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2013-2014-2015-2016
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
MIGRATION AMENDMENT (FREE THE CHILDREN) BILL 2016
EXPLANATORY MEMORANDUM
(Circulated by authority of Senator Hanson-Young)
MIGRATION AMENDMENT (FREE THE CHILDREN) 2016
OUTLINE
The Migration Amendment (Free the Children) Bill 2016 seeks to end the cruel and
inhumane detention of children in immigration detention in Australia and Australia's regional
processing centres.
This Bill seeks to provide that children detained under the Migration Act 1958 (the Act) not
be held in immigration detention facilities but instead be placed, along with their immediate
family members or guardians, in community residential housing for any requisite period of
detention.
By including explicit reference to Articles 3 and 37 of the United Nations Convention on the
Rights of the Child, the Bill seeks to strengthen and codify international law within the Act
by ensuring the primacy of the consideration of the child's best interests: that minors must
only be detained as a matter of last resort and for the shortest appropriate time possible, not as
a matter of first and only resort as is the current practice.
The Bill also seeks to expand the residence determination process, to ensure that the Minister
for Immigration and Border Protection (the Minister), must, within 30 days, determine that a
minor is to reside at a specified place within the community rather than being held in
detention.
Importantly, the Bill also expands the scope of protection afforded to minors held in regional
processing countries, by ensuring that the Minister cannot affect the transfer of minors to any
other country that intends to detain them, and by requiring the immediate return to Australia
of any minor currently held in immigration detention offshore.
As a signatory to the United Nations Convention on the Rights of the Child, Australia has a
responsibility in upholding and ensuring the dignity, development and protection of all
children. By cementing our international obligations in legislation and expanding the
residence determination process, the Bill provides a clear framework of human rights
standards to ensure minors seeking Australia's protection are afforded with the protection
they deserve.
NOTES ON CLAUSES
Clause 1: Short Title
1. Clause 1 is a formal provision specifying the short title of the Act, when the Bill is
enacted.
Clause 2: Commencement
2. The Bill will commence days the day it receives royal assent.
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Clause 3: Objects
3. This clause identifies that the objective of this Bill is to ensure 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
housing for any requisite period of detention.
A further objective of this Bill is to expand the scope of protection afforded to minors held in
regional processing countries, by ensuring that the Minister cannot affect the transfer of
minors to any other country that intends to detain them, and by requiring the immediate
return to Australia of any minor currently held in immigration detention offshore.
Clause 4 - Schedules
4. Each Act specified in a Schedule to this Act is amended or repealed as is set out in the
applicable items in the Schedule. Any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1--Amendments
Part 1 - Amendments to the Migration Act 1958
Item 1 -Section 4AA:
5. This item replaces the existing section 4AA of the Act with principles to protect the
rights of minors. This new section specifically draws on Article 37 of the United Nations
convention on the Rights of the Child.
Item 2 - Subsection 5(1):
6. This item inserts a formal definition of the Convention on the Rights of the Child.
Item 3 -Subsection 5(1) (definition of residence determination):
7. This item amends the formal definition of residence determination in existing
subsection 5(1) to reflect the changes made by this Bill.
Item 4 -Subsection 197AAA
8. This item inserts new subsection 197AAA which seeks to strengthen and clearly
define the residence determination powers currently held by the Minister.
9. Subsection 197AAA(1) requires that the Minister 'must' make a determination within
30 days after a minor arrives in Australia (either initially or in transit from a regional
processing centre).
10. Subsection 197AAA(2) ensures that where a minor has been identified as being a
member of a family unit, the Minister must make a determination that the minor and their
family are to reside together in the community.
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11. Subsection 197AAA(3) provides that, where a minor has not been identified as being
a member of a family unit, and is in the care of another person the Minister must make a
determination that the minor resides with that person in the community.
12. Subsection 197AAA(4) provides that the Minister must have regard to the public
interest when making a determination under subsections 197AAA(2) and (3).
13. Subsection 197AAA(5) articulates that the best interests of the child are paramount
and that the Minister must be satisfied that the living conditions at the specified place are of a
higher standard than a placed covered by the definition of immigration detention contained in
subsection 5(1) of the Act.
14. Subsection 197AAA(6) limits the Minister's ability to refuse to make a residence
determination to cases in which he / she does not believe it would be in the minors best
interest to do so, or it would be contrary to the public interest to do so. This subsection also
ensures that family unity is paramount and minors do not have to be separated from their
family members in situations in which an adverse security assessment has been made in
respect of a member of the family unit.
15. Subsection 197AAA(7) provides that a residence determination must specify the
person or persons covered by the determination by name and specify the conditions to be
complied with.
16. Subsection 197AAA(8) provides that a determination must be made by notice in
writing to the person or persons covered by the determination.
17. Subsection 197AAA(9) stipulates that regulations made for the purposes of this
section must prescribe a method for a person to apply for recognition of his / her relationship
to the minor and that the application must be determined within 30 days of the application
being made.
18. Subsection 197AAA(10) provides that decisions regarding determinations are
reviewable before the Administrative Appeals Tribunal. The aim of this section is to
safeguard a minor's right to appeal the refusal of a determination, or that of a member of their
family unit.
