This article will outline criminal justice certificates under the Migration Act 1958. Firstly, what is a criminal justice certificate? The Commonwealth Director of Public Prosecutions (CDPP) issues these certificates for people who they need for the criminal justice processes. This is the case even if that person does not have a valid visa.
If the CDPP issues a criminal justice certificate, the Department of Home Affairs (DHA) will consider whether or not to grant the person a criminal justice visa. The DHA will take into account the following factors when making their decision:
- Whether the person is essential to the criminal justice process
- Whether the person’s presence in Australia is necessary for the fair and efficient administration of justice
- Whether the person poses a threat to the community
- The person’s criminal history
- Any other relevant factors
Read on to learn more about provisions on criminal justice certificates.
Section 147: Commonwealth Criminal Justice Stay Certificate
According to Section 147, the Minister for Immigration may issue a Commonwealth criminal justice stay certificate to an unlawful non-citizen. This unlawful non-citizen is to be or is likely to be removed or deported from Australia.
The certificate allows the non-citizen to remain in Australia temporarily for the purposes of criminal justice, such as:
- Extradition under the Extradition Act 1988
- International war crimes under the International War Crimes Tribunals Act 1995
- The International Criminal Court Act 2002
- Mutual assistance in criminal matters under the Mutual Assistance in Criminal Matters Act 1987; or
- The administration of criminal justice in relation to an offence against a law of the Commonwealth.
Section 147 of criminal justice certificates provisions also state that the Minister may only issue a certificate if:
- The non-citizen is an unlawful non-citizen.
- The non-citizen should remain in Australia temporarily for the purposes of one of the five listed activities.
- Satisfactory arrangements have been made to ensure that the person or organisation who wants the non-citizen for the relevant purposes; or
- The non-citizen themselves will meet the cost of keeping the non-citizen in Australia. This cost does not include the cost of immigration detention (if any).
The Minister must consider all these factors and the relevant Acts when deciding whether or not to issue a Commonwealth criminal justice stay certificate.
Section 148: State Criminal Justice Stay Certificate
Section 148 states the eligibility criteria for state criminal justice certificates. In order to be eligible for a State criminal justice stay certificate, the non-citizen must meet the following criteria:
- They must be an unlawful non-citizen. This means that they do not have a valid visa to be in Australia.
- The authorised official for the State must consider that the non-citizen should remain in Australia temporarily. Their stay is for the purposes of the administration of criminal justice in relation to an offence against a law of the State.
- The authorised official must believe that there are arrangements in place to cover the cost of keeping the non-citizen in Australia. The cost of keeping the non-citizen in Australia does not include the cost of immigration detention (if any).
Section 149: Application for Visa Not to Prevent Certificate
Section 149 of the provisions about criminal justice certificates states how visa applications should not prevent the issuance of the certificate. A non-citizen who has applied for a visa, but the DHA has not yet finalised the application, can still get a criminal justice stay certificate.
Citizens who are needed for criminal justice purposes should not be prevented from remaining in Australia simply because their visa application is still being processed. In other words, the section ensures that non-citizens who the authorities need for criminal justice purposes can remain in Australia while authorities process their visa application.
Section 150: Criminal Justice Stay Certificates Stay Removal or Deportation
Section 150 states that non-citizens with criminal justice stay certificates in force cannot face removal or deportation from Australia. This means that non-citizens who the authorities need for criminal justice purposes can remain in Australia until they no longer need them. This is the case regardless of whether they are unlawful non-citizens or not.
Section 151: Certain Warrants Stay Removal or Deportation
The Section 151 of provisions about criminal justice certificates states that:
- A court can issue a warrant to stay the removal or deportation of an unlawful non-citizen if authorities need the non-citizen for the purposes of the administration of criminal justice in relation to an offence against a law.
- If a criminal justice stay warrant is in force, the non-citizen cannot face removal or deportation.
- The applicant for the warrant is responsible for the costs of any maintenance or accommodation (other than immigration detention) of the non-citizen while the warrant is in force.
Section 152: Certain Subjects of Stay Certificates and Stay Warrants May Be Detained Etc.
The Section 152 of provisions about criminal justice certificates states that:
- A non-citizen who is the subject of a criminal justice stay certificate or a criminal justice stay warrant may still be detained under the Migration Act 1958 (Cth) even if they do not have a visa to remain in Australia.
- This is because the certificate or warrant does not limit the powers of the Minister for Immigration or the Department of Home Affairs to detain non-citizens who are not lawfully in Australia.
- The purpose of this section is to ensure that non-citizens who are the subject of a criminal justice stay certificate or a criminal justice stay warrant can be detained if they are considered to be a threat to the community or if they are likely to abscond.
Section 153: Removal or Deportation Not Contempt Etc. If No Stay Certificate or Warrant
Section 153 of provisions about criminal justice certificates state that:
- If a non-citizen is required to be removed or deported from Australia under the Migration Act 1958 (Cth), and there is no criminal justice stay certificate or criminal justice stay warrant about the non-citizen, then the non-citizen can be removed or deported even if it would breach another law of the Commonwealth or a State.
- This is because the Migration Act takes precedence over other laws, unless the other law specifically exempts itself from the Migration Act.
- The purpose of this section is to ensure that the government can remove or deport non-citizens who are not lawfully in Australia. This is the case even if it would breach another law.
However, there is one exception to this rule. What if the removal or deportation of the non-citizen would be in breach of an order of the High Court, the Federal Court or the Federal Circuit and Family Court of Australia? If this is the case, then authorities cannot removed or deport non-citizens.
Section 154: Officer Not Liable–Criminal Justice Stay Certificates or Warrants
Here is a summary of Section 154 of provisions about criminal justice certificates:
- Officers of the Department of Home Affairs, Department of Justice, and Australian Federal Police are not liable for civil or criminal action if they detain a non-citizen in good faith under the Migration Act for criminal justice purposes.
- The section protects officers from people suing them for mistakes or later found unlawful actions, as long as they acted in good faith.
- The purpose is to ensure officers can make decisions without fear of reprisal and to protect Australia’s borders.
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