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

McCORMACK () (): I very much concur with the member for Wannon and his important amendments to the Migration Amendment (Aggregate Sentences) Bill 2023. As I stated in my contribution—

Sharon Claydon (Newcastle, Australian Labor Party) Share this | Link to this | Hansard source

Sorry, Member for Riverina. The member needs to move the amendments circulated in his name. Is he going to come to the dispatch box? We're waiting for Mr Tehan to arrive at the chamber to move his amendments, but you can speak to them.

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

I speak to the amendment foreshadowed in the chamber earlier by the member for Wannon. Whilst I appreciate the Minister for Immigration, Citizenship and Multicultural Affairs has put this important bill into the House, the member for Wannon's amendment strengthens and adds clarity to the minister's bill. This is important. And I'm glad the immigration minister has arrived—that's important. I commend him for this bill, because we want to make sure that, if somebody is going to be in Australia, on whatever visa arrangement they are fortunate enough to be in this country on, then they have passed the character test that they do the right thing—they uphold and obey the laws of this country. Indeed, when somebody is applying for citizenship, they make a pledge or an oath, and in that pledge or oath they commit to upholding the laws of this nation. The laws of this nation are very important. As I say, if somebody is fortunate enough to be here, under whatever arrangement they've been able to be provided, then they must follow, strictly, the laws of this country.

The various parts of the member for Wannon's amendment to the Migration Amendment (Aggregate Sentences) Bill 2023 very much apply to ensure that the wording is strengthened. Indeed, after paragraph 501(6)(a), he has sought to insert 'the person has been convicted of a designated offence' with a note to see various subsections. Each and every part of his amendment strengthens the amendment bill that has been put to the chamber by the minister for immigration.

For the purposes of the character test, a 'designated offence' is an offence against a law in force in Australia, or a foreign country, in relation to which certain conditions are satisfied, including: violence, or a threat of violence, against a person; non-consensual conduct of a sexual nature, including, without limitation, sexual assault and the non-consensual commission of an act of indecency or sharing of an intimate image; and breaching an order made by a court or tribunal for the personal protection of another person. We heard the member for Sturt referring to this in his contribution. We cannot afford to have people who are here under a visa arrangement breaching the law, breaking the law. We cannot afford to have somebody in this nation who is here as an absolute privilege—indeed, as part of the amendment put forward: 'conspiring with others to commit an offence that is a designated offence' because of any of the situations put forward.

As I say, I commend what the member for Wannon has added to this bill, noting that the national security protection of our borders and, indeed, migration per se, has not been one of Labor's strong points. You only need to read the front-page story of the Australian today to note that. I appreciate that, when Kevin Rudd swept to power in 2007, he came here with a suite of promises to say that he would be very much on board with the Howard-era policies. Indeed, he was not, and the Australian people soon found that out, and 820 boats came with 50,000-plus arrivals, with 8,000 children, and that was such a mess. To this day, it is still an issue for this country.

The member for Wannon's amendment strengthens and adds clarity to what the minister for immigration has put forward. I commend the amendment. I commend the member for Wannon for putting forward this sensible, practical, reasonable amendment, and I urge the House to not only consider it but add it to this bill.

Dan Tehan (Wannon, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to 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 — Strengthening the character test

Migration Act 1958

1 Before subsection 5C(1)

Insert:

Character concern

2 After paragraph 5C(1)(a)

Insert:

(aa) the non-citizen has been convicted of a designated offence (see subsections (3) to (7)); or

3 Before subsection 5C(2)

Insert:

Substantial criminal record

4 At the end of section 5C

Add:

Designated offences general

(3) For the purposes of subsection (1), a designated offence is an offence against a law in force in Australia, or a foreign country, in relation to which the following conditions are satisfied:

(a) one or more of the physical elements of the offence involves:

(i) violence, or a threat of violence, against a person (see subsections (4) and (5)); or

(ii) non-consensual conduct of a sexual nature, including (without limitation) sexual assault and the non-consensual commission of an act of indecency or sharing of an intimate image; or

(iii) breaching an order made by a court or tribunal for the personal protection of another person; or

(iv) using or possessing a weapon (as defined by subsection (6)); or

(v) aiding, abetting, counselling or procuring the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv); or

(vi) inducing the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv), whether through threats or promises or otherwise; or

(vii) being in any way (directly or indirectly) knowingly concerned in, or a party to, the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv); or

(viii) conspiring with others to commit an offence that is a designated offence because of any of subparagraphs (i) to (iv);

(b) for an offence against a law in force in Australia—the offence is punishable by:

(i) imprisonment for life; or

(ii) imprisonment for a fixed term of not less than 2 years; or

(iii) imprisonment for a maximum term of not less than 2 years;

(c) for an offence against a law in force in a foreign country—if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory:

(i) the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory; and

(ii) the Territory offence would have been punishable as mentioned in subparagraph (b)(i), (ii) or (iii).

