The original bill was introduced to the House of Representatives on 1 May 1958 by
Alick Downer, the
Minister for Immigration in the
Menzies Government. In 1966, the
Holt government amended the Act through the
Migration Act 1966. The amendments were relatively minor, dealing with decimalisation and identity documents for crew members of foreign vessels. Several sources have incorrectly identified the
Migration Act 1966 as the vehicle through which the Holt government dismantled the
White Australia policy. In fact, the government's actions in that area required no modification of the existing legislation, and were accomplished solely through
ministerial decree. The
Migration Amendment Act 1983 substituted the words "immigrant" with "non-citizen", having the effect of removing all restrictions on entry by Australian citizens from the external territories such as the
Cocos and
Christmas Islands to the Australian mainland. The
Migration Legislation Amendment Act 1989 created a regime of administrative detention of "unlawful boat arrivals". Such detention was discretionary. The
Migration Reform Act 1992, which came into operation on 1 September 1994, adopted a mandatory detention policy obliging the government to detain all persons entering or being in the country without a
valid visa, while their claim to remain in Australia is processed and security and health checks undertaken. Also at the same time the law was changed to permit indefinite detention, from the previous limit of 273 days. Mandatory detention has continued to be part of a campaign by successive Australian governments to stop people without a valid visa (typically
asylum seekers) entering the country by boat. The policy has been varied since 1992 by the subsequent
Howard,
Rudd,
Gillard,
Abbott and
Turnbull governments.
2001: The Pacific Solution On 27 September 2001, under Prime Minister
John Howard, amendments were made to the 1958 Act by the enactment of
Migration Legislation Amendment (Excision from the Migration Zone) (Consequential Provisions) Act 2001. Specifically, the new amendment allowed "offshore entry persons" to be taken to "declared countries", with
Nauru and
Papua New Guinea made "declared countries" under the Act. The implementation of this legislation became known as the
Pacific Solution. The policy is regarded as controversial and has been criticised by a number of organisations. The
High Court of Australia in
Al-Kateb v Godwin (2004) confirmed, by majority, the constitutionality of indefinite mandatory detention of aliens.
2014: Character test In December 2014, after
Peter Dutton assumed the position of
Minister for Immigration and Border Protection, the
Migration Act was amended to impose a
character test on visa applicants seeking to enter Australia and foreign non-citizens in Australia. These amendments included the introduction of a new mandatory cancellation provision under section 501(3A). Between the 2013–2014 and 2016–2017 financial years, the number of visa cancellations on character grounds increased by 1,400%. According to statistics released by the
Department of Home Affairs, the top ten nationalities that featured in visa cancellations on character grounds in 2017 were
New Zealand, the
United Kingdom,
Vietnam,
Sudan,
Fiji,
Iraq,
Tonga,
Iran,
China, and
India. Mandatory detention rules also apply to persons whose visa has been cancelled by the Minister, for example on character grounds, allowing such persons to be detained in immigration detention and deported, some after living in Australia for a long period. Non-citizens facing visa cancellation can appeal to the Australian
Administrative Appeals Tribunal (AAT), an independent tribunal which hears visa cancellation appeals. In December 2019, the New Zealand media company
Stuff reported that 80% of appeals to the AAT were either rejected or affirmed the Australian Government's visa cancellation orders. The Australian Lawyers Alliance spokesperson Greg Barn alleged that the
Morrison government had stacked the AAT with members of the governing
Coalition parties to ensure outcomes favouring the Australian Government's deportation orders. In January 2021,
TVNZ's
1News reported that 25% of New Zealand citizens in Australia subject to the 501 "character test" had successfully appealed against their deportations to the
Administrative Appeals Tribunal. These figures included 21 in the 2019-2020 financial year and 38 in the 2020-2021 year.
