On 4 July 2019 the Senate referred, contingent upon introduction in the House of Representatives, the provisions of the Migration Amendment (Strengthening the Character Test) Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 13 September 2019.
The Senate referred the bill to the committee following a recommendation of the Selection of Bills Committee. The report of the Selection of Bills Committee presented multiple reasons for referral, including to allow stakeholders an opportunity to inform the committee of detailed concerns.
Previous bill and committee inquiry
The bill is identical to another bill of a similar name: the Migration Amendment (Strengthening the Character Test) Bill 2018 (the 2018 bill).
The 2018 bill was introduced into the House of Representatives on 25 October 2018 by the Minister for Immigration, Citizenship and Multicultural Affairs, the Hon David Coleman MP. It lapsed at prorogation of the 45th Parliament on 11 April 2019.
On 15 November 2018 the Senate referred the provisions of the 2018 bill to the committee for inquiry and report by 18 January 2019. The committee received 17 submissions and did not conduct any public hearings. The committee presented its report on 17 December 2018 with one recommendation: that the bill be passed. Labor senators presented a dissenting report with four recommendations, including that the bill not be passed in its current form. The Australian Greens presented a dissenting report recommending that the Senate not pass the bill.
Conduct of this inquiry
Details of the inquiry were advertised on the committee's webpage. The committee called for submissions to be received by 7 August 2019 and also wrote to a range of organisations inviting them to submit. The committee received 32 submissions, which are listed at Appendix 1.
The committee held one public hearing on 19 August 2019 in Canberra. The witnesses who appeared at that hearing are listed at Appendix 2.
In conducting this inquiry, the committee was also able to consider public submissions to its earlier inquiry into the 2018 bill. Where appropriate, the submitters to the earlier inquiry were advised that there was no need to re‑submit to this inquiry unless the submitter had updated or amended information to provide to the committee.
The committee thanks all submitters and witnesses for the evidence they provided to this inquiry.
Structure of this report
This report consists of two chapters:
This chapter outlines the key provisions of the bill and provides administrative details relating to the inquiry.
Chapter 2 examines the key issues raised in evidence and provides the committee's view.
Purpose of the bill
The bill was introduced into the House of Representatives on 4 July 2019 by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon David Coleman MP. The minister said that the purpose of the bill is:
…to strengthen the current legislative framework in relation to visa refusals and cancellations on character grounds. This bill ensures that noncitizens who have been convicted of serious offences, and who pose a risk to the safety of the Australian community, are appropriately considered for visa refusal or cancellation. The bill presents a very clear message to all noncitizens that the Australian community has no tolerance for foreign nationals who have been convicted of such crimes.
Section 501 of the Migration Act 1958 (the Act), which relates to the refusal or cancellation of visas on character grounds, has undergone significant change since 2014.
A key development was the passage of the Migration Amendment (Character and General Visa Cancellation) Bill 2014. Data from the Department of Home Affairs shows that visa cancellations on character grounds increased by over 1,400 per cent between the 2013-14 and 2016-17 financial years.
In December 2017 the Joint Standing Committee on Migration (the migration committee) published a report titled No one teaches you to become an Australian. The explanatory memorandum to the bill states that the bill is in response to the migration committee's recommendations, and highlighted two recommendations in particular:
The Committee recommends that the Australian Government amend the Migration Act 1958 requiring the mandatory cancellation of visas for offenders aged between 16 and 18 years who have been convicted of a serious violent offence, such as car jacking's or serious assaults. If legislation is amended, this should be accompanied by a caveat that no retrospective liability is thereby created.
The Committee is also recommending that anyone over 18 years of age who has been convicted of a serious violent offence which is prescribed, such as serious assaults, aggravated burglary, sexual offences and possession of child pornography, have their visa cancelled under section 501 of the Migration Act 1958.
The migration committee also published a report in February 2019 regarding review processes associated with visa cancellations made on criminal grounds. In that report the migration committee reflected positively on the 2018 bill:
This important legislation will ensure violent offenders can be removed from Australia at the earliest possible opportunity.
The Committee believes this legislation would address a number of community concerns around non-citizens who commit acts of violence in Australia. As such, the Committee urges the Australian government to pass and enact this legislation without delay.
Existing character provisions
What is the character test?
