Labor is committed to keeping the Australian community safe. We accept that the Commonwealth must be able to refuse or cancel the visas of non‑citizens who pose a risk to the good order and safety of the community.
The Minister for Home Affairs already has extremely broad powers to act in this way. Section 501 of the Migration Act allows, and in some cases requires, the minister to cancel or refuse a visa if a person is deemed to have failed the character test.
Labor supported the strengthening of the character cancellation provisions in the Migration Act in 2014. This included introducing mandatory visa cancellation where a non‑citizen is serving a full time custodial sentence, and has either been sentenced to a term of imprisonment of 12 months or more, or has been found guilty of a sexually based crime involving a child.
Expansion of Ministerial powers is not justified
The proposed expansion of the character test in this bill, however, is not justified. The government has failed to provide sufficient evidence to demonstrate that the changes are needed, or to alleviate the concerns of almost all inquiry participants that the bill will cause undue harm to non‑citizens, those close to them, and the community more broadly.
The Department of Home Affairs argued that the bill was introduced in response to recommendations of the Joint Standing Committee on Migration in its report titled No one teaches you to become an Australian.
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.
However, that report failed to take into account that the majority of submitters to the inquiry:
…held the view that the current character and cancellation provisions in the Act were an adequate way of addressing non-citizens who have been involved in criminal activities.
Further, only government members of the committee supported the relevant recommendations. Labor members dissented, stating:
On recommendations 15-18 where Labor dissents, this report does not objectively reflect the evidence presented during the course of the inquiry. It ignores crucial contextual details and places an undue emphasis on others. There is minimal or no evidence to justify some recommendations made by the Committee.
The vast majority of evidence to the committee opposed this bill. This included submissions from the Law Council of Australia, the Australian Human Rights Commission, the United Nations High Commissioner for Refugees, Victoria Legal Aid, the Visa Cancellations Working Group, Liberty Victoria, Australian Lawyers for Human Rights, the Asylum Seeker Resource Centre, the Federation of Ethnic Communities' Councils of Australia, and the Multicultural Youth Advocacy Network.
Labor senators are concerned that the committee majority's recommendation has not sufficiently taken into account the issues with the bill raised by these reputable groups.
We also note that the committee majority's recommendation to support the bill has given insufficient weight to serious objections raised by the Parliamentary Joint Committee on Human Rights and the Senate's Scrutiny of Bills Committee in their review of the 2018 version of this bill, which is identical to the present bill. The Joint Committee was especially concerned 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 Scrutiny of Bills Committee commented that in the light of the 'already extremely broad discretionary powers available to the minister', the explanatory materials for the bill had 'given limited justification for the expansion of these powers'.
Is the bill necessary?
An initial question is whether the bill is necessary. Labor senators consider that the minister already has extremely broad discretionary powers to refuse to issue or cancel a visa on character grounds. There has been insufficient justification as to why this proposed expansion is necessary or proportionate.
A large number of inquiry participants submitted that the existing powers in the Act are sufficient for the protection of the Australian community. As the Law Council of Australia stated:
The Law Council is concerned that the bill is neither necessary nor proportionate and that the Migration Act already provides overly broad powers to cancel and refuse visas on character grounds. These are more than sufficient to respond appropriately to individuals who commit serious offences and provide a clear risk to the community.
Moreover, as emphasised by the Visa Cancellations Working Group, the bill:
…categorically does not enable the cancellation or refusal of the visas of any person for whom cancellation or refusal is not already available. It 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.
No evidence that the bill will protect the community
The minister is already able to refuse a visa on a wide range of character grounds.
Under section 501(6) of the Act, a person is deemed to have failed the character test if:
the person has a substantial criminal record;
the minister reasonably suspects that the person is or has been a member or associate of a group involved in criminal conduct;
the person is not of good character, having regard to that person's past or present criminal conduct, or past or present general conduct;
there is a risk that if the person entered or remained in Australia, the person would:
engage in criminal conduct;
harass, molest, intimidate or stalk another person;
vilify a segment of the community, or incite discord in the community; or
represent a danger to the community or a segment of the community; or
a court in Australia or abroad has convicted the person of one or more sexual offences involving a child; or found the person guilty of such an offence, or found a charge against the person proven for such an offence, even if that person was discharged without conviction.
As many participants in the inquiry noted, it is extremely difficult to conceive of any kind of criminal conduct, or danger to the community, that is not already captured by these provisions.
The government, however, has unpersuasively continued to insist that the proposed strengthening of character cancellation provisions is necessary to ensure community safety.
When asked to identify the problem that the bill sought to address, the department stated:
The bill introduces an objective element to the character test and it applies in addition to existing subjective and objective elements in the character test. It provides 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.
Bill could undermine the functioning of the legal system
Despite claiming that the bill would provide a clear and objective standard, the department failed to produce a list of offences that would constitute a 'designated offence' under the bill. It advanced:
To provide a comprehensive list of all offences in Australia which would fall within the definition of a 'designated offence' would be an onerous task, taking considerable time to compile and verify. Even were such a list compiled, it would be out-of-date when relevant criminal legislation in the States and Territories changed. This can happen quickly and at any time.
