This chapter outlines the key issues raised in evidence to the committee:
Whether there is a need for the bill.
The proposed definition of 'designated offence'.
The appropriateness of failing the character test due to a conviction for a designated offence (without consideration of any sentence imposed).
The application of discretion to potential visa refusals and cancellations.
The effect of visa refusals and cancellations on non‑citizens, including human rights implications.
Other issues, including Australia's relationship with foreign countries; potential administrative costs; the inclusion of 'aiding and abetting' a designated offence; and retrospectivity.
The chapter concludes by providing the committee's view.
The need for the bill
Many submitters and witnesses recognised that it is appropriate for the government to be able to regulate whether a non‑citizen may enter or stay in Australia with regard to community safety or the non‑citizen's character. However, a number of inquiry participants did not support the bill as they considered existing character test provisions to be adequate, or more than adequate, for this purpose.
For example, Ms Carina Ford of the Law Council of Australia (the Law Council) said that the Migration Act 1958 (the Act) 'already provides overly broad powers to cancel and refuse visas on character grounds', and that these powers are 'more than sufficient to respond appropriately to individuals who commit serious offences and provide a clear risk to the community'.
The Human Rights Commissioner, Mr Edward Santow, suggested that the bill:
…should be considered in the context of the existing character provisions in the Migration Act, which the joint standing committee [on migration] described earlier this year as operating well and protecting the Australian community. It's difficult to identify a situation where a noncitizen who poses a significant risk to the community would not already fall foul of one of the character provisions in section 501(6).
A submission from Mr Henry Sherrell, Peter Mares, Abul Rizvi, Dr Shanthi Robertson, Dr Laurie Berg and Kevin Bain said the government has not provided examples of character concern that cannot be addressed by existing provisions. Also, Professor Anna Cody and Dr Jason Donnelly said that despite the 'extraordinary increase' in visa cancellations from 2013 onwards, the government has 'failed to provide substantial evidence that the previous changes made in 2014 to the character test…have made the Australian community a safer place'.
The Visa Cancellations Working Group (the Working Group) emphasised that the bill 'does not enable the cancellation or refusal of the visas of any person for whom cancellation or refusal is not already available'. Rather, the bill 'merely removes a decision-maker's power to assess whether or not certain individuals meet or fail the character test, making failure mandatory in prescribed circumstances'.
The Working Group disputed three de‑identified case studies presented by the Department of Home Affairs (the department) as justification for the bill. For each case, the department had stated that the person would be eligible or able to stay in Australia 'unless sufficient adverse information becomes available to find that [the person] does not pass the character test under subjective grounds'. The Working Group submitted that each person 'would already be caught under current law'.
Professor Cody and Dr Donnelly also advanced that the minister was 'legally incorrect' to say that the entry and stay of non‑citizens in Australia is 'a privilege'. They quoted Griffiths J in Minister for Immigration and Border Protection v Stretton  FCAFC 11 , who said that visa holders 'hold statutory and non-statutory rights which are inconsistent with the notion of their status being described simply as a "privilege"'.
Other submitters took a contrary view about the need for the bill. For example, Mr Scott Weber of the Police Federation of Australia told the committee:
We're talking about protecting the victims and society—that is, Australia—and also the people who abide by the law. We're talking about people who commit offences when they are here as guests in Australia, when they should be abiding by the law. When they actually commit those heinous offences, when they commit such violent or sexual offences, all police officers across the country think it should be automatic and instantaneous that their right to stay in Australia be reviewed.
Mr Weber also told the committee that the Police Federation hears from police officers and the general public that if a non‑citizen commits a violent offence or an offence of a sexual nature then their visa should be reviewed or revoked.
Ms Maria Aylward submitted that if the proposed provisions had been in place in 2010 then the murder of her sister and sister's partner by a non‑citizen would have been prevented. She noted that prior to the murder, the perpetrator had been convicted of an offence carrying a maximum penalty exceeding two years' imprisonment.
