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Wednesday, 11 May 2011
Page: 3509

Mr BOWEN (McMahonMinister for Immigration and Citizenship) (09:01): I move:

That this bill be now read a second time.

The purpose of this bill is to ensure that a visa applicant or holder will fail the character test should they be convicted of any offence committed while they are in immigration detention; and to increase the maximum penalty for the manufacture, possession, use or distribution of weapons by immigration detainees from three to five years imprisonment. These amendments are proposed in part to address issues arising from the recent criminal damage and riots at the Christmas Island detention centre in March and the Villawood Immigration Detention Centre in April 2011. Major damage was caused to the facilities as a result of these disturbances and there was significant risk of harm to other detainees and to staff at the facilities as well as more broadly to public order and safety.

The bill is also intended to strengthen the powers under the Migration Act to provide a more significant disincentive for this sort of destructive behaviour now and in the future. The new provisions will apply to all people who are or have been in immigration detention: onshore and offshore arrivals, asylum seekers, or otherwise.

Under these new provisions, a person who has been convicted of a criminal offence while in immigration detention could be refused a visa or have a visa cancelled. In keeping with Australia's international protection obligations, in such cases we will not return people to a place where they have a well-founded fear of persecution. Where it is not appropriate to remove people from Australia because they are owed protection, consideration could be given to the grant of a temporary visa to place them in the community until their removal from Australia is appropriate.

The public announcement on 26 April 2011 of this legislative change put all detainees on notice that the Australian government takes criminal behaviour by people in immigration detention very seriously and will take appropriate measures to deal with it.

It is essential that anyone convicted of an offence in relation to the recent events at Australian immigration detention centres is covered by these new provisions and has the amended character test applied to them.

The Australian community expects there to be consequences for unlawful behaviour. Commencing these amendments to the character test provisions on 26 April 2011 ensures this bill delivers those consequences and the government's objectives are met. These changes will apply for the purposes of making a decision on or after 26 April 2011, whether the conviction or offence concerned occurred before, on or after that date.

The Australian community also expects noncitizens who seek to remain in Australia to be of good character. To meet this expectation, the government must not only have the ability to act decisively and effectively, wherever necessary, to deal with criminal behaviour by immigration detainees, but also have the legislative basis to effect a refusal to grant a visa, or a cancellation of a visa, for those noncitizens who are not of good character. The government must be able to remove those noncitizens who have convictions for crimes committed in immigration detention in Australia where possible and consistent with our international obligations.

Among other things, section 501 of the Migration Act currently deals with matters that constitute serious criminal offences where a person can fail the character test. Noncitizens will fail the character test where they have been sentenced to a term of imprisonment of 12 months or more, or where the length of several sentences aggregates to two years or more. If a person fails the character test, this can be used as a basis for the refusal of a visa application or the cancellation of a visa that is held by a person. The proposed measures will amend the character test in section 501 of the Migration Act so that a person will fail the character test if the person is convicted of any offence committed while they are in immigration detention, regardless of the sentence imposed. The intended amendment will not limit the application of the existing provisions relating to the character test. This bill therefore seeks to establish an additional benchmark for criminal behaviour that will automatically lead to a visa applicant or holder failing the character test if they are convicted of an offence committed while they are in immigration detention.

Similarly, section 500A of the Migration Act provides that the minister may refuse the grant of a temporary safe haven visa or may cancel a temporary safe haven visa if a person has been sentenced to imprisonment of 12 months or more. Without limiting the application of the existing character provisions relating to section 500A of the Migration Act, the proposed measures will amend section 500A of the act so that the minister may also refuse to grant a safe haven visa, or may cancel a safe haven visa if the person is convicted of any offence committed while they are in immigration detention.

For both the section 501 and section 500A amendments it is intended, if a person escapes from immigration detention, that any conviction for the offence of escaping or for an offence committed during or following their escape—up to the time of their being returned to immigration detention—be included.

The amendments to sections 501 and 500A have been drafted to ensure that they apply only to persons who have been convicted of an offence by a court. The amendments made to sections 501 and 500A will 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. Currently section 197B of the Migration Act provides that an immigration detainee is guilty of an offence if he or she manufactures, possesses, uses or distributes a weapon. 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 current maximum penalty is imprisonment for three years. The proposed amendment to section 197B of the Migration Act will increase the maximum penalty to five years imprisonment. The manufacture, possession, use and distribution of a weapon by a detainee 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 threaten or inflict harm on other people and the intended increase in the maximum penalty for this offence reflects the seriousness with which the community views this offence.


In summary, people in immigration detention who might contemplate criminal behaviour, including the manufacture, possession or use of weapons, need to clearly understand the seriousness of such behaviour and legal consequences that could follow from that behaviour in terms of criminal convictions and visa outcomes. These changes will: strengthen the character test in section 501 of the Migration Act; strengthen the power to refuse or cancel a temporary safe haven visa in section 500A of the Migration Act; and provide further disincentive in relation to the manufacture and possession of weapons by detainees by increasing the maximum penalty in section 197B of the Migration Act. These measures are intended to send a strong and clear message that the kind of unacceptable behaviour recently seen at immigration detention centres will not be tolerated by the government.

I commend the bill to the House.

Debate adjourned.