Labor senators declare, as we did from the outset in response to previous versions of this bill, that 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.
Previous bill - Migration Amendment (Strengthening the Character Test) Bill 2019 [Provisions]
Labor senators reiterate the issues and concerns that were raised by senators in the dissenting report to the Migration Amendment (Strengthening the Character Test) Bill 2019, which was tabled on the 13th of September 2019.
The government introduced that bill at the commencement of the 46th Parliament, after a previous iteration – introduced on the 25th of October 2018 - had lapsed at the dissolution of the previous Parliament.
In September 2019, the shadow minister for Immigration and Citizenship, Kristina Keneally, wrote to the then-Immigration Minister, David Coleman, and outlined three amendments to the bill that would secure Labor’s support for the legislation. The shadow minister also stated that if the government did not agree to those three changes, Labor would oppose the bill.
The then-Immigration minister never responded to Labor’s offer of negotiation.
The government proceeded with the bill – in the House of Representatives – without any of Labor’s requested changes in September 2019. Labor voted against the bill in the House of Representatives.
In October 2020, the Minister for Immigration, Alex Hawke, wrote to the shadow minister seeking Labor’s support for the bill. The minister argued that he needed the bill to pass urgently so he could deport perpetrators of domestic violence who reside in Australia on temporary visas.
Through an exchange of letters in October 2020, the shadow minister pointed out that the minister already has the power to deport family violence perpetrators of domestic violence.
The shadow minister reiterated Labor’s three conditions for support of the bill: the removal of retrospectivity in visa cancellations, a reduction in the risk that low-level offending could lead to the cancellation of a visa, and a review of ministerial directions, specifically with regard to the cancellation of visas held by New Zealanders.
In return, the minister offered one amendment that altered the definition of a ‘designated offence’ involving violence, to clarify that a cancellation or refusal of a visa can only occur when a common assault causes bodily harm, significant psychological harm or involves domestic violence.
This amendment only partially addressed Labor’s concern about low-level offending.
The government listed the bill for debate in the Senate in October without addressing further concerns, and the bill was negatived at the Second Reading stage on Wednesday, 20 October 2021.
Labor engaged in good faith with the government on negotiating passage of the bill. However, as the shadow minister outlined in her second reading speech, the government reneged on undertakings that it had made to her:
The minister sat there in his office and agreed with me that he and I would work together, over the next fortnight, to finalise these changes to the ministerial direction to keep women and children safe. The minister also agreed that he and I would work together over the next fortnight to consider what, if any, changes we might make to the government's own amendment to its own bill to ensure that low-level offending was not inadvertently captured by the bill. That was at noon yesterday. Just before 5 pm, the minister's office called mine and pulled that deal.
In total, the 2018 and 2019 versions of this bill sat on the notice paper for a combined period of more than 1,100 days before being voted down in the Senate.
Conduct of the inquiry
On 25 November 2021, the Senate referred the Migration Amendment (Strengthening the Character Test) Bill 2021 [Provisions] to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 28 January 2022.
The deadline for submissions to this inquiry was 17 December 2021.
The way in which the government sought to refer the bill for inquiry was shameful and contemptuous of the Senate committee system.
Having such a short reporting period over the end of year shutdown meant that submitters only had 22 days to review the bill, its implications, unintended consequences and make submissions to the committee.
The Senate – particularly the Selection of Bills Committee – must understand that this is not how a bill can be properly scrutinised and submissions carefully considered. It does not allow the secretariat and the committee members adequate time to consider the submissions and attempt to hold public hearings.
As a result of the reporting constraints, the time of year and other inquiries that the Senate referred to the committee it was not practicable for the committee to hold public hearings and meet the reporting date set by the Senate.
This was a point that was stressed by the New Zealand High Commissioner, Dame Annette King, in her correspondence to the committee on 6 September 2021:
I note that a shortened Senate Committee process has been scheduled for this version of the bill. Given the serious impacts this bill could have, including on the hundreds of thousands of New Zealand citizens who live and work in Australia, we believe that a full Committee Process that allows for meaningful input from all potentially affected stakeholders would be appropriate.
