Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I give notice that, on the next day of sitting, I shall move:

That the provisions of paragraphs (5) to (8) of standing order 111 not apply to the Migration Amendment (Aggregate Sentences) Bill 2023, allowing it to be considered during this period of sittings.

I also table a statement of reasons justifying the need for this bill to be considered during these sittings and seek leave to have the statement incorporated in Hansard.

Leave granted.

The statement read as follows—

The purpose of the Bill is to amend the Migration Act 1958 (the Act) to uphold the protection of the Australian community by allowing aggregate sentences to be considered a sentence for all relevant purposes within the Act. It ensures that the law applies no differently in relation to a single sentence imposed in respect of a single offence, or a single sentence imposed in respect of two or more offences.

These changes have particular relevance to the operation of the character test at section 501 of the Act and will put it beyond all doubt that aggregate sentences will also be able to be considered for the purposes of the refusal of visa applications and discretionary cancellations on character grounds.

This Bill responds to the Full Federal Court decision, Pearson v Ministerfor Home Affairs [2022] FCAFC 203, in which the Court held that aggregate sentences are not able to be taken into account to determine if someone has a 'substantial criminal record' and therefore, does not enliven the mandatory cancellation provisions. The measures in the Bill will ensure that aggregate sentences of 12 months or more in respect of one or more offences are able to be taken into account for the purposes of mandatory cancellation, discretionary cancellations and refusals of visas on character grounds under section 501 of the Act, or any other relevant purpose in the Act. This includes in relation to other character provisions allowing the refusal or discretionary cancellation of a visa and the collection and disclosure of information permitted under the Act relating to a person of 'character concern'.

In addition to these amendments, the Bill proposes to validate past decisions, conduct and other things done taking into account an aggregate sentence been imposed on them. For individuals whose mandatory cancellations are validated following commencement of the legislation, the Bill provides re-enlivened grounds to seek merits or judicial review.

Reasons for Urgency

The Bill requires urgent passage in the 2023 Autumn sittings to enable the Australian Government to continue to mandatorily cancel the visas held by non-citizens currently serving a term of imprisonment who have received an aggregate sentence of 12 months or more in respect of multiple offences, and who have had their visas reinstated since the Pearson decision.

This will allow the Government to address community safety concerns by detaining non- citizens with a history of serious offending upon their release from prison rather than allowing them to return to the community. The Bill will also include retrospective measures to revalidate the mandatory cancellation of non-citizens' visas which were deemed invalid as a consequence of the Pearson judgement. This will allow the Government to return these non-citizens to immigration detention and progress their removal from the country.

Linda White (Victoria, Australian Labor Party) Share this | Link to this | Hansard source

On behalf of the Standing Committee for the Scrutiny of Delegated Legislation, I give notice that, at the giving of notices on the next day of sitting, I shall withdraw business of the Senate notices of motion Nos 2, 3 and 4 standing in my name for one sitting day after today, proposing the disallowance of the Australian Capital Territory National Land (Lakes) Ordinance 2022; the Competition and Consumer (Industry Codes—Franchising) Amendment (Franchise Disclosure Register) Regulations 2022; and the Competition and Consumer Amendment (Consumer Data Right) Regulations 2021.