Senate debates

Wednesday, 8 February 2023


Migration Amendment (Aggregate Sentences) Bill 2023; Second Reading

11:01 am

Photo of James PatersonJames Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | | Hansard source

I rise to make a contribution on the Migration Amendment (Aggregate Sentences) Bill 2023 and to indicate the opposition's position in relation to this bill, which is that we will be supporting it.

This bill is designed to establish a consistent approach across the provisions of the Migration Act, as well as the Migration Regulations 1994, in relation to sentencing for offences. The opposition understands the need for this bill, which follows the decision of the full Federal Court of Australia in Pearson v Minister for Home Affairs. In that case, the Federal Court relevantly held that, in effect, an aggregate sentence—a sentence for more than one offence—imposing a term of imprisonment does not in and of itself constitute a substantial criminal record within the meaning given by section 501(7) of the Migration Act and, in particular, section 501(7)(c), even in the circumstances, as they were in the Pearson case, where the sentence is to an aggregate maximum term of imprisonment of four years and three months in respect of 10 offences. The court arrived at this conclusion having considered the purpose of the mandatory cancellation provision in section 501(3)(a) to be reserved for the most serious offences, noting that an aggregate sentence might be arrived at after conviction of a series of lesser offences and taking into account the definition of a sentence as including any form of determination of the punishment of an offence, as well as the specific use of the singular and in the relevant definitions.

The opposition will always be supportive of sensible legislative changes that protect the national interest, and we support the clear intention of this bill to confirm the long held understanding that aggregate sentences can be taken into account for all relevant purposes under the Migration Act. We have been consistent about this, and this approach was on display also yesterday when we lent our support to the government in redesignating the Republic of Nauru as a regional processing country. This was obviously a very significant error by the government. This remains a very important pillar of Australia's border protection framework, and, while it's difficult to believe that something so significant could simply be overlooked, we nonetheless undertook to support the government, in the national interest, and for that to be redesignated.

However, in supporting this bill and noting our support for the redesignation of Nauru yesterday, I want to foreshadow that when we get to the committee stage I intend to move an amendment on behalf of the opposition which would further strengthen the character test by providing the minister with additional grounds to consider visa cancellation when someone fails that test. In outlining the reasons behind this amendment, I want to state again at the outset that the coalition will always support sensible policy changes to strengthen our laws to protect Australians, but we recognise that here there is an opportunity for the government to strengthen them even further.

We've always supported a strong approach to ensuring that visa holders in Australia uphold and respect the laws of this country, and that they should be subject to the character test to enter and remain in Australia. If a noncitizen breaks the trust of being allowed into Australia by being found guilty and convicted of certain serious offences, and if they pose a risk to the safety of the Australian community, then they clearly do not pass the character test. So they should be considered for a visa refusal or cancellation.

We strongly believe that holding an Australian visa is a privilege that should be denied to those who pose a threat to the safety of Australians. We have a very proud record in government of taking strong actions to protect the Australian community from violent noncitizens who have committed offences in our country. When we were in government, we refused or cancelled over 10,000 visas under the character provisions of the Migration Act. Before the last election, we committed to taking further action to strengthen these provisions and to equip the relevant minister with the additional grounds to consider cancellation of a person's visa. These amendments passed the lower house in the previous term, on 16 February 2022, in the form of the Migration Amendment (Strengthening the Character Test) Bill 2021. Notably, the now Prime Minister voted to support this legislation, as did the now immigration minister and home affairs minister. So I don't anticipate there should be any problems with Labor senators supporting these amendments today, because the amendments are consistent with a bill their colleagues voted for in the House of Representatives and which they said they supported at the time.

These amendments will provide an additional objective ground to consider refusal or discretionary cancellation of a visa under section 501 of the Migration Act where a person has been convicted of a serious crime, but does not meet the current substantial criminal record definition in subsection 501(7) of the Migration Act. These amendments do not in any way seek to undermine the courts or their role. Rather, they create a new ground for failing the character test based on the seriousness of the offence, which in turn is determined by the maximum sentence able to be imposed by the relevant states and territories. This will establish a new designated offences ground in the character test. A designated offence is an offence committed in Australia or in a foreign country, punishable by at least a maximum sentence of no less than two years imprisonment. It involves, for example: violence or the threat of violence against a person; the non-consensual conduct of a sexual nature; the breaching of an order made by a court or tribunal for the personal protection of another person; the use of or possession of a weapon; or the procurement or assistance in anyway of the commission of one of these designated offences. These amendments have been very well thought out, and, importantly, they ensure that convictions for low-level crimes that neither cause nor contribute to a person's bodily harm or a person's mental health, whether temporarily or permanently, will not fall within the scope of a designated offence while also ensuring that any offence involving family violence is indeed included.

