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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (STRENGTHENING THE CHARACTER TEST)
BILL 2019
SUPPLEMENTARY EXPLANATORY MEMORANDUM
Amendments and New Clauses to be Moved on Behalf of the Government
(Circulated by authority of the Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs, the Hon. Alex Hawke MP)
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AMENDMENTS TO THE MIGRATION AMENDMENT (STRENGTHENING THE
CHARACTER TEST) BILL 2019 (QJ105)
OUTLINE
The government amendments to the Migration Amendment (Strengthening the Character Test)
Bill 2019 (the Bill) will refine the scope of what constitutes a designated offence, as defined
in subsections 501(7AA) to (7AC) of the Bill (as affected by these amendments).
The amendments will clarify that, for the purposes of an offence with one or more physical
elements that involve violence against a person, a person's conviction for an offence of
common assault, or equivalent, will not be taken to be a conviction for a designated offence,
unless the act constituting the offence:
• causes or substantially contributes to bodily harm to another person, or harm to another
person's mental health (within the meaning of the Criminal Code), in both cases either
temporarily or permanently; or
• involves family violence (as defined by subsection 4AB(1) of the Family Law Act 1975)
by the person in relation to another person.
The amendments also ensure that equivalent amendments are made to the definition of
character concern in section 5C of the Migration Act 1958 (the Migration Act), so that the
definition aligns with the definition in subsections 501(7AA) to (7AC).
FINANCIAL IMPACT STATEMENT
These government amendments will have a low financial impact.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
government amendments to this Bill and assesses that the amendments are compatible with
Australia's human rights obligations. A copy of the Statement of Compatibility with Human
Rights is at Attachment A.
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AMENDMENTS TO THE MIGRATION AMENDMENT (STRENGTHENING THE
CHARACTER TEST) BILL 2019 (QJ105)
NOTES ON AMENDMENTS
Amendments (1)-(5)
1. Amendments (1)-(5) make amendments to items 2 and 4 of Schedule 1 to the Bill to
align the definition of character concern in subsection 5C(3) of the Migration Act with
the proposed subsections 501(7AA) to (7AC) as inserted into the Migration Act by
item 6 of Schedule 1 to the Bill, as amended by Amendments (6)-(10).
2. As noted in the Explanatory Memorandum to the Bill, current section 5C of the
Migration Act 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.
3. The amendments made to the Bill by Amendments (1)-(5) are substantively identical
to those made in Amendments (6)-(10), and the explanation for Amendments (6)-(10)
are set out below. The same reasoning detailed below applies to Amendments (1)-(5).
Amendment (6) - Schedule 1, item 5, page 5 (lines 3 and 4)
4. This amendment omits from Schedule 1, item 5, page 5 (lines 3 and 4) of the Bill the
language "(as defined by subsection (7AA))", and instead substitutes "(see subsections
(7AA) to (7AC))".
5. The purpose of this amendment is to clarify that the term designated offence will now
be defined by proposed subsections 501(7AA) to (7AC).
Amendment (7) - Schedule 1, item 6, page 5 (line 7)
6. This amendment omits from Schedule 1, item 6, page 5 (line 7) of the Bill the heading
to proposed subsection 501(7AA), and instead substitutes the heading "Designated
offences--general".
7. This amendment is consequential to the amendments made by Amendment 9, which
clarify the scope of a designated offence as it relates specifically to designated offences
involving violence against a person. The new heading is to clarify that proposed
subsection 501(7AA) addresses designated offences generally.
Amendment (8) - Schedule 1, item 6, page 5 (lines 12 to 14)
8. This amendment omits proposed subparagraph 501(7AA)(a)(i) from Schedule 1,
item 6, page 5 (lines 12 to 14) of the Bill, and instead substitutes the language "violence,
or a threat of violence, against a person (see subsections (7AAA) and (7AAB)); or".
