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This is a Bill, not an Act. For current law, see the Acts databases.
2022
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Ending Indefinite and Arbitrary
Immigration Detention Bill 2022
No. , 2022
(Mr Wilkie)
A Bill for an Act to end the indefinite and arbitrary
detention of people seeking asylum in Australia,
and for related purposes
No. , 2022
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
i
Contents
Part 1--Preliminary
1
1
Short title .............................................................................. 1
2
Commencement .................................................................... 2
3
Simplified outline ................................................................. 2
4
Act binds the Crown ............................................................. 2
5
Definitions ............................................................................ 2
6
Constitutional basis of this Act ............................................. 4
7
Additional operation of this Act ........................................... 4
8
Principle of family unity ....................................................... 4
9
Principle of the rights and best interests of the child ............ 5
Part 2--Immigration detention
6
10
Relationship with other laws ................................................ 6
11
Immigration detention .......................................................... 6
12
Alternatives to immigration detention .................................. 6
13
Access to assistance in alternatives to immigration detention
.............................................................................................. 7
14
Timeframes for the determination of alternatives to
immigration detention .......................................................... 8
15
Revocation or variation of restrictions .................................. 8
16
Reasons for immigration detention ....................................... 8
17
Time frames for immigration detention ................................ 9
18
Information provided to detainees ...................................... 10
19
Access to services in detention ........................................... 11
20
Communication for the purpose of obtaining immigration
assistance ............................................................................ 11
21
Children in detention .......................................................... 12
22
Independent monitoring ...................................................... 14
23
Review of decisions ............................................................ 14
Part 3--Miscellaneous
16
24
Jurisdiction of the Federal Circuit and Family Court of
Australia (Division 2) ......................................................... 16
25
Regulations ......................................................................... 16
No. , 2022
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
1
A Bill for an Act to end the indefinite and arbitrary
1
detention of people seeking asylum in Australia,
2
and for related purposes
3
The Parliament of Australia enacts:
4
Part 1--Preliminary
5
6
1 Short title
7
This Act is the
Ending Indefinite and Arbitrary Immigration
8
Detention Act 2022
.
9
Part 1
Preliminary
Section 2
2
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
No. , 2022
2 Commencement
1
(1) Each provision of this Act specified in column 1 of the table
2
commences, or is taken to have commenced, in accordance with
3
column 2 of the table. Any other statement in column 2 has effect
4
according to its terms.
5
6
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day this Act receives the Royal Assent.
Note:
This table relates only to the provisions of this Act as originally
7
enacted. It will not be amended to deal with any later amendments of
8
this Act.
9
(2) Any information in column 3 of the table is not part of this Act.
10
Information may be inserted in this column, or information in it
11
may be edited, in any published version of this Act.
12
3 Simplified outline
13
(1) This Act establishes a legal framework governing immigration
14
detention in Australia.
15
(2) This Act:
16
(a) does not allow mandatory detention; and
17
(b) prioritises:
18
(i) non-citizens' immediate needs; and
19
(ii) refugee and international human rights law.
20
4 Act binds the Crown
21
This Act binds the Crown in each of its capacities.
22
5 Definitions
23
(1) In this Act:
24
Preliminary
Part 1
Section 5
No. , 2022
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
3
adverse security assessment
has the same meaning as in Part IV of
1
the
Australian Security Intelligence Organisation Act 1979
.
2
Australian legal practitioner
has the same meaning as in Part 3 of
3
the Migration Act.
4
Convention on the Rights of the Child
means the Convention on
5
the Rights of the Child done at New York on 20 November 1989,
6
as in force for Australia from time to time.
7
Note:
The Convention on the Rights of the Child is in Australian Treaty
8
Series 1991 No. 4 ([1991] ATS 4) and could in 2022 be viewed in the
9
Australian Treaties Library on the AustLII website
10
(http://www.austlii.edu.au).
11
immigration assistance
has the same meaning as in Part 3 of the
12
Migration Act.
13
Migration Act
means the
Migration Act 1958
.
14
Migration Minister
means the Minister administering section 65 of
15
the Migration Act.
16
non-citizen
includes a refugee.
17
principle of family unity
has a meaning affected by section 8.
18
principle of the rights and best interests of the child
has a
19
meaning affected by section 9.
20
refugee
includes a person who:
21
(a) is seeking asylum; or
22
(b) is a refugee within the meaning of section 5H of the
23
Migration Act; or
24
(c) is recognised as a refugee under the Refugees Convention.
