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Migration Amendment (Detention Reform and Procedural Fairness) Bill 2010

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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. 


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.