The requirement of being “of good character” is one with which lawyers are familiar. After all, we have to show that we are fit and proper persons before we can be admitted to practice (as outlined in this post about plagiarist law students). Generally, when I think about someone being “of good character”, I think of a requirement of “honesty”, and the presence or absence of a criminal record.
Dave Bath sent me this interesting paper by Susan Harris Rimmer of The Australia Institute on the broadening of the meaning of “good character” under the provisions of the Migration Act 1958 (Cth), particularly s 501 (concerning the Minister’s discretion to refuse or cancel a visa on the basis that a person is not of good character).
Rimmer’s two main points are as follows:
1. The current criteria for what makes a non-citizen considered to be of ‘bad character’ is too wide, too ‘fuzzy’ and not compliant with international human rights standards. It is therefore too subject to political manipulation.
2. The ability to appeal or correct a character finding is nearly impossible, meaning that natural justice and due process are not granted to affected persons – they have little or no chance to know or refute the evidence raised against their character.
Section 501(6) lists the circumstances in which a person will not pass the character test:
(6) For the purposes of this section, a person does not pass the character test if
(a) the person has a substantial criminal record (as defined by subsection (7)); or
(b) the person has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct;
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia, there is a significant risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that community; or
(v) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.
Obviously, as a generality, there needs to be some control as to who we let in to our country. If we can help it, we don’t want people who are going to commit crimes or who intend to harm us. So if a known drug dealer comes here and the police have intelligence that he is setting up a trafficking ring, I’m all for deporting the dealer quick smart.
But some of the sub-sections in this section are pretty broad, especially in s 501(6)(d). What does “incite discord” in the Australian community mean? What does “disruptive to” Australian society mean? Does this mean that we refuse to let in anyone who might express a view which is contrary to mainstream Australian views? Or anybody who might cause some kind of a disruption or uproar? It is also to be noted that the person doesn’t have to have committed any act - there must just be a serious risk that they might do something under s 501(6)(d). I tend to think this section of the Migration Act confers too great an administrative power to the Minister.
As Rimmer cites in her paper, the government has put out a Fact Sheet for Controversial Visa Applicants. I’ll turn to that next, because the list of people of concern is very interesting indeed:
People of concern are those who may meet the following criteria:
- the holding of extremist views such as belief in the use of violence as a “legitimate” means of political expression
- likelihood of the Australian community or part of the Australian community being vilified or defamed
- having a record of causing law and order problems, eg. when addressing public rallies
- acting in a way likely to be insensitive in a multicultural society, eg. advocating within particular ethnic groups the adoption of political, social or religious values well outside those acceptable to Australian society
- being active in political movements directed towards the non-peaceful overthrow of their own or other governments
- having planned, participated in, or been active in promoting politically-motivated violence or criminal violence and/or being likely to propagate or encourage such action in Australia
- being liable to provoke an incident in Australia because of the conjunction of their activities and proposed timing of their visit, and the activities and timing of a visit by another person who may hold opposing views
- being a war criminal, or a person suspected or accused of war crimes or any association with a person or group involved in war crimes
- being known to be, or suspected of being, involved in organised crime
- posing some threat or harm to the Australian community or part of it
- likelihood of the person’s presence in Australia being contrary to Australia’s foreign policy interests
- claiming to represent a foreign State or government which is not recognised by Australia, or
- any other credible material which may be relevant to Public Interest Criteria 4001 or 4003 of the Regulations.
Again, that is an awfully broad list of characteristics. Some of the characteristics seem fair enough, but others are far too broad (such as “being liable to provoke an incident in Australia because of the conjunction of their activities and proposed timing of their visit, and the activities and timing of a visit by another person who may hold opposing views.”) One can think of some risible examples of “controversial visits” under this broad list.
Rimmer concludes:
I think that the subjective nature of the criteria for determining character have made it all too easy for politicians and security agencies to err on the side of caution or ‘profiling’ and get it wrong. The lack of accountability in Ministerial discretionary decision-making and inability to question intelligence information mean that a person whose character is impugned will probably never even know why. The consequences for getting such a decision wrong are so serious for the individual concerned that there must be a better method for making and reviewing such decisions.
While I certainly don’t want Osama Bin Laden being allowed in to start up an Australian wing of Al Qa’eda, I think she is right that security risks must also be weighed up with individual rights, and it concerns me that there is far too much scope for individual Ministerial prejudice in the present way in which s 501 is drafted. One only has to look at the Haneef case to see how bad decisions can be made out of fear (earlier post on Haneef here).
But another question Rimmer has not really looked at is the effect of this provision on freedom of speech. Sometimes people are going to express an opinion which is repugnant to the majority of Australians - but should we stop them from coming into the country as a result? I’ve always found it very hard to balance the right to remain free from vilification against the right to freedom of speech. To pick a difficult example, I can’t stand historian David Irving, and find his views on the Holocaust very offensive. But I think I’d still let him come here. …That being said, I’d exercise my corresponding right to disagree totally with what he had to say - that’s what freedom of speech is all about.
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I do wonder how much of this was drafted specifically to target David Irving and that bloke from Jemaah Islamiah.
It seems we’ve moved away from the concept of the political custard pie stoush, relying instead on banning and inhibiting speech, which probably isn’t that healthy, come to think of it.