Given the breadth of the 'physical elements' listed as part of the meaning of 'designated offence', this response is inadequate. It is important that legislation of this kind be clear to all citizens, particularly where it may lead to severe consequences for certain Australian residents, and especially where clarity is part of the stated purpose of the legislation. Labor senators highlight concerns from the Law Council:
[A] core difficulty with the Bill is that due to the non‑exhaustive, open‑ended nature of the definition of 'designated offence' it is not clear which offences will be captured. The Law Council is concerned that there may be years of litigation ahead in order for the Federal Courts to establish the outside parameters of these provisions.
Labor senators also note a comment by the Asylum Seeker Resource Centre:
If the Bill also aims to provide a 'clearer and more objective basis' for refusing or cancelling the visa of persons who do not meet the substantial criminal record test, then the Bill must repeal the vague and subjective elements of the character test… It does not seek to do so.
The main change introduced by this bill is the notion of a designated offence: a person would be deemed to have failed the character test if that person is convicted of a designated offence carrying a maximum penalty of more than two years, regardless of the actual sentence given.
As the Law Council has argued, this change 'has the potential to undermine the sentencing function of the judicial system and the discretion exercised by judicial officers'. As the Law Council's submission stated:
The thresholds proposed by the Bill are likely to capture a range of individuals who ordinarily would not be considered to have committed a 'serious offence', having regard to existing definitions in criminal law.
The Law Council has also warned that a likely consequence of these changes is that fewer migrants will seek the protection of the law due to fears of visa cancellation, including in situations of dire need, such as family violence.
It is also likely that fewer accused persons will enter guilty pleas, thereby creating a greater strain on the criminal justice system because of more contested and protracted court proceedings.
The changes are therefore also likely to increase the cost to Australian taxpayers of conducting investigations, the cost of operating courts and tribunals, and the cost of operating the immigration detention system.
The report of the majority of the committee, and the department's submission, emphasised that the bill retains discretion for decision‑makers because a person convicted of a designated offence would not automatically have their visa cancelled; rather, they would automatically fail the character test and their visa status may then be reviewed.
Even if discretion is maintained, however, it is not appropriate to determine that a person failed the character test for what the Law Council has described as low‑level offending. As the Law Council stated, the bill sets a 'very, very low bar'. In addition:
It should be of very limited comfort to this committee to conclude that the discretion is still there. That should not make you comfortable. It is a very significant thing to be held to fail the character test.
Moreover, submitters raised concerns about how decision‑makers would apply their discretion, particularly given that the person would have been held to clearly fail the character test. There were also concerns about access to legal representation and whether non‑citizens would be able (in practice) to put their case to the decision maker.
When introducing the bill, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon David Coleman MP, suggested that entry and stay in Australia by non-citizens 'is a privilege, not a right'. While Labor senators agree that there are circumstances in which it is appropriate to refuse or cancel a visa on character grounds, it is worth noting the case of Minister for Immigration and Border Protection v Stretton where Griffiths J held:
In particular, without doubting the relevance to the exercise of that power of protecting the Australian community, it is important that the value of the statement of reasons is not diminished by resort to superficial aphorisms or empty rhetoric, which is illustrated by phrases such as 'expectations of the Australian community' and the 'privilege' of being a visa-holder. The former concept has the potential to mask a subjective value judgment and to distort the objectivity of the decision-making process. The latter expression is simply misleading as a legal concept. Under Australian law, having the status of a visa-holder is not a privilege. Visa-holders hold statutory and non-statutory rights which are inconsistent with the notion of their status being described simply as a 'privilege'.
Bill will damage relations with New Zealand
The consequences of further strengthening the character test for Australia's relationship with New Zealand are of profound concern.
Historically, Australia and New Zealand have a long and uniquely close relationship, which it can reasonably be assumed both countries wish to preserve.
However, New Zealand's Prime Minister, Jacinda Ardern, has stated that even the existing character test provisions are having a 'corrosive effect' on the relationship between the two countries. This comment was repeated by the New Zealand High Commissioner, Dame Annette King, in evidence to the committee. In its submission to the committee's previous inquiry, the New Zealand Government stated that the bill 'would make a bad situation worse for New Zealanders and therefore for New Zealand'.
The reason for the New Zealand Government's concern is that New Zealand citizens are disproportionately affected by the character test expulsions. More than 50 per cent of deportations from Australia are to New Zealand, whereas only one per cent of deportations from New Zealand are to Australia.
In many cases, the New Zealand citizens deported on character grounds are people who arrived in this country as young children, have spent all their lives here, and identify as Australian.
As High Commissioner King suggested, that is almost certainly part of the explanation for the fact that 44 per cent of New Zealanders deported on character grounds re-offend in New Zealand. They have been sent to a country where they may no longer have close family and have no social support.
New Zealand also cancels the visas of non-citizens who commit offences or are judged to be a risk to the community. However, in New Zealand these exclusions are applied on a 'sliding scale': persons who have lived in the community for 10 years or more cannot be deported.
Labor believes a similar sliding scale is worth considering for Australia. It would remove the problem created by deporting New Zealand citizens who have lived here either all their lives or for very long periods and who identify as Australians.
For the reasons we have set out, Labor senators believe this Bill is unnecessary and has the potential to infringe the rights of visa holders without increasing protection for the wider community. Therefore:
Labor Senators recommend that the bill not be passed.
Labor party Senators are particularly concerned about the impact this legislation could have on our critical relationship with New Zealand and recommend further consultation and communication with the New Zealand government.
Senator the Hon Kim Carr
Senator Anthony Chisholm
Labor Senator for Queensland