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A Bill for an Act to amend the Migration Act 1958 in relation to asylum seekers and immigration detention, to restore rights and procedural fairness to persons affected by decisions taken under the Act, and for related purposes
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Registered 24 Nov 2010
Introduced Senate 18 Nov 2010

 

2010

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

Migration Amendment (Detention Reform and Procedural Fairness) Bill 2010

 

No.      , 2010

 

(Senator Hanson‑Young)

 

 

 

 

A Bill for an Act to amend the Migration Act 1958 in relation to asylum seekers and immigration detention, to restore rights and procedural fairness to persons affected by decisions taken under the Act, and for related purposes

  

  


Contents

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

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

3............ Schedule(s).......................................................................................... 2

Schedule 1—Amendment of the Migration Act 1958                                         3

Part 1—Amendment establishing asylum seeker principles                              3

Part 2—Amendments facilitating judicial review of detention decisions       4

Part 3—Amendments repealing excised offshore places provisions             7

Part 4—Amendments restoring fair process and procedural fairness           9

Part 5—Amendments relating to the duration of detention                             12

Schedule 2—Amendment of the Administrative Decisions (Judicial Review) Act 1977    13

 


A Bill for an Act to amend the Migration Act 1958 in relation to asylum seekers and immigration detention, to restore rights and procedural fairness to persons affected by decisions taken under the Act, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Migration Amendment (Detention Reform and Procedural Fairness) Act 2010.

2  Commencement

                   This Act commences on the day after it receives the Royal Assent.

3  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                   Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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 1Amendment of the Migration Act 1958

Part 1Amendment establishing asylum seeker principles

1  After section 4

Insert:

4AAA  Asylum seeker principles

             (1)  The section establishes the principles that are to apply to persons seeking asylum in accordance with this Act (the asylum seeker principles).

             (2)  The asylum seeker principles established in this section are based on principles contained in international conventions and treaties to which Australia is a signatory, as they relate to refugees and asylum seekers.

             (3)  The asylum seeker principles are:

                     (a)  immigration detention that is indefinite or otherwise arbitrary is not acceptable and the length and conditions of such detention, including the appropriateness of both the accommodation and the services provided, must be subject to regular review;

                     (b)  detention in immigration detention facilities must only be used as a last resort and for the shortest practicable time;

                     (c)  people in immigration detention must be treated fairly and reasonably within the law;

                     (d)  living conditions in immigration detention must ensure the inherent dignity of the human person.

             (4)  Any person making any decision about refugees, asylum seekers, immigration detention or a related matter under this Act, or a under a regulation or other instrument made under this Act, must have regard to the asylum seeker principles set out in subsection (3).

Part 2Amendments facilitating judicial review of detention decisions

2  Subsection 42(4) (note)

Omit “must”, substitute “may”.

3  Subsection 189(1)

Omit “must”, substitute “may”.

4  Subsection 189(2)

Omit “must”, substitute “may”.

5  After section 195A

Insert:

195B  Detainee may apply for an order for release

             (1)  An officer who has detained a person under section 189 must, as soon as practicable after detaining the person, set out in writing:

                     (a)  the circumstances of the detention;

                     (b)  the reasons for the decision to detain the person; and

                     (c)  the grounds for the decision to continue to detain the person.

             (2)  As soon as reasonably practicable after an officer detains a person under section 189, the officer must ensure that the person is given a copy of the information required to be set out under subsection (1) in relation to the detention of the person.

             (3)  A person detained under section 189 may apply to a magistrate for an order that he or she be released from detention because there are no reasonable grounds to justify:

                     (a)  the officer’s decision to detain the person; or

                     (b)  the officer’s decision to continue to detain the person.

             (4)  If the magistrate is not satisfied that, in all the circumstances, it is appropriate that the person continue to be detained, the magistrate may make any order the magistrate sees fit, including:

                     (a)  an order that the person must be released; or

                     (b)  an order that the person must be granted a visa, including a bridging visa, subject to any conditions the magistrate considers appropriate.

             (5)  A decision to detain a person under section 189 or to continue to detain a person detained under section 189 is not a privative clause decision.

195C  Order for continued detention

             (1)  A person detained under section 189 must not be detained for more than 30 days except in accordance with an order made under this section.

             (2)  The Secretary may apply to a magistrate for an order that a person detained under section 189 is to continue to be detained for more than 30 days.

             (3)  An application under subsection (2) must specify why it is necessary to continue to detain the person.

             (4)  If the magistrate is satisfied that, in all the circumstances, it is appropriate that the person is to continue to be detained, the magistrate may make an order for the continued detention of the person, subject to any conditions the magistrate considers appropriate, until:

                     (a)  the person is released from detention pursuant to paragraph 196(1)(c); or

                     (b)  a specified date.

             (5)  If the magistrate is not satisfied that, in all the circumstances, it is appropriate that the person is to continue to be detained, the magistrate may make any order the magistrate sees fit, including:

                     (a)  an order that the person must be released from detention; or

                     (b)  an order that the person must be granted a visa, including a bridging visa, subject to any conditions the magistrate considers appropriate.

6  Subsection 196(3)

Repeal the subsection, substitute:

             (3)  To avoid doubt, subsection (1) does not prevent the release of a person from detention in accordance with a court order under section 195B or 195C.

