MIGRATION AMENDMENT (DETENTION ARRANGEMENTS) BILL 2005

i Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005

Contents

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

Commencement .............................................................................1

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

Schedule 1--Detention arrangements

Part 1--Amendments

Migration Act 1958

Part 2--Application of amendments

Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005 1

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 (Detention

Arrangements) Act 2005.

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.

2 Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005

Commencement information

Column 1

Column 2

Column 3

Provision(s)

Commencement

Date/Details

1. Sections 1 to 3

and anything in

this Act not

elsewhere covered

by this table

The day on which this Act receives the

Royal Assent.

2. Schedule 1,

items 1 to 16

The day on which this Act receives the

Royal Assent.

3. Schedule 1,

item 17

The later of:

(a) the start of the day on which this Act

receives the Royal Assent; and

(b) immediately after the commencement of

item 15 of Schedule 1 to the Migration

Litigation Reform Act 2005.

However, the provision(s) do not commence

at all if the event mentioned in paragraph (b)

does not occur.

4. Schedule 1,

item 18

The day on which this Act receives the

Royal Assent.

However, if item 17 of Schedule 1 to the

Migration Litigation Reform Act 2005

commences on or before the day on which

this Act receives the Royal Assent, the

provision(s) do not commence at all.

5. Schedule 1,

items 19 to 21

The day on which this Act receives the

Royal Assent.

Note:

This table relates only to the provisions of this Act as originally

passed by 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 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

Schedule 1 Detention arrangements

Part 1 Amendments

4 Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005

Schedule 1--Detention arrangements

Part 1--Amendments

Migration Act 1958

1 After section 4

Insert:

4AA Detention of minors a last resort

(1) The Parliament affirms as a principle that a minor shall only be

detained as a measure of last resort.

(2) For the purposes of subsection (1), the reference to a minor being

detained does not include a reference to a minor residing at a place

in accordance with a residence determination.

2 Subsection 5(1) (at the end of the definition of detain)

Add:

Note:

This definition extends to persons covered by residence

determinations (see section 197AC).

3 Subsection 5(1) (at the end of the definition of detainee)

Add:

Note:

This definition extends to persons covered by residence

determinations (see section 197AC).

4 Subsection 5(1) (note at the end of the definition of

immigration detention)

Omit "Note:", substitute "Note 1:".

5 Subsection 5(1) (at the end of the definition of immigration

detention)

Add:

Note 2:

This definition extends to persons covered by residence

determinations (see section 197AC).

6 Subsection 5(1)

Detention arrangements Schedule 1

Amendments Part 1

Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005 5

Insert:

residence determination has the meaning given by subsection

197AB(1).

7 At the end of subsection 65(1)

Add:

Note:

See also section 195A, under which the Minister has a

non-compellable power to grant a visa to a person in detention under

section 189 (whether or not the person has applied for the visa).

Subdivision AA, this Subdivision, Subdivision AF and the regulations

do not apply to the Minister's power under that section.

8 Before section 188

Insert:

Subdivision A--General provisions

9 At the end of section 189

Add:

Note:

See Subdivision B for the Minister's power to determine that people

who are required or permitted by this section to be detained may

reside at places not covered by the definition of immigration

detention in subsection 5(1).

10 After section 195

Insert:

195A Minister may grant detainee visa (whether or not on

application)

Persons to whom section applies

(1) This section applies to a person who is in detention under

section 189.

Minister may grant visa

(2) If the Minister thinks that it is in the public interest to do so, the

Minister may grant a person to whom this section applies a visa of

a particular class (whether or not the person has applied for the

visa).

Schedule 1 Detention arrangements

Part 1 Amendments

6 Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005

(3) In exercising the power under subsection (2), the Minister is not

bound by Subdivision AA, AC or AF of Division 3 of this Part or

by the regulations, but is bound by all other provisions of this Act.

Minister not under duty to consider whether to exercise power

(4) The Minister does not have a duty to consider whether to exercise

the power under subsection (2), whether he or she is requested to

do so by any person, or in any other circumstances.

