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This article is to be used as a guide. For legal advice, call out criminal lawyers Sydney team to arrange a consultation.
A criminal justice visa is a visa available to those who witnessed or were accused of a crime whilst in Australia on a temporary visa, making their presence in the country lawful.
It is a special visa issued to those whose presence is required for the criminal justice process who are not citizens or permanent residents, which is granted on a temporary basis.
They are legislated under Subdivision D of Division 4 of the Migration Act 1958 (Cth).
What is a Criminal Justice Visa and a Criminal Justice Certificate?
To be issued with a Criminal Justice Visa (CJV), the responsible agency is required to apply for a criminal justice certificate. This agency may be the NSW Police, Office of the Director of Public Prosecutions or Office of the Commonwealth Director of Public Prosecutions.
The agency is required to certify that you are required in Australia before the visa can be approved.
When your original visa has expired, they will do so by issuing:
- An entry certificate (where you have already left Australia),
- A stay certificate (where you are still in the country, this prevents your removal or deportation).
Where a certificate is issued, the Department of Home Affairs can then determine whether it will grant a CJV.
There are two types of CJVs, which depend on the type of certificate issued, namely a:
- Criminal Justice Entry Visa (where you have already left Australia and have an entry certificate),
- Criminal Justice Stay Visa (where you are still in the country and have a stay certificate).
The agency (i.e., the police, ODPP, or CDPP) will be responsible for providing updates as to the progress of your visa, as well as costs associated with bringing you to, keeping you in, and removing you from Australia.
This means that the party that issued your certificate should also be answering questions with respect to the legal process, how long you could be in the country, and your relevant entitlements.
However, where you are an accused person on a CJV, the contact point would firstly be one’s lawyer.
Whether it is the NSW Police, the ODPP or the CDPP issuing one’s certificate will depend on factors including the type of charge/matter involved, how serious it is, and the stage of the prosecution.
For example, if it is a state (New South Wales) charge the agency would be the NSW Police or the ODPP, whereas if it is a Commonwealth charge, the CDPP may be the responsible agency.
The ODPP is more likely to issue certificates in serious matters passed the investigation stage, whereas the police are more likely to do so during the investigation stage, or for less serious offences.
Ultimately, it is in the Minister’s absolute discretion as to whether it is appropriate for the visa to be granted.
They will have regard to factors including the safety of individuals and people generally, as well as whether there are arrangements to ensure that if the non-citizen enters Australia, they can be removed, as well as any other matters that the Minister considers relevant.
This means that a CJV may not be granted in circumstances including where there are concerns about threats to public safety, or about an individual not leaving the country at the end of the process.
Where the Department refuses to issue a CJV, the witness will be unable to return to Australia for the justice process and it may be arranged for their evidence to be given over video link, whilst overseas.
At the stage where you are no longer required for the proceedings (i.e., your evidence has been given and the trial has concluded) the agency that issued your entry or stay certificate must cancel it.
In the circumstance, where you are a witness, the police, ODPP or CDPP, oversees booking your return travel for you and will cancel your certificate after your departure.
If you are the person accused of a crime, your certificate will be cancelled if you are acquitted, released on parole or when the non-parole period of your sentence expires.
Whilst you are on a criminal justice entry visa, you are unable to do any work in Australia, whether for reward or otherwise. However, if you are on a criminal justice stay visa, you are entitled to work.
If you are on a CJV without means of support, the police, ODPP or CDPP will pay your reasonable costs to support you whilst in Australia.
This is usually paid in accordance with the rate of the unemployment benefit paid by Centrelink.
Whilst CJV holders are not eligible for Medicare benefits, the relevant agency will also pay the reasonable costs of managing a medical or dental condition.
However, support payments are not available if you are in custody or immigration detention.
Such financial assistance can be obtained by providing a statutory declaration setting out that you have no means of support as well as your current financial and domestic circumstances including your sources of income, assets, and any other means of financial support.
A criminal record can be cleared in Australia if the ‘crime free period’ for some criminal offences has expired after which time the conviction is ‘spent’. A conviction being classified as ‘spent’ essentially means that you are generally not required to disclose it any longer, and it ceases to be included as part of your criminal record. There are exceptions to this under the Criminal Records Act 1991 (NSW).
Sex offence convictions, body corporate convictions and offences for which an imprisonment sentence of more than 6 months has been imposed are all convictions which cannot become ‘spent’.
Convictions lasts for 10 years for majority of criminal offences in New South Wales, after which time they are ‘spent’.
The period that a conviction lasts depends on the type of offence the conviction relates to. Across, NSW, Victoria, Queensland, Western Australia and South Australia, convictions generally last for 10 years.
Convictions for ‘summary offences’ that are considered less serious crimes, in Victoria, lasts for 5 years, whereas the more serious offences (‘indictable offences’) lasts for 10 years.
In Western Australia, the less serious convictions carrying a penalty of up to 1 year imprisonment lasts for 10 years, whereas the ‘serious convictions’ considered the more serious offences are subject to an application being made to the District Court for it to be ‘spent’.
In New South Wales, certain circumstances require a ‘spent conviction’ to still be disclosed regardless of its status as ‘spent’. These are exceptions to the requirement not to disclose ‘spent convictions’, and include the following circumstances:
- Court proceedings
- Firefighting or fire prevention employment if the ‘spent conviction’ concerns an arson offence.
- Working with children check clearance requirements in job applications or job applications where you will be subject to a risk assessment.
- When applying for jobs as a police officer, correctives services officer, office of the Sheriff, Teacher, department of communities and justice, Magistrate, Judge, or a justice of the peace.
Certain offences will not form part of your criminal record. These include the following circumstances:
- The dismissal of a criminal charge following a plea of not guilty hearing.
- Withdrawal of the criminal charge by the prosecution prior to it going to a defended hearing.
- Dismissal of the criminal charge under the mental health grounds of section 14 Mental Health (Forensic Provisions) Act 1990 (NSW).
- Dismissal of a charge following a plea of guilty or plea of not guilty in the Children’s Court concerning a Children’s Court proceedings.
By Poppy Morandin and Jimmy Singh.