❓ WA Attorney General raises concerns about a new Department of Home Affairs policy that could allow non-citizens to avoid criminal prosecution by requesting deportation. He calls for immediate action from the Minister for Home Affairs.
AnsweredQoN 962Legislative Assembly
QuestionView source ↗
DEPARTMENT OF HOME
AFFAIRS — UNLAWFUL NON-CITIZENS
962. Ms S.E. WINTON to the Attorney General:
On behalf of the member for
Bassendean, I acknowledge the teachers and year 9 students from Kiara College
who are in the public gallery today.
I refer to media reports about a radical
new approach by the Department of Home Affairs to unlawful non-citizens who are
required to face the criminal justice system in Australia. Can the Attorney
General outline to the house what this new approach would mean for victims in Western
Australia?
AFFAIRS — UNLAWFUL NON-CITIZENS
962. Ms S.E. WINTON to the Attorney General:
On behalf of the member for
Bassendean, I acknowledge the teachers and year 9 students from Kiara College
who are in the public gallery today.
I refer to media reports about a radical
new approach by the Department of Home Affairs to unlawful non-citizens who are
required to face the criminal justice system in Australia. Can the Attorney
General outline to the house what this new approach would mean for victims in Western
Australia?
AnswerView source ↗
I thank the member for Wanneroo for
her question. This matter should be of grave concern to all members of this
chamber, regardless of their political stripe. The Department of Home Affairs
has completely changed its interpretation and policy under the Migration Act.
Let me explain. If a person coming to this country is an unlawful entry to this
country or is in this country on a tourist visa that expires and therefore they
become an unlawful entry, they can be served with a criminal justice stay
certificate by the Director of Public Prosecutions, which goes to home affairs,
which prohibits that person from leaving the country. Section 198 of the
Migration Act provides that when the department is aware of a person who is
unlawfully in Australia by reason of having entered unlawfully or is a visa
overstay, an officer must remove, as soon as reasonably practicable, an
unlawful non-citizen who asks the minister in writing to be so removed; that
is, to be deported. Until very recently, this has always been interpreted as
being ''as soon as reasonably practicable'' at the conclusion of
the matters that were subject to the criminal justice stay certificate. The
department has now reversed this and said, ''No; it means as soon as
reasonably practicable after the expiration of the visa, or becoming aware that
the person is an unlawful non-citizen.''
Let me give the chamber an example of why all members should
be concerned. If a tourist came to this jurisdiction, got drunk, drove on the
wrong side of the road and killed three people—any one of our
constituents—they would be charged with dangerous driving causing
death. They could be granted bail on $25 000 with a reporting condition and
surrender their passport. All that person would have to do to avoid criminal
justice is wait until their tourist visa expired, go to the airport and turn
themselves in as a visa overstay and request Mr Dutton or his department to
deport them. Under the new ruling, they will be deported forthwith and thereby
avoid the consequences of their criminal behaviour. This could be seen as
promoting crime tourism.
Lest it be thought that I am
confecting or beating something up here on this new ruling, the Director of
Public Prosecutions of Western Australia has joined with all other Directors of
Public Prosecutions around Australia to implore the department to reverse its
policy. For the benefit of all members, I table that letter.
[See paper 2069.]
I will read briefly from it —
A non-citizen could circumvent the
administration of criminal justice—at any stage of that process—simply
by requesting their removal pursuant to section 198. It could even result in a situation
by which non-citizens could travel to Australia for the specific purpose of
committing criminal offences, knowing that they would be effectively rendered
immune from prosecution and the consequences of conviction by making a request
for removal.
Clearly, this has the potential to
cause significant distress to victims of serious violent and/or sexual
offences, as well as grave concern to members of the broader community.
The letter is signed by the Director
of Public Prosecutions for the Australian Capital Territory as a result of a telephone
conference, and all other Directors of Public Prosecutions joined with the
director of the ACT.
I
have asked this matter to be put on the agenda for the Council of
Attorneys-General conference tomorrow, but we hope it will not have to
be discussed at the conference. What needs to happen is that the Minister for
Home Affairs, Mr Dutton, needs to come out forthwith before anyone committing a
criminal offence seeks deportation and avoids the process of criminal justice
in Western Australia. He needs to come out forthwith and say, ''This
policy reversal is being annulled until there has been consultation at a ministerial
level with the Attorneys General of all the states of Australia.''
