The Morrison government is trying to wedge Labor by resuming a push to enforce stronger laws to deport and refuse visas to foreign-born nationals with criminal convictions.
Its Strengthening the Character Test bill will be brought back to parliament in amended form on Wednesday, after an earlier attempt to enshrine the laws was defeated in the Senate late last year.
The government says the measures would create an objective test targeting criminals convicted of serious offences such as stalking, domestic violence, assault of police officers and child abuse to be fast-tracked for deportation and visa refusals.
Prime Minister Scott Morrison is seizing on the laws ahead of the looming federal election to pressure Labor over its previous opposition to the proposal.
“The law needs to be fixed. It needs to be changed,” Mr Morrison told 2GB Radio.
"Judges are handing down sentences which enables people to get around this, and we need an objective test. We want to make sure we can punt them.”
Under the bill, foreign nationals would face having their visas refused or cancelled if they have been convicted of a serious crime that's punishable by more than two years in prison.
The government says the laws would seek to address a gap in existing legislation, by allowing the character test to be applied to individuals, who have received less than 12 months imprisonment for their crimes.
But Labor has previously raised concern over why the measures are needed, considering the immigration minister already holds broad discretionary powers to cancel and refuse visas.
It has also been critical of the bill’s retroactive powers, which would allow it to be enforced retrospectively, once the laws were legislated.
Shadow home affairs spokesperson Kristina Keneally accused the government of attempting to manufacture a flashpoint with the opposition ahead of the federal election.
"Mr Morrison becomes more and more desperate every day,” she told SBS News.
She said the immigration minister’s recent use of discretionary powers to deport tennis star Novak Djokovic demonstrated his power to enforce such measures.
“If the minister can kick out a tennis player, he can kick out a rapist, a murderer or a drug dealer,” she said.
The government has maintained the Djokovic decision doesn't mean additional measures aren't required to deal with other loopholes in existing legislation.
In a letter to Immigration Minister Alex Hawke on 10 February this year, SBS News understands Senator Keneally sought to engage in dialogue over the proposed bill.
It’s understood Labor is seeking amendments to remove the capacity for the laws to be enforced retroactively, as well as reducing the risk that it could capture low-level offending, by using the existing definition of “substantial criminal record” in the Migration Act.
The opposition also holds concerns over the need to revise ministerial directions in relation to New Zealand, following diplomatic backlash over the deportation of their citizens across the Tasman.
This follows the policy proposal drawing criticism from the New Zealand government warning in a submission to a parliamentary inquiry, that it could “make a bad situation worse.”
New Zealand’s Prime Minister Jacinda Ardern has also said the deportation of New Zealanders - many of whom have spent most of their lives in Australia - .
In Australia, most visa cancellations are made under sector 501 of the Migration Act.
Through these powers, the government can cancel visas of non-citizens over character concerns as well as for criminal convictions, or if they are considered part of a group suspected of wrongdoing.
Migration law specialists have consistently opposed the government’s attempt to bolster its visa powers through this latest measure, first proposed in 2018.
The Visa Cancellation Working Group - a coalition of migration laws and legal aid groups - has warned the changes risk imposing an arbitrary and inappropriate low bar for failure of the character test, which threatens to exacerbate flawed decision-making on these grounds.
“The Australian community will not support an opaque, unfair system, and, as more and more people are affected by visa cancellations and refusals,” it said in a submission to parliament.
Immigration Minister Alex Hawke has said by moving the character test onto more objective grounds, it will reduce the likelihood of decisions being overturned on appeal and also capture decisions to give sentences falling below the mandatory visa cancellation threshold of 12 months imprisonment.
“This is about serious violent crime,” he told reporters.
“It's about people that all Australians would agree should never come here in the first place, and if they commit the crimes should be deported.”
Greens leader Adam Bandt has also accused the government of overreach on the eve of an election.
“The character test bill is a naked power grab from an untrustworthy government,” he told reporters.
“It will trash human rights and split families and it must be blocked.”
In September 2019 and October 2021, Labor and the Greens voted against an earlier version of the bill in the Senate.
