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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)
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.
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.
Item 1 Subsections 196(4) and (4A)
10. This item repeals
subsections 196(4) and (4A) and substitutes new subsection 196(4) after
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.
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.