(Duration of Detention) Bill 2004
19 February 2004
House: House of Representatives
Portfolio: Immigration and Multicultural and
One day after Royal
To amend the
Migration Act 1958 to prevent courts from issuing interim
orders for the release of immigration detainees.
The Migration Amendment (Duration of
Detention) Bill 2003 ( the 2003 Bill ) was introduced to prevent
interlocutory (that is, interim) orders for the release of any
immigration detainee, whether or not in the context of broader
judicial review proceedings. The 2003 Bill was amended during
passage so that it only prevented the courts issuing interlocutory
orders in relation to persons of character concern. Those matters
initially addressed by the 2003 Bill but not enacted in the
Migration Amendment (Duration of Detention) Act 2003 (that
is, the making of interim orders in relation to persons who are in
immigration detention but who are not persons of character concern)
are addressed in the Migration Amendment (Duration of Detention)
Bill 2004 ( the present Bill ). The widening of the limitation on
interim orders from that enacted in 2003 would prevent the courts
making interim orders in relation to any person who is in
immigration detention and who is seeking judicial review of their
The issues raised by the 2003 Bill, including
issues relating to those provisions which form the basis of the
present Bill, were discussed in Bills
Digest No.182 2002-03.(1)
In essence, the key issue is that the Federal
Court has held that s.196 of the Migration Act 1958 (as in
force prior to the commencement of the Migration Amendment
(Duration of Detention) Act 2003) does not prevent it making an
interlocutory order that a person be released from immigration
detention pending the court s final determination of the person s
application for judicial review. The Court has indicated that if
the parliament wishes to prevent a court from ordering the
interlocutory release of a person from immigration detention it
must make this intention unmistakably clear . The current Bill is
intended to do this.
The Government s stated view is that any
person who is, or who is suspected of being, an unlawful
non-citizen should not be allowed into the community until the
question of their status is resolved.(2) Furthermore,
the Government s view is that section 196 of the Migration Act
1958 (introduced by the Migration Reform Act 1992)
clearly reflected Parliament s intention that no person or court
could release from detention an unlawful non-citizen being held
lawfully in immigration detention.
The current Bill is designed to give effect to
that intention in unmistakably clear terms.
The 2003 Bill as originally introduced would
have prevented interlocutory or interim orders for the release of
any immigration detainee.
Members of the Australian Labor Party
indicated opposition to the scope of the original Bill in the
debate on the Bill.(3) The then opposition spokesperson
for Population, Immigration, Reconciliation and Indigenous affairs
Ms Gillard distinguished between failed asylum seekers, criminal
deportees, and persons whose visa has been cancelled on character
grounds, and stated that Labor [was] not prepared to support a bill
which deals with failed asylum seekers in a way which would prevent
the Federal Court from ordering their release on an interim basis
if that were called for .(4)
The Australian Democrats opposed the
legislation. Senator Bartlett stated that the courts should retain
the power to determine whether or not people are a risk to the
The Australian Greens oppose the policy of
mandatory detention and opposed both the original and the amended
2003 Bill. In particular, in speaking on the 2003 Bill Mr Organ
stated that it was right and just that a person be released into
the community until a court determined their application for
However, the Australian Labor Party indicated
that it was prepared to consider government suggestions in relation
to criminal deportees and persons who had had their visas cancelled
on character grounds.(7) In response the Government
introduced amendments limiting the scope of the Bill to preventing
courts from making interim orders in relation to persons of
The amendments had the effect that the Bill as
passed dealt only with the position of criminal deportees and
persons whose visa has been cancelled on character grounds. It did
not deal with asylum seekers or other immigration detainees.
During consideration of the 2003 Bill the then
Minister for Immigration and Multicultural and Indigenous Affairs
stated that amendments limiting the scope of the Bill had been
moved by the Government to protect the Australian community against
the possibility of people of character concern being released from
detention and of some tragic event occurring for which those of us
who allowed a situation where a person who was at large might well
be blamed , in the face of opposition to the Bill as it had been
introduced.(8) He went on to say that he would
subsequently introduce a new bill to cover broader concerns on
interlocutory relief for all persons from immigration detention
before final resolution of their court proceedings .(9)
The current Bill addresses those broader concerns.
The case of
Woolley(10) currently before the High
Court involves an application for the release from immigration
detention of 4 children who had, as at the date of hearing, been
held in immigration detention for over 3 years. Argument in the
case was heard on 4 February 2004 and judgment reserved. The
significance of the case to the current Bill is that it was argued
that the present scheme of mandatory detention is unconstitutional
insofar as it provides for administrative detention of
indeterminate term that, at least in relation to children, is not
reasonably capable of being seen as necessary .(11)
If this argument were to be accepted by the
High Court it would have the effect that administrative detention
of children under section 196 of the Migration Act would be
It is arguable that a mandatory detention
scheme which does not allow the courts to make interim orders for
release of children from detention in appropriate circumstances is
less likely to be held to be reasonably capable of being seen as
necessary than one which allows for such orders.
