1.1
On 25 November 2021 the Senate referred the provisions of the Migration Amendment (Strengthening the Character Test) Bill 2021 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 28 January 2022.
1.2
The Senate referred the bill to the committee following a recommendation of the Selection of Bills Committee. The report of the Selection of Bills Committee presented a range of reasons for referring the bill, including to allow stakeholders an opportunity to inform the committee of concerns, and that the bill appeared to be materially different from previous iterations.
Previous bills and committee inquiries
1.3
The bill is almost identical to two previous bills of a similar name: the Migration Amendment (Strengthening the Character Test) Bill 2019 (the 2019 bill) and the Migration Amendments (Strengthening the Character Test) Bill 2018 (the 2018 bill).
2018 bill
1.4
The 2018 bill was introduced into the House of Representatives on 25 October 2018 by the Minister for Immigration, Citizenship and Multicultural Affairs, the Hon David Coleman MP. It lapsed at the dissolution of the 45th Parliament on 11 April 2019.
1.5
On 15 November 2018 the Senate referred the provisions of the 2018 bill to the committee for inquiry and report by 18 January 2019. The committee received 17 submissions and did not conduct any public hearings. The committee presented its report on 17 December 2018 with one recommendation: that the bill be passed. Labor senators presented a dissenting report with four recommendations, including that the bill not be passed in its current form. The Australian Greens presented a dissenting report recommending that the Senate not pass the bill.
2019 bill
1.6
The 2019 bill was introduced into the House of Representatives on 4 July 2019 by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon David Coleman MP.
1.7
On 4 July 2019 the Senate referred the provisions of the 2019 bill to the committee for inquiry and report by 13 September 2019. The committee received 32 submissions and conducted one public hearing in Canberra on 19 August 2019. The committee presented its report on 13 September 2019 with one recommendation: that the Senate pass the bill. Labor senators presented a dissenting report with two recommendations, including that the bill not be passed. The Australian Greens presented a dissenting report recommending that the bill not be passed.
1.8
The 2019 bill was negatived at second reading in the Senate on 20 October 2021.
Conduct of this inquiry
1.9
Details of the current inquiry were advertised on the committee’s web page, and the committee also wrote to a number of organisations inviting them to make a submission to the inquiry. The committee called for submissions to be received by 17 December 2021. The committee received 41 submissions, which are listed at Appendix 1.
Acknowledgements
1.10
The committee thanks all submitters for the evidence they have provided to this inquiry.
Structure of this report
1.11
This report consists of two chapters:
This chapter (Chapter 1) outlines the key provisions of the bill and provides administrative details relating to the inquiry.
Chapter 2 examines the key issues raised in evidence and provides the committee’s view.
Purpose of the bill
1.12
The bill was introduced on 24 November 2021 by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon Alex Hawke MP. The minister stated in his second reading speech that:
At present, not all noncitizens convicted of serious criminal offences objectively fail the character test. Certain criminal offences against Australian or foreign laws may involve violence against a person and have a significant impact on victims. Nevertheless, the perpetrator may receive a sentence of less than 12 months for their crimes.
The bill sends a clear message that the Australian community has no tolerance for noncitizens who have been convicted of such crimes.
1.13
The explanatory memorandum for the bill further explains that:
The amendments in the bill will ensure the character test aligns directly with community expectations that non-citizens who are convicted of offences such as murder, sexual assault or aggravated burglary will not be permitted to enter or remain in the Australian Community.
Background
1.14
Section 501 of the Migration Act 1958 (Migration Act; the Act) relates to the operation of a 'character test' which applies to all non-citizens holding or applying for an Australia visa. The provision has undergone significant change since 2014.
1.15
In 2017 the Joint Standing Committee on Migration (migration committee) published a report focused on migrant settlement outcomes titled ‘No one teaches you to become an Australian’. The explanatory memorandum for the bill states that the bill was introduced in response to the recommendations in this report, in particular:
Recommendation 15: 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.
Recommendation 16: 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.
1.16
The migration committee reflected on the 2018 bill in the report for its inquiry into review processes associated with visa cancellations made on criminal grounds, published in February 2019:
This important legislation will ensure violent offenders can be removed from Australia at the earliest possible opportunity.
The Committee believes this legislation would address a number of community concerns around non-citizens who commit acts of violence in Australia. As such, the Committee urges the Australian government to pass and enact this legislation without delay.
Existing character test
1.17
The Migration Act currently provides that the minister or their delegate may, and in some cases must, refuse or cancel a non-citizen's visa if they are not satisfied that the person passes the character test under section 501.
1.18
As described in the committee's previous report, subsection 501(6) sets out the circumstances in which a person does not pass the character test, including:
The person has a 'substantial criminal record', which is defined to include a person who has been sentenced to a term or terms of imprisonment totalling 12 months or more.