Minister to exercise power personally

(5) The power under subsection (2) may only be exercised by the

Minister personally.

Tabling of information relating to the granting of visas

(6) If the Minister grants a visa under subsection (2), he or she must

cause to be laid before each House of the Parliament a statement

that (subject to subsection (7)):

(a) states that the Minister has granted a visa under this section;

and

(b) sets out the Minister's reasons for granting the visa, referring

in particular to the Minister's reasons for thinking that the

grant is in the public interest.

(7) A statement under subsection (6) in relation to a decision to grant a

visa is not to include:

(a) the name of the person to whom the visa is granted; or

(b) any information that may identify the person to whom the

visa is granted; or

interest to publish the name of another person connected in

any way with the grant of the visa--the name of that other

person or any information that may identify that other person.

(8) A statement under subsection (6) is to be laid before each House of

the Parliament within 15 sitting days of that House after:

(a) if the decision to grant the visa is made between 1 January

and 30 June (inclusive) in a year--1 July in that year; or

Detention arrangements Schedule 1

Amendments Part 1

Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005 7

(b) if the decision to grant the visa is made between 1 July and

31 December (inclusive) in a year--1 January in the

following year.

11 At the end of Division 7 of Part 2

Add:

Subdivision B--Residence determinations

197AA Persons to whom Subdivision applies

This Subdivision applies to a person who is required or permitted

by section 189 to be detained, or who is in detention under that

section.

197AB Minister may determine that person is to reside at a specified

place rather than being held in detention centre etc.

(1) If the Minister thinks that it is in the public interest to do so, the

Minister may make a determination (a residence determination) to

the effect that one or more specified persons to whom this

Subdivision applies are 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) A residence determination must:

(a) specify the person or persons covered by the determination

by name, not by description of a class of persons; and

(b) specify the conditions to be complied with by the person or

persons covered by the determination.

(3) A residence determination must be made by notice in writing to the

person or persons covered by the determination.

197AC Effect of residence determination

Act and regulations apply as if person were in detention in

accordance with section 189

(1) While a residence determination is in force, this Act and the

regulations apply (subject to subsection (3)) to a person who is

covered by the determination and who is residing at the place

Schedule 1 Detention arrangements

Part 1 Amendments

8 Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005

specified in the determination as if the person were being kept in

immigration detention at that place in accordance with section 189.

(2) If:

(a) a person covered by a residence determination is temporarily

staying at a place other than the place specified in the

determination; and

(b) the person is not breaching any condition specified in the

determination by staying there;

then, for the purposes of subsection (1), the person is taken still to

be residing at the place specified in the determination.

Certain provisions do not apply to people covered by residence

determinations

(3) Subsection (1):

(a) does not apply for the purposes of section 197 or 197A, or

any of sections 252AA to 252E; and

(b) does not apply for the purposes of any other provisions of

this Act or the regulations that are specified in regulations

made for the purposes of this paragraph.

What constitutes release from immigration detention?

(4) If:

(a) a residence determination is in force in relation to a person;

and

(b) a provision of this Act requires the person to be released

from immigration detention, or this Act no longer requires or

permits the person to be detained;

then, at the time when paragraph (b) becomes satisfied, the

residence determination, so far as it covers the person, is revoked

by force of this subsection and the person is, by that revocation,

released from immigration detention.

Note:

Because the residence determination is revoked, the person is no

longer subject to the conditions specified in the determination.

(5) If a person is released from immigration detention by operation of

subsection (4), the Secretary must, as soon as possible, notify the

person that he or she has been so released.

Detention arrangements Schedule 1

Amendments Part 1

Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005 9

Secretary must ensure section 256 complied with

(6) The Secretary must ensure that a person covered by a residence

determination is given forms and facilities as and when required by

section 256.

197AD Revocation or variation of residence determination

(1) If the Minister thinks that it is in the public interest to do so, the

Minister may, at any time, revoke or vary a residence

determination in any respect (subject to subsection (2)).

