2.1
This chapter outlines key issues raised in evidence from submissions provided to the committee. These issues include:
the definition of 'designated offence';
Australia's international and human rights obligations;
disproportionate impacts on certain groups; and
2.2
Given the similarities between the current bill to two previous iterations, many submitters – in addition to making a submission to this inquiry – either provided their previous submissions or referred the committee to their previous submissions. This report focuses on issues raised in submissions for the current inquiry.
The need for the bill
2.3
Many submitters expressed concern that the bill was being put forward, given the responses of submitters to the previous bills, and the fact that the previous bills, which were substantially similar to this bill, failed to progress through both houses of the Parliament.
2.4
Many submitters contended the amendments proposed in the bill are not necessary as the current arrangements under the Migration Act 1958 (Migration Act; the Act) are adequate.
Justification for the bill
2.5
Liberty Victoria submitted that the explanatory memorandum for the bill 'fails to provide an adequate policy justification for the proposed amendments'. Further, in asserting that the bill amends the Act by 'providing a new, specific and objective ground to consider visa refusal or cancellation', the explanatory memorandum may be misleading as it implies that these newly added offences are not already considered when determining a visa refusal or cancellation. The Immigration Advice and Rights Centre (IARC) also considered that the amendments proposed in the bill are unnecessary as subsection 501(6) of the Migration Act provides the minister and the minister's delegates with adequate discretion in deciding whether to refuse or cancel a visa.
2.6
Liberty Victoria argued that, despite the bill being introduced as a response to recommendations of the Joint Standing Committee on Migration (in the 2017 No one teaches you to become Australian report), there are fundamental differences between these recommendations and the bill. These differences include that the recommendations relate to 'migrant youth', and that the report recommended mandatory cancellation, whereas the response to certain offences in the bill is discretionary in nature.
2.7
The Department of Home Affairs (department) advised the committee that the amendments in the bill 'reflect that certain serious criminal offences… have a significant impact on victims, and that non-citizens who commit these crimes, regardless of the sentence actually imposed, should be appropriately considered for visa cancellation'.
Community safety
2.8
Several submitters told the committee that the bill is unlikely to have any additional influence on community safety, given the broad nature of the current character test. Mr Benjamin Cronshaw suggested that 'on face value' the bill is reasonable as the ability to deport individuals who have been convicted of a serious offence, and may possibly reoffend, could be 'beneficial to protect the community', but considered that the bill needs to provide additional evidentiary support regarding benefits to community safety.
2.9
Legal Aid NSW argued that 'no cogent reasons' had been put forward to justify changes to the minister's legislative powers on character grounds, as the minister already has 'wide legislative powers to cancel or refuse visas on character grounds' and that these powers 'are more than adequate to deal with individual cases of serious offending and to weigh up the risk to, and protection of, the community'.
2.10
Western Sydney University (School of Law) suggested that the 'mere conviction' of an individual for a designated offence in the context of the bill does not necessarily correlate to the individual being a risk to the safety of the community as 'the question of risk is an inherently complex issue that requires various factors to be considered'.
2.11
In contrast, the department submitted that, under the current character framework, some grounds under which an individual can fail the character test are 'more complex' and that 'the subjectivity of these grounds has proven to be difficult to defend in merits and judicial review'. Examples included: where an individual is convicted of serious offences (including breach of an apprehended violence order and sexual assault), where a person does not receive a 12-month sentence or more. The department told the committee that in some instances, decisions of the department have been overturned at review, 'despite the department's assessment that the person poses a risk to the Australian community'.
Definition of 'designated offence'
2.12
Liberty Victoria contended that the bill introduces 'confusion and incoherence' with reference to determining what is and isn't a 'designated offence' and pointed out that maximum terms for certain offences may differ between jurisdictions. As such, the determination of an offence as a designated offence will vary based on the state or territory in which the offence was committed.
2.13
Legal Aid NSW was of the view that proposed subsection 501(7AC) of the bill is 'confusing and unclear' and that, in addition to adding 'unnecessary evidentiary complexity', the provision would lead to 'great uncertainty' around what acts will constitute a designated offence. Victoria Legal Aid expressed similar concerns, stating that the 'broad and poorly defined' nature of the designated offences category in the bill would lead to difficulties in implementation, and that the interpretation of the designated offences category carries 'a real risk of error, potentially resulting in unjust outcomes'.
