The Morrison government has argued it needs to pass its strengthening character test bill to prevent “overseas criminals” staying in Australia.
Labor has said the government already has that power, saying if it can deport a tennis player (Novak Djokovic) it can deport someone with a criminal conviction.
So what is the bill – and what is the truth of the power the immigration minister already has, or might gain?
What is the bill?
The bill amends migration law to create a new category of “designated offences” involving violence against a person, weapons, breaching of an apprehended violence order and nonconsensual sexual acts, punishable by a maximum of at least two years in prison.
If a non-citizen is convicted of one of these designated offences they are automatically deemed to fail the existing “character test” and their visa can be considered for cancellation.
Can’t visas already be cancelled?
Yes. Section 501(2) of the Migration Act states that the minister “may cancel a visa … if the minister reasonably suspects that the person does not pass the character test”.
So, there is no minimum standard of criminal conduct for visa cancellation or refusal. The Australian government can already cancel visas even without criminal conduct.
In December, the human rights committee, chaired by Nationals MP Anne Webster, concluded:
The minister may already cancel or refuse a person’s visa where a person has committed an offence that would fall within the new definition of ‘designated offence’, including having regard to the broad notion of the person’s past or present criminal or general conduct.
Why does the government want it then?
The explanatory memorandum says the bill creates a “new specific and objective ground” for failing the character test.
This “aligns directly with community expectations that non-citizens who are convicted of offences such as murder, sexual assault or aggravated burglary will not be permitted to enter or remain in the Australian community”, according to the memorandum.
However, it also notes that failing the character test due to a designated offence “would enliven the discretion whether to … cancel a visa but would not dictate the outcome of the exercise of the discretion”.
On Wednesday the immigration minister, Alex Hawke, said the bill gives “more discretionary power” to cancel visas, including allowing crimes committed offshore or in the past to be triggers to refuse or cancel visas.
What are the concerns?
The biggest concern is that by increasing the number of people who fail the character test the bill makes it much more likely they will be deported, with one estimate suggesting visa cancellations could increase fivefold.
Permanent residents, even those who have lived in Australia for many years with no substantial links to their country of citizenship, are already deported, and this would probably increase.
Visa cancellations disproportionately affect citizens of New Zealand, and have been a substantial sticking point in Australia’s relations with the country.
On 10 February, Labor’s shadow home affairs minister, Kristina Keneally, wrote to her counterpart Hawke setting out three concerns:
The changes should not be retrospective;
The risk that low-level offending could result in visa cancellation should be reduced by using the existing definition of a “substantial” criminal record;
The impact on New Zealanders should be softened by a new ministerial declaration.
Why are we debating this now?
The government has had many goes at getting this through. The first bill, introduced in 2018, lapsed at the 2019 election.
The second, introduced in July 2019, was defeated in the Senate in October 2021.
The government reintroduced the bill in November.
On Wednesday, Hawke said the bill would be put for a vote as a “test for Labor”.
This follows Scott Morrison telling Coalition MPs and senators they should look to ramp up examples of “sharp contrast” with Labor in the lead-up to the 2022 election.
Are the parties still negotiating?
The government has made one change. The third version of the bill states that a violent offence will only be “designated” if it “substantially contributes to bodily harm to another person” or their mental health, or involves family violence. This was added to exclude extremely low-grade common assaults.
Keneally has claimed further negotiations are still possible – but on Wednesday Hawke ruled out further amendments.
What is Labor’s position?
Labor, despite opposing the bill in October, has resolved not to oppose the bill in the House of Representatives.
On Wednesday Hawke suggested it would go to the Senate before the election, but later in question time complained Labor had shifted its support “when [they] know we have run out of time to pass the bill”.
The Greens have warned Labor will fold there and wave it through – but no final decision has been taken. The assistant shadow immigration minister, Andrew Giles, has confirmed in the Senate Labor will attempt amendments on retrospectivity and New Zealand.
What has this got to do with Djokovic?
Labor used Novak Djokovic’s deportation as an example of the godlike powers in the Migration Act, after the world number one tennis player was deported in January due to Hawke’s concerns his presence in Australia would embolden the anti-vaccination movement.
The government countered that section 116, which was used to deport Djokovic, cannot be used against permanent residents in Australia.
Labor suggested this could be fixed by an amendment – but it is largely a red herring as there are powers to cancel visas for failure of the character test elsewhere in the act.
