Ghosts of the past: rethinking spent convictions in migration character decisions under s 501 of the Migration Act 1958 (Cth)

This article critically examines the exclusion of migration decisions from Australia’s spent convictions scheme, focusing on character cancellations and refusals under s 501 of the Migration Act 1958 (Cth). While Part VIIC of the Crimes Act 1914 (Cth) reflects a legislative commitment to rehabilitation by shielding old, minor convictions from consideration, s 85ZZH(d) expressly exempts migration decisions from this protection. The article argues that this exemption undermines administrative law principles of fairness, rationality, and consistency, and leads to unjust outcomes – particularly for long-term residents facing deportation due solely to spent offences. Through doctrinal, empirical, and policy analysis, supported by case law including Frugtniet and Lesianawai, the article proposes legislative reform to ensure that spent convictions are no longer used in character assessments under the Migration Act. Aligning migration law with rehabilitative principles would enhance justice, promote reintegration, and restore coherence to the broader legal framework governing criminal history and administrative decision-making in Australia.