Federal Register of Legislation - Australian Government

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A Bill for an Act to end the indefinite and arbitrary detention of people seeking asylum in Australia, and for related purposes.
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Registered 01 Aug 2022
Introduced HR 01 Aug 2022

2022

 

The Parliament of the

Commonwealth of Australia

 

HOUSE OF REPRESENTATIVES

 

 

 

 

Presented and read a first time

 

 

 

 

Ending Indefinite and Arbitrary Immigration Detention Bill 2022

 

No.      , 2022

 

(Mr Wilkie)

 

 

 

A Bill for an Act to end the indefinite and arbitrary detention of people seeking asylum in Australia, and for related purposes

  

  

  


Contents

Part 1—Preliminary                                                                                                             1

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

2............ Commencement................................................................................... 2

3............ Simplified outline................................................................................ 2

4............ Act binds the Crown........................................................................... 2

5............ Definitions.......................................................................................... 2

6............ Constitutional basis of this Act........................................................... 4

7............ Additional operation of this Act.......................................................... 4

8............ Principle of family unity...................................................................... 4

9............ Principle of the rights and best interests of the child........................... 5

Part 2—Immigration detention                                                                                      6

10.......... Relationship with other laws............................................................... 6

11.......... Immigration detention......................................................................... 6

12.......... Alternatives to immigration detention.................................................. 6

13.......... Access to assistance in alternatives to immigration detention.............. 7

14.......... Timeframes for the determination of alternatives to immigration detention               8

15.......... Revocation or variation of restrictions................................................. 8

16.......... Reasons for immigration detention...................................................... 8

17.......... Time frames for immigration detention............................................... 9

18.......... Information provided to detainees..................................................... 10

19.......... Access to services in detention.......................................................... 11

20.......... Communication for the purpose of obtaining immigration assistance 11

21.......... Children in detention......................................................................... 12

22.......... Independent monitoring.................................................................... 14

23.......... Review of decisions.......................................................................... 14

Part 3—Miscellaneous                                                                                                       16

24.......... Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)        16

25.......... Regulations....................................................................................... 16

 


A Bill for an Act to end the indefinite and arbitrary detention of people seeking asylum in Australia, and for related purposes

The Parliament of Australia enacts:

Part 1Preliminary

  

1  Short title

                   This Act is the Ending Indefinite and Arbitrary Immigration Detention Act 2022.

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.  The whole of this Act

The day this Act receives the Royal Assent.

 

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  Simplified outline

             (1)  This Act establishes a legal framework governing immigration detention in Australia.

             (2)  This Act:

                     (a)  does not allow mandatory detention; and

                     (b)  prioritises:

                              (i)  non‑citizens’ immediate needs; and

                             (ii)  refugee and international human rights law.

4  Act binds the Crown

                   This Act binds the Crown in each of its capacities.

5  Definitions

             (1)  In this Act:

adverse security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.

Australian legal practitioner has the same meaning as in Part 3 of the Migration Act.

Convention on the Rights of the Child means the Convention on the Rights of the Child done at New York on 20 November 1989, as in force for Australia from time to time.

Note:          The Convention on the Rights of the Child is in Australian Treaty Series 1991 No. 4 ([1991] ATS 4) and could in 2022 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

immigration assistance has the same meaning as in Part 3 of the Migration Act.

Migration Act means the Migration Act 1958.

Migration Minister means the Minister administering section 65 of the Migration Act.

non‑citizen includes a refugee.

principle of family unity has a meaning affected by section 8.

principle of the rights and best interests of the child has a meaning affected by section 9.

refugee includes a person who:

                     (a)  is seeking asylum; or

                     (b)  is a refugee within the meaning of section 5H of the Migration Act; or

                     (c)  is recognised as a refugee under the Refugees Convention.

Secretary means the Secretary of the Department.

security assessment has the same meaning as in Part IV of the Australian Security Intelligence Organisation Act 1979.

             (2)  An expression used in this Act that is defined for the purposes of the Migration Act has the same meaning in this Act as it has in the Migration Act.

6  Constitutional basis of this Act

                   This Act relies on the Commonwealth’s legislative powers under the following provisions of the Constitution:

                     (a)  paragraph 51(xix) (aliens);

                     (b)  paragraph 51(xxvii) (immigration and emigration).

7  Additional operation of this Act

             (1)  In addition to section 6, this Act also has effect as provided by this section.

External affairs power

             (2)  This Act also has the effect it would have if its operation were expressly confined to give effect to Australia’s rights and obligations under an agreement with one or more countries.

             (3)  This Act also has the effect it would have if its operation were expressly confined to acts or omissions that occur beyond the limits of the States and Territories.

             (4)  This Act also has the effect it would have if its operation were expressly confined to matters that are of international concern.