2.14
Legal Aid NSW also argued that the requirement for decision makers to determine whether an offence 'causes, or substantially contributes to, either temporary or permanent bodily harm or harm to another person's mental health', would result in inconsistencies around the application of proposed subsection 501(7AC), particularly as indications of harm 'may not always be evident on the facts'.
2.15
The department stated that the strengthening of the character test proposed by the bill would allow for individuals who have committed serious offences to objectively fail the character test and therefore allow their existing visa or application for a visa, to be 'appropriately considered – on a discretionary basis'.
Capturing of low-level offences
2.16
Western Sydney University (School of Law) submitted that 'there is no express principle reflected in Direction no. 90 (the current ministerial direction under section 499 of the Migration Act) that provides that low level, petty or historical offending would not generally lead to the adverse exercise of discretion'.
2.17
The Legal Services Commission of South Australia considered that the provisions would 'capture almost any offending, no matter how minor'.
2.18
The department told the committee that the bill would exclude instances of 'petty and trivial offending' as an offence will only be considered a 'designated offence' for the purpose of the bill where the maximum sentence is at least two years imprisonment.
Maximum available sentence versus sentence imposed
2.19
The committee heard a substantial amount of evidence regarding the contrast between the approaches of the courts and the proposed approach of decision-makers empowered under the bill in their consideration of the seriousness of an offence. Submitters raised concerns about the approach in the bill to defining 'designated offences' by the maximum available sentence for an offence, rather than a sentence imposed by a court.
2.20
Victoria Legal Aid was of the view that 'Australia's criminal courts are the most appropriate forum for determining the seriousness of offending, risk and penalties'. This view was echoed by Legal Aid NSW, which told the committee that the 'assessment of these matters should be left to the sentencing court'.
2.21
Professor Alison Gerard and Professor Leanne Weber detailed the specialised role of courts in sentencing and determining the seriousness of an offence in individual cases:
Sentencing is a highly specialized task requiring the careful exercise of discretion…Magistrates and Judges have considerable expertise in weighing up a range of factors including the seriousness of the offending, ongoing risks to the community and potential for rehabilitation in deciding between alternative sanctions, taking into account detailed information about offenders that is presented and tested in court. Disregarding the sentence imposed by the Court in relation to liability for visa cancellation would shift the focus exclusively to assumptions about future risk of offending made entirely on the basis of the legal offence category, not the individual offender.
2.22
Victoria Legal Aid submitted that the bill, in considering the maximum sentence that may be available for an offence rather than the sentence received by an individual, fails to consider an individual's mitigating circumstances in the way that sentencing courts do.
2.23
Liberty Victoria emphasised the expertise of Australian courts as 'a valuable resource for administrative decision-makers' and that ignoring the role of courts would be likely to 'affect the integrity of administrative decision‑making'.
2.24
The department advised, however, that the bill does 'not it any way seek to undermine the Courts or their role', as the seriousness of the offence is determined by 'the maximum sentence imposed by the relevant States and Territories'. Further, under the bill it 'would remain a matter for the decision‑maker, in the circumstances of the individual case, to consider 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'.
Australia's international and human rights obligations
2.25
Several submitters expressed concern that the bill is inconsistent with Australia's human rights obligations. Among a range of human rights concerns, submitters particularly highlighted concerns that the bill may engage Australia's non-refoulement obligations and identified rights that are affected when a person is placed in immigration detention.
Non-refoulement
2.26
The United Nations High Commissioner for Refugees (UNHCR) submitted that 'a further expansion of the character test would increase the risk that asylum seekers, refugees and stateless persons may be subject to detention or removal from Australia in circumstances other than those permitted by International law'. The UNHCR expressed concern that it is not a mandatory statutory requirement to comply with Australia's non-refoulement obligations in the decision-making process for character-related visa cancellation and refusal decisions, given the significant consequences of such decisions.
2.27
Dr Anthea Vogl and Dr Elyse Methven stated that, in relation to the potential refoulement of refugees and asylum seekers, the bill was in conflict with Australia's international obligations:
As with existing cancellation powers under s 501, the expanded powers are in direct conflict with Australia's non-derogable non-refoulement obligations to refugees and asylum seekers under international and domestic law….Furthermore, refugees and asylum seekers subject to visa cancellation who are not or cannot be refouled potentially face indefinite, life-long detention – a consequence once again exacerbated by the reforms.