Currently, a person does not pass the character test if any one or more of the criteria set out at subsection 501(6) of the Act is satisfied. Without exhaustively outlining all these criteria, they include the following:
The person has a 'substantial criminal record', which is defined to include a person who has been sentenced to a term or terms of imprisonment totalling 12 months or more.
The person has been convicted of an offence that was committed while they were in immigration detention or during an escape from immigration detention.
The person has been convicted of an offence against section 197A of the Act, which provides that detainees must not escape from immigration detention.
The minister reasonably suspects that the person has had or has an association with a group, organisation or person that has been or is involved in criminal conduct.
The minister reasonably suspects that the person is or has been involved in conduct constituting certain listed offences including people smuggling, trafficking in persons, and genocide, whether or not the person has been convicted of the offence.
Having regard to the person's past and present criminal conduct or their past and present general conduct, the person is not of good character.
In the event that the person were allowed to remain in Australia, there is a risk that the person would:
engage in criminal conduct in Australia;
harass, molest, intimidate or stalk another person in Australia;
vilify a segment of the Australian community;
incite discord in the Australian community or a segment of that community; or
represent a danger to the Australian community or to a segment of that community.
A court in Australia or a foreign country has found the person guilty of one or more sexually based offence involving a child.
The person has, in Australia or a foreign country, been charged with or indicted for one or more listed crimes, including the crime of genocide, a crime against humanity, and a war crime.
The person has been assessed by the Australian Intelligence Security Organisation (ASIO) to be directly or indirectly a risk to security.
An Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
If none of the relevant criteria are satisfied then the person passes the character test.
What happens if a person fails the character test?
The minister or a delegate may refuse to grant a visa to a person if the person does not satisfy the minister or delegate that the person passes the character test.
The minister or delegate may cancel a visa that has been granted to a person if:
the minister reasonably suspects that the person does not pass the character test; and
the person does not satisfy the minister that the person passes the character test.
There are also some circumstances in which failing the character test means that a person's visa must be cancelled.
When a delegate considers refusing or cancelling a visa on character grounds, they should have regard to the guidance set out in Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction No. 79). This direction was signed by the Minister for Immigration, Citizenship and Multicultural Affairs and commenced on 28 February 2019, replacing previous Direction No. 65.
If a person's visa is refused or cancelled by a delegate on character grounds using discretionary powers, the person may be able to seek merits review through the Administrative Appeals Tribunal (AAT). However, if the decision was made by the minister personally then merits review is not available. Nonetheless, all decisions made under section 501 of the Act, including those made by the minister, may be reviewed by the Federal Court or High Court.
Key provisions of the bill
The bill would amend only the Act. It would insert a new ground on which a person may fail the character test. It would also amend the current definition of 'character concern' to reflect the new ground of the character test.
The new 'designated offence' ground
The bill would provide that a person does not pass the character test if the person has been convicted of a 'designated offence'.
The full meaning of 'designated offence' is set out at proposed subsections 501(7AA) and 501(7AB) of the bill. In general terms, an offence is a designated offence if:
the offence is punishable by imprisonment for a maximum term of not less than two years; and
one or more of the physical elements of the offence satisfies one or more of the criteria set out at proposed paragraph 501(7AA)(a), which include (but are not limited to):
violence against a person;
non‑consensual conduct of a sexual nature;
breaching an order made by a court or tribunal for the personal protection of another person; and
using or possessing a weapon (defined to include a thing made or adapted for use for inflicting bodily injury).
The meaning of 'designated offence' incorporates offences against a law of a foreign country, provided that (in addition to satisfying one of the physical elements):
if it were assumed the act or omission constituting the offence had taken place in the Australian Capital Territory (ACT):
the act or omission would have constituted an offence against a law in force in the ACT; and
the ACT offence would have been punishable by imprisonment for a maximum term of not less than two years.
In simplified terms, the effect of the new ground would be that a person would fail the character test if:
the person has been convicted of an offence; and
the offence is punishable by imprisonment for a maximum term of not less than two years; and
the offence involves one or more of the physical elements set out in the bill.
A person who has failed the character test in this way will not automatically have their visa cancelled or refused. Rather, failing the character test means that there is a discretion for the minister or delegate to cancel or refuse the person's visa.
