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2004-2005 The Parliament of the Commonwealth of Australia THE SENATE Presented and read a first time Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005 (Senators Brown and Nettle) A Bill for an Act to reform the mandatory detention system, and for related purposesIndex] [Search] [Download] [Bill] [Help]Contents 1 Short title ......................................................................................1 2 Commencement .............................................................................1 3 Schedule(s)....................................................................................2 Schedule 1--Amendment of the Migration Act 1958 3 i Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 A Bill for an Act to reform the mandatory 22 detention system, and for related purposes 23 24 25 The Parliament of Australia enacts: 26 27 1 Short title 28 This Act may be cited as the Migration Amendment (Mandatory 29 Detention) Act 2005. 30 2 Commencement 31 This Act commences on the day on which it receives the Royal 32 Assent. Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005 1
1 3 Schedule(s) 2 Each Act that is specified in a Schedule to this Act is amended or 3 repealed as set out in the applicable items in the Schedule 4 concerned, and any other item in a Schedule to this Act has effect 5 according to its terms. 2 Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005
Amendment of the Migration Act 1958 Schedule 1 1 2 Schedule 1--Amendment of the Migration Act 3 1958 4 5 6 1 At the end of section 36 7 Add: 8 Protection visa to permit holder to remain in Australia 9 permanently 10 (8) A visa issued under this section shall permit the holder to remain in 11 Australia permanently, despite any other provisions of this Act or of 12 the regulations. 13 2 After section 189 14 Insert: 15 189A Detention of children 16 For the purposes of this Division, the Parliament affirms as a principle 17 that a minor child shall be detained only as a measure of last resort and 18 that before a decision is taken to detain a minor child, or to continue to 19 hold a minor child in detention, the best interests of the minor child must 20 be taken into account and any alternatives to detention considered. 21 3 At the end of subsection 196(1) 22 Add: 23 ; or (d) released from detention in accordance with section 196A or 24 196B. 25 4 Subsection 196(3) 26 After "doubt", insert "and subject to sections 196A and 196B". 27 5 Subsection 196(4) 28 Omit "and (c)", substitute ", (c) and (d)". 29 6 Subsection 196(4A) Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005 3
Amendment of the Migration Act 1958 Schedule 1 1 Omit "and (c)", substitute ", (c) and (d)". 2 7 Subsection 196(5) 3 After "doubt", insert "and subject to sections 196A and 196B". 4 8 After section 196 5 Insert: 6 196A Detention of asylum seekers 7 (1) This section applies to a person who is an unlawful non-citizen who: 8 (a) has applied for a visa under section 36 which has not been 9 finally determined; or 10 (b) has requested the Minister to: 11 (i) make a determination under section 48B; or 12 (ii) exercise the Minister's power under section 417; 13 and has not received the decision of the Minister. 14 (2) An officer may detain a person to whom this section applies if the 15 officer has reasonable grounds to consider that detention is 16 necessary in order to: 17 (a) verify the identify of the person; or 18 (b) assess the application; or 19 (c) protect public safety or welfare; or 20 (d) ensure that the person is immediately available for health 21 checks; or 22 (e) ensure that the person is available for removal if his or her 23 application is unsuccessful. 24 (3) A person to whom this section applies who is detained must be 25 given a written statement of the reasons for detention. 26 (4) A person to whom this section applies who is detained may apply to 27 the Federal Court for an order that he or she be released because 28 there are no reasonable grounds to consider that detention is 29 necessary for the reasons specified in subsection (2). 30 (5) A person to whom this section applies may be detained for a period 31 not exceeding 90 days unless the Federal Court makes an order 32 under subsection (7), a further order under subsection (9) or an 4 Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005
Amendment of the Migration Act 1958 Schedule 1 1 order under subsection (11) that the person must be kept in 2 immigration detention. 3 (6) The Secretary may apply to the Federal Court for an order under 4 subsection (7), a further order under subsection (9) or an order 5 under subsection (11) that a person to whom this section applies 6 must be kept in immigration detention. 7 (7) The Federal Court may make an order that a person to whom this 8 section applies must be kept in immigration detention for a period 9 not exceeding 90 days if the court is satisfied that it is necessary to 10 do so in order to: 11 (a) verify the identity of the person; or 12 (b) assess the application; or 13 (c) protect public safety or welfare; or 14 (d) ensure that the person is immediately available for health 15 checks; or 16 (e) ensure that the person is available for removal if his or her 17 application is unsuccessful. 18 (8) In considering whether it is necessary to detain a person to whom 19 this section applies in order to assess the application or to ensure 20 that the person is available for removal if his or her application is 21 unsuccessful, the Federal Court must take into account the 22 effectiveness and appropriateness of imposing conditions of release 23 which would ensure that, should the person be released from 24 detention, the person would be available for the assessment of the 25 application for the visa or for removal if the application is 26 unsuccessful. 27 (9) If the Federal Court has made an order under subsection (7) or a 28 further order under this subsection, that a person be detained for a 29 further period specified in the order, at the end of that specified 30 period the person must be released from immigration detention 31 unless the court has made a further order under this subsection that 32 the person must be kept in immigration detention, provided that a 33 further order under this subsection must not order that the person be 34 kept in immigration detention for a further period exceeding 90 35 days. Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005 5
