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2002 – 2003
THE PARLIAMENT OF THE
COMMONWEALTH OF AUSTRALIA
HOUSE OF
REPRESENTATIVES
MIGRATION AMENDMENT (DURATION OF
DETENTION) BILL 2003
EXPLANATORY
MEMORANDUM
(Circulated by authority of the
Minister for
Immigration and Multicultural and Indigenous Affairs,
The Hon. Philip Ruddock
MP)
MIGRATION AMENDMENT (DURATION OF DETENTION) BILL
2003
OUTLINE
1. The Migration Amendment (Duration of
Detention) Bill 2003 (“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 finally
determines 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 the Act in relation to the
mandatory detention of unlawful non-citizens.
5. The Bill seeks to
prevent the release of a detainee from immigration detention pending a
court’s 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
2003
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
2003.
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.
Item 1 At the end of section 196
8. This item inserts
new subsections 196(4), (5), (6) and (7) at the end of section 196 of
the
Act.
9. 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.
10. 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.
11. 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 final orders 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
granted a visa, or is removed from Australia or deported.
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. New subsection 196(5) makes it clear that new
subsection 196(4) applies whether or not:
• there is a real
likelihood of the person detained being removed from Australia or deported in
the reasonably foreseeable future (paragraph (a)); and
• a visa
decision relating to the person detained is, or may be, unlawful (paragraph
(b)).
1. The effect of new subsection 196(5) is that, even where a person
challenges the lawfulness of his or her detention or a visa decision, the person
must be kept in immigration detention unless a court finally determines that the
detention is unlawful or the person is a lawful non-citizen.
2. New
subsection 196(6) provides that section 196 has effect despite any other
law.
3. New subsection 196(7) inserts a definition of “visa
decision” to mean a decision relating to a visa, including a decision to
refuse to grant a visa, cancel a visa or not to reinstate a visa.
4. This
item also alters the heading to section 196 of the Act to make it clear that
section 196 relates to the duration of detention. This amendment is
consequential to the insertion of new subsections 196(4) and (5).
5. This item provides that new subsections 196(4), (5), (6) and (7) do
not affect the
validity of any order made by a court before the commencement
of Schedule 1.
6. In effect, this means that new subsections 196(4),
(5), (6) and (7) will only apply to
orders made by a court after the
commencement of Schedule 1.