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2010 - 2011
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
MIGRATION AMENDMENT (STRENGTHENING THE CHARACTER TEST AND
OTHER PROVISIONS) BILL 2011
EXPLANATORY MEMORANDUM
(Circulated by authority of the Minister for Immigration and Citizenship,
the Hon. Chris Bowen MP)
MIGRATION AMENDMENT (STRENGTHENING THE CHARACTER TEST AND
OTHER PROVISIONS) BILL 2011
OUTLINE
The Migration Amendment (Strengthening the Character Test and Other Provisions) Bill 2011 (the
"Bill") amends the Migration Act 1958 (the "Act") to strengthen the consequences of criminal
behaviour by persons in immigration detention.
The amendments relating to sections 501 and 500A will strengthen the capacity to take action under
the Act where a person has been convicted of a criminal offence while in immigration detention.
These changes are, in part, in response to the criminal behaviour during the recent disturbances at
the Christmas Island and Villawood Immigration Detention Centres, which caused substantial
damage to Commonwealth property. It is intended that these strengthened powers will also provide
a more significant disincentive for people in immigration detention from engaging in violent and
disruptive behaviour, and will deal appropriately with those who, by engaging in criminal activity in
immigration detention, demonstrate a fundamental disrespect for Australian laws, standards and
authorities.
The Bill amends sections 501 and 500A to provide additional grounds upon which the Minister or
his delegate may decide to refuse to grant, or to cancel, a visa on character grounds. The Minister
retains his discretion to refuse to grant, or to cancel, a visa under sections 501 and 500A. However,
the Bill makes it clear that from the date of commencement, 26 April 2011, a person will fail the
character test if they have been convicted of an offence committed in immigration detention, during
an escape from immigration detention, during a period where a person has escaped from
immigration detention, or if the person has been convicted of the offence of escaping from
immigration detention, whether the conviction or offence occurred before, on or after that
commencement. Where a person does not pass the character test because of new paragraphs
501(6)(aa), 501(6)(ab), 500A(3)(d) and 500A(3)(e), the Minister or his delegate has the power to
refuse to grant, or to cancel, a visa on these new character grounds.
The amendments to sections 501 and 500A have been drafted to ensure that, where applicable, they
apply only to persons who have been convicted of an offence by a court. The amendments made to
sections 501 and 500A would not apply to a person who is charged before a court with an offence
or offences, and the court is satisfied, in respect of that charge or more than one of those charges,
that the charge is proved, but has discharged the person without a conviction on that charge, or any
of those charges. That is, there must be at least one conviction for the amendments to sections 501
and 500A to apply.
The amendment supplements the character powers already available under the Act, such as the
Minister's power to take into account past and present criminal conduct, and past and present
general conduct, in determining whether or not a person passes the character test. However, it is
intended by the Government to ensure that any conviction for an offence of the kind covered by this
Bill results in the person automatically failing to pass the character test.
In particular, the Bill amends the Act to:
· provide in section 501 that the Minister may refuse to grant, or to cancel, a visa where a
person does not pass the character test because the person has been convicted of any offence
committed while they are in immigration detention. It is intended that this should include
any conviction for the offence of escaping from immigration detention as well as any
conviction for an offence committed during or following a person's escape from detention
up to the time of their being returned to immigration detention;
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· provide in section 500A that the Minister may refuse to grant a temporary safe haven visa,
or may cancel a temporary safe haven visa, where a person has been convicted of any
offence committed while they are in immigration detention. It is intended that this should
include any conviction for the offence of escaping from immigration detention as well as
any conviction for an offence committed during or following a person's escape from
detention up to the time of their being returned to immigration detention; and
· increase the maximum penalty in section 197B for the manufacture, possession, use or
distribution of weapons by immigration detainees from 3 to 5 years imprisonment. This
increase in the maximum penalty will commence from the day after this Act receives the
Royal Assent.
The Government is sending a strong and clear message that the kind of unacceptable behaviour seen
recently in immigration detention centres will not be tolerated now or in the future.
The Minister for Immigration and Citizenship's public announcement on 26 April 2011 of this
legislative change put all immigration detainees on notice that the Australian government takes
criminal behaviour very seriously and will take appropriate measures to respond to it.
The Australian community also expects non-citizens who seek to remain in Australia to be of good
character. To meet this expectation, the Government must have the ability to act decisively and
effectively, and must have the legislative authority to refuse to grant a visa or to cancel a visa for
those non-citizens who are not of good character.
FINANCIAL IMPACT STATEMENT
The financial impact of these amendments is none. These costs will be met from within existing
resources of the Department of Immigration and Citizenship. The Office of Best Practice
Regulation has been consulted and has advised that a regulatory impact statement is not required.
The advice reference is 12587.
