MIGRATION AMENDMENT (IMMIGRATION DETENTION REFORM) BILL 2009
This is a Bill, not an Act. For current law, see the Acts databases.
MIGRATION AMENDMENT (IMMIGRATION DETENTION REFORM) BILL 2009
2008-2009
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Migration Amendment (Immigration
Detention Reform) Bill 2009
No. , 2009
(Immigration and Citizenship)
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
i Migration Amendment (Immigration Detention Reform) Bill 2009 No. , 2009
Contents
1
Short title ............................................................................................ 1
2
Commencement .................................................................................. 1
3
Schedule(s) ......................................................................................... 2
Schedule 1--Amendme nts relating to immigration detention
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Migration Act 1958
3
Migration Amendment (Immigration Detention Reform) Bill 2009 No. , 2009 1
A Bill for an Act to amend the Migration Act 1958,
1
and for related purposes
2
The Parliament of Australia enacts:
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1 Short title
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This Act may be cited as the Migration Amendment (Immigration
5
Detention Reform) Act 2009.
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2 Commence ment
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(1) Each provision of this Act specified in column 1 of the table
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commences, or is taken to have commenced, in accordance with
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column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
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2 Migration Amendment (Immigration Detention Reform) Bill 2009 No. , 2009
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
A single day to be fixed by Proclamation.
However, if any of the provision(s) do not
commence with in the period of 6 months
beginning on the day on which this Act
receives the Royal Assent, they commence
on the first day after the end of that period.
Note:
This table relates only to the provisions of this Act as originally
1
passed by both Houses of the Parliament and assented to. It will not be
2
expanded to deal with provisions inserted in this Act after assent.
3
(2) Column 3 of the table contains additional information that is not
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part of this Act. Information in this column may be added to or
5
edited in any published version of this Act.
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3 Schedule(s)
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Each Act that is specified in a Schedule to this Act is amended or
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repealed as set out in the applicable items in the Schedule
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concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
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12
Amend ments relating to immig ration detention Schedule 1
Migration Amendment (Immigration Detention Reform) Bill 2009 No. , 2009 3
Schedule 1
--
Amendments relating to
1
immigration detention
2
3
Migration Act 1958
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1 After section 4
5
Insert:
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4AAA Immigration detention
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(1) The Parliament affirms as a principle that the purpose of detaining
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a non-citizen is to:
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(a) manage the risks to the Australian community of the
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non-citizen entering or remaining in Australia; and
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(b) resolve the non-citizen's immigration status.
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Note:
Resolving the non-citizen's immigration status would result in either a
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visa being granted to the non-citizen or the non-citizen being removed
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or deported.
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(2) The Parliament affirms as a principle that a non-citizen:
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(a) must only be detained in a detention centre established under
17
this Act as a measure of last resort; and
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(b) if a non-citizen is to be so detained--must be detained for the
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shortest practicable time.
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2 Subsection 4AA(1)
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After "a minor", insert "(including a person whom an officer reasonably
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suspects of being a minor)".
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3 At the end of section 4AA
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Add:
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(3) If a minor is to be detained as a measure of last resort, the minor
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must not be detained in a detention centre established under this
27
Act.
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(4) If a minor is to be detained (including in accordance with a
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residence determination), an officer must, for the purposes of
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determining where the minor is to be detained, regard the best
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interests of the minor as a primary consideration.
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Schedule 1 A mendments relating to immigration detention
4 Migration Amendment (Immigration Detention Reform) Bill 2009 No. , 2009
Note:
The Minister may give written directions specifying how an officer is
1
to have regard to the best interests of the minor: see section 499.
2
4 Subsection 5(1) (at the end of subparagraph (b)(v) of the
3
definition of immigration detention)
4
Add "or".