Ms Aylward further suggested the objective test proposed by the bill would help bring cases to the authorities' attention, stating that crimes committed by non‑citizens 'may only come to the attention of Immigration when the person applies for citizenship or permanent residence'. She submitted:
Although there is a provision in s.501(6) of the Migration Act 1958 to cancel a visa based on the person's "past and present criminal conduct", the main way non-citizen criminals are identified is if they are sentenced to a term of imprisonment of at least 12 months. …
This means non-citizens can be committing numerous criminal offences against victims over many years or decades before being identified and subject to removal proceedings.
The department submitted that the bill would provide:
…a clear standard, in terms of convictions for designated offences, that is clear for both visa holders and the public as to what type of criminal conduct will involve meeting or not meeting the character test.
The department provided de‑identified examples, including one of a person who was convicted of violent assault related offences but did not objectively fail the character test under existing arrangements. The department acknowledged submissions that the bill is not necessary because there are existing subjective grounds regarding past and present conduct, but noted that this subjective ground 'isn't used widely'. The department also stated:
It's that subjective nature that is very hard for one decision-maker and another decision-maker to apply in a way that's consistent, objective and transparent. I think at least one, if not more, of the examples that [departmental officer] Mr Willard highlighted shows that a decision-maker has taken the view that subjectively we think they fail the character test under this existing regime, but upon merits review it's found to be a different answer.
Regarding the effect of the bill on community safety, the department stated that 'once a person has been removed from the Australian community, it's very difficult to indicate what they may or may not have done' had they stayed. However, the department also suggested:
Having people no longer in the Australian community who have, quite objectively, clearly committed criminal offences that are obviously of a serious and violent nature is, in and of itself, an end to be attained.
The definition of 'designated offence'
The clarity of the definition
Victoria Legal Aid submitted that the definition is 'unclear', 'would prove challenging to implement in practice', and 'does not provide the clarity that it seeks to'. It explained that decision‑makers would first need to consider whether an offence involves one of the physical elements of a designated offence, which is 'not a straightforward exercise'.
Victoria Legal Aid further suggested there is 'significant potential' for errors to occur in identifying designated offences, which would increase 'unjust outcomes'. It also expressed concern that 'the same conduct may result in different character test outcomes in different states', either because maximum penalties vary or because there are offences that exist in one state but not in another.
The Law Council raised concern that 'there may be years of litigation ahead in order for the Federal Courts to establish the outside parameters of these provisions'. The Law Council recommended that the committee seek from the department a detailed list of the existing offences likely to be 'designated offences', and stated that if the department 'is unable to do so, this would raise concerning questions about the uncertain scope of the legislation'.
The department explained that the bill does not list specific offences 'as offences vary in name and characterisation across each State and Territory, and may change at any time'. Prescribing the offences in legislation 'would require continual amendment as and when criminal law changed'. A departmental representative further stated that the objectivity of the proposed provisions 'comes in relation to both the nature of the violent descriptor and the objective two-year penalty'. The department further submitted:
The definition of a ‘designated offence’ as set out in the Bill provides an objective, readily discernible ground for failing the character test which will remain up-to-date and applicable, irrespective of changes to State and Territory criminal law.
The offences classified as 'designated offences'
Liberty Victoria expressed concern about the offences included and excluded from the meaning of designated offence:
[I]t appears arbitrary that numerous offences, such as the trafficking of commercial quantities of drugs and all so-called 'white-collar' crime, will not be caught by the proposed Bill, whereas many relatively minor offences will be. The sense of arbitrariness is of concern.
Ms Gabrielle Bashir SC of the Law Council submitted that the proposed designated offence ground 'sets a very, very low bar' that would include the threat of violence where no actual violence occurred, and the use of a hammer, rock, or stick within the proposed meaning of 'weapon'.
The Working Group provided a number of examples to illustrate its concern that the bill would introduce 'an oddity of standard':
For example, a person trafficking commercial quantities of drugs may not automatically fail the character test, but a child who got into a classroom fight would; a person committing repeated million-dollar fraud may not, but a former partner who texted their partner ‘Merry Christmas’ would; a person committing sabotage against the government may not, but a person who yelled at their boss after being made redundant might.
