As immigration minister, Scott Morrison set in train three major legislative amendments that increase ministerial discretion and reduce transparency and accountability, writes Peter Mares. The impact on individual lives could be profound, but many of the changes have already become law with little public debate

Just after midnight on Friday 5 December, during the final parliamentary sitting of 2014, the Senate passed a bill that takes us back to the future. At a stroke, refugees who arrive in Australia by boat will once again be given Howard-style three-year temporary protection visas.

While the media covered aspects of the legislation extensively, far-reaching increases in ministerial power and reductions in legal oversight received less attention. And two other migration measures introduced to parliament on Scott Morrison’s watch went almost unnoticed.

One has already become law. On 26 November, Labor joined with the Coalition in the Senate to amend the Migration Act to make it easier for the minister to cancel or refuse a visa on the basis of a person’s character. The other bill passed the House and awaits a vote in the Senate; if approved, it will significantly increase the minister’s power to revoke citizenship in certain cases.

Labor senators opposed the citizenship bill at the committee stage, arguing it would grant the minister 'unrestrained power' and result in

a much more cavalier approach to the revocation of citizenship.” But that was before the Lindt Cafe siege in Sydney and the debate about how gunman Man Haron Monis came to acquire Australian citizenship, which may change the tenor of political discussion when parliament resumes next week.

All three pieces of legislation extend ministerial powers and ministerial discretion while reducing the role of independent tribunals and courts. Where the character and citizenship bills differ from the new temporary protection visas is that they apply to all migrants, not just asylum seekers and refugees. And some provisions affect people who were born in Australia or who have lived here from a very early age.

Before I look at the character and citizenship bills in more detail, it’s worth noting the extent of the changes accompanying the reintroduction of temporary protection visas.

As was widely reported, the Abbott government secured the anguished deciding vote of Motor Enthusiast Party senator Ricky Muir by promising to increase Australia’s annual humanitarian intake by 7500 people, grant work rights to asylum seekers on bridging visas and release asylum seeker children from detention. (This last promise will make precious little difference to the135 children Australia has despatched to Nauru.) The bill also introduced the Clive Palmer–initiated five-year safe haven enterprise visa for refugees who work in regional areas, which may eventually open up pathways to permanent residence.

But that isn’t all. As the Law Council put it, the omnibus legislation – the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Bill – was as “long and complex” as its clumsy title suggests. Taken together, the amendments represent a further significant hardening of Australia’s response to refugees and asylum seekers who come by boat.

First, the new laws enable the government to fast track around 30,000 pending refugee applications from asylum seekers who mostly arrived in the twelve months immediately prior to the election of the Abbott government. While Scott Morrison repeatedly blamed Labor for this backlog, it was his decision to freeze processing that allowed the build up of so many claims. Morrison then used the backlog as a lever (along with children in detention) to get the Senate to shift its ground on temporary protection visas.

The legislation facilitates fast-track processing by codifying and narrowing the definition of a refugee in Australian migration law, making it easier for immigration department officials to knock back claims in the first instance. There is no right of appeal to the Refugee Review Tribunal when an application is rejected at this stage; a much more limited form of review, without any kind of hearing, may be possible but only at the minister’s discretion. The UN High Commissioner for Refugees warns that this will deny asylum seekers “access to due process and procedural fairness.”

Another change to the Migration Act rules out any possibility that protection claims might be lodged on behalf of the Australian-born children of maritime asylum seekers – a matter that had been the subject of litigationin the federal court.

The legislation amends maritime powers to dramatically expand the minister’s authority to direct what happens at sea. It seeks to shield such actions from a legal challenge like the recent High Court action by a Tamil asylum seeker claiming false imprisonment. The plaintiff was one of 157 asylum seekers intercepted at sea in late June 2014 as they tried to sail from India to Australia. They were detained on an Australian customs vessel for twenty-nine days while the federal government tried to negotiate their return to India. (India refused to accept them and they were eventually transferred to detention on Nauru instead.)

