Explainer: what role does ministerial discretion play in the Chelsea Manning visa case?

Chelsea Manning is due to commence a speaking tour of Australia and New Zealand on Sunday. Her appearances at the Sydney Opera House and subsequent venues, though, are in doubt.

The Department of Home Affairs has written to Manning to give notice of an intention to “consider refusal” of her visa application. New Immigration Minister David Coleman may decide to refuse Manning’s application on the basis that her criminal record prevents her from meeting the character test.

The New Zealand government is facing the same decision, with the opposition National party calling on the immigration minister to refuse entry to Manning on the grounds of poor character.

Chelsea Manning’s past and the character test

In 2010, while a US army intelligence operative, Manning leaked over 700,000 items of interest to WikiLeaks. That site published vast amounts of classified material from Manning’s leaks, including videos showing US airstrikes in Iraq and Afghanistan which killed non-combatants.

Manning is variously described as a whistle-blower, a danger to others and a traitor.

Manning, a transwoman formerly known as Bradley Manning, was acquitted of aiding the enemy, a charge that could have carried a death sentence. However, a military court convicted her of multiple other crimes, including violations of the Espionage Act.

Read more: Clemency for Chelsea Manning – but will Assange or Snowden also find the US merciful?

She was sentenced to 35 years in prison and served seven, before then President Obama commuted her sentence in 2017. Despite transitioning during her imprisonment, Manning had been kept in a men’s prison and had twice attempted suicide prior to her release.

For the purposes of the current controversy, it is important to distinguish between commutation of a sentence and a reversal of a conviction. Although Manning was released early, she retains a criminal record.

Under s501(6)(a) of the Migration Act (Cth), a person does not meet the character test if they have a “substantial criminal record”. A prison sentence of over 12 months constitutes a substantial criminal record, and therefore it is clear that Manning can be said to fail the character test.

Yet the Migration Act does not automatically ban the granting of visas to people who fail the character test on these grounds. Instead, it gives the minister discretion to grant or refuse a visa. There is an expectation of natural justice, which means that Manning - if refused - could appeal the decision.

In practical terms, this is of little assistance to Manning. It has been reported that a notice of intention to consider refusal of a visa typically results in refusal. It is unlikely that her application could be refused and then successfully appealed within the time required to travel from the US.

Freedom of speech in Australia

Human rights proponents and community members have called on the Minister to grant Manning’s visa. Amnesty International argues:

Australians have a right to engage in important discussions about human rights. Silencing Chelsea Manning is a denial of her right to freedom of expression.

The Castan Centre for Human Rights notes that Manning pled guilty to the crimes she was convicted of and that her contrition and contributions to public debate demonstrate that she satisfies the character test:

In contrast, those calling for Manning to be denied entry to New Zealand have argued that moves to deny her a visa are not related to freedom of speech.

New Zealand National Party immigration spokesperson and former minister Michael Woodhouse said

This is not a question of free speech. Manning is free absolutely to say whatever she wants but she’s not free to travel wherever she wants. Other countries have already denied her entry.

There is no express right to free speech in Australia. However, the High Court has held that freedom of political communication should be implied, because the Constitution provides for a system of representative government.

The implied right to freedom of political communication does not operate as a personal right. Instead, it acts as a constraint on legislative and executive power.

In practice, this means that courts are required to determine whether the law is reasonably appropriate and adapted to serve a legitimate end in a manner that is compatible with “the system of government prescribed by the Constitution”.

This is in stark contrast to other countries where free speech is afforded stronger protection. The First Amendment of the US Constitution provides explicit and largely unconstrained freedom of speech. In the United States, free speech is afforded much stronger protection by the Constitution.

Freedom of opinion and expression are also protected across the broad spectrum of international human rights laws, as necessary preconditions for the realisation of other human rights.

Therefore, as in several other areas, there is a disjuncture between Australia’s international legal obligations and the extent to which these are incorporated in domestic law. The limited explicit protection of free speech in Australia is unlikely to afford much in the way of formal protection for Manning.

Public and political perceptions of free speech

Despite the limited legal protection of free speech in Australia, the notion that free speech is an important part of a thriving liberal democracy is uncontroversial. What is more contentious is the appropriate balance between protecting freedom of expression and ideas, and protecting individuals from the harm certain kinds of speech might engender.

Denying Manning the opportunity to enter Australia to undertake her speaking tour seems at odds with the Australian government’s purported commitment to freedom of expression.

Read more: Free speech? It depends who you are, in Peter Dutton's view

This commitment has been on public display in recent times, perhaps most notably in supporting “robust” and hurtful public debate around the marriage equality plebiscite, and in attempts to repeal s18C of the Racial Discrimination Act 1975 (Cth).

Other “free speech” visa cases have received global attention in recent times. For example, “alt-right” commentators Lauren Southern and Stefan Molyneux were recently permitted to enter Australia for provocative speaking engagements. Southern had previously been denied a UK visa on the grounds that her visit would not be in the public interest, with Southern claiming she had been told that she was “banned for racism”.

Protests were held in Melbourne last year over the speaking tour of Milo Yiannopoulos. His visit also attracted public demonstrations from far-right Australian groups like the United Patriots Front.

Of course Manning’s case is distinguished by her criminal record. The minister is free to use his discretion to refuse her entry. But it is not clear what harms her free expression might cause in Australia, particularly if we contrast her case with those above.

“Good character” decisions are not made in a political vacuum. They are no doubt informed by the political exigencies of the day. Perhaps, in Manning’s case, Australia’s US alliance is a factor in the likely visa refusal.