James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

As I foreshadowed in my second reading speech on this bill, the opposition supports this legislation. We recognise the importance of it, following the decision of the full Federal Court in the Pearson case, and I agree with the minister that this is a longstanding bipartisan position in relation to aggregate sentences. It's important that the original intent of the parliament in legislating these provisions be reflected by updating the legislation, given the court case.

Having said that, we believe this is also an opportunity to even further extend the protections that Australians have against people on visas who commit violent offences. Consistent with the bill that was debated in the House in February last year, the Migration Amendment (Strengthening the Character Test) Bill 2021, introduced by the former government and supported at the time by the then Labor opposition, we believe that the minister should have additional powers. It will not be compulsory for the minister to exercise these powers; it will be up to the judgement of the minister. But it will widen the scope of the minister's power to protect Australians from people who commit very serious crimes but receive shorter sentences than are currently captured by the act.

To be clear about the style of the offences that will be captured, they include violence, or the threat of violence, against a person; non-consensual conduct of a sexual nature; breaching an order made by a court or tribunal for the personal protection of another person; using or possessing a weapon; and procuring, or assisting in any way in the commission of any of these designated offences. On any reading and any plain understanding of the law, I think all Australians would agree that these are very serious offences, and it should be an option for the minister for immigration to cancel the visas of people who commit these offences or to refuse an application for a visa for someone who has committed these offences to come to this country.

We'll be moving this amendment. In doing so I note that the then opposition leader and now Prime Minister, the now Minister for Immigration, Citizenship and Multicultural Affairs and the now Minister for Home Affairs all voted for this in the lower house, so I don't anticipate there will be problems from Labor senators in supporting these amendments here today, which will only naturally extend the powers that they're seeking to retain for the minister. With that, I move opposition amendment (1) on sheet 1807:

(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 aga inst 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.

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

The opposition today have moved an amendment that was not a priority for them when they were in government. They only had nearly 10 years to do so! If it were a priority for the coalition, now the opposition, they would have passed it when they actually had the power to do so, in any one of the nearly 10 years that they were in office. In fact, after the then government finally got around to introducing amendments of this kind, they had four years and three immigration ministers to progress them. They sent the bill that this amendment now comes from to three Senate inquiries. So the now opposition had ample opportunity to do this at any point while they were in government, but they chose not to do so and not to make it a priority. Now, all of a sudden, they've decided it is a priority.

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 a reasonable expectation from the Australian community. Similarly, Australians expect that any noncitizens who are not of good character will be refused a visa or have any visa they hold cancelled. That is a logical conclusion that Australians would make. This bill does not change the framework within which the character test operates. 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 substantial criminal record as an objective measure for the purpose of the character test.

This government is taking urgent common-sense action in response to a recent court decision in order to keep our community safe. We're not here to debate the broader character framework; we're here to clarify the powers in the Migration Act. For those reasons, we will be opposing the amendments and the opportunistic politics of those opposite.

James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Link to this | Hansard source

N () (): I don't seek to extend this debate any more than is necessary, because I do understand the time sensitivity, and we want to ensure this bill passes. But I do have to correct the record in relation to the minister's claims that this wasn't a priority for the previous government and that we didn't pass it in our previous nine years in office. In fact, it was put to the parliament a number of times in the previous term: first, in September 2019; second, in October 2021; and, third, in February 2022.

The reason it was not successful in achieving passage in September 2019 or October 2021 was that the Labor Party and the Greens voted together to oppose the bills on those occasions. It wasn't until February 2022 that they finally decided to change their position and support it, and they voted for it in the House of Representatives. But, obviously, that was on the eve of the election, and there wasn't time for the Senate to consider and conclude this matter before the election. So, at the next available opportunity, being now, we are bringing this forward again because we have a longstanding commitment to this. It's one that we now share with the Labor Party, given their vote for this bill in the Senate and the opportunity they'll have in the House of Representatives in February. I encourage them to consider supporting it.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I want to ask the government a question on this. In regard to the amendment put up by Senator Paterson, it states, in amending item 4:

(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:

This begs the question. You have all the people in detention centres in Nauru who want to come to Australia, and they haven't been allowed to because they haven't passed the character test. We know that a lot of these people have destroyed their identification, and we don't know who they are. Therefore, with these people—and some have actually got through the system to actually be given citizenship—where do you stand then if you can't find out the particulars of who they really are? Have they committed an offence in a foreign country, and, therefore, will the government uphold the fact that they should not be allowed to get citizenship?