The High Court dismissed the plaintiff’s case, finding that his detention was lawful under the Maritime Powers Act. The new legislation bolsters those powers, making it explicit that decisions to turn back boats, detain asylum seekers at sea, or transfer asylum seekers to third countries do not have to take account of Australia’s international obligations (which include the obligation under the Refugee Convention not to send someone back to a place of persecution). It also clarifies that such directions are not subject to the international obligations or domestic laws of any other country.

The only constraint on the minister is that he or she must believe that the direction is in the national interest. As legal commentators have pointed out, this makes asylum seekers intercepted at sea “particularly vulnerable to abuses of power” and does nothing to change Australia’s “international law obligations to refugees and asylum seekers.”

Scott Morrison’s second legislative legacy as immigration minister is the Migration Amendment (Character and General Visa Cancellation) Act 2014.The Senate quietly approved these amendments nine days prior to its closely watched decision on temporary protection visas. They give Morrison’s successor, Peter Dutton, significantly increased personal power to refuse or cancel visas, and substantially lower the threshold conditions for making such decisions.

A visa can now be cancelled on character grounds if, for example, the minister “reasonably suspects” that a migrant has “an association” with a group or person that “has been or is involved in criminal conduct.”

In a submission to the Senate Legal and Constitutional Affairs Legislation Committee, the Sydney-based Refugee Advice and Casework Service arguedthis would enable the minister to cancel a visa without “any meaningful assessment of circumstances or evidence relating to the alleged conduct.” The Service warned that the term “association” is “incredibly broad” and could include “people who are related to another person in some way but do not have any involvement in or connection to the criminal conduct.”

As the explanatory memorandum to the bill spells out, the minister can now cancel a visa if there is a “possibility” that a person “may” be a risk to the health, safety or good order of the Australian community.” Previously, the threshold was an “actual risk.” The Minister’s power to cancel a visa without natural justice and without review has been expanded, and the minister has wider discretion to overturn decisions of independent bodies like the Migration Review, Refugee Review and Administrative Appeals Tribunals.

The character changes also require that any non-citizen who is serving a prison sentence of twelve months or more will lose their visa. As soon as the jail time has been served, the non-citizen will be deported from Australia, or placed indefinitely in immigration detention if deportation is not feasible.

At first glance this might seem reasonable: why should a non-citizen, even a permanent resident, be allowed to stay in Australia after being convicted of a serious crime? New immigration minister Peter Dutton maintains that it is “a privilege” to come to Australia and that people “who commit serious criminal offences, people who are involved in the trafficking of amphetamines or ice to kids, people who are involved in paedophilia, murder or serious crime” cannot expect to remain here.

But what if the individual has lived in Australia from an early age? Do we not, as a society, then bear some responsibility for how they have turned out? Is it reasonable to foist them on another country with which they have very little real connection?

Nor are the particularly disturbing activities listed by the minister the only types of crime that will trigger automatic visa cancellation. The threshold of a substantial criminal record is crossed when a person is sentenced “cumulatively or concurrently, to prison terms totalling twelve months (whether the sentences were handed down on one or more occasion).” The NSW Council of Civil Liberties warns that three relatively minor non-violent crimes, including such “trivial crimes” as shoplifting or graffiti, could lead to deportation.

In such cases, the extent of a person’s connection to Australia is irrelevant to the process of cancelling a visa. It makes no difference, for example, if all of a person’s immediate family members are resident here or if he or she has Australian children. Previously, the minister was required to take such matters into account before deciding whether or not to cancel a visa.

Before these changes, the protection of the Australian community, the nature and seriousness of the crime and the risk of the person committing further offences were primary considerations, but so too were other questions – the best interests of any child who might be affected by the decision, for instance, and the potential impacts of deportation on other family members, and the strength, duration and nature of the visa holder's ties to Australia.

Such factors are particularly relevant to migrants who were brought to Australia by their parents as babies or young children but have never become citizens. (In some cases they don’t even realise that they are not citizens.) A growing number of New Zealanders, in particular, can live in Australia indefinitely but simply have no feasible pathway to citizenship. These people may have strong ties to Australia and little, if any, experience of living in any other country.

