Murray Watt (Queensland, Australian Labor Party, Minister for Agriculture, Fisheries and Forestry) Share this | Link to this | Hansard source

I table the explanatory memorandum relating to the bill and I move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

The Australian community has a reasonable expectation that non-citizens who seek to enter or remain in Australia are of good character and are law abiding. Similarly, they expect any non-citizens 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 serves as an important pillar within Australia's migration framework to protect the Australian community from the risks posed by non-citizens 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 for 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. This 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, the 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 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 non-citizen offenders who, for multiple offences, receive an aggregate sentence of 12 months or more do not meet the definition 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 for a term of imprisonment of 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 2 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 character cancellation framework is applied upon offenders from 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.

This 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.

This Bill will also retrospectively amend the Migration Act to validate past decisions and actions that have been rendered invalid on the basis of the judgment in Pearson. This is important to enable those decisions, which were taken 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 re-validated. This means the original cancellation decision remains.

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 judgment, 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 aggregate sentences are considered sentences—thereby restoring the ability to rely on substantial criminal record as an objective measure for the purpose of the character test.

This Government is taking urgent, common sense action in order to keep our community safe.

I commend this Bill to the Chamber.

Ordered that further consideration of the second reading of this bill be adjourned to 6 March 2023, in accordance with standing order 111.