James Paterson (Victoria, Liberal Party, Shadow Minister for Cyber Security) Share this | Hansard source

As I foreshadowed in my second reading speech on this bill, the opposition supports this legislation. We recognise the importance of it, following the decision of the full Federal Court in the Pearson case, and I agree with the minister that this is a longstanding bipartisan position in relation to aggregate sentences. It's important that the original intent of the parliament in legislating these provisions be reflected by updating the legislation, given the court case.

Having said that, we believe this is also an opportunity to even further extend the protections that Australians have against people on visas who commit violent offences. Consistent with the bill that was debated in the House in February last year, the Migration Amendment (Strengthening the Character Test) Bill 2021, introduced by the former government and supported at the time by the then Labor opposition, we believe that the minister should have additional powers. It will not be compulsory for the minister to exercise these powers; it will be up to the judgement of the minister. But it will widen the scope of the minister's power to protect Australians from people who commit very serious crimes but receive shorter sentences than are currently captured by the act.

To be clear about the style of the offences that will be captured, they include violence, or the threat of violence, against a person; non-consensual conduct of a sexual nature; breaching an order made by a court or tribunal for the personal protection of another person; using or possessing a weapon; and procuring, or assisting in any way in the commission of any of these designated offences. On any reading and any plain understanding of the law, I think all Australians would agree that these are very serious offences, and it should be an option for the minister for immigration to cancel the visas of people who commit these offences or to refuse an application for a visa for someone who has committed these offences to come to this country.

We'll be moving this amendment. In doing so I note that the then opposition leader and now Prime Minister, the now Minister for Immigration, Citizenship and Multicultural Affairs and the now Minister for Home Affairs all voted for this in the lower house, so I don't anticipate there will be problems from Labor senators in supporting these amendments here today, which will only naturally extend the powers that they're seeking to retain for the minister. With that, I move opposition amendment (1) on sheet 1807:

(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 aga inst 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.