Michael McCormack (Riverina, National Party, Shadow Minister for International Development and the Pacific) Share this | Link to this | Hansard source

The government has introduced the Migration Amendment (Aggregate Sentences) Bill 2023 with the intention that will amend the Migration Act 1958 to establish a consistent approach across the provisions of the Migration Act as well as Migration Regulations 1994 in relation to sentencing for offences. The coalition supports a rigid, strong approach, ensuring that visa holders who are in Australia uphold the laws of this country and pass a character test to remain here. The need for this bill follows the decision of the full Federal Court of Australia in Pearson v Minister for Home Affairs [2022] FCAFC 203 Pearson. In Pearson, the Federal Court relevantly held that, in effect, an aggregate sentence—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, particularly 501(7)(c), even in circumstances where the sentence is to an aggregate maximum term of imprisonment of four years and three months in respect of 10 offences.

People who come here and are in Australia need to uphold the laws of this country. It's in the Citizenship Act, it's part of the visa requirements, and people must know that they need to uphold and respect the laws of this nation. If a non-citizen breaks the trust of being allowed into Australia by being found guilty and convicted of certain serious offences—pose a risk of safety to the Australian community—then they do not pass, absolutely do not pass the character test, so they should be considered for visa refusal or cancellation. It's a great privilege to be allowed to enter Australia. It's a great privilege to be a citizen of this country. This bill clarifies the longstanding understanding of how aggregate sentences are treated in relation to the cancelling of a person's visa on said character grounds.

Following the Federal Court's decision in the Pearson case there is uncertainty surrounding the ability for the minister to cancel someone's visa based on how a court imposes a particular sentence. The opposition does support this bill. We feel it does bring clarity to the situation. But in the same instance I support the member for Wannon's amendment to make sure that this bill is better, to make sure that it serves the purpose in a better way. We know that Labor does not come to this place with a good record on migration. We absolutely want to make sure that there is clarity around this bill, to make sure that it works effectively and to make sure that people who are in this country pass the character test.

James Stevens (Sturt, Liberal Party) Share this | Link to this | Hansard source

S () (): I rise to speak in favour of the Migration Amendment (Aggregate Sentences) Bill 2023. As my colleague the member for Riverina has just canvassed, this fairly narrow piece of legislation is in response to the Federal Court full bench Pearson decision, which has—obviously without reflecting on the decision—given rise to a circumstance where people that we believed under the intention of our legislation should have been captured are not. Of course it is the right of the Federal Court to make that determination. It is our right as a legislature to, therefore, clarify the statute so that that issue of interpretation is addressed. If this bill passes this House and the parliament, it will see the intention of the principle re-clarified in legislation so that precedent through that decision no longer stands. There is retrospectivity around that as well.

I was just becoming fairly politically aware at the time of the very iconic statement that former prime minister John Howard made during the 2001 election—'We should decide who comes to this country and the circumstances in which they come.' I remember that that became a very significant factor in the 2001 federal election. It was a very significant contributor to the result in that election, which was of course the resounding re-election of the Howard government, because the people of this country have always expected that the federal government properly controls the flow of people into our nation and that it is a decision of Australians. The government of Australia have a right to determine how people who are not citizens of this country enter this country and leave this country. When we do grant them permission to come we can of course remove that permission in certain circumstances.

Obviously there has always been a fair degree of consensus that there is a certain character threshold that will be applied and enforced upon people who seek any form of visa to enter this country, because it is granted with the permission of this government—and it is up to our government to decide whether or not to do so. It has always been a principle that we would apply certain standards to people who seek a visa or have successfully been given a visa and that we need to have a proper regime in place so that where, firstly, they're applying for that visa and, secondly, once they have had that visa granted that application can be rejected or the visa can be retracted, disallowed or revoked if they fail that test. Clearly it makes sense for the relevant minister to be delegated that power within a certain framework that is provided legislatively. So we're dealing here with that amendment.

We in the coalition are a little disappointed that the opportunity has been missed to do more than just this very narrow adjustment to the legislation. In the previous parliament we had attempted to dramatically strengthen elements of the character test and strengthen the threshold, that we have put in place, that determines whether or not someone is a fit and proper person to be granted a visa to enter this country.

That's something that is very important, because the standards that we put in place there are, firstly, to ensure the safety of the Australian community and also send a very clear message as to the types of people who are welcome to come to our nation. People who have been convicted of certain criminal offences are not welcome to come to this country, both because they pose a risk to Australian citizens and because people who engage in that sort of behaviour are not welcome to come and enjoy any time or future in this country of ours. That is, absolutely, an important requirement of our government—to put that threshold in place and back it and defend it.

