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Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998
Bills Digest No. 48 1998-99
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
An earlier version of this Bill was introduced into the 38 th Parliament of Australia on 30 October 1997. That Bill was passed by the House of Representatives and was the subject of a Senate Inquiry which reported in March 1998: Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1997 , Senate Legal and Constitutional Legislation Committee (‘the Senate Report’).(1) The Bill had not been passed by the Senate before Parliament was prorogued. Bills Digest No. 106 was prepared for the initial Bill by Dr Max Spry. Although this Digest substantially reproduces that material, it notes two amendments which have been made to the current version of the Bill, and provides some additional comment.
The Migration Reform Act 1992 established a system of visas as the sole authority by which non-citizens enter and stay in Australia, and also established elaborate statutory provisions which govern how decisions on visa applications and cancellations are to be made. It also expanded the right of many individuals to independent review of decisions.
The number of cases where decisions to refuse visas on character grounds have been overturned is not large, but recent high profile cases have captured a good deal of media attention (as have high profile cases where the Administrative Appeals Tribunal (AAT) has allowed non-citizens to remain after committing serious criminal offences in Australia).
For example, on 7 November 1996 the Minister for Immigration and Multicultural Affairs refused to grant a visa to Gerry Adams, the leader of Sinn Fein (who has now been lauded for his role in the Northern Ireland peace process) on the basis that the Minister was satisfied that Adams was not of good character.(2) On 30 July 1996, in Irving v Minister for Immigration, Local Government and Ethnic Affairs , the Full Federal Court upheld the Minister's decision refusing a visa to David Irving, 'an English historian who challenged accepted facts on the genocide of the Jewish race under the Third Reich.'(3)
More recently, in mid 1997, Lorenzo Ervin, who had been convicted of air piracy and kidnapping in the United States in 1969, received considerable publicity when the then Acting Minister for Immigration and Multicultural Affairs (Senator Vanstone) cancelled his visa. Ervin sought judicial review of the decision in the High Court. However, on 10 July 1997, counsel for the Minister proposed that the Minister's decision cancelling Ervin's visa be set aside.(4)
Some concern has been expressed that the failure to grant visas to persons such as Irving, Ervin and Adams may restrict the free expression of political ideas in Australia.(5) Furthermore, Joseph O'Reilly, executive director of the Victorian Council for Ci vil Liberties, was recently quoted as stating:
A consistent reading of the (existing) policy would exclude both Aung San Su Kyi and Nelson Mandela. ... But it is to avoid controversy at home rather than let terrorists in, that we exclude these people.(6)
T his is a point which is picked up in the Senate Report by both the ALP, in the Minority Report,(7) and the Australian Democrats in the Dissenting Report.(8) The ALP Senators also comment that ‘[n]o account is taken of stale convictions where the person has successfully rehabilitated…[and] [p]olitical convictions associated with a person’s political activism against an oppressive regime have not been adequately provided for.’(9) The Democrats go on to argue that no uniform system and standard of justice is operating at a global level, and that ‘many people [are] jailed simply for voicing an opinion or holding an unpopular religious or political view’.(10)
Cases in which an applicant is excluded from Australia do not always involve political figures. In Re 'Wag' v Minister for Immigration and Multicultural Affairs , decided by the Administrative Appeals Tribunal (AAT) in July 1996, the AAT affirmed the Minister's decision to reject the applicant's visa application on the grounds of bad character.(11) While the applicant did not have a criminal record, the AAT was satisfied that he had sexually abused one of his daughters, now in Australia, and that he had been physically violent to other members of his family.
More recently, in Grandlouis v Minister for Immigration and Multicultural Affairs ,(12) the AAT set aside the Minister's decision refusing David Grandlouis' application for a spouse visa. Grandlouis had been convicted of manslaughter in 1986. He was released from prison in 1991 and married an Australian citizen in 1993. He has a daughter who is an Australian citizen. It was argued on Grandlouis' behalf that while he was not of good character when he committed crimes, he is currently of good character. Grandlouis has not offended since 1990. The Tribunal concluded that while it might be a rare case in which the applicant has shown that he or she has reformed:
the time that has lapsed since Mr Grandlouis' offences, the lack of evidence suggesting a likelihood of his re-offending, and the overwhelming evidence of thorough rehabilitation, make this such a case. Thus the Tribunal is satisfied that Mr Grandlouis is a person of good character within the meaning of s 501 of the Act.(13)
A final concern of the Australian Democrats is that the Bill does not dist inguish between criminal behaviour and psychiatric illness. They quote the Ethnic Disability Advocacy Centre’s observation that:
Under this proposal, a person may spend as little as three months in an institution or facility to be deemed to have a substantial criminal record and to be of bad character.(14)
The provision regarding people who have been acquitted of an offence on the grounds of unsoundness of mind or insanity contains no time-limited application but applies to anyone who is then detained in a ‘facility or institution’. This provision has a potentially broad application.
