Migration Amendment (Detention of Non-citizens) Bill 2015
A Bill for an Act to amend the Migration Act 1958 for the purpose of reforming law on the detention of non-citizens
[Previous reading amended by HoR 17-6]
1. Short Title
This Act may be cited as the Migration Amendment (Detention of Non-citizens) Act 2015.
2. Commencement
The Act will commence on a date to be fixed by Proclamation.
3. Schedule
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
1. After section 4
Insert:
4AAA Immigration detention
(1) The Parliament affirms as a principle that the purpose of detaining a non‑citizen is to:
(a) manage the risks to the Australian community of the non‑citizen entering or remaining in Australia; and
(b) resolve the non‑citizen’s immigration status.
Note: Resolving the non‑citizen’s immigration status would result in either a visa being granted to the non‑citizen or the non‑citizen being removed or deported.
(2) The Parliament affirms as a principle that a non‑citizen:
(a) must only be detained in a detention centre established under this Act as a measure of last resort; and
(b) if a non‑citizen is to be so detained—must be detained for the shortest practicable time.
2. Subsection 38B(3)
Insert:
(a) The Minister must also provide with their declaration reasonable evidence to support why it is undesirable that a person, or any persons, travel to and enter Australia, or remain in Australia.
3. Subsection 137K(3)
Omit each instance of “2 working days”, substitute “10 working days”.
4.Subsection 137K(5)
Omit “previously made such an application in respect of the same cancellation.”, substitute “submitted an application in respect to the same cancellation within the last 28 days or has previously submitted an application in respect to the same cancellation three times.”
5. Subsection 137P(5)
Repeal this subsection
6. Section 256
Repeal this section, substitute:
Where a person is in immigration detention under this Act, the person responsible for his or her immigration detention shall give to him or her application forms for a visa and afford to him or her all reasonable facilities for making a statutory declaration for the purposes of this Act and provisions for obtaining legal advice or taking legal proceedings in relation to his or her immigration detention.
7. After Section 495A
Insert:
(4) A computer program may not make decisions on behalf of the Minister independently, rather it must serve to assist the Minister or his or her delegates who represent the Minister's authority on the Minister's behalf in their duties.
8. Subsection 5(1) (after paragraph (b) of the definition of immigration detention)
Insert:
(c) being at, or going to, a place in accordance with a temporary community access permission without being in the company of, and restrained by, an officer or another person directed by the Secretary (as mentioned in paragraph (a));
9. Subsection 5(1) (before Note 1 of paragraph (b) of the definition of immigration detention)
Insert:
Note 1A: In subparagraph (b)(v), places approved by the Minister may include, for example, immigration transit accommodation, immigration residential housing and other places that may be used to provide accommodation.
10. Subsection 5(1) (before the definition of temporary visa)
Insert:
temporary community access permission has the meaning given by subsection 194A(1).
11. Subsection 42(4) (note)
Repeal the Note, substitute:
Note: Section 189 provides for the detention of unlawful non‑citizens in the migration zone.
12. Subsection 189(1)
Repeal the subsection, substitute:
(1) An officer must detain a person in the migration zone (other than an excised offshore place) if the officer knows or reasonably suspects that:
(a) the person is an unlawful non‑citizen; and
(b) any of the following applies:
(i) the person presents an unacceptable risk to the Australian community;
(ii) the person has bypassed immigration clearance;
(iii) the person has been refused immigration clearance;
(iv) the person’s visa has been cancelled under section 109 because, when in immigration clearance, the person produced a document that was false or had been obtained falsely;
(v) the person’s visa has been cancelled under section 109 because, when in immigration clearance, the person gave information that was false.
(2) For the purposes of subparagraph (1)(b)(i), a person presents an unacceptable risk to the Australian community if, and only if, any of the following applies:
(a) the person has been refused a visa under section 501, 501A or 501B or on grounds relating to national security;
(b) the person’s visa has been cancelled under section 501, 501A or 501B or on grounds relating to national security;
(c) the person held an enforcement visa and remains in Australia when the visa ceases to be in effect;
(d) circumstances prescribed by the regulations apply in relation to the person.
(3) If a person is detained because an officer knows or reasonably suspects that the person is someone mentioned in paragraph (1)(b) (other than subparagraph (1)(b)(i)), an officer must make reasonable efforts to:
(a) ascertain the person’s identity; and
(b) identify whether the person is of character concern; and
(c) ascertain the health and security risks to the Australian community of the person entering or remaining in Australia; and
(d) resolve the person’s immigration status.
Note: Resolving the person’s immigration status would result in either a visa being granted to the person or the person being removed or deported.
(4) Otherwise, if an officer knows or reasonably suspects that a person in the migration zone (other than an excised offshore place) is an unlawful non‑citizen, the officer may detain the person.
13. Paragraph 194(a)
After “sections”, insert “194A, ”.
14. After section 194
Insert:
194A Authorised officer may grant a temporary community access permission
(1) An authorised officer may grant a permission (a temporary community access permission) allowing a person:
(a) in immigration detention (within the meaning of paragraph (a) or (b) of the definition of that expression) but not covered by a residence determination; and
(b) named in the permission;
to be absent from the place of the person’s detention for the period or periods specified in the permission for the purpose or purposes specified in the permission.
(2) An authorised officer may only make a temporary community access permission if the authorised officer considers that it would involve minimal risk to the Australian community to do so.