Designated offences violence against a person

(4) For the purposes of subparagraph (3)(a)(i), violence against a person includes an act constituting an offence of murder, manslaughter, kidnapping, aggravated burglary, robbery or assault, or an equivalent offence.

(5) Despite subparagraph (3)(a)(i) and subsection (4), a person's conviction for an offence of common assault, or an equivalent offence, is taken not to be a conviction for a designated offence unless the act constituting the offence for which the person was convicted:

(a) causes or substantially contributes to:

(i) bodily harm to another person; or

(ii) harm to another person's mental health (within the meaning of the Criminal Code);

whether temporary or permanent; or

(b) involves family violence (as defined by subsection 4AB(1) of the Family Law Act 1975) by the person in relation to another person.

Designated offences possessing a weapon

(6) For the purposes of subparagraph (3)(a)(iv), a weapon includes:

(a) a thing made or adapted for use for inflicting bodily injury; and

(b) a thing where the person who has the thing intends or threatens to use the thing, or intends that the thing be used, to inflict bodily injury.

Designated offences ancillary offences

(7) Despite subparagraphs (3)(a)(v) to (viii), a person's conviction for an offence covered by any of those subparagraphs because of the operation of subparagraph (3)(a)(i) (as affected by subsection (4)), in relation to the commission of an offence (the primary offence) by another person, is taken not to be a conviction for a designated offence if, were the other person to be convicted of the primary offence, that conviction would not be a conviction for a designated offence because of the operation of subsection (5).

5 After paragraph 501(6)(a)

Insert:

(aaa) the person has been convicted of a designated offence (see subsections (7AA) to (7AE)); or

6 After subsection 501(7)

Insert:

Designated offences general

(7AA) For the purposes of the character test, a designated offence is an offence against a law in force in Australia, or a foreign country, in relation to which the following conditions are satisfied:

(a) one or more of the physical elements of the offence involves:

(i) violence, or a threat of violence, against a person (see subsections (7AB) and (7AC)); or

(ii) non-consensual conduct of a sexual nature, including (without limitation) sexual assault and the non-consensual commission of an act of indecency or sharing of an intimate image; or

(iii) breaching an order made by a court or tribunal for the personal protection of another person; or

(iv) using or possessing a weapon (as defined by subsection (7AD)); or

(v) aiding, abetting, counselling or procuring the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv); or

(vi) inducing the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv), whether through threats or promises or otherwise; or

(vii) being in any way (directly or indirectly) knowingly concerned in, or a party to, the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv); or

(viii) conspiring with others to commit an offence that is a designated offence because of any of subparagraphs (i) to (iv);

(b) for an offence against a law in force in Australia—the offence is punishable by:

(i) imprisonment for life; or

(ii) imprisonment for a fixed term of not less than 2 years; or

(iii) imprisonment for a maximum term of not less than 2 years;

(c) for an offence against a law in force in a foreign country—if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory:

(i) the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory; and

(ii) the Territory offence would have been punishable as mentioned in subparagraph (b)(i), (ii) or (iii).

Designated offences violence against a person

(7AB) For the purposes of subparagraph (7AA)(a)(i), violence against a person includes an act constituting an offence of murder, manslaughter, kidnapping, aggravated burglary, robbery or assault, or an equivalent offence.

(7AC) Despite subparagraph (7AA)(a)(i) and subsection (7AB), a person's conviction for an offence of common assault, or an equivalent offence, is taken not to be a conviction for a designated offence unless the act constituting the offence for which the person was convicted:

(a) causes or substantially contributes to:

(i) bodily harm to another person; or

(ii) harm to another person's mental health (within the meaning of the Criminal Code);

whether temporary or permanent; or

(b) involves family violence (as defined by subsection 4AB(1) of the Family Law Act 1975) by the person in relation to another person.

Designated offences possessing a weapon

(7AD) For the purposes of subparagraph (7AA)(a)(iv), a weapon includes:

(a) a thing made or adapted for use for inflicting bodily injury; and

(b) a thing where the person who has the thing intends or threatens to use the thing, or intends that the thing be used, to inflict bodily injury.

Designated offences ancillary offences

(7AE) Despite subparagraphs (7AA)(a)(v) to (viii), a person's conviction for an offence covered by any of those subparagraphs because of the operation of subparagraph (7AA)(a)(i) (as affected by subsection (7AB)), in relation to the commission of an offence (the primary offence) by another person, is taken not to be a conviction for a designated offence if, were the other person to be convicted of the primary offence, that conviction would not be a conviction for a designated offence because of the operation of subsection (7AC).

7 Application of amendments

(1) Paragraph 5C(1)(aa) of the Migration Act 1958, as in force on and after the commencement of this item, applies for the purposes of subsection 336E(2) of that Act in relation to a disclosure of identifying information that is made on or after that commencement.

