Ministerial Direction 123: A Tougher, Broader Character Test Framework

On 18 September 2026, Minister for Home Affairs Tony Burke signed Ministerial Direction 123 (MD 123), which commences on 31 October 2026 and replaces Ministerial Direction 110 (MD 110), itself only in force since June 2024. Importantly, MD 123 will govern any decision made on or after 31 October 2026, regardless of when the underlying application was lodged. This means non-citizens with pending matters are immediately affected. The replacement arrives in a changed political and social climate, and the cumulative effect of its amendments is a materially stricter framework for visa refusal and cancellation on character grounds. This article analyses the most significant changes, whether they advance the stated objectives of the Migration Act 1958, and what they mean in practice for affected non-citizens.

The Architecture of Change: From Five to Four Primary Considerations

The most significant structural change is the reduction in primary considerations from five to four. Under MD 110, these included community protection, family violence, ties to Australia, children’s best interests and community expectations. MD 123 removes ties to Australia from that list. It now treats domestic or family violence, community expectations and children’s best interests as primary considerations alongside community protection. The children’s consideration now expressly includes child victims. Ties to Australia now sit under “other considerations”, which gives them less relative weight in the decision.

This is not a cosmetic change. The hierarchy of considerations has legal significance. Primary considerations generally carry more weight than other considerations. Protecting the Australian community generally carries greater weight than other primary considerations.

Whether this serves the Act’s objectives is debatable. The Act regulates, in the national interest, the entry and presence of non-citizens in Australia. The national interest extends beyond protection alone. It also includes social cohesion, family unity and the interests of Australian citizens with family members facing removal. Giving less weight to Australian ties may produce disproportionate outcomes. This is especially relevant where a non-citizen has deep community ties and poses a low reoffending risk.

Domestic and Family Violence: A Substantially Expanded Framework

MD 110 defined “family violence” in relatively conventional terms – violent, threatening or controlling behaviour within a family relationship. MD 123 replaces this with a significantly broader concept of “domestic and family violence.”

The definition is expanded to include:

• image-based abuse;
• stalking and breaching court orders; and
• covers a broader range of relationships, including caregiving relationships and cultural family groups.

The new definition covers threatening, coercive, controlling, dominating or abusive conduct. Abuse may be physical, sexual, emotional, psychological or economic. It also includes:

• exposing a child or relative to that conduct; and
• image-based abuse, including:
  • publishing private or identifying information without consent;
  • creating intimate images without consent; and
  • possessing intimate images without consent.

The expansion of covered relationships is equally significant. The definition of ‘family or domestic relationship’ now includes formal and informal caregiving relationships. These involve providing personal care, support or assistance. It also covers people who share a domestic life. The definition further includes people related through recognised cultural family groups.

These changes reflect contemporary understandings of coercive control and the breadth of relationships in which abuse occurs. They align with reforms across Australian State and Territory legislation and are consistent with the Act’s national interest objectives. In practice, the broader definition may capture conduct that previously fell outside the domestic violence primary consideration. This may include digital stalking of a former carer or image-based abuse of a flatmate. Decision-makers will need to apply the definition carefully to avoid overreach.

The Direction also treats domestic or family violence as inherently serious. Strong countervailing factors may still not outweigh this concern. This can apply even where the person poses no measurable risk of physical harm to the community. Combined with the broader definition, this framework captures a wider range of conduct. It also creates a strong presumption in favour of visa refusal or cancellation.

A New Character Test Ground: Hatred and Extremism

One of MD 123’s most significant changes is a new character test ground under section 501(6)(baa) of the Act. The new ground covers several forms of conduct. These include links to terrorist organisations, state sponsors of terrorism or prohibited hate groups. It also covers hate crimes and hateful public statements.

The statements limb applies where a person makes or endorses public statements, including online. Those statements must spread ideas based on superiority or hatred linked to race, colour, nationality or ethnic origin. There must also be a risk of harm to the Australian community, or part of it. MD 123 gives antisemitic statements as an example of harmful ideas based on hatred linked to ethnic origin.

Antisemitic statements are given as an example of statements that involve harmful ideas based on superiority over or hatred of other persons on the basis of ethnic origin.

This ground responds to a genuine gap in the previous framework, which addressed extremism primarily through the general conduct and association provisions. The new ground provides a cleaner, more transparent basis for refusal or cancellation in cases involving hate speech and extremism. It also adds hate speech and incitement to the community expectations consideration. The Australian community now expects visa refusal or cancellation for certain conduct. This includes hate speech, inciting violence, discord or racial disharmony. It also includes advocacy that may encourage others to engage in similar conduct.

Lowering the Threshold for Future Conduct Risk

MD 123 lowers the future conduct risk threshold: the test moves from a risk the person “would” or “will” engage in the conduct to a risk they “might” engage in it.

Under MD 110, the future conduct provisions required evidence suggesting the person “would” engage in the specified conduct. Under MD 123, a person does not pass the character test if there is a risk that the person might engage in the specified conduct, and the grounds are enlivened if there is evidence suggesting more than a minimal or remote chance of that occurring.

