Character as Destiny: The dangers of character tests in Commonwealth law

Susan Harris Rimmer, The Australia Institute

Abstract

Heraclitus of Ephesus wrote in 500 BC that ‘a man’s character is his destiny’. Philosophers have been puzzling over the role that ‘character’ plays in a person’s life ever since, and wondering how to define the complex attributes that may determine a person’s moral and ethical actions and reactions. Nevertheless, like many complex human phenomena, character has long been codified and defined by law. Without any evident philosophical reflection, a series of changes to character tests under Australian law testify to the fact that in this country, character is increasingly destiny.

It used to be that character became an issue when an Australian sought to step up into an important public role. For example, under our Constitution, you cannot stand for election in the Federal Parliament if you are ‘attainted of treason, or have been convicted and are under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer’. A person being admitted as a solicitor or wanting a seat on a corporate board has to satisfy their peers that they are a ‘fit and proper’ person. In other words, a person will voluntarily offer up their character for scrutiny in return for the wondrous benefits of public office. The High Court has decided that the question of who is a ‘fit and proper’ person is a value judgment and heavily context-driven. This decision was made in relation to whether Alan Bond was a ‘fit and proper’ person to hold a licence under the Broadcasting Act. Shockingly, the High Court found that he wasn’t, nevertheless, he still got a university named after him. Instead of issues of character applying only to Australians who want to step into more senior public roles, such tests now apply to people who just want to stay in their current roles, such as migrants on working visas inside Australian territory, permanent residents trying to become citizens and people working in key professions thought to be terrorist target areas such as aviation and transport.

My argument is that in recent years, character tests in Australia have expanded in their scope to include subjective criteria such as the likelihood of future conduct, rather than being based on police record checks and past patterns of conduct. They have become increasingly discretionary Ministerial decisions or have been made subject to national security considerations and therefore almost impossible to appeal. Yet the consequences of failing such a test are more serious than ever.

Due to changes to the migration and citizenship laws, as well as the reach of new counter-terrorism laws, falling afoul of a character test could get you deported, stuck in indefinite detention, unable to gain citizenship and permanently rendered stateless, permanently locked out of your profession as an aviation worker or pilot or put on trial for a terrorist offence. I contend that the current construction of character tests and the way they are implemented are neither compliant with the right to due process, nor compatible with the rule of law. As an expression or an enforcement of Australian ‘values’, character tests in migration, citizenship, criminal and employment law require urgent amendment.