There are opportunities to do a lot more than what is in this bill. The bill that we introduced in the last parliament and that passed this House and didn't pass the Senate, come the calling of the election, has exactly the sorts of measures that we would like to see the government—who voted for it, when they were in opposition, in the last parliament—put into place. It's ready to go. It, literally, is written legislation that has already passed this parliament with the support of both sides, government and opposition.

I commend my colleague the member for Wannon who introduced his own private member's legislation today, because the government's had almost a year since the election. It's been nine months, and there have been plenty of opportunities to put in place, reintroduce, a very straightforward piece of legislation, that the now government themselves supported in the previous parliament, to strengthen the character test that is in place for people applying for or granted visas.

We know full well there are many examples that have been pointed to. Former Minister Hawke, when he had carriage of this area of policy, cited many examples in this chamber and publicly as to where a higher standard needed to be put in place in the character test. We know that the ministers are certainly bound, as they should be, by the framework that is put in place in legislation, which is the very reason we're here right now dealing with this very narrow change. A court has held that the power for the minister did not apply, in the case of Pearson, with these accumulated sentences, and we are therefore making a change.

It reinforces that ministers, quite properly, do have very clear boundaries in place with how they can exercise their decision-making. We know how regularly decisions of the immigration minister are appealed and how regularly they go through all the various appropriate processes, that people have access to, to query and question and seek to overturn a ministerial decision. That's why they need a more robust framework in the character test. There are some people who do not come within the current boundaries of the legislation, for a minister to make that decision, who we think should be refused a visa or have their visa revoked.

These are people who have been convicted of serious criminal offences, very serious areas of the Criminal Code, including sexual violence, sexual assault and a whole range of things that any reasonable person in the street would say, 'Yes, that person should not be granted a visa to come to our nation, into our country.' The reality is that, unless we change the legislation, the minister will not be able to exercise their power to prevent those people from coming into this country or to send them away from our country if they happen to already be here.

The member for Wannon's private member's bill addresses that. It is very disappointing that we have not seen the government—in this bill, here, which responds to one narrow issue relating to a Federal Court decision—take the opportunity to properly deal with a whole range of sensible reforms to the character test within the legislation. So we would wonder and we would cast aspersions as to why a piece of legislation that the now government voted for in opposition has simply lapsed. I have spoken in this chamber on so many bills that lapsed in the last parliament that the government has reintroduced and has been moving through. This is legislation from the previous parliament that the government indeed supported in opposition. So there is no reason why on something as significant as protecting the people of this country from dangerous convicted criminals who under those legislative changes would be in a position for the minister to take appropriate action on we haven't dealt with it yet. We have gotten to the point where, today, we had to take the initiative through a private member's bill process to try and put in place changes that the government themselves agreed to in the last parliament. So that is very disappointing.

We are, of course, going to support this bill. We look forward to its speedy passage because it does correct a decision. We would like to see the ministerial power be clarified and we want the minister to be able to take the action the minister took in the case of the Pearson matter. That had ramifications for, I think, dozens if not maybe more than 100 people that similarly had been captured in that decision as not being able to have a ministerial determination against them.

But we also say with a great deal of disappointment that it is a shame that further important reforms to the character test that already passed this House in the last parliament have not been reintroduced and we haven't gone through the process of correcting the legislation because of a court decision or, equally, gone to the extent of making all of the various other changes. With those comments, I commend the bill to the House.

Jenny Ware (Hughes, Liberal Party) Share this | Link to this | Hansard source

I rise to support the government's bill, the Migration Amendment (Aggregate Sentences) Bill 2023, which will amend the Migration Act 1958 to respond to the recent Federal Court decision in Pearson v the Minister for Home Affairs. At the outset, this bill concerns the way in which visas can be cancelled for failure to pass the character test, particularly where a visa holder is found to have a substantial criminal record. I support a strong approach to ensure that visa holders that are in Australia uphold the laws of this country and pass a character test to remain here.

In Australia, we welcome those who want to come to our great country to study, work or live here permanently. However, we also expect that these visa holders are of good character, are people of integrity, decency and honour. The good character test which is currently contained in section 501 of the Migration Act has been in place in some form since 1992. It applies to all noncitizens holding or applying for an Australian visa. Part of the test is that we expect that visa holders have not committed serious criminal acts. Under this provision, if the minister or a delegate is not satisfied that a noncitizen passes the character test, they may—or, in some cases, must—cancel a visa or refuse to grant a visa to the person.

