Kylea Tink (North Sydney, Independent) Share this | Hansard source

In reading the purpose of this bill, the Migration Amendment (Aggregate Sentences) Bill 2023, I see that it is to respond to the recent Federal Court decision in Pearson v the Minister for Home Affairs. Just pausing on that for a moment and perhaps reframing it, one might say that the purpose of this bill is to retrospectively undo decisions made by the Federal Court late last year.

In Pearson, the Federal Court relevantly held that in effect an aggregate sentence—that is, a single sentence for more than one offence—imposing a term of imprisonment does not in and of itself constitute a substantial criminal record within the meaning given by subsection 501(7) of the Migration Act. The court reasoned that mandatory cancellation should apply in only the most serious cases and that, self-evidently, an aggregate sentence may be arrived at after conviction for a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled. In making its decision, the court observed that aggregate sentences are often made up of a series of minor offences and that, by way of contrast, mandatory visa cancellation should be reserved for only the most serious offending. In the words of refugee Sarah Dale:

The Court made a finding of proportionate balance, it was a step towards a more humane system.

The bill seeks to undo that decision by amending how provisions of the Migration Act and regulations apply in relation to a single sentence imposed by a court, making it the same way regardless of whether the sentence is in respect of a single offence or two or more offences. The provisions as drafted mean that people with non-violent offences like traffic offences, dishonesty or petty theft are treated the same way as violent sexual offenders. It is a blunt instrument with no room for the individual circumstances or facts of the case to be taken into account.

For example, there is a case of a young refugee who arrived in Australia from Sudan. when he was 10 years old South Sudan, as we now know it, gained independence as a sovereign state in 2011, leaving the young refugee with no evidence that he is recognised as a citizen. He attended school in Australia and suffered sustained bullying and racial abuse. He went on to develop a dependency on alcohol and got into trouble with the police. He was initially convicted on charges of affray and was sentenced to 18 months imprisonment. Snap! In they went and scooped him up. On appeal, his sentence was reduced to 10 months. Surely there should have been another snap and he should have been released? But, no, he continued to be detained. Recently, thanks to this court ruling, he was returned to his family over Christmas following the Pearson decision, but now he is at risk of being returned to a refugee prison. This is the kind of case in which discretion exercised by the minister would result in a better outcome for this refugee. Surely, then, as that circumstance shows, the question we must ask ourselves in every single case is whether it is a case that a criminal has arrived and is on the ground in Australia or whether the system has created a criminal?

We've heard others in this place argue that this bill is necessary to protect the public or similar, but that's just disingenuous. Ministers and their delegates still have godlike powers to cancel visas. The decision in Pearson merely limited the blunt instrument that is mandatory cancellation with application to aggregate sentences, not other applicable powers.

This bill, if passed, will apply retrospectively, meaning that people who have just days or weeks prior been released by the government and reunited with their families and communities could be forcibly taken back into detention. To release and then redetain roughly 100 people, including refugees and stateless people, often some of the most vulnerable in our community who have severe mental illnesses and trauma backgrounds, potentially created by their experiences in our country, in the space of weeks is abhorrently cruel and will devastate these people and their families. My concern is for these refugees and stateless people who cannot be removed from Australia due to the non-refoulement obligations under international law and who cannot return to their countries of origin. For these people, this bill is effectively, as the member for Goldstein said, a sentence for mandatory indefinite detention.

It's especially jarring for me—and for many in this place, I'm sure—for this bill to be reintroduced with such urgency on the very day that the minister has made an announcement about pathways to permanency for temporary protection visa holders and safe haven enterprise visa holders. Today's announcement was the overdue delivery of an election promise, including commitments from the government to tackle Australia's unacceptable practice of indefinite detention. If the bill that was reintroduced today is passed, it will see more people detained in contradiction with their basic human rights. It will see Australia continue to falter on its international obligations. I commend the amendment as moved by the member for Goldstein and support it.

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