Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the Migration Act 1958 to prohibit the detention of minors in detention centres, and for related purposes
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Registered 24 Nov 2010
Introduced Senate 28 Oct 2010

 

2010

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

 

 

Migration Amendment (Detention of Minors) Bill 2010

 

No.      , 2010

 

(Senator Hanson‑Young)

 

 

 

A Bill for an Act to amend the Migration Act 1958 to prohibit the detention of minors in detention centres, and for related purposes

  

  


Contents

1............ Short title............................................................................................ 1

2............ Commencement.................................................................................. 1

3............ Objects................................................................................................ 2

4............ Schedule(s).......................................................................................... 3

Schedule 1—Amendments relating to the detention of minors                     4

Migration Act 1958                                                                                                     4

Schedule 2—Amendments relating to the guardianship of minors             7

Migration Act 1958                                                                                                     7

Part 1—Appointment of a guardian                                                                           7

Part 2—Children’s Commissioner                                                                              8


A Bill for an Act to amend the Migration Act 1958 to prohibit the detention of minors in detention centres, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Migration Amendment (Detention of Minors) Act 2010.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1.  Sections 1 to 4 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

The day after this Act receives the Royal Assent

 

3.  Schedule 2, Part 1

The day after this Act receives the Royal Assent

 

4.  Schedule 2, Part 2

Immediately after the commencement of the Commonwealth Commissioner for Children and Young People Act 2010, but if that event does not occur, the Part does not commence at all.

 

Note:          This table relates only to the provisions of this Act as originally passed by both Houses of the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.

             (2)  Column 3 of the table contains additional information that is not part of this Act. Information in this column may be added to or edited in any published version of this Act.

3  Objects

                   The objects of this Act are:

                     (a)  to provide that children detained under the Migration Act 1958 not be held in immigration detention facilities but instead be placed, along with their immediate family members or guardians, in community residential facilities; and

                     (b)  to uphold Australia’s international obligations under the United Nations Convention on the Rights of the Child, particularly as they relate to:

                              (i)  the primacy of the consideration of the child’s best interests (Article 4); and

                             (ii)  the principle that children must only be detained as a measure of last resort (Article 37).

4  Schedule(s)

                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendments relating to the detention of minors

  

Migration Act 1958

1  Section 4AA

Repeal the section, substitute:

4AA  Principles protecting the rights of minors under this Act

             (1)  The principles set out in this section, drawn from Article 37 of the Convention on the Rights of the Child, must in every relevant case be applied by each person exercising a power or performing a function under this Act.

             (2)  No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

             (3)  Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

             (4)  Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

2  Subsection 5(1)

Insert:

Convention on the Rights of the Child means the United Nations Convention on the Rights of the Child done at New York on 20 November 1989.

3  After subsection 197AB

Insert:

197ABA  Minister must determine that minor is to reside at a specified place rather than being held in detention centre etc.

             (1)  If a person to whom this Subdivision applies is identified as a minor, the Minister must, as soon as practicable but in any case within 12 days, make a determination (a residence determination) to the effect that the person is to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

             (2)  If a person to whom this Subdivision applies is a member of the same family unit as a minor to whom subsection (1) applies, the Minister must, as soon as practicable, make a determination (a residence determination) to the effect that the person is to reside with the minor at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

             (3)  If no person over the age of 18 has been identified as a member of the same family unit as a minor to whom subsection (1) applies, but the minor is, or has been, in the care of another person to whom this Subdivision applies, the Minister must, as soon as practicable, make a determination (a residence determination) to the effect that the person is to reside with the minor at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

             (4)  The Minister may decline to make a determination under subsection (2) or (3) if the Minister decides that it is in the best interests of the child to do so.

Note:          Section 4AA sets out principles relevant to making a determination under this subsection.

             (5)  To avoid doubt, the Minister may delegate to an authorised officer the power to make a determination under subsection (1), (2) or (3), provided that the officer is:

                     (a)  the Secretary; or

                     (b)  an SES employee, or equivalent officer.

             (6)  Regulations made for the purposes of this section must provide:

                     (a)  a method for a person to apply for recognition of:

                              (i)  his or her relationship to a minor for the purposes of  subsection (2); or

                             (ii)  his or her care of a minor for the purposes of subsection (3); and

                     (b)  for the recognition of that status to be determined within 30 days of application.

5  Subsection 197AD(2)

After “197AB(1) and (2)”, insert “and 197ABA(1), (2) and (3)”.


Schedule 2Amendments relating to the guardianship of minors

  

Migration Act 1958

Part 1—Appointment of a guardian

1  Subsection 197ABA(4)

After “Minister decides”, insert “, in consultation with the guardian of the minor if one has been appointed under section 197AH,”

2  At the end of Division 7 of Part 2

Add:

Subdivision C—Appointment of a guardian

197AH  Appointment of a guardian

             (1)  If a person to whom Subdivision B applies is identified as a minor, the Minister must as soon as practicable but in any case within 12 days, appoint a person to act as guardian of the minor.

             (2)  An appointment under subsection (1) must be made by notice in writing to the person appointed as guardian, and a copy given to the minor.

             (3)  An appointment under subsection (1) remains in force until:

                     (a)  this Act no longer requires or permits the person to be detained or to reside at a specified place under a residence determination; or

                     (b)  the appointment is revoked by the Minister, in writing, and a new appointment is made under that subsection; or

                     (c)  the minor reaches the age of 18.

             (4)  A person must not be appointed as a guardian of a minor under subsection (1) unless the Minister is satisfied that:

                     (a)  the person has appropriate qualifications, knowledge or experience and is of good character; and

                     (b)  the person has a demonstrated commitment to, and capacity to advance the rights, interests and well‑being of, children and young people; and

                     (c)  the person is able to represent the best interests of the minor.

             (5)  A person appointed as a guardian to a minor under subsection (1) is authorised by this section to:

                     (a)  represent the minor as guardian in respect of any provision of this Act; and

                     (b)  advocate for the best interests of the child in any relevant proceeding or forum; and

                     (c)  advocate for the rights of the child in any relevant proceeding or forum.

             (6)  To avoid doubt, the Minister may delegate to an authorised officer the power to make an appointment under subsection (1), provided that the officer is:

                     (a)  the Secretary; or

                     (b)  an SES employee, or equivalent officer.

Part 2—Children’s Commissioner

1  Subsection 5(1)

Insert:

Children’s Commissioner means a person appointed under section 13 of the Commonwealth Commissioner for Children and Young People Act 2010.

2  Subsection 197AH(1)

Omit “appoint a person”, substitute “appoint the Children’s Commissioner”.

3  Transitional

                        An appointment made under subsection 197AH(1) before the commencement of this Part has effect (after the commencement of this Part) as if the person appointed were the Children’s Commissioner.