Commonwealth of Australia Explanatory Memoranda Commonwealth of Australia Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
2002 – 2003
THE
PARLIAMENT OF THE COMMONWEALTH OF
AUSTRALIA
SENATE
MIGRATION AMENDMENT
(DURATION OF DETENTION) BILL 2003
SUPPLEMENTARY EXPLANATORY
MEMORANDUM
(Amendments to be Moved on Behalf of the
Government)
(Circulated by authority of
the
Minister for Immigration and Multicultural and Indigenous Affairs,
The
Hon. Philip Ruddock MP)
AMENDMENTS TO THE MIGRATION AMENDMENT
(DURATION OF DETENTION)
BILL 2003
OUTLINE
1. The purpose of these amendments to the Migration Amendment (Duration of Detention) Bill 2003 (“the Bill”) is to put beyond doubt that an unlawful non-citizen who is in immigration detention in certain limited circumstances must be kept in immigration detention until a court finally determines that:
• the detention is unlawful; or
• he or she is not an unlawful non-citizen.
2. The amendments relate to immigration detention of unlawful non-citizens in
the following circumstances:
• where his or her visa is cancelled
under section 501 of the Act; or
• where he or she is awaiting
their deportation from Australia under section 200 of the Act.
3. 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.
4. 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.
5. 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 immigration detainees, prior to the resolution of their substantive
court proceedings. In many of these instances, the person had been detained
because they had had their visa cancelled on character grounds. Specifically,
the records of such persons indicate a history of prior criminal convictions
sufficiently serious to cause them to be considered as persons of character
concern. The Government’s major concern is that the release of persons of
character concern does not occur, where that release may place members of the
Australian community at risk.
6. Therefore, these amendments to the Bill are designed to ensure that persons of character concern who are in immigration detention are not released into the Australian community prior to the resolution of their substantive court proceedings.
FINANCIAL IMPACT STATEMENT
7. The proposed amendments to
the Bill will not add to the financial impact of the
Bill.
AMENDMENTS TO THE MIGRATION AMENDMENT
(DURATION
OF DETENTION) BILL 2003
NOTES ON AMENDMENTS
Amendment (1)
1. This amendment omits the proposed subsection (4) and substitutes new proposed subsection (4) and subsection (4A).
New Proposed Subsection (4)
2. The new proposed subsection (4) puts it beyond doubt that if a person is
detained under section 196 of the Act as a result of the cancellation of his or
her visa under section 501 of the Act, their detention must continue until the
final determination of any substantive proceedings relating to either the
lawfulness of the person’s detention or whether the person is an unlawful
non-citizen.
3. In broad terms, section 501 of the Act provides that the Minister may
refuse to grant or cancel a visa if the Minister reasonably suspects that a
person does not pass the character test, and the person does not satisfy the
Minister that he or she passes the character test.
4. The character test, as set out in subsection 501(6) of the Act, includes
consideration of a number of factors, including the following:
• whether the person has a substantial criminal
record;
• the person’s past and present general conduct, and
the person’s character; and
• if the person was allowed to remain in Australia, would there be a
significant risk that the person would represent a danger to the Australian
community.
5. The new proposed subsection (4A) puts it beyond doubt that if a person is
detained pending his or her deportation under section 200 of the Act, their
detention is to continue until the final determination of any substantive
proceedings relating to the lawfulness of the person’s detention.
6. In broad terms Section 200 of the Act provides that the Minister may order
the deportation of a non-citizen in the following circumstances:
• where the non-citizen has been in Australia for less than 10 years
and has been convicted in Australia of an offence (section
201);
• where it appears to the Minister that the conduct of the
non-citizen constitutes, or has constituted, a threat to national security, and
the Minister has been furnished with an adverse security assessment by the
Australian Security Intelligence Organisation relating to that non-citizen
(section 202); or
• where a non-citizen has been convicted in
Australia of certain serious offences (section 203).
Amendment
(2)
7. This amendment inserts proposed new subsection (5A).
3. The proposed new subsection (5A) makes it clear that the proposed new subsections (4) and (4A) do not affect the continuation of the detention of a person detained under circumstances other than the circumstances set out in the proposed new subsections (4) and (4A).
Amendment (3)
9. This amendment reflects the new
subsections to which Schedule 1 item 2 applies (“Existing orders
unaffected”). In effect this means that new subsections 196 (4) to (7)
will only apply to orders made by a court after the commencement of Schedule
1.