What is the character test?
The character test is defined under section 501(6) and a person will fail it if they:
- have a substantial criminal record;
- have been convicted of escaping from immigration detention;
- have committed offences whilst in immigration detention;
- have been a member of, or had associations with, an organisation involved in criminal conduct;
- is reasonably suspected of being involved with people smuggling, people trafficking, genocide, war crimes or crimes against humanity;
- have convictions for one or more sexually based offences involving a child;
- are the subject of an adverse assessment by ASIO;
- an Interpol notice has been issued from which it would be reasonable to conclude that they present a risk to the Australian community.
The most common cause of failure of the character test is having a substantial criminal record.
What is a ‘substantial criminal record’?
Under section 501(7) a person has a substantial criminal record if they have been:
- sentenced to death
- sentenced to life imprisonment
- sentenced to a term of imprisonment for 12 months or more
- acquitted of an offence on the grounds of mental illness and, as a result, detained in a facility or institution
- found by a court not fit to plead and the court has nonetheless made a finding of guilt on the evidence available and they have been detained in a facility or institution
Most non-citizens who fail the character test will do so as a result of having been sentenced to a term of imprisonment for 12 months or more.
As a result of legislative changes in December 2014, the way that a person’s criminal record is determined has changed significantly. Previously there had to be at least one single term of imprisonment of 12 months or more but now, regardless of the length of each individual term of imprisonment, if the total is 12 months or more then this will count as a substantial criminal record.
For example, prior to December 2014, a sentence of 9 months and a subsequent sentence of 3 months for another offence would not constitute as a substantial criminal record as there was no single term of 12 months or more.
Now both sentences would be counted with the result that there has been a total term of imprisonment of 12 months.
Concurrent sentences are now also included when determining the total sentence served.
For example, if a person is serving concurrent sentences the whole of each term is counted towards the total i.e.
Concurrent sentences of 3 months and 9 months = 12 months
The effect of these changes is that many non-citizens who were previously not caught by the character test now are. If you are a non-citizen who has a substantial criminal record (or who is affected by one of the other provisions of the character test) you should seek legal advice about how the new laws may effect you.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.