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MIGRATION AMENDMENT (STRENGTHENING THE CHARACTER TEST AND
OTHER PROVISIONS) BILL 2011
NOTES ON INDIVIDUAL CLAUSES
Clause 1 Short title
1. Clause 1 provides that the short title by which this Act may be cited is the Migration
Amendment (Strengthening the Character Test and Other Provisions) Act 2011.
Clause 2 Commencement
2. Subclause 2(1) provides that each provision of this Act specified in column 1 of the table
commences, or is taken to have commenced, in accordance with column 2 of the table. Further, any
other statement in column 2 has effect according to its terms.
3. Table item 1 provides that sections 1 to 3 of this Act and anything in this Act not elsewhere
covered by the table will commence on the day on which this Act receives the Royal Assent.
4. Table item 2 provides that Schedule 1, item 1 will commence the day after this Act receives
the Royal Assent.
5. Table item 3 provides that Schedule 1, items 2 to 6 will commence on 26 April 2011.
6. The note in subclause 2(1) makes clear that the table relates only to the provisions of this
Act as originally enacted. The table will not be amended to deal with any later amendments of this
Act.
7. Subclause 2(2) provides that any information in column 3 of the table is not part of this Act.
It provides that information may be inserted or edited in any published version of this Act.
Clause 3 Schedule(s)
8. This clause provides that each Act that is specified in a Schedule to this Act is amended or
repealed as set out in the applicable items in the Schedule concerned. In addition, any other item in
a Schedule to this Act has effect according to its terms.
SCHEDULE 1 - Amendments
Migration Act 1958
Item 1 Subsection 197B(1) (penalty)
9. This item omits the words "3 years" in subsection 197B(1) of Division 7A of Part 2 of the
Act and substitutes the words "5 years".
10. Currently section 197B of the Act provides that a detainee is guilty of an offence if he or she
manufactures, possesses, uses or distributes a weapon. Subsection 197B(2) provides that a
"weapon" includes a thing made or adapted for use for inflicting bodily injury; or a thing where the
detainee who has the thing intends or threatens to use the thing, or intends that the thing be used, to
inflict bodily injury. The penalty for the offence is imprisonment for 3 years.
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11. The purpose of this item is to increase the maximum penalty for this offence from 3 years to
5 years imprisonment. The manufacture, possession, use and distribution of weapons puts at risk
the personal safety of others in the immigration detention environment, including other detainees,
Commonwealth officers, contracted detention services staff and visitors. The Australian
community expects that there be robust sanctions to deal with people in immigration detention who
prepare to threaten or inflict harm on other people and the intended increase in the maximum
penalty under this item reflects the seriousness with which the community views this offence.
12. The increase in the maximum penalty enhances the deterrent effect of the provision on
persons in immigration detention from manufacturing, possessing, using or distributing weapons.
13. The increase in penalty for this offence aligns with the penalty for escape from immigration
detention in section 197A, which is 5 years imprisonment.
14. The increase in penalty for this offence is not inconsistent with other penalties provided in
Commonwealth legislation, for example, section 49 of the Aviation Transport Security Act 2004, an
offence involving the carriage or possession of a weapon on board an aircraft; penalty 7 years.
Item 2 At the end of subsection 500A(3)
15. This item adds new paragraphs 500A(3)(d) and (e) at the end of paragraph 500A(3)(c) of
Part 9 of the Act.
16. Currently, subsection 500A(3) of the Act provides that the Minister may refuse to grant to a
person a temporary safe haven visa, or may cancel a person's temporary safe haven visa if: the
person has been sentenced to death, or to imprisonment for life, or a term of imprisonment of 12
months or more.
17. New paragraph 500A(3)(d) provides that the Minister may refuse to grant to a person a
temporary safe haven visa, or may cancel a person's temporary safe haven visa if, the person has
been convicted of an offence that was committed: while the person was in immigration detention,
during an escape from immigration detention, or after an escape from immigration detention but
before they were taken into immigration detention again.
18. The purpose of new paragraph 500A(3)(d) is to provide an additional basis upon which the
Minister may refuse to grant to a person a temporary safe haven visa, or may cancel a person's
temporary safe haven visa. This item is to ensure that the provisions in subsection 500A(3) are
consistent with the proposed amendments to subsection 501(6) of the Act in item 4 below.
19. New paragraph 500A(3)(e) provides that the Minister may refuse to grant to a person a
temporary safe haven visa or may cancel a person's temporary safe haven visa if, the person has
been convicted of an offence against section 197A of the Act. Section 197A of the Act provides
that a detainee must not escape from immigration detention. The penalty for the offence is
imprisonment for 5 years.
20. The purpose of new paragraph 500A(3)(e) is to provide that the Minister may refuse to grant
to a person a temporary safe haven visa, or may cancel a person's temporary safe haven visa if, the
person has been convicted of the offence of escaping from immigration detention as set out in
section 197A of the Act.
