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Migration and Maritime Powers Amendment Bill (No. 1) 2015

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7791

2013-2014-2015

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

 

Migration and Maritime Powers Amendment Bill (No.  1) 2015

 

 

(1)     Schedule 3, page 11 (before line 4), before item 3, insert:

3A  Section 4AA

Repeal the section, substitute:

                   The Parliament affirms as a principle that no minor is to be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a minor must be in conformity with the law and must only be used as a measure of last resort and for the shortest appropriate period of time.

[child ren in detention]

(2)     Schedule 3, page 11 (after line 11), after item 3, insert:

3B  Subsection 5(1) (definition of residence determination )

Omit “subsection 197AB(1)”, substitute “subsections 197AAA(1), (2), (3) and 197AB(1)”.

[children in detention]

(3)     Schedule 3, page 12 (after line 10), after item 8, insert:

8A  After section 189

Insert:

189A  Certain unlawful non-citizen s to be detained in separate immigration detention facilities

             (1)  This section applies if:

                     (a)  a person is detained as an unlawful non-citizen under section 189; and

                     (b)  the person was an unlawful non-citizen because:

                              (i)  the Minister refused, under subsection 501(1), to grant the person a visa because the person did not satisfy the Minister that the person passes the character test; or

                             (ii)  the Minister cancelled, under subsection 501(2), a visa that had been granted to the person because the person did not satisfy the Minister that the person passes the character test; and

                     (c)  the person is being held in an immigration detention facility.

             (2)  The person must be held in a facility that only holds other unlawful non-citizen s of a kind referred to in paragraph (1)(b).

             (3)  In this section:

character test has the meaning given by section 501.

immigration detention facility means:

                     (a)  a detention centre established under this Act; or

                     (b)  a place approved by the Minister under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1); or

                     (c)  a place or facility in a regional processing country where restraint is exercised over the liberty of a person who is taken to that country under section 198AD.

[separate immigration detention facilities]

(4)     Schedule 3, page 12 (after line 10), after proposed item 8A, insert:

8B  After section 197AA

Insert:

197AAA   Minister must determine that minor is to reside at a specified place rather than being held in detention facility

Residence determination for minor

             (1)  If a person to whom this Subdivision applies is identified as a minor, the Minister must:

                     (a)  make a determination (a residence determination ) to the effect that the person is to reside at a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1); and

                     (b)  do so as soon as practicable, but in any case within 30 days, after the person is identified as a minor.

Residence determination for member of minor’s family unit

             (2)  If:

                     (a)  a determination under subsection (1) is in force requiring a minor to reside at a specified place; and

                     (b)  a person to whom this Subdivision applies is a member of the family unit of the minor;

the Minister must, as soon as practicable, make a determination (a residence determination ) to the effect that the person is to reside with the minor at the specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

Residence determination for minor’s guardian or carer

             (3)  If:

                     (a)  a determination under subsection (1) is in force requiring a minor to reside at a specified place; and

                     (b)  a person to whom this Subdivision applies has not been identified as a member of the family unity of the minor; and

                     (c)  the minor is, or has been, in the care of another person (a guardian ) to whom this Subdivision applies;

the Minister must, as soon as practicable, make a determination (a residence determination ) to the effect that the guardian is to reside with the minor at the specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

Minister may refuse to make determination if in best interests of a minor

             (4)  Despite subsections (2) and (3), the Minister may refuse to make a determination under either of those subsections if the Minister is satisfied that it is in the best interests of the minor to do so.

Note:          Section 4AA sets out principles relevant to making a determination under this subsection.

Residence determination must specify names and conditions

             (5)  A residence determination must:

                     (a)  specify the person or persons covered by the determination by name, not by description of a class of persons; and

                     (b)  specify the conditions to be complied with by the person or persons covered by the determination.

Residence determination must be in writi ng

             (6)  A residence determination under subsection (1), (2) or (3) must be made by notice in writing to the person or persons covered by the determination.

Regulations

             (7)  Regulation s made for the purposes of this section must prescribe:

                     (a)  a method for a person to whom this Subdivision applies to apply for recognition of:

                              (i)  his or her relationship to a minor for the purposes of subsection (2); or

                             (ii)  his or her care of a minor for the purposes of subsection (3); and

                     (b)  that the application must be determined within 30 days of the application being made.

