Introduction and overview
On 24 March 2011, the Senate referred the Migration Amendment (Detention
Reform and Procedural Fairness) Bill 2010 (Bill) to the Legal and Constitutional
Affairs Legislation Committee for inquiry and report by 16 August 2011.
The Bill was introduced in the Senate as a private senator's bill on 18 November
2010 by Senator Sarah Hanson-Young.
The Senate Selection of Bills Committee referred the Bill to the Legal
and Constitutional Affairs Legislation Committee 'to look into implementing
time-limits and procedural fairness on immigration detention'.
The Bill proposes to:
- legislation 'asylum seeker principles';
facilitate judicial review of detention decisions;
- repeal excised offshore places provisions;
- restore fair process and procedural fairness; and
- end indefinite detention.
The Bill would amend the Migration Act 1958 (Act) and the Administrative
Decisions (Judicial Review) Act 1977 (AD(JR) Act).
Key provisions of the Bill
Part 1: Amendment establishing
asylum seeker principles
The Bill proposes to insert a new section to the Act establishing asylum
seeker principles (Principles). In broad terms, the Principles seek to align
Australian domestic law to international conventions and treaties to which
Australia is a signatory as they relate to refugees and asylum seekers. The Principles
attempt to establish detention as a last resort, one that should only be used
for the shortest practicable time, and ensure that conditions in detention show
proper regard for the dignity of the human person.
Any decision made under the Act must have regard to the Principles in
Part 2: Amendments facilitating
judicial review of detention decisions
The Bill substitutes 'must' for 'may' in subsections 189(1) and 189(2).
The effect of this change is to make detention of an unlawful non-citizen in
the migration zone, or seeking to enter the migration zone, discretionary
rather than mandatory.
The Bill proposes to include section 195B: 'detainees may apply for an
order for release'. This new section creates a statutory requirement for a
detained person who has been detained under section 189 to be notified in
writing of the reason for their detention and the grounds for which they
continue to be detained. A person detained under the amended section 189 would
be able to apply to a magistrate for an order that he or she be released from
detention because there are no reasonable grounds to justify ongoing detention.
If the magistrate is satisfied that it is not appropriate to detain that
person, the magistrate may order that person's release or order that the person
be granted a visa.
The proposed section 195C – Order for continued detention – would
require the secretary of the Department of Immigration and Citizenship
(Department) to submit an application to the magistrate in order to detain a
person beyond 30 days, stating the reasons that necessitate ongoing detention. The
amendment provides that the magistrate could then order that the person be
detained or, if unsatisfied with the reasons put forward justifying further
Subsection 196(3) would be substituted to facilitate the release of
unlawful non-citizens by court order.
Item 7 ensures that if the Bill were passed persons currently in
detention would have access to judicial review of detention decisions as if
they had been detained following the commencement of the Bill.
Part 3 – Excised offshore places
Part 3 of the Bill proposes to repeal provisions relating to excised
offshore places. Currently, Excised Offshore Places are under Australian
jurisdiction and sovereignty and the Act applies to these places in all
respects, other than extending the visa application process to unauthorised
The Department explains excised offshore places:
Australia's excised offshore places were established by the Migration
Amendment (Excision from Migration Zone) Act 2001 (excision legislation)
which amended the Act. The effect of the excision legislation is that
non-citizens who have first entered Australia at an excised offshore place
without lawful authority – meaning without a valid visa that is in effect – are
barred from making valid visa applications on arrival or during their stay.
Persons that arrive in excised offshore places without a valid visa are
considered unlawful non-citizens. Australia regulates migration through a
universal visa system in which applicants acquire a visa in their home country
before travelling to Australia. In some limited cases visas can be applied for
on arrival in Australia. People who arrive without authorisation by ship or by
plane at an excised offshore place become offshore entry persons; they are
ineligible to apply for a visa. The minister for Immigration and Citizenship
(Minister) can allow an unlawful non-citizen to make a valid visa application
if he thinks it is in the public interest to do so.
Part 4 and Schedule 2 – Fair
process and procedural fairness
Part 4 seeks to ensure that migration decisions regarding asylum seekers
are subject to administrative review and external oversight. It would do this
by repealing or amending provisions of the Act and the AD(JR) Act to remove
privative clause provisions and enable judicial review of certain decisions
The Law Council of Australia explains the impact of these proposed changes on
the operation of the Act:
These amendments would require [decision] makers exercising
certain authority under the Migration Act, including the Minister, to take into
account general principles of administrative law – such as the right to know
the reasons for a decision. The amendments would also subject such decisions to
external oversight, such as review under the ADJR Act or judicial review in the
Part 4 of the Bill would also repeal the entirety of Part 8 of the Act
which deals with judicial review of decisions made under the Act, and the
jurisdiction of the Federal Magistrates Court and the Federal Court. Part
8 currently states that certain decisions made under the Act are privative
clause decisions that are:
Final and conclusive; must not be challenged, appealed
against, reviewed, quashed or called in question in any court; is not subject
to prohibition, mandamus, injunction, declaration or certiorari in any court on
Removing this Part would enable applicants to challenge previously
excluded administrative decisions.
Schedule 2 of the Bill seeks to extend the AD(JR) Act's application to
administrative decisions made under the Act previously excluded through
Part 5 – Indefinite detention
Item 49 of the Bill would repeal subsections 196(4), (4A), (5), (5A),
(6), and (7) of the Act. These subsections permit indefinite detention in cases
where an unlawful non-citizen is detained under section 189 of the Act until
such as time as that person is granted a visa, removed or deported from
Australia, or the detention is found to be unlawful by a court. The Bill seeks
to limit detention based on the amendments proposed in Part 2 of the Bill and
require a court order for detention beyond 30 days.
Conduct of the inquiry
The committee placed details of the inquiry, the Bill, explanatory
memorandum and the second reading speech on the committee's website.
The committee contacted interested organisations and individuals,
inviting submissions by 24 June 2011. Submissions were received from 32
individuals and organisations, as listed at Appendix 1. Submissions are
available on the committee's website.
A public hearing was held in Canberra on 4 August 2011. Witnesses who
appeared before the committee are listed at Appendix 2.
The committee thanks those organisations and individuals who made
submissions to the inquiry.
Note on references
Submission references in this report are to individual submissions as
received by the committee, not to a bound volume. Hansard references throughout
this report relate to proof Hansard page numbers. Please note page numbering
may differ between the proof and final Hansard.
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