Division Description Changes — Bills — Migration Amendment (Aggregate Sentences) Bill 2023; Consideration in Detail — 13th Feb 2023

Change	Division
representatives vote 2023-02-13#2 Edited by mackay staff on 2023-02-17 09:47:08	Title Bills — Migration Amendment (Aggregate Sentences) Bill 2023; Consideration in Detail Migration Amendment (Aggregate Sentences) Bill 2023 - Consideration in Detail - Exception Description ~~<p class="speaker">Zoe Daniel</p>~~ ~~<p>I move the amendment circulated in my name:</p>~~ The majority voted in favour of disagreeing of a motion introduced by Goldstein MP [Zoe Daniel](https://theyvoteforyou.org.au/people/representatives/goldstein/zoe_daniel) (Independent), which means it failed. ### Amendment text > (1) Page 7 (after line 33), at the end of the Bill, add: > > Schedule 2 — Character test > > Migration Act 1958 > > 1 After subsection 501(7) > > Insert: > >> (7AA) Paragraphs (7)(c) and (d) do not apply if the person has been sentenced to a term of imprisonment of 2 years or less, and any of the following apply: >> >>> (a) the person is a person for whom a protection finding within the meaning of subsections 197C(4) to (7) has been made; >>> >>> (b) the person is a person in respect of whom Australia has non-refoulement obligations; >>> >>> (c) the person is stateless; >>> >>> (d) the person has arrived in Australia and has been granted a visa on humanitarian grounds. <p class="italic">(1) Page 7 (after line 33), at the end of the Bill, add:</p> ~~<p class="italic">Schedule 2 — Character test</p>~~ ~~<p class="italic"> <i>Migration Act 1958</i></p>~~ ~~<p class="italic">1 After subsection 501(7)</p>~~ ~~<p class="italic">Insert:</p>~~ ~~<p class="italic">(7AA) Paragraphs (7)(c) and (d) do not apply if the person has been sentenced to a term of imprisonment of 2 years or less, and any of the following apply:</p>~~ ~~<p class="italic">(a) the person is a person for whom a protection finding within the meaning of subsections 197C(4) to (7) has been made;</p>~~ ~~<p class="italic">(b) the person is a person in respect of whom Australia has non-refoulement obligations;</p>~~ ~~<p class="italic">(c) the person is stateless;</p>~~ ~~<p class="italic">(d) the person has arrived in Australia and has been granted a visa on humanitarian grounds.</p>~~ <p>I have several reservations about the Migration Amendment (Aggregate Sentences) Bill 2023. First, I am deeply concerned about its retrospective nature. Retrospectivity is rarely an option to be used, and I am opposed to it in principle. Second, I'm concerned that the legislation, in attempting to address the decision in Pearson, denies the 100 or so individuals affected both procedural fairness and natural justice. I am aware of the community safety issues that the government speaks of. However, this legislation, in my view, is an overstep.</p> <p>This amendment would help protect the rights of refugees whose offences are not grave, for whom visa cancellation and detention have enormous ramifications. I'm advised that, if a refugee's visa is cancelled mandatorily, they're effectively in detention indefinitely, as they can't return to their country of origin due to persecution there, since this would be in breach of non-refoulement rules. Once someone's visa is cancelled and they're detained, it's therefore almost impossible for them to be released. In fact, it appears that the minister doesn't expect people whose visas have been refused or cancelled under section 501 of the Migration Act to even be referred to the minister's office. Therefore, the avenues for review and reconsideration are thin. Visa cancellation, whether it leads to refoulement or to indefinite detention, results in permanent separation of children and families, including refugees who have spent their formative years in Australia. As all of us know, it's not in the best interests of children to be separated from their parents and loved ones.</p> <p>This amendment applies to people who have an imprisonment sentence of two years or less. I do not seek to minimise their crimes. However, the criminal justice system has in general found that their actions are on the lower end of the spectrum of offending. I appreciate the consideration the minister has given me and other crossbenchers in this place and in the other in the face of our scrutiny of the mandatory sentencing regime. It would help this parliament greatly, I believe, if the minister could see his way clear to detailing anonymously exactly what crimes the 100 or so people affected have been convicted of and what each of the sentences was. Transparency would assist a great deal in understanding the decision-making that has led to this bill.</p> <p>I accept the minister's advice that some of those in that group are serious offenders. My issue is that some are not. This is why the blanket nature of this bill is problematic, especially when the minister already has the power to cancel visas when required under section 501 of the Migration Act. I've seen some case studies outlining a handful of cases from the 100 affected, but the government acknowledges that they're not necessarily representative. So what about the other 90 per cent? For those released under the Pearson decision who are reoffending violently or are guilty of sex offences, I would encourage the minister to use those powers that he already has. There's also the simple fact that we have a criminal justice system designed to deal with criminal offences. If that's not working, that's a matter that goes far beyond this group.</p> <p>I welcome the minister's assurance that he will be available for further crossbench consultation. Alternatives to mandatory and indefinite detention need to be discussed in a reasoned way. There are international examples, including a panel decision-making process such as been established in Canada, that could be considered. That process looks in details of the circumstances, at the crimes and at appropriate and proportionate actions to follow.