Late last week, Labor MP Kristina Keneally confirmed they had sided with the Morrison government to pass the controversial deportation legislation through the lower house but suggested that the Coalition government will have to bring forward amendments before it permits the bill to pass through the Senate.

If it is passed through the Senate, the Migration Amendment (Strengthening the Character Test) Bill 2021 would give the immigration minister further, sweeping powers to cancel visas and deport people. Lawyers have warned that it would mean a “dramatic” increase in the number of Australians being detained.  

Specifically, the bill will expand circumstances in which a person does not pass the character test and may have their visa cancelled to designated offences with a statutory maximum sentence of not less than two years, regardless of the sentence.

The Law Council of Australia (LCA) president Tass Liveris said that the proposed legislation is “disproportionate” as it would permit the cancellation or the refusal of visas for persons who are convicted of a designated offence but who have only received short sentences, a fine, or a community corrections order.

In December, the government’s human rights committee reported that it is “not clear that there is a pressing and substantial need for the measures in the bill”.

Prior to it being passed in the lower house, Scott Cosgriff with the Human Rights Law Centre (HRLC) said the bill would allow the detention and deportation of long-term residents for conduct that otherwise would not lead to a significant penalty.

Responding to the news that it had made it through the lower house with the support of Labor, Mr Cosgriff commented: “This was a shameful and deliberate attempt by the Morrison government to demonise migrants and refugees as an election strategy. Parliament should not waste another minute on it.

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“The bill would allow more people to be ripped away from their families, locked up in detention centres and deported to a country that is not their home, even when they have lived in Australia for decades. The ALP and the Senate crossbench need to reject these unnecessary and harmful laws just as they did last year.”

The Law Council similarly considers the amendment to be unnecessary and that, given the significance of a visa cancellation, a determination of whether a person satisfies the character test should be based on “proper regard to an individual’s circumstances and the risk they pose to the community, with that assessment subject to an independent review, rather than by virtue of a conviction alone”.

Mr Cosgriff added that “instead of playing politics” in the lead up to the federal election, the Morrison government should “focus on fixing the many failures of immigration detention”. The first step, he added, should be to release the refugees that it continues to “unnecessarily keep in detention centres”.

LCA concerned with comments that lawyers are part of the problem

Further to its concerns with the legislation, LCA responded to comments that “soft decisions” by courts are enabling people to “get around” existing migration law and that lawyers themselves are part of the problems in the immigration law system.

Mr Liveris said it is “not appropriate” to question outcomes in a generalised way or without knowing what factors contributed to a sentence imposed on an individual, “but it is important that if errors are made, then superior courts can review”.

“It is also important that public discussion about criminal sentencing is fair and balanced. Attacks on the independence of the judiciary do not make Australia safer. They have the reverse consequences of eroding public confidence in the courts and undermine the rule of law,” Mr Liveris said.

“Criticism of Australia’s judicial system, which is amongst the best in the world, is not only unhelpful to this debate, but overlooks the vital role it plays in protecting our community and people’s rights. This includes the principle that everyone deserves access to justice, including representation by a lawyer.”