Posted 10/01/2022 by Leah Ferris
Following the defeat of the Migration Amendment (Strengthening the Character Test) Bill 2019 (the 2019 Bill) in the Senate on 20 October 2021, the Government has reintroduced the Bill with a number of changes which reflect the amendments moved by the Government in the Senate during the debate on the 2019 Bill. The focus of this Flagpost is to explain these changes and their intended effect.
Background on the Bill
The purpose of the Migration Amendment (Strengthening the Character Test) Bill 2021 (the 2021 Bill) is to amend the Migration Act 1958 (Cth) (the Act) to specify that a person does not pass the character test—and may have their visa cancelled or visa application refused—if they have been convicted of a ‘designated offence’.
The Government first introduced these amendments in October 2018, but the 2018 Bill was not debated and lapsed at the dissolution of the 45th Parliament on 11 April 2019. The 2019 Bill was introduced into the House of Representatives on 4 July 2019 and was in identical terms to the 2018 Bill. The Library has previously prepared a Bills Digest on the 2019 Bill which should be read in conjunction with this Flagpost.
Differences between the 2019 Bill and the 2021 Bill—definition of a designated offence
Section 501 of the Act applies a ‘character test’ to all non-citizens holding or applying for an Australian visa. Under this provision, if the Minister or a delegate is not satisfied that a non-citizen passes the ‘character test’ they may—and in some specific cases must—cancel or refuse to grant a visa to the person.
Under the Bill’s proposed measures, a person convicted of a ‘designated offence’ will not pass the character test. Consequently, the Minister or their delegate may refuse to grant the person a visa, or may cancel their existing visa. Refusal or cancellation of a visa on the grounds of a designated offence conviction will be discretionary.
Item 5 of the 2021 Bill inserts proposed paragraph 501(6)(aaa) into the Act which provides that a person does not pass the character test if they have been convicted of a designated offence.
Proposed subsection 501(7AA) defines a designated offence as an offence against a law in force in Australia or a foreign country, which:
- involves one or more of a list of specified ‘physical elements’ and
- is punishable by life imprisonment or a maximum or fixed term of imprisonment of not less than two years.
Proposed subparagraph 501(7AA)(a)(i) provides that one of the physical elements that may form the basis of a designated offence involves violence, or threat of violence, against a person, as defined in proposed subsections 501(7AB) and (7AC).
Proposed subsection 501(7AB) provides that conduct constituting violence against a person:
[…] includes an act constituting an offence of murder, manslaughter, kidnapping, aggravated burglary, robbery or assault, or an equivalent offence.
The Explanatory Memorandum to the 2021 Bill states that the purpose of this provision 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’ (p. 8).
Proposed subsection 501(7AC) in the 2021 Bill narrows the definition of a designated offence compared to the 2019 Bill. It provides that where a person is convicted of common assault (an offence which consists primarily of the threat of unlawful violence and may not involve physical contact), the conviction will not constitute a designated offence unless the actions of the person caused or substantially contributed to:
- bodily harm to another person; or
- harm to another person’s mental health (within the meaning of the Criminal Code)
whether temporary or permanent; or
- involves family violence (as defined by subsection 4AB(1) of the Family Law Act 1975) by the person in relation to another person.
In addition, proposed subsection 501(7AE) confirms that an ancillary or accessory offence committed in circumstances where the primary offender would not be taken to have committed a designated offence would also not constitute a ‘designated offence’.
The 2021 Bill also proposes consequential amendments to section 5C of the Migration Act. Section 5C contains the meaning of ‘character concern’ and sets out the circumstances in which a non-citizen will be of character concern. Item 2 specifies that a non-citizen is of character concern if they have been convicted of a designated offence. The new definition of designated offence in proposed subsection 5C(3) (at item 4) is identical to the definition inserted into the character test provisions described above.
Comments on the 2021 Bill
In choosing to not support the 2019 Bill, the Shadow Minister for Home Affairs, Senator Keneally, stated that the Opposition had previously highlighted ‘the concern that low level offending would be inadvertently captured by the Bill’ and that the amendments moved by the Government in the Senate to the 2019 Bill did not go far enough to address this issue.
The 2021 Bill does not seek to address the key concern previously raised by stakeholders regarding the 2019 Bill—that the sentencing threshold for a ‘designated offence’ is based on the maximum penalty available for an offence rather than the actual sentence imposed (proposed paragraph 501(7AA)(b)). This means that where a relevant offence has a maximum penalty of at least two years imprisonment, any person convicted of the offence will fail the character test, regardless of the actual sentence they receive. This will be the case even where no sentence or a suspended sentence is imposed. Stakeholders such as the Law Council of Australia have argued that the focus on maximum available sentences fails to appreciate the role of criminal sentencing which recognises that different circumstances give rise to different standards of culpability (p. 10). The Law Council previously welcomed the decision of the Senate not to pass the 2019 Bill. The Government, however, defends this approach as providing ‘an objective standard for the determination of what constitutes a designated offence, based on established criminal law and law enforcement processes in states and territories’, while ensuring that the individual circumstances of the crime and the offender, including the sentence imposed by the court, are able to be taken into consideration in deciding whether to exercise the discretionary power of revocation or cancellation of a visa under section 501 of the Act (Explanatory Memorandum to the 2021 Bill, pages 8 and 11).
The provisions of the 2021 Bill have been referred to the Senate Legal and Constitutional Affairs Legislation Committee for inquiry and report by 28 January 2022. Details of the inquiry are provided on the inquiry’s homepage.
In preparing this Flagpost, the author has relied on previous analysis prepared by Claire Petrie on the 2019 Bill.