9. The purpose of this amendment is consequential to the amendments made by
Amendment 9. The amendment clarifies the scope of a designated offence, where one
or more of the physical elements of the offence involves violence or a threat of violence
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against a person, by reference to proposed subsections 501(7AAA) and (7AAB), as
inserted by Amendment 9.
Amendment (9) - Schedule 1, item 6, page 6 (after line 15)
10. This amendment inserts new proposed subsections 501(7AAA) and (7AAB) after
subsection 501(7AA) in item 6 of Schedule 1 to the Bill to clarify the scope of a
designated offence as it relates specifically to designated offences involving violence
against a person.
11. Proposed subsection 501(7AAA) provides that, for the purposes of proposed
subparagraph 501(7AA)(a)(i) in item 6 of Schedule 1 to the Bill, violence against a
person includes an act constituting an offence of murder, manslaughter, kidnapping,
aggravated burglary, robbery or assault, or an equivalent offence.
12. The purpose of this amendment is to provide a non-exhaustive list of the types of acts
that would constitute violence against a person, noting that the terminology for such
offences may vary depending on the State or Territory where the offence occurs.
13. Proposed subsection 501(7AAB) provides that, despite proposed subparagraph
501(7AA)(a)(i) and subsection 501(7AAA), a person's conviction for an offence of
common assault, or an equivalent offence, is taken not to be a conviction for a
designated offence unless the act constituting the offence for which the person was
convicted:
• causes or substantially contributes to bodily harm to another person, or harm to
another person's mental health (within the meaning of the Criminal Code), in
both cases either temporarily or permanently; or
• involves family violence (as defined by subsection 4AB(1) of the Family Law
Act 1975) by the person in relation to another person.
14. Section 146.1 of the Criminal Code defines harm to a person's mental health as
including significant psychological harm to the person, but not including a reference to
ordinary emotional reactions (for example, distress, grief, fear or anger).
15. Subsection 4AB(1) of the Family Law Act 1975 provides that family violence means
violent, threatening or other behaviour by a person that coerces or controls a member
of the person's family (the family member), or causes the family member to be fearful.
16. The effect of this amendment is to clarify that a conviction for an offence of common
assault, or equivalent, is nevertheless taken not to be a conviction for a designated
offence unless the act constituting the offence causes or substantially contributes to
either temporary or permanent bodily harm or harm to another person's mental health,
or involves family violence.
17. The purpose of this amendment is to ensure that low-level assaults, including threats,
that neither cause nor contribute to a person's bodily harm or harm to a person's mental
health, and do not involve family violence, will not fall within the scope of a designated
offence. This means that a person convicted of such an assault will not fail to pass the
character test as a result of that conviction, as they will not have been convicted of a
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designated offence. However, a conviction for common assault, where the act
constituting the offence involves family violence, will be a designated offence
irrespective of whether such assault causes bodily harm or harm to a person's mental
health. This aligns with the Government's policy position for combatting family
violence.
Amendment (10) - Schedule 1, item 6, page 6 (after line 21)
18. This amendment inserts proposed subsection 501(7AC) after subsection 501(7AB) in
Schedule 1, item 6 to the Bill. It provides that, despite subparagraphs 501(7AA)(a)(v)
to (viii), a person's conviction for an offence covered by any of those subparagraphs
because of the operation of subparagraph 501(7AA)(a)(i) (as affected by proposed
subsection 501(7AAA)), in relation to the commission of an offence (the primary
offence) by another person, is taken not to be a conviction for a designated offence if,
were the other person to be convicted of the primary offence, that conviction would not
be a conviction for a designated offence because of the operation of proposed
subsection 501(7AAB).
19. The purpose of this proposed subsection is to ensure that, where a person is convicted
of an offence where one or more of the physical elements involves violence against a
person, but such offence is taken not to be a designated offence by operation of
proposed subsection 501(7AAB) (as described above), then a person convicted of any
ancillary offence (as set out in subparagraphs 501(7AA)(a)(v) to (viii)) is also not taken
to have been convicted of a designated offence. This means that the person would not
fail to pass the character test as a result.
