Monday, 15 March 2021

Address to the Law Council of Australia

​Check Against Delivery

ALEX HAWKE: Thanks Georgina, and thanks to the Law Council for the invitation as well. And thanks for those kind words. I do appreciate the sentiment. I want to just open by acknowledging the traditional owners of the land and elders past, present and emerging. I've just come from an Australian citizenship ceremony to mark the opening of Harmony Week in Australia. So, obviously that was a great spirit there. And I appreciate the work that everybody does with our communities around Australia through the law to promote harmony and social cohesion, and I know we've got many passionate advocates with us today.

Look, it is true that I have served in the portfolio before, and Georgina, if I can respond to you briefly, I would say I'm glad you said I'm a friend of the legal community in the sense that I pursued deregulation and make myself available. But, you know, coming back to the portfolio as Immigration Minister, I'm constantly reminded by my own legal counsel here that, you know, immigration is the most litigated Commonwealth portfolio, as you know, and I'm apparently involved in 17,000 actions at the moment. So I'm glad you didn't say I'm a good friend of the legal profession for those reasons, by reasons of volume. But certainly we have a lot to do with each other in relation to law, and I've had plenty of experience already in legal matters. So, I would also like to acknowledge Dr Brasch, the President of the Law Council; Michael Tidball, who's the CEO of the Law Council of Australia; His Honour Judge Kendall from the Federal Circuit Court; and all of the distinguished guests, including the members of Parliament and others who have joined us today and everybody that's logged in. I agree. You know, we are well into COVID now. I think we're all frustrated by dealing with people over these electronic forums, and I look forward to addressing you in person and facing, you know, the fire of your questions from such a highly intellectual group in person. I certainly do enjoy the contest. So I appreciate that.

Today I'm going to make a few remarks about our migration program, certainly some issues that do affect us. And certainly, I'm very happy to address any issues. I think this will be an ongoing dialogue as Minister with those integral connections between us over so many issues and so many cases and so many points of law continually being assessed about the Migration Act and the operation of the act. It's very important to have an ongoing dialogue about how we can best manage and continue to improve our migration system, the very successful system that we've all come to know, and also, you know, deal with the challenges that we face through it. You know, of course, from COVID that, you know, migration continues to be one of our most important issues in relation to economic recovery. And migration is one of the largest contributors to our economic growth. So, as we move from a very difficult pandemic to a phase where the Government will be concentrating on recovery, we know that migration is going to play a very difficult and important role, as we have constrained movement, reopening of borders, and a program which is difficult to meet and achieve during this period. We know that that program will be integral to that recovery. So the shape of the program, the composition of the program, and our approach to immigration and migration generally will certainly be one of the most significant parts of our challenge in recovery from COVID.

The impacts of COVID, I think, are still continuing to be felt, and while we have been able to move through the pandemic, adjusting course as we go, there is great uncertainty in migration planning. But the Cabinet has approached that by giving me authority to be flexible and empowering me as a minister to make flexible changes, and I have several changes in front of me at all times. We're considering options. It's a good time for dialogue and discussion because we do need to be more flexible than ever. We do need to respond to a changing environment. And as we design this year's program in the migration sense, we designed the last program, which was just delivered at the end of last year, to be responsive and have that adaptation and make the border and public health challenges that we faced. We'll still need to do that to meet border and health challenges but we'll also need to face economic recovery challenges, and that will mean different attenuation of the program. We set the level at 160,000 last year. As you know we will get close to meeting that. And that's an instruction to the department, even though we have constrained movement. We certainly want to make sure that we can get as close as possible to our program every year to meet our growth targets, and we'll certainly be considering, and I'll be framing for Cabinet, you know, the program for this year and what that will look like as well. So we welcome people's submissions. We have a consultation process about that now.

We are focussed on what will meet the needs of that COVID recovery. Skilled workers being at a premium. The contest for brains and ideas and capital will intensify worldwide, and Australia has a good argument out of what's happened to show that not only are we a good place to live, but we are a safe place to live, and also, we're a competitive place to live economically, and because of our health and safety and because of our social cohesion and strength as a multicultural society, to be in the marketplace for people, ideas, you know, brains, capital and skills.