Clause 12 repeals section 339 of the Act and substitutes proposed section 339 .(15) (See also Clause 13 .) Proposed section 339 provides that the Minister may issue a conclusive certificate in relation to a decision if the Minister believes, for example, that it would not be in the national interest to change the decision.
Clause 16 repeals existing subsection 499(1), which enabled the Minister to give general directions in writing to any person exercising functions or powers under the Act, and substitutes a new subsection. The proposed subsection provides that the Minister may give written directions to any person exercising functions or powers under the Act. The proposed subsection would appear to broaden the Minister's power to issue directions but these decisions are required to be consistent with the Act and Regulations.
Clause 21 adds further subsections to section 500 of the Act. Existing section 500, amongst other things, provides that decisions of the Minister under section 501 may be appealed to the Administrative Appeals Tribunal (AAT). The amendments to section 500 appear to be driven by the proposed subsection 500(6L) that imposes an 84 day time limit on AAT review of decisions made under proposed section 501 of the Act (the time limit in the first version of the Bill was 42 days). Proposed subsection 500(6A) provides that section 28 of the Administrative Appeals Tribunal Act 1975 does not apply to a decision under section 501 if the decision relates to a person in the migration zone.(16) Section 28 provides that persons affected by a decision may obtain from the decision-maker reasons for the decision. Proposed section 501G provides comparable procedures that are intended to work in the context of the new 84 day time limit.
Proposed subsection 500(6B) provides that appeals to the AAT from decisions made under section 501 of the Act must be made within 9 days of notification of the decision (an extension of 2 days from the 7 days in the original version of this Bill).
Proposed subsection 500(6F) provides that where an application has been made to the AAT to review a decision made under section 501, the Minister must lodge with the AAT within 14 days of notification of the application, two copies of the documents relevant to the decision. Importantly, the Minister must also lodge documents containing non-disclosable information. While the AAT may have regard to that non-disclosable information, it cannot disclose it to the applicant.
Proposed subsection 500(6L) provides that the AAT must complete its review of decisions made under section 501 within 84 days of the day on which the applicant was advised of the decision. If the AAT has not completed its review in that time the subsection deems the AAT to have affirmed the original decision. The 1996-97 AAT Annual Report states that the average time from receipt of an application for review of a decision to the hearing date is 45 weeks.(17)
The requirements of proposed subsection 500(6L) may be said to work in the applicant's favour in the sense that the application for review will be resolved quickly. This is particularly so given that an applicant will probably be in detention pending the outcome of his or her application. On the other hand it is uncertain how the AAT will need to react to meet the requirements of the proposed subsection. Will, for example, the AAT need additional resources?
Clause 23 , the key clause in the Bill, repeals section 501 of the Act and inserts proposed section 501 . In short, the proposed section allows the Minister or their delegate to refuse or cancel a visa where the visa applicant does not pass the character test. Under proposed subsections 501(1) and (2) , the applicant must satisfy the Minister that he or she passes the character test. In other words the onus of proof is reversed: it is not for the Minister to show that the applicant does not pass the character test. Natural justice applies to decisions made under these subsections. However, natural justice does not apply to decisions made by the Minister personally under proposed subsection 501(3) to refuse or cancel a visa.
The character test is defined in proposed subsection 501(6) . For example, a person fails the character test if he or she has a substantial criminal record, defined in proposed subsection 501(7) as, for example, a sentence of imprisonment of 12 months or more. Proposed subsection 501(10) provides that the sentence may be disregarded in relation to the character test if the person has been pardoned or if the conviction has been nullified. Persons who have been imprisoned for political or religious reasons for the relevant time period would appear to fail the character test - unless they fall within the general exception provided in proposed subsection 501(10) - i.e. their conviction has been quashed, rendered null or they have been pardoned. It would seem, therefore, that the President of South Africa, Nelson Mandela, for example, would not pass the character test established by proposed subsection 501(6) .
