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Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016

1. The Law Council welcomes the opportunity to provide the following comments to the Senate Legal and Constitutional Affairs Committee (the Committee) as part of its inquiry into the Migration Amendment (Character Cancellation Consequential Provisions) Bill 2016 (the Bill). 

2. The Bill 2016 aims to ensure that mandatory visa cancellation related powers are reflected consistently and comprehensively throughout the Migration Act 1958 (Cth) (Migration Act), according to the original intent of changes made to the Migration Act by the Migration Amendment (Charter and General Visa Cancellation) Act 2014 (Cth) (Character Act).1 

3. This Bill reflects Schedule 2 of the Migration and Maritime Powers Amendment Bill (No. 1) 2015 [Provisions] (Migration and Maritime Powers Bill), previously considered by the Committee and the Senate, and returned to the House of Representatives with amendments. The Law Council made a submission to this Committee on that Bill, and its submissions and concerns therefore remain relevant to the Bill before the Committee’s current inquiry.2 

4. The Law Council notes that the Committee previously examined the provisions of the Bill in its inquiry into the Migration and Maritime Powers Bill. Although it appears that this Committee’s recommendation on that Bill regarding retrospectivity has been considered in the drafting of the Explanatory Memorandum for the current Bill, the Law Council’s concern in respect of retrospectivity and other provisions remain. 

5. The Law Council generally supports attempts to strengthen and clarify the operation and application of the Migration Act. However, it considers that the Bill’s proposed amendments depart from accepted rule of law and procedural fairness standards, and as a result, may adversely affect protection claims made by asylum seekers, in some circumstances risking refoulement. Furthermore, the rationale put forward for the amendments does not justify this departure, or the increase in Ministerial discretion. 

6. The Law Council therefore opposes the passage of this Bill. Instead, it recommends that the provisions of the Migration Act relating to the cancellation of non-citizens’ visas are amended to accord with rule of law and procedural fairness standards. 

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