2.28
The department submitted that Australia's obligations with regard to non‑refoulement are considered when discretion is applied to individual cases, stating that 'a non-citizen will not be removed to a country in relation to which the person has been found to engage non-refoulement obligations through the protection visa process'.
Immigration detention
2.29
Submitters raised concerns regarding a potential increase in the number of individuals who would be held in immigration detention as a result of the bill, including in situations where individuals cannot be sent to their country of origin.
2.30
The Refugee Council of Australia expressed concern that refugees who had their visas cancelled would be subject to indefinite detention, as refugees would not be able to be returned to their country of origin as per Australia's non-refoulement obligations.
2.31
The UNHCR told the committee that under the 'ordinary operation of Australian law', an individual who has their visa cancelled or refused on character grounds would either remain in detention until they are removed from Australia, or in circumstances where an individual cannot be removed, can remain in detention indefinitely. The UNHCR further elaborated on the risk of indefinite detention to individuals who may have their visa cancelled or refused, stating:
Refugees, asylum-seekers and stateless persons are particularly vulnerable to arbitrary detention as a result of visa cancellation or refusal… UNHCR has observed first-hand the severe and detrimental impact long-term immigration detention can have on the health and psycho-social wellbeing of those affected, many of whom have already suffered from torture or trauma before arriving in Australia. Family separation, inadequate transparency surrounding processes and timeframes for release also contribute greatly to diminished mental health, often leading to insomnia, depression, anxiety and feelings of hopelessness and resignation.
2.32
Dr Anthea Vogl and Dr Elyse Methven raised similar concerns regarding the detrimental effects that detention might have on non-citizens, including 'serious physical and mental harm to individuals and families'.
2.33
NSW Council for Civil Liberties (NSWCCL) argued that the amendments in the bill are incompatible with Article 9 of the International Covenant on Civil and Political Rights, and that where an individual's visa is cancelled, the resulting 'protracted detention' can be considered 'arbitrary under international law'.
2.34
The department advised that the bill is compatible with the relevant human rights and freedoms, stating that where the bill might have the effect of limiting some rights, this is 'reasonable, necessary and proportionate to the objective of protecting the Australian Community from the risk of harm posed by non-citizens who have been convicted of designated offences'. The department again emphasised that 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'.
Impact on certain groups
2.35
Submitters considered that the bill would have negative impacts on certain groups within the Australian community including:
victims of family violence;
young/juvenile offenders;
long-term Australian residents; and
Victims of family violence
2.36
The committee heard that the bill may increase the reluctance of victims of family violence to report offences for fear that the victims themselves may face adverse immigration outcomes including the cancellation of the victim's visa.
2.37
Safe and Equal submitted that the bill 'fails to recognise the complex nature of family violence' and could have the effect of increasing the safety risk to victims of family violence. Safe and Equal argued that the bill should not be passed 'until safeguards and unintended consequences for victim-survivors of family violence are fully considered'.
2.38
Refugee Legal similarly argued that the inclusion of family violence convictions as an automatic ground for failure of the character test 'removes agency from the victims of that violence, to express their own views as to the character of the perpetrator'.
2.39
The Federation of Ethnic Communities’ Councils of Australia (FECCA) stated that the inclusion of 'aiding and abetting' in the amendments would 'disproportionately' impact women who are victims of family violence who may be in a relationship with an offender. This view was shared by Safe and Equal, which added that the inclusion of 'aiding and abetting' would have consequences for victims of family violence who may be experiencing 'coercive control'.
2.40
Refugee Legal suggested that the bill fails to consider the effect that the measures could have on victims of family violence who may be financially dependent on the perpetrator, or the implications for victims who might be aware that they will 'lose their source of financial support'.
2.41
The department told the committee that the prevention of family violence and the protection of vulnerable people is an 'ongoing and urgent priority' for the Australian government and noted that the existing visa cancellation framework already provides broad grounds to refuse or cancel a visa due to family violence offending. The department advised that the bill would strengthen these visa cancellation provisions 'by providing a clear, objective basis on which to [cancel or refuse a non-citizen's visa], where family violence is involved'. The department also assured the committee that, '[i]n the case of family and domestic violence, a victim's visa will not be consequentially cancelled… if the visa of the primary visa holder (and perpetrator) is cancelled on character grounds'.
