Or, “Strengthening” the Character Test
This Bill is currently before Parliament.
I refer to four issues:
Retrospective
These laws are probably retrospective in nature. It means that if you passed the Character Test previously, you may not pass the Character Test under this new proposed law.
The new laws state that certain criminal offences are “designated offences”. A designated offence, for these purposes, is one which is specifically referenced in the Act as one which would result in not passing the Character Test.
That is, the Department of Home Affairs may have already given you the green tick – but now they may rescind that.
This is not only relevant for those applying for visas. Once designated, the Minister can cancel your existing visa.
The Judgement
Under current law, the Minister took into account the Judge’s sentence Remarks. These Remarks are informative and give a profile of the Offender and the effect of the offence on the victim and then provide reasons for the most suitable penalty to be given to the offender.
When measuring a punishment to be given to the Offender, the Judge takes into account submissions from the Prosecutor, the Defendant, psychological assessments, Victims of Crimes impact statements and professional experts before engaging in the sentencing process. The Sentencing Judge generally reflects upon these matters and community expectations before Sentencing the Offender.
The Minister as Judge
If you are not an Australian citizen and you have committed a “Designated Offence” then you should be aware that if this proposed law becomes law, those Sentencing Remarks made by the Judge will not be taken into consideration by the Minister when seeking to cancel or refuse your visa.
In effect, the Minister will make his own judgement call on what he considers should have been the penalty and that penalty that he determines may be the maximum penalty for that offence. He does not have to take into account any mitigating circumstances at all.
In purporting to sentence the Offender differently to the Presiding Judge’s sentence of the Offender, may appear to be acting judicially. If that is the case, the Minister could be in breach of the Constitution by so acting contrary to the Separation of Powers doctrine.
Undefined
Section 501(7AA)(b) of the Migration Act is supposed to be tempered by the comments made in the Explanatory Memorandum. Those comments state that the new Designated Offence must serious offence and “not merely a minor or trifling offence”. The question is who determines what is minor and what is serious. There is a large distance between these two concepts. Also if the Minister determines that the offences are serious, what process does this take for him/her to determine that offence is serious?
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