Out of the Coalition Playbook: Albanese Blocks Deportation Loophole in Migration Law

The Albanese government quietly released 100-odd noncitizen detainees from immigration detention over Christmas-New Year 2022, with no official reason as to why. Instead, it was left to advocates to explain to the media that the move was connected to a recent court decision.

The full Federal Court found on 22 December in Pearson versus Minister for Home Affairs, that the character test in section 501 of the Migration Act 1958 (Cth) does not apply to an aggregate sentence: one single term of prison created out of multiple sentences relating to different offences.

Introduced on 6 February, the Migration Amendment (Aggregate Sentences) Bill 2023 amends the Migration Act 1958 (Cth), so that deportations over aggregate sentences can continue, with the bill having passed the Senate last week and making its way through the lower house on Monday.

“The bill simply confirms the long-held bipartisan understanding that aggregate sentences can be taken into account for all relevant purposes under the Migration Act,” explained immigration minister Andrew Giles, during his second reading speech on it.

And the blocking of this legal loophole is similar to the way the Coalition passed laws in 2021 to clarify that indefinite detention is permitted in order to reverse a contrary court ruling, while the current bill is further designed to see those released during the holiday period put back in detention.

Patchwork law

Then immigration minister Scott Morrison made amendments to the migration character test in late 2014, which lowered the threshold as to when noncitizens are expelled from the country in relation to breaking the law, with prison sentences of 12 months or more triggering mandatory removal.

And since these changes came into effect more than 7,000 noncitizens, including long-term residents, have been deported under laws that apply in a cumulative and retrospective manner, while 63 percent of those now in detention have had their visas cancelled due to failing the test.

Pearson led to roughly 100 noncitizens being released back into the community, after the Federal Court determined that an aggregate sentence doesn’t constitute the section 501 “substantial criminal record” requirement, as the 12 month threshold should only apply to a single offence.

According to Giles, both major parties have been taking the same approach to the current 501 deportation scheme since it was established under Morrison, which has always involved aggregate sentences being included under the terms of which a noncitizen may be made to leave the country.

“Aggregate sentences are only imposed in five jurisdictions, leading to grave inconsistencies in how the cancellation framework is applied upon offenders in different states,” Giles told parliament, adding that two people with similar offending shouldn’t be treated differently due to their locations.

The guts of the bill

On the day following the bill having received royal assent, section 5AB will be inserted into the Migration Act, which makes the provisions within it and its accompanying regulations apply to sentences involving two or more offences in the same way as they do to a sentence for one offence.

The legislation then stipulates that subsection 501(7)(c), which provides that being “sentenced to a term of imprisonment of 12 months or more” is a “substantial criminal record” and, therefore, triggers deportation, applies to either a sentence for “a single offence or two or more offences”.

The bill’s explanatory memorandum sets out that in “determining whether a noncitizen is a character of concern” any conduct carried out by them prior to the enactment of the new bill, on the day of its commencement or on a day after that date, is captured under the new law.

Section 5AB applies to cases where a noncitizen has applied for the cancellation of their visa to be revoked, and this continues to be the case with applications in this regard that began prior to the commencement of the new legislation.

The provisions of the Aggregate Sentences Bill further result in “retrospective validation of previous mandatory cancellation decisions made” under section 501, which means those 100-odd noncitizen detainees released over the holiday period, will now find themselves being placed back in detention.

Giles’ legislation further involves any legal proceedings having begun or determinations that were made in between the Pearson ruling on 22 December and the commencement of the new law now being invalidated. However, fresh actions regarding these matters may be taken post-enactment.

Continuing the Coalition’s agenda

During the upper house debate on the bill, Greens Senator Nick McKim outlined that the haste in which Immigration produced its bill was indicative of the way successive governments have approached the “courts interfering in its application of the god-like powers under section 501”.

The Greens immigration and citizenship spokesperson added that the Pearson ruling was a “much-needed step towards a fair and just immigration system”, as aggregate sentences being captured under the 501 character test mean that visa cancellations are being applied to minor crimes.

McKim asserted that the provision of the test already upends the presumption of innocence, as if the minister suspects a noncitizen fails it, it is then up to the individual to prove otherwise, while deportation also acts as double punishment in that deportees have already served their time.

In Pearson, the senator continued, the Federal Court found that “parliament didn’t explicitly make provision for aggregate sentences to be a trigger for visa cancellations”, as its intention must have been that the powers “would only capture serious offending”, not numerous minor offences.

Indeed, McKim further underscored that regardless of whether aggregate sentences applied to the character test, section 501 continues to permit the minister to cancel a noncitizens visa at their own discretion under such circumstances.

“This is the first migration bill that the Labor Party has introduced into the parliament since it won government last year,” McKim told the chamber. “Labor promised to restore human rights obligations in the Migration Act.”

The senator likened Giles’ legislative patch job to a move straight out of the Dutton and Morrison playbooks, and he added that this reform will disproportionately impact New Zealanders living in the community, as this has always been the case since the 2014 amendments took effect.

“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,” McKim made clear.

“This bill… 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.”