The program settings, I'm conscious as Minister, need to be flexible enough to meet skills gaps and meet changing skills gaps and sustain population levels. As the Prime Minister said recently, temporary visa holders play a vital role in meeting our economy's workplace requirements. It sounds obvious, but I think we've all learnt just how important temporary visa holders are from whether you're talking about the international student market or whether you're talking about tourism or whether you're talking about temporary skills shortages in the Australian economy. Filling those critical labour shortages with temporary visa holders, particularly agriculture, harvest, but also in cities as well, will continue to sustain growth in services that I think we all want to see.

We've been able to priority process onshore visa applications during the pandemic, and I want to thank the Department of Home Affairs for the intense work they do. I think for the people here, it's important to understand, government as a whole has been operating, I would estimate, probably harder than I've ever seen it work in, you know, 13 years of being in Parliament, six years in the executive, you know, 20, 25 years of working in government or around government. I haven't seen government as a whole, including our public service and officials, work at about 150 per cent of normal for such a sustained period. And, you know, we thank all of our officials and services and agencies for working hard, including migrant settlement services, and we're adapting those services to meet the changing needs of COVID as well.

We have seen, of course, priority processing stabilise the NOM, the net overseas migration figure. We've been able to retain migrants here, and I think that's been quite obvious that people have not wanted to leave, but also we've been able to meet our programs by keeping people onshore, prevent further reduction in migration and population rates. But obviously, as we continue to move through COVID, we'll have to continue examining that question. It does mean that the status of visa applicants onshore is being regularised at a higher rate, which is good. It provides certainty, it provides job opportunities, it provides social cohesion outcomes, and it will be something we continue to examine as we move through this - how to improve policy here to ensure temporary visas are well utilised to help us recover from COVID.

Earlier this year also, I announced changes to visas, to allow visas to be granted in Australia for family migration as well - partner and child applicants. The Government has also listened to the changing environment in relation to family and partner visas and we have a record number of partner visas issued by Government this year in terms of the target. Regardless of what we do, that would be the highest partner intake in, I think, memory, you know, certainly since I am aware of the records, and that's about 70,000 partner visas under the family program, which is an enormous amount. Obviously, with that comes great benefit in terms of certainty for partners and families here in Australia, and that also provides a dividend in social cohesion.

But on the business and skills side, we know foreign investment will continue to be critical to the Australian economy - high yield businesses and skills that we can bring to Australia. You know, we've certainly got several things that will attract talent - global talent, global business skills - and we think we do have a competitive advantage. And the Government will continue to attenuate policy to take advantage of the opportunity of COVID, which is bringing great talented global businesses and people here. And we've seen many prominent people choosing to relocate to Australia at the moment, and that will continue, I think. But it does provide an ongoing opportunity.

The skills stream this year, you know, remains at more than 50 per cent of the total program, and that is about 80,000 places - I think it's just shy of 80,000. And we see a great interest in investors investing in Australia - job creators, entrepreneurs, and as I've said, the global talent, global businesses that are coming as well. We doubled the number of places in the Business Innovation and Investment Program and added the program to the travel exemption list. We certainly are working on how to return more people with skills to Australia, more people to get on more flights as well as dealing with returning Australians. And that will be an ongoing conversation the Government has as we move through this pandemic and the vaccination roll out that takes place.

We also have a window in COVID to fortify our industries and businesses against future shocks, and that means competing in the global talent and business sector; it means supplying labour where it's necessary, and critical shortages in Australia so those businesses can plan; so they can grow; so they can, you know, be profitable; so they can reinvest in their business; and, they can employ more Australians as well. You're familiar with the Global Business and Talent Attraction Task Force for the high value businesses and the exceptionally talented individuals. That, that is proceeding well, and you've seen some of those successes - there'll be more success in that regard.