Young offenders and families
2.42
The Kaldor Centre submitted that the amendments in the bill would result in young offenders being 'more susceptible to visa cancellation in a far wider range of circumstances'. This view was shared by the Refugee Council of Australia, which noted that the bill does not contain legislative provisions that would indicate any 'differential treatment' for children.
2.43
The Migration Institute of Australia argued that children under 18 could be subject to a visa cancellation where the offence committed may not have incurred a criminal sentence but might still fall within the bounds of a designated offence as stipulated by the bill.
2.44
Refugee Legal stated that minors who are convicted of offences and who would subsequently fail the character test are at 'heightened risk of being subject to serious psychological harm as a result of indefinite detention'.
2.45
Professors Alison Gerard and Leanne Weber suggested the bill would 'result in the targeting of an increased number of children' to be deported, and further contended that 'the pursuit of children and adults for deportation, some of whom have been propelled into the criminal justice system as a result of inadequate access to, or experience of, government service provision, is manifestly unfair and unjust'.
2.46
The Immigration Advice and Rights Centre (IARC) emphasised the impact the proposed amendments could have on families and the broader communities of individuals whose visas may be refused, stating that the amendments may contribute to 'unnecessary distress' for families:
The decision to cancel or refuse a person's visa under the character provisions and the removal that inevitably follows can have devasting consequences for all involved including the non-citizen, their family, community and in some cases, the victims of the offence. IARC is aware of numerous people who have been removed from Australia following a decision under the character provisions and, in many of those cases, the removal has left families broken and children without a parent and at great risk of intergenerational disadvantage. The proposed amendments will see to the breakdown of a greater number of Australian families…
2.47
FECCA expressed concerns that the bill would have negative consequences for families, particularly in relation to the separation of children, in some cases who are still dependant, from their parents and other family members.
2.48
The department stated that, when making a decision to cancel or refuse a visa, the minister or delegate will, at their discretion, consider the effect that the decision will have on any minors. Further, the department advised that refusal or cancellation of a minor's visa would only occur in 'exceptional circumstances' and that it approaches 'the possible refusal or cancellation of minors with a high degree of caution and consultation'. The department reiterated that such decisions are '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'.
Long-term Australian residents
2.49
FECCA was concerned about the consequences for individuals such as refugees and long-term permanent residents in Australia:
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.
2.50
Bayside Refugee Advocacy and Support Association (BRASA) noted with concern that offenders would be at risk of being separated from their families and other support networks, which would have a detrimental impact on the ability of offenders to undergo reform and re-integrate into society.
2.51
The department emphasised the discretionary nature of the decision to cancel or refuse someone's visa and detailed a number of considerations that are taken into account when making such a decision, including, but not limited to, the length of time someone has resided in Australia and the ties that person has to the community.
Indigenous Australians
2.52
Liberty Victoria contended that significant numbers of Aboriginal and Torres Strait Islander people have had their visas cancelled. Liberty Victoria told the committee that some Indigenous Australians, despite having Indigenous heritage, may be non‑citizens as a result of being born overseas.
Other issues raised in evidence
Diplomatic relations
2.53
In a letter received on 6 December 2021, New Zealand's High Commissioner to Australia referred to past concerns raised by New Zealand with regard to previous iterations of the bill, including 'the corrosive effect that Australia's existing visa cancellation and deportation policies have had on the New Zealand-Australia bilateral relationship'.
2.54
Similarly, Dr Anthea Vogl and Dr Elyse Methven considered the effect the bill could have on Australia's bi-lateral relationship with New Zealand, suggesting that the operation of the bill could weaken a relationship that is already fractured as a result of deportations to date.
Expansion of minister's powers
2.55
Submitters expressed concern regarding the proposed expansion of the minister's powers under the bill, and the reliance this would place on the discretionary power afforded to the minister and delegates.
2.56
FECCA noted that the amendments proposed in the bill have the effect of increasing the powers of the minister and remarked that 'unchecked executive power creates a climate of fear and opacity both for Australians with family members who are not yet citizens and for the broader community of migrants currently in Australia'.
2.57
The Australian Human Rights Commission told the committee that the introduction of additional avenues for failing the character test may have the effect of limiting the applicant's ability to challenge ministerial decisions, as where an individual has 'objectively' failed the character test, 'they will not be able to successfully seek revocation under s501C'.