</p> <p>In the meantime, this bill is before us, and this amendment seeks to protect those who would receive disproportionate punishment for aggregated minor crimes under this piece of legislation, without preventing the minister from acting against serious offenders. I commend this amendment to the House.</p> ~~<p class="speaker">Kylea Tink</p>~~ <p>In reading the purpose of this bill, the Migration Amendment (Aggregate Sentences) Bill 2023, I see that it is to respond to the recent Federal Court decision in Pearson v the Minister for Home Affairs. Just pausing on that for a moment and perhaps reframing it, one might say that the purpose of this bill is to retrospectively undo decisions made by the Federal Court late last year.</p> <p>In Pearson, the Federal Court relevantly held that in effect an aggregate sentence—that is, a single 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 subsection 501(7) of the Migration Act. The court reasoned that mandatory cancellation should apply in only the most serious cases and that, self-evidently, an aggregate sentence may be arrived at after conviction for a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled. In making its decision, the court observed that aggregate sentences are often made up of a series of minor offences and that, by way of contrast, mandatory visa cancellation should be reserved for only the most serious offending. In the words of refugee Sarah Dale:</p> ~~<p class="italic">The Court made a finding of proportionate balance, it was a step towards a more humane system.</p>~~ <p>The bill seeks to undo that decision by amending how provisions of the Migration Act and regulations apply in relation to a single sentence imposed by a court, making it the same way regardless of whether the sentence is in respect of a single offence or two or more offences. The provisions as drafted mean that people with non-violent offences like traffic offences, dishonesty or petty theft are treated the same way as violent sexual offenders. It is a blunt instrument with no room for the individual circumstances or facts of the case to be taken into account.</p> <p>For example, there is a case of a young refugee who arrived in Australia from Sudan. when he was 10 years old South Sudan, as we now know it, gained independence as a sovereign state in 2011, leaving the young refugee with no evidence that he is recognised as a citizen. He attended school in Australia and suffered sustained bullying and racial abuse. He went on to develop a dependency on alcohol and got into trouble with the police. He was initially convicted on charges of affray and was sentenced to 18 months imprisonment. Snap! In they went and scooped him up. On appeal, his sentence was reduced to 10 months. Surely there should have been another snap and he should have been released? But, no, he continued to be detained. Recently, thanks to this court ruling, he was returned to his family over Christmas following the Pearson decision, but now he is at risk of being returned to a refugee prison. This is the kind of case in which discretion exercised by the minister would result in a better outcome for this refugee. Surely, then, as that circumstance shows, the question we must ask ourselves in every single case is whether it is a case that a criminal has arrived and is on the ground in Australia or whether the system has created a criminal?</p> <p>We've heard others in this place argue that this bill is necessary to protect the public or similar, but that's just disingenuous. Ministers and their delegates still have godlike powers to cancel visas. The decision in Pearson merely limited the blunt instrument that is mandatory cancellation with application to aggregate sentences, not other applicable powers.</p> <p>This bill, if passed, will apply retrospectively, meaning that people who have just days or weeks prior been released by the government and reunited with their families and communities could be forcibly taken back into detention. To release and then redetain roughly 100 people, including refugees and stateless people, often some of the most vulnerable in our community who have severe mental illnesses and trauma backgrounds, potentially created by their experiences in our country, in the space of weeks is abhorrently cruel and will devastate these people and their families. My concern is for these refugees and stateless people who cannot be removed from Australia due to the non-refoulement obligations under international law and who cannot return to their countries of origin. For these people, this bill is effectively, as the member for Goldstein said, a sentence for mandatory indefinite detention.</p> <p>It's especially jarring for me—and for many in this place, I'm sure—for this bill to be reintroduced with such urgency on the very day that the minister has made an announcement about pathways to permanency for temporary protection visa holders and safe haven enterprise visa holders. Today's announcement was the overdue delivery of an election promise, including commitments from the government to tackle Australia's unacceptable practice of indefinite detention. If the bill that was reintroduced today is passed, it will see more people detained in contradiction with their basic human rights. It will see Australia continue to falter on its international obligations. I commend the amendment as moved by the member for Goldstein and support it.</p> ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~Zoe Daniel~~
~~I move the amendment circulated in my name:~~
The majority voted in favour of *disagreeing* of a motion introduced by Goldstein MP [Zoe Daniel](https://theyvoteforyou.org.au/people/representatives/goldstein/zoe_daniel) (Independent), which means it failed.
