The Dangers of Character Tests: Dr. Haneef and Other Cautionary Tales

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.

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.

Keywords: Character test, Dr. Haneef, migration law, citizenship, criminal law, executive discretion