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

Dan Tehan (Wannon, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Link to this | Hansard source

The opposition will be supporting this bill but we will also be putting forward some amendments circulated in my name to strengthen it even further. The government has introduced the Migration Amendment (Aggregate Sentences) Bill 2023, which will amend the Migration Act 1958 to establish a consistent approach across the provisions of the Migration Act as well as the Migration Regulations 1994 in relation to sentencing for offences. As the minister has detailed, there has been bipartisan agreement for the approach that has been taken.

The need for this bill follows the decision of the full court of the Federal Court of Australia in Pearson v Minister for Home Affairs 2022. 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 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. The government is right to correct this and that is why the opposition will be supporting this bill. But we will also be putting forward amendments, because the coalition supports a strong approach to ensuring that visa holders that are in Australia uphold the laws of this country and pass a character test to remain here.

The interesting thing about the character test is that it not only applies to those who break the law but, of course, also applies to those who seek to uphold it. That is why we think the government should support the amendments that we will be putting forward today. If a noncitizen breaks the trust of 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 they will not pass the character test and so they should not be considered for a visa or they should be considered for a visa refusal or cancellation. When in government, the coalition was very strong on ensuring that people who wanted to come to Australia to study, work or settle here were of good character. The coalition remains of that view.

In the last parliament, we introduced legislation to strengthen the character test, and debate commenced here in the House on a bill to do that. That bill was passed with the support of the then Labor opposition. Unfortunately, it did not get to a vote in the Senate before the election. Today, the coalition will move amendments to this government bill to strengthen the character test by providing additional grounds to consider visa cancellation where someone fails the character test. We are not saying the minister must, but we are giving the minister the option. We are giving the minister the option to be able to act on things like family and domestic violence. These amendments will provide an additional objective ground to consider refusal or discretionary cancellation of a visa under section 501 of the Migration Act where a person has been convicted of a serious crime but does not meet the substantial criminal record definition in subsection 501(7) of the Migration Act. The amendments do not in any way seek to undermine the courts or their role; rather, they create a new ground for failing the character test based on the seriousness of the offence, which in turn is determined by the maximum sentence imposed by the relevant states and territories.

What we are doing today is providing the government with two ways that they can support the opposition and our amendments. Earlier, I introduced a private member's bill. My hope is that that will also be supported by the government, because the private member's bill and the amendments that we are putting forward here both act in the same way. They enable the minister—and the minister is sitting here, listening to this—to act when it comes to things like murder, grievous bodily harm, sexual assault and domestic violence. It will give him the option to be able to take action.

My hope is that the government will support these amendments, because the absolute priority of any government is to keep the community safe. The ways that we keep the community safe should be continually and consistently looked at. These amendments, and the private member's bill that I introduced earlier, follow on from the outstanding work that was done by the two previous coalition government ministers for immigration. They put a lot of time, thought and effort into how they could make the community safer. The character test was seen to have worked extremely well in this regard. But they saw a way we could ensure it continued to stay apace with the types of crimes we continue to see in our community. That is why they wanted to give the minister the option of being able to act when there was violence or a threat of violence against a person, or nonconsensual conduct of a sexual nature, or a breach of an order made by a court or tribunal for the personal protection of another person, or using or possessing of a weapon, or procuring or assisting in any way with the commission of one of these designated offences. This is good, commonsense policymaking. It's enabling the minister to act in these situations if the minister deems it necessary to act. All we're doing is giving the minister the option. My view is the Australian people would see these very much as commonsense amendments. My hope is that the minister will see it the same way.

These amendments are a test of character. They're a test of the character of the people who come here to Australia—that they will uphold the laws of this country—and they're a character test of the government. Is the government prepared to act when people break Australian law when it comes to things like sexual offences, domestic violence or using weapons to commit a murder? I hope the government will take the right course on this action.

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

…   …   …

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.

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

When I first became the federal member for Riverina back in 2010 I can well recall my predecessor Kay Hull saying to me to be very mindful of writing letters of support for people who want to come to this country even if it were on a temporary basis, even if it were for a wedding or funeral, should I not know that person. She warned me because she had written a letter of support for a person to come to this nation for a family event and they absconded—they did a runner. The authorities, police and even the family couldn't find this particular person.

The local mayor had written a letter of support for this person. The local family were agitating. Of course, the local press, as you'd imagine and expect, also said, 'Why can't this person be allowed in the country just on a temporary basis, just for this event?' Of course, Mrs Hull, being the great member that she was, wrote the letter, and then regretted it later. It was a valuable lesson she learnt and a valuable piece of advice she passed on to me. Sure as night follows day and day follows night, it wasn't long into my stewardship of the federal seat that indeed a similar situation arose—the same mayor, the same place, the same situation. I said no. I said no and I copped the wrath of the mayor, the press, the family and the community, and yet, in my heart of hearts, I knew it was the right decision to take.

