Federal Government Seeks to Expand its “God-like” Immigration Powers

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With an election looming, and policies which claim to ‘protect’ our nation from ‘undesirables’ as popular as ever, the Morrison government is touting changes to the Migration Act 1958 which would make it easier to deport noncitizens.

Government seeks to bully those who don’t agree

The Federal Government claims the proposed amendments are required to close a loophole that makes it harder than it should be for the Immigration Minister to cancel the visas of those convicted of crimes but sentenced to less than 12 months in prison. 

In a rush to have pass the legislation before the May election, the Morrison Government has adopted the ‘rhetoric’ that those not supporting the bill, most notably the Labor Party, will have “failed another character test themselves.” 

Both Immigration Minister Alex Hawke and Home Affairs Minister Karen Andrews have supported this party line publicly, but the Prime Minister himself took it one step further by accusing senior Labor MP Kristina Keneally of “siding with criminals,” and “wanting to protect domestic violence offenders” by refusing to support the Government’s deportation bill. 

It’s a cunning tactic to suggest that amendments to the deportation bill will in any way help to reduce domestic violence, or assist victim survivors. 

And it is quite a bit of a stretch, in terms of the truth. 

Government wants more than its current ‘God-like’ powers

The Government already has several options available for deporting non-citizens as it sees fit in a wide range of scenarios, which have recently been referred to as “God like” powers bestowed upon the Immigration Minister to approve or cancel visas, at any time. 

In 2014, the Australian government made changes to the “character test” within the Migration Act.

At that time, the Migration Amendment (Character and General Visa Cancellation) Bill 2014 amended section 501 of the Migration Act, making it mandatory to send non-citizens back to their countries of birth, after they had been sentenced to prison terms that total 12 months or more.

Prior to these changes, a non-citizen could be deported after accumulated sentences that added up to two or more years. Under the changes, therefore it became far easier for minor offences to accumulate. Even suspended sentences and juvenile crime penalties can count for the 12 month accumulated prison terms.

Over the years, this law has disproportionately affected New Zealanders who call Australia home, and tested trans-Tasman relations. 

At the same time, laws were also changed so that a noncitizen can be deported without a conviction if the Immigration Minister suspects on reasonable grounds that they have some association with criminal activity.

These Ministerial powers were most recently used to deport tennis player Novak Djokovic. 

Ministerial powers in action : Djokovic’s deportation 

In January, just days before the start of the Australian Open Tennis, Immigration Minister Alex Hawke saw fit to invoke his power under section 133(c) of the Migration Act 1958 (Cth) to cancel Mr Djokovic’s visa “on health and good order grounds, and on the basis it was in the public interest to do so”.

Mr Djokovic is not a criminal and posed no direct threat to Australian society. Despite this, Minister’s decision was based on the idea that essentially that the unvaccinated player could cause disharmony and unrest in the community by bolstering anti-vaccination sentiment. 

Such are the Minister’s sweeping powers under the Act that Mr Djokovic’s appeal of the decision was deemed futile from the moment it was announced. However, it proceeded to the Federal Court where a three-judge bench ruled in favour of the Government, despite the fact that its tenuous arguments were presumptive rather than based on any real evidence.  

The Federal Court Judges made it clear that their ruling was not based on the merits of the case, but on procedural grounds, which related to whether it was legal for the Minister to cancel the Visa. And it is. 

‘Stopping criminals before they get here’ 

The Government’s proposed new laws would strengthen the ‘character test’ — which would see visas cancelled or refused for people convicted of a serious crime, and specifically  lists the types of offences that could lead to visa cancellation, rather than leaving it for courts to decide, on a case-by-case basis. 

The proposal would also broaden the laws to include permanent visa holders in Australia and allow the Government to refuse visas proactively. This would, says the Immigration Minister, stop criminals before they get to Australia.

It is the third time since 2019 that the Coalition has attempted to pass the laws. 

Right now, with an election looming, many consider this last push a distraction from real issues that need to be faced, including but not limited to: the crisis within the health system, the Covid-19 recovery, the dysfunction within Australian politics generally, the epidemic of domestic violence, and violence against women, homelessness and poverty, both which continue to rise at an alarming rate, and climate change, most of which have taken a back seat during the pandemic, but which will never change without attention and dedication from our leaders.  

Even the Law Council of Australia has said the proposed laws are disproportionate on the basis that the Federal Government already has broad powers which are sufficient for dealing with dangerous individuals.

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Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Spring 2022.

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