Bad character? Chris Brown, Troy Newman and the Migration power
With American R&B singer Chris Brown having his right to entry into Australia being challenged by the federal government, and anti-abortion activist Troy Newman being denied a visa, we’re taking the opportunity to explore ministerial rights in this area.
Two recent decisions of the Minister for Immigration and Border Protection have drawn attention to the powers of the Minister and his Department to exclude people on the basis of character assessment.
The Minister, Peter Dutton, has served Notice of Intention to Refuse a Visa to Chris Brown, who has a music tour scheduled for December, and the Minister has also cancelled the entry visa of Troy Newman who, at the invitation of ‘Right to Life Australia’, sought to undertake a lecture tour.
In Brown’s case, the Minister has cited Brown’s 2009 conviction for assault and threatening to kill his former girlfriend, Rihanna, also an internationally acclaimed singer. Brown – and Newman – have 28 days in which to seek revocation of the Minister’s decisions. On social media, Brown has said: “My life mistakes should be a wake up call for everyone. Showing the world that mistakes don’t define you. Trying to prevent spousal abuse”.
On the other hand, Get-Up! obtained thousands of signatures on a petition calling for Brown to be denied admission. A similar lobbying occurred with two prior cases, involving American rappers, Tyler the Creator and Snoop Dog. The feminist organisation, ‘Collective Shout’, petitioned the Minister to have them barred from entry on the grounds that, in their opinion, their songs degrade and promote violence against women.
In the case of Troy Newman, his opponents here say that he should be denied a visa because his talks may incite community harm. Newman wrote a book in which he advocated the execution by the state of doctors found guilty of performing abortions. The Right to Life people counter this with appeal to the right to free speech.
Would Mandela have been allowed in?
There is always controversy when a well-known individual is denied admission to Australia under the ‘character test’. The issue raises questions of relevance to democracy and civil liberties. Is the discretionary element to the Minister’s ‘character’ power too broad and open to misuse in terms of free speech and expression? Civil libertarians point out that Nelson Mandela, with his convictions for terrorism, would at one time probably have been denied a visa.
The issue provokes discussion and argument, with people taking opposite sides; something that is very healthy in a democratic culture. Sometimes, though, the bigger issue can be buried in personal viewpoint: those who sympathised with the Irish republican Sinn Fein leader, Gerry Adams, were outraged when he was denied admission into Australia in 1996 by the then Minister, Phillip Ruddock, on character grounds. Those who opposed Sinn Fein were not.
Less controversial was the decision of Minister Nick Bolkus in 1994 to deny a visa to the historian David Irving, again on character grounds. Irving challenges accepted facts about the Shoah – the German Nazi government’s Holocaust against the Jews - and was banned from coming to Australia for a speaking tour. Few people respect Irving’s views, but there was a case to be made that he should be allowed in to present his abhorrent case.
The Minister can also cancel the visa of a non-citizen already in Australia. This happened in 1997, when an American named Lorenzo Ervin, who had been convicted of air piracy and kidnapping in 1969 when he was a member of the Black Panthers, had his visa cancelled by the Minister, Amanda Vanstone.
There are other prominent examples and it is noteworthy that since 1958, when Australia’s migration laws were overhauled and a new Act, the Migration Act, defined the ‘character test’, there have been hundreds of individuals deported for ‘bad character’ under it. These are mostly individuals on visas who break the law and are deported.
Questions arise as to why some individuals are banned while others who express similar views, or have had similarly violent backgrounds, are not. ‘Salon’ magazine asks of the Chris Brown case as to why Australia did not ban Ozzy Osbourne, or the group ‘Cannibal Corpse’. ‘Salon’ wonders whether racism plays a part – as the musicians banned to date are all black men.
The Migration Act defines bad character in ways that are specific – for instance, if you have been sentenced to more than 12 months imprisonment you are deemed to be of bad character – and in ways that are very broad.
A fact sheet of the Department of Immigration and Border Protection spells out the broadness in the government’s definition of ‘bad character’ thus:
there is a risk that while you are in Australia you would:
- engage in criminal conduct
- harass, molest, intimidate or stalk another person
- vilify a segment of the Australian community
- incite discord in the Australian community or in a part of it
- be a danger to the Australian community or a part of it.
Risk is very hard to assess, regardless of what an individual may have done – or sung – in the past. It places great power in the hands of a Minister.
Bad character is also defined by the government as applying if:
- you are or have been a member of a group or organisation, or had or have an association with a person, group or organisation that the Minister reasonably suspects of being involved in criminal conduct.
‘Association’ is a general notion. Should a Minister’s suspicions carry the weight of law?