Senate

Supplmentary Explanatory Memorandum relating to sheet JC579

(Circulated by authority of the Minister for Immigration, Citizenship and Multicultural Affairs, the Hon. David Coleman MP)

Notes on Individual Amendments

Clause 1

1. This clause inserts Schedule 11 at the end of the Bill.

SCHEDULE 11 - Amendments

Amendment 1 - Before subsection 5C(1)

1. This Amendment inserts the words Character concern as a heading to current subsection 5C(1) of the Migration Act. This heading makes it clear that subsection 5C(1) describes the definition of character concern.

Amendment 2 - After paragraph 5C(1)(a)

2. This Amendment inserts new paragraph 5C(1)(aa) which makes it clear that a non-citizen who has been convicted of one of the offences set out in this Act will be of character concern. The relevant offences are set out in new subsection 5C(3) for the purposes of the definition of character concern, and discussed in detail at Amendment 6 of this Schedule.

Amendment 3 - Before subsection 5C(2)

3. This Amendment inserts the words Substantial criminal record as a heading to subsection 5C(2). This heading makes it clear that subsection 5C(2) describes the definition of substantial criminal record.

Amendment 4 - At the end of section 5C

4. Current section 5C defines the term character concern, and provides the circumstances under which a non-citizen is of character concern. The term character concern is used in relation to the meaning of personal identifier in subsection 5A(3) of the Migration Act and in relation to permitted disclosures of identifying information in subsection 336E(2) of the Migration Act.

5. Amendment 4 inserts new subsections 5C(3) and 5C(4) to the existing definition of character concern, and defines designated offence for the purposes of subsection 5C(1).

6. New paragraphs 5C(3)(a)-(c) describe the conditions that must be satisfied in order for an offence to be considered a designated offence. These conditions are discussed in detail at Amendment 6 of this Schedule.

7. New subsection 5C(4) provides the definition of a weapon for the purposes of subparagraph 5C(3)(a)(iv). This definition is discussed in detail at Amendment 6 of this Schedule.

8. The intention of this Amendment is to align the definition of character concern in subsection 5C of the Migration Act with new subsection 501(7AA), as inserted by Amendment 6 of this Schedule.

Amendment 5 - After paragraph 501(6)(a)

9. This Amendment inserts new paragraph 501(6)(aaa) into the part of the Migration Act known as the character test. The existing character test in subsection 501(6) of the Migration Act sets out the circumstances under which a non-citizen does not pass the character test.

10. New paragraph 501(6)(aaa) provides that a non-citizen does not pass the character test if the non-citizen is convicted of a designated offence. A designated offence is defined by new subsection 501(7AA), as inserted by Amendment 6 of this Schedule.

11. The intention of this Amendment is to ensure that a non-citizen who has been convicted of a designated offence is included in a class of persons who do not pass the character test.

Amendment 6 - After subsection 501(7)

12. This Amendment inserts new subsection 501(7AA) into Part 9 of Division 2 of the Migration Act. This new subsection sets out the elements of a designated offence for the purposes of the character test in subsection 501(6) of the Migration Act.

13. New subsection 501(7AA) provides that a designated offence is an offence against a law in Australia or a law in a foreign country that satisfies the conditions set out in new paragraphs 501(7AA)(a)-(c).

14. New paragraph 501(7AA)(a) sets out a requirement for the offence to involve one or more of the physical elements set out in new subparagraphs 501(7AA)(a)(i)-(viii).

15. New subparagraph 501(7AA)(a)(i) provides that one of the physical elements that may form the basis of a designated offence involves violence against a person. New subparagraph 501(7AA)(a)(i) sets out some examples of types of violent offences that are intended to be captured. This list includes murder, manslaughter, kidnapping, assault aggravated burglary and the threat of violence.

16. The intention of new subparagraph 501(7AA)(a)(i) is to provide examples of offences that include violence against a person, but it is not intended to limit the offences that involve a physical element of violence against a person from being a designated offence for the purposes of the character test. Other offences where a physical element of the offence involves violence against a person but which are not listed in new subparagraph 501(7AA)(a)(i), or an offence similar to those listed but identified differently in the jurisdiction it was committed in, are intended to be captured by this subparagraph where the conditions in new paragraphs 501(7AA)(b) and (c) are also satisfied.