I want to know how the government intends to deal with this, of people you cannot really identify. Now the Greens are pushing Labor to allow these people from Nauru to come to Australia—and give them residency—but you can't satisfy the Australian people of their character. And, if any criminal offences have been committed in their own country, how is the government going to address this?

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

Senator Hanson, the issues that you've raised aren't relevant to this legislation. I would be happy to arrange for information that'll answer your questions to be provided to you by the minister's office. But, because those issues aren't relevant to this legislation, I don't have the briefing material to address them.

There are a couple of points I would make in response to your points. I think at one point you said that people who are currently on Nauru have been granted citizenship. To my knowledge, that hasn't occurred with any of those people—that they've been granted Australian citizenship. As for the claim that our government is in league with the Greens to bring these people to Australia, in actual fact we have significantly reduced the number of people on Nauru—which I think is a good thing, because they have been there a very, very long time—but the way that has largely been done has been through resettlement in other countries, rather than in Australia. They were just a couple of factual issues that I wanted to correct, and, as I said, I'm happy to arrange for information to be provided to you to address the questions that you were asking.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

In your bill you're suggesting that people who've had a 12-month sentence by the courts are not of good enough character to become Australian citizens or permanent residents. Is that correct?

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

This is quite a simple bill that's very focused on one issue in particular, and that is that there was a court decision handed down just before Christmas which effectively overturned what had been understood to be the law in Australia on one point related to the power of the minister of the day to cancel the visa of someone who had failed the character test because they had a substantial criminal record. What the Australian law had always been understood to be—and, being the representing minister, I'm giving you the best information as I understand it, and someone will tell me if I get this wrong—was that, if someone had been convicted of a number of offences and had an overall sentence or an aggregate sentence of more than 12 months, they could have their visa cancelled. The decision that the court handed down just before Christmas basically said that the person had to have a conviction for one offence that led to a sentence of more than 12 months for that offence, and then they can have their visa cancelled. But, for instance, if someone were convicted of two different offences that had a combined sentence of more than 12 months, they couldn't have their visa cancelled. That was different from what the Australian law had always been understood to be, whether it be a coalition government or a Labor government, so what we're seeking to do through this bill is to clarify that point so that, if there's a particular person who has been convicted of a number of offences where the total sentences are more than 12 months, they could have their visa cancelled. That's what this bill is about. It is not about granting someone citizenship. It's actually about giving ministers power to, effectively, deport people rather than keep them in the country.

Pauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | Link to this | Hansard source

I'm glad you explained that to me. On that basis, I think it's a good move by the government to combine the sentences together, because they are re-offenders. I've also been told that, if the court system know that that person could be deported because of a jail term of 12 months or more, they give a lenient sentence of 11 months so they can't be deported by the minister. That is what I have personally been told, so, if this bill does what you've just said, which is that combined sentences added together are going to give the minister the ability to look at deporting these re-offenders from Australia, it will be a good thing for the Australian people.

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

Minister, if you're able, could you inform the Senate how many people were re-issued with visas post the Pearson decision and whether the minister has, in fact, already cancelled a number of those visas using powers under 501(3)(b) of the Migration Act? If so, how many people have had re-issued visas cancelled and therefore been redetained and retraumatized by the government?

