Andrew Giles (Scullin, Australian Labor Party, Minister for Immigration, Citizenship and Multicultural Affairs) Share this | Hansard source

I present the explanatory memorandum of the bill and I move:

That this bill be read a second time.

The Australian community has a reasonable expectation that noncitizens who seek to enter or remain in Australia are of good character are law abiding. Similarly, they expect that any noncitizens who are not of good character to be refused a visa or have any visa they hold cancelled. The character test of the Migration Act 1958 is one of the mechanisms by which government gives effect to this expectation. The character test is an important pillar within Australia's migration framework to protect the Australian community from the risks posed by noncitizens with serious criminal histories or criminal intent.

The Migration Amendment (Aggregate Sentences) Bill 2023 will provide a clear basis for aggregate sentences to be taken into account for all relevant purposes under the Migration Act, including the character test at section 501 of the Migration Act. This will make it clear that, for the purpose of determining if a person has a substantial criminal record, it is irrelevant whether a sentence of imprisonment was imposed on that person for one or more offences.

Importantly, the bill does not change or expand the circumstances in which aggregate sentences are considered for all relevant purposes of the Migration Act. The bill simply confirms the long-held bipartisan understanding that aggregate sentences can be taken into account for all relevant purposes under the Migration Act. In this respect, decisions made under the powers of the Migration Act will not change as a consequence of this bill. In fact, the decisions undertaken will be in a manner consistent with the government's long-held understanding and practice.

The bill responds to the recent full-court Federal Court ruling in Pearson v Minister for Home Affairs handed down in late December of last year. The full Federal Court ruled that an aggregate sentence may not be counted for the purpose of working out if a person has a substantial criminal record under the character test framework and, subsequently, that their visa cannot be subject to mandatory cancellation on this basis.

This judgment has created an inconsistency in Australia's visa cancellation regime, where some noncitizen offenders who, for multiple offences, receive an aggregate sentence of 12 months or more do not meet the criteria of having a substantial criminal record under section 501 of the Migration Act. Such individuals would therefore not be liable for mandatory cancellation of their visa, regardless of the seriousness of their offending. For example, a person who is sentenced to a term of imprisonment for 10 years for committing a violent offence would be found to have a substantial criminal record and would be liable for mandatory cancellation of their visa whereas if they were convicted for 15 years on the basis of two offences, they would not, simply because that sentence was in respect of more than one offence. Aggregate sentences are only imposed in five jurisdictions, leading to grave inconsistencies in how the cancellation framework is applied upon offenders in different states. It would be nonsensical for two people found guilty of the same offences and sentenced to the same period of imprisonment to be treated differently under the Migration Act simply because their offences were committed in different places, so the government is urgently addressing this situation through this bill, by restoring the meaning of 'sentence' in the Migration Act to the meaning that was understood prior to the Federal Court's decision in Pearson.

The bill will also retrospectively amend the Migration Act to validate past decisions and actions that have been rendered invalid on the basis of the judgement in Pearson. This is important to enable those decisions that were to protect the Australian community to stand. It provides the most appropriate mechanism for the government to detain those individuals whose visas were previously cancelled on the basis of sentences for more than one offence and proceed with their removal from Australia. Where previous cancellation decisions were rendered invalid because of Pearson, they will be revalidated. This means the original cancellation decision stands. Following commencement and validation of decisions made, individuals with a validly cancelled visa will be afforded fresh review periods to seek appropriate review avenues for these decisions, if they originally had time remaining to do this prior to the Pearson decision being handed down.

Prior to the Pearson judgement, the Department of Home Affairs acted consistently with an understanding that aggregate sentences should count as a sentence for all decisions under the Migration Act wherever the term 'sentence' appears. The amendments in this bill do not change the framework within which the character test operates. They allow for the continued effective administration of the powers in the Migration Act by ensuring that aggregate sentences are considered sentences, thereby restoring the ability to rely on a substantial criminal record as an objective measure for the purpose of the character test.The government is taking urgent commonsense action in order to keep our community safe. I commend the bill to the chamber.

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