Jenny Ware (Hughes, Liberal Party) Share this | Hansard source

I rise to support the government's bill, the Migration Amendment (Aggregate Sentences) Bill 2023, which will amend the Migration Act 1958 to respond to the recent Federal Court decision in Pearson v the Minister for Home Affairs. At the outset, this bill concerns the way in which visas can be cancelled for failure to pass the character test, particularly where a visa holder is found to have a substantial criminal record. I support a strong approach to ensure that visa holders that are in Australia uphold the laws of this country and pass a character test to remain here.

In Australia, we welcome those who want to come to our great country to study, work or live here permanently. However, we also expect that these visa holders are of good character, are people of integrity, decency and honour. The good character test which is currently contained in section 501 of the Migration Act has been in place in some form since 1992. It applies to all noncitizens holding or applying for an Australian visa. Part of the test is that we expect that visa holders have not committed serious criminal acts. Under this provision, if the minister or a delegate is not satisfied that a noncitizen passes the character test, they may—or, in some cases, must—cancel a visa or refuse to grant a visa to the person.

Cancellation of a person's visa is mandatory if they are serving a prison sentence and they have a substantial criminal record or have been convicted of sexually based offences involving a child. One of the grounds for determining that a person has a substantial criminal record for the purposes of mandatory visa cancellation is if they have been sentenced to a term of imprisonment of 12 months or more. Recently, in the decision of Pearson, the Federal Court considered whether an aggregate sentence of imprisonment—that is, a single sentence for more than one offence—constituted a term of imprisonment of 12 months or more. The court found that it did not. This bill seeks to amend the Migration Act to provide that, wherever reference is made to 'a sentence of imprisonment', it does not matter whether this sentence has been imposed with respect to one offence or multiple offences. This bill, therefore, is a sensible amendment to overcome some anomalies that developed out of the Pearson judgement. This bill will ensure that there is now far more clarity for the minister.

As a result of the decision in Pearson, it was reported by the Guardian on 29 December last year that up to 100 people had been released from immigration detention after the government lost the Pearson court case. It is noted that this bill will also retrospectively validate decisions affected by the Pearson decision, including validating a previous mandatory cancellation of a person's visa.

Protection of our borders, protection of our national security, is fundamental to protecting the lives and safety of Australians; to maintaining Australian sovereignty, with our values, institutions and territories intact; and to providing for the longer term prosperity of our nation. Australia has welcomed people from all around the globe. We're the most successful multicultural nation throughout history and throughout the world. In return, we have the right to cancel or refuse the visas of those who fail the good character test. Australians expect that, in this place, we ensure that laws are made and amended where necessary to protect them, to protect our territory and our institutions and to ensure the safety of all Australians.

The amendment of the Migration Act through this bill will clarify uncertainty that has arisen around the good character test and what constitutes a 'substantial criminal record'. The passing of this bill will assist to ensure clarity around the mandatory cancellation of visas and the minister's powers, and will otherwise assist to restore integrity to our immigration system. The bill confirms that aggregate sentences for criminal offences can be taken into account for all relevant purposes under the Migration Act.

For all of the reasons just mentioned, particularly protecting Australians' national security, I commend this bill to the House.

See this speech in context