25
Secretary
means the Secretary of the Department.
26
security assessment
has the same meaning as in Part IV of the
27
Australian Security Intelligence Organisation Act 1979
.
28
(2) An expression used in this Act that is defined for the purposes of
29
the Migration Act has the same meaning in this Act as it has in the
30
Migration Act.
31
Part 1
Preliminary
Section 6
4
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
No. , 2022
6 Constitutional basis of this Act
1
This Act relies on the Commonwealth's legislative powers under
2
the following provisions of the Constitution:
3
(a) paragraph 51(xix) (aliens);
4
(b) paragraph 51(xxvii) (immigration and emigration).
5
7 Additional operation of this Act
6
(1) In addition to section 6, this Act also has effect as provided by this
7
section.
8
External affairs power
9
(2) This Act also has the effect it would have if its operation were
10
expressly confined to give effect to Australia's rights and
11
obligations under an agreement with one or more countries.
12
(3) This Act also has the effect it would have if its operation were
13
expressly confined to acts or omissions that occur beyond the
14
limits of the States and Territories.
15
(4) This Act also has the effect it would have if its operation were
16
expressly confined to matters that are of international concern.
17
8 Principle of family unity
18
(1) The Parliament affirms that the principle of family unity should be
19
adopted in conformity with the obligation to protect the family and
20
respect family life, subject to the best interests of the child, as
21
enshrined in many instruments of international law including the
22
Convention on the Rights of the Child.
23
(2) The principle of family unity must be a paramount consideration in
24
any decision or other action taken for the purposes of this Act.
25
(3) The
principle of family unity
includes the principle that a country
26
should refrain from taking actions that would disrupt members of a
27
family unit of a person.
28
Note:
The expression
member of the family unit
of a person is defined for
29
the purposes of the Migration Act.
30
Preliminary
Part 1
Section 9
No. , 2022
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
5
9 Principle of the rights and best interests of the child
1
(1) The principle of the rights and best interests of the child must be a
2
paramount consideration in any decision or other action:
3
(a) taken for the purposes of this Act; and
4
(b) that affects a child.
5
(2) The
principle of the rights and best interests of the child
includes:
6
(a) the principle of family unity; and
7
(b) the principle that a country should recognise and provide for
8
every child's inherent right to life and ensure to the
9
maximum extent possible the survival and development of
10
the child (including health and mental health services,
11
counselling and trauma services, phone and internet,
12
education, legal services and accommodation and financial
13
assistance); and
14
(c) the principle that a country should ensure that throughout the
15
immigration process children will be assured the right to
16
express their views freely in all matters affecting them, their
17
views being given due weight in accordance with the child's
18
age and level of maturity.
19
Part 2
Immigration detention
Section 10
6
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
No. , 2022
Part 2--Immigration detention
1
2
10 Relationship with other laws
3
This Part applies in relation to all immigration detention in
4
Australia, despite:
5
(a) any other law of the Commonwealth, a State or a Territory
6
(whether written or unwritten); and
7
(b) in particular, sections 189 and 196 and the other provisions
8
of the Migration Act.
9
11 Immigration detention
10
(1) The Parliament intends that immigration detention always be:
11
(a) lawful, under both international law and domestic law; and
12
(b) necessary and proportionate; and
13
(c) for the shortest time possible; and
14
(d) in Australia.
15
(2) The Parliament also intends that alternatives to detention are the
16
preferred option to immigration detention for non-citizens.
17
12 Alternatives to immigration detention
18
(1) If there is no reason under section 16 for a non-citizen to be taken
19
into, or kept in, immigration detention, the Secretary must, in
20
writing, determine alternatives to immigration detention that are to
21
apply in relation to the non-citizen.
22
Note:
A reference in this Act to a non-citizen includes a reference to a
23
refugee: see subsection 5(1).
24
(2) A determination under subsection (1) must permit a non-citizen
25
covered by the determination to live in the community in
26
accordance with the restriction (if any) specified in the
27
determination. The restriction may be any one of the following:
28
(a) a requirement to deposit or surrender documentation such as
29
passports;
30
Immigration detention
Part 2
Section 13
No. , 2022
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
7
(b) reporting conditions, such as periodic reporting to an
1
authority or organisation of a kind prescribed by the
2
regulations (which may include, for example, an immigration
3
authority or a non-government organisation);
4
(c) a requirement that the non-citizen must reside at a specific
5
address or within a particular suburb or area;
6
(d) a requirement to provide a guarantor who would be
7
responsible for ensuring the non-citizen's attendance at
8
official appointments and hearings and for ensuring that the
9
non-citizen otherwise reports as specified in any condition of
10
release.