Amended definition of 'character concern'
Existing section 5C of the Act contains a definition of 'character concern' that mirrors the existing character test at section 501. The Department of Home Affairs has stated that the definition of 'character concern' is relevant in determining:
the circumstances in which the department can disclose personal information for the purposes of data matching; or
the reasons for which biometrics captured by the department can be used.
The bill would amend the definition of 'character concern' so that, in effect, a non‑citizen convicted of a designated offence is of character concern. This would mean that the definition of 'character concern' would continue to mirror the character test requirements in section 501 of the Act.
Application of the amendments
The provisions of the bill would commence the day after receiving Royal Assent.
The provisions of the bill would apply whether the person committed or was convicted of a designated offence before, on, or after commencement of the provisions.
Consideration by other parliamentary committees
Senate Scrutiny of Bills Committee
The Scrutiny of Bills Committee (the scrutiny committee) raised concerns about whether the 'broad discretionary powers' in the 2018 bill would unduly trespass on rights and liberties. It reiterated those concerns in relation to the bill currently before the committee.
The points made by the scrutiny committee include the following:
The scrutiny committee has previously raised concerns about the existing character framework, which noted that:
...the broadly framed powers under section 501 are not, as a practical matter, constrained by law 'due to the breadth of discretion, the absence of procedural fairness obligations, the fact that merits review is unavailable, or a combination of these factors'.
The bill would allow the minister to cancel or refuse to issue a visa to a person who has been convicted of a designated offence but who may have received a very short sentence or no sentence at all:
For example, a person carrying pepper spray may be convicted of possession of a weapon, and although the person may only be given a minor fine, this conviction would empower the minister to cancel their visa, leading to their detention and removal from Australia. As the power to cancel would be based simply on the fact of conviction, there is nothing in the legislation that would require the minister to consider the person's overall good character, their family or other connections to Australia or the length of their stay in Australia (noting that this could apply to permanent residents who have lived in Australia for many years).
In light of the 'already extremely broad discretionary powers' available for the minister, the explanatory materials 'have given limited justification for the expansion of these powers by this bill'.
The scrutiny committee concluded as follows:
The committee notes that section 501 of the Migration Act 1958 already gives the minister a broad discretionary power to refuse or cancel a visa in the absence of procedural fairness obligations and where merits review is largely unavailable. The committee considers, in these circumstances, expanding powers to empower the minister to cancel a visa (which could lead to the detention and removal of a non-citizen), raises scrutiny concerns as to whether the measure unduly trespasses on rights and liberties.
The committee therefore draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of amending the character test set out under the section 501 of the Migration Act 1958.
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights (the human rights committee) raised a number of concerns regarding the 2018 bill. It later provided further views about that bill after receiving a response from the minister. In relation to the current bill, the human rights committee reiterated its views on the 2018 bill.
After considering a response from the minister, the human rights committee raised concerns including the following:
The committee considered that the proposed expansion of the minister's power to cancel or refuse a visa is likely to be incompatible with Australia's non-refoulement obligations and the right to an effective remedy.
The committee considered that the expanded bases on which a person's visa may be cancelled, the consequence of which would be that the person is subject to immigration detention, is likely to be incompatible with the right to liberty.
The committee considered that for persons who would have their visa cancelled without natural justice under section 501(3) of the Migration Act for having committed a 'designated offence', there is a risk that the measures may be incompatible with the prohibition on expulsion without due process.
The committee considered that the measures are likely to be incompatible with the right to protection of the family and the obligation to consider the best interests of the child as a primary consideration, particularly in relation to cancellation of a child's visa.
The committee considered that there is a risk that the measures may be incompatible with the right to freedom of movement in circumstances where the minister is not required to take into account the right to enter and remain in one's 'own country' when exercising his personal power to refuse or cancel a visa.
The committee was unable to conclude that expanding the definition of 'character concern' to include persons who have committed a 'designated offence' is compatible with the right to privacy.
Note on references
In this report, references to Committee Hansard are to proof transcripts. Page numbers may vary between proof and official transcripts.
This report cites submissions received during the committee's inquiry into the 2018 bill, as well as submissions received during this inquiry. Unless otherwise stated, references to submissions are to submissions to this inquiry.