Division Description Changes — Bills — Migration Amendment (Aggregate Sentences) Bill 2023; Second Reading — 8th Feb 2023

Change	Division
senate vote 2023-02-08#1 Edited by mackay staff on 2023-02-10 11:35:37	Title Bills — Migration Amendment (Aggregate Sentences) Bill 2023; Second Reading Migration Amendment (Aggregate Sentences) Bill 2023 - Second Reading - Agree with bill's main idea Description ~~<p class="speaker">James Paterson</p>~~ <p>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.</p> The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?id=2023-02-08.23.2) to give the bill a [second reading](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/), which is parliamentary jargon for agreeing with its main idea. This means they can now discuss it in greater detail. ### What does this bill do? The [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2223a/23bd057) sets outs the following key points: * Section 501 of the Migration Act 1958 applies a ‘character test’ to all non-citizens holding or applying for an Australian visa. Under this provision, if the Minister or a delegate is not satisfied that a non-citizen passes the ‘character test’ they may—and in some specific cases must—cancel 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. * In Pearson v Minister for Home Affairs, the Federal Court of Australia considered whether an aggregate sentence of imprisonment (a single sentence for more than one offence) constituted ‘a term of imprisonment of 12 months or more’. * The Federal Court found that it did not, and the Government is now seeking to amend the Migration Act to provide that where a provision of the Migration Act or regulations made under that Act refers to a sentence of imprisonment, it does not matter whether this sentence has been imposed with respect to one offence or multiple offences. * The Bill will also retrospectively validate decisions affected by the Pearson decision, including validating previous mandatory cancellation decisions of a person’s visa. * The Human Rights Law Centre has previously stated that the inclusion of aggregated sentences for the purposes of mandatory visa cancellation cannot be ‘easily reconciled with the Labor government’s commitment to reducing immigration detention numbers’. Other human rights advocacy groups, such as the Australian Lawyers for Human Rights, have opposed the Bill. <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> <p>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.</p> ~~<p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>~~

~~James Paterson~~
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.
The majority voted in favour of a [motion](https://www.openaustralia.org.au/senate/?id=2023-02-08.23.2) to give the bill a [second reading](https://peo.gov.au/understand-our-parliament/how-parliament-works/bills-and-laws/making-a-law-in-the-australian-parliament/), which is parliamentary jargon for agreeing with its main idea. This means they can now discuss it in greater detail.
### What does this bill do?
The [bills digest](https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd2223a/23bd057) sets outs the following key points:
* *Section 501 of the Migration Act 1958 applies a ‘character test’ to all non-citizens holding or applying for an Australian visa. Under this provision, if the Minister or a delegate is not satisfied that a non-citizen passes the ‘character test’ they may—and in some specific cases must—cancel 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.*
* *In Pearson v Minister for Home Affairs, the Federal Court of Australia considered whether an aggregate sentence of imprisonment (a single sentence for more than one offence) constituted ‘a term of imprisonment of 12 months or more’.*
* *The Federal Court found that it did not, and the Government is now seeking to amend the Migration Act to provide that where a provision of the Migration Act or regulations made under that Act refers to a sentence of imprisonment, it does not matter whether this sentence has been imposed with respect to one offence or multiple offences.*
* *The Bill will also retrospectively validate decisions affected by the Pearson decision, including validating previous mandatory cancellation decisions of a person’s visa.*
* *The Human Rights Law Centre has previously stated that the inclusion of aggregated sentences for the purposes of mandatory visa cancellation cannot be ‘easily reconciled with the Labor government’s commitment to reducing immigration detention numbers’. Other human rights advocacy groups, such as the Australian Lawyers for Human Rights, have opposed the Bill.*
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.
~~Long debate text truncated.~~