CHAPTER 1


CHAPTER 1

Introduction and overview

Background

1.1        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.[1] The Bill was introduced in the Senate as a private senator's bill on 18 November 2010 by Senator Sarah Hanson-Young.

1.2        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'.[2]

1.3        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.

1.4        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

1.5        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.

1.6        Any decision made under the Act must have regard to the Principles in making decisions.

Part 2: Amendments facilitating judicial review of detention decisions

1.7        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.[3]

1.8        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.   

1.9        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 detention, released.  

1.10      Subsection 196(3) would be substituted to facilitate the release of unlawful non-citizens by court order.

1.11      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

1.12       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 arrivals.

1.13      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.[4]

1.14      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.[5]     

Part 4 and Schedule 2 – Fair process and procedural fairness

1.15      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 currently excluded.[6] 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 Federal Court.[7]

1.16      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 any account.[8]

1.17      Removing this Part would enable applicants to challenge previously excluded administrative decisions.

1.18      Schedule 2 of the Bill seeks to extend the AD(JR) Act's application to administrative decisions made under the Act previously excluded through privative clauses.

Part 5 – Indefinite detention

1.19      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

1.20      The committee placed details of the inquiry, the Bill, explanatory memorandum and the second reading speech on the committee's website.

1.21      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.[9]

1.22      A public hearing was held in Canberra on 4 August 2011. Witnesses who appeared before the committee are listed at Appendix 2.

Acknowledgment

1.23      The committee thanks those organisations and individuals who made submissions to the inquiry.

Note on references

1.24      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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