### Amendment text
> *(1) Page 7 (after line 33), at the end of the Bill, add:*
>
> *Schedule 2 — Character test*
>
> *Migration Act 1958*
>
> *1 After subsection 501(7)*
>
> *Insert:*
>
>> *(7AA) Paragraphs (7)(c) and (d) do not apply if the person has been sentenced to a term of imprisonment of 2 years or less, and any of the following apply:*
>>
>>> *(a) the person is a person for whom a protection finding within the meaning of subsections 197C(4) to (7) has been made;*
>>>
>>> *(b) the person is a person in respect of whom Australia has non-refoulement obligations;*
>>>
>>> *(c) the person is stateless;*
>>>
>>> *(d) the person has arrived in Australia and has been granted a visa on humanitarian grounds.*
(1) Page 7 (after line 33), at the end of the Bill, add:
~~Schedule 2 — Character test~~
~~ Migration Act 1958~~
~~1 After subsection 501(7)~~
~~Insert:~~
~~(7AA) Paragraphs (7)(c) and (d) do not apply if the person has been sentenced to a term of imprisonment of 2 years or less, and any of the following apply:~~
~~(a) the person is a person for whom a protection finding within the meaning of subsections 197C(4) to (7) has been made;~~
~~(b) the person is a person in respect of whom Australia has non-refoulement obligations;~~
~~(c) the person is stateless;~~
~~(d) the person has arrived in Australia and has been granted a visa on humanitarian grounds.~~
I have several reservations about the Migration Amendment (Aggregate Sentences) Bill 2023. First, I am deeply concerned about its retrospective nature. Retrospectivity is rarely an option to be used, and I am opposed to it in principle. Second, I'm concerned that the legislation, in attempting to address the decision in Pearson, denies the 100 or so individuals affected both procedural fairness and natural justice. I am aware of the community safety issues that the government speaks of. However, this legislation, in my view, is an overstep.
This amendment would help protect the rights of refugees whose offences are not grave, for whom visa cancellation and detention have enormous ramifications. I'm advised that, if a refugee's visa is cancelled mandatorily, they're effectively in detention indefinitely, as they can't return to their country of origin due to persecution there, since this would be in breach of non-refoulement rules. Once someone's visa is cancelled and they're detained, it's therefore almost impossible for them to be released. In fact, it appears that the minister doesn't expect people whose visas have been refused or cancelled under section 501 of the Migration Act to even be referred to the minister's office. Therefore, the avenues for review and reconsideration are thin. Visa cancellation, whether it leads to refoulement or to indefinite detention, results in permanent separation of children and families, including refugees who have spent their formative years in Australia. As all of us know, it's not in the best interests of children to be separated from their parents and loved ones.
This amendment applies to people who have an imprisonment sentence of two years or less. I do not seek to minimise their crimes. However, the criminal justice system has in general found that their actions are on the lower end of the spectrum of offending. I appreciate the consideration the minister has given me and other crossbenchers in this place and in the other in the face of our scrutiny of the mandatory sentencing regime. It would help this parliament greatly, I believe, if the minister could see his way clear to detailing anonymously exactly what crimes the 100 or so people affected have been convicted of and what each of the sentences was. Transparency would assist a great deal in understanding the decision-making that has led to this bill.
I accept the minister's advice that some of those in that group are serious offenders. My issue is that some are not. This is why the blanket nature of this bill is problematic, especially when the minister already has the power to cancel visas when required under section 501 of the Migration Act. I've seen some case studies outlining a handful of cases from the 100 affected, but the government acknowledges that they're not necessarily representative. So what about the other 90 per cent? For those released under the Pearson decision who are reoffending violently or are guilty of sex offences, I would encourage the minister to use those powers that he already has. There's also the simple fact that we have a criminal justice system designed to deal with criminal offences. If that's not working, that's a matter that goes far beyond this group.