Note 1:

If a person covered by a residence determination does not comply

with a condition specified in the determination, the Minister may

(subject to the public interest test) decide to revoke the determination,

or to vary the determination by altering the conditions, whether by

omitting or amending one or more existing conditions or by adding

one or more additional conditions.

Note 2:

If the Minister revokes a residence determination (without making a

replacement determination) and a person covered by the determination

is a person whom section 189 requires to be detained, the person will

then have to be taken into detention at a place that is covered by the

definition of immigration detention in subsection 5(1).

(2) Any variation of a residence determination must be such that the

determination, as varied, will comply with subsections 197AB(1)

and (2).

(3) A revocation or variation of a residence determination must be

made by notice in writing to the person or persons covered by the

determination.

197AE Minister not under duty to consider whether to exercise

powers

The Minister does not have a duty to consider whether to exercise

the power to make, vary or revoke a residence determination,

whether he or she is requested to do so by any person, or in any

other circumstances.

197AF Minister to exercise powers personally

The power to make, vary or revoke a residence determination may

only be exercised by the Minister personally.

Schedule 1 Detention arrangements

Part 1 Amendments

10 Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005

197AG Tabling of information relating to the making of residence

determinations

(1) If the Minister makes a residence determination, he or she must

cause to be laid before each House of the Parliament a statement

that (subject to subsection (2)):

(a) states that the Minister has made a determination under this

section; and

(b) sets out the Minister's reasons for making the determination,

referring in particular to the Minister's reasons for thinking

that the determination is in the public interest.

(2) A statement under subsection (1) in relation to a residence

determination is not to include:

(a) the name of any person covered by the determination; or

(b) any information that may identify any person covered by the

determination; or

(d) any information that may identify the address, name or

location of the place specified in the determination; or

(e) if the Minister thinks that it would not be in the public

interest to publish the name of another person connected in

any way with the determination--the name of that other

person or any information that may identify that other person.

(3) A statement under subsection (1) is to be laid before each House of

the Parliament within 15 sitting days of that House after:

(a) if the residence determination is made between 1 January and

30 June (inclusive) in a year--1 July in that year; or

(b) if the residence determination is made between 1 July and

31 December (inclusive) in a year--1 January in the

following year.

12 After paragraph 276(2A)(a)

Insert:

(aa) preparing, or helping to prepare, a request to the Minister to

exercise a power under section 195A, 197AB or 197AD

(whether or not the exercise of the power would relate to the

other person); or

Detention arrangements Schedule 1

Amendments Part 1

Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005 11

13 Paragraph 276(2A)(b)

Omit "such a request", substitute "a request referred to in paragraph (a)

or (aa)".

14 At the end of section 277

Add:

(5) A lawyer does not give immigration legal assistance in giving

advice to another person that is for the purpose of the preparation

or making of a request to the Minister to exercise a power under

section 195A, 197AB or 197AD (whether or not the exercise of the

power would relate to the other person).

15 At the end of subsection 282(4)

Add:

; or (f) on behalf of a person who has made (or is proposing to

make) a request to the Minister to exercise a power under

section 195A, 197AB or 197AD (whether or not the exercise

of the power would relate to the other person), about the

request.

16 Paragraph 474(3)(a)

After "making,", insert "varying,".

17 Paragraph 474(7)(a)

After "91Q,", insert "195A, 197AB, 197AD,".

18 Subsection 476(2)

After "91Q,", insert "195A, 197AB, 197AD,".

19 Before Part 9

Insert:

Schedule 1 Detention arrangements

Part 1 Amendments

12 Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005

Part 8C--Reports on persons in detention for more

than 2 years

486L What is the detention reporting start time for a person?

For the purposes of this Part, the detention reporting start time for

a person is whichever of the following times (if any) applies to the

person:

(a) if the person is in immigration detention on the

commencement of this Part and has been in immigration

detention before then for a period of at least 2 years, or for

periods that total at least 2 years--the time when this Part

commences; or

(b) otherwise--the time after the commencement of this Part

when the person has been in immigration detention for a

period of 2 years, or for periods that total at least 2 years

(some of which detention may have occurred before the

commencement of this Part).

