Migration (Visa Pre-application Process) Charge Act 2023

Trigger event and statutory incidence. The Act defines a single trigger event: registration of a person as a “registered participant in a visa pre‑application process” under subsection 46C(1) of the Migration Act 1958 (s 6). The statutory incidence is allocated clearly: the person who is registered is the legal payer of the charge (s 7). The Act does not itself define “visa pre‑application process” or “registered participant”; those terms are referenced to the Migration Act. Consequently, to understand the universe of covered registrations one must consult subsection 46C(1) of the Migration Act 1958 and any operational instruments made under that Act.

Regulation‑set amounts, with statutory ceiling. The Act delegates the determination of the monetary amount to the regulations (s 8(1)). The regulations may differentiate rates across processes, classes of processes, and classes of persons (s 8(2)-(3)). The Act caps the prescribed amount at $100, subject to CPI indexation as set out in s 10 (s 9). The cap may therefore rise over time under the indexation mechanism, but it cannot be set above the cap as adjusted by indexation.

Indexation method and technical rules. The Act establishes a CPI‑based indexation approach (s 10). The baseline dollar figure in s 9 is labelled a “charge cap amount” (s 10(1)). On each 1 July after the first financial year of commencement the charge cap amount is to be updated using a formula multiplying the prior cap by an indexation factor (s 10(2)). The indexation factor compares the sum of the ABS All Groups CPI index numbers for the four quarters in the 12 months ending 31 December before the indexation day with the sum for the previous 12 months ending 31 December (s 10(3)). Calculations must use the most recently published index reference period numbers, ignore substituted index numbers unless they reflect a change in index reference period, round the indexation factor to three decimal places with rounding up on the fourth decimal place, raise any factor below 1 to 1, and round the updated cap to the nearest whole dollar with 50 cents rounded up (s 10(3)-(7)).

Territorial reach. The Act extends to external Territories by importing section 7 of the Migration Act 1958 so it applies “in a corresponding way” to how section 7 applies to the Migration Act (s 3). In addition, s 4 gives express extra‑territorial application to acts, omissions, matters and things outside Australia. Those two provisions together broaden the geographical ambit of the charge beyond the mainland.

Regulatory power and scope. The Governor‑General may make regulations for matters required or permitted by the Act and for anything necessary or convenient to give the Act effect (s 11). The Act is therefore structurally short on operational detail and relies on subordinate legislation for most practical implementation matters, subject to the statutory constraints on the quantum and indexation set out in Part 2.

Interpretive cross‑references. Two cross‑references draw in other statutory materials. Section 6 links to subsection 46C(1) of the Migration Act 1958, and section 8(4) expressly states that subsections (2) and (3) do not limit subsection 33(3A) of the Acts Interpretation Act 1901. Those references mean that the detailed legal scope of who is captured, how classes may be carved, and how statutory distinctions may be made will involve reading this Act alongside the Migration Act and the Acts Interpretation Act.

Direct payers. The person who is registered as a “registered participant in a visa pre‑application process” under subsection 46C(1) of the Migration Act 1958 is the statutory payer of the charge (s 6, s 7). The Act therefore directly affects anyone who falls within the class of persons who are, or will be, registered under the linked Migration Act provision. The Act does not itself define that class, so identifying the individuals and entities in practice requires consulting subsection 46C(1) of the Migration Act and any instruments that create or operate particular visa pre‑application processes.

Persons in different classes. The regulations may treat classes of persons differently by prescribing different amounts for different classes (s 8(3)). The Act does not specify what classes are permissible; it leaves that structuring to regulation and to the interpretive reach of s 33(3A) of the Acts Interpretation Act 1901 (s 8(4)). In other words, practitioners should expect that the implementing regulations may create exemptions or preferential rates for defined subgroups, but the Act itself neither mandates nor restricts particular class definitions beyond the legislative reference to the Acts Interpretation Act.