As members of parliament, sometimes we have to make those tough calls. Sometimes we have to make the tough decisions and not do as some people would ask us to do and not fall into the trap of succumbing to a vigilant local media who, when situations like this do go awry, are the first to then criticise and say: 'Why didn't you do this? Why didn't you do that?' It makes it difficult, particularly if the person does a runner, absconds, goes into hiding, takes up a job and goes into the black cash economy. If they don't break any laws as such—any criminal laws; they are breaking the law by staying in the country when they haven't got the visa arrangements to do so. If they don't break any actual criminal laws or commit violence, then people might say, 'So what?' But it's not 'So what?' It's a situation where we need to have the strongest possible migration laws, the strongest possible laws to keep our nation secure.

Keeping our borders safe and keeping the integrity of our visa system intact was one of the hallmarks of the Abbott-Truss, Turnbull-Joyce, Morrison-McCormack and Morrison-Joyce governments. We kept our borders intact. We didn't fall into a situation where we took the easy out or the easy option. It's always easy when you get anecdotal evidence pushed by local media or national media, whatever the case may be, to just give in and to just say yes. But it's when these situations go astray that we are the ones who cop the blame: 'Why did you allow this person in? Why did you sign the reference to permit this person to stay, albeit briefly?' Mrs Hull's advice was sound, and so are the amendments being put forward by the shadow minister for immigration and citizenship, the member for Wannon, and I support them.

It seems to me that the government is playing a bit of catch up when it comes to migration and immigration. We saw this just last week with the sunsetting of the situation in Nauru. I know members opposite have talked a big game when it comes to the Pacific. I know they are talking about the failure of the coalition in arrangements in relation to all matters in relation to the Pacific. They are really pushing this point. It's on all their talking points and in all their speaking engagements. They seem to forget that there was a situation with COVID that actually prevented much of the ability to visit the Pacific islands. They seem to forget that we absolutely made sure, through then Minister for Health Greg Hunt, the member for Flinders, that vaccinations were first and foremost for the Pacific islands along with our own people. But the point is this: Nauru and the situation there was just completely forgotten. The other side just dropped the ball when it came to having those arrangements in place in Nauru so that our national borders were safe. Of course, they made up for it last week, with urgent emergency legislation brought into this place. Again I say they've completely mishandled that situation.

In many ways and in many cases, I do worry. You only had to read the front page of the Australian newspaper this morning in relation to Labor's election pledge to end the use of temporary protection visas. This paves the way for about 19,000 refugees who arrived by sea to stay permanently in Australia. I know the situation with many—some might say all—of those refugees is certainly not perfect, but what we saw when Kevin Rudd first took over as Prime Minister was that he said that there wouldn't be a cigarette paper's breadth between what his arrangements were on boat people and arrivals and what the situation was under the Howard government. Yet we all know what happened under the Rudd-Gillard-Rudd governments. What we saw was boats arriving in their numbers: 50,000 people arriving on more than 800 boats.

People got so uptight, particularly on the other side, about the use of the phrase 'illegal boat arrivals'. Well, they were illegal. I'm sorry, but they were illegal. No-one denies somebody wanting to come to a country such as Australia for a better life for themselves and their children, but what we saw in many cases was people actually throwing their identifications overboard. People who had the capacity and the money to be able to try to get here by many means then arrived illegally. Then, whether it was under us or, indeed, under Labor, they were then put into situations where, yes, it was hard on them and particularly on their children, 8,000 of whom were forcibly placed in detention. Was this the fault of the government? Was this the fault of their parents? The fact is that there 8,000 of them, among 50,000 people. The cost to taxpayers of managing illegal boat arrivals under Labor blew out by $10.3 billion. So there were 800 boats under Labor, 50,000 people under Labor, 8,000 children under Labor and a $10.3 billion cost blowout.

What did we do? We fixed it. We stopped the boats. This was, I have to say, one of the important things that we said we'd do, and under then Minister for Immigration and Border Protection Morrison we did it. We make sure that we stopped the boats. We didn't just stop them because it was illegal for those boats to come; we stopped them to protect the people who were trying to come to Australia. And why wouldn't people want to come to Australia? It's the greatest nation on earth. It's a ticket to freedom. It's a ticket to the best life that you can possibly have in this world. Australia—make no mistake, and I know it gets talked down often—is the best place in all of the world.

I really worry about this situation where these TPV and safe haven enterprise visa holders who arrived before Operation Sovereign Borders commenced on 18 September 2013 are able to apply for permanent residency with family reunion rights and a path to citizenship. Some might say they deserve it. Some might say that it's the right thing to do. But is it going to reignite the desire to return the boats? I hope not. I know we've had boat arrivals and turnbacks already, and I appreciate that this isn't an easy area. I appreciate that we don't want to see what we saw on Christmas Island—those bodies being washed up on the rocks, which was just awful.

I encourage members to support these amendments put forward by the member for Wannon. Our amendments are important. They are going to give the minister extra powers to be able to consider the factors in relation to the nature of the conviction, and that's what this bill is about. I appreciate that the bill has been put in here parliament with good intentions. I appreciate that the bill has been put before parliament with national security in mind. But I don't believe that the bill goes far enough. That's why, I know, the member for Wannon has come in with these amendments—to solidify the bill to make it better. Surely if we can make something better—

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

The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour, and the member will be granted leave to continue when it resumes.