8  Principle of family unity

             (1)  The Parliament affirms that the principle of family unity should be adopted in conformity with the obligation to protect the family and respect family life, subject to the best interests of the child, as enshrined in many instruments of international law including the Convention on the Rights of the Child.

             (2)  The principle of family unity must be a paramount consideration in any decision or other action taken for the purposes of this Act.

             (3)  The principle of family unity includes the principle that a country should refrain from taking actions that would disrupt members of a family unit of a person.

Note:          The expression member of the family unit of a person is defined for the purposes of the Migration Act.

9  Principle of the rights and best interests of the child

             (1)  The principle of the rights and best interests of the child must be a paramount consideration in any decision or other action:

                     (a)  taken for the purposes of this Act; and

                     (b)  that affects a child.

             (2)  The principle of the rights and best interests of the child includes:

                     (a)  the principle of family unity; and

                     (b)  the principle that a country should recognise and provide for every child’s inherent right to life and ensure to the maximum extent possible the survival and development of the child (including health and mental health services, counselling and trauma services, phone and internet, education, legal services and accommodation and financial assistance); and

                     (c)  the principle that a country should ensure that throughout the immigration process children will be assured the right to express their views freely in all matters affecting them, their views being given due weight in accordance with the child’s age and level of maturity.

Part 2Immigration detention

  

10  Relationship with other laws

                   This Part applies in relation to all immigration detention in Australia, despite:

                     (a)  any other law of the Commonwealth, a State or a Territory (whether written or unwritten); and

                     (b)  in particular, sections 189 and 196 and the other provisions of the Migration Act.

11  Immigration detention

             (1)  The Parliament intends that immigration detention always be:

                     (a)  lawful, under both international law and domestic law; and

                     (b)  necessary and proportionate; and

                     (c)  for the shortest time possible; and

                     (d)  in Australia.

             (2)  The Parliament also intends that alternatives to detention are the preferred option to immigration detention for non‑citizens.

12  Alternatives to immigration detention

             (1)  If there is no reason under section 16 for a non‑citizen to be taken into, or kept in, immigration detention, the Secretary must, in writing, determine alternatives to immigration detention that are to apply in relation to the non‑citizen.

Note:          A reference in this Act to a non‑citizen includes a reference to a refugee: see subsection 5(1).

             (2)  A determination under subsection (1) must permit a non‑citizen covered by the determination to live in the community in accordance with the restriction (if any) specified in the determination. The restriction may be any one of the following:

                     (a)  a requirement to deposit or surrender documentation such as passports;

                     (b)  reporting conditions, such as periodic reporting to an authority or organisation of a kind prescribed by the regulations (which may include, for example, an immigration authority or a non‑government organisation);

                     (c)  a requirement that the non‑citizen must reside at a specific address or within a particular suburb or area;

                     (d)  a requirement to provide a guarantor who would be responsible for ensuring the non‑citizen’s attendance at official appointments and hearings and for ensuring that the non‑citizen otherwise reports as specified in any condition of release.

             (3)  If a determination under subsection (1) includes a requirement that a non‑citizen deposit or surrender identification documentation, the Secretary must ensure that the non‑citizen is issued with alternative forms of identification.

             (4)  A copy of a determination under subsection (1) must be given to the non‑citizen covered by the determination.

Bridging visas

             (5)  If a determination under subsection (1) is in force in relation to a person who, apart from this subsection, would be an unlawful non‑citizen, the Migration Minister is to grant a bridging visa to the person.

13  Access to assistance in alternatives to immigration detention

             (1)  If a determination under subsection 12(1) is in force then:

                     (a)  adequate material support, accommodation and access to means of self‑sufficiency (including any necessary financial support) must be provided to the non‑citizen; and

                     (b)  the non‑citizen must have the right to work if aged 16 or over; and

                     (c)  the non‑citizen must have access to each service prescribed for the purposes of subsection 19(1).

             (2)  Subsection (1) has effect despite any other law of the Commonwealth, a State or a Territory (whether written or unwritten).

14  Timeframes for the determination of alternatives to immigration detention

                   A determination under subsection 12(1) remains in force for:

                     (a)  12 months; or

                     (b)  if, on application, the Federal Circuit and Family Court of Australia (Division 2) makes an order fixing a longer period—that period.

15  Revocation or variation of restrictions

                   If a determination under subsection 12(1) is in force that covers a non‑citizen, and the non‑citizen fails to comply with the restriction specified in the determination, the Secretary may:

                     (a)  revoke the determination; or

                     (b)  vary the restriction.