2018: Migration Amendment (Strengthening the Character Test) Bill 2018 On 25 October 2018, the Australian Immigration Minister
David Coleman introduced the
Migration Amendment (Strengthening the Character Test) Bill 2018 in response to anecdotal reports by Australian police forces that some judges had reduced criminal sentences to avoid triggering the criminal record threshold for mandatory visa cancellations under Section 501. The proposed Bill did not differentiate between adult and under-18 year old offenders, allowing the deportation of adolescent offenders. Despite opposition from New Zealand High Commissioner
Annette King, the
Law Council of Australia,
Australian Human Rights Commission, and the
United Nations High Commissioner for Refugees (UNHCR), the Migration Amendment Bill 2018 passed its first reading on 25 October. However, the bill lapsed at the dissolution of the Australian Parliament on 11 April 2019, prior to the
2019 Australian federal election held on 18 May 2019. as the
Home Affairs Legislation Amendment (Miscellaneous Measures) Act 2019. However, the 2018 ruling was overturned in December 2019, after 37 votes to 35 supported the government's move to repeal the law.
2020: Aboriginal Australians cannot be aliens On 11 February 2020 the
High Court of Australia, in a judgment affecting two court cases (
Love v Commonwealth of Australia; Thoms v Commonwealth of Australia: [2020] HCA 3), first used the tripartite test in
Mabo v Queensland (No 2) (1992) to determine Aboriginality of the two plaintiffs. The court then determined that if a person is thus deemed to be an
Aboriginal Australian, they cannot be regarded as an alien in Australia, even if they hold foreign citizenship. The two men concerned, Daniel Love and Brendan Thomas, could not thus be deported as aliens under the provisions of the
Migration Act 1958, after both had earlier been convicted of
criminal offences and served time in prison until 2018. The following day,
Christian Porter,
Attorney-General of Australia, said the decision created "an entirely new category of people in terms of what the government can and can’t do” a non-citizen non-alien, or "belonger". Porter said that the government would be looking to deport the small group of Aboriginal non-citizens who have committed serious offences in another way.
2021: "Strengthening the Character Test" amendment bill In 24 November 2021, the
Australian House of Representatives introduced the
Migration Amendment (Strengthening the Character Test) Bill 2021, which would expand the criteria of crimes allowing non-citizens to be deported from Australia including violence against a person, non-consensual sexual offenses, and convictions for common assault, bodily harm against another person, harm against a person's mental health, and family violence. Under the proposed law, non-citizens convicted of a serious crime involving violence and weapons that is subject to a two-year prison term is eligible to have their visa cancelled. The proposed bill passed its third reading at the House on 16 February 2022. It was introduced to the
Australian Senate on 30 March 2022. During a state visit to Canberra in June 2022, Ardern discussed the 501 deportation policy with her Australian counterpart. In response, Albanese reiterated that he would look at addressing New Zealand's concerns about the deportation of its citizens. During a second state visit by Ardern in early July 2022, Albanese reiterated his government's commitment to amending the Section 501 deportation policy to consider individuals' long-term connections to Australia. Ardern had reiterated the New Zealand Government's concerns that individuals with minimal or no connection to New Zealand were being deported. In response, Shadow Home Affairs Minister
Karen Andrews expressed concerns that the Albanese government's plans to modify the Section 501 policy would allow foreign criminals to remain in Australia, endangering public safety and security. This directive was known as Ministerial Direction 99 and stated that immigration officials and the Administrative Appeals Tribunal had to consider a person's communal ties and time spent in Australia before cancelling a visa. The announcement was welcomed by New Zealand Prime Minister
Chris Hipkins. In late May 2024, Albanese and Giles announced that the Australian Government would rewrite Ministerial Directive 99 following criticism from Shadow immigration minister
Dan Tehan and
Opposition Leader Peter Dutton that the ministerial direction had allowed several non-citizens convicted of serious crimes including rape, drug smuggling, kidnapping and serious assault to remain in Australia. In response to Australian plans to rewrite Ministerial Directive 99,
New Zealand Foreign Minister Winston Peters and Prime Minister
Christopher Luxon expressed concern that the policy revision would lead to the deportation of New Zealanders with little connection to New Zealand but said they would work with their Australian counterparts to address New Zealand's concerns. ==Human Rights Commission review==