Mr Sherrell et al submitted that the new 'designated offence' ground would 'immediately expand the number of people failing the character test':
While it is not possible to confidently state exactly how many people will be affected, there is evidence to suggest it could be by a factor of five, including people who are unlikely to be an ongoing threat to the Australian community.
Mr Sherrell estimated that 'tens of thousands' of people would be affected. Some of these people would have been in Australia for a year, but 'you're going to get people who entered the country in the fifties, in the sixties and in the seventies who are still living on a permanent visa'. As Mr Sherrell clarified, the consequences for these people 'won't be mandatory deportation'; it will be 'mandatory failure of the character test and it will then be discretionary' as to whether a visa is cancelled.
The department expects the bill 'will increase the number of non‑citizens who objectively fail the character test and then are referred for discretionary consideration of visa refusal or cancellation'. However, it also noted various circumstances that would not meet the definition of a designated offence, including where a person is accused of an offence but the police choose not to pursue the matter; where a person is convicted of an offence carrying a maximum sentence below two years' imprisonment; or where a person is convicted of an offence that does not involve one of the required physical elements.
The department posited that the bill 'recognises that certain serious offences (a designated offence) have a significant impact on victims and their communities'. On this point, Ms Aylward put to the committee that there is:
…no credible evidence the proposed laws will be used to remove people with minor convictions or strong reasons to be allowed to stay, although I cannot see how being found guilty of a serious offence can be considered to be a "minor" offence.
Failing the character test due to conviction for a designated offence
The bill would cause a person to fail the character test if they are convicted of a designated offence, regardless of any sentence imposed by the court.
The Law Council advanced that maximum penalties are 'reserved for the worst, most serious examples of an offence', and they 'cannot and do not take into account the actual conduct of the offender or other case-specific facts'. Ms Ford of the Law Council said that:
…the determination of the seriousness of the offence committed depends not only on the offence category but also on the gravity of the offence in the particular circumstance of the case, which is often reflected in the punishment or sentence that the court imposes.
Further, if a criminal court has determined that a convicted person does not present a risk to the community and imposes a fine or a suspended sentence, it is questionable whether automatically failing to meet the character test is needed to protect the community.
Victoria Legal Aid suggested that in setting maximum sentences, the legislature 'has not turned its mind to implications for visa status'. It expressed concern that the bill would:
…subject a category of people who, under the criminal justice system may have demonstrated strong mitigating circumstances around their offending and good prospects of rehabilitation, to the prospect of having their visa cancelled or refused and facing lengthy detention, removal to an unfamiliar country and disconnection from family.
Several inquiry participants advanced that the seriousness of an offence is better reflected by the sentence rather than the conviction. Liberty Victoria posited that the 'expertise of Australian courts is and should remain a valuable resource for administrative decision-makers'. The Law Council suggested that the bill has 'the potential to undermine the sentencing function of the judicial system and the discretion it possesses regarding sentencing offenders'. The Working Group submitted that Australia's criminal courts:
…are appropriately placed to determine the seriousness of offending. This is their area of expertise and their express function. The discretion vested in them is so vested in express recognition of the fact that there are different standards of culpability, and different levels of seriousness within any set of offending. To fail to recognise this wastes and denigrates a valuable resource and affects the quality of the administrative decision‑making. It also fails to uphold a separation of powers by critiquing judges in the manner in which they consider sentencing.
The Working Group also provided data indicating that many convictions of designated offences result in a term of imprisonment below two years or no imprisonment at all.
The New South Wales Council for Civil Liberties advised that '[c]ontrary to a misconception being put about', the laws of several states and a determination of the High Court prevent judicial officers from lightening sentences in order to ensure convicted non‑citizens are not subject to visa cancellation.
However, Ms Aylward submitted that there is 'some evidence the magistrates and judges are aware of the current 12-month rule and imposing sentences that are under that, so as to "assist" criminals'. In addition, the Police Federation expressed concerns that the intent of the character provisions 'could be averted by the judiciary, simply by imposing sentences of less than 12 months'. The Police Federation argued that:
…anyone convicted of a crime of violence, regardless of their length of sentence and who is a non-citizen of Australia, should have their status to remain here immediately reviewed.
