Open letter to cross-bench Senators re Strengthening the Character Test Bill

NSWCCL wrote to cross-bench Senators urging them to oppose the Strengthening the Character Test Bill.


1 December 2020

Dear Senator,

I am writing on behalf of the New South Wales Council for Civil Liberties, asking you to vote against the Strengthening the Character Test Bill, when, and if, that returns to Parliament.

Despite what has been said in the Explanatory Memorandum, this bill is not about outlaw motorcycle gangs, murderers, people who commit serious assaults, sexual assault of aggravated burglary. People who are convicted of such crimes do not receive sentences of less than a year, unless their actual offences are minor—and if so, they are known not to be a danger to the community.  People who receive sentences of a year or more are dealt with by the existing legislation.

  1. This bill is a disproportionate response to visa holders who have committed minor crimes.
  2. This bill will subject people who are of no danger to society to the rigours of indefinite detention, or to being deported. Families will be split. There is no evidence that “the community” would want such outcomes.
  3. The bill would allow the Minister the discretion to cancel or refuse to issue a visa to a person who has been convicted of a designated offence but who may have received a very short sentence, or no sentence at all. 
  4. The bill presupposes that careful decisions of the courts, made after proper process, input by experts and the experienced judgement of judges, are inferior to decisions made by the Minister with the aid of his Department.  Sentences, after all, take account both of the seriousness of the crime and of the desirability of deterrence—both of the individual and of   others. That is, they take into account the dangers to the community.
  5. The bill contains no exceptions for children.
  6. The bill ignores the processes of rehabilitation.
  7.  A determination that a person fails the character test, depending on how it is made, means either that their visa must be, or may be, cancelled or refused. There is a right to merits review is available only in some cases. (The courts can only deal with errors of law.) 

The extraordinary, unjust, power already given to the Minister and his delegates needs no extension—rather, it should be cut back.

We have moved from deporting people who clearly are a danger and high risk, such as unrehabilitated murderers, to deporting a person to his likely execution, whose two crimes concerned drug dealing.  It would be extraordinary if the Australian people accepted such an action if they knew about it. 

Here are some examples of how even the existing legislation is misused.  We apologise if these shock you—they are shocking.  We could give you many more. 

The Choe case.

The Guardian reported  that the Department of Immigration was about to deport a North Korean born refugee, despite recognising that he would probably be executed or sent to a forced labour camp  on arrival at his birth country.  He had two convictions for supplying a drug, but the New South Wales District Court had found that he had good prospects for rehabilitation.  The Department is reported as having determined that execution was not an insurmountable hardship sufficient to stop his deportation.  Shockingly, the Administrative Appeal Tribunal upheld the decision, holding that ‘protection of the Australian community and community expectations outweigh other considerations.’  It seems a human life is not worth much in modern Australia. 

And in brief: Jacob Symonds lived in Australia since he was one, but was deported to New Zealand. , Alex Viane, who never set foot in New Zealand, was deported there.  Stefan Nystrom lived in Australia since he was 27 days old, and was deported to Sweden after committing serious offences, many of them as a minor. He could not speak a word of Swedish.  And Robert Jovicic lived in Australia since he was two years old.  After living here for 36 years, and in the latter part of that, being convicted of crimes related to his heroin addiction, he was deported to Serbia, even though he could not speak Serbo-Croat, and had no means of support there.  He became destitute. 

The existing law is widely misused.  We ask you not to give even greater powers to the Minister to do such harm to people whose offences are at the minor end of the scale.

- The Secretary, NSW Council for Civil Liberties