(2) Paragraph 501(6)(aaa) of the Migration Act 1958, as in force on and after the commencement of this item, applies to:

(a) a decision to grant or refuse to grant a visa, if:

(i) the application for the visa was made before that commencement and had not been finally determined as at that commencement; or

(ii) the application for the visa is made on or after that commencement; and

(b) a decision made on or after that commencement to cancel a visa.

(3) The provisions of the Migration Act 1958 mentioned in subitems (1) and (2) apply as mentioned in those subitems in relation to a person whether the person committed or was convicted of the relevant designated offence before, on or after the commencement of this item.

I would like to add a couple of comments to the comments that I made earlier today. This amendment is a very sensible amendment. It gives the minister the ability to act in instances of domestic violence, sexual assault, murder, illegal possession of firearms. It is a very sensible amendment. We are supporting the government in their efforts to make sure that the character test can continue to operate in the form that we want it to, in the bipartisan way that it always has. There was a court case just before Christmas which changed the arrangements, and we have worked on a bipartisan basis to support the government to fix the decision that was made by the court so it operates how this parliament intends it to operate. In doing that, we have also reached out to the government and said, 'Now is a real opportunity for you to take some sensible measures to also build on and further the character test.'

In many ways, this is a character test of the Prime Minister and his government. Are you prepared to take the necessary decisions to keep this nation safe, to keep the Australian people safe, or will you take the option of ignoring the bipartisan approach that we're extending to give the minister greater powers to be able to take decisions to ensure that those who have committed family violence, those who have committed sexual assaults, are asked to leave this country immediately? It's a good test for the minister, because, as the member for Riverina has said, what we've seen today is a chipping away at Operation Sovereign Borders, a chipping away at keeping our borders safe and secure, a chipping away at making sure that our immigration system is one run with integrity. What we have now is an opportunity for the minister to say: 'No. Even though I stood up at an ALP conference and opposed boat turn-backs, I understand that, with governing, comes responsibility; with governing, comes serious decision-making; with governing, comes the need to act in the national interest to keep our nation safe, to make sure that anyone here on a visa who commits family violence, sexual assault or a firearm offence will be booted from this nation—they have broken the law and they will be dealt with accordingly.'

We are going to support the government in ensuring that the approach that's taken to the character test is consistent with what this parliament has always envisaged it being consistent with. But we're also, through this amendment, saying to the government: 'We think that there are some very common-sense steps that you can take also to build on the character test to give you the option—you don't have to take it up—of being able to keep our nation safer by booting people who have committed domestic violence, sexual assaults, firearm offences. It will give you more bows to be able to take the necessary steps to keep this nation safe.'

Minister, I hope that you will take up this bipartisan offering. You've voted for the equivalent of this amendment before in this House. Hopefully you will do the same again.

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

The shadow minister has today moved amendments that were not a priority for the members opposite when they were in government. Of course, if they had been, they would have been passed when they were in power. They had, I remind the House, four years and three immigration ministers—or, I should say, at least three immigration ministers—and sent the bill where these amendments originated from through three inquiries in the other place.

Of course, the Australian community has a reasonable expectation that noncitizens who seek to enter or remain in Australia are of good character and are law-abiding. That is the strong view of the government. Similarly, Australians expect that any noncitizens who are not of good character will be refused a visa or will have any visa they hold cancelled. The bill before the House right now, the Migration Amendment (Aggregate Sentences) Bill 2023, does not change the framework within which the character test operates. Instead it allows 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. This government, through this bill, is taking urgent, commonsense action in order to keep communities safe. Today we are not here to debate the broader character framework; we're here to clarify powers in the act right now. On this basis, we will be opposing the amendment.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendment moved by the honourable member for Wannon be disagreed to.

Zoe Daniel (Goldstein, Independent) Share this | Link to 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.

Kylea Tink (North Sydney, Independent) Share this | Link to 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.

Helen Haines (Indi, Independent) Share this | Link to this | Hansard source

I rise in support of the amendment as moved by the member for Goldstein, and I thank the member for North Sydney for her contribution, which gave a superb case study of why this amendment is needed by this House.

The Migration Amendment (Aggregate Sentences) Bill 2023 was introduced in the Senate just last week, with less than 24 hours notice. The government says that this bill is simply clarifying the Migration Act as an urgent response of the Federal Court of Australia's recent judgement in Pearson v Minister for Home Affairs. In that case, the court found that a person who receives an aggregate sentence of 12 months or more does not have a substantial criminal record and, therefore, will not have their visa automatically cancelled.