It is a nationally coordinated effort, and you can see states and territories - we're having the conversations with them about, obviously, their state sponsored nominations as well, and meeting those targets. And we're prepared to allocate more to those states that are prepared to nominate more people and seek more demand, and that is an ongoing conversation I'm having with the premiers and the ministers there.

We will be agile and aggressive, I think, in, in competing internationally and, you know, you'd expect us to be as a country, given the deep loss of global GDP that we've seen. I think you will all understand the statistics and the GFC there's 0.4 per cent reduction in global GDP. This crisis has been a 4 per cent drop in global GDP, which represents a significant challenge to the global economy - the biggest drop in global GDP we've seen in over 100 years. So, in underscoring all of that it is important we do compete and we think about that ahead of further economic uncertainty in the global economy.

The initiative is obviously working well and designed to continue to work well. And we welcome suggestions and ideas about how to be competitive in the global business talent race.

On the other side of the migration program, our long and successful refugee resettlement program is still one of the world's most generous. We've certainly done a lot of heavy lifting in the last decade in terms of some of the greatest humanitarian crises that the planet has seen, especially in Syria and Iraq. We've had, you know, since the end of the Second World War, over 900,000 refugees have resettled here - and I think that's important to remember as well. But in recent times, and not just since the end of the war, Australia has stepped up and delivered a world leading program to resettle refugees here in Australia. And of course, we should be proud of our record. And it's certainly an ongoing conversation as well about how we continue to make our program through a pretty challenging time to get people out of refugee camps, and very difficult time to get refugees through some difficult global dynamics including flights in conflict zones, and fracturing of many societies along social and class lines.

This year, the Government has set the Refugee Program at 13,750. We're providing flexibility. It's a ceiling rather than a target because it is hard to actually find the way to get people out of difficult situations in many parts of the world at the moment, and many refugee camps are in a difficult situation because of COVID. We'll certainly allow flexibility to reallocate places between offshore and onshore protection schemes. So that's unusual, but it's attenuated to the times that we're in. And the Government has put a priority on the outcomes for the humanitarian entrants to have the best opportunities to succeed. You know, our very significant investment in English language tuition - and that comes at great expense. Obviously, in the migrant services component of my portfolio, we spend about $2 billion annually, and the biggest part of that is English language training. And we're proud of that. That is an investment in people, an investment in people's economic and social success. And now, with the uncapping of those hours, it's, it's a very significant investment in people's success that the Government has funded, and we'll continue to ensure is an ongoing program that I think will lead to great outcomes for people in the humanitarian program.

We're also adapting our migrant services and humanitarian services - not reducing the funding profile while we have a downturn in arrivals in places, but re-spending that money, and recommitting it, and redoing our contracts to enable those services to go back and use this as an opportunity to look at people who've already resettled here and don't have the economic success that we would like - to revisit how we can help them. And I think that will be a good opportunity this year for those services to be - and I know the sector is very excited about this process - about, you know, using the one year where we might have a gap year in immigration terms that we ever had to go back and revisit social outcomes for people in the humanitarian program that need more investment and more help. So, we certainly will have more to say about that as the year progresses.

And finally of course, the centrepiece of the portfolio this year will be an update of the government's multicultural statement that was delivered in 2017, in the form of a social cohesion statement. And that is going to be an important centrepiece for framing the success of our multicultural society, and also how we can best leverage the great social cohesion that's been built out of this crisis. Australians have come together; they've looked after themselves and their families; they've looked after each other; communities have looked after each other; people have really embraced each other in a way that we haven't seen overseas and we've been very successful because of it. So how can we continue social cohesion to tackle ongoingly stubborn attitudes in terms of discrimination and some racism? How do we continue to drive improvement in those attitudes and use social cohesion, which we've forged in a crisis, to build an even stronger society? So that will be an important centrepiece of this year.