The person has been convicted of an offence that was committed while they were in immigration detention or during an escape from immigration detention.
The person has been convicted of an offence against section 197A of the Act, which provides that detainees must not escape from immigration detention.
The minister reasonably suspects that the person has had or has an association with a group, organisation or person that has been or is involved in criminal conduct.
The minister reasonably suspects that the person is or has been involved in conduct constituting certain listed offences including people smuggling, trafficking in persons, and genocide, whether or not the person has been convicted of the offence.
Having regard to the person's past and present criminal conduct or their past and present general conduct, the person is not of good character.
In the event that the person were allowed to remain in Australia, there is a risk that the person would:
engage in criminal conduct in Australia;
harass, molest, intimidate or stalk another person in Australia;
vilify a segment of the Australian community;
incite discord in the Australian community or a segment of that community; or
represent a danger to the Australian community or to a segment of that community.
A court in Australia or a foreign country has found the person guilty of one or more sexually based offence involving a child.
The person has, in Australia or a foreign country, been charged with or indicted for one or more listed crimes, including the crime of genocide, a crime against humanity, and a war crime.
The person has been assessed by the Australian Intelligence Security Organisation to be directly or indirectly a risk to security.
An Interpol notice in relation to the person, from which it is reasonable to infer that the person would present a risk to the Australian community or a segment of that community, is in force.
1.19
If an individual does not meet any of the above criteria, the individual passes the character test.
Consequences of failing the character test
1.20
In circumstances where a person is serving a prison sentence and they have a 'substantial criminal record' (sentenced to at least 12 months, or life imprisonment) or have been convicted of sexually based offences involving a child, cancellation of the person's visa is mandatory.
1.21
The decision to cancel a visa in other circumstances where a person does not pass the character test is a discretionary decision of the minister or their delegate. Guidance for the exercise of this discretion is set out in Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction No. 90), which commenced 15 April 2021, replacing the previous Direction No. 79.
1.22
Decisions to refuse or cancel a visa on character grounds that are made by a delegate using discretionary powers may in some cases be subject to merits review by the Administrative Appeals Tribunal (AAT). Merits review is not available if the decision is made by the minister personally, however, decisions made by the minister and their delegates under section 501 of the Act may be reviewed by the Federal Court or High Court.
Key provisions of the bill
1.23
This bill seeks to amend the Migration Act to include a new ground under which an individual may fail the character test under section 501(6) of the Migration Act.
'Designated offence'
1.24
As with previous versions of the bill, item 5 of the bill seeks to add a new 'designated offence' ground to the character test in subsection 501(6) of the Act. Under proposed paragraph 501(6)(aaa), a person will not pass the character test if they have been convicted of a 'designated offence'.
1.25
'Designated offence' is defined in proposed subsection 501(7AA). In general terms, an offence is a 'designated offence' if:
the offence is punishable by life imprisonment or a maximum or fixed term of imprisonment of not less than two years; and
the offence satisfies one or more of the listed 'physical elements' set out in proposed subparagraphs 501(7AA)(a)(i) to (viii), which include:
violence (including a threat of violence) against a person;
non‑consensual conduct of a sexual nature;
breaching an order made by a court or tribunal for the personal protection of another person;
using or possessing a weapon (defined to include a thing made or adapted for use for inflicting bodily injury); and
ancillary offences capturing conduct in connection with the commission of the above offences.
1.26
Offences against a law of a foreign country (that also satisfy one of the physical elements) will be designated offences provided that, if the act or omission constituting the offence had taken place in the Australian Capital Territory (ACT):
the act or omission would have constituted an offence against a law in force in the ACT; and
the ACT offence would have been punishable by imprisonment for a maximum term of not less than two years.
1.27
The explanatory memorandum states that the purpose of this new subsection 501(7AB) is to ‘provide a non-exhaustive list of the types of acts that would constitute violence against a person, noting that the terminology for such offences may vary depending on the State or Territory where the offence occurs’.
1.28
A person who fails the character test because they have been convicted of a 'designated offence' will not automatically have their visa cancelled or refused. Rather, the amendments in the bill provide a discretionary ground for the minister or a delegate to cancel or refuse a visa. The Department of Home Affairs (department) stated that it would be incumbent on the decision-maker to consider the circumstances of an individual case, including 'factors in relation to the nature of the conviction, any sentence applied and countervailing considerations before deciding whether to exercise the discretionary power under section 501'.
Amended definition of 'character concern'
1.29
Section 5C of the Migration Act currently defines 'character concern' to reflect the existing character test in section 501. According to the department, the definition of 'character concern' in section 5C is relevant in determining:
the circumstances in which the department can disclose personal information for the purposes of data matching; or
the reasons for which biometrics captured by the department can be used.