11
(3) If a determination under subsection (1) includes a requirement that
12
a non-citizen deposit or surrender identification documentation, the
13
Secretary must ensure that the non-citizen is issued with alternative
14
forms of identification.
15
(4) A copy of a determination under subsection (1) must be given to
16
the non-citizen covered by the determination.
17
Bridging visas
18
(5) If a determination under subsection (1) is in force in relation to a
19
person who, apart from this subsection, would be an unlawful
20
non-citizen, the Migration Minister is to grant a bridging visa to the
21
person.
22
13 Access to assistance in alternatives to immigration detention
23
(1) If a determination under subsection 12(1) is in force then:
24
(a) adequate material support, accommodation and access to
25
means of self-sufficiency (including any necessary financial
26
support) must be provided to the non-citizen; and
27
(b) the non-citizen must have the right to work if aged 16 or
28
over; and
29
(c) the non-citizen must have access to each service prescribed
30
for the purposes of subsection 19(1).
31
Part 2
Immigration detention
Section 14
8
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
No. , 2022
(2) Subsection (1) has effect despite any other law of the
1
Commonwealth, a State or a Territory (whether written or
2
unwritten).
3
14 Timeframes for the determination of alternatives to immigration
4
detention
5
A determination under subsection 12(1) remains in force for:
6
(a) 12 months; or
7
(b) if, on application, the Federal Circuit and Family Court of
8
Australia (Division 2) makes an order fixing a longer
9
period--that period.
10
15 Revocation or variation of restrictions
11
If a determination under subsection 12(1) is in force that covers a
12
non-citizen, and the non-citizen fails to comply with the restriction
13
specified in the determination, the Secretary may:
14
(a) revoke the determination; or
15
(b) vary the restriction.
16
16 Reasons for immigration detention
17
(1) A non-citizen may be taken into, or kept in, immigration detention
18
only for one or more of the following reasons that apply, on a
19
particularised and individualised basis, to the non-citizen:
20
(a) to document the non-citizen's entry;
21
(b) to record the non-citizen's claims for asylum;
22
(c) to determine the non-citizen's identity;
23
(d) to await health clearance so as to protect public health;
24
(e) to await a security assessment;
25
(f) to prevent the non-citizen from absconding if there is
26
evidence of a risk of the non-citizen absconding;
27
(g) if there is risk that the non-citizen might destroy evidence or
28
influence witnesses;
29
(h) if an adverse security assessment has been made in respect of
30
the non-citizen.
31
Immigration detention
Part 2
Section 17
No. , 2022
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
9
(2) A non-citizen must not be taken into, or kept in, immigration
1
detention for any of the following reasons:
2
(a) the non-citizen's mode of arrival (for example by boat);
3
(b) irregular entry or stay, provided that the non-citizen has
4
presented themselves without delay to the authorities and
5
shown good cause for their irregular entry or stay;
6
(c) executive order.
7
(3) A non-citizen must not be held in prison, with prisoners or in
8
prison-like facilities unless the non-citizen has been convicted of,
9
or is being held in custody on remand in relation to, an offence
10
against a law of the Commonwealth, a State or a Territory that is
11
punishable by imprisonment.
12
(4) No non-citizen may be subjected to arbitrary or mandatory
13
detention.
14
17 Time frames for immigration detention
15
(1) A non-citizen (other than a non-citizen referred to in
16
subsection 21(2)) must not be kept in immigration detention for
17
more than 3 months.
18
Note:
Subsection 21(2) is about the detention of children.
19
(2) On application, the Federal Circuit and Family Court of Australia
20
(Division 2) may extend, or further extend, that period by up to 6
21
months. The court may do so only if that period, or that period as
22
last extended, has not yet ended. The period, as extended or further
23
extended, must not exceed 12 months.
24
(3) In determining whether to make an order under subsection (2), the
25
Federal Circuit and Family Court of Australia (Division 2) must
26
take into account the following:
27
(a) that detention of non-citizens should only occur as a measure
28
of last resort and that there should be a general presumption
29
against the detention;
30
(b) whether there are any non-custodial measures available (for
31
example the imposition of reporting obligations or other
32
conditions);
33
Part 2
Immigration detention
Section 18
10
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
No. , 2022
(c) the balancing of the rights to liberty, security and freedom of
1
movement of the non-citizen with the public safety
2
objections of immigration detention.
