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Tuesday, 5 May 1992
Page: 2390


Mr HAND (Minister for Immigration, Local Government and Ethnic Affairs) (5.49 p.m.) —I move:

(2)   After Clause 2, page 2, insert the following new clause:

    "2A. 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 54Q; or

    (b)given an entry permit under section 34 or 115.

  `(3) This section is subject to section 54R.

  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

  `54Q.(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 54R.

  No custody or removal after certain period

  `54R.(1) Sections 54L and 54Q 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 54Q 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

  `54S. A court is not to order the release from custody of a designated person.

  Effect of Division on status etc.

  `54T.(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, 54Q or 54S.

  `(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, 54Q or 54S.

  `(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, 54Q or 54S.

  Division applies despite other laws

  `54U. 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

  `54V. 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.'.".

I table the explanatory memorandum to the amendment.

  Proposed new clause agreed to.

  Remainder of Bill—by leave—taken as a whole, and agreed to.

  Bill agreed to with amendments.

  Bill reported with amendments; report—by leave—adopted.