MIGRATION AMENDMENT (MANDATORY DETENTION) BILL 2005

2004-2005

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Migration Amendment (Mandatory Detention) Bill 2005

No. , 2005

(Senators Brown and Nettle)

A Bill for an Act to reform the mandatory detention system, and for related purposes

Contents

A Bill for an Act to reform the mandatory detention system, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Migration Amendment (Mandatory Detention) Act 2005.

2 Commencement

This Act commences on the day on which it receives the Royal Assent.

3 Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1--Amendment of the Migration Act 1958

1 At the end of section 36

Add:

Protection visa to permit holder to remain in Australia permanently

(8) A visa issued under this section shall permit the holder to remain in Australia permanently, despite any other provisions of this Act or of the regulations.

2 After section 189

Insert:

189A Detention of children

For the purposes of this Division, the Parliament affirms as a principle that a minor child shall be detained only as a measure of last resort and that before a decision is taken to detain a minor child, or to continue to hold a minor child in detention, the best interests of the minor child must be taken into account and any alternatives to detention considered.

3 At the end of subsection 196(1)

Add:

; or (d) released from detention in accordance with section 196A or 196B.

4 Subsection 196(3)

After "doubt", insert "and subject to sections 196A and 196B".

5 Subsection 196(4)

Omit "and (c)", substitute ", (c) and (d)".

6 Subsection 196(4A)

Omit "and (c)", substitute ", (c) and (d)".

7 Subsection 196(5)

After "doubt", insert "and subject to sections 196A and 196B".

8 After section 196

Insert:

196A Detention of asylum seekers

(1) This section applies to a person who is an unlawful non-citizen who:

(a) has applied for a visa under section 36 which has not been finally determined; or

(b) has requested the Minister to:

(i) make a determination under section 48B; or

(ii) exercise the Minister's power under section 417;

and has not received the decision of the Minister.

(2) An officer may detain a person to whom this section applies if the officer has reasonable grounds to consider that detention is necessary in order to:

(a) verify the identify of the person; or

(b) assess the application; or

(d) ensure that the person is immediately available for health checks; or

(e) ensure that the person is available for removal if his or her application is unsuccessful.

(3) A person to whom this section applies who is detained must be given a written statement of the reasons for detention.

(4) A person to whom this section applies who is detained may apply to the Federal Court for an order that he or she be released because there are no reasonable grounds to consider that detention is necessary for the reasons specified in subsection (2).

(5) A person to whom this section applies may be detained for a period not exceeding 90 days unless the Federal Court makes an order under subsection (7), a further order under subsection (9) or an order under subsection (11) that the person must be kept in immigration detention.

(6) The Secretary may apply to the Federal Court for an order under subsection (7), a further order under subsection (9) or an order under subsection (11) that a person to whom this section applies must be kept in immigration detention.

(7) The Federal Court may make an order that a person to whom this section applies must be kept in immigration detention for a period not exceeding 90 days if the court is satisfied that it is necessary to do so in order to:

(a) verify the identity of the person; or

(b) assess the application; or

(d) ensure that the person is immediately available for health checks; or

(e) ensure that the person is available for removal if his or her application is unsuccessful.

(8) In considering whether it is necessary to detain a person to whom this section applies in order to assess the application or to ensure that the person is available for removal if his or her application is unsuccessful, the Federal Court must take into account the effectiveness and appropriateness of imposing conditions of release which would ensure that, should the person be released from detention, the person would be available for the assessment of the application for the visa or for removal if the application is unsuccessful.

(9) If the Federal Court has made an order under subsection (7) or a further order under this subsection, that a person be detained for a further period specified in the order, at the end of that specified period the person must be released from immigration detention unless the court has made a further order under this subsection that the person must be kept in immigration detention, provided that a further order under this subsection must not order that the person be kept in immigration detention for a further period exceeding 90 days.

(10) The Federal Court may order that a person who is released from detention must comply with reasonable conditions to ensure that he or she is available for the assessment of the application or for removal if the application is unsuccessful.

(11) The Federal Court may order that a person who has not complied with conditions of release imposed by the court may be detained for a period which the court considers reasonable in the circumstances.

(12) A person to whom this section applies who is released from detention must be granted a bridging visa which provides that the holder is entitled to the same entitlements as are provided under a Bridging R (Class WR) visa.

196B Detention of unsuccessful asylum seekers who are subject to removal

(1) This section applies to a person who made a valid application, which has been finally determined, for a visa under section 36, and that application was unsuccessful. To avoid doubt, an application for a visa under section 36 does not include a request to the Minister to make a determination under section 48B or to exercise the Minister's powers under section 417.

(2) An officer may detain a person to whom this section applies if the officer has reasonable grounds to consider that detention is necessary in order to:

(a) protect public safety or welfare; or

(b) ensure that the person will be available for removal from Australia.

(3) A person to whom this section applies who is detained must be given a written statement of the reasons for detention.

(7) The Federal Court may make an order that a person to whom this section applies must be kept in immigration detention for a period not exceeding 90 days if the court is satisfied that:

(a) there is a real likelihood of the person being removed from Australia in the reasonably foreseeable future; or

(b) if the person were allowed to leave immigration detention, there would be a significant risk that the person:

(i) would represent a danger to the safety or welfare of the Australian community, or to a segment of that community; or

(ii) would not be available for removal from Australia.

(8) In considering whether it is necessary to make an order under subsection (7) or a further order under subsection (9) to ensure that the person would be available for removal, the Federal Court must take into account the effectiveness and appropriateness of imposing conditions of release which would ensure that, should the person be released from detention, the person would be available for removal from Australia.

(10) The Federal Court may order that a person who is released from detention must comply with reasonable conditions to ensure that the person would be available for removal from Australia.

Amendment of the Migration Act 1958 Schedule 1

Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005

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Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005

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