MIGRATION AMENDMENT (DETENTION OF MINORS) BILL 2010

i Migration Amendment (Detention of Minors) Bill 2010 No. , 2010

Contents

1 Short

title

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2 Commencement

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3 Objects

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4 Schedule(s)

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Schedule 1--Amendments relating to the detention of minors

Migration Act 1958

Schedule 2--Amendments relating to the guardianship of

minors

Migration Act 1958

Part 1--Appointment of a guardian

Part 2--Children's Commissioner

Migration Amendment (Detention of Minors) Bill 2010 No. , 2010 1

A Bill for an Act to amend the Migration Act 1958

to prohibit the detention of minors in detention

centres, and for related purposes

The Parliament of Australia enacts:

1 Short title

This Act may be cited as the Migration Amendment (Detention of

Minors) Act 2010.

2 Commencement

(1) Each provision of this Act specified in column 1 of the table

commences, or is taken to have commenced, in accordance with

column 2 of the table. Any other statement in column 2 has effect

according to its terms.

2 Migration Amendment (Detention of Minors) Bill 2010 No. , 2010

Commencement information

Column 1

Column 2

Column 3

Provision(s) Commencement

Date/Details

1. Sections 1 to 4

and anything in

this Act not

elsewhere covered

by this table

The day this Act receives the Royal Assent.

2. Schedule 1

The day after this Act receives the Royal

Assent

3. Schedule 2,

Part 1

The day after this Act receives the Royal

Assent

4. Schedule 2,

Part 2

Immediately after the commencement of the

Commonwealth Commissioner for Children

and Young People Act 2010, but if that event

does not occur, the Part does not commence

at all.

Note:

This table relates only to the provisions of this Act as originally

passed by both Houses of the Parliament and assented to. It will not be

expanded to deal with provisions inserted in this Act after assent.

(2) Column 3 of the table contains additional information that is not

part of this Act. Information in this column may be added to or

edited in any published version of this Act.

3 Objects

The objects of this Act are:

(a) to provide that children detained under the Migration Act

1958 not be held in immigration detention facilities but

instead be placed, along with their immediate family

members or guardians, in community residential facilities;

and

(b) to uphold Australia's international obligations under the

United Nations Convention on the Rights of the Child,

particularly as they relate to:

(i) the primacy of the consideration of the child's best

interests (Article 4); and

(ii) the principle that children must only be detained as a

measure of last resort (Article 37).

Schedule 1 Amendments relating to the detention of minors

4 Migration Amendment (Detention of Minors) Bill 2010 No. , 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.

Amendments relating to the detention of minors Schedule 1

Migration Amendment (Detention of Minors) Bill 2010 No. , 2010 5

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.

Schedule 2 Amendments relating to the guardianship of minors

6 Migration Amendment (Detention of Minors) Bill 2010 No. , 2010

(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)".

Amendments relating to the guardianship of minors Schedule 2

Migration Amendment (Detention of Minors) Bill 2010 No. , 2010 7

Schedule 2--Amendments relating to the

guardianship of minors

Migration Act 1958

Part 1--Appointment of a guardian

1 Subsection 197ABA(4)

After "Minister decides", insert ", in consultation with the guardian of

the minor if one has been appointed under section 197AH,"

2 At the end of Division 7 of Part 2

Add:

Subdivision C--Appointment of a guardian

197AH Appointment of a guardian

(1) If a person to whom Subdivision B applies is identified as a minor,

the Minister must as soon as practicable but in any case within 12

days, appoint a person to act as guardian of the minor.

(2) An appointment under subsection (1) must be made by notice in

writing to the person appointed as guardian, and a copy given to

the minor.

(3) An appointment under subsection (1) remains in force until:

(a) this Act no longer requires or permits the person to be

detained or to reside at a specified place under a residence

determination; or

(b) the appointment is revoked by the Minister, in writing, and a

new appointment is made under that subsection; or

(4) A person must not be appointed as a guardian of a minor under

subsection (1) unless the Minister is satisfied that:

(a) the person has appropriate qualifications, knowledge or

experience and is of good character; and

Schedule 2 Amendments relating to the guardianship of minors

8 Migration Amendment (Detention of Minors) Bill 2010 No. , 2010

(b) the person has a demonstrated commitment to, and capacity

to advance the rights, interests and well-being of, children

and young people; and

(5) A person appointed as a guardian to a minor under subsection (1) is

authorised by this section to:

(a) represent the minor as guardian in respect of any provision of

this Act; and

(b) advocate for the best interests of the child in any relevant

proceeding or forum; and

or forum.

(6) To avoid doubt, the Minister may delegate to an authorised officer

the power to make an appointment under subsection (1), provided

that the officer is:

(a) the Secretary; or

(b) an SES employee, or equivalent officer.

Part 2--Children's Commissioner

1 Subsection 5(1)

Insert:

Children's Commissioner means a person appointed under

section 13 of the Commonwealth Commissioner for Children and

Young People Act 2010.

2 Subsection 197AH(1)

Omit "appoint a person", substitute "appoint the Children's

Commissioner".

3 Transitional

An appointment made under subsection 197AH(1) before the

commencement of this Part has effect (after the commencement of this

Part) as if the person appointed were the Children's Commissioner.

Commonwealth of Australia Bills

MIGRATION AMENDMENT (DETENTION OF MINORS) BILL 2010