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Migration Amendment (Detention of Minors) Bill 2010

Schedule 1 Amendments relating to the detention of minors

   

Migration Act 1958

1  Section 4AA

Repeal the section, substitute:

4AA   Principles protecting the rights of minors under this Act

             (1)  The principles set out in this section, drawn from Article 37 of the Convention on the Rights of the Child, must in every relevant case be applied by each person exercising a power or performing a function under this Act.

             (2)  No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.

             (3)  Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.

             (4)  Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.

2  Subsection 5(1)

Insert:

Convention on the Rights of the Child means the United Nations Convention on the Rights of the Child done at New York on 20 November 1989.

3  After subsection 197AB

Insert:

197ABA  Minister must determine that minor is to reside at a specified place rather than being held in detention centre etc.

             (1)  If a person to whom this Subdivision applies is identified as a minor, the Minister must, as soon as practicable but in any case within 12 days, 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).

             (2)  If a person to whom this Subdivision applies is a member of the same family unit as a minor to whom subsection (1) applies, 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 a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

             (3)  If no person over the age of 18 has been identified as a member of the same family unit as a minor to whom subsection (1) applies, but the minor is, or has been, in the care of another person to whom this Subdivision applies, 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 a specified place, instead of being detained at a place covered by the definition of immigration detention in subsection 5(1).

             (4)  The Minister may decline to make a determination under subsection (2) or (3) if the Minister decides that it is in the best interests of the child to do so.

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

             (5)  To avoid doubt, the Minister may delegate to an authorised officer the power to make a determination under subsection (1), (2) or (3), provided that the officer is:

                     (a)  the Secretary; or

                     (b)  an SES employee, or equivalent officer.

             (6)  Regulations made for the purposes of this section must provide:

                     (a)  a method for a person 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)  for the recognition of that status to be determined within 30 days of application.

5  Subsection 197AD(2)

After “197AB(1) and (2)”, insert “and 197ABA(1), (2) and (3)”.