LE: It’s Harris-Rimmer.

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.

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.

One if the points about recent changes was:

Instead of issues of character applying only to Australians who want to step into more senior public roles, such tests now apply to people who just want to stay in their current roles

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, …).

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.