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

I may have to take on notice the exact numbers that you are seeking, but I do know that the minister has cancelled some visas of people since the decision in Pearson effectively resulted in them having a visa re-issued. That's obviously not exactly what happened, but that's the practical effect. But, again, to your claims which I know you keep making—that this government is traumatising people—can we keep this in perspective? We're only talking here about people who have been convicted of some of the most serious offences under Australian criminal law: sexual assault, kidnapping, serious assaults. As I said earlier, I'm surprised that the Greens think that there's something wrong with a minister from any government deciding that those are not appropriate people to stay in Australia. I'm surprised that the Greens think that Australians support the idea that people who come to our country and commit serious sexual assaults, kidnap people or commit serious assaults should remain in our country. But that seems to be the Greens position. I reject this accusation that we are traumatising people, that we're the big bad government picking on poor, defenceless people. These are people who have been convicted of extremely serious offences, and I don't think they should stay in our country. We're not talking about minor offences. We're not talking about shoplifting. We're not talking about traffic offences. We're talking about people who have committed serious sexual assaults or kidnapped people, have been convicted of it and in some cases have been sentenced for very long periods which, owing to peculiarities of the law were aggregate sentences. I don't make any apology for those people losing the right to stay in Australia.

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

Firstly, I urge senators and anyone who might be listening to this broadcast that Senator Watt is an unreliable witness in terms of the Greens position on matters. He can make all the allegations that he likes about what we're saying, and he can draw all the long bows that he likes, but if Senator Watt were a witness in a case that I was legal counsel for, I'd be applying to have him declared as a hostile witness. I urge people that if they really want to know what the Greens think, I'm happy for them to take my words, as a member of the Greens, and not Senator Watt's.

David Fawcett (SA, Liberal Party) Share this | Link to this | Hansard source

Order! Interjections, under standing order 197, are disorderly. Senator McKim, you are welcome to defend the Greens position, but personal reflections are out of order.

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

Thank you for your wise ruling. My first request is to ask Minister Watt if he's able to take the questions I asked on notice. He has responded to some of them at a general level, and accepted the general proposition that I made, which is that the minister has use existing powers under the Migration Act to cancel visas that were reissued post the Pearson case and therefore put people back into detention. If the minister could commit to providing the numbers that I asked for in my original question on notice, I'd appreciate that.

The second point is that if the courts agreed about the seriousness of these offences then the people would have been sentenced to more than 12 months imprisonment and the minister would have had the right to cancel their visas under existing powers. I genuinely don't think that Minister Watt's argument stacks up in any way.

Thirdly, I make the point that about 100 people who were released post the Pearson case—that is, they had visas reissued to them—and who are now liable, should this bill pass, to be re-detained include refugees and stateless people. Senator Watt wants to say that the Greens arguments around human rights that I made in my second reading speech are spurious. They are not spurious arguments.

I'm not going to be hectored by Senator Hanson, who has no idea what she's talking about on this issue and is yet again demonstrating how she wants to punch down on migrants in this country, which she has built a career by doing. I'm not going to be hectored on this by a racist senator like Senator Hanson.

The TEMPORARY CHAIR: Senator McKim, that was a personal reflection which was uncalled for. You will withdraw that remark about Senator Hanson.

I withdraw. The point I'm making is that the people who were released post the Pearson decision and are liable to be re-detained include refugees and stateless people. Many of these people have been in indefinite immigration detention for long periods—many years, in some cases. They are often people with severe trauma backgrounds who are extremely vulnerable. The minister has just admitted that the immigration minister has already cancelled a number of visas that were revived by the Pearson decision, under section 501(3)(b). The process to target the so-called worst offenders is already underway using existing powers of the Migration Act. There is no need for this bill.

I want to raise a couple of specific circumstances of people that are going to be impacted by this bill. I'm not going to talk about people's names or, in any way, identify them. There is one person—a refugee—who has trauma induced psychosis and has been described as one of the most mentally ill people his social workers have ever engaged with. That person should be treated for health conditions, not placed punitively into immigration detention. They're a refugee. They can't go back to their home country, because they have a genuine well-founded fear of persecution. They've been found to be a refugee.

Another case is a refugee who's currently working full time. He was released over Christmas. He's finally reconnected with his daughter and is now going to face being retraumatised and re-detained. Another case is a young refugee whose sentence was reduced to 10 months on appeal. He never should have been caught by the mandatory cancellation provisions, in the Migration Act, in the first place. He finally returned to his mother, over Christmas, and now faces being ripped apart from his mother and sent to an immigration detention facility on the other side of the country—because of this bill.