Proposed subsection 501(7) also covers someone who has been acquitted of an offence on the grounds of unsoundness of mind or insanity (with a resultant detention in a facility or institution). This would mean that someone liable to conviction for, e.g. offensive behaviour, who is acquitted on the grounds that they were of unsound mind and is hospitalised for a period would fail the character test.
Proposed subsection 501A provides that the Minister personally may set aside a favourable decision made by the Minister's delegate or by the AAT (called the 'original decision') not to exercise the powers granted by proposed subsections 501(1) and (2) . In other words if the visa applicant failed the character test but, nevertheless, the delegate or the AAT granted the visa or did not cancel the visa, the Minister personally may set aside that decision if he or she is satisfied that it is in the national interest to do so.
Proposed subsection 501B allows the Minister, acting personally, to set aside an unfavourable 'original decision' of a delegate even while that 'original decision' is subject to review by the AAT. The Minister’s decision would not be reviewable by the AAT. There are criteria established for the exercise of the Minister’s powers, including that the Minister ‘reasonably suspects’ that the person does not pass the character test, the applicant has failed to convince the Minister or the Minister is satisfied that it is in the national interest to do so. However the Minister’s decision is not open to review.
Proposed section 501C enables the Minister to revoke a decision made by him or her under proposed subsections 501(3) or 501A(3). Proposed subsection 501C(8) provides that where the Minister revokes the earlier decision he or she must notify each House of Parliament within 15 days of the revocation.
Proposed section 501E provides that when a visa is refused or cancelled under proposed sections 501, 501A or 501B , the applicant cannot apply for another visa unless the applicant seeks, for example, a protection visa (a person seeking refugee status under the United Nation Convention in Relation to the Status of Refugees, to which Australia is a party, would seek a protection visa). Similarly if a visa has been refused or cancelled on character grounds, any other visa that the person may have applied for, or have, is also refused or cancelled.
Clause 26 inserts proposed section 503A which provides for the protection and non-disclosure of certain information provided to a migration officer by a law enforcement or intelligence agency on the condition that it be treated as confidential information. The Minister, after consulting the relevant agency, may authorise disclosure of the information to a relevant court or tribunal. Proposed subsection 503A(5) , however, provides that if the information is disclosed to a tribunal, the tribunal cannot divulge the information. In other words, the tribunal cannot divulge the information to the visa applicant.
1. Senate Legal and Constitutional Legislation C ommittee, Consideration of Legislation Referred to the Committee: Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1997, March 1998.
2. See Adams v Minister for Immigration and Multicultural Affairs , Federal Court, Drummond J, 2 July 1997. It is interesting to note that in 1996 Mr Adams MP had already been President Clinton's guest at an official function in the White House. It is also noteworthy that in 1994 the then Minister for Foreign Affairs, Mr Evans, mooted the imposition of conditions if a visa was to be issued for Mr Adams.
3. Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 139 ALR 84.
4. Re: The Minister for Immigration and Multicultural Affairs Ex parte Ervin B29/1997 (10 July 1997)
5. See for example: D Langsam, Ervin? Irving? Adams? Arafat? Kalejis? Not all good characters' The Republican 29 August-4 September 1997: 3.
7. Draft Minority Report, Senators McKiernan and Bolkus, p. 40, see also Senat or Cooney’s comments on the Bill which called for its rejection, p. 47.
8. Senator Andrew Bartlett, ‘Dissenting Report by the Australian Democrats’ p. 43.
9. Draft Minority Report, p. 40.
10. Dissenting Report by the Australian Democrats’ p. 44.
11. Re 'Wag' v Minister for Immigration and Multicultural Affairs (1996) 44 ALD 663.
12. Melanie Anne Grandlouis V. Minister For Immigration And Multicultural Affairs No. N96/1188 AAT No. 12116.
13. ibid, para 54.
14. Dissenting Report by the Australian Democrats’ p. 44.
15. The commencement of this item is dependent on item 10 of Schedule 1 to the Migration Legislation Amendment Act (No 1) 1988 .
16. The 'migration zone' is defined in section 5 of the Act as follows:
'"migration zone" means the area consisting of the States, the Territories,
Australian resource installations and Australian sea installations and, to
avoid doubt, includes:
(a) land that is part of a State or Territory at mean low water; and
(b) sea within the limits of both a State or a Territory and a port;
(c) piers, or similar structures, any part of which is connected to such
land or to ground under such sea;
but does not include sea within the limits of a State or Territory but not in
17. Administrative Appeals Tribunal Annual Report 1996-97, 1997, p. 108.
Kir sty Magarey and Dr Max Spry
1 December 1998
Bills Digest Service
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