MIGRATION AMENDMENT (DETENTION REFORM AND PROCEDURAL FAIRNESS) BILL 2010 Explanatory Memorandum

MIGRATION AMENDMENT (DETENTION REFORM AND PROCEDURAL FAIRNESS) BILL 2010

       Migration Amendment (Detention Reform and Procedural Fairness) Bill 2010

                                 Explanatory Memorandum

                   Circulated by authority of Senator Sarah Hanson-Young

GENERAL OUTLINE: Policy Rationale

The Migration Amendment (Detention Reform and Procedural Fairness) Bill 2010 seeks to
improve the way in which the Migration Act currently operates, by ending offshore
processing and the excision policy; ensuring that detention is only used as a last resort;
ending indefinite and long-term detention that is the legacy of mandatory detention; and
introducing a system of judicial review of detention beyond 30 days.

While immigration detention is not prohibited by international law, several international
treaties to which Australia is a party impose limitations on the scope of acceptable
immigration detention arrangements. This Bill ensures that our obligations as signatories to
the Universal Declaration on Human Rights, International Covenant on Civil and Political
Rights(ICCPR), Convention Relating the the Status of Refugees, and the Convention against
Torture (CAT) are upheld and reflected within our domestic law.

The amendments provided for in this Bill would ensure that detention is only used as a last
resort, essentially abolishing the concept of mandatory detention and instead replacing it
with a system by which detention is the exception, not the rule.

This Bill would also ensure that where detention is required, specific time limits on the
duration are in place, of no longer than 30 days, unless a court order outlining the reasons
for continued detention is agreed to.

A detainee would also be able to appeal immediately to a court for an order that he or she
be released because there are no reasonable grounds to consider that their detention is
justified on the criteria specified for detention.

This Bill would also repeal the 2001 excision policy, by ensuring that those asylum seekers
who arrive by boat are afforded the same legal rights and protections as those arriving on
the mainland.

NOTES ON CLAUSES

Clause 1 - Short title

This clause provides for the Act, when enacted, to be cited as the Migration Amendment
(Detention Reform and Procedural Fairness) Act 2010.

Clause 2 - Commencement

This clause provides that this Act commence on the day after it receives Royal Assent.

Schedule 1 - Amendment of the Migration Act 1958

Part 1 - Amendment establishing asylum seeker principles
Item 1 - After section 4, insert a new section 4AAA "asylum seeker principles":

This section inserts principles that are to apply to asylum seekers, based on Australia's
obligations as a signatory to the UDHR, ICCPR, Convention Relating to the Status of
Refugees, and CAT.

Subsection (3) identifies the asylum seeker principles as follows:
a) Immigration detention that is indefinite or arbitrary is unacceptable, and must be
subjected to regular review;
b) Detention must only be used as a last resort;
c) People in immigration detention must be treated fairly; and
d) the inherent dignity of a person in immigration detention must be upheld.

Subsection (4) ensures that any person, who is making a determination about an asylum
seeker in immigration detention is to have regard for the principles within this Act.

Part 2 - Amendments facilitating judicial review of detention decision

Items 2, 3 and 4 amend subsections 42(4), and 189(1)(2) of the Migration Act by removing
the word "must" detain and replacing instead with "may" detain when a person enters
Australia without a valid visa. This minor change ensures that detention is now the
exception, not the rule, as it was previously operating.

Item 5 inserts a new section 195B "Detainee may apply for an order for release".

Subsection (1) provides that if a person is detained an officer must provide in writing the
circumstances of detention, the reasons for detention, and the grounds for continued
detention.

Subsection (2) ensures that the detainee is provided with a copy of the reasons for their
detention, as outlined in subsection (1)

Subsection (3) provides that a detainee may apply for an order that he/she be released from
detention, because there are no reasonable grounds to justify the initial detention, or
continued detention.

Subsection (4) provides that if a magistrate believes that there is no reason for the persons
detention, then they can order that they be released, or that an appropriate visa is granted.

Subsection (5) provides that the decision to detain a person under section 189 is not a
privative clause decision.

New Section 195C "order for continued detention"

Subsection (1) outlines that detention under section 189 must not exceed 30 days.

Subsection (2) allows the Secretary of the Department to apply to a magistrate for an order
that continued detention is required beyond 30 days.

Subsection (3) Requires the Secretary to specify why detention beyond 30 days is necessary.
Subsection (4) Requires that if the magistrate is satisfied that the continuation of detention
is required then appropriate conditions are to be established for the ongoing detention.

Subsection (5) Provides the magistrate with the power, if not satisfied with the need for
continued detention, to order for the immediate release of the detainee, or for an
appropriate visa to be granted.

Item 6 repeals 196(3) and instead replaces it with a subsection that does not prevent the
release of a person from detention in accordance with 195B or 195C.

Item 7 outlines the commencement dates of amendments made by this Part

Part 3 - Amendments repealing excised offshore places provisions

This section repeals all relevant parts within the Migration Act that refer to excised offshore
places.

Part 4 - Amendments restoring fair process and procedural fairness

These clauses restore asylum seekers rights to procedural fairness

Part 5 - Amendments relating to the duration of detention

This part repeals the subsections relating to indefinite detention.

Schedule 2 - Amendment of the Administrative Decisions (Judicial Review) Act 1977

Repeals the privative clause decision contained within the Migration Act.