The bill will restore the meaning of 'sentence' in the Migration Act so that where a noncitizen offender receives an aggregate sentence of 12 months or more for multiple offences they have a substantial criminal record, fail the character test and therefore are liable for mandatory cancellation of their visa. The government argues that this will restore the intention of the character test, under the act, and remove inconsistencies where some states and territories do not have aggregate sentencing regimes. Unfortunately, though, the possible consequences of this bill reach beyond correcting inconsistencies. It is because of these consequences that I must oppose it and am here to support the member for Goldstein's amendment, if that could be agreed to.

The government says that noncitizens who have their visas cancelled and are re-detained following the bill's passage have serious criminal histories. I agree that we must protect the community from serious offenders, but I'm concerned that this bill goes well beyond that. The court found that mandatory visa cancellation should apply in only the most serious cases and that, self-evidently, an aggregate sentence may be arrived at after a 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.

This bill would reverse that very sensible position and, instead, allow people to be deported who have committed low-level offences that do not pose a risk to the community, such as obscene language, graffiti and drunk and disorderly offences. The bill also continues to uphold an automatic visa cancellation scheme that I am concerned results in unfair and potentially harmful deportations. Refugees and people who are seeking asylum can be deported under this scheme. These people cannot return to their country of origin and are at risk of being detained indefinitely. The Asylum Seeker Resource Centre, that works with asylum seekers and refugees, finds that indefinite detention causes many people to completely lose hope and they ultimately request to leave Australia, even if they fear death and torture in the country they would return to.

Creating a situation where a refugee is forced to leave Australia raises genuine concerns, questions, about whether we are breaching our international obligations to ensure that a refugee is not sent back to a country where their life or freedom would be threatened. This is why I support the member for Goldstein's amendment, which would exempt people from this bill who have been sentenced to two years or less in imprisonment and who have been found to be in need of protection, for whom we hold non-refoulement obligations, are stateless or have been granted a visa on humanitarian grounds.

People who have lived in Australia almost all of their lives, since they were children, can have their visas automatically cancelled under this bill. If these people are deported to their birth country, they may have no community, no family, to assist in their rehabilitation. These people include women like Kate Pearson herself, who was convicted of drug and property offences. She was born in New Zealand, but under this bill she now risks deportation after spending 20 years in Australia, leaving behind her partner and her business.

I ultimately oppose this bill because it is unnecessary and unjustified. Under the Migration Act, the immigration minister has discretion to cancel a visa at any time, as we've heard numerous times during this debate. If this bill did not proceed, the minister could still decide to cancel the visa of a serious offender who poses a risk to the community. That's the right of the minister. The bill deprives the immigration minister the chance to assess on a case-by-case basis if a visa cancellation is justified and warranted. The minister cannot consider whether the person has rehabilitated and would be better served remaining in Australia, and I think that's a real shame.

I am deeply concerned about the speed at which this passed through the Senate and is now before us in the House. I support the member for Goldstein, whose very sensible amendments would bring us closer to the goal of fair and humane migration law.

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

I note the amendment that the member for Goldstein has put forward and the significant contributions of the member for North Sydney and the member for Indi, but I let them and the House know that we won't be supporting this amendment. The Albanese government is, through this bill, taking a commonsense approach to this question of visa cancellation.

In terms of the amendment, I draw the attention of members to the recently signed Ministerial Direction No. 99, which sets out the principles that departmental decision-makers should consider when deciding whether to refuse or to cancel a noncitizen's visa or whether to revoke a mandatory cancellation. This direction states that Australia's non-refoulement obligations, where a protection finding has been made in respect of an individual, should be considered when a decision-maker is considering refusing or cancelling a visa under section 501 or considering the revocation of a mandatory visa cancellation. Australia does not return individuals to situations where they face persecution or a real risk of torture, cruel, inhumane or degrading treatment or punishment, arbitrary deprivation of life, or the application of the death penalty. This government takes our non-refoulement obligations seriously, and so do I.

So I say to you, Member for Goldstein, and to others who have expressed this concern to me—those from this place and the other place, and I refer particularly to Senator Pocock: I would be very happy to engage with you, separately to the issues contained in this bill, on how Australia can meet our international obligations whilst ensuring that we maintain the safety of the community at all times. However, I say again: this bill doesn't change the framework within which the character test operates.

And I say again, as I said to the shadow minister—and I acknowledge his contribution, since I don't have the opportunity I ordinarily would have to acknowledge the contribution of all members to this debate—that what we are here today to do is to clarify the powers in the Migration Act, not to debate the visa cancellation framework more broadly, important though this debate is to everyone in this place and to the wider community. I want to make clear my willingness again to engage with all members and senators who are prepared to come together in good faith to ensure our character cancellation regime is fit for purpose. However, I am not placed to support the amendment the member for Goldstein has put forward.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that the amendment moved by the honourable member for Goldstein be disagreed to.

Milton Dick (Speaker) Share this | Link to this | Hansard source

The question is that this bill be agreed to.