Nick McKim (Tasmania, Australian Greens) Share this | Hansard source

The Migration Amendment (Aggregate Sentences) Bill 2023 was introduced extremely hastily to the Senate yesterday. It wasn't listed on the draft program this week, and this really is an indecent level of haste by this government.

If passed—and I say 'if passed', but I should probably say 'when passed', because we know that the Labor and Liberal parties are going to collude to get this bill through—it will make aggregate criminal sentences, which are sentences that take into account multiple offences to impose a single total period of imprisonment, as a legal basis for the mandatory cancellation of visas, including protection visas. The bill is designed, quite clearly and explicitly, to circumvent the decision in December last year in Pearson versus the Minister for Home Affairs, where the full court of the Federal Court of Australia ruled that mandatory visa cancellations on the basis of aggregate criminal sentences totalling 12 months imprisonment or more were unlawful.

The Pearson ruling was a much-needed step towards a fair and just immigration system that recognises the importance of individual circumstances. The ruling ensured that mandatory visa cancellations were only imposed for the most serious offences and not for aggregate offences that do not meet the 12-month threshold. However, as we've seen repeatedly in this parliament over the last decade and more under previous Liberal governments, the current government clearly does not appreciate the courts interfering in its application of the god-like powers under section 501 of the Migration Act with inconvenient principles such as the rule of law. Even without the bill before us today, provisions within section 501 explicitly exclude natural justice. The presumption of innocence, for example, a fundamental principle of the rule of law, is upended—that is, if the minister reasonably suspects that a person doesn't pass the character test then it is actually on that person to prove otherwise. Another fundamental rule of law that these powers trample on is the principle of double jeopardy. That's because after serving a sentence, having been convicted for a crime, a person will be punished again for the same crime by being deported from Australia and having their visa cancelled.

So Labor might come in here and argue that it's fixing an inconsistency in the legislation, but what they're really doing is formalising injustice in this country by providing their minister with more powers to circumvent and veto principles of natural justice. The minister already has discretionary powers that can be used to cancel the visas of people convicted of sexual offences against minors—regardless of sentencing, I might add—and against people who harass, molest, intimidate or stalk another person in Australia. These powers can also be used against people who damage or threaten damage to property belonging to, in the possession of or used by the person. Not only can these powers be used against sexual and domestic violence offenders the government is, with the previous government, often crowing about how many visas it has stripped from people for those kinds of offences. So this bill, in effect, further automates powers that are currently discretionary, without any consideration of the circumstances.

In the case of Pearson versus the Minister for Home Affairs, the Federal Court of Australia surmised that because the parliament didn't explicitly make provision for aggregate sentences to be a trigger for visa cancellations then its intention must be that section 501(3A) powers would only capture serious offending and not an aggregation of small sentences for lesser, minor offences. The court noted in its decision, 'Of course, nothing would have prevented the minister from exercising his discretion pursuant to section 501(2) or (3) to cancel her visa should he have been satisfied that she did not pass the character test.' But the government is now letting the court know that, no, it was in fact just a legislative oversight.

This is the first migration bill that the Labor Party has introduced into the parliament since it won government last year. Labor promised to restore human rights obligations in the Migration Act.

Labor also promised to address the circumstances of the over 30,000 people who are currently in Australia on temporary protection visas and transition them onto a pathway to permanent protection. Those are the kinds of things that should have been contained in Labor's first migration bill of its new government. But, no, we are facing a bill that is straight out of Mr Dutton and Mr Morrison's playbook here.

Yesterday, Minister Watt had to come in here and defend the designation of Nauru as an offshore processing country when what he really should have been doing was coming in here and saying that the government is going to bring to Australia the very small number of people who remain on Nauru and look after them here. Obviously the Greens think they should be kept here and offered resettlement here and provided a pathway to citizenship. Even under Labor's policy they could be brought here and looked after and supported in Australia while they are waiting third country resettlement. That's what Minister Watt should have been here explaining to the Senate yesterday that the government were going to do. But instead, sadly, we find ourselves debating a bill that could have been introduced by Mr Dutton or Mr Morrison.

Labor's national platform, at page 124, says:

Labor believes the Refugee Convention plays a critical role in Australian law. Referring to the Refugee Convention in the Migration Act 1958 is good legislative practice.

It commits Labor to:

… reintroduce the appropriate references to the Refugee Convention into the Migration Act 1958.

The fact that this bill is the first proposed legislative reform to the Migration Act is telling and concerning. It will bolster powers that have already harmed many of the most disadvantaged members of our communities, including refugees and people who are seeking asylum and victims-survivors of family violence. These powers already expose vulnerable people to the most severe consequences, including indefinite or arbitrary detention or being forced to return to harm. These powers will, and do, tear families apart.

This bill, as with the existing powers under section 501 of the Migration Act, will disproportionately affect New Zealanders. I note here that New Zealanders comprise nearly half of all visa cancellations in Australia. In New Zealand, the former New Zealand Prime Minister, Ms Ardern, repeatedly called Australia out on the exercise of these powers.

One of Labor's immigration policies was a general commitment to do better by New Zealand and New Zealanders living in Australia on subclass 444 visas, which are temporary visas without any time limitations. They promised to do that so New Zealanders can remain permanent temporary residents who can live here indefinitely. They pay taxes in this country. They work here. They live here. They build lives here. They should have access to all of the rights and social safety nets that come with permanent residency and citizenship.

The New Zealand Prime Minister has very clearly said to Australia, 'Do not deport your people and your problems.' But, despite Labor's election commitment and frequent posturing on this issue in opposition, unfortunately we have got a situation where this legislation, the first proposed reform of the Migration Act post the election and post the formation of a new Labor government, is to provide additional powers to deport New Zealanders and many other people to the countries of their birth or where they hold citizenship, regardless of whether they have any family or other support here in Australia or where they are being deported to.

For the around 100 people who had their visas returned after the Pearson decision and were released from immigration detention over the Christmas period, it's been a rollercoaster ride. It's been a rollercoaster ride that I wouldn't wish on any person. This bill, unfortunately, is an abrogation of moral responsibility. It's a breach of fundamental human rights. It continues the ongoing erosion of rights and freedoms in this country that we saw under the Liberal Party and that now, clearly, many Australians are bracing themselves for under the Labor Party. We need a charter of rights in Australia—and we desperately need it. We're the only liberal democracy in the world that doesn't have some form of charter or bill of rights. It is time that the rights and freedoms of the Australian people were enshrined in a charter or a bill of rights, so that that can provide a defence against the ongoing erosion of rights and freedoms in this country.

The ACTING DEPUTY PR ESIDENT: If there are no further contributions, I'll call the minister.