19. Subsection 197AAA(11) provides definitions for the terms adverse security
assessment and Organisation as used in this section.
Item 5 -Subsections 197AB(1) and (2):
20. This item inserts subsections 197AAA(1), (2) and (3) into the existing subsection
197AD(2) of the Act, ensuring that any variation in a residence determination complies with
the provisions of those sections.
Item 6 - Section 197AD:
21. This item adds a provision to the existing section197AD to provide that an application
may be made to the Administrative Appeals Tribunal for a review of a decision revoking or
varying a residence determination. The aim of this is to safeguard a minor's right to appeal
the refusal of a determination, or that of a member of their family unit.
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Item 7 - Section 197AF :
22. This item repeals existing section 197AF and substitutes it with a new section 197AF
that expands the category of persons who can make residence determinations to include the
Minister, Secretary and an authorised officer (section 197AF(1)). By expanding the category
of persons who can make a determination, this new sections aims to expedite and streamline
the residence determination process while also ensuring that those persons who work directly
with the minor and are therefore best placed to assess their individual needs (such as an
authorised officer who is an SES employee, an acting SES employee or equivalent in the
Department) are empowered to make the determination.
23. Subsection 197AF(3) and (4) provide that the power to revoke a residence
determination can only be made by the Secretary or Minister personally. This ensures that
any cancellation of a residence determination is subject to proper consideration and scrutiny.
Item 8 -Section 198AB
24. This item repeals existing section 198AB of the Act and substitutes it with a new
section 198AB that ensures that the Minister can only designate a country as a regional
processing country where the Minister is satisfied that the country complies with relevant
international laws, meets relevant human rights standards and is a safe and appropriate place
for minors to reside. The Minister must further be satisfied that the country will release any
minor from immigration detention as soon as is reasonably practicable. The aim of this
section is to ensure that minors are not sent to regional processing countries that intend to
keep them in immigration detention. Minors should be in a safe and appropriate environment
in which they can thrive.
25. In making this decision the Minister must have regard as to whether the country has
given Australia assurances to the effect that if a minor is taken to that country, all reasonable
steps will be taken to release them from detention as soon as practicable.
26. Subsection 198AB(9) provides that if the Minister has designated a country as a
regional processing country and the Minister becomes aware that one or more minors have
been taken to that country and detained, and the country has not taken all reasonable steps to
release the minors from detention as soon as practicable, the Minister must revoke the
designation.
Item 9 - Subparagraph 198AB(3)(a)
27. This item is a consequential amendment resulting from the amendments in item 8.
Item 10 -Paragraph 198AC(2)(b)
28. This item inserts a new paragraph, 198AC(2)(b) which requires a statement of the
Minister's reasons for being satisfied that the country will, as soon as practicable, release any
detained person who is subsequently identified as a minor, to be tabled in both houses of
Parliament.
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Item 11 -Section 198AE
29. This item is a technical amendment ensuring that new section 198ADA is considered
in determining whether someone is taken to a regional processing country.
Item 12 -Section 198ADA
30. This item inserts a new subdivision 198ADA to ensure that minors, their family
members or guardian will not be taken from Australia to a regional processing country.
Item 13 - Subsection 198AH
31. This item is a technical amendment to add new section 198ADA to the provisions
relating to transitory people.
Item 14 - Application of section 197AAA of the Migration Act 1958
32. This item seeks to make clear how those who will be affected by the commencement
of the amendments to the Migration Act 1958 made by this Act will be treated. It provides
that the Minister must make a determination for minors detained within 14 days of
commencement. The determination must include their family unit, carer or guardian.
Item 15 - Application of section 198AB of the Act
33. This item ensures that any designation of a regional processing country made prior to
the commencement of this item ceases to be in effect. Any designations of regional
processing countries must satisfy sections 197AF and 198AB. The Minister must therefore be
satisfied that the country will release any minor from immigration detention as soon as is
reasonably practicable. The aim of this section is to ensure that minors are not sent to
regional processing countries that intend to keep them in immigration detention and that they
provide a safe and appropriate environment in which the minor may thrive.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Migration Amendment (Free the Children) Bill 2016
This Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
The Migration Amendment (Free the Children) Bill 2016 seeks to end the cruel and
inhumane detention of children in immigration detention in Australia and Australia's regional
processing centres.
Human rights implications
This Bill focuses on the rights of the child and specifically inserts Article 37 of the UN
Convention on the Rights of the Child into the proposed legislation.
The requirement that the Minister make a residence determination for all minors is consistent
with Australia's obligations under the International Covenant on Civil and Political, in
particular Article 7 which prohibits torture and cruel, inhuman or degrading punishment,
Article 9 which recognises the right to liberty and Article 10 which requires that anyone
deprived of liberty (including those detained for immigration purposes) be treated with
dignity and humanity.
The requirement that the Minister make a residence determination for all minors and
members of their family unit is also consistent with Australia's obligations under the
International Covenant on Economic, Social and Cultural Rights, in particular Article 10 that
states that the widest possible protection should be accorded to the family.
Conclusion
The Bill is compatible with human rights because it advances the protection of human rights.
Senator Hanson-Young
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