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21. The purpose of this item is to strengthen the consequences of criminal behaviour by persons
in immigration detention and in particular to provide an additional basis upon which the Minister or
his delegate may decide to refuse to grant a temporary safe haven visa, or to cancel a temporary safe
haven visa, on character grounds.
Item 3 Subsection 500A(4)
22. This item inserts ", or the conviction of a person for an offence" after "a sentence imposed
on a person" in subsection 500A(4) of Part 9 of the Act.
23. Currently, subsection 500A(4) of the Act provides that, for the purposes of subsection
500A(3), a sentence imposed on a person is to be disregarded if the conviction concerned has been
quashed or otherwise nullified, or if the person has been pardoned in relation to the conviction
concerned.
24. This item is to ensure that convictions of persons for offences committed while the person
was in immigration detention, during an escape from, or following an escape up to the time of being
returned to, immigration detention, are also disregarded if the person's conviction concerned has
been quashed or otherwise nullified, or the person has been pardoned in relation to the conviction
concerned.
Item 4 After paragraph 501(6)(a)
25. This item adds new paragraphs 501(6)(aa) and (ab) at the end of paragraph 501(6)(a) of Part
9 of the Act.
26. Currently section 501 of the Act provides the basis upon which the Minister may refuse to
grant a visa to a person, or may cancel a person's visa if the person does not satisfy the Minister that
the person passes the character test.
27. New paragraph 501(6)(aa) provides that, in addition to the grounds currently provided for, a
person does not pass the character test for the purposes of section 501 if, the person has been
convicted of an offence that was committed: while the person was in immigration detention, during
an escape by the person from immigration detention, or after the person escaped from immigration
detention but before the person was taken into immigration detention again.
28. The purpose of new paragraph 501(6)(aa) is to provide an additional basis upon which the
Minister may refuse to grant to a person a visa, or may cancel a person's visa. This item is to
ensure that the provisions in subsection 501(6) are consistent with the proposed amendments to
subsection 500A(3) of the Act in item 2 above.
29. New paragraph 501(6)(ab) provides that, in addition to the grounds currently provided for, a
person does not pass the character test for the purposes of section 501 if, the person has been
convicted of an offence against section 197A of the Act. Section 197A of the Act provides that a
detainee must not escape from immigration detention. The penalty for the offence is imprisonment
for 5 years.
30. The purpose of this item is to strengthen the consequences of criminal behaviour by persons
in immigration detention and in particular to provide an additional basis upon which the Minister or
his delegate may decide to refuse to grant a visa, or to cancel a visa, on character grounds.
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31. Paragraph 501(6)(a) of the Act provides that a person does not pass the character test if the
person has a substantial criminal record as defined in subsection 501(7) of the Act. Pursuant to
paragraph 501(7)(c) a person has a "substantial criminal record" if the person has been sentenced to
a term of imprisonment of 12 months or more.
32. Under the current provisions, if a person has been convicted of an offence but has been
sentenced to a term of imprisonment of less than 12 months, the person will still be able to pass the
character test. This imposes a significant limitation on the ability of the Minister to appropriately
respond to the violent, destructive and criminal behaviour which has been occurring in immigration
detention.
33. It is intended that this additional basis for failing the character test will only apply to persons
who have been convicted of an offence by a court, at the time of the Minister's consideration of
whether a person passes the character test, whether the conviction or offence concerned occurred
before, on or after the commencement date of 26 April 2011. It does not matter what penalty is
imposed by a court as a result of the conviction. This creates a clear and objective basis for a person
to fail the character test.
Item 5 Subsection 501 (10)
34. This item inserts ", or the conviction of a person for an offence" after "a sentence imposed
on a person" in subsection 501(10) of Part 9 of the Act.
35. Currently, subsection 501(10) of the Act provides that, for the purposes of the character test,
a sentence imposed on a person is to be disregarded if the conviction concerned has been quashed
or otherwise nullified, or the person has been pardoned in relation to the conviction concerned.
36. This item is to ensure that convictions of persons for offences committed while the person
was in immigration detention, during an escape from, or following an escape up to the time of being
returned to, immigration detention, are also disregarded if the person's conviction concerned has
been quashed or otherwise nullified, or the person has been pardoned in relation to the conviction
concerned.
Item 6 Application of amendments made by items 2 to 5
37. This item provides for the application of amendments made by items 2 to 5 of Schedule 1 to
this Bill.
38. This item provides that the amendments made by items 2 to 5 apply for the purposes of
making a decision on or after the commencement of those items, whether the conviction or offence
concerned occurred before, on or after that commencement.
39. The effect of this item is that the amendments made by items 2 to 5 above are taken to have
commenced on the date specified in column 1 of clause 2 to this Bill, which is 26 April 2011.