Seriously, there is no need for this legislation. It's going to rip families apart. It's going to retraumatise incredibly vulnerable people. Yet Senator Watt wants to get up and crack into the Greens on the basis of some spurious longbow argument that he's making. I'd urge Senator Watt to have a bit of a look in the mirror here at what the government is doing and the way the government is destroying lives in this country. As I said in my second reading contribution to this bill, this could have been stumped up by Mr Morrison or Mr Dutton—just like the instrument to designate Nauru as an offshore detention country that Senator Watt had to limply defend yesterday.

This is the same 'rubbish in a different bin' stuff that we're getting from this government. Sadly, in politics in this country, when the Coles and Woolworths of Australian politics change sides in this chamber, it seems that the more things change the more they stay the same.

The TEMPORARY CHAIR: Minister?

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

I don't actually think there was a question in there, so there's probably nothing for me to answer. I had already taken on notice the earlier points. I note that with the example Senator McKim just gave—and I can only assume that the facts he laid out of that individual are correct—he omitted to mention whatever offence it was that that person had been convicted of. It must have been a very serious offence, that led to very high aggregate sentences, for that person to be captured by that legislation—if, indeed, that person is captured by this legislation.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

The court in Pearson v Minister for Home Affairs said, 'Aggregate sentences are often made up of a series of minor offending.' We've had this New Zealand problem, haven't we? We've known this for a while, and it is really putting a strain on our relationship. So I just want to say this.

I think criminals deserve to be locked up. There's no doubt about that. I think everyone's clear on that, where we stand. But if you have someone who came to this country as a kid and has lived in this country for 30 years and learnt how to be a criminal here, isn't that our personal responsibility—and more so for our New Zealand counterparts? This has been going on. And it has not been fixed. How is it fair to deport these people to New Zealand, for example, when they've been here since they were so young? Where's our responsibility in that? These are our Anzacs. We have to be very diplomatic when it comes to New Zealand.

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

Thanks, Senator Lambie. You'd be aware that our government has indicated an intention to change the way migration decisions are made in relation to people who have come here from New Zealand. In fact, the minister has issued a direction—I think that is the terminology—to the effect that, if someone from New Zealand has been in Australia from a very young age, that is to be a primary factor taken into account in decisions about that person's visa.

How that would relate here is that, if this bill is passed, we would go back to the situation in which Australian law has always been understood to be, which is that there would be mandatory cancellation of a person's visa if they were convicted of serious offences that led to long aggregate sentences. But, even if that mandatory—that is, not the decision of the minister—cancellation occurred, the individual concerned would have the power to seek a revocation of that decision. So, effectively, they could appeal that decision to the minister. At that point, if we're talking about a New Zealander or someone originally from New Zealand, the minister would have to give primary consideration to the fact that that individual had lived in Australia for a very long time.

So the person's visa would have mandatory cancellation, but, in the example of the New Zealander who has lived here since they were two or something like that, the minister would have to give consideration to the length of time they've lived in Australia in deciding whether to back off that mandatory cancellation. But the presumption is mandatory cancellation because, again, we are talking about people who have been convicted of very serious offences.

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

I just have one question of clarification for the minister. One of the cases I gave in my last contribution was of a young refugee who arrived in Australia as a child at the age of 10. He was convicted and sentenced, but his sentence was reduced to 10 months on appeal. My understanding is that he was caught by the mandatory cancellation provisions in the Migration Act but that he had a visa reissued based on the Pearson decision and was released into the community.

The issue is—and I ask you to confirm this, Minister—that, firstly, the mandatory cancellation process under the act actually doesn't wait for appeals. In this case it kicked in straight away and didn't wait for appeals. This person had their sentence reduced to less than 12 months and was released post the Pearson decision. Would a person like that be caught by the provisions in this act? Would the provisions of this act allow for the minister to cancel the visa of a person who was caught by the mandatory cancellation provisions but had their sentence reduced to 10 months on appeal?

