I rise in support of the amendment as moved by the member for Goldstein, and I thank the member for North Sydney for her contribution, which gave a superb case study of why this amendment is needed by this House.
The Migration Amendment (Aggregate Sentences) Bill 2023 was introduced in the Senate just last week, with less than 24 hours notice. The government says that this bill is simply clarifying the Migration Act as an urgent response of the Federal Court of Australia’s recent judgement in Pearson v Minister for Home Affairs. In that case, the court found that a person who receives an aggregate sentence of 12 months or more does not have a substantial criminal record and, therefore, will not have their visa automatically cancelled.
The bill will restore the meaning of ‘sentence’ in the Migration Act so that where a noncitizen offender receives an aggregate sentence of 12 months or more for multiple offences they have a substantial criminal record, fail the character test and therefore are liable for mandatory cancellation of their visa. The government argues that this will restore the intention of the character test, under the act, and remove inconsistencies where some states and territories do not have aggregate sentencing regimes. Unfortunately, though, the possible consequences of this bill reach beyond correcting inconsistencies. It is because of these consequences that I must oppose it and am here to support the member for Goldstein’s amendment, if that could be agreed to.
The government says that noncitizens who have their visas cancelled and are re-detained following the bill’s passage have serious criminal histories. I agree that we must protect the community from serious offenders, but I’m concerned that this bill goes well beyond that. The court found that mandatory visa cancellation should apply in only the most serious cases and that, self-evidently, an aggregate sentence may be arrived at after a conviction of a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled.
This bill would reverse that very sensible position and, instead, allow people to be deported who have committed low-level offences that do not pose a risk to the community, such as obscene language, graffiti and drunk and disorderly offences. The bill also continues to uphold an automatic visa cancellation scheme that I am concerned results in unfair and potentially harmful deportations. Refugees and people who are seeking asylum can be deported under this scheme. These people cannot return to their country of origin and are at risk of being detained indefinitely. The Asylum Seeker Resource Centre, that works with asylum seekers and refugees, finds that indefinite detention causes many people to completely lose hope and they ultimately request to leave Australia, even if they fear death and torture in the country they would return to.
Creating a situation where a refugee is forced to leave Australia raises genuine concerns, questions, about whether we are breaching our international obligations to ensure that a refugee is not sent back to a country where their life or freedom would be threatened. This is why I support the member for Goldstein’s amendment, which would exempt people from this bill who have been sentenced to two years or less in imprisonment and who have been found to be in need of protection, for whom we hold non-refoulement obligations, are stateless or have been granted a visa on humanitarian grounds.
People who have lived in Australia almost all of their lives, since they were children, can have their visas automatically cancelled under this bill. If these people are deported to their birth country, they may have no community, no family, to assist in their rehabilitation. These people include women like Kate Pearson herself, who was convicted of drug and property offences. She was born in New Zealand, but under this bill she now risks deportation after spending 20 years in Australia, leaving behind her partner and her business.
I ultimately oppose this bill because it is unnecessary and unjustified. Under the Migration Act, the immigration minister has discretion to cancel a visa at any time, as we’ve heard numerous times during this debate. If this bill did not proceed, the minister could still decide to cancel the visa of a serious offender who poses a risk to the community. That’s the right of the minister. The bill deprives the immigration minister the chance to assess on a case-by-case basis if a visa cancellation is justified and warranted. The minister cannot consider whether the person has rehabilitated and would be better served remaining in Australia, and I think that’s a real shame.
I am deeply concerned about the speed at which this passed through the Senate and is now before us in the House. I support the member for Goldstein, whose very sensible amendments would bring us closer to the goal of fair and humane migration law.