Many foreigners apply for visas to visit Australia or to live here. A small proportion are refused because they are deemed to be of bad character and a danger to the Australian community. A few have their visas cancelled after they have been issued. This happens either because the visa-holder has subsequently behaved badly or because officials have learnt something to his or her discredit which they did not know when the original application was made.

If non-citizens are denied visas on character grounds, or have their visas cancelled, what rights should they have to appeal against the decision? Arthi Patel writes that:

Migration decisions affect people in the most fundamental way, determining where they will live. As a group, people affected by migration decisions represent some of the least powerful members of our society, often with limited English, and understanding of the legal system. ... The history of migration law in Australia is dominated by the exercise of unfettered state control, amongst which the notion of ‘rights’ for these people is heavily circumscribed.¹

But most of the ‘people affected by migration decisions’ are not ‘members of our society’ at all. With the exception of Australians wanting to sponsor relatives and, perhaps, some migrants on permanent visas facing deportation, ‘people affected by migration decisions’ may wish to become members of our society but, at the time when they make their applications, they are not members. Because of this they have an uncertain claim to the rights which membership of a national community confers.

On 30 October 1997 the Minister for Immigration and Multicultural Affairs, Philip Ruddock, introduced the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Bill 1997 to the House of Representative. In November the Senate referred it to the Senate Legal and Constitutional Legislation Committee for consideration and this Committee completed a report on the Bill in March 1998. The aim of the Character Bill is to amend the Migration Act 1958 in such a way as to strengthen the Government’s power to refuse visas to non-citizens, or to cancel those visas which have already been issued, on the grounds of the non-citizens’ character or conduct.²

It is not just the non-citizens who apply for visas and their sponsors who are affected by migration decisions. If the number of visas granted is too large, or if visas are granted to criminals, the interests of Australians may well be threatened. Also, if the popular media are scandalised by decisions which allow visas to criminals, the immigration program itself may be discredited. This latter possibility is one of the factors motivating the new legislation. In a series of cases (some widely publicised) the Department of Immigration and Multicultural Affairs (DIMA) has been unable to control access to membership of the Australian community under the law as it presently stands.

The numbers of non-citizens who might be refused, or deprived of, Australian visas if the Bill should be passed is small and the Bill itself has attracted little public attention. It is true that the existing character sections of the Act have led to some incidents which have received a good deal of public notice. For example, the decisions to refuse temporary visas to the controversial English historian, David Irving, in 1994 and 1996, and to Gerry Adams (MP for Northern Ireland and associate of the IRA) in 1996, were made under their provisions. The acting Minister also used the existing character sections to cancel Lorenzo Ervin’s temporary visa in July 1997, succeeding on a second attempt after Ervin appealed to the High Court. (Ervin had been convicted of air piracy and kidnapping in the United States in 1969.)³ A number of cases have caught the public imagination but, beyond a small circle of politicians, lawyers and immigration activists, the new Bill has not. However, an analysis of the problems it is designed to solve, and of the arguments about its provisions among the few who are acquainted with them, illustrates the painful contrast between the interests of people who are not members of the society, but who wish to visit or to join, and those who are members.

Democracies are not just societies where people vote. Those that work well are also committed to the rule of law and to the protection of individual rights, including the rights of non-citizens. A foreigner who happens to be in Australia should not have to suffer theft, violence or arbitrary treatment from officials any more than a citizen. Of course non-citizens, even those who are permanent residents, do not enjoy all of the rights of citizens. Most, for example, cannot vote, stand for public office or work in the public service. But the question of granting, refusing or cancelling visas demonstrates tensions between the rights of members and the rights of non-members most clearly.

From 1901 to 1989, migration legislation in Australia emphasised Ministerial discretion. This discretion gave the executive considerable power to expand or trim the intake and to grant or withhold visas free of scrutiny from the courts (and indeed from parliament). As long as most applications were made off-shore, and as long as few applicants had Australian sponsors, this system served the executive well. But from the late 1970s this situation changed. Larger flows of people on temporary visas (tourists, students, asylum seekers and so on) led to more on-shore applications for permanent visas, and more Australian residents sought to sponsor relatives and fiancé(e)s from overseas. This tendency also led to increasing numbers of disappointed applicants in Australia, and their supporters, asking the Minister to exercise his discretion in their favour. By the mid 1980s some 10,000 representations were being made to the Minister each year.⁴

At the same time as on-shore applications were increasing, Australia was developing its system of administrative law. New institutions, such as the office of the Ombudsman and the Administrative Appeals Tribunal, were created, and new laws were passed providing for freedom of information and the judicial review of administrative decisions. The principle behind these laws and institutions was that citizens disadvantaged by administrative decisions should have access to natural justice and that bureaucracies should be accountable to the people that they served.

