Alannah Mactiernan (Perth, Australian Labor Party) Share this | Hansard source

I am pleased to continue my remarks on the Migration Amendment (Character Cancellation Consequential Provisions) Bill. The legislation does not deal with a policy matter—that was dealt with in a previous bill; this is just a series of consequential provisions that are designed to ensure a certain consistency over a range of visa classes, as I understand it. We on this side of the House, when this matter was submitted for consideration to our caucus, said that we wanted to have a look at the triggers that underpinned the visa cancellation on the basis of the character test because we believe that there is a very real argument that these triggers are too sensitive. When we look at the legislation it does seem a little crazy. It sets out the provisions that can lead to the cancellation of a visa. Section 501(3A) of the Migration Act says 'For the purposes of the character test, a person has a substantial criminal record'—and it is 'substantial criminal record' that can be used to trigger a review of their character. So it says a person does not pass the character test if that person has a substantial criminal record, and they then proceed to define what a substantial criminal record is. I think this is where we see that this is not a terribly well crafted piece of legislation. It says

(a) the person has been sentenced to death; or

(b) the person has been sentenced to imprisonment for life; or

(c) the person has been sentenced to a term of imprisonment of 12 months or more;

So on the one hand we are saying it is substantial if it is the death penalty or a life sentence, and then we go on to say but it is also substantial if it is a term of imprisonment for 12 months or more. I have to say that there are many people who are convicted of nonviolent offences that many of us would consider not substantial or not generating a substantial criminal offence. The trigger of 12 months I believe is too sensitive a trigger and it has caused us to catch up in this a whole raft of people who are not people we would necessarily want to be sending back home.

This issue came to my attention most graphically when I was contacted by the family of a 53-year-old man who had not even been conscious of the fact that he was not an Australian citizen as he had been here since I think he was some 10 months old. He had been a good citizen of this country; he had been working in the north and he had somewhat of a psychotic episode as a result of which he set fire to a structure, and he was charged with arson and sentenced to prison. He served his time and on all accounts he was an exemplary prisoner. He went onto medication and he was receiving treatment in a more holistic way for his condition. In the past he had been a member of the Army Reserve and he had been in a relationship for some 25 years. As I said, he had spent the vast majority of his life in Australia, and had considered himself to be an Australian; he had served with the Army Reserve and indeed his whole family—his parents, his siblings and his partner of some 25 years—all were in Australia. This gentleman had, as has been accepted, a bit of a psychotic episode. He acknowledges that he committed an offence of arson during that time, and he served his time in prison only to find that after his release from prison instead of going back to his family he was taken to the Northam detention centre and then subsequently to the Christmas Island detention centre as his visa had been cancelled.

We made a number of representations on this gentleman's behalf. I am very pleased to say that the minister acted, eventually, with a good deal of compassion in this case, and the gentleman has had his visa restored and has been able to resume his life. I want to use this as a descriptor and an explanation for why we believe that setting 12 months' imprisonment as the trigger for the failure of that character test and therefore for the mandatory cancellation of a visa is far too sensitive, particularly in circumstances where people have lived in this country for the vast bulk of their lives. It is also important to use this as an alert for those people who have come out here from the United Kingdom—and I have come across many such people over the years of my public life—who, for all intents and purposes, consider themselves to be Australian citizens. Because they were on the electoral roll on 25 January 1985, they can vote; and because they have full voting rights, they do not see any particular reason to take that extra step of becoming Australian citizens. This gentleman and his family are now very alive to the real risks posed to anyone who has not taken out Australian citizenship when eligible to do so. We also know that there are provisions in place which expose people holding dual citizenship to a more severe stripping of their rights.

I call on the government to consider a review of the triggers for the character test. On our side we have made a resolution to review those triggers. I agree that we want to have the capacity to deport from this country people who behave in such a way as to undermine the safety and security of our community. It is quite proper that we do have the powers to deal with that, but balanced against that there has to be some sense of what is reasonable. We must consider the length of time a person has spent in this country, particularly where that person has come to this country as a child, has spent all their formative years in this country and has no other family outside of Australia. We must take care that there is sufficient provision within the legislation to ensure that we are not rounding up all the bikies or terrorists whom we might want to be rid of. We must make sure that we are not enlarging this too greatly.

Again, I would point to what strikes me as the strange wording of the legislation, which equates a prison sentence of 12 months with a life sentence or even the death sentence. The death sentence is obviously a reference to penalties imposed in a foreign country. It is a strange reference—given that we have taken such a stand internationally against the death penalty. If we are trying to establish a regime that takes into account actions that have occurred in another country, then we should be looking at cases where a court in a foreign country has convicted a person for an offence—an offence which in Australia might lead to a lengthy prison sentence but which in that country would have led to the death sentence. There are jurisdictions around the world where women, in particular, are sentenced for actions which would not even be considered a crime in Australia—such as adultery. Notionally, the way in which we have structured this trigger, if a woman had been found guilty of adultery—(Time expired)

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