3
(4) If the Federal Circuit and Family Court of Australia (Division 2)
4
makes an order under subsection (2), the court may also make any
5
other order the court considers appropriate to facilitate the
6
non-citizen not being kept in immigration detention for longer than
7
the extended, or further extended, period.
8
Appeals
9
(5) An appeal lies from a decision of the Federal Circuit and Family
10
Court of Australia (Division 2) under subsection (2) to the Federal
11
Court of Australia.
12
(6) If an appeal is made against a decision to make an order under
13
subsection (2), the Federal Court:
14
(a) is to proceed by way of a hearing de novo, but may receive as
15
evidence any record of evidence given, including any
16
affidavit filed or exhibit received in the Federal Circuit and
17
Family Court of Australia (Division 2); and
18
(b) may make such decrees as it considers appropriate, including
19
a decree affirming, reversing or varying the decision of the
20
Federal Circuit and Family Court of Australia (Division 2).
21
18 Information provided to detainees
22
Each non-citizen that is taken into immigration detention must be
23
immediately informed (orally and in writing, and in a language the
24
non-citizen understands) of the following:
25
(a) the reason for the non-citizen's detention;
26
(b) the non-citizen's legal rights in regards to the detention
27
(including the process of judicial review and the contact
28
information for legal aid and consular assistance);
29
(c) the proposed time frame for the non-citizen's detention;
30
(d) the non-citizen's rights under sections 19 and 20;
31
(e) contact details of suitable Australian legal practitioners who
32
are able to give
immigration assistance.
33
Immigration detention
Part 2
Section 19
No. , 2022
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
11
19 Access to services in detention
1
(1) The regulations may prescribe any or all of the following services
2
for non-citizens in immigration detention:
3
(a) health and mental health services;
4
(b) counselling and trauma services;
5
(c) phone and internet;
6
(d) education;
7
(e) visiting services (including daily access to visitors, whether
8
they are known to the non-citizen or part of a broader
9
community or non-government service);
10
(f) government services (including immigration, housing and
11
Centrelink services);
12
(g) free and independent legal services.
13
(2) A non-citizen in immigration detention must have access to each
14
service prescribed for the purposes of subsection (1).
15
20 Communication for the purpose of obtaining immigration
16
assistance
17
(1) A non-citizen in immigration detention is entitled, at any time
18
during business hours, to communicate and consult regarding
19
immigration assistance.
20
(2) All reasonable efforts are to be made to facilitate a non-citizen to
21
communicate or consult, outside business hours, regarding
22
immigration assistance if the need to communicate or consult is
23
urgent.
24
(3) Adequate time and facilities are to be made available to a
25
non-citizen in detention for the purpose of receiving immigration
26
assistance.
27
(4) Without limiting subsection (3), a non-citizen who is receiving
28
immigration assistance, or the non-citizen's legal counsel, may be
29
required to be within sight, but must not be required to be within
30
hearing, of others (including immigration detention staff).
31
Part 2
Immigration detention
Section 21
12
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
No. , 2022
(5) A non-citizen in immigration detention is entitled to have his or her
1
communications under this section (whether verbal or written)
2
treated as confidential between the parties.
3
21 Children in detention
4
(1) It is the intention of Parliament that non-citizens who are children:
5
(a) should not be deprived of liberty, except as a measure of last
6
resort; and
7
(b) should be deprived of liberty only for the shortest appropriate
8
period of time, taking into account the extreme vulnerability
9
and need for care of children (particularly of unaccompanied
10
minors).
11
(2) Without limiting subsection (1) or section 11, a non-citizen who is
12
18 years old or less, or who is reasonably suspected to be 18 years
13
old or less, must not be kept in immigration detention for more
14
than 7 days.
15
Note:
Sections 8 and 9 require:
16
(a) the principle of family unity; and
17
(b) the principle of the rights and best interests of the child;
18
to be paramount considerations in any decision or other action taken
19
for the purposes of this Act.
20
These requirements may mean that, if a child is released from
21
immigration detention, his or her parents and members of the family
22
unity must also be released.
23
(3) On application, the Federal Circuit and Family Court of Australia
24
(Division 2) may extend, or further extend, that period by up to 3
25
months. The court may do so only if that period, or that period as
26
last extended, has not yet ended. The period, as extended or further
27
extended, must not exceed 6 months.
