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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Migration Amendment (Aggregate
Sentences) Bill 2023
No. , 2023
(Home Affairs)
A Bill for an Act to amend the Migration Act 1958
to provide for the treatment of aggregate sentences,
and for related purposes
No. , 2023
Migration Amendment (Aggregate Sentences) Bill 2023
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Aggregate sentences
3
Part 1--Amendments
3
Migration Act 1958
3
Part 2--Application of amendments and validation of certain
things done
4
No. , 2023
Migration Amendment (Aggregate Sentences) Bill 2023
1
A Bill for an Act to amend the Migration Act 1958
1
to provide for the treatment of aggregate sentences,
2
and for related purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
Migration Amendment (Aggregate Sentences)
Act
6
2023
.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Migration Amendment (Aggregate Sentences) Bill 2023
No. , 2023
1
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.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
3 Schedules
8
Legislation that is specified in a Schedule to this Act is amended or
9
repealed as set out in the applicable items in the Schedule
10
concerned, and any other item in a Schedule to this Act has effect
11
according to its terms.
12
Aggregate sentences
Schedule 1
Amendments
Part 1
No. , 2023
Migration Amendment (Aggregate Sentences) Bill 2023
3
Schedule 1--Aggregate sentences
1
Part 1--Amendments
2
Migration Act 1958
3
1 After section 5AA
4
Insert:
5
5AB Sentencing for offences
6
The provisions of this Act and the regulations apply no differently
7
in relation to a single sentence imposed by a court in respect of 2 or
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more offences to the way in which those provisions apply in
9
relation to a sentence imposed by a court in respect of a single
10
offence.
11
Example: Paragraph 501(7)(c) applies in relation to a person sentenced to a term
12
of imprisonment of 12 months or more. Because of this section, that
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paragraph applies in relation to a person sentenced to such a term,
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whether the sentence is imposed for a single offence or for 2 or more
15
offences.
16
Schedule 1
Aggregate sentences
Part 2
Application of amendments and validation of certain things done
4
Migration Amendment (Aggregate Sentences) Bill 2023
No. , 2023
Part 2--Application of amendments and validation of
1
certain things done
2
2 Definitions
3
In this Part:
4
commencement
means the commencement of this Part.
5
do a thing
includes:
6
(a) make a decision (however described); and
7
(b) exercise a power, perform a function, comply with an
8
obligation or discharge a duty; and
9
(c) do anything else;
10
and
purport to do a thing
has a corresponding meaning.
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3 Application of amendments
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Section 5AB of the
Migration Act 1958
, as in force on and after
13
commencement, applies in relation to the doing of a thing on or after
14
commencement:
15
(a) whether the thing is done in relation to something else that
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comes into existence or is obtained before, on or after
17
commencement (subject to paragraph (c)); and
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(b) if the thing is done in relation to a particular person--
19
whether the person committed, or was convicted of or
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sentenced for, one or more offences before, on or after
21
commencement; and
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(c) if the doing of the thing depends on the making of an
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application by or on behalf of a person--even if the
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application was made before commencement, provided the
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application had not been finally determined as at
26
commencement.
27
4 Validation of things done before commencement
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(1)
This item applies if a thing done, or purportedly done, before
29
commencement under a law, or provision of a law, covered by
30
subitem (2) would, apart from this item, be wholly or partly invalid only
31
because a sentence, taken into account in doing, or purporting to do, the
32
thing, was imposed in respect of 2 or more offences.
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Aggregate sentences
Schedule 1
Application of amendments and validation of certain things done
Part 2
No. , 2023
Migration Amendment (Aggregate Sentences) Bill 2023
5
(2)
The laws and provisions are as follows:
1
(a) the
Migration Act 1958
;
2
(b) any legislative instrument made under that Act;
3
(c) clauses 51 and 53 of Schedule 1 to the
Environment
4
Protection and Biodiversity Conservation Act 1999
;
5
(d) clauses 51 and 53 of Schedule 1A to the
Fisheries
6
Management Act 1991
;
7
(e) clauses 51 and 53 of Schedule 2 to the
Torres Strait Fisheries
8
Act 1984
.
9
Note:
The things referred to in subitem (1) include (for example) the following:
10
(a) deciding under section 501, 501A, 501B or 501BA of the
Migration Act 1958
to
11
refuse to grant a visa to a person, or to cancel a visa granted to a person;
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(b) accessing information under Division 2 of Part 4A of that Act, or disclosing
13
information under Division 3 of that Part;
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(c) giving a notice under subsection 501L(1) of that Act;
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(d) divulging or communicating information as mentioned in
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subparagraph 503A(1)(a)(ii) or (b)(ii) of that Act.