On-shore visa applicants who were unsuccessful made their informal representations to the Minister but, if these representations failed, they could turn to the law. The fact that they (or their sponsors) were on Australian soil gave them access to the Australian legal system and the new administrative law meant that this access was of some use to them. This was so even if their temporary visas had expired and their presence was no longer legal. The Parliament which enacted the Administrative Decisions (Judicial Review) Act in 1977 did not foresee that the majority of people who would resort to it in the Federal Court would be non-citizens refused immigration permits. But immigration appeals in the Federal Court under this Act rose from 16 in 1981-82 to 135 in 1990-91. By 1992-93 the figures had reached 207, or 63 per cent of all appeals under this Act.⁵

Ministerial discretion was easy to challenge in the courts and it speedily became a liability to the executive. Lawyers and judges proved responsive to the human needs of individual applicants. It was not their role to consider the policy implications of precedents created by the courts,⁶ yet in some instances they came to consider themselves to be more reliable spokespersons for the enduring values of democracy than the country’s elected politicians.⁷ By 1989, the executive had regrouped and the first of number of a bills amending the Migration Act 1958 was passed. These were designed to return control of immigration policy and the selection of individual immigrants to the executive (even if this would mean closer supervision by parliament).⁸ The main instrument employed was codification. The regulations under the Act spelled out the rules of immigration decision-making in minute detail and Ministerial discretion was all but eliminated.

But while codification closed some legal avenues, others could always be found. The Character Bill is one more manoeuvre in the continuing tussle between the judiciary and the executive over immigration control.

The Migration Act currently enables the Minister or his delegate (an officer of the Department of Immigration and Multicultural Affairs) to refuse a visa to a non-citizen, or to cancel a visa that has already been issued, if the non-citizen is held not to be of good character. However, the decision may be subject to review by the Administrative Appeals Tribunal and, since 1992, the onus has been on the Immigration Department to establish that the applicant is not of good character. This shift in the onus of proof was an unintended consequence of the Migration (Offences and Undesirable Persons) Amendment Act 1992.⁹ From the executive’s point of view, it was a mistake.

The 1992 Amendment Act was designed to strengthen the character provisions of the Migration Act and it incorporated the concept of good character into the Migration Act for the first time. Previously, matters concerning the character of visa applicants had been covered by the regulations under the heading of ‘public interest criteria’. Applicants were likely to fail to meet the requirements if they were considered a security risk, if they had a record of criminal convictions, had been deported from other countries, had been discharged from the military (of another country) as a result of disciplinary action, or if they had shown a ‘contempt for the law or human rights’. The Minister could waive these regulations if he considered the person was no longer a security risk or had reformed.¹⁰

The 1992 reforms introduced sections 501 and 502 into the Migration Act. Section 501 allows the Minister to refuse or cancel a visa if he believes that the person is likely to participate in crime or vilification, or is likely to incite discord or to threaten the community. It specifies that the Minister can determine that a person is not of good character on the grounds of their past criminal conduct (not just their criminal convictions), or on the grounds of their general conduct, or on the grounds of their associating with criminals. Decisions under 501 are reviewable by the Administrative Appeals Tribunal if the person is in Australia. (If the person is overseas but has a sponsor in Australia, the sponsor can request review.) However, section 502 allows the Minister, acting personally, to exclude a person under section 501. (In effect, it removes review rights for such people. It also applies to certain other people subject to deportation under other sections of the Migration Act and to certain people applying for protection visas.) Section 502 is only to be used in the interests of national security and, if a decision is made under this section, it has to be laid before each House of Parliament.¹¹ But Section 502 appears to give the Minister considerable power to take executive action if he should deem it necessary to do so.