28
(4) If the non-citizen is an unaccompanied minor, the first order under
29
subsection (3) in relation to the non-citizen must be obtained
30
within 24 hours of the non-citizen being taken into immigration
31
detention or as close as possible to that time.
32
Immigration detention
Part 2
Section 21
No. , 2022
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
13
(5) In determining whether to make an order under subsection (3), the
1
Federal Circuit and Family Court of Australia (Division 2) must
2
take into account the following:
3
(a) the effect of subsection (1) and section 11;
4
(b) that detention of non-citizens should only occur as a measure
5
of last resort and for the shortest possible time, and that there
6
should be a general presumption against the detention;
7
(c) whether there are any non-custodial measures available (for
8
example the imposition of reporting obligations or other
9
conditions);
10
(d) the balancing of the rights to liberty, security and freedom of
11
movement of the non-citizen with the public safety objectives
12
of immigration detention.
13
(6) If the Federal Circuit and Family Court of Australia (Division 2)
14
makes an order under subsection (3), the court may also make any
15
other order the court considers appropriate to facilitate the
16
non-citizen not being kept in immigration detention for longer than
17
the extended, or further extended, period.
18
Appeals
19
(7) An appeal lies from a decision of the Federal Circuit and Family
20
Court of Australia (Division 2) under subsection (3) to the Federal
21
Court of Australia.
22
(8) If an appeal is made against a decision to make an order under
23
subsection (3), the Federal Court:
24
(a) is to proceed by way of a hearing de novo, but may receive as
25
evidence any record of evidence given, including any
26
affidavit filed or exhibit received in the Federal Circuit and
27
Family Court of Australia (Division 2); and
28
(b) may make such decrees as it considers appropriate, including
29
a decree affirming, reversing or varying the decision of the
30
Federal Circuit and Family Court of Australia (Division 2).
31
Part 2
Immigration detention
Section 22
14
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
No. , 2022
22 Independent monitoring
1
(1) Immigration detention facilities must be subject to external
2
inspections every 6 months independent of the administration of
3
the facility.
4
(2) An inspection under subsection (1) must be conducted by an
5
independent organisation determined, by legislative instrument, by
6
the President of the Australian Human Rights Commission.
7
(3) For the purposes of carrying out an inspection under
8
subsection (1), an organisation determined under subsection (2)
9
may:
10
(a) access all information on the numbers of detainees and
11
locations of detention, as well as all information relevant to
12
the treatment of detainees (including their records and
13
conditions of detention); and
14
(b) freely choose which immigration detention facilities to visit
15
(including by making unannounced visits at their own
16
initiative, and which detainees to interview); and
17
(c) conduct private and fully confidential interviews with
18
detainees and staff or contractors (including medical staff or
19
contractors) working at the immigration detention facility in
20
the course of their visits; and
21
(d) make recommendations to the immigration detention
22
facilities administration and other competent authorities.
23
(4) To avoid doubt, paragraph (3)(b) does not entitle an organisation to
24
interview a detainee without the consent of the detainee.
25
(5) This section does not limit any other right or power of an
26
organisation or individual to access an immigration detention
27
facility that exists apart from this section.
28
23 Review of decisions
29
Applications may be made to the Administrative Appeals Tribunal
30
for review of any of the following decisions:
31
(a) a decision of the Secretary to specify a restriction in a
32
determination under subsection 12(1);
33
Immigration detention
Part 2
Section 23
No. , 2022
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
15
(b) a decision of the Secretary under section 15 to revoke a
1
determination under subsection 12(1);
2
(c) a decision of the Secretary under section 15 to vary the
3
restriction specified in a determination under
4
subsection 12(1).
5
Part 3
Miscellaneous
Section 24
16
Ending Indefinite and Arbitrary Immigration Detention Bill 2022
No. , 2022
Part 3--Miscellaneous
1
2
24 Jurisdiction of the Federal Circuit and Family Court of Australia
3
(Division 2)
4
Jurisdiction is conferred on the Federal Circuit and Family Court of
5
Australia (Division 2) in relation to any civil matter arising under
6
this Act.
7
25 Regulations
8
The Governor-General may make regulations prescribing matters:
9
(a) required or permitted by this Act to be prescribed by the
10
regulations; or
11
(b) necessary or convenient to be prescribed for carrying out or
12
giving effect to this Act.
13