Finally, I have also conferred with
the state Solicitor-General who confirmed this incredibly grave situation that
developed in October this year. The DPP has given me a list of people who can
seek deportation and I do not want to publish that list, may it please the
chamber.
Several members interjected.
The
SPEAKER : Members! I will make
the time limits. He was only six minutes; it was a lot quicker than the last one.
Several members interjected.
The SPEAKER : Excuse me; have
you finished, Attorney General?
Mr J.R. QUIGLEY : I was just
saying that Minister Dutton should come out and reverse it!
her question. This matter should be of grave concern to all members of this
chamber, regardless of their political stripe. The Department of Home Affairs
has completely changed its interpretation and policy under the Migration Act.
Let me explain. If a person coming to this country is an unlawful entry to this
country or is in this country on a tourist visa that expires and therefore they
become an unlawful entry, they can be served with a criminal justice stay
certificate by the Director of Public Prosecutions, which goes to home affairs,
which prohibits that person from leaving the country. Section 198 of the
Migration Act provides that when the department is aware of a person who is
unlawfully in Australia by reason of having entered unlawfully or is a visa
overstay, an officer must remove, as soon as reasonably practicable, an
unlawful non-citizen who asks the minister in writing to be so removed; that
is, to be deported. Until very recently, this has always been interpreted as
being ''as soon as reasonably practicable'' at the conclusion of
the matters that were subject to the criminal justice stay certificate. The
department has now reversed this and said, ''No; it means as soon as
reasonably practicable after the expiration of the visa, or becoming aware that
the person is an unlawful non-citizen.''
Let me give the chamber an example of why all members should
be concerned. If a tourist came to this jurisdiction, got drunk, drove on the
wrong side of the road and killed three people—any one of our
constituents—they would be charged with dangerous driving causing
death. They could be granted bail on $25 000 with a reporting condition and
surrender their passport. All that person would have to do to avoid criminal
justice is wait until their tourist visa expired, go to the airport and turn
themselves in as a visa overstay and request Mr Dutton or his department to
deport them. Under the new ruling, they will be deported forthwith and thereby
avoid the consequences of their criminal behaviour. This could be seen as
promoting crime tourism.
Lest it be thought that I am
confecting or beating something up here on this new ruling, the Director of
Public Prosecutions of Western Australia has joined with all other Directors of
Public Prosecutions around Australia to implore the department to reverse its
policy. For the benefit of all members, I table that letter.
[See paper 2069.]
I will read briefly from it —
A non-citizen could circumvent the
administration of criminal justice—at any stage of that process—simply
by requesting their removal pursuant to section 198. It could even result in a situation
by which non-citizens could travel to Australia for the specific purpose of
committing criminal offences, knowing that they would be effectively rendered
immune from prosecution and the consequences of conviction by making a request
for removal.
Clearly, this has the potential to
cause significant distress to victims of serious violent and/or sexual
offences, as well as grave concern to members of the broader community.
The letter is signed by the Director
of Public Prosecutions for the Australian Capital Territory as a result of a telephone
conference, and all other Directors of Public Prosecutions joined with the
director of the ACT.
I
have asked this matter to be put on the agenda for the Council of
Attorneys-General conference tomorrow, but we hope it will not have to
be discussed at the conference. What needs to happen is that the Minister for
Home Affairs, Mr Dutton, needs to come out forthwith before anyone committing a
criminal offence seeks deportation and avoids the process of criminal justice
in Western Australia. He needs to come out forthwith and say, ''This
policy reversal is being annulled until there has been consultation at a ministerial
level with the Attorneys General of all the states of Australia.''
Finally, I have also conferred with
the state Solicitor-General who confirmed this incredibly grave situation that
developed in October this year. The DPP has given me a list of people who can
seek deportation and I do not want to publish that list, may it please the
chamber.
Several members interjected.
The
SPEAKER : Members! I will make
the time limits. He was only six minutes; it was a lot quicker than the last one.
Several members interjected.
The SPEAKER : Excuse me; have
you finished, Attorney General?
Mr J.R. QUIGLEY : I was just
saying that Minister Dutton should come out and reverse it!
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