Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
 Download Current HansardDownload Current Hansard    View Or Save XMLView/Save XML

Previous Fragment    Next Fragment
Thursday, 6 December 2018
Page: 9756


Senator KIM CARR (Victoria) (16:40): I seek leave to have the question put on the amendments on sheets JC578 and JC579 together.

Leave granted.

The PRESIDENT: The question is that the amendments on sheets JC578 and JC579 be agreed to.

Government's circulated amendments—

Amdt JC578— Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018

(1) Title, page 1 (line 2), after "migration,", insert "citizenship,".

(2) Page 10 (after line 13), at the end of the Bill, add:

Schedule 10—Strengthening the Citizenship Loss Provisions

Australian Citizenship Act 2007

1 Subsection 35A(1)

Repeal the subsection, substitute:

Meaning of relevant terrorism conviction

(1A) A person has a relevant terrorism conviction if the person has been convicted of an offence against, or offences against, one or more of the following:

(a) a provision of Subdivision A of Division 72 of the Criminal Code;

(b) a provision of Subdivision B of Division 80 of the Criminal Code (treason);

(c) a provision of Part 5 of the Criminal Code (except Division 104 or 105);

(d) a provision of Part 5 of the Criminal Code;

(e) section 6 or 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978.

Meaning of relevant other conviction

(1B) A person has a relevant other conviction if:

(a) the person has been convicted of an offence against, or offences against, one or more of the following:

   (i) a provision of Division 82 of the Criminal Code (sabotage) other than section 82

(preparing for or planning sabotage offence);

   (ii) a provision of Division 91 of the Criminal Code (espionage);

   (iii) a provision of Division 92 of the Criminal Code (foreign interference); and

(b) the person has, in respect of the conviction or convictions, been sentenced to a period of imprisonment of at least 6 years, or to periods of imprisonment that total at least 6 years.

Cessation of citizenship on determination by Minister

(1) The Minister may determine in writing that a person ceases to be an Australian citizen if:

(a) the person has a relevant terrorism conviction or a relevant other conviction; and

(b) the Minister is satisfied that the person would not, if the Minister were to determine that the person ceases to be an Australian citizen, become a person who is not a national or citizen of any country; and

(c) the Minister is satisfied that the conduct of the person to which the conviction or convictions relate demonstrates that the person has repudiated their allegiance to Australia; and

(d) having regard to the following factors, the Minister is satisfied that it is not in the public interest for the person to remain an Australian citizen:

   (i) the severity of the conduct that was the basis of the conviction or convictions and the sentence or sentences;

   (ii) the degree of threat posed by the person to the Australian community;

   (iii) the age of the person;

   (iv) if the person is aged under 18—the best interests of the child as a primary consideration;

   (v) the person's connection to the other country of which the person is a national or citizen and the availability of the rights of citizenship of that country to the person;

   (vi) Australia's international relations;

   (vii) any other matters of public interest.

Note: A person may seek review of a determination made under this subsection in the High Court of Australia under section 75 of the Constitution, or in the Federal Court of Australia under section 39B of the Judiciary Act 1903.

2 Subsection 35A(4)

Omit "paragraph (1)(b)", substitute "paragraph (1B)(b)".

3 Paragraph 35A(4 )( b)

Omit "paragraph (1)(a)" (wherever occurring), substitute "paragraph (1B)(a)".

4 Application and saving provisions

(1) Section 35A of the Australian Citizenship Act 2007 (as amended by this Schedule) applies in relation to persons who became Australian citizens before, on or after the commencement of this item.

(2) Section 35A of the Australian Citizenship Act 2007 (as amended by this Schedule) applies in relation to a relevant terrorism conviction occurring on or after 12 December 2005.

(3) Section 35A of the Australian Citizenship Act 2007 (as amended by this Schedule) applies in relation to a relevant other conviction of a person if:

(a) the conviction occurred on or after 12 December 2005; and

(b) if the conviction occurred before 12 December 2015—the person was sentenced to a period of imprisonment of at least 10 years in respect of the conviction.

(4) The amendments made by this Schedule do not affect the validity of a determination made under subsection 35A(1) of the Australian Citizenship Act 2007 before the commencement of this item.

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

(1) Page 10 (after line 13), at the end of the Bill, add:

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

(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.

Question negatived.