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Migration Act and Criminal Justice Stay Certificates

29 November 2018
 

On 19 November 2018, the Law Council wrote to the Minister for Home Affairs outlining concerns with the Department of Home Affairs’ interpretation of certain provisions of the Migration Act 1958 (Cth) (the Act) relating to Criminal Justice Stay Certificates.

The Law Council agreed with the joint letter of the eight DPPs that ‘the general provision in section 198 must yield to the specific provision section 150’ of the Migration Act and that the ‘words “as soon as reasonably practicable” in section 198 must mean as soon as practicable after the administration of criminal justice pursuant to Division 4’.

The Law Council encouraged the Department of Home Affairs to reconsider its view in accordance with the above interpretation. It noted that the consequences of not doing so may result in an undermining of Australia’s criminal justice system or impeding Australia’s national security, enabling perpetrators of crime to evade justice by making a request for removal.

The Law Council’s concerns were reported in the media ahead of the Council of Attorneys-General (CAG) meeting on Friday, 23 November. Following the CAG meeting, where state and territory attorneys-general demanded the federal government overturn the ruling, Attorney-General Christian Porter said that the Department of Home Affairs would consult with the states at a ministerial level to solve the issue, “with a view to effecting a legislative or administrative change as a matter of urgency”.

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