Migration Amendment (Aggregate Sentences) Act 2023
No. 1, 2023
An Act to amend the Migration Act 1958 to provide for the treatment of aggregate sentences, and for related purposes
Contents
1 Short title
2 Commencement
3 Schedules
Schedule 1—Aggregate sentences
Part 1—Amendments
Migration Act 1958
Part 2—Application of amendments and validation of certain things done
Migration Amendment (Aggregate Sentences) Act 2023
No. 1, 2023
An Act to amend the Migration Act 1958 to provide for the treatment of aggregate sentences, and for related purposes
[Assented to 16 February 2023]
The Parliament of Australia enacts:
1 Short title
This Act is the Migration Amendment (Aggregate Sentences) Act 2023.
2 Commencement
(1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
Commencement information |
Column 1 | Column 2 | Column 3 |
Provisions | Commencement | Date/Details |
1. The whole of this Act | The day after this Act receives the Royal Assent. | 17 February 2023 |
Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.
(2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.
3 Schedules
Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Aggregate sentences
Part 1—Amendments
Migration Act 1958
1 After section 5AA
Insert:
5AB Sentencing for offences
The provisions of this Act and the regulations apply no differently in relation to a single sentence imposed by a court in respect of 2 or more offences to the way in which those provisions apply in relation to a sentence imposed by a court in respect of a single offence.
Example: Paragraph 501(7)(c) applies in relation to a person sentenced to a term of imprisonment of 12 months or more. Because of this section, that paragraph applies in relation to a person sentenced to such a term, whether the sentence is imposed for a single offence or for 2 or more offences.
Part 2—Application of amendments and validation of certain things done
2 Definitions
In this Part:
commencement means the commencement of this Part.
do a thing includes:
(a) make a decision (however described); and
(b) exercise a power, perform a function, comply with an obligation or discharge a duty; and
(c) do anything else;
and purport to do a thing has a corresponding meaning.
3 Application of amendments
Section 5AB of the Migration Act 1958, as in force on and after commencement, applies in relation to the doing of a thing on…
Overview
The Migration Amendment (Aggregate Sentences) Act 2023 was enacted to amend the Migration Act 1958 in relation to the treatment of aggregate sentences. This Act was passed by the Parliament of Australia and received Royal Assent on 16 February 2023, with the whole Act coming into effect the following day on 17 February 2023. The primary objective of this legislation is to ensure that the provisions of the Migration Act and related regulations apply equally to single sentences imposed for multiple offences as they do to sentences for a single offence, thereby addressing a legal inconsistency that could otherwise affect visa decisions and related actions.
This Act also includes provisions for the retrospective application of its amendments, validating certain actions taken under the Migration Act and other specified laws before the Act's commencement. It ensures that decisions, applications, and actions taken in relation to migration matters are not rendered invalid solely because they pertained to aggregate sentences. Additionally, the Act provides mechanisms for individuals to take or re-take certain actions concerning validated decisions, ensuring that they are not disadvantaged by the timing of the Act's enactment or previous procedural missteps.
Scope and Application
The Migration Amendment (Aggregate Sentences) Act 2023 applies to the treatment of aggregate sentences within the context of the Migration Act 1958. This Act specifically targets the application of migration provisions in cases where a person has been sentenced to imprisonment for multiple offences, treating such aggregate sentences the same as single offence sentences. The Act applies to any decisions made under the Migration Act 1958, including the refusal to grant or cancellation of visas, accessing or disclosing information, and giving notices, among other related actions. It extends to legislative instruments made under the Migration Act 1958 and certain provisions of other Acts such as the Environment Protection and Biodiversity Conservation Act 1999, the Fisheries Management Act 1991, and the Torres Strait Fisheries Act 1984. The Act's jurisdiction is national, covering all states and territories of Australia. The Act validates certain actions taken before its commencement and provides opportunities for fresh actions to be taken post-commencement in relation to validated decisions, ensuring that individuals have the chance to challenge decisions that would have been invalid due to the treatment of aggregate sentences. The Act commenced on 17 February 2023, the day after receiving Royal Assent.
Key Provisions
- The Migration Amendment (Aggregate Sentences) Act 2023 primarily amends the Migration Act 1958 to address the treatment of aggregate sentences in relation to migration decisions. Section 1(1) of Schedule 1 introduces a new section, 5AB, into the Migration Act 1958, which ensures that the Act and its regulations apply equally to sentences imposed for a single offence and to aggregate sentences for multiple offences. This means that the impact on a person's eligibility for visas, their visa status, and other related provisions will be the same regardless of whether the sentence is for one offence or multiple offences.
- The Act imposes obligations on the parties involved, including the Department of Home Affairs, courts, and individuals affected by migration decisions. The Department of Home Affairs must ensure that decisions about visa applications and visa status are made in accordance with the provisions of the Act, taking into account the aggregate sentences imposed by the courts. Courts, in turn, must provide detailed sentencing information to the Department, which includes the total sentence length for multiple offences. Individuals must provide accurate information about their criminal history when applying for visas, including details of any aggregate sentences.
- There are no explicit offences or penalties outlined in the Act itself. However, the Act provides a framework that could lead to civil or criminal consequences for non-compliance with migration laws. For instance, providing false information in a visa application could result in visa cancellation under section 501 of the Migration Act 1958, with potential penalties including fines and imprisonment. Additionally, individuals who do not comply with visa conditions related to their criminal history may face removal from Australia under section 501CA of the Act, which also carries penalties such as fines and imprisonment.
- The Act also includes provisions for the validation of decisions made before its commencement, ensuring that actions taken under the previous regime remain valid. This includes decisions made about visa applications or refusals, and actions such as accessing or disclosing information under the Act. These validated decisions are treated as if they were valid from the outset, which protects the rights of individuals and the integrity of the migration system. Furthermore, the Act allows for the possibility of taking fresh action in relation to validated decisions, providing opportunities for review and appeal where actions were not previously taken or were discontinued before the Act's commencement.
- Area of Law
- Immigration & Refugee Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Repeal & Amendment
- Validation of things done before commencement