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This is a Bill, not an Act. For current law, see the Acts databases.
2022-2023
The Parliament of the
Commonwealth of Australia
HOUSE OF REPRESENTATIVES
Presented and read a first time
Migration Amendment (Limits on
Immigration Detention) Bill 2023
No. , 2023
(Ms Tink)
A Bill for an Act to amend the Migration Act 1958,
and for related purposes
No. , 2023
Migration Amendment (Limits on Immigration Detention) Bill 2023
i
Contents
1
Short title .............................................................................. 1
2
Commencement .................................................................... 1
3
Schedules .............................................................................. 2
Schedule 1--Amendments
3
Migration Act 1958
3
No. , 2023
Migration Amendment (Limits on Immigration Detention) Bill 2023
1
A Bill for an Act to amend the Migration Act 1958,
1
and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Migration Amendment (Limits on Immigration
5
Detention)
Act 2023
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Migration Amendment (Limits on Immigration Detention) Bill 2023
No. , 2023
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. The whole of
this Act
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments
Schedule 1
No. , 2023
Migration Amendment (Limits on Immigration Detention) Bill 2023
3
Schedule 1--Amendments
1
2
Migration Act 1958
3
1 Section 4AA
4
Repeal the section, substitute:
5
4AA Detention of minors prohibited
6
(1) A minor must not be detained.
7
(2) Subsection (1) does not prevent a minor residing at a place in
8
accordance with a residence determination.
9
(3) This section has effect despite any other law.
10
2 Subsection 189(1)
11
Omit "must detain", substitute "may detain".
12
3 At the end of subsection 189(1)
13
Add:
14
Note 1:
This section does not enable the detention of minors unless in
15
accordance with a residence determination (see section 4AA).
16
Note 2:
A 90-day limit applies for detention (see subsection 196(2)).
17
4 Subsection 189(3)
18
Omit "must detain", substitute "may detain".
19
5 After subsection 189(4)
20
Insert:
21
Limited grounds for detention
22
(4A) An officer may only detain a person under subsection (1), (2), (3),
23
(3A) or (4) if the officer reasonably believes that, having regard to
24
principles of international law, the detention:
25
(a) is necessary as a last resort; and
26
(b) is reasonable and proportionate.
27
Schedule 1
Amendments
4
Migration Amendment (Limits on Immigration Detention) Bill 2023
No. , 2023
Meaning of officer
1
6 At the end of subsection 192(1)
2
Add:
3
Note 1:
This section does not enable the detention of minors unless in
4
accordance with a residence determination (see section 4AA).
5
Note 2:
A 90-day limit applies for detention (see subsection 196(2)).
6
7 Subsection 196(1)
7
Omit "An unlawful non-citizen detained under section 189 must",
8
substitute "A person who is an unlawful non-citizen detained under
9
section 189 may".
10
8 Subsections 196(2) to (7)
11
Repeal the subsections, substitute:
12
(2) However, the person must not be detained under section 189 for
13
more than 90 days unless the Minister decides that, having regard
14
to principles of international law, an extended period of detention
15
(rather than release on a bridging visa):
16
(a) is necessary as a last resort; and
17
(b) is reasonable and proportionate.
18
Note:
The Administrative Appeals Tribunal may review this decision,
19
including a decision the Minister is taken to have made under this
20
subsection because of subsection (3) (see section 500).
21
(3) If the person is still in immigration detention on the 91st day after
22
the day the detention started, the Minister is taken to have decided
23
under subsection (2) on that 91st day to extend the person's period
24
of detention.
25
9 Subsection 474(4) (before table item 1)
26
Insert:
27
1A
subsection 196(2)
Extending a period of immigration detention
10 Before paragraph 500(1)(a)
28
Insert:
29
(aa) decisions of the Minister under subsection 196(2); or
30
Amendments
Schedule 1
No. , 2023
Migration Amendment (Limits on Immigration Detention) Bill 2023
5
11 Before paragraph 500(4)(a)
1
Insert:
2
(aa) a decision of the Minister under subsection 196(2);
3
12 After subsection 500(4A)
4
Insert:
5
(5) For the purposes of the Administrative Appeals Tribunal's review
6
of a decision (the
reviewable decision
) under subsection 196(2)
7
about a person, the
Administrative appeals Tribunal Act 1975
8
applies as if that Act provides that:
9
(a) the Tribunal must make a decision under section 43(1) of that
10
Act about the reviewable decision within:
11
(i) 7 business days after the day the application for review
12
is made; or
13
(ii) a further 7 business days if required by the Tribunal and
14
if the person consents; and
15
(b) if the Tribunal fails to do so, the Tribunal is taken to have:
16
(i) set aside the reviewable decision; and
17
(ii) in substitution, decided that the person is to be released
18
from immigration detention on a bridging visa.
19
Note 1:
The Tribunal's decision will involve considering the reviewable
20
decision against the grounds mentioned in subsection 196(2).
21
Note 2:
Judicial review may be available of a Tribunal decision affirming the
22
reviewable decision.
23
13 Application of amendments
24
(1)
Section 196 of the
Migration Act 1958
(as amended by this Schedule)
25
applies in relation to persons in immigration detention on or after the
26
day this Schedule commences (whether that detention started before, on
27
or after that commencement).
28
(2)
If a person:
29
(a) is in immigration detention on the day this Schedule
30
commences (the
new law day
); and
31
(b) that detention started more than 90 days before the new law
32
day;
33
Schedule 1
Amendments
6
Migration Amendment (Limits on Immigration Detention) Bill 2023
No. , 2023
subsection 196(3) of the
Migration Act 1958
(as amended by this
1
Schedule) applies to the person as if the deemed decision of the
2
Minister referred to in that subsection were made on the new law day.
3
Note:
Subitems (1) and (2) only apply to a minor if the minor is in immigration detention at a
4
place in accordance with a residence determination. A minor in any other form of
5
immigration detention on the day this Schedule commences must be released (see
6
section 4AA of the
Migration Act 1958
(as amended by this Schedule)).
7