Migration Amendment Act (No. 4) 1992

No. 235 of 1992

An Act to amend the Migration Act 1958 in relation to certain non-citizens

[Assented to 24 December 1992]

The Parliament of Australia enacts:

Short title etc.

1.(1) This Act may be cited as the Migration Amendment Act (No. 4) 1992.

(2) In this Act, “Principal Act” means the Migration Act 1958¹.

Commencement

2.  This Act commences on the day on which it receives the Royal Assent.

Interpretation

3.  Section 54K of the Principal Act is amended by omitting “1 December 1992” from paragraph (a) of the definition of “designated person” and substituting “1 November 1993”.

Designated persons to be in custody

4.  Section 54L of the Principal Act is amended by adding at the end thereof the following subsection:

“(4) To avoid doubt and despite section 54Q, if subsection 54P(3) applies to a designated person, the person must be kept in custody until the person is removed from Australia under that subsection.”.

No custody or removal after certain period

5.  Section 54Q of the Principal Act is amended by adding at the end thereof the following subsections:

“(4) To avoid doubt, an entry application that has been refused is not being dealt with within the meaning of paragraph (3)(b) because only there could be an appeal against, or an application for the review of, the refusal.

“(5) If:

(a)     an entry application for a designated person has been refused; and

(b)    because of a direction or decision of a court or tribunal, the application is required to be considered further;

whichever of subsection (1) or (2) applies to the designated person so applies as if the reference in it to 273 days were a reference to that number of days increased by 90 as well as by any number by which it has been increased under this subsection in relation to that entry application before.

“(6) If:

(a)     an entry application for a designated person has been refused; and

(b)    apart from this subsection, section 54L would cease to apply to the person; and

(c)     the person begins court or tribunal proceedings in relation to the refusal;

that section applies to the person during both these proceedings and the period of 90 days after they end, whether or not this subsection has applied to that entry application before.”.

6.  Before section 54S of the Principal Act the following section is inserted:

No actions for certain unlawful custody

“54RA.(1) If:

(a)     a designated person was in custody after 19 November 1989 and before commencement; and

(b)    that custody was unlawful;

no action lies, and no action is taken to have lain, in any court (including any court of a State or Territory) against the Commonwealth, an officer or any other person for damages or compensation in respect of the custody, other than an action under subsection (2).

“(2) If:

(a)     a designated person was in custody after 19 November 1989 and before commencement; and

(b)    that custody was unlawful;

the designated person has, under this subsection, a right of action in a court of competent jurisdiction for compensation in respect of the unlawful custody.

“(3) The compensation that may be awarded to a designated person in an action under subsection (2) is to be $1 for each day of the person’s unlawful custody.

“(4) To avoid doubt, a designated person does not have any right to remain in Australia because only:

(a)     the person is contemplating, or has begun, an action under subsection (2); or

(b)    the person has, or is taking steps to enforce, a right of action in respect of unlawful custody to which subsections (1) and (2) do not apply.”.

Effect of Division on status etc.

7. Section 54S of the Principal Act is amended by adding at the end of subsection (2) “or 54RA”.

NOTE

1. No. 62, 1958, as amended. For previous amendments, see No. 87, 1964; No. 10, 1966; Nos. 16 and 216, 1973; Nos. 37 and 91, 1976; Nos. 117 and 118, 1979; Nos. 89 and 175, 1980; No. 61, 1981; No. 51, 1982; Nos. 73 and 112, 1983; Nos. 22, 72 and 123, 1984; Nos. 71, 102 and 168, 1986; Nos. 86, 104, 133 and 141, 1987; Nos. 5, 38, 49 and 151, 1988; Nos. 59 and 61, 1989; No. 37, 1990; Nos. 70, 86, 196 and 198, 1991; and Nos. 24, 84 and 85, 1992.

[Minister’s second reading speech made in—

House of Representatives on 17 December 1992 a.m.

Senate on 17 December 1992]