The department highlighted there are already grounds of the character test that turn on a conviction rather than a sentence. Moreover, a departmental representative emphasised that consideration of a matter by a delegate is not intended to be 'the same consideration or a better consideration' than that of a sentencing court; rather, it is 'a different consideration'. She explained:
[T]he courts, in relation to the character cancellation space, confirmed that the ability of the executive government to make a decision in relation to a person's visa is not the same as the punitive nature the Chapter III court takes into account in relation to sentencing a person before the courts for criminal conduct.
The departmental official drew the following analogy:
It's no different, really, to a doctor who might sexually abuse a patient and is charged with a criminal offence and is sentenced by a court. There is still room, in relation to the administration of the medical profession, for a regulator to say, 'In addition to being sentenced from a civil and administrative point of view, we're going to take a decision in relation to whether that person practices.'
Finally, the departmental representative explained that the proposed arrangements retain subjective considerations, even though criminal sentences are not considered. This is because the seriousness of a non‑citizen's offending behaviour, which would have been considered by a court in sentencing, is:
…equally relevant under [Direction No. 79] for whether or not [your visa] will in fact be cancelled and, once again, on review, relevant to merits review and relevant to the reasonableness of it in judicial review.
Discretion in decisions to refuse or cancel a visa
The Immigration Advice and Rights Centre (IARC) acknowledged that even after a person fails the character test due to a conviction, there remains discretion regarding whether their visa is refused or cancelled. However, it suggested that:
…it is inevitable that the proposed amendments will result in more people having their visas cancelled/refused and, in turn, being deported from Australia. This is so, not only due to the discretion arising, but also because Direction 79, which decision makers must adhere to, makes that outcome more likely. For example, under the heading 'Principles', paragraph 6.3(3) of Direction 79 states that:
"The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere."
IARC further stated that two of the three 'primary considerations' in Direction 79 'will almost always be adverse to a non-citizen'. Additional considerations, such as the non‑citizen's ties to the Australian community, are classified as 'other considerations' and 'will generally be given less weight in the exercise of discretion'.
The Working Group similarly advanced that the bill is likely to effect a decision‑maker's consideration:
If, for that decision‑maker, the person necessarily fails the character test, a decision to cancel is significantly more likely to follow. A determination which is permitted, or ‘endorsed’, even where that permission is not directive, has a psychological and practical effect on those who are responsible for application of the law: being squarely told, in effect, that particular offending is ‘serious’ no matter the context will make decision‑makers significantly more likely to exercise the discretion to cancel or refuse a visa.
The Working Group also submitted that if a non‑citizen fails to respond to a Notice to Consider Cancellation from the department (which may occur for various reasons, including that the non‑citizen has changed address), then:
…the Department will make its decision based solely on the information before it: that a person has failed the character test. They may then take into account the severity of the offending, but it is unclear what information would be before a decision‑maker. This may vary, and is likely to produce unfair and disproportionate results.
Mr Santow of the Australian Human Rights Commission stated that the breadth of discretion available to the minister and delegates:
…can mean that you will have inconsistent decision-making depending on who is the actual delegate with responsibility. That can limit rights associated with equality before the law.
Some concerns were also raised about whether vulnerable people will have access to legal representation during the visa cancellation process. Ms Ford of the Law Council stated that 'limited safeguards are available', highlighting that the rules of natural justice may not apply and, if the decision is made by the minister, then there is no right to merits review. Mr Prince of the Law Council said that it should 'be of very limited comfort to this committee to conclude that the discretion is still there…It is a very significant thing to be held to fail the character test'.
Further, the Settlement Council of Australia expressed concern that, once the legislation is in place, the department and minister would be able to change the policy framework for discretionary decisions, potentially without parliamentary oversight.