As Australians, we should absolutely celebrate the diverse communities that make up our great country and, of course, seek to welcome people here on all types of visas. I firmly believe, however, that all senators would agree that a noncitizen who has been convicted of serious offences is not a fit and proper person to remain in Australia. There should be no loopholes for sentencing leniency, and this amendment addresses situations where sentencing discounts have been given to serious offenders as a result of, for example, a plea bargain, or where serious violent offending is sentenced below the current visa cancellation threshold. These sensible amendments will give the minister extra powers to be able to consider the factors in relation to the nature of the conviction, any sentencing applied and countervailing considerations before deciding whether or not to exercise the discretionary power under section 501 of the Migration Act to refuse to grant or to cancel a visa. The minister will have greater scope to determine if someone has breached the character test in deciding whether to refuse to grant or to cancel a visa. It would not dictate the outcome of the exercise of that discretion.

Our amendments will ensure the character test aligns directly with community expectations that noncitizens who are convicted of offences such as murder, sexual assault or aggravated burglary will not be permitted to enter or remain in the Australian community. The government is right to take action in this bill to ensure consistency in the Migration Act provisions with regard to sentencing, but we believe that our amendment is complementary to those changes that the government is also seeking and that it would only enhance the ability of the minister to make cancellation decisions in the national interest. I commend the amendment to senators, which I will formally move in the committee stage.

11:09 am

Photo of Nick McKimNick 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.

11:20 am

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

I thank those senators who have contributed to this debate. The Migration Amendment (Aggregate Sentences) Bill 2023 will amend the Migration Act 1958. Let's be very clear: this bill is about keeping Australians safe. It's also about clarifying something in legislation that has been a well-understood bipartisan principle, underpinning Australian migration law, for a very long period of time, which was recently called into question as a result of a court decision that occurred just before Christmas.

The amendments in this bill will make it clear that for the purposes of the Migration Act, including determining whether a person has a substantial criminal record for the character test, it is irrelevant whether a sentence or imprisonment was imposed on that person for one offence or two or more offences. 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.

To give an example of what this bill will help clarify, 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, under the current law, and would be liable for mandatory cancellation of their visa; whereas, in the absence of this legislation being passed, if that person were convicted for 15 years on the basis of two offences they would not be subject to mandatory cancellation, simply because that sentence was in respect of more than one offence. That is, clearly, not what the Australian people would expect from their parliament, and that is what we are seeking to change through this legislation.

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. 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 judgement in the Pearson case, which is the case I referred to where the decision was handed down just before Christmas. This is important to enable those decisions, which were taken to protect the Australian community, to stand. 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.

Just before finalising, I must take issue with some of the things that Senator McKim said on behalf of the Greens. As would be expected, the Greens have used this as an opportunity to have a go at Labor and to try to pretend that this bill is about some attack on human rights. Nothing could be further from the truth. The types of individuals who will be affected by this legislation have been convicted of some of the most serious offences under Australian criminal law. It's about people who have committed serious sexual offences, kidnapping offences and a range of other very serious offences.

To try to paint those sorts of people as deserving respect for their human rights at the expense of the Australian people is certainly not something that the Australian government supports. I'm surprised, frankly, that the Greens are questioning whether those are the kinds of people who are right to remain in this country. Of course, powers that rest in the minister to cancel someone's visa need to be exercised carefully. They need to be exercised compassionately, but we make no apologies for ensuring that the minister of the day has the power to cancel the visas of people who have been convicted of some of the most serious offences imaginable under Australian law. Again, it might be good for cheap shots from the Greens to try to pretend that this bill is something that it is not, but this bill is about protecting the Australian people from those who have committed serious offences—not just minor offences, but very serious offences—while in Australia. If the Greens want to defend that kind of behaviour, that is a matter for them.

This bill deserves support from all parts of this chamber, and I commend the bill to the Senate.

Photo of David FawcettDavid Fawcett (SA, Liberal Party) Share this | | Hansard source

The question is that the Migration Amendment (Aggregate Sentences) Bill 2023 be read a second time.