NSWCCL made a submission to the Senate Standing Committee on Legal and Constitutional Affairs Inquiry into the Migration Amendment (Strengthening the Character Test) Bill 2021 [Provisions].

This is the third time that such a bill has been presented to Parliament. We made an extensive submission to the 2019 version of this bill, and those criticisms stand.

Australia has moved from deporting people who clearly are a danger and high risk, such as unrehabilitated murderers, to deporting people because a minister cannot be sure that they are not a danger to the community.

In fact, it we now accept deporting people to their likely death:

'counsel for the Minister suggested that much had changed since Ali and that the Minister was now more than prepared to proceed on the basis that Australia would breach its non-refoulement obligations and return the appellant to Iraq, even though it had been accepted that he was likely to be harmed or killed there'¹

Criticisms made by the Australian Human Rights Commission, the Australian Law Council, The Federation of Ethnic Communities Councils of Australia, the Parliamentary Joint Committee on Human Rights, the Scrutiny of Bills Committee and the Visa Cancellations Working Group also still apply.

We are disappointed that the Bill has been reintroduced without those criticisms being answered. 

In this submission we restate our original concerns:

• This bill is not about protecting the Australian people from serious dangers. It is a disproportionate response to visa holders who have committed minor crimes.
• This bill will subject people who are of no danger to society to the rigours of indefinite detention, or to being deported. There will be serious consequences for their families. There is no evidence that “the community” would want such outcomes.
• 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.
• 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.
• The bill contains no exceptions for children.
• The bill ignores the processes of rehabilitation.
• 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 also articulate additional concerns.

More information: Read the full submission

1 MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at