And finally of course, I would think all the lawyers here, all of you, for your work in helping us frame an ongoing improvement to the system. I do think we ought to be like the airline industry. Continual improvement of the system is something that I'm committed to, and I hear from a lot of you regularly. There will be an opportunity this year - and we'll have more to say about it through the Attorney-General's portfolio and my portfolio - to do a review of the legal system. We'll certainly consult you about that and we'll have more to say about it as the year progresses. And those are opportunities from the Government's perspective for continuous improvement, and we think they're important. And certainly, they will offer you an opportunity for the input that you seek in a range of areas.

I also thank you for your work in the OMARA space as well. You know, that's ongoing importance. And as you say, I've certainly been involved with that for some time now, so I'm certainly happy to continue that work as well.

Finally, I just say, this year is a year unlike any other in that it does offer Government and the Immigration portfolio, and thereby all of us, the opportunity to do and consider some things that we might not normally consider. Cabinet's instructed me to do that. I'll be doing that in a range of ways. I'll be consulting you about that throughout the course of the year. So there is a chance for us to do some improvement and work on non-functional parts of the system that we might not normally be able to do. I think that's a good opportunity - it's an offer I'd make to you; it's an offer, I think, that together we'd be able to do some things that will improve outcomes for people and outcomes for our program, and outcomes for our society that we might not normally get.

So, in the vein of being approachable, Georgina, that I think I will finish on. I certainly won't finish on with, with our litigation review, because that will certainly be a difficult conversation that we will have between us. Thank you, Georgina. Thanks for the opportunity and I look forward to some questions.

QUESTION: Okay. Thank you very much, Minister. Well, that is very interesting to hear you talk about the openness to flexible and innovative responses to these difficult times. And as you know, the Migration Committee meets about twice a year with policy people from the Department, and we find that to be a very positive interaction where we can share ideas, and hopefully some of them make their way to you. So we stand ready to offer our advice and assistance in the policy area for free, which is- it's always good to get a bit of free legal advice. And thank you for being so gracious given the fact that, as you mentioned, you're in litigation in 17,000 cases against many of the people here today.

ALEX HAWKE: I try not to take it personally.

QUESTION: It's a bit like cricket. We won't be sledging each other.

So one question that's come up is from the wonderful Dr Carolyn Graydon, who I'm sure you know. She's a wonderful leader in our profession, in particular the Asylum Seeker Resource Centre. And as you can see from the Q&A panel, Dr Graydon has asked if you could shed some light onto how it is that you explain - how you could explain the basis upon which you're exercising the discretion to decide which medical transferees are able to come out of detention and which aren't? Are you able to share anything with us on that topic, Minister?

ALEX HAWKE: Well, I can actually. And look, I don't want to squib this question, but in our portfolio responsibilities - because the history of this, that responsibility, especially for the Medevac cohort, is with Minister Dutton. So you'll have to ask him that question, because, I'm very happy to say that in the sense that it's not my question to answer. Obviously, you know, we take medical advice about other matters. I do the onshore immigration detention network - so, everybody can understand that. The offshore detention network is managed by Minister Dutton, and he's the most appropriate Minister because of the continuity of decision making and the depth of knowledge and understanding of the policy space. So you can direct those questions to him. But I assume that's about those cohorts, they're his direct portfolio responsibilities.

QUESTION: Okay. I'm not sure if this is within your portfolio, but we have a question from Hanna Dickinson from Victoria Legal Aid. And the Law Council is currently preparing a submission in relation to this particular Bill that's been introduced, which means that decision makers can see and assess allegations against people that are lower than the criminal standard, that they don't know exist, and cannot access except through a judicial review. And those decisions can result in detention and removal. Now, we've had a, I suppose - in the pubs around Australia, more people have mentioned the phrase rule of law than they have in the past, just recently. Given this growing understanding of the importance of the rule of law, and the need to be able to have a proper process in respect of allegations, serious allegations, made against the person, how can you reconcile the rule of law with the particular Strengthening Information Bill?

