Dan Tehan (Wannon, Liberal Party, Shadow Minister for Immigration and Citizenship) Share this | Hansard source

I move the amendment circulated in my name:

(1) Page 7 (after line 33), at the end of the Bill, add:

Schedule 2 — Strengthening the character test

Migration Act 1958

1 Before subsection 5C(1)

Insert:

Character concern

2 After paragraph 5C(1)(a)

Insert:

(aa) the non-citizen has been convicted of a designated offence (see subsections (3) to (7)); or

3 Before subsection 5C(2)

Insert:

Substantial criminal record

4 At the end of section 5C

Add:

Designated offences general

(3) For the purposes of subsection (1), a designated offence is an offence against a law in force in Australia, or a foreign country, in relation to which the following conditions are satisfied:

(a) one or more of the physical elements of the offence involves:

(i) violence, or a threat of violence, against a person (see subsections (4) and (5)); or

(ii) non-consensual conduct of a sexual nature, including (without limitation) sexual assault and the non-consensual commission of an act of indecency or sharing of an intimate image; or

(iii) breaching an order made by a court or tribunal for the personal protection of another person; or

(iv) using or possessing a weapon (as defined by subsection (6)); or

(v) aiding, abetting, counselling or procuring the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv); or

(vi) inducing the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv), whether through threats or promises or otherwise; or

(vii) being in any way (directly or indirectly) knowingly concerned in, or a party to, the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv); or

(viii) conspiring with others to commit an offence that is a designated offence because of any of subparagraphs (i) to (iv);

(b) for an offence against a law in force in Australia—the offence is punishable by:

(i) imprisonment for life; or

(ii) imprisonment for a fixed term of not less than 2 years; or

(iii) imprisonment for a maximum term of not less than 2 years;

(c) for an offence against a law in force in a foreign country—if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory:

(i) the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory; and

(ii) the Territory offence would have been punishable as mentioned in subparagraph (b)(i), (ii) or (iii).

Designated offences violence against a person

(4) For the purposes of subparagraph (3)(a)(i), violence against a person includes an act constituting an offence of murder, manslaughter, kidnapping, aggravated burglary, robbery or assault, or an equivalent offence.

(5) Despite subparagraph (3)(a)(i) and subsection (4), 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:

(a) causes or substantially contributes to:

(i) bodily harm to another person; or

(ii) harm to another person's mental health (within the meaning of the Criminal Code);

whether temporary or permanent; or

(b) involves family violence (as defined by subsection 4AB(1) of the Family Law Act 1975) by the person in relation to another person.

Designated offences possessing a weapon

(6) For the purposes of subparagraph (3)(a)(iv), a weapon includes:

(a) a thing made or adapted for use for inflicting bodily injury; and

(b) 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 bodily injury.

Designated offences ancillary offences

(7) Despite subparagraphs (3)(a)(v) to (viii), a person's conviction for an offence covered by any of those subparagraphs because of the operation of subparagraph (3)(a)(i) (as affected by subsection (4)), 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 subsection (5).

5 After paragraph 501(6)(a)

Insert:

(aaa) the person has been convicted of a designated offence (see subsections (7AA) to (7AE)); or

6 After subsection 501(7)

Insert:

Designated offences general

(7AA) For the purposes of the character test, a designated offence is an offence against a law in force in Australia, or a foreign country, in relation to which the following conditions are satisfied:

(a) one or more of the physical elements of the offence involves:

(i) violence, or a threat of violence, against a person (see subsections (7AB) and (7AC)); or

(ii) non-consensual conduct of a sexual nature, including (without limitation) sexual assault and the non-consensual commission of an act of indecency or sharing of an intimate image; or

(iii) breaching an order made by a court or tribunal for the personal protection of another person; or

(iv) using or possessing a weapon (as defined by subsection (7AD)); or

(v) aiding, abetting, counselling or procuring the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv); or

(vi) inducing the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv), whether through threats or promises or otherwise; or

(vii) being in any way (directly or indirectly) knowingly concerned in, or a party to, the commission of an offence that is a designated offence because of any of subparagraphs (i) to (iv); or

(viii) conspiring with others to commit an offence that is a designated offence because of any of subparagraphs (i) to (iv);

(b) for an offence against a law in force in Australia—the offence is punishable by:

(i) imprisonment for life; or

(ii) imprisonment for a fixed term of not less than 2 years; or

(iii) imprisonment for a maximum term of not less than 2 years;

(c) for an offence against a law in force in a foreign country—if it were assumed that the act or omission constituting the offence had taken place in the Australian Capital Territory:

(i) the act or omission would have constituted an offence (the Territory offence) against a law in force in that Territory; and

(ii) the Territory offence would have been punishable as mentioned in subparagraph (b)(i), (ii) or (iii).