Though the 1992 Amendment Act was intended to strengthen the character provisions, it does not set out a clear ‘character test’. In effect it requires the Minister to demonstrate his reasons for being satisfied that a person is not of good character, placing the burden of proof on him, or his delegates. (Under the pre-1992 regulations it was clear that the burden of proof lay with the applicant or visa-holder.) The burden of proof hampers the Department and there is also the problem of criminal intelligence. In theory, section 501 allows the Department to refuse, or to cancel, the visas of people suspected of criminal conduct even if they had not been convicted. But international and internal law enforcement agencies are reluctant to share their information with the Department for fear that the suspected criminal will gain access to it under freedom of information legislation.

Some of the people who apply for Australian visas are suspected of being criminal; a few may be members of organised crime rings. But under the current arrangements it is very hard to deny them visas.¹² One immigration officer put it like this:

The department has ... been forced to issue visas to non-citizens who may not be of good character or to persons it considers as not being of good character due to the fact that law enforcement agencies have been reluctant to formally provide detailed criminal intelligence information concerning those persons. ...

Under the current legislative regime, there are difficulties in preventing the entry and stay of non-citizens who have substantial criminal histories ....¹³

The current regime means that some people who may be of bad character are in fact granted visas. The provisions for review also mean that, in cases where a non-citizen is already in Australia and the Department wishes to cancel their visa on character grounds, it can be difficult to effect a speedy departure. On average it takes the Administrative Appeals Tribunal (AAT) 250 days to complete the review process,¹⁴ and a number of disappointed applicants proceed from the AAT to the Federal Court.

The review process is time consuming and expensive. The cases described below also indicate that it cannot always be relied on to exclude non-citizens who, on the face of it, seem to be of bad character. If an appeal process is to be more than a charade one would expect that, from time to time, a review tribunal would reach a decision which differed from that of the original decision-maker. However, in a number of instances the AAT, or the AAT and the courts, have arrived at some interesting judgements.

The most widely reported challenge to the character provisions involving a permanent visa occurred under the pre-1992 regulations. It involves Ah Min Teoh.¹⁵ The Teoh case is a landmark in the development of immigration rights within the legal system and forms a precedent for decisions made after the 1992 Amendment Act was passed. Teoh is a Malaysian national who arrived in Australia on a temporary visa in 1988 and married an Australian citizen, a woman who already had four children. Three more children were born of their marriage and Teoh applied for a permanent visa on the strength of these family ties. However, in November 1990, while his application was still pending, he was tried and convicted on six counts of importing heroin and three counts of possessing it.

The Minister’s delegate denied him a visa on the grounds that he was not of good character. This decision was appealed and, in 1995, reached the High Court. The High Court drew on the International Convention on the Rights of the Child which Australia had signed in December 1990 but had not incorporated into domestic law. Article 3.1 of this Convention states that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

The majority judgement in the High Court argued that the fact that Australia had signed the Convention but had not codified it meant that there was no legal obligation for officials to observe Article 3.1. Rather, a lesser consequence followed. The fact of the signing created a ‘legitimate expectation’ that a decision-maker would take the Convention into account when making a decision affecting children. If he or she intended not to do this, procedural fairness demanded that the person or persons involved should be told of this so that they could present arguments against such a decision.

The delegate who decided to refuse Teoh a visa did consider the prospects of his family and she acknowledged that these prospects were bleak. However, she considered that the case for allowing Teoh to stay in Australia on compassionate grounds was outweighed by the fact of his bad character. Australia had only just signed the Convention and, despite her concern for his children, she did not take Article 3.1 into account, and she did not tell Teoh that she was not going to do so. Because of this shortcoming, the judges ruled that Teoh had been denied procedural fairness.

The Teoh judgment established that international treaties give rise to a ‘legitimate expectation’ that they be observed in Australia, even if they have not been incorporated into domestic law. It redefined what procedural fairness should mean in immigration cases and established the precedent that a person may be of bad character and yet still be given a visa because of the interests of his or her Australian children. This argument can now be used on its own, or it can be used as an additional argument when applicants are making the case that they are in fact of good character. For example, the Teoh judgment was used to good effect at the AAT in the case of David Grandlouis, a case which was argued after sections 501 and 502 had been incorporated into the Migration Act by the 1992 Amendment Act.

