The Australian Greens acknowledge the extensive work of the Committee in
this inquiry, and thank everyone who made a public submission, or gave evidence
at a public hearing.
The Australian Greens hold many significant and substantive concerns
with the bill before this inquiry, the Migration Amendment (Strengthening
the Character Test) Bill 2018.
Public policy should be based on evidence
Firstly, the Australian Greens question the need for this legislation.
In its report on the bill, the Joint Standing Committee on Migration
(JCSM), as cited earlier in this report, noted:
... there exist 'community concerns about the escalation of
violent crimes such as homicide, serious assault, rape, indecent assault,
aggravated burglary, motor vehicle theft and rioting; particularly in
Victoria', and expressed the view that 'such serious criminal offences
committed by visa holders must have appropriate consequences'.
There are already appropriate consequences for criminal offences
committed by visa holders, as there are for all residents of and visitors to
Australia. But this bill, as have previous amendments to the Migration Act
1958, creates additional and disproportionate consequences for migrant visa
Also of concern is that such overreaching legislation would be drafted
to address perceived concerns, and not evidenced problems – particularly when
these concerns are often inflamed by those who would use them for legislative
and political agendas. Despite community concerns, homicide and related
offences are on the decrease, as is unlawful entry with intent and armed
robbery, and the number of offenders including youth offenders – engaging in
In Victoria, which the JCSM gave special mention, and despite all the
conservative rhetoric of youth gangs, there has been a significant decrease in
youth offences, with Victoria having the second lowest youth offender rate
(behind only the Australian Capital Territory).
Arbitrary and non-reviewable decisions
The Australian Greens are also concerned about this bill’s move away
from an individual sentence-based model, to an arbitrary potential penalty
model. When considering this aspect of the bill, the Parliamentary Joint
Committee on Human Rights (PJCHR) noted:
... the existing framework generally focuses on a
sentence-based approach whereby, for example, the determination of whether a
person has a 'substantial criminal record' is by reference to a person's
sentence of imprisonment. The proposed amendments provide additional bases upon
which the minister may cancel or refuse a visa by reference to the length of
time for which the 'designated offence' may be punishable, rather than the
length of time for which the person is sentenced.
As is the case with mandatory sentencing, which is also widely condemned
by the legal and academic professions, this arbitrary model is blunt and
unjust. As argued by Australian Lawyers for Human Rights:
[This] Bill fails to take into account the role of the
criminal law system and judicial discretion in Australia in considering the
material facts of an offence and imposing a sentence, including a sentence of
imprisonment, which is appropriate in all the circumstances of the case and
which therefore reflects the seriousness of the crime and the risk the person
poses to the Australian community.
The Human Rights Commission further argued:
Given the potential impact on individual rights, any decision
to refuse or cancel a visa should be made properly and take into account all of
the relevant circumstances ... In extreme cases, this can amount to arbitrary
decision making under international human rights law.
Also troubling is that this bill targets a cohort that already has
limited access to justice. As the Federation of Ethnic Communities' Councils of
Australia (FECCA) noted:
Currently the Migration Act adversely impact on highly
vulnerable sections of Australia’s community who have no access to free legal
assistance with the proposed amendments will only further restrict their access
Effects on individuals, families, and communities
FECCA, along with the Human Rights Commission, also raised concerns
regarding the bill’s ability to deport long-term residents of Australia, and to
separate families, noting:
... an individual may be removed to a country the language of
which they do not speak; where they have spent little time (or never lived);
and where they have no familial, social or economic connections.
Regarding families, FECCA argued the bill presents a real risk of facilitating:
... separation of mothers and fathers from children, including
dependent children, and other family members. [Furthermore,] the proposed
inclusion of ‘aiding and abetting’ will disproportionally affect women,
involved in a relationship with an offender, who are often victims of intimate
partner and domestic violence.
