Wed Feb 16

Government's bid for an enhanced 'character test' is unnecessary

Written by: Amy Maguire, Associate Professor in Human Rights and International Law, University of Newcastle

The Migration Amendment (Strengthening the Character Test) Bill ^[1] will pass the House of Representatives by the end of this week. The bill would enhance the immigration minister’s powers to cancel the visas of people convicted of certain crimes.

This bill was debated and rejected twice previously, in 2019 and again in October 2021. This week, the government introduced it for a third time. Prime Minister Scott Morrison anticipated Labor would reject it again and accused the opposition of being “on the side of criminals ^[2]”.

This time around, though, Labor has confirmed it will not oppose the bill ^[3] in the House of Representatives.

The bill will now progress to a Senate inquiry or debate and then a vote in the Senate. This means it is highly unlikely to be passed into law before the upcoming election. The Senate has only two sitting days left ^[4], in budget week in late March.

What is the proposed legislation?

Under the Migration Act, Australia’s immigration minister has discretion and powers so broad they have been termed “God-like ^[5]”. The act, first passed in 1958, has been amended multiple times since the Tampa crisis of 2001 to progressively enhance the Commonwealth’s capacity to pursue its border protection and related policies.

In 2014, Morrison, who was then immigration minister, introduced amendments to section 501 of the Migration Act ^[7], which strengthened the minister’s capacity to refuse or cancel a visa on character grounds. The amendments also introduced mandatory visa cancellation in cases where non-citizens were sentenced to 12 months or more imprisonment, or convicted of sexual crimes involving a child.

The parliament passed those amendments, substantially boosting the minister’s already very broad discretion. This is clear in the dramatic increase in the number of visas cancelled under section 501 ^[8] - from 76 cancellations in 2013-14 to 983 cancellations in 2015-16. This week, Morrison told Ben Fordham on 2GB radio the government has used these powers to expel 4,000 people from Australia since the last election.

The Migration Amendment (Strengthening the Character Test) Bill was drafted in 2018 to further tighten the character test. These latest proposed amendments confirm that a non-citizen would fail the character test if convicted of designated offences, including those

involving violence or use of weapons
punishable by imprisonment for two years
involving violence in foreign countries that would constitute crimes if committed in Australia.

In other words, these amendments would enable the minister to expel someone convicted of a designated crime, even if they did not receive a custodial sentence.

The latest introduction of these proposed amendments was foreshadowed in October 2021. Immigration Minister Alex Hawke said the government would continue to push for the bill’s passage so it could protect Australians “from foreign criminals”.

Hawke says the amendments address a gap by ensuring visa cancellation in cases where people are convicted of crimes but receive a reduced sentence ^[9], for example following a guilty plea.

On 2GB this week, Morrison went further, claiming judges are deliberately handing down reduced sentences to ensure non-citizen offenders do not fail the character test. Hawke, on ABC Radio ^[10], also criticised lawyers for representing non-citizens accused of crimes:

Lawyers are part of the problem in this system. They go and represent some pretty serious criminals. These are not Australians. These are not people who should have a right to be in Australia.

These are quite striking attacks, particularly on the independence of the judiciary ^[11] - a fundamental principle of the separation of powers. The government is claiming the amendments are required to limit the significance of sentencing in the visa outcomes of offenders. However, the vast weight of expertise, as offered to inquiries into these amendments, does not support ^[12] their necessity.

At no stage in this debate has the government provided evidence that the claimed loophole in the law is actually preventing the deportation of violent non-citizen offenders.

Why reintroduce this bill now?

The government is aware this bill is most unlikely to pass the Senate during this parliamentary term. The timing of the public and parliamentary debate, then, seems aimed at wedging Labor on national security.

Indeed, Morrison has accused ^[14] Opposition Leader Anthony Albanese and Shadow Immigration Minister Kristina Keneally of wanting to keep convicted domestic violence offenders in the country “because the judge gave them a soft sentence”.

Morrison also told John Laws on 2GB that Labor was “soft” on keeping Australia safe:

You know, I don’t flinch on these things. But Labor, they baulk. They baulked on turning boats back. They baulked on the Pacific Solution. They baulked on all of these things. They baulked on defence spending. They baulk on all of these issues. They, they want to appease when it comes to China, the Chinese Government […]

Keneally rejected this characterisation. She said the minister’s powers are already broad enough to cancel the visa of anyone who is a risk to Australian society.

Why is Labor allowing the bill through the House?

When the Senate Legal and Constitutional Affairs Legislation Committee examined the proposed character test amendments, the Labor senators on the committee issued a dissenting report ^[15]. They opposed the passage of the bill in its drafted form. Until this week, Labor refused to support the bill, partly because it feared the further expansion of deportation powers would inflame tensions with New Zealand ^[16] on that issue.

So, has Labor shifted course because it now supports the proposed bill? Labor Senator Murray Watt was asked on ABC’s Afternoon Briefing ^[17] if he could see the bill passing into law:

We have said that we will support the legislation in the House so that it can get to the Senate and we can consider amendments the government is now making or talking about making… The reality is that the only reason this is coming out of the woodwork now is because government is desperate to find wedges; the government did this last week with the religious discrimination bill before it blew up in their face.

Keneally similarly referred to potential amendments ^[18] at the Senate committee stage to explain the opposition’s about-face.

Labor’s approach echoes the strategy it recently took in relation to the Religious Discrimination Bill. Labor joined with Liberal defectors and crossbenchers to pass that bill in the House - with amendments. The government then chose to pull the bill from the Senate ^[19] rather than seek to pass it with those changes.

In both cases, the opposition’s strategy seems clear - moving a bill through the house when it is unlikely to pass the Senate takes the sting out of public debates on religious freedom or national security.

But in legal terms, this approach fails to engage with the substance of the proposed legislation. The question remains as to why the immigration minister needs any greater power than he already holds.