Grandlouis is a Canadian citizen.¹⁶ In May 1985 in Canada, while under the influence of drugs and alcohol, he cut a man’s throat and killed him. He was charged with first-degree murder, pleaded guilty to manslaughter, and received a ten-year sentence. In August 1991 he was released on parole and later married an Australian citizen who was living in Canada. The couple went on to have a daughter, born in February 1996 and registered as an Australian citizen. Grandlouis then applied for a visa to migrate with his family to Australia. This was refused under section 501 on the grounds that he was not of good character. His wife lodged an appeal with the AAT. In 1997 the Tribunal decided that Grandlouis had reformed, that he was a person of good character within the meaning of the Migration Act, and that he was unlikely to re-offend. The burden of proof led the Tribunal to give Grandlouis the benefit of the doubt and it also considered that the best interests of the child meant that she should be close to her maternal grandparents in Australia. This latter argument weighed heavily with the Tribunal because of the Teoh case.

A similar argument was also used in Paul Gunner’s case.¹⁷ Gunner is a British citizen who arrived in Australia in 1989 on a temporary visa. He met an Australian woman, began a relationship with her and, in January 1991, she bore their child. Gunner applied for a permanent visa on the strength of these new family ties and this was granted on 6 April 1992. However, late in 1991 he had stolen travellers’ cheques from Westpac Bank to the value of $16 million. Six days after his visa was granted he left for England (with his de facto wife and child) but was arrested there almost immediately and later, in October, was extradited to Australia. He was released on bail in December 1992 and, in the following 15 months, committed a number of other offences. He was arrested in March 1994 and, in June 1994, was convicted of seventeen counts of larceny, and of giving a ‘corrupt reward’ and of conspiring to obtain a passport unlawfully: the convictions resulted in a term of more than six years imprisonment. In March 1996 a delegate of the Minister for Immigration issued a deportation order under the section of the Act which stipulates that a non-citizen who has lived in Australia for less than 10 years, and who commits an offence attracting a sentence of more than 12 months, is subject to deportation.

Gunner appealed to the AAT and the deportation order was set aside on the grounds that he had expressed remorse for his crimes, had assisted the authorities in recovering some of the traveller’s cheques, that the risk of recidivism was low, and that it was in his child’s interests for him to remain in Australia. The Minister then cancelled Gunner’s visa under the character sub-section of section 502 of the Migration Act. This was the first time that this sub-section had been used.¹⁸

Gunner then appealed to the Federal Court where Justice Sackville found for him and awarded costs against the Minister. Sackville agreed that, in certain exceptional circumstances, section 502 might give the Minister the power to override the AAT but he argued that such a power should be exercised with ‘scrupulous care’. He quoted from a 1991 Federal Court judgement in a deportation case:

Persons whose liberties are protected by the common law, who live in our community, are entitled to have laws [relating to deportation]... read with scrupulous care. .... This is because [such a law] deprives those caught by it of one of their most precious rights, their right of community. ... The making of a deportation order is the plainest infringement of liberty ....¹⁹

Sackville did consider the interests of the Australian community in being protected from people who might prove to be a danger or threat, but ruled that their interests were outweighed by the need to uphold the decision of the AAT. (In July 1998 the Full Court of the Federal Court found for the Minister.)

A final example will serve to illustrate the obstacles which the Minister and his delegates confront in character cases under the current law. It does not touch on the interests of Australian children but shows the difficulties caused by the present onus of proof provisions and by the lack of a clear character test. It concerns Jia Le Geng.²⁰ Jia came to Australia from the People’s Republic of China (PRC) on a one-year visa to study for a graduate diploma in Chemistry at Curtin University. He arrived in Perth in August 1991 and applied for refugee status in September 1991. His claim was examined and rejected by the Immigration Department, the Refugee Status Review Committee, and the Refugee Review Tribunal.

In July 1993 the Department began moves to deport him. In October 1993 he was discovered to be working illegally while using someone else’s tax-file number and was taken into custody. On the first of November 1993 his deportation was imminent but, at the eleventh hour, the Government announced special arrangements for those PRC students who had arrived in Australia after the Beijing massacre of 1989. Jia applied for a permanent visa under these new arrangements and was released from custody under a temporary visa while this application was being processed.