17. New subparagraph 501(7AA)(a)(ii) provides that one of the physical elements that may form the basis of' a designated offence involves non-consensual conduct of a sexual nature. New subparagraph 501(7AA)(a)(ii) sets out some examples of offences that involve non-consensual conduct of a sexual nature that are intended to be captured. This includes sexual assault, and the non-consensual commission of an act of indecency or sharing of an intimate image.

18. The intention of new subparagraph 501(7AA)(a)(ii) is to provide examples of offences that include non-consensual conduct of a sexual nature, but it is not intended to limit offences that involve non-consensual conduct of a sexual nature from being a designated offence for the purposes of the character test. Other offences where a physical element of the offence involves non-consensual conduct of a sexual nature but which are not listed in new subparagraph 501(7AA)(a)(ii), or an offence similar to those listed but identified differently in the jurisdiction it was committed in, are intended to be captured by this subparagraph where the conditions in paragraphs 501(7AA)(b) and (c) are also satisfied.

19. New subparagraph 501(7AA)(a)(iii) provides that one of the physical elements that may form the basis of a designated offence involves breaching an order made by a court or tribunal for the personal protection of another person. This includes any order of such nature regardless of how it is described in the jurisdiction it was ordered.

20. The intention of new subparagraph 501(7AA)(a)(iii) is to provide grounds for the breaching of an order made by a court or a tribunal for the personal protection of another person to be a physical element of a designated offence for the purposes of the character test. The nature of the breach is not intended to be material in determining whether the physical element has been satisfied, the breach of the order in and of itself should be considered as satisfying the physical element required for a designated offence to have occurred, where the conditions in paragraphs 501(7AA)(b) and (c) are also satisfied.

21. New subparagraph 501(7AA)(a)(iv) provides that one of the physical elements for a designated offence involves the use or possession of a weapon. This includes any offence involving the use or possession of a weapon, regardless of how it is described in the jurisdiction in which the offence was committed.

22. The term weapon is defined is defined for the purposes of 501(7AA)(a)(iv) by subsection 501(7AB) of the Act and is discussed in detail at paragraphs 45 - 48 of this Schedule.

23. The intention of new subparagraph 501(7AA)(a)(iv) is to provide that, where a physical element of an offence involves use or possession of a weapon, this will be a designated offences for the purposes of the character test, where the conditions in paragraphs 501(7AA)(b) and (c) are also satisfied.

24. New subparagraphs 501(7AA)(a)(v)-(viii) provide that if an offence is a designated offence as a result of new subparagraphs 501(7AA)(a)(i)-(iv), and a non-citizen is involved in:

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aiding, abetting, counselling or procuring the commission of such a designated offence (new subparagraph 501(7AA)(a)(v))

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inducing the commission of such a designated offence through threats or promises or otherwise (new subparagraph 501(7AA)(a)(vi))

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being in any way, directly or indirectly, knowingly concerned in or otherwise a party to the commission of such a designated offence (new subparagraph 501(7AA)(a)(vii)), or

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conspiring with others to commit such a designated offence (new subparagraph 501(7AA)(a)(viii))

Then those actions will also form the requisite physical element for a designated offence.

25. The intention of new subparagraphs 501(7AA)(a)(v)-(viii) is to ensure that not only those non-citizens that commit designated offences, as specified in new subparagraphs 501(7AA)(a)(i)-(iv), but also those non-citizens who commit certain ancillary offences in respect of the commission of such designated offences, will not pass the character test , where the conditions in paragraphs 501(7AA)(b) and (c) are also satisfied.

26. It intends to capture those non-citizens with links to those activities that pose a risk to the Australian community, such as (but not limited to) organised crime, outlaw motor cycle gangs or those who, without committing the physical elements as set out in subparagraphs 501(7AA)(a)(i)-(iv), have a level of involvement in the commission of a designated offence that gives rise to an offence in and of itself. This makes it clear that the intention is that non-citizens who are criminals or who are associated with criminal activity should not remain in, or be allowed to enter, Australia.

27. New paragraph 501(7AA)(b) sets out the second of the conditions that must be satisfied in order for a designated offence to have occurred. This operates in conjunction with new paragraph 501(7AA)(a) and new paragraph 501(7AA)(c).

28. New paragraph 501(7AA)(b) provides that, where an offence is against a law in force in Australia, it must be punishable by one of the punishments set out in new subparagraphs 501(7AA)(b)(i)-(iii) to be considered a designated offence:

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Imprisonment for life (501(7AA)(b)(i)); or

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Imprisonment for a fixed term of not less than 2 years (501(7AA)(b)(ii)); or

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Imprisonment for a maximum term of not less than 2 years) (501(7AA)(b)(iii)).