16  Reasons for immigration detention

             (1)  A non‑citizen may be taken into, or kept in, immigration detention only for one or more of the following reasons that apply, on a particularised and individualised basis, to the non‑citizen:

                     (a)  to document the non‑citizen’s entry;

                     (b)  to record the non‑citizen’s claims for asylum;

                     (c)  to determine the non‑citizen’s identity;

                     (d)  to await health clearance so as to protect public health;

                     (e)  to await a security assessment;

                      (f)  to prevent the non‑citizen from absconding if there is evidence of a risk of the non‑citizen absconding;

                     (g)  if there is risk that the non‑citizen might destroy evidence or influence witnesses;

                     (h)  if an adverse security assessment has been made in respect of the non‑citizen.

             (2)  A non‑citizen must not be taken into, or kept in, immigration detention for any of the following reasons:

                     (a)  the non‑citizen’s mode of arrival (for example by boat);

                     (b)  irregular entry or stay, provided that the non‑citizen has presented themselves without delay to the authorities and shown good cause for their irregular entry or stay;

                     (c)  executive order.

             (3)  A non‑citizen must not be held in prison, with prisoners or in prison‑like facilities unless the non‑citizen has been convicted of, or is being held in custody on remand in relation to, an offence against a law of the Commonwealth, a State or a Territory that is punishable by imprisonment.

             (4)  No non‑citizen may be subjected to arbitrary or mandatory detention.

17  Time frames for immigration detention

             (1)  A non‑citizen (other than a non‑citizen referred to in subsection 21(2)) must not be kept in immigration detention for more than 3 months.

Note:          Subsection 21(2) is about the detention of children.

             (2)  On application, the Federal Circuit and Family Court of Australia (Division 2) may extend, or further extend, that period by up to 6 months. The court may do so only if that period, or that period as last extended, has not yet ended. The period, as extended or further extended, must not exceed 12 months.

             (3)  In determining whether to make an order under subsection (2), the Federal Circuit and Family Court of Australia (Division 2) must take into account the following:

                     (a)  that detention of non‑citizens should only occur as a measure of last resort and that there should be a general presumption against the detention;

                     (b)  whether there are any non‑custodial measures available (for example the imposition of reporting obligations or other conditions);

                     (c)  the balancing of the rights to liberty, security and freedom of movement of the non‑citizen with the public safety objections of immigration detention.

             (4)  If the Federal Circuit and Family Court of Australia (Division 2) makes an order under subsection (2), the court may also make any other order the court considers appropriate to facilitate the non‑citizen not being kept in immigration detention for longer than the extended, or further extended, period.

Appeals

             (5)  An appeal lies from a decision of the Federal Circuit and Family Court of Australia (Division 2) under subsection (2) to the Federal Court of Australia.

             (6)  If an appeal is made against a decision to make an order under subsection (2), the Federal Court:

                     (a)  is to proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received in the Federal Circuit and Family Court of Australia (Division 2); and

                     (b)  may make such decrees as it considers appropriate, including a decree affirming, reversing or varying the decision of the Federal Circuit and Family Court of Australia (Division 2).

18  Information provided to detainees

                   Each non‑citizen that is taken into immigration detention must be immediately informed (orally and in writing, and in a language the non‑citizen understands) of the following:

                     (a)  the reason for the non‑citizen’s detention;

                     (b)  the non‑citizen’s legal rights in regards to the detention (including the process of judicial review and the contact information for legal aid and consular assistance);

                     (c)  the proposed time frame for the non‑citizen’s detention;

                     (d)  the non‑citizen’s rights under sections 19 and 20;

                     (e)  contact details of suitable Australian legal practitioners who are able to give immigration assistance.

19  Access to services in detention

             (1)  The regulations may prescribe any or all of the following services for non‑citizens in immigration detention:

                     (a)  health and mental health services;

                     (b)  counselling and trauma services;

                     (c)  phone and internet;

                     (d)  education;

                     (e)  visiting services (including daily access to visitors, whether they are known to the non‑citizen or part of a broader community or non‑government service);

                      (f)  government services (including immigration, housing and Centrelink services);

                     (g)  free and independent legal services.

             (2)  A non‑citizen in immigration detention must have access to each service prescribed for the purposes of subsection (1).

20  Communication for the purpose of obtaining immigration assistance

             (1)  A non‑citizen in immigration detention is entitled, at any time during business hours, to communicate and consult regarding immigration assistance.

             (2)  All reasonable efforts are to be made to facilitate a non‑citizen to communicate or consult, outside business hours, regarding immigration assistance if the need to communicate or consult is urgent.

             (3)  Adequate time and facilities are to be made available to a non‑citizen in detention for the purpose of receiving immigration assistance.

             (4)  Without limiting subsection (3), a non‑citizen who is receiving immigration assistance, or the non‑citizen’s legal counsel, may be required to be within sight, but must not be required to be within hearing, of others (including immigration detention staff).