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Attachment A
Statement of Compatibility with Human Rights
Prepared in accordance with part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Strengthening the Character Test) Bill 2019
The government amendments to the Bill are compatible with the human rights and freedoms
recognised or declared in the international instruments listed in section 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011.
Overview of the Legislative amendment
The Migration Amendment (Strengthening the Character Test) Bill 2019 (the Bill) amends
section 501 and section 5C of the Migration Act 1958 (the Migration Act) to create a
discretionary power to consider visa refusal or cancellation on character based grounds if a
person has been convicted, either in Australia or overseas, of certain designated offences,
regardless of the actual sentence imposed. The amendments in the Bill address gaps in the
current character test to capture those who are convicted of a serious criminal offence, pose a
risk to the Australian community, but receive less than 12 months' imprisonment for their
crimes. The amendments in the Bill acknowledge that certain serious criminal offences (the
designated offences) have a significant impact on victims, and that non-citizens who commit
these crimes, regardless of the sentence imposed, should be appropriately considered for visa
refusal or cancellation.
To fail the character test under the designated offence ground, the individual would need to
be convicted of an offence that is punishable by at least a maximum term of not less than two
years' imprisonment for an offence involving:
• violence against a person, or
• non-consensual conduct of a sexual nature, or
• breaching an order made by a court or tribunal for the personal protection of another
person, or
• using or possessing a weapon, or
• procuring, or assisting in any way with one of these designated crimes.
The government amendments will clarify that, for the purposes of an offence with one or more
physical elements that involve violence against a person, a person's conviction for an offence
of common assault, or equivalent, will not be taken to be a conviction for a designated offence,
unless the act constituting the offence:
• causes or substantially contributes to bodily harm to another person, or harm to another
person's mental health (within the meaning of the Criminal Code), in both cases either
temporarily or permanently; or
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• involves family violence (as defined by subsection 4AB(1) of the Family Law Act 1975)
by the person in relation to another person.
The amendment also ensures that equivalent amendments are made to the definition of
character concern in section 5C of the Migration Act.
The amendment is aimed at providing clarity on the circumstances in which offences
involving violence against a person are taken to be designated offences. The amendments
ensure that convictions for low-level assaults that neither cause nor contribute to a person's
bodily harm or harm to a person's mental health (whether temporarily or permanently), and
do not involve family violence, will not fall within the scope of a designated offence.
Any common assault offence that involves family violence will be taken to be a designated
offence regardless of whether the offence causes bodily harm or harm to a person's mental
health. This aligns with the Government's policy position for combatting family violence.
These amendments address concerns that the designated offences ground may unintentionally
capture low-level offending, including concerns raised in the Senate Standing Committee on
Legal and Constitutional Affairs inquiries and reports of 17 December 2018 and
13 September 2019.
Human rights implications
The human rights implications of the Bill were outlined in the Statement of Compatibility
with Human Rights that accompanied the Bill.
The government amendments refine the scope of what constitutes a designated offence to
avoid capturing low-level offending. The effect of these amendments is that the designated
offence ground will apply in more limited circumstances and therefore will affect fewer
persons compared to the amendments in the original Bill as some lower-level offending will
not enliven this ground for the purpose of considering whether to refuse or cancel a person's
visa.
To the extent that the measures in the Bill may have engaged or limited the rights of persons
whose visas were subject to being considered for refusal or cancellation because of a
conviction for a designated offence involving some forms of lower-level offending, such as
rights relating to liberty, respect for the family and privacy, those persons' rights will no
longer be engaged or limited as a result of these government amendments.
Conclusion
The government amendments are compatible with human rights.
The Hon. Alex Hawke MP, Minister for Immigration, Citizenship, Migrant Services
and Multicultural Affairs
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