The shift from “would” to “might” is linguistically modest but legally material. It lowers the evidentiary threshold for decision-makers assessing future conduct. Historical conduct, associations or expressed views may now carry greater weight. Decision-makers do not need to find that reoffending is probable. For applicants with one historical offence and strong rehabilitation evidence, this may increase the risk of an adverse finding. This can apply even where the realistic risk of reoffending is low.

Sentence Weighting: Removing the Carve-Out

MD 110 excluded certain serious offence categories, crimes against women or children, family violence, and forced marriage, from the sentence weighting factor. The rationale was that these offences were so serious that the sentence imposed should not diminish their weight.

At first glance, this may benefit non-citizens who received lenient sentences for serious offences. A suspended sentence for domestic violence is one example. However, the practical effect is more nuanced. The sentence remains only one factor among many. The Direction still treats domestic violence and crimes against children as inherently very serious, regardless of sentence. Removing the carve-out may also help decision-makers weigh significant sentences appropriately. This avoids the previous anomaly where such sentences were formally irrelevant.

The Removal of Business Interests as a Consideration

MD 123 removes Australian business interests from the other considerations decision-makers must assess. This means business or employment impacts can no longer weigh in the non-citizen’s favour.

Under MD 110, decision-makers had to consider impacts on Australian business interests. Employment links could carry weight where a decision threatened a major project or important service. Removing this consideration reflects a policy choice to separate economic contribution from character concerns. This may particularly affect skilled workers who previously relied on their economic contribution as a mitigating factor.

Children: A More Granular and Protective Framework

MD 123 strengthens the best interests of children in two ways. First, it expressly includes child victims within this consideration. MD 110 focused mainly on children with a relationship to the non-citizen. Decision-makers must now consider any child victims of the non-citizen. This includes the potential impact of any future offending on those children.

Second, the factors for assessing best interests are now more detailed. They separately consider how past and possible future conduct may affect the child’s development. This includes physical, emotional, psychological and economic impacts. Decision-makers must also consider risks of abuse or neglect. They must assess exposure to domestic or family violence and the risk of future exposure. Serious criminal conduct may also be relevant.

This expansion aligns with Australia’s obligations under the Convention on the Rights of the Child. It also reflects a broader understanding of how parental or carer conduct can harm children. A non-citizen may not have directly harmed their own children. However, domestic violence against a partner may still weigh heavily against them.

Compliance with Migration Rules as a New Principle

MD 123 adds a new principle about compliance with Australia’s migration framework. It states that the community expects non-citizens to follow migration rules and standards. This includes leaving Australia when their right to remain ends or is lost. It also recognises that most non-citizens comply with these requirements.

This principle may affect overstayers and people who remain after visa cancellation. It does not create a new character test ground. However, decision-makers may give greater weight to migration non-compliance under section 501(6) (c).

Does MD 123 Meet the Act’s Objectives?

The changes in MD 123 are coherent with the Act’s core objective of regulating non-citizen presence in the national interest. The expansion of the domestic violence framework, the new hatred and extremism ground, and the strengthened child protection factors all address genuine gaps and reflect contemporary community standards.

The demotion of ties to Australia, however, is the most contested change from a proportionality perspective. Long-term residents, particularly those who arrived as children, have Australian citizen children, or have spent the majority of their lives in Australia, will find that their connections to the community carry less formal weight. The Direction acknowledges that Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.

However, this principle operates within a framework where ties are now an “other consideration,” meaning they can be outweighed by any of the four primary considerations. The risk of disproportionate outcomes in long-term resident cases is real, and is likely to generate Administrative Review Tribunal and judicial review litigation as the new Direction beds in.

The lowering of the future conduct threshold and the removal of business interests as a consideration both tilt the framework further towards refusal and cancellation. Whether this produces outcomes that are in the national interest, broadly conceived, will depend on how decision-makers apply the Direction in practice, and on the quality of evidence before them in individual cases.

What Should Affected Visa Holders Do Now?

MD 123 commences on 31 October 2026, and for non-citizens with any character concerns on their record, the window before commencement is the time to act.

If you hold a visa and have any history of conduct that could fall within the expanded domestic and family violence definition – including digital conduct, stalking, or breaching court orders – you should seek advice on how that conduct is likely to be assessed under the new framework. The definition is substantially broader than it was under MD 110, and conduct that previously sat outside the family violence consideration may now fall squarely within it.

If you have made, shared or endorsed statements online, in Australia or overseas, that could be characterised as hateful or discriminatory on the basis of race, ethnicity or national origin, you should understand that a new character test ground exists from 31 October 2026 that may be enlivened by that conduct, even without a criminal conviction. 

If you are a long-term resident who has previously relied on your ties to Australia as a significant factor in your favour, you should be aware that those ties now carry less structural weight in any character decision. This does not mean ties are irrelevant, but it does mean they are more easily outweighed by the primary considerations, and your position should be reassessed accordingly.

If you are a skilled worker or business visa holder who has previously understood that your economic contribution could weigh in your favour, that consideration has been removed entirely. It can no longer operate as a mitigating factor in a character decision.

Key Takeaways

LegalVision provides ongoing legal support for all businesses through our fixed-fee legal membership. Our experienced immigration lawyers help businesses manage contracts, employment law, disputes, intellectual property, and more, with unlimited access to specialist lawyers for a fixed monthly fee.  To learn more about LegalVision’s legal membership,  visit our membership page.

Frequently Asked Questions

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.