Depending on the precise reasoning adopted by
the Court, a finding of invalidity in Applicants M276 may
also cast doubt upon the validity of the provisions to be inserted
in the Migration Act by the current Bill in relation to adults. It
may be arguable that a total removal from the courts of the power
to made interim orders for release in appropriate cases is also not
reasonably capable of being seen as necessary .
Release where deportation is not reasonably practical
As discussed in Bills
Digest No.182 2002-03, in the 2002 case of Al Masri v
MIMIA,(12) Merkel J held that detention was only
lawful so long as removal was reasonably practicable in the sense
that there must be a real likelihood or prospect of removal in the
foreseeable future .(13) This conclusion was based on
the terms of sections 196 and 198 of the Migration Act, in which
Merkel J found a limitation on the power to detain to such a time
as was reasonably necessary to give effect to purposes associated
with the processing and removal of aliens.
Clause 4 provides that the
amendments made by Schedule 1 are not
Schedule 1 amends the
Migration Act 1958.
Item 1 omits subsections
196(4) and (4A) of the Act and substitutes new subsection
(4). This subsection is as initially proposed by the
Government in the 2003 Bill. It provides that detention is to
continue until a court finally determines that detention is
unlawful or the detainee is not an unlawful non-citizen.
Furthermore, by virtue of existing subsection
196(5) this rule applies regardless of whether or not there is:
a real likelihood [of removal or deportation] in the reasonably
foreseeable future , or
a visa decision that is, or may be, unlawful.
Item 3 repeals subsection
196(5A). This subsection provided that subsections 196(4) and (4A)
did not, by implication, affect the detention of a person to whom
the subsections did not apply. It is not now necessary as
new subsection (4) will apply to all persons in
Comments made in relation to the 2003 Bill in
Bills Digest No.182(14) apply equally to this Bill.
It appears that the High Court will be
increasingly asked to consider the constitutional limitations upon
the power of the Commonwealth to provide for indefinite detention,
or detention beyond the period that is reasonably necessary for
processing or deportation. The decision of the Court in
Applicants M276 may, at least in relation to children,
strike down section 196 of the Migration Act (whether in its
current form or as proposed to be amended by this Bill) as
exceeding such limitations.
In addition, the Bill will prevent a Court
from ordering interim relief in circumstances where, subsequently,
the detention is found to be unlawful and to have been unlawful
when the interim relief was sought. This means that in a situation
where a court could find that there is a serious question to be
tried as to the lawfulness of a detention, and that the balance of
convenience favours an order for release, the court will be
prevented from making such an order by amended section 196. The
detention could be found to be unlawful either because it did not
fall within the scope of the Migration Act or on constitutional
grounds. It is doubtful that Parliament could legislate to require
a person to be kept in immigration detention if that detention was
There may be claims for compensation in
circumstances where the amended section 196 has prevented the
release of a person from detention where that person s detention
has subsequently been found to be unlawful.
The Hon Gary Hardgrave, MP, Minister for Citizenship and
Multicultural Affairs and Minister Assisting the Prime Minister,
Migration Amendment (Duration of Detention) Bill 2004, Second
Reading Speech, House of Representatives, Debates, 19
February 2004, p. 24859.
Speakers included Ms Julia Gillard, MP, (then shadow minister
for Population, Immigration, Reconciliation and Indigenous
affairs), Migration Amendment (Duration of Detention) Bill 2003,
Second Reading, House of Representatives, Debates, 26 June
2003, p. 17645 and 17756.
op. cit. p. 17645.
Senator Bartlett, Migration Amendment (Duration of Detention)
Bill 2003, Second Reading, Senate, Debates, 8 September
2003, p. 14465.
Mr Michael Organ, MP, Migration Amendment (Duration of
Detention) Bill 2003, Second Reading, House of Representatives,
Debates, 26 June 2003, p. 17749.
Ms Julia Gillard MP (then shadow minister for Population,
Immigration, Reconciliation and Indigenous affairs) Migration
Amendment (Duration of Detention) Bill 2003, Second Reading, House
of Representatives, Debates, 26 June 2003, p. 17645.
The Hon Philip Ruddock, MP, Minister for Immigration and
Multicultural and Indigenous Affairs, Migration Amendment (Duration
of Detention) Bill 2003, Consideration of Senate Message, House of
Representatives, Debates, 10 September 2003, p. 19726.
Applicants M276/2003, Ex parte Re Woolley & Anor  HCA
accessed on 1 March 2004.
It was argued for the children that the Commonwealth only has
power to provide for administrative detention for a purpose within
power (such as for the detention of aliens), that such detention
(that is, detention which is not ordered by a Court) is only valid
if the detention is reasonably capable of being seen as necessary
(relying on Chu Kheng Lim v The Minister for Immigration, Local
Government and Ethnic Affairs (1992) 176 CLR 1; discussed in
Digest No. 182; op cit. pp.2-3) and that, at least in relation to
children, s.196 is not reasonably capable of being seen as
Al Masri v Minister for Immigration and Multicultural and
Indigenous Affairs  FCA 1009 (15 August 2002).
ibid., at p. 38.
op. cit. pp. 10 11.
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Published by the Parliamentary Library, 2004.