5
5 Subsection 5(1) (after paragraph (b) of the definition of
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immigration detention)
7
Insert:
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(c) being at, or going to, a place in accordance with a temporary
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community access permission without being in the company
10
of, and restrained by, an officer or another person directed by
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the Secretary (as mentioned in paragraph (a));
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6 Subsection 5(1) (before note 1 to the definition of
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immigration detention)
14
Insert:
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Note 1A: Subparagraph (b)(v)--places approved by the Minister may include,
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for example, immigration transit accommodation, immigration
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residential housing and other places that may be used to provide
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accommodation.
19
7 Subsection 5(1)
20
Insert:
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temporary community access permission has the meaning given
22
by subsection 194A(1).
23
8 Subsection 42(4) (note)
24
Repeal the note, substitute:
25
Note:
Section 189 provides for the detention of unlawful non-citizens in the
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migration zone.
27
9 Subsection 189(1)
28
Repeal the subsection, substitute:
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(1) An officer must detain a person in the migration zone (other than
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an excised offshore place) if the officer knows or reasonably
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suspects that:
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(a) the person is an unlawful non-citizen; and
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Amend ments relating to immig ration detention Schedule 1
Migration Amendment (Immigration Detention Reform) Bill 2009 No. , 2009 5
(b) any of the following applies:
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(i) the person presents an unacceptable risk to the
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Australian community;
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(ii) the person has bypassed immigration clearance;
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(iii) the person has been refused immigration clearance;
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(iv) the person's visa has been cancelled under section 109
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because, when in immigration clearance, the person
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produced a document that was false or had been
8
obtained falsely;
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(v) the person's visa has been cancelled under section 109
10
because, when in immigration clearance, the person
11
gave information that was false.
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(1A) For the purposes of subparagraph (1)(b)(i), a person presents an
13
unacceptable risk to the Australian community if, and only if, any
14
of the following applies:
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(a) the person has been refused a visa under section 501, 501A
16
or 501B or on grounds relating to national security;
17
(b) the person's visa has been cancelled under section 501, 501A
18
or 501B or on grounds relating to national security;
19
(c) the person held an enforcement visa and remains in Australia
20
when the visa ceases to be in effect;
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(d) circumstances prescribed by the regulations apply in relation
22
to the person.
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(1B) If a person is detained because an officer knows or reasonably
24
suspects that the person is someone mentioned in paragraph (1)(b)
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(other than subparagraph (1)(b)(i)), an officer must make
26
reasonable efforts to:
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(a) ascertain the person's identity; and
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(b) identify whether the person is of character concern; and
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(c) ascertain the health and security risks to the Australian
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community of the person entering or remaining in Australia;
31
and
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(d) resolve the person's immigration status.
33
Note:
Paragraph (d)--resolving the person's immigration status would result
34
in either a visa being granted to the person or the person being
35
removed or deported.
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Schedule 1 A mendments relating to immigration detention
6 Migration Amendment (Immigration Detention Reform) Bill 2009 No. , 2009
(1C) Otherwise, if an officer knows or reasonably suspects that a person
1
in the migration zone (other than an excised offshore place) is an
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unlawful non-citizen, the officer may detain the person.
3
10 Paragraphs 193(1)(a) and (b)
4
After "subsection 189(1)", insert "or (1C)".
5
11 Paragraph 194(a)
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After "sections", insert "194A,".
7
12 After section 194
8
Insert:
9
194A Authorised officer may grant a temporary community access
10
permission
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(1) An authorised officer may grant a permission (a temporary
12
community access permission) allowing a person:
13
(a) in immigration detention (within the meaning of
14
paragraph (a) or (b) of the definition of that expression) but
15
not covered by a residence determination; and
16
(b) named in the permission;
17
to be absent from the place of the person's detention for the period
18
or periods specified in the permission for the purpose or purposes
19
specified in the permission.
20
(2) An authorised officer may only make a temporary community
21
access permission if the authorised officer considers that it would
22
involve minimal risk to the Australian community to do so.
23
(3) A temporary community access permission must:
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(a) be made by notice in writing; and
25
(b) be given to the person covered by the permission; and
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(c) specify the conditions to be complied with by the person.