Jia had had a rather turbulent relationship with a Chinese woman, also from the PRC, before he had been taken into custody. In late November, after his release, he committed a number of offences against this woman, including sexual assault. In February 1995 he was sentenced by the Supreme Court of Western Australia to six years imprisonment for these offences. In September 1995 the Immigration Department refused his application for a permanent visa on the grounds that he was not of good character. Jia applied to the AAT and the Tribunal re-examined the circumstances of the offences. It questioned his victim and found her to be ‘attractive but manipulative and argumentative’ and a ‘person quite able to stand up for herself’. Jia, by contrast, was found to be ‘an intelligent person with a good reputation amongst his peers and friends, except for his conduct at the time of the "offences".’ His job prospects were ‘reasonably good, particularly in the hotel industry’,²¹ and he was found to be of good character.

The Minister then appealed to the Federal Court which referred the matter back to the Tribunal. On its second consideration of the case the Tribunal reiterated its judgment that the offences had arisen because of particular circumstances in the relationship between Jia and his victim and had arisen ‘because of her own actions’ and because Jia had had ‘reasonable grounds’ to be ‘fired by emotions of jealousy’. He was unlikely to re-offend and should qualify for a visa on the basis that he was of good character.²²

It is always possible that there are mitigating circumstances and grounds for sympathy with a person who is being denied a visa, even in the most unpromising of cases. But the tussles between the Minister and the Tribunal point to a situation where the Tribunal and, in some instances, the courts, lean towards empathy with the applicant while the Minister is concerned to protect the integrity of the immigration program and the interests of the Australian community. (Members of the AAT insist that they are following Ministerial guidelines when they review deportation cases and that these guidelines require them to consider a person’s ties to Australia, their children, and the extent to which the person has reformed.²³ Differences between the Minister and the Tribunal appear to rest on the relative weight that should be given to these matters versus the risks to the Australian community.)

The new Bill is designed to remove obstacles to excluding non-citizens who are probably not of good character, including people suspected of criminal activities. It does this by putting the onus of proof back on to the visa applicant, and by limiting review rights, and by protecting information provided by law enforcement and intelligence agencies.

Its main instrument for accomplishing the first goal is the character test. The old section 501 is to be repealed and replaced with a new version which sets out this test and states that the Minister may refuse a visa if the person concerned does not pass it, and that he may cancel a visa that has already been granted if he ‘reasonably suspects’ that the person does not pass it. Failing the character test does not mean that an applicant is automatically refused but it will mean that their applications will be closely scrutinised.²⁴ It will then be up to them to the establish that they are in fact of good character.²⁵

The test is set out at section 501 (6):

For the purposes of this section, a person does not pass the character test if

(a) the person has a substantial criminal record ...; or

(b) the person has or has had an association with some else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct; or

(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.

Otherwise, the person passes the character test.

The section then goes on to define ‘substantial criminal record’ (essentially a conviction leading to a sentence of 12 months or more). It also specifies that natural justice applies to people affected by section 501 unless ‘the Minister is satisfied that the refusal or cancellation is in the national interest’. In these circumstances the Minister will take the decision on the character test personally. (The previous wording provided that the Minister could do this if he was concerned about national security; the phrase ‘national interest’ is broader.)

If a person fails the character test they can then attempt to satisfy the Department that they are in fact of good character and it will be open to the Minster or his delegate to use their discretion. But the Bill also allows the Minister to specify just how this discretion should be exercised, for example how much weight should be given to the person’s links to Australia, to the observation of the requirements of international law, and to the nature of the criminal offences.²⁶ The Bill also provides that, in circumstances where the Minister believes the national interest to be engaged, he will be able to make a personal decision to refuse or cancel a visa on character grounds. This decision will not be subject to review and it will be exempt from the rules of natural justice.²⁷

However, the vast majority of decisions will be made by the Minister’s delegate and people adversely affected will be able to appeal to the AAT. But the Bill stipulates that the AAT must complete the review within 42 days. The objective here is to prevent people who may be of bad character prolonging their stay in Australia during a protracted process of appeal.²⁸ If the Tribunal does not complete the review within 42 days, the decision of the Minister’s delegate will stand. Moreover, if the Tribunal overturns a delegate’s decision, the Minister, acting personally, will be able to override the Tribunal and substitute his own decision if he is satisfied that this action is in the national interest. The Bill also specifies that, in these circumstances, natural justice will not apply.²⁹

Finally the Bill provides for greater protection for criminal intelligence information and of the sources of such information.³⁰ In presenting the Bill to the House of Representatives, Ruddock emphasised the reluctance of international and internal law enforcement agencies to share information with the Department because of the risk that it might be divulged in a freedom of information request during an appeal hearing.³¹ The enhanced protection of criminal intelligence contained in the new Bill builds on existing provisions for the protection of ‘non-disclosable information’ in immigration matters, but makes these provisions clearer where questions of criminal conduct are concerned.