17
(3)
The thing done, or purportedly done, is taken for all purposes to be
18
valid and to have always been valid.
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(4)
To avoid doubt, anything done or purported to have been done by a
20
person that would have been invalid except for subitem (3) is taken for
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all purposes to be valid and to have always been valid, despite any
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effect that may have on the accrued rights of any person.
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(5)
For the purposes of applying this item in relation to civil or criminal
24
proceedings, this item applies in relation to:
25
(a) civil and criminal proceedings instituted on or after
26
commencement; and
27
(b) civil and criminal proceedings instituted before
28
commencement, being proceedings that are concluded:
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(i) before commencement; or
30
(ii) on or after commencement.
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5 Effect of validation on review and appeal rights
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Taking action after commencement where no action taken before
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commencement
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(1)
If:
35
Schedule 1
Aggregate sentences
Part 2
Application of amendments and validation of certain things done
6
Migration Amendment (Aggregate Sentences) Bill 2023
No. , 2023
(a) one or more provisions of the
Migration Act 1958
or the
1
Migration Regulations 1994
have the effect that a person is
2
able to take any of the following actions in relation to a
3
validated decision only during a particular period (the
4
original period
):
5
(i) making representations about the revocation of the
6
decision;
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(ii) applying for the revocation or review of the decision;
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(iii) bringing an appeal against the decision;
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(iv) applying to a court for a remedy in relation to the
10
decision;
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(v) taking any other action for the purpose of having the
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decision varied, revoked, quashed or set aside; and
13
(b) the original period started before commencement and did not
14
end before 22 December 2022; and
15
(c) the person did not take the action before commencement;
16
then the person may take the action on or after commencement as if the
17
period for taking the action:
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(d) started on commencement; and
19
(e) were the same length as the original period.
20
Note:
22 December 2022 is the day the Full Court of the Federal Court of Australia gave
21
judgment in
Pearson v Minister for Home Affairs
[2022] FCAFC 203.
22
Opportunity to take fresh action after commencement where
23
action of the same kind discontinued etc. before commencement
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(2)
If:
25
(a) before commencement, a person took any of the following
26
kinds of action (the
pre-commencement action
) in relation to
27
a validated decision:
28
(i) making representations about the revocation of the
29
decision;
30
(ii) applying for the revocation or review of the decision;
31
(iii) bringing an appeal against the decision;
32
(iv) applying to a court for a remedy in relation to the
33
decision;
34
(v) taking any other action for the purpose of having the
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decision varied, revoked, quashed or set aside; and
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Aggregate sentences
Schedule 1
Application of amendments and validation of certain things done
Part 2
No. , 2023
Migration Amendment (Aggregate Sentences) Bill 2023
7
(b) any of the following events occurred during the period
1
starting on 22 December 2022 and ending at commencement:
2
(i) the representations were, or the application, appeal or
3
other action was, withdrawn or otherwise discontinued
4
by the person;
5
(ii) the representations were, or the application, appeal or
6
other action was, dismissed, refused or not considered
7
for the reason (or for reasons that include) that the
8
validated decision was invalid;
9
then the following paragraphs have effect:
10
(c) the person may, on or after commencement, take fresh action
11
of the same kind in relation to the validated decision, despite
12
the taking of the pre-commencement action and the event
13
mentioned in paragraph (b);
14
(d) if one or more provisions of the
Migration Act 1958
or the
15
Migration Regulations 1994
have the effect that the person is
16
able to take action of that kind in relation to the validated
17
decision only during a particular period (the
original period
)
18
starting before commencement--the person may take the
19
fresh action on or after commencement as if the period for
20
taking the fresh action:
21
(i) started at commencement; and
22
(ii) were the same length as the original period.
23
Note:
22 December 2022 is the day the Full Court of the Federal Court of Australia gave
24
judgment in
Pearson v Minister for Home Affairs
[2022] FCAFC 203.
25
Extensions to be disregarded
26
(3)
For the purposes of subitem (1) or (2), disregard the fact that it may
27
have been possible to extend the original period mentioned in that
28
subitem.
29
Definitions
30
(4)
In this item:
31
validated decision
means a decision (however described) that would
32
have been invalid except for item 4.
33