Scott Ryan (President) Share this | Link to this | Hansard source

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

(Government)

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

[strengthening the citizenship loss provisions]

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(e) section 6 or 7 of the repealed Crimes (Foreign Incursions and Recruitment) Act 1978.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

[strengthening the citizenship loss provisions]

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

(Government)

(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.

[strengthening the character test]

Question negatived.

Brian Burston (NSW, United Australia Party) Share this | Link to this | Hansard source

I seek leave to move amendment 8624.

Leave granted.

Scott Ryan (President) Share this | Link to this | Hansard source

Senator Burston, that was circulated after the cut-off. The advice from the Clerk is that you were given some incorrect advice and that's why it wasn't circulated earlier. The question is that the amendment on sheet 8624 be agreed to.

United Australia Party circulated amendment—

Amdt 8624 - Home Affairs Legislation Amendment (Miscellaneous Measures) Bill 2018

(Amendment to be moved by Senator Burston, on behalf of the United Australia Party, in committee of the whole)

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

Schedule 7—Regional Processing Cohort

Part 1—Amendments

Migration Act 1958

1 Subsection 5(1)

Insert:

member of the designated regional processing cohort means:

(a) a person who:

  (i) is an unauthorised maritime arrival under subsection 5AA(1); and

  (ii) was taken to a regional processing country under section 198AD at any time; and

  (iii) was at least 18 years of age on the first or only occasion when he or she was so taken to a regional processing country; or

(b) a transitory personwho:

  (i) was taken to a regional processing country under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; and

  (ii) was at least 18 years of age on the first or only occasion when he or she was so taken to a regional processing country.

2 Subsection 33(2)

Omit "subsection (3)", substitute "subsections (3) and (3A)".

3 After subsection 33(3)

Insert:

(3A) A non-citizen who is a member of the designated regional processing cohort is not taken to have been granted a special purpose visa.

(3B) The Minister may waive the operation of subsection (3A) in a particular case.

4 After subsection 46A(2)

Insert:

(2AA) An application for a visa is not a valid application if it is made by a person who:

(a) is an unauthorised maritime arrival under subsection 5AA(1); and

(b) was taken to a regional processing country under section 198AD at any time; and

(c) was at least 18 years of age on the first or only occasion when he or she was so taken to a regional processing country.

(2AB) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to an unauthorised maritime arrival, determine that subsection (2AA) does not apply to an application by the unauthorised maritime arrival for a visa of a class specified in the determination.

(2AC) If the Minister thinks that it is in the public interest to do so, the Minister may, by legislative instrument, determine that subsection (2AA) does not apply to an application by an unauthorised maritime arrival included in a class of unauthorised maritime arrivals specified in the determination for a visa of a class specified in the determination.

5 Subsection 46A(2A)

After "subsection (2)", insert ", (2AB) or (2AC)".

6 Subsection 46A(2B)

After "determination", insert "under subsection (2), (2AB) or (2AC)".

7 Subsection 46A(2C)

After "subsection (2)", insert "or (2AB)".

8 After subsection 46A(2C)

Insert:

(2D) The Minister may, by legislative instrument, vary or revoke a determination made under subsection (2AC) if the Minister thinks that it is in the public interest to do so.

9 Subsection 46A(3)

Omit "(2) or (2C)", substitute "(2), (2AB), (2AC), (2C) or (2D)".

10 Paragraphs 46A(5 ) ( a) and (b)

Omit "the unauthorised", substitute "an unauthorised".

11 Subsection 46A(7)

After "subsection (2)", insert ", (2AB)".

12 At the end of section 46A

Add:

(8) The Minister does not have a duty to consider whether to exercise the power under subsection (2AC) or (2D) in respect of any class of unauthorised maritime arrivals, whether the Minister is requested to do so by an unauthorised maritime arrival included in such a class or by any other person, or in any other circumstances.

13 After subsection 46B(2)

Insert:

(2AA) An application for a visa is not a valid application if it is made by a transitory personwho:

(a) after 19 July 2013, was taken to a regional processing country under Division 7 or 8 of Part 3 of the Maritime Powers Act 2013; and

(b) was at least 18 years of age on the first or only occasion when he or she was so taken to a regional processing country.

(2AB) If the Minister thinks that it is in the public interest to do so, the Minister may, by written notice given to a transitory person, determine that subsection (2AA) does not apply to an application by the person for a visa of a class specified in the determination.

(2AC) If the Minister thinks that it is in the public interest to do so, the Minister may, by legislative instrument, determine that subsection (2AA) does not apply to an application by a transitory person included in a class of transitory persons specified in the determination for a visa of a class specified in the determination.

14 Subsection 46B(2A)

After "subsection (2)", insert ", (2AB) or (2AC)".