1.30
Items 1 to 4 of the bill would amend the section 5C to effectively provide that a person who is convicted of a designated offence would be of 'character concern'. These amendments would also have the effect of ensuring that the definition of 'character concern' continues to reflect the character test requirements in section 501 of the Migration Act.
Differences between this bill and previous bills
1.31
The definition of 'designated offence' in the current bill is narrowed compared to the 2019 bill. Proposed subsection 501(7AC) provides that a person's conviction for an offence of common assault (or equivalent) would not be a conviction for a designated offence unless the act constituting the offence:
causes or substantially contributes to bodily harm to another person, or harm to another person’s mental health, in both cases either temporarily or permanently; or
involves family violence (as defined by subsection 4AB(1) of the Family Law Act 1975).
1.32
Proposed subsection 501(7AE) would also provide that an ancillary or accessory offence committed in circumstances where the primary offender would not be taken to have committed a designated offence would also not constitute a 'designated offence'. Consequential amendments to section 5C of the Migration Act reflect the above amendments.
1.33
The department advised the committee that the provisions in the current bill are 'substantively the same' as those in previous versions of the bill but incorporate proposed government amendments that were circulated in the Senate on 19 October 2021.
1.34
The department stated that the effect of these amendments is to explicitly stipulate that 'convictions for low-level offending such as minor scuffles will not be taken to be convictions for a designated offence', but that 'any offence of common assault that involves family violence will be taken to be a designated offence regardless of whether the offence causes bodily harm or harm to a person’s mental health'. The explanatory memorandum to the bill also notes that, for the purposes of the bill, harm to a person's mental health is defined in the Criminal Code as including 'significant psychological harm' but not does not include 'ordinary emotional reactions'.
Consideration by other parliamentary committees
Senate Scrutiny of Bills Committee
1.35
The Senate Standing Committee for the Scrutiny of Bills (the scrutiny committee) considered the bill in Scrutiny Digest 18 of 2021, published on 1 December 2021.
1.36
The scrutiny committee reiterated its previous scrutiny concerns, in relation to the 2018 bill, including that:
the current provisions in the Migration Act 1958 already provide a broad discretionary power to the minister to refuse or cancel a visa in the absence of procedural fairness obligations and where merits review is largely unavailable; and
expanding powers to empower the minister to cancel a visa (which could lead to the detention and removal of a non-citizen), raises scrutiny concerns as to whether the measure unduly trespasses on rights and liberties.
1.37
More detailed consideration of the scrutiny committee's comments is contained in this committee's report in relation to the 2019 bill.
Parliamentary Joint Committee on Human Rights
1.38
The Parliamentary Joint Committee on Human Rights (PJCHR) raised a number of concerns regarding the bill in its Human tights scrutiny report published 8 December 2021. The PJCHR had made comments previously in relation to the 2018 bill, which the PJCHR noted was 'substantially the same as this bill'.
1.39
In relation to the current bill, the PJCHR noted that the amendments sought to be enacted by the bill differ from the current character test provisions in the Migration Act 1958 which require that a person has been sentenced to two or more years imprisonment. The PJCHR also noted that cancellation of a person's visa:
subjects a person to mandatory immigration detention prior to removal;
will result in a person's expulsion from Australia;
could include cancellation of a protection visa; and
may be decided by the minister personally (meaning that the rules of natural justice do not apply).
1.40
The committee therefore considered that amending the bases on which visas may be cancelled or refused on character grounds engages and may limit a number of human rights including:
the prohibition on expulsion of aliens without due process;
the right to freedom of movement;
the right to protection of the family; and
the obligation of non-refoulement.
1.41
The committee recognised that protecting the safety of the Australian community and the integrity of the migration programme are important objectives, but considered that it had not been established that the measures proposed in the bill were necessary to address a pressing and substantial concern for the purposes of international human rights law. The committee also considered that it had not been established that the measures in the bill would, in all instances, be proportionate to the objectives of the bill.
1.42
The committee therefore concluded that there was a risk that the bill would be incompatible with a number of human rights, highlighting:
In particular, in the absence of any opportunity to challenge mandatory detention in substantive terms, the committee considers expanding the bases on which visas may be cancelled increases the risk of a person being arbitrarily deprived of liberty.
1.43
The committee further explained that expanding the bases on which visas may be cancelled:
risks breaching the prohibition on expulsion of aliens without due process;
significantly risks impermissibly limiting the right to return to one's 'own country' (as part of the right to freedom of movement), the right to protection of the family and rights of the child; and
creates some risk that the measure, in applying to a protection visa, could expand the risk of Australia not meeting its non-refoulement obligations.
1.44
The PJCHR drew its human rights concerns to the attention of the minister and the Parliament.