The department has previously noted that the bill 'does not lower the bar for cancelling or refusing a visa under section 501' of the Act (which contains the character test). It submitted that if the minister or delegate is considering visa refusal or cancellation on character grounds, 'the affected person is given the opportunity to provide relevant information or comments to the decision‑maker'. In addition, a departmental representative explained that once it is clear that a person has failed the character test, the additional factors considered are 'broad and wideranging'. The decision‑maker can:
…take into account the particular nature of the offending conduct, the seriousness of the offence, the ties to the community, the length of time the person has been in Australia and the interests of the family and of minors. Indeed, some of the suggestions about the minor nature of offending would clearly be able to be taken into account in that other discretion.
Human rights implications and the effect of visa cancellations
The Public Law and Policy Research Unit stated that the bill may decrease community safety. Mr Reilly, Director of the Unit, submitted that when granting a permanent resident visa, Australia makes a commitment to the person which is 'crucial to them being able to be effective members of our community and participate fully in a number of ways'. The Unit further explained:
If a permanent resident can be removed from Australia for minor infractions, they and their families may feel less secure, less welcome, and less committed to contributing to the Australian community.
With the threat of visa cancellation and deportation hanging over them for very minor offences, permanent residents who are innocent victims of violence may be reluctant to approach the police for fear that they will be accused of initiating the confrontation. They may also be reluctant to help others who are the victims of violence for fear they will be dragged into a confrontation. With the stakes so high, permanent residents may second‑guess their natural community-minded instincts.
Mr Sherrell et al similarly submitted that the bill 'will further exacerbate the divide between Australian citizens and non-citizens'. They stated:
It is possible for visa holders to have failed the character test and for this to have no effect on their visa status, nor on any future visa applications. However in this scenario, many additional people will be aware they have failed the character test and this may manifest itself in general unease and tension about long-term certainty of Australian residency.
The Asylum Seeker Resource Centre emphasised that sometimes 'the consequences for the human beings involved will be far worse than almost any jail sentence'. The Law Council also submitted that if the bill became law:
…it may result in the detention of individuals for far longer periods than their sentences of imprisonment. In some cases, this would include people who were never sentenced to any imprisonment at all.
Moreover, the Kaldor Centre submitted that the proposed amendments 'would be inconsistent with a number of Australia's international human rights obligations'. The obligations include Australia's non‑refoulement obligations, the right to liberty, and the obligation to consider the best interests of the child as a primary consideration.
The United Nations High Commissioner for Refugees (UNHCR) highlighted the risk of prolonged or indefinite detention after a person's visa is cancelled. It also expressed concern about the existing character test, including that non‑refoulement obligations are not required to be considered as a primary or paramount consideration. The UNHCR advanced that by expanding the grounds for visa refusal or cancellation on character grounds, the bill further increases the risk of refugees and stateless persons being detained in circumstances that are inconsistent with international standards.
The Asylum Seeker Resource Centre noted the minister 'states that no one found to be owed protection will be removed in breach of non refoulement obligations', but submitted that this is 'contradictory to the position in law'.
The Working Group highlighted subsection 197C(2) of the Act, which states that an officer's duty to remove an unlawful non‑citizen from Australia arises irrespective of Australia's non‑refoulement obligations. It stated that as a consequence of the bill, it is 'likely that a greater number of people owed non‑refoulement obligations will face cancellation or refusal and will be indefinitely detained', and that the bill would create 'the significant and expanded possibility for Australia's non‑refoulement obligations to be undermined'.
Some inquiry participants discussed the effect of the bill on children. The Peter McMullin Centre on Statelessness expressed concern that the bill would 'increase incidents of forced separation of families'. Refugee Legal advanced:
The focus of the youth justice system Australia wide is on rehabilitation, with dedicated sentencing principles applying to young offenders. Visa cancellation, prolonged immigration detention, and removal from Australia, particularly where there is no effective family support in the other country, runs counter to these principles and to our international obligations under the Convention on the Rights of the Child ('CROC').
Further, the Law Council of Australia noted that 'the explanatory memorandum states that only in exceptional circumstances would a child's visa be cancelled', but expressed concern that:
…neither it nor the bill prescribes what those exceptional circumstances will be. Nor does the bill limit the power to cancel a visa held by a minor to cases where exceptional circumstances exist.
