Purporting to amend the character provisions in the Migration Act 1958 (Cth) ('the Migration Act'), the Migration Amendment (Strengthening the Character Test) Bill 2019 ('the Bill') significantly encroaches on the doctrine of separation of powers through substantially widening the Federal Executive's capacity to refuse or cancel the visas of non-citizens who have committed certain offences. In spite of its alleged purpose of protecting Australians from unacceptable risks, the Bill adds nothing to the existing migration programme to enhance society's safety, whilst unduly expanding the Executive's discretion to refuse and cancel visas.

The existing powers conferred upon the Minister and his delegates to refuse or cancel the visa of a non-citizen who has committed an offence are extensive. At present, the character provisions in the Migration Act allow for a visa to be refused or cancelled where a non-citizen commits an offence and receives a sentence of 12 months or more, or commits a sexual criminal offence involving a child. A decision to refuse or cancel a visa may also be based on consideration of a person's past and present criminal or general conduct.

With the implementation of the Bill, visas may ultimately be cancelled or refused at the Minister or delegates' discretion where a non-citizen has committed an offence attracting a sentence of less than 12 months, but poses an 'unacceptable risk to the safety of law-abiding citizens and non-citizens'.1 The Bill introduces a new paragraph 501(6)(aaa) to the character test in the Migration Act, providing that a non-citizen does not pass the character test if they are convicted of a designated offence. The new subsection 501(7AA) sets out the elements of a designated offence . The first physical element of a designated offence requires that the non-citizen has committed an offence against a law of Australia involving one or more of:

  • violence against a person;
  • non-consensual conduct of a sexual nature;
  • breaching a court or tribunal order for the protection of another person;
  • use or possession of a weapon;
  • or aiding, abetting, counselling or procuring the commission of a designated offence.

Furthermore, to constitute a designated offence, the non-citizen's act or omission must be punishable either by imprisonment for life; imprisonment for a fixed term of not less than two years; or imprisonment for a maximum term of not less than two years. Should the relevant conduct have been committed in a foreign country, to constitute a designated offence it must also be an offence against a law of the Australian Capital Territory, and be punishable for the aforementioned periods. In short, non-citizens will objectively not pass the Migration Act's character test if convicted of a designated offence carrying a maximum sentence of not less than two years, at which point the Minister and delegates have discretion to cancel or refuse the requisite visa. The Bill further provides that non-citizens who have committed designated offences will be of character concern per paragraph 5C(1)(aa) of the Act.

The Bill was drafted in response to recommendations made by the Joint Standing Committee on Migration in its report, 'No one teaches you to become an Australian'. This report recommended strengthening the Migration Act's character provisions in order to increase the safety of Australians. However, in defining designated offences as those which carry a maximum sentence of not less than two years, the Bill rejects the importance of sentencing norms in the visa cancellation and refusal processes. In the course of sentencing, the judiciary weighs up a range of complex factors to deliver a sentence in line with such tenets of the criminal justice system as community safety and proportionate punishment; in the course of this process, a significant number of accused persons who commit crimes punishable by two or more years will receive far lower sentences in the interests of justice.

Though the Bill's Explanatory Memorandum asserts that its objective standard for designated offences ensures that 'discretionary visa cancellation and refusal decisions are based on objective standards of criminality and seriousness', cancelling or refusing visas based on maximum – rather than actual – sentences has the potential to punish offenders in a severely disproportionate manner. Indeed, in his Second Reading Speech, David Coleman (Minister for Immigration, Citizenship and Multicultural Affairs) outlined a number of factors to be taken into account in exercising discretion to cancel or refuse a visa based on a designated offence, including protection of the Australian community and the impact on victims, with no mention of seriousness of the offence committed nor mitigating factors for the accused. Given that the current arrangements under the Migration Act allow for visa refusals or cancellations for non-citizens who have committed offences with sentences of 12 months or more, the Bill practically affects those who receive sentences of less than 12 months for offences with maximum sentences of two years or more. This begs the question of whether offences attracting sentences of less than 12 months could possibly constitute such 'unacceptable risks' to the Australian community that they warrant cancellation or refusal of visas, or if the Bill is simply a thinly veiled bid to widen Ministerial discretion and exclude more non-citizens from Australia.

It is pertinent to briefly note the asymmetry between deportation rates in Australia and New Zealand ('NZ'), which has had a detrimental effect on the relationship between the two countries since Australia's changes to the Migration Act's character test in 2014. Though NZ deports a nominal number of Australian citizens, Australia deports a significant number of NZ citizens (among other non-citizens); numbers which will only increase with the introduction of the Bill. Whilst Australia demonstrates a zero-tolerance attitude to non-citizens' divergent behaviour, the numbers in NZ reflect the country's willingness to accept some responsibility for non-citizens who have made a home in NZ and contributed to society. Australia's non-reciprocal approach can be foreseen to only worsen the country's relationship with NZ, whilst demonstrating a juvenile attitude to Australian society's (at least partial) responsibility for the behaviour and actions of non-citizens.

Infringing upon the separation of powers, threatening international relations, and cloaking an undue widening of Ministerial discretion in spurious claims of protecting the safety of Australians, the implementation of the Migration Amendment (Strengthening the Character Test) Bill 2019 can only be discouraged. Indeed, Australia would be well-served by reshaping the character test in the Migration Act to demonstrate greater responsibility for non-citizens who choose to make Australia their home, rather than continuing to strengthen its provisions and give the Federal Executive near-unfettered discretion in the visa cancellation and refusal processes.


1 Explanatory Memorandum to the Bill.

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