The government front bench, in referring the bill in this manner, have shown no consideration for people’s time and efforts in engaging with the Senate committee process on a bill that will have direct and serious implications on individual lives.
Trans-Tasman relations
In her letter to the committee, High Commissioner King noted that New Zealand had expressed serious concerns about the previous versions of this bill, through a submission on 28 November 2018 and in an appearance before the committee on 19 August 2019. In language echoing that used by New Zealand Prime Minister Jacinda Ardern, she said that the High Commission’s submissions had drawn attention to the 'corrosive effect' that Australias visa cancellation and deportation policies are having on bilateral relations.
The High Commission was still analysing the differences between the 2019 and 2021 versions of the bill, Dame Annette said, but the 'initial impression is that they do not address New Zealand’s concerns in any meaningful way'.
In the High Commission’s submissions and in her letter, Dame Annette criticised Australian government policy in more vigorous and forthright language than is usual in diplomatic exchanges between countries with a long and close tradition of friendship. Her remarks imply a clear warning that Australia’s attitude towards visa cancellation and deportation is in danger of causing the bonds of friendship to fray.
That prospect would shock most Australians, who would expect their government to do everything possible to restore cordial relations with our neighbour across the Tasman. Alarmingly, however, the Morrison-Joyce government appears completely indifferent to the effect that this bill is likely to have on a relationship that, as Prime Minister Ardern and High Commissioner King have indicated, is already under strain, at least so far as deportations are concerned.
That was already the case with the previous versions of the bill and nothing in the present bill will do anything to reverse this deterioration in the relationship with New Zealand.
As Labor senators noted in our dissenting report on the 2019 version of the bill, the reason for the New Zealand Government's concern is that New Zealand citizens are disproportionately affected by Australia’s 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 might 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.
As Labor senators stated in their dissenting report on the 2019 bill, 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.
Pre-Existing Powers under the Migration Act
As previously stated, Labor strongly supports the current powers to cancel or refuse visas on character, criminal or other grounds relating to the safety and good order of the Australian community which exist under section 501 and section 116 of the Migration Act 1958 (the Act).
In 2014, Labor supported amendments to the Act which strengthened the character test and gave the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs the power to cancel the visas of non-citizens, and, ultimately, deport them.
It is important to again reiterate the full extent of the extremely broad, discretionary powers currently available to the minister to refuse or cancel visas on character grounds under section 501 of the Act.
Today, the minister can cancel or reject the visa of an individual who has committed a serious crime, including offences involving violence, sexual offences, weapons offences, breaches of apprehended violence orders, and offences against women and children.
Importantly, the minister’s powers are so broad that a visa can be cancelled or rejected without the visa holder – or visa applicant – having spent a single day in jail or having been formally convicted of a crime.
Further, the minister has the power under to cancel or reject the visa of a person who they believe to be of bad character.
For example, the minister could refuse the visa of an individual if they believed that their entry into Australia would pose a risk to the community at large, either due to a violent or criminal past, or due to the risk that the individual would seek to vilify a segment of the community or incite discord or violence during their time in Australia.
Under the Act, the federal government has cancelled and rejected thousands of visas since 2014 on character grounds. Again, Labor supports the application of these powers to cancel or refuse visas on character grounds.
Moreover, as the recent Novak Djokovic saga demonstrates, the minister has extremely broad, discretionary powers under other provisions of the Act to cancel a person’s visa to protect the Australian community – even if the minister believes that the visa holder is a person of good character.
In his written reasons for cancelling Mr Djokovic’s visa, the minister for Immigration found that Mr Djokovic was 'a person of good standing and is known for his philanthropic efforts'.
And yet, because the minister believed Mr Djokovic’s presence in Australia could pose a risk to public health and safety, the minister had the power to cancel Mr Djokovic’s visa anyway.
