In the next sitting of Parliament, the Coalition intends to bring on a vote on the Migration Amendment (Strengthening the Character Test) Bill 2019. The Bill has passed the House of Representatives and is now before the Senate.

While framed as a simple adjustment to the Migration Act 1958 (the Act), the Bill would in fact significantly expand the character-based powers of visa cancellation and refusal, making them dangerously and unworkably broad. If passed into law, the Bill would increase the number of people in immigration detention and facing removal from the country.

Both Labor and the Greens recommended the Bill be rejected, after a Senate Inquiry was warned of its dangers. The passage of the Bill now depends on the vote of unaligned Senators.

The Bill is bad law and should not be passed. It is deliberately unclear, concentrates power in the hands of the Minister and his delegates, and will harm families and communities.

What does the Bill say?

The Bill expands the ‘character test’ at s 501(6) of the Act, to provide that a person will automatically fail the test where they have been convicted of a ‘designated offence.’

A person who fails the ‘character test’ may be refused a visa, or have their visa cancelled. Expanding the character test thus enlarges the character-based powers of visa refusal and cancellation.

The Bill created a new definition of a ‘designated offence,’ meaning either an Australian or foreign offence involving

 

  • Violence against a person;
  • Non-consensual conduct of a sexual nature;
  • Breaching a Court order for the protection of another person;
  • Using or possessing a weapon;
  • Aiding, abetting, counselling, procuring, inducing the commission of one of the above offences, or otherwise being knowingly (directly or indirectly) involved in its commission

Where the offence attracts a sentence of more than 2 years’ imprisonment (irrespective of the actual sentence that the person received).

The new definition will apply to children, people with refugee status, and people with disabilities.  It applies to people no matter how long they have lived in Australia.

What are the problems?

When it was initially introduced, the Bill attracted widespread opposition. But because it has now been reintroduced during a limited Parliamentary sitting period, at the same time as other controversial legislation, there is a danger that it will not attract the attention it deserves.

The most serious issues with the Bill are as follows:

 

  1. The Bill introduces an arbitrary and unlimited component into the ‘character test,’ which is capable of capturing a vast array of conduct. The Department of Home Affairs cannot list, with clarity, the Australian offences might constitute a ‘designated offence,’ given the differing sentencing regimes across the States and Territories. Remembering that a ‘designated offence’ may be committed abroad, potentially thousands of offences are covered. A person who encourages a friend, as a joke, to launch a projectile (or ‘weapon’) into a neighbour’s yard would commit a ‘designated offence.’ So too would a person who hit another in self-defence. This would be the case irrespective of the penalty they received – simply because the offences they were charged with attracted a possible maximum penalty of 2 or more years’ imprisonment.

 

  • The Bill hands too much power to the Minister and his Department likely leading to unfair and disproportionate decisions. A person who fails the ‘character test’ will have their visa application considered for refusal, or their current visa considered for cancellation. A decision maker – either the Minister personally, or his delegate – then has the ultimate power to decide whether the visa should be refused or cancelled. Under the current government, there has been a more than ten-fold increase in annual ‘character’-based cancellations, from a baseline of 76 in 2013/204 to 1021 in 2019/2020. The Bill allows for an increased, arbitrary and overzealous use of the already over-utilised character powers.

 

  • The Bill increases the number of people in detention and the length of time spent there. A person whose visa is refused or cancelled on ‘character’ grounds must be taken to immigration detention. Depending on whether the Minister or his delegate made the decision, it may or may not be possible to bring an appeal. Depending on the level of support available, a person may miss the complex steps necessary to bring an appeal. If a person does not have a visa application process pending, they must be removed from the country. But as removals from Australia are not possible for the foreseeable future due to COVID-19, the result will be ongoing and indefinite detention. The Department of Home Affairs already acknowledges that the number of people in detention has increased rather than decreased during the COVID-19 pandemic.

What can I do?

The Bill might come before the Senate as early as 5 October 2020. There are simple steps that we can take to block its passage:

 

  1. Contact Senators Lambie, Patrick and Griff to let them know of your opposition to the Bill, given that they remain undecided:

 

 

  • Get your friends in Tasmania and South Australia interested in Bill and contacting or making appointments to meet with their State Senators.

 

 

See what other advocacy organisations are saying:

Kaldor Centre for International Refugee Law, Legislative Brief: Migration Amendment (Strengthening the Character Test) Bill 2019

Refugee Council of Australia, Submission into the Migration Amendment (Strengthening The Character Test) Bill 2019

Law Council of Australia, Migration Amendment (Strengthening the Character Test) Bill 2019

Leave a reply