Table 1: Organisations making submissions to the Senate Legal and Constitutional Legislation Committee on the Bill
	Pro	Anti	Total
Legal organisations	1	8	9
Ethnic organisations	2	4	6
Other
Catholic Migrant and Refugee Office		1	1
Refugee Council of Australia		1	1
Returned Services League	1		1
AAT		1	1
Administrative Review Council		1	1
DIMA	1		1
Total	5	16	21

The essence of natural justice is summed up in two precepts: an accused person is entitled to know what it is that he or she has been accused of, and that he or she is entitled to a hearing before an impartial adjudicator.³² If non-disclosable information is used in making immigration decisions, and if the person concerned does not have access to independent review, natural justice is not being observed. In effect, together with the restrictions on access to review, the use of non-disclosable information does amount to a curtailment of natural justice and the Bill specifies quite clearly that, in the sections concerned, natural justice does not apply. This is harsh but, unless law-enforcement agencies can be certain that our immigration appeals procedures will protect their information, they will not share it with the Minister. In these circumstances Australia’s capacity to exclude criminals, including members of internationally-organised crime rings, is reduced. The curtailment of natural justice to non-citizens suspected of criminal conduct sets the conflict between the interests of people who are members of the Australian community and those who are not in the clearest relief.

If the Bill is passed it will mean that the executive, with its focus on policy and politics, will have strengthened its position vis-à-vis a legal system which is often inclined to give a higher priority to individual rights, including those of non-citizens. The conflict between the executive and the judiciary over immigration control began with Ministerial discretion and the opening that this provided for lawyers as the new administrative law was established and the numbers of on-shore applications grew. The executive responded with codification. The new Bill adopts a different tack. While it uses codification to reverse the onus of proof and to limit access to review, it also reintroduces discretion. But this time it is a discretion exercised under the supervision of parliament and hedged about with provisions designed to make it judge-proof.

When the Bill reached the Senate late in 1997, it was referred to the Senate Legal and Constitutional Legislation Committee. The inquiry conducted by this committee attracted 22 submissions.³³ Six of the submissions supported the Bill and 16 opposed it (some more strongly than others). Legal organisations (such as the International Commission of Jurists, the Law Institute of Victoria, Australian Lawyers for Human Rights, the Immigration Advice and Rights Centre, and the Council for Civil Liberties) accounted for half of the submissions among those opposed. All of the submissions were from organisations except for one (written by myself which, on balance, supported the Bill). Table 1 provides a breakdown for the other 21.

Many of the submissions which opposed the Bill argued that sentences for juvenile offences and for offences committed long ago should be treated differently from sentences for recent offences and that the possibility of rehabilitation should not be ignored. They also said that different regimes defined as criminal forms of behaviour which Australians could regard as admirable: the proposed character test could result in the exclusion of people of the calibre of Ghandi, Nelson Mandela or Aung San Suu Kyi. In some cases the authors overlooked the fact that failing the character test does not mean that an applicant is automatically excluded; in others this was acknowledged but the authors argued that the fact that such a person would have to suffer a closer examination of their case was unfair and arbitrary.

None of the submissions denied that the executive had an obligation, and a right, to deny or cancel visas where applicants or visa-holders were of bad character but, in many instances, the authors qualified this right to exclude with a strong emphasis on the rights of the applicant or visa-holder. For example the Australian Catholic Migrant and Refugee Office wrote that:

We understand the importance of the Government of the day having the right and foresight to legislate as to who should be allowed to enter Australia .... However, we are concerned for anyone who may for alleged reasons of their character and conduct be disadvantaged by the introduction of measures that erode any personal rights of freedom to move and migrate across borders. Persons have a right to freedom of movement and the onus is on the State to demonstrate that restriction of this right is justified in any particular case.