486M What is a detention reporting time for a person?

For the purposes of this Part, a detention reporting time for a

person is:

(a) the detention reporting start time for the person; or

(b) the end of each successive period of 6 months after that time

at the end of which the person is in immigration detention.

486N Secretary's obligation to report to Commonwealth

Ombudsman

(1) The Secretary must give the Commonwealth Ombudsman a report

relating to the circumstances of the person's detention. The report

must be given:

(a) if the detention reporting time is the time when this Part

commences--as soon as practicable, and in any event within

6 months, after that commencement; or

(b) otherwise--within 21 days after the detention reporting time.

Detention arrangements Schedule 1

Amendments Part 1

Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005 13

(2) Without limiting subsection (1), the report must include any

matters specified in regulations made for the purposes of this

subsection.

(3) The Secretary must give the report to the Commonwealth

Ombudsman even if the person has, since the detention reporting

time, ceased to be in immigration detention.

486O Commonwealth Ombudsman to give Minister assessment of

detention arrangements

Commonwealth Ombudsman to give Minister assessment of

appropriateness of detention arrangements

(1) As soon as practicable after the Commonwealth Ombudsman

receives a report under section 486N, he or she is to give the

Minister an assessment of the appropriateness of the arrangements

for the person's detention.

Assessment may include recommendations

(2) The assessment may include any recommendations the

Commonwealth Ombudsman considers appropriate.

(3) Without limiting subsection (2), the kinds of recommendations the

Ombudsman may make include the following:

(a) a recommendation for the continued detention of a person;

(b) a recommendation that another form of detention would be

more appropriate for a person (for example, residing at a

place in accordance with a residence determination);

community on a visa;

(d) general recommendations relating to the Department's

handling of its detainee caseload.

(4) The Minister is not bound by any recommendations the

Commonwealth Ombudsman makes.

Assessment to include statement for tabling in Parliament

(5) The assessment must also include a statement, for the purpose of

tabling in Parliament, that sets out or paraphrases so much of the

content of the assessment as the Commonwealth Ombudsman

Schedule 1 Detention arrangements

Part 1 Amendments

14 Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005

considers can be tabled without adversely affecting the privacy of

any person.

Assessment to be given even if person no longer in detention

(6) The Commonwealth Ombudsman must give the assessment to the

Minister even if the person has, since the detention reporting time,

ceased to be in immigration detention.

486P Minister to table statement from Commonwealth Ombudsman

The Minister must cause the statement included in an assessment

as mentioned in subsection 486O(5) to be laid before each House

of the Parliament within 15 sitting days of that House after the

Minister receives the assessment.

486Q Application of Ombudsman Act 1976

(1) Subject to this Part, the Ombudsman Act 1976 applies in relation to

the Commonwealth Ombudsman's preparation of an assessment

under section 486O (including his or her consideration of the report

under section 486N to which the assessment relates), as if the

preparation of the assessment were an investigation under that Act.

(2) The Commonwealth Ombudsman's functions include the functions

conferred on the Commonwealth Ombudsman by this Part.

Detention arrangements Schedule 1

Application of amendments Part 2

Migration Amendment (Detention Arrangements) Bill 2005 No. , 2005 15

Part 2--Application of amendments

20 Application of amendment made by item 10

The amendment made by item 10 applies to all persons in detention

under section 189 of the Migration Act 1958 after the commencement

of that item (including persons who are already in detention under that

section when that item commences).

21 Application of amendment made by item 11

The amendment made by item 11 applies to all persons who, after the

commencement of that item, are required or permitted by section 189 of

the Migration Act 1958 to be detained, or are kept in detention under

that section (including persons who are already in detention under that

section when that item commences).

Commonwealth of Australia Bills

MIGRATION AMENDMENT (DETENTION ARRANGEMENTS) BILL 2005