EXPLANATORY STATEMENT
Issued by the Minister for Immigration and Border Protection
Migration Amendment (Charging for a Migration Outcome) Act 2015
Migration Amendment (Charging for a Migration Outcome) Commencement Proclamation 2015
Subsection 2 (1) of the Migration Amendment (Charging for a Migration Outcome) Act 2015 (the Act) provides that Schedule 1 of the Act commences on a day to be fixed by Proclamation. However, if any of the provisions of Schedule 1 do not commence within six months of the date the Act receives the Royal Assent, then those provisions commence on the first day after the end of that six month period. The Act received the Royal Assent on 30 November 2015.
The purpose of the Proclamation is to fix 14 December 2015 as the day on which Schedule 1 to the Act commences.
Schedule 1 to the Act amends the Migration Act 1958 to introduce new criminal offences and civil penalty provisions which will allow sanctions to be imposed on a person who asks for, receives, offers or provides a benefit in return for a migration outcome (‘payment for visas’ conduct) in relation to prescribed sponsored visas and sponsorship classes.
Schedule 1 responds to recommendation 10.7 of the ‘Independent Review into Integrity in the Subclass 457 Programme’, released on 10 September 2014, which recommended that it be made unlawful for a sponsor to be paid by a visa applicant for a migration outcome and that this be reinforced by a robust conviction and penalty framework.
The Proclamation is a legislative instrument for the purposes of the Legislative Instruments Act 2003.
Overview
The Migration Amendment (Charging for a Migration Outcome) Act 2015 was enacted to address the identified problem of 'payment for visas' conduct, particularly in relation to prescribed sponsored visas and sponsorship classes, as highlighted by recommendation 10.7 of the 'Independent Review into Integrity in the Subclass 457 Programme'. The Act, introduced by the Australian Parliament, aims to establish a robust framework of criminal and civil penalties to deter and sanction individuals or entities engaging in such conduct. The Act received Royal Assent on 30 November 2015, with the provisions of Schedule 1 commencing on 14 December 2015 via a proclamation issued under the Legislative Instruments Act 2003. The objective is to reinforce the integrity of the visa sponsorship system by making it unlawful to offer or receive payments in exchange for migration outcomes.
Scope and Application
The Migration Amendment (Charging for a Migration Outcome) Act 2015 applies to individuals and entities involved in the provision or receipt of benefits in exchange for migration outcomes concerning certain sponsored visas and sponsorship classes. This Act introduces both criminal and civil penalty provisions to enforce compliance with the new regulations. The geographic reach of this legislation is national, as it pertains to the Commonwealth of Australia and is designed to amend the Migration Act 1958, a federal statute. The Act aims to address and penalise the practice of 'payment for visas', which involves the offering, receiving, asking for, or providing of benefits in return for a migration outcome. This amendment responds to the recommendation made by the 'Independent Review into Integrity in the Subclass 457 Programme' to criminalise such practices and establish a robust framework for sanctions. The commencement of these provisions is fixed by the Migration Amendment (Charging for a Migration Outcome) Commencement Proclamation 2015, which sets 14 December 2015 as the effective date, ensuring that any delay in implementation does not exceed six months from the Act receiving Royal Assent on 30 November 2015.
Key Provisions
The Migration Amendment (Charging for a Migration Outcome) Act 2015, specifically through Schedule 1, introduces new criminal and civil penalty provisions in the Migration Act 1958, targeting the issue of 'payment for visas' conduct (sections 1 and 2). This conduct includes asking for, receiving, offering, or providing a benefit in return for a migration outcome in relation to prescribed sponsored visas and sponsorship classes. These changes aim to address the concerns raised in recommendation 10.7 of the 'Independent Review into Integrity in the Subclass 457 Programme', which called for making it unlawful to pay a sponsor for a migration outcome and establishing a strong conviction and penalty framework to reinforce this prohibition.
Under the amended legislation, certain actions become criminal offences. For example, section 926A of the Migration Act 1958 introduces a criminal offence where a person knowingly asks for or receives a benefit for a migration outcome. Similarly, section 926B criminalises the act of knowingly offering or providing a benefit in return for a migration outcome. These provisions underscore the seriousness of engaging in payment for visas conduct and are designed to deter such activities. The obligations imposed on the parties governed by these provisions are clear: they must not engage in any form of benefit exchange for a migration outcome. Compliance with these obligations is essential to avoid facing criminal charges.
The Act also includes provisions that impose civil penalties for breaches of the new provisions. Section 926D of the Migration Act 1958 provides that a civil penalty may be imposed on a person who contravenes certain provisions related to payment for visas conduct. These penalties are not only a deterrent but also serve as a means to enforce compliance with the law. The maximum penalties for these offences can be significant, reflecting the gravity of the breaches. For example, individuals found guilty of a criminal offence under sections 926A or 926B may face substantial fines and imprisonment, while civil penalties are also designed to be significant enough to discourage non-compliance.