ALEX HAWKE: Yeah, thank you. And look, this is one of several bills that I have in the Parliament. And obviously, it's the Government's job to negotiate those bills through the Senate and the crossbench. In relation to this particular bill, the way I would answer that question - obviously, there'll be the Government's arguments in the explanatory memorandum - but the way I'll answer that bill - that question is it's very tightly defined, which is unusual, you know, in these cases, but appropriate here in the Strengthening Information provisions, we have very tightly defined the circumstances. Because the Government's intention is to get that information in relation to very specific national security and other cases. And that is the way the bill is drafted.

Now, if you want to have a conversation about that, my response would be about how we've drafted that and how tightly we've defined it - I'm happy to do it. But there is some, I think, misunderstanding about this - that it is not a broad-based bill covering all areas. It's very tightly defined, which is not typical. But we've made it tightly defined for this very reason, so that we don't have this contention that the rule of law is being undermined. And it's appropriate the Government ask the Parliament for the power to do this in tightly defined circumstances we believe are harmful to the Australian community. I'm open to the conversation about what those definitions should look like and how they do what the Government intends. And, you know, we welcome- we're not afraid of that conversation. But I would reject the idea that it's a broad scale undermining of the rule of law, or that it covers areas that it does not. And if it does, we'll tighten up the drafting to make sure that it doesn't. And that's the offer I'd make. So it's certainly not the Government's intention.

QUESTION: All right. Thank you, Minister. I'll ask a question- forward a question from Maria from BDO Accounting, and she's asked about the closure of the subclass 1382 Business Talent Visa and the Premium Investor Visa from 1 July 2021, and how that sits with the focus on high level business persons and investors at this time.

ALEX HAWKE: Thank you. I know Maria, so that's a very Maria question. We'll have a lot more to say about - she's probably laughing, too, we all know each other well enough. So look, I think the way it is though, at the moment, we're obviously relooking at the business and skills side. Julian Leeser is leading a short and very tightly defined inquiry into a skills and business side at the moment, which will inform Government policy. There'll be some further submissions put to Government, and my intention is to submit to Cabinet further improvements for systems. So, what I would say there is, the first half of this year will be very busy, in terms of the policy space and the skills and business side, to take advantage of the pandemic and that will lead to further changes. The global talent taskforce has a very tightly defined mission and a very important one, to take advantage of Australia's competitive advantages to attract global talent to Australia. So, that is working well, but this - we're conscious these other classes of visas will be dealt with as a whole in the first half of this year.

QUESTION:  Thank you very much, Minister. I've got a question from Faye which is also on the Q&A box. There are many visa applications in the system for skilled temporary visas for offshore applicants. Whilst their occupations are not on the PMSOL, the employers are now quite desperate to get these people into Australia. One example being senior management in waste management enterprises where such skills are not available in Australia. Could you comment on how such employers can be assisted to get these visas finalised so that important projects are not delayed?

ALEX HAWKE: Yes, there's a lot of important issues under that. Firstly, I'd say the PMSOL, which is the acronym we use for the priority skills list, you know, working with the Minister for Employment at the moment about updating that list and expanding it. So, I won't comment further about that. We're conscious there will be things added to that skills list shortly. For businesses that have, you know, highly talented employees overseas, we have expanded the range of exemptions for people to come. This is about capacity, this is about flights and seats. I don't mind sharing with this audience that we have looked at all models so that if people cancel at the last minute, can we have reserves of skills based people who can then fill seats at the last minute. We're examining all practical mechanisms to ensure people can travel for high priority skills to Australia. Certainly, I've been approached by, for example, vice-chancellors of universities about, you know, very serious academics that we need to get back to Australia to do vital research. Our exemption system is certainly an ongoing topic at every - I have a meeting about it today with the Cabinet. We are working as hard as we can to ensure people can travel, in a COVID-safe way, back to Australia, that do not compete with returning Australians. We'll look for more opportunities, we'll look at the exemptions as we go, and if people have particular cases where they do have vital skill shortages, I'd ask them to contact my office. We'll do our absolute best in relation to exemptions.

