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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020-2021
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment (Strengthening
the Character Test) Bill 2021
No. , 2021
(Home Affairs)
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
No. , 2021
Migration Amendment (Strengthening the Character Test) Bill 2021
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Migration Act 1958
3
No. , 2021
Migration Amendment (Strengthening the Character Test) Bill 2021
1
A Bill for an Act to amend the Migration Act 1958,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Migration Amendment (Strengthening the
5
Character Test) Act 2021
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Migration Amendment (Strengthening the Character Test) Bill 2021
No. , 2021
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments
Schedule 1
No. , 2021
Migration Amendment (Strengthening the Character Test) Bill 2021
3
Schedule 1--Amendments
1
2
Migration Act 1958
3
1 Before subsection 5C(1)
4
Insert:
5
Character concern
6
2 After paragraph 5C(1)(a)
7
Insert:
8
(aa) the non-citizen has been convicted of a designated offence
9
(see subsections (3) to (7)); or
10
3 Before subsection 5C(2)
11
Insert:
12
Substantial criminal record
13
4 At the end of section 5C
14
Add:
15
Designated offences--general
16
(3) For the purposes of subsection (1), a
designated offence
is an
17
offence against a law in force in Australia, or a foreign country, in
18
relation to which the following conditions are satisfied:
19
(a) one or more of the physical elements of the offence involves:
20
(i) violence, or a threat of violence, against a person (see
21
subsections (4) and (5)); or
22
(ii) non-consensual conduct of a sexual nature, including
23
(without limitation) sexual assault and the
24
non-consensual commission of an act of indecency or
25
sharing of an intimate image; or
26
(iii) breaching an order made by a court or tribunal for the
27
personal protection of another person; or
28
(iv) using or possessing a weapon (as defined by
29
subsection (6)); or
30
Schedule 1
Amendments
4
Migration Amendment (Strengthening the Character Test) Bill 2021
No. , 2021
(v) aiding, abetting, counselling or procuring the
1
commission of an offence that is a designated offence
2
because of any of subparagraphs (i) to (iv); or
3
(vi) inducing the commission of an offence that is a
4
designated offence because of any of subparagraphs (i)
5
to (iv), whether through threats or promises or
6
otherwise; or
7
(vii) being in any way (directly or indirectly) knowingly
8
concerned in, or a party to, the commission of an
9
offence that is a designated offence because of any of
10
subparagraphs (i) to (iv); or
11
(viii) conspiring with others to commit an offence that is a
12
designated offence because of any of subparagraphs (i)
13
to (iv);
14
(b) for an offence against a law in force in Australia--the
15
offence is punishable by:
16
(i) imprisonment for life; or
17
(ii) imprisonment for a fixed term of not less than 2 years;
18
or
19
(iii) imprisonment for a maximum term of not less than 2
20
years;
21
(c) for an offence against a law in force in a foreign country--if
22
it were assumed that the act or omission constituting the
23
offence had taken place in the Australian Capital Territory:
24
(i) the act or omission would have constituted an offence
25
(the
Territory offence
) against a law in force in that
26
Territory; and
27
(ii) the Territory offence would have been punishable as
28
mentioned in subparagraph (b)(i), (ii) or (iii).
29
Designated offences--violence against a person
30
(4) For the purposes of subparagraph (3)(a)(i),
violence against a
31
person
includes an act constituting an offence of murder,
32
manslaughter, kidnapping, aggravated burglary, robbery or assault,
33
or an equivalent offence.
34
(5) Despite subparagraph (3)(a)(i) and subsection (4), a person's
35
conviction for an offence of common assault, or an equivalent
36
offence, is taken not to be a conviction for a designated offence
37
Amendments
Schedule 1
No. , 2021
Migration Amendment (Strengthening the Character Test) Bill 2021
5
unless the act constituting the offence for which the person was
1
convicted:
2
(a) causes or substantially contributes to:
3
(i) bodily harm to another person; or
4
(ii) harm to another person's mental health (within the
5
meaning of the
Criminal Code
);
6
whether temporary or permanent; or
7
(b) involves family violence (as defined by subsection 4AB(1) of
8
the
Family Law Act 1975
) by the person in relation to another
9
person.
10
Designated offences--possessing a weapon
11
(6) For the purposes of subparagraph (3)(a)(iv), a
weapon
includes:
12
(a) a thing made or adapted for use for inflicting bodily injury;
13
and
14
(b) a thing where the person who has the thing intends or
15
threatens to use the thing, or intends that the thing be used, to
16
inflict bodily injury.
17
Designated offences--ancillary offences
18
(7) Despite subparagraphs (3)(a)(v) to (viii), a person's conviction for
19
an offence covered by any of those subparagraphs because of the
20
operation of subparagraph (3)(a)(i) (as affected by subsection (4)),
21
in relation to the commission of an offence (the
primary offence
)
22
by another person, is taken not to be a conviction for a designated
23
offence if, were the other person to be convicted of the primary
24
offence, that conviction would not be a conviction for a designated
25
offence because of the operation of subsection (5).