15 Subsection 46B(2B)

After "determination", insert "under subsection (2), (2AB) or (2AC)".

16 Subsection 46B(2C)

After "subsection (2)", insert "or (2AB)".

17 After subsection 46B(2C)

Insert:

(2D) The Minister may, by legislative instrument, vary or revoke a determination made under subsection (2AC) if the Minister thinks that it is in the public interest to do so.

18 Subsection 46B(3)

Omit "(2) or (2C)", substitute "(2), (2AB), (2AC), (2C) or (2D)".

19 Paragraphs 46B(5 ) ( a) and (b)

Omit "the transitory", substitute "a transitory".

20 Subsection 46B(7)

After "subsection (2)", insert ", (2AB)".

21 At the end of section 46B

Add:

(8) The Minister does not have a duty to consider whether to exercise the power under subsection (2AC) or (2D) in respect of any class of transitory persons, whether the Minister is requested to do so by a transitory person included in such a class or by any other person, or in any other circumstances.

Migration Regulations 1994

22 At the end of subregulation 2.07AA(2)

Add:

; and (d) the applicant is not a member of the designated regional processing cohort.

23 After subregulation 2.07AA(2)

Insert:

(2A) The Minister may waive the operation of paragraph (2) (d) in a particular case.

24 After subregulation 2.07AB(1)

Insert:

(1A) Subregulation (1) does not apply if the applicant is a member of the designated regional processing cohort.

25 At the end of subregulation 2.07AB(2)

Add:

; and (e) the applicant is not a member of the designated regional processing cohort.

26 At the end of regulation 2.07AB

Add:

(5) The Minister may waive the operation of subregulation (1A) in a particular case.

(6) The Minister may waive the operation of paragraph (2) (e) in a particular case.

27 At the end of regulation 2.07AM

Add:

(6) The Minister may waive the operation of paragraph 1402(3) (bb) of Schedule 1 in a particular case.

28 At the end of paragraph 2.08A(1 ) ( da)

Add "and".

29 After paragraph 2.08A(1 ) ( da)

Insert:

(db) the additional applicant is not a member of the designated regional processing cohort;

30 At the end of regulation 2.08A

Add:

(3) The Minister may waive the operation of paragraph (1) (db) in a particular case.

30A At the end of paragraph 2.08AAA(1 ) ( g)

Add "and".

30B After paragraph 2.08AAA(1 ) ( g)

Insert:

(ga) the additional applicant is not a member of the designated regional processing cohort;

30C At the end of regulation 2.08AAA

Add:

(3) The Minister may waive the operation of paragraph (1) (ga) in a particular case.

31 Regulation 2.11A (note)

Omit "Section 46A", substitute "Subsection 46A(1)".

32 Regulation 2.11B (note)

Omit "Section 46B", substitute "Subsection 46B(1)".

33 After paragraph 1402(3 ) ( ba) of Schedule 1

Insert:

(bb) Applicant must not be a member of the designated regional processing cohort.

34 At the end of subitem 1402(3) of Schedule 1

Add:

Note: See also subregulation 2.07AM(6), which provides that the Minister may waive the operation of paragraph (bb) of this subitem in a particular case.

35 After Part 53 of Schedule 13

Insert:

Part 53A—Amendments made by the Migration Legislation Amendment (Regional Processing Cohort) Act 2016

5301A Operation of Schedule 1

(1) Paragraph 2.07AA(2) (d) of these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a visa application if the conditions mentioned in paragraphs 2.07AA(2) (a) to (c) of these Regulations are satisfied in relation to the application after the commencement of that Schedule.

(2) Subregulation 2.07AB(1A) of these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a visa application if the applicant provides his or her passport details (as mentioned in subregulation 2.07AB(1) of these Regulations) after the commencement of that Schedule.

(3) Paragraph 2.07AB(2) (e) of these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a visa application if the applicant asks for the visa (as mentioned in paragraph 2.07AB(2) (d) of these Regulations) after the commencement of that Schedule.

(4) Paragraph 2.08A(1) (db) of these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a request made by the original applicant under paragraph 2.08A(1) (b) of these Regulations if the request is made after the commencement of that Schedule.

(4A) Paragraph 2.08AAA(1) (ga) of these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a request made by the original applicant under paragraph 2.08AAA(1) (c) of these Regulations if the request is made after the commencement of that Schedule.

(5) Paragraph 1402(3) (bb) of Schedule 1 to these Regulations (as amended by Schedule 1 to the Migration Legislation Amendment (Regional Processing Cohort) Act 2016) applies in relation to a visa application if the application is made after the commencement of Schedule 1 to that Act.

[regional processing cohort]

Question negatived.

The question now is that the bill, as amended, be agreed to.

Question agreed to.