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Schedule 1—Amendments

Schedule 1 Amendments

   

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

             (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.

5  After paragraph 501(6)(a)

Insert:

                  (aaa)  the person has been convicted of a designated offence (as defined by subsection (7AA)); or

6  After subsection 501(7)

Insert:

Designated offence

       (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 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 (7AB)); 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).

       (7AB)  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.

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.