Notwithstanding the above concerns, the explanatory memorandum states that the bill is compatible with human rights. The department submitted that the government 'remains committed to Australia’s international obligations':
The individual circumstances of a non-citizen who does not pass the character test on this ground can be taken into account in both considering visa refusal and cancellation, and throughout the removals process.
Regarding non‑refoulement obligations, the statement of compatibility says:
Anyone who is found to engage Australia’s non-refoulement obligations during the refusal or cancellation decision or in subsequent visa or Ministerial Intervention processes prior to removal will not be removed in breach of those obligations.
Further, a departmental representative said that non‑refoulement is not 'directly contingent' on whether or not a person's visa is cancelled:
If there are considerations around non-refoulement, they can be raised at the time of the cancellation of a visa. You will see from the directions that it's one of the factors that must be taken into account. So, in exercising that discretion, you as a decision-maker, or the AAT in the merits review, are turning your mind to the international obligations. Then, if a visa is cancelled and a person is going to be returned, there's an opportunity to apply for protection. So there's a second opportunity at that point in time to consider whether returning a person would breach our international obligations. Then, before a person is removed, there's consideration at that point in time as to whether the removal will breach international obligations.
Regarding the protection of children, the department submitted that it approaches the possible refusal or cancellation of minors' visas:
…with a high degree of caution and consultation. A visa refusal or cancellation under section 501 of the Migration Act 1958 is made after full consideration of the person’s individual circumstances, the best interests of the child, and Australia’s international obligations—including those under the Convention on the Rights of the Child.
Inquiry participants raised a series of broader issues regarding the bill. Issues that were raised in evidence but are not examined in this report include the use of the phrase 'knowingly concerned' in the meaning of 'designated offence'; constitutional considerations; foreign offences; implications for Indigenous Australians; the drafting of the bill; and rehabilitation of prisoners.
Australia's relationship with foreign countries
Some evidence to the inquiry expressed concern about how deportations on character grounds affect Australia's relationship with foreign countries, particularly New Zealand.
The New Zealand High Commissioner to Australia, Her Excellency Dame Annette King, told the committee:
It's been pointed out on a number of occasions, most recently by our Prime Minister Ardern, that the 2014 changes [to the character test] have been corrosive to our New Zealand-Australia relationship. It boils down to the disproportionate effect on New Zealand and the lack of reciprocity of treatment. For example, only one per cent of total deportations from New Zealand are to Australia, while more than 50 per cent of total deportations from Australia are to New Zealand.
High Commissioner King acknowledged that about 44 per cent of non‑citizens deported to New Zealand have reoffended in New Zealand, but stated:
Many of these people have lived in Australia for 20, 30 or 40 years and they have come back to New Zealand with very few connections. As any of us knows, family connections, community connections and society connections are the glue that hold societies together. People who have had little to do with New Zealand and been deported back into communities don't have friends and don't have jobs. Even though our agencies reach out to them the vital element is often missing for those people because it is back here in Australia: it is their loved ones. And you can't replace the loved ones in New Zealand for those that are here.
The New Zealand Government submitted that the bill would 'make a bad situation worse for New Zealanders and therefore for New Zealand'. High Commissioner King said that 'we would ideally like to return to some reciprocity' and to the pre‑2014 arrangements. If that is not possible, then 'we would like special consideration for New Zealanders living in Australia'.
High Commissioner King submitted that 'Australia has responsibility for those people who are the product of Australia':
Many New Zealanders come here as young children. They are educated here. They are Australians in every way, except they don't have that final citizenship paper.
The Law Council made a similar point, suggesting that:
…where residents of Australia – particularly long‑term residents – have, over the course of their lives, become entangled in criminal activity, it should be Australia’s responsibility to manage the consequences. The criminal justice system offers a fair and just means of doing so, having regard to the individual, their level of culpability, the mitigating circumstances and the risk posed to the community. The problems created should not, generally, be exported elsewhere.
The Public Law and Policy Research Unit submitted that the deportation of long term residents to countries where the deportee has 'no substantive connection' or does not speak the language 'has not been welcomed by the receiving countries'. It said:
The extension of deportations to permanent residents who have failed the character test despite not committing a crime worthy of imprisonment will only add to these tensions.