..... The onus of proof of bad character should lie with the State. No one should have to prove themselves worthy of a basic human right.³⁴

This position is in keeping with the current doctrinal position of the Church which argues that ‘in Catholic social teaching ... there is no warrant for a doctrine of absolute rights to borders ... Australians belong to one human family or "global village", and as such have mutual obligations to promote participation and development rights of all people around the world, irrespective of national boundaries’³⁵ or, in the words of Pope John Paul II, there is a ‘right to asylum, the right to settle in a new country’.³⁶ The submission to the present Bill goes on to highlight aspects of the Bill which affect natural justice:

The human person is prior to and superior to the nation or the State. .... Respect for human rights including the due process is the very basis of the common good. Our interests as a nation cannot in fact be served by denying natural justice. .... the right of the individual is paramount.³⁷

The International Commission of Jurists, Australian Section, asserted that, by ‘limiting the Minister’s field of choice by no other yardstick than the "national interest", a concept almost exclusively within the Minister’s power to define, the legislation reduces the rights of aliens to mere privileges which the Minister can grant of refuse as he or she sees fit’.³⁸ The Law Institute of Victoria argued that, if the Bill were to be enacted in its present form, the Government would acquire powers which would ‘totally override rights which most, if not all people would regard as inalienable’ and asked how it was that the Minister imagined that he might be ‘in any better position to judge community standards and expectations than say, a tribunal or a court’.³⁹

While it is accepted that some decisions of tribunals and courts may from time to time alarm the community, the fact is that our social and cultural heritage has developed over many generations a system for the administration of justice which Australia often proudly asserts is amongst the best in the world. .... [A]dherence to this system is far more reflective of community expectations than the unilateral imposition of any ministerial discretion could ever be.⁴⁰

The Ethnic Communities Council of Western Australia (ECCWA) was particularly concerned about the curtailment of natural justice and the principles of procedural fairness. It also felt that it was ‘unfair to penalise permanent residents who for sound personal reasons defer taking out Australian citizenship’.⁴¹ The author of this submission wrote that:

ECCWA is concerned that one of the most vulnerable and dispossed [sic] groups in society can be arbitrarily denied natural justice. It is grossly unfair that they are not being extended the same rights as other Australians. ... The national interest is almost impossible to define and may mean different things to different people.⁴²

As might be expected, the organisations which wrote submissions supporting the Bill gave a higher priority to the interests of Australian citizens and to permanent residents of undisputed good character.

The Executive Council of Australian Jewry believed that it was in Australia’s interests to strengthen the character provisions; they were particularly concerned to exclude members of racist organisations, people guilty of genocide, and terrorists.⁴³ The Ethnic Communities Council of Queensland emphasised that ‘Australia, as a sovereign nation, has the right to restrict the entry of persons who do not pass the Character Test’.⁴⁴ The Central Coast Legal Centre, Wyong, NSW, focussed on domestic violence perpetrated by non-citizens, and was concerned that the Bill’s provisions would not be stringent enough to allow DIMA to cancel the visas of such people.⁴⁵ The Returned Services League wrote a one-page submission expressing general support, qualified with reservations about the need to protect free speech and to avoid ‘any undue partisan political or ethnic application of the Character Test’.⁴⁶

The submission produced by DIMA in support of the Bill is a substantial document but, apart from the Central Coast Legal Centre’s contribution, the other supportive submissions are very brief. Where those who oppose the Bill often pay slight attention to the interests of the Australian community, the supporters who assert the community’s right to protection often ignore the countervailing claims of applicants and visa holders completely.

There is little sense of dialogue between the two positions but the conflict between them may not be of a kind which can be resolved by dialogue. An article in the February/March issue of Immigration News inadvertently sums up the dilemma posed by the Bill.

The Coalition’s law and justice statement released in February 1996 said that administrative law ‘is a crucial means by which the government and the bureaucracy are directly accountable to individuals affected by their actions’. It is hard to reconcile this statement with the Character Bill, which allows the Minister to circumvent a tribunal’s decision if he happens not to agree with it, or to make decisions without letting the person know the case against them. ... The Minister should never be the final decision maker and a right of review is crucial.⁴⁷

But when a visa is being refused (or cancelled) to which individuals should the ‘government and the bureaucracy’ be accountable — the applicants or the Australian people? The Minister has demonstrated that his focus, in this instance, is on the interests of the Australian people and that it is to them that he feels he should be accountable. The critics of the Bill believe that he should accountable to the applicants.

