Commonwealth Consolidated Acts

MIGRATION LEGISLATION AMENDMENT ACT 1989 - SECT 19

                   Section 38 of the Principal Act is amended:

             (a)   by omitting subsection (1) and substituting the following subsections:

           "(1)  An officer may, without warrant, arrest a person whom the officer reasonably supposes to be an illegal entrant.

         "(1A)  A person arrested under subsection (1) or (7A) may, subject to this section, be kept in the custody of any officer or in such other custody as the Minister or the Secretary directs.";

             (b)   by omitting from subsection (2) "in pursuance of this section" and substituting "under subsection (1) or (7A)";

             (c)   by omitting from subsection (2) "him" (wherever occurring) and substituting "the arrested person";

             (d)   by inserting in subsection (2) "or she" after "he";

           (da)   by omitting from subsection (3) "a prohibited non-citizen" and substituting "an illegal entrant";

             (e)   by omitting from subsection (3) "he may, by writing under his hand" and substituting "he or she may, in writing";

              (f)   by omitting from subsection (3) "for such period as the prescribed authority is satisfied is reasonably required in order to enable the Minister to consider whether that person is a prohibited non-citizen and whether a deportation order should be made in respect of him";

             (g)   by omitting subsection (3A) and substituting the following subsection:

         "(3A)  The period for which the prescribed authority may authorise a person to be detained in custody under subsection (3):

                     (a)  if the person proposes to leave Australia voluntarily--is until the person is ready, willing and able so to leave Australia;

                     (b)  where paragraph (a) does not apply--is such period as the prescribed authority is satisfied is reasonably required to enable consideration of whether the person is an illegal entrant and whether he or she should be allowed to remain in Australia; and

                     (c)  in any case--is not more than 7 days from the date of the authorisation or such longer period as the person consents to.";

             (h)   by omitting subsections (6) and (7) and substituting the following subsections:

           "(6)  If, while a person is in custody under this section, an officer informs the person (whether before or after the person is brought before a prescribed authority) that a deportation order is in force in relation to the person, the preceding provisions of this section stop applying in relation to the person, and the person shall be taken to have been thereupon arrested under section 39 by:

                     (a)  the officer who has custody of the person; or

                     (b)  if the person is not in the custody of an officer, by the officer who so informs the person.

           "(7)  In spite of anything else in this section, the Minister or the Secretary may at any time order the release (either unconditionally or subject to specified conditions) of a person who is in custody under this section.

         "(7A)  An officer may, without warrant, arrest a person who:

                     (a)  has been released from custody under subsection (7) subject to conditions; and

                     (b)  has breached any of those conditions.";

              (j)   by omitting from subsection (8) "he" and substituting "the person".

            (k)   by omitting from subsection (8) "a prohibited non-citizen" and substituting "an illegal entrant".