Stakeholders involved in the registration process. The Act imposes the charge on the registrant but is silent on collection, payment timing, or administrative process. Those operational functions will fall to agencies responsible for administering the Migration Act registration regime and any delegated bodies identified in regulation (s 11). The entities that administer registration, collect fees, maintain registers, and process refunds or disputes will bear operational responsibility to implement the charge, if and when the regulations prescribe amounts and process, though the Act itself does not create those operational duties.

Territorially remote persons and overseas actors. The Act applies to acts, omissions, matters and things outside Australia (s 4). This means that the charge can cover relevant registrations that occur outside Australian territory, subject to the substantive registration definition under the Migration Act. The Act also imports the effect of section 7 of the Migration Act 1958 for application to external Territories in a corresponding way (s 3). Practitioners should therefore assume a potentially broad territorial sweep, but must consult the Migration Act for the operational meaning of registration in offshore or external territory contexts.

Regulators and rule‑makers. The Executive branch, through the Governor‑General making regulations, is the decision‑maker on the level and structure of the charge within the Act’s statutory limits (s 11; s 8; s 9). Parliament retains the statutory constraint of the cap and the indexation formula, but the day‑to‑day design and any differentials are delegated.

Indirectly affected parties. Employers, migration agents, sponsors, counsel and advisors who assist people through visa pre‑application processes will be affected in practice because they will need to budget for and advise about any charge payable on registration. Those indirect effects depend entirely on the regulations that prescribe rates and the operational collection arrangements that are established under the Migration Act framework.

Primary duty to pay. The Act imposes a statutory duty to pay a charge on the person registered as a participant in a visa pre‑application process (s 6, s 7). That obligation arises at the registration event referenced to subsection 46C(1) of the Migration Act 1958. The Act defines “charge” for the purpose of the instrument (s 5), but leaves the quantum and categories of people to regulation (s 8).

Regulatory duty to prescribe amounts within limits. Regulations must set the prescribed amount or amounts, if any, but any prescribed amount cannot exceed the statutory cap as adjusted by indexation (s 8(1); s 9). Regulations may prescribe nil amounts, providing the capacity for an explicit exemption or free registration class (s 8(5)).

Administrative duties left to regulation or existing law. The Act does not specify procedural duties such as when the charge becomes payable in time, how it is collected, whether registration can be refused or suspended for non‑payment, or whether refunds are available. Those practical enforcement and processing matters are expected to be supplied by regulation or by the Migration Act’s registration framework, because the Act confines itself to imposing the charge and to specifying the ceiling and indexation method (s 6; s 8; s 11).

Indexation obligations. The Act imposes an automatic statutory obligation to update the charge cap amount annually using an explicit CPI‑based formula on each 1 July after the first financial year of commencement (s 10(2)-(3)). The statute requires specified steps and rounding conventions to be followed, so administrative officers or Treasury officials responsible for publishing the updated cap must apply the formula, adhere to ABS data selection rules, and comply with the rounding instructions (s 10(3)-(7)).

Rights and limits on rights. The Act does not create specific appeal, review, waiver or refund rights in relation to the charge. Rights in those areas will need to be found in the Migration Act, in the regulations made under this Act, or in general administrative law (judicial review) remedies. The Act also does not create a private right to challenge the indexation calculation; it prescribes the calculation method and technical rules (s 10).

Parliamentary oversight via primary law. Parliament retains the capacity to alter the ceiling or the indexation mechanism by amending the Act. The Executive’s policy room is constrained by the cap and indexation formulas embedded in primary legislation, but it remains able to vary operational design, exemptions and collection mechanisms by regulation within those legislative limits (s 8; s 9; s 11).

Consultation and transparency implications. The Act requires the use of specific ABS CPI numbers and published index reference periods (s 10(3), s 10(7)). That prescribes transparent inputs for indexation computations. The Act does not require public consultation for regulations under s 11, so any process of stakeholder engagement will depend on administrative practice rather than statutory obligation.