The Senate Committee consisted of six members (two Liberal, two Labor, one National Party and one Democrat). There were also 14 ‘participating members’, including the two independents (Senators Harradine and Colston) and Senator Bob Brown (Tasmanian Greens) and Senator Dee Margetts (The Greens [WA]). The Committee recommended that the Bill be passed subject to some minor amendments.⁴⁸ The two Labor members (Senators Bolkus and McKiernan) put in a minority report arguing that some aspects of the Bill required further consideration and the Democrats (represented by Senator Bartlett) put in a dissenting report. This states that:

The Australian Democrats accept that Australia has a right to monitor and restrict the entry of persons who are of ‘bad’ character and we support the implementation of workable provisions to protect Australians from the presence of undesirable or dangerous entrants. We strongly believe however, that such provisions must be sufficiently flexible to be applicable in a wide range of circumstances and must be firmly founded on principles which include compassion, empathy and natural justice.⁴⁹

This emphasis on the interests of the applicants means that the Democrats oppose the Bill and one of the participating members, Senator Cooney (Labor) also appended comments expressing reservations. Nevertheless, the situationin late August 1998 appeared to be that the Labor Party would not vote against it provided the minor amendments are made. Given this, the Bill could have gone through in the last sitting were it not for the fact that Senators Margetts and Harradine and the Democrats decided that the matter was controversial. This meant that the Bill had to be timetabled to allow further debate. It would have been debated at the next sitting (in early September) were it not for the intervention of the election. As it is, if the Bill is to be passed, it must be re-introduced to the lower House, before making its way back to the Senate. Whether this happens or not depends on the priorities of whatever government is in office after October 3^rd.

We are now used to analysing the effects of economic globalisation on national sovereignty, and to considering the effects of foot-loose financial capital on national governments’ capacity to manage interest rates, exchange rates and the effects of transnational corporations on investment decisions. But as economic globalisation has increased, so has the globalisation of crime. It has been estimated that the turnover of the world heroin market increased more than twentyfold in the two decades to 1990 while that of cocaine increased fiftyfold. Research commissioned by the German Government predicts that trafficking in human beings and protection rackets may increase by 35 per cent in that country between 1996 and 2000.⁵⁰

For most of the post-war years when selection was made off-shore Australians could be proud that high rates of migrant crime observed in other places did not apply in this country. It is still true that the greater majority of new comers to Australia are law abiding, decent people, but immigration control is facing new challenges and the overall picture is now more mixed.

The problem of combating crime rings points up the difference in the situation of citizens and non-citizens in the clearest way. If a citizen should be a suspect in a criminal case involving international links, of course he or she should be able to remain in their country of citizenship and enjoy a right to a fair trial. The question of jeopardising the police case by allowing the suspect to comment on it before it is complete does not arise. When non-citizens are under suspicion the circumstances are different. We do not wish to harbour them during the time that it may take to complete the case against them, if only because they may be here to further their criminal aims. And we do not wish to give them an update on how that case is progressing. The Minister and, probably, most of the people whom he represents would prefer that such a suspected non-citizen leave Australia. In such situations the rights which the community is prepared to offer to citizens and those which it is prepared to offer to non-citizens differ.

The Australian community of citizens has an interest in being protected from the risks of harbouring those non-citizens who are likely to commit criminal acts. Most members of that community would claim that this is their right. Non-citizens suspected to be not of good character have an interest in remaining in Australia, knowing the specific case against them, and defending their interests before an impartial adjudicator. Most would claim this as their right. These rights conflict. The Bill resolves the conflict by preferring the collective interests of Australians to the individual interests of people who are not citizens and who are, probably, not of good character. It treats non-citizens as people with fewer rights than those enjoyed by citizens. This jars the sensibilities of people committed to the ideal of universal rights for all, regardless of citizenship. Yet, if nations committed to the rule of law are unable to protect themselves from those who do not share this commitment, the institutional base for protecting any rights at all may contract.

Acknowledgment

I would like to thank Lee Gordon from the Department of Immigration and Multicultural Affairs for his help with background material.

References