2.58
The department submitted that while the bill does establish a new ground in the character test, the ground would 'operate within the established framework under section 501 and related provisions of the Migration Act, with a Ministerial Direction and departmental policy and procedural instructions to support decision-makers [to] appropriately consider relevant matters and circumstances in each individual case'.
Retrospectivity
2.59
FECCA argued that the retrospective nature of the amendments in the bill are 'unjust' where an individual has received, and in some cases completed, a sentence, but may now additionally face separation from their home and community.
2.60
Similarly, BRASA contended that it would be 'unfair and anomalous' to impose the additional consequences of deportation or indefinite attention on an individual who has already been appropriately convicted and sentenced in a court of law.
2.61
Western Sydney University (School of Law) stated that the retrospective operation of the bill was inconsistent with the rule of law doctrine, which provides that 'justice will be done according to laws that are certain and knowable in advance'.
2.62
The department however advised the committee that the retrospective nature of the bill allows the decision-maker to consider previous convictions in relation to section 501, where the individual in question 'may continue to pose a risk to the Australian community'.
Increased burden on the court system
2.63
Legal Aid NSW submitted that where an individual is aware they may have their visa cancelled or refused, the provisions of the bill may discourage individuals from pleading guilty to a designated offence, which results in 'more defended hearings in the Local Court and trials in the District Court'. Legal Aid NSW stated that the bill would undermine current reforms in NSW which aim to increase 'early appropriate' guilty pleas and have 'an adverse impact on resources across the justice system, including those of police, prosecution and defence'.
2.64
Victoria Legal Aid highlighted the impacts that an increase in contested hearings could have on the court system in Victoria, which has already experienced additional delays as a result of COVID-19:
Our concerns about the implications for the criminal justice system, including the anticipated increase in contested hearings because of the visa consequences of pleading guilty, are even greater with the impact of the COVID-19 pandemic. The substantial backlogs in criminal courts will affect the court system for the immediate future and amendments that unnecessarily add to this burden and to these delays should be avoided.
2.65
The department acknowledged that the measures in the bill 'may have a consequential impact upon other bodies or systems', but argued that the primary purpose of the bill is 'to protect Australia from non-citizens convicted of serious offences who pose a risk to the safety of the community'.
Other issues
2.66
Submitters identified other concerns, including that the bill would:
place additional burdens on Australia's 'already stretched detention system' and lead to additional cost implications for the Australian community;
lead to an increase in the workload of the minister's delegates, requiring considerable economic resources', and place an increased burden on 'primary-stage decision makers';
increase the burden on legal aid and volunteer legal representation organisations, thereby further disadvantaging community members who already have limited access to legal representation; and
negatively impact social cohesion between members of the Australian community and between the community and the government.
Committee view
2.67
The committee continues to view community safety as a critical objective for government and maintains that it is 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 the Australian community.
2.68
The committee further considers that it is appropriate for the government to have discretion to cancel or refuse a non-citizen's visa where this discretion aids in furthering community safety and protection.
2.69
The committee acknowledges the concerns raised by some submitters about the impact of visa cancellation on individuals. However, the committee remains of the view that conviction of a designated offence is a serious matter, and that, in the interests of community safety, it is appropriate for the minister to be given discretionary powers in relation to non-citizens convicted of these offences. The committee also notes that the bill expands a discretion to cancel or refuse visas by changing the definition of the character test. It does not create a blanket obligation to cancel or refuse a visa on the basis that a non‑citizen has committed a designated offence. As the preamble to the explanatory memorandum outlines:
It would, however, remain a matter for the Minister or a delegate to consider the factors in relation to the nature of the conviction, any sentence applied and countervailing considerations before deciding whether to exercise the discretionary power under s 501 of the Migration Act to refuse to grant or cancel a visa. In other words, a determination that a person does not pass the character test under the new ground would enliven the discretion whether to refuse to grant or cancel a visa but would not dictate the outcome of the exercise of the discretion.
2.70
The committee also notes that concerns were raised with regard to Australia's human rights obligations and the impact of the operation of the bill on certain groups within the community.
2.71
While recognising these concerns, the committee is reassured by the departmental advice that the bill is consistent with human rights and allows decision makers to consider a range of matters in the exercise of their discretion in individual cases. The committee is therefore of the view that the bill provides appropriately balanced measures to provide protection to the Australian community and mitigate the risks posed by individual non-citizen offenders.
2.72
The committee recommends that the Senate pass the bill.
Senator the Hon Sarah Henderson
Chair