Designated offences violence against a person

(7AB) For the purposes of subparagraph (7AA)(a)(i), violence against a person includes an act constituting an offence of murder, manslaughter, kidnapping, aggravated burglary, robbery or assault, or an equivalent offence.

(7AC) Despite subparagraph (7AA)(a)(i) and subsection (7AB), 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:

(a) causes or substantially contributes to:

(i) bodily harm to another person; or

(ii) harm to another person's mental health (within the meaning of the Criminal Code);

whether temporary or permanent; or

(b) involves family violence (as defined by subsection 4AB(1) of the Family Law Act 1975) by the person in relation to another person.

Designated offences possessing a weapon

(7AD) For the purposes of subparagraph (7AA)(a)(iv), a weapon includes:

(a) a thing made or adapted for use for inflicting bodily injury; and

(b) 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 bodily injury.

Designated offences ancillary offences

(7AE) Despite subparagraphs (7AA)(a)(v) to (viii), a person's conviction for an offence covered by any of those subparagraphs because of the operation of subparagraph (7AA)(a)(i) (as affected by subsection (7AB)), 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 subsection (7AC).

7 Application of amendments

(1) Paragraph 5C(1)(aa) of the Migration Act 1958, as in force on and after the commencement of this item, applies for the purposes of subsection 336E(2) of that Act in relation to a disclosure of identifying information that is made on or after that commencement.

(2) Paragraph 501(6)(aaa) of the Migration Act 1958, as in force on and after the commencement of this item, applies to:

(a) a decision to grant or refuse to grant a visa, if:

(i) the application for the visa was made before that commencement and had not been finally determined as at that commencement; or

(ii) the application for the visa is made on or after that commencement; and

(b) a decision made on or after that commencement to cancel a visa.

(3) The provisions of the Migration Act 1958 mentioned in subitems (1) and (2) apply as mentioned in those subitems in relation to a person whether the person committed or was convicted of the relevant designated offence before, on or after the commencement of this item.

I would like to add a couple of comments to the comments that I made earlier today. This amendment is a very sensible amendment. It gives the minister the ability to act in instances of domestic violence, sexual assault, murder, illegal possession of firearms. It is a very sensible amendment. We are supporting the government in their efforts to make sure that the character test can continue to operate in the form that we want it to, in the bipartisan way that it always has. There was a court case just before Christmas which changed the arrangements, and we have worked on a bipartisan basis to support the government to fix the decision that was made by the court so it operates how this parliament intends it to operate. In doing that, we have also reached out to the government and said, 'Now is a real opportunity for you to take some sensible measures to also build on and further the character test.'

In many ways, this is a character test of the Prime Minister and his government. Are you prepared to take the necessary decisions to keep this nation safe, to keep the Australian people safe, or will you take the option of ignoring the bipartisan approach that we're extending to give the minister greater powers to be able to take decisions to ensure that those who have committed family violence, those who have committed sexual assaults, are asked to leave this country immediately? It's a good test for the minister, because, as the member for Riverina has said, what we've seen today is a chipping away at Operation Sovereign Borders, a chipping away at keeping our borders safe and secure, a chipping away at making sure that our immigration system is one run with integrity. What we have now is an opportunity for the minister to say: 'No. Even though I stood up at an ALP conference and opposed boat turn-backs, I understand that, with governing, comes responsibility; with governing, comes serious decision-making; with governing, comes the need to act in the national interest to keep our nation safe, to make sure that anyone here on a visa who commits family violence, sexual assault or a firearm offence will be booted from this nation—they have broken the law and they will be dealt with accordingly.'

We are going to support the government in ensuring that the approach that's taken to the character test is consistent with what this parliament has always envisaged it being consistent with. But we're also, through this amendment, saying to the government: 'We think that there are some very common-sense steps that you can take also to build on the character test to give you the option—you don't have to take it up—of being able to keep our nation safer by booting people who have committed domestic violence, sexual assaults, firearm offences. It will give you more bows to be able to take the necessary steps to keep this nation safe.'

Minister, I hope that you will take up this bipartisan offering. You've voted for the equivalent of this amendment before in this House. Hopefully you will do the same again.

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