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Strengthening the Character Test: The 'designated offence'

Check out the discussion in the Senate yesterday regarding 'Strengthening the Character Test'

Warning....interesting, but legislation-heavy reading...

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.

[strengthening the character test]

Amdt JC579 - Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018

Schedule 11—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 (as defined by subsection (3)); or

3 Before subsection 5C(2)

Insert: Substantial criminal record

4 At the end of section 5C

Add: Designated Offence

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.

Designated offence (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 against a person, including (without limitation) murder, manslaughter, kidnapping, assault, aggravated burglary and the threat of violence; 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 (4)); 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).

(4) 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.

Go in and read all the wording in the source document below.  There are some other interesting details jammed into this document, particularly in relation to the situation in Nauru, and comments made by Senator Fierrvante-Wells.  Back to this topic, it would be interesting to hear other peoples views in relation to the above Character Test discussion.

Source: Home-Affairs-Legislation-Amendment-Miscellaneous-Measures-Bill-2018.pdf

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