26
5 After paragraph 501(6)(a)
27
Insert:
28
(aaa) the person has been convicted of a designated offence (see
29
subsections (7AA) to (7AE)); or
30
6 After subsection 501(7)
31
Insert:
32
Schedule 1
Amendments
6
Migration Amendment (Strengthening the Character Test) Bill 2021
No. , 2021
Designated offences--general
1
(7AA) For the purposes of the character test, a
designated offence
is an
2
offence against a law in force in Australia, or a foreign country, in
3
relation to which the following conditions are satisfied:
4
(a) one or more of the physical elements of the offence involves:
5
(i) violence, or a threat of violence, against a person (see
6
subsections (7AB) and (7AC)); or
7
(ii) non-consensual conduct of a sexual nature, including
8
(without limitation) sexual assault and the
9
non-consensual commission of an act of indecency or
10
sharing of an intimate image; or
11
(iii) breaching an order made by a court or tribunal for the
12
personal protection of another person; or
13
(iv) using or possessing a weapon (as defined by
14
subsection (7AD)); or
15
(v) aiding, abetting, counselling or procuring the
16
commission of an offence that is a designated offence
17
because of any of subparagraphs (i) to (iv); or
18
(vi) inducing the commission of an offence that is a
19
designated offence because of any of subparagraphs (i)
20
to (iv), whether through threats or promises or
21
otherwise; or
22
(vii) being in any way (directly or indirectly) knowingly
23
concerned in, or a party to, the commission of an
24
offence that is a designated offence because of any of
25
subparagraphs (i) to (iv); or
26
(viii) conspiring with others to commit an offence that is a
27
designated offence because of any of subparagraphs (i)
28
to (iv);
29
(b) for an offence against a law in force in Australia--the
30
offence is punishable by:
31
(i) imprisonment for life; or
32
(ii) imprisonment for a fixed term of not less than 2 years;
33
or
34
(iii) imprisonment for a maximum term of not less than 2
35
years;
36
Amendments
Schedule 1
No. , 2021
Migration Amendment (Strengthening the Character Test) Bill 2021
7
(c) for an offence against a law in force in a foreign country--if
1
it were assumed that the act or omission constituting the
2
offence had taken place in the Australian Capital Territory:
3
(i) the act or omission would have constituted an offence
4
(the
Territory offence
) against a law in force in that
5
Territory; and
6
(ii) the Territory offence would have been punishable as
7
mentioned in subparagraph (b)(i), (ii) or (iii).
8
Designated offences--violence against a person
9
(7AB) For the purposes of subparagraph (7AA)(a)(i),
violence against a
10
person
includes an act constituting an offence of murder,
11
manslaughter, kidnapping, aggravated burglary, robbery or assault,
12
or an equivalent offence.
13
(7AC) Despite subparagraph (7AA)(a)(i) and subsection (7AB), a
14
person's conviction for an offence of common assault, or an
15
equivalent offence, is taken not to be a conviction for a designated
16
offence unless the act constituting the offence for which the person
17
was convicted:
18
(a) causes or substantially contributes to:
19
(i) bodily harm to another person; or
20
(ii) harm to another person's mental health (within the
21
meaning of the
Criminal Code
);
22
whether temporary or permanent; or
23
(b) involves family violence (as defined by subsection 4AB(1) of
24
the
Family Law Act 1975
) by the person in relation to another
25
person.
26
Designated offences--possessing a weapon
27
(7AD) For the purposes of subparagraph (7AA)(a)(iv), a
weapon
includes:
28
(a) a thing made or adapted for use for inflicting bodily injury;
29
and
30
(b) a thing where the person who has the thing intends or
31
threatens to use the thing, or intends that the thing be used, to
32
inflict bodily injury.
33
Schedule 1
Amendments
8
Migration Amendment (Strengthening the Character Test) Bill 2021
No. , 2021
Designated offences--ancillary offences
1
(7AE) Despite subparagraphs (7AA)(a)(v) to (viii), a person's conviction
2
for an offence covered by any of those subparagraphs because of
3
the operation of subparagraph (7AA)(a)(i) (as affected by
4
subsection (7AB)), in relation to the commission of an offence (the
5
primary offence
) by another person, is taken not to be a conviction
6
for a designated offence if, were the other person to be convicted
7
of the primary offence, that conviction would not be a conviction
8
for a designated offence because of the operation of
9
subsection (7AC).
10
7 Application of amendments
11
(1)
Paragraph 5C(1)(aa) of the
Migration Act 1958
, as in force on and after
12
the commencement of this item, applies for the purposes of
13
subsection 336E(2) of that Act in relation to a disclosure of identifying
14
information that is made on or after that commencement.
15
(2)
Paragraph 501(6)(aaa) of the
Migration Act 1958
, as in force on and
16
after the commencement of this item, applies to:
17
(a) a decision to grant or refuse to grant a visa, if:
18
(i) the application for the visa was made before that
19
commencement and had not been finally determined as
20
at that commencement; or
21
(ii) the application for the visa is made on or after that
22
commencement; and
23
(b) a decision made on or after that commencement to cancel a
24
visa.
25
(3)
The provisions of the
Migration Act 1958
mentioned in subitems (1)
26
and (2) apply as mentioned in those subitems in relation to a person
27
whether the person committed or was convicted of the relevant
28
designated offence before, on or after the commencement of this item.
29