Given the strength of these existing powers, much has been made of the necessity of the legislation subject to this inquiry. The saga involving Mr Djokovic has provided a timely case study of the almost-boundless power conferred to the minister under the Migration Act.
Mr Djokovic was initially granted a temporary entry visa (subclass 408) to enter Australia for the Australian Open on 18 November 2021. It is important to note that Mr Djokovic’s public statements on COVID vaccinations – a core element of the minister’s later decision – occurred well before he received this initial visa, as early as April 2020.
Upon arrival on 6 January 2022, Mr Djokovic’s temporary entry visa was cancelled by a delegate of the Minister for Home Affairs from the Australian Border Force on the basis that he did not meet the criteria for quarantine-free entry because he could not prove that he was either double-vaccinated for COVID-19 or had a medical exemption. As a result, he was taken to a temporary detention facility at the Park Hotel in Melbourne.
This initial cancellation was later by quashed in Federal Circuit and Family Court proceedings on 10 January when the Minister for Home Affairs conceded that Australian Border Force had not provided Mr Djokovic with procedural fairness, and agreed to restore Mr Djokovic’s visa and pay his costs.
On 14 January, the Minister for Immigration announced that he had exercised his power under subsection 133C(3) on section 116 character grounds of the Act to again cancel Mr Djokovic’s visa 'on health and good order grounds, on the basis that it was in the public interest to do so'.
Mr Djokovic applied to the Federal Circuit and Family Court for judicial review of the minister’s decision, as Ministerial decisions under subsection 133C(3) are not subject to merits review. This provides a very narrow avenue for appeal, especially given that the minister’s discretionary power under subsection 133C(3) is so broad and the rules of natural justice do not apply.
The proceeding was transferred to the Federal Court of Australia and a full bench of the Federal Court heard the appeal on 16 January and unanimously upheld the minister’s decision.
As Mr Djokovic’s case illustrates, the minister’s powers to cancel or refuse a visa under the pre-existing powers contained within the Act are exceptionally broad. The minister’s reasons in cancelling Mr Djokovic’s visa cited ‘the perception’ that Mr Djokovic was anti-vaccination.
The minister did not even seek to establish the facts of what Mr Djokovic’s current views on Covid vaccination are. A few public comments of Mr Djokovic’s from several years ago and the minister’s contention that his presence in Australia might incite discord in the Australian community was sufficient to cancel the visa.
The conduct of the Morrison government, especially of the Minister for Home Affairs for granting a visa to Mr Djokovic in the first place, and the Australian Border Force in failing to provide procedural fairness, deserves closer inspection and review, but the final outcome demonstrates the broad, significant powers the government has under the Migration Act to cancel a visa.
In the case of Mr Djokovic, no crime had been committed. Indeed, the minister for Immigration relied on very few facts and actual statements from Mr Djokovic, but rather cited the perception of the risk that Mr Djokovic might pose to public health and safety if he remained in Australia.
As Mr Djokovic’s deportation demonstrates, the Minister for Immigration already has extraordinarily broad powers – with no merits appeal – to cancel a visa. This raises the obvious question: what legal purpose does this legislation actually serve?
The Djokovic case demonstrates two key points. One, the first visa cancellation – on failure to meet vaccination requirements for quarantine free entry – was overturned when the Minister for Home Affairs conceded that the Australian Border Force failed to provide procedural fairness to Mr Djokovic.
That the Minister for Home Affairs granted a visa to Mr Djokovic on 18 November, then cancelled it, and then restored it after conceding Mr Djokovic was denied procedural fairness in no way points to a failure or flaw in the Migration Act, but rather a failure of management and competence on the part of the Department of Home Affairs and the Australian Border Force.
Two, the successful cancellation of Mr Djokovic’s visa by the minister for Immigration demonstrates the immense, broad powers the Minister for Immigration holds under the Migration Act.