Cancellation of a person's visa is mandatory if they are serving a prison sentence and they have a substantial criminal record or have been convicted of sexually based offences involving a child. One of the grounds for determining that a person has a substantial criminal record for the purposes of mandatory visa cancellation is if they have been sentenced to a term of imprisonment of 12 months or more. Recently, in the decision of Pearson, the Federal Court considered whether an aggregate sentence of imprisonment—that is, a single sentence for more than one offence—constituted a term of imprisonment of 12 months or more. The court found that it did not. This bill seeks to amend the Migration Act to provide that, wherever reference is made to 'a sentence of imprisonment', it does not matter whether this sentence has been imposed with respect to one offence or multiple offences. This bill, therefore, is a sensible amendment to overcome some anomalies that developed out of the Pearson judgement. This bill will ensure that there is now far more clarity for the minister.

As a result of the decision in Pearson, it was reported by the Guardian on 29 December last year that up to 100 people had been released from immigration detention after the government lost the Pearson court case. It is noted that this bill will also retrospectively validate decisions affected by the Pearson decision, including validating a previous mandatory cancellation of a person's visa.

Protection of our borders, protection of our national security, is fundamental to protecting the lives and safety of Australians; to maintaining Australian sovereignty, with our values, institutions and territories intact; and to providing for the longer term prosperity of our nation. Australia has welcomed people from all around the globe. We're the most successful multicultural nation throughout history and throughout the world. In return, we have the right to cancel or refuse the visas of those who fail the good character test. Australians expect that, in this place, we ensure that laws are made and amended where necessary to protect them, to protect our territory and our institutions and to ensure the safety of all Australians.

The amendment of the Migration Act through this bill will clarify uncertainty that has arisen around the good character test and what constitutes a 'substantial criminal record'. The passing of this bill will assist to ensure clarity around the mandatory cancellation of visas and the minister's powers, and will otherwise assist to restore integrity to our immigration system. The bill confirms that aggregate sentences for criminal offences can be taken into account for all relevant purposes under the Migration Act.

For all of the reasons just mentioned, particularly protecting Australians' national security, I commend this bill to the House.

David Gillespie (Lyne, National Party) Share this | Link to this | Hansard source

I rise in support of the Migration Amendment (Aggregate Sentences) Bill, and I'd also like to acknowledge the amendments that have been moved by the member for Wannon, as I think they are sensible and would even strengthen the provisions of the bill.

The need for this bill, as outlined by other speakers—but I just want to put it on the record—follows the decision of the full Federal Court of Australia in the court case Pearson v Minister for Home Affairs. In the Pearson decision, the Federal Court held, relevantly, 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 and particularly paragraph 501(7)(c), even in circumstances where the sentence is to an aggregate maximum term of imprisonment of four years and three months in respect of 10 offences. Now, that is one that was specifically mentioned. But it would have unintended consequences for aggregate sentences for, say, two or three very serious crimes, for even longer than the four years and three months mentioned in that specific decision. If a noncitizen breaks the trust involved in their being allowed in Australia, by being found guilty and convicted of certain serious offences, and poses a risk to the safety of the Australian community, then I agree that they don't pass the character test, and so they should be considered for visa refusal or cancellation.

The bill also includes provisions to validate past decisions and actions under the Migration Act and certain other specified laws where those decisions and actions might have otherwise been deemed invalid as a consequence of the Federal Court's decision in Pearson. This means the mandatory invalidation of cancelled visas occurred and up to 100 people who would have otherwise—historically, and with this current amendment—not met the character test at all have had their detention cancelled.

I mentioned the member for Wannon's amendments. These were amendments that were being considered last year. They include designated offences that would give more strength to the arm of the minister to cancel the visas for noncitizens if they had committed a designated offence, such as violence or threat of violence; sexual assault; breaching court orders such as AVOs for the personal protection of another person; and offences that did not occur in Australia but which, if they had occurred in Australia, would have been punishable by imprisonment for life, imprisonment for a fixed term not less than two years or imprisonment for a maximum term of not less than two years. These are sensible, rational amendments, and I urge the minister to consider them in the good spirit in which they are given.

The Migration Amendment (Aggregate Sentences) Bill 2023 is a very important bill because we have got a strong record of getting the right character person as a permanent resident or eventually a citizen in the country. The nation must reserve the right to get the right people living here. I commend the bill to the House.

Question agreed to.

Bill read a second time.