Migration Amendment (Strengthening the Character Test) Bill 2021
The submission to the Senate Legal and Constitutional Affairs Legislation Committee in relation to the Migration Amendment (Strengthening the Character Test) Bill 2021 (2021 Bill) was prepared by the Law Council of Australia.
The 2021 Bill would expand the circumstances in which a person would not satisfy the character test in subsection 501(6) of the Migration Act 1958 (Cth) (Migration Act) and thus be subject to a decision of the Minister (or delegate) to refuse or cancel their visa.
Subject to one change, the 2021 Bill is the same in substance as the Migration Amendment (Strengthening the Character Test) Bill 2019 (2019 Bill), which was subject to an inquiry by the Committee. The Law Council made a submission to that inquiry (the Law Council’s 2019 submission; attached to this submission) and appeared before the Committee.
In that submission, the Law Council submitted that the 2019 Bill should not pass:
While… the Executive should possess the power where necessary to prevent or remove a dangerous individual from obtaining or retaining the right to enter and remain in Australia … [the Bill] … is neither necessary nor proportionate, and the existing provisions of the Migration Act are sufficient to respond appropriately to individuals who commit serious offences and provide clear risks to the community.
In October 2021, the Senate voted on and did not pass the 2019 Bill.3 The Senate voted on a Bill which included Government amendments which have been retained in the 2021 Bill. While these changes narrow the scope of the Bill slightly, they do not affect the Law Council’s view, which is that the 2021 Bill should not pass.
In this further brief submission, the Law Council has:
- set out an overview of the character test power in section 501 of the Migration Act;
- set out an overview of the changes made to the character test power by the 2021 Bill, which details its misgivings; and
- addressed the changes introduced to the character test power as compared to the 2019 Bill, which the Law Council considers exemplify rather than resolve the issues with the proposed scheme.
You can read the full submission below.