Review

             (8)  Application may be made to the Administrative Appeals Tribunal for review of a decision under this section.

8C  Subsection 197AD(2)

Omit “subsections 197AB(1) and (2)”, insert “subsections 197AAA(1), (2), (3) and (5) and 197AB(1) and (2)”.

8D  Section 197AF

Repeal the section, substitute:

197AF   Power to make etc. residence determination

Who can make residence determinations

             (1)  The power to make a residence determination under subsection 197AAA(1), (2) or (3) may only be exercised by:

                     (a)  the Minister personally; or

                     (b)  the Secretary; or

                     (c)  an authorised officer who is an SES employee, an acting SES employee, or equivalent, in the Department.

             (2)  The power to make a residence determination under subsection 197AB(1) may only be exercised by the Minister personally.

Who can vary or revoke residence determinations

             (3)  The power to vary or revoke a residence determination made under subsection 197AAA(1), (2) or (3) may only be exercised by:

                     (a)  the Minister personally; or

                     (b)  the Secretary; or

                     (c)  an authorised officer who is an SES employee, an acting SES employee, or equivalent, in the Department.

             (4)  The power to vary or revoke a residence determination made under subsection 197AB(1) may only be exercised by the Minister personally.

8E  At the end of Division 7 of Part 2

Add:

Subdivision C Miscellaneous

197AH   Definitions

                   In this Subdivision:

designated person means:

                     (a)  an authorised officer; and

                     (b)  a person appointed or employed by, or for the performance of services for:

                              (i)  the Commonwealth, a State or a Territory; or

                             (ii)  an authority of the Commonwealth, a State or a Territory; and

                     (c)  a person employed by another person or body that is contracted by the Commonwealth, or an authority of the Commonwealth, to perform services in relation to an immigration detention facility.

immigration detention facility means:

                     (a)  a detention centre established under this Act; or

                     (b)  a place approved by the Minister under subparagraph (b)(v) of the definition of immigration detention in subsection 5(1); or

                     (c)  a place or facility in a regional processing country where restraint is exercised over the liberty of a person who is taken to that country under section 198AD.

journalist has the same meaning as in the Evidence Act 1995 .

official employment means:

                     (a)  appointment or employment by, or the performance of services for:

                              (i)  the Commonwealth, a State or a Territory; or

                             (ii)  an authority of the Commonwealth, a State or a Territory; or

                     (b)  employment by a person or body contracted by the Commonwealth or an authority of the Commonwealth to perform services in relation to an immigration detention facility.

protected immigration detention facility information means information or a document that:

                     (a)  was obtained by a person in the course of official employment; and

                     (b)  relates to an immigration detention facility.

quarter means a period of 3 months ending on 31 March, 30 June, 30 September or 31 December.

relevant authority means:

                     (a)  in any case—the Department and the Australian Federal Police; and

                     (b)  if:

                              (i)  the victim of an alleged reportable assault is a child ; and

                             (ii)  the alleged assault occurs in a State or Territory;

                            a relevant authority of the State or Territory that has functions relating to child safety; and

                     (c)  if:

                              (i)  the victim of an alleged reportable assault is a child; and

                             (ii)  the alleged assault occurs in a foreign country;

                            a police force of the foreign country.

reportable assault means any of the following, to the extent that they occur, or allegedly occur, in an immigration detention facility:

                     (a)  unlawful sexual contact;

                     (b)  sexual harassment;

                     (c)  unreasonable use of force;

                     (d)  any other assault.

197AI   Mandatory reporting of reportable assaults

             (1)  If a designated person believes on reasonable grounds that a person has experienced, or is experiencing, a reportable assault, the designated person must, as soon as practicable, notify the relevant authorities of:

                     (a)  the alleged assault; and

                     (b)  the grounds on which the person has formed the belief that the alleged assault occurred.

Offence

             (2)  A person commits an offence if:

                     (a)  the person is required to make a notification under subsection (1); and

                     (b)  the person fails to comply with the requirement.

Penalty:   60 penalty unit s.

Geographical jurisdiction

             (3)  Section 15.3 of the Criminal Code (extended geographical jurisdiction—category C) applies to an offence against subsection (2).