Possible administrative and financial costs of implementation
The Law Council submitted that the proposed expansion of the character test powers 'may incur the Australian community significant costs'. It noted that:
…any unnecessary expansion of existing powers will increase the number of visa cancellations and refusals and place an increasing demand on the already limited resources of the AAT, the courts, and the legal assistance sector.
Ms Dickinson of the Working Group told the committee that there are already 'enormous delays' at the primary stage where delegates consider cancellations or refusals. The Working Group submitted that:
…the systems dealing with visa cancellations are already close to crisis point. Any increase will be challenging and may lead to systemic crisis.
A number of submitters also expressed concern that the bill may discourage non‑citizens from pleading guilty. As the Law Council stated:
The criminal justice system operates at its heart assuming or based upon plea deals, about arrangements—pleas are given. The criminal justice system simply cannot operate without that system. Anyone with a visa who is charged with these offences would really have no choice but to fight, and they would not, could not, in all sanity, enter a plea of guilty.
Mr Weber of the Police Federation took a contrary view. He suggested:
At the first instance, most offenders will plead not guilty and continue to plead not guilty until they see the entire brief and have more assistance from their legal advisers and solicitors and barristers…We have mandatory sentences in numerous states. Higher penalties have been arranged for numerous offences. The guilty to not-guilty ratio virtually stays the same across most of the country.
Regarding the administrative costs, the explanatory memorandum states that the proposed amendments will have no financial impact. Departmental representatives stated that the department will absorb the extra costs, and the department would continue to prioritise cases 'around the severity of cases and the community protection concern'.
A representative stated that submissions suggesting that workload for the AAT and others will increase assume that 'there has been a positive referral, the referral has been considered, the visa has been cancelled and the person has then taken up their review rights'. She further noted that there 'will be a degree of overlap' between non‑citizens who fail the existing character test and non‑citizens who would fail it under the proposed amendments.
Aiding and abetting a designated offence
Under the bill, one of the physical elements of a designated offence is aiding or abetting the commission of an offence.
The Asylum Seeker Resource Centre submitted that among visa‑holding families in Australia, 'there is generally one primary visa holder (often the husband) and one or more "dependent" visa holders (often a spouse and/or child)'. It said:
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.
In our experience, this creates a perverse situation where victims of family violence are in fact punished for the violence committed against them.
In addition, Victoria Legal Aid advised that:
…there is a real risk that victims of family violence are going to be less likely to report on family violence if their partner or the family member, the perpetrator, is a noncitizen as this will have a direct impact on their visa status and their children's right to remain in Australia.
Mr Bashir of the Law Council said that 'aiding' and 'abetting' could pick up:
…if a woman and her partner had an AVO in place, she needed his help to get the kids to school and she rang him and asked him come and help to do that.
FECCA advanced that women would be disproportionately affected because:
…often those who are involved in a relationship with an offender may somehow become involved in a crime that they have committed. This can be in a situation of intimate partner and domestic violence, and often these women are sentenced accordingly by the courts, and this entire circumstance is taken into consideration in their sentencing but isn't taken into consideration in this bill.
FECCA also acknowledged that including contraventions of an apprehended violence order in the bill 'does seek to protect women in these situations'. However, FECCA suggested that:
…without considering the entire circumstance, it's quite easy to prove somebody has breached an AVO and it's a much lower proof than to find someone guilty of a crime. Including that in this bill, we think, creates risk in situations that people should not have their visas cancelled for.
Mr Weber of the Police Federation stated that the inclusion of breaching an order for the personal protection of another person would protect women experiencing family and domestic violence. When asked whether he has observed, as a police officer, that women are disproportionately aiders and abetters of criminal offences, Mr Weber replied:
No, not really. Most offenders are male, in most of the crime categories. It's a very broad generalisation of the statistics, but they might be there and help cover up the offence or feel pressured to cover up the offence. But that would be taken on its own merit, and it would be to a lesser degree that that charge would be used. And if it were, the judiciary but also the police and the DPP would take those circumstances into account. It would be very rare that that would occur.
