It is unlikely that there were any undecided valid BE applications as at 14 December 2013, where the applicant would become subject to PIC 4022 under clause 050.225. This is because any person who held or had held a BVE granted to them by a Minister under s195A on 14 December 2013 would have been either barred from lodging a BVE application under the Regulations due to the effect of section 91K or section 46A of the Act, or because they were not recognised under the Act as an eligible non-citizen under the Act.
In any event, I had made it clear in my public statements that no further BVEs would be granted to IMAs, either to those non-citizens in immigration detention or those who were already living in the community, without an enforceable code of behaviour in place.
COMMITTEE RESPONSE:
The committee thanks the minister for his response and has concluded its interest in this matter.
However, the committee's usual expectation where an instrument has retrospective effect is that explanatory statements provide an explanation of the justification for the relevant measures, so as to allow the committee to ensure that instruments of delegated legislation do not unduly trespass on personal rights and liberties (scrutiny principle (b)). In this instance, the committee notes the minister's advice that 'it is unlikely that there were any undecided valid BVE applications as at 14 December 2013' when signing the code became applicable.
The committee therefore draws the minister's attention to its expectations regarding the requirement that explanatory statements provide a justification for instruments that are, or have the potential to be, retrospective in effect.
ISSUE:
(e) Consultation
The ES for the regulation states that consultation was not undertaken because the changes were considered to be 'of a machinery nature as they add to the existing cancellation framework under the migration legislation'. Given the substantive effect and consequences which may arise from the application of a code of behaviour on BVE holders, the characterisation of the instrument as machinery in nature on this basis is open to question. This gives rise to a concern that the minister's determination that consultation was unnecessary or inappropriate in this case may not have taken account of, or provided appropriate opportunity for comment by, persons likely to be affected by the instrument. The committee notes that, while the ES states that 'continuing consultation on the draft code' was being undertaken, the ES for the code indicates that consultation was only undertaken internally and with other government departments and agencies, and did not involve consultation with persons likely to be affected by the instrument or with stakeholders more generally [the committee requested further information from the minister (Monitor No. 1 of 2014)].
MINISTER'S RESPONSE:
The committee is concerned that my determination that consultation was unnecessary or inappropriate in this case may not have taken account of, or provided appropriate opportunity for comment by, persons likely to be affected by the instrument.
Relevant government departments and the Australian Federal Police were consulted about the Code of Behaviour and where possible I have taken these agency's comments and concerns into account when crafting the content of the instruments. Contracted service providers are involved in ongoing consultation with my department with regards to the implementation process.
The Code of Behaviour amendment reflects community concerns and the policy articulated by the government prior to the election. Ongoing media coverage continues to reflect the community's concerns to ensure IMA BVE holders are given clear guidance on the behaviours expected of them and that government has enforceable powers to remove IMA BVE holders to immigration detention where these expectations are breached.
Under the existing visa framework most temporary visa holders, including BVE holders, in Australia are subject to a variety of visa conditions set out in the Regulations. Many of these set out requirements that the visa holder must abide by or which set restrictions on what the visa holder is permitted to do while in Australia. As noted in my media release after the instruments commenced, similar behaviour codes are currently enforced in held and community detention and it makes sense that a similar code be applied to those living in the community whose status is also not yet determined.
An IMA in detention can only be granted a BVE where I exercise my personal powers to grant a visa in the public interest. Given that I grant these visas using my personal powers it is appropriate that I determine the conditions under which these people may live in the community. The grant of a visa in these circumstances is not a right, and is conferred on these non-citizens in the expectation that they will be law abiding, considerate, compliant, and will not cause or threaten harm to the Australian community. Without my intervention these non-citizens would remain in immigration detention and would return to immigration detention at the expiry of their BVEs.
When I announced the implementation of the Code on Friday 20 December 2013, I noted that an average of two IMAs had been charged with criminal offences every week since the election. Charges laid against IMAs at that time included murder, assault, acts of indecency, stalking, rape, shoplifting and drink-driving. As at 31 January 2014, 50 IMAs have had their BVEs cancelled and been re-detained, and 24 whose BVE had ceased have been re-detained following involvement in a criminal matter.
I consider it reasonable that non-citizens being released into the community on a BVE, particularly where they have not lived in the Australian community previously, are given clear guidance about the behaviours that are considered acceptable and reasonable in Australian society.
The Code is designed to support BVE holders whilst they live in the community by educating them in acceptable standards of behaviour. Information sessions have been held for IMA BVE holders who receive CAS services or ASAS services through the Adult Multicultural Education Services in Melbourne, with further information sessions planned for other locations. IMA BVE holders who are receiving support under the CAS and/or ASAS programmes are given orientation to Australian society by their service providers. The Code will reinforce information provided during these orientation sessions. The educative aspect of the Code is intended to assist people to understand the behaviour expected of them while they live lawfully in the community and to encourage cooperation with authorities while they are awaiting resolution of their visa status.
The Code of Behaviour amendment does not affect the capacity of all IMAs to choose not to sign the Code.
COMMITTEE RESPONSE:
[The committee thanked the minister for his response and concluded its interest in this matter (Monitor No. 5 of 2014)].
[1] Senate Standing Committee on Regulations and Ordinances website, ' Application of the committee's scrutiny principles', http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_Ordinances/guidelines/principles, accessed 10 February 2013.
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