This is an observation, not a question: regarding the 10 months, I make the point that Senator Watt is talking about really serious offences, but the people who are caught here are people whom the courts have sentenced to less than 12 months imprisonment.

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

Senator McKim, obviously I am not familiar with the particular circumstances of that case. What we're talking about here is aggregate sentences that are of more than 12 months. My understanding, on the advice I've just been given—and I'm happy to come back to you after further examination if this isn't correct—is that if, on appeal, that sentence were to fall below that 12-month mark then that would not be enough to trigger mandatory cancellation. So the sentence on appeal would be taken into account. That's the advice I've been given. If that is not correct, I'll come back to you.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

This bill is retrospective; correct? Is it retrospective and how long does that go back? Sorry, I missed that bit. This may capture the people that were released as a result of the Pearson decision but also a bunch of others. Do you have numbers on how many additional people will be captured by the proposed changes? What are the exact crimes that these individuals committed? How long has each of these people lived in Australia? How did they arrive here? At what age did they arrive here? Do you have much of that information on you now, Minister, or do you have a brief? Can you give me around about without—

Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

Thank you for your questions. We will go to the minister and then, if you need to ask some follow-up questions, we will go back to you.

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

I don't have all of that information here, Senator Lambie, but what I do know is that the legislation is retrospective in the sense that it seeks to apply mandatory cancellation to people who had already had their visas cancelled under mandatory cancellation but this Pearson court decision basically said that their visas were no longer cancelled. So they are a group of people who, because they committed serious offences and had an aggregate sentence of more than 12 months, had mandatory cancellation of their visas. But for a relatively small group of people who had had their visas mandatorily cancelled because they had aggregate sentences of more than 12 months the court decision said, 'That's not allowed,' and therefore their visas have effectively been reissued. They are allowed to stay. They were people who were convicted of serious offences and had mandatory cancellation of their visas. The court said, 'Actually the way the law works is that those people shouldn't have had mandatory cancellation of their visas,' and therefore they got their visas back. What we are trying to do with this legislation is, if you like, step back in time and clarify that, in fact, for this group of people who had aggregate sentences of more than 12 months it was right that they had mandatory cancellation of their visas. That is, as I say, what's always been understood to be the case and the law. It was just that this court decision found something different.

In terms of the types of offences we are talking about you may have heard me say it's not minor offences; it's serious offences. When you think about it, we are talking about offences that lead to sentences of more than 12 months. It is just that in some cases there might have been a six-month conviction for one offence and a 10-year sentence for another offence and, because that's an aggregate sentence of more than 12 months, that wasn't enough for the court. So we are talking about sexual assault, kidnapping and serious assaults. As I say, it's not shoplifting or traffic offences. It's some of the most serious offences you can imagine.

Jacqui Lambie (Tasmania, Jacqui Lambie Network) Share this | Link to this | Hansard source

Can I just go over this. So what you are doing is trying to clear up the muddy waters in this so it is very, very clear; is that correct? I know that, in your dissenting report on the inquiry into the previous government's Migration Amendment (Strengthening the Character Test) Bill 2021, your side was saying that:

The Minister for Home Affairs already has extremely broad powers to act in this way—

that is, to cancel visas—

Section 501 of the Migration Act allows, and in some cases requires, the minister to cancel or refuse a visa …

So this is to clear this up so you are in sync with the court? Is that correct? Am I saying that correctly?

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

Yes, it is to clear this up. I probably wouldn't say that it's to be in sync with the court; I would actually probably say it's to disagree with the court. What the court found was that the Australian law was different to what governments of both persuasions have always thought was the law, and so what we're trying to do with this change is make really clear in the law what was always thought to be the law but the court thought differently. Does that make sense? That probably makes it even more confusing!

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

The question is that opposition amendment (1) on sheet 1807 be agreed to.

Andrew McLachlan (SA, Deputy-President) Share this | Link to this | Hansard source

Pursuant to order, I now call on senators' statements.