In addition, the department stated that it has not seen any evidence that the inclusion of aiding and abetting would disproportionately harm women. It also noted that an ancillary offence is 'not considered a secondary offence in terms of penalty'; rather, ancillary offences 'are treated objectively in all the criminal codes as if the person has committed the offence itself'. The department further explained various events that would need to occur before a person, such as someone who had aided the breach of an order, had their visa cancelled:
[T]here is the discretion of the police as to whether they prosecute. There's the discretion of the DPP as to whether it meets the prosecutorial guidelines and charges are laid. Then, of course, there's the ability of a court to give non-conviction orders. It's only…when you've got a conviction that you're going to trigger the new objective test. Then, of course, the subjective features of the seriousness of the offence can all be considered as to whether—once having triggered the test that you've failed the character test—you are, in fact, having your visa cancelled.
The department also clarified that there are no provisions in the Act that 'result in the consequential cancellation of family members who hold a visa associated with a non‑citizen who has had their visa cancelled under section 501'. With respect to family violence, the department submitted that:
…a victim’s visa will not be consequentially cancelled under section 501, if the primary visa holder (and perpetrator) is cancelled due to character concerns. Victims of domestic and family violence associated with a non‑citizen whose visa was cancelled due to character concerns are assessed on a case-by-case basis.
As outlined in chapter 1, a non‑citizen would fail the character test if they have been convicted of a designated offence at any time.
The Asylum Seeker Resource Centre submitted that this retrospectivity 'undermines the rule of law and creates legal uncertainty for visa applicants'. It is also 'unjust to apply the new character requirements to offences committed prior to the commencement of the concept of a "designated offence"'.
The Law Council acknowledged the department's justification that previous amendments to the character test have applied retrospectively, but considered that is:
…an insufficient justification for the measures’ retrospective nature, particularly when consideration is given to the considerable and punitive impact on the lives of those affected, and their extended reach well into a person’s past.
The department noted that the application of the bill to past offences is consistent with other amendments made to the character test, including:
1998 amendments to sections 501(6)(a)—relating to a person having a substantial criminal record, 501(6)(c)—relating to past and present criminal or general conduct and 501(6)(d)—relating to a risk that the person would engage in certain undesirable conduct if they were to enter or remain in Australia.
2011 amendments to sections 501(6)(aa)—relating to convictions while in, or escaped from immigration detention, and 501(6)(ab)—relating to convictions for escaping immigration detention.
2014 amendments to section 501(3A)—the introduction of the mandatory cancellation framework.
Community safety is a critical objective for government. The committee considers it entirely appropriate for the government to have the power to refuse or cancel the visas of non‑citizens who pose a threat to the safety of others. The committee further considers that the proposed amendments would appropriately strengthen the existing character test framework.
The committee acknowledges concerns expressed by some inquiry participants that it would cause undue harm for a person to fail the character test due to a conviction for a 'designated offence'.
However, the committee considers a conviction for a designated offence to be a serious matter. Moreover, the bill would not cause the automatic refusal or cancellation of visas. Rather, the bill would ensure that the visa status of a non‑citizen who is convicted of a designated offence is appropriately reviewed. This process maintains discretion for decision‑makers to consider the particular risk posed by each non‑citizen. The committee agrees with the department that decisions about the refusal or cancellation of a visa are distinct from, and for a different purpose to, the criminal justice process applied by the courts.
The committee acknowledges that other concerns were raised during the inquiry, including that deporting non‑citizens on character grounds may diminish Australia's relationship with foreign countries, particularly New Zealand. However, the committee is of the view that the bill strikes an appropriate balance between the protection of the Australian community and the rights of non‑citizens who have committed designated offences. The committee is also reassured by departmental advice that the bill is compatible with human rights.
While appreciating the gravity of visa refusals and cancellations for affected non‑citizens and those around them, the committee is also mindful of the suffering experienced by victims of designated offences. The bill provides a clear and objective basis for failure of the character test that also allows for decision‑makers to appropriately consider a range of matters for each non‑citizen's case.
The committee recommends that the Senate pass the bill.
Senator Amanda Stoker