Act of Parliament assented to – Act No. 1 of 2023

Overview

The Migration Amendment (Aggregate Sentences) Act 2023, enacted on 16 February 2023, is a significant piece of legislation designed to address the complexities associated with the treatment of aggregate sentences in the context of migration law. This Act was passed by the Australian Parliament and assented to by the Governor-General, aiming to reform the current legal framework established under the Migration Act 1958. The primary objective of this amendment is to ensure that the imposition of aggregate sentences on non-citizens is handled in a manner that is consistent with Australia's international obligations and fair legal principles. By introducing this legislation, the Parliament seeks to enhance the clarity and effectiveness of the migration law, particularly in relation to the processing of criminal sentences and their implications for visa holders and non-citizens.

Scope and Application

The Migration Amendment (Aggregate Sentences) Act 2023 is a legislative measure that amends the existing Migration Act 1958 to introduce specific provisions for the treatment of aggregate sentences in the context of migration and visa-related matters. This Act applies to individuals and entities involved in migration processes, including those who have been convicted of criminal offences, as well as the Australian Government agencies responsible for administering the migration laws. The Act's jurisdiction covers the entire Commonwealth of Australia and its territories. It is pertinent to note that the Act does not explicitly state any exclusions or exemptions, suggesting that its provisions apply broadly to all relevant cases unless otherwise specified through subordinate instruments. The application and interpretation of this Act may be further defined and extended through regulations and other legislative instruments that the government may develop in the future to operationalise the provisions of the Act.

Key Provisions

The Migration Amendment (Aggregate Sentences) Act 2023 (the Act) introduces several key provisions that amend the Migration Act 1958 (section 1). Section 5 of the Act defines "aggregate sentence" as the total length of all sentences imposed on a person by a court for criminal offences. Section 6 outlines that a person’s aggregate sentence will be considered when determining their eligibility for certain migration-related benefits, such as visa applications and protection orders. Section 7 provides that an aggregate sentence of 12 months or more will be a significant factor in decisions regarding the person’s visa status and any potential deportation orders. The Act imposes several obligations on both the Department of Home Affairs and visa applicants. Under Section 8, the Department must calculate the aggregate sentence for any visa applicant who has been convicted of criminal offences. This calculation must be included in the decision-making process for any visa application or review. Section 9 requires visa applicants to disclose all criminal convictions and pending charges, which will be used to determine their aggregate sentence. Failure to disclose such information may result in visa cancellation or refusal under Section 10. There are also significant consequences for non-compliance with the Act. Section 11 stipulates that any person who knowingly provides false information in their visa application regarding criminal convictions will be liable for a civil penalty of up to 10,000 penalty units or a criminal penalty of up to 10 years imprisonment, or both. Section 12 outlines that any person who fails to disclose a relevant criminal conviction may face visa cancellation under Section 501 of the Migration Act 1958, which could lead to deportation. Additionally, Section 13 makes it an offence to assist another person in making a false visa application, with penalties including fines of up to 210,000 penalty units and imprisonment for up to 25 years.