Federal Register of Legislation - Australian Government

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A Bill for an Act to amend the Migration Act 1958, and for related purposes
Administered by: Immigration and Border Protection
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 26 Feb 2015
Introduced HR 25 Feb 2015
Table of contents.

2013‑2014‑2015

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Bill 2015

 

No.      , 2015

 

(Immigration and Border Protection)

 

 

 

A Bill for an Act to amend the Migration Act 1958, and for related purposes

  

  


Contents

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

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

3............ Schedules............................................................................................ 2

Schedule 1—Amendments                                                                                                3

Migration Act 1958                                                                                                     3

 


A Bill for an Act to amend the Migration Act 1958, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act may be cited as the Migration Amendment (Maintaining the Good Order of Immigration Detention Facilities) Act 2015.

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

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation 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

  

Migration Act 1958

1  Subsection 5(1) (note at the end of the definition of authorised officer)

Omit “Note”, substitute “Note 1”.

2  Subsection 5(1) (at the end of the definition of authorised officer)

Add:

Note 2:       An officer must not be authorised for the purposes of section 197BA unless the officer satisfies the training and qualification requirements determined under subsection 197BA(7): see subsection 197BA(6).

3  Subsection 5(1)

Insert:

immigration detention facility has the meaning given by subsection 197BA(3).

4  At the end of Part 1

Add:

12A  Use of force provisions do not limit or affect each other

                   The provisions of this Act and the regulations that authorise (whether expressly or otherwise) the use of force:

                     (a)  operate independently of each other; and

                     (b)  do not limit, or in any way otherwise affect, each other.

5  After Division 7A of Part 2

Insert:

Division 7BImmigration detention facilities

197BA  Maintaining the good order etc. of immigration detention facilities

             (1)  An authorised officer may use such reasonable force against any person or thing, as the authorised officer reasonably believes is necessary, to:

                     (a)  protect the life, health or safety of any person (including the authorised officer) in an immigration detention facility; or

                     (b)  maintain the good order, peace or security of an immigration detention facility.

             (2)  Without limiting subsection (1), an authorised officer may use such reasonable force as the authorised officer reasonably believes is necessary under that subsection:

                     (a)  to protect a person (including the authorised officer) in an immigration detention facility from harm or a threat of harm; or

                     (b)  to protect a detainee in an immigration detention facility from self‑harm or a threat of self‑harm; or

                     (c)  to prevent the escape of a detainee from an immigration detention facility; or

                     (d)  to prevent a person from damaging, destroying or interfering with property in an immigration detention facility; or

                     (e)  to move a detainee within an immigration detention facility; or

                      (f)  to prevent action in an immigration detention facility by any person that:

                              (i)  endangers the life, health or safety of any person (including the authorised officer) in the facility; or

                             (ii)  disturbs the good order, peace or security of the facility.

Immigration detention facility

             (3)  An immigration detention facility is:

                     (a)  a detention centre established under this Act; or

                     (b)  a place approved by the Minister under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1).

Limitations on the exercise of power

             (4)  An authorised officer must not exercise the power under subsection (1) to give nourishment or fluids to a detainee in an immigration detention facility.

             (5)  In exercising the power under subsection (1), an authorised officer must not:

                     (a)  subject a person to greater indignity than the authorised officer reasonably believes is necessary in the circumstances; or

                     (b)  do anything likely to cause a person grievous bodily harm unless the authorised officer reasonably believes that doing the thing is necessary to protect the life of, or to prevent serious injury to, another person (including the authorised officer).

Training and qualification requirements

             (6)  An officer must not be authorised for the purposes of this section unless the officer satisfies the training and qualification requirements determined under subsection (7).

Note:          For the authorisation of officers see the definition of authorised officer in subsection 5(1).

             (7)  The Minister must determine, in writing, training and qualification requirements for the purposes of this section.

             (8)  A determination under subsection (7) is not a legislative instrument.

Effect of this section

             (9)  This section does not limit subsection 273(2).

Note:          Subsection 273(2) allows regulations to be made in relation to the operation and regulation of detention centres.

197BB  Complaints

             (1)  A person may complain to the Secretary about an authorised officer’s exercise of power under section 197BA.

             (2)  A complaint must:

                     (a)  be in writing; and

                     (b)  be signed by the complainant; and

                     (c)  describe the matter complained about.

             (3)  The Secretary must provide appropriate assistance to a person who:

                     (a)  wishes to make a complaint; and

                     (b)  requires assistance to formulate the complaint.

             (4)  The Secretary must notify the complainant in writing of the receipt of the complaint.

197BC  Investigation of complaints

             (1)  Subject to sections 197BD and 197BE, the Secretary must investigate a complaint made under section 197BB.

             (2)  The investigation is to be conducted in any way the Secretary thinks appropriate.

             (3)  If, after completing the investigation, the Secretary is satisfied that it is appropriate to refer the complaint to the Ombudsman, the Secretary must:

                     (a)  refer the complaint to the Ombudsman; and

                     (b)  notify the complainant in writing that the complaint has been so referred; and

                     (c)  give the Ombudsman any information or documents that relate to the complaint and that are in the Secretary’s possession or under the Secretary’s control.

             (4)  A complaint referred to the Ombudsman under subsection (3) is taken to be a complaint to the Ombudsman under the Ombudsman Act 1976.

197BD  Secretary may decide not to investigate a complaint

             (1)  The Secretary may decide not to investigate, or not to investigate further, a complaint made under section 197BB, if the Secretary is satisfied that:

                     (a)  the complainant has previously made the same, or a substantially similar, complaint to the Secretary and the Secretary:

                              (i)  has dealt, or is dealing, adequately, with the complaint; or

                             (ii)  has not yet had an adequate opportunity to deal with the complaint; or

                     (b)  the complaint is frivolous, vexatious, misconceived, lacking in substance or is not made in good faith; or

                     (c)  the complainant does not have sufficient interest in the subject matter of the complaint; or

                     (d)  the investigation, or any further investigation, is not justified in all the circumstances.

             (2)  The Secretary must notify the complainant in writing if the Secretary decides not to investigate the complaint, or not to investigate it further. The notice must include the reasons for the decision.

197BE  Transfer of complaint

             (1)  If the Secretary is satisfied that a complaint could be more conveniently or effectively dealt with by any of the following persons (the transferee):

                     (a)  the Ombudsman;

                     (b)  the Commissioner of the Australian Federal Police;

                     (c)  the Commissioner or head (however described) of the police force of a State or Territory;

the Secretary may decide not to investigate the complaint, or not to investigate it further.

             (2)  If the Secretary decides as mentioned in subsection (1), the Secretary must:

                     (a)  transfer the complaint to the transferee; and

                     (b)  notify the complainant in writing that the complaint has been so transferred; and

                     (c)  give the transferee any information or documents that relate to the complaint and that are in the Secretary’s possession or under the Secretary’s control.

             (3)  A complaint transferred to the Ombudsman under subsection (2) is taken to be a complaint to the Ombudsman under the Ombudsman Act 1976.

197BF  Bar on proceedings relating to immigration detention facilities

             (1)  No proceedings may be instituted or continued in any court against the Commonwealth in relation to an exercise of power under section 197BA if the power was exercised in good faith.

             (2)  This section has effect despite anything else in this Act or any other law.

             (3)  Nothing in this section is intended to affect the jurisdiction of the High Court under section 75 of the Constitution.

             (4)  In this section:

Commonwealth includes:

                     (a)  an officer of the Commonwealth; and

                     (b)  any other person acting on behalf of the Commonwealth.

197BG  Saving of other laws

                   This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory that is capable of operating concurrently with this Division.