QUESTION: Well, thank you very much for that invitation. That's very useful. Perhaps in the context, that it is so hard to get new migrants into Australia, the question from, Dushan, from Victoria is that Section 46a(2) allows the Minister to lift the bar to prevent unauthorised maritime arrivals from making valid applications onshore, when it's in the public interest. In what circumstances would you consider exercising that discretion? And is it, in this context, that it is hard to get more migrants in and we need all the hands we can get, particularly when there are labour shortages; is that relevant to the question? And how would you consider exercising your discretion to lift the bar for UMAs?

ALEX HAWKE: Yeah, look, I appreciate the question. I'm reluctant to discuss matters of personal discretion, whether I have personal discretionary powers [indistinct] under what circumstances, you know, because they are discretionary powers, they're individual circumstances. It's discretionary and, you know, you have to take account of the circumstances involved. So, I wouldn't outline a set of circumstances that I would exercise, personally, discretionary power under the Act for obvious reasons. But I understand what what the question is. To the policy question there, you've got a question about, could we use onshore or could we better serve Australia by having onshore people in the humanitarian program and have access to permanent residency and citizenship to meet shortages in workforces? We certainly do have a couple of incentive based programs for people to access and unfortunately, those numbers are not high. So, certainly, we would look at how that happens over the long term. And certainly, it has been a long time for some people who arrived, you know, sometimes over a decade ago in relation to the last boat arrivals. So we're conscious of those issues. We're conscious of the issues underneath that in the immigration and sort of, social cohesion sense. And we're conscious of the issues around temporary protection and what that means. And so, we are examining those issues on an ongoing basis. But, I wouldn't speak about personal discretion and the exercise of personal discretionary powers in that sense.

QUESTION: Well, I want to respect your time and all the other things you have to do today. So, I'll just take one more question. And I think it's a great question because it also echoes back to your time the Minister for International Development and the Pacific. And that's a question from Kimberly, which is, and she thanks you for your comprehensive understanding of the challenges facing humanitarian migrants, and asks if there are any regions facing humanitarian crises that are particularly concerning to you, for example, Hong Kong, Ethiopia and Syria?

ALEX HAWKE: Look, that's a good question. So, you said Ethiopia, Hong Kong and Syria. I mean, obviously, as Minister, you know, and as a parliamentarian for the past 13 years, you know, I'm certainly still, like all people in the world, staggered at the extent of the humanitarian crisis in Syria and Iraq and what it means for so many different countries and people who've had to flee those two countries. I think it must be the single biggest humanitarian crisis in history. So, obviously, that weighs on our mind constantly and Australia's stepped up in that regard. Regionally, of course, you know, we are attenuated to the issues. Australia's been a very strong advocate with other countries for the rights of people in Hong Kong. And we continue to be vocal, you know, a proponent of, you know, the rule of law in Hong Kong, of China, sticking to the agreement that it made with Britain and the world. The compact that it made in relation to the status of Hong Kong and the treatment of its individual citizens and the rule of law in Hong Kong. We're very vocal about those things. And certainly, we are aware of Ethiopia as well. So, I mean, you couldn't ignore any refugee crisis in the world, but certainly Syria and Iraq and the resolution of those matters, continues to be an ongoing issue for the world. And regionally, we're very attenuated to potential refugee crises as well. I mean, the Rohingya, we are all aware of and, you know, we're certainly funding a lot of money to assist in in place. The developments in Myanmar as well concern us. We'll certainly stay very close to developments there and how we can best adjust our settings here to take account, as other countries are, of the developing situation in Myanmar. So, look, it's a question of, you know, in this portfolio, of how long is a piece of string. We certainly want to account for refugee and humanitarian crises around the world. Every year, I have to make recommendations to Cabinet about composition of the program and we take account of all of these factors as I do that.

QUESTION: Alright. Well, thank you for your thoughtful and compassionate answer, in respect of all those difficult challenges that the world faces. And as I think is obvious to everyone here, we need clever people to work together to solve difficult problems and we hope that we can make things better for Australia and migrants together with you, the legal profession and the Government working together. So, thank you very, very much, Minister, for being with us today. It's greatly appreciated.

ALEX HAWKE: No, thanks for that. ​