Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011
No. 81, 2011
An Act to amend the Migration Act 1958, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedule(s)
Schedule 1—Migration Act 1958
Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011
No. 81, 2011
An Act to amend the Migration Act 1958, and for related purposes
[Assented to 25 July 2011]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1 to 3 and anything in this Act not elsewhere covered by this table | The day this Act receives the Royal Assent. | 25 July 2011 |
2. Schedule 1, item 1 | The day after this Act receives the Royal Assent. | 26 July 2011 |
3. Schedule 1, items 2 to 6 | 26 April 2011. | 26 April 2011 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Migration Act 1958
1 Subsection 197B(1) (penalty)
Omit “3 years”, substitute “5 years”.
2 At the end of subsection 500A(3)
Add:
; or (d) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(e) the person has been convicted of an offence against section 197A.
3 Subsection 500A(4)
After “a sentence imposed on a person”, insert “, or the conviction of a person for an offence,”.
4 After paragraph 501(6)(a)
Insert:
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A; or
5 Subsection 501(10)
After “a sentence imposed on a person”, insert “, or the conviction of a person for an offence,”.
6 Application of amendments made by items 2 to 5
The amendments made by items 2 to 5 apply for the purposes of making a decision on or after the commencement of those items, whether the conviction or offence concerned occurred before, on or after that commencement.
[Minister’s second reading speech made in—
House of Representatives on 11 May 2011
Senate on 14 June 2011]
Overview
The Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011 was enacted by the Parliament of Australia to make significant amendments to the Migration Act 1958, primarily to strengthen the character test and address certain gaps within the existing framework. This Act aims to enhance the integrity of Australia's immigration system by imposing stricter character requirements on visa applicants and holders. The policy objective is to ensure that individuals granted visas and other immigration benefits are of good character, thereby maintaining public safety and order. The Act received Royal Assent on 25 July 2011 and commenced on that date for most provisions, with subsequent provisions coming into effect on 26 April 2011. The amendments introduced by this Act include extending the period for which certain character-related offences can impact visa eligibility and expanding the scope of offences that are considered in character assessments.
Scope and Application
The Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011 amends the Migration Act 1958, introducing significant changes to the character test for visa applicants and other related provisions. The Act applies to individuals seeking to enter or remain in Australia, including those who have been convicted of certain offences. The amendments extend the time frame for which a person can be considered for an offence that disqualifies them from entering Australia, increasing the period from three to five years. Additionally, the Act imposes stricter scrutiny on individuals who have been convicted of offences committed while in immigration detention, during an escape from immigration detention, or after escaping detention but before being re-detained. The changes also affect the application of the character test to offences committed against specific sections of the Migration Act, such as section 197A. The Act operates on a Commonwealth level, applying across Australia and affecting the decisions made by the Minister for Immigration and Border Protection concerning visa applications. The amendments apply to decisions made on or after the Act's commencement, regardless of when the relevant offence occurred. The Act does not specify any exclusions or exemptions, and its provisions can be extended or restricted through subordinate instruments as deemed necessary by the Minister.
Key Provisions
The Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011 amends the Migration Act 1958, primarily focusing on enhancing the character test and introducing additional provisions related to immigration control. Section 197B(1) (penalty) now specifies a five-year period for certain character-related disqualifications instead of the previous three years. Additionally, subsection 500A(3) is expanded to include convictions of offences committed while in immigration detention, during an escape from detention, or after an escape but before being taken into detention again, as grounds for disqualifying a person from meeting the character requirement. Subsection 500A(4) similarly extends its scope to include convictions of such offences. Subsection 501(6)(a) is also amended to include these grounds, while subsection 501(10) is updated to reflect these changes, ensuring that the conviction of an offence is considered alongside any imposed sentence for character test purposes.
The Act imposes several obligations on the parties it governs, particularly focusing on the enforcement of the enhanced character test. Immigration officers and decision-makers must consider additional factors when assessing an individual's character, including any convictions of offences committed in specific circumstances related to immigration detention. This amendment requires a more rigorous examination of an individual's past conduct to determine eligibility for various immigration benefits. Additionally, the Act necessitates that these considerations apply to decisions made on or after the commencement of the amendments, regardless of when the offence or conviction occurred.
In terms of legal consequences, breaches of the provisions outlined in the Act may lead to significant civil and criminal penalties. For instance, subsection 197B(1) specifies that certain character-related disqualifications now carry a five-year period, implying that violations may result in more extended periods of ineligibility for immigration benefits. While the Act does not explicitly detail maximum penalties for breaches of the amended sections, it is implied that non-compliance with the enhanced character test could lead to severe consequences, including deportation or refusal of visas. These provisions underscore the importance of adhering to the stringent character requirements set forth by the Act.