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Migration Amendment (Duration of Detention) Bill 2004

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2002 - 2003 - 2004

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

 

MIGRATION AMENDMENT (DURATION OF DETENTION) BILL 2004

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

(Circulated by authority of the

Minister for Immigration and Multicultural and Indigenous Affairs,

Senator the Hon Amanda Vanstone)

 

 







M MIGRATION AMENDMENT (DURATION OF DETENTION) BILL 2004

 

OUTLINE

 

1.       The Migration Amendment (Duration of Detention) Bill 2004 (“the Bill”) amends the Migration Act 1958 (“the Act”) to put it beyond doubt that an unlawful non-citizen must be kept in immigration detention unless a court makes a final determination that:

 

·          the detention is unlawful; or

·          he or she is not an unlawful non-citizen.

 

1.       Subsection 196(1) of the Act currently provides that an unlawful non-citizen, who is detained under section 189, must be kept in immigration detention until he or she is either removed from Australia, deported or granted a visa.

 

2.       Subsection 196(3) of the Act makes it clear that subsection 196(1) prevents a court

from releasing an unlawful non-citizen from immigration detention unless the non-citizen has

been granted a visa.

 

3.       Despite the current provisions relating to immigration detention, there has been a

series of cases in which the Federal Court has ordered the interlocutory release of detainees, prior to the resolution of their substantive court proceedings.

 

4.       The amendments are intended to uphold the scheme of Division 7 of Part 2 of the Act in relation to the mandatory detention of certain unlawful non-citizens.

 

5.       The Bill seeks to prevent the release of a detainee from immigration detention pending a court’s final determination of the substantive matter as to the lawfulness of the person’s detention or whether the person is an unlawful non-citizen.

 

6.       The Bill does not affect the jurisdiction of any court to conclusively determine any application made to the court, including an application for review of a decision to refuse to grant a visa or to cancel a visa, and to make appropriate orders.

 

 

FINANCIAL IMPACT STATEMENT

 

7.             The amendments contained in the Bill will have minimal financial impact. All costs

will be absorbed within existing funding arrangements.



MIGRATION AMENDMENT (DURATION OF DETENTION) BILL 2004

 

 

NOTES ON INDIVIDUAL CLAUSES

 

Clause 1           Short title

 

1.       The short title by which this Act may be cited is the Migration Amendment (Duration of Detention) Act 2004.

 

Clause 2           Commencement

 

2.             Subclause 2(1) contains a table setting out the commencement information for the

Act.  The subclause also provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.

 

3.             The effect of item 1 of the table is that sections 1, 2 and 3 of the Act commence on the

day on which this Act receives the Royal Assent.

 

4.             The effect of item 2 of the table is that Schedule 1 to the Act commences on the day

after this Act receives the Royal Assent.

 

5.             The note in subclause 2(1) makes it clear that the table only relates to the provisions

of the Act as originally passed by the Parliament and assented to.  The table will not be expanded to deal with provisions inserted into the Act after it receives the Royal Assent.

 

6.             Subclause 2(2)  provides that column 3 of the table in subclause 2(1) is for additional

information that may be included in any published version of the Act but which is not part of the Act.

 

Clause 3          Schedule(s)

 

7.                               This clause provides that each Act specified in a Schedule to this Act is amended or

repealed as set out in the applicable items in the Schedule concerned.  In addition, any other item in a Schedule to this Act has effect according to its terms.

 

Clause 4          Application of amendments

 

8.       This clause provides that the amendments made by Schedule 1 to this Act do not affect the validity of any order made by a court before the commencement of that Schedule.

 

9.       In effect, this means that new subsections 196(4) and (4A) in Schedule 1 will only apply to orders made by a court after the commencement of that Schedule.

 



SCHEDULE 1 - Amendments

 

 

Migration Act 1958

 

Item 1             Subsections 196(4) and (4A)

 

10.     This item repeals subsections 196(4) and (4A) and substitutes new subsection 196(4) a fter t the end of sub- section 196 (3) of the Act.

 

11.          In broad terms, subsection 196(1) provides that an unlawful non-citizen must be kept

in immigration detention until he or she is removed from Australia, deported or granted a visa.

 

12.          Subsection 196(3) of the Act makes it clear that subsection 196(1) prevents a court

from releasing an unlawful non-citizen from immigration detention, in circumstances other than for removal or deportation, unless the non-citizen has been granted a visa.

 

13.          New subsection 196(4) puts it beyond doubt that, unless an unlawful non-citizen is

removed, deported or granted a visa, he or she must be kept in immigration detention except where a court makes a final determination that:

 

·          the detention is unlawful (paragraph (a)); or

·          the person detained is not an unlawful non-citizen (paragraph (b)).

 

1.             New paragraph 196(4)(a) would cover circumstances where a court finally determines

that there is no real likelihood that an unlawful non-citizen will be removed from Australia in the reasonably foreseeable future, and therefore the detention is unlawful.

 

2.             New paragraph 196(4)(b) applies to circumstances where a court finally determines

that a person in immigration detention is not an unlawful non-citizen.

 

3.             The purpose of new subsection 196(4) is to make it clear that a person cannot be

released from immigration detention pending determination of any substantive proceedings relating to either the lawfulness of the person’s detention or whether the person is an unlawful non-citizen.

 

4.             New subsection 196(4) is subject to existing paragraphs 196(1)(a), (b) and (c) of the

Act. That is, new subsection 196(4) does not prevent a person being released from immigration detention if the non-citizen is removed from Australia, deported or granted a visa.

 

5.             New subsection 196(4) does not prevent a person being released from

immigration detention if the person is a lawful non-citizen.

 

6.             New subsection 196(4) does not affect the jurisdiction of any court to finally

determine any application made to the court, including the lawfulness of the decision or action under review.

 

Item 2             Subsection 196(5)

 

7.        This item omits reference to “or (4A)” in subsection 196(5) as a consequence of the repeal of subsections 196(4) and (4A) and their substitution with new subsection 196(4).

 

Item 3             Subsection 196(5A)

 

8.       This item repeals subsection 196(5A).  

 

Item 4              Subsection 196(7) (definition of visa decision )

 

22.       This item omits the words ‘not to grant’ in the definition of visa decision and substitutes ‘to refuse to grant’, to clarify that visa decision in section 196 includes a decision to refuse to grant a visa.

 

Item 4             Existing orders unaffected

 

[note: do we need a provision to this affect: ie. new (4) only applies to orders after commencement of Act - check with policy]