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

Although I understand what the Migration Amendment (Aggregate Sentences) Bill 2023 hopes to do—to protect the Australian community from people who have committed serious crimes—the potential for overreach is real. Australians should be protected, and, indeed, those who have committed serious crimes should be held to account. However, we need to be able to have a reasoned discussion about how that works when it comes to a refugee or a stateless person.

In effect, this bill could mean, for those who have nowhere else to go, indefinite immigration detention—even for those convicted of less serious offences. The question I have is: is that reasonable for crimes that cumulatively add up to total sentences of 12 months or more? In plain English, these could be a series of petty offences committed when the person was in their youth. We're not necessarily talking about serious offences in all cases. What other options other than indefinite detention are there for people whose sentences add up to 12 months or more? I'm aware this is on the spectrum of highly thorny moral issues, but I think we have to have a measured discussion about it because this is about the separation of powers, ministerial responsibility and proportionality.

These amendments apply to people who have an imprisonment sentence of two years or less, which, in the Australian criminal justice system, usually means their actions are on the lower end of the spectrum of offending. The government offers several case studies, from 100, reflecting serious offences, but acknowledges that this is not necessarily representative of the entire group. We know that once someone's visa is cancelled and they're re-detained as a result, it is rare and highly unusual that they're later released. This means those whose visas are cancelled on a mandatory basis are effectively in detention indefinitely, as they can't return to their country of origin, where they face persecution, and they'd be in breach of non-refoulement obligations.

As I understand it, for example, the proposed changes could see a person who as a youth committed a series of minor offences whose penalty adds up to 12 months or more having his or her visa cancelled and being stuck in endless detention, with all the mental and physical toll that goes with that. One case study suggests that a young South Sudanese man, sentenced to 18 months jail for affray, drunk and disorderly and substance related offences, who subsequently had his sentence reduced to 10 months, had his visa cancelled, spent another 2½ years in detention, was released under the judgement I'm about to discuss and now faces being re-detained under this bill.

I'm aware that the minister would prefer not to have godlike ministerial discretion on these matters—I hear that—but this case illustrates why that discretion can sometimes be needed. I don't seek to excuse the offending. The question goes to the proportionality of the punishment.

The retrospectivity of the legislation means that people who the government had released for just days or weeks and reunited with their families and communities will likely be forcibly taken back to detention. The young man I mentioned is one of them. It seems to me that's only likely to compound his trauma of war, being orphaned, traversing refugee camps and a new environment and then seeking solace in drugs and alcohol. These are human factors that this legislation does not address, and these are things that I will address in an amendment to this bill.

The core of the problem here is the one-size-fits-all rejection of the Pearson judgement in which the Federal Court found that people cannot have their visas cancelled automatically and be held in detention based on an aggregate sentence of imprisonment of 12 months or more. The court found that mandatory cancellation should apply in only the most serious cases and that self-evidently an aggregate sentence may be arrived at after conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.

The government seeks to reverse that position, meaning that all of those who were released after the Pearson judgement can be re-detained. As I have already said, this may be justified in some cases. Indeed, the government's argument is for public safety, which I accept in good faith because the rule of law is central to our communities and society; however, so is the separation of powers. As Hannah Dickinson, Principal Solicitor at the ASRC, puts it:

Pearson merely limited the blunt instrument that is mandatory cancellation in its application to aggregate sentences.

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Unnecessary, cruel, politicised policy-making—and in particular, the retrospective overruling of inconvenient court rulings—is a hallmark of previous governments, an approach that has harmed thousands of individuals and families, eroded the rule of law, and left Australia's migration system in disarray.

To release and then re-detain roughly 100 people in the space of weeks is abhorrently cruel, and will devastate those people and their families.

What I have a problem with is the blanket nature of this, with no transparency around the circumstances of those being re-detained and their offences, and no plan for what's to be done with them beyond indefinite detention. I suggest that, if the government disagrees with the decision, the appropriate avenue is the High Court, rather than seeking to overrule three judges of the Federal Court via this legislation. I also point out that, if the government is so concerned about serious offenders being free in the community now, as am I, the minister already has visa cancellation powers under section 501(3)(b) of the Migration Act.

I very much respect the minister's efforts to implement a more humane refugee policy, as evidenced by announcing a path to citizenship for temporary visa holders today. This bill though I think is an overreach and is at odds with that approach. I do not support it in its current form.

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