This bill, particularly when cancelling the visa of a father, will
therefore potentially creates a twofold blow for dependents, particularly, but
not limited to, when there cancelation was on the basis of family violence. As
the Asylum Seeker Resource Centre (ASRC) submitted:
Most often, the victim of family violence is the wife and/or
child of the perpetrator. When families are present in Australia as visa
holders, there is generally one primary visa holder (often the husband) and one
or more ‘dependent’ visa holders (often a spouse and/or child). When a
husband’s visa is cancelled on account of family violence offences, any
‘dependents’ will also have their visas cancelled. This means that a wife and
child who have suffered family violence will have their visas cancelled and
they will be removed from Australia together with the perpetrator.
Such a situation, the ASRC further argues will lead to:
... an impossible conflict of interest, as the prospect of
losing their visa and that of their children may deter victims of family
violence from seeking the essential protection from violence that they need.
Rights and welfare of children
The Australian Greens are also very concerned about how this bill will
impact on the rights and welfare of children. The Refugee Council of Australia,
in arguing this bill would breach our commitment to international obligations to
the protection of children, such as the Convention on the Rights of the Child,
There is nothing in this Bill that prescribes any
differential treatment for children. While the Explanatory Memorandum suggests
that their visas will be cancelled only in ‘exceptional circumstances’, the
Bill does not spell out what they are or any legislative process to ensure that
consideration. Indeed, it is clear from the Explanatory Memorandum that the
Bill contemplates that some children will be subject to indefinite detention or
removal because of this Bill. This is consistent with political commentary
which suggests the Bill is intended to be used in relation to children.
The ASRC also notes that the arbitrary concept of ‘designated offences’
will disproportionately impact children and young people, as:
Children are more likely to receive lower sentences for
criminal convictions and will generally only receive custodial sentences as a
last resort. However, under the Bill, such sentencing considerations will not
be taken into account and children will be exposed to visa refusal or
cancellation and potentially unaccompanied deportation.
Recognition of time and ties to Australia
Oz Kiwi, in its submission, noted:
Prior to 1998, the deportation of non-citizens who had
committed criminal offences was covered by sections 200 and 201 of the Migration
Act 1958 (Cth). Under these sections, the Minister could only deport a
non-citizen who had been convicted of a crime (punishable by imprisonment for
two years or more) if the non-citizen had been resident in Australia for less
than ten years.
The Australian Greens believe Oz Kiwi’s recommendation that any
non-citizen who has either lived in Australia for more than ten (10) years, or
who arrived in Australia before the age of ten (10), should not be able to have
their visa cancelled, warrants further consideration by the Parliament.
Such an amendment would also bring Australia into line with its Trans-Tasman
Travel Arrangement partner, New Zealand, which has a tiered deportation system
that takes into account how long a person has lived there, and the seriousness
of their crimes. In New Zealand, a non-citizen cannot be deported after 10
years of living in the country.
Retrospectivity, and the rule of law
The Australian Greens have long argued that retrospective laws are
inconsistent with the rule of law – particularly when applied to punitive
legislation. The amendments in this bill will apply to anyone who holds a visa
and committed or was convicted of a designated offence at any time. The Law
Council of Australia submitted its concerns that the bill:
... could be used to remove a non-citizen for their historic
involvement in a designated offence, which in the absence of the proposed
amendments may not have amounted to a failure to pass the character test [and]
that there has been insufficient justification for the possible retrospective
nature of the proposed measures, particularly when consideration is given to
the considerable impact on the lives of those that may be affected by the
In summary, this bill – which targets migrants and bypasses judicial
process – will lower an already low bar for refusing or cancelling the visas of
non-citizens, for reasons, as identified in the explanatory memorandum, such as
sharing intimate images, verbally threatening someone, associating with members
of a gang, or holding a rock in a threatening way.
With the Government, joint-committees of this Parliament, and witnesses
for this inquiry all failing to present a case for why these additional powers
and legislation are necessary, and given the Minister already has legislated
powers to cancel the visas of serious offenders under the Migration Act 1958,
the Australian Greens will recommend this bill not be passed by the Senate.
The Australian Greens recommend that the Senate does not pass this bill.
Senator Nick McKim
Senator for Tasmania
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