No penalties in the Act. The Act does not itself create offences, civil penalties, or enforcement mechanisms for non‑payment of the charge. It limits its content to imposing the charge on registration, specifying who pays, capping the amount and setting indexation rules (s 6-10). Because the Act does not provide collection powers, remedies for non‑payment, or penalty regimes, enforcement must be effected either through the Migration Act’s existing administrative mechanisms (particularly those that govern registration under subsection 46C(1)) or by regulations made under this Act (s 11).

Delegated instruments to supply enforcement. Section 11 confers a regulation‑making power on the Governor‑General to prescribe matters required or permitted by the Act, and to make provisions necessary or convenient to give effect to the Act (s 11). Practical enforcement mechanisms are therefore to be expected in subordinate legislation, including the timing of payment, refusal or suspension of registration for non‑payment, obligations to refund, and administrative review processes. The Act creates a statutory framework within which regulations can impose enforcement consequences, but until such regulations are made no enforcement mechanism is set out in the Act itself.

Interaction with administrative law remedies. In the absence of express statutory appeal or penalty provisions in this Act, affected persons retain the usual administrative law remedies against decisions made under the Migration Act or regulations if those decisions are amenable to judicial review. The Act does not displace or specify these remedies; it is silent on administrative review, merits review, or civil recovery measures for unpaid charges.

Indexation compliance and administrative duties. The Act requires that the charge cap amount be updated by formula each 1 July after the first financial year of commencement (s 10(2)). Officials will therefore have an administrative duty to perform defined calculations using ABS CPI index numbers and to publish or communicate the updated cap. Failure to apply the statutory formula correctly could raise legal or administrative challenges, but the Act itself does not create a criminal or civil penalty for miscalculation.

Collection by agencies administering registration. The practical enforcement burden will fall on agencies that administer the registration regime under the Migration Act, unless the regulations designate other collecting agents or mechanisms (s 6, s 11). The Act does not describe payment modalities, recordkeeping obligations, or refund rules, so agencies will need implementing regulations and internal procedures to manage compliance and enforcement operationally.

Parliamentary constraint on maximum liability. The Act constrains the maximum nominal liability for any single registration event to the statutory cap (as indexed) (s 9). That statutory ceiling is itself an enforcement limit; it prevents subordinate legislation from imposing a higher per‑registration quantum. Enforcement measures in regulation must operate within that monetary ceiling.

Direct link with the Migration Act 1958. The substantive trigger for the charge is registration under subsection 46C(1) of the Migration Act 1958 (s 6). The Act therefore cannot be read in isolation to determine who or what processes are captured. Section 3 imports section 7 of the Migration Act in a corresponding way so as to extend the Act to external Territories as the Migration Act is extended, and s 4 gives express extra‑territorial application. Practitioners and advisers must therefore read this Act together with the Migration Act to determine operational coverage, grounds for refusing or requiring registration, and any existing procedural interfaces (s 3; s 4; s 6).

Reference to the Acts Interpretation Act 1901. Section 8(4) expressly preserves the operation of subsection 33(3A) of the Acts Interpretation Act 1901 in relation to the regulation‑making power that allows differentiation by process or class. This means that interpretive principles about statutory classification and differential treatment will apply to the regulations under this Act. Advisers should consult s 33(3A) of the Acts Interpretation Act 1901 to understand the permissible legal basis for distinguishing among persons or classes.

ABS CPI inputs and administrative law. Section 10 mandates the use of the Australian Statistician’s All Groups Consumer Price Index (weighted average of the eight capital cities) and prescribes how to select index numbers and handle substitutions (s 10(3), s 10(7)). That cross‑reference ties the Act to public statistical data and introduces an objective numerical standard for indexation. Any dispute about the correct index values will therefore be a matter of public data and administrative calculation rather than discretionary decision‑making under the Act.

