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This is a Bill, not an Act. For current law, see the Acts databases.
MIGRATION LEGISLATION AMENDMENT (RESTORATION OF RIGHTS AND PROCEDURAL FAIRNESS) BILL 2007 [2008]
2004-2005-2006-2007
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Migration Legislation Amendment
(Restoration of Rights and Procedural
Fairness) Bill 2007
No. , 2007
(Senator Bartlett)
A Bill for an Act to amend the Migration Act 1958 to
restore rights and procedural fairness to persons
affected by decisions taken under that Act, and for
related purposes
Contents
1
Short title ............................................................................................ 1
2
Commencement................................................................................... 1
3
Schedules............................................................................................. 2
Schedule 1--Amendment of the Administrative Decisions
(Judicial Review) Act 1977
3
Schedule 2--Amendments providing for the restoration of fair
process
4
Migration Act 1958
4
Schedule 3--Amendments providing for the duration of detention
5
Migration Act 1958
5
Schedule 4--Amendments providing for the return to procedural
fairness
6
Migration Act 1958
6
Schedule 5--Amendments providing for the provisions relating to
character and conduct
7
Migration Act 1958
7
Schedule 6--Amendments providing for the end of mandatory
detention
10
Migration Act 1958
10
Migration Legislation Amendment (Restoration of Rights and Procedural Fairness) Bill 2007
No. , 2007 1
A Bill for an Act to amend the Migration Act 1958 to
1
restore rights and procedural fairness to persons
2
affected by decisions taken under that Act, and for
3
related purposes
4
The Parliament of Australia enacts:
5
1 Short title
6
This Act may be cited as the Migration Legislation Amendment
7
(Restoration of Rights and Procedural Fairness) Act 2007.
8
2 Commencement
9
This Act commences on the day on which it receives the Royal
10
Assent.
11
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3 Schedules
1
Each Act that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
6
1
Schedule 1
--
Amendment of the Administrative
2
Decisions (Judicial Review) Act 1977
3
1 Paragraph (da) of Schedule 1
4
Repeal the paragraph.
5
6
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1
Schedule 2
--
Amendments providing for the
2
restoration of fair process
3
Migration Act 1958
4
1 Subsection 5(1) (definition of privative clause decision)
5
Repeal the definition.
6
2 Subsection 32(2)
7
Omit "the Minister is satisfied".
8
3 Paragraph 36(2)(a)
9
Omit "the Minister is satisfied".
10
4 Part 8
11
Repeal the Part.
12
13
14
1
Schedule 3
--
Amendments providing for the
2
duration of detention
3
Migration Act 1958
4
1 Subsections 196(4), (4A), (5), (5A), (6) and (7)
5
Repeal the subsections.
6
7
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1
Schedule 4
--
Amendments providing for the
2
return to procedural fairness
3
Migration Act 1958
4
1 Section 51A
5
Repeal the section.
6
2 Section 97A
7
Repeal the section.
8
3 Section 118A
9
Repeal the section.
10
4 Section 127A
11
Repeal the section.
12
5 Section 357A
13
Repeal the section.
14
6 Section 422B
15
Repeal the section.
16
17
1
Schedule 5
--
Amendments providing for the
2
provisions relating to character and
3
conduct
4
Migration Act 1958
5
1 Section 339
6
Repeal the section, substitute:
7
339 Application for internal review
8
(1) An application for review of an internally-reviewable decision must:
9
(a) be made in writing in the form approved by the Secretary;
10
and
11
(b) be given to the Secretary, at a prescribed place, within the
12
prescribed period, being a period ending not later than:
13
(i) if the decision is covered by paragraph (a) or (b) of the
14
definition of Part 5 reviewable decision--28 days after
15
the notification of the decision; or
16
(ii) if the decision is covered by paragraph (e), (f), (g) or (h)
17
of that definition--70 days after the notification of the
18
decision; and
19
(c) be accompanied by the prescribed fee (if any).