29. The purpose of new paragraph 501(7AA)(b) is to provide for a minimum standard of punishment for an offence to be considered a designated offence for the purposes of the character test.

30. The intention of new paragraph 501(7AA)(b) is to make it clear that a designated offence must be a serious offence, and not merely a minor or trifling offence. These provisions acknowledge that the visa cancellation or refusal of a non-citizen due to having committed a designated offence for the purposes of the character test does have lasting consequences for non-citizens, including permanent exclusion from Australia in some cases.

31. It also sets an objective standard for the determination of what constitutes a designated offence, which relies upon established existing criminal law and law enforcement processes in states and territories to determine the seriousness of a given offence.

32. This will ensure that discretionary visa cancellation and refusal decisions are based on objective standards of criminality and seriousness.

33. New paragraph 501(7AA)(c) provides the circumstances in which an offence that is against a law in force in a foreign country is taken to be a designated offence, where the conditions in paragraphs 501(7AA)(a) and (b) are also satisfied.

34. Such an offence is considered a designated offence if it were assumed that the act or omission that formed the basis of the offence occurred in the Australian Capital Territory and:

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the act or omission that formed the basis of the offence would have also been an offence against a law in force in the Australian Capital Territory (501(7AA)(c)(i)); and

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the offence, if committed in the Australian Capital Territory, would have been punishable as set out in new subparagraphs 501(7AA)(b)(i)-(iii) (501(7AA)(c)(ii)).

35. The intention of these amendments is to ensure that an offence that is considered a designated offence is an offence that is equal to an offence that would be considered a serious crime in Australia.

36. This will ensure that discretionary decisions to cancel or refuse a visa on the basis of a non-citizen having committed a designated offence in a foreign country are based on an objective standards, and in line with the Australian community's understanding of a serious offence.

37. New paragraph 501(7AB) defines weapon for the purposes of subparagraph (7AA)(a)(iv).

38. The purpose of new paragraph 501(7AB) is to clarify what may constitute a weapon under new subparagraph 501(7AB)(a)(iv), which provides that the use or possession of a weapon may be the physical element for a designated offence.

39. Paragraph 501(7AB) provides that a weapon includes:

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A thing made or adapted for use for inflicting violence or injury on a person (501(7AB)(a)); and

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A thing where the person who has the thing intends or threatens to use the thing, or intends that the thing be used, to inflict violence or injury to a person (501(7AB)(b))

40. The intention of new paragraphs 501(7AB)(a) and (b) is to make clear that a weapon, for the purposes of a designated offence includes an object that is readily identifiable as a weapon, for example, a gun (501(7AB)(a)), or an object that is not necessarily readily identifiable as a weapon, but it is the intention of the person possessing it to use it as a weapon, for example, a rock that a person intends to use to hit someone on the head (501(7AB)(b)).

41. The purpose of new subparagraphs 501(7AB)(a) and (b) is to make ensure that a weapon, for the purposes of new subparagraph 501(7AB)(a)(iv), is not limited to objects that are ordinarily used as weapons but includes any object which the person who has the object intends to use to cause violence or injury to another person.

Amendment 7 - Application of Amendments

42. Amendment 7 sets out the application provisions that relate to Amendments 1 to 6 of this Schedule.

43. SubAmendment 7(1) provides that the amendments made by Amendments 1-4 of this Schedule apply in relation to the disclosure of identifying information for the purposes of subsection 336E(2) of the Migration Act on or after the commencement of those Amendments.

44. SubAmendment 7(2) provides that the amendments made by Amendment 5 and 6 of this Schedule apply in relation to a decision to grant or refuse to grant a visa:

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If the application for the visa was made but not finally determined before the commencement of this Amendment; or

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If the application for the visa is made on or after the commencement of this Amendment.

45. SubAmendment 7(2) also provides that the amendments made by Amendment 5 of this Schedule apply to a decision made to cancel a visa on or after the commencement of this Amendment.

46. SubAmendment 7(3) provides that the amendments made by Amendments 1-6 of this Schedule apply as mentioned in subAmendments 7(1) and 7(2) whether the person committed or was convicted of the relevant designated offence before, on, or after the commencement of Amendment 7.