I welcome the minister's assurance that he will be available for further crossbench consultation. Alternatives to mandatory and indefinite detention need to be discussed in a reasoned way. There are international examples, including a panel decision-making process such as been established in Canada, that could be considered. That process looks in details of the circumstances, at the crimes and at appropriate and proportionate actions to follow.
In the meantime, this bill is before us, and this amendment seeks to protect those who would receive disproportionate punishment for aggregated minor crimes under this piece of legislation, without preventing the minister from acting against serious offenders. I commend this amendment to the House.
~~Kylea Tink~~
In reading the purpose of this bill, the Migration Amendment (Aggregate Sentences) Bill 2023, I see that it is to respond to the recent Federal Court decision in Pearson v the Minister for Home Affairs. Just pausing on that for a moment and perhaps reframing it, one might say that the purpose of this bill is to retrospectively undo decisions made by the Federal Court late last year.
In Pearson, the Federal Court relevantly held that in effect an aggregate sentence—that is, a single 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 subsection 501(7) of the Migration Act. The court reasoned that mandatory cancellation should apply in only the most serious cases and that, self-evidently, an aggregate sentence may be arrived at after conviction for a series of lesser offences, none of which on their own could render a person liable to have his or her visa mandatorily cancelled. In making its decision, the court observed that aggregate sentences are often made up of a series of minor offences and that, by way of contrast, mandatory visa cancellation should be reserved for only the most serious offending. In the words of refugee Sarah Dale:
~~The Court made a finding of proportionate balance, it was a step towards a more humane system.~~
The bill seeks to undo that decision by amending how provisions of the Migration Act and regulations apply in relation to a single sentence imposed by a court, making it the same way regardless of whether the sentence is in respect of a single offence or two or more offences. The provisions as drafted mean that people with non-violent offences like traffic offences, dishonesty or petty theft are treated the same way as violent sexual offenders. It is a blunt instrument with no room for the individual circumstances or facts of the case to be taken into account.
For example, there is a case of a young refugee who arrived in Australia from Sudan. when he was 10 years old South Sudan, as we now know it, gained independence as a sovereign state in 2011, leaving the young refugee with no evidence that he is recognised as a citizen. He attended school in Australia and suffered sustained bullying and racial abuse. He went on to develop a dependency on alcohol and got into trouble with the police. He was initially convicted on charges of affray and was sentenced to 18 months imprisonment. Snap! In they went and scooped him up. On appeal, his sentence was reduced to 10 months. Surely there should have been another snap and he should have been released? But, no, he continued to be detained. Recently, thanks to this court ruling, he was returned to his family over Christmas following the Pearson decision, but now he is at risk of being returned to a refugee prison. This is the kind of case in which discretion exercised by the minister would result in a better outcome for this refugee. Surely, then, as that circumstance shows, the question we must ask ourselves in every single case is whether it is a case that a criminal has arrived and is on the ground in Australia or whether the system has created a criminal?
We've heard others in this place argue that this bill is necessary to protect the public or similar, but that's just disingenuous. Ministers and their delegates still have godlike powers to cancel visas. The decision in Pearson merely limited the blunt instrument that is mandatory cancellation with application to aggregate sentences, not other applicable powers.
This bill, if passed, will apply retrospectively, meaning that people who have just days or weeks prior been released by the government and reunited with their families and communities could be forcibly taken back into detention. To release and then redetain roughly 100 people, including refugees and stateless people, often some of the most vulnerable in our community who have severe mental illnesses and trauma backgrounds, potentially created by their experiences in our country, in the space of weeks is abhorrently cruel and will devastate these people and their families. My concern is for these refugees and stateless people who cannot be removed from Australia due to the non-refoulement obligations under international law and who cannot return to their countries of origin. For these people, this bill is effectively, as the member for Goldstein said, a sentence for mandatory indefinite detention.
It's especially jarring for me—and for many in this place, I'm sure—for this bill to be reintroduced with such urgency on the very day that the minister has made an announcement about pathways to permanency for temporary protection visa holders and safe haven enterprise visa holders. Today's announcement was the overdue delivery of an election promise, including commitments from the government to tackle Australia's unacceptable practice of indefinite detention. If the bill that was reintroduced today is passed, it will see more people detained in contradiction with their basic human rights. It will see Australia continue to falter on its international obligations. I commend the amendment as moved by the member for Goldstein and support it.
~~Long debate text truncated.~~