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(4) An authorised officer does not have a duty to consider whether to
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exercise the power to make, vary or revoke a temporary
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community access permission, whether he or she is requested to do
30
so by any person, or in any other circumstances.
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Amend ments relating to immig ration detention Schedule 1
Migration Amendment (Immigration Detention Reform) Bill 2009 No. , 2009 7
(5) A temporary community access permission made by written notice
1
is not a legislative instrument.
2
194B Revocation of temporary community access permission on
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release from immigration detention
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If:
5
(a) a temporary community access permission is in force in
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respect of a person; and
7
(b) a provision of this Act requires the person to be released from
8
immigration detention, or this Act no longer requires or
9
permits the person to be detained;
10
then, at the time when paragraph (b) becomes satisfied, the
11
temporary community access permission is revoked by force of
12
this section.
13
Note:
Because the temporary community access permission is revoked, the
14
person is no longer subject to the conditions specified in the
15
permission.
16
13 Section 197AF
17
Repeal the section.
18
14 Paragraphs 197AG(1)(a) and (b)
19
Repeal the paragraphs, substitute:
20
(a) states that a determination has been made under this
21
Subdivision; and
22
(b) sets out the reasons why the determination was made,
23
referring in particular to the reasons why it was thought that
24
the determination was in the public interest.
25
15 After paragraph 276(2A)(aa)
26
Insert:
27
(ab) preparing, or helping to prepare, a request to an authorised
28
officer to exercise a power under section 194A (whether or
29
not the exercise of the power would relate to the other
30
person); or
31
16 Paragraph 276(2A)(b)
32
Omit "or (aa)", substitute ", (aa) or (ab)".
33
Schedule 1 A mendments relating to immigration detention
8 Migration Amendment (Immigration Detention Reform) Bill 2009 No. , 2009
17 At the end of section 277
1
Add:
2
(6) A lawyer does not give immigration legal assistance in giving
3
advice to another person that is for the purpose of the preparation
4
or making of a request to an authorised officer to exercise a power
5
under section 194A (whether or not the exercise of the power
6
would relate to the other person).
7
18 At the end of subsection 282(4)
8
Add:
9
; or (g) on behalf of a person who has made (or is proposing to
10
make) a request to an authorised officer to exercise a power
11
under section 194A (whether or not the exercise of the power
12
would relate to the other person), about the request.
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19 After paragraph 474(7)(a)
14
Insert:
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(aa) a decision of an authorised officer not to exercise, or not to
16
consider the exercise of, the authorised officer's power under
17
section 194A;
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20 Transitional provision
--
existing detainees
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(1)
If:
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(a) a person is in immigration detention under subsection 189(1)
21
of the Migration Act 1958 immediately before this item
22
commences; and
23
(b) at the time this item commences, an officer knows or
24
reasonably suspects that the person is someone mentioned in
25
paragraph 189(1)(b) of that Act (as inserted by item 9 of this
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Schedule);
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the person is taken to be detained, after this item commences, under
28
subsection 189(1) of that Act (as inserted by item 9 of this Schedule).
29
(2)
If:
30
(a) a person is in immigration detention under subsection 189(1)
31
of the Migration Act 1958 immediately before this item
32
commences; and
33
(b) the person is not someone covered by subitem (1);
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Amend ments relating to immig ration detention Schedule 1
Migration Amendment (Immigration Detention Reform) Bill 2009 No. , 2009 9
the person is taken to be detained, after this item commences, under
1
subsection 189(1C) of that Act (as inserted by item 9 of this Schedule).
2
(3)
In this item:
3
immigration detention has the same meaning as in the Migration Act
4
1958.
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officer has the same meaning as in the Migration Act 1958.
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21 Application
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(1)
The amendments made by this Schedule apply in relation to a person
8
who is in immigration detention on or after the day on which this item
9
commences.
10
(2)
In this item:
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immigration detention has the same meaning as in the Migration Act
12
1958.
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