The Dangers of Character Tests

Susan Harris Rimmer, The Australia Institute

Abstract

This Discussion Paper describes the rise of character provisions in Commonwealth laws over

the last 10 years. The use of character testing has increased

in traditional areas, such as

migration and citizenship, and has moved into new areas of law, such as the employment of

persons in critical industries and criminal law. The first time character testing has been

examined in a thematic way across several legal and policy subject areas, the paper finds that

character tests are often framed in subjective terms and are part of executive decision-making,

raising issues of transparency and accountability. This phenomenon has been incremental,

which is why it is important to pause and reflect on the changes over the last decade.

A character test was generally applied to a person seeking some kind of privilege—for

example a visa, citizenship, or an important job. Traditionally, the evidence examined during

character judgement comprises a person’s past statements, activities and conduct, including

any police record, criminal charges or gaol terms. The decision-maker considers, on the basis

of this factual evidence, the likelihood that a person will repeat any previous undesirable

behaviour.

The nature and use of character tests in Australian law has changed over the last decade. In

recent years, character tests have expanded in scope to include subjective criteria such as the

likelihood of future conduct, rather than simply being based on police record checks and past

patterns of conduct. They have also become increasingly subject to ministerial discretion or

national security considerations, making them almost impossible to appeal.

Yet the consequences of failing such a test are now more serious than ever. Because of

changes to migration and citizenship laws over the last decade and the expanded reach of new

counter-terrorism laws, failing a character test can lead to detention, deportation, and a denial

of citizenship. A person can be rendered stateless, permanently locked out of a profession as

an aviation worker or pilot, or put on trial for a terrorist offence. In this way, someone else’s

assessment of a person’s character can now define that person’s destiny as never before.

Character tests are examined in their initial context of migration law, exploring the politics

behind the changes to the legislation that introduced the section 501 test. In 1999, the

discretion of the minister to refuse people under the character provisions of the Migration Act

1958 (Cth) (Migration Act) was widened dramatically. The effects of this have played out in

several high-profile incidents in recent years, notably in the case of Dr Mohamed Haneef in

late 2007.

The stricter character test in section 501 may have unfairly affected many more individuals and

families. Ministerial rejections and removals on character grounds have increased from only a

few before 1999 to many hundreds since. For example, a total of 116 visas were cancelled by

the minister under section 501 during the last financial year compared to less than 10 over the

whole of the previous decade. Government figures show there have been 94 visas refused or

cancelled on character grounds between July 2007 and May 2008.

Character tests can now also capture permanent residents who have lived in Australia nearly all

their lives. If they have committed a criminal offence or immigration fraud, application of the

character test can lead to permanent deportation. Section 501 can be used as a simpler

alternative process for removing an individual compared with lengthier and more rigorous

deportation processes required by section 201 of the Migration Act.

Character issues are also important in the role of the Australian Security and Intelligence

Organisation (ASIO) when assessing the national security risk posed by aliens. For example,

ASIO assessments underpinned the long-term detention of two Iraqi refugees on Nauru, and

the deportation of US activist Mr Scott Parkin. The paper considers how ASIO national

security assessments are made, whether they constitute a form of character testing, and what

accountability mechanisms are in place to challenge such assessments.

The legal terrain in which Australian permanent residents and citizens—rather than aliens and

non-citizens—can be subject to a character test and its consequences is widening. Changes to

citizenship laws are documented, including how the new scheme replicates many of the

negative features of the Migration Act character test and the ASIO assessment regime. The

question also arises whether the increasing use of character tests may overlap with the counterterrorism

measures introduced since 2001, which affect citizens and aliens alike. The post-

2001 laws are directed not only at terrorists but also at people who have not committed any

unlawful act themselves but may merely be associated somehow with someone in the world

who has.

Character tests which allow for wide ministerial discretion or ASIO clearances, are appearing

in other branches of Commonwealth employment law such as clearances for public service

positions, parliamentary staffers and aviation and maritime workers. The paper goes on to ask

whether the new background checking system for aviation and maritime workers is a version

of character testing, therefore making it possible to predict problems over the lack of

procedural fairness inherent in these tests.

This paper contends that the current construction of character tests and the way they are

implemented do not comply with the right to due process and are not compatible with the rule

of law. If they are to be an expression or an enforcement of ‘Australian values’, character tests

in migration, citizenship, criminal and employment law require urgent amendment. The

criteria in section 501 represent Australian values in a particularly narrow and subjective way.

Even Nelson Mandela and Gandhi could be deemed to be of bad character under this test.

The subjectivities involved in determining character have made it relatively easy for politicians

and security agencies to err on the side of caution, or ‘profiling’, and get it wrong. The lack of

accountability in discretionary ministerial decision-making and the inability to question

intelligence mean that a person whose character is impugned will probably never even know

why. The consequences of such decisions for the individuals concerned are so serious that it is

inappropriate for the decisions to be so subjective and lacking in accountability. The

mishandling of the Dr Haneef case highlights concerns about ‘due process’ and privacy, which

are likely to have wide ramifications for permanent residents and Australian citizens.

This paper makes eight policy recommendations:

1. that section 501 of the Migration Act be repealed or amended to provide for clarity and

natural justice

2. that data on refusals on character grounds across the areas of migration, citizenship and

employment law be collected and tabled in Parliament

3. that a Parliamentary inquiry be held into the interaction of character tests in the areas of

migration, citizenship, employment and criminal law

4. that the Inspector-General of Intelligence and Security (IGIS) hold an inquiry into the

administrative processes by which ASIO assessments are made

5. that the IGIS is able to review the substance of ASIO assessments and the evidence on

which they are based, as well as procedural issues

6. that refugee applicants be allowed to access the Administrative Appeals Tribunal

(AAT) to challenge a character finding

7. that adverse ASIO assessments be made reviewable in substance, in the sense that the

essence of the case against an applicant should be conveyed to that person by the AAT

or the court

8. that when undertaking character testing, ministers use ministerial discretion as the lastresort

safeguard it was intended to be rather than viewing it as constituting the system

itself.

Character might be destiny, and it might be necessary for Australia to continue to conduct

inquiries into the character of individuals for various public interest reasons. However, a

decade of new developments in character testing offers an opportunity for reflection and

evaluation. This research concludes that it is safest to judge people according to what they do

rather than any prejudicial view of whom they might become or associate with.