In the near-1,200 days since this legislation was first introduced to the Parliament, Labor – like the overwhelming majority of stakeholders – has maintained that there is no need to further broaden the powers of the minister, as there is ample scope to cancel or reject visas under the current laws.
The minister admitted as such in his own statement of 14 January 2022 in announcing his decision on the Djokovic visa, where he said that “The Minister for Immigration has broad discretionary powers to cancel visas where it is in the public interest to do so, including relying on a health, safety or good order basis.”
Members of the Morrison government – including the minister – argued during debate on the 2019 version of this bill that the proposed legislation was necessarily in order to combat the scourge of domestic violence in Australia.
These comments demonstrate a lack of understanding about the minister’s powers and are now particularly absurd in light of recent events.
If the minister can cancel one tennis player’s visa on the basis of a few public statements several years ago overseas, and a perception of a risk to public health, safety and good order, there is no doubt the minister has the power to cancel the visa of persons who have perpetrated actual domestic violence, or threatened domestic violence, against others, especially women and children.
The perpetrators of violent crime, particularly, domestic violence, are a clear risk to the health, safety and good order of our community. As such, it is in the public interest – and within the minister’s current remit – to cancel their visas.
As such, this bill – similar to other legislative efforts by the Morrison government in this space – appears to serve political rather than practical purposes in the day-to-day functioning of Australia’s border security apparatus.
It is through no lack of power by the Minister for Immigration to cancel their visa on public health, safety or good order grounds.
Conclusion
Labor believes that the present bill, like its predecessors, is unnecessary and risks infringing the rights of visa holders without increasing protection for the community.
As the shadow minister stated in her letter to Minister Hawke on 13 January 2022, the Morrison-Joyce government has been unable to identify, throughout two Senate inquiries, what the bill enables the minister to do in cancelling a visa on character grounds that the minister cannot already do under the Migration Act.
The cancellation of Mr Novak Djokovic’s visa in January 2022 has served to further highlight the tremendous power currently available to the minister to cancel visas under the Migration Act.
In the present bill, the only substantial change from its predecessors is in the definition of a ‘designated offence’ involving violence, to clarify that a cancellation or refusal of a visa can only occur when a common assault causes bodily harm, significant psychological harm or involves domestic violence.
As drafted, this does not remove the risk of visas being cancelled for low-level offending. On the contrary, as Refugee Legal stated in their submission to the committee, the language used introduces a ”further complication, due to the uncertainty of what constitutes physical or mental harm. It also adopts a definition of family violence that is very broad.”
And, as the Federation of Ethnic Communities Councils pointed out in its submission, without the consideration of circumstance in the assessment of a person’s character the impact of these changes will reach far beyond ‘serious crimes’.
As noted earlier, in his correspondence with the shadow minister, Minister Hawke has urged Labor to support the bill so that he can deport temporary visa holders who are domestic violence perpetrators.
It remains unclear what power he believes he lacks in this regard, particularly given the recent exercise of his powers during the Djokovic saga. Nor is there any indication that he intends to take up the shadow minister’s suggestion that he review reports and recommendations on the matter made by the Australian Women Against Violence Alliance and the InTouch Multicultural Centre Against Family Violence.
These two reports contain copious information on the plight of victims of domestic-violence victims who are themselves temporary visa holders. Theirs is a precarious situation, often made worse by the fact that sponsors of their visas use the threat of visa cancellation to deter them from seeking help or legal remedies. Nothing in this bill, however, addresses the plight of these victims.
Finally, this latest version of the bill continues to ignore the damage that is being done to Australia’s relationship with New Zealand by cancelling the visas on character grounds of people who have lived for a long period, or even most of their lives, in Australia and who identify as Australian.
For all these reasons, Labor senators believe the bill should be rejected in its entirety.
Recommendation
Labor senators recommend that the bill not be passed.
Recommendation
Labor senators are particularly concerned about the impact this legislation could have on Australia’s crucial relationship with New Zealand. We therefore recommend further consultation and communication with the New Zealand Government.
Senator the Hon Kim Carr
Deputy Chair