MIGRATION AMENDMENT ACT 1992 No. 24, 1992 - SECT 3
MIGRATION AMENDMENT ACT 1992 No. 24, 1992 - SECT 3
3. After Division 4A of Part 2 of the Principal Act the following Division is
inserted:
"Division 4B - Custody of certain non-citizens Reason for Division
"54J. This Division is enacted because the Parliament considers that it is in
the national interest that each non-citizen who is a designated person should
be kept in custody until he or she:
(a) leaves Australia; or
(b) is given an entry permit. Interpretation
"54K. In this Division:
'commencement' means the commencement of this Division;
'custody' means custody under this Act within the meaning of section 11, and
includes being held in a processing area;
'designated person' means a non-citizen who:
(a) has been on a boat in the territorial sea of Australia after 19
November 1989 and before 1 December 1992; and
(b) has not presented a visa; and
(c) is in Australia; and
(d) has not been granted an entry permit; and
(e) is a person to whom the Department has given a designation by:
(i) determining and recording which boat he or she was on; and
(ii) giving him or her an identifier that is not the same as an
identifier given to another non-citizen who was on that boat;
and includes a non-citizen born in Australia whose mother is a
designated person;
'entry application', in relation to a person, means an application for:
(a) a determination by the Minister that the person is a refugee; or
(b) an entry permit for the person. Designated persons to be in custody
"54L.(1) Subject to subsection (2), after commencement, a designated person
must be kept in custody.
"(2) A designated person is to be released from custody if, and only if, he or
she is:
(a) removed from Australia under section 54P; or
(b) given an entry permit under section 34 or 115.
"(3) This section is subject to section 54Q. Beginning of custody of certain
designated persons
"54M.(1) If, immediately after commencement, a designated person is in a place
described in paragraph 11(a) or a processing area, he or she then begins to be
in custody for the purposes of section 54L.
"(2) If, immediately after commencement, a designated person is in the company
of, and restrained by, a person described in paragraph 11(b), the designated
person then begins to be in custody for the purposes of section 54L. Detention
of designated person
"54N.(1) If a designated person is not in custody immediately after
commencement, an officer may, without warrant:
(a) detain the person; and
(b) take reasonable action to ensure that the person is kept in custody
for the purposes of section 54L.
"(2) Without limiting the generality of subsection (1), that subsection even
applies to a designated person who was held in a place described in paragraph
11(a) or a processing area before commencement and whose release was ordered
by a court.
"(3) If a designated person escapes from custody after commencement, an
officer may, without warrant:
(a) detain the person; and
(b) take reasonable action to ensure that the person is kept in custody
for the purposes of section 54L. Removal from Australia of designated
persons
"54P.(1) An officer must remove a designated person from Australia as soon as
practicable if the designated person asks the Minister, in writing, to be
removed.
"(2) An officer must remove a designated person from Australia as soon as
practicable if:
(a) the person has been in Australia for at least 2 months or, if a longer
period is prescribed, at least that prescribed period; and
(b) there has not been an entry application for the person.
"(3) An officer must remove a designated person from Australia as soon as
practicable if:
(a) there has been an entry application for the person; and
(b) the application has been refused; and
(c) all appeals against, or reviews of, the refusal (if any) have been
finalised.
"(4) If:
(a) 2 designated persons are liable to be removed from Australia under
this section; and
(b) they are the parents of another designated person in Australia who is
under 18; the other designated person is to be removed from Australia.
"(5) If:
(a) a designated person is liable to be removed from Australia under this
section; and
(b) he or she is the only parent in Australia of another designated person
in Australia who is under 18; the other designated person is to be
removed from Australia.
"(6) If:
(a) 2 designated persons are liable to be removed from Australia under
this section; and
(b) they have the care and control of another designated person in
Australia who:
(i) is under 18; and
(ii) does not have a parent who is a designated person; the other
designated person is to be removed from Australia.
"(7) If:
(a) a designated person is liable to be removed from Australia under this
section; and
(b) he or she is the only person who has the care and control of another
designated person in Australia who:
(i) is under 18; and
(ii) does not have a parent who is a designated person; the other
designated person is to be removed from Australia.
"(8) This section is subject to section 54Q. No custody or removal after
certain period
"54Q.(1) Sections 54L and 54P cease to apply to a designated person who was in
Australia on 27 April 1992 if the person has been in application custody after
commencement for a continuous period of, or periods whose sum is, 273 days.
"(2) Sections 54L and 54P cease to apply to a designated person who was not in
Australia on 27 April 1992, if:
(a) there has been an entry application for the person; and
(b) the person has been in application custody, after the making of the
application, for a continuous period of, or periods whose sum is, 273
days.
"(3) For the purposes of this section, a person is in application custody if:
(a) the person is in custody; and
(b) an entry application for the person is being dealt with; unless one of
the following is happening:
(c) the Department is waiting for information relating to the application
to be given by a person who is not under the control of the
Department;
(d) the dealing with the application is at a stage whose duration is under
the control of the person or of an adviser or representative of the
person;
(e) court or tribunal proceedings relating to the application have been
begun and not finalised;
(f) continued dealing with the application is otherwise beyond the control
of the Department. Courts must not release designated persons
"54R. A court is not to order the release from custody of a designated person.
Effect of Division on status etc.
"54S.(1) This Division does not affect the other status that a designated
person has under this Act except so far as the status is inconsistent with
section 54L, 54M, 54N, 54P or 54R.
"(2) This Division does not affect the rights of a designated person under
this Act except so far as they, or their exercise, are inconsistent with
section 54L, 54M, 54N, 54P or 54R.
"(3) This Division does not affect any application made by a designated person
under this Act except so far as the application, or the success of the
application, is inconsistent with section 54L, 54M, 54N, 54P or 54R. Division
applies despite other laws
"54T. If this Division is inconsistent with another provision of this Act or
with another law in force in Australia, whether written or unwritten, other
than the Constitution:
(a) this Division applies; and
(b) the other law only applies so far as it is capable of operating
concurrently with this Division. Evidence
"54U. A statement by an officer, on oath or affirmation, that the Department
has given a particular person a designation described in paragraph (e) of the
definition of 'designated person' in section 54K is conclusive evidence that
the Department has given that person that designation.".