Regulatory instruments and subordinate law. Section 11 grants a broad power to make regulations necessary or convenient to give effect to the Act. Those regulations will be subordinate legislation made under the Legislative Instruments Act and subject to parliamentary disallowance and other processes applicable to regulations. The Act’s constraints, such as the monetary cap and the indexation mechanism, remain in primary legislation and limit the scope of regulations (s 8; s 9; s 10).

Interaction with financial management and appropriation law. The Act creates a statutory pro‑livelihood charge but does not specify the destination of collected funds or whether proceeds are appropriated to consolidated revenue or a particular fund. The omission means that the collection, custody and appropriation of receipts must follow general public finance law and administrative practice. The Act does not itself appropriate funds or specify their use.

Jurisdictional and extraterritorial reach. The express extra‑territorial application (s 4) and the importation of section 7 of the Migration Act for external Territories (s 3) mean that this charge can intersect with other jurisdictions’ regulatory or tax regimes in practice. The Act does not address conflicts of law, so cross‑border enforcement, and the interaction with foreign payment systems, tax obligations or administrative processes will depend on practical arrangements and the design of regulations.

No displacement of other visa fees in the Act. The Act does not say whether the charge replaces, is additional to, or interacts with existing visa application fees, levies or charges under other legislation. Therefore, until regulations or the administering agency clarifies the relationship, practitioners should assume the charge is a distinct statutory imposition that may be charged in addition to any other legal fees or charges tied to visa applications and pre‑application procedures.

Original enactment only. The text supplied is the Act as enacted in 2023. It includes the Parliament’s formal enacting words and shows assent on 26 October 2023 (front matter). There are no amending provisions within the supplied text and no subsequent amendments are recorded in this instrument as provided.

Conditional commencement arrangements recorded. Section 2 sets out a commencement regime that ties the operation of this Act to the commencement of another Act: the Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Act 2023. The Act commences on the later of the start of the day after Royal Assent and immediately after commencement of that Migration Amendment Act, but the provisions do not commence at all if the Migration Amendment Act does not commence (s 2). The commencement table includes a note and a date context in column 3 referencing 29 March 2024 and states that paragraph (b) applies. Section 2(2) emphasises that column 3 information in the table is not part of the Act and that published versions may edit that information, so the table’s date statements are illustrative of the commencement conditions as set out in the Act (s 2(1)-(2)).

No recorded delegated legislation in the Act. The Act anticipates regulations will prescribe the charge amounts and other necessary provisions (s 8; s 11). However, the supplied text does not include any regulations or state‑made instruments under s 11; it only empowers the Governor‑General to make them. The Act therefore stands as primary law awaiting subordinate instruments to operationalise the charging regime.

Cross‑references that may invite amendments elsewhere. The Act’s operation depends on existing provisions elsewhere, namely subsection 46C(1) of the Migration Act 1958 and subsection 33(3A) of the Acts Interpretation Act 1901 (s 6; s 8(4)). Any later amendments to those external provisions would affect the reach and interpretive landscape of this Act. The Act itself contains no transitional provisions or savings clauses referring to prior regulatory regimes.

No retrospective amendments or savings in the text. The Act does not contain retrospective operation language, and the commencement provision ties the start of operation to future events. The Act does not purport to change historical liabilities, nor does it provide for a retroactive charging scheme in the text supplied.

Publication and parliamentary record. The Act notes a minister’s second reading speech was made in the House of Representatives and the Senate on dates indicated, but the content of that speech is not reproduced in the Act text provided. Any policy statements contained in those speeches are external to the statute and must be treated as non‑binding explanatory material unless reflected in legislative text.

No cases recorded in the text. The supplied Act contains no judicial decisions or references to litigation. It is a short, recently enacted statute that sets out a charging framework and leaves operational detail to regulation.