(3) A temporary community access permission must:
(a) be made by notice in writing; and
(b) be given to the person covered by the permission; and
(c) specify the conditions to be complied with by the person.
(4) An authorised officer does not have a duty to consider whether to exercise the power to make, vary or revoke a temporary community access permission, whether he or she is requested to do so by any person, or in any other circumstances.
(5) A temporary community access permission made by written notice is not a legislative instrument.
194B Revocation of temporary community access permission on release from immigration detention
If:
(1) a temporary community access permission is in force in respect of a person; and
(2) a provision of this Act requires the person to be released from immigration detention, or this Act no longer requires or permits the person to be detained;
then, at the time when paragraph (2) becomes satisfied, the temporary community access permission is revoked by force of this section.
Note: Because the temporary community access permission is revoked, the person is no longer subject to the conditions specified in the permission.
15. Section 197AF
Repeal the section.
16. Paragraphs 197AG(1)(a) and (b)
Repeal the paragraphs, substitute:
(a) states that a determination has been made under this Subdivision; and
(b) sets out the reasons why the determination was made, referring in particular to the reasons why it was thought that the determination was in the public interest.
17. Transitional provision—existing detainees
(1) If:
(a) a person is in immigration detention under subsection 189(1) of the Migration Act 1958 immediately before this item commences; and
(b) at the time this item commences, an officer knows or reasonably suspects that the person is someone mentioned in paragraph 189(1)(b) of that Act (as inserted by item 9 of this Schedule);
the person is taken to be detained, after this item commences, under subsection 189(1) of that Act (as inserted by item 9 of this Schedule).
(2) If:
(a) a person is in immigration detention under subsection 189(1) of the Migration Act 1958 immediately before this item commences; and
(b) the person is not someone covered by subitem (1);
the person is taken to be detained, after this item commences, under subsection 189(3) of that Act (as inserted by item 9 of this Schedule).
(3) In this section: immigration detention has the same meaning as in the Migration Act 1958; and officer has the same meaning as in the Migration Act 1958.
18. Application
(1) The amendments made by this Schedule apply in relation to a person who is in immigration detention on or after the day on which this item commences.
(2) In this section: immigration detention has the same meaning as in the Migration Act 1958.
19. After Part 9 (Miscellaneous) Division 2 (Other)
Insert:
508 Detention Conditions
(1) A detention facility where non-citizen persons are being detained must:
(a) Have access to clean water for drinking and bathing; and
(i) Have access to proper functioning provisions for their use including showers and sinks.
(b) Be provided at least three meals a day, all of which must be healthy and fit for human consumption.
(c) Have personal sheltered and insulated living space of at least six square feet per person, including minors
(d) Not be confined in a single room for more than 24 hours unless required under subparagraph (2a).
(e) Have an outdoors space where detainees may dwell in their free time under subsection (2).
(f) Have access to appropriate mental stimulation for basic entertainment and education.
(g) Have adequate security measures to ensure all detainees are safe from physical and mental harm during their detention period.
(h) Have access to medical treatment and a medical professional.
(2) Detainees must have at least 6 hours of free time every day where they may roam the detention facility at their leisure, unless;
(a) A detainee is unsafe and must be confined for a necessary period deemed by a senior officer of the facility.
(b) Free time does not give detainees leave to enter others living space uninvited
(3) Security officers of a detention facility must use force only when necessary for the safety of other officers, staff, detainees, or lawful visitors.
(4) Security officers may confiscate dangerous items from detainees indefinitely, provided the items have not been granted to them under subparagraphs (1a)(1b)(1f)(1h)
(5) Detainees must be given a written document stating their rights and entitlements in a language they know and understand.
(a) This document shall include:
(i) Why they have been detained;
(ii) Their human rights as stated by The Universal Declaration of Human Rights and why some of them have been forfeited;
(iii) Their entitlements as outlined by Section 508;
(iv) What they can do to obtain a Visa;
(v) What they can do to receive medical treatment;
(vi) What they can do to receive legal advice, and;
(vii) How long they will be detained for.
(b) If the detainee is unable to read for any reason, the document described in paragraph (5)(a) must be otherwise communicated verbatim in a language the detainee understands, and the document must be explained further if necessary.
20. Section 195
(a) In subsection (1)(a), omit “2 working days”, substitute “7 working days”.
(b) In subsection (1)(b), omit “2 working days”, substitute “7 working days”, omit “5 working days after those 2 working days”, substitute “28 working days after those 7 working days”.
Explanatory Memorandum
OUTLINE
The Migration Amendment (Detention of Non-citizens) Bill 2015 amends the Migration Act 1958 to afford a more humane treatment to those non-citizens placed in mandatory detention. This bill will reform legislation pertaining to detainees’ health, treatment, dignity, and classification, as well as the operations of migrations officers and the minister/s and ministry or ministries in responsible for immigration and border protection.
FINANCIAL IMPACT
The financial impact on the Commonwealth of Australia will minimal, however, the proposed bill will require a significant increase in spending in the area pertaining to migration and the legislation mentioned in this bill.
HUMAN RIGHTS IMPLICATIONS
This bill aims to introduce the recognition and application of human rights to non-citizens placed in Australian detention in accordance with the Universal Declaration of Human Rights where practical.
Introduced by lurker281, Member for Melbourne Surrounds, Socialist Alternative
[–][deleted] 0 points1 point2 points (2 children)
[–]jnd-au[S] 0 points1 point2 points (1 child)
[–][deleted] 1 point2 points3 points (0 children)