Under Scott Morrison’s amendments, connection to Australia can no longer be taken into account. If a non-citizen is sentenced to twelve months’ jail, visa cancellation is automatic and immediate regardless of how much of a person’s life has been lived on Australian shores. (The minister does have the power to revoke a cancellation, but because this power is entirely discretionary the Minister can’t be compelled to use it, or even to consider a particular case. Nor is this power subject to natural justice or to any kind of legal review.)

In a submission to a Senate committee that considered the bill, the Australian Human Rights Commission said that it could result in long term permanent residents being “removed from Australia and sent to a country where they have spent little time (or never lived); where they do not speak the language; and where they have few or no social or family connections.” Such people may also face “separation from their children, family and friends in Australia.”

The ANU’s Migration Law Program warned that the amendments blurred the boundaries between criminal law and migration law:

Having one’s visa cancelled for failing the character test because of having a substantial criminal record effectively means permanent banishment from Australia… This serious and lifetime immigration consequence of having received a twelve-month sentence is disproportionate. It amounts to a secondary punishment on the offender. The sentence imposed by the court is the penalty for the crime. Banishment is a harsher and additional penalty.

The submission went on to argue that the amendments would create situations in which “the Australian community is being protected, by banishment, from persons who are themselves products of our society.”

The most infamous visa cancellation case in recent years involved Mohamed Haneef, briefly accused in 2007 of involvement in a failed British bomb plot. The charges were quickly dropped for lack of evidence. But Haneef’s visa had already been cancelled by then immigration minister Kevin Andrews on the basis that he “reasonably suspected” an association between Haneef and his second cousins, who were implicated in the plot.

The federal court eventually reinstated the visa after concluding that the minister had failed to apply the character test correctly. Justice Spender argued that it seemed “impossible to conclude that parliament would have intended that a person fail the character test where the relationship of a visa holder with a person, group or organisation was utterly remote from the criminality of that person, group or organisation.”

In dissenting comments to the report of the Senate Committee that considered the character bill and recommended its passage, Greens senator Sarah Hanson-Young observed that in future, unjust decisions will no longer be subject to checks and balances. “The practical implications of these amendments,” she wrote, “will see individuals visas cancelled in circumstances where they may not actually present a risk to the community, as was the case with Dr Mohamed Haneef.”

In its submission on the character changes, Melbourne’s Refugee and Immigration Legal Centre warned that the measures represented “fundamental and radical shift in policy regarding the ordinary entitlement to being protected from expulsion from Australia without due process.”

Similar concerns have been raised about the proposed changes to Australian citizenship laws.

The government attempted to rush the other set of amendments, the Australian Citizenship and Other Legislation Amendment Bill, through parliament with extraordinary haste. When Paul Fletcher, parliamentary secretary for communications, gave the second reading speech in the House, he waxed lyrical:

Australian citizenship is something to be treasured. It is a common bond which unites us all, whether we were born here or chose to make Australia our home. Australian citizenship involves a commitment to this country and its people. It is a privilege which should not be taken lightly.

Presumably, then, changes to citizenship laws should not be taken lightly. Yet the Senate Legal and Constitutional Affairs Legislation Committee was given just one month to consider the bill.

When committee members quizzed immigration department officials about the timing, they were given “no special insight” into the bill’s urgency. Interested parties had just four working days to make written representations to the committee; it is an indication of the level of concern at the bill’s far-reaching provisions that a number of senior legal scholars and organisations such as the Law Council of Australia and the Australian Human Rights Commission nevertheless managed to scramble together highly critical submissions.

Broadly, the bill will increase the power of the immigration minister to refuse or revoke citizenship. For example, as spelled out in the explanatory memorandum, citizenship can be revoked if the minister “is satisfied” that it was obtained “as a result of fraud or misrepresentation,” even if the person has not been convicted of any offence. Furthermore, a person can have their citizenship revoked even when he or she is not the perpetrator of the alleged fraud or misrepresentation. The minister can exercise this power for up to ten years after citizenship is granted.