Absence of recorded challenges. The Act text does not record any court challenges, interpretations or disputes about its provisions. Because it is an enabling statute of limited substantive content, litigation risk will chiefly depend on how the Executive implements the charge by regulation, and on how the Migration Act registration processes respond. Any future litigation is more likely to concern the regulations and administrative actions that give effect to the charge than the primary Act’s limited provisions.

Potential future judicial issues (text‑based, not predictive). The Act’s cross‑references to subsection 46C(1) of the Migration Act and to s 33(3A) of the Acts Interpretation Act 1901 create points of legal interaction where interpretation questions could arise when regulations are made. For example, disputes could concern the proper identification of who is a “registered participant”, whether a prescribed differential rate impermissibly discriminates between classes, or whether the proper index numbers were used for indexation in a particular year (s 6; s 8(4); s 10(3)). The Act itself does not create litigation pathways or dispute resolution procedures beyond the ordinary administrative law remedies that apply to decisions made under the Migration Act or under subordinate instruments.

Record of parliamentary debate only. The Act notes that a second reading speech was made in each House, but that material is not contained in the statute (postscript). Parliamentary speeches can be used as legislative history in statutory interpretation, but the Act text here does not reproduce those speeches. To establish any interpretive reliance on parliamentary statements one must consult the Hansard or the second reading speech separately.

Commencement conditionality. The Act’s commencement is conditional on the commencement of another Act, the Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Act 2023 (s 2). The provisions do not begin to operate until the later of the day after Royal Assent and the other Act’s commencement, and they will not commence at all if that other Act never commences (s 2). That conditionality creates a practical uncertainty window in which stakeholders may be unsure whether the charge will apply.

Silence on collection, timing and enforcement. The Act imposes the charge and fixes who pays, but it is silent on when the charge must be paid, whether registration can be refused or suspended for non‑payment, whether funds are refundable, and whether civil or criminal penalties apply for non‑payment (s 6-8; s 11). Until regulations are made, administrative officers and registrants lack statutory clarity on operational procedures and enforcement outcomes.

Regulatory discretion within a cap. The regulations may prescribe different amounts across processes and classes and may set amounts at nil (s 8(2)-(3), s 8(5)). That broad discretion will determine who ultimately bears the burden and may create complexity or unpredictability between different visa pre‑application processes. Although the Act caps the maximum at $100 before indexation (s 9), the Executive retains significant latitude to structure distinctions below that ceiling.

Indexation technicalities. The indexation formula in s 10 is precise and requires the use of ABS All Groups CPI numbers and specified quarterly sums. The rules on which index numbers to use, how to handle substituted index numbers, minimum indexation factor of 1, rounding to three decimal places, and rounding of dollar amounts could generate technical compliance errors if administrative calculations are not carefully implemented (s 10(2)-(7)). Misapplication of technical rules could lead to incorrect cap figures being published.

Territorial reach and extra‑territorial application. The Act’s extra‑territorial clause (s 4) and the importation of section 7 of the Migration Act for external Territories (s 3) mean the charge can apply beyond the mainland. That raises practical questions about collection mechanisms for overseas registrations and the interplay with foreign law and currency arrangements. The Act does not address currency conversion, cross‑border enforcement, or which domestic collection agents are authorised.

Interaction with Migration Act definitions and processes. The Act depends on the Migration Act’s definition of registration under subsection 46C(1) (s 6). Any ambiguity in that provision or in the operational processes for pre‑application registration will directly affect who is captured and when the charge arises. Practitioners must cross‑check the Migration Act and operational guidelines to advise clients accurately.

No statement of revenue application or appropriation. The Act does not specify how collected amounts are to be applied within the public finances. That absence leaves open questions about appropriation, accounting treatment and budgetary presentation. The implication for departmental practice and financial reporting must be resolved administratively.

References to other statutory provisions. Section 8(4) preserves subsection 33(3A) of the Acts Interpretation Act 1901. Advisers must be alert to interpretive constraints and consider that the Acts Interpretation Act may affect how classes and differences made by regulation are constructed and legally sustained.