197AJ   Disclosure of protected immigration detention facility information in the public interest

             (1)  A person may disclose or use protected immigration detention facility information if the person reasonably believes that the disclosure or use is in the public interest.

             (2)  If the person discloses or uses information under subsection (1):

                     (a)  the person is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure or the use; and

                     (b)  no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the individual on the basis of the disclosure or the use.

Note:          For example, if a term of an enterprise agreement or other employment contract prohibited such a disclosure, the term would be of no effect in relation to the disclosure.

             (3)  To avoid doubt, subsection (2) includes any liability a person may otherwise be subject to under section 42 of the Australian Force Act 2015 .

197AK   Entry to immigration detention facilities for journalists

Journalist not to be refused entry unreasonably

             (1)  A journalist must not be refused entry to an immigration detention facility unless:

                     (a)  the entry is refused by an officer, an authorised officer, or the Minister (the decision maker ); and

                     (b)  the decision maker has reasonable grounds to do so.

             (2)  If a journalist is refused entry to an immigration detention facility, the decision maker must:

                     (a)  notify the journalist as soon as practicable, in writing, of the reasons for that decision; and

                     (b)  cause those reasons to be published on the Department’s website within 14 days of making the decision.

Quarterly report

             (3)  The Minister must, as soon as practicable after the end of each quarter, prepare a report on journalist access to immigration detention facilities during the quarter.

             (4)  A report under subsection (3) must include the following:

                     (a)  the number of times journalists have been denied access to immigration detention facilities during the quarter;

                     (b)  whether or not the Minister was the decision maker for each decision;

                     (c)  if the Minister was not the decision maker for a decision—the classification of the individual who made the decision;

                     (d)  the reasons for each decision.

             (5)  The Minister must cause copies of a report under subsection (3) to be tabled in each House of Parliament within 10 sitting days of that House after the report has been completed.

Extraterritorial operation

             (6)  This section extends to immigration detention facilities outside Australia.

197AL   Term of agreement that contravenes section 197AK has no effect

                   Any contract or other agreement that purports to limit a journalist’s entry to an immigration detention facility has no effect to the extent that it contravenes section 197AK.

197AM   Journalists granted access to immigration detention facilities must have regard to privacy

                   A journalist who is granted entry to an immigration detention facility:

                     (a)  must take all reasonable steps to ensure that his or her visit to the facility is conducted with regard to protecting the privacy of detainees in the facility; and

                     (b)  must not publish any information in relation to the facility that is likely to enable the identification of a detainee.

[immigration detention facilities]

(5)     Schedule 3, page 12 (after line 22), after item 10, insert:

10A  Application—subsection 197AAA(1) of the Migration Act 1958

(1)       This item applies if:

                     (a)  a person is in detention under section 189 of the Migration Act on or after the commencement of this item; and

                     (b)  the person is a person to whom Subdivision B of Division 7 of Part 2 of that Act applies; and

                     (c)  before the commencement of this item the person was identified as a minor.

Residence determination for minor

(2)       The Minister must, as soon as practicable, but in any case within [ 14 days ] of commencement make a determination under subsection 197AAA(1) of the Migration Act , as inserted by this Part, in relation to the minor.

Residence determination for member of minor’s family unit

(3)       If:

                     (a)  the Minister makes a determination in accordance with subitem (2) in relation to the minor; and

                     (b)  another person to whom Subdivision B of Division 7 of Part 2 of the Migration Act 1958 applies is a member of the family unit of the minor;

the Minister must make a determination under subsection 197AAA(2) of that Act in relation to the other person as soon as practicable, but in any case within [ 14 days ] of making the determination in accordance with subitem (2).

Residence determination for minor’s carer or guardian

(4)       If:

                     (a)  the Minister makes a determination in accordance with subitem (2) in relation to the minor; and

                     (b)  another person to whom Subdivision B of Division 7 of Part 2 of the Migration Act 1958 applies has not been identified as a member of the family unit of the minor; and

                     (c)  the minor, at commencement, is, or has been, in the care of another person (a guardian ) to whom that Subdivision applies;

the Minister must make a determination under subsection 197AAA(3) in relation to the guardian as soon as practicable, but in any case within [ 14 days ] of making the determination in accordance with subitem (2).