20
(2) An application for review in accordance with subsection (1) may
21
only be made:
22
(a) if the decision is covered by paragraph (a) or (b) of the
23
definition of Part 5 reviewable decision--by the non-citizen
24
who is the subject of that decision; or
25
(b) if the decision is covered by paragraph (e) or (h) of that
26
definition--by the sponsor or nominator; or
27
(c) if the decision is covered by paragraph (f) or (g) of that
28
definition--by the relative referred to in the paragraph
29
concerned.
30
(3) An application for review of a decision covered by paragraph (a) or
31
(b) of the definition of Part 5 reviewable decision may only be
32
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made by a non-citizen who is physically present in the migration
1
zone when the application for review is made.
2
(4) Regulations made for the purposes of paragraph (1)(b) may specify
3
different periods in relation to different classes of
4
internally-reviewable decisions (which may be decisions that relate
5
to non-citizens in a specified place).
6
2 Subsection 411(3)
7
Repeal the subsection, substitute:
8
(3) The Minister may issue a conclusive certificate in relation to a
9
decision if the Minister believes that:
10
(a) it would be contrary to the public interest to change the
11
decision, because any change in the decision would prejudice
12
the security, defence or international relations of Australia; or
13
(b) it would be contrary to the public interest for the decision to
14
be reviewed because such review would require
15
consideration by the Tribunal of deliberations or decisions of
16
the Cabinet or of a committee of the Cabinet.
17
3 Section 501
18
Repeal the section, substitute:
19
501 Special power to refuse or to cancel visa or entry permit
20
(1) The Minister may refuse to grant a visa to a person, or may cancel
21
a visa that has been granted to a person, if:
22
(a) subsection (2) applies to the person; or
23
(b) the Minister is satisfied that, if the person were allowed to
24
enter or to remain in Australia, the person would:
25
(i) be likely to engage in criminal conduct in Australia; or
26
(ii) vilify a segment of the Australian community; or
27
(iii) incite discord in the Australian community or in a
28
segment of that community; or
29
(iv) represent a danger to the Australian community or to a
30
segment of that community, whether by way of being
31
liable to become involved in activities that are disruptive
32
to, or violence threatening harm to, that community or
1
segment, or in any other way.
2
(2) This subsection applies to a person if the Minister:
3
(a) having regard to:
4
(i) the person's past criminal conduct; or
5
(ii) the person's general conduct;
6
is satisfied that the person is not of good character; or
7
(b) is satisfied that the person is not of good character because
8
of the person's association with another person, or with a
9
group or organisation who or that the Minister has reasonable
10
grounds to believe has been or is involved in criminal conduct.
11
(3) The power under this section to refuse to grant a visa to a person,
12
or to cancel a visa that has been granted to a person, is in addition
13
to any other power under this Act, as in force from time to time, to
14
refuse to grant a visa to a person, or to cancel a visa that has been
15
granted to a person.
16
17
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1
Schedule 6
--
Amendments providing for the
2
end of mandatory detention
3
Migration Act 1958
4
1 After section 189
5
Insert:
6
189A Conditions of arrest
7
(1) An officer who has detained a person under section 189 must, as
8
soon as practicable, take the person before a magistrate for a
9
hearing and action in accordance with subsection (2).
10
(2) If the magistrate is satisfied that the person is a person to whom
11
section 189 applies, and that his or her continued detention is, in all
12
the circumstances, appropriate, the magistrate may issue a warrant:
13
(a) authorising the officer to convey the person to a detention
14
centre established under this Act; and
15
(b) directing that the person, having been conveyed to that place
16
in accordance with the warrant, be detained there until:
17
(i) the person is released from detention pursuant to
18
paragraph 196(1)(c); or
19
(ii) a date specified in the warrant.
20
(3) To avoid doubt, section 189 does not apply to a person once he or
21
she has been released from detention under this section.
22
2 Subsection 196(3)
23
Repeal the subsection.
24
25