Parliamentary materials not reproduced. The Act notes a second reading speech, but contains no explanatory memorandum or legislative statement of purpose in the text supplied. Practitioners relying on legislative history must consult separate parliamentary records rather than the statute for policy context.

Track commencement status. Before advising clients or implementing administrative systems, confirm whether the Act has commenced. The Act’s commencement is conditional on the commencement of the Migration Amendment (Australia’s Engagement in the Pacific and Other Measures) Act 2023 and the later of the day after Royal Assent (s 2). Check official commencement notices and the Federal Register of Legislation for the precise operative date.

Monitor subordinate legislation. The substantive obligations and operational mechanics will be set out in regulations under s 11. To comply, obtain and review the regulations that prescribe the charge amounts, payment timing, collection agents, exemptions, refunds and enforcement mechanisms. Until those regulations are made, the only binding details are that a charge attaches on registration and that any prescribed amount must not exceed the statutory cap as indexed (s 6-9).

Advise clients on likely payer identity and exposure. The statutory payer is the person who is registered under subsection 46C(1) of the Migration Act (s 7). Counsel and advisers should identify whether a client is the registrant under the Migration Act definition, and therefore the person who will be legally liable for the charge. If a registration is effected by an agent, confirm whether the agent or the principal will be recorded as the registrant and therefore the payer for charge purposes.

Prepare for indexation calculations. The charge cap is subject to CPI indexation under s 10. Administrative compliance requires implementing the specified formula and rules: use ABS All Groups CPI numbers, sum the four quarterly index numbers for the 12 months ending 31 December before each indexation day and the prior 12 months, compute the indexation factor, round to three decimal places (rounding up on the fourth decimal), raise any factor below 1 to 1, multiply the prior cap by the factor, and round the resulting dollar amount to the nearest whole dollar with 50 cents rounded up (s 10(2)-(7)). Ensure a documented calculation procedure and a published updated cap each 1 July as required.

Integrate payment processes into registration workflow. Because the Act ties the charge to registration under the Migration Act (s 6), agencies and service providers should embed payment steps into the registration workflow so that charge collection occurs at the point in the process designated by regulation. Until regulations specify timing, consider building a system capable of charging at application, prior to completion of registration, or on notification of successful registration, depending on regulatory design.

Assess cross‑jurisdictional and extra‑territorial considerations. The Act extends extra‑territorially (s 4) and imports s 7 of the Migration Act for external Territories (s 3). Where registrations occur offshore or involve external Territories, ensure that payment mechanisms, foreign currency handling, and cross‑border legal issues are dealt with by policy or regulation. Coordinate with treasury, collections, and legal counsel to manage practicalities.

Document classification‑based treatments. If regulations prescribe different amounts for different processes or classes of persons (s 8(2)-(3)), maintain a clear mapping table showing which persons and registrations fall into each class, the prescribed amount for that class, and the legal basis in the regulations. Retain records justifying any classification decisions in case of administrative or judicial challenge that invokes the Acts Interpretation Act’s rules (s 8(4)).

Prepare client communications and fees advice. For migration agents, employers and advisers, prepare template communications explaining that the registrant will be required to pay a statutory charge, that the amount will be set by regulation up to the capped/indexed limit, and that the timing and mechanics of payment depend on subordinate instruments. Avoid promising a fixed dollar amount until regulations are published and the cap is indexed as applicable.

Maintain audit and recordkeeping processes. Because the Act imposes a statutory monetary charge but does not itself set collection or accounting rules, agencies should adopt internal controls to record payments received, reconcile them to registration events, and ensure accounting treatment complies with appropriation and public finance rules. Establish a process for recording the indexation calculations and publishing the updated cap each year.

Watch for regulatory changes and parliamentary oversight. Regulations are subject to parliamentary processes and may be disallowed or amended. Regularly review Federal Register of Legislation updates and Gazettes for new regulations, commencement notices, and explanatory materials.