Zoe Daniel (Goldstein, Independent) Share this | Hansard source

I move the amendment circulated in my name:

(1) Page 7 (after line 33), at the end of the Bill, add:

Schedule 2 — Character test

Migration Act 1958

1 After subsection 501(7)

Insert:

(7AA) Paragraphs (7)(c) and (d) do not apply if the person has been sentenced to a term of imprisonment of 2 years or less, and any of the following apply:

(a) the person is a person for whom a protection finding within the meaning of subsections 197C(4) to (7) has been made;

(b) the person is a person in respect of whom Australia has non-refoulement obligations;

(c) the person is stateless;

(d) the person has arrived in Australia and has been granted a visa on humanitarian grounds.

I have several reservations about the Migration Amendment (Aggregate Sentences) Bill 2023. First, I am deeply concerned about its retrospective nature. Retrospectivity is rarely an option to be used, and I am opposed to it in principle. Second, I'm concerned that the legislation, in attempting to address the decision in Pearson, denies the 100 or so individuals affected both procedural fairness and natural justice. I am aware of the community safety issues that the government speaks of. However, this legislation, in my view, is an overstep.

This amendment would help protect the rights of refugees whose offences are not grave, for whom visa cancellation and detention have enormous ramifications. I'm advised that, if a refugee's visa is cancelled mandatorily, they're effectively in detention indefinitely, as they can't return to their country of origin due to persecution there, since this would be in breach of non-refoulement rules. Once someone's visa is cancelled and they're detained, it's therefore almost impossible for them to be released. In fact, it appears that the minister doesn't expect people whose visas have been refused or cancelled under section 501 of the Migration Act to even be referred to the minister's office. Therefore, the avenues for review and reconsideration are thin. Visa cancellation, whether it leads to refoulement or to indefinite detention, results in permanent separation of children and families, including refugees who have spent their formative years in Australia. As all of us know, it's not in the best interests of children to be separated from their parents and loved ones.

This amendment applies to people who have an imprisonment sentence of two years or less. I do not seek to minimise their crimes. However, the criminal justice system has in general found that their actions are on the lower end of the spectrum of offending. I appreciate the consideration the minister has given me and other crossbenchers in this place and in the other in the face of our scrutiny of the mandatory sentencing regime. It would help this parliament greatly, I believe, if the minister could see his way clear to detailing anonymously exactly what crimes the 100 or so people affected have been convicted of and what each of the sentences was. Transparency would assist a great deal in understanding the decision-making that has led to this bill.

I accept the minister's advice that some of those in that group are serious offenders. My issue is that some are not. This is why the blanket nature of this bill is problematic, especially when the minister already has the power to cancel visas when required under section 501 of the Migration Act. I've seen some case studies outlining a handful of cases from the 100 affected, but the government acknowledges that they're not necessarily representative. So what about the other 90 per cent? For those released under the Pearson decision who are reoffending violently or are guilty of sex offences, I would encourage the minister to use those powers that he already has. There's also the simple fact that we have a criminal justice system designed to deal with criminal offences. If that's not working, that's a matter that goes far beyond this group.

I welcome the minister's assurance that he will be available for further crossbench consultation. Alternatives to mandatory and indefinite detention need to be discussed in a reasoned way. There are international examples, including a panel decision-making process such as been established in Canada, that could be considered. That process looks in details of the circumstances, at the crimes and at appropriate and proportionate actions to follow.

In the meantime, this bill is before us, and this amendment seeks to protect those who would receive disproportionate punishment for aggregated minor crimes under this piece of legislation, without preventing the minister from acting against serious offenders. I commend this amendment to the House.

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