             (5)  A non‑citizen in immigration detention is entitled to have his or her communications under this section (whether verbal or written) treated as confidential between the parties.

21  Children in detention

             (1)  It is the intention of Parliament that non‑citizens who are children:

                     (a)  should not be deprived of liberty, except as a measure of last resort; and

                     (b)  should be deprived of liberty only for the shortest appropriate period of time, taking into account the extreme vulnerability and need for care of children (particularly of unaccompanied minors).

             (2)  Without limiting subsection (1) or section 11, a non‑citizen who is 18 years old or less, or who is reasonably suspected to be 18 years old or less, must not be kept in immigration detention for more than 7 days.

Note:          Sections 8 and 9 require:

(a)    the principle of family unity; and

(b)    the principle of the rights and best interests of the child;

                   to be paramount considerations in any decision or other action taken for the purposes of this Act.

                   These requirements may mean that, if a child is released from immigration detention, his or her parents and members of the family unity must also be released.

             (3)  On application, the Federal Circuit and Family Court of Australia (Division 2) may extend, or further extend, that period by up to 3 months. The court may do so only if that period, or that period as last extended, has not yet ended. The period, as extended or further extended, must not exceed 6 months.

             (4)  If the non‑citizen is an unaccompanied minor, the first order under subsection (3) in relation to the non‑citizen must be obtained within 24 hours of the non‑citizen being taken into immigration detention or as close as possible to that time.

             (5)  In determining whether to make an order under subsection (3), the Federal Circuit and Family Court of Australia (Division 2) must take into account the following:

                     (a)  the effect of subsection (1) and section 11;

                     (b)  that detention of non‑citizens should only occur as a measure of last resort and for the shortest possible time, and that there should be a general presumption against the detention;

                     (c)  whether there are any non‑custodial measures available (for example the imposition of reporting obligations or other conditions);

                     (d)  the balancing of the rights to liberty, security and freedom of movement of the non‑citizen with the public safety objectives of immigration detention.

             (6)  If the Federal Circuit and Family Court of Australia (Division 2) makes an order under subsection (3), the court may also make any other order the court considers appropriate to facilitate the non‑citizen not being kept in immigration detention for longer than the extended, or further extended, period.

Appeals

             (7)  An appeal lies from a decision of the Federal Circuit and Family Court of Australia (Division 2) under subsection (3) to the Federal Court of Australia.

             (8)  If an appeal is made against a decision to make an order under subsection (3), the Federal Court:

                     (a)  is to proceed by way of a hearing de novo, but may receive as evidence any record of evidence given, including any affidavit filed or exhibit received in the Federal Circuit and Family Court of Australia (Division 2); and

                     (b)  may make such decrees as it considers appropriate, including a decree affirming, reversing or varying the decision of the Federal Circuit and Family Court of Australia (Division 2).

22  Independent monitoring

             (1)  Immigration detention facilities must be subject to external inspections every 6 months independent of the administration of the facility.

             (2)  An inspection under subsection (1) must be conducted by an independent organisation determined, by legislative instrument, by the President of the Australian Human Rights Commission.

             (3)  For the purposes of carrying out an inspection under subsection (1), an organisation determined under subsection (2) may:

                     (a)  access all information on the numbers of detainees and locations of detention, as well as all information relevant to the treatment of detainees (including their records and conditions of detention); and

                     (b)  freely choose which immigration detention facilities to visit (including by making unannounced visits at their own initiative, and which detainees to interview); and

                     (c)  conduct private and fully confidential interviews with detainees and staff or contractors (including medical staff or contractors) working at the immigration detention facility in the course of their visits; and

                     (d)  make recommendations to the immigration detention facilities administration and other competent authorities.

             (4)  To avoid doubt, paragraph (3)(b) does not entitle an organisation to interview a detainee without the consent of the detainee.

             (5)  This section does not limit any other right or power of an organisation or individual to access an immigration detention facility that exists apart from this section.

23  Review of decisions

                   Applications may be made to the Administrative Appeals Tribunal for review of any of the following decisions:

                     (a)  a decision of the Secretary to specify a restriction in a determination under subsection 12(1);

                     (b)  a decision of the Secretary under section 15 to revoke a determination under subsection 12(1);

                     (c)  a decision of the Secretary under section 15 to vary the restriction specified in a determination under subsection 12(1).

Part 3Miscellaneous

  

24  Jurisdiction of the Federal Circuit and Family Court of Australia (Division 2)

                   Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to any civil matter arising under this Act.

25  Regulations

                   The Governor‑General may make regulations prescribing matters:

                     (a)  required or permitted by this Act to be prescribed by the regulations; or

                     (b)  necessary or convenient to be prescribed for carrying out or giving effect to this Act.