The Senate Legal and Constitutional Affairs Legislation Committee Migration Amendment (Strengthening the Character Test) Bill 2019 [Provisions] September 2019 © Commonwealth of Australia 2019 ISBN 978-1-76010-994-3 This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License. The details of this licence are available on the Creative Commons website: http://creativecommons.org/licenses/by-nc-nd/3.0/au/. Printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra. Members Chair Senator Amanda Stoker LP, QLD Deputy Chair Senator the Hon Kim Carr ALP, VIC Members Senator Claire Chandler LP, TAS Senator Anthony Chisholm ALP, QLD Senator Nick McKim AG, TAS Senator David Van LP, VIC Substituting member Senator Alex Antic to replace Senator David Van for certain meetings from 19.08.2019 to 27.08.2019 LP, SA Secretariat Sophie Dunstone, Committee Secretary Antony Paul, Senior Research Officer Brooke Gay, Administrative Officer Jo-Anne Holmes, Administrative Officer Suite S1.61 Telephone: (02) 6277 3560 Parliament House Fax: (02) 6277 5794 CANBERRA ACT 2600 Email: [email protected] iii Contents Members ............................................................................................................................................. iii Recommendation ............................................................................................................................. vii Chapter 1—Introduction .................................................................................................................... 1 Previous bill and committee inquiry ................................................................................................. 1 Conduct of this inquiry ....................................................................................................................... 2 Acknowledgements ............................................................................................................................. 2 Structure of this report ........................................................................................................................ 2 Purpose of the bill ................................................................................................................................ 2 Background ........................................................................................................................................... 3 Existing character provisions ............................................................................................................. 4 Key provisions of the bill .................................................................................................................... 6 Consideration by other parliamentary committees ........................................................................ 8 Note on references ............................................................................................................................. 10 Chapter 2—Key issues...................................................................................................................... 11 The need for the bill ........................................................................................................................... 11 The definition of 'designated offence' ............................................................................................. 14 Failing the character test due to conviction for a designated offence......................................... 17 Discretion in decisions to refuse or cancel a visa .......................................................................... 20 Human rights implications and the effect of visa cancellations .................................................. 22 Other issues ......................................................................................................................................... 25 Committee view ................................................................................................................................. 31 Labor Senators' dissenting report .................................................................................................. 33 Australian Greens dissenting report ............................................................................................. 41 Appendix 1—Submissions and answers to questions on notice ............................................. 47 Appendix 2—Hearing ...................................................................................................................... 49 v Recommendation Recommendation 1 2.91 The committee recommends that the Senate pass the bill. vii Chapter 1 Introduction 1.1 On 4 July 2019 the Senate referred, contingent upon introduction in the House of Representatives, the provisions of the Migration Amendment (Strengthening the Character Test) Bill 2019 (the bill) to the Legal and Constitutional Affairs Legislation Committee (the committee) for inquiry and report by 13 September 2019.1 1.2 The Senate referred the bill to the committee following a recommendation of the Selection of Bills Committee.2 The report of the Selection of Bills Committee presented multiple reasons for referral, including to allow stakeholders an opportunity to inform the committee of detailed concerns.3 Previous bill and committee inquiry 1.3 The bill is identical to another bill of a similar name: the Migration Amendment (Strengthening the Character Test) Bill 2018 (the 2018 bill).4 1.4 The 2018 bill was introduced into the House of Representatives on 25 October 2018 by the Minister for Immigration, Citizenship and Multicultural Affairs, the Hon David Coleman MP.5 It lapsed at prorogation of the 45th Parliament on 11 April 2019. 1.5 On 15 November 2018 the Senate referred the provisions of the 2018 bill to the committee for inquiry and report by 18 January 2019.6 The committee received 17 submissions and did not conduct any public hearings. The committee presented its report on 17 December 2018 with one recommendation: that the bill be passed.7 Labor senators presented a dissenting report with four recommendations, including that the bill not be passed in its current form. The Australian Greens presented a dissenting report recommending that the Senate not pass the bill. 1 Journals of the Senate, No. 3, 4 July 2019, pp. 78–81. 2 Selection of Bills Committee, Report No. 2 of 2019, 4 July 2019, [p. 4]. 3 Selection of Bills Committee, Report No. 2 of 2019, 4 July 2019, Appendix 10. 4 There are some superficial differences between the bills such as the name of the relevant portfolio. 5 House of Representatives Votes and Proceedings, No. 148, 25 October 2018, p. 1933. 6 Journals of the Senate, No. 129, 15 November 2018, p. 4149. 7 Legal and Constitutional Affairs Legislation Committee, Migration Amendment (Strengthening the Character Test) Bill 2018 [Provisions], December 2018. 1 2 Conduct of this inquiry 1.6 Details of the inquiry were advertised on the committee's webpage. The committee called for submissions to be received by 7 August 2019 and also wrote to a range of organisations inviting them to submit. The committee received 32 submissions, which are listed at Appendix 1. 1.7 The committee held one public hearing on 19 August 2019 in Canberra. The witnesses who appeared at that hearing are listed at Appendix 2. 1.8 In conducting this inquiry, the committee was also able to consider public submissions to its earlier inquiry into the 2018 bill. Where appropriate, the submitters to the earlier inquiry were advised that there was no need to re-submit to this inquiry unless the submitter had updated or amended information to provide to the committee. Acknowledgements 1.9 The committee thanks all submitters and witnesses for the evidence they provided to this inquiry. Structure of this report 1.10 This report consists of two chapters: This chapter outlines the key provisions of the bill and provides administrative details relating to the inquiry. Chapter 2 examines the key issues raised in evidence and provides the committee's view. Purpose of the bill 1.11 The bill was introduced into the House of Representatives on 4 July 2019 by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, the Hon David Coleman MP.8 The minister said that the purpose of the bill is: …to strengthen the current legislative framework in relation to visa refusals and cancellations on character grounds. This bill ensures that noncitizens who have been convicted of serious offences, and who pose a risk to the safety of the Australian community, are appropriately considered for visa refusal or cancellation. The bill presents a very clear message to all noncitizens that the Australian community has no tolerance for foreign nationals who have been convicted of such crimes.9 8 House of Representatives Votes and Proceedings, No. 3, 4 July 2019, p. 65. 9 The Hon David Coleman MP, Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, House of Representatives Hansard, 4 July 2019, p. 314. 3 Background 1.12 Section 501 of the Migration Act 1958 (the Act), which relates to the refusal or cancellation of visas on character grounds, has undergone significant change since 2014.10 1.13 A key development was the passage of the Migration Amendment (Character and General Visa Cancellation) Bill 2014. Data from the Department of Home Affairs shows that visa cancellations on character grounds increased