The paper also discusses “fit and proper” issues for other areas (e.g. public office, company directorships).
One if the points about recent changes was:
I can understand how a proven act that is criminal, or in some circumstances professionally incompetent/unethical might lead to a change in rights and privileges, but the procedural changes reflect a new philosophy of law by the executive.
BTW: Under Oz law, an Australian version of Nelson Mandela would never be able to hold office under the constitution, nor would someone sent to jail for a year for contempt of court after refusing to break professional confidentiality (Doctors, Priests, Journos, Lawyers, …).
Legal professional privilege is still pretty much sacrosanct, although all the others are (more or less) vulnerable to a contempt ruling.
It was the very broad criterion under Sect 501(6)(b) of “having an association with” someone else who might be dodgy which was used against Dr Haneef, although the former Minister was found to have tried to use an interpretation which was even broader than what the provision intended, which is showing how desparately he was stretching it. However, if the former Minister had chosen to use a different provision to base his ‘character’ assessment on, he might well have got away with it.
Character grounds have been fairly broad for some time. They were used in the past to keep David Irving out of Australia (prior to the current Sect 501 being put in place). It was also used to stop Gerry Adams coming here at one stage. Similar provisions have been used in decades past to keep communist and radical unionists out. US based peace activist Scott Parkin was detained and then tossed out for reasons which he is not able to find out. It was recently used to stop a speaker at a Muslim confrence from being able to come here - and if The Australian newspaper had had their way, it would have been used to stop Tariq Ramadan from speaking at a recent conference in Brisbane (he has been banned from entering the USA).
Occasionally there are threats made that the power might be used for ‘controversial’ performers like Marilyn Manson or Eminem (cos they might be ‘liable to provoke an incident’), but while it could be used in that way, thankfully I don’t think it has been. From memory there was one singer or rap artist who wasn’t allowed in here recently for an awards ceremony, but that was due to their drug conviction.
The bigger changes made under the Howard government (with the support of Labor in the Senate it should be noted) broadened even further the Ministers’ discretion and seriously reduced the grounds for appeal.
The broadening of Ministerial power and curtailing of appeal rights in Sect 501 came about as a result of Philip Ruddock getting the shits with one of his cancellations being successfully overturned on appeal.
As with any power where there is large Ministerial discretion and minimal grounds for appeal, there is a greater potential for politicised usage of the power and unjust outcomes.
The growing use of Section 501 (which was purportedly only meant to be for rare or urgent cases) to cancel a visa rather than Section 201 meant fewer scope for appeal and no scope for natural justice.
This is particularly relevant for those already in Australia who have a visa cancelled, as they are automatically subject to detention and thus if they wish to appeal they have to stay in jail while their appeal progresses (and get billed for the ‘privilege’), or else be subjected to removal.
As Harris-Rimmer’s paper pointed out, this leaves people living here as permanent residents at greater risk. If a person is not a citizen, even if they have lived here for all but the first week of their life, they are at risk of having their visa cancelled and being deported/removed to their country of citizenship (or in the rare event they happen to be stateless, left in indefinite detention).
There have been a couple of well-known cases of this (Jovicic and Nystrom), but there have been many more unknown ones, where people are exiled from Australia for life (and from family and friends) and forced to country where they have no ties and do not even speak the language.
I know this goes outside the valid free speech you want to make, but I think it so unjust that it should be highlighted at every opportunity. Whilst the use of character powers to stop people entering the country can be problematic and undoubtedly a barrier to free speech, the use of it to detain and in some cases exile people is an extreme and extra-judicial punishment which should not be allowed without transparent measurable criteria, fairness and due process.
OT: Andrew, what’s happened to your blog? It’s been in hibernation for a week (or are you shifting across to The National Forum along with LP?)
How annoying, computer just crashed and ate my detailed comment.
Andrew, you have some very important points to make - I was just focussing on the narrower issue of freedom of speech, but your comments highlight the many problematic aspects of this provision.
In essence, immigration detention is detaining someone of their liberty, and so the same kinds of checks and balances which are present in criminal law proceedings should be present in these status-based cases. There should be due process, right to legal counsel, right to reasons for decision and the like. As Rimmer (or is it Harris-hyphen-Rimmer - wasn’t quite sure?) points out, the outcome of a revocation of visa can have extreme consequences for an individual.
Considering the conduct of politician such as John Howard to unconstitutionally invade another sovereign country such as Iraq then consider the following;
QUOTE
being active in political movements directed towards the non-peaceful overthrow of their own or other governments
END QUOTE
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As only the Governor-General can authorise a war against another sovereign nation, unless we are under actual attack by another nation, then one has to ask how often since federation did Australian troops act by authorisation of a DECLARATION OF WAR.
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If John Howard and others therefore are falling in this category, and so all soldiers acting under their orders, then we would have a lot of people to be deported, and they are even “aliens”.
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Get the message, what is good for the goose should be good for the gander.
SL: My blog got hit by spam/hacking thing, so am getting it scraped clean. Am taking the opportunity to get it restructured for my post-June existence. Its taking a bit longer than I’d like, but it will reappear sometime soon.
LE: It’s Harris-Rimmer.