The Australian Greens thank everyone who made a public submission and/or public representation to this inquiry.
As stated in the Chair's report, this bill is identical to one tabled in the previous parliament: the Migration Amendment (Strengthening the Character Test) Bill 2018 (the 2018 bill).
As with our dissenting report for the Legal and Constitutional Affairs Legislation Committee inquiry into the 2018 bill, this chapter will again raise many significant and substantive concerns with the Migration Amendment (Strengthening the Character Test) Bill 2019 (the 2019 bill).
Public policy should be based on evidence
The Australian Greens question the need for this legislation.
There are already appropriate consequences for criminal offences committed by visa holders, as there are for all residents of, and visitors to, Australia. This bill, as have previous amendments to the Migration Act 1958, seeks to create additional and disproportionate consequences for non-citizens.
Crime rates in Australia are in fact decreasing.
According to the Australian Bureau of Statistics, between 2016–17 and 2017–18 the youth offender rate decreased for all jurisdictions except Western Australia, which only increased by 4 offenders per 100,000 persons. During the same period, the number of all offenders proceeded against by police decreased in all states and territories except for the Northern Territory.
Given the evidence, it is clear this bill is more about stigmatising and persecuting particular cohorts of people than it is about public safety.
Who will be affected by the bill
This bill will, according to a legislative brief on the 2019 bill by the Andrew & Renata Kaldor Centre for International Refugee Law (the Kaldor Centre), introduce:
…a category of 'designated offences,' characterised by particular types of conduct and a maximum sentencing term of at least two years imprisonment. Under the proposed changes, any non-citizen who convicted of a 'designated offence,' in Australia or abroad will be deemed to fail the character test, irrespective of the actual sentence imposed. This will not lead to automatic visa cancellation, but will enliven the Minister's discretionary cancellation powers in ss 501(2) and 501(3).
Sherrell, Mares, Rizvi, Robertson, Berg & Bain, in their submission to the 2019 bill, have warned the introduction of the 'designated offence' and subsequent mandatory failure of the character test upon conviction of a designated offence (regardless of any sentences imposed by the courts for those offences) by this bill will possibly increase the number of people captured by section 501 of the Migration Act 1958 by a factor of five, including, most concerning, people who are not likely to be an ongoing threat to the Australian community.
Sherrell et al submitted:
Given the existing suite of powers under the character test, combined with mandatory cancellation for visa holders sentenced to at least 12 months jail, this Bill will primarily affect people who are sentenced to a range of non-jail sentences, reflecting the fact that many will not be an ongoing risk to the Australian community. It has the potential to inflict a double punishment, with the second punishment of removal and permanent exclusion from Australia being disproportionate to the nature of the original offence.
According to the Kaldor Centre's legislative brief, anyone without citizenship living in Australia, no matter for how long, will fail the character test if they have been convicted of a 'designated offence' at any point in the past.
Perversely, as identified by the Kaldor Centre, Liberty Victoria, and the Visa Cancellations Working Group, this could also include people of Aboriginal origin who were born overseas. This has already occurred under existing section 501 powers, with notable cases including "WSML", whose visa cancellation was overturned by the Administrative Appeals Tribunal, and Daniel Love and Brendan Thoms, both of whom have cases before the High Court. All three of these men have an aboriginal parent, but were non‑citizens because they were born overseas.
Retrospectivity and the rule of law
The Australian Greens have long argued that retrospective laws are inconsistent with the rule of law. The amendments in this bill will apply to any non-citizen who was convicted of a designated offence at any time. The Law Council of Australia submitted its concerns that the 2019 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 is] 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.
According to the Kaldor Centre in their legislative brief, this will include people who 'have lived in Australia for many decades, with no recent criminal history'.
Recognition of time and ties to Australia
Oz Kiwi, in its submission to the 2019 bill, 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. Subsequent amendments to the Act in relation to Section 501, have been used to cancel the visas of permanent residents who have lived in Australia for more than ten years.
The Australian Greens support 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.
This would 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.
In its submission to the 2018 bill, the Government of New Zealand, before noting a 400 per cent rise in cancellations of New Zealanders' visas under current s 501 powers, raised a principle concern relating to:
…visa cancellation of New Zealanders who arrived in Australia as children. By cancelling their visas, Australia is not taking responsibility for these people's failure to succeed in Australian society, despite them, in many cases, being a product of Australian society.
That the Migration Act 1958 be amended to prevent any non-citizen who has either lived in Australia for more than 10 years, or who arrived in Australia before the age of 10, from having their visa cancelled.
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 penalty model. When considering this aspect of the 2018 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.
This arbitrary penalty model is as blunt and unjust a model as mandatory sentencing, which is widely condemned by the legal and academic professions. As argued by Australian Lawyers for Human Rights in their submission to this latest inquiry:
[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.
In their submission to the 2019 bill, 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 2019 bill targets a cohort that largely already has problems accessing justice. As the Federation of Ethnic Communities' Councils of Australia (FECCA) noted:
Currently the Migration Act adversely impacts on highly vulnerable sections of Australia's community who have no access to free legal assistance and the proposed amendments will only further restrict their access to justice.
Effects on individuals, families, and communities
FECCA, along with the Human Rights Commission, also raised concerns regarding the bill's capacity to deport long-term residents of Australia, and to separate families. FECCA submitted that:
An individual may be removed to a country where they do not speak the language; 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 and sentenced accordingly by the courts.
This bill, particularly when cancelling the visa of a father, will therefore potentially create a twofold blow for dependents, particularly when the cancelation was on the basis of family violence. As the Asylum Seeker Resource Centre (ASRC) most recently 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 argued 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 concerned about how this bill will impact on the rights and welfare of children. The Refugee Council of Australia argued the 2019 bill would breach our commitment to international obligations to the protection of children, such as the Convention on the Rights of the Child, and noted:
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:
[c]hildren 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.
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.
The Government has failed to present a case for these additional powers.
The Australian Greens recommend that the Senate does not pass this bill.
Senator Nick McKim
Greens Senator for Tasmania