This “would permit revocation of citizenship on the basis of the Minister's personal opinion alone,” argued the Refugee Council of Australia. The meaning of “fraud or misrepresentation” is not defined, added the Law Council of Australia, which means that “the relevant misrepresentation could be relatively minor” and might be committed by a third party without the affected person’s knowledge. This could involve, for example, the action of a migration agent. It could also mean that a child could have their citizenship revoked because of actions taken by their parents.

The Law Council also argued that the proposed changes “based on the minister's own determination of guilt of fraud or misrepresentation outside of any criminal proceedings, appear to undermine the rule of law principle that all people are entitled to the presumption of innocence and to a fair and public trial.”

The bill would require the minister to refuse citizenship on the basis that a person is subject to a court order requiring participation in a residential drug rehabilitation scheme, a residential program for the mentally ill or “any other residential scheme or program.” It would enable character considerations to be applied to children as young as ten, leaving open “the possibility that a ten year old may fail the character test for citizenship,” the Law Council points out. Yet, it adds, the amendments lack “any criteria or guidance as to what may constitute ‘good character’ for the purposes of the Act."

The Council says the measure contravenes a generally recognised principle of the Australian justice system that “every child accused or convicted of a criminal offence should be treated in a manner which takes into account the desirability of promoting his or her reintegrating and assuming a constructive role in society.”

Under the Migration Act as it stands, a child born in Australia automatically becomes a citizen when they turn ten, even if neither parent is a citizen or permanent resident. The bill would amend this section of the Act so that children only become citizens they were in Australia lawfully during the entire ten-year period. As a result, citizenship would be denied to children of asylum seekers who arrived by boat and to the children of parents who have overstayed a temporary visa.

The explanatory memorandum to the bill provided no justification for this change beyond “encouraging lawful residence.” In its submission to the Senate committee, the immigration department claimed that the ten year rule was “encouraging some temporary residents and unlawful non-citizens to have children in Australia and to keep their child onshore until at least their tenth birthday, whether lawfully or unlawfully, in the expectation that the child will obtain citizenship and provide an anchor for family migration…”

No evidence was offered to support this contention, but given that only about 400 applications for citizenship under the ten-year rule are made annually, activity of this kind would appear to be rare. The impact on the life of an individual child, however, could be profound.

For Alexander Reilly, director of the Public Law and Policy Research Unit at the University of Adelaide, there is an important ethical question at stake: “Should the immigration status of parents affect the citizenship rights of innocent children?”

In his submission to the Senate committee, Reilly points out that the amendments allow for no discretion to take into account unique or exceptional circumstances or the best interests of the child:

There is no ground to deny full membership in the Australian community to a person who speaks Australian English, has only Australian and Australian-based friends, has lived only in the Australian landscape, is steeped in Australian culture, and has experienced all of their education in Australia. Young people in this position should have the full security of residence and other rights and duties of an Australian citizen, whether or not they have citizenship status in another country. Their immigration status, or that of their parents, is irrelevant to the depth of their connection to Australia.

The bill also seeks to remove the right to a merits review of any decisions made by the minister personally. It increases the minister’s power to overturn decisions made by independent bodies like the Administrative Appeals Tribunal in cases involving questions of a person’s character or identity if the minister is satisfied that it is in “the public interest” to do so.

The explanatory memorandum to the bill provides an extraordinary justification for granting these powers to the minister:

As an elected member of parliament, the minister represents the Australian community and has a particular insight into Australian community standards and values and what is in Australia’s public interest. As such, it is not appropriate for an unelected administrative tribunal to review such a personal decision of a minister on the basis of merit, when that decision is made in the public interest.

Alexander Reilly told the committee that granting the minister such powers “undermines the whole point of merits review” and raises questions about “why we have a merits review process at all.” The Australian Human Rights Commission points out that “the aim of an independent merits review tribunal is to provide for a check on executive decision making.” It says these amendments “provide the opposite: an executive check on independent tribunal decisions. Jane McAdam, director of the Andrew and Renate Kaldor Centre for International Refugee Law at the University of NSW is blunter: “This makes a mockery of the merits review process by undermining procedural fairness and the independent powers of the Tribunal, and interfering in due process and the rule of law.” •