Migration Amendment (Aggregate Sentences) Bill 2023

The majority voted in favour of a motion to agree with the bill. In other words, they voted to agree with the detail of the bill and can now decide whether to pass it in the House of Representatives.

What does this bill do?

The bills digest sets outs the following key points:

• Section 501 of the Migration Act 1958 applies a ‘character test’ to all non-citizens holding or applying for an Australian visa. Under this provision, if the Minister or a delegate is not satisfied that a non-citizen passes the ‘character test’ they may—and in some specific cases must—cancel or refuse to grant a visa to the person.
• Cancellation of a person’s visa is mandatory if they are serving a prison sentence and they have a substantial criminal record or have been convicted of sexually based offences involving a child. One of the grounds for determining that a person has a substantial criminal record for the purposes of mandatory visa cancellation is if they have been sentenced to a term of imprisonment of 12 months or more.
• In Pearson v Minister for Home Affairs, the Federal Court of Australia considered whether an aggregate sentence of imprisonment (a single sentence for more than one offence) constituted ‘a term of imprisonment of 12 months or more’.
• The Federal Court found that it did not, and the Government is now seeking to amend the Migration Act to provide that where a provision of the Migration Act or regulations made under that Act refers to a sentence of imprisonment, it does not matter whether this sentence has been imposed with respect to one offence or multiple offences.
• The Bill will also retrospectively validate decisions affected by the Pearson decision, including validating previous mandatory cancellation decisions of a person’s visa.
• The Human Rights Law Centre has previously stated that the inclusion of aggregated sentences for the purposes of mandatory visa cancellation cannot be ‘easily reconciled with the Labor government’s commitment to reducing immigration detention numbers’. Other human rights advocacy groups, such as the Australian Lawyers for Human Rights, have opposed the Bill.