7  Application

(1)        The amendments made by this Part apply in relation to a person who:

                     (a)  was detained under section 189 as it was in force immediately prior to the commencement day; and

                     (b)  continues to be detained on the commencement day;

            with the modifications set out in subitem (2).

(2)        The amendments made by this Part operate in relation to a person mentioned in subitem (1) as if:

                     (a)  subsection 195B(1) were modified by omitting “as soon as practicable after detaining the person” and substituting “as soon as practicable after the commencement day”; and

                     (b)  subsection 195B(2) were modified by omitting “As soon as reasonably practicable after an officer detains a person under section 189” and substituting “As soon as reasonably practicable after the commencement day”; and

                     (c)  subsection 195C(1) were modified by inserting “after the commencement day” after “more than 30 days”; and

                     (d)  subsection 195C(2) were modified by inserting “after the commencement day” after “more than 30 days”.

(3)        In this item:

commencement day means the day on which this Schedule commences.

Part 3Amendments repealing excised offshore places provisions

8  Subsection 5(1) (definition of excised offshore place including the note)

Repeal the definition and the note.

9  Subsection 5(1) (definition of excision time)

Repeal the definition.

10  Subsection 5(1) (note 1 to the definition of immigration detention)

Repeal the note.

11  Subsection 5(1) (definition of offshore entry person)

Repeal the definition.

12  Subsection 5(1) (paragraph (a) of the definition of transitory person)

Repeal the paragraph.

13  Subparagraph 5A(3)(j)(ii)

Omit “an offshore entry person”, substitute “a person”.

14  Section 46A

Repeal the section.

15  Subsection 189(1)

Omit “(other than an excised offshore place)”.

16  Paragraph 189(2)(a)

Omit “(other than an excised offshore place)”.

17  Subsections 189(3), (4) and (5)

Repeal the subsections.

18  Paragraph 193(1)(c)

Repeal the paragraph.

19  Section 197AA

Omit “required or”.

20  Subsection 197AD(1) (note 2)

Omit “requires”, substitute “permits”.

21  Paragraph 198(2)(a)

Omit “, (c)”.

22  Section 198A

Repeal the section.

23  Subsection 198D(3) (paragraph (b) of the definition of uncooperative conduct)

Omit “;”, substitute “.”.

24  Subsection 198D(3) (paragraph (c) of the definition of uncooperative conduct)

Repeal the paragraph.

25  Subparagraphs 336F(3)(a)(ii) and (4)(a)(ii)

Omit “an offshore entry person”, substitute “a person”.

26  Paragraph 336F(5)(c)

Omit “an offshore entry person”, substitute “a person”.

27  Section 494AA

Repeal the section.

28  Application of amendments

(1)        The amendments made by this Part apply to a visa application that has not been finally determined before the commencement day.

(2)        In this item:

commencement day means the day on which this Part commences.

Part 4Amendments restoring fair process and procedural fairness

29  Subsection 5(1) (definition of migration decision)

Repeal the definition, substitute:

migration decision means a decision under this Act.

30  Subsection 5(1) (definition of non‑privative clause decision)

Repeal the definition.

31  Subsection 5(1) (definition of privative clause decision)

Repeal the definition.

32  Subsection 5(1) (definition of purported privative clause decision)

Repeal the definition.

33  Section 5E

Repeal the section.

34  Subsection 32(2)

Omit “the Minister is satisfied”.

35  Paragraph 36(2)(a)

Omit “the Minister is satisfied”.

36  Section 51A

Repeal the section.

37  Section 97A

Repeal the section.

38  Section 118A

Repeal the section.

39  Section 127A

Repeal the section.

40  Section 357A

Repeal the section.

41  Section 422B

Repeal the section.

42  Part 8

Repeal the Part.

43  Subsection 486A(3)

Repeal the subsection, substitute:

             (3)  In this section:

date of the migration decision means:

                     (a)  in the case of a migration decision made under subsection 43(1) of the Administrative Appeals Tribunal Act 1975—the date of the written decision under that subsection; or

                     (b)  in the case of a written migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the written statement under subsection 368(1) or 430(1); or

                     (c)  in the case of an oral migration decision made by the Migration Review Tribunal or the Refugee Review Tribunal—the date of the oral decision; or

                     (d)  in any other case—the date of the written notice of the decision or, if no such notice exists, the date that the Court considers appropriate.

44  Subsection 486A(4)

Omit “subsection 477(3)”, substitute “subsection (3)”.

45  Paragraph 486C(2)(a)

Repeal the paragraph.

46  Subsection 486C(3)

Omit “section 476 of this Act,”.

47  Subsection 486C(3A)

Omit “and proceedings in which the Federal Court has jurisdiction under paragraph 476A(1)(b) or (c)”.

48  Subsection 503B(14) (table items 1, 2 and 3)

Repeal the table items.

Part 5Amendments relating to the duration of detention

49  Subsections 196(4), (4A), (5), (5A), (6) and (7)

Repeal the subsections.

Schedule 2Amendment of the Administrative Decisions (Judicial Review) Act 1977

  

1  Paragraph (da) of Schedule 1

Repeal the paragraph.