Amendment of the Migration Act 1958 Schedule 1 1 (10) The Federal Court may order that a person who is released from 2 detention must comply with reasonable conditions to ensure that he 3 or she is available for the assessment of the application or for 4 removal if the application is unsuccessful. 5 (11) The Federal Court may order that a person who has not complied 6 with conditions of release imposed by the court may be detained for 7 a period which the court considers reasonable in the circumstances. 8 (12) A person to whom this section applies who is released from 9 detention must be granted a bridging visa which provides that the 10 holder is entitled to the same entitlements as are provided under a 11 Bridging R (Class WR) visa. 12 196B Detention of unsuccessful asylum seekers who are subject to 13 removal 14 (1) This section applies to a person who made a valid application, 15 which has been finally determined, for a visa under section 36, and 16 that application was unsuccessful. To avoid doubt, an application 17 for a visa under section 36 does not include a request to the Minister 18 to make a determination under section 48B or to exercise the 19 Minister's powers under section 417. 20 (2) An officer may detain a person to whom this section applies if the 21 officer has reasonable grounds to consider that detention is 22 necessary in order to: 23 (a) protect public safety or welfare; or 24 (b) ensure that the person will be available for removal from 25 Australia. 26 (3) A person to whom this section applies who is detained must be 27 given a written statement of the reasons for detention. 28 (4) A person to whom this section applies who is detained may apply to 29 the Federal Court for an order that he or she be released because 30 there are no reasonable grounds to consider that detention is 31 necessary for the reasons specified in subsection (2). 32 (5) A person to whom this section applies may be detained for a period 33 not exceeding 90 days unless the Federal Court makes an order 34 under subsection (7), a further order under subsection (9) or an 6 Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005
Amendment of the Migration Act 1958 Schedule 1 1 order under subsection (11) that the person must be kept in 2 immigration detention. 3 (6) The Secretary may apply to the Federal Court for an order under 4 subsection (7), a further order under subsection (9) or an order 5 under subsection (11) that a person to whom this section applies 6 must be kept in immigration detention. 7 (7) The Federal Court may make an order that a person to whom this 8 section applies must be kept in immigration detention for a period 9 not exceeding 90 days if the court is satisfied that: 10 (a) there is a real likelihood of the person being removed from 11 Australia in the reasonably foreseeable future; or 12 (b) if the person were allowed to leave immigration detention, 13 there would be a significant risk that the person: 14 (i) would represent a danger to the safety or welfare of the 15 Australian community, or to a segment of that 16 community; or 17 (ii) would not be available for removal from Australia. 18 (8) In considering whether it is necessary to make an order under 19 subsection (7) or a further order under subsection (9) to ensure that 20 the person would be available for removal, the Federal Court must 21 take into account the effectiveness and appropriateness of imposing 22 conditions of release which would ensure that, should the person be 23 released from detention, the person would be available for removal 24 from Australia. 25 (9) If the Federal Court has made an order under subsection (7) or a 26 further order under this subsection, that a person be detained for a 27 further period specified in the order, at the end of that specified 28 period the person must be released from immigration detention 29 unless the court has made a further order under this subsection that 30 the person must be kept in immigration detention, provided that a 31 further order under this subsection must not order that the person be 32 kept in immigration detention for a further period exceeding 90 33 days. Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005 7
Amendment of the Migration Act 1958 Schedule 1 1 (10) The Federal Court may order that a person who is released from 2 detention must comply with reasonable conditions to ensure that the 3 person would be available for removal from Australia. 4 (11) The Federal Court may order that a person who has not complied 5 with conditions of release imposed by the court may be detained for 6 a period which the court considers reasonable in the circumstances. 7 (12) A person to whom this section applies who is released from 8 detention must be granted a bridging visa which provides that the 9 holder is entitled to the same entitlements as are provided under a